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The record supports that A Beka Books was an affiliate of PCC. Thus, under the terms of Bruhn’s contract with PCC, she was an employee of PCC even though she was assigned to work with the affiliate, A Beka Books. The only support cited by the trial court regarding its ruling that A Beka Books was Bruhn’s “actual” employer was a W-2 statement of Bruhn’s 2005 wages earned at A Beka Books, and the court’s determination that A Beka Books “is a separate legal entity from Pensacola Christian College and possesses a separate FIN/EIN number than does Pensacola Christian College.” However, the record on appeal does not support either finding. Moreover, a W-2 form is not conclusive evidence of an employment relationship. See Verchick v. Hecht Invs., Ltd., 924 So.2d 944, 945-46 (Fla. 3d DCA 2006) (<HOLDING>). Rather, as this court stated in Hoar Holdings: 0: holding that plaintiffs claims were precluded by csra because actions complained of arose from federal employment relationship even though many of the alleged violations occurred after the employment relationship was terminated 1: holding that while the contract did not establish a formal fiduciary relationship the pleadings were sufficient to raise an issue as to the existence of an informal one 2: holding that w2 tax forms alone did not establish an employment relationship 3: holding that poor evaluations alone do not constitute an adverse employment action 4: holding that the plaintiff presented sufficient evidence to establish an agency relationship for service to be effective | [
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CONSTITUTIONAL PRIOR RESTRAINT ON EXPRESSION? The Supreme Court in Freedman outlined three procedural safeguards that a prior restraint on protected expression must contain to obviate the dangers of censorship: (1) the burden of going to court to suppress the speech, and the burden of proof once in court, must rest with the government; (2) any restraint prior to a judicial determination may only be for a specified brief time period in order to preserve the status quo; and (3) an avenue for prompt judicial review of the censor’s decision must be available. Freedman, 380 U.S. at 58-59, 85 S.Ct. at 739. At least some of the Freedman requirements apply to content-neutral regulations such as section 2.51. See FW/PBS, 493 U.S. at 226-29, 110 S.Ct. at 605-06 (O’Connor, J., plurality opinion) (<HOLDING>); see also id. at 238-39, 110 S.Ct. at 611 Holdings: 0: holding that the court must assume on summary judgment that the nondecisionmakerharasser relayed the plaintiffs complaints about sexual harassment to the decisionmaker even though both the harasser and the decisionmaker denied this fact the harasser was present at the meeting in which it was decided that plaintiff would be terminated he had an incentive to pass on this information and his credibility was in question as to other matters 1: holding contentneutral licensing scheme was an unconstitutional prior restraint because it violated the second freedman safeguard adequate limits on the time that the decisionmaker has to issue the license 2: holding that a contentneutral law requiring professional fundraisers to obtain a license before soliciting donations was subject to the procedural safeguards of freedman 3: holding that liability attaches if the decisionmaker merely rubber stamps the recommendation of the retaliating supervisor or if the retaliating supervisor dupes the decisionmaker into taking action or otherwise controls the decisionmaker 4: holding that where a licensing scheme is facially invalid for lack of procedural safeguards or unbridled discretion a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license | [
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N.W.2d 41 (Minn.2008). Carlson—decided nearly seven years after Holmstrom v. III. Farmers Ins. Co., 631 N.W.2d 102 (Minn.App.2001), on which Pepper relies—rejected the idea that the statute is intended to define mandatory minimum coverage. 749 N.W.2d at 47. The supreme court therefore concluded that “subdivision 3a(5) constitutes a system of priorities and as such governs the source, not the scope, of coverage.” Id. at 47 n. 4. Because the policy in this case provides coverage when an insured is injured by an underinsured motor vehicle and specifically excludes vehicles that are provided liability coverage under the policy from the definition of an underinsured motor vehicle, I would conclude that Minn. Stat. § 65B.49, subd. 3a(5), does not entitle Pepper to UIM benefits. See id. at 47 (<HOLDING>). Because I believe that the plain language of Holdings: 0: holding location of named driver exclusion in endorsement did not make it ambiguous exclusion applied to all coverage afforded by the policy including the um coverage 1: holding that the certificate of selfinsurance filed with the commissioner is the functional equivalent of an insurance policy for purposes of minnesotas nofault statutes minnstat 65b49 subd 31 2002 2: holding that policy limits are not a defense to coverage and that policy limits define the amount of coverage 3: holding that because the policy by its terms afforded the injured party no coverage neither does minnstat 65b49 subd 3a5 4: holding that an insurer which insures a tortfeasor under a liability policy has no obligation of good faith and fair dealing to an injured third party even where the injured third party also carries a separate policy with the insurer | [
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the purpose of proving the truthfulness of his statement, but for the purpose of rebuttal only.’ ” Id. at 412, 105 S.Ct. 2078. The trial court included a similar limiting instruction in its final instructions to the jury. Id. The Supreme Court concluded that “[t]he nonhearsay aspect of [the co-conspirator’s] confession — not to prove what happened at the murder scene but to prove what happened when [the defendant] confessed — raisefd] no Confrontation Clause concerns.” Id. at 414, 105 S.Ct. 2078 (emphasis in original). Instead, the concern was that the jury might use the co-conspirator’s statement in a manner inconsistent with the Confrontation Clause, i.e., to infer Street’s guilt even though Street had had no opportunity to cross-examine the witness. I . 648, 17 L.Ed.2d 606 (1967) (<HOLDING>); Walder v. United States, 347 U.S. 62, 64, 74 Holdings: 0: holding previous convictions can only be used for sentence enhancement purposes under 18 usc 924e1 if the restoration of civil rights regarding such convictions expressly prohibited the possession of firearms 1: holding a sentence enhancement for two prior convictions must be based on separate criminal episodes 2: holding that statements elicited from a defendant in violation of his miranda rights could be introduced to impeach that defendants credibility when the jury was instructed that the statements were not to be considered as evidence of his guilt 3: holding that evidence of a defendants prior criminal convictions could be introduced for the purpose of sentence enhancement if the jury was instructed that the evidence could not be used for the purposes of determining guilt 4: holding that the admission of unlawfully seized evidence of a crime was admissible if the jury was instructed that the evidence could be considered only in assessing a defendants credibility and not for determining guilt | [
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person), with RCW 9A.32.030(l)(a) (person commits first degree murder when, with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person), and RCW 10.95.020 (listing aggravating circumstances). 5 Indeed, the trial court’s conclusion that reflection after the fact could show premeditation is probably wrong as a matter of law. To the extent that this is true, that decision is reviewed de novo. Walker, 136 Wn.2d at 771-72. Regardless of the standard applied, however, the trial court erred in concluding that the evidence did not support an inference that the shooting occurred without premeditation. 6 Br. of Resp’t at 14-15; Suppl. Br. of Pet’r at 9-10. 7 Compare State v. Tamalini, 134 Wn.2d 725, 728-36, 953 P.2d 450 (1998) (<HOLDING>), with Schaffer, 135 Wn.2d at 358-59 (remanding Holdings: 0: holding that aggravated battery is a lesser included offense of manslaughter 1: holding that due process does not require a lesser included offense instruction of manslaughter where not requested 2: holding that there are no lesser included offenses of second degree felony murder because of the multiple means of committing the offense 3: holding that the defendant who was charged with felony murder was not entitled to a lesser included instruction on manslaughter because manslaughter is neither a lesser included offense nor an inferior degree crime with respect to felony murder 4: holding that a lesser crime cannot be a lesser included offense of a greater crime if the lesser crime contains an essential element not included in the greater crime | [
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fact that Davis was seventeen years old at the time the murder was committed, the court finds that Davis’ sentence of death is unconstitutional. Pursuant to an Alabama statute, an individual convicted of a capital offense must be sentenced to death or life imprisonment without the possibility of parole. See Ala.Code § 13A-5-39(l) (defining “capital offense” as “[a]n offense for which a[ ] defendant shall be punished by a sentence of death or life imprisonment without parole according to the provisions of this article”); id. § 13A-5-40(a) (listing and defining Alabama’s capital offenses). Because the sentence of death is no longer constitutionally valid, the only sentencing alternative is life without parole. See Adams v. State, — So.2d-, 2006 WL 1216740, *1 (Ala.Cr.App. April 28, 2006) (<HOLDING>). Davis’ petition, therefore, is due to be Holdings: 0: holding that a defendant must have notice that the trial court might sentence him to death 1: holding that roper did not support a similar postconviction claim and noting that roper contained obiter dictum to the effect that life imprisonment without the possibility of parole remains a permissible sentence for such offenders 2: holding that the imposition of a life sentence on a juvenile does not violate the holding of roper 3: holding unconstitutional defendants sentence of death based upon the holding in roper supra and remanding for the montgomery circuit court to set aside the defendants death sentence and to sentence him to the only other sentence available life in the penitentiary without the possibility of parole 4: holding that if a trial court has rejected death as a possible sentence double jeopardy bars the state from seeking the death penalty at resentencing even where rejection of the death sentence was based on a legal error | [
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defendant in a case where the relevant statute awards attorneys’ fees to a prevailing party un- less the defendant is a prevailing party within the meaning of that statute. Id. at 1031 (citing Payne v. Milwaukee Cnty., 288 F.3d 1021, 1026 (7th Cir.2002) (“Briefly put, ‘costs’ cannot encompass more than the rules or other relevant statutes authorize.”)). Although we have not yet confronted this question in a Copyright Act case, Trident and Champion make clear that in this context as well, because the district court determined that attorney’s fees were not “properly awardable” to Veoh under § 505, they were not award-able under Rule 68 either. B. Even though Veoh is not entitled to attorney’s fees under Rule 68, it may be entitled to its other costs. See, e.g., Champion, 342 F.3d at 1028 (<HOLDING>). The district court, however, did not analyze Holdings: 0: holding that even though attorneys fees were not properly awardable under rule 68 costs excluding fees were mandatory 1: holding that lexis fees are not taxable as costs but reserving ruling on whether such fees are recoverable as attorneys fees 2: holding that appellate attorneys fees were incurred during the divorce proceedings and were awardable by the trial judge 3: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 4: recognizing that an award of temporary attorneys fees and costs is based on an assessment of need and ability to pay as well as the reasonableness of the fees and costs | [
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for nonrenewal, but retaining the "good cause” requirement for termination of a tenancy during the term of the lease. See Barrientos, 583 F.3d 1205. 4 . As discussed below, the one-year notice provision only applies to an owner's decision to terminate or not renew a project-based assistance program, and not a tenant-based assistance program like that at issue here. 5 . Under the circumstances, it would not have made any sense for Defendant to have included the other required language pertaining to the availability of "tenant-based rental assistance” in his non-renewal notice, since Plaintiffs had already been put on notice of such by the previous owner and had been receiving such assistance since 2009. Cf. Owens v. Charleston Housing Authority, 336 F.Supp.2d 934, 946 (D.Mo.2004) (<HOLDING>). 6 . Notably, even the cases on which Holdings: 0: holding that the notice requirements of section 101101 do not apply to employees because they are not governmental units 1: holding that the citizen suit notice requirements cannot be avoided by employing a flexible or pragmatic construction and that plaintiffs suit must be dismissed where plaintiff had not strictly complied with the notice requirements 2: holding that plaintiff complied with plain language of the notice requirement when notice was mailed within statutory period although it was not received until after 3: holding notice provision in rcra and clean water act are virtually identical and citizens notice to violators under either act must strictly comply with statutory notice requirements 4: holding that owners notice substantially complied with federal requirements because the owner intended to demolish the housing units and noted that ajlthough the notice did not follow the statutory language it would have been misleading had it strictly followed the statute | [
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his claim is too speculative to show a reasonable possibility of persecution. Zheng argues that the BIA engaged in “reverse speculation” in this regard by assuming that he might join a church that might not be subject to persecution, but that argument stands his burden of proof on its head. Zheng bore the burden to prove that he faces a reasonable possibility of persecution if returned to China. As explained above, he has provided no basis to disturb the BIA’s conclusion that he failed to do so. Zheng also argues that the record shows a pattern or practice of persecution of unauthorized Christian churches in China. Zheng does not cite any authority finding such a pattern or practice on the basis of a similar record. Cf. Xue Zhen Chen v. Gonzales, 470 F.3d 1131, 1136-38 (5th Cir.2006) (<HOLDING>). The only evidence of record he cites for this Holdings: 0: holding that to show an objectively reasonable fear of future persecution an applicant must establish that he would be singled out for persecution or that there was a pattern or practice of persecution of similarlysituated individuals 1: holding that in order to demonstrate a pattern and practice of persecution against a particular group petitioner must demonstrate that persecution is systemic pervasive or organized and is committed by the government or forces the government is either unable or unwilling to control 2: holding that state department report was not enough to establish a pattern or practice of persecution of christians in china 3: holding that country reports describing sporadic persecution of unauthorized christian activities did not compel the conclusion that there is a pattern or practice of persecution in china 4: holding that absent a pattern of persecution linked to the applicant persecution of family members is insufficient to demonstrate a wellfounded fear of persecution | [
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States v. Collins, the sentencing court provided three grounds for its downward departure, two of which—the defendant’s age and infirmity—were discouraged factors. See id. at 1305. The Tenth Circuit’s analysis indicated that a discouraged factor, when aggregated with other factors as grounds for departure, need not arise to the same level of atypicality as would be required were the factor the departure’s sole basis. See United States v. Jones, 158 F.3d at 501 (recognizing that, although the defendant’s support in the community was insufficiently “extraordinary” to support a departure on this basis alone, a district court did not abuse its discretion by relying on this factor as one of several grounds supporting a departure); United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.1991)(<HOLDING>). 1. Aberrant Behavior. In United States v. Holdings: 0: holding that extraordinary family responsibilities combined with aberrational nature of conduct warranted departure 1: holding even small amount of drugs may support inference of dealing when combined with other evidence consistent with distribution 2: holding that where party had reasonable grounds to believe conduct was in compliance with the district courts order imposition of sanctions was not warranted and constituted an abuse of discretion 3: holding that threats combined with the murder of a fellow preacher constituted past persecution 4: holding extraordinary circumstances when considering repeated affirmative misrepresentations combined with plaintiffs diligence over an extended course of dealing | [
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Group, Ltd., 115 N.J. 614, 623, 560 A.2d 663 (1989). The PEAA applies to: (1) employment agencies; (2) temporary help service firms; and (3) consulting firms. N.J.S.A. 34:8-43. The PEAA covers an employment agency to the extent that for a fee, the business: (1) Procures or obtains, or offers, promises or attempts to procure, obtain, or assist in procuring or obtaining employment for a job seeker or employees for an employer; (2) Supplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General; or (4) Acts as a placement firm, career counseling service, or resume service [N.J.S.A. 34:8-43.] See also Data Informatics, Inc. v. AmeriSOURCE Partners, 338 N.J.Super. 61, 63-64, 768 A.2d 210 (App.Div.2001) (<HOLDING>). Importantly, the PEAA regulates: “the Holdings: 0: holding that the defendant had minimum contacts with kansas because it chose to enter into a contract with the plaintiff that was to be performed at least in part in kansas and then the defendant continued to be in contact with the plaintiff regarding the contract 1: holding that the plaintiffs breach of contract claim was properly a statutory claim under the personnel management act 2: holding that 1 the njcfa applies to corporations and other business entities when they are acting as consumers because business entities are considered a person under the act and no reason exists to treat it differently and 2 to be a consumer in respect to a transaction the business entity must be one who uses the goods and thereby diminishes their economic utility 3: holding that for a suit to be brought in the venue in which the contract was to be performed the contract must expressly state where the performance of the contract was to occur 4: holding that the plaintiff that was engaged in the business of placement of contract personnel with other entities was required to be licensedregistered under the peaa | [
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See INS v. St. Cyr, 533 U.S. 289, 312-14, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); and see Bejacmar v. Ashcroft, 291 F.3d 735, 736-37 (11th Cir.2002) (noting that Richardson had been overruled). Subsequently, in Calcano-Martinez, the Supreme Court rejected the petitioners’ suggestion that it should construe § 1252(a)(2)(C) to mean that courts of appeals are stripped of direct Cir.2002) (stating that habeas proceedings carry a more limited scope of review than direct-review proceedings); Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001); Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.1999) ("Only questions of pure law. will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited."); cf. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291, 1293 (10th Cir.2001) (<HOLDING>). We join our sister circuits in concluding Holdings: 0: holding that statutes restricting judicial review of discretionary decisions do not preclude review of challenges to the constitutionality of ins regulations but holding that petitioners failure to receive discretionary relief does not rise to a constitutionally protected interest 1: holding that 1252a2bs ban on review of judgments regarding the granting of relief precludes review of only discretionary decisions 2: holding that availability of discretionary judicial review is sufficient to satisfy third younger requirement 3: holding that because here the statutes in issue provide for judicial review via citizen suit provisions yet do not set forth a standard for that review judicial review is limited to apa review on the administrative record 4: holding that an employers mere failure to follow its own rules and regulations does not give rise to a protected property interest | [
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invocation of an “absolute, unqualified” executive privilege, withhold information in the face of subpoena orders. 418 U. S., at 706, 707. It did so, however, only after the party requesting the information — the special prosecutor — had satisfied his burden of showing the propriety of the requests. Here, as the Court of Appeals acknowledged, the discovery requests are anything but appropriate. They provide respondents all the disclosure to which they would be entitled in the event they prevail on the merits, and much more besides. In these circumstances, Nixon does not require -the Executive Branch to bear the onus of critiquing the unacceptable discovery requests line by line. Our precedents suggest just the opposite. See, e. g., Clinton v. Jones, 520 U. S. 681 (1997); id., at 705 (<HOLDING>); Nixon v. Fitzgerald, 457 U. S., at 753. The Holdings: 0: holding that the due process clause confers a right to direct a childs education 1: holding that the court may only consider the discrete acts that occurred within the appropriate time period 2: holding that the judiciary may direct appropriate process to the executive 3: holding that the shocks the conscience test was appropriate to evaluate whether executive conduct violated the substantive due process clause in a landuse decision 4: holding that due process requires a hearing appropriate to the nature of the case | [
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present case, the evidence supports the conclusion that the tool-room transfer precluded Spees from working in “a class of jobs” for two reasons. First, JMI viewed Spees as being unable to weld in any capacity, thereby precluding her from employing the skills that she had acquired during the one-month training program for welding. The tool-room position, unlike a welding position, did not require any special training, meaning that Spees was effectively removed to an unskilled position and precluded from utilizing any of the welding training that she had received. JMI’s belief that Spees could not perform any type of welding work thus weighs in favor of concluding that she was precluded from working in a class of jobs. Cf Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir.1995) (<HOLDING>). The second reason supporting the conclusion Holdings: 0: holding that plaintiffs allegations that her supervisor was a lesbian and that she made improper remarks to her including telling the plaintiff to invite her to lunch and making comments about plaintiffs coworkers private lives and sexual preferences and on one occasion approaching the plaintiff from behind hugging her and whispering in her ear a request for a cookie from another table did not suffice to establish a hostile working environment 1: holding that a plaintiff was not precluded from working in a class of jobs where an arm injury restricted her from performing any climbing while welding but did not prevent her from welding in general 2: holding that an employees private arbitration agreement with her employer precluded her from filing suit against the employer under the adea 3: holding that relative to the threat that she posed physically separating tina cortez from her telephone taking her by the arm escorting her from her home taking the keys to her home and locking the door and placing her in the locked back seat of a patrol car was excessive force as well as an unlawful seizure under the fourth amendment 4: holding that the plaintiff was precluded from asserting her failure to promote claim as a continuing violation | [
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purpose of inducing CONA to enter into a contract and that CONA relied on the false representation, incurring an injury. Regarding CONA’s aiding and abetting fraud claim, CONA alleged that C & B provided substantial assistance to New America in accomplishing the fraud by misrepresenting that all five wastewater easements had been signed and recorded. Considering CONA’s claims and factual allegations against C & B, it is evident that CONA is complaining only of an injury that was caused by C & B’s alleged false representation a claims of breach of fiduciary duty, fraud, deceptive trade practices, and unjust enrichment did not require certificate of merit because gist of claims was that appellant had engaged in pervasive and systemic overbill-ing) and Parker Cnty., 2009 WL 3938051, at *3 (<HOLDING>). Accordingly, we hold that the trial court did Holdings: 0: holding that a cause of action for breach of contract accrues at the time of the breach 1: holding that trial court erred by dismissing breach of contract claim because appellee made promises to perform specific acts in contract the breach of which would give rise to a breach of contract action 2: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 3: holding breach of contract claim not preempted as a straightforward breach of contract action as it alleged violation of specific covenant 4: holding immaterial breach did not constitute breach of contract | [
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on the day of plaintiff’s accident, nor did it claim that plaintiff's booking was not governed by the contract. It merely argued that: "the moving Defendant is not being sued by a parly with whom it was in a contractual relationship. The moving Defendant did not enter into any contract with Plaintiff, written or otherwise, in New Jersey.” 7 No evidence was presented that would quantify the difference in damages available in New Jersey and Quintana Roo. 8 Quintana Roo's interest is in fact similar to that of Virginia, which we found to be a "significant interest in deterring unsafe property conditions and unsafe conduct of people and enterprises located there.” O'Connor, supra, 255 N.J.Super. at 549, 605 A.2d 773. See also Shuder v. McDonald's Corp., 859 F.2d 266, 271 (3d Cir.1988) Holdings: 0: recognizing that california has a valid interest in protecting a california company from copyright infringement 1: recognizing strong interest in protecting texas citizens where tort was committed in whole or in part in texas 2: holding that the governments interest in the welfare of children embraces not only protecting children from physical abuse but also protecting childrens interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents 3: recognizing virginias interest in protecting defendants from claims and in holding down insurance costs 4: recognizing minnesotas interest in protecting the interests of the child | [
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of the underlying tax liability, to a district court of the United States. 26 U.S.C. § 6330(d) (emphasis added). 8 . Section 7429 provides, in relevant part, that: (A) In general. — Except as provided in subparagraph (B), the district courts of the United States shall have exclusive jurisdiction over any civil action for a determination under this subsection. Tax Court. — [under specific circumstances] then the Tax Court also shall have jurisdiction over any civil action for a determination under this subsection with respect to all the taxes and taxable periods included in such written statement. 26 U.S.C. § 7429(b)(2) (emphasis added). 9 . Fisher, however, expressly overruled Gollehon’s "non-frivolous allegation” test for invoking jurisdiction. See Fisher, 402 F.3d at 1172 (<HOLDING>). 10 . The Export Clause to the United States Holdings: 0: holding that making a nonfrivolous allegation is insufficient to survive a motion to dismiss for lack of jurisdiction 1: holding that a claim must be facially plausible in order to survive a motion to dismiss 2: holding that a mere allegation of fraud is insufficient to survive a motion to dismiss pursuant to the pslra 3: holding that the bare assertion that a dismissal without prejudice was favorable to the plaintiff was insufficient to survive a motion to dismiss 4: holding a decision denying a motion to dismiss an action for lack of personal and subject matter jurisdiction is not appealable | [
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Cir.1988). There, we adopted the Eleventh Circuit’s credit-as-true rule, holding that the Commissioner must accept, as a matter of law, a claimant’s subjective pain testimony if the ALJ fails to articulate sufficient reasons for refusing to credit it. Id. However, the holding in Varney II was specifically limited to cases “where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant’s excess pain testimony were credited.” Id. at 1401. Since Varney II, a split in authority has developed over whether the rule is mandatory or discretionary in’this Circuit. Compare, e.g., Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995) (<HOLDING>); with Connett v. Barnhart, 340 F.3d 871, 876 Holdings: 0: holding that when an alj improperly rejects a claimants testimony regarding his limitations and the claimant would be disabled if his testimony were credited the testimony must be credited as a matter of law 1: holding that the creditastrue rule is mandatory but only where the claimant would be disabled if his testimony were credited 2: holding that because the court credited defense testimony over prosecution testimony and there was a reasonable basis in the record for the trial court finding that an agreement existed between the defense and the prosecution the decision could not be disturbed on appeal 3: holding that the alj properly discounted a claimants testimony about the extent of his pain and limitations based on his ability to travel 4: holding a proffer of testimony is required to preserve the issue of whether testimony was properly excluded by the trial judge and an appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been | [
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show that he is a “member in good standing” in the New Mexico State Bar before he may be admitted to practice in this Court. He was also given notice by the Order to Show Cause and at the August 7, 2012 hearing that he had to present more than just evidence that he was on probationary status as grounds for readmission. Mr. Klipstine had ample opportunity at the hearing to establish the ground of good standing in the state bar, but he is legally unable to do so. Therefore, the Court will deny his petition for readmission without prejudice to its refiling if, and when, Mr. Klipstine has successfully fulfilled his two-year period of probation and has been formally reinstated as a member in good standing in the New Mexico State Bar. See In re Smith, 329 Fed.Appx. 805, 808 (10th Cir.2009) (<HOLDING>). IV. Concerns about Mr. Klipstine’s behavior Holdings: 0: holding that the oneyear bar contained in 2255 acts as an affirmative defense and not a jurisdictional bar 1: holding that the district court did not abuse its discretion in denying his petition for reinstatement where membership in good standing in the state bar was required before attorney could be admitted to the federal bar and applicant had not been readmitted to state bar 2: holding that the district court could properly deny attorneys readmission on the ground that he had not been readmitted to the bar of the state of new york 3: holding that a state procedural default will not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment clearly and expressly stated that its judgment rested on a state procedural bar 4: holding that district court correctly applied state law procedural bar to petitioners jury challenge despite state courts failure to indicate that its denial of petition rested on procedural grounds where petitioner never raised facially sufficient jury challenge before any state court and state courts denial of petition could not be construed as a decision on the merits | [
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with the doctors, precisely what the incentives were, when they were provided, why they were provided, and why they were illegal. Mastej’s complaint provides specific details about the “on-call” neurosurgeon scheme the Defendants utilized to induce six doctors to refer Medicare patients for treatment at the Defendants’ hospital. It offers specific information about the golf-trip benefit provided to four additional doctors in 2008. Mastej’s complaint identifies the names of all ten doctors who allegedly referred patients after having received these financial benefits from the Defendants. Mastej’s allegations regarding the financial incentives, which he claims violated the Stark and Anti-kickback statutes, meet Rule 9(b)’s required level of specificity. See Hopper, 588 F.3d at 1324 (<HOLDING>). But healthcare providers do not violate the Holdings: 0: holding that specific details about time place and substance of the fraud satisfy rule 9b 1: holding plaintiffs speculations did not satisfy rule 9b requirements 2: holding that charge of money laundering need not satisfy rule 9b 3: holding a complaint failed to satisfy rule 9b where the allegations were lacking in detail 4: holding a broad claim with no factual support was insufficient to satisfy rule 9b | [
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Plaintiff Annette Szaley appeals the district court’s grant of summary ju 0 F.2d 1409, 1414 (9th Cir.1988) (<HOLDING>). Among other factors, Casanova performed many Holdings: 0: holding that to establish a prima facie equal pay act claim the plaintiff must show that the jobs being compared are substantially equal 1: holding that a plaintiff who cannot establish an equal pay act claim likewise cannot establish a paybased title vii claim 2: holding that allegations of employer retaliation are properly governed by title vii and cannot support a claim under 1983 3: holding that same standard applies to equal pay act and title vii wage discrimination claims 4: holding that the limitations period for a title vii claim for pay discrimination begins with the first discrete act | [
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All Bonds (Special Documents of Title UCC § 7201, UCC § 7202, UCC § 8102 et seq) and-Accounts regards Me and My PERSON; wind-up the Ens Legis: WILLIAM FREDERICK KEMP JR. (UCC § 9307(h)).” As plaintiffs statement regarding this relief does not assert a claim for money damages, perhaps this is a request for declaratory or injunctive relief. The Federal Circuit has explained that the Court of Federal Claims “does not have general equity jurisdiction to grant injunctive relief.” Shemonsky v. United States, 215 F.3d 1340 (Fed.Cir.1999) (upholding decision of the Court of Federal Claims that the court’s jurisdiction did not extend to injunctive or declaratory relief); see also Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003); Choate v. United States, 60 F.3d 840 (Fed.Cir.1995) (<HOLDING>). As stated by the Federal Circuit: The Court Holdings: 0: holding that the tucker act does not provide a means by which the court of federal claims may grant injunctive or declaratory relief where the suit does not involve a preaward protest or the application of section 7428 of the internal revenue code 1: holding that the tucker act does not provide independent jurisdiction over claims for injunctive relief in contractual dispute cases 2: holding that the tucker act grants the united states court of federal claims jurisdiction to grant nonmonetary relief in connection with contractor claims including claims requesting an interpretation of contract terms 3: holding that this court does not have jurisdiction over tax claims for declaratory or equitable relief 4: holding that the eleventh amendment does not prevent private individuals from bringing suit against state officials for prospective injunctive or declaratory relief for ongoing violations of federal law | [
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had until 1958 to bring the present action or be forever barred. A. The Constitution and the Statute of Limitations Plaintiffs’ first argument for avoiding the impact of the six-year statute on their cause of action is that their claim is constitutionally based, and therefore it is unconstitutional to deprive them of their constitutional right, short of a full and fair decision on the merits. Since the right to compensation for a governmental taking of private property is constitutionally protected, the argument is stunning in its potential — it would have the effect of leaving all takings claims against the United States without a termination, except by ultimate resolution in the courts. It has been the common understanding that wrongs for which the law grants a remedy are 2002) (<HOLDING>); Ave-nal v. United States, 100 F.3d 933 (Fed. Holdings: 0: holding that there is no right to monetary compensation for a regulatory taking in an inverse condemnation action 1: holding that two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences when the defendants were convicted of taking a grandfathers wallet pistol and car and taking a grandsons fishing equipment 2: holding that riverboat casino was not a vessel 3: holding ripe a claim for a pre1987 taking because prior to first english california law did not permit landowners to seek compensation for a regulatory taking through an action in inverse condemnation 4: holding that regulatory ban on drift gillnet fishing was not a taking of fishing vessel and gear | [
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page 21C, Defendant Harvey argues in his Fifth Supplement at pp. 16-17 that the absence of reference in Copus’ affidavit to evidence obtained in controlled trash collections as part of the state investigation vitiated the showing of necessity under § 2518(3)(c) and rendered the affidavit materially false. This argument is without merit. Even with this evidence, the state investigators had told the FBI agents that the state lacked sufficient evidence to arrest Harvey. 9 . Both parties agree that the requirements of the federal Act apply to determine whether authorization for disclosure of the contents of the state wiretap was necessary and sufficient. There has been some disagreement on this point in the reported decisions. Compare United States v. Tortorello, supra, 480 F.2d at 782 (<HOLDING>) with United States v. Marion, supra, 535 F.2d Holdings: 0: holding that outofstate defendants transmittal into new york of ceaseanddesist letter to new york plaintiff for purported trademark infringement was insufficient to create jurisdiction over defendant in a new york declaratory judgment action 1: holding the new york state wiretap statute controlling on this issue 2: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 3: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership 4: holding that new york law applies to this matter | [
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v. City of Presque Isle, 1998 ME 166, 715 A.2d 148, a plaintiff claiming a Freedom of Access violation was required to file a motion pursuant to Rule 80B(d) in order to present evidence to the Superior Court. See Moreau v. Town of Turner, 661 A.2d 677, 679 (Me.1995); Palesky v. Town of Topsham, 614 A.2d 1307, 1310 n. 3 (Me.1992) Marxsen v. Board of Dirs., M.S.A.D. No. 5, 591 A.2d 867, 871 (Me.1991). In Underwood, we expressly overruled Marxsen to the extent it required a Rule 80B(d) motion in order for evidence to be presented in a Freedom of Access case. We did so because 1 M.R.S.A. § 409(2) (1989) provides a claimant a trial de novo in the Superior Court. See Underwood, 1998 ME 166, ¶ 22, 715 A.2d at 155; see also Service & Erection Co. v. State Tax Assessor, 684 A.2d 1, 2 (Me.1996) (<HOLDING>) Although in Underwood we did not mention the Holdings: 0: holding no requirement of rule 80bd motion in tax appeal where statute provides for trial de novo 1: holding that review of the construction of a sentencing statute is de novo 2: holding that review of a rule 60b4 motion is de novo 3: recognizing ruling on motion for judgment of acquittal is reviewed de novo on appeal 4: recognizing de novo standard of review | [
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be removed ... by the Attorney General to the district court of the United States.... This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. 14 . In addition, a corollary effect of the district court’s order dismissing Red Cross from the suit was to dismiss Osteopathic’s cross-claim against Red Cross as well. Clearly, if the district court had a basis of independent subject matter jurisdiction over Osteopathic’s cross-claim against Red Cross, the district court could not have dismissed Red Cross, nor could it have declined to exercise jurisdiction over the case, merely because Carr opted not to pursue his claim against Red Cross. National Research Bureau, Inc. v. Bartholomew, 482 F.2d 386, 388-89 (3d Cir.1973) (<HOLDING>). Given the Supreme Court’s holding in American Holdings: 0: holding that the information must establish that the court has jurisdiction over both the subject matter and the parties 1: holding that once an issue with independent subject matter jurisdiction is before the court it must be allowed to proceed to a conclu sion without regard to the fate of the original claim 2: holding that the appellate court had jurisdiction to hear the interlocutory appeal on a restraining order and the district court retained jurisdiction to proceed with the trial 3: holding that the jones act provides an independent basis for subject matter jurisdiction 4: holding that because the state failed to properly file the complaint the district court lacked jurisdiction to proceed to trial | [
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evidence that the statements in question were made under oath. Although Wyche contends, without supporting authority, that the “under oath” requirement cannot be established by circumstantial evidence, we disagree. First, as Wyche concedes, the other elements of the crime of perjury may be proved using circumstantial evidence. See Appellant’s Br. at 14. Second, as indicated by our standard of review, the elements of a crime ordinarily can be proved by direct or circumstantial evidence. See Voss, 82 F.3d at 1524-25. Case law on the issue establishes that “perjury cases, like all criminal cases, are susceptible to proof by circumstantial evidence.” United States v. Chapin, 515 F.2d 1274, 1280 (D.C.Cir.1975); see also United States v. Serafini, 233 F.3d 758, 770 (3d Cir.2000) (<HOLDING>). Third, the perjury statute itself supports Holdings: 0: holding intent to intimidate or threaten may be proved by circumstantial evidence such as ones conduct or statements 1: holding that motive is circumstantial evidence of intent 2: holding that conviction can be supported solely by circumstantial evidence 3: holding that intent and knowledge can be proved by circumstantial evidence 4: recognizing that identity of a substance as cocaine may be proved by circumstantial evidence | [
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Judge Miller conducted a thorough review of all objections and responses made by Pinkston to the magistrate judge's recommendation. See Goffman, 59 F.3d at 671 (stating that "if following a review of the record the district court is satisfied with the magistrate judge's findings and recommendations it may in its discretion treat those findings and recommendations as its own"); see also United States v. Larson, 760 F.2d 852, 857 (8th Cir.1985); Andrews v. Deland, 943 F.2d 1162, 1170-71 (10th Cir.1991). It is clear that Pinkston’s argument in this regard is nothing more than a collateral attack on the magistrate’s reasoning, masquerading as an assault on the district court’s entirely acceptable decision to adopt the magistrate’s opinion instead of conducting an evidentiary Cir.1994) (<HOLDING>). To do otherwise would be contrary to our very Holdings: 0: holding that by blindly adopting the magistrate judges findings apparently without ever having received a report and recommendation the district court violated 636b1 1: holding that failure to object to magistrate judges recommendation waived issue on appeal 2: holding that district courts adoption of the magistrate judges report and recommendation one day after issuance did not constitute reversible error where district court conducted a meaningful review of the report and recommendation 3: holding that magistrate judge could without consent of parties hold a pretrial hearing and issue a report and recommendation based on the findings made 4: holding that by adopting the presentence report the district court made the requisite finding under the guidelines | [
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the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order of the t la.1992) (stating that the warnings required to comply with the self-incrimination clause of Article I, Section 9, Florida Constitution, do not have to be given in the exact form as long as an effective equivalent is given). Again based on the limited record before us, Wilford’s Sixth Amendment claim may not have merit. Even though Wilford’s Sixth Amendment right to counsel had attached to other charges, adversary judicial criminal proceedings may not have been initiated in regard to the charges of this case at the time he was interrogated by law enforcement. See Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (<HOLDING>). See also Smith v. State, 699 So.2d 629, 639 Holdings: 0: holding that states use of informant to obtain incriminating evidence from defendant about pending charges violated defendants sixth amendment right to counsel notwithstanding that state was also investigating other charges as to which the sixth amendment right to counsel had not attached 1: holding that a defendants statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his sixth amendment right to counsel on other charged offenses 2: holding an accuseds sixth amendment right to counsel does not attach to uncharged crimes factually related to the crime for which the defendant has been charged 3: holding that defendants substantial rights were affected by unconstitutional admission of outofcourt testimonial statements that established elements of the charged offenses 4: holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction | [
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Costs 42 U.S.C. § 1988 Fed. R. Civ. Proc. 54(d) (“Korenbaum Deck”), Ex. E, [Time & Expense Entries of Korenbaum], ECF No. 63. In total, Coe’s counsel spent approximately 100 hours more on the second appeal than they did on the first, despite having already completed the majority of the work during the first appeal. The only difference between the first and second appeal was Coe’s argument opposing this Court’s fifty-percent reduction on the attorneys’ fees award for the trial and first appeal. This Court rules that the attorneys’ fees sought by Coe for the second appeal relating to the same facts and issues presented in the first appeal are unreasonably redundant and unnecessary. See Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992) (considering “whether, at the time the work 7) (<HOLDING>). A fifty-percent reduction is reasonable Holdings: 0: holding that the most critical factor is the degree of success obtained 1: holding that the most critical factor in determining the reasonableness of a fee award is the degree of success obtained 2: holding that status as a prevailing party does not by itself entitle a plaintiff to attorneys fees rather the most critical factor in determining a fee awards reasonableness is the degree of success obtained emphasis added 3: holding that the most critical factor in the analysis of a reasonable fee is the degree of success obtained 4: holding that the quantity of relief obtained as compared to what the plaintiff sought to achieve are key elements in determining the degree of success | [
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point to written language capable of reasonably being interpreted as creating a promise on the part of [the employer] to vest [the recipient’s] ... benefits.’ International Multifoods, 116 F.3d at 980 (quoting Schonholz, 87 F.3d at 78) (emphasis in the original). The court then examined the CBAs and the ERISA plan documents involved in the case in light of that standard. The court noted that each CBA provided for medical benefits “[d]uring the term of this Agreement,” and explained that “promising to provide benefits for a certain period of time necessarily establishes that once that time period expires, the promise does as well.” International Multifoods, 116 F.3d at 981 (citing LTV Steel Co. v. United Mine Workers of America (In re Chateaugay Corp.), 945 F.2d 1205, 1208 (2d Cir.1991) (<HOLDING>)). The court then concluded that this provision Holdings: 0: holding that retirement benefits are accrued benefits under erisa 1: holding that employers promise to provide welfare benefits until death of retiree did not create vested rights because employer had expressly reserved the right to terminate or amend the plan 2: holding employers promise that retiree benefits will continue did not create vested lifetime benefits in the face of a termination clause 3: holding that a cba provision which guaranteed retiree medical benefits during the term of this agreement established that retiree health benefits were no longer guaranteed once the agreement expired 4: holding that so long as the seller did not have an agreement with the buyer during the term of the listing agreement it was free to delay selling until after the listing agreement had expired even where the delay was for the purpose of escaping the payment of a commission | [
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of all students as suggested in its May 27, 2005 waiver request) exceeds the scope of the Secretary’s 2003 regulations, which were subsequently affirmed by Congress in the IDEA of 2004. Thus, the Secretary argues that her “regulations are narrowly tailored to address a particular issue with respect to very small segments of the ... students with disabilities populations; in contrast, the State’s proposed plan amendment would eliminate Congress’s requirement of annual grade-level testing of these students.” Sec’y’s Reply Brief [doc. # 151], at 5. The Secretary did not act arbitrarily, capriciously, or contrary to law in concluding that the State’s proposed plan amendments were contrary to the dictates of the Act. See, e.g., Bellevue Hosp. Ctr. v. Leavitt, 443 F.3d 163, 177 (2d Cir.2006) (<HOLDING>). The very clear message of Congress in the Holdings: 0: holding that where hospital used balance billing that since the hospital had already received payments from the patient and his health insurer and had agreed to accept that amount as payment in full for its services there was no longer any amount owing to the hospital and thus it could not assert a statutory hospital lien for the difference between its charges and the amount received in light of the negotiated network agreements 1: holding that knowing submission of medicare claims for services that are not covered and payable under the medicare act is a violation of the fca 2: holding that the department of health and human services did not act arbitrarily and capriciously in implementing statutory requirement to adjust medicare reimbursements to reflect differences in hospital wage levels across geographic areas 3: holding that the knowing submission of medicare claims for services that were not covered and payable under the medicare act was an fca violation 4: holding that removal of suit against physicians employed by a federally funded community health center to federal court by the defendants on the ground that they were covered under the public health service act was improper as the department of health and human services had not yet made a determination whether defendants should be deemed to be employees | [
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first Rule 1-015(C) factor, stated in subpart (C)(1), would be whether Corporation was on notice from the Bernalillo County action of the institution of the action against Defendant such that Corporation would not be prejudiced in the joinder and in having to maintain a defense on the merits of Plaintiffs claim. This notice issue obviously would involve factual analyses of whether Defendant was the principal professional in the professional corporation “G.P. McRostie, D.O.M., N.D., P.A.,” and whether, based on Defendant’s position in Corporation, Corporation had received such notice of the institution of the Bernalillo County action that Corporation would not be prejudiced in maintaining its defense on the merits. See Rivera v. King, 108 N.M. 5, 11, 765 P.2d 1187, 1193 (Ct.App.1988) (<HOLDING>). The second factor, stated in subpart (C)(2), Holdings: 0: holding that allegations that the defendants provided substantial assistance and encouragement to the other defendants in connection with the breaches by such other defendants of duties owed by them to the plaintiffs were too broad to be sustained 1: holding that the defendants had received sufficient notice where the original defendants and the newly added defendants shared an identity of interests and were represented by attorneys who were involved in the litigation from its inception 2: holding that the defendants allegations that his codefendant admitted that the defendant had no role in the robbery and that the codefendant had not testified on the defendants behalf because he had been coerced by the state were sufficient to state a prima facie claim of newly discovered evidence 3: holding that defendants were not prejudiced by amendments to an employment discrimination claim because the original claim gave notice of the nature of the case 4: holding that regardless of whether the defendant actually had a right to monies claimed defendants demands under the contract were not extortion because they were motivated by the defendants interpretation of the agreement | [
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the leases, the court fails to give the required deference to permissible agency action. The court’s opinion expresses concern that DNR “singled out” the Jerrels and implies that DNR varied “the requirements of its regulations at a whim.” First, DNR did not single out the Jerrels. Their actions prompted individualized attention. DNR had authority to interpret its regulation as it did, and a duty to rein in the Jerrels’ animals. The record strongly suggests that DNR worked in good faith, dealing patiently with both the Jerrels and their neighbors. Second, unless DNR had absolutely no authority to interpret its regulation on a lease-by-lease basis, it seems inconsistent to reason that a requirement specific to the Jerrels could somehow be a regulation of general application. D. The (<HOLDING>). 28 . See State v. Anderson, 749 P.2d 1342, Holdings: 0: holding it was not an abuse of discretion to deny funds 1: holding it was not an abuse of discretion to exclude testimony 2: holding that issuance of commercial fishing permit for closed waters to one individual was not regulation and was not abuse of discretion 3: holding that denial of untimely request was not abuse of discretion 4: holding failure to exercise discretion is abuse of discretion | [
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court’s judgment dismissing his action alleging federal and state law claims arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and may affirm on any ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm. The district court properly dismissed Martinez’s state law and declaratory judgment causes of action because Martinez failed to allege facts sufficient to state any plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (<HOLDING>); Chapman v. Deutsche Bank Nat’l Trust Co., 129 Holdings: 0: holding that the declaratory judgment act 28 usc 2201 only creates a remedy and is not an independent basis for jurisdiction 1: holding that where jurisdiction was based on 28 usc 2201 venue was determined as per 28 usc 1391 2: recognizing that the declaratory judgment act is procedural in nature and not an extension of federal court jurisdiction 3: holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action 4: holding that removal of state declaratory judgment action invokes 2201 | [
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before it may open a branch in Arkansas. Id. § 23-48-1001(a). These statutes, which contain express state certification requirements, demonstrate the General Assembly is capable of articulating a certification requirement when it desires one. Yet the SFA contains none. Arkansas courts presume the General Assembly has in mind previous statutes relating to the same subject matter when it enacts a new statute. See Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296, 298 (1989). And when the General Assembly has demonstrated the ability to include qualifying statutory language in a statute, but chooses not to do so in a particular statute, Arkansas courts infer the omission was deliberate and evidences a different legislative intent. See Bush v. State, 338 Ark. 772, 2 S.W.3d 761, 764 (1999) (<HOLDING>); Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d Holdings: 0: holding as a matter of law pretrial electronic monitoring and home confinement merits sentencing credit under its statute 1: holding electronic home monitoring is not time spent in custody because there is a difference in restrictions between electronic home monitoring and jail 2: holding the legislatures approval of granting a defendant credit against his sentence in a statute governing postsentence 17electronic monitoring by the department of correction but omission of that approval in a separate statute relating to pretrial electronic monitoring is evidence that the legislature did not intend for credit to be given for electronic monitoring while a defendant is awaiting trial 3: holding that electronic home monitoring constitutes confinement under the sra 4: holding time spent on electronic monitoring while on bail release does not constitute custody within meaning of sentencing credit statute | [
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which to advance any “new argument” to Judge Bryant. That being so, the publication of Viernes did not and could not justify Judge Bryant’s “reconsideration” of Judge Town’s order. Because neither the evidentiary nor legal bases of Oughterson’s de minimis arguments had changed in the interim between Judge Town’s entry of his order denying Oughter-son’s motion to dismiss and Judge Bryant’s subsequent entry of his order granting Oughterson’s motion for reconsideration of Judge Town’s order, we hold that Judge Bryant lacked any cogent reason for granting Oughterson’s motion for reconsideration, and, therefore, abused his discretion in doing so. As a final matter, we are compelled to note that, in his December 10, 1999 findings of fact, conclusions of law, and order, Jud , 271-72 (1992) (<HOLDING>); State v. Park, 55 Haw. 610, 615-18, 525 P.2d Holdings: 0: holding that trial court abused its discretion in denying defendants de minimis motion because defendant established that his conduct in connection with benevolently assisting a runaway did not alter the custodial relationship with which prosecution accused him of interfering 1: holding the trial court abused its discretion in denying the defendants motion to withdraw his guilty plea because the defendant did not admit to facts demonstrating the required mental state 2: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 3: holding that trial court did not abuse its discretion in denying defendants motion to dismiss on de minimis grounds where his expert witness testimony was inadmissible 4: holding that trial court abused its discretion in granting defendants de minimis motion because there was no evidence showing that their conduct was in fact an innocent technical infraction not actually causing or threatening any harm or evil sought to be prevented by the statute that they were accused of violating | [
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CURIAM: Roman Saldivar-Vasquez appeals the sentence imposed following his guilty plea conviction for illegal reentry after deportation following a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that the district court plainly erred in assessing him a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015) due to his three prior Texas felony convictions for burglary of a habitation, in violation of Tex. Penal Code § 30.02(a)(1), which the district court characterized as crimes of violence. See United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014) (<HOLDING>). Saldivar-Velasquez argues that his Holdings: 0: holding that 3002a is divisible and reiterating that offenses under 3002a1 qualify as generic burglary 1: holding that a conviction under a divisible statute could not qualify as acca burglary pursuant to the modified categorical approach when there were no shepard documents to show that the crime of conviction was generic burglary 2: holding that burglary may qualify as offense against person if as committed it is in fact a crime against a person 3: holding that iowa burglary is not categorical burglary as the elements of iowa burglary law are broader than those of generic burglary 4: holding that virginia burglary statute comes within definition of generic burglary | [
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was that of an injury to her ribs and shoulder from falling onto the springs and frame, not the risk of permanent quadriplegia from a broken neck as the result of being propelled onto the ground. 15 . As will be discussed further below, there is a genuine and material factual dispute as to whether these warnings met the industry standard. 16 . The court acknowledged, however, that "CPLR article 14-A assumption of risk, a species of comparative fault, is a valid defense to any action to recover damages for personal injury, including a products liability action.” Lamey, id. at 166 n. 2, 594 N.Y.S.2d 490 (citing Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983) and Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973) (<HOLDING>)). 17 . I note that a lower appellate court in Holdings: 0: recognizing that a manufacturer may be held strictly liable for subsequent changes to an otherwise safe product where such alterations are reasonably foreseeable 1: holding that to prevail on strict liability claim for a defective product plaintiff must show the product was defective when it left the defendants possession and control 2: holding that manufacturer is not liable for injuries to employee by product manufactured to employers plans and specifications provided the defect is not so obviously patently or glaringly dangerous that a manufacturer exercising ordinary care under the circumstances then existing would not follow them 3: holding manufacturer liable for defective product provided that plaintiff could not by exercise of reasonable care have discovered the defecl and perceived its danger or otherwise averted his injury 4: holding a manufacturer strictly liable in tort for injury to plaintiff caused by defective power tool | [
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would otherwise be improper may be excused under the ‘invited reply’ doctrine if the prosecutor’s conduct was an appropriate response to statements or arguments made by the defense.”). The question of whether Mazique’s girlfriend consented to the search of the home was an issue for the court, not the jury. Thus, although the comment was improper, we find it was not prejudicial to Mazique. Also, the value of the stolen cigarettes was not an element of the crime or vital to the evidence in the case; thus, the comment was not prejudicial to Mazique. We further find the solicitor’s brief comments do not rise to “extraordinary circumstances” that would excuse the failure to make a contemporaneous objection. See Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 263, 442 S.E.2d 611, 615 (1994) (<HOLDING>). Mazique finally argues this is a novel issue Holdings: 0: holding a contemporaneous objection is required to preserve an issue for appellate review 1: holding that failure to comply with state contemporaneous objection rule bars federal review absent a showing of cause and prejudice 2: holding that even in the absence of a contemporaneous objection a new trial motion should be granted in flagrant cases where a vicious inflammatory argument results in clear prejudice 3: holding no prejudice occurred where party made contemporaneous objection to brief remark about insurance during closing argument and court gave cautionary instruction 4: holding the lack of a contemporaneous objection could not be salvaged by a motion for a mistrial | [
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is shown by the success rather than by the mere fact of an enterprise’s promotional efforts, the normal consequence of substantial publicity may be inferred.” President & Trs. of Colby Coll., 508 F.2d at 808 (internal citation omitted). Lyons lists postal and electronic mailings, as well as social media practices, as pa tool. Absent any evidence that consumers became aware of Homecoming’s ACVSMR educational program through the ACVSMR site, the mere existence of a website is not highly probative of either an effective advertising technique or, more to the point, the public’s association of the ACVSMR mark with Lyons or Homecoming Farm' — the source of the ACVSMR programs. See True Fit Corp. v. True & Co., No. 12-11006-GAO, 2013 WL 789213, at *3-4 (D.Mass. Mar. 4, 2013) (O’Toole, J.) (<HOLDING>); Yankee Spirits, Inc. v. Gasbarro, No. Holdings: 0: holding limited use of a mark did not constitute prior use in commerce sufficient to establish rights in the mark 1: holding that plaintiffs mark was unprotectable because plaintiff failed to prove that the public associated its marks with services from a common source despite having invested significant resources into advertising and branding id at 3 2: holding that the essential wrong of trademark infringement the appropriation of the good will of anothers established mark may be effectively accomplished by advertising matter associating that others distinguishing mark with the product of defendant 3: holding that 350 million dollars expended in advertising the mark three billion units bearing the mark having been sold and the units bearing the mark having been sold in all fifty states and throughout the work supported a finding that hot wheels was famous 4: holding that mark had not acquired secondary meaning even with advertisements costing 4400000 over five years because it did not lead consumers to associate plaintiffs mark with its products | [
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On appeal, the Second Circuit reversed this bankruptcy court and the district court and held that “§ 546(a) applies to preference-avoidance actions brought by [debtors in possession (DIPs) ] as well as to those brought by trustees.” Id. 22 F.3d at 39. The court “concludefd] that for the DIP, the limitations period begins when the debtor files its petition and becomes a DIP under [Code] § 1101.” Id. 22 F.3d at 40. Century Brass only held, as every other circuit court considering the issue has held, that the limitation period of § 546(a)(1) applies to debtors in possession and that when no trustee is appointed in a Chapter 11 case, the starting date for the two-year period is the date the voluntary Chapter 11 case commenced. The court reserved decision 413, 1416-17 (9th Cir.1993) (<HOLDING>); In re MortgageAmerica Corp., 831 F.2d 97, 98 Holdings: 0: holding that a chapter 7 trustee was the only person with authority to bring a cause of action after the appointment of a trustee 1: holding on facts similar to those in dmart that the 546a limitation period runs from appointment of chapter 7 trustee after case was converted from chapter 11 2: holding that claims for alleged legal malpractice and breach of fiduciary duty against attorneys that represented the chapter 11 debtor in possession belonged to the bankruptcy estate and upon conversion of the case to chapter 7 such claims belonged to the chapter 7 trustee as successor to the debtor in possession 3: holding in a case where a chapter 11 trustee was appointed after a period during which the debt or had operated as debtor in possession that a chapter 11 trustee has two years from the date of his appointment not from the commencement of the chapter 11 case to bring avoidance actions 4: holding denial of motion to convert from chapter 11 to chapter 7 is interlocutory | [
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{2} After leaving a bar at closing time, Defendant claims he and his brother were threatened with violence by an angry mob. Both of them then sought refuge in Defendant’s truck. As the alleged attack continued, Defendant testified that he started the vehicle and began to drive “slowly” out of the parking lot. Almost immediately, police arrived on the scene, determined Defendant’s blood-alcohol level to be .14, and arrested him for DWI. {3} The metropolitan court, acting as fact finder in a non-jury trial, found that Defendant had not acted reasonably in the face of the alleged threat. As a result, the court found that Defendant’s act of driving while under the in 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994), with State v. Lucero, 98 N.M. 204, 206-07, 647 P.2d 406, 408-09 (1982) (<HOLDING>). This is a question of law that we review de Holdings: 0: holding that strict compliance is not required 1: recognizing strict product liability actions 2: holding that duress is unavailable to defendants charged with the strict liability offense of child abuse 3: recognizing that a violation of the mbta is a strict liability offense 4: holding that notice not required because cercla is a strict liability statute | [
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significant the fact that aid is provided to pupils and their parents, rather than directly to sectarian schools. As a result, “ ‘[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.’” Ante, at 9, quoting Witters v. Washington Dept. of Services for Blind, 474 U. S. 481, 487 (1986). And, finally, the majority opines that “the task of a sign-language interpreter seems to us quite different from that of a teacher or guidance counselor.” Ante, at 13. But the majority’s arguments are unavailing. As to the first two, even a general welfare program may have specific applications that are constitutionally forbidden under the Establishment Clause. See Bowen v. Kendrick, 487 U. S. 589 (1988) (<HOLDING>). For example, a general program granting Holdings: 0: holding that the endorsing requirement does not violate the establishment clause 1: holding that adolescent family life act on its face did not violate the establishment clause but remanding for examination of the constitutionality of particular applications 2: holding that establishment of christmas day as legal public holiday did not violate establishment clause 3: holding that the presence of a cross on the city insignia did not violate the establishment clause 4: holding constitutional on its face the adolescent family life actan act providing grants to religious and other institutions giving counseling on teenage sexuality without expressly requiring that the funds not be used for religious purposesbut remanding for a determination of the acts constitutionality as applied | [
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& Defense Co., 82 F.3d 1251, 1255 (2d Cir.1996)). In making such a showing, the Court found it insufficient for the plaintiff to merely “point out” that the award of benefits would come from the plan administrator’s own pocket. See id. The Court, however, did not specify what kind of showing would satisfy the “improper motivation” standard. Just seven months after deciding Doyle, the First Circuit held that a plan administrator-insurer that would be responsible for paying benefits due under an ERISA-governed policy does operate under a conflict of interest, justifying application of the “reasonableness” standard of review. See Doe v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir.1999); see also Pitman v. Blue Cross and Blue Shield of Oklahoma, 217 F.3d 1291, 1296 (10th Cir.2000) (<HOLDING>). The Court stated that “the requirement that Holdings: 0: holding that when the insurer is also the plan administrator we have recognized something akin to a rebuttable presumption of a palpable conflict of interest 1: holding that it is wrong to assume a financial conflict of interest from the fact that the plan administrator is also the insurer 2: holding the district court erred by finding an automatic conflict of interest merely because insurer and administrator were the same 3: holding that plan administrator that was also insurer operated under conflict of interest 4: holding that a structural conflict of interest exists when an insurer acts as both the plan administrator and the funding source | [
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contracts not to be performed within one year must be memorialized in some writin llows in Collins: The appellants attempt to distinguish Hogue from the instant facts, stating first that Hogue is not controlling in the context of public employees. We disagree. In the instant case, the appellants have failed to cite a specific statute or regulation that mandates that Bridgeport treat holiday, vacation, or sick pay as time actually worked for the purpose of calculating overtime pay. In the absence of such a law, Bridgeport, like a private employer, is free to promulgate a policy and subsequently modify that policy as long as employees are given reasonable notice of the modification. 206 W.Va. at 476, 525 S.E.2d d. of Police Comm'rs of Kansas City, 939 S.W.2d 565, 568 (Mo.Ct.App.1997) (<HOLDING>); Swiger v. Civil Serv. Comm’r, 179 W.Va. 133, Holdings: 0: holding that the difference in compensation and benefit packages between police officers and other city government employees was justified by the functional differences between the employees and concluding that sjurely the court should not sit as a board of review for every decision of a state agency concerning employment conditions for different classes of government employees 1: holding enforceable employee manual that was distributed to all employees 2: holding that employees retaliatory discharge based on employees election to public office did not violate public policy 3: holding that probation department employees are not county employees 4: holding even in context of employee manual that policy which included agreement to provide annual salary increase of five percent did not constitute contract between city and employees and distinction between atwill employees and public employees was not dispositive in this context | [
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MCM states, “[t]o constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting.” MCM (2005 ed.), Part IV, 1162c(2). To satisfy the prejudice prong of this terminal element, the offense must have a significant effect on unit or organizational discipline, morale or cohesion, or be “clearly detrimental to the authority or stature of or respect toward a service member.” Id. On the other hand, “service discrediting” conduct is punishable when it “has a tendency ... to bring the service into disrepute ... or lower it in public esteem.” Id. Moreover, there is no requirement that the Government show actual damage to the reputation of the military. Cf. United States v. Hartwig, 39 M.J. 125, 130 (C.M.A.1994)(<HOLDING>). Rather, the test is whether the appellant’s Holdings: 0: holding that in context of article 133 ucmj 10 usc 933 violation for officers delivery of sexually lurid letter to child of tender years prosecution need not prove actual damage to the reputation of the military 1: holding that the government need not prove actual notice to the prisoner 2: holding as a matter of law that a child of the tender age of 3 years and 8 months could not have realized the risk or danger of an artificial body of water 3: holding that there is not an obvious need to train officers not to sexually assault women 4: holding an unborn child is not a child for purposes of criminal prosecution of mistreatment of a child | [
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when agency action has become final). If there is no “final agency action,” as required by the controlling statute, a court lacks subject matter jurisdiction. Federal Power Comm’n v. Metropolitan Edison Co., 304 U.S. 375, 383-85, 58 S.Ct. 963, 966-68, 82 L.Ed. 1408 (1938); Geyen v. Marsh, 775 F.2d 1303, 1308-09 n. 6 (5th Cir.1985); see generally Charles A. WRIGHT et al„ Federal Practice & Prooedure § 3942 (1977). A final agency action is one that imposes an obligation, denies a right, or fixes a legal relationship. United States Dep’t of Justice v. Fed. Labor Relations Auth., 727 F.2d 481, 493 (5th Cir.1984). An agency’s initiation of an investigation does not constitute final agency action. See FTC v. Standard Oil Co., 449 U.S. 232, 239-45, 101 S.Ct. 488, 493-96, 66 L.Ed.2d 416 (1980) (<HOLDING>); Dow Chemical Co. v. EPA, 832 F.2d 319, 325 Holdings: 0: holding a rod to be final agency action 1: holding that ftc issuance of a complaint meets the apa definition of order and therefore is agency action even if not final agency action 2: holding that epa action initiating permitting proceedings was not final agency action 3: holding fda seizure action did not constitute final agency action 4: holding issuance of administrative complaint to initiate proceedings not final agency action | [
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S.W.2d 733, 735-36 (Tex.App.—Austin 1988, pet. refd) (construing it as the “experiential process ” by which control of the person is obtained); see White v. State, 601 S.W.2d 364, 366 (Tex.Crim.App.1980) (noting that the force occurred while the arrest was “taking place”). Furthermore, our legislature has dictated that a person “is arrested” (past tense) “when ... actually placed under restraint or taken into custody” by an officer or another with or without a warrant. Tex. Code Crim.Proc.Ann. art. 15.22 (Vernon 1977); White v. State, 601 S.W.2d at 365. From this, we may conclude that the officer is no longer “effecting an arrest” once his efforts to actually restrain or control the individual are complete. Schrader v. State, supra; see Young v. State, 622 S.W.2d 99 (Tex.Crim.App.1981) (<HOLDING>). So too may we extrapolate that from the Holdings: 0: holding that force exerted against an officer after an arrest is complete cannot be used as the basis for prosecuting one for resisting arrest 1: holding avoiding arrest is not the same as resisting arrest 2: holding that resisting arrest is lesser offense of assault on an officer 3: holding that probable cause is a complete defense to an action for false arrest 4: holding that the courts determination of whether an officer had probable cause for an arrest is an independent and objective determination and an officers own subjective reason for the arrest is irrelevant | [
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challenged the adequacy of the BEA at trial is an exhibit it introduced regarding the 1077 methodology and testimony by district personnel that the BEA is exhausted by basic education costs. But in its complaint, the Alliance admittedly did not seek declaratory relief with respect to the BEA; instead, it sought relief regarding only the constitutionality of the special education funding scheme and, thus, a challenge to the adequacy of the BEA is outside the scope of its complaint. See In re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989) (a court has no jurisdiction to grant relief beyond that sought in the complaint). Because Alliance did not challenge the adequacy of the BEA below, it may not do so on appeal. Martin v. Johnson, 141 Wn. App. 611, 617, 170 P.3d 1198 (2007) (<HOLDING>); see RAP 2.5(a). B. The Safety Net 1. Holdings: 0: holding that an issue raised for the first time on appeal will not be considered by this court 1: holding that appellate court will not normally address issue raised for the first time on appeal 2: holding that court will not consider issue raised for first time on appeal 3: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 4: holding that generally appellate courts will not review an issue raised for the first time on appeal | [
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from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)). B. Analysis 1. Lack of Consideration The essential elements of a valid, enforceable contract are offer, acceptance, and consideration. Copy Products, Inc. v. Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983). When there is no genuine issue of material fact as to the lack of consideration, summary judgment is appropriate. See Penn Compression Moulding, Inc. v. Mar-Bal, Inc., 73 N.C. App. 291, 294, 326 S.E.2d 280, 283 (1985) (<HOLDING>). “A mere promise, without more, lacks a Holdings: 0: holding trial court should have entered summary judgment for defendant where undisputed evidence established that no new consideration was exchanged for plaintiffs renewed promise to pay preexisting debt 1: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 2: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed 3: holding that court should have ruled on certification even after granting summary judgment for the defendant 4: holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiffs motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith | [
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argument that the circuit court erred in refusing to reveal the informant’s identity, we find the circuit court acted within its discretion. See State v. Humphries, 354 S.C. 87, 90, 579 S.E.2d 613, 615 (2003) (“[I]f the informant is an active participant in the criminal transaction and/or a material witness on the issue of guilt or innocence, disclosure of his identity may be required depending upon the facts and circumstances. On the other hand, an informant’s identity need not be disclosed where he possesses only a peripheral knowledge of the crime or is a mere ‘tipster’ who supplies a lead to law enforcement.”); id. at 90, 579 S.E.2d at 614-15 (“The burden is upon the defendant to show the facts and circumstances entitling him to the disclosure.”); id. at 90, 579 S.E.2d at 615 (<HOLDING>). 2. As to Pradubsri’s argument that the Holdings: 0: holding that trial court did not abuse its discretion by granting such a temporary injunction 1: holding that trial court did not abuse its discretion by determining expert witness was qualified to testify 2: holding that trial court abused its discretion in ordering disclosure of informants identity based solely on defense counsels unsworn representations that disclosure would be relevant and helpful to his defense 3: holding a trial court did not abuse its discretion by failing to require disclosure of an informants name 4: holding trial court did not abuse its discretion by ruling based only on affidavits | [
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(quoting Sharpe, 470 U.S. at 682, 105 S.Ct. 1568), and, thus, must be “no greater in intensity than absolutely necessary under the circumstances,” see Silva, 91 Hawai'i at 81, 979 P.2d at 1107 (quoting State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58-59 (1974)). Moreover, while no single factor, in itself, is dispositive as to when a temporary investigative detention has morphed into an arrest, the potential attributes of “arrest” clearly include such circumstances as handcuffing, leading the detainee to a different location, subjecting him or her to booking procedures, ordering his or her compliance with an officer’s directives, using force, or displaying a show of authority beyond that inherent in the mere presence of a police officer, as well as any other event or con (1982) (<HOLDING>); Patterson, 59 Haw. at 363, 581 P.2d at 756 Holdings: 0: holding that a reasonable juror could infer defendant knew of the officers investigation for a crime that occurred a few months before his arrest because the investigating officer went to the residence of the defendants exwife made ten separate visits to the defendants business during which he informed those present that he wanted to talk to the defendant about something that happened on the date of the crime and gave this information to the defendants alibi witness 1: holding in the context of a prosecution for second degree escape that although defendant was not handcuffed he had nonetheless been placed under arrest had had his liberty restrained in that he was not free to leave and at that point the first step in the process of transporting him to the police station had begun consequently the defendants arrest was complete and he was in custody 2: holding that the encounter between an officer and the defendant did not rise to the level of a terry stop until the defendant gave the officer his license and the officer informed the defendant that he was going to be given a patdown 3: holding that defendant was seized where the officer told defendant that she knew that he was on probation defendant admitted to the officer that he had given her a false name and defendant was asked for consent to search a backpack because a reasonable inference was that defendant was the subject of a continuing investigation and his or her freedom of movement had been significantly restricted by the officers show of authority 4: holding that no valid arrest had taken place before the search of the defendants person was conducted even though prior to that point a police officer had approached the defendant displayed his badge informed the defendant of his suspicions that the defendants luggage contained drug contraband informed the defendant of his constitutional rights and detained the defendant for twenty minutes after he had accompanied the officers to a police office located in the airport | [
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CURIAM. Jackie Kennedy appeals her sentence of ten years’ probation as a habitual felony offender for her felony petit theft conviction in circuit court case number 2011-CF-9916. The State appropriately concedes error, as the crime of felony petit theft is not subject to enhancement under the habitual offender statute. See Ridley v. State, 702 So.2d 559, 559-60 (Fla. 2d DCA 1997) (<HOLDING>). Accordingly, we reverse the sentence imposed Holdings: 0: holding that section 89313 as amended by section 893101 florida statutes 2002 is constitutional 1: holding that under the 1991 version of the habitual offender statute defendant could not receive habitual offender sentence for life felony 2: holding that section 7750214b florida statutes 1989 barred concurrent prosecution for fraudulent sale of a counterfeit controlled substance and felony petit theft based on the same transaction 3: recognizing that the 1992 amendment to section 8930216 florida statutes changed the law 4: holding that the legislature amended section 8120142d florida statutes now renumbered as section 8120143c in 1992 to omit habitual offender penalties for the crime of felony petit theft | [
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False Claims Act. Disagreeing, Wood argues that Congress’s decision to create the Institute as a “nonprofit corporation incorporated under the laws of the District of Columbia, or ... comparable successor nongovernmental entity,” 22 U.S.C. § 3305(a)(1) — (2), demonstrates that the Institute is not a governmental entity enjoying sovereign immunity, but rather a private corporation providing services to the government. Wood likens the Institute to Radio Free Europe/Radio Liberty, the American National Red Cross, and Amtrak, three corporations created by the federal government and chartered under state or District of Columbia law that courts have held (or observed in dicta) are not part of the government for some purposes. See Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1124-25 (D.C.Cir.1985) (<HOLDING>); Marcella v. Brandywine Hosp., 47 F.3d 618, Holdings: 0: holding age discrimination claim barred 1: holding that claims arising under the age discrimination in employment act may be subject to arbitration 2: holding that radio free europeradio liberty is not a government controlled corporation within the meaning of the age discrimination employment act 3: recognizing equitable nature of back pay award under age discrimination in employment act 4: holding that the age discrimination in employment act was not preempted by the nlra | [
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improved his handling of client matters, and that returning him to the practice of law with fewer organizational resources would act to the detriment, rather than the benefit, of the public. We cannot agree. This Court has cited approvingly the recommendation of the ABA Standards that a suspension should generally have a duration of at least six months. See In re Rosenfeld, 157 Vt. 537, 547, 601 A.2d 972, 978 (1991). “The rationale is that ‘short-term suspensions with automatic reinstatement are not an effective means of protecting the public’ because rehabilitation cannot be shown in less than six months and a six-month duration is needed to protect client interests.” Id. (quoting ABA Standards 2.3, Commentary). But see In re McCarty, 164 Vt. 604, 605, 665 A.2d 885, 887 (1995) (mem.) (<HOLDING>). Given respondent’s previous disciplinary Holdings: 0: recognizing that periods of suspension of less than six months are appropriate in some circumstances 1: recognizing that fiduciary duties may arise in the insurance context where circumstances are appropriate 2: recognizing that in some circumstances an afterthefact remedy under state law may be adequate 3: recognizing special circumstances exception 4: recognizing contribution in the appropriate case | [
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. See id. § 15.064. 22 . See Liberty Mut. Ins. Co. v. Garrison, 966 S.W.2d 482, 484 (Tex.1998). 23 . See id. at 485. 24 . See Tex. Gov't Code § 311.021(4). 25 . See Walker, 827 S.W.2d at 840. 26 . See Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996). 27 . See Tex.R. Civ. P. 86(1). 28 . See Tex.R. Civ. P. 87(2)(a), (3)(a); Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 260-61 (Tex.1994). 29 . See Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993). 30 . See Tex.R. Civ. P. 87(2)(a); Masonite, 997 S.W.2d at 197 n. 16; Wilson, 886 S.W.2d at 260 n. 1 (Tex.1994). 31 . See Tex Civ. Prac. & Rem.Code § 15.018(b)(2). 32 . Id. 33 . Id. § 15.001(a). 34 . See Tex. Gov’t Code § 311.011(b); Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995). 35 . See Ruiz, 868 S.W.2d at 759 (<HOLDING>). 36 . See Webster’s Third New International Holdings: 0: holding grant of authority to an agency to adopt rules necessary to carry out this chapter clearly vested in the agency authority to interpret a statute 1: holding that an entity may qualify as a state agency for some purposes while being classified as a local agency for other purposes 2: holding that oil company foreman lacked discretion and authority to constitute an agency or representative for venue purposes 3: holding that an appeal to an agency review board would be futile because the board lacked authority to invalidate ordinance as requested 4: holding superior court lacked authority to remand to commission | [
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a defendant in an action for money damages” and ultimately “fails to satisfy the [resulting final] judgment.” DCL § 273-a. These convey- anees need not be intentionally harmful to creditors; it is the effect of the transfers alone, and not their purpose, that renders them constructively fraudulent. The concept of fair consideration merits brief elaboration. Generally, a transfer of assets is made for fair consideration if the transferor receives (or has received) “fair equivalent” value in return. DCL § 272. Thus, in most cases, the repayment of an antecedent debt is made for fair consideration. See HBE Leasing Corp. v. Frank, 48 F.3d 623, 634 (2d Cir.1995) (stating that “the preferential repayment of pre-existing debts to some creditors” 668, 668, 390 N.Y.S.2d 178 (2d Dep’t 1976) (<HOLDING>). Actually fraudulent conveyances, in contrast Holdings: 0: holding that the transfer of stock in an insolvent corporation did not constitute fair consideration to support conveyance of property to its stockholder 1: holding that the funds in the privatelyheld corporations account belonged to the corporation not to the individuals who owned the corporation and expressly stating that directors officers and shareholders of a corporation do not have standing to claim an ownership interest in corporate property in their individual capacities they must state a claim in the corporate name 2: holding that there was no question that the full and fair opportunity element was met where there was no indication that such an opportunity was unavailable 3: holding that an insolvent corporations salary payments to a corporate officer did not lack fair consideration because there was no evidence that the salary was either excessive or unreasonable or that the corporation did not receive full value in return 4: recognizing that insolvent corporations officers are directors and may have fiduciary duty to existing creditors not to dissipate corporate assets | [
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in WWITB was a complete assignment of rights to Brownmark (Am. Compl. ¶ 13), and, accordingly, Brownmark has standing to sue for infringement of the underlying copyright. HyperQuest, Inc. 632 F.3d at 382. The court proceeds to examine the defendants’ second argument for dismissing the amended complaint. B. Fair Use In the alternative, the defendants argue that Brownmark’s copyright in fringement claims are barred by the question are central to the plaintiffs claim, and indeed no party argues that the court cannot rely on the videos in evaluating whether Brownmark has failed to properly state a claim for copyright infringement. However, the rub is that “fair use” is viewed as an affirmative defense, as opposed to a central element of copyright infringement. See Janky, 576 F.3d at 361 (<HOLDING>); see also Harper & Row, Publrs. v. Nation Holdings: 0: recognizing that patent protection extends to elements not protected adequately by copyright 1: holding that a drawing containing several uncopyrightable public domain elements was entitled to copyright protection because the elements were selected coordinated and arranged in such a way as to render the work original 2: holding that conversion and unjust enrichment claims were preempted by the copyright act since they were not qualitatively different from a copyright claim because they contained no extra element beyond those necessary to show copyright infringement 3: holding that while the computer program at issue was within the subject matter of copyright the right sought under state law pursuant to a license was not equivalent to the exclusive rights under copyright as such copyright preemption did not apply 4: holding that the two elements of a copyright infringement claim are 1 the plaintiff owns a valid copyright right and 2 the defendants copied constituent elements of the work that are original | [
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910 (Ky.1995)). More specifically, Kentucky courts have consistently held that police officers only owe a duty of care to specific individuals if there -is a “special relationship” between the officer and individual. City of Florence v. Chipman, 38 S.W.3d 387, 392 (Ky.2001); Ashby v. City of Louisville, 841 S.W.2d.184 (Ky.App.1992). However, Kentucky has yet to address the specific question presented here — whether a police officer owes a suspect the duty to investigate allegations of criminal activity with reasonable care. Although Kentucky law is seemingly silent on the specific issue presented herein, other jurisdictions have uniformly refused to recognize a tort of negligent investigation. See Turner v. Taylor, No. 7:09-cv-02858-JMC, 2011 WL 3794086, at *9 (D.S.C. Aug. 25, 2011) (<HOLDING>); Fernander v. Bonis, 947 So.2d 584, 590 Holdings: 0: holding that real estate agents owe their clients a duty of loyalty 1: holding that the duty to investigate applied to a specific murder suspect 2: holding that a real estate agent does not owe a buyer a duty independent of the agency relationship with the seller 3: holding that brandname drug manufacturers owe no duty to consumers of generic drugs under oklahoma law 4: holding that officers owe a duty to the public to detect and investigate crime but owe no duty to individuals for negligent investigation | [
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and related services). Once Cherrix made a showing that DNA testing is “reasonably necessary” to his habeas petition, this Court had the discretion to provide for funds for testing or discovery that may be necessary to support the habeas petition. Cherrix has satisfied the standard of this and other courts for demonstrating that investigative services are “reasonably necessary.” This Circuit has stated that the services of an expert are reasonably necessary if either: (a) the services are needed to prepare the claims in the habeas petition, or to obtain evidence not yet acquired to support a claim in the habeas petition; or (b) the habeas petition raises claims entitling the petitioner to a hearing at which such expert would testify. See Lawson v. Dixon, 3 F.3d 743, 753 (4th Cir.1993) (<HOLDING>). As will be explained in great detail herein, Holdings: 0: holding that because the petitioner had already filed a rule 371 petition he was barred from submitting a subsequent petition under that rule and his petition was subject to dismissal on that basis regardless of the label he placed on it 1: holding that the habeas petition did not qualify for equitable tolling because the petitioner discovered that his attorney had lied about filing a petition in early 2008 and yet the petitioner did not file one himself until nearly two years later 2: holding that an appeal was not moot because the amendment to the ordinance at bar did not give the petitioner the relief sought so that the petitioners claim and injury remain viable 3: holding that habeas petitioner did not need services of psychiatrist because i petitioner had already filed his petition and so did not need psychiatrist to prepare his claims and ii psychiatrist had already formed an opinion on the elements of petitioners claim so petitioner had already acquired the evidence sought 4: holding that the state court ruling was objectively unreasonable where prosecution failed to present sufficient evidence that the petitioner murdered a known drug dealer although the state established that the petitioner planned to rob drug dealers for drugs or money the victim was a known drug dealer who kept drugs in his freezer and that freezer was open and empty after the homicide the petitioner and the victim had engaged in drug transactions in the past the petitioner had a motive because he had seen the victim make a pass at the petitioners girlfriend and the petitioner had possessed and once purchased the murder weapon and a similar gun was seen in his home two weeks before the murder evidence placing the petitioner at the scene was conspicuously absent leaving only a reasonable speculation that the petitioner was present | [
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1) Plaintiff’s Motion to Amend Complaint and Try This Matter by Jury, filed December 18, 1991, is hereby DENIED. 2) The Civil Rights Act of 1991 does not apply retroactively to cases pending at the time of enactment. 1 . All factual recitations contained in this Order have been alleged in the litigants’ pleadings. 2 . We expressly limit our opinion to cases filed and pending prior to the date of enactment. Accordingly, we decline to address whether the Act applies to cases filed after the Act’s effective date that challenge pre-Act conduct. 3 . Compare Wagner Seed Co. v. Bush, 946 F.2d 918, 924 (D.C.Cir.1991) and Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir.1991) and Alpo Petfoods, Inc. v. Ralston Purina Co, 913 F.2d 958, 963-64 n. 6 (D.C.Cir.1990) and DeVargas, 911 F.2d at 1384 (<HOLDING>) with United States v. Peppertree Apartments, Holdings: 0: holding that the georgetown presumption is the better rule 1: recognizing presumption 2: recognizing added presumption 3: recognizing this presumption 4: holding that the bradley presumption is the better rule | [
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sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to defective recollection or conscious fabrication. There is no per se rule . indicating what time interval is too long under Rule 803(1).... ” United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995) (alteration in original) (quotations and citations omitted), vacated on other grounds, 516 U.S. 1168, 116 S.Ct. 1257, 134 L.Ed.2d 206 (1996). In Hawkins, the defendant argued that the district court abused its discretion in admitting the victim’s “911 call because the contents of the tape are inadmissible hearsay” and contended that the victim had time to fabricate her story. Id. at 730. We held that the victim’s “statements from the 911 tape were 60-61 (N.D.Ill.1991) (<HOLDING>); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Holdings: 0: holding railroad workers statement to police made after he had walked approximately 100 feet admissible as a present sense impression 1: holding that under certain circumstances statements on a 911 tape may be admissible as a present sense impression 2: holding statement made twentythree minutes after event admissible as a present sense impression 3: holding that tapes of two 911 calls the first 2 to 3 minutes after the shooting and the other approximately 16 minutes after shooting were sufficiently contemporaneous with the event and therefore admissible as present sense impressions 4: holding statements on 911 tape admissible as present sense impression where call was made almost immediately after the defendant left the store after a shooting incident | [
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to interfere, see Toulabi v. United States, 875 F.2d 122, 125-26 (7th Cir.1989), a franchise is a right that belongs to the government when conferred upon a citizen and that inheres in the sovereign power, see Borre v. United States, 940 F.2d 215, 220 (7th Cir.1991). The Seventh Circuit has held that fraud in procuring a franchise is subject to the mail fraud statute. See Borre, 940 F.2d at 220. According to Samsung, a patent, like a franchise, enables its owner to exclude others, including the government. We apply our own law to determine whether SEL’s conduct before the PTO qualifies as mail fraud for purposes of the predicate acts requirement of the federal RICO statute. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1574, 37 USPQ2d 1626, 1631 (Fed.Cir.1996) (<HOLDING>). We agree with the district court that Holdings: 0: holding that though we do not have exclusive jurisdiction over unfair competition claims our own circuit law nonetheless determines when inequitable conduct also constitutes unfair competition 1: holding that as in an action alleging infringement of a mark likelihood of confusion is the essence of an unfair competition claim 2: holding that antitrust violations are unfair methods of competition under the ftc act 3: holding the circuit court has exclusive jurisdiction over condemnation proceedings 4: holding that actual reliance is not required to establish injury under nc gen stat 5863151 2001 which governs the unfair methods of competition and unfair and deceptive acts or practices in the business of insurance | [
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petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available.” Mack-ey, 401 U.S. at 682, 91 S.Ct. at 1175. To focus unduly on the Bailey decision without giving fill attention to the purposes of collateral review is to lose the forest in all the trees. After Teague, the Court of Appeals for the Fourth Circuit has not addressed whether changes in substantive statutory law should be applied retroactively. A close reading of Teague and an examination of its reasoning demonstrate that Teague should have a broader, more expansive application than it is usually afforded. Teague greatly restricted the availability of collateral relief, and it is applicable even in death penalty cases. Penry v. Lynaugh 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (<HOLDING>); see also Sawyer v. Smith, 497 U.S. 227, 228, Holdings: 0: holding that the right to crossexamine adverse witnesses applies to capital sentencing hearings 1: holding that the right applies at capital sentencing in particular 2: holding teague applies to capital cases 3: recognizing the common practice of substituting specialized capital counsel for habeas petitions filed by capital defendants 4: holding that even capital prisoners have no constitutional right to counsel in habeas cases | [
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evidence in the record supports the trial court's conclusion. However, the full quote from Stayer reads: In the case before us, there is ample record evidence, from which the trial court could have found that restitution was proper. Notwithstanding the mandate of the statute that the trial court's reasons be included as part of its order, we believe that the failure to do so in this case was harmless error. Nonetheless, we draw attention to this requirement for future guidance of the sentencing courts. Id. at 614 (emphasis added). ¶ 28 Subsequent cases from our supreme court make clear that record findings under section 76-8-201 are mandatory so that we may no longer assume that the trial court considered the enumerated factors. See State v. Robertson, 932 P.2d 1219, 1234 (Utah 1997) (<HOLDING>); Monson v. Carver, 928 P.2d 1017, 1028-29 Holdings: 0: holding section 768201 is exception to general rule that appellate courts uphold the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings 1: holding that it is not an appellate courts function to make findings of fact 2: holding that the court should make factual findings from the record evidence as if it were conducting a trial on the record 3: holding remand proper on circuit courts own motion in a workers compensation case where the commission failed to make essential findings of fact because to hold otherwise would in such cases make the determination of the rights of the parties turn upon the neglect of the commission to make essential findings of fact or require the appellate court to make the omitted findings of fact which our statute forbids 4: recognizing appellate courts must not make fact findings | [
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bills of lading (900 vs. 1800); 5) the description of the goods in the inspection document as “New Orleans” rather than “New, Original”; 6) the inconsistency in the number of boxes in the shipment both within the packing list and in relation to the bills of lading; 7) the packing list’s specification of a shipment date seven days after the list was purportedly created; and 8) the inconsistency between the weight of the goods listed in the packing list, 38,000 lbs., and the weight listed in the bills of lading, 64,800 lbs. Courts have found substantial compliance lacking in situations where the beneficiary’s documents contained much less significant and extensive discrepancies than are present here. See, e.g., Brul v. MidAmerican Bank & Trust Co., 820 F.Supp. 1311, 1313-14 (D.Kan.1993) (<HOLDING>); Rhode Island Hosp. Trust Nat’l Bank v. Holdings: 0: holding that a party providing a letter of credit fails at its peril to include in the letter language restricting honor and payment of the credit 1: holding that plaintiff had standing where the beneficiary of a letter of credit had assigned to plaintiff its cause of action for wrongful dishonor of the letter of credit 2: holding that documents did not substantially comply where copies of letter of credit and promissory note were submitted and letter of credit required originals 3: holding that a bank fee for a letter of credit to secure a stay pending appeal was not a taxable cost where no statute or court rule allowed such a cost and where the letter of credit was unnecessary and therefore a discretionary expense to which the opposing party had objected 4: holding that 1823e does not apply to a claim relating to a letter of credit a letter of credit is a liability not an asset | [
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also, e.g., Thoma v. Kettler, 632 A.2d 725, 728-29 n. 8 (D.C.1993) (noting that the generality of the regulation providing that “[d]ebris and other loose materials, shall not be allowed on or under stairways” and “[s]lippery conditions on stairways shall be eliminated as soon as possible” did not differ significantly in particulars from the common law standard of reasonable care in the circumstances); District of Columbia v. Mitchell, 533 A.2d 629, 639 (D.C.1987) (violation of statute requiring Department of Corrections to be “responsible for the safekeeping, care, protection, instruction, and discipline” of inmates implicitly recognized the common law duty of reasonable care and contained no specifics that could give rise to claim of negligence per se); Lewis, supra, 463 A.2d at 674 (<HOLDING>). McNeil argues that the trial court erred in Holdings: 0: holding hearing in chambers was not per se a violation of due process 1: holding that violation of city ordinance does not constitute negligence per se 2: holding negligence per se not applicable to violation of railroad commission regulation 3: holding that violation of state law was not a per se constitutional violation 4: holding that negligence per se instruction was not warranted where plaintiffs alleged violation in building code provision requiring neighboring property and structures be sufficiently supported | [
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include necessary requirements’ of the statute — not because the EPA ignored a factor that the statute requires it to consider, but only because it has not fully implemented the statutory goal.”). The issue raised by Oceana in challenging the Omnibus Amendment is different from the jurisdictional issues raised in the D.C. Circuit cases. Oceana argues that, because NMFS did not consider whether to include non-target bycatch stocks “in the fishery,” the Omnibus Amendment is arbitrary and capricious because the ACLs it does set for the already-managed stocks could result in overfishing of the unregulated bycatch stocks. See Pl.’s Mot. Summ. J. 18; see also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (<HOLDING>). The MSA’s new provisions required NMFS to Holdings: 0: holding that an agency acts arbitrarily and capriciously if it entirely failed to consider an important aspect of the problem 1: holding that the court must find that the agency entirely failed to consider an important aspect of the problem offered an explanation for its decision that runs counter to the evidence before the agency or the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise 2: holding allegation that the agency failed to fully evaluate an aspect of petitioners claim to be another way of saying that the agency got the facts wrong 3: recognizing criminal forfeiture as an aspect of punishment 4: holding that an agency acts arbitrarily and capriciously if it reverses its position in the face of a precedent it has not persuasively distinguished | [
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scope of the Texas Rules of Civil Procedure.” The order at issue requires Exmark to “identify each ... tangible item responsive to each Request for Production or by general categories of documents.” According to Exmark, the order compels it to “organize its production in a manner more restrictive than the rules allow” because it eliminated its ability to produce documents and tangible things as they are kept in the normal course of business. Under Texas Rule of Civil Procedure 196.3(c), “the responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.” Tex.R. Civ. P. 196.3(c); see In re Colonial Pipeline, 968 S.W.2d 938, 942 (Tex.1998) (orig. proceeding) (<HOLDING>). Contrary to Exmark’s argument, the rules Holdings: 0: holding that section 231241f does not address the taxable situs of heavy equipment inventory 1: holding that a violation of 6103 does not require the application of the exclusionary rule 2: recognizing this rule 3: holding that this court does not necessarily require the claim to be specifically raised in an eeoc charge provided that it satisfies this scopeofinvestigation test 4: holding that this rule does not require the creation of an inventory of documents to be produced | [
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to assure fairness to the subject individual in any determination based on the information. That much, at least, is reasonably necessary. Thus, if the agency is likely to rely on the disputed information in making a determination about the subject individual and if the information is likely to be injurious to the individual if relied upon by the agency in making this determination, then the statutory standard demands that the agency, faced with an amendment request, determine that the information is accurate. The burden is on the individual to establish the inaccuracy of the challenged record. See OMB Guidlines at 38, Source Book at 1051 (advising agencies to place the burden of going forward in an amendment request on the individual); Mervin v. F.T.C., 591 F.2d 821, 827 (D.C.Cir.1978) (<HOLDING>). The OMB Guidelines suggest that the agency Holdings: 0: holding that the burden is on the plaintiff 1: holding that the burden of proof is on the claimant 2: holding that section 523a2c shifts the burden of production and not the burden of proof on the issue of intent only 3: holding that the reviewing court correctly places the burden of proof on the plaintiff seeking amendment 4: holding that the failure to properly instruct the jury on the burden of proof required a new trial | [
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As the Court summarized: ‘Congress’ intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA § 502(a) remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim.’ Id. at 2499-2500; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (noting that the ‘policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.’); Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138, 1147 (9th Cir.2003) (<HOLDING>); Dishman v. UNUM Life Ins. Co., 269 F.3d 974, Holdings: 0: holding the conflict preemption principle announced in pilot life and clarified in rush prudential remains in force 1: holding claims under the montana unfair trade practices statute were conflictpreempted because the montana law provided nonerisa damages for essentially claim processing causes of action 2: holding that state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan are removable to federal court 3: holding that state law causes of action arising from improper processing of a claim for benefits are preempted 4: holding that an action which seeks nonerisa damages for what are essentially claim processing causes of actionf clearly falls under the 1132 preemption exemplified by pilot life | [
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v. Barbee, 262 S.W.2d 122 (Tex.Civ. App.—Fort Worth 1953, no writ); Stuyvesant Ins. Co. v. Driskill, 244 S.W.2d 291 (Tex.Civ.App.—Fort Worth 1951, no writ); Smith v. Am. Fire & Cas. Co., 242 S.W.2d 448 (Tex.Civ.App.—Beaumont 1951, no writ); Mut. Fire & Auto. Ins. Co. v. Muckelroy, 236 S.W.2d 555 (Tex.Civ.App.—San Antonio 1951, no writ); Roberdeau v. Indem. Ins. Co. of N. Amer., 231 S.W.2d 948 (Tex.Civ.App.—Austin 1950, writ ref.'d n.r.e.); Am. Indem. Co. v. Jamison, 62 S.W.2d 197 (Tex.Civ.App.—Tex-arkana 1933, no writ); Standard Accident Ins. Co. of Detroit v. Richmond, 297 S.W. 879 (Tex.Civ.App.—Texarkana 1927, writ dism’d). 11 . For example, in Barbee, 262 S.W.2d at 123-24, over twenty items on the insured’s car were either unrepaired or improperly repaired. 7 So.2d 158, 160 (1952) (<HOLDING>); Dunmire Motor Co. v. Or. Mut. Fire Ins. Co., Holdings: 0: holding that to find the measure of damages as the difference in market value immediately before and after the collision would be arbitrarily reading out of the policy the right of defendant to make repairs or replace the damaged part with materials of like kind and quality 1: holding that if despite repairs there remains a loss in actual market value estimated as of the collision date such deficiency is to be added to the cost of repairs 2: holding that the testimonies of three qualified expert witnesses about the damages done to a house by termites and their opinions as to what the repairs would cost was some evidence that the cost of repairs was reasonable and necessary although those words were not used in their testimonies 3: holding that unless the collision resulted in a total loss the measure of recovery is the difference between the fair market value of the vehicle in the condition in which it was immediately prior to the collision and its value thereafter 4: holding that if repairs to a firedamaged vehicle with parts of like kind and quality would not restore the vehicle to its former market value the proper measure of damages was the difference in market value before and after the loss | [
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on August 9, 2005, after Appellant was referred to him by Dr. Earl Stewart. Dr. Bingham prepared a second EMG report on May 9, 2008, upon referral from Dr. Michael Caifee. Dr. Bingham noted his plan to refer Appellant back to Dr. Caifee. Finally, Dr. Valdivia prepared a third EMG report on October 23, 2009, upon referral from Dr. Stewart. There is no indication that the doctors saw Appellant on any other occasion. The records thus show that Dr. Tucker saw Appellant with much greater frequency and regularity than Drs. Bingham and Valdivia. It is unclear whether the ALJ recognized this difference and, if so, why she concluded that the opinions of all three doctors were entitled to equal weight. This ambiguity hinders meaningful review of the ALJ’s decision. See Blakley, 581 F.3d at 409 (<HOLDING>). Even if the ALJ considered Drs. Bing-ham and Holdings: 0: holding in the absence of alj findings supported by specific weighing of the evidence we cannot assess whether relevant evidence adequately supports the aljs conclusion and thus the aljs unexplained conclusion was beyond meaningful review 1: holding an aljs failure to adequately explain the weight given to treating sources opinions not harmless because the aljs reasoning was not sufficiently specific to make clear that the alj recognized and evaluated the treating relationships 2: holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations 3: holding that where the alj had already obtained and considered reports from treating physicians the alj had before him a complete medical history and the evidence received from the treating physicians was adequate for him to make a determination as to disability 4: holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician | [
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Bailey v. State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (per curiam); see also Millsap v. Kelley, 2016 Ark. 406, at 2, 2016 WL 6803694 (per curiam). The trial court held that the motion was without merit and denied relief. Barnes lodged an appeal from the order in this court. Now before us are Barnes’s motions for extension of time to file the appellant’s brief, for appointment of counsel, and for a copy of the transcript lodged in this appeal. We dismiss the appeal because it is evident from the record that Barnes could not succeed on appeal. This court will not permit an appeal from an order that denied a petition for postconviction relief to go forward where it is clear that the appellant could not prevail. Justus v. State, 2012 Ark. 91, 2012 WL 664259. 9 S.W.3d 693 (per curiam) (<HOLDING>). Even though Barnes’s petition was signed and Holdings: 0: holding that second state petition for postconviction relief that was dismissed as an abuse of the writ was properly filed 1: holding that a petition to correct sentence was properly considered as a petition for postconviction relief pursuant to rule 371 because it challenged a judgment entered on a plea of guilty on grounds cognizable under the rule 2: holding that third state petition for postconviction relief that was dismissed as an abuse of the writ was properly filed 3: holding that because the petitioner had already filed a rule 371 petition he was barred from submitting a subsequent petition under that rule and his petition was subject to dismissal on that basis regardless of the label he placed on it 4: holding that because the defendants challenge to his sentence implicated his plea agreement the defendants request must be construed as a petition for postconviction relief | [
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third event, however, also likely contributed to defendant’s decision to incriminate himself — the illegal seizing of his coat by the police just prior to interrogating him. Admittedly, defendant was never “confronted,” in the literal sense of the word, with the jacket, i.e., he was never directly told a witness to the murder had identified the perpetrator as wearing the same exact jacket. Nevertheless, the illegal seizure of defendant’s jacket occurred as he was being led into an interrogation room in which he would momentarily admit to shooting Merriwether, according to the testimony of the detectives. Moreover, the fact that defendant was observed wearing the jacket inside out suggests he was aware of the potentially incriminating nature of the jacket. Cf. White, 117 Ill. 2d at 225 (<HOLDING>); Turner, 259 Ill. App. 3d at 991 (“[I]f a Holdings: 0: holding that accused was not in custody when asked to go to the police station and left the station freely 1: holding the defendant was not under arrest when police asked him to go to the station and then offered him a ride because he did not have transportation 2: holding that the defendant was placed in official detention when two police officers approached him and told him that he was under arrest as the defendant could not reasonably have believed that he was free to leave 3: holding that an illegal arrest occurred when the defendant was transported without probable cause from his home to the police station for fingerprinting and that the line is crossed when the police without probable cause or a warrant forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station where he is detained although briefly for investigative purposes 4: holding codefendants mere pres ence in police station absent any suggestion that the defendant believed or knew that his codefendant had implicated him in the crime could not constitute an intervening circumstance | [
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be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). A district court reviews a bankruptcy court’s conclusions of law de novo. See Commodore, 331 F.3d at 1259; In re Calvert, 907 F.2d 1069, 1071 (11th Cir.1990). A bankruptcy court’s decision to allow or disallow a claim is reviewed under the abuse of discretion standard. See In re Jazz Casino Co., L.L.C., 2004 WL 2095616, at *5 (E.D.La.2004) (noting that a bankruptcy court’s decisions based upon equitable grounds are reviewed for abuse of discretion) (citing In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.1999); In re Kolstad, 928 F.2d 171, 173 (5th Cir.1991)); see also Manufacturers Trust Co. v. Becker, 338 U.S. 304, 310 n. 7, 70 S.Ct. 127, 94 L.Ed. 107 (1949) (<HOLDING>) (citing 11 U.S.C. § 11). A bankruptcy court’s Holdings: 0: holding equitable estoppel barred the plaintiffs claims because all of the claims of the amended complaint were in existence during the bankruptcy proceedings yet the plaintiff did not disclose any of the claims in its bankruptcy petitions plans of reorganization or disclosure statements 1: holding that claims consideration in bankruptcy has no express time limit 2: recognizing that the power of disallowance of claims conferred on the bankruptcy courts embraces the rejection of claims in whole or in part according to the equities of the case and emphasizing that a bankruptcy court may therefore limit the amount of claims in view of equitable considerations 3: recognizing rule that state law governs the substance of claims in bankruptcy proceedings 4: holding that the allowanceor disallowance of claims is unrelated to the dischargeability of those claims under section 523 | [
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four years out of time. A motion that does not comply with the time and numerical limitations can only be brought where the alien can establish one of four limited exceptions. See 8 U.S.C. § 1229a(c)(7) (2005); 8 C.F.R. § 1003.2(c)(3) (2005). One such exception, the only one alleged to be applicable here, is where the alien can establish “changed circumstances arising in the country of nationality....” 8 U.S.C. § 1229a(c)(7)(C)(ii) (2005); 8 C.F.R. § 1003.2(e)(3)(ii) (2005). This Court has already held that a change in an individual’s personal circumstances does not qualify under the above exception; an individual must demonstrate that the country conditions have changed in order for this exception to apply. Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (<HOLDING>). In his motion to reopen, Jiang only asserts Holdings: 0: holding that 8 cfr 10032c3ii applies to changed country conditions in the country of origin or deportation and not changed personal circumstances in the united states 1: holding that a change in personal circumstances namely the birth of a child in the united states does not fit under the changed circumstances exception provided by 8 cfr 10032c3ii 2: holding that a change in personal circumstances is not sufficient to establish changed circumstances for the purpose of 8 cfr 10032c3h 3: holding that petitioners divorce was a purely personal change in circumstances that does not constitute changed conditions or circumstances in jordan 4: holding that an alien failed to qualify for the changed circumstances exception by asserting only that his personal circumstances had changed by the birth of a child | [
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and found that he had purged himself of the contempt without prejudice to his and the Bexar County Center’s pending appeal of the June 30, 2003 order. On September 25, 2003, another panel of this court denied the petition for writ of mandamus filed by Evans and the Bexar County Center, finding that Evans and the Bexar County Center had an adequate remedy by means of their appeal. Evans later filed a petition for writ of mandamus asking this court to direct the trial court to vacate the contempt judgment against him. Before oral argument, this court consolidated this second mandamus proceeding with the appeal by Evans and the Bexar County Center. II. Issues Pkesented In their appeal, Evans and the Bexar County Center (collectively referred to hereinafter as t W. 915, 917 (1925) (<HOLDING>). Therefore, we hold that the Bex-ar County Holdings: 0: holding that both saline county and grant county had jurisdiction to try the appellant for murder where the actual killing occurred in one county but the acts requisite to the consummation of the murder and the subsequent disposal of the body occurred in the other county 1: recognizing county officers as those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed who are appointed in and for a particular county and whose duties apply only to that county and through whom the county performs its usual political functions 2: holding a county and a road district had standing to sue state highway commission and county tax collector based on their interest in and control over the public roads of the county 3: holding that the county had no standing to sue the state to recover taxes illegally obtained from citizens unless the money belongs to the county 4: holding before the apa definition of person was amended to include county that the board of county commission ers of dolores county could not sue the state agency that had ordered reappraisals of real property in dolores county in connection with valuation for ad valorem taxation because the board of county commissioners was not a person under the apa and did not otherwise have authority to sue under statute or constitution | [
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claims in exchange for severance pay and Stull’s promise to pay her another month’s medical benefits. Stull insists that it upheld its end of the bargain — it paid benefits through November 30. Although Marie did not receive severance pay, an issue discussed more fully below, Stull asserts that Marie was not contractually entitled to it because she did not fulfill the condition precedent of working through November 6. Berthony responds that the SSP’s waiver does not protect Stull, for each of Berthony’s claims arose subsequent to Marie’s acceptance of the waiver, which occurred on October 11, 1998. He submits that our precedents refuse to recognize waivers of claims arising in the future. See Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885, 896 n. 27 (3d Cir.1975) (<HOLDING>). Moreover, he asserts that Stull’s concept of Holdings: 0: holding similar agreement void on public policy grounds 1: holding exhaustion clauses to be void as against hawaiis public policy 2: holding physicians covenants not to compete are unenforceable and void as a matter of public policy 3: holding that where agreement prohibits recovery of attorneys fees in civil rights case the relevant portions of the arbitration policy are therefore void as against public policy 4: holding that prospective waivers of claims are void as against public policy | [
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Mueller oppose entry of default judgment on the ground that the "Law Offices of James Nabholz, III” is not an existing entity capable of being sued. Because I lack subject-matter jurisdiction, I will not resolve this issue. 2 . Although the complaint alleges that Mueller was associated with the defendant Law Office of James Nabholz, III, American Family claims that Mueller was actually in-house legal counsel for American Family. I note, however, that Mueller signed pleadings in the underlying state-court action on behalf of the Law Office of James Nabholz, III. 3 . American Family’s argument that the complaint does not state a claim against Mueller because it includes allegations of ethical violations is meritless. See Chrysler Corp. v. Carey, 5 F.Supp.2d 1023, 1031-32 (E.D.Mo.1998) Holdings: 0: holding that ethical violations may be relevant to tort claims brought against attorneys 1: holding that tort claims that could have been brought outside the bankruptcy environment are noncore without discussing whether claims were brought pre or postpetition 2: holding that this language applies to tort claims brought under the federal tort claims act against a contractor who has a selfdetermination contract 3: holding section 101106f cannot be used by employees to obtain dismissal of common law intentional tort claims because those claims could not have been brought under the texas tort claims act 4: holding that tort actions brought against a state actor must be brought in the illinois court of claims and the district courts dismissal of such claims was proper | [
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the agency”)). Sigma-tech’s focus on total contract price to determine whether the eight “small business” potential bidders were capable of performing the requirements of the November 1, 2016 Solicitation is contradictory to the USASAC’s analysis of the responses to the June 6, 2016 RFI. 4/21/17 Gov’t Resp. at 26. Moreover, the Contracting Officer was not required to conduct an analysis of the eight “small business” potential bidders’ use of subcontractors and whether they would be able to perform the requirements at fair market prices, because the Contracting Officer is not required to conduct this type of analysis before making a set-aside decision. 4/21/17 Gov’t Resp. at 29-30. (citing Adams & Assocs., Inc. v. United States, 741 F.3d 102, 111 (Fed. Cir. 2014) (“Adams & Assocs. II") (<HOLDING>)). Finally, differences in the requirements of Holdings: 0: holding that trial courts determination of whether defendant accepted responsibility should not be disturbed unless it is without foundation 1: recognizing that the determination is an equitable one 2: holding that the evidence supported two separate convictions and punishments for two attempted robberies of two different victims who suffered separate and distinct harms 3: holding that congress envisioned two separate petitions filed to review two separate final orders 4: holding that the rule of two does not require two separate but interrelated decisionsone as to responsibility and one as to a form of price reasonableness because that would conflate a setaside determination with a responsibility determination made pursuant to 48 cfr 91041 | [
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father may be entitled to indemnity or contribution from the intended adoptive father. What we hold in this opinion, reinforced by Wallis and Ted-ford, is that the biological father is responsible at the point of conception of the child. Whether the biological and intended adoptive fathers have liability issues between themselves pursuant to an agreement is an issue we need not, and do not, address in this opinion. {35} We do note that, in some intended adoptive parent cases, a biological parent responsible for child support may be deceased, missing, unreachable, unknown, or indigent, and a court may be asked to look to the intended adoptive parent for child support. See, e.g., Geramifar, 688 A.2d at 476 (indicating that natural parents were Iranian); Wener, 312 N.Y.S.2d at 817-18 (<HOLDING>). We need not, and do not in this opinion Holdings: 0: holding the foster parents responsible for support where the childs natural parents are unknown and noting that an earlier new york case held that an agreement to adopt did not terminate the natural parents duty of support but that in that earlier case the natural parent was alive and capable of providing for the child 1: holding that a childs interest supercedes that of its natural parents 2: recognizing emotional bond between foster parents and child although ultimately determining foster parents did not have rights of parents in dependency action under chapter 2644 rcw 3: holding that natural parents consent for an adoption is required so long as the parent complies with the duty to support for any period during the oneyear preceding the filing of the adoption petition 4: holding that natural parents could not lose parental rights to foster parents where the foster agreement contemplates a surrender of custody for only a temporary period of time | [
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including three Louisiana entities. For various reasons, all the Louisiana companies were deemed insulated from liability to the plaintiff. After the case was removed to federal court, the plaintiff filed a motion to remand arguing, among other things, that not all defendants had consented to the removal. The court held such consent to be unnecessary, and said: [A]s a general rule, removal requires consent of all co-defendants. In cases involving alleged improper or fraudulent joinder of parties, however, application of this requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists. Id. at 816. See also Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875 (1st Cir.1983) (<HOLDING>). Since the court has concluded that Seck-man Holdings: 0: holding that plaintiffs failure to allege citizenship of first defendant did not constitute good cause for second defendants failure to timely join in removal petition 1: holding that the failure to join all the defendants in a removal petition is not a jurisdictional defect 2: holding that all properly served defendants must join in petition for removal except for nominal unknown or fraudulently joined parties 3: holding that a party fraudulently joined to defeat removal need not join in a removal petition and is disregarded in determining diversity of citizenship 4: holding that the failure of all defendant to join in the petition for removal mandated remand to state court | [
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503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). The Ninth Circuit has held that the legislative history of Title--IX “strongly suggests that Congress meant for similar- substantive standards to apply under'Title IX as had been developed under Title VIL” Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir.2012). Title IX’s prohibition of discrimination “on the basis of sex” encompasses both sex — in the biological sense — as well as gender. Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir.2000). Furthermore, discrimination based on gender stereotypes constitutes discrimination on the basis of séx under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir.2001)(<HOLDING>). In Nichols, the Ninth Circuit held that a Holdings: 0: holding that the equal protection clause also prohibits discrimination in jury selection on the basis of gender 1: holding that the same standard applies to claims of discrimination based upon gender and age 2: holding that discrimination against either a man or a woman on the basis of gender stereotypes is prohibited 3: holding that a plaintiff could not assert a 1981 claim based on gender discrimination 4: holding race and gender discrimination claim barred | [
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] | [
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transporting drugs between Guam and another United States territory constituted “importation” because it required nocence claim was available after 1996, when the First Circuit held that transporting drugs over international waters did not constitute “importation” within the meaning of 21 U.S.C. § 952(a). See United States v. Ramirez-Ferrer, 82 F.3d 1131, 1144 (1st Cir.1996) (en banc). We disagree. For the purposes of determining whether a claim was unavailable under § 2241, we look to whether controlling law in this circuit foreclosed petitioner’s argument. See, e.g., In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000) (a claim is not available when “settled law of this circuit or the Supreme Court established the legality of conviction....”) (emphasis added); Davenport, 147 F.3d at 610 (<HOLDING>). The mere possibility that the Ninth Circuit Holdings: 0: holding that where a defendants claim did not amount to a complete denial of counsel it could not form the basis of a collateral attack 1: holding that a defendant who fails to raise a specific issue as the basis for suppression in a motion to suppress to the district court has waived the right to raise that issue on appeal 2: holding that if a petitioner wishes to preserve an issue for appeal he must first raise it in the proper administrative forum 3: holding that a judgment as to the title in a prior litigation was not subject to collateral attack 4: holding that when the law of the circuit was so firmly against him petitioner did not have to raise an issue to preserve it as a basis for collateral attack later on | [
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him are not alleged to relate either to intimate human relations or to associations that exist for the purpose of engaging in activities protected by the First Amendment. The intimate human relations type of association is exemplified by familial relations, including marriage, raising and educating children and cohabiting with one’s relatives. Roberts, 468 U.S. at 619, 104 S.Ct. at 3250. While this type of association can extend to other types of relationships, depending on the size, purpose, policies, selectivity, congeniality and other characteristics of the “association” involved, plaintiff cites no case and this Court has not found one which would extend this type of association to the workplace. See, e.g., Copp v. Unified Sch. Dist. No. 501, 882 F.2d 1547, 1551 (10th Cir.1989) (<HOLDING>). As for associations involving First Amendment Holdings: 0: holding that confrontation clause protections do not extend to sentencing hearings 1: holding that intimate human relationships are generally familial in nature and do not extend to workplace associations 2: holding that regulatory requirements are not jurisdictional in nature 3: holding that generally punitive damages are not available for a breach of contract 4: recognizing that the right does not extend to committing perjury | [
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] | [
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to appoint a custodian is interlocutory and not immediately appealable. CONCLUSION The lower court did not err in refusing to grant a restraining order regarding the use of the Shapemasters’ name and logo. Further, the appointment of a custodian is interlocutory in nature and does not fall into a delineated exception. As such, the trial court’s (1991) (ruling issue was not preserved for appellate review where the trial court did not explicitly rule on the appellant's argument and the appellant made no Rule 59(e) motion to alter or amend the judgment). 4 . It is not necessary for this court to address Appellants’ remaining issues because Appellants fail to provide legal authority to support their arguments. See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (<HOLDING>). Moreover, Appellant’s remaining issues are Holdings: 0: holding that an issue is waived when a party fails to provide adequate citation to authority 1: holding when a party fails to provide arguments or supporting authority for his assertion the party is deemed to have abandoned the issue 2: holding that where an appellant fails to raise arguments regarding an issue on appeal that issue is deemed abandoned 3: holding case moot where one party voluntarily abandoned its arguments 4: holding the appellant was deemed to have abandoned an issue for which he failed to provide any argument or supporting authority | [
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and their former counsel and the requirement that each of these parties engage in community service as a result of their conduct in this matter. While the court finds each of these alternatives deficient when employed alone, in combination, these alternatives are promising. Thus, the court will require the Esso Defendants and their former counsel to fund a community service project which will benefit the St. Thomas community — the party perhaps most aggrieved by their sanctionable conduct. 1. The Imposition of a Fine Pursuant to its inherent powers, this court has the power to sanction the Esso Defendants and their former counsel by requiring them to pay a monetary fine. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975) (<HOLDING>); F.D. Rick Co. v. United States ex rel. Holdings: 0: recognizing inherent power of courts of appeals 1: recognizing courts inherent power to impose sanctions including attorneys fees for conduct that abuses the judicial process 2: recognizing the federal courts ability to impose inherent power sanctions on parties 3: recognizing the inherent power of the courts to issue warrants 4: recognizing the federal courts ability to impose inherent power sanctions to the lawyers firm or employer | [
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] | [
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nonpublic forum, we have little trouble concluding that the Park Service Regulations are “viewpoint neutral and reasonable in light of the purpose [of] the forum.” Marlin v. D.C. Bd. of Elections and Ethics, 236 F.3d 716, 719 (D.C.Cir.2001) (citation and quotation marks omitted). The Regulations plainly do not discriminate on the basis of viewpoint, but rather prohibit disruptive speech regardless of its message. Oberwetter argues that the government engages in viewpoint discrimination by hosting its own official birthday ceremony in the Memorial while excluding her celebratory dance. This argument fails because the government is free to establish venues for the exclusive expression of its own viewpoint. See Pleasant Grove v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (<HOLDING>); Johanns v. Livestock Mktg. Ass’n, 544 U.S. Holdings: 0: holding that the state is obligated to pay property owners when it regulates private property under its police power in such a manner that the regulation effectively deprives the owner of the economically viable use of that property 1: holding that a private association could not erect a memorial on public property without consent of the governing authority that the location manner and design of statues is within the discretion of the governing authorities of the city of new orleans and that the city of new orleans can require removal of monuments located on public property 2: holding that it is not 3: holding that when the government erects a monument on public property it is not obligated to allow other monuments expressing alternative viewpoints 4: holding that when the government acts to enforce public rights the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts | [
"1",
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§ 1981 claims of discriminatory termination, harassment, and hostile environment); Lewis v. American Foreign Serv. Ass’n, 846 F.Supp. 77, 79 (D.D.C.1993) (denying judgment as a matter of law denied a reasonable jury could find that defendant retaliated against plaintiff for filing EEOC charge, in violation of § 1981); Freeman v. Atlantic Ref. & Mktg. Corp., No. 92-7029, 1994 WL 156723, at *8 (E.D.Pa. Apr. 28, 1994) (stating that § 1981 extends to the same broad range of employment actions and conditions as Title "VII); Toney, 784 F.Supp. at 1547 (stating that if § 1981(b) were applied retroactively, plaintiffs allegations of racial harassment and retaliatory discharge would state a cause of action under § 1981); Goldsmith v. City of Atmore, 782 F.Supp. 106, 106-08 (S.D.Ala.1992) (<HOLDING>). Accordingly, the Augat’s Motion for Partial Holdings: 0: holding that plaintiff is entitled to assert claim of retaliatory transfer under 1981 1: holding that a plaintiff who proves a cause of action under 1981 may recover punitive damages where the plaintiff is entitled to an award of compensatory damages even if nominal 2: holding that retaliatory discharge demotion or other adverse employment claims state a cause of action under 1981 3: holding that a plaintiff could not assert a 1981 claim based on gender discrimination 4: holding punitive damages available for retaliatory claim under flsa | [
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at night in an area, known for narcotics activity, 2) the manner in which McCray was standing with Bellflower, an individual who the police had previously encountered and who was believed to be involved in drug activity, and 3) McCray’s alleged unprovoked flight when the officers questioned him. Given the totality of the circumstances, the court is not persuaded by the Government’s arguments. The court will address these factors cited by the Government in turn. 1. The Area’s Reputation for Narcotics Activity and the Late Hour First, the court concludes that the area’s reputation for narcotics activity and the late hour of the evening are not objective factors that contribute to reason able suspicion within the context of this stop. See United States v. Carter, 1999 WL 1007044 at *4-5 (<HOLDING>). Although the reputation of an area for Holdings: 0: holding that an areas reputation for criminal activity alone cannot justify an investigatory stop 1: holding that circumstances created reasonable suspicion for investigatory stop 2: holding circumstances supporting reasonable suspicion for an investigatory stop of occupants of a van included that the van was located near the vicinity where officers had reports earlier that evening of breakins involving a van 3: holding that neither the areas reputation nor the late hour of the evening could be used to establish reasonable suspicion where a stop occurred near a hospital 4: holding that the areas propensity toward criminal activity is one factor to be considered in determining the existence of reasonable suspicion | [
"1",
"0",
"2",
"4",
"3"
] | [
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] |
recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 510.2(A); Fed.R.Civ. P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that: Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge Cir.1993) (stating that “[ojbjection to a magistrate’s report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (<HOLDING>). See generally United States v. Holdings: 0: recognizing de novo standard of review 1: holding that review of the construction of a sentencing statute is de novo 2: holding that appellant was enti tied to a de novo review however he was not entitled to a de novo review of an argument never raised 3: holding that we review constitutional challenges de novo 4: holding statutory interpretation is subject to de novo review | [
"3",
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"4",
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] | [
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not needed, and the district court agreed. As a result, the question of individualized suspicion was not fully developed before the district court, nor was Child given a full and fair opportunity to respond to the effect his prior misconduct might have on the individualized suspicion inquiry. See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (providing that our Supreme Court will not affirm a district court ruling on a ground not relied upon by the district court if reliance on the new ground would be unfair to appellant, and as part of this, the Court “on appeal ... will not assume the role of the trial court and delve into ... fact-dependent inquiries” (omissions in original) (alteration omitted)); State v. Wilson, 1998-NMCA-084, ¶ 17, 125 N.M. 390, 962 P.2d 636 (<HOLDING>). {23} We . 578, 136 P.3d 579 (recognizing that Holdings: 0: holding that appellate court in affirming trial courts decision may rely in part on a ground not presented to trial court 1: holding that our supreme court will not affirm on a factdependant ground not determined below 2: recognizing that unfairness precludes an appellate court from affirming on a factdependent ground not determined below 3: recognizing general rule that failure to raise nonjurisdietional issues below precludes appellate consideration of such issues 4: recognizing general rule that an appellate court cannot address claims that were not raised below | [
"1",
"3",
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] | [
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time thereafter, the parties engaged in settlement negotiations, both independently and with the assistance of the Court. The settlement negotiations were unsuccessful, and on August 29, 2017, the Court reserved decision. The Applicable Legal Standards The Summary Judgment Standard Federal Rule of Civil Procedure 56(c), made applicable to this adversary proceeding by Bankruptcy Rule 7056, provides that summary judgment is appropriate “if the movant shows that there is no genuine dispu that there is no genuine dispute as to a material fact as to each element of its claim. If it does not, then summary judgment will be denied. See Smith v. Goord, 2008 WL 902184, at *4 (N.D.N.Y. Mar. 31, 2008), aff'd, 375 Fed.Appx. 73 (2d Cir. 2010) (citing Anderson, 477 U.S. at 250 n.4, 106 S.Ct. 2505) (<HOLDING>)). Once the moving party satisfies its initial Holdings: 0: holding that when there are no genuine issues of material fact summary judgment is appropriate 1: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact 2: holding that the moving party for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial 3: holding that claimant moving for summary judgment on its claim must conclusively prove all the essential elements of the claim and that claimant has the burden to show that there are no genuine issues of material fact and that claimant is entitled to judgment as a matter of law 4: holding that summary judgment should be denied where the moving party does not show that there is no genuine dispute as to a material fact with respect to each essential element of the claim | [
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If this is all it took to admit evidence of other crimes, district courts would be reluctant to exclude evidence of dissimilar bank robberies in neighboring counties for weeks thereafter. Although we appreciate the fact that the legal standard for admitting reverse 404(b) evidence is relatively lenient, the evidence must still be relevant. Here, it was not. Even if the evidence involving the New Baden robbery should have been admitted, its exclusion was harmless in light of the overwhelming evidence presented by the government at trial. We employ the harmless error standard because the defendants preserved their objection on this issue when they challenged the government’s motion in limine. See Fed. R. Evid. 103; see also Wilson v. Williams, 182 F.3d 562, 563 (7th Cir.1999) (en banc) (<HOLDING>). This court will only reverse a defendant’s Holdings: 0: holding that an objection raised in a motion to suppress evidence preserves the issue for appeal despite the lack of further objection at trial 1: holding litigant preserves an issue on appeal where substance of the objection has been thoroughly explored during the hearing on the motion in limine 2: holding that a definitive ruling in limine preserves an issue for appellate review without the need for later objection 3: holding a contemporaneous objection is required to preserve an issue for appellate review 4: holding grant or denial of motion in limine is preliminary ruling and normally preserves nothing for appellate review | [
"3",
"4",
"0",
"1",
"2"
] | [
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] |
951, 415 N.E.2d 936, 940-941 (1980), cert, denied, 451 U.S. 987,101 S.Ct. 2323, 68 L.Ed.2d 845 (1981), held that a New York statute violated the federal constitutional right of privacy when applied to persons deciding to engage in “ ‘deviant’ [sexual] conduct, so long as the decisions are voluntarily made by adults in a noncommercial, private setting.” The New York court also held that the statute, by proscribing certain sexual conduct by persons not married to each other, but not prohibiting the same conduct by persons married to each other, violated the right to equal protection of the laws. 51 N.Y.2d at 492, 434 N.Y.S.2d at 953, 415 N.E.2d at 942-943. See, e.g., Post v. State, 715 P.2d 1105, 1107, 1109 (Okl.Crim.App.), cert, denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986) (<HOLDING>); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d Holdings: 0: recognizing private right of action 1: holding that a statute violated the federal constitutional right of privacy when applied to heterosexual nonviolent consensual activity between adults in private and pointing out that twentytwo states have decriminalized private consensual sodomy between adults 2: holding lawrences recognition of right of individuals to engage in fully and mutually consensual private sexual conduct does not affect a states legitimate interest to interpose when consent is in doubt 3: holding that a private right of action exists 4: recognizing that deemed consolidation is consensual | [
"3",
"4",
"0",
"2",
"1"
] | [
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forms the basis of Plaintiffs’ first claim. Defendants attack this claim on numerous fronts. They argue that no such right exists under Michigan law and that the claim is preempted by the First Amendment and by the Copyright Act. The Court will address each argument separately. 1. Right of Publicity Under Michigan Law Plaintiffs’ right of publicity claim is governed by state law. Parks v. LaFace Records, 329 F.3d 437, 459 (6th Cir.2003). Michigan has recognized a general right to publicity. See, e.g., Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 834 (6th Cir.1983) (suggesting that Michigan courts would adopt the right of publicity and noting that Michigan has recognized a right of privacy); Tobin v. Mich. Civil Serv. Comm’n, 416 Mich. 661, 331 N.W.2d 184, 189 (1982) (<HOLDING>). Michigan never has recognized, however, a Holdings: 0: holding that the defendants use of a models likeness in connection with the packaging and promotion of its hair care product violated the right of publicity 1: holding that lprs are entitled to the protection of the equal protection clause 2: recognizing protection against appropriation for the defendants advantage of the plaintiffs name or likeness 3: recognizing that the act of exploitation may itself imbue someones likeness with commercial value 4: holding that when a plaintiffs name and identity are used without intent to obtain a commercial advantage but where they are used for some other purpose the use is incidental and does not violate the right of publicity | [
"1",
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"0",
"3",
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and of his participation in administrative investigations. See id.; Cohen, 686 F.2d at 796 (stating that an employer’s awareness is essential to showing a causal link). Proximity in time is apparent on the record: the transfers of job duties and the sub-average performance rating all occurred during the pendency of the administrative complaints and investigations. This inference of a causal link is strengthened by the closeness in time between particular events. See B. Schlei & P. Grossman, supra, at 559 & n. 145 (2d ed. 1983). The first series of transfers of job duties between August 1979 and February 1980 began less than three months after he filed his first administrative complaint. See Hochstadt v. Worcester Found, for Experimental Biology, Inc., 425 F.Supp. 318, 324-25 (D.Mass.) (<HOLDING>), aff'd, 545 F.2d 222 (1st Cir.1976). The Holdings: 0: holding that party waived disqualification complaint by filing her motion six and onehalf months after learning of the potential conflict 1: holding that a six month delay was unreasonable 2: holding that the more than three month gap between the plaintiffs eeoc complaint and the allegedly adverse action was insufficient to show causation 3: holding that an employers knowledge of protected activity and the discharge of employees less than two months after negotiation of eeoc settlement agreements was sufficiently probative of a causal link to withstand summary judgment 4: holding that discharge six months after eeoc settlement and a month after an informal complaint satisfies causation requirement | [
"1",
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As stated in Heioleth-Packard, “A seller’s intent, unless embodied in an enforceable contract, does not create a limitation on the right of a purchaser to use, sell, or modify a patented product as long as a reconstruction of the patented combination is avoided.” 123 F.3d at 1453, 43 USPQ2d at 1658. We do not discern an enforceable restriction on the reuse of these cameras based on the package statements. These statements are instructions and warnings of risk, not mutual promises or a condition placed upon the sale. See id. at 1447-48, 1453, 123 F.3d 1445, 43 USPQ2d at 1652-53, 1657 (refusing implicit limit on modification of cartridges designed to be non-refillable and sold with instructions warning against reuse or refilling); Kendall Co., 85 F.3d at 1576, 38 USPQ2d at 1922 (<HOLDING>). These package instructions are not in the Holdings: 0: holding that failure to request jury instruction about manner in which evidence was obtained was not error and thus did not constitute ineffective assistance because defendant was not entitled to instruction 1: holding that instruction meant to ensure product safety and efficiency did not have contractual significance 2: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given 3: holding that plaintiffs may have a property interest in vested contractual rights 4: holding that the defendant trade association which did not manufacture sell distribute design test conduct safety research on or set standards for the product could not be held to have owed a duty to the plaintiff | [
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