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see also Scott Timber Co. v. United States, 333 F.3d 1358, 1366 (Fed.Cir.2003) (stating that courts apply “general rules of contract interpretation in cases where the United States is a party to the contract.”). C. Disposition Of The Government’s March 8, 2002 Motion For Summary Judgment. The May 1, 1997 Contract contains a standard integration clause that provides: This award consummates the contract, which consists of (a) the Government’s solicitation and your offer, and (b) this contract award. No further contractual documents is [sic] necessary. Def.App. at 2. Therefore, as a matter of law, the terms of the contract must be construed based on the language in the governing documents, not parol evidence. See McAbee Const., Inc. v. United States, 97 F.3d 1431, 1434 (Fed.Cir. 1996) (<HOLDING>); see also Restatement (Second) of Contracts § Holdings: 0: recognizing presumption 1: recognizing strong presumption against interlocutory appeals 2: recognizing this presumption 3: holding that where there is a strong presumption that the contract was a fully integrated agreement coupled with the consistency of the evidence surrounding its execution with that presumption the agreement was fully integrated 4: holding that the court may consider collateral evidence of the circumstances surrounding the execution of the agreement in determining whether the language of the agreement is unclear and if the evidence presented is so plain that no reasonable person could hold any way but one then the court may interpret the meaning as a matter of law | [
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earlier suicide attempt who claimed that physicians, nurses, and hospital negligently failed to prevent her jumping from second-story hospital room, and holding that issue whether plaintiffs leap from hospital room constituted superseding cause insulating defendants from liability properly . 46, 54-55, 86 A.2d 761 (1952) (affirming directed verdict for defendants and holding that even assuming school board’s negligence in failing to install guard over belt-drive mechanism of power jig saw, intervening act of classmate in throwing electric switch that started jig saw while plaintiff was cleaning it constituted superseding cause that broke chain of causation and insulated school board from liability); Glaser v. Hackensack Water Co., 49 N.J.Super. 591, 600-01, 141 A.2d 117 (App.Div.1958) (<HOLDING>). c As noted, the doctrine of superseding cause Holdings: 0: holding that water company whose employee entered plaintiffs garage without notice to read meter was insulated from liability by intervening act of plaintiff who became frightened for safety of infant daughter and injured herself while running down stairs to first floor to ascertain who had entered garage 1: holding that a notice of appeal is timely when filed before final judgment is entered by the district court 2: holding that the final judgment was entered without jurisdiction while a nonfinal appeal was still pending 3: holding that the judgment was entered without jurisdiction and was therefore a nullity 4: holding that a warrantless search of a garage that was part of the same building as the defendants living quarters violated the fourth amendment | [
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the significance and importance of the ability to poll the jury); State v. Behnke, 155 Wis.2d 796, 456 N.W.2d 610, 612 (1990). This does not mean, however, that Appellant was deprived of his Sixth Amendment right to counsel: even if Mr. Durst’s substitution for Mr. Mozenter failed to conform to the criminal procedural rules, it does not follow that a deprivation of counsel occurred, as Appellant was in fact represented by Mr. Durst when the jury returned to the courtroom and announced its verdict. Appellant does not allege that Mr. Durst was not a member in good standing of the Pennsylvania Bar, that a conflict of interest or some other defect prevented Mr. Durst from representing him, see Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178-79, 55 L.Ed.2d 426 (1978) (<HOLDING>), or that Mr. Durst was otherwise hindered from Holdings: 0: recognizing that the sixth amendment guarantees a defendant the right to counsel and the right to waive counsel 1: holding that the defendant was deprived of his sixth amendment right to counsel where appointed counsels representation presented a conflict of interest 2: holding that to demonstrate that a conflict of interest violated his sixth amendment rights a defendant must establish that an actual conflict of interest adversely affected his lawyers performance 3: holding that a criminal defendant has a sixth amendment right to counsel at trial 4: holding that the defendant validly waived right to conflictfree representation where the defendant knew a conflict existed its effect on his defense and his right to have other counsel appointed | [
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court’s order of June 18,1998. When “the evidence as to waiver is a written instrument, its construction and interpretation may be decided as a question of law.” Id. Because a determination of the waiver issues raised by the State does not depend on facts not presented below, but rests on the interpretation of written instruments and the law, we address the State’s arguments raised for the first time on appeal as a matter of law. Defendant’s Pleas of Guilty and No Contest {13} Although Defendant may have waived objections to defects in the proceedings that occurred up to the point of the guilty and no contest pleas, including any right to a speedy trial, he did not waive his objections to subsequent defects in the proceedings. See State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5 (1994) (<HOLDING>); see also Tollett v. Henderson, 411 U.S. 258, Holdings: 0: holding entry of guilty plea waives challenges to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea emphasis added 1: holding that in order to challenge the sufficiency of the evidence to support a judgment based on a plea of guilty or no contest a defendant must bring forward a full statement of facts including a transcription of the plea proceedings 2: holding that a voluntary guilty plea waives all nonjurisdictional defects in the proceedings 3: recognizing that a voluntary and understanding guilty plea entered without the benefit of a plea bargain waives all nonjurisdictional defects that occurred before the entry of the plea 4: holding voluntary plea of guilty or no contest waives objections to prior defects in the proceedings and also operates as a waiver of statutory or constitutional rights emphasis added | [
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working conditions; a racial discrimination claim alleging wrongful termination based on racial animus; and a claim alleging a racially hostile work environment. (See Doc. 1). “Because the legal standards governing each of these categories of claims are the same, it is unnecessary to evaluate separately the Title VII ... and the § 1981 causes of action.” Pears v. Mobile County, 645 F.Supp.2d 1062, 1089 (S.D.Ala.2009). Title VII prohibits an employer from discriminating against a person based on race. 42 U.S.C. § 2000e-2(a)(l). Likewise, 42 U.S.C. § 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (<HOLDING>). Section 1981 liability must be founded on Holdings: 0: holding with little discussion that section 1981 applies to private racial discrimination 1: holding that title vii proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites 2: holding that 1981 protects against discrimination based on ancestry 3: holding that section 1981 prohibits racial discrimination in private employment against whites as well as nonwhites 4: holding unequivocally that 1981 protects against racial discrimination in private employment | [
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nonrenewal in February 2012 and then merely elaborated on this reason in his response to the EEOC. See Elam, 601 F.3d at 881 (“While ‘[substantial changes over time in the employer’s proffered reason for its employment decision support a finding of pretext, this does not mean that an employer cannot elaborate on its proffered reason.’ ” (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 855 (8th Cir. 2005))). Rather, Eppard’s response to the EEOC, viewed in the light most favorable to Dunn, is a shift away from his alleged statement that Dunn’s nonrenewal was unrelated to his job performance, and the discrepancy between these two statements is substantial enough to indicate pretext and thereby avoid summary judgment. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1023 (8th Cir.1998) (<HOLDING>). Taken together, the affidavits from Dunn’s Holdings: 0: holding that plaintiff raised genuine fact issue com cerning pretext by presenting evidence that his employer initially told him that he was terminated because of poor performance but later claimed the termination was due to a lack of work 1: holding that evidence of pri or poor work performance was inadmissible propensity evidence under rule 404b 2: holding that the plaintiff had a right of privacy in the contents of a settlement agreement that stated that the plaintiff had sued his employer for failing to hire him because he was a single gay male and because his employer suspected that he had aids 3: holding after considering the plaintiffs evidence of pretext that the determination whether the plaintiffs speech was the motivating factor in his discharge turns on a genuine issue of material fact 4: holding that evidence of misconduct or a deficient work performance record precluded the plaintiff from establishing a genuine issue of material fact such that a reasonable juror could find for the plaintiff | [
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figure by calculating the amount that MN Supply would have earned had it invested the profits it lost from 1997 to 2002 at an eighteen percent rate of return. Trial Tr. at 809-10. It appears to us that this figure therefore represents “prejudgment interest” under Minnesota law. See ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn.Ct.App.1992) (interpreting expert’s “calculation of the time value of the losses, i.e., what the ZumBerges would have accrued in interest if they would have put the loss amount in the bank each year earning 10% interest” as “prejudgment interest” such that expert’s calculation should not have been considered by the jury); Security Prot. Servs., Ltd. v. Evenson, Nos. C4-92-556, C8-92-561, C6-92-1336, 1993 WL 14338, *3 (Minn.Ct.App. Jan.26, 1993) (<HOLDING>). We conclude that the District Court correctly Holdings: 0: holding that the proper measure of damages was the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed 1: holding that reinstatement was insufficient to remedy a wrongful suspension and that back pay must be awarded as the amount he would have received had he been retained in his job during that period less any amount he might have earned elsewhere 2: holding that experts calculation of amount which plaintiff would have earned had it invested all of the money that it sought as damages was evidence of prejudgment interest that should not have been considered by the jury 3: holding that regardless of insurers good faith denial of coverage plaintiff is entitled to recover interest to put it in position it would have been in if coverage had not been denied 4: holding that the otherwise harmless violation of the automatic stay did not suffice to deprive the irs of the postpetition interest setoff to which it would have been entitled had it first sought a lifting of the stay from the bankruptcy court | [
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is-not that the affidavit fails to “articulate ... the basis for [Brannan’s] belief’ or that it was merely “eonelusory.” Kelly, 21 F.3d at 1555. Rather, the court understands the Plaintiffs to be saying that Brannan intentionally falsified, or recklessly made, his affidavit so that it does, on its face, establish probable cause. Cases which have discussed the arguable probable cause standard have not been concerned with alleged lies by the affiant officer. In Lowe, for example, there was “no dispute as to the facts in the possession of [the defendant police officers] at the time of the issuance of the search warrants.” Id. at 1569. The question was whether those facts constituted arguable probable cause to pursue a warrant against the Plaintiffs. Id.; see also Swint, 51 F.3d at 996 (<HOLDING>). Plaintiffs have not even attempted to show Holdings: 0: holding that there was not arguable probable cause to conduct extensive searches on night club and its patrons where only evidence was of one patron selling drugs 1: holding that qualified immunity applies only if an officer had arguable probable cause to arrest 2: holding that search warrant for tavern and its bartender did not permit body searches of all bars patrons 3: holding that consent searches do not require probable cause to justify the search of a home 4: holding that detaining club patrons in handcuffs for three hours after subjecting them to strip searches and warrant checks was unlawful | [
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Ind. 249, 297 N.E.2d 425, 427 (1973). In this case the injury to Milledge's ankle is without explanation. It is thus classified as a neutral risk in that the cause of the injury is neither personal to Milledge nor distinctly associated with her employment. The injury would not have occurred but for the fact that the conditions and obligations of her employment placed Milledge in the parking lot where she was injured. In turn, The Oaks has not carried its burden of demonstrating that this unexplained accident, which precipitated the ankle injury, was the result of idiopathic causes. Milledge is thus entitled to compensation under the Indiana Worker's Compensation Act. This does not however end our analysis. Milledge sought worker's compensation not for her ankle injury alone, bu 000) (<HOLDING>); Workmen's Comp. Appeal Bd. v. Borough of Holdings: 0: holding that consent to search premises includes consent to search washing machine on those premises 1: holding that negligence in premises defect context generally means failure to use ordinary care to reduce or eliminate unreasonable risk of harm created by premises condition about which owner or occupier of land is aware 2: holding that arising from on premises accidentseven those which under other facts might present a neutral risk ie weather conditionsare compensable 3: holding that criminal conduct on premises was not foreseeable 4: holding that a release of such claims or other matters arising from the beginning of time to the date of execution of this agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreements execution | [
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afforded the plan’s administrator discretion in determining eligibility payments, and thus, an ar bitrary and capricious standard of review applied to the administrator’s decision to terminate benefit payments. Id. at 505. Likewise, in Donato v. Met. Life Ins. Co., 19 F.3d 375 (7th Cir.1994), the Seventh Circuit found that the language “upon receipt of proof’; “[a]ll proof must be satisfactory to us”; and “must describe the event, the nature and the extent of the cause for which a claim is mad rd of review applies. The fact that the plan’s language does not contain an explicit grant of discretionary authority to the plan’s administrator is irrelevant. Id.; Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust, 901 F.2d 1369, 1371 (7th Cir.1990) (<HOLDING>). Moreover, the Seventh Circuit has repeatedly Holdings: 0: holding that magic words conveying discretion are unnecessary 1: holding failure to exercise discretion is abuse of discretion 2: holding that a jury could find an intent to discriminate from evidence of use of code words such as all of you and one of them the words themselves are only relevant for what they reveal the intent of the speaker 3: recognizing that the court must give meaning to all the words in the claims 4: holding that if words of statute are unambiguous there is no room for judicial construction | [
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report promptly their complaints at prison or risk forfeiture of their claims will likely result in “a more efficient grievance procedure” and “lead to the improvement of prison conditions”). Moreover, inmates required to comply with the exhaustion requirement may realize that "monetary damages are unnecessary or that monetary damages would not fully compensate [them] for [their] injuries.” Sal-lee, at 771. 21 .This conclusion is reached, in part, upon review ol an affidavit filed by PRCC Institutional Ombudsman Bedwell and copies of plaintiff’s grievances. These documents go solely toward Couch's argument that plaintiff failed to exhaust his administrative remedies and are properly considered in evaluating Couch's 12(b)(1) motion. See Williams v. U.S., 50 F.3d 299, 304 (4th Cir.1995) (<HOLDING>). 22 . DOP 10-2.10 states that: [plrior to Holdings: 0: holding that a court may review any evidence such as affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction 1: holding that in a motion to dismiss for lack of subject matter jurisdiction a court may resolve disputed factual issues by reference to evidence outside the pleadings including affidavits 2: holding that a court may consider materials outside the pleadings to determine its jurisdiction 3: holding that in ruling on a rule 12b1 motion the court may consider exhibits outside the pleadings to resolve factual disputes regarding jurisdiction 4: holding that on a rule 12b1 motion challenging subjectmatter jurisdiction the court has authority to consider matters outside the pleadings | [
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also be liable for all injuries and property damage sustained by any person or domestic animal as a result of an attack by the dangerous dog. Id. § 2602(12). It is unclear why the Legislature provided for two definitions of one single term in two different subsections of the same statute. Nonetheless, ‘“[i]t is well established the [courts] should, if possible, construe statutes harmoniously.” V.I. Taxi Assoc. v. W. Indian Co., Ltd., 66 V.I. 473, 484 (V.I. 2017) (internal quotations omitted); see also Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (‘“A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.”) (internal citations omitted); Shumate v. Patterson, 943 F.2d 362, 365 (4th Cir. 1991) (<HOLDING>). Thus, all of the terms defined in section Holdings: 0: holding that statutes dealing with same subject matter should be construed with reference to each other as parts of one system 1: recognizing possible conflict between the cases 2: recognizing the rule that whenever possible statutes should be read in harmony and not in conflict with each other 3: recognizing the conflict 4: recognizing conflict | [
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that a plaintiff may ultimately lose his ease is not in itself a sufficient justification for the assessment of fees.” Id. at 986 (quoting Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980)). The district court declined to find the complaint “meritless for purposes of § 1988 fees.” R. 304 at 11. As we have made clear in the sanctions discussion above, this is not a case in which the attorneys and parties have filed clearly wasteful or frivolous papers. Nor have they conducted an insufficient legal and factual investigation before filing meritless claims. Therefore, the district court did not abuse its discretion in denying attorneys’ fees pursuant to § 1988. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (<HOLDING>); Munson v. Milwaukee Bd. of Sch. Directors, Holdings: 0: holding that a court may award attorneys fees in a successful lmrda action 1: holding a district court may in its discretion award attorneys fees upon a finding that plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith 2: holding that a finding of plaintiffs bad faith is not a prerequisite to the trial courts exercise of discretion to award fees 3: holding that courts may award prevailing title vii defendant attorney fees upon a finding that the plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith and fees also may be awarded if plaintiff continued to litigate after its action clearly became frivolous unreasonable or without foundation 4: holding that a district court may award attorneys fees while the merits are on appeal | [
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an expert voice identification analysis because his “decision on the trial strategy made that motion unnecessary.” He also testified that, to his knowledge, there was no local expert witness but that he "made the strategic choice before needing to attempt to locate an expert.” 7 . While none of our previous cases explicitly hold that a failure to investigate can be deficient only if such failure leads to the exclusion of admissible evidence, the underlying assumption in our prior cases is that an investigation would have resulted in, at the very least, admissible evidence. See, e.g., Moore v. Johnson, 194 F.3d at 604 (finding failure to investigate defendant's background and the facts underlying an "accidental shooting” theory was professionally unreasonable); Bryant, 28 F.3d at 1418 (<HOLDING>); Loyd, 977 F.2d at 157-59 (holding failure to Holdings: 0: holding that there was not deficient performance with regard to the failure to investigate the alibi defense claim because the available testimony provided at best an incomplete alibi as the testimony still allowed for a two to threehour window for the defendant to commit the murder 1: holding that the failure to recognize every possible legal argument did not render counsels performance constitutionally deficient 2: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense 3: holding counsels failure to investigate alibi witness and eyewitnesses to the crime amounted to constitutionally deficient performance 4: holding that counsels performance was deficient for failing to investigate readily available evidence of mental impairment | [
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the conduct of defendant’s business,” Tuxxedo Network, Inc. v. Hughes Communications Carrier Servs., Inc., 753 F.Supp. 514, 517 (S.D.N.Y.1990) (Cedarbaum, J.), satisfying the second prong of the test. Fitzpatrick avers that the services performed by excess line brokers are so important that if their services were not available Anglo would have to perform their role itself. Anglo argues that Anglo could not take over the tasks of excess line brokers because insurance brokerage and underwriting are completely different and because excess line insurance is rarely written without a broker. This dispute misses the point of the test, which is the importance of the agents’ services to the principal, not the feasibility of the principals’ performing the agents’ role. Gelfand, 385 F.2d at 121 (<HOLDING>) (emphasis added). The fact that excess line Holdings: 0: holding that test is whether services provided by new york representative are sufficiently important to the foreign corporation that if it did not have a representative to perform them the corporations owm officials would undertake to perform substantially similar services 1: holding that a financial guaranty payable in new york is a contract to perform services in new york subjecting foreign guarantor to jurisdiction under 302a1 2: holding that plaintiff who provided similar services which were arguably attendant care services under state law fell within the exemption 3: holding that a a representative plaintiff acts as fiduciary for the others requiring the representative to act in the best interest of class 4: holding that an architects violation of a licensing statute did not render the contract to perform architectural services void and unenforceable | [
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the poisonous tree. At the hearing in this matter, AUSA Norm Cairns acknowledged that the Tenth Circuit’s case law examining this question does not resolve the instant inquiry. See 2/3/11 Tr. of Proceedings at 70 (“[W]e hope to get some clarification from this Court, potentially from the Tenth Circuit, one way or the other.... [This] was something of a test case[J”). The Court has therefore looked beyond Tenth Circuit authority to out-of-circuit case law, as well as a district court opinion from elsewhere in this Circuit, for guidance. Whereas the Tenth Circuit has expressly held that identity evidence may be suppressed as fruit of the poisonous tree, other circuit courts have held precisely the opposite. See, e.g., United States v. Farias-Gonzalez, 556 F.3d 1181, 1182 (11th Cir.2009) (<HOLDING>); United States v. Garcia-Beltran, 443 F.3d Holdings: 0: holding that malicious prosecution claim accrues when underlying prosecution is terminated 1: holding probation revocation is not a stage of a criminal prosecution 2: holding that identityrelated evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is 3: holding that the due process clause is violated if the prosecution fails to disclose material evidence that is favorable to a criminal defendant 4: holding that some of the testimony is not being offered to prove the truth of the matter asserted and there fore is not hearsay | [
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where Board fails to provide adequate statement of reasons or bases, the Court is precluded from effectively reviewing the Board’s adjudication). B. Inadequate Notice With regard to his remaining claims, Mr. Coker seeks remand and argues on appeal that the Secretary failed to provide the notice required by 38 U.S.C. § 5103(a). In supplemental briefing, he asserts that the Secretary “never advised through a VCAA notice letter or otherwise on what evidence would be needed to substantiate any of the aforementioned claims.” Appellant’s Supplemental Brief at 2-3. In this instance, however, the Board found that Mr. Coker had received notice “through the issuance of [Statements of the [C]ase and [Supplemental [Sta , 2005); see also Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.1995) (<HOLDING>); Wilson v. Jotori Dredging, Inc., 999 F.2d Holdings: 0: holding that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error 1: holding that error will not be presumed from a silent record and that without the relevant transcript there is insufficient evidence to review the alleged error and the appellant carries the burden of demonstrating the alleged error in the record 2: holding that the appellant who comes to the court of appeals as the challenger of the underlying decision bears the burden of demonstrating the alleged error and the precise relief sought and where the appellant fails to meet this burden the court of appeals is not required to manufacture the appellants argument citing fed rapp p 28a and natl commodity barter assn v gibbs 886 f2d 1240 1244 10th cir1989 3: holding that an appellant bears the burden of demonstrating error on appeal 4: holding the appellant carries the burden of demonstrating error in the family courts findings of fact | [
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information from class counsel on the risks and potential value of the litigation;” the “contingency, novelty and difficulty” of the case; and “the skill shown by counsel”). “As always, when determining attorneys’ fees, the district court [is] guided by the fundamental principle that fee awards out of common funds be reasonable under the circumstances.” Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, *14 (N.D.Cal.2007), aff'd, 331 Fed.Appx. 452 (9th Cir.2009) (internal quotation marks and emphasis omitted). 1.The Result Obtained for the Class. “The result achieved is a significant factor to be considered in making a fee award.” In re Heritage Bond Litig., 2005 WL 1594403, *19 (C.D.Cal.2005); see Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983) (<HOLDING>). As the court previously found, the settlement Holdings: 0: holding that the most critical factor is the degree of success obtained 1: holding that the standard for permanent injunction is the same as that for preliminary injunction with the one exception being that the plaintiff must show actual success on the merits rather than likelihood of success 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 quantity of relief obtained as compared to what the plaintiff sought to achieve are key elements in determining the degree of success 4: recognizing that the third factor permanence is the most important | [
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identifying physical characteristic outside [the Fifth Amendment’s] protection.” Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). This is so because “[t]he handwriting itself (as opposed to the content of a written statement) is physical, not testimonial evidence.” United States v. McDougal, 137 F.3d 547, 559 (8th Cir.1998) (citing Gilbert, 388 U.S. at 266-67, 87 S.Ct. 1951). Thus, it is settled that a defendant in a criminal case may be compelled to furnish a handwriting exemplar and it is also settled that “introducing samples of the defendant’s handwriting at trial do[es] not violate the Fifth Amendment privilege against self-incrimination.” McDougal, 137 F.3d at 559. A prosecutor is likewise permitted to comment on, and indeed prese 10th Cir.1978) (<HOLDING>). Given these conclusions, it is now necessary Holdings: 0: recognizing that defendant had no right to withhold the requested exemplars 1: recognizing right to withhold lifesustaining treatment from a formerly competent adult in a permanent vegetative state 2: holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant 3: recognizing the right to counsel on appeal 4: holding defendant had no constitutional right to a mitigation specialist or a right to an effective one | [
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one-year period was interrupted from May 23, 1997, through December 14, 2006, due to the pendency of the first (1997) PCR application. See id. § 2244(d)(2). Unless some other tolling mechanism is in play, however, the one-year period expired on December 19, 2006 — more than eight months before the petitioner first sought federal habeas relief. In this venue, the petitioner argues that both his second PCR application and his Rule 35(a) motion constituted tolling mechanisms. If this argument is even partially correct (that is, if either of these filings served to toll the limitations period), the federal habeas petition would be timely. Accordingly, we inquire as to the effect of each filing. A. The 2005 PCR Application. Although the petitioner failed to mention the 2005 PCR applic 03) (<HOLDING>); Hodge v. Greiner, 269 F.3d 104, 107 (2d Holdings: 0: holding that an unauthorized motion for rehearing does not toll defendants time for filing a notice of appeal 1: holding that the timely filing of a motion to reopen or reconsider with the bia does not toll the time period for seeking appellate court review and that the mere act of filing the motion does not render nonfinal the underlying bia decision 2: holding filing of motion for reconsideration does not toll the 30day deadline for filing petition for review 3: holding that the filing of a motion for reconsideration does not toll the period for seeking judicial review of the underlying order 4: holding for the same reason that motion for appointment of counsel does not toll the period for filing a federal habeas petition | [
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his version of the incident. McCollough argues that removal of “allegedly” from his statement “conveyed a completely different meaning to the average person” in that the revised statement read as an admission by him that he hit a player with a ball. McCollough’s Brief in Response to Cross-Appeal at 10. [35] The parties’ arguments demonstrate quite clearly that there is a genuine issue of material fact as to the defamatory imputation of the altered statement that was published. The true implication of the statement necessarily requires consideration of extrinsic evidence by the trier of fact. [36] The Defendants also argue that the statement cannot be defamatory because it accurately states what occurred. See Gatto v. St. Richard School, Inc., 114, N.E.2d 914, 924 (Ind.Ct.App.2002) (<HOLDING>). They point to affidavits of witnesses who Holdings: 0: holding that truth is a complete defense to an action for libel 1: holding that probable cause is a complete defense to an action for false arrest 2: recognizing a criminal defendants right to present a complete defense 3: holding that truth is a complete defense to defamation 4: holding that insanity is a complete defense to the criminal charge | [
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entity from Masco because after the trial, La Gard merged with Masco and is now a division of Masco. Hence, we hold that standing was not, and is not, lacking on the part of either La Gard or Masco in this appeal. We, therefore, have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994), and Mas-Hamilton’s motion to dismiss for lack of jurisdiction is denied. II. Infringement A patent infringement analysis involves two steps. First, the court determines the scope and meaning of the asserted claims. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction is a question of law, reviewed non-deferentially on appeal. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (in banc) (<HOLDING>). Second, the properly construed claims are Holdings: 0: holding we review claim construction de novo on appeal 1: holding that we review constitutional challenges de novo 2: holding that we review issues of statutory interpretation de novo 3: holding that we review a district courts interpretation of a statute de novo 4: holding that review of the construction of a sentencing statute is de novo | [
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himself. To the extent VanHoesen sought new counsel because his third assigned attorney proposed to pursue an insanity defense, the request is properly reviewed in the context of defendant’s unwillingness to work with any of the three attorneys appointed for him. See United States v. Schmidt, 105 F.3d 82, 89 (2d Cir.1997) (rejecting defendant’s claim that “she was coerced into self-representation because the district court, on the eve of trial, refused to replace her third court-appointed attorney”). In sum, a court does not deprive a defendant of the Sixth Amendment right to counsel when it is the defendant himself who creates the conflicts that result in a breakdown of attorney-client communication. See generally Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (<HOLDING>). 3. Sufficiency of the Evidence Having failed Holdings: 0: holding that there is no due process right to appellate review 1: holding there is no meaningful distinction between due course and due process 2: recognizing that where there is no express attorneyclient relationship there may exist nevertheless a fiduciary obligation or an implied professional relation citations brackets and ellipsis omitted 3: holding that the information is not protected by attorneyclient privilege 4: holding that there is no right to a meaningful attorneyclient relationship | [
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72 S.Ct. 93, 96 L.Ed. 59 (1951)). In fact, the hotel staff had no authority even to enter Bass’s room, except for housekeeping purposes, unless (1) Bass himself consented or (2) his tenancy was terminated. United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987) (noting that when “a hotel guest’s rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room”); United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir.1986). In this case, Bass’s tenancy had not been terminated by eviction at the time the police searched his hotel room. Although the hotel manager testified that he personally considered Bass evicted once he had been arrested, the manager’s personal beliefs have no legal import. See Stoner, 376 U.S. at 490 (<HOLDING>). The manager informed no one at the time that Holdings: 0: holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures 1: holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts 2: holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures 3: recognizing that the constitutional protection against unreasonable searches and seizures would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel 4: holding the parolees signature on parole agreement is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures | [
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(7 Otto) 381, 385, 24 L.Ed. 1104 (1878). Keying on this distinction in the nature of the proceeding, Griffin argues that although forfeiture actions “may be civil in form, [they] are in their nature criminal.” One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 697, 85 S.Ct. 1246, 1249, 14 L.Ed.2d 170 (1965) (quoting Boyd v. United States, 116 U.S. 383, 6 5. Ct. 524, 29 L.Ed. 746 (1886)). Consequently, Griffin explains, even if section 881 is a civil remedy, its effect is quasi-criminal and proceedings brought pursuant to the section are therefore subject to the ex post facto clause. It is true that forfeiture statutes like section 881 have been considered criminal for certain purposes. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (<HOLDING>); Boyd v. United States, 116 U.S. 616, 6 S.Ct. Holdings: 0: holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures 1: holding that evidence obtained through unconstitutional searches and seizures is inadmissible in state court 2: holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts 3: holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures 4: holding that once a motor vehicle has been lawfully detained for a traffic violation the police officers may order the driver to get out of the vehicle without violating the fourth amendments proscription of unreasonable searches and seizures | [
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the PSLRA’s more rigorous standard. Plaintiffs’ allegations regarding Daou’s “pipeline” expectations, however, fail to satisfy the PSLRA’s requirements. The complaint alleges that Daou misrepre-_ sented its “pipeline” expectations, stating that its position was “extremely strong” and “remained healthy and would fuel future earnings growth,” that “visibility of future earnings was outstanding,” and that the company’s “momentum was increasing.” Although these projections might have been overly optimistic when made, they do not rise to the level of a material misrepresentation actionable after enactment of the PSLRA: Congress enacted the PSLRA to put an end to the practice of pleading “fraud by hindsight.” See e.g., Medhekar v. United States Dist. Ct., 99 F.3d 325, 328 (9th Cir.1996) (<HOLDING>). Silicon Graphics, 183 F.3d at 988. Under the Holdings: 0: holding that it was an abuse of discretion for the district court at the summary judgment stage to consider information from an affidavit based on inadmissible hearsay rather than the affiants personal knowledge 1: holding the defendant responsible for the greater of the actual or intended loss 2: holding that scienter had not adequately been pled where the plaintiffs provided none of the required facts underlying the complaints allegations as to the information that was supposedly available to the individual defendants 3: holding that there is a duty to defend if any of the complaints allegations fall within the risk covered by the policy 4: holding that congress intended for complaints under the pslra to stand or fall based on the actual knowledge of the plaintiffs rather than information produced by the defendants after the action has been filed | [
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why it answered the special verdict form in the way that it did. The difficulty in granting judgment as a matter of law is in determining whether the jury was engaged in “honestly and in good faith exonerating the servant and capriciously rendering a verdict against the master, or honestly and in good faith finding the servant guilty of [discrimination], but [] capriciously exonerating] him because of the financial ability of the employer to better pay the judgment.” Eckleberry v. Kaiser Found. N. Hosps., 226 Or. 616, 359 P.2d 1090, 1095 (1961). See also Freeman v. Chicago Park Dist., 189 F.3d 613, 615 (7th Cir.1999) (“There is no priority of one answer over another when the verdicts are inconsistent.”); Danner v. International Med. Mkt’g, Inc., 944 F.2d 791, 794 (10th Cir.1991) (<HOLDING>). We will not intrude on the province of the Holdings: 0: holding that the trial judge rather than the jury makes the determination of whether the defendant violated the implied consent law 1: holding new trial should not have been granted because jury was properly instructed 2: holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion 3: holding that trial judge should have granted new trial rather than judgment notwithstanding the verdict because the judge could not know in what order the jury reached its inconsistent verdicts 4: holding that where the meaning of the jurys verdict was not clear in light of the trial courts jury instructions the court of appeals erred in directing entry of judgment for respondent the case should have been remanded to the trial judge who was in the best position to pass upon the question of a new trial in light of the evidence his charge to the jury and the jurys verdict | [
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the petition was filed, however, the Commissioner mailed the taxpayer a second notice of transferee liability with respect to the same liability. See id. The taxpayer petitioned the Court with respect to the second notice. See id. The Court dismissed the second action, stating that the taxpayer had no right to file the second petition because former section 272(f) precluded the Commissioner from mailing the second notice as a valid notice. See id. at 988; cf. Kiker v. Commissioner, 218 F.2d 389, 393 (4th Cir. 1955) (stating that a second deficiency notice issued for a taxable year was not invalid under former section 272(f) because, among other reasons, it determined an additional deficiency on account of fraud); Rowan Cotton Mills Co. v. Commissioner, 140 F.2d 277 (4th Cir. 1944) (<HOLDING>), aff’g on this issue 1 T.C. 865 (1943). Later, Holdings: 0: holding that where notice of deficiency fails adequately to describe the basis on which the commissioner relies for his deficiency determination burden shifts to the commissioner to prove the accuracy of the deficiency determination 1: holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment 2: holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice 3: holding that a notice of deficiency was invalid where it was the second notice mailed for that year and the taxpayer timely petitioned the court as to the first notice 4: holding that former sec 272f does not require that the commissioner wait until the period for filing a petition as to a deficiency notice expires before issuing another deficiency notice as to the same taxable year | [
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which are identical to the requirements- of Paragraph B of Listing 12.08, and substantial evidence supports the ALJ’s conclusion that Turner did not meet those requirements. Compare 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07 with id. § 12.08. 3. Substantial evidence supports the ALJ’s determination of Turner’s RFC. The RFC was consistent with the opinion issued by State reviewing psychologist Dr. Heather Barrons, the only medical opinion in the record that addressed Turner’s workplace limitations. Though the ALJ failed to mention Dr. Barrons’ opinion in his decision, any error was harmless as the ALJ’s RFC finding was consistent with her opinion and not contradicted by the opinion of any treating or examining physician. Cf. Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (<HOLDING>); Reddick v. Chater, 157 F.3d 715, 725-27 (9th Holdings: 0: 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 1: holding that an alj may discount a treating physicians opinion where the physician has offered inconsistent opinions 2: 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 3: holding that the alj is free to reject the opinion of any physician when the evidence supports a contrary conclusion 4: holding that the alj erred by failing to mention the contrary opinion of a treating physician | [
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made clear that “[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.” United Public Workers v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947). Later, with the full development of Pickering cases into a discrete area of First Amendment law, the Supreme Court reinforced United Public Workers’s holding. In 1983, the Court ruled that a governmental employer is not required to “tolerate action which he reasonably believe[s] would” cause the harm against which the prophylactic measure is directed. Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 1693, 75 L.Ed.2d 708 (1983); see also Sanjour v. EPA, 984 F.2d 434, 440 (D.C.Cir.1993) (<HOLDING>) (internal quotation marks and brackets Holdings: 0: holding that it is not 1: holding that dismissal is proper for a derivative cause of action but not for a direct cause of action 2: recognizing cause of action 3: recognizing the cause of action 4: holding that employer is not required to tolerate action which it reasonably believed would cause harm | [
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with generally accepted accounting principles. 54 Fed. Reg. at 29,974. 4 19 C.F.R. § 177.10(c) appears to apply to rates of duty rather than appraisement issues. 5 Defendant’s Reply Brief did not clarify the Cheurón deference discussion in its brief-in-chief to note the refinement of Chevron found in the Supreme Court’s recent decision in Christensen. The government cannot pick and choose which Supreme Court cases it will follow. 6 Although the court concludes that TD 85-111 is not entitled to Chevron deference under a Christensen analysis, the court does not decide whether a similar policy promulgated through adjudication with the attendant procedural safeguards would warrant greater deference than that granted TD 85-111. Cf. INS v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999) (<HOLDING>) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, Holdings: 0: holding that where statute is ambiguous deference is appropriately accorded to agencys interpretation 1: holding regulations entitled to chevron deference 2: holding that in the absence of a statutory definition a term should be accorded its ordinary meaning 3: recognizing that board of immigration appeals should be accorded chevron deference as it gives ambiguous statutory terms concrete meaning through a process of casebycase adjudication 4: holding contract with ambiguous terms should not be dismissed on pleadings | [
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the interrogations lasted more than a few hours. Appellant was offered food by the police and told he was free to leave the station at any time on Friday. Also, the police made sure that Appellant was well rested and fresh before they interrogated him on Saturday. In addition, when the police told Appellant that the hair found in Teresa’s hand matched Appellant’s hair, they were communicating the information that they received from SLED. Even if the information were untrue, it is not, alone, enough to render the confession involuntary. See Von Dohlen, 471 S.E.2d at 695; State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980)(“A misrepresentation, while relevant, may be insufficient to render inadmissible an otherwise valid confession”); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996)(<HOLDING>). Since the initial confession was voluntary, Holdings: 0: 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 1: holding defendants confession was voluntary and admissible when police misrepresented to defendant that he had been seen with the victim the night she was murdered that his tires and shoe matched impressions found at the murder scene and that the police had dna evidence establishing defendants guilt 2: holding a defendant was entitled to a directed verdict when none of the evidence presented by the state placed the defendant at the crime scene and the jury was left to speculate as to the defendants guilt 3: holding that a police investigators lay opinion that the sole of the defendants athletic shoe matched a shoe print found on the center of the victims bedroom floor was permissible where the investigator had some experience in that area and was clearly testifying that the patterns matched which was not inconsistent with a crime lab report 4: holding that case involving evidence such as eyewitness testimony placing the defendant at the scene acknowledgment by the defendant of a dispute with the victim and theft of the victims purse and dna evidence suggesting that the defendant had engaged in sexual relations with the victim could not be deemed entirely circumstantial | [
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Section 1452 provides, in pertinent part, that “[a] party may remove a claim or cause of action to the district court for the district where such civil action is pending, if such district court has jurisdiction-of such claim or cause of action under section 1334 of this title.” Therefore, by its plain language, section 28 U.S.C. § 1452 differs from 28 U.S.C. § 1441(a) in that the former permits “a party” to remove a lawsuit to federal court while the latter permits removal by the “defendant or defendants” in the case. Accordingly, the Court finds that all of the Defendants to this action were not required to join in the notice of removal filed by Defendant American Security Insurance Company under 28 U.S.C. § 1452. See Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir.1985) (<HOLDING>). See also Daleske v. Fairfield Cmtys., Inc., Holdings: 0: holding that when a contract is signed by one party but not the other the manifestation of consent by the nonsigning party is sufficient to bind that party 1: holding that parties may consent to jurisdiction on noncore matters 2: recognizing that in a divorce action one partys limited partnership interest could not be assigned to the other party without the consent of the general partner 3: holding that in bankruptcyrelated matters any one party may remove the state court action without the consent of the other parties 4: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract | [
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jurisdiction over the supplemental state claims that plaintiff had also filed. Id. at 256. The court, citing 28 U.S.C. § 1367(c)(3), disagreed, stating, “[i]n a federal-question case, the termination of the foundational federal claim does not divest the district court of power to exercise supplemental jurisdiction but, rather, sets the stage for an exercise of the court’s informed discretion.” Id. at 256-257. Perhaps defendants mean to argue that the court must dismiss the pendent state claims because the federal claims have not only been determined to be without merit, but that they never were “substantial” within the constitutional sense in which that term was used in cases such as United Mine Workers v. Gibbs and Newman v. Burgin. Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991) (<HOLDING>), citing United Mine Workers v. Gibbs, 383 U.S. Holdings: 0: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit and the district court has considerable authority whether or not to exercise this power in light of such considerations as judicial economy convenience fairness to litigants and eomity 1: holding if the legislature had the power to confer upon the county commissioners jurisdiction to hear and determine the question as to whether or not a town was of undue extent and to deprive it of a part of its territory then the proceeding being statutory before a body of limited powers the record must show affirmatively that such a case was brought before them as they were authorized to hear and determine and that all the jurisdictional facts were found to exist where the jurisdiction and power to hear and determine depends upon the existence of a fact that fact must appear or the proceedings are coram non judice and void 2: holding that no substantial question of federal law was required to be answered to determine the plaintiffs statelaw legal malpractice negligence and breach of contract claims 3: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit 4: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power | [
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been dismissed, that a wife “cannot state a claim for loss of consortium due to any alleged violation of [her husband’s] civil rights under Section 1983” (citing. Niehus, 973 F.2d at 533-34)); McNabb v. City of Memphis, No. 03-2334 ML/P, 2004 WL 2384958, at *6 (W.D.Tenn. Mar.8, 2004) (dismissing wife’s loss-of-consortium claim “as [it] relates to the 42 U.S.C. § 1983 claim because a § 1983 claim is personal to the individual claiming injury,” without further discussion except to note that “[p]laintiffs concedefd] that [wife] may not recover for loss of consortium pursuant to § 1983”; however, because plaintiffs also brought state law claims, wife’s loss-of-consortium claim in connection with those was not dismissed); Hakken v. Washtenaw County, 901 F.Supp. 1245, 1255 (E.D.Mich.1995) (<HOLDING>); Jenkins v. Carruth, 583 F.Supp. 613, 616 Holdings: 0: recognizing cause of action for loss of consortium 1: holding without discussion that since the state tort claims are dismissed there can be no claim for loss of consortium 2: holding that a claim for loss of consortium cannot stand because there is no evidence of bodily injury sustained 3: holding that wifes recovery for loss of consortium should not be reduced by the proportion of negligence attributable to husband because claim for loss of consortium is independent of the damages claim of the injured spouse 4: recognizing loss of consortium claims | [
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defense of her Indian status, and should not be considered for any purpose on appeal. Even so, these offenses show nothing pertinent because, for all we know, they are not even Bruce’s and we have no way of knowing whether tribal jurisdiction was contested or conceded. 2 . United States v. Rogers, 45 U.S. 567, 4 How. 567, 11 L.Ed. 1105 (1846). 3 . See Keys, 103 F.3d at 761(stating that lack of enrollment of two-year old who had been treated as member of the tribe by the tribe and her parents does not control determination of her Indian status); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (upholding § 1153 indictment that charged defendant as an Indian against challenge that it was deficient for failing also to charge that he was enrolled as enrollment th Cir.1976) (<HOLDING>); United States v. Heath, 509 F.2d 16, 19 (9th Holdings: 0: holding that evidence of having filed an application for enrollment in the yurok tribe and previous entry on the pawnee tribal roll and the fact that defendants had held themselves out to be indians within the meaning of 1153 established indian status under 1153 1: holding that a tribe had the inherent authority to prosecute a nonmember indian for assaulting a tribal member while on the reservation and that federal assault charges stemming from the same incident and filed after the nonmembers tribal assault conviction were based on a separate power source and therefore did not violate the double jeopardy clause 2: holding that there was no constitutional problem because defendants were not subjected to federal criminal jurisdiction under 1153 on account of their indian race but because they are enrolled members of the coeur dalene tribe 3: holding that indian tribes could only exercise criminal jurisdiction over tribal members and not other indians 4: holding that alleged victim was nonindian given that she was not an enrolled member of the oglala sioux tribe or any other tribe and wasnt eligible for enrollment because she had not completed the requirements for tribal enrollment the medical services she had received from the indian health service were not in her own right the fact that the oglala sioux tribe had taken custody and placed the victim under the care of her grandmother an enrolled member was too insignificant an involvement to show tribal recognition as the victim was not enrolled or eligible for enrollment and she did not attend powwows indian dances or other indian cultural events and lived offreservation except for a brief period before she was abused | [
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The Kentucky Supreme Court quickly rejected this claim on direct appeal, stating that “[t]he trial judge determined that the trial strategy used by Bowling’s counsel had a better chance of success than any of which the trial judge could think in light of the strong evidence of guilt presented by the prosecution.” Bowling I, 873 S.W.2d at 180. This claim of ineffective assistance of counsel fails. First, it is not clear that Bowling has shown constitutional deficiency. The Supreme Court has emphasized that the focus of the Sixth Amendment is not on “the accused’s relationship with his lawyer,” but on “the adversarial process.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (quotation omitted); see also Dick v. Scroggy, 882 F.2d 192, 197 (6th Cir.1989) (<HOLDING>). Yet, the one-hour total consultation time Holdings: 0: holding that an order granting the media the right to interview a defendant in a capital murder case was unreviewable upon appeal in the criminal trial and therefore immediately appealable as a collateral order because the review on appeal would have been too late to cure any damage to the defendant from what was said in the interview 1: holding duration of stop was reasonable as it lasted under thirty minutes 2: holding that strickland was violated when the defendants counsel among many other deficiencies met with his client in a capital case for less than two hours 3: holding that reasonable cause did not justify reopening deportation proceedings when the alien appeared thirty minutes late for the hearing because the alien and his attorney crossed signals about where to meet 4: holding in a noncapital case that strickland was not violated when the defendants attorney did not interview the defendant until the night before trial and then for only thirty to fortyfive minutes | [
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Allocco v. Dow Jones & Co., Inc., No. 02 Civ. 1029(LMM), 2002 WL 1402084, at *6 (S.D.N.Y. Jun. 27, 2002) (internal citations omitted) (citing Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, 91 (1983)). New York law “implies a covenant of good faith and fair dealing, pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (internal quotation marks and citation omitted). Accordingly, there can be no covenant of good faith implied unless there is a contract between two parties upon which to imply it. See Broder v. Cablevision Sys. Corp., 418 F.3d 187, 198-99 (<HOLDING>) (internal quotations omitted). Here, the only Holdings: 0: holding that the implied covenant of good faith and fair dealing is limited to performance under a contract 1: recognizing the basic principle of contract law that the obligation of good faith is an implied condition in every contract 2: holding that the fine print terms at the bottom of an invoice imposing attorney fees were not terms upon which the parties agreed and therefore did not become part of the contract 3: recognizing implied covenant to market gas 4: holding that the implied covenant can only impose an obligation consistent with other mutually agreed upon terms in the contract | [
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is subject to general rules of evidence but is "generally inadmissible"). Justice WALLACE, JR., concurring and dissenting. In my view, the Court is not required to address the difficult issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home. Defendant did not raise that issue at his suppression hearing or before the Appellate Division. We have frequently “expressed our reluctance to decide issues that were not addressed in the trial court or the Appellate Division.” Gac v. Gac, 186 N.J. 535, 547, 897 A.2d 1018 (2006). Moreover, “[w]e have applied that principle even when a constitutional issue is presented.” Ibid. Although the majority opinion recognizes that the issue of the standard for a consent search 2d 793 (1990) (<HOLDING>); State v. Novembrino, 105 N.J. 95, 145-58, 519 Holdings: 0: holding state has burden of showing exception to prohibition against warrantless searches applies 1: holding tacit consent to search of person was insufficient to prove consent to search bags where bags were not in defendants actual possession defendant merely pointed out bags at officers request and officer never specifically asked for consent to search bags 2: holding that random searches of subway passengers carryon bags which include the visual inspection of the contents of such bags to be minimal 3: holding that there was no reasonable expectation of privacy in the contents of plastic garbage bags left on or at the side of a public street 4: holding warrantless searches of garbage bags left on curb for collection invalid under state constitution | [
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section 2000e-5(g)(2)(B). Even still, under a proper application of Farrar a court should grant attorney’s fees whenever a plaintiff has successfully established a violation of section 2000e-2(m) and obtained either declaratory or some limited form of injunctive relief. Thus, under Farrar the answer to the first question posed above remains the same because it will only be under the most unusual circumstances that a plaintiff will not be awarded either of these remedies. To be eligible to recover attorney’s fees under section 1988 (the statute at issue in Farrar) a party must be the “prevailing party.” In Farrar the Supreme Court first held that a plaintiff who recovers only nominal damages is in fact a prevailing party for purposes of section 1988. 506 U.S. at 114, 113 S.Ct. at 574 (<HOLDING>). The Court then went on to decide what amount Holdings: 0: holding jurys finding of liability on partys claim does not bestow prevailing party status when party received no relief on that claim 1: holding the prevailing party inquiry does not turn on the magnitude of the relief obtained in response to the question whether a nominal damages award is the sort of technical insignificant victory that cannot confer prevailing party status 2: holding that a plaintiff who obtained a preliminary injunction was a prevailing party because he obtained significant courtordered relief that accomplished one of the main purposes of his lawsuit 3: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 4: holding that the prevailing party inquiry does not turn on the magnitude of the relief obtained | [
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The mere fact that the accident occurred is not sufficient grounds for concluding that Mullins was probably negligent, and the doctrine of res ipsa loquitur is therefore inapplicable. See Drake, 924 P.2d at 1391. In his affidavit, Seligman asserts that the circumstances of the accident support an inference that Mullins may have fallen asleep at the wheel. However, Seligman’s opinion is insufficient to establish that “in the ordinary course of events, [the] injury would not [have] occur[red] except by the negligence of [Mullins].” Drake, 924 P.2d at 1391. Specifically, Seligman has not ruled out other possible causes of the accident and has therefore failed to establish a probability that the accident occurred as a result of Mullins’s negligence. See Mireles, 872 P.2d at 866 (<HOLDING>). Plaintiffs claim that the accident could only Holdings: 0: holding res ipsa loquitur inapplicable in case where both liability and causation had to be established by expert witnesses 1: holding that permitting jury to find malpractice from blood draw without expert testimony by applying the doctrine of res ipsa loquitur instead of eliciting expert testimony as to the standard of care to be reversible error 2: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 3: holding that the burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert and admissibility must be shown by a preponderance of the evidence 4: holding that while a foundation for an inference of negligence under the doctrine of res ipsa loquitur may be based on the testimony of an expert witness the experts testimony must establish that the occurrence indicates the probability of negligence | [
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However, we believe that the ALJ’s limited reliance on the PRFCA was harmless because it was not the sole basis for his conclusion. The ALJ also relied upon substantial objective medical evidence that contradicted the opinions of Drs. Pascual and Gates, Humphreys’ treating physicians. First, the objective diagnostic findings of record contradicted the treating physicians’ opinions. In particular, Humphreys completed an exercise stress test in June 2001, performing at a level of at least 10.1 METS. See Guides to the Evaluation of Permanent Impairments, 170-71 (American Medical Association, ed. 4th ed.1995) (explaining that patients who can exercise from 7 to 16 METS are classified as having no resulting limitations); see also Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990) (<HOLDING>). Notably, Humphreys was able to exercise for Holdings: 0: recognizing that in the usual case no information or evidence comes to light more than one year after imposition of sentence 1: holding that 101 mets is more than enough for the performance of light work 2: holding that more than notice to a defendant is required 3: holding an attorney does not have a duty to insure or guarantee that the most favorable outcome possible and because no amount of work can guarantee a favorable result attorneys would never know when the work they do is sufficiently more than adequate to be enough to protect not only their clients from error but themselves from liability 4: holding that the more transformative the new work the more likely the use of the old work is a fair one | [
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court clearly abused its discretion in denying Dillard’s motion to compel arbitration. Accordingly; without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order denying Dillard’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’s claims. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not. 1 . Cf. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 n. 2 (Tex.2003) (citing cases supporting the rule that “if a party retains the unilateral, unrestricted right to terminate the arbitration agreement, it is illusory."); Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388-89 (Tex.App.-Houston [14th Dist.] 1998, pet. dism’d w.o.j.) Holdings: 0: holding that an employee handbook did not constitute a valid unilateral contract between the employee and employer in the absence of adequate independent consideration 1: holding that an arbitration agreement in an employee handbook was illusory where the employer expressly reserved a right to unilaterally rescind any provisions of the handbook 2: holding that contractual relationship between student and university did not include terms of the handbook because university retained right to unilaterally modify terms of handbook without notice plaintiff neither negotiated for nor assented to terms of contract and relevant correspondence did not call special attention to handbook 3: holding that no modification of the original employment contract occurred when the employer unilaterally issued a new handbook 4: holding that an agreement to arbitrate is illusory if as here the employer can unilaterally modify the contract | [
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analysis applies when an aggravating circumstance is invalidated under McConnell. Accordingly, we conclude that the district court did not err by striking the felony aggravating circumstance, determining that the error was prejudicial given that it was the only aggravating circumstance found by the jury, and concluding that the appropriate remedy was a new penalty hearing. CONCLUSION For the reasons discussed above, we reject the State’s contention that McConnell was wrongly decided and conclude that a new penalty hearing is the proper remedy in cases where the sole aggravating circumstance has been struck. We therefore affirm the district court’s findings of fact, conclusions of law, and judgment. Gibbons, C. J., Douglas and Cherry, JJ., concur. 1 120 Nev. 1043, 102 P.3d 606 (2004) (<HOLDING>), rehearing denied, 121 Nev. 25, 107 P.3d 1287 Holdings: 0: holding that it is unconstitutional to base aggravating circumstance in capital prosecution on felony that was used to obtain firstdegree murder conviction 1: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 2: holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill 3: holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder 4: holding error is not harmless when the accused is convicted of firstdegree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused if the felony underlying the felony murder charge is based on a legally unsupportable theory | [
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to distribute electric power). Second, the Siewerts’ claims are based on “maintenance, operation or inspection.” Minn.Stat. § 541.051, subd. 1(d). The first negligence claim’s reference to “handling, supplying, distributing, selling and placing in the stream of commerce” can reasonably be construed as implicating the “operation” of the electrical system and its components. It falls under the excepti s sufficient to raise a triable issue. Minnesota courts have long rejected the argument that a plaintiff must establish a regulatory or statutory violation to establish a duty element. See Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 18 (Minn.1979) (explaining that industry cannot be permitted to set its own standard of care); Muehlhauser v. Erickson, 621 N.W.2d 24, 28 (Minn.App.2000) (<HOLDING>). Minnesota courts have also held that under Holdings: 0: holding that the jury need not be specifically instructed to find whether there is a connection between the defendant the weapon and the crime 1: holding that only one statutory basis is required to find a child in need of aid 2: holding in a securities fraud action that a court may only find the lack of materiality where a jury could not reasonably find materiality 3: holding that to find negligence jury need not find violation of federal motorcarrier regulation 4: holding that the grand jury need not find nonstatutory aggravating factors | [
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the nature and limits of the expert’s testimony. Richey, 498 F.3d at 362. Fautenberry’s counsel could not be faulted for not diagnosing Fautenberry’s mental impairments on their own, but once they decided to present a psychologist to the sentencing panel, they were under an obligation to understand the basics of their witness’s testimony. See Richey, 498 F.3d at 362-63; Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir.2000) (stating that counsel had “a responsibility to present meaningful mitigating evidence” when the court concluded that it was ineffective assistance of counsel when defense attorneys called a neurop-scyhologist who had falsified his credentials and whom counsel knew had previous ly done a laughable job at the first trial); Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir.1995) (<HOLDING>). Because they failed to grasp the basics of Holdings: 0: holding that it was not error to allow the government to introduce urinalysis laboratory results from a california laboratory through a probation officer who had not prepared the report and without live testimony from the laboratory technicians because the hearsay was reliable and the proposed testimony was of little value 1: holding that issuing judge may draw reasonable inferences from the material presented in the warrant application 2: holding that an attorney was ineffective for failing to pursue a voluntary intoxication defense because he did not understand the elements 3: holding that defense counsel was defective for failing to understand the laboratory tests performed and the inferences that one could logically draw from the results when challenging the states expert 4: recognizing that police officers can draw inferences from prior experience | [
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nolle prosequi, the trial court has broad discretion in making its findings regarding “good cause.” In striking the proper balance between the prosecution’s discretion to nolle prosequi an indictment and the Court’s power to prevent abuses of executive prerogative, courts have recognized that the prosecution is first and presumptively the best judge of where the public interest lies, and the trial court should not merely substitute its judgment for that of the prosecution. United States v. Hamm, 638 F.2d 823, 828 (5th Cir. 1981). Some courts have sought to further define the appropriate standard for making such decisions by recognizing that a court should defer to the prosecution’s request for nolle prosequi unless the prosecution is clearly wrong. Id., see Wallace, 848 F.2d at 1468 (<HOLDING>). Striking the proper balance in this area of Holdings: 0: holding not an abuse of discretion to deny funds 1: recognizing the public interest exception 2: recognizing courts discretion to deny dismissal if motion is prompted by considerations clearly contrary to public interest 3: holding that after siegel courts no longer have the discretion to deny amended exemptions based upon equitable considerations 4: holding it was not an abuse of discretion to deny funds | [
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agreement between Local 1812 and USIA, see Collective Bargaining Agreement (“CBA”), Article II, § 1 (noting that bargaining unit includes “[a]ll non-professional and professional non-supervisory domestic General Schedule (GS & GG) ... employees of USIA nationwide”, with exceptions not applicable to Suzal); cf. id., Article XVI, § 3(b)(2) (observing that Smith-Mundt appointees “shall be assigned to positions identified as pay plan GG”), and under the terms of that agreement he could pursue grievances through the negotiated procedure even though he was outside the protection of the civil service laws, see id., Article XXIII, § 2(a) (entitling “any employee” to file a grievance). If dissatisfied with the Voice of America’s disposition of his grievances 743 F.2d 895, 912-15 (D.C.Cir.1984) (<HOLDING>). But both of Suzal’s theories about why the Holdings: 0: holding that shortterm layoffs of seasonal employees in accordance with conditions agreed upon at the start of employment are not furloughs within the meaning of 7512 1: holding interest derived from shortterm notes is an integral part of lone stars business since the surplus finds are produced by that business the investments are shortterm liquid made with the intent that both the principal and interest are to be used in the regular course of the taxpayers trade or business 2: recognizing that in the absence of a statutory definition statutory terms are construed in accordance with their ordinary or natural meaning 3: holding that the complaint stated a claim under the flsa where it alleged that parties were an employer and employees within meaning of act and that the defendantemployers operation constitutes an enterprise engaged in commerce within the meaning of the act 4: holding that a state is not a person within the meaning of 1983 | [
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Gen. Laws § 21—28—4.01(c)(2)(iii). Based on this change, the Defendant argues that law enforcement officers should be precluded from considering the smell of marijuana when determining if reasonable suspicion exists. (Def.’s Mot. to Suppress 16-17.) The Defendant cites to a case from the Supreme Judicial Court of Massachusetts for support. (Id. at 19-20.) For starters, and to state the obvious, the decisions of the Supreme Judicial Court of Massachusetts do not bind this Court, particularly when there is a First Circuit case that is controlling on this issue. Moreover, the U.S. District Court for the District of Massachusetts declined to adopt the same rule as the state court, citing Staula. See United States v. Thompson, No. 12-10365, 2014 WL 108312, at *3 (D. Mass. Jan. 13, 2014) (<HOLDING>). Furthermore, although it too would not be Holdings: 0: holding that the odor of marijuana is still a relevant factor in the totality of the circumstances analysis 1: holding that the level of detail in testimony is a relevant factor in the totality of the circumstances test of credibility employed by immigration judges 2: holding that the government bears the burden of proving voluntary consent under the totality of the circumstances 3: holding reasonable suspicion is based on totality of circumstances 4: holding that the reasonableness inquiry is based upon the totality of the circumstances in determining whether or not a search was reasonable | [
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(noting as factors relevant to the showing “whether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises”). To meet the first part of the test with regard to items seized, the defendant must show by his conduct that he sought to preserve the items as private. Stallings, 28 F.3d at 60. Here, Defendant expressly disclaims having any ownership interest in the premises or the bag seized. As such, he lacks a sufficient privacy interest to support a motion to suppress the trash bag or the items located therein. See Pierson, 219 F.3d at 806; United States v. Sanders, 130 F.3d 1316, 1317-18 (8th Cir.1997) (<HOLDING>); accord United States v. Porter, 107 F.3d 582, Holdings: 0: holding that a dog sniff during a legitimate traffic stop does not constitute a search because there is no expectation of privacy in contraband and a dog sniff does not violate any privacy interest 1: holding that the driver of a borrowed car had the requisite legitimate expectation of privacy to support standing for fourth amendment purposes 2: holding that the owner of a shoulder bag located on the front seat of his girlfriends car had a legitimate expectation of privacy in the bag and its contents 3: holding that a car passenger had a legitimate expectation of privacy in his closed plastic shopping bag found on the floor of the car 4: holding that the defendants statements disclaiming ownership of bag constitute a surrender of any legitimate expectation of privacy | [
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identical to that at issue. Phila. Indem. Ins. Co. v. Chicago Title Ins. Co., 771 F.3d 391, 399 (7th Cir. 2014). 45 . Rood v. Commonwealth Land Title Ins. Co., 936 A.2d 488, 491 (Pa. Super. Ct. 2007) (internal citations omitted). 46 . In relatively recent unpublished decisions, the Pennsylvania Superior Court has interpreted the duty to defend in title insurance cases, without any suggestion of limiting the scope of the duty to defend either through the language of the policy or as a matter of Pennsylvania law. Stewart Title Guaranty Co. v. McClain, No. 3423 EDA 2014, 2016 WL 1436613 (Pa. Super. Ct. Apr. 12, 2016) (non-precedential); Dutch Run-Mays Draft, LLC v. Lawyers Title Ins. Corp., No. 2002 EDA 2012, 2013 WL 11250726, at *3 (Pa. Super. Ct. Nov. 13, 2013) (non-precedential) (<HOLDING>). The Court does not cite these Holdings: 0: holding that if there are multiple causes of action and one would potentially constitute a claim within the scope of the policys coverage the insurer would have a duty to defend until it could confine the claim to a recovery excluded from the policy internal quotation marks and citation omitted 1: holding that an insurers duty to defend pursuant to an insurance contract arises whenever the complaint filed by the injured party may potentially come within the policys coverage 2: holding that an insurer had no duty to defend in the absence of any cause of action amounting to a potentially covered offense under the insurance policy 3: holding that apprendi error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error internal quotation marks and citation omitted 4: holding that the insurer had no duty to defend the insured because the allegations of the initial complaint did not allege facts which would bring the case within the coverage of the title insurance policy | [
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of access in the context of criminal trials, see Richmond Newspapers, 448 U.S. 555, 100 S.Ct. 2814, the federal courts of appeals have widely agreed that it extends to civil proceedings and associated records and documents. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Autk, 684 F.3d 286, 305 (2d Cir.2011) (finding a right of access to administrative civil infraction hearings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984) (“We hold that the First Amendment does secure a right of access to civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (finding a right of access to litigation committee reports in shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.1983) (<HOLDING>). The California Supreme Court has also so Holdings: 0: holding that the first amendment limits judicial discretion to seal documents in a civil case 1: holding that the rigorous first amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case 2: holding that the first amendment right of access applies to a summary judgment motion in a civil case 3: recognizing that first amendment provides qualified right of access to judicial documents 4: holding that there is no first amendment or common law right of access to documents which played no role in a judicial decision | [
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stay is among the most basic of debtor protections under bankruptcy law.” Id. at 975; see also In re Steenstra, 280 B.R. 560, 566 (Bankr.D.Mass.2002). In re Weber, 283 B.R. 630, 633 (Bankr.D.Mass.2002). Section 362(a)(1) specifically bars “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under [the Code] ....” 11 U.S.C. § 362(a)(1) (emphasis supplied). The statute is clear. The stay applies only to the debtor and not to co-defendants. Austin v. Unarco Industries, Inc., 705 F.2d 1, 4 (1st Cir.1983) (<HOLDING>), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, Holdings: 0: holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached would be inconsistent with the underlying purpose of the automatic stay 1: holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay 2: holding judgment in violation of automatic stay void 3: holding that the automatic stay applies to the debt ors appeal of an order entered in action brought against the debtor in the lower court 4: holding that the protections of the automatic stay apply only to actions against the debtor | [
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of the evidence____” Section 3731 prior to amendment did not speak to the level of proof. However, the United States Court of Appeals for the Sixth Circuit in construing the False Claims Acts required that allegations in a civil action be proven by showing “specific intent to defraud” the United States by “clear, unequivocal, evidence.” United States v. Ekelman & Associates, Inc., 532 F.2d 545, 548 (6th Cir.1976); United States v. Ueber, 299 F.2d 310, 314-15 (6th Cir.1962). While federal appellate courts are yet to address the issue of retroactive application of the 1986 amendments to the False Claims Act, other federal district courts have reached differing conclusions on the issue. See United States ex rel. Boisvert v. FMC Corporation, No. 86020163 (N.D.Cal. September 9, 1987) (<HOLDING>); United States v. Bekhrad, 672 F.Supp. 1529 Holdings: 0: holding that only the amendments listed in lb110c may be applied retroactively using a 3582e2 motion 1: holding that the protect act amendments to the standard of review apply retroactively 2: holding generally that new rules of law should not be applied retroactively in habeas corpus cases 3: holding that only the amendments listed in lb110c may be applied retroactively using a 3582c2 motion 4: holding that the 1986 amendments may not be applied retroactively to cut off a defense which existed under the old law | [
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would support any theory of innocence. During his plea colloquy, he admitted to the factual basis for his plea, and he has never denied that hundreds of pornographic images of children were found on his personal computer and computer disks in his residence. A mere assertion of innocence is not sufficient to contradict the defendant’s sworn admission of guilt at a plea hearing. See United States v. Rasmussen, 642 F.2d 165, 166-69 (5th Cir.1981); see also Carr, 740 F.2d at 344 (noting that if an assertion of innocence were enough to withdraw a guilty plea, withdrawal would be an automatic right). Felice contends that if he could prove that his attorney was ineffective, he would be entitled to withdraw his plea. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (<HOLDING>). Felice alleged that his coun sel was Holdings: 0: holding that ineffective assistance can render a guilty plea involuntary 1: holding defendant cannot waive claims of an illegal sentence a sentence violating terms of plea agreement an unknowing and involuntary plea and ineffective assistance of counsel 2: holding that counsels failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance 3: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 4: holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims | [
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by the fact that her brother had a drug problem or had been charged with a crime. As to the former rationale, other white jurors had made the same claim and had not been excused; as to the latter, it is not clear from the record that it was this particular juror who stated that her brother had been arrested. The trial court overruled the objection. The Melbourne decision charged the courts with the duty to insure that race-based peremptory challenges do not render the jury selection process fundamentally unfair. The penalty for such an improper peremptory challenge is a new trial. In this case, however, the incomplete, unreconstructed, and unavailable record has impeded this court from the exercise of this important duty. Compare Rozier v. State, 669 So.2d 358 (Fla. 3d DCA 1996) (<HOLDING>), with Velez v. State, 645 So.2d 42 (Fla. 4th Holdings: 0: holding that trial minutes were not sufficient substitute for transcript of voir dire and could not afford meaningful review when both sides exercised peremptory challenges 1: holding that missing portions of transcript of voir dire did not entitle the defendant to a new trial for murder because the alleged errors in jury selection were harmless as a matter of law 2: holding that defendants have a right to be present at voir dire 3: holding that when the purpose of the request is to compare the testimony of jurors but no such comparison was made at the trial level a court need not provide a free voir dire transcript 4: holding that peremptory challenges may not be exercised in a discriminatory manner | [
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property at the time of his bankruptcy filing, which in that case was less than the $7500 homestead exemption. Id. at 115-116. To determine the value of the debtor’s equity, the court subtracted the amount of the other unavoidable liens from the fair market value of the property determined as of time of the bankruptcy filing. Id. at 116. Although the Third Circuit opinion did not expressly acknowledge what the result would be if the amount of the debtor’s equity exceeded the value of the $7500 homestead exemption, the Bankruptcy Court decision had recognized that the debtor could avoid the lien only to the lesser of the amount of the value of his equity or of the amount of his homestead exemption. 160 B.R. 524, 525-26 (Bankr.D.N.J.1993); see also In re Arevalo, supra, 142 B.R. at 115 (<HOLDING>); cf. In re Abrahimzadeh, 162 B.R. 676, 680 Holdings: 0: holding that a chapter 13 debtor had standing to avoid a judgment lien to the extent of her exemption amount but not the entire judgment lien 1: holding that debtor could not avoid a judicial lien where after accounting for unavoidable liens and mortgages he had no equity in the property and therefore no interest on which to avoid the judicial lien 2: holding that 522f1 requires a debtor to have possessed an interest to which a lien attached before it attached to avoid the fixing of the lien on that interest 3: holding that a state tax lien was not judicial lien arising from judgment such that it could be avoided in bankruptcy by a chapter 13 debtor 4: holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien | [
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the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service.” Perry v. State Civil Serv. Comm’n, 38 A.3d 942, 951 (Pa.Cmwlth.2011) (citations omitted) (quoting Pa. Bd. of Prob. & Parole v. State Civil Serv. Comm’n, 4 A.3d 1106, 1112 (Pa.Cmwlth.2010)). Here, the Chancellor ultimately found that the University suspended and subsequently discharged Fisler as a result of his poor job performance over an extended period of time following repeated warnings relating to his poor job performance. Continuing and regular poor job performance in the face of repeated warnings certainly meets the requirements for a just cause termination. See, e.g., Wei v. State Civil Serv. Comm’n, 961 A.2d 254, 259 (Pa.Cmwlth.2008) (<HOLDING>), appeal denied, 601 Pa. 705, 973 A.2d 1008 Holdings: 0: holding that an employee could not be bound to an arbitration agreement that had been mailed to him by his employer acceptance of which was indicated by employees continued tenure with the company where there was no evidence in the record that the employee had received read or understood the document 1: holding that an employees injury while on college grounds to report for first day of work before he reached either the administration building where he was to complete payroll forms or the athletic field house where he was to do the work was an injury suffered in the course of the employment 2: holding that employees insubordination and continued unsatisfactory work performance provided just cause for employees removal where employee failed to complete or make progress on the project given to him even though he was capable of doing such project was offered help on the project was relieved of certain duties in order to complete the project and had been reprimanded for not having completed the project 3: holding that a note delivered by an employees mother which stated that the employee was having a lot of pain in her side and would not be able to work that day and the mothers statement that the employee was sick were insufficient as a matter of law to inform the employer that the employees request to take time off was for a serious health condition within the meaning of the fmla 4: holding that employees performance was unsatisfactory in part because he was tardy on a regular basis | [
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King v. VeriFone Hldgs., Inc., 12 A.3d 1140, 1145 n. 24 (Del.2011) (citation omitted); Grimes, 673 A.2d at 1216. 41 . In re Oracle Corp. Deriv. Litig., 824 A.2d 917, 941 n. 62 (Del.Ch.2003). 42 . See N.Y. Stock Exchange, Listed Company Manual § 303A.02 (2013), http://nysemanual. nyse.com/lcm [hereinafter NYSE Rules] ("Independence Tests”). 43 . Byorum Dep. 11:17-21. 44 . Id. at 13:15-16, 88:20-23. 45 . Pis.' Br. in Opp’n 13-14; Byorum Dep. 56:6-60:3. 46 . Byorum Dep. 14:2-9. 47 . Id. at 20:15-20. 48 . Id. at 57:12-17, 60:22-61:4. 49 . Mat 59:14-20. 50 . Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1050-54 (Del.2004); see Byorum Dep. 19:4-6. 51 . Byorum Dep. 16:5-9. 52 . See, e.g., Crescent/Mach I P'rs, L.P. v. Turner, 846 A.2d 963, 980-81 (Del.Ch.2000) (<HOLDING>); State of Wisc. Inv. Bd. v. Bartlett, 2000 WL Holdings: 0: holding that there was a sufficiently direct relationship between restricting the defendants selfemployment as a roofer and his bank fraud conviction when the defendant used his roofing business to facilitate the fraud and after his initial sentence he failed to provide information about his business activities to his probation officer 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 the special relationship exception does not apply to the relationship between a student and a school 3: holding that an allegation that there was a longstanding 15year professional and personal relationship between the controlling stockholder and a director alone fails to raise a reasonable doubt that the director could not exercise his independent business judgment in approving the transaction 4: holding that defendant did not have a special responsibility to exercise independent judgment in the plaintiffs behalf and to look after the plaintiffs interests | [
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reads: The pledge of allegiance to the flag ... shall be rendered by students standing with the right hand over the heart. The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. 2 . See Circle Schools v. Pappert, 381 F.3d 172 (3d Cir.2004) (applying strict scrutiny to, and holding unconstitutional, a requirement that a parent must be notified if a child chooses not to say the pledge); Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir.1992) (<HOLDING>); Goetz v. Ansell, 477 F.2d 636, 637-38 (2d Holdings: 0: holding a regulation is contentneutral as long as it is justified without reference to the content of the regulated speech 1: holding that it may not 2: holding that mandamus is only available to confine an inferior comt to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so 3: holding that congress may impose its will on the states as long as it is acting within the powers granted by the constitution 4: holding that a school may have its classes recite the pledge so long as it does not compel pupils to espouse its content | [
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Court set forth the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Court held that a denial of benefits challenge under 29 U.S.C. § 1132(a)(1)(B) should be reviewed under a de novo standard unless the benefit plan grants the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone, 489 U.S. at 115, 109 S.Ct. 948. When a plan grants such authority, the abuse of discretion standard applies. Id. Thus, Raytheon argues, under Firestone, deference should be given to the administrator’s determination that Ms. Hogan wa , 174 F.3d 606, 611 (5th Cir.1999) (<HOLDING>). Moreover, we agree with the district court Holdings: 0: holding statutory interpretation is subject to de novo review 1: holding that we review issues of statutory interpretation de novo 2: recognizing that the standard of review for issues of statutory interpretation and construction is de novo 3: holding that the court should review de novo the administrators decision that a property settlement agreement constituted a qdro because it involves interpretation of a settlement agreement and statutory construction not interpretation of the plan 4: holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt | [
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practical and lawful meaning to their terms.” Id. (citing Whitley v. Royal Trails Property Owners’ Association, Inc., 910 So.2d 381 (Fla. 5th DCA 2005)). This Court finds that this observation militates more in favor of Plaintiffs legal position. This Court finds that the cases cited by Defendants are distinguishable because they involved parties to a contracts that attempted to terminate an agreement based on the other party’s alleged breach, unlike the situation in this case where the Defendants that breached are the parties attempting to terminate. See, e.g., Burger King Corp. v. Mason, 710 F.2d 1480, 1490 (11th Cir.1983) (finding some of franchisee’s breaches immaterial); Westcap Gov’t Secs., Inc. v. Homestead Air Force Base Fed. Credit Union, 697 F.2d 911, 913 (11th Cir.1983) (<HOLDING>). This Court agrees that facts of the cases Holdings: 0: holding that such information is not material under securities law 1: holding that in the absence of a termination provision an eight day late delivery of mortgagebacked securities was not so material that it entitled the buyer to terminate the contract 2: holding that where an oral contract was removed from the statute of frauds by clear and convincing evidence under arkansas law the defendant could not terminate the contract at its will only a contract of indefinite duration may be so terminated 3: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision 4: holding an arbitration clause contained in confirmations sent to buyer by seller was part of parties course of dealing and therefore part of the contract after buyer had repeated opportunities to object to the clause and had failed to do so | [
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Bay Boot-ery account. D. In or about July, 1995, Michael caused Thomas Lazarus of Federated Insurance Company to mail an approved estimate, authorizing the payment of over $27,000 for repairs to a late model Mercedes to Finish Line Too in Garden City Park. E. On or about July 10, 1995, Michael caused Federal Insurance Company to issue and send through the mail a check payable to Bristol Manor in the amount of $27,796.37 for repairs to a Mercedes Benz automobile. F. The defendants used or caused to used the mails on numerous other occasions, the precise dates of which are presently unknown. Compl. ¶ 87. Reviewing these allegations as a whole the Court finds that Zigman has sufficiently pled a single instance of mail fraud sufficient to support a RICO claim. See Altman, 48 F.3d at 103 (<HOLDING>). In paragraph A, Zigman alleges that the Holdings: 0: holding a defendant may be convicted of mail fraud if he knowingly and willfully participates in a fraudulent scheme created and set in motion by others 1: holding that the first element of mail fraud knowing participation in a scheme to defraud can extend beyond the specific mailing and that the loss calculation for a mail fraud conviction may include any loss from the fraudulent scheme that the mailing furthered 2: recognizing that where the looting is complete before the mailing is made a claim for mail fraud will not lie 3: recognizing that a mailing must be sufficiently related to the fraudulent scheme to support a charge of mail fraud 4: holding that mailing of titleregistration forms satisfied mailing requirement because they contributed to success of the scheme | [
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friendly or collusive lawsuits between family members.” Reid, 352 So.2d at 1173. Moreover, even if Florida did hot have a stated policy interest in allowing family member exclusions, the West court skipped the analysis of competing state interests when a clause in an out-of-state insurance contract explicitly conflicted with Pennsylvania policies and law. West, 807 A.2d at 920. Thus, the Court must next analyze the relevant contacts the states have with the underlying insurance contract. Florida’s contacts with the insurance policy outweigh Pennsylvania’s interest in the application of its law. See Hammersmith, 480 F.3d at 226-27. Mr. and Ms. Weber are residents of Florida, and so the “place of delivery” for the insurance benefits would also be in that state. Ryan, 619 F.Supp.2d at 138 (<HOLDING>). Furthermore, the insurance contract was Holdings: 0: holding that when determining the adequacy of a jury charge an appellate court should look to the record and the closing arguments to place the words of the judge in context 1: holding that in cases of a false conflict of law a court may apply the law of the forum state 2: holding that in determining whether a purchase is for nominal consideration the trial court must look to the reasonable value of the interest acquired 3: holding that circuit courts failure to apply statute according to its clear and unambiguous terms amounted to failure to apply clearly established law 4: recognizing that a court may look to the place where the failure to receive the expected benefits was felt in determining which law to apply | [
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her whole for the wrongs she suffered. As to her additional claims under Title VII, namely her sexual harassment and hostile work environment claims, it is unlikely this Court would be with jurisdiction to entertain them, as it appears that Figueroa has not exhausted her administrative remedies. The charges filed by Figueroa before the EEOC on November 3, 2008; August 10, 2008; September 16, 2010; and March 30, 2011 all contain a checkmark under retaliation, but none under discrimination based on sex. Thus, it appears that Figueroa’s Title VII claims of sexual harassment and hostile work environment have not been under the scrutiny of the EEOC; as such, allowing Figueroa to intervene with them would probably prove futile. See Morales-Vallellanes v. Potter, 339 F.3d 9, 18 (1st Cir.2003) (<HOLDING>); and United States v. Glens Falls Newspapers, Holdings: 0: recognizing ageplusgender discrimination claim when complaint brought claims under adea and title vii 1: holding that plaintiffs eeoc charge alleging sex discrimination did not encompass claim of sexual harassment subsequently asserted in title vii action in federal court because the facts underlying sexual harassment claim could not be inferred from the factual assertions made in the eeoc charge nor would they have been uncovered absent specific allegations to indicate such a cause of action existed 2: holding that plaintiff stated a discrimination claim despite not including a discrimination heading in eeoc complaint because the facts included in eeoc complaint were sufficient to trigger an investigation into whether plaintiff suffered an adverse action because of his religion 3: holding that the allegations in the complaint stated a cause of action under section 376313 4: holding that a title vii cause of action is limited to those discrimination allegations in the complaint that have been under the scrutiny of a formal eeoc complaint | [
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the afternoon “chopping wood and dismantling a fireplace” was inconsistent with the intoxication defense). Petitioner’s ability to speak intelligibly while allegedly intoxicated also contradicts his intoxication theory. Petitioner’s speech, even after he had consumed all the alcohol that he claims to have consumed, was understandable to both Eggleston and Detective Guevara, as Eggleston was able to repeat Petitioner’s words verbatim at trial, and Guevara testified that Petitioner had explained the details of being robbed by one male and one female on “the footbridge that goes across Little Patuxent Parkway from the waterfront towards the mall.” Such clear, detailed speech is inconsistent with the level of intoxication required to negate a specific intent. See Netter, 79 So.3d at 483 (<HOLDING>). Furthermore, Petitioner’s decision to wear a Holdings: 0: holding that evidence of an addiction does not warrant an instruction on involuntary intoxication 1: holding that in a criminal trial the trial court must correct or amend an improper instruction if the proper instruction is necessary for the jury to understand the case 2: holding that the evidence did not generate an intoxication instruction because among other things a witness testified that you could understand what the defendant was talking about 3: 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 4: holding prior testimony was admissible where the witness who first testified during a suppression hearing was murdered after he testified where the defendant was represented by counsel who had extensively crossexamined the witness | [
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Pro/E software in this case constituted a sale of goods, the first issue to be resolved is whether Massachusetts law allows parties to a contract for a sale of goods to contractually limit damages, and provide limitations periods on initiation of contractual claims. Under Massachusetts law, a contractual one year limitations period does not violate Massachusetts public policy, and is expressly permitted under the Massachusetts UCC. Mass. Gen. Law ch. 106 § 2-725; Hays v. Mobil Oil Corp., 930 F.2d 96, 100 (1st Cir.1991). Similarly, the Massachusetts UCC allows parties to a contract for the sale of goods to limit damages as long as such limitation would not be unconscionable. Mass. Gen. Law ch. 106 § 2-719. See also, PC COM, Inc. v. Proteon, Inc., 946 F.Supp. 1125, 1138 (S.D.N.Y.1996) (<HOLDING>). Similarly, Massachusetts law permits parties Holdings: 0: holding fee splitting provision of arbitration agreement unconscionable under california law 1: holding that tort law and the law of punitive damages are not controlled by the contract choice of law provision 2: holding that under massachusetts law contractual provision in computer goods sales contract limiting consequential damages was not unconscionable 3: holding arbitration provision of automobile installment sales agreement unconscionable 4: holding the class action waiver provision of cellular telephone service contract unconscionable | [
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a credit on any amount previously paid the employee pursuant to G.S. § 97-61.5. Further, the remaining provisions of G.S. § 97-61.5 providing for loss of other benefits “if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the Industrial Commission as provided in G.S. 97-61.7” must still apply. Under any other interpretation, a plaintiff whose lung impairment is due to silicosis or asbestosis, rather than another occupational lung disease, would be denied access to potential compensation provided by G.S. § 97-31(24), a result which appears to us to be patently unfair and possibly constitutionally infirm. See, e.g., Walters v. Blair, 120 N.C. App. 398, 462 S.E.2d 232 (1995) (<HOLDING>). By a separate assignment of error, plaintiff Holdings: 0: holding that phrase old ways is not evidence of adea agebased animus as such terms apply more to a persons state of mind than to a persons age 1: holding that a plaintiffs lack of knowledge regarding the number of affected persons does not bar class certification when defendant has the means to identify those persons at will 2: holding that svp defendants are not similarly situated to other civil detainees because persons subject to illinois svpa possess characteristics which set them apart from the greater class of persons who fall within illinois civil commitment statutes and such persons present different societal problems 3: holding that the trial courts authority to initiate workers compensation benefits before the final adjudication was not divested by the legislature and was consistent with the stated purpose of the workers compensation act 4: holding a workers compensation statute unconstitutional because it treats persons with asbestosis differently than persons with other occupational diseases and does so without any valid reason | [
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of coverage prevented an insured from taking steps to prevent a loss is sufficient to support a jury finding that the misrepresentation was a producing cause of damages.”). Nevertheless, Defendants insist that Plaintiffs claim must be dismissed because she does not allege that Walker provided any false Information — and, accordingly, that she does not adequately allege the second element of a negligent misrepresentation claim. (MTD at 22.) “[T]o prove negligent misrepresentation,” they claim, “a plaintiff must establish that the defendant gave false in formation”; “[misleading but not false information is insufficient....” (MTD at 22.) While at least one Texas court has agreed with Defendants’ contention, see Continental Savings Ass’n v. Collins, 814 S.W.2d 829, 833 (Tex.App.1991) (<HOLDING>), that court cited no precedent and relied Holdings: 0: holding negligent misrepresentation sufficient 1: holding that the furnishing of misleading information cannot support a claim for negligent misrepresentation the information must be false 2: holding that the essential element for determining whether or not a claim was a misrepresentation claim within the meaning of section 2680h was reliance by the plaintiff upon the false information 3: holding failure to disclose may constitute supplying false information to support negligent misrepresentation claim where such failure breaches a statutory duty 4: holding that a defamation claim cannot be sustained for truthful information in a credit report even if the information reported supports misleading inferences | [
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the permissible scope of detention for a routine traffic stop based on an equipment violation. We have held that a police officer may, during a routine traffic stop, “ask about the driver’s authority to operate the vehicle,” check the driver’s license and registration, and ask about travel plans. Holt, 264 F.3d at 1221. The officer may also ask a driver to remove an obstruction from a vehicle’s dashboard if the vehicle’s VIN is not otherwise visible from outside the car. Caro, 248 F.3d at 1245. However, we have generally required that further questioning by an officer of an investigative nature, including a request to search a vehicle, be legitimately related in its investigative purpose to the officer’s reasonable and articulable suspicion of criminal activity. See id. at 1246 (<HOLDING>); United States v. Doyle, 129 F.3d 1372, 1377 Holdings: 0: holding an officer could not ask for consent to search a cars passenger compartment for an additional vin when the vin on the dashboard was visible from outside the car 1: holding that an evidentiary basis for the search was lacking because gant was arrested for driving with a suspended license an offense for which police could not expect to find evidence in the passenger compartment of his car 2: holding that the presence of a gun in a cars passenger compartment supported the possibility that the cars trunk contained ammunition additional weapons andor other contraband 3: holding that although search of passenger compartment was legal search of trunk was not 4: holding that an officer clearly had probable cause to search the passenger compartment of the vehicle without a warrant based on the burning marijuana he smelled as he approached the car | [
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to lift the restitution lien. First, the Mandatory Victims Restitution Act (“MVRA”) requires full, not partial, restitution. 18 U.S.C. § 3663A, 3771(a)(6); United States v. Grice, 319 F.3d 1174, 1177 (9th Cir.2003) (per cu-riam). The district court does not have the authority to discharge a restitution obligation that is not fully satisfied. Here, the restitution obligation has not been fully satisfied. Moreover, a civil settlement in bankruptcy court does not discharge the criminal restitution obligation mandated by the MVRA. A bankruptcy settlement subsequent to the imposition of restitution in criminal court does not waive the requirement of restitution. See United States v. Edwards, 595 F.3d 1004, 1014 (9th Cir. 2010); see also United States v. Cloud, 872 F.2d 846 (9th Cir.l989) (<HOLDING>). This is so because restitution serves penal Holdings: 0: holding that because the state was not a party to a settlement agreement a civil release of claims does not and cannot specifically preclude courtordered restitution in a criminal case 1: holding that the existence of a prior bankruptcy settlement does not preclude a subsequent criminal restitution order 2: holding that a district court may order restitution despite a settlement agreement 3: holding that equitable restitution is available but that legal restitution is not 4: holding that the dismissal of a civil action in state court does not preclude a restitution order on the same claim | [
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Budget chose a federal forum for a declaration under Hawaii law. In balancing the relevant factors under such circumstances, “[t]his kind of forum shopping could be avoided by requiring district courts to inquire into the availability of state court proceedings to resolve all issues without federal intervention.” Id. Here, we cannot determine from the present record if the district court considered whether Budget could have filed an action for indemnification, or for a declaration under Hawaii law, either on the date this federal action was filed, or on the date the district court decided the merits of the novel state issues presented in the complaint. We are not certain that the district court “came up with the right answer” when it decided the merits. See Golden Eagle, 95 F.3d at 812 (<HOLDING>). Therefore, the district court’s failure to Holdings: 0: holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed 1: holding that the district courts error in exercising jurisdiction was harmless error because the court properly applied the relevant state law to the undisputed material facts and came up with the right answer 2: holding that even if the district court erred in sustaining the objection the error was harmless because the witness answered the question in the negative and the court did not strike his answer 3: recognizing that where material facts are undisputed the court only decides the application of relevant law 4: holding that the district courts error in calculating the amount of drugs at issue was harmless because the error had no impact on the defendants sentence | [
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behavior was consistent with methamphetamine use, his subjective belief — that defendant’s methamphetamine use provided a sufficient basis for concluding that she presently possessed methamphetamine — was not objectively reasonable. Although “‘reasonable suspicion’ is a relatively low barrier[,]” State v. Jones, 245 Or App 186, 192, 263 P3d 344 (2011), and “[c]ertainty about the significance of particular facts is not required for a police officer to hold a reasonable belief that they indicate criminal conduct,” State v. Briggs, 229 Or App 660, 666, 212 P3d 1276 (2009), evidence of methamphetamine use, without more, does not give rise to reasonable suspicion that defendant presently possesses more methamphetamine. Cf. State v. Lavender, 93 Or App 361, 364, 762 P2d 1027 (1988) (<HOLDING>); State v. Morton, 151 Or App 734, 739, 951 P2d Holdings: 0: holding police officer had probable cause to believe defendant was operating a motor vehicle under the influence of alcohol 1: holding inter alia that experienced officers observations that the defendant was under the influence of either methamphetamine or cocaine did not by itself establish probable cause to believe that the defendant had committed a crime 2: holding among other things that the officers observations that the defendant was under the influence of a controlled substance without more did not establish probable cause to believe that the defendant had committed a crime 3: holding that where other evidence established probable cause to believe that the defendant possessed controlled substances investigating officers had probable cause to search the defendants purse for similar evidence 4: holding that the purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it | [
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“Aside from considerations of race, religion or constitutionally protected conduct, none of which appear to be involved here, a public employee still assumes the risk, as far as the Constitution is concerned of being discharged for personal or political reasons.” 285 F.Supp. at 662. More importantly, there was a clear holding of the Pennsylvania Supreme Court that affirmed the legality of such patronage firings. In 1971, Pennsylvania transportation workers sought to challenge the dismissals they anticipated under a forthcoming change of administration. AFSCME v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971). Plaintiffs contended that they “should be entitled to notice and a hearing before discharge, and that political affiliation is not a proper or lawful basis or ground for discharge.” ) (<HOLDING>) , as well as in the strong dissents to the Holdings: 0: holding that a case is moot when the parties lack a legally cognizable interest in the outcome 1: holding claim is not cognizable 2: holding claim is cognizable 3: holding a claim for patronage dismissal was legally cognizable 4: holding that claims for negligent mortgage servicing are not legally cognizable under alabama law | [
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remedies before filing their petitions. A court of appeals “may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.” 49 U.S.C. § 46110(a); see also Sierra Club v. Skinner, 885 F.2d 591 (9th Cir.1989). We have suggested before that an attempt to exhaust remedies may be a reasonable ground for delay. See Watson v. Nat’l Transp. Safety Bd., 513 F.2d 1081, 1082 (9th Cir.1975) (“Even if we assume that the sixty day statute of limitations ... [is] tolled ... when [petitioner] erroneously filed his petition with the NTSB, the filing was yet several years overdue.”). The Eighth Circuit has explicitly recognized exhaustion as a reasonable ground under § 46110(a). See Reder v. FAA, 116 F.3d 1261, 1263 (8th Cir.1997) (<HOLDING>). Crediting the lapse of time necessary for Holdings: 0: holding there is no statutory requirement that a taxpayer exhaust administrative remedies before filing a complaint in the tax court 1: holding that an unsuccessful attempt to exhaust administrative remedies was a reasonable ground for not filing an appeal by the sixtieth day 2: holding that a plaintiff need not exhaust his administrative remedies to bring a retaliation claim 3: holding that federal prisoners need not exhaust their administrative remedies before filing suit in federal court 4: holding an inmate must exhaust all available administrative remedies before filing suit and if exhaustion was not completed at the time of filing dismissal is mandatory | [
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the encounter and proceed on his or her way. T16 Due to the factors discussed above, we find that Hansen remained seized for Fourth Amendment purposes when, and because, Officer Huntington asked him whether there was alcohol, drugs, or weapons in the vehicle. Likewise Hansen was seized for Fourth Amendment purposes when Officer Huntington requested consent to search the car. The State concedes that Officer Huntington did not have a reasonable articulable suspicion of more serious eriminal activity to justify the investigative questions. Therefore, Hansen was illegally detained when Officer Huntington asked him questions that were not reasonably related in scope to the traffic violation which justified the initial sei-zare. See United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991) (<HOLDING>). II. Voluntariness of Consent {17 We now turn Holdings: 0: holding that an officers single unrelated question regarding weapons that took only seconds did not unreasonably extend traffic stop 1: holding that defendant was unreasonably seized under fourth amendment when officer detained him to ask questions unrelated in scope to the reasons that justified the initial traffic stop 2: holding that a traffic stop is reasonable under the fourth amendment when police have probable cause to believe a traffic infraction has occurred 3: holding that passengers of automobiles that are pulled over by a police officer for a traffic stop are seized under the fourth amendment 4: holding that a traffic stop is valid under the fourth amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring | [
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ACCA sentence was still appropriate, relying in part on Taste’s three Massachusetts “larceny from the person” convictions, it agreed to resentencing in light of Simmons. Accordingly, the district court, accepting the magistrate judge’s recommendation, granted the § 2255 motion as to Taste’s Simmons claim, vacated the judgment, and ordered resentencing. At resentencing in July 2014, the district court concluded that Taste’s prior Massachusetts convictions for larceny from the person were violent felonies for purposes of the ACCA, and again applied the enhanced sentence of 180 months’ imprisonment. The district court imposed the same conditions of supervised release as it did at the first sentencing, including the following special condition: The defendant shall subm (1st Cir.2005) (<HOLDING>). Next, Taste argues the district court erred Holdings: 0: holding that any error was harmless and thus not plain error 1: holding district courts erroneous delegation of authority to probation officer to determine maximum number of drug tests to be administered was not structural error and therefore did not constitute plain error 2: holding that because of unsettled case law district courts error was not obvious and therefore not plain 3: holding error was structural because of the difficulty of assessing the effect of the error 4: holding any improper delegation did not rise to level of plain error | [
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fail to cite this controlling authority. In this case, although Mahabir had yet to filé her appeal when the Superior Court ruled on the attorney’s fees motions, the time to appeal had not expired since the Superior Court did not rule on Mahabir’s motion for reconsideration until March 24, 2014, giving the parties until April 23, 2014, to file a notice of appeal. V.I.S.Ct.R. 5(a)(4) (“the time for filing the notice of appeal for all parties is extended until 30 days after entry of an order disposing of the last” post-judgment motion, except that “[a] motion for attorney’s fees shall not affect the running of the time for appeal”). Therefore, the litigation remained ongoing when the Superior Court ruled on both motions for attorney’s fees. Bryan v. Fawkes, 61 V.I. 416, 448 (V.I. 2014) (<HOLDING>); see also Johnson v. McCaughtry, 265 F.3d 559, Holdings: 0: holding that under the circumstances of that case an argument made for the first time in a motion for rehearing was waived 1: holding that a case remained pending where the time to file a rehearing petition had not expired 2: holding that dismissing a habeas petition as timebarred under the aedpa does not violate the suspension clause because petitioner had years to file the petition and gave no explanation why he failed to file on time 3: holding that a coram nobis petition remained pending until the court of appeals denied petitioners application for leave to appeal the appellate divisions denial of his petition 4: recognizing that aedpa would not apply to a habeas petition that was pending at the time of its enactment | [
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lab in 1988, but that “the plaintiffs classified status terminated when the legislature [in the 1994 amendments] made all positions of the lab limited appointment positions subject to the approval of the Commission.” The motion justice further ruled that, after the 1994 amendments, “as a matter of law, plaintiff had no constitutionally protected interest [as a limited-appointment, crime-lab employee] * * * to which due-process protections attached.” She based this conclusion on her belief that the 1994 amendments had stripped Wilkinson of his classified full-status employment at the crime lab because the 1994 crime-lab amendments were a specific-effect statute that superseded the general, earlier-enacted provisions of the merit system. See Casey v. Sundlun, 615 A.2d 481, 483 (R.I.1992) (<HOLDING>). This Court “reviews the granting of a summary Holdings: 0: recognizing the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern 1: holding that when two statutes are in conflict the more recent and specific statute should prevail so as to repeal the earlier general statute 2: holding that a general statute is superseded by a more recent specific statute only if the two statutes are in conflict 3: recognizing that a specific statute controls over a general one 4: holding that gl1956 43326 embodies a policy of statutory construction that requires courts to give precedence to a specific statute over a general statute when the two are in conflict | [
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conelusory allegations, such as “I was coerced,” and the “sufficient facts” required under Powell. Because Felice’s motion relies on conelusory allegations which find no support in the record, he did not provide “sufficient facts which, if proven, would justify relief’ from his earlier guilty plea. Accordingly, the district court acted within its discretion in denying the motion to withdraw without holding a hearing. Felice points to his assertion of innocence to support the withdrawal of his plea. As to his claim of innocence, Felice has made only a bare assertion that he “did nothing wrong.” He points to no facts t e because he did not consider evidence provided by Felice and because he refused to speak to witnesses. See Washington v. Watkins, 655 F.2d 1346, 1363-64 (5th Cir.1981) (<HOLDING>). Felice’s motion did not identify the Holdings: 0: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 1: holding that where movant alleged the names of uncalled witnesses and them anticipated testimony which would have been relevant mitigation evidence in the penalty phase but did not allege that trial counsel knew of the witnesses or that the witnesses were available to testify at trial the movant was not entitled to an evidentiary hearing on his postconviction relief motion because he did not allege facts sufficient to satisfy the standard applicable to his claim 2: recognizing that ineffective assistance claims based on uncalled witnesses require a heavy showing by the petitioner because the court is forced to make a hypothetical determination of how an uncalled witness may have testified 3: holding that the prosecutors explanation of a defendants subpoena power was a fair reply to defense counsel questioning the absence of testimony from certain witnesses but going a step further to claim uncalled witnesses would bolster the states case exceeded the boundaries of a fair reply 4: holding that counsels failure to impeach a witness by showing bias was ineffective assistance | [
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on appeal, and that determination that this Court will consider. 1. There is no direct evidence of pretext. The Ninth Circuit has clarified the type of evidence that will enable a retaliation claim to proceed beyond the summary judgment stage. It held that “[w]hen the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (1998). Direct evidence of discriminatory animus has been recognized by several circuits as “evidence which, if believed, proves the fact without inference or presumption.” Davis v. Chevron, 14 F.3d 1082, 1085 (5th Cir.1994); see also Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir.2010) (<HOLDING>); Godwin, 150 F.3d at 1222 (finding direct Holdings: 0: holding that direct evidence by definition is evidence that does not require an inferential leap between fact and conclusion 1: 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 2: holding that evidence that would normally be admissible may be excluded if the evidence was a direct or indirect product of an unlawful search 3: holding that a prisoners allegations that a corrections officer retaliated against the prisoner for the prisoners report charging the officer with misconduct properly stated a claim for retaliation noting that aji allegation of retaliation should not be ignored simply because the charge was later dismissed 4: holding that direct evidence of retaliation is lacking where the evidence if believed would not require the conclusion that defendant unlawfully retaliated against plaintiff emphasis in original | [
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compel arbitration in a forum outside the Northern District of Illinois.” Ferenc v. Brenner, 927 F.Supp.2d 537, 542 (N.D.Ill.2013) (citing Merrill Lynch, 49 F.3d at 327). Normally, when arbitration is dictated, a court compels arbitration in that district and stays the court proceeding. 9 U.S.C. § 3 (“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration ... the court in which such suit is pending ... shall on application of one of the parties stay the trial of the action until such arbitration has been had .... ”). But when a court is presented with a motion to compel arbitration in a different district, the proper action is to dismiss the complaint for improper venue under Rule 12(b)(3). See Ferenc, 927 F.Supp.2d at 542 (<HOLDING>); Faulkenberg, 637 F.3d at 808 (“under § 4 of Holdings: 0: recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement 1: holding that trial court properly denied motion to compel arbitration of claims for fraud and unfair and deceptive trade practices because arbitration clause in agreement only applied to indemnification claims and there were no other arbitration clauses in agreement 2: holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived 3: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration 4: holding that claims were subject to arbitration and converting the motion to compel into a motion to dismiss for improper venue because the contract mandated arbitration in california | [
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contract, negligence, and breach of fiduciary duties based on PNE defendants’ conduct in canceling the fire insurance. The arbitrator in Case II dismissed all claims of plaintiffs and defendants’, including plaintiffs claim against PNE Media for “the cancellation of the insurance policy and the failure to notify plaintiff of the cancellation.” .It is well settled that under principles of res judicata a final judgment is conclusive “not only as to all matters actually litigated and determined, but also as to matters which could properly have been litigated and determined in the former action. . . .” Fickley v. Greystone Enters., 140 N.C. App. 258, 260, 536 S.E.2d 331, 333 (2000) (citations omitted); See, e.g., Holly Farm Foods, Inc. v. Kuykendall, 114 N.C. App. 412, 442 S.E.2d 94 (1994) (<HOLDING>) (emphasis added). “The procedural history of Holdings: 0: holding that res judicata applies when the question of jurisdiction is raised and determined 1: holding res judicata precluded landlord from bringing second action for damages of unpaid future rents after a final judgment determined tenants damages arising out of the breach of lease in landlords first action 2: holding second action barred by res judicata because plaintiff asserted identical claims and jurisdictional grounds as the first action 3: holding subsequent action not barred by res judicata because the thing sued for in the initial action was an injunction against heathrows threatened breach of contract while the thing sued for in the subsequent action was money damages allegedly sustained as a result of heathrows actual breach of contract where the damages alleged in the subsequent action unlike the damages alleged here arose after trial of the initial action 4: holding that res judicata did not apply where a trial courts order was not a final judgment | [
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does not apply so as to preclude a new evidentiary hearing on the enhancement issue, we have still found no basis in the record to conclude the initial hearing on this issue was inadequate. The State has pointed to no error in the district court proceeding that would entitle the State to a new hearing, nor does the record reveal any other matter that hindered the prosecution’s ability to amend the trial information prior to that hearing in order to rely on other prior convictions. In sum, the State had a full and fair opportunity to support its accusation that the defendant was a habitual offender, but its evidence was insufficient. In view of these circumstances, the prosecution is not entitled to a second bite of the apple to remedy its failure of proof. Cf. Woody, 613 N.W.2d at 218 (<HOLDING>); M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., Holdings: 0: holding that addition of charge for crime committed while the defendant was released on bail did not discharge suretys obligation to produce the defendant on original charge 1: holding that in conjunction an information with a narrow charge and an abstract of judgment indicating that a defendant pled guilty to that charge prove the precise elements of the offense to which the defendant pled guilty 2: holding state was stuck with unenhanced conviction on reduced charge to which defendant pled guilty and prosecution could not reinstate original charge upon remand the state should bear the consequences of a decision that was based on the states wrong assumption that the habitualoffender statute applied 3: holding that jurys failure to address first degree murder charge amounted to a verdict of not guilty on that charge 4: holding circuit court had subject matter jurisdiction to accept a guilty plea where defendant was not indicted for the charge to which he pled guilty but signed a sentencing sheet which established defendant was notified of the charge to which he pled guilty | [
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884 So.2d 950 (Fla. 4th DCA 2004)(<HOLDING>). Affirmed. Conflict Holdings: 0: holding that it is sufficient grounds to revoke a probation if only one condition of the probation is broken 1: holding that probation does not constitute a sentence 2: holding that probation and suspension of sentence may not be revoked based solely on a violation or criminal offense that was committed before the offender was actually placed on probation 3: holding that probation is a sentence for habitualization purposes 4: holding that upon revocation of probation a court must grant credit for time served on probation and community control towards any newly imposed term of imprisonment and probation so that the total period of control probation and imprisonment does not exceed the statutory maximum | [
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member, should be separated from the decision on the class action claim, and resolved by the Administration, but guided by this Court’s decision on the merits of the class claim. Any declaratory or injunctive relief granted will thus differentiate between the class-wide claim and the individual claims. The advantages to class-wide resolution of issues such as the one presented here are apparent when noting that three other district courts have decided against the Administration in individual actions by children such as the Andres, and the Commissioner has continued denying such claims. See Agee v. Sullivan, 1991 WL 193636 (N.DAla. Mar. 29, 1991) (citing McAninch and holding that the largest payment possible should be given to the child); McAninch v. Bowen, 693 F.Supp. 353 (W.D.Pa.1988) (<HOLDING>); see also Reinkraut v. Shalala, 854 F.Supp. Holdings: 0: holding that congress did not intend to prevent children from voluntarily terminating entitlement to benefits under the account of one disabled parent in order to apply on the account of the other disabled parent 1: holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case 2: holding that an employer did not regard the plaintiff as disabled 3: holding that employees requests for accommodation were not protected activity because the evidence did not show that he had a reasonable good faith belief that he was disabled or perceived as disabled 4: holding that when an employer takes steps to accommodate an employees restrictions it is not thereby conceding that the employee is disabled under the ada or that it regards the employee as disabled | [
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consistently asked his attorneys to forgo any defense based on insanity or diminished capacity, even in the face of overwhelming evidence of his guilt and the consequent unavailability of any other effective defense. Woodland’s attorneys argue that his refusal to heed their sound legal advice is convincing proof of his inability to consult with counsel and, thus, his incompetence. We disagree. That the accused has the right to control the nature of his or her defense is well established. See State v. Wood, 648 P.2d 71, 91 (Utah 1982); see also Utah Const, art. I, § 12; Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975) (identifying defendant’s 6th Amendment right to conduct his defense); State v. Penderville, 2 Utah 2d 281, 272 P.2d 195,199 (1954) (<HOLDING>). In Wood, for example, this court held that Holdings: 0: holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second 1: recognizing a criminal defendants right to present a complete defense 2: holding that district court did not abuse discretion in declining to order new competency hearing based on defendants obstinate belligerent and obsessive behavior obsession with his own theories of defense distrust of his attorneys or desire to represent himself at trial 3: recognizing defendants right under utah constitution to control his defense and represent himself 4: recognizing exception under state constitution | [
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Dr. Callahan to present evidence of successful lumbar fusion surgeries involving pedicle screws performed by him and possibly to present his own calculation of how many pedicle screws he had properly placed in the past. Thus, the danger of unfair prejudice, confusion of issues, misleading the jury, and potential undue delay substantially outweighed the limited legitimate probative value of the other acts evidence. Several courts have excluded evidence similar to that which Plaintiffs sought to introduce. See Lai v. Sagle, 373 Md. 306, 818 A.2d 237, 247 (2003) (noting that “[t]he fact of prior litigation has little, if any, relevance to whether [defendant] violated the applicable standard of care in the immediate case.”); Laughridge v. Moss, 163 Ga.App. 427, 294 S.E.2d 672, 674 (1982) (<HOLDING>); Cerniglia v. French, 816 So.2d 319, 322-25 Holdings: 0: holding that evidence of prior similar acts was not proof of medical malpractice or whether the doctor lacked the proper degree of knowledge or skill 1: holding that trial court did not err in refusing instruction that would have directed jurors not to consider specific acts of negligence in determining medical centers liability 2: holding prior bad acts evidence is admissible where there is an articulation or identification of the consequential fact to which the proffered evidence of other acts is directed 3: holding that the trial court did not err in disallowing evidence of alleged previous act of medical malpractice against defendant noting that the general rule in a suit for negligence is that evidence of similar acts or omissions on other and different occasions is not admissible 4: holding that trial court did not err | [
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record, we conclude that the defendant was not aware of the consequences of his plea and that he was misled or harmed by the lack of admonishment. Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App.2002). In this context, “harm” means that “appellant probably would not have pleaded guilty but for the failure to admonish.” Id. at 638 n. 14. Reversal is only warranted if “the error may have had a ‘substantial influence’ on the outcome of the proceeding.” Webb v. State, 156 S.W.3d 653, 655 (Tex.App.-Dallas 2005, pet. ref'd). We may assume from the trial court’s statements on the record that, had it been aware that the sentence imposed exceeded the plea agreement, it would have modified the sentence to reflect a $2,000 fine. See State v. Aguilera, 165 S.W.3d 695, 698 (Tex.Crim.App.2005) (<HOLDING>). Such a modification would have rendered any Holdings: 0: holding that offenses sentenced on the same day by the same judge are not related under the guidelines 1: holding that there was no coercion by the trial court where the jury deliberated all day friday and all day saturday 2: holding that a telephone request to the court for a continuance the day before the trial was to start was a nullity 3: holding that trial court may modify sentence on the same day as the assessment of the initial sentence and before the court adjourns for the day 4: holding notice unreasonable where it was served the afternoon of the day before the presentation of the petition to the court | [
"2",
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attorney] procured the indictment. See Ray, 561 S.W.2d at 481. The record also shows that appellant used this same argument in requesting his motion in arrest of judgment. But in Ray, the Court of Criminal Appeals held that the appellant failed to meet his burden of showing a violation of the sanctity of the grand jury proceedings because the evidence showed that no one other than grand jurors were present during the grand jury’s voting or deliberations. See id. Therefore, ... the trial court did not abuse its discretion by refusing to grant a hearing on this motion because appellant did not argue that [the district attorney] was present during the grand jury’s vote or deliberations. See id. Id. at *7; see also Walter v. State, 209 S.W.3d 722, 737, 739-40 (Tex. App.—Tex-arkana 2006) (<HOLDING>), rev’d. on other grounds, 267 S.W.3d 883 (Tex. Holdings: 0: holding that right was available in grand jury proceedings 1: holding that under california law tjestifying before a grand jury charged with investigating corruption is one part of an officers job and therefore any speech huppert gave during his grand jury testimony was pursuant to his duties as a police officer 2: holding that the defendants were not denied their right to be present during the peremptory strike phase of jury selection where they were present during voir dire had a chance to confer with counsel before the jury was impaneled and were present in the courtroom when the peremptory strikes were given actual effect by the clerks reading off the list 3: holding that the state violated a statute by allowing the presence of nonwitness police officers during grand jury proceedings but concluding that because those officers were not present during deliberations the indictments were not void 4: holding that the government is not required to present exculpatory evidence to the grand jury | [
"1",
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This appeal is dismissed for lack of jurisdiction. Oden v. Northern Marianas College, 440 F.3d 1085, 1090-91 (9th Cir.2006) (<HOLDING>). APPEAL DISMISSED. ** This disposition is not Holdings: 0: holding that this court lacks jurisdiction to review claims that have not been raised before the bia 1: holding that this court does not have jurisdiction over plaintiffs claims because the court may review neither criminal matters nor the decisions of district courts 2: holding court of appeals lacks jurisdiction over the governments prosecutorial discretion decisions 3: holding that this court lacks jurisdiction over appeals from decisions of the supreme court of the commonwealth of the northern mariana islands which were not completed before may 1 2004 4: holding that the court of appeals lacks the authority to overrule decisions of the supreme court of north carolina and has a responsibility to follow those decisions until otherwise ordered by the supreme court | [
"4",
"1",
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"3"
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of that status, not cases adjudicating alleged violations of an alien's substantive due process rights during detention. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (concluding that temporary parole in United States while alien's admissibility was being determined did not entitle alien to benefit of statute giving Attorney General authority to withhold deportation of any alien "within the United States” if alien would thereby be subjected to physical persecution); Menon v. Esperdy, 413 F.2d 644, 647 (2d Cir.1969) (noting that “since a parole does not constitute an admission into the United States ... th[e] appeal involve[d] an exclusion ... rather than an expulsion”); Dong Wing Ott v. Shaughnessy, 247 F.2d 769, 770 (2d Cir.1957) (per curiam) (<HOLDING>), cert. denied, 357 U.S. 925, 78 S.Ct. 1368, 2 Holdings: 0: holding that parole survives deportation 1: holding that the attorney generals discretionary power to suspend deportation did not apply to aliens within the country on parole because parole by statute was not to be regarded as an admission of the alien citation and internal quotation marks omitted 2: holding that a statute must be construed so that no part of the statute is rendered surplusage or superfluous internal quotation marks and citation omitted 3: holding that deportation does not extinguish term of parole 4: holding a parole rule equivalent to a statute | [
"2",
"3",
"4",
"0",
"1"
] | [
"1"
] |
Choice policy” refers to an insurance policy issued by Medica to Randall. 2 . Although Patch and Syring were covered by separate PHP policies, the policy language at issue in this case was identical in each PHP policy. 3 . Allen v. United States, 668 F.Supp. 1242, 1247 (W.D.Wis.1987) (interpreting a federal statute that only allowed subrogation when there was tort liability); Arizona Property & Cas. Ins. Guar. Fund v. Herder, 156 Ariz. 203, 208-09, 751 P.2d 519, 524 (1988) (interpreting "persons or organizations who may be legally responsible” for bodily injuries in limit-of-liability clause involving "amounts otherwise payable for damages” to include only parties who were responsible for the infliction of the injuries); Employers Health, 161 Wis.2d at 945-47, 469 N.W.2d at 175-76 (<HOLDING>); Hamed v. County of Milwaukee, 108 Wis.2d 257, Holdings: 0: holding that a clause providing that the insurer has a right to recover damages from a responsible third party referred to a tortfeasor because the use of damages in bodily injury cases means pecuniary compensation resulting from an unlawful or negligent act by a wrongdoer 1: recognizing that compensation from a collateral source indepen dent of the wrongdoer will not reduce the damages recoverable from the wrongdoer 2: holding that pecuniary damages are not property damages under insureds policy 3: holding no right to recover for economic loss resulting from defendants injury to a third party with whom plaintiff has contractual business relationship 4: holding that the right to recover a particular measure of damages in a workers compensation case is fixed as of the date of injury | [
"2",
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the amended complaint fails to sufficiently plead scienter. In opposition, the plaintiffs contend that the amended complaint sufficiently alleges that the defendants manipulated MSC’s reserves in order to meet predetermined earnings targets. The plaintiffs also assert that the amended complaint adequately pleads scienter. II. DISCUSSION A. The Standard of Review In a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court should dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996); I. Meyer Pincus & Assocs. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) (<HOLDING>). The issue to consider is not whether a Holdings: 0: holding that dismissal is inappropriate unless it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations 1: holding that a pro se complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief 2: holding that a court may dismiss a claim under 12b6 only if it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations accepted as true do not present a claim upon which relief legally can be obtained 3: holding that rule 12b1 insubstantiality dismissal is appropriate if based on the judges disbelief of a complaints factual allegations whereas a rule 12b6 dismissal is appropriate where while operating under the assumption that all or a set of facts in the complaint are true without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations 4: holding that dismissal is proper only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief | [
"4",
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] | [
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not constitute a dangerous condition. The undisputed evidence establishes that, on the date of the accident, southbound drivers at the limit line of the railroad crossing had an unobstructed view of the tracks to the northwest despite the configuration of the intersection. Thus, there was no substantial risk of injury to drivers using due care while crossing the railroad tracks. See Cal. Gov’t Code § 830(a) (“ ‘Dangerous condition’ means a condition of property that creates a substantial ... risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”); id. § 830.2 (defining non-dangerous condition); see also, e.g., Chowdhury v. City of L.A., 38 Cal.App.4th 1187, 45 Cal. Rptr.2d 657, 661-63 (1995) (<HOLDING>). Appellants’ expert declarations do not raise Holdings: 0: holding that condition included an intended if dangerous cycling of a traffic light 1: holding that police officers are entitled to conduct an investigatory stop of a motorist if they have reasonable suspicion that the motorist has committed a traffic violation 2: holding that an intersection with inoperative traffic signals due to a power outage was not a dangerous condition as a matter of law because the city could not be charged with foreseeing that a motorist using due care would speed through the intersection without heed to inoperative traffic signals 3: holding that the public entity was not required to modify or improve intersection based on changing use 4: holding that an improper traffic control device may create a dangerous condition for which the governments immunity from liability is waived | [
"3",
"1",
"0",
"4",
"2"
] | [
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contest, Johnson’s motion to intervene is not precluded by the three-month statutory period contained in Indiana Code section 29-1-7-18. Therefore, we reverse and remand with instructions that Johnson et al be named as a plaintiff in this will contest. Reversed and remanded for proceedings consistent with this opinion. DARDEN, J., and KIRSCH, J., concur. 1 . Morgan also maintains that because Johnson did not address the issue of whether the trial court properly dismissed her Interve-nor’s Complaint as untimely, it is waived. Because this issue is intricately linked with whether Johnson should have been named as a plaintiff to the proceeding rather than a defendant under Indiana Code section 29-1-17-7, we address it. 2 . But see Smith v. Mitchell, 841 N.E.2d 215, 217 (Ind.Ct.App.2006) Holdings: 0: holding that service of summons was insufficient to confer personal jurisdiction over defendant city where a copy of the summons and complaint was delivered to a person other than an official named in rule 4j5 1: holding that the trial court had continuing jurisdiction over all subsequent custody orders once the trial court acquired jurisdiction 2: holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons 3: holding that the information must establish that the court has jurisdiction over both the subject matter and the parties 4: holding that the trial court never acquired jurisdiction over the will contest due to sisters failure to tender a proper summons to interested parties | [
"2",
"1",
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reads in pertinent part as follows: The at e and district court that Rule 11 does not govern state courts. See Miles v. Dorsey, 61 F.3d 1459, 1467 (10th Cir.1995) (explaining that Rule 11 does not apply in state courts). Therefore, it cannot be a basis on which to challenge a plea in a state court criminal proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[Fjederal habeas corpus relief does not lie for errors of state law.”). 3 . Holt also argued below that this violated the due process clause of the Sixth Amendment, but he failed to persist in that argument before this Court. So, as we discussed regarding Holt's claim that the state court judge’s actions violated Rule 11, we need not consider this argument. See Phillips, 422 F.3d at 1080 Holdings: 0: holding that where issues are not properly raised and developed in briefs a court will not consider the merits thereof 1: holding courts do not consider points not raised in briefs 2: recognizing that we lack jurisdiction to consider issues not raised in the parties briefs 3: holding that we generally may not consider issues not raised before the bia 4: holding that we lack jurisdiction to consider claims that have not been raised before the bia | [
"4",
"1",
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the court rejected a trustee’s argument that a post-petition filing of a mechanic’s hen in accordance with New York Lien Law constituted a preferential transfer: Section 547(c)(6) provides ... that a trustee may not avoid the fixing of a statutory hen that is not avoidable under section 545. Mechanics’ hens duly filed pursuant to state law are not avoidable under section 545. Consequently, this court disagrees with the trustee’s position. Id. at 60. Although the hen in that case received the benefit of New York’s “relation-back” provision, the court’s preference decision did not rely on that fact. The court looked instead to whether the henor had filed his notice of hen within the statutory time period. See also In re Wisner, 77 B.R. 395, 397-98 (Bankr.N.D.N.Y.1987) (<HOLDING>). In In re APC Construction, Inc., 132 B.R. 690 Holdings: 0: holding that new york law applies to this matter 1: 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 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 that mechanics hen arising under new york lien law is statutory hen as opposed to judicial hen 4: 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 | [
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United States after deportation. The parties agree that the government’s failure to allege specific intent rendered the indictment defective under Pemillo-Fuentes. The government asserts, however, that Velasco-Medina waived his objection to the indictment’s sufficiency by failing to raise it before the district court. Velasco-Medina responds that the indictment’s defect deprived the district court of jurisdiction over the case ah initio, and thus requires that we overturn his conviction. We find neither argument availing. The government’s position that Ve-lasco-Medina waived any objection to the indictment’s sufficiency by failing to raise it in the district court has been repeatedly rejected in this Circuit. See, e.g., United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir.2002) (<HOLDING>); United States v. Geiger, 263 F.3d 1034, 1039 Holdings: 0: holding that issues not raised in the trial court may not be raised later on appeal 1: holding that standing is a jurisdictional issue that can be raised for the first time on appeal 2: holding that issues not raised before the trial court cannot be raised on appeal 3: holding that a cruel and unusual punishment claim is not jurisdictional and therefore may not be raised for the first time on appeal 4: holding that indictments sufficiency is jurisdictional in nature and may be raised initially on appeal | [
"2",
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Lehman Holdings and Aurora admitted that Lehman Bank’s home office had been in Delaware when the loans were bought and resold. Lehman Holdings’ App’x at 782, 1492, 2107, 3062, 3733; Aurora’s App’x at 11; Aurora’s Opening Br. at 11; Lehman Holdings’ Opening Br. at 23. Because L 272, 1298 (11th Cir.1999) (referring to the “principal place of business” as a “term of art”). Regardless of where Lehman Bank’s executives resided or met, all of Lehman Bank’s actions were “subject to direction from the home office” in Delaware. 12 C.F.R. § 545.91(a). With all of the bank’s actions subject to direction from the home office in Delaware, any reasonable fact-finder would have to conclude that Lehman Bank’s principal place of business was in Delaware. See Lehman Bros. Bank, FSB, 937 A.2d at 103-104 (<HOLDING>). As a result, Lehman Bank is considered a Holdings: 0: holding delaware is home turf as long as company is incorporated in delaware regardless of location of principal place of business 1: holding that lehman bank had its principal office in delaware rather than new york based in part on lehman banks establishment of its home office in delaware 2: recognizing that a prosecutors office is an entity and that information in the possession of one attorney in the office must be attributed to the office as a whole 3: holding that a national bank is a citizen of the state in which its main office as set forth in its articles of association is located 4: holding that even though lehman banks executive officers were in new york and its board of directors met exclusively in new york lehman bank had its principal office in delaware rather than new york because the term principal office is a term of art | [
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