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finding that section 1320a-7 was constitutional as applied to Manocchio. Specifically, the district court found that section 1320a-7 was not punitive, but rather remedial, and.therefore did not violate either the Double Jeopardy Clause or the Ex Post Facto Clause. II. ' ISSUE Whether 42 U.S.C. § 1320a-7, a mandatory exclusionary provision, is punitive in nature and violates the Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. III. DISCUSSION The threshold determination this court must make is whether 42 U.S.C. § 1320a-7 is punitive in nature and effect because both the Double Jeopardy Clause and the Ex Post Facto Clause apply only to punitive sanctions. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989) (<HOLDING>); Flemming v. Nestor, 363 U.S. 603, 613, 80 Holdings: 0: holding that civil forfeitures are neither punishment nor criminal for purposes of the double jeopardy clause 1: holding that the due process clause is violated if the prosecution fails to disclose material evidence that is favorable to a criminal defendant 2: holding that double jeopardy clause is violated when a defendant punished in a criminal prosecution is penalized by a subsequent punitive civil sanction 3: holding double jeopardy clause applicable to civil penalties under the false claims act 4: holding that if double jeopardy clause is not violated because legislature intended double punishment section 7019 is not applicable and merger is not required | [
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that he committed the arson. 3 If Guastella or Wasyluk is proved to have intentionally started the fire, the question will again arise whether arson committed by either or both of them will relieve the insurer, in whole or in part, from indemnifying BLT for the loss. New Jersey law is clear that if the insured is an individual who intentionally sets fire to his own property, an insurer will be relieved from having to compensate him for the resulting fire damage. Olesak v. Central Mut. Ins. Co., 215 N.J.Super. 155, 158-159, 521 A.2d 849 (App.Div.1987). The more difficult question is the availability and effect of an arson defense where the insured is a corporation. Compare Miller & Dobrin Furniture Co. v. Camden Fire Ins. Co., 55 N.J.Super. 205, 218-219, 150 A.2d 276 (Law Div.1959) (<HOLDING>) and Italian Fisherman v. Commercial Union Holdings: 0: holding that arson committed by a dominant fiftypercent stockholder was attributable to the corporation 1: holding that arson committed by stockholder who was the principal managing agent precluded recovery by the corporation 2: holding an insured corporation could not recover for a fire loss caused by its controlling shareholders arson 3: holding that in an arson case there must be other proof that the offense was committed to corroborate a confession by the defendant 4: holding that 10b applies to fraud on corporation by controlling stockholder and that the fact that creditors of the defrauded corporation may be the ultimate victims does not warrant disregard of the corporate entity | [
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support of his application for asylum and found that large portions of that statement were copied from “five different asylum declarations filed in five different cases.” The plagiarism was so extensive that the IJ noted that many of the five statements had “full paragraphs identical to those of the respondent.” During the IJ’s hearing, Sliusar was asked to explain these similarities. Rather than explaining them, his testimony produced further inconsistencies with his prior testimony to the court and the asylum officer. Given the obvious plagiarism in his application, his inability to explain why his statement was so similar to others, and the inconsistencies within his own sworn testimony, the IJ properly found Sliusar not credible. Ahir v. Mukasey, 527 F.3d 912, 918-19 (9th Cir.2008) (<HOLDING>). The record also supports the IJ’s Holdings: 0: holding that inconsistencies in the aliens statements must go to the heart of the asylum claim to justify an adverse credibility finding 1: holding that inconsistencies between an aliens application and testimony and an inability to explain those ineonsistencies establishes frivolousness by a preponderance of the evidence 2: holding that inconsistencies between an application and testimony can serve as the basis for adverse credibility findings where the testimonial change goes to the heart of a petitioners claim 3: holding that testimony of sixyearold vietim was not incredibly dubious despite some inconsistencies and that such inconsistencies are appropriate to the cireumstances presented the age of the witness and the passage of time between the incident and the time of her statements and testimony 4: holding that a claimant must demonstrate by a preponderance of the evidence entitlement to an administrative claim | [
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question is one of first impression for this court, the Ninth Circuit has previously held that “both applicants for and recipients of [service-connected death and disability] benefits possess a constitutionally protected property interest in those benefits.” Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 588 n. 7 (9th Cir.1992). Additionally, seven of our sister circuits have addressed similar questions concerning statutorily mandated benefits. “Every regional circuit to address the question ... has concluded that applicants for benefits, no less than benefits recipients, may possess a property interest in the receipt of public welfare entitlements.” Kapps v. Wing, 404 F.3d 105, 115 (2d Cir.2005); see, e.g., Kelly v. R.R. Ret. Bd., 625 F.2d 486, 489-90 (3d Cir.1980) (<HOLDING>); Mallette v. Arlington Cnty. Employees’ Holdings: 0: holding an applicant for a disabled childs annuity was denied due process 1: holding that petitioner did not exhaust his due process claim that he was denied a full and fair hearing by arguing that due process was violated on the ground that the ij admitted uncertified evidence 2: holding that the due process clause confers a right to direct a childs education 3: holding that the defendant was denied due process because the procedural rule was not followed in any respect by the trial court 4: holding that no ada violation was shown because the disabled were not denied benefits that were otherwise available | [
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questions whether we have jurisdiction over CTF’s cross-appeal of the District Court’s stay, and has moved to dismiss CTF’s appeal for lack of subject-matter jurisdiction. Marriott argues that the stay is not a final order and is therefore not appealable. We agree that a stay is usually not a final order because it provides only a temporary respite from litigation. Marcus v. Twp. of Abington, 38 F.3d 1367, 1370 (3d Cir.1994). However, when a stay amounts to an effective dis missal of the underlying suit, it may be subjected to appellate review. Cheyney State Coll. Faculty v. Hufstedler, 703 F.2d 732, 735 (3d Cir.1983) (citing Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); see also United States v. Spears, 859 F.2d 284, 287 (3d Cir.1988) (<HOLDING>). We have also recognized that an indefinite Holdings: 0: holding a trial judges unappealed procedural rulings become the law of the case 1: holding that the district court should not have exercised pendent party jurisdiction over the husbands loss of consortium claim and therefore the jurys verdict in his favor had to be reversed 2: holding that consideration of a moot case was not required when there was no award of attorneys fees that would be affected by appellate review and the issue has not been preserved for appeal 3: holding that appellate review was effectively foreclosed unless we exercised pendent jurisdiction because the issues would become moot and untouchable because of the procedural limbo in which the decision placed the case 4: holding that issues as to whether declaratory relief should be granted had become moot and would be dismissed for lack of jurisdiction but that under hallman the entire appeal was not moot because there still was a live controversy as to whether appellee was entitled to recover attorneys fees under the declaratory judgments act and therefore issues regarding attorneys fees were not moot and would be decided | [
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Act, the rest of the case was devoted to a statute limiting contingency fee agreements for Civil War claims. Id. Other cases have followed Nutt and Calhoun to hold that attorneys may not take a contingency interest in or a lien against claims against the United States. See United States v. Transocean Air Lines, Inc., 386 F.2d 79, 82 (5th Cir.1967) (“A contingent fee in a judgment against the United States is an assignment subject to the Anti-assignment Act.”); Kearney v. United States, 152 Ct.Cl. 202, 285 F.2d 797, 800 (1961) (“[A] contract between an attorney and a client which gives the attorney an interest in the client’s claim against the Government is exactly what the anti-assignment statute forbids.”); Pittman v. United States, 127 Ct.Cl. 173, 116 F.Supp. 576, 580 (1953) (<HOLDING>). However, Honig is not asserting a right akin Holdings: 0: holding that nutt stands for the broad principle that any attempt to impress a lien upon the proceeds of a claim against the united states as security for the payment of an attorneys fee is within the ends to which the prohibition of the act was aimed 1: holding that sovereign immunity bars an attorneys lien against the united states 2: holding the beginning of a creditors action to subject an equitable estate to the payment of a judgment gives a specific lien upon the property which it is sought to reach and this lien continues while the cause is pending 3: recognizing the delegation of authority to the united states attorneys 4: holding that the fourth amendment does not mandate the payment of money by the united states | [
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the defendant of the specifics of the charges he must defend against at trial. In this case, the family court’s discretion should have been exercised in light of the purposes of a bill of particulars, which is designed to enable the defendant to “prepare for trial and to prevent surprise.” State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000) (emphases added) (citing State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994), overruled on other grounds by Balanza, 93 Hawai'i at 288, 1 P.3d at 290). This court has held that a bill of particulars is not required if the information called for has been provided “in some other satisfactory form.” Reed, 77 Hawai'i at 78, 881 P.2d at 1224 (citation omitted), overruled on other grounds by Balanza, 93 Hawai'i at 288, 1 P.3d at 290 (<HOLDING>). However, without being apprised in the Holdings: 0: holding that the trial court did not abuse its discretion by denying the appellants motion for change of judge where the appellant failed to demonstrate actual bias 1: holding that the trial court did not abuse its discretion in denying reeds motion for bill of particulars when reed did not deny that the transcripts of the preliminary hearing and police reports provided him with the information that he claimed was lacking in the complaint 2: holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form 3: holding that the district court did not err by concluding that the bankruptcy court did not abuse its discretion in denying motion for continuance motion to withdraw and motion for reconsideration and rehearing 4: holding that trial court did not abuse its discretion in denying motion to amend complaint because the proposed amendment would have been futile | [
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purpose of the form (drafted by and to give assistance to the clinic) and the circumstances of execution.” Id. at 1056. One of those circumstances was the husband’s execution of the consent forms in blank. The court, therefore, doubted that the form represented the parties’ intent in the event of a dispute between them. Id. at 1056-57. Nevertheless, the court addressed and rejected the enforceability of such an agreement: With this said, we conclude that, even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public 6 U.S. 40, 51, 119 S.Ct. 977, 986, 143 L.Ed.2d 130, 144 (1999) (<HOLDING>) and Flagg Bros., Inc. v. Brooks, 436 U.S. 149, Holdings: 0: holding that private insurers decision to seek review by private utilization review organization of reasonableness and necessity of medical treatment though authorized by pennsylvania workers compensation statute did not involve state action to the extent necessary to trigger due process guarantees under fourteenth amendment 1: holding that statute allows admissibility of evidence by affidavit to prove reasonableness and necessity of medical expenses 2: holding that a state medicaid agency can review the medical necessity of treatment prescribed by a doctor on a casebycase basis 3: recognizing private right of action 4: holding that while the fourteenth amendment is directed against state action and not private action the state action requirement is met in a civil action where state law is applied whether by statute or common law | [
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charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him. New Jersey’s Good Samaritan Act, N.J.SA. § 2A:62A-1, however, shields from civil liability volunteers who, in good faith, render care at the scene of an emergency, even if they do so unreasonably. Lundy, 34 F.3d at 1180. Although the Act does not apply when there was a preexisting duty that was breached, we have already determined that issue against Mrs. Abramson. See id. (<HOLDING>). Moreover, there is no allegation much less Holdings: 0: holding on rehearing that exclusion for disabilities caused by a preexisting medical condition would not support denial of benefits caused by staph infection resulting from surgery for a preexisting condition 1: holding that the preexisting duty exception does not apply where the preexisting duty is a limited one and the alleged negligence is the failure to provide a level of assistance beyond that required by the preexisting duty 2: holding that treatment for symptoms of undiagnosed multiple sclerosis activated the preexisting condition exclusion and stating that there is no requirement that a diagnosis definite or otherwise of the preexisting condition must be made during the preexisting condition period 3: holding the duty to indemnify is narrower than the duty to defend 4: holding that the duty of good faith and fair dealing is a contractual duty | [
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period. (Defs.’ Ex. 18 (Blood Aff.) ¶ 5.) As such, they were deprived of neither their ultimate- wages nor the immediate use of those wages. Accord Lovejoy-Wilson, 263 F.3d at 224 (finding adverse action from week-long suspension where plaintiff “may have at least suffered the loss of the use of her wages for a time”); cf. Markel v. Bd. of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 911 (7th Cir.2002) (“Typically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay.”)(quoting Ellerth, 524 U.S. at 761-62, 118 S.Ct. 2257 (emphases added)). Moreover, there is no indication that the suspension served, or could have served, as the basis for any subsequent adverse action against plaintiff. See Russell, 257 F.3d at 819-20 (<HOLDING>). Indeed, the fact that Dickerson and Reed were Holdings: 0: recognizing that a set of actions may constitute an adverse employment action when considered collectively even though some actions do not rise to the level of an adverse employment action individually 1: holding that an unrealized risk of future adverse action even if formalized is too ephemeral to constitute an adverse employment action 2: holding that termination is an adverse employment action 3: holding that a transfer of job duties can constitute an adverse employment action 4: holding that denial of a bonus was not an adverse employment action | [
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on the confirmation order, the court is barred from revoking the confirmation order — even if the order was procured by fraud. For reasons that are amplified in point III, below, the statute bars revocation of the confirmation order in this case because an order satisfying the mandatory statutory predicate cannot be drafted. Another noteworthy feature of this statute is the relatively short time frame in which a cause of action may be filed. The request to revoke the confirmation order must come “before 180 days after the date of the entry of the order of confirmation.” Courts have been very strict in their adherence to this 180-day rule. See, e.g., BFP Invs., Inc. v. BFP Invs., Ltd., 150 Fed.Appx. 978, 979 (11th Cir.2005); In re Orange Tree Assocs., 961 F.2d 1445, 1447 (9th Cir.1992) (<HOLDING>); In re Medical Analytics, Inc., 410 F.Supp. Holdings: 0: holding 1330a motion not now justiciable because not raised within 180 days of confirmation 1: holding 1330a motion untimely when filed over 180 days from confirmation 2: holding in the instant case although creditor obtained relief from the automatic stay it failed to object or appeal from the confirmation order accordingly creditor is bound by the confirmation order 3: holding that payment does not moot a confirmation request 4: holding that a request made within 180 days of a modified confirmation order entered three months after the original confirmation order but more than 180 days after the original confirmation order was timebarred | [
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at 16) This claim will be tried at the Phase One trial. RELEVANT LAW Under Plaintiffs’ direct operator liability claim that will be tried during Phase One, Plaintiffs must prove that sole agents of Anaconda “manage[d], directed], or eon-duct[ed] operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Bestfoods, 524 U.S. at 66-67, 118 S.Ct. 1876, (document # 1221 at 10) Under the rule of Bestfoods, Plaintiffs must prove their “arranger” liability claim through evidence that Anaconda sole agents arranged for disposal of hazardous substances owned or possessed by Anaconda. See, Transportation Leasing Co. v. California, 861 F.Supp. 931, 941 (C.D.Cal.l993)(<HOLDING>); Raytheon Constructors, Inc. v. Asarco, Inc., Holdings: 0: holding that a party that sold a product to another party arranged for disposal of a hazardous substance 1: holding that arranger liability claim requires proof that defendant arranged for the disposal of hazardous substances owned or possessed by defendant 2: holding that a claim for municipal liability under 1983 requires inter alia proof of an underlying constitutional violation 3: holding that potentially liable party could avoid all liability by proving its released hazardous substances did not contribute to response costs 4: holding that fraud claim requires proof that the defendant made a material representation that was false | [
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constitutional scrutiny of police action. {¶ 70} By that era, the Supreme Court recognized that a juvenile could “receive[] the worst of both worlds” in the juvenile court system by being provided “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Kent, 383 U.S. at 556, 86 S.Ct. 1045, 16 L.Ed.2d 84. In a series of cases, the court addressed that concern. {¶ 71} Although the court had recognized a due process interest in juvenile court proceedings as early as 1948, see Haley v. Ohio (1948), 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224, the understanding that the Due Process Clause of the Fourteenth Amendment applied to juvenile proceedings because of the juvenile’s liberty interests was more fully developed in Kent (<HOLDING>), and crystallized in In re Gault (1967), 387 Holdings: 0: holding that the court without violating due process of the law may conduct a hearing to determine whether to waive juvenile jurisdiction even if the juvenile fails to appear if counsel is present and allowed to participate on the juveniles behalf 1: holding that jeopardy attaches in juvenile adjudication that determines whether juvenile violated criminal law 2: recognizing that the admonition to function in a parental relationship is not an invitation to procedural arbitrariness and holding that a juvenile is entitled to a hearing on the issue of whether juvenile court jurisdiction should be waived before being released to a criminal court for prosecution 3: holding that although the juvenile restitution statute does not expressly require the juvenile court to determine whether the juvenile has the ability to pay the restitution ordered as a condition of probation the policies underlying the adult restitutions command that a trial court make such an inquiry applies with equal force to juvenile courts 4: holding that juvenile court has no jurisdiction to consider constitutional claims | [
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even in the Hugheses and Calhoun’s trial brief, they argued that the Hugheses had sustained $9,262.50 in damage but did not argue that Calhoun had sustained any damage. Because we conclude that the damages awards were not supported by evidence in the record, we must reverse the trial court’s judgment on this issue. See, e.g., Blair v. Cooper, 392 So.2d 1205, 1207 (Ala.Civ.App.1981). V. Additionally, the Darnalls argue that the trial court erred in admitting a “Google Earth” aerial photograph and an Alabama Atlas and Gazetteer as exhibits. We need not determine whether these exhibits were admissible, because, even if their admission was error, the Darnalls have not shown how the error was injurious to their ease. See New Plan Realty Trust v. Morgan, 792 So.2d 351, 363 (Ala.2000) (<HOLDING>). They argue that the Google Earth map showed Holdings: 0: holding that the appellants bear the burden of showing that an error in the admission of evidence has probably injuriously affected substantial rights of the appellants quoting atkins v lee 603 so2d 937 946 ala1992 quoting in turn rule 45 ala rapp p 1: holding that defendants bear the burden of showing that the challenged act was objectively reasonable citation omitted 2: recognizing under plain error review that the burden to show that substantial rights have been prejudiced is on the party that failed to raise the issue below and for an error to have affected substantial rights the error must have affected the outcome of the district court proceedings 3: holding that any error in the exclusion of evidence is cured by the subsequent admission of the evidence 4: holding that plaintiffs bear the burden of showing by a preponderance of the evidence that defendants have failed to adhere to the requirements of nepa | [
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450 (1999). The plaintiff fails to meet this burden. Garrett has produced scant evidence to show that his impairment substantially limits his ability to work. Garrett provides no evidence of the number of jobs from which he is precluded because of his impairment. The plaintiff has admitted that he can work in a variety of jobs. See Plaintiffs dep. pp. 176-177. Plaintiff admits that he can work most jobs that do not require “sport type activities”. Id. In fact, plaintiff has worked a variety of jobs since he was fired from Autozone. See id. at 226-231. Without some evidence that Garrett is precluded from a broad range of jobs, his impairment does not meet the definition of disability under 42 U.S.C. § 12102(2)(A). See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir.1997) (<HOLDING>); See also, Skorup v. Modern Door Corp., 153 Holdings: 0: holding that a plaintiff who could not perform some jobs because he wore a pacemaker was nevertheless still capable of performing most jobs in the workforce 1: holding that the plaintiffs evidence that his back injury precluded him from performing at least 50 of the jobs previously available to him was enough to classify him as disabled under the ada 2: holding plaintiff not substantially limited in working because plaintiff failed to present evidence of disqualification because of knee condition from any jobs in the geographic area to which she had reasonable access 3: holding that similar impairments do not create a genuine issue of material fact as to whether her impairment rendered the plaintiff unable to perform a class of jobs or a broad range of jobs in various classes within a geographical area to which she had reasonable access 4: holding that under pwdcra the inability to perform a particular job does not constitute a substantial limitation instead the impairment must significantly restrict an individuals ability to perform at least a wide range of jobs | [
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at PA. However, this alone, does not prove discriminatory intent. Notably missing is any evidence that the disparity is the result of discrimination. To the contrary, there is no evidence that women at PA have repeatedly sought and been turned down for the partnership rank. See, e.g., Roberson v. Snow, 404 F.Supp.2d 79, 91 (D.D.C.2005) (ruling that plaintiffs attempt to show pretext by pointing to historical disparities within the company was unavailing because he “failed to show actual statistics comparing rates of promotion at [the company] between similarly situated black and white employees, or even statistics comparing rates of hiring black and white applicants to their presence in the applicant pool”); Metrocare v. Wash. Metro. Area Transit Auth., 679 F.2d 922, 930 (D.C.Cir.1982) (<HOLDING>). Having considered all of the record evidence Holdings: 0: holding that the percentage of minority faculty need not approximate the percentage of minority students 1: holding that a prima facie case of discrimination is not established merely by the number of peremptory strikes against blacks in cases where the percentage of blacks on the empaneled jury is higher than the percentage of the venire pool 2: holding that while proper statistical evidence can be the most important vehicle for showing class discrimination the plaintiff failed to compare the percentage of blacks hired for given jobs with the percentage of blacks qualified for those positions and it was not sufficient to merely show that black managers formed a smaller percentage of the manager pool than did managers of other races 3: holding that blacks who were not subjected to racial discrimination had standing under title vii to sue over discrimination against other blacks 4: holding that both the lodestar and the percentage of the fund methods are permitted | [
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reasonably available means”). Generett has satisfied neither the Brady nor the Trombetta test. Brady v. Maryland, to begin with, does not apply. The LeSabre from which Officers Teeters and Smith recovered the firearm — as Generett himself appears to recognize, see Generett Br. at 13 (“[T]he disposal of the car, in essence, destroyed potentially useful evidence that may have been exculpatory in nature.”) — was at best only potentially useful evidence. See Illinois v. Fisher, 540 U.S. 544, 548, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (deeming destroyed evidence to be only “potentially useful” when “[a]t most, [the defendant] could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him”); Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (<HOLDING>); Trombetta, 467 U.S. at 488 — 89, 104 S.Ct. Holdings: 0: holding that the defendant bears the burden of proof and that such a disposition does not violate the due process clause 1: holding that police failure to inform the accused of his attorneys attempts to contact him and misstatements to the attorney as to whether the accused was at the police station did not violate the accuseds due process rights 2: holding that states inadvertent or negligent destruction of evidence did not violate defendants due process rights 3: holding that doctrine does not violate due process 4: holding that the failure of the police to refrigerate clothing and to perform tests on semen samples can at worst be described as negligent and did not violate the due process clause | [
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see also Swarna v. Al-Awadi, 607 F.Supp.2d 509, 514 (S.D.N.Y.2009) (explaining that initial suit was properly dismissed for lack of subject matter jurisdiction despite the fact that the diplomat had left his post because service was effected prior to the diplomat’s departure). The certification of Defendants’ status of diplomats by the State Department prior to service of the Amended Complaint therefore applies throughout the continuation of the suit, making Defendants immune from subject matter jurisdiction in this Court. Additionally, Defendants properly asserted that the “commercial activity” exception in Article 31(1)(c) of the Vienna Convention does not apply to the hiring of a domestic employee, therefore immunity is neither waived nor eliminated. See Mufti, 73 F.3d at 538 (<HOLDING>). Thus, Defendants sufficiently proved they Holdings: 0: holding that statement is admission by partyopponent if made by partys agent or servant concerning matter within course and scope of the agency or employment and made during existence of agency or employment relationship 1: recognizing that acts are not within the scope of employment and a master is insulated from liability under restatement 2191 where the servant was acting entirely for his own benefit 2: holding that sovereign immunity does not protect the state from claims for statutory employment benefits that constitute a protected property interest 3: holding that for a domestic corporation the foreign principal place of business does not count 4: holding that the employment of a domestic servant does not void diplomatic immunity | [
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in the Court’s Memorandum Opinion and Order, the Court grants defendant Greenwood Hospitality Management LLC’s Motion for Summary Judgment [55] as to all claims and its Motion to Strike Each of Plaintiffs Declarations in Opposition to Defendant’s Motion for Summary Judgment [76]. The Clerk is directed to enter judgment in favor of defendant Greenwood Hospitality Management LLC and against plaintiff Karen Hoosier. This is a final and appeal-able order. It is so ordered. 1 . Federal Rule of Civil Procedure 56 requires that affidavits or declarations “used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on th , 604-05 (7th Cir.2012) (<HOLDING>); Mach v. Will County Sheriff, 580 F.3d 495, Holdings: 0: holding that an isolated comment is not direct evidence of discrimination even if a plaintiff interpreted it as motivated by a discriminatory animus 1: recognizing that the seventh circuit consistently has held that isolated comments that are no more than stray remarks in the work place are insufficient to establish that a particular decision was motivated by discriminatory animus 2: holding managers discriminatory remark indicative of age bias where buttressed by other evidence of discrimination and thus remark was not an isolated comment 3: holding that direct evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action 4: holding that employer was entitled to summary judgment even if it conducted a shoddy investigation and subsequently made a poorly informed decision to fire plaintiff so long as there was no evidence that it was discriminatory animus that motivated the decision to conduct the investigation and terminate plaintiffs employment | [
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outside the limitations period by establishing a liability cut-off if notice of the first violative behavior is not given within 180 days. CP at 22 (emphasis added). Therefore, we hold that the 180-day limitations provision in the agreement unreasonably favors Fred Lind Manor and thus is substantively unconscionable. Severance of the Substantively Unconscionable Provisions ¶42 Fred Lind Manor urges us to sever any provisions we find to be substantively unconscionable arguing that the essential term of the parties’ bargain, i.e., arbitration, should be retained. Adler, however, contends that because the substantively unconscionable provisions pervade the entire agreement, we should refuse to sever those provisions and declare the entire agreement void. See Ingle, 328 F.3d at 1180 (<HOLDING>). The 2 Restatement (Second) of Contracts § 208 Holdings: 0: holding that one candidates status as a pension fund tipped the scales in favor of its appointment as lead plaintiff 1: holding that the relevant time is the time of the employment decision 2: holding that the employers insidious pattern of seeking to tip the scales in its favor during employment disputes justified a decision to declare the entire agreement unenforceable 3: holding that an employers reservation of right to alter amend or revoke the arbitration policy in an employee handbook did not invalidate the binding agreement to arbitrate employment disputes 4: holding employer cannot lawfully make the signing of an employment agreement which contains an unenforceable covenant not to compete a condition of continued employment an employers termination of an employee who refuses to sign such an agreement constitutes a wrongful termination in violation of public policy | [
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a procedural violation by not specifying the minutes of instruction to be devoted to each of KL.’s services in her individualized educational programs. School districts need not specify minutes of instruction if they are reasonably known to all “involved in both the development and implementation of the IEP.” See 64 Fed.Reg. 12,479. Under the circumstances of this case, we conclude that the amount of time to be devoted to KL.’s services was clearly known to KL.’s individualized educational program team. Even if the minutes were not known, however, Plaintiffs have failed to set forth a plausible argument that this procedural violation resulted in the denial of a free appropriate public education. Cf. O’Toole v. Olathe Dist. Schs. Unified Sch, 144 F.3d 692, 705-06 (10th Cir.1998) (<HOLDING>). We hold that the District did not violate the Holdings: 0: holding that an individualized educational program that merely provided for educational services as appropriate did not result in the denial of a free appropriate public education 1: recognizing that under the act states are granted federal funds to provide disabled children with a free appropriate public education in the least restrictive environment 2: holding that the eha established right to public education for students with disabilities that consists of educational instruction specially designed to meet the unique needs of the handicapped child supported by such services as are necessary to permit the child to benefit from the instruction 3: holding that the local educational agency is the appropriate target of a suit under the idea and that private entities cannot be held liable under the statute as the idea obligates the statenot the private schoolto ensure that such children are provided special education and related services in accordance with an individualized education program 4: holding that school districts provision of teaching materials in a tardy fashion had an educational source and educational consequences | [
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evidence should be excluded on the basis of unfair prejudice or any other ground of inadmissibility set out in Tennessee Rule of Evidence 403. The Defendant instead claims that the lay testimony was improper under Tennessee Rule of Evidence 701(a), which provides that non-expert witnesses may testify as to opinions only when they are “rationally based on the perception of the witness” and are either “helpful to a clear understanding of the -witness’s testimony or the determination of a fact in issue.” Rule 701(a) authorizes the admission of this testimony. Mr. Payne and Mr. Car-ringer merely testified to the presence of asbestos without offering a scient 354 N.C. 572, 558 S.E.2d 867 (2001); Olinger v. Pretty Prods., Inc., No. 96-CA-29, 1997 WL 33814208, at *4 (Ohio Ct.App. Nov. 7,1997) (<HOLDING>); Per-man v. C.H. Murphy/Clarlc-Ullman, Inc., Holdings: 0: holding improperly admitted testimony was cumulative to the other properly admitted evidence and was therefore harmless 1: holding that lay testimony as to the presence of asbestos in the workplace was admissible because it was rationally based upon the perception of the witness 2: holding that lay opinion testimony on the technical subject of asbestos in the workplace was inadmissible when the witness failed to demonstrate sufficient personal experience or technical knowledge to qualify him to offer an opinion 3: holding that lay testimony as to the presence of asbestos in the workplace which was based upon personal knowledge of employees was properly admitted 4: holding that it was error to allow a police officer who was admitted as a lay witness after a prosecution motion to admit him as an expert was denied for lack of timeliness to give testimony as to a matter about which he had no personal knowledge | [
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he hesitate to answer questions at any time.” The trial court made extensive findings of fact in accord with this evidence. Defendant did not except to any of these findings. Id. The Court then held that “[f]rom these findings the trial court correctly concluded that the statement ‘was made freely, voluntarily, understanding [sic] and knowingly ....’” Id. at 20, 277 S.E.2d at 529. The Court concluded, therefore, that the trial court properly admitted the defendant’s incriminating statements. In this case, the trial court made comparable findings based on similar evidence. Under McCoy, therefore, the trial court’s findings in this case support its conclusion that defendant’s three statements were voluntary and admissible. See also State v. McKoy, 323 N.C. 1, 17, 372 S.E.2d 12, 20 (1988) (<HOLDING>), vacated on other grounds, 494 U.S. 433, 108 Holdings: 0: holding that trial court did not err 1: holding that even though defendant began to display physical signs of withdrawal his waiver was voluntary because he remained coherent and responsive was aware of what was going on and told the agents that he was able to continue with questioning 2: holding that district court did not err in admitting defendants prior conviction during governments caseinchief to rebut defendants expected defense announced in opening statements that he was not involved in the offense 3: holding that trial court did not err in admitting statements made two hours after defendants blood alcohol level was 026 when trial court found that during questioning the defendant was coherent and that his answers were extremely reasonable responsive and appropriate 4: holding that a defendants statement made outside of police custody was voluntary because he was awake and relatively coherent during the questioning despite painful injuries | [
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David to sell his hundreds of franchises in the U.S., and a "breach" scenario, in which, due to defendants failure to perform, David, three years later, had to set up prototypes himself and then sell the franchises. See D.Mem. re Causation and Damages at 9-13; D.Exh. A. 7 . While the most recent Kenford decision sets forth a stricter rule than previously articulated, prior cases — in both New York and federal courts — have also set forth high standards for when lost profits for new businesses can be awarded. These cases make clear that lost profit claims by new businesses must be certain, specific, and precise. See, e.g., Hirschfeld v. IC Securities, Inc., 132 A.D.2d 332, 521 N.Y.S.2d 436, 439 (1st Dep’t.1987), appeal dism’d, 72 N.Y.2d 841, 530 N.Y.S.2d 556, 526 N.E.2d 47 (1988) (<HOLDING>); Perma Research & Development Co. v. Singer Holdings: 0: holding that such damages could be recovered but only if the plaintiffs were experienced in the business and if the lost profits could be ascertained with some certainty 1: holding that a business owners testimony was insufficient to establish lost profits where he was not able to specify which contracts they lost how many they lost how much profit they would have had from the contracts or who would have awarded them contracts and explaining that the plaintiffs could have supported their lost profits with testimony that they had lost out on specific contracts but failed to do so 2: holding past profits coupled with other facts and circumstances may establish lost profits 3: holding that the plaintiffs attempted to recover lost profits which under the facts of the case were consequential damages 4: holding that lost profits were covered where the insureds product a motor used in a treadmill was defective and caused lost profits on the sale of the treadmills | [
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Cyr, 533 U.S. at 314 n. 38, 121 S.Ct. 2271 (“Congress could, without raising any constitutional questions, provide an adequate substitute [for habeas corpus] through the courts of appeals.”). An adequate substitute for habeas corpus must fulfill the traditional role of the writ, which is to give the petitioner “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’ ” Boumediene v. Bush, — U.S. -, 128 S.Ct. 2229, 2266, 171 L.Ed.2d 41 (2008) (quoting St. Cyr, 533 U.S. at 302, 121 S.Ct. 2271). A petition for review with the court of appeals constitutes “an adequate substitute for district court habeas corpus jurisdiction.” Puri, 464 F.3d at 1042; see also Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir.2007) (<HOLDING>); Alexandre v. U.S. Att’y Gen., 452 F.3d 1204, Holdings: 0: holding that substantive review is adequate 1: holding that because the real id act created a remedy as broad in scope as a habeas petition the act is an adequate substitute for habeas corpus 2: holding that a petition for review is an adequate substitute for habeas corpus 3: holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus 4: holding that the remedy of habeas corpus is not available as a substitute for postconviction relief under rule 3850 | [
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challenged here was constructed to prevent one thing: seasonal holiday displays of a religious character. The absence of an explicit list of permissible subjects upon which discourse is permissible in this nonpublie forum does not mean that there is no “otherwise includible subject” for discussion in the forum. In Hedges, 9 F.3d at 1296-97, for example, the school board announced two policies prohibiting the distribution of “written material that is of a religious nature” and “written material ... which expresses religious beliefs or points of view.” This court recognized that the policies impliedly allowed the distribution of all other written material, and concluded that the prohibition of religious speech was unconstitutional. See also Good News/Good Sports Club, 28 F.3d at 1506-07 (<HOLDING>); Searcey v. Crim, 815 F.2d 1389 (11th Holdings: 0: holding that adam walsh act violates the eighth amendments prohibition against excessive bail and the fifth amendments guarantee of procedural due process 1: holding that adam walsh act violates the eighth amendments prohibition against excessive bail the fifth amendments guarantee of procedural due process and separation of powers 2: holding that a policy generally encouraging the moral character and development of youth by permitting on school premises the boy scouts and girl scouts but not permitting a religious youth organization violates the first amendments prohibition of viewpoint discrimination 3: holding that school policy prohibiting written material of a religious nature violates the fust amendment 4: holding unconstitutional a rule excluding all religious speech as viewpoint discrimination | [
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the waiver provision largely referred to “sentence” in the context of the term of imprisonment. See id. (discussing “probable sentencing range” and “sentence within the maximum provided in the statutes of conviction”). As such, we find the plea agreement’s waiver provision is ambiguous as to whether “sentence” includes the amount of restitution, or refers only to term of imprisonment. For example, on the one hand, restitution is part of “sentence” in the colloquial sense in that it is a determination for the district court after guilt has been adjudged. On the other hand, resti tution is not simply “imposed in accordance with the Sentencing Guidelines and Policy Statements” as the plea agreement specifies. J.A. 30 1Í 4; cf. United States v. Ready, 82 F.3d 551, 559-60 (2d Cir.1996) (<HOLDING>). Rather, Appellant’s challenge is levied Holdings: 0: holding that a similar omitted warning together with ambiguity as to the plea agreements recommended sentence constituted reversible error 1: holding that a waiver of right to appeal contained in a plea agreement is enforceable 2: holding that waiver of right to appeal sentence unless its was an upward departure barred appeal of sentence within guidelines range 3: holding that term any sentence within plea agreements waiver of right to appeal provision did not include restitution because of ambiguity 4: holding that a plea agreement with a waiver of direct appeal rights does not include a waiver of collateral remedies because the government could have included a waiver of collateral rights in the plea agreement and chose not to do so | [
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which vary from one facility to the next, from one tour to the next, and from one day to the next. Plaintiff herself has stated that the number of hours actually spent at the MPLSM per week vary considerably. Defendant is free to expand or contract the duties of an employee to suit its changing needs, but in so doing cannot alter plaintiff's right to seek protection under the Rehabilitation Act on the basis of her own job description. Numerous courts entertaining Rehabilitation Act claims have looked to position descriptions in assessing the essential functions of a job. See e.g., Treadwell, 707 F.2d at 476 n. 5; Prewitt, 662 F.2d at 298; Coleman v. Darden, 595 F.2d 533, 535 (10th Cir.1979), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Jasany, 33 FEP Cases at 1117 (<HOLDING>); see also Daubert v. U.S. Postal Service, 733 Holdings: 0: holding that employee who frequently missed work was not a qualified individual able to perform the essential functions of her job either with or without a reasonable accommodation as required to support disability discrimination and reasonable accommodation claims under the rehabilitation act 1: holding that an employer is not liable where it takes reasonable steps to provide an accommodation and the employee is responsible for a breakdown in the process of identifying a reasonable accommodation 2: holding that the actual amount of capital employed in the state by a foreign corporation was to be based on the property of the corporation that was within the state and that was used in business transacted within the state 3: holding that because plaintiff was not hired as a general postal employee to serve various functions within the post office but was employed specifically as the operator of a high speed letter sorting machine defendants duty to provide reasonable accommodation for his handicap was limited to adjustments within the job for which he was hired 4: holding that claimant failed to show that he was terminated solely because of handicap | [
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on by the Blasingame court have been overruled. Zamore v. Whitten, 395 A.2d 435 (Me.1978) was overturned by Bahre v. Pearl, 595 A.2d at 1035 and Kenney v. Porter, 557 S.W.2d 589 (Tex.Civ.App.1977) was overturned by Kenney v. Porter, 604 S.W.2d at 301-02. 21 .In his concurrence to the Court of Appeals’ opinion, Judge Susano asserted that he felt bound by the Blasingame decision, but urged the Supreme Court to “revisit Blasingame” because he felt that “the cases espousing the majority view are arguably the better-reasoned cases on the subject at hand.” 22 .It is not necessary for us to address the policy debate concerning whether closely-held stock is commonly dealt in on securities exchanges or markets or is commonly recognized as a medium for investment because the O 70, 374 (1980) (<HOLDING>); Nelson v. Brostoff, 70 Or.App. 486, 689 P.2d Holdings: 0: holding failure to establish terms of an oral loan agreement precluded the existence of a breach of contract claim 1: holding that a federal habeas court may grant specific performance of a plea agreement in the face of evidence that the state has breached the terms of such an agreement 2: holding that the judicial admission exception did not apply to prove the existence of an oral agreement for the sale of stock where the defendant offered his deposition testimony acknowledging that the parties agreed to have a document transferring the stocks drafted by an attorney because the defendants references to the agreement were in terms of a tentative or incomplete agreement and because any admission of such a contract would necessarily have to include a statement of the price and quantity terms 3: holding in a suit to establish the existence of an oral agreement for the sale of stock that the judicial admission exception was not satisfied by the plaintiffs deposition testimony acknowledging that before negotiations had broken down the parties had reached an agreement with regard to price and quantity of stock and had drafted a document reflecting the agreement 4: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only with the existence of the alleged oral contract | [
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to have been concerned that since Nix had “never before held office” and at the time of the complaint had taken few steps to establish his candidacy, LaRoque, 755 F.Supp.2d at 175, the risk he would change his mind was unacceptably high, thus raising the possibility that the court would end up “render[ing] an advisory opinion in ‘a case in which no injury would have occurred at all,’ ” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C.Cir.1994) (quoting Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130). But when plaintiffs filed their complaint, the election in which Nix planned to run was only nineteen months away, a far cry from the more than four-year gap that sank Senator Mitch McConnell’s standing in McConnell v. FEC, 540 U.S. 93, 225-26,124 S.Ct. 619,157 L.Ed.2d 491 (2003) (<HOLDING>), overruled on other grounds by Citizens United Holdings: 0: holding that senator mcconnell lacked standing to challenge a provision of the bipartisan campaign reform act of 2002 bcra that at earliest would have affected him in his 2008 reelection campaign 1: holding citizens lacked standing to challenge statute when all citizens affected in the same way 2: holding that incumbent congressmen subject to twoyear election cycles had standing to challenge the fecs implementation of certain provisions of bcra 3: holding that plaintiffs lacked standing to sue 4: holding that letters from the union during an election campaign containing arguably misleading statements did not affect the employees right to a free and fair choice | [
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broader, requirement of knowledge in other state statutes. The analogous section of the Oregon Blue Sky Law provided for the liability of every director, officer or agent of the seller, if such director, officer or agent with knowledge of the violation personally participated or aided in any way in making [the sale] * * *. [Emphasis added.] Ore.Rev.Stat. § 59.250(1). The Oregon Supreme Court, sitting in banc, held that “such knowledge is established by proof that the person knew the security was unregistered and it is not necessary, in addition, to prove that the person knew that the law required the security to be registered.” Spears v. Lawrence Securities, Inc., 239 Or. 583, 399 P.2d 348, 350 (1965) (in banc). See Lolkus v. Vander Wilt, 258 Iowa 1074, 141 N.W.2d 600, 604 (1966) (<HOLDING>). In their petition appellants Dayan and Bibi Holdings: 0: holding that 2073 was not inconsistent with the provision regarding the discharge of a teacher employed by public schools iowa code 27927 1: holding interpretation of workers compensation statutes not clearly vested by a provision of law in the discretion of the agency triggering review under iowa code section 17a1910c 2: holding that notwithstanding similar provision code of iowa 50223 1962 defendants could not because of their inexperience in the field of security sales claim immunity because of ignorance of the statutes 3: holding that proof of willfulness in criminal tax cases requires negating a defendants claim of ignorance of the law or a claim that because of a misunderstanding of the law he had a goodfaith belief that he was not violating the law 4: holding that ignorance or misunderstanding of the law would not toll the running of the statute of limitations | [
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this regard, in Benavidez v. City of Albuquerque, 101 F.3d 620-627 (10th Cir.1996), we spoke as follows: When the pre-termination process offers little or no opportunity for the employee to present his side of the case, the procedures in the post-termination hearing become much more important. Such a post-termination hearing represents the only meaningful opportunity the employee has to challenge the employer’s action, and requiring a dismissed employee to prove in this context that he was terminated without just cause may increase the risk of an erroneous deprivation. It is often difficult to prove a negative, and where the pre-termination process has been minimal, the employee’s fate may depend entirely upon the post-termination hearing. Cf. Lavine, 424 U.S. at 585, 96 S.Ct. at 1016 (<HOLDING>); Speiser v. Randall, 357 U.S. 513, 525, 78 Holdings: 0: holding that the burden of proof lies on the party asserting the protection of the work product doctrine 1: recognizing that wjhere the burden of proof lies on a given issue is of course rarely without consequence and frequently may be dispositive 2: holding that section 523a2c shifts the burden of production and not the burden of proof on the issue of intent only 3: recognizing burden 4: holding that the burden of proof is on the claimant | [
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a blood specimen to police after they properly secured that specimen from appellee for medical purposes. Where a non-governmental party has “a legitimate independent motivation” for engaging in the challenged conduct, the Fourth Amendment does not apply. See United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990) (concluding that for the conduct of a party to be subject to the Fourth Amendment that party must have acted with the intent to assist the government in its investigations for administrative purposes and not for an independent purpose). Consequently, evidence obtained by private parties and turned over to the police is not obtained in violation of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); Attson, 900 F.2d at 1433 (<HOLDING>). There is no evidence before this Court that Holdings: 0: holding that a physician employed by the government who drew a blood sample from the defendant for medical not investigatory purposes did not conduct a search under the fourth amendment 1: holding that canine sniff not a search under the fourth amendment 2: holding that impoundment of a vehicle can be a seizure under the fourth amendment 3: holding that doctor who drew blood for purely medical reasons did not possess the requisite intent to engage in a search or seizure under the fourth amendment 4: holding seizure of evidence in plain view reasonable under fourth amendment | [
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as a basis for a RICO violation, those allegations must meet a heightened sentation to whom and the general content of the misrepresentation. See Saporito, 843 F.2d at 675; Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658-59 (3d Cir.1998); Klein v. General Nutrition Companies, Inc., 186 F.3d 338, 345 (3d Cir.1999); see also First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 178 (2nd Cir.2004) (requiring RICO violation based on bankruptcy fraud to be pleaded with heightened particularity); see also Lum, supra, (requiring mail and wire fraud-based RICO claim to be subject to Rule 9(b) pleading standard). In addition to mail and wire fraud, the Amended Complaint also pleads the predicate acts of money Coast Ingredients, Inc., 2004 WL 941815 *19 (W.D.N.Y.) (<HOLDING>); and see Perlman v. Zell, 938 F.Supp. 1327, Holdings: 0: holding that the fact that federal rule of civil procedure 9b requires a heightened pleading standard for some claims but not for a section 1983 claim against a municipality means that the rules do not require a heightened pleading standard for such a claim 1: holding that claim of trading in counterfeit goods need only meet rule 8a2 notice pleading standard 2: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard 3: holding where party fails to challenge specificity of pleading it waives right to claim that pleading fails to meet legal requirements 4: holding that a constructive fraud count need not comply with rule 9s heightened pleading standard | [
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to consent in sexual battery cases. See Engle v. State, 290 Ga. App. 396, 398 (2) (659 SE2d 795) (2008); Carson v. State, 259 Ga. App. 21, 24 (5) (b) (576 SE2d 12) (2002); Hendrix v. State, 230 Ga. App. 604, 606 (3) (497 SE2d 236) (1997); see also Haynes v. State, 302 Ga. App. 296, 302 (3), n. 4 (690 SE2d 925) (2010) (applying age of consent to hold that the state is “not required to prove lack of consent to establish sexual battery”). Our cases in that regard are consistent with the principle, expressed by our Supreme Court in connection with a case involving rape, “that the element of‘against her will’was automatically shown by [the minor victim’s] age.” Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977). See also Lee v. State, 300 Ga. App. 214, 216 (1) (684 SE2d 348) (2009) (<HOLDING>) (citations omitted; emphasis supplied); Holdings: 0: holding that battery is an inherently included offense of aggravated battery 1: holding that consent is not a defense to the crime of aggravated battery even though the defendant alleged that the victim procured the weapon and invited the defendant to shoot him because the public has a stronger and overriding interest in preventing and prohibiting such acts 2: holding that the offense of sexual battery requires the state prove the victims lack of consent regardless of the victims age and charge the jury on the same 3: holding that the defendant could be convicted of sexual battery a lesser crime not included in the offense for which he was indicted where the defendant requested that sexual battery be submitted to the jury 4: holding state could prove aggravated sexual battery by showing among other things that the victim did not consent or lacked the capacity to consent in case where defendant father argued he had been addressing minor daughters medical and hygiene needs | [
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that she made specific arguments outlining her objections to the jury instructions at the charge conference; however, arguments made at a charge conference do not preserve a subsequent challenge to a jury instruction on appeal. Rather, an objection “must be made at the close of the court’s initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error.... ” McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859 (Ala.1988). The objection made by McDonald at the close of the trial court’s instructions to the jury was not specific and accordingly fails to meet the requirements of Rule 51, Ala. R. Civ. P., for preserving any alleged error in jury instructions for appellate review. See also Burnett v. Martin, 405 So.2d 23, 27 (Ala.1981) (<HOLDING>). Because the alleged error was not preserved Holdings: 0: holding that an exception to the charges having to do with contributory negligence charges two three and four was insufficient to preserve issue for appeal 1: holding that two general objections were insufficient to properly preserve the issue 2: recognizing that conclusory statements do not preserve an issue for appeal 3: holding that the speedy trial clock for state charges did not begin to run when the defendant was taken into custody by federal authorities on federal charges but rather when he was indicted for the state charges 4: holding defendant failed to preserve burden of proof issue for appeal | [
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that even assuming, arguendo, that defendants’ failure to oppose Keosay’s reduced bail bond increased the danger of significant harm to Ammy, the defendants’ conduct, when viewed in total, was not conscience shocking such as to constitute a violation of substantive due process. Finally, the court concludes that the County defendants are entitled to assert prosecutorial immunity from plaintiff Sophapmysay’s lawsuit. Therefore, the County defendants’ and defendant Driebilbus’s respective motions for summary judgment are granted. IT IS SO ORDERED. 1 . Although the complaint refers to defendant Lori Limits, "Limits’s” actual name is Lori Limoges. Therefore, the court will use Limoges actual name in this opinion but will continue to use "Lori Limits” in the caption to t (1st Cir.) (<HOLDING>), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 Holdings: 0: holding that private attorney who acted as courtappointed counsel for child in state juvenile delinquency proceedings was not acting under color of state law 1: holding that private doctor under contract with a state prison to provide medical care to prisoners acted under color of state law when he treated inmate 2: holding private actors are not acting under the color of state law for the purposes of section 1983 liability 3: holding that to prevail on a 1983 claim a plaintiff must allege that the defendant acted under color of state law in other words that there was state action 4: holding that courtappointed guardian ad litem for child in child custody dispute did not act under color of state law | [
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of a concealed firearm on a prior instance is relevant to a charge of possession of a firearm in his car while he sought to transport drugs.... Introduction of a prior conviction for carrying a concealed weapon helped the government establish that Gomez was aware of the dangers of and law relating to concealed weapons and rebut Gomez’s claim that the gun was for an innocent purpose and its presence was mere accident or coincidence. The district court did not abuse its discretion in allowing such evidence. 927 F.2d 1530, 1534 (11th Cir.1991) (emphasis added); see also United States v. Coleman, — F.3d - (3d Cir.2003) (“Coleman put at issue during trial whether he had knowledge of, and thus possessed, the shotgun and narcotics found in the apartment in which he resi (2d Cir.1983) (<HOLDING>); United States v. Beechum, 582 F.2d 898, 913 Holdings: 0: holding that the introduction of evidence of previous instances in which the defendant had been present in an automobile with a shotgun were admissible under fed rules of evid 404b to show that his presence in the car with the shotgun on the occasion in question was intentional and not a mistake or accident 1: holding that the sound of a television on the inside of the house and the presence of a car in the driveway were sufficient to form the basis of the reasonable belief that the suspect was in the home 2: holding that rule 404b evidence is admissible in rebuttal 3: holding that evidence of prior criminal misconduct is admissible under rule 404b to prove motive opportunity intent preparation plan knowledge identity or absence of mistake or accident 4: holding that probable cause was clearly present justifying the taking of a blood sample without the defendants consent when it was established that the defendant was involved in an automobile accident and the police noticed liquor on his breath at the scene of the accident and at the hospital | [
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. See 29 C.F.R. part 1630, § 1630.1 (1992). 20 . See 29 C.F.R. § 1630.2 (1992). 21 . 29 C.F.R. Part 1630, Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.1(a). 22 . Id. at § 1630.2(j). 23 . See infra Part 11(A)(2). 24 . See 29 U.S.C.S. § 706(8)(B)(iii) (1990). 25 . 794 F.2d 931 (4th Cir.1986). 26 . Id. at 935. 27 . 755 F.2d 1244, 1249-50 (6th Cir.1985). 28 . Id. at 1249; see also Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir.1992) (applying these factors in affirming summary judgment against plaintiff on grounds that he failed to establish that he was regarded as handicapped). 29 . 755 F.2d at 1249 n. 3. Such a "narrow range of jobs" need not be numerically insignificant. See, Daley v. Koch, 892 F.2d 212, 215 (2d Cir.1989) (<HOLDING>). This court takes judicial notice that New Holdings: 0: recognizing sleeping as major life activity 1: holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity 2: holding that disqualification from an especially traumatic occupation does not constitute a substantial limitation on the major life activity of working 3: holding that a perceived impairment that prevented the plaintiff from successfully applying for a position as a police officer for the city of new york did not constitute a substantial limitation of a major life activity 4: holding that reproduction is not a major life activity | [
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2757. Circuit courts have consistently applied this principle in sustaining plans designed to redress past discrimination’s lingering effects. See, e.g., Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752, 758 (9th Cir.1984) (“It is sufficient for the employer to show a conspicuous imbalance in its workforce” to justify a race-conscious remedy.), cert. granted, — U.S. -, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986); Bushey v. New York State Civil Service Commission, 733 F.2d 220, 228 (2d Cir.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985) (“[A] prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact” satisfies the remedial predicate.); Van Aken v. Young, 750 F.2d 43 (6th Cir.1984) (<HOLDING>); Janowiak v. Corporate City of South Bend, 750 Holdings: 0: holding that city may remedy imbalance in the composition of the fire department created by traditional segregative practices 1: holding that the city of denver police department is not a suable entity 2: holding that a volunteer fire department which was a nonprofit corporation was an agency of a political subdivision for the purposes of the flsa 3: holding no municipal liability in light of city administrators ultimate authority to approve or rescind departmental personnel decisions despite evidence that the fire chief was in charge of establishing rules regula tions policies and procedures for the operation of the fire department 4: holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures | [
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had discriminated against him as a result of a handicap when it terminated him in March 1995. The Commission took no action during the next 180 days. As he was entitled to do, Mr. Ross withdrew this complaint and the Commission issued a notice of dismissal on December 11, 1996. Mr. Ross did not file his lawsuit against Jim Adams Ford until July 21, 2000. His complaint contained two counts. In count II, he alleged that he had been terminated in retaliation for filing a workers’ compensation claim. See § 440.205, Fla. Stat. (1993). The trial court dismissed this count because it was filed more than four years after Mr. Ross’s termination and was barred by the statute of limitations provided for statutory claims in section 95.11(8)(f). See Scott v. Otis Elevator, 524 So.2d 642 (Fla.1988) (<HOLDING>). Mr. Ross does not challenge this ruling on Holdings: 0: holding that for purposes of determining the appropriate limitations period section 14a actions are treated identically to actions under section 10b 1: holding fouryear period for statutory actions applies to section 440205 claims 2: holding fouryear statute of limitations in section 95113f applies to claims under florida civil rights act when commission on human relations fails to make reasonable cause determination within 180 days 3: recognizing a fouryear statute of limitation for fraud claims 4: holding that either a fouryear or a twoyear limitations period applies to claims under the idea in ohio for tuition reimbursement either way the claims were timebarred | [
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find the design of the card-holding container nonfunctional. IV. CONCLUSION For the foregoing reasons, Defendants are entitled to summary judgment as against Continental’s claims for trade dress infringement and unfair competition. 1 . On July 7, 2000 this Court issued an order granting Defendants’ motion for summary judgment and entering final judgment in favor of Defendants on all claims. (See Memorandum Opinion and Order re: Trade Dress Claims.) This memorandum incorporates several minor editorial changes and corrections. Because more than 10 days have passed since entry of final judgment, this memorandum cannot effect any change in the judgment or extend the time to appeal. See Fed.R.Civ.P. 59(d)-(e); Burnam v. Amoco Container Co., 738 F.2d 1230, 1231 (11th Cir.1984) (per curiam) (<HOLDING>); Scott v. Younger, 739 F.2d 1464, 1467 (9th Holdings: 0: holding in a case where the plaintiff had argued that the district court lacked jurisdiction to amend its judgment more than ten days after entry because that is the time limit under federal rule of civil procedure 59 that a district court can amend its judgment because of mistake or inadvertence months after judgment has been entered pursuant to rule 60b of the federal rules of civil procedure 1: holding that when a court sua sponte converts a motion to dismiss into a motion for summary judgment the court must give at least 10 days notice to the nonmovant 2: holding that 10 day period under rule 59 is jurisdictional and cannot be waived by the district court 3: holding the district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff who is represented by counsel never filed a motion to amend nor requested leave to amend before the district court 4: holding that district court has limited authority under rule 59 to alter or amend judgment sua sponte so long as court acts within 10 days of entry of judgment | [
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accord those opinions little weight. For the reasons set forth below, the evidence the ALJ cites as contradicting the opinions of Santiago’s treating physicians is not substantial. For example, the ALJ completely disregarded Nunez’s opinion that Santiago’s depression met the B Criteria on the ground that Nunez expressed his view by signing a report that the ALJ believes was written by Malinowska. (Tr. 23.) However, even if the ALJ’s handwriting analysis is accurate and the report was written by Malinowska, there is no reason to believe that the report Nunez signed does not reflect his own view. Nor is there any legal principle which states that a doctor must personally write out a report that he signs for it to be afforded weight. See Ruiz v. Apfel, 98 F.Supp.2d 200, 209 (D.Conn.1999) (<HOLDING>). Since Nunez signed his name to the report and Holdings: 0: holding that a question of fact existed regarding whether the hospital held the doctor out as its agent if the hospital provided the doctor without explicitly informing the patient that the doctor was not its employee 1: holding that alj must give weight to a report signed by doctor even though it was prepared by someone else 2: holding that a summary report prepared by police officers for the solicitors use in prosecuting the case was not subject to discovery 3: holding that where a treating doctor is called to give an expert opinion on the standard of care that doctor is properly labeled an expert witness and must be disclosed to the other party along with other experts 4: holding expert report requirement fulfilled in claim against nurse by providing expert report of nurse as to standard of care and expert report of medical doctor as to causation | [
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entitle him to credit against his sentence, and which is a factor affecting security level and parole decisions. Generally speaking, inmates have no legally protected interest in remaining in a particular location of confinement. Meachum v. Fano, 427 U.S. 215, 226-27, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Although plaintiff argues that the ability to take and complete classes is a protected liberty interest, he has not pointed to a state statute creating such an interest. See id.; Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, the potential effect of preventing plaintiff from taking classes on the duration of his sentence is “too attenuated to invoke the procedural guarantees of the Due Process Clause.” Sandin, 515 U .S. at 487, 115 S.Ct. 2293 (<HOLDING>). VIII Challenge of the seizure of plaintiffs Holdings: 0: holding that even though the complaint was dismissed without prejudice as a sanction for misconduct and even though the order of dismissal was therefore not an adjudication on the merits the defendants were nevertheless properly considered the prevailing party for purposes of attorneys fees 1: holding that a sentence was based on a mandatory statutory minimum sentence even though it was lowered under another statute 2: holding that sentence was erroneous but not void where sentence of life imprisonment without parole was imposed for first degree murder under unconstitutional penalty statute 3: holding that effect of misconduct record on duration of sentence was too attenuated even though it was a relevant consideration for parole 4: holding that the state courts decision to uphold the parole boards denial of parole was an unreasonable determination of the facts in light of the evidence | [
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Aristides Omar Mantilla petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal. Substantial evidence supports the conclusion of the Immigration Judge (“IJ”) that Mantilla failed to establish eligibility for asylum. Mantilla did not establish a connection between threats made against his family and one of the five statutory grounds for asylum. See Cruz-Navarro v. INS, 232 F.3d 1024, 1028-30 (9th Cir.2000) (<HOLDING>). Mantilla also has presented no evidence that Holdings: 0: holding that persecution on account of a protected category must be because of that category 1: holding that persecution based on being a current member of the military national police force or us embassy guard does not qualify as persecution on a protected ground 2: holding that persecution by militants for purpose of recruitment does not establish a nexus to a protected ground 3: holding that dangers arising from police work do not support a claim of persecution on account of a protected ground 4: holding that petitioners who apply for withholding of removal must establish that a statutorily protected ground was a reason for their persecution | [
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would not shock the conscience. Accordingly, we hold that the Rooker-Feldman doctrine does not bar the plaintiffs’ substantive due process theory. VI. The defendants finally argue that since the Rooker-Feldman doctrine divests federal courts of jurisdiction to order relief that prevents the enforcement of an order previously entered by a state court, Rooker-Feldman precludes the plaintiffs’ attempt to obtain an injunction against the closure of Desi’s and further harassment by the defendants. We disagree. The plaintiffs’ request for an injunction against the closure of Desi’s pursuant to the state court’s order is moot, as the state court’s injunction has expired and Desi’s has resumed operations. See, e.g., Orion Sales v. Emerson Radio Corp., 148 F.3d 840, 842 (7th Cir.1998) (<HOLDING>); Hodges v. Schlinkert Sports Assocs., 89 F.3d Holdings: 0: holding an appeal of injunction moot where the injunction expired three months before the appellate court heard arguments in the case 1: holding that plaintiffs were not entitled to a preliminary injunction 2: holding that when the district court applies the wrong preliminary injunction standard this court may review the record to determine whether the injunction is justified 3: holding that where a noncompetition clause in a contract had expired by its own terms the plaintiffs appeal from the district courts denial of the plaintiffs request for a preliminary injunction enforcing the clause was moot 4: holding that where a district courts preliminary injunction preventing the appellant from terminating its agreement with the defendant had expired the appellants appeal of the district courts decision to grant that injunction was moot | [
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should be denied as to the Plaintiffs’ common law tort claims for negligent hiring and supervision (Count 3), negligent infliction of emotional distress (Count' 6), negligence (Count 7), and loss of services (Count 8). B. Negligent infliction of emotional distress. The Defendants argue that Mrs. Reiber’s claim for negligent infliction of emotional distress fails for another reason also. They argue that “‘[t]o maintain a claim for negligent infliction of emotional distress, a plaintiff must show that she suffered a .direct physical impact.’ Neal, [ 2005 WL 1939955 at *10] (citing Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2005) (stating that ‘[a]s modified, the [impact] rule still requires physical impact’); Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1263-64 (Ind.Ct.App. 2002) (<HOLDING>); Ketchmark v. N. Ind. Pub. Serv. Co., 818 Holdings: 0: recognizing torts of intentional and negligent infliction of emotional distress 1: holding that act did not bar intentional infliction of emotional distress claim 2: holding that under south dakota law compensation for negligent infliction of emotional distress requires manifestation of physical symptoms and intentional infliction of emotional distress requires an extreme disabling emotional response 3: holding that employee could not state a claim for negligent infliction of emotional distress under fela without a showing of physical impact 4: holding that in being discharged employee did not sustain the direct physical impact required to maintain an action for negligent infliction of emotional distress | [
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B. Validity of Petitioner’s Marriage Under New York Law Petitioner concedes that his marriage ceremony “was not done according to New York laws [sic ].” (Pet. Mem. at 4.) Nonetheless, Petitioner maintains that his marriage is valid under New York law, because: 1) the marriage was authorized under Polish law, and, therefore, should be recognizable in all jurisdictions (Pet.’s Mem. at 3); and 2) “there is no strict requirement for how marriage should be performed.” (Id. at 9.) Petitioner makes two arguments in support of his position that a marriage authorized under Polish law is valid in New York State. First, Petitioner argues that his consular marriage should be recognized under New York law, because “New York State has a history of recognizing judgments rendered in fo .Ct. 1944) (<HOLDING>). Second, Petitioner relies on Article 25(c) of Holdings: 0: holding state buy american statute unconstitutional because it interfered with federal foreign affairs power emphasizing its effect on foreign commerce 1: holding that a ceremonial marriage performed under the laws of a foreign power by a foreign consular officer on united states territory was invalid because it did not comply with the laws of new york state 2: holding that a divorce granted at a foreign consulate in new york was not valid for immigration purposes because it did not comply with new york law 3: holding that in the event that parties are from different states and the subject matter is national in scope and where the contract states it shall be deemed to be made under the laws of the state of new york and for all purposes construed in accordance with laws of said state new york law applies as the parties choice of law 4: holding that statements by an american consular officer that petitioners mother could not return to the united states because of her pregnant condition did not constitute affirmative misconduct sufficient to estop the government from relying on petitioners foreign birth to deny citizenship | [
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consider both separately. With respect to the Peace Child Care Center, Inc., the determination to be made is whether it was operated primarily for religious purposes and whether it was operated, supervised, controlled, or principally supported by the Church. The record reflects no disagreement that the now defunct child care center was primarily subsidized by the Church. The only step remaining is determining if the child care center was operated primarily for religious purposes. The evidence on this issue is not disputed. The Church’s bookkeeper testified that the function of the child care center was to take care of children and provide an outreach for the church. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 784-85, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981) (<HOLDING>). Likewise, Co-manic’s testimony that she Holdings: 0: holding that disaffiliated church had de facto dissolved when last vote of its full membership was to dissolve and to transfer assets to mother church 1: holding the federal unemployment tax act section exempting service performed in employ of church after which florida molded its unemployment law was meant to apply to schools that have no separate legal existence from the church and therefore employees working within such schools are in employ of the church 2: holding that first amendment barred child victim of sexual abuse by priest from bringing breach of fiduciary duty claim against priest church official and church 3: holding that a church was entitled to employ only members of its faith 4: holding that members of a church congregation lacked sufficient interest to support intervention in an action by the church itself challenging the designation of the church as a landmark | [
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valid[.]” (citation omitted)). In Georgia v. Randolph, the Supreme Court reiterated a narrow exception to this rule, holding that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” 547 U.S. at 122-23, 126 S.Ct. 1515; see also Fernandez, 134 S.Ct. at 1134 (emphasizing Randolph does not extend to cases where the objector is not present and objecting). Put another way, the Supreme Court has held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120, 126 S.Ct. 1515 (footnote omitted) (<HOLDING>). Subsequent courts have applied Randolph in Holdings: 0: holding that each occupant of a car has a right to challenge the propriety of a traffic stop under the fourth amendment 1: holding police incident to arrest of occupant of automobile may search entire passenger compartment of vehicle 2: holding that a warrantless search of a shared dwelling was reasonable as to one occupant who gave consent but not to another who did not 3: holding search invalid under the fourth amendment when a physicallypresent occupant expressly objected to a search notwithstanding the consent of a fellow occupant 4: holding defendants girlfriend had authority to consent to search as a joint occupant | [
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until peremptory challenges are exercised. 22 . In McCrory v. Henderson, 82 F.3d 1243 (2d Cir.1996), the court observed: If ... a Batson objection may be raised after the jury has been sworn and trial has begun, there can be no remedy short of aborting the trial. This would permit the defendant to manipulate the system to the extreme prejudice of the prosecution and give the defendant a strong inducement to delay raising the objection until trial is underway. As the trial judge is unlikely for reasons of judicial economy to abort the. trial, the defendant may have the opportunity to test his fortunes with the first jury, preserving the opportunity for a mistrial and a second round in the event of a conviction. See United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir. [1990]) (<HOLDING>), cert. denied, 498 U.S. 877, 111 S.Ct. 206, Holdings: 0: holding that batson challenge raised for the first time after trial was untimely in part because only remedy after trial is vacating the conviction 1: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 2: holding batson challenge untimely because objection made after all jurors were sworn 3: holding that a claim not raised before the trial court will not be considered for the first time on appeal 4: holding that claims raised by appellant for first time in motion for new trial were untimely and therefore waived | [
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cannot prevail. The second temporal issue relates to when the mold and bacteria came into existence. There is no evidence whatsoever, undisputed or otherwise, of when the mold and mildew came into existence. This shortfall in the evidence that Panorama put forth to support its motion for summary judgment impacts all counts of the complaint, but especially the count for negligence. The Schornbergs in their complaint state that they were advised in June 2003 that the water intrusion they had detected a month earlier had caused growth of mold and bacteria. However, the complaint is not evidence. Straub v. Village of Wellington, 941 So.2d 1269 (Fla. 4th DCA 2006) (stating that a complaint is not admissible to prove or disprove a fact in issue). Evidence that the mold and bacteria w A 1999) (<HOLDING>); Floyd v. Homes Beautiful Constr. Co., 710 Holdings: 0: holding that despite release language discharging defendant from claims upon or by reason of any matter cause or thing whatsoever from the beginning of the world to the day of these presents release did not bar any claims accruing after the date of execution 1: holding that release which barred all claims from the beginning of the world to the day of the date of these presents included all claims which had matured at the time of its execution 2: 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 3: holding that release which barred all claims from the beginning of the world to the day of these presents included claims which the releasor had or could have had against the releasee up to the date of its execution 4: holding that all inclusive language from the beginning of the world to the days present barred all claims arising prior to releases execution | [
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that the Supreme Court has recognized as giving rise to standing if allegedly infringed. West Virginia’s claimed injury does not involve the State’s interest in the enforcement of its own laws. See Snapp, 458 U.S. at 601, 102 S.Ct. 3260 (identifying as a sovereign interest “the power to create and enforce a legal code, both civil and criminal”). It does not involve a demand that West Virginia’s sovereignty be recognized by another state.' See id. (identifying as a sovereign interest “the demand for recognition from other sovereigns”). It does not involve the State’s real property, see E.P.A., 549 U.S. at 519, 127 S.Ct. 1438 (recognizing “Massachusetts’ well-founded desire to preserve its sovereign territory”); its public fisc, see Nat’l Fed’n of Indep. Small Bus., 132 S.Ct. at 2604-05 (<HOLDING>); or another form of proprietary interest, see Holdings: 0: holding that the threatened loss of over 10 percent of a states overall budget is economic dragooning that leaves the states with no real option but to acquiesce in a federal demand 1: holding that the sentence in article ii section 16 constitution of montana that guarantees an employee the right of full legal redress against third parties is mandatory and self executing and leaves no room for erosion based on what federal courts or the courts of other states would do pursuant to federal laws or the laws of other states 2: holding that where a state voluntarily chooses to submit to a federal forum principles of comity do not demand that the federal court force the case back into the states own system 3: holding that the land under navigable waters was not granted by the constitution to the united states but was reserved to the states respectively and that new states have the same rights jurisdiction and sovereignty over the soil under navigable water as the original states 4: recognizing federal constitutional claim against the united states | [
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Pennington, judge of the 38th Judicial District Court, Uvalde County, Texas. 5 . The trial court also denied the District’s motion to sever the partial summary judgment granted by the trial court. Because the trial court denied the severance motion, the court's summary judgment ruling is not at issue in this appeal. 6 . (emphasis added). The fact that the Board approved the permit applications upon the condition that the District’s General Manager confirm each applicant’s installation of a water well flow meter, compliance with the Rules of the Kinney County Groundwater Conservation District, and payment of all fees due and owing to the District does not diminish or affect the definitiveness of the District’s order in this instance. See Tex.-New Mexico Power Co., 806 S.W.2d at 233 (<HOLDING>). 7 . The District argues the cases cited in Holdings: 0: recognizing that conditions placed on the issuance of a permit do not necessarily diminish or eliminate the definitiveness of the order approving the permit 1: recognizing the importance of a determination on the merits with respect to the issuance of a permanent injunction 2: holding that issuance of an order to show cause satisfied this requirement 3: holding that once district court entered order approving the settlement of class claims it could not alter the class in the absence of egregious error 4: holding the acquisition of vested rights requires the issuance of a permit and some substantial expenditure obligation or change in relation to the land | [
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an insurer to defend when there may be no ultimate duty to indemnify. This is true because the duty to defend is broader than the duty to indemnify. We are satisfied that the interests of justice and the conservation of scarce judicial resources support the course we have chosen.” Merrimack Mut. Fire Ins. Co. v. Brennan, 534 A.2d 353, 354 (Me.1987) (citation omitted). We therefore conclude that the hardship to the insurer is outweighed by the competing interests of preventing duplicative litigation and sparing insureds the costs of defending a collateral action brought by the insurer to determine its obligations under the insurance contract before the nat parties’ stipulation of fact to determine duties to defend and indemnify); cf. Bowen v. Hanover Ins. Co., 599 A.2d 1150 (Me.1991) (<HOLDING>). In Dolley, the insurer filed its declaratory Holdings: 0: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer 1: holding that the parties stipulation of dismissal with prejudice was a final judgment 2: holding that insurer had no duly to indemnify insured in view of the parties stipulation of fact 3: holding that under new york law for an insurer to have no duty to defend the court must find as a matter of law that based on the pleadings there was no possible factual or legal basis on which the insurer might eventually be held obligated to indemnify the insured 4: holding that where all necessary parties including the insurer the insured and the third party claimant had stipulated to the material facts in the dispute a declaratory judgment action on the insurers duty to indemnify could proceed | [
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challenge the computation of the compensatory damages. 7 . Although some of these events did take place prior to the plan's confirmation, the claims are not barred by res judicata because the breaches of fiduciary duly did not occur until well afterward. The pre-confirmation events are looked at only for background, pattern of activity, and for evidence of motive. See n.4, supra. 8 . We also find that the punitive damages were proportional to the compensatory damages, less than a 2 to 1 ratio, and that there is therefore no need to discuss a possible conflict between Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (suggesting that punitive damages disproportionate to compensatory damages may violate due process), and Kirkbride, 555 A.2d at 803 (<HOLDING>). See Tunis Bros. Co. v. Ford Motor Co., 952 Holdings: 0: holding that punitive damages do not need to be proportional to compensatory damages 1: holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages 2: holding that when compensatory damages are nominal a much higher ratio of punitive damages to compensatory damages can be contemplated 3: holding compensatory and punitive damages constitute legal remedies 4: holding that punitive damages are available in an intentional discrimination action even if the jury does not assess compensatory damages | [
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secured to the defendant’s dock and had the effect of extending the dock’s work area. The barge was moved infrequently, primarily to launch the newly constructed concrete barges. This Court, relying on the Supreme Court’s decision in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887), concluded that the barge was a construction platform not designed for the transportation of passengers, cargo, or equipment across navigable waters, and that “the status of the craft [was] governed by the proposition that, ‘as a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock.’ ” Id. at 1002 (citations omitted). The barge in question was merely an extension of the dock. See also Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir.1981) (<HOLDING>); Leonard v. Exxon Corp., 581 F.2d 522 (5th Holdings: 0: holding that floating barge moored to shore remaining in same place for approximately seven years and used as work platform to clean and strip cargo and gas from barges was not a vessel 1: holding that barge moored to the shore and used as a stationary work platform to clean other barges was not a vessel 2: holding that two barges fastened together moored to bank of river and used to weld pipeline together were not vessels 3: holding a bank liable where a bank officer held checks that were intended to pay the irs for withheld taxes 4: holding that an africanamerican investment advisor who accompanied two clients into a bank could assert a 51 claim alleging discrimination against the bank even though his clients were the actual customers of the bank | [
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that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit.” Brandon v. Board of Ed. of Guilderland Cent. School District, 635 F.2d 971, 978 (2d Cir.1980); see Roemer v. Board of Public Works, 426 U.S. 736, 750, 764, 96 S.Ct. 2337, 2346, 2353, 49 L.Ed.2d 179 (1976). Here, since defendants display Martin’s painting in a high school auditorium, students view the painting each time they enter the auditorium. Further, defendant School District uses the auditorium for numerous events at which elementary students are required to attend. Susan Affidavit, Doc. 7 at ¶ 4. Accordingly, this court’s scrutiny of the painting and its placement must be all the more discriminating. See Grand Rapids, 473 U.S. at 390, 105 S.Ct. at 3226 (<HOLDING>). Taking into account the significant message Holdings: 0: holding that when a defendant raises a claim of ineffective assistance of counsel the trial judge must conduct an inquiry into the claim 1: holding that the inquiry into endorsement test must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years 2: recognizing parents fundamental liberty interest in the care custody and management of their children 3: recognizing fundamental right of parents to care for their children 4: holding that natural parents have a fundamental liberty interest in the care custody and management of their children | [
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Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69, 75 (1980); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982); Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App.1976); Beck v. Sheppard, 566 S.W.2d 569 (Tex.1978); Rhiness v. Dansie, 24 Utah 2d 375, 472 P.2d 428 (1970); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950); Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961). The rules regarding negligence in such situations are the same as in ordinary negligence 190 Cal.Rptr. 729 (App.Dep’t Super.Ct.1983) (<HOLDING>); Jackson v. Hardy, 70 Cal.App.2d 6, 160 P.2d Holdings: 0: holding that nominal damages award was appropriate where the evidence supporting the damages was speculative 1: holding that plaintiffs own testimony that he was embarrassed and humiliated by defendants conduct was sufficient to support compensatory damages award 2: holding that when compensatory damages are nominal a much higher ratio of punitive damages to compensatory damages can be contemplated 3: holding that the plaintiffs evidence that the ranchers cows had escaped several times over the past 10 years constituted sufficient evidence for jury to properly find simple negligence and to award compensatory damages where the plaintiffs sustained damages when their car collided with a cow owned by the defendant 4: holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages | [
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EmCare, which resulted in Scott’s firing. Also similar to Scott, the plaintiff in Butler used the same equipment as the manufacturer’s employees and produced the goods that were the manufacturer’s core business. See id. But there are important differences between the two cases. For example, the manufacturer’s employees supervised the Butler plaintiff on the factory floor. See id. Here, Scott was supervised by an EmCare employee. Further, the Butler plaintiff performed the same tasks as the manufacturer’s employees, whereas all hospitalists like Scott were EmCare employees. Given these differences, Butler does not convince us that the jury here rendered a verdict against the great weight of the evidence. Cf. Ling Nan Zheng v. Liberty Apparel Co. Inc., 617 F.3d 182, 185-86 (2d Cir. 2010) (<HOLDING>). The relationship between Scott and the Holdings: 0: holding that probable cause determination presents a mixed question of law and fact 1: holding that an error pertaining to a mixed question of law and fact under state law is not cognizable in a federal habeas proceeding 2: holding the question of necessity is one of mixed law and fact and accordingly one for the fact finder in the ordinary case 3: holding that whether the defendants confession was voluntary was a mixed question of law and fact subject to de novo review 4: holding that joint employment determination was a complex mixed question of law and fact properly determined by jury | [
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fairly have granted Appellants’ petition to open. However, under these circumstances, we cannot conclude that the trial court abused its discretion in declining to do so. Order affirmed. Gantman, J. concurs in the result. 1 . See Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971) (ruling that court did not abuse discretion in striking default judgment where insurer lost client's court papers and prejudice lacking); Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206 (1993) (deeming insurer’s delay reasonable excuse); Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc) (forgiving delay when disadvantaged party was aban doned by multiple attorneys for want of ability to pay); cf. Jung v. St. Paul’s Parish, 522 Pa. 167, 560 A.2d 1356 (1989) (<HOLDING>); Manson v. First Nat'l Bank in Ind., 366 Pa. Holdings: 0: holding that the trial court must ensure that the requests are tailored to the specific action and that discovery requests that reflect a mere fishing expedition should not be allowed 1: holding that not only must discovery requests be reasonably tailored to include only matters relevant to case but discovery requests may not be used as fishing expedition or to impose unreasonable discovery expenses on opposing party 2: holding that the defendants discovery requests were untimely because they were not served in time for the responses to be due before the discovery deadline 3: holding that non pros should have been opened where parties were engaged in settlement negotiations and rule to file complaint was intermingled with discovery requests 4: holding default was the appropriate remedy for failure to comply with numerous court orders and discovery requests | [
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(BIA 1992). Its construction of ambiguous statutory provisions — like the term “crime involving moral turpitude” — is entitled to Chevron deference. Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.2012). Consequently, this court “must uphold the BIA’s construction [of 8 U.S.C. § 1227(a)(2)(A)® ] unless it is arbitrary, capricious, or manifestly contrary to the statute.” Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) (internal quotation marks omitted). Our circuit has held— along with a number of other circuits— that the BIA’s interpretation of “crime involving moral turpitude” is reasonable. Novatchinski v. Holder, 516 Fed.Appx. 526, 530-31 (6th Cir.2013) (<HOLDING>); Ghani v. Holder, 557 F.3d 836, 841 n. 3 (7th Holdings: 0: holding the bias interpretation reasonable and listing cases reaching the same conclusion 1: holding that the ninth circuit erred by failing to defer to the bias reasonable interpretation of the ina 2: holding that bias interpretation of immigration law is entitled to deference except where the interpretation is clearly contrary to the plain and sensible meaning of the statute 3: holding that a court should afford deference to the bias interpretation if reasonable of the phrase aggravated felony set forth in the ina but the court should review de novo the bias determination of whether the elements of a statelaw conviction met that interpretation 4: holding same and citing cases | [
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represent conflicting interests; that Mitchell’s representation of Williams did not have an adverse effect on Mitchell’s representation of Chambers; and that Mitchell did not have a conflict of interest while representing Chambers. We observe that the Supreme Court has not held that the standard applied by the state court applies to claims of successive representation conflicts. See Mickens v. Taylor, 535 U.S. 162, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (declining to decide whether to extend standard for multiple concurrent representation conflicts in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)— conflict actually affected adequacy of representation—to successive representation conflicts); but see Perillo v. Johnson, 205 F.3d 775, 797-98 (5th Cir.2000) (<HOLDING>). Even assuming that the state court Holdings: 0: holding that strickland applies to cases involving successive representation 1: holding teague applies to capital cases 2: holding that conflicts of constitutional magnitude can arise from cases of successive representation 3: holding that teague applies only to procedural rules and not to decisions of the supreme court deciding the meaning of criminal statutes 4: holding that cuyler standard applies to all multiple representation conflicts whether concurrent or successive under preaedpa law and holding teague bar inapplicable | [
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denies the remainder of RMC’s motion. It is further ORDERED that LSC’s motion for summary judgment is granted as to the Georgia incident. The court denies the remainder of LSC’s motion. It is further ORDERED that RMC’s challenge under the FOIA is denied. It is further ORDERED that the LSC Decision is remanded to LSC and LSC is instructed to fashion a proper remedy in accordance with this order. IT IS SO ORDERED. 1 . In actuality, SCLSA operated as an arm of PLS in 1994 and 1995. (Mem. in Supp. of Pis.' Mot. for Summ.J. at 6) (citing Berkowitz Dep. of 9/22/97, at 19.) - 2 . Local legal services organizations have also recently challenged these restrictions in court, questioning their legality under the Constitution. See Velazquez v. Legal Services Corp., 985 F.Supp. 323 (E.D.N.Y.1997) (<HOLDING>); Legal Aid Soc'y v. Legal Services Corp., 981 Holdings: 0: recognizing louisianas ban on class actions and expressing view that plaintiffs could not get a class certified under that particular law in either state or federal court 1: holding that ban on use of nonlsc funds for class actions violates first amendment 2: holding that a class action tolls the statute of limitations only for subsequent individual actions not for subsequent class actions 3: holding that malicious or sadistic use of force with intent to harm violates the eighth amendment 4: holding that no subsequent class actions may benefit from tolling when class certification has been denied | [
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to withdraw his pleas on the basis that he pleaded guilty with the understanding that he would not be sentenced as a habitual offender. The portion of the transcript of the plea hearing that Harris attached to his motion appears to support this claim. However, Harris again failed to allege prejudice, because he failed to allege that he would not have pleaded if he had known that the trial court would sentence him as a habitual offender. When a defendant, in a rule 3.850 motion, seeks to withdraw his plea on the ground that it was involuntary because he was provided incorrect information regarding the consequences of the plea, he must allege that he would not have accepted the plea if he had been fully aware of the consequences. See State v. Taylor, 738 So.2d 988 (Fla. 2d DCA 1999) (<HOLDING>). Again our affirmance is without prejudice to Holdings: 0: holding in direct conflict with the second third and fifth districts that allegations of affirmative misadvice by trial counsel on the sentenceenhancing consequences of a defendants plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim 1: holding that a defendant must be allowed to withdraw a plea entered based upon the misadvice of counsel regarding potential penalties to be faced upon entry of the plea 2: holding that in order to establish prejudice based on misadvice regarding sentence length defendant must allege generally that he would not have pleaded but for the bad advice 3: holding that the defendant was entitled to have his plea accepted absent a sound reason for rejecting the plea 4: holding that for a facially sufficient claim that the plea was involuntary based on misadvice of counsel defendant must allege he would not have accepted the plea agreement but for the misadvice | [
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banc) (extending claim to adult children); Miller v. Subia, 514 P.2d 79, 80 (Colo.App.1973) (implication that action would be allowed upon display of adequate evidence); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926) (but the law in Florida at present is unclear; in Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973), the Court held that Wilkie permitted either parent to recover for the loss of the child's companionship, society and services. But other cases have limited Wilkie to authorizing only damages for lost services. See Youngblood v. Taylor, 89 So.2d 503, 506 (FIa.1956); City Stores Co. v. Langer, 308 So.2d 621, 622 (Fla.App.1975); Dymek v. Nyquist, 128 Ill.App.3d 859, 83 Ill.Dec. 52, 59, 469 N.E.2d 659, 666 (1984) ; Ferguson v. Burkett, 454 So.2d 413, 416 (La.App.1984) (<HOLDING>); First Trust Co. of North Dakota v. Scheels Holdings: 0: recognizing this presumption 1: recognizing this rule 2: holding that statute of limitations for antitrust claim begins to run at time of accrual notwithstanding plaintiffs ignorance of facts giving rise to claim 3: recognizing a 1982 amendment giving rise to this claim 4: recognizing the conduct giving rise to punitive damages must be a proximate cause of the harm inflicted | [
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the level of persecution; 2) that the persecution was on account of one or more of the five protected grounds; and 3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000). We have defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (internal quotation marks omitted); see also Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Threats and attacks can constitute persecution even where an applicant has not been beaten or physically harmed. See, e.g., Artiga Turcios v. INS, 829 F.2d 720, 723-24 (9th Cir. 1987) (<HOLDING>). Here, Ganut and his party were attacked by Holdings: 0: holding that trial court abused its discretion in denying petitioners request for counsel in evidentiary hearing where petitioner had requested counsel and had indicated in his motion that all documents had been prepared by prison law clerk he had only ninthgrade education he had no training in the law and he lacked the skills necessary to participate in hearing 1: holding that petitioner had established persecution even though he had not been physically harmed and received only an indirect threat relayed by a neighbor 2: holding that a claim for surcharge had been plausibly stated even though the precise term had not been used 3: holding that alien must show that he faces a particularized threat of persecution 4: holding that where petitioner testified that some of her cousins had been killed because they served in the military and that she had received two threatening notes she had demonstrated past persecution | [
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an appeal”). 46 .See, e.g., Milton v. United States, 105 F.2d 253, 255 (5th Cir.1939) ("The word ‘filed’ ... is, as applied to court proceedings, a word of art, having a long established and well understood meaning, deriving from the practice of filing papers on a string or wire. It requires of one filing a suit, merely the depositing of the instrument with the custodian for the purpose of being filed.... [I]t charges him with no further duty[.]”); Black’s Law Dictionary 660 (8th ed. 1999) (defining "file” as "To deliver a legal document to the court clerk or record custodian for placement into the official record”). The distinction between filing and service is well-established in our jurisprudence. See, e.g., Varela v. Hi-Lo Powered Stirrups, 424 A.2d 61, 67-68 (D.C.1980) (en banc) (<HOLDING>) (emphasis in the original). 47 . See Henderson Holdings: 0: recognizing the clear understanding that the manner by which an action is commenced via filing of the complaint with the court presents a completely different and separable array of considerations from the manner by which service of process is to be made 1: holding that plaintiffs amended complaint was not barred by the applicable statute of limitations where the amendment merely expanded on plaintiffs negligence theories and stating that in a tort action an amendment may vary the statement of the original complaint as to the manner in which the plaintiff was injured or as to the manner of the defendants breach of duty 2: holding that dismissal of a complaint pursuant to former 1915d now 1915e is not appropriate where a plaintiff has made a partial payment of filing fees and that in such cases the court must treat the complaint in the same manner as one for which in forma pauperis status has not been granted 3: holding that the relevant time of inquiry is the date of the filing of the complaint 4: recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act | [
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appear before us on appeal. 3 . There is some dispute as to when the process of amending the City’s zoning ordinance began. However, since we conclude that the City has no intention of re-enacting the allegedly unconstitutional segments of the zoning code, we need not decide what initially motivated the City's comprehensive overhaul of its entire zoning ordinance. 4 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 5 . We cataloged many of the Supreme Court decisions on this subject in our Coral Springs decision: See, e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472, 474, 110 S.Ct. 1249, 1252, 108 L.Ed.2d 400 (1990) (<HOLDING>); Massachusetts v. Oakes, 491 U.S. 576, 582-83, Holdings: 0: holding moot a challenge to a florida tax exemption for church property when the law had been repealed 1: holding that an overbreadth challenge to a child pornography law was rendered moot by amendment to the statute 2: holding that a commerce clausebased challenge to florida banking statutes was rendered moot by amendments to the law 3: holding that a challenge to the disbursement of attorneys fees was not equitably moot 4: holding that defendants bank account and open line of credit in florida utilized to transfer money in international commerce was insufficient to confer jurisdiction under section 481932 florida statutes where defendant operated its business in honduras had no employees or agents in florida and did not advertise or solicit business in florida | [
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106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir.1980) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). McDonnell Douglas pretext analysis Given the absence of direct evidence of age discrimination in the present case, plaintiffs disparate treatment claim is best analyzed at the present stage of the litigation as a McDonnell Douglas pretext case. See Ryther v. KARE 11, 108 F.3d 832, 836 & n. 1 (8th Cir.1997) (en banc) (<HOLDING>), cert. denied, — U.S.-, 117 S.Ct. 2510, 138 Holdings: 0: holding that a title vii plaintiff need not plead the elements of a mcdonnell douglas prima facie case to survive a motion to dismiss 1: holding that the facts of the ease fall under the mcdonnell douglas standard which does not require direct proof of discrimination for the plaintiff to make a submissible case 2: holding that whether the case could proceed under a mixedmotive instruction was not relevant because the case could proceed under the more taxing mcdonnell douglas standard 3: holding that without a link to the challenged decision stray remarks did not constitute indirect evidence of discrimination sufficient to satisfy the final prong of the mcdonnell douglas framework 4: holding that a plaintiff who could not demonstrate every element of the mcdonnell douglas test could nonetheless demonstrate a prima facie case | [
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487 U.S. 1242, 108 S.Ct. 2918, 101 L.Ed.2d 949 (1988); Julius v. Johnson, 840 F.2d 1533, 1540 (11th Cir.) (allowing double-counting of felony-murder factor), cert. denied, 488 U.S. 960, 109 S.Ct. 404, 102 L.Ed.2d 392 (1988). I. Improper Prosecution Arguments Coe cites four statements made by the prosecution at the sentencing stage that he claims were improper. First, Coe complains that the prosecutor improperly injected his expertise into his death-penalty argument. The prosecutor said that he took his decision to seek the death penalty very seriously; that the decision was difficult; that he had only ever requested the death penalty once before. Coe cites Eleventh Circuit precedent that is directly on point. See, e.g., Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir.1985) (en banc) (<HOLDING>). But Kemp ultimately held the error to be Holdings: 0: holding very similar commentsto be prejudicial 1: holding that the special needs exception did not apply to very similar facts 2: recognizing similar duties 3: holding that explicit finding that probative value of similar transactions outweighed their prejudicial impact is not required 4: holding that erroneous admission of improper and prejudicial evidence did not require reversal because the jury would have returned a verdict of guilty against the defendant even without the prejudicial testimony | [
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version of the peculiar risk doctrine, that is, under either section 413 or section 416. Privette, 5 Cal.4th 689, 21 Cal. Rptr.2d 72, 854 P.2d 721 (1993); see also Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 264 n. 2, 74 Cal. Rptr.2d 878, 955 P.2d 504 (1998); Camargo v. Tjaarda Dairy, 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (2001) (applying the peculiar risk analysis of Privette to section 410, negligent hiring, and holding hirer not liable for the negligent performance of a hired contractor for injuries to the contractor’s employees). When considering a hirer’s liability under the peculiar risk provisions, the courts consistently distinguished the issue before them from the tort theory set forth in section 414. Toland, 74 Cal.Rptr.2d 878, 955 P.2d at 511 n. 2 (<HOLDING>); Camargo, 25 Cal.4th at 1245, n. 2, 108 Holdings: 0: holding that under the mwa the question of whether an employee was an independent contractor or an employee was a question of statutory interpretation 1: holding that the grant of review did not extend to and therefore we do not decide whether privette would preclude an employee of an independent contractor from seeking tort recovery from workplace injuries under the theory of section 414 2: holding that we must decide whether to grant or deny the petition for review based on the boards reasoning rather than our own independent analysis emphasis added 3: holding osha does not preclude an employee from pursuing a tort action for a retaliatory discharge 4: holding that the determination of whether an individual is an independent contractor lies in the common law and not under an express provision of the act | [
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of the case, because the court treated the Guidelines range as mandatory and “the Supreme Court has now excised the mandatory nature of the Guidelines in Booker.” Shelton, 400 F.3d at 1330 (reviewing Booker claim for plain error). In Shelton, we concluded that “it was Booker error for the district court to sentence Shelton under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment enhancement violation.” Id. (citation omitted). Based on the excision of the mandatory provisions of the Guidelines, in cases involving preserved Booker error, we have required the Government to show that the mandatory, as opposed to the advisory, application of the Guidelines did not contribute to the defendant’s sentence. See United States v. Paz, 405 F.3d 946, 948-49 (11th Cir.2005) (<HOLDING>). The government bears the burden to show that Holdings: 0: holding that sentencing under the mandatory guidelines regime creates a presumption of prejudice that the government must rebut with clear and specific evidence that the district court would not have sentenced the defendant to a lower sentence if it had treated the guidelines as advisory 1: holding statutory error harmless where district court imposed the highest available sentence under guidelines range and considered sentencing to the statutory maximum 2: holding that the government could not meet its burden under harmless error analysis because the record indicated that district court would have imposed shorter sentencing under advisory guidelines scheme 3: holding statutory booker error was not harmless where district court imposed sentence in middle of guidelines range and there were no statements in the record reflecting that the court would have imposed the same or greater sentence under advisory guidelines 4: holding government failed to meet it burden to show harmlessness of mandatory application of the guidelines where transcript of sentencing hearing indicated district court would have imposed shorter sentence under advisory sentencing scheme | [
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due process requirements. And that question is not before us now. As such, I cannot agree that a procedure created and used for § 1226(a) detainees tells us anything about the constitutional adequacy of the procedures governing unreasonably prolonged detention under § 1226(c). Our decision regarding what due process requires in this context perhaps should bear upon the protections owed to § 1226(a) detainees, not the other way around. Indeed, the Ninth Circuit, which has adopted a clear and convincing evidence standard for § 1226(c) detainees, appears to have adopted the same standard for § 1226(a) detainees. See Rodriguez, 804 F.3d at 1087 (applying a clear and convincing evidence standard to a class comprised of aliens detained under § 1226(a) and (c)); Singh, 638 F.3d at 1205 (<HOLDING>). Significant deprivations of liberty warrant Holdings: 0: holding that the clear and convincing evidentiary standard applies to section 101 challenges 1: holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied 2: holding that the clear and convincing evidence standard of proof applies in casascastrillon 535 f3d at 948 1226a bond hearings 3: holding that the clear and convincing evidence standard of proof applicable in fraud actions does not apply to the proof of misrepresentations under ors 743612 4: holding that in a proceeding to terminate parental rights the preponderance of the evidence standard of proof violates the due process clause and that due process requires at least a clear and convincing evidence standard | [
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majority correctly points out that certain federal courts recognize the application of res judicata to a dismissal without prejudice under a factual scenario similar to this case. Majority Opinion ¶ 8. However, our appellate courts appear to disagree with this federal position 9, ¶¶ 9-10, 141 N.M. 127, 151 P.3d 88 (denying the application of res judicata to the dismissal of a foreclosure action without prejudice that was based upon significant inactivity by the bank); Salazar v. Yellow Freight Sys., Inc., 1990-NMCA-003, ¶¶ 11-13, 109 N.M. 443, 786 P.2d 57 (denying the application of res judicata to a recommended decision arising during the first of two workers’ compensation administrative proceedings where the first claim was dismissed without prejudice); Bralley, 1985-NMCA-043, ¶ 18 (<HOLDING>); Chavez v. Chenoweth, 1976-NMCA-076, ¶¶ 25-27, Holdings: 0: recognizing that the words without prejudice when used in an order or decree generally indicate that there has been no resolution of the controversy on its merits and leaves the issues in litigation open to another suit as if no action had ever been brought 1: holding that the circuit courts order concluding that it was without jurisdiction to entertain a complaint because the case had been dismissed without prejudice constituted a final order because all other claims either had been refiled or dismissed with prejudice 2: holding that a sua sponte dismissal by the court for failure of the plaintiff to comply with an order of the court should operate as an adjudication on the merits because the defendant has been put to the trouble of preparing his defense because there was no initial bar to the courts reaching the merits 3: holding if there has been no termination of employment there has been no layoff or reduction in force 4: holding that review is de novo where there has been no adjudication on the merits in state court | [
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deportation proceedings have been completed.’ Plyler v. Doe, 457 U.S. 202, 226, 102 S.Ct. 2382, 2399, 72 L.Ed.2d 786[, 805] (1982) (the bracketed words are substituted for the words ‘child’ or ‘children’ in the original).” St. Joseph’s Hosp., 142 Ariz. 94, '688 P.2d at 991. The St. Joseph’s Hosp. court went on to conclude: “Given these words from the nation’s highest court concerning a field of federal legislation, it is unnecessary to pursue the matter further. There is no federal impediment to an undocumented alien becoming a resident of an Arizona county. We have been cited to no state law which would create such an impediment.” St Joseph’s Hosp., 142 Ariz. 94, 688 P.2d at 992. See also Cabral v. State Bd. of Control, 112 Cal.App.3d 1012, 169 Cal.Rptr. 604, 607 (Cal.Ct.App.1980) (<HOLDING>). Many other state courts have held that aliens Holdings: 0: holding that whether alien abandoned domicile for purposes of section 212c turns on whether alien intended to remain elsewhere indefinitely 1: holding that an alien who illegally reenters this country is not eligible for adjustment of status because the reinstatement provision controls 2: holding that adjustment of status was permitted even if deportable alien had entered the country as a lawful permanent resident 3: holding that an alien who entered this country illegally from mexico could establish domicile 4: holding that zadvydas applies to inadmissible aliens who have illegally entered the united states | [
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has provided none. Accordingly, this argument must be rejected as well. D. Conclusion In consideration of the foregoing, the plaintiffs motion for summary judgment is granted as to that portion of the requested relief that has not been mooted by the USTR’s removal of Gilda’s products from the retaliation list. Accordingly, Gilda’s imports of rusks or toasted breads from Spain entered after July 29, 2007 must be liquidated without the 100 percent retaliatory duty described herein. Further, the U.S. Bureau of Customs and Border Protection shall refund to the plaintiff all of the retaliatory duties (described herein) collected on Gilda’s toasted bread imports from Spain between July 29, 2007 and March 23, 2009. See Shinyei Corp. of America v. United States, 355 F.3d 1297 (Fed.Cir.2004) (<HOLDING>). 1 . The plaintiff's motion for summary Holdings: 0: holding that a physical or theoretical possibility that the government actor would repeat challenged actions is insufficient to demonstrate that the challenged action is capable of repetition 1: holding that reliquidation is not prohibited where a decision of customs is not being challenged 2: holding that it is not 3: holding that a sentencing decision will be affirmed if challenged factor is permissible and other factors are not challenged 4: holding that the burden is on the defendant when the validity of the warrant is challenged | [
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under Article 9 by selling the collateral; it is an action to enforce the obligation of the buyer to pay the full sale price to the seller, an obligation which is an essential element of all sales and which exists whether or not the sale is accompanied by a security arrangement.”); First Nat’l Bank in Albuquerque v. Chase, 118 N.M. 783, 887 P.2d 1250, 1252 (1994) (“a deficiency action is essentially an action for the price and is, therefore, part of the general sales aspect of the agreement”). Admittedly, CFCU exercised its right to repossess the vehicle under SCUCC Article 9. See S.C. Code Ann. § 36-9-609 (2003) (allowing repossession of collateral after default); S.C. Code Ann. § 36-9-610(a) (2003) (allowing the sale of collateral after default); S.C. Code Ann. § 36-9-615(d) (2003) (<HOLDING>). However, as assignee to the sales contract, Holdings: 0: holding the obligor liable for any deficiency following sale 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 no jurisdiction when trial court granted extension because it found deficiency even though it was not same deficiency complained of by appellant in his motion to dismiss 4: 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 | [
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her payments for escrow items never decreased. The Court finds that plaintiff alleges that Chase’s duty to make flood insurance payments arises from the mortgage agreement. The Court, therefore, rejects Chase’s argument that plaintiffs claims arise out of and are preempted by the NFIA. See Rentrop v. Nationwide Mut. Fire Ins. Co., No. 07-384, 2008 WL 2465288, at *3 (S.D. Miss. June 12, 2008) (“In my opinion, [mortgageej’s duty to make these payments, if any, does not arise under the NFIA[,] [but] would arise, if at all, from the terms of the contracts that govern the business relationship between [mortgagee] and the plaintiffs or from the course of dealings concerning these premium payments.”); Bennen v. Allstate Ins. Co., No. 06-5742, 2006 WL 3240786, at *1-2 (E.D.La. Nov. 6, 2006) (<HOLDING>). (ii) Breach of Contract Plaintiff asserts Holdings: 0: holding the state law claims were not preempted 1: holding that carmark act preempted state law claims including those for liability for payment of claims 2: holding plaintiffs negligence claims were preempted by the nfia because any alleged duty to provide a correct flood zone determination arises out of the nfia and not from any other place in louisiana law 3: holding that because plaintiffs claims did not challenge the handling administration or payment of his flood claim or compliance with the act or the regulations the state law claims for breach of contract and tort are not preempted by the nfia 4: holding that the plaintiffs state law claims are preempted by federal law | [
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for a serious health condition, the employer may request certification by the employee's health provider. 29 C.F.R. § 825.305(a). Simpson v. Office of the Chief Judge of the Cir. C. of Will Cnty., 559 F.3d 706, 709 (7th Cir.2009); Kauffman, 426 F.3d at 886. Certification is sufficient if it provides the date the serious health condition began, its probable duration, relevant medical facts, and a statement that the employee is unable to work. 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306. Kauffman, 426 F.3d at 886. If the employee fails to submit certification of her condition in a timely manner, then an employer is entitled to deny FMLA leave. 29 C.F.R. § 825.313. Simpson, 559 F.3d at 709. Under the regulations, if an employer finds a certification incomplete, the emplo t *4 (N.D.Ill.2009) (<HOLDING>); Sewall v. Chi. Transit Auth., 2001 WL 40802 Holdings: 0: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 1: holding that employee who exceeded fmla leave was subject to immediate discharge on the very first workday that he was both absent from work and no longer protected by the fmla 2: holding a plaintiff to be ineligible for fmla leave wherein the plaintiff had not accumulated enough work hours 3: holding that there was no sustainable fmla interference claim wherein a plaintiff could not establish that her daughter suffered from a serious health condition as defined by the regulations 4: holding a plaintiff to be ineligible for fmla leave wherein the plaintiffs leave exceeded twelve weeks within a twelve month period | [
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undisputed that Mr. Avila engaged in protected opposition to discrimination when the union filed a grievance on his behalf on September 2, 2003, alleging national origin discrimination. See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir.2004) (indicating that lodging union grievance asserting discrimination constitutes protected activity). It is also undisputed that Mr. Avila suffered an adverse employment action when he was terminated. See Fye, 516 F.3d at 1228 (stating “termination ... is clearly an adverse employment action”). Finally, it is undisputed that Mr. Avila established a causal connection between his protected activity on September 2, 2003 and his termination nine days later. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006) (<HOLDING>). Thus, Mr. Avila established a prima facie Holdings: 0: holding that twentyfour days between protected activity and termination is sufficient to infer existence of causal connection 1: holding that a sixmonth gap between the protected activity and the employees termination was insufficient to infer that the protected activity was a contributing factor 2: holding that a temporal proximity of one month between the plaintiffs protected activity and adverse employment action was sufficient to establish a causal connection 3: holding that more than a year between the protected activity and the discharge is not close enough to support the causal connection requirement 4: holding that five weeks between protected activity and adverse employment action insufficient to establish a causal connection | [
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or sentencing, when it was cognizable and the trial court had jurisdiction, the Setzer appellant had waived his right to raise the issue. Id. (“[W]e find it clear that practical considerations dictate that this issue be deemed waived when, as in the instant case, it is not raised until almost two years after disposition of the charges which gave rise to the confiscation of property.”); Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283, 286 (1977) (“It is a fundamental doctrine in this jurisdiction that where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding.”). The Commonwealth Court has likewise previously applied a waiver analysis in the same circumstances. One 1990 Dodge Ram Van, 751 A.2d at 1237 (<HOLDING>). The trial court in this case agreed with the Holdings: 0: holding that a defendant waived a sentencing issue by failing to object in district court 1: holding that because appellant had waived review of constitutional challenge to sentencing statute by failing to raise it at the first opportunity the trial court correctly proceeded to examine whether the appellants trial counsel was ineffective for failing to raise constitutional challenges to the sentencing statutes 2: holding the appellant waived the issue of return of property by failing to raise it following trial or sentencing for the underlying crimes 3: holding that appellant waived issue by failing to raise it in opening brief 4: holding that plaintiffs had waived the issue of remand by failing to raise it with the jpml or the district court | [
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as standardized, pre-printed forms that each plaintiff had to sign, and, from a negotiating standpoint, Amoco clearly had greater bargaining power than plaintiffs. Nevertheless, the court does not find that the contracts are so “one-sided” or unfair as to render either the integration clauses or the contracts themselves unenforceable. Even construing the standardized contracts strictly against Amoco and in the light most favorable to plaintiffs, there is nothing that could reasonably be considered shockingly unfair or offensive about the wording of the contracts or the inclusion of the integration clauses therein. Standardized contracts with integration clauses have been a common part of plaintiffs’ and Amoco’s franchise relationship. See Adams, 13 Kan.App.2d at 497, 774 P.2d 355 (<HOLDING>). In addition, this case does not involve the Holdings: 0: holding that hearing officers noting the parties agreement did not constitute a change in the parties legal relationship 1: holding parties to an exculpatory clause where the parties intent is clear 2: holding that nolostprofits clause in parties agreement was not unconscionable as a matter of law in part because similar clause had been in the agreement between the parties for years 3: holding that even if the parties had formed a contract under 2207l the arbitration clause materially altered the contract and therefore did not become part of the parties agreement 4: holding arbitration clause in credit card agreement unconscionable | [
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be a mitigating factor because it does not relate to a defendant’s character or background or to the circumstances of the offense. We are unpersuaded by defendant’s argument. In Martini I, supra, the Court rejected the same argument advanced by defendant. 131 N.J. at 313, 619 A.2d 1208. There, the Court concluded that although the trial court should instruct the jury during the penalty phase on potential noncapital sentences, “the court should inform the jury that defendant’s possible sentence for the other convictions should not influence its determination regarding the appropriateness of a death sentence on the murder count.” Ibid. Martini I’s holding in this regard is in harmony with the Court’s pronouncements in related contexts. See Bey III, supra, 129 N.J. at 603, 610 A.2d 814 (<HOLDING>). Indeed, it would lead to an incongruous Holdings: 0: holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences 1: holding that juries should be informed of noncapital sentences but that they should base sentencing decision solely on aggravating and mitigating factors 2: holding that although the guidelines should be the starting point and the initial benchmark of calculating a proper sentence the district court should then consider all of the 3553a factors to determine whether they support the sentence requested by a party 3: holding that although court should inform jury about defendants prior sentences the court should instruct the jury that it should not consider prior sentences in its decision to impose a life or death sentence because they are not statutory aggravating or mitigating factors 4: holding that it was improper for the trial court to instruct the jury that it could not consider the states failure to videotape the defendant | [
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defendant’s fear at the time of the incident. E.B., 531 So.2d at 1054. As part of that foundation, the defendant must establish that the victim committed some overt act at or about the time of the incident that reasonably indicated a need for action by the defendant in self-defense. Id.; Sanchez v. State, 445 So.2d 1, 2 (Fla. 3d DCA 1984); Hager v. State, 439 So.2d 996, 997 (Fla. 4th DCA 1983). Once the proper foundation is laid, the defendant may introduce evidence of the victim’s reputation or of specific i 356, 357 (Fla. 4th DCA 1992) (concluding that the trial court erred by excluding testimony that the victim had a reputation as a bully because there was no showing that the defendant had knowledge of the victim’s reputation); Marcum v. State, 341 So.2d 815, 817 (Fla. 2d DCA 1977) (<HOLDING>). Conversely, the purpose of specific acts Holdings: 0: holding that where an issue is the identity of the initial aggressor it is irrelevant whether the defendant was aware of his adversarys reputation 1: holding that a defendant who alleges selfdefense can show through the testimony of another witness that the alleged victim had a propensity for violence thereby inferring that the alleged victim was the aggressor a defendants prior knowledge of the victims reputation for violence is irrelevant because the evidence is offered to show the conduct of the victim rather than the defendants state of mind 2: holding that being deported after a conviction for an aggravated felony is all that is required and it is irrelevant whether the conviction is valid at the time of sentencing 3: holding that when the factual issue is as between the defendant and the other person who was the aggressor the defendant may introduce evidence of the other persons violent or aggressive character 4: holding that the race of the prosecutor is irrelevant | [
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statutes do not mandate the issuance of an injunction, and that plaintiffs must still show some tangible irreparable environmental injury. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Production Co. v. Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Town of Huntington v. Marsh, 884 F.2d 648 (2nd Cir.1989) (applying Weinberger and Amoco and concluding that they require a showing of irreparable injury apart from the violation of NEPA procedural requirements). Although NEPA violations may not create a presumption of irreparable injury, the Court believes that such violations do create a type of injury that courts must consider when deciding whether to grant injunctive relief. Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989) (<HOLDING>). More specifically, such violations by their Holdings: 0: holding that the threat of irreparable harm must be immediate 1: holding that the district court erred when it failed to consider the presumption of irreparable harm 2: holding that nepa is designed to prevent harm to the environment through inadequately informed decision making and that courts should take account of this harm and its potentially irreparable nature 3: holding that a party who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative 4: holding that likelihood of irreparable harm must be based on evidence in the record not unsupported and conclusory statements regarding harm the plaintiff might suffer | [
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Feb. 14, 2012) (Lauriat, J.); Lantor Inc. v. Ellis, Civil No. 98-01064, 1998 WL 726502, **9-10 [9 Mass. L. Rptr. 221] (Norfolk Super. Ct. Oct. 2, 1998) (Gants, J.). “It is well settled that a material breach of contract by one party excuses the other party from performance as matter of law.. .” HRPT Advisers, Inc. v. MacDonald, Levine, Jenkins & Co., P.C., 43 Mass.App.Ct. 613, 626 n.16 (1997), citing Hastings Assocs., Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass.App.Ct. 162, 171 (1997). Therefore, the question of Colameta’s conduct only becomes relevant if the court determines as a matter of law that Protégé’s conduct did not constitute a material breach of the 2007 Employment Agreement that discharged Colameta’s obligations under that agreement. See, e.g., Ward, 15 Mass.App.Ct. at 101 (<HOLDING>). A breach is material if it is “of ‘an Holdings: 0: holding that no reporters record was required in suit to recover damages for breach of employment contract because the claim for damages was liquidated and proved by the employment contract attached to the petition 1: holding the government liable to plaintiffs for breach of contract 2: holding only a material breach discharges contractors duty to perform 3: holding that employers wrongful discharges of the plaintiffs constituted breaches of the employment agreements so material as to discharge the plaintiffs from any further obligations under the contracts ie covenants not to compete and to allow them to recover contract damages for total breach 4: holding that if the breach of an entire contract is only partial the plaintiff can recover only such damages as he or she has sustained leaving prospective damages to a later suit in the event of further breaches | [
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have had a track record of reliability, their tips corroborated the first informant’s tip and to some extent each other’s tips, which also “render[s] their information enough to support a finding of probable cause.” United States v. Fulgham, 143 F.3d 399, 401 (8th Cir.1998). In like fashion, in United States v. Le, 173 F.3d 1258, 1266 (10th Cir.1999), a case where the sufficiency of an affidavit upon which a search warrant was challenged, we said: The affidavit contained information provided by two different informants whose stories were remarkably consistent. “[CJonsistency between the reports of two independent informants helps to validate both accounts.” United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996); see also United States v. Fulgham, 143 F.3d 399, 401 (8th Cir.1998) (<HOLDING>); United States v. Pritchard, 745 F.2d 1112, Holdings: 0: holding that noncompliance with mandatory requirement of search warrant statute designed to ensure that warrants are issued upon reliable information required that information provided by informants be ignored in determining probable cause 1: holding that a credibility determination based on among other things a tendency to exaggerate was supported by substantial evidence 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 the magistrates finding of probable cause was supported by among other things the reciprocally corroborative consistency in the information provided by two separate informants 4: holding that in order to prevail on a malicious prosecution claim under 1983 a plaintiff must establish among other things the absence of probable cause for the initiation of the proceedings against her | [
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It is not the duty of this Court to construct arguments for or find support for appellant’s right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Plaintiff has not addressed the appealability of the interim order here and thus has failed to meet her burden of showing that the appeal has been properly taken. This Court has recognized that similar “interim” orders entered in the domestic context are not immediately appealable. See, e.g., Dixon v. Dixon, 62 N.C. App. 744, 303 S.E.2d 606 (1983) (<HOLDING>); Smart v. Smart, 59 N.C. App. 533, 297 S.E.2d Holdings: 0: holding that the ordering of a rehearing caused the judgment to not be final and appealable 1: holding that a third party holding legal title to property is a necessary party in an action for equitable distribution 2: holding such denial to be an immediately appealable collateral final order 3: holding that a mandatory injunction entered pursuant to nc gen stat 5020i ordering one party to return property to the former marital home pending final resolution of the action for divorce and equitable distribution is not immediately appealable 4: holding that an order imposing sanctions against an attorney for one of the parties in a pending case is final and therefore immediately appealable by the attorney | [
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years 1999, 2000, and 2001. See, e.g., Def.’s Ex. 6-8 (containing Certificate of Assessments and Payments for plaintiffs 1999, 2000, and 2001 tax years indicating that no payment had been made). A Certificate of Assessments and Payments “is routinely used to prove that a tax assessment has in fact been made.” Rocovich, 933 F.2d at 994. Where, as here, a plaintiff has failed to allege that he paid the full amount of the assessed taxes that are the basis of his refund claim, the court may accept as true the assertions contained in a Certificate of Assessments and Payments indicating that the plaintiff has not fully paid the assessment. Daniels v. United States, No. 97-442T, 1999 WL 302450, at *3 (Fed.Cl. Apr.14, 1999); see also United States v. Chila, 871 F.2d 1015, 1018 (11th Cir.1989) (<HOLDING>); Dallin ex rel. Estate of Young v. United Holdings: 0: recognizing that a certificate of assessments and payments is presumptive proof of a valid assessment quoting united states v dixon 672 fsupp 503 506 mdala1987 affd 849 f2d 1478 11th cir1988 1: recognizing speedy trial analysis is genesis of presumptive prejudice rulings and holding that notion of presumptive prejudice has no application to preindictment delays 2: holding that the united states court of federal claims may not reweigh the factual evidence quoting munn 970 f2d at 871 3: holding that full payment of the assessment is also required for tax refund suits brought in the united states court of federal claims 4: recognizing federal constitutional claim against the united states | [
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the United States Supreme Court has also recognized that “the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U.S. 379, 395 n. 13, 99 S.Ct. 675, 685 n. 13, 58 L.Ed.2d 596 (1979). While “the requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain ... it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.” Id. (quoting Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 1495 (1995), (plurality opinion)). See, e.g., Village of Hoffman Estates, at 499, 102 S.Ct. at 1193-94 (<HOLDING>); Robinson v. State, 600 A.2d 356, 365 (1991). Holdings: 0: recognizing that statutes requiring intent are not likely to be invalidated because of vagueness 1: holding residual clause of acca void for vagueness 2: holding the statutory scheme of two federal laws was not void for vagueness and did not violate equal protection or due process even though the defendants conduct violated both laws 3: recognizing that laws and regulations may bear upon the existence of a constitutional interest 4: recognizing that a scienter requirement may mitigate a laws vagueness | [
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and did not schedule her for any work on Saturdays. (Pl.’s Mem. of Law at 4). Indeed, Dr. Eckstein’s proffered position at Beth Israel was conditioned upon her receiving Sabbath observance accommodation like that which she had at NYU. (Id.) In order to prevail over defendants’ summary judgment motions, the plaintiff must establish a prima facie case by showing that the facts surrounding defendants’ refusal to hire her give rise to an inference of religious discrimination. Stetson v. NYNEX Service Co., 995 F.2d 355, 359-360 (2d Cir.1993). Because defendants offered the same position to someone else with similar religious practices, an inference of discrimination cannot be drawn from their refusal to hire plaintiff. See, e.g., E.E.O.C. v. Wiltel, Inc., 81 F.3d 1508 (10th Cir.1996) (<HOLDING>); Eng v. Beth Israel Medical Center, 93 Civ Holdings: 0: holding that plaintiff could not establish prima facie case of discrimination where plaintiff failed to meet minimum qualifications for job 1: holding that plaintiff failed to establish a prima facie case in a religious discrimination suit because among other reasons employer hired someone else with identical religious practices 2: holding that replacement by someone outside the protected group is required to make a prima facie age discrimination case 3: holding that a plaintiff had not established a prima facie case of race discrimination because she failed to show valid comparators and presented no other circumstantial evidence of discrimination 4: holding to establish a prima facie case of racial discrimination a plaintiff must show he 1 | [
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had not been made. Id. at 1310. However, he also stated his view “that from a purely technical standpoint a public defender may appear as ‘next friend’ with as much justification as the mother of [one or another capital defendant].” Id. As noted above, there is no issue of competence in this case; the reason for seeking next friend standing is inaccessibility, and the government has conceded that. There being no “technical” impediment to appointing a lawyer to serve as next friend, it is not surprising that courts have done so in appropriate cases. See, e.g., Miller ex rel. Jones v. Stewart, 231 F.3d 1248 (9th Cir.2000) (granting next friend status to lawyer seeking to stay execution and remanding for hearing on defendant’s competence); Ford v. Haley, 195 F.3d 603, 624 (11th Cir.1999) (<HOLDING>); In re Cockrum, 867 F.Supp. 494, 495 Holdings: 0: recognizing that lawyer who had represented petitioner for years was as fit as a relative to serve as next friend 1: holding that a choice of law provision in a lease did not serve as a basis for jurisdiction 2: recognizing first english requirement was not met where trial counsel represented petitioner on direct appeal 3: holding that there is no constitutional right for a represented defendant to act as cocounsel 4: recognizing that the intent that of rule 1070j is to serve as a case management tool and not as a severe sanction | [
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AND JUDGMENT TACHA, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant Marco Antonio Arreola-Najera plea 6 (7th Cir.1992) (<HOLDING>). This circuit has not resolved the issue. As Holdings: 0: holding that note 9 does not preclude downward departure where defendant had no control over or knowledge of the highlevel purity of methamphetamine involved 1: holding that note 9 did not authorize downward departure based on drug purity 2: holding that the district courts denial of a downward departure was an exercise of discretion and therefore not reviewable 3: holding that district court did not have authority to depart downward under note 9 based on low purity of methamphetamine involved in case 4: holding that a defendants substance abuse or addiction does not justify a downward departure | [
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771 F.2d 235, 242 (7th Cir.1985)(disapprov-ing “of a trial judge’s procedure in entering a jury room, despite agreement by both counsel and the presence of a court reporter, to give a supplemental instruction after the jury had already begun its deliberations” and noting that discourses between a judge and the jury during deliberations undermines the appearance of justice). In short, the Court cannot say, under the circumstances, that there exists no reasonable possibility that the jury’s verdict was not influenced by an improper communication. Cheek, 94 F.3d at 141. A criminal defendant has a right to a fair trial, U.S. CONST. amend. VI, and a right to be present at every stage of the trial. Fed. R.Crim. Pro. 43(a); see United States v. Coffman, 94 F.3d 330, 335-36 (7th Cir.1996)(<HOLDING>); see also United States v. Pressley, 100 F.3d Holdings: 0: holding that the defendant is entitled to be present at all stages of his trial and a judges response to a note from the jury is one of those stages 1: holding that an actual controversy must be extant at all stages of review not merely at the time the complaint is filed 2: holding that rule 43aentitles a defendant to be present at all stages of his trial and that cjommunication between the judge and the jury or a single juror is one of those stages 3: holding that defendants constitutional right to be present at all stages of his trial does not arise before the trial begins 4: holding that the right to counsel applies in all critical stages of state and federal criminal proceedings | [
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In re Amy Unknown provided no clarification on this provision, which has unambiguously required proximate cause under the plain language of the statute since its enactment in 1994. Because Gonzalez failed to raise arguments regarding “other losses” and specific categories of damages in his initial briefing, he has waived this issue on appeal. In any event, fact questions “capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” Gonzalez’s argument that Vicky’s costs for “educational ... counseling needs” predated his criminal acts and therefore this category of costs could not be proximately caused by his crime is a factual issue. It cannot be the basis for plain error, and even were we to consider i 6 (5th Cir.2008) (<HOLDING>). 7 . Cf. Rita. 551 U.S. at 359, 127 S.Ct. 2456 Holdings: 0: holding that civil settlements have no bearing on decisions of criminal punishment and imposition of a restitution order is a form of punishment and part of a criminal sentence 1: holding that designation is neither a sentence nor a punishment 2: holding that trial courts failure sua sponte to give reasonabledoubt in struction during punishment phase about pen packets offered during punishment was harmless error because sentence imposed was well within punishment range and prosecutor had asked for greater sentence 3: holding that district courts statement that it believed sentence would adequately address the objectives of punishment and deterrence was adequate explanation 4: holding that the courts statement that the sentence was sufficient and a greater sentence is not necessary did not contradict the requirements of 3553a | [
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the scope of the duty to avoid causing emotional distress that results from negligence. A. Duty and Foreseeability In general, courts rely on the concept of “foreseeability” to determine whether the defendant owed a duty to the claimant in a negligence action and examine whether the risk to the claimant was “reasonably foreseeable” to the defendant. See, e.g., District of Columbia v. Shannon, 696 A.2d 1359, 1366 (D.C.1997); Haynesw orth, v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C.1994). If the injury that befell the plaintiff was “reasonably foreseeable” to the defendant, then courts will usually conclude that the defendant owed the plaintiff a duty to avoid causing that injury; if the injury was not “reasonably foreseeable,” then there was no duty. Compare Shannon, 696 A.2d at 1366 (<HOLDING>), with Galloway v. Safeway Stores, Inc., 632 Holdings: 0: holding that the defendants motion for discharge was premature and thus properly denied by the trial court 1: holding that defendants failure to renew their motion for judgment as a matter of law which was denied by the district court when they made it at the close of the evidence limited the relief the appellate court could grant to a new trial 2: holding that a successive 3850 motion can be denied on the ground that it is an abuse of process if there is no reason why the issue could not have been raised in a previous motion 3: holding that the trial court may not grant summary judgment on a ground not raised in the motion 4: holding that because playground accident due to poor maintenance could have been reasonably foreseeable to the district trial court properly denied districts motion for judgment on the ground it owed no duty to child using playground | [
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198 N.J.Super. 214, 217, 486 A.2d 932 (App.Div.1985)); see also Buck v. Henry, 207 N.J. 377, 390, 25 A.3d 240; (2011); In re Attorney Gen.’s “Directive on Exit Polling: Media & Non-Partisan Pub. Interest Groups ”, 200 N.J. 283, 297-98, 981 A.2d 64 (2009); DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 307, 865 A.2d 649 (2005). The Court’s construction of N.J.S.A 39:4— 88(b) gives meaning to all of the! statute’s language, and thereby effects the intent of the Legislature. Moreover, if N.J.S.A 39:4-88(b) precludes only unsafe lane changes, a driver would not violate the statute even by allowing a vehicle to straddle two lanes or swerve back and forth over the lines defining traffic lanes, unless that conduct created a safety issue. See State v. Lewis, 185 N.J p.1998) (<HOLDING>); Rowe v. State, 363 Md. 424, 769 A.2d 879, Holdings: 0: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 1: holding that exclusionary rule only requires exclusion of evidence obtained in violation of constitutional rights and that exclusion of evidence obtained in violation of statutory rights is not necessarily required 2: holding that one claim was not preempted because it did not allege the violation of duties created by any welfare plan but a violation of duties as a past employer 3: holding that the language of the statute clearly requires proof of a causal connection between the drivers intoxication and the death of another person 4: holding that violation of fl stat ann 316089a requires evidence that the drivers conduct created a reasonable safety concern | [
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1988, when Section 9711(h) required a remand for imposition of a sentence of life imprisonment in instances where this Court vacated a defendant’s sentence of death, he would not have been subjected to the possibility of a second death sentence under the amended version of Section 9711. Appellant’s Brief at 42. Thus, Appellant claims he is subjected to harsher punishment than individuals who had their death sentences vacated by this Court prior to 1988. This Court, however, has repeatedly rejected the argument that “retroactive” application of Section 9711(h)(4) offends a defendant’s due process and equal protection rights, and we have held that application of Section 9711(h)(4) is constitutionally permissible. See Commonwealth v. Chambers, 546 Pa. 870, 381-82, 685 A.2d 96, 102 (1996) (<HOLDING>); Commonwealth v. Young, 536 Pa. 57, 66, 637 Holdings: 0: holding that retroactive application of amended guidelines provision is not plain error 1: holding that application of section 9711h as amended did not deprive appellant of any constitutional right 2: holding that appellant had waived any objection to an instruction that he had himself introduced and which was amended by the state without objection from appellant 3: holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal 4: holding that where appellant did not submit permit application until four years after the ordinance in question was amended appellant had no vested rights | [
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Apex are evident in this case: the viability of the legal malpractice claims alleged by the clients depends on the outcome of personal injury litigation in Mexico and in federal court, where the only procedural progress has been the determination of a presumptive forum in Mexico. See id. The alleged injuries are intertwined with and dependent upon further hypothetical adjudication by both Mexican courts and the federal district court. Similarly, in the context of accounting malpractice, the Texas Supreme Court held that a cause of action for' negligence based on the accountant’s use of the cash instead of the accrual method of accounting for tax purposes did not accrue until the Internal Revenue Service had assessed a tax deficiency. Atkins v. Crosland, 417 S.W.2d 150, 158 (Tex.1967) (<HOLDING>); see also Street v. Honorable Second Court of Holdings: 0: holding that cause of action for malpractice did not arise until the tax deficiency was assessed because prior to assessment the plaintiff had not been injured 1: 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 2: holding that plaintiffs legal malpractice claim was not ripe until the appeal had been exhausted because plaintiffs harm remained speculative until then 3: holding that a tax refund claim must be dismissed if the principal tax deficiency has not been paid in full 4: holding that the debtor lacked standing to bring a claim against the internal revenue service for the improper assessment of a tax deficiency because the cause of action was the property of the estate and had not been abandoned to the debtor | [
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"4",
"2",
"0"
] | [
"0"
] |
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