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Mr. Brennan further testified that based on his examination of the project as compared with Morganti’s as-planned WC01 schedule and as-built progress from February 22, 1996, through termination, it was his opinion that any delays that occurred beyond WC01 were caused by Morganti and not the actions of the FBOP. As noted above, Mr. Brennan did not consider the parties’ Schedule B Agreement regarding the use of Morganti’s WC04 schedule as a baseline for measuring progress and delays, and thus his analysis disregards the parties’ stated intent. In such circumstances, the court’s role is to comb through the evidence and determine whether, based on the record, Morganti was entitled to any time beyond December 31, 1996, for critical path delays caused by Mod 192. Law, 195 Ct.Cl. at 386-87 (<HOLDING>). Although the court’s analysis “takes into Holdings: 0: holding that a conclusory opinion may be rejected 1: holding summary judgment appropriate when the facts in evidence supported another plausible theory not the plaintiffs theory of the case 2: recognizing that a court may rely on matters of which a court may take judicial notice 3: holding court may rely on other evidence in the record where plaintiffs total time theory has been rejected 4: holding that a court may rely on otherwise inadmissible evidence including hearsay evidence at the preliminary injunction stage | [
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York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995)); cf. James v. Heritage Valley Fed. Credit Union, 197 Fed.Appx. 102, 106 (3d Cir.2006) (“[Plaintiffs] claim under the Bank Secrecy Act, 31 U.S.C. § 5318, does not authorize a private cause of action against a financial institution or its employees.”), cert. denied, 550 U.S. 939, 127 S.Ct. 2253, 167 L.Ed.2d 1098 (2007). Because the Bank Secrecy Act does not permit a private right of action, it follows that it cannot be construed as giving rise to a duty of care flowing to plaintiffs in this case. Accordingly, the court concludes that plaintiffs have not alleged a duty U.S. Bank owed to plaintiffs. Therefore, U.S. Bank’s motion to dismiss plaintiffs’ breach of fiduciary duty claim i a 1996) (<HOLDING>). In extending liability to professionals such Holdings: 0: holding that the duty to investigate applied to a specific murder suspect 1: recognizing that the duty has been applied to accountants 2: holding that accountants worksheets did not contain privileged communications 3: holding that the attorneyclient privilege applied to communications with accountants where defendants demonstrated the necessity of the accountants services by showing that the accountants provided services that were beyond counsels resources and abilities but were uniquely within the accountants qualifications 4: holding that disclosure to outside accountants did not waive the work product privilege since the accountants are not considered a conduit to a potential adversary | [
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Mot. Dis. at 3^4. b. Plaintiffs Response. Plaintiff offers no response to the Government’s argument. c. The Court’s Resolution. The United States Court of Federal Claims has jurisdiction over claims asserted under the Just Compensation Clause of the Fifth Amendment to the United States Constitution. See Murray v. United States, 817 F.2d 1580, 1583-84 (Fed.Cir.1987) (“Although the Claims Court has jurisdiction over a[t]aking claim, the more difficult question is whether the [plaintiff has] stated such a claim in this ease”). To invoke the court’s jurisdiction, the plaintiff must admit that the Government’s taking was authorized, because an actionable “takings” can only result from authorized federal actions. See Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1329-32 (Fed.Cir.2006) (<HOLDING>); see also Blanchette v. Connecticut General Holdings: 0: holding that the premise underlying the action was that plaintiff was deceived by the words and actions of an employer the subject of the deception was pension benefits but that was only incidental and not essential to the cause of action 1: holding that a cause of action for an unconstitutional taking accrues at the time the taking occurs 2: holding that in a declaratory judgment action it is the character of the impending action not the plaintiffs defense that determines whether there is federal question jurisdiction 3: holding that in a takings case the court assumes that the underlying action was lawful and decides only whether the governmental action in question constituted a taking for which compensation must be paid 4: holding that notwithstanding fact that employer brought suit in its own name pursuant to ocga 349111 c only for the liquidated amount that had been paid to the employee in workers compensation benefits after employee failed to file his own tort action within one year of injury employee was not precluded from bringing his own separate action to recover for personal injuries and loss of consortium but noting that employee received notice of employers suit only after filing his own action suggesting that court in which employers action was pending had wrongly denied the employees motion to intervene to which motion employer had objected noting that if employee had not moved to intervene in other action employees separate action would have been barred by laches and holding that thirdparty tortfeasor could move for mandatory joinder of the employer in the employees action | [
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that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.”) 2 . The district court entered judgment in favor of the third defendant in the bench trial, finding that Slep-Tone did not prove that defendant used the SOUND CHOICE trademark. Slep-Tone has not appealed the district court's ruling as to that defendant. 3 . At the time Slep-Tone filed its notice of appeal, there was not a final judgment within the meaning of 28 U.S.C. § 1291 because its claim against one defendant (who did not participate in the bench trial and who is not a party to this appeal) had been dismissed without prejudice. See Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302-03 (5th Cir. 1978) (<HOLDING>); see also Mesa v. United States, 61 F.3d 20, Holdings: 0: holding that a dismissal on limitations grounds is a judgment on the merits 1: holding that a plaintiffs voluntary dismissal of his claims with prejudice constituted a final order that was appealable 2: holding that a partial adjudication on the merits followed by a voluntary dismissal without prejudice of the remaining claims is not a final judgment that gives rise to appellate jurisdiction 3: holding that the dismissal without prejudice of the prior actions on grounds of mootness does not serve as a final adjudication on the merits so as to bar this action 4: holding that an adjudication on summary judgment is an adjudication on the merits | [
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the public for sale,’ was not a catch-all phrase ... but instead should be construed under the doctrine of ejusdem generis as a comprehensive definition intended to incorporate other products or services similar in nature to those enumerated by the specific words which pre g Co., 226 F.Supp.2d 557, 561 (D.N.J.2002) (finding that the services which the plaintiff consumed, consisting of maintaining accounting records, tracking inventory, and providing data reports, were not things which the defendant sold to the public, but were incidental to a contract for the sale of products and, therefore, was not afforded the protection of the NJCFA); Shogen v. Global Aggressive Growth Fund, Ltd., No. 04-5695-SRC, 2007 WL 1237829, at *8, 2007 U.S. Dist. LEXIS 31093, at *23-24 (D.N.J. Apr. 26, 2007) (<HOLDING>). The services which the defendants provided to Holdings: 0: recognizing step transaction doctrine whereby courts must consider all steps of transaction in light of entire transaction so that substance of transaction will control over form of each step 1: holding that a profit of 35 million in insider trading by the president and ceo of the company was sufficient to plead scienter because that corporate insider sold 40 of his stock holdings in the company and several other corporate insiders sold large positions in the company 2: holding that a certain loan transaction was not merchandise and not available to the consumer in the popular sense where it was not advertised to the public available to consumers in the ordinary market place mass produced or available in large quantities but that it was more accurately characterized as a rare specialized and complex transaction whose availability is restricted to a small number of corporate insiders who hold a significant volume of corporate stock 3: holding that the sca does not apply to material that is readily available to the public 4: holding that it was an abuse of discretion to admit the record when an admission was available | [
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Transfer Venue of June 19,1998. For the reasons set forth below, the Motion is DENIED. I. FACTUAL AND PROCEDURAL SUMMARY In the spring of 1997, Plaintiff, a resident of Louisiana, served as Second. Captain aboard the M/V JIM BORDELON while the vessel was chartered to a survey company working off the coast of Texas. On May 4 of that year, the vessel was assisting in surveys off the coast of High Island, Texas. During a period of heavy seas, Plaintiff allegedly suffered an injury to his back when he was thrown from his bunk. He did not receive medical attention until he went to a hospital emergency room after leaving the vessel. On March 10,1998, Plaintiff filed suit against Defendant in the United States District Court for the Southern District of Texas, Galveston Division. D ir.1966) (<HOLDING>). The Court weighs the following fa tors when Holdings: 0: holding that the defendant bears the burden of demonstrating that the action should be transferred 1: holding that an appellant bears the burden of demonstrating error on appeal 2: holding that the defendant bears the burden under plainerror review 3: holding that the defendant bears the burden of proving outside contact with the jury 4: holding that the moving party for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial | [
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See Farmer v. Circuit Court of Md. for Balt. Cty., 31 F.3d 219, 223 (4th Cir. 1994) (“There is ... authority for treating sufficiently diligent, though unavailing, efforts to exhaust as, effectively, exhaustion, and for excusing efforts sufficiently shown to be futile in the face of. state dilatoriness or recalcitrance.”). Here, the West Virginia Supreme Court of Appeals took over 20 years to decide Plymail’s direct appeal of his criminal conviction. Our sister circuits have found much shorter delays sufficient to excuse the exhaustion requirement. See, e.g., Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (“[I]t is difficult to envision any amount of progress justifying an eight-year delay in reaching the merits of a petition.”); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (<HOLDING>). The magistrate judge and the district court Holdings: 0: holding in the context of fouryear delay that a prisoner need not fully exhaust his state remedies if the root of his complaint is his inability to do so 1: holding that state prisoner seeking only monetary damages in 1983 suit need not exhaust administrative remedies pursuant to 1997e if such remedies do not provide for the award of monetary relief 2: holding that the prisoner must exhaust his administrative remedies as to each defendant later sued 3: holding that the prisoner has the burden of demonstrating he has exhausted his administrative remedies in his complaint 4: holding that a plaintiff need not exhaust his administrative remedies to bring a retaliation claim | [
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1 (1978)). In reviewing a sufficiency challenge, “[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). “[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). In evaluating the sufficiency of the evidence, this court does not “weigh the evidence or review the credibility of the witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997). When the evidence supports differing reasonable interpretations, the Cir.1999) (<HOLDING>); United States v. Kimble, 178 F.3d 1163, 1168 Holdings: 0: holding that a bank customer did not have a reasonable expectation of privacy in records maintained by the bank 1: holding that the presence requirement of the carjacking statute was satisfied when keys were taken from a restaurant employee whose car was parked outside the restaurant 2: holding that the prisoner should have been allowed to choose whether to leave his car parked in a public parking lot 3: holding that the presence requirement of the carjacking statute was satisfied when keys were taken from a bank employee whose car was parked in a parking lot outside the bank 4: holding judge in bank robbery prosecution did not abuse discretion in refusing to excuse juror whose wife was bank employee or juror whose daughter had been victim of bank robbery | [
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not, in itself, confer a liberty interest in a full-time education. Giano, supra, at *3. Prison officials need not provide an educational program tailored to the specific needs and circumstances of the inmate. Gi-ano, supra, at *3 (“neither § 136 nor DOCS policies require a prison to provide an inmate with specialized educational programs”); Clarkson v. Coughlin, 898 F.Supp. 1019, 1041 (S.D.N.Y.1995) (“only the provision of no ed ucation at all or education that was wholly unsuited to the goals of a particular inmate’s socialization and rehabilitation trigger due process protections” under § 136); Jones v. Grunewarld, 644 F.Supp. 256, 259 (S.D.N.Y. 1986) (§ 136 does not provide an inmate a protected property interest in a' scholarship); Lane v. Reid, 575 F.Supp. 37, 39 (S.D.N.Y. 1983) (<HOLDING>). Federal courts have, moreover, consistently Holdings: 0: holding that 136 does not provide inmate a protected property interest in full time program of education 1: holding that prisoner had no liberty interest in remaining in voluntary boot camp program despite fact that completion of program qualifies inmate for early release 2: holding that a professionals license is a protected property interest 3: holding that any constitutionally protected property interest an employee has as a result of his employment contract is satisfied by payment of the full compensation due under the contract 4: holding that sovereign immunity does not protect the state from claims for statutory employment benefits that constitute a protected property interest | [
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2011 WL 4537877, at *12. In other words, only certain portions of the influenza virus generated a cross-reactive immune response. Petitioner provided no evidence that the portions of the influenza virus shown by Wucherpfennig to mimic myelin basic protein were present in the influenza vaccine Petitioner received. Special Masters Decision, 2011 WL 4537877, at *12. Petitioner also did not provide evidence that any peptide from the influenza vaccine he received was cross-reactive with myelin basic protein-specific T-cells. Id. The special master reasonably considered the lack of evidence connecting the cross-reactivity observed by Wucherpfennig to the facts of Petitioner’s case to weigh “against finding that Dr. Tornatore’s opinion is persuasive.” Id.; see Moberly, 592 F.3d at 1824 (<HOLDING>). Moreover, the special master credited several Holdings: 0: holding that defense of fraud was waived where no special issue was submitted and there was disputed evidence 1: holding district court did not err in admitting reports that were merely cumulative of evidence already in the record 2: holding that trial court did not err 3: holding summary judgment appropriate when the facts in evidence supported another plausible theory not the plaintiffs theory of the case 4: holding special master did not err in rejecting a theory of causation where there was no evidence in the record suggesting that the proposed mechanism was at work in the petitioners case | [
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which Hinton and Wachovia agreed states that if Hinton breaches, Wachovia is entitled to foreclose on the property. On this basis, Wachovia contends that it was entitled to reject Hinton’s October payment and initiate foreclosure proceedings on the home. Hinton’s claim that Wachovia breached the May DFA by failing to state a sum certain for the “regular payment” amount is without merit. Hinton cites no authority for this proposition, and we have found none. An ambiguous term in the contract does not amount to a breach by the drafter. Rather, a significant disagreement over the meaning of a contract term could vitiate mutual assent, and thus no contract would ever have been formed. See Higgins v. Oil, Chem. & Atomic Workers Int’l Union, Local #3-677, 811 S.W.2d 875, 879-81 (Tenn.1991) (<HOLDING>); Restatement (Second) of Contracts § 20(1) Holdings: 0: holding mutual assent in contract law is elementary and it must be expressed by the parties 1: holding judicial reformation of contract is an appropriate remedy when the contract was the product of a mutual mistake 2: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 3: holding a deviation from the terms of a contract constitutes an impairment of contract 4: holding that both the lack of mutual assent and the indefiniteness of contract terms negate the existence of a contract | [
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of regulating the commerce in agricultural commodities itself. But because futures contracts do conLain a provision for delivery as an optional mode of compliance with obligations created by such contracts, rare as the exercise of that option is, it isn’t always easy to determine just from the language of a contract for the sale of a commodity whether it is a futures contract or a forward contract. Nagel, 217 F.3d at 440. 11 . The quoted language appears identically in each of the Producers’ affidavits. 12 . This court is no stranger to either the Eighth Circuit's decision in Camfield nor its application. This court has applied the Cam-field decision in several of its prior published decisions. See generally Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672 (N.D.Iowa 1995) (<HOLDING>); Kunzman v. Enron Corp., 902 F.Supp. 882 Holdings: 0: holding that waterhouse cannot generate a genuine issue of material fact by making statements in an affidavit that directly contradict his sworn deposition testimony given in the case 1: holding that subsequent affidavit contradicting prior sworn testimony does not create genuine issue of fact 2: holding that physicians affidavit created genuine issue of material fact even though it directly contradicted his prior deposition testimony where physician offered a plausible explanation for the change in his testimony 3: holding that the court may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony and the nonmovant does not explain the discrepancies 4: holding nonmoving partys affidavit created genuine issue of material fact as to the existence of an employment relationship | [
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144, 144 (712 SE2d 139) (2011). 2 CODIS, the Combined DNA Indexing System, is a database of DNA profiles linked among the states through the Federal Bureau of Investigation. 3 See OCGA § 16-4-8. 4 See former OCGA § 16-7-1 (a) (1980). 5 See former OCGA § 16-6-1 (a) (1) (2006). 6 See former OCGA § 16-5-21 (a) (2) (2006). 7 See OCGA §§ 16-4-1; 16-8-41 (a). 8 See former OCGA § 16-5-40 (a), (b) (4) (2006). 9 See OCGA § 16-5-41 (a). 10 See OCGA § 16-11-106 (b). 11 See former OCGA § 16-11-131 (b) (2000). 12 Cook had not been apprehended at the time of (786 SE2d 882) (2016) (punctuation omitted). 24 See Jackson, 443 U. S. at 3 al court did not abuse discretion in denying motion to sever given that trial of only two defendants would not create confusion). 30 See McClendon, 299 Ga. at 615 (3) (<HOLDING>); Jones, 318 Ga. App. at 36 (5) (same). 31 See Holdings: 0: holding that the trial court did not abuse its discretion in refusing a motion to sever separate charges of rape committed against the appellants two nieces 1: holding that trial court did not abuse discretion in denying motion to sever because codefendants defenses were not antagonistic 2: holding that trial court did not abuse discretion in denying motion to sever because trial of three defendants would not create confusion 3: holding that trial court did not abuse its discretion in denying motion to amend complaint because the proposed amendment would have been futile 4: holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form | [
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that zoning and land use issues are traditionally significant to states. Thus, it is often appropriate for federal courts to abstain from deciding land use issues. Addiction Specialists, 411 F.3d at 409. Land-use policy is an area where “the tenets of federalism are particularly strong”'—so strong, in fact, that the Third Circuit had to specifically point out that federal courts should not automatically abstain in cases involving land use regulation. Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir.1988). As Justice Alito said when sitting on the Third Circuit, “[l]and-use decisions are matters of local concern” and a federal court should not act as a “zoning board of appeals.” United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 402 (3d. Cir.2003) (<HOLDING>). In land use cases, of course, an important Holdings: 0: holding that the judiciary may direct appropriate process to the executive 1: holding forcible extraction of the contents of defendants stomach shocks the conscience and violates due process 2: holding that the shocks the conscience test was appropriate to evaluate whether executive conduct violated the substantive due process clause in a landuse decision 3: holding forced stomach pumping shocks the conscience and violates substantive due process 4: holding that plaintiff must allege conduct so arbitrary and unreasonable that it shocks the conscience in order to state substantive due process claim in context of social workers alleged interference with parents custody rights | [
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(Pl.’s Opp. at 20.) Plaintiff is correct that subsection (d)(2) of section 476 authorizes Indian tribes to bring lawsuits “to enforce the provisions” of the IRA in federal court; however, this language alone does not a sovereign immunity waiver make. Indeed, as this Court reads subsection (d)(2), Congress is speaking to the power of a federal court to consider cases of this nature (actions to enforce the provisions of the IRA), and does not mention who may properly be named as a defendant in any such suit, much less expressly permit such enforcement actions to proceed against the United States. Consequently, subsection (d)(2) is, at most, ambiguous as far as the defense of sovereign immunity is concerned, and that section therefore fails to qualif ’n, 89 F.3d 897, 901 (D.C.Cir.1996) (<HOLDING>). Instead, courts considering whether a Holdings: 0: holding that the united states is liable for interest only in the event of a clear statutory waiver of sovereign immunity 1: holding that federal courts have no subject matter jurisdiction to hear a claim against the united states or one of its agencies absent a clear waiver of sovereign immunity 2: holding that 28 usc 1331 does not constitute a waiver of sovereign immunity 3: holding that 28 usc 1331 which states that district courts shall have original jurisdiction of all civil actions arising under the constitution laws or treaties of the united states does not constitute a waiver of sovereign immunity 4: holding that 28 usc 1361 which provides that district courts shall have original jurisdiction to compel an officer or employee of the united states to perform a duty owed to the plaintiff does not constitute a waiver of sovereign immunity | [
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477 F.Supp. 1210, 1218 (E.D.Wis.1979), the court addressed a vagueness challenge to a provision prohibiting the use of sound amplification devices in a manner that “unreasonably interfere(s) with the use and enjoyment of the park or parkway by the public,” and held that the language was not excessively indefinite. And, the state supreme court unanimously upheld against a vagueness challenge a City of Madison ordinance prohibiting the making of “any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof.” Baumann, 162 Wis.2d at 665, 470 N.W.2d 296. The court stated that the reasonable-person standard was “one that has been relied f Charlotte, 706 F.2d 486, 489 (4th Cir.1983) (same); People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100, 102-03 (1978) (<HOLDING>); State v. Linares, 232 Conn. 345, 655 A.2d Holdings: 0: holding factor b is not unconstitutionally vague 1: holding the term lewdness undefined in the iowa abatement statute to be vague 2: holding that term unreasonably loud is not impermissibly vague 3: holding that unreasonable noise is not vague because unreasonable denotes objectivity based on circumstances 4: holding that term unreasonable noise was not vague | [
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59 (1960) (noting that a writ of error coram nobis was, at common law, a civil proceeding), appeal dismissed, 13 A.D.2d 518, 212 N.Y.S.2d 569 (1961). Most other jurisdictions agree that a proceeding on a writ of error coram nobis remains a civil matter independent of the underlying case even though its resolution may affect the underlying case. See generally Ex parte Wilson, 275 Ala. 439, 440, 155 So.2d 611, 612 (1963) (“Coram nobis proceedings are essentially civil in nature____”); State ex rel. Cutsinger v. Spencer, 219 Ind. 148, 155, 41 N.E.2d 601, 603 (1941) (“[T]he petition for the writ of error coram nobis must be considered a new proceeding, civil in nature____”); State v. Miller, 161 Kan. 210, 214, 166 P.2d 680, 683, cert. denied, 329 U.S. 749, 67 S.Ct. 76, 91 L.Ed. 646 (1946) (<HOLDING>); Commonwealth v. Sirles, 267 S.W.2d 66, 66 Holdings: 0: holding that coram nobis may not issue when alternative remedies such as habeas corpus are available 1: recognizing that under the common law applications for writs of error coram nobis were civil in character 2: holding same for writ of error coram nobis 3: recognizing common law rule that the proceedings upon an application for a writ of error coram nobis were like proceedings in habeas corpus regarded as civil in character 4: holding that federal court may not issue writ of coram nobis for state prisoner | [
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340 (1992). In Denton, the Court reviewed a dismissal of an inmate’s suit brought under title 28, section 1915 of the United States Code, the federal in forma pauperis statute. 504 U.S. at 27, 112 S.Ct. 1728. The Court held that a dismissal under this statute is not a dismissal on the merits; rather, it is merely an exercise of the trial court’s discretion under the statute. See id. at 34, 112 S.Ct. 1728. Thus, when reviewing whether the district court abused its discretion in dismissing the inmate’s suit, the appellate court should consider whether the suit was dismissed with prejudice and if it was, determine whether the inmate’s error could be remedied. See id. If the error could be remedied, then a dismissal with prejudice is improper. Compare Denton, 504 U.S. at 27, 112 S.Ct. 1728 (<HOLDING>), with Hicks v. Brysch, 989 F.Supp. 797, 816 Holdings: 0: holding that dismissal of a pro se complaint for failure to state a claim should generally be without prejudice but if the plaintiff has been given an opportunity amend his complaint and fails to do so the dismissal may be with prejudice 1: holding that absent extraordinary circumstances a failure to comply with the statute requires a dismissal with prejudice 2: holding that the parties stipulation of dismissal with prejudice was a final judgment 3: holding appeal improper since the dismissal was voluntary 4: holding dismissal with prejudice improper when inmates error can be remedied | [
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Procedures Act. Geathers v. 3V, Inc., 371 S.C. 570, 570, 641 S.E.2d 29, 32 (2007). Pursuant to section 1-23-390 of the South Carolina Code, “An aggrieved party may obtain a review of a final judgment of the circuit court or the court of appeals pursuant to this article by taking an appeal in the manner provided by the South Carolina Appellate Court Rules as in other civil cases.” S.C.Code Ann. § 1-23-390 (Supp.2006) (emphasis added). Thus, our courts, “have consistently held that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable.” Montjoy v. Asten-Hill Dryer Fabrics, 316 S.C. 52, 52, 446 S.E.2d 618, 618 (1994). See also Davis v. La-Z-Boy Chair Co., 287 S.C. 121, 122, 337 S.E.2d 238, 239 (Ct.App.1985) (<HOLDING>); Owens v. Canal Wood Corp., 281 S.C. 491, Holdings: 0: holding an appeal from a circuit court order remanding a workers compensation case for the purpose of making specific findings of fact is interlocutory and not reviewable by the court of appeals 1: holding that a transfer order issued by a district court in another circuit is reviewable only in the circuit of the transferor district court 2: holding the order of the circuit court did not involve the merits of the action and was therefore interlocutory and not reviewable by the supreme court for lack of finality 3: holding interlocutory order of the circuit court remanding the workers compensation matter for taking additional medical evidence did not involve the merits of the action and therefore was not reviewable by the court for lack of finality 4: holding the commissions order reversing an award and remanding the case to the single commissioner to take further testimony was not final and not appealable to the circuit court until the commissions final determination regarding the single commissioners award the court construed the language in a provision of the code that states appeals from the commission to the circuit court shall be under the same terms and conditions as govern appeals in ordinary civil actions and stated an appeal to the circuit court will not lie from an interlocutory order of the commission unless it affects the merits citation omitted | [
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member. For example, in Dietz v. St. Edward’s Catholic Church (In re Bargfrede), 117 F.3d 1078, 1079 (8th Cir.1997), a husband used his assets to help pay his wife’s judgment debt to her church for embezzlement. The Eighth Circuit held that the husband’s claimed receipt of “benefits in the form of a release of a possible burden on the marital relationship and the preservation of the family relationship” were “indirect, non-economic benefits” to the husband that “do not constitute reasonably equivalent value.” Id. at 1080 (citations omitted). The court cited with approval cases holding that “moral obligations,” “love and affection,” and “spiritual fulfillment” are not reasonably equivalent value. Id. See also Walker v. Treadwell (In re Treadwell), 699 F.2d 1050, 1051 (11th Cir.1983) (<HOLDING>); Zubrod v. Kelsey (In re Kelsey), 270 B.R. Holdings: 0: holding that debtors receipt of love and affection from his two daughters in exchange for transfers of money was not reasonably equivalent value such love and affection is of no benefit to the creditors 1: holding that a remote tippee must know that original exchange was given in exchange for benefit 2: holding that the transfers at issue were not fraudulent transfers because they did not diminish the debtors estate 3: holding that there is a difference between a debtor attempting to pursue an action for his own benefit and a trustee pursuing an action for the benefit of the creditors 4: holding that the receiver for a corporation had no standing to sue for inter alia receipt of funds fraudulently obtained fraud and unjust enrichment even though he was appointed on behalf of all the creditors because those were claims of the creditors not of the corporation | [
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liability of the defen-dani/third-party plaintiff being reduced by a corresponding percentage. See Alaska R. Civ. P. 14(c) (providing that “[j]udgment may be entered against a third-party defendant in favor of the plaintiff in accordance with the third-party defendant’s respective percentage of fault”). C. Analysis of the State’s Arguments. The State first argues that section 09.17.080 (1996) creates no legal duty between a defendant/third-party plaintiff and a third-party defendant. The State then reasons that the claim by the United States for equitable apportionment is, in essence, nothing more than a claim asserted on behalf of a private-citizen plaintiff, who is barred from asserting a claim directly. (2d Cir.1988) (same); Parks v. United States, 784 F.2d 20, 23-25 (1st Cir.1986) (<HOLDING>). Despite the distinction that Alaska law draws Holdings: 0: holding that the eleventh amendment does not bar the united states from asserting an indemnity claim against a state 1: holding that eleventh amendment does not bar federal suit against state official for prospective injunctive relief 2: holding that the eleventh amendment does not bar a bankruptcy court from issuing a money judgment against a state under the bankruptcy code 3: recognizing the eleventh amendment does not bar the united states from suing a state 4: holding that the eleventh amendment does not prohibit the united states from prosecuting a claim of contribution | [
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legislation because it “grants Native Americans a right not enjoyed by other Americans, that is, a right to the protection of a special ethnic-based trademark for its style of goods that is not available to any other race or ethnicity.” (Def.’s Mem. 28.) As such, Specialties argues, the IACA should be subjected to strict scrutiny, a test it cannot survive. But the Supreme Court has established that statutes providing for special treatment of Indians will not be disturbed “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.” Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); see also United States v. Antelope, 430 U.S. 641, 645 & n. 6, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977) (<HOLDING>). Accordingly, federal courts have long Holdings: 0: holding the constitution vests the federal government with exclusive authority over relations with indian tribes 1: recognizing the inherent power of indian tribes to exercise criminal jurisdiction over all indians 2: holding that congress which regulated the introduction of alcoholic beverages in indian country could validly delegate to indian tribes its authority to regulate that subject matter because indian tribes themselves possessed independent authority over the subject matter 3: holding that federal legislation with respect to indian tribes is not based upon impermissible racial classifications and noting that article i 8 of the constitution gives congress the power to regulate commerce with the indian tribes 4: holding that an indian tribes exercise of criminal jurisdiction over nonindians is inconsistent with the domesticdependent status of the tribes and that tribes may not assume such jurisdiction without congressional authorization | [
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The trial judge must undertake the familiar balancing process in which the relative degrees of relevance and prejudice are weighed and determined.... Id. at 773, 774. In homicide cases, “if there is no defense which brings into issue the state of mind of the deceased, evidence of fears or other emotions is ordinarily not relevant. But where a defense such as that of accident or self-defense is interposed ..., courts have generally allowed the admission of evidence of the victim’s fears, as probative of the question whether that person would have been likely to do the acts claimed by the defendant.” State v. Parr, 93 Wash.2d 95, 606 P.2d 263, 267 (1980). See also People v. Atchley, 53 Cal.2d 160, 346 P.2d 764 (1959), cert. dismissed 366 U.S. 207, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961) (<HOLDING>); People v. Finch, 213 Cal.App.2d 752, 29 Holdings: 0: holding that a woman did not escape the consequences of consent to husbands illegal acts even though she presented evidence that her husband had beaten his previous wife to death had beaten her and owned several guns 1: holding that debtor who was separated from her husband and who testified that she would only return to the marital home if her husband vacated the house or died or if she was required to care for him or her adult son there or if the couple reconciled was an abandonment of the marital home as her homestead 2: holding admissible a letter which a woman had purportedly written to a judge 2 days before her death stating that her husband had threatened her and she feared him where the defendant husband claimed she had threatened him 3: holding admissible a deceased wifes statements of fear of her husband and threats made by him where he claimed that he was attempting to disarm her 4: holding wife did not have a duty to warn a police officer who was shot while escorting her home that her husband had threatened to kill any police officer | [
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(1948) (Police officers conducted an illegal, warrantless search of the room McDonald was renting in a boarding house and seized allegedly illegal items that belonged to him. He and his guest were arrested as a result of the search, were jointly tried, and were parties to the appeal. After concluding that the trial court erred in failing to suppress the evidence seized as a result of the illegal search, the Supreme Court of the United States held that such failure was prejudicial to both McDonald and his guest, noting that if the evidence had been properly suppressed, it would have been unavailable for the State to use against either defendant at trial. Thus, the Court reversed both defendants’ convictions.). 15 See generally McBee v. State, 296 Ga. App. 42,44 (1) (673 SE2d 569) (2009) (<HOLDING>). 16 The record shows that, after Jalim’s truck Holdings: 0: holding that officer may order driver out of vehicle once lawfully detained for traffic violation 1: holding that even if an officer has an ulterior motive that does not authorize him to conduct a traffic stop of a particular vehicle he may still lawfully execute the stop if he observes the driver violate a traffic law 2: holding that a traffic stop is valid under the fourth amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring 3: holding that if an officer observes a driver commit a traffic violation he has probable causeand thus also the lesser included reasonable suspicionto stop that driver 4: holding that an officer may order a passenger out of a vehicle during a stop for a traffic infraction | [
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D.C. Circuit, which held that “a party waives its work product protection in civil litigation if it discloses the privileged material to anyone without ‘common interests in developing legal theories and analyses of documents.’ ” In re Sealed Case, 676 F.2d 793, 817 & n. 97 (D.C.Cir.1982) (quoting United States v. AT & T Co., 642 F.2d 1285,1300 (D.C.Cir.1980)). Steinhardt is particularly instructive. The defendants in Steinhardt were sued in a private class action for allegedly manipulating the market in two-year Treas d that there “may” not be waiver where the disclosing party and the government “share a common interest in developing legal theories and analyzing information, or situations in which the government and the dis in in the days and weeks bef .R.D. 113, 115-17 (S.D.N.Y.2002) (<HOLDING>); Verschoth v. Time Warner, Inc., No. 00 Civ. Holdings: 0: holding that plaintiffs knowledge was not based upon the public disclosures because plaintiffs knowledge was independent of those disclosures 1: holding work product protection waived for disclosures to independent auditor who did not share common interests with corporation 2: holding that opinion work product is entitled to nearly absolute protection with limited exceptions 3: holding defendants waived work product protection over emails that defense counsel sent to independent thirdparty witness with whom defendants did not share common interest 4: holding work product protection waived where company shared litigation strategy against plaintiff with nonparty independent contractor | [
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United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 671, 98 L.Ed.2d 830 (1988). 11 . Id. 108 S.Ct. at 672. 12 . 5 U.S.C.A. §§ 2301-02. 13 . Id. § 2301(b)(2); Saul v. United States, 928 F.2d 829, 833 (9th Cir.1991). 14 . Id. § 2302(b)(11). 15 . These remedies were refined and enhanced by the Whistleblower Protection Act of 1989 § 3(a)(8), Pub.L. No. 101-12 § 3(a)(8), 103 Stat. 16, 18. We discuss the CSRA’s original, unamended remedies, because they were in effect when the events in this case took place. 16 . Bush, 103 S.Ct. at 2406 (emphasis added). 17 . Furthermore, even if we accepted the assumption that the Rollinses’ protected activity was not directly related to the job, some cases have applied Bush even in such circumstances. E.g., Kotarski v. Cooper, 866 F.2d 311 (9th Cir.1989) (<HOLDING>). The Rollinses insist that none of Mrs. Holdings: 0: holding plaintiffs supervisor subject to suit 1: holding that due to the csra a federal employee has no independent right of action for damages against a supervisor who improperly disciplined the employee for exercising his first amendment rights 2: holding that employer was entitled to discharge employee after he threatened life of his supervisor even if such misconduct was caused by employees disability 3: holding that defendant was not resident of his mothers household even though his drivers license listed his mothers address and he received mail there because he expressed a belief that his residence was in a different location than his mothers home he rented and occupied his own residence and he testified that he was only living with his mother after expiration of his lease until he could find another place to live 4: holding bush applicable when federal employee demoted allegedly because his supervisor disapproved of his living arrangements with woman friend | [
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the officers received reports of a man walking wet and barefoot through a neighborhood while talking to himself. It is not a stretch to imagine that such a person could have needed medical assistance or could have been under the influence of drugs or alcohol or suffering from a mental illness. The officers located Cady, who matched the description in the reports, approached him, inquired into his identity and well-being, and let him leave without hindering his departure in any way. Although a 20-minute encounter strikes us as lengthy for such an inquiry, the duration of the encounter is reasonable in light of the fact that Cady engaged the officers in a discussion about religion and his rights. See United States v. Sharpe, 470 U.S. 675, 687-88, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (<HOLDING>); United States v. Robinson, 30 F.3d 774, 784 Holdings: 0: holding that a six month delay was unreasonable 1: holding that a five month delay was unreasonable 2: holding that a 13 month delay was unreasonable 3: holding that 20minute stop was not unreasonable where the suspects actions contributed to delay about which he complained 4: holding that 20minute detention was not unreasonable where suspect gave misleading answers | [
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Oct. 29, 2007). Plaintiffs’ conversion claim with respect to the business documents, including the client list, fails as a matter of law. While Belliard did assume or exercise control over Pure Power’s client list to the extent that he accessed the client list from a Pure Power computer and downloaded it onto a thumb drive, Belliard possessed only a copy of the client list and did not, in any way, limit or otherwise deprive Pure Power of possession or use of that list. See Hair Say, Ltd. v. Salon Opus, Inc., 6 Misc.3d 1041(A), No. 5106-01(LBA), 2005 WL 697538, at *5 (N.Y.Sup.Ct. Mar. 17, 2005) (granting summary judgment on a conversion claim where plaintiff retained possession of a list of beauty salon clients that had been copied by defendants); Alpha Funding, 2007 WL 3375871, at *7 (<HOLDING>). Similarly, although the Court concludes that Holdings: 0: holding that it is not 1: holding that plaintiff could state a claim for conversion of confidential information 2: holding former employee could properly use recollection of customer information where he did not otherwise misappropriate an actual customer list 3: holding that where defendant retained possession of and deprived plaintiff access to business records a claim for conversion was properly stated 4: holding that where plaintiff did not allege that it was deprived of or excluded from use of its own customer lists it could not establish conversion | [
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as a subjective standard for evaluating a claim of duress. Eymard v. Terrebonne, 560 So.2d 887, 890 (La.App. 1st Cir.), writ denied, 567 So.2d 614 (La.1990). The fear must be “reasonable” and of “unjust and considerable injury" to one’s person, property or reputation. Id. 560 So.2d at 890. Even if Witter could prove that his creditors “pressured” him into entering the agreement with Dornier in order to obtain favorable financial treatment, these actions would not, as a matter of law, constitute legal duress. There is no allegation by Witter that his creditors’ actions were unjust or unfounded in any way. Further, the emotional strain Witter may have experienced from his divorce is also insufficient to establish legal duress. See Adams v. Adams, 503 So.2d 1052, 1057 (La.App.2d Cir.1987) (<HOLDING>). Therefore, there is no material issue of fact Holdings: 0: holding that an owner or occupant of properly is not liable to pedestrians for injuries resulting from a fall caused by the natural accumulation of snow and ice on a sidewalk in front of the property 1: holding that critical factor is whether the declarant was still dominated by the emotions excitement fear or pain of the event 2: holding that the conflicting emotions caused by the strain of going through a critical period in ones life such as a separation from a spouse and the resulting division of property is not the type of strain constituting legal duress 3: holding that an award of restitution is only for the loss caused by the specific conduct that is the basis of the offense of conviction 4: holding sentence of life imprisonment resulting from a wrongful killing caused by the use of an automobile is not cruel and unusual punishment | [
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¶ 127.) The Complaints plausibly allege that a no-AG agreement is both very valuable to a generic manufacturer (and thus may induce it to stay out of the market) and amounts to a sacrifice by a brand manufacturer, rendering the potential anticompetitive effect plain. On a 12(b)(6) motion to dismiss, this is sufficient. See Aggrenox I, 94 F.Supp.3d at 245 (“If some particular transfer of money would be unlawful—for whatever reason— its unlawfulness is not cured merely because the value is transferred in the form of exclusive licenses instead of cash, irrespective of whether the grant of an exclusive license would otherwise be valid.... The issue is not whether the form of the payment was legal, but whether the purpose of the payment was legal.”); see also Lamictal, 791 F.3d at 409 (<HOLDING>); Opana, 162 F.Supp.3d at 718; In re Solodyn Holdings: 0: holding that an acceleration clause is not subject to antitrust scrutiny where plaintiffs conceded that they could be procompetitive in some circumstances but noting that noag clauses are subject to antitrust scrutiny 1: holding that there must be a causal connection between the alleged antitrust violation and the antitrust injury for there to be antitrust standing 2: holding that an activity which is exempt from the antitrust laws cannot form the basis of an antitrust investigation 3: holding that a noag agreement because it may represent an unusual unexplained transfer of value from the patent holder to the alleged infringer that cannot be adequately justifiedwhether as compensation for litigation expenses or services or otherwiseis subject to antitrust scrutiny under the rule of reason internal footnote omitted 4: holding postactavis that a noag agreement is subject to antitrust scrutiny under the rule of reason | [
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other crimes evidence was not “substantially outweighed” by the danger of unfair prejudice or other considerations under Rule 403: [T]he probative value is strong because the other crimes would show how the relationships between [certain] alleged co-conspirators developed and their motives for acting, within the relevant time frame. The danger of unfair prejudice is fairly low because, except perhaps for the [excluded] Gopaul hostage taking, the other crimes evidence “adds no emotional or other pejorative emphasis not already introduced by the evidence” of the charged offense. Straker, 567 F.Supp.2d at 177-79 (emphasis added) (quoting United States v. Lawson, 410 F.3d 735, 742 (D.C.Cir.2005)); see also United States v. Cheng, No. 97-1016, 1997 WL 738588, at *1 (2d Cir. Nov. 21, 1997) (<HOLDING>). The Court reached the same conclusion for the Holdings: 0: holding that evidence of uncharged crimes was improper on rebuttal since none of the defendants made any general denial of wrongdoing which might have justified rebuttal in the form of evidence of uncharged crimes 1: holding that the rule 403 balancing favored admissibility where the uncharged kidnapping was not more sensational or inflammatory than the charged crimes while tending to show how the relationships formed among the conspirators 2: holding there is no unfair prejudice when the prior act is no more sensational or disturbing than the evidence admitted directly supporting the crimes with which the defendant was charged 3: holding that uncharged sexual acts committed upon the same victim are admissible to show the conduct of the defendant toward the victim and to corroborate the evidence of the offense charged in the indictment 4: recognizing that the common scheme or plan exception is generally applied in cases involving sexual crimes where evidence of acts prior and subsequent to the act charged in the indictment is held admissible as tending to show continued illicit intercourse between the same parties | [
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may limit affirmative defenses to a particular category of crimes without offending due process). Thus, the General Assembly may establish affirmative defenses and limit the cireumstances in which they apply, as long as they do not intrude on other constitutional protections. Id. 119 The separation of powers doe-trine "does not require a complete division of authority among the three branches, however, and the powers exercised by different branches of government necessarily overlap." Crowe, 126 P.3d at 205-06 (quoting Dee Enters. v. Indus. Claim Appeals Office, 89 P.3d 430, 433 (Colo.App.2003)). The authority of the judicial and legislative branches commonly overlaps because the distinction between procedural rules and substantive law is often blurred. See Wiedemer, 852 P.2d at 436 (<HOLDING>); People v. McKenna, 196 Colo. 367, 371, 585 Holdings: 0: holding rules of procedure interpreted in same manner as statutes 1: holding that motorcycle training course is not a matter of public necessity and release does not violate public policy 2: holding that duty existed as a matter of public policy independent of the restatement 3: holding that federal law can provide source of state public policy for determining whether discharge of employee violated clear mandate of public policy 4: holding that statutes of limitation although indirectly affecting court procedure primarily concerned a matter of public policy | [
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v. Javin Partnership, 15 N.J. Tax 88, 94-95 (Tax 1995). However, in interpreting Chapter 117, a number of cases created a distinction between “special purpose” and “general purpose” property. See Texas Eastern Trans. Corp. v. Department of Treasury, Div. of Taxation, 11 N.J.Tax 198 (Tax 1990). Special purpose property has unique physical design, special construction materials, or layout that restricts its utility to the use for which it was built. Id. at 209 n. 2. In Texas Eastern, the court concluded that regulations of the Division of Taxation, which were meant to clarify the terms “structure,” “material injury,” and “machinery, apparatus or equipment” in Chapter 117, were not reasonably related to special purpose property. Badische Corp. v. Town of Kearny, 11 N.J.Tax 385 (Tax 1990) (<HOLDING>); Texas Eastern, supra, 11 N.J. Tax 198 Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding hydroelectric power machinery real property 2: holding that a tax appeal on real property is a lien on the real estate and not a personal obligation of the landowner 3: holding batch ester plant machinery real property 4: holding that forfeiture of real property may be adjudicated before the seizure occurs because real property cannot abscond | [
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to find that it was being utilized as a commercial establishment related to the distribution of powdered and crack cocaine. Consequently, like the defendant in Talley, Thornton did not have a legitimate or reasonable expectation of privacy in 2316 Eastview Avenue. Moreover, in the absence of evidence that Thornton was inside the house at 2316 Eastview Avenue with the permission of the person having authority over it, this Court must conclude that he was a trespasser. The Sixth Circuit has held that trespassers do not have a legitimate expectation of privacy in the place on which they are trespassing. United States v. Hunyady, 409 F.3d 297 (6th Cir.), cert. denied, 546 U.S. 1067, 126 S.Ct. 810, 163 L.Ed.2d 637 (2005). See also, United States v. McRae, 156 F.3d 708; 711 (6th Cir.1998) (<HOLDING>). However, even if the evidence had established Holdings: 0: holding that rooming house residents had a legitimate expectation of privacy in the front hallway of the house they shared which was not obviously a rooming house open to the general public 1: holding that the defendant failed to demonstrate legitimate expectation of privacy where he could not show that he had the owners permission to use the car or demonstrate prior use or control of the car 2: holding that defendant staying in abandoned house had no legitimate expectation of privacy in the house despite having a key to the house and the ability to let people in and out of it 3: holding that a defendant who had been living in a vacant house for approximately one week failed to demonstrate that he had a legitimate ex pectation of privacy 4: holding that a defendant who had borrowed a car for a limited period of time had no legitimate expectation of privacy in the cars locked trunk where it was the very person from whom he had borrowed the car who first called the police after he failed to return the car | [
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event KPMG went out of business. Id. at 610-11. The court found class counsel’s skill and efficiency in obtaining the settlement weighed in favor of approving the fee request, finding class counsel to be “extraordinarily deft and efficient in handling this most complex matter” and concluding “it would be hard to equal the skill class counsel demonstrated here.” Id. at 611. Performing a lodestar cross-check to confirm the fees’ reasonableness, the court found a “handsome,” yet “fairly common” lodestar multiplier of 4.07 based upon 12,906 hours billed since the fee application in Rite Aid I at an hourly rate of $605. Id. at 611 and n. 10. For those reasons, the District Court denied Kaufmann’s objections and awarded class counsel the requested fees plus reimbur 1304, 1307 (3d Cir.1993) (<HOLDING>). The 2003 Amendment to Fed. R.Civ.P. 23 added Holdings: 0: holding that an unnamed plaintiff that did not intervene nonetheless had standing to appeal a class action settlement 1: holding that unnamed class members who object in a timely manner to approval of a settlement at a fairness hearing may appeal without first intervening 2: holding that unnamed class members who had contested fairness of proposed settlement and attempted to opt out of class action were entitled to appeal settlement under virtualrepresentation doctrine 3: recognizing that requiring an objector to intervene in a class action in order to appeal the approval of a settlement would only add an additional layer of complexity before the appeal of the settlement approval may finally be heard 4: holding an unnamed class member who did not intervene in the action lacked standing to appeal district courts order awarding attorneys fees | [
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Court of the United States.” 28 U.S.C. § 2254(d)(1). We cannot conclude that the state’s decision was contrary to, or an unreasonable application of, clearly established Supreme Court precedent because there is no precedent that is clearly applicable to these facts. The Supreme Court has held that any admission at trial of post-Miranda silence is a violation of a defendant’s due process rights. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, the Court allows the admission of a defendant’s pre-Miranda silence for impeachment purposes when a defendant testifies at trial. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). Although Valentine’s sile 9th Cir.2000) (same) with United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir.2005) (<HOLDING>); United States v. Rivera, 944 F.2d 1563, 1568 Holdings: 0: holding that the government may comment on a defendants prearrest premiranda silence as well as his postarrest pr emiranda silence 1: holding that it is improper for prosecutor to comment on accuseds postarrest silence 2: holding that the government can use prearrest silence for impeachment purposes against a defendant because no government action induced the silence 3: holding that the defendants postarrest pr emiranda silence was admissible in the governments caseinchief because there was no official compulsion the court qualified its holding stating we do not decide today whether compulsion may exist under any other postarrest pr emiranda circumstances 4: holding that when no governmental action induced postarrest pr emiranda silence it could be introduced as evidence of guilt | [
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entry “by means of specious documentation that concealed] the illegality of his presence,” United States v. Rivera-Ventu-ra, 72 F.3d 277, 281 (2d Cir.1995), we hold that the statute of limitations was not triggered at the time he reentered the country, but rather at the time that he was “found in” the United States by immigration authorities. See id. at 282. We therefore conclude that the filing of the indictment approximately two-and-a-half years after Acevedo’s discovery was timely. For this reason, trial counsel’s alleged failure to raise or investigate further a statute of limitations defense could not have prejudiced Acevedo, and, therefore, his ineffective assistance claims on this ground fail. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (<HOLDING>). Acevedo raises numerous other arguments on Holdings: 0: holding defendant did not show prejudice to support ineffective assistance of appellate counsel claim because any evidentiary error was harmless 1: holding that the defendant did not show prejudice to support ineffective assistance of counsel because any evidentiary error was harmless 2: holding that a defendant must show actual prejudice to succeed on an ineffective assistance of counsel claim 3: holding that to succeed on an ineffective assistance claim a defendant must show that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 4: recognizing a constitutional claim for ineffective assistance of counsel | [
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same was expected for the swim on the day of the incident. This testimony raises the question whether the Scouts were in fact like any business invitee (user) to whom the school district owed a duty of reasonable care to avoid a risk of harm. See SCRA 1986, 13-1309 (Repl.Pamp.1991) (owner of a building owes business visitor the duty to use ordinary care to keep the premises safe); Klopp v. Wackenhut Corp., 113 N.M. 153, 157, 824 P.2d 293, 297 (1992) (“in a place of public accommodation, an occupier of the premises owes a duty to safeguard each business visitor whom the occupier reasonably may foresee could be injured by a danger avoidable through reasonable precautions available to the occupier of the premises”); Castillo v. County of Santa Fe, 107 N.M. 204, 205, 755 P.2d 48, 49 (1988) (<HOLDING>). The duty of the owner or occupier includes Holdings: 0: recognizing tort of negligence by words 1: holding that ordinary negligence and gross negligence are not separate causes of action 2: holding that tort claims act contemplates waiver of immunity when negligence of public employees causes unsafe dangerous or defective condition on property owned and operated by the government 3: holding that a public entitys property refers to the public entity that owns the property where a dangerous condition exists 4: holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver | [
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by the Supreme Court of the United States from all such final decisions.” Id. It is in light of this historic and statutory backdrop that we must consider the nature of our review of the Supreme Court of the Virgin Islands’ decisions. At the outset, we identify three possible standards of review that we might apply to a decision of the Virgin Islands Supreme Court. First, we might define our role as that of a “super-Supreme Court,” with powers of review equivalent to that of a state Supreme Court reviewing the decision of an intermediary state appellate court. Second, our role might be framed as equivalent to that of the United States Supreme Court when it reviews decisions of a state Supreme Court. See, e.g., Oregon v. Guzek, 546 U.S. 517, 521, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006) (<HOLDING>); Richfield Oil Corp. v. State Bd. of Holdings: 0: holding that we review agency determinations of law de novo 1: holding federal courts are bound by state court determinations of state law 2: holding that supreme court possesses jurisdiction to review statecourt determinations that rest upon federal law 3: holding that failure to cite federal law does not mean that state court decision was contrary to established federal law state court need not even be aware of supreme court precedents so long as neither the reasoning nor the result of the statecourt decision contradicts them 4: holding that the supreme court may review statecourt judgments that rest on state law when the state court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did | [
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enough that the attorney’s reading of the law is a reasonable one. Thus, once an attorney forms a reasonable opinion after conducting appropriate research, the mere fact that the attorney’s view of the law was wrong cannot support a finding' of a rule 11 violation. Sutliff, 846 P.2d at 1236 (citations omitted). Similarly, section 13 — 7—4(d) does not impose a duty on civil rights plaintiffs or their attorneys to perform perfect or exhaustive research or to reach the correct legal conclusion. It is enough that their efforts and reading of the law are reasonable. 12 . Our conclusion is consistent with the federal civil rights standard and those of several of our sibling states. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421-22, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1978) (<HOLDING>); see also Sees v. KTUC, Inc., 714 P.2d 859, Holdings: 0: holding that attorney fees must be awarded where plaintiffs section 1983 claim was unreasonable and groundless 1: holding that courts may award prevailing title vii defendant attorney fees upon a finding that the plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith and fees also may be awarded if plaintiff continued to litigate after its action clearly became frivolous unreasonable or without foundation 2: holding that feeshifting is permitted under the fair housing act where prevailing defendant shows that suit is frivolous unreasonable or without foundation 3: holding a district court may in its discretion award attorneys fees upon a finding that plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith 4: holding that for a defendant to recoup attorneys fees under 706k of title vii a court must find that the plaintiff litigated his or her claim beyond the point where it became frivolous unreasonable or groundless or where plaintiff acted in bad faith | [
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Francisco J. Cosio, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006). We review de novo, Molinar-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002), and deny the petition for review. Cosio’s 1988 conviction for possession for sale of a controlled substance constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining illicit trafficking in a controlled substance as an aggravated felony); see also Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th Cir.2000) (<HOLDING>). Cosío was not eligible for a discretionary Holdings: 0: recognizing that 1996 amendment to definition of aggravated felony applies retroactively 1: holding that congress clearly manifested an intent for the amended definition of aggravated felo ny to apply retroactively to all defined offenses whenever committed 2: holding that the expanded definition of aggravated felony applies retroactively in actions taken on or after september 30 1996 3: holding that 212c applies to all applications for relief filed after november 29 1990 regardless of when conviction occurred for offenses within the original definition of aggravated felony 4: holding that apprendi does not apply retroactively | [
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were controlling the cocaine market and that this shared nationality was relevant to the defendants’ guilt or innocence. Id. at 24. Racially inflammatory appeals by the government are unacceptable and mock any notion of racial fairness, which is “an indispensable ingredient of due process.” Id. at 24-25. The prosecutor who makes such appeals ignores the primary purpose and chief business of his client: to establish justice. Every prosecutor who makes a racial reference or comment, however, is not necessarily distorting the search for truth. Id. at 25. “An unembellished reference to evidence of race simply as a factor bolstering an eyewitness identification of a culprit, for example, poses no threat to purity of the trial. The line of demarcation is crossed, howeve , 542 (1st Cir.1991) (<HOLDING>). When these factors (frequency and illegal Holdings: 0: holding that a card identifying the defendant as a native colombian has an inherently prejudicial nature 1: holding that the appropriate sanction was to require the defendant to disclose the nature of the agreement with the witness 2: holding that the state as well as the defendant has a right to rely on compliance with rule 16 3: holding that failure to identify the defendant in the information is an omission of an essential element because the primary purpose of the charging document is to inform the defendant of the nature of the accusations brought against him 4: holding that if an officer possesses an objectively reasonable suspicion that a traffic offense has been committed the officer may request identifying information from the driver | [
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S.Ct. 141, 116 L.Ed.2d 108 (1991). 3 . The facts alleged in Ms. Goren's complaint are different from those we evaluated in MCM Partners, Inc. v. Andrews-Bartlett & Assocs., Inc., 62 F.3d 967, 977-79 (7th Cir.1995). In that case, the plaintiff alleged an "association-in-fact" enterprise consisting of several defendants and pursued RICO claims against "lower rung" members of the enterprise despite the fact that they had merely implemented the decisions of other members of the enterprise. The district court dismissed the claims against those defendants because, in its view, they did not play any role in the direction of the enterprise. We reversed and held that the defendants could be held liable because they had knowingly implemented the decisions of upper management and thereby part (<HOLDING>); University of Md. at Baltimore v. Peat, Holdings: 0: holding that plaintiffs allegation that defendant engaged in multiple instances of mail and wire fraud did not allege pattern of racketeering activity with sufficient particularity 1: holding that defendant who was associated with the enterprise and engaged in a pattern of racketeering activity when he repeatedly violated the antifraud provisions of the securities laws was not liable under 1962c because he had no part in directing the enterprises affairs 2: holding that to constitute an enterprise under rico the enterprises structure must provide some mechanism for controlling and directing the affairs of the group on an ongoing rather than an ad hoc basis 3: holding that to prevail under civil rico plaintiff must prove that defendants participated in the conduct of an enterprise through a pattern of racketeering activity 4: holding that in order to plead adequate rico complaint plaintiff must allege that defendant had some part in the direction of the alleged enterprises affairs | [
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1997) (unpublished disposition). The Court does not find those factual findings to be clearly erroneous. Therefore, the Court concludes that even if the letter had created a binding contract, Telelect was free to withdraw from the agreement given Baker’s inadequate performance. The Bankruptcy Court also considered whether the statements of policy published by Telelect and sent to Baker created a valid and binding contract under Virginia law. The trial court held that Telelect’s decision to send a copy of its statement of policy to Baker could imply a promise to abide by the terms of the statement as consideration for the distributor’s services. See In re JGB Industries, Adv. Proc. No. 96-3046 at 12-13 (citing Thompson v. American Motor Inns, Inc., 623 F.Supp. 409, 416-17 (W.D.Va.1985) (<HOLDING>); Michael v. Sentara Health System, 939 F.Supp. Holdings: 0: holding that policies set out in employee handbook formed implied contractual obligations 1: holding that an arbitration agreement in an employee handbook was illusory where the employer expressly reserved a right to unilaterally rescind any provisions of the handbook 2: holding that employee handbook did not give rise to implied contract where it stated that it was not a contract and that employment was terminable at will 3: holding that an employee handbook did not constitute a valid unilateral contract between the employee and employer in the absence of adequate independent consideration 4: holding employee handbook or employers printed statement of policy are promises in implied offer of unilateral contract which an employee can accept by beginning or continuing to work for employer | [
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of the lack of objection from Plaintiff, the Court recommends the award of costs for all the 1,181 copies sought. Defendant also requests that it be allowed to recover $.19 per page for all recoverable copies. [D.E. 44]. In making this request, Defendant relies on Pawnbrokers and Secondhand Dealers Ass’n v. City of Fort Lauderdale, 711 F.Supp. 1084, 1086 (S.D.Fla.1989), which held that $.25 per page was reasonable. Id. In view of the advances in technology, however, a review of more recent cases in the Eleventh Circuit indicate that a rate of $.10 to $.14 per copy is more reasonable. Ferguson v. Bombardier Serv. Corp., 2007 WL 601921, * 6 (M.D.Fla. Feb. 21.2007) (reasonable rate of ten to fifteen cents per page); James v. Wash Depot Holdings, Inc., 242 F.R.D. 645, 652 (S.D.Fla.2007) (<HOLDING>). Applying the higher rate of $0.14 per copy to Holdings: 0: holding that higher rate would not be awarded for supplemental fees because there was no showing that any special factor justifies an increased rate for litigating the attorney fees motion 1: holding reasonable rate of ten cents per page for copying in southern district nineteen to fifteen cents per page as unnecessarily high without factual support for increased rate for higher inhouse rate 2: holding that with respect to the eaja the local or national market rate for legal services cannot be a special factor used to increase the rate beyond the statutory rate 3: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 4: recognizing that 90 per hour is a reasonable rate for a paralegal | [
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.” United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.2004) (quoting United States v. Morris, 350 F.3d 32, 39 (2d Cir.2003)). Marzo contends that his trial counsel was ineffective in failing to realize, when advising him to admit to at least four instances of off-market trades, that Marzo could properly be found guilty on that conduct alone, without proof that he accepted cash kickbacks. We are not entirely convinced that Marzo’s counsel’s advice to admit to some off-market trades was unreasonable, rather than a reasonable strategic choice. See, e.g., Bell v. Miller, 500 F.3d 149, 156 (2d Cir.2007) (<HOLDING>) (quoting Strickland, 466 U.S. at 689, 104 Holdings: 0: holding that because there were several reasons why counsel might have made a particular deci sion petitioner had failed to overcome the presumption that under the circumstances the challenged action might be considered sound trial strategy 1: holding that counsels conduct is entitled to the strong presumption that it falls within the wide range of reasonable professional assistance and the petitioner must overcome the presumption that the conduct might be considered sound trial strategy quoting michel v louisiana 350 us 91 101 76 sct 158 100 led 83 1955 2: holding that the ambiguity in the testimony of the cited jurors who were challenged for cause was insufficient to overcome the presumption of correctness owed to the trial courts findings 3: recognizing presumption and finding that it was overcome 4: holding that a defendant claiming ineffective assistance must overcome the presumption that under the circumstances the challenged action might be considered sound trial strategy | [
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v. Indiana-Kentucky Synod Evangelical Lutheran Church in America, 860 F.Supp. 1194, 1199 (W.D.Ky.1994) ("The alleged defamatory statements were made in connection with the mediation process and strictly within the confines of the church. There can be no doubt that the matters in this case concerned the minister’s current and future employment relationship with the church. As such, th 'y, 738 A.2d 839, 848 (Me.1999) (stating in dicta that ‘[a]llowing a secular court or jury to determine whether a church and its clergy have sufficiently disciplined, sanctioned, or counseled a church member would insert the State into church matters in a fashion wholly forbidden by the Free Exercise Clause of the First Amendment’); Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 444 (Me.1997) (<HOLDING>); Michigan: Teadt v. Lutheran Church Missouri Holdings: 0: 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 1: holding that first amendment barred consideration of negligent supervision claim against diocese for sexual relationship between adult parishioner and priest while the priest was counseling the parishioner in his position as a hospital chaplain 2: holding that first amendment barred negligent supervision claim against a church regarding sexual relationship between adult parishioner and priest during the course of a marital counseling 3: holding that first amendment barred adult parishioner who engaged in sexual relationship with priest during the course of pastoral counseling from bringing intentional infliction of emotional distress negligence and breach of fiduciary duty claims 4: holding that first amendment barred parishioners negligent hiring and supervision and breach of fiduciary duty claims against pastor and church for sexual contact that occurred between pastor and parishioner during the course of a counseling relationship | [
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incident and the suspension, investigation, and warning that followed. Doc. 88 at 16 (citing Doc. 90-4). The evidence before this Court does not indicate or suggest that Moffitt “lay in wait” to avoid legal liability as to retaliation. Here, the temporal gap of almost one year is insufficient, alone, to create an inference of causation. And the-additional evidence that Stephen points to relates to actions and e-mails from December 2013, approximately ten months before Stephen’s discharge. Further, Stephen’s intervening act of unconsented touching and stating that he would “pop a cap” in another co-worker, thereby violating the zero tolerance policy against workplace violence is sufficient to break the causal chain. Henderson v. FedEx Express, 442 Fed.Appx. 502, 506 (11th Cir. 2011) (<HOLDING>). Stephen has not established a prima Holdings: 0: holding that intervening misconduct can sever the temporal proximity connection between the protected conduct and the adverse employment 1: holding that an intervening act of misconduct by the plaintiff can break the causal link between the protected conduct and the adverse employment action 2: holding causal link between alleged discriminatory remarks and adverse employment action insufficient 3: holding that a plaintiff can establish a causal link by showing that the employers decision was based in part on knowledge of the employees protected activity 4: holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action | [
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of the trial judge, and therefore not subject to change by an appellate court, decisions apparently based upon a mistake of law or fact are reviewable under 18 U.S.C. § 3742(a)(2) (1988).” United States v. Zine, 906 F.2d 776, 777 (D.C.Cir.1990) (per curiam). The majority decides that we cannot review Hazel’s challenge in this case because of the limitation in § 3742(a)(3). There is no doubt that, once a threshold decision to depart has been made, a defendant is only allowed to challenge the reasonableness of a sentence in cases of upward departures under § 3742(a)(3). See United States v. Wright, 895 F.2d 718, 721 (11th Cir.1990) (observing that to allow review of reasonableness under subsection (a)(2) would nullify (a)(3)); United States v. Franz, 886 F.2d 973, 978-79 (7th Cir.1989) (<HOLDING>). But this feared redundancy would only exist Holdings: 0: holding unconstitutional the mandatory application of the federal sentencing guidelines 1: holding that one could not automatically read every departurerelated decision as an incorrect application of the guidelines without rendering 3742a3 redundant 2: holding that the mandatory nature of the united states sentencing guidelines resulted in violations of the sixth amendment right to a jury trial and rendering the guidelines advisory 3: holding that the mere mandatory application of the guidelines the district courts belief that it was required to impose a guidelines sentence constitutes error 4: holding that even without booker constitutional error in the district courts application of the guidelines there could be nonconstitutional error where the court applied the guidelines in a mandatory fashion | [
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645 S.W.2d at 836. Because some could argue that evidence that makes the existence of a fact “highly probable” is not necessarily the same as evidence that produces a firm conviction in the existence of the fact, we reject the “highly probable” formulation. Cf In re L.R.M., 763 S.W.2d 64, 66 (Tex. App.-Fort Worth, 1989, no writ)(stating that “highly probable” inquiry needlessly complicates the standard of review). VII We emphasize that, as appellate courts apply the standard we announce today, they must maintain the respective constitutional roles of juries and appellate courts. An appellate court’s review must not be so rigorous that the only factfind-ings that could withstand review are those established beyond a reasonable doubt. See Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388 (<HOLDING>). While parental rights are of constitutional Holdings: 0: holding that beyond reasonable doubt standard not required in termination cases 1: holding that presumption of innocence and reasonable doubt standard are constitutionally required in criminal cases 2: holding that harmless beyond a reasonable doubt analysis not applicable in habeas cases 3: holding that failure of trial court to instruct jury that state must prove beyond reasonable doubt killing was not committed in heat of passion required reversal of murder conviction even though there was general charge that state was required to prove each element of offenses beyond reasonable doubt 4: holding that proof of a criminal charge beyond a reasonable doubt is required by the constitution | [
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111 L.Ed.2d 695 (1990) (allegations insufficient where plaintiffs alleged interests in "unspecified portions of an immense [two-million-acre] tract of territory”). 14 . The court will grant a motion for summary judgment under Rule 56(c) "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on a summary judgment motion, courts must view the evidence in the light most favorable to the nonmoving party- Bayer v. Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (<HOLDING>). “[T]he nonmov-ing party 'must do more than Holdings: 0: recognizing the courts obligation to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor 1: holding that courts must draw all justifiable inferences in the nonmoving partys favor and accept the nonmoving partys evidence as true 2: holding that courts are obligated to draw all reasonable inferences in plaintiffs favor 3: holding that courts must when reviewing motions for summary judgment evaluate disputed facts in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor 4: holding that an appellate court viewing the evidence and all inferences of fact in light most favorable to nonmoving party can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party | [
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Hart memorandum to Ross, which states that the RWQCB's John Lewis had discussed the lead detected in the soil with McLaren Hart, and directed that it submit a proposed course of action to Ross. (PL’s Carson Issues, ¶ 65; Casparian 3rd DecL, Ex. 14 (August 1994 Memo Proposing Remedial Action)). Defendants object that the document is not properly authenticated. For the reasons set forth in note 160, infra, defendants’ objection is sustained. 142 . Salisbury Depo. at 75:12-80:8, Ex. 232 (May 1, 1995 Memo). While Salisbury testified to out of court statements made by Ross, the Ninth Circuit held that the testimony fell "within the ‘basic rule of evidence ... that prior inconsistent statements may be used to impeach the credibility of a witness.’ ” Carson Harbor, supra, 270 F.3d at 873 (<HOLDING>). The Ninth Circuit also held that Dr. Amini's Holdings: 0: holding that a cigarette advertisement of tar content was deceptive despite a truthful fineprint explanation in corner of advertisement of how tar was measured 1: holding that salisburys memo could be used to impeach ross assertion that he did not require plaintiff to remove the tar and slag materials 2: holding that government could not impeach witness with prior statement because he refused to answer any questions and thus gave no testimony in court with which the prior statement could be judged to be inconsistent 3: holding that summary convictions of crimes involving dishonesty could be used to impeach the credibility of a witness 4: holding that a witnesss prior inconsistent statement to an officer could be used to impeach her | [
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authorized to assert the mandatory injunction against defendants as they, according to plaintiff’s complaint, were the persons authorized and responsible for the land-disturbing activity. Accordingly, under the statute, the relief plaintiff was seeking did not require the inclusion of any other party besides defendants. That, however, does not end our inquiry. “ ‘The term “necessary parties” embraces all persons who have or claim material interests in the subject matter of a controversy, which interests will be directly affected by an adjudication of the controversy.’ ” Wall v. Sneed, 13 N.C. App. 719, 724, 187 S.E.2d 454, 457 (1972) (emphasis added) (citation omitted in original). In the instant case, it is undisputed that the subject matter of the controv , 611 S.E.2d 463, 465 (2005) (<HOLDING>). We therefore conclude that, the current Holdings: 0: holding that the property owners testimony alone placed the value of the stolen property above the amount necessary to constitute grand larceny 1: holding that all property owners affected by a residential use permit are necessary parties 2: holding that speculation about occurrence of future event ordinarily does not render all parties potentially affected by that future event necessary or indispensable parties 3: holding that the amendment was a use regulation which was in effect a condition on the use of property in the affected zone 4: holding that the doctrine of strict liability applies where an owner of residential property brought a claim against the owners of a gasoline station immediately adjacent to a private residence after gasoline leaked into the property owners well | [
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shall be paid by the Commonwealth of Pennsylvania.... During the time salary for temporary incapacity shall be paid by the Commonwealth of Pennsylvania ... any workmen’s compensation received or collected by any such employee for such period shall be turned over to the Commonwealth of Pennsylvania ... and paid into the treasury thereof, and if such payment shall not be so made by the employee the amount so due the Commonwealth of Pennsylvania ... shall be deducted from any salary then or thereafter becoming due and owing.... 3 . Act of June 2, 1915, P.L. 736, as amended, 77 Pa. Stat. Ann. §§ 1-1031. 4 . 75 Pa. Cons.Stat Ann. §§ 1720, 1722. 5 . The District Court also cited City of Pittsburgh v. Workers' Compensation Appeal Board (Williams), 810 A.2d 760, 762 n. 5 (Pa. Commw.Ct.2002) (<HOLDING>), to support its reasoning. But City of Holdings: 0: holding that even if the plaintiff had asserted a cause of action under the virginia wrongful death act against the city police officers the police officers would be entitled to sovereign immunity 1: holding that the pittsburgh police department did not illegally terminate an officers hla benefits and that the police department was entitled to a subrogation interest against the officers thirdparty settlement 2: holding that an employee suspended because of the employees participation in an interview concerning her employment problems with a state police department did not impermissibly affect the states interest in the efficiency and performance of the police department and that the employee therefore was entitled to damages arising from the suspension 3: holding police department employees opposition to discrimination by police officers against black citizens did not constitute protected activity under title vii 4: holding that police officers sued in their official capacity are not liable for a violation of a privacy interest where the police department did not have a policy of deliberately failing to train its officers with respect to the confidentiality of records | [
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and team meetings. Our Lady of All Souls used the property at Block 151, Lots 1.01, 3, and 49 on the tax map of the City of East Orange. As of the October 1,1993 assessment date, the parish property was used by both the Archdiocese and the East Orange Board of Education. The Archdiocese offered weekly Mass, and held deanery meetings in the church rectory. Additionally, religious artifacts and furnishings were stored for safekeeping. The East Orange Board of Education rented space for classes on what is now Lot 2, and eventually acquired the lot following a subdivision in December 1994. The Archdiocese maintained the same activities at the parish property on the October 1, 1994 and October 1, 1995 assessment dates. The we atter Day Saints v. Morris Tp., 3 N.J. Tax 572 (Tax 1981) (<HOLDING>). New Jersey courts have never addressed the Holdings: 0: holding that denial of tax exemption for part of church property that was not necessary for occupancy and enjoyment of church did not violate first amendment 1: holding that tax exemption for church property does not violate establishment clause 2: holding that the fiveacre limitation on exemption for church property did not violate churchs constitutional protections of religious freedom where zoning ordinance required lot size in excess of five acres which resulted in partial taxation of church property 3: holding that requiring church to make contributions to workers compensation fund opposed by such church did not violate first amendment 4: holding that irs examination of corporate minute books of a church to determine whether it qualified for tax exemption was not unconstitutional interference with religious affairs of the church under the first amendment | [
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but rather, it is a case about design of a factory to which we apply principles of ordinary negligence.”). We note that the legislature has enacted separate statutes of repose for strict liabil ity claims against sellers and manufacturers and claims against design professionals who design improvements to real property. Compare Tex. Civ. Prac. & Rem.Code Ann. § 16.008(a) (ten-year statute of repose for design professionals), with id. § 16.012(b) (West 2002) (fifteen-year period of repose for manufacturers and sellers). Additionally, chapter 150 of the Civil Pra vices, L.P. v. Gomez De Hernandez, for the proposition that Jenkins was required to prove that the acid addition system was a product and that Occidental placed it in the stream of commerce. See 249 S.W.3d 400, 402 (Tex.2008) (<HOLDING>). But New Texas Auto Auction did not involve a Holdings: 0: holding that a purchaser of assets may be liable for a sellers delinquent erisa fund contributions to vindicate important federal statutory policy where the buyer had notice of the liability prior to the sale and there exists sufficient evidence of continuity of operations between the buyer and seller emphasis added 1: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession 2: holding that the driver of a car who had permission to use the car had standing to challenge its search 3: holding that plaintiffs who were in the car during car accident could recover for emotional damages because they were within zone of danger 4: holding that auctioneer who handled sale of car between seller and buyer could not be held liable for allegedly defective condition of car | [
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entry or eviction.’” Martin, 699 F.Supp. at 170 (applying Illinois law). Actions for “wrongful entry or eviction” deal with violations of one’s real property rights. See Okla.Stat. tit. 41, § 123 (providing a tenant with an action for wro asion of the right of private occupancy” is included in insurance policies simply to provide a “catch-all” category of offenses of the same general type as “wrongful entry or eviction.” As explained by the court in Martin, Absent a catch-all phrase such as “or other invasion of the right of private occupancy,” an insurer could resist cover in doing this, we must look to the facts alleged in East Central’s answer to Liberty’s complaint, irrespective of how East Central legally characterizes those facts. See Pearson Servs., Inc., 937 F.2d at 403 (<HOLDING>); County of Columbia, 595 N.Y.S.2d at 990 Holdings: 0: holding that a legal malpractice insurance policy that limited coverage to suits seeking damages and defined damages as excluding sanctions did not provide coverage for a sanctions motion against the insured 1: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 2: holding that if an insurer denies coverage based on an assertion that the underlying claim is excluded from coverage there is a presumption that the insurer did not suffer prejudice because prompt notice would have merely resulted in an earlier denial of coverage 3: holding that policy limits are not a defense to coverage and that policy limits define the amount of coverage 4: holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed | [
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This statement was not sufficiently separate from the original stream of profanity to merit a second contempt charge. See Lundy v. State, 596 So.2d 1167, 1168 (Fla. 4th DCA 1992) (describing how multiple instances of contempt can be “continuous” and therefore subject to only one sanction), receded from on other grounds in Gibbs v. State, 676 So.2d 1001 (Fla. 4th DCA 1996). We find the interaction between Appellant and the trial court in this instance to be materially indistinguishable from that described in B.M. v. State, 523 So.2d 1185 (Fla. 2d DCA 198 red by not providing a recital of the facts supporting the adjudication of guilt. See id. (references to “his statements,-demeanor, and behavior”’' are insufficient); see also Johnson v. State, 584 So.2d 95, 96 (Fla. 1st DCA 1991) (<HOLDING>). Appellant argues that this error should Holdings: 0: holding that the attachment of a transcript which the court apparently tried but failed to do here is insufficient 1: holding that the trial court failed to exercise its discretion in merely stating that the request could not be granted because there was no transcript at this point 2: holding that the lack of evidence that the magistrate judge examined the trial transcript in its sufficiencyoftheevidence analysis left the court no alternative but to reverse the denial of habeas relief and remand for review of the transcript 3: holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury 4: holding that suppression is not necessary when the magistrate failed to certify the accuracy of the recorded transcript | [
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in ERISA’s scope. In light of these facts, we hold that ANSI’s severance plan is an ERISA plan, and that the district court did not err in applying federal common law precedents to interpret the contractual language. II. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The question of whether this ERISA-gov-erned severance benefit plan’s contractual language is ambiguous is a question of law requiring de novo review. Wulf v. Quantum r.1992) (same); Lakey v. Remington Arms Co., 874 F.2d 541, 545 (8th Cir.1989) (<HOLDING>). Plaintiffs point out that according to the Holdings: 0: holding that employer is not vicariously hable for employees negligence while driving to work where such driving conferred no special benefit upon employer other than to make employees services available 1: holding that duty to ensure that independent contractor performs its work in safe manner arises if the general contractor retains some control over the manner in which the independent contractor performs its work 2: holding that a change in employer from one federal contractor to another caused employees no lack of work 3: holding that the government could not charge contractor excess cost of relet contract where government caused a delay in contract performance in which contractor was to use his own equipment original contractors costs increased and government refused to allow original contractor to perform at cost but allowed new contractor to use government equipment and paid new contractor a different rate 4: holding in an employees action to recover for injury sustained during work against the employer and other defendants did not state an intentional tort claim against contractor | [
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in Illinois, through its agents in the State, was occasional in the temporal sense. Compare Dal Ponte v. Northern Manitoba Native Lodges, Inc. (1991), 220 Ill. App. 3d 878, 884, 581 N.E.2d 329, 333 (declining to find personal jurisdiction over a Canadian corporation which solicited customers at Illinois fishing shows and accepted reservations because its relationship with the State was "more akin to occasional or casual activity”); Baldknobbers, Inc., 107 Ill. App. 3d at 238, 437 N.E.2d at 721 (finding that a country music promoter was not subject to court’s jurisdiction because its two to five annual solicitation visits to the State constituted at best only a sporadic or occasional presence here), with Huffman v. Inland Oil & Transport Co. (1981), 98 Ill. App. 3d 1010, 424 N.E.2d 1209 (<HOLDING>). Here, although Appleton does not earn a great Holdings: 0: holding that a foreign corporation was amenable to process since the record disclosed a regular pattern of its plying the waterways of the state 1: holding that resident shareholder of s corporation is eligible for tax credit for taxes paid by corporation in another state and noting that this conclusion is consistent with the internal revenue code which provides that shareholders of an s corporation are entitled to a foreign tax credit for their share of foreign income tax paid by an s corporation 2: holding that the hague convention applied because while minnesota law permitted a foreign corporation to be served with process through the secretary of states office the applicable statute also required the secretary of state to mail a copy of the summons to the foreign corporation before service was effectuated 3: holding that a corporation is fairly regarded at home and so amenable to personal jurisdiction for suits relating to all of its activities including those outside the forum in its principal place of business and place of incorporation 4: 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 | [
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against foreign nations formerly, but not currently, designated as state sponsors of terrorism, the fact that North Korea no longer has that designation does not bar attachment of North Korea’s property, or that of its agents and instrumentalities, under § 1610(g). Whether attachment of the EFTs under § 1610(g) is possible turns, instead, on whether the blocked EFTs at issue are “property of’ North Korea or “the property of an agency or instrumentality of’ North Korea. We review these legal questions de novo. Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 66-67 (2d Cir.2009) (reviewing de novo the “threshold issue of whether EFTs are indeed ‘defendant’s’ property”); see also Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (<HOLDING>). “[W]hether or not midstream EFTs may be Holdings: 0: holding that courts of appeals must review the statelaw determinations of district courts de novo 1: holding that we review a district courts interpretation of a statute de novo 2: holding that the proper review for the trial courts application of the law is de novo 3: recognizing de novo standard of review 4: holding that a court of appeals should review de novo a district courts determination of state law | [
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could be controlled by the government or vetoed without good reason. Consistent with this principle of non-interference, courts have identified violations of the Sixth Amendment right to counsel where the government obtains incriminating statements from a defendant outside the presence of counsel and then introduces those statements at trial. See, e.g., id. at 176, 106 S.Ct. 477; Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Likewise, the government violates the Sixth Amendment when it intrudes on the attorney-client relationship, preventing defense counsel from “participat[ing] fully and fairly in the adversary factfinding process.” Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); see, e.g., id. at 858-59, 95 S.Ct. 2550 (<HOLDING>); Geders v. United States, 425 U.S. 80, 91, 96 Holdings: 0: holding that statute which permitted judge to deny defense closing in bench trial violated right to counsel and emphasizing the importance of argument by counsel in the factfinding process 1: holding statute permitting judge to deny counsel opportunity for closing argument violated criminal defendants constitutional rightto counsel 2: holding that the sixth amendment right to counsel embodies the right to effective assistance of counsel 3: holding that a new york statute allowing judges in a criminal bench trial to deny counsel the opportunity to make a closing argument deprived defendant of his sixth amendment right to the assistance of counsel 4: holding that a criminal defendant has a sixth amendment right to counsel at trial | [
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regarding the question presented here: whether a state actor's contract to convey properly if successfully acquired through eminent domain is subject to U.S. Trust's heightened scrutiny analysis or is void on its face. 5 . Indeed, there is no provision in the contracts that purports to prevent the City from conveying the property to the Lessees and later taking the property for public use. Thus, these contracts contain none of the same elements the Court found unenforceable in West River Bridge and Contributors to Pennsylvania Hospital. 6 . Indeed, as a survey of our Contracts Clause jurisprudence indicates, Ordinance 05-001 is quite analogous to the state actions this court and the Supreme Court have assessed under U.S. Trust. See U.S. Trust, 431 U.S. at 22-23, 97 S.Ct. at 1518 (<HOLDING>); Winstar, 518 U.S. at 888-89, 116 S.Ct. 2432 Holdings: 0: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 1: holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership 2: holding that concurrent and parallel new york and new jersey statutes that retroactively repealed a covenant between the states and bondholders in the stateowned port authority was subject to contracts clause analysis 3: holding that neither the new york location of the terrorist attack giving rise to the policyholders claim nor the new yorkbased claims adjustor rendered new york the locus of operative facts because new york was not the site of the contracts execution 4: holding purposeful and deliberate omission on enactment of new jersey sales and use tax of exemption found in new york counterpart act which served as the model for new jersey act | [
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U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (listing required processes). See R. at 1052. But he changes course in his opening appeal brief, asserting instead that the processes applied in civil-commitment proceedings are required before defendants can terminate him from the SOTMP. He did not make that argument in the district court and consequently the district court did not address it. Therefore, he has failed to preserve this argument for consideration on appeal. See Simmat v. U.S. Bur. of Prisons, 413 F.3d 1225, 1240 (10th Cir.2005) (declining to consider pro se argument raised for the first time on appeal). Nor will we address the argument that Mr. Firth made in the district court, but fails to renew on appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (<HOLDING>). We proceed, then, to Mr. Firth’s contentions Holdings: 0: holding that a partys failure to raise an issue in the opening brief waived the issue even though the party raised the issue in his reply brief 1: holding that failure to raise an issue in an opening brief waives that issue 2: holding that the failure to raise an issue in the opening brief waives the issue 3: holding omission of issue in opening brief generally forfeits appellate consideration 4: holding that appellant waived issue by failing to raise it in opening brief | [
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Code under Title 11, unless otherwise specified. 3 . Extended to bankruptcy proceedings by Bankr.R. 7012(b)(2005). 4 . Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). 5 . Begier v. IRS, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). 6 . Id. at 58, 110 S.Ct. 2258 (stating that "'property of the debtor'...is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings”). 7 . Id. at 58, 110 S.Ct. 2258; Manchester v. First Bank & Trust Co. (In re Moses), 256 B.R. 641 (10th Cir. BAP 2000)(stating that § 547(b) looks only to transfers of property which "diminished or depleted the Debtor's estate”). 8 . See e.g. Yoppolo v. Greenwood Trust Co. (In re Spitler), 213 B.R. 995 (1997)(<HOLDING>). 9 . The Court is aware that this rule of law Holdings: 0: holding that an order to disgorge funds was final even though the order did not distribute the funds 1: holding that defendant violated section 4b when she misappropriated pool participant funds by soliciting funds for trading and then trading only a small percentage of those funds while disbursing the rest of the funds to investors herself and her family 2: holding that use of borrowed funds constituted a preference because the funds constituted hard cash available for distribution to creditors 3: holding that the creditors right to equitable relief constituted a dischargeable claim 4: holding that companys president was trustee of trust funds because he had control and direction over the funds | [
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whether a suspect would submit to a blood-alcohol test was not interrogation within the meaning of Miranda. Thus, a refusal to submit to such tests enjoyed "no prophylactic Miranda protection outside the basic Fifth Amendment protection.” South Dakota v. Neville (1983), 459 U.S. 553, 564 n.15, 74 L. Ed. 2d 748, 759 n.15, 103 S. Ct. 916, 923 n.15. Subsequently, this reasoning was adopted in Illinois cases which held that a defendant’s refusal to submit to a blood-alcohol test is admissible even in the absence of Miranda warnings. (People v. Thomas (1990), 199 Ill. App. 3d 79, 556 N.E.2d 1245; People v. Bugbee (1990), 201 Ill. App. 3d 952, 559 N.E.2d 554; People v. Thomas (1990), 200 Ill. App. 3d 268, 558 N.E.2d 656; see also People v. Roberts (1983), 115 Ill. App. 3d 384, 450 N.E.2d 451 (<HOLDING>).) Based on these cases, we find that the trial Holdings: 0: holding that the drug tax violated the privilege against selfincrimination 1: holding that the use of a defendants refusal to submit to a bloodalcohol test after miranda warnings were issued did not violate a defendants privilege against selfincrimination under doyle v ohio 1976 426 us 610 49 l ed 2d 91 96 s ct 2240 2: recognizing commonlaw privilege against selfincrimination 3: holding that miranda warnings were not required for suspect testifying at inquest when suspects lawyer had previously advised him of his privilege against selfincrimination 4: holding that the defendants due process rights were violated by refusal to allow him to contact counsel after he was given misleading information on consequences of refusal to take bloodalcohol test | [
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following assessment: As a practical matter of business, any time a shipper moves products to a terminal his ultimate intent is that they be distributed among various consumers at various consuming points. If this is the only intention, the interstate journey ordinarily ends at the terminal. However, if, at the time he moves products to a terminal his present intention is that they merely be put through the terminal on their way to specific consumers at specific consuming points the interstate journey does not end until the products reach those consumers at those points. Majure, 162 F.Supp. at 601 (finding unitary interstate transportation in a single-shipper, back-end paradigm involving through movement to specific consuming points to be interstate); see also Beggs, 167 F.2d at 704 (<HOLDING>); Shew, 370 F.2d at 380-81 (finding interstate Holdings: 0: holding that interstate shipments to a warehousedistribution point through to samestate retail outlets retained their interstate character where the warehouse was merely a convenient instrumentality for the division of the shipments coming to it and the continuation of the movement of each part to the retail stores 1: holding that warehouse distributions to companyowned stores constituted interstate commerce since inter alia the company knew at the time oufiofstate shipments to the warehouse commenced that the shipments were bound for its retail stores 2: holding inter alia that common law claims were preempted 3: holding shipments from a distribution point supplied by outofstate shipments made pursuant to preexisting orders were interstate in character 4: holding that the halt of shipments of unprocessed milk without processing or commingling did not remove the interstate character of the shipments | [
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be both efficient and attainable, especially if it left more money for actual education. 49 . See Texas Ass’n of Bus., 852 S.W.2d at 447-48. 50 . Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 344, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). 51 . Texas Ass’n of Bus., 852 S.W.2d at 447 (noting that one requirement for associational standing is that neither claim asserted nor relief requested requires participation of individual members in the lawsuit); cf. Hunt, 432 U.S. at 345, 97 S.Ct. 2434 (approving associa . Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001); Texas Dep’t of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 862 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 558 (Tex.2000); see also Raines, 521 U.S. at 820, 117 S.Ct. 2312 (<HOLDING>). 55 . Texas Ass’n of Bus., 852 S.W.2d at 443. Holdings: 0: 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 1: holding judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided when the judgment is arguably incorrect a reversal will terminate the litigation and there is no factual dispute to be resolved 2: recognizing that in those cases where the jurisdictional facts are intertwined with the facts central to the merits of the dispute it is the better view that the entire factual dispute is appropriately resolved only by a proceeding on the merits citations omitted 3: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit and the district court has considerable authority whether or not to exercise this power in light of such considerations as judicial economy convenience fairness to litigants and eomity 4: holding that standing is an overriding and timehonored concern about keeping the judiciarys power within its proper constitutional sphere that required the court to put aside the natural urge to proceed directly to the merits of this important dispute and to settle it for the sake of convenience and efficiency | [
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it provides that agreements executed thereunder are “subject to any constitutional or legislative restriction imposed upon any of the contracting public agencies.” Id. § 11-1-2(B). We conclude that the Joint Powers Agreement Act does not provide authority for the compacts and revenue-sharing agreements at issue. Likewise, the Mutual Aid Act, NMSA 1978, §§ 29-8-1 to -3 (Repl. Pamp.1994), does not provide authority for the compacts and revenue-sharing agreements. to gaming compacts an IGRA, sought to invest state governors with powers in excess of those that the governors, possess under state law. Moreover, we are confident that the United States Supreme Court would reject any such attempt by Congress to enlarge state gubernatorial power. Cf. Gregory, 501 U.S. at 460, 111 S.Ct. at 2400 (<HOLDING>); New York v. United States, 505 U.S. 144, 176, Holdings: 0: recognizing that through the structure of its government a state defines itself as a sovereign 1: holding that a state may waive its sovereign immunity 2: holding agencies of state government are part of the state for purposes of sovereign immunity 3: recognizing the structure of our nation as a union of states each possessing equal sovereign powers 4: holding that the alien tort statute itself is not a waiver of sovereign immunity | [
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the debtors’ consent to file this action. The leading case on such consent-based derivative suits, cited approvingly by both parties and the district court, specifies that they are permissible only as follows: A creditors’ committee [or secured creditor] may acquire standing to pursue the debtor’s claims if (1) the committee [or creditor] has the consent of the debtor in possession or trustee, and (2) the court finds that suit by the committee [or creditor] is (a) in the best interest of the bankruptcy estate, and (b) is necessary and beneficial to the fair and efficient resolution of the bankruptcy proceedings. In re Commodore Int’l, Ltd., 262 F.3d 96, 100 (2d Cir.2001) (intern standing by “obtaining] the permission of the bankruptcy court”); In re Gibson G'roup, 66 F.3d at 1442 (<HOLDING>). Even if permitted under the Bankruptcy Code, Holdings: 0: recognizing derivative standing if the bankruptcy court determines that certain conditions exist and certain prerequisites are met 1: recognizing derivative standing that bankruptcy courts can authorize 2: recognizing that certain conditions including rule amendments must be met before goal of providing the public electronic access to court records can be achieved 3: recognizing that the court has the power to grant leave upon certain conditions 4: recognizing conditions of release may curtail certain fundamental rights | [
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form but it moved to a different section number. Tex Loc. Gov’t Code Ann. § 43.0561 (Vernon Supp.2001) (former § 43.052 (Vernon 1997)). 6 . In the alternative, if appellees’ complaint is that the ordinances were untimely or are ineffective because the City did not adopt an annexation plan, those deficiencies are procedural defects under the Local Government Code as previously discussed. 7 .There is no assertion that Farmco Trust and Morton do not qualify as "interested persons.” 8 . We have not found nor have the parties cited any cases interpreting the standing provision of the Open Meetings Act in the context of an annexation challenge. See, e.g., Laidlaw Waste Sys., 904 S.W.2d at 660 (assuming without deciding challenging party had standing); Alexander Oil, 825 S.W.2d at 437 n. 2 (<HOLDING>). 9 . The standing provision was adopted along Holdings: 0: holding that an issue not raised on appeal is waived 1: holding prosecutors withdrawal of standing objection at suppression hearing waived issue on appeal 2: holding individual standing issue waived 3: holding the issue of standing is waived if not asserted at the district court level 4: holding issue not raised in the bankruptcy court was waived on appeal | [
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charge. Appellants objected to the submission of special issues on the use of a deadly weapon at any stage of the trial, but they particularly argued that if such special issues were to be submitted they should be submitted during the punishment stage of trial. Appellants argued at trial, as they do on appeal, that the deadly weapon issue is clearly an issue to be decided during punishment and that it would be inappropriate to submit such an issue during the guilt-innocence stage of trial. However, this argument is inaccurate. See Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App.1989) (acknowledging that Court of Criminal Appeals has never said deadly weapon issue must be resolved at punishment stage of trial); McIntosh v. State, 865 S.W.2d 753, 771 (Tex. App.—Dallas 1993, pet. refd) (<HOLDING>). In fact, the clear wording of sections 4(a) Holdings: 0: holding party may raise jurisdictional issue at any stage of proceedings 1: holding that trial court is not prohibited from submitting special issue on use of a deadly weapon at the guiltinnocence stage of trial 2: holding that the application of the fair use doctrine at the pleading stage is appropriate 3: holding that the filing of a motion for a new trial is a critical stage of the prosecution and that an indigent defendant is constitutionally entitled to the assistance of counsel at that stage 4: holding if a deposition is taken for discovery only not for use at trial the deposition is not a stage of trial for which the defendant must be present | [
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we hesitate to affirm the adverse credibility finding solely on the basis of these differences in the affidavits. Finally, the BIA and IJ erred by relying on Kumar’s failure to present evidence to corroborate his attendance at Sikh religious facilities. The IJ did not give Ku-mar a reasonable opportunity to explain the absence of corroborating evidence. For example, when the IJ asked Kumar why he had not produced a witness to confirm that he attended Sikh facilities in San Jose and Fremont, Kumar responded “I haven’t brought it, but I can bring it.” Thereafter, the IJ never asked Kumar to make good on that offer yet then relied on the absence of any such witness to find that Kumar lacked credibility. That was unfair. See Joseph v. Holder, 600 F.3d 1235, 1246 n. 9 (9th Cir.2010) (<HOLDING>). Because “each of the [BIA]’s ... proffered Holdings: 0: holding in a prereal id act case that the ij erred by not giving petitioner an opportunity to explain his failure to provide additional corroborating evidence 1: holding that where the ij finds the petitioner to be credible his testimony must be accepted 2: holding that the trial court erred by giving a misleading instruction 3: holding that after the real id act the ij must still provide specific examples of a petitioners demean or that would support this basis for an adverse credibility determination 4: holding that ij failed to make explicit credibility finding when he described applicants testimony as general and meager making his demand for corroborating evidence improper | [
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and cash advances he made, plus interest. See Dulong, 261 S.W.3d at 894; see also Butler, 2009 WL 402329, at *3. Thus, the evidence presented by Citibank establishes its right to summary judgment as a matter of law. McFarland raises no fact issues that would preclude summary judgment. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 733 (Tex.App.-San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)). McFarland has not presented any evidence suggesting a different amount is owed. Based on the series of transactions reflected on the account statements, we conclude Citibank established that McFarland agreed to the full amount shown on the statements and impliedly promised to pay the indebtedness. See Dulong, 261 S.W.3d at 894 (<HOLDING>). Application of Account Stated Cause of Action Holdings: 0: holding promise to indemnify for credit card debts to be nondischargeable support obligation in part because if the spouse were to pay the credit card and attorneys fee debts from this monthly income her ability to meet the regular monthly family expenses would be severely impaired 1: holding that court of appeals erred by rendering judgment for full amount of attorneys fees sought after reversing 0 fee award because jury awarded less in damages than amount sought and therefore uncontroverted attorney testimony on amount of attorneys fees did not establish amount of reasonable and necessary fees as a matter of law 2: holding under almost identical facts that it was reasonable to infer that eredit card holder agreed to full amount shown on statements and impliedly promised to pay indebtedness 3: holding to the effect that section 24 fifth has been impliedly amended by title vii 4: holding that the use of convenience checks drawn on a credit card account to pay a debt owed on another credit card was a preferential transfer subject to avoidance because the new lender did not direct or require the loaned funds to be paid to mbna and the debtor could have used the borrowed funds to purchase assets instead of paying the mbna debt | [
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on the leg are enough to demonstrate the imposition and fraud practiced upon this mentally weak and helpless individual. In addition, the claim agent had Ault to write in this release, 'I understand this release.' This brings forcibly to mind the act of the thief, who, in order to throw off suspicion, hurried down the street, exclaiming ‘Stop, thief!' ”). 7 . 481 So.2d 846, 848 (Miss.1985). 8 . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). 9 . Compare Matsuura v. Alston & Bird, 166 F.3d 1006, 1008 (9th Cir.1999) (applying Delaware law and concluding that "plaintiffs who have been fraudulently induced to settle tort claims” “may rescind the contract or they may affirm the contract and sue for fraud”), Turkish v. Kasenetz, 27 F.3d 23, 28 (2d Cir.1994) (<HOLDING>), Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Holdings: 0: holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt 1: holding that under the pre1986 jurisdictional limitation a claim by the state which discovered the fraud investigated the fraud disclosed the fraud to the federal government and which was the original source of the information was jurisdictionally barred 2: holding that in the context of a settlement contract the defrauded party may either 1 rescind the settlement or 2 ratify the settlement retain the proceeds and institute an action to recover fraud damages 3: holding that a plaintiff cannot avoid the securities fraud exception by pleading mail fraud or wire fraud if the conduct giving rise to those offenses also amounts to securities fraud 4: holding that a party may ratify a settlement agreement induced by fraud retain the proceeds and sue to recover fraud damages | [
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Federal courts are presumed to lack jurisdiction unless the record affirmatively indicates the opposite. Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). Plaintiff seeks monetary damages for unjust conviction and wrongful imprisonment. “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.” 28 U.S.C. § 1495 (2006). However, 28 U.S.C. § 2513(a) (2006), sets forth the requirements for bringing the claim recognized in § 1495: Any person suing under section 1495 of this title must allege and prove that: (1) His conviction has been reversed or set aside on the ground that he is not guilty of the offe 81 WL 21510 (1981) (<HOLDING>). Plaintiff contends that the Court of Federal Holdings: 0: holding that 1495 failed to provide court of federal claims with jurisdiction to hear claim for unjust conviction where requirements of 2513 have not been met 1: holding that this court lacked jurisdiction under 46110 for lack of finality and that the district court also lacked jurisdiction because the orders were not final and thus not ripe for review 2: holding that the district court lacked jurisdiction to review state disciplinary proceedings against attorney 3: holding the court lacked jurisdiction under 1495 and 2513 without a certificate of innocence from the district court 4: holding that court of federal claims lacked jurisdiction under 2513 when trial courts order dismissing plaintiffs indictment and vacating his sentence failed to satisfy the jurisdictional requirements of 2513 | [
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105, 312 A.2d 857 (1973) and City of Passaic v. Consolidated Police & Firemen’s Pension Fund Commission, 18 N.J. 137, 113 A.2d 22 (1955). In Bulman, supra, the Court held that a twenty-five year lease arrangement under which the State would assume ownership of a building at the end of the lease did not create a present debt subject to the Debt Limitation Clause even though future rent installments would be paid out of current revenues annually appropriated. 64 N.J. at 117-18, 312 A.2d 857. Similarly, in City of Passaic, supra, a statute requiring the State to contribute annually to the Police and Firemen’s Pension Fund was held not violative of the Clause because no present debt was created. 18 N.J. at 147, 113 A.2d 22; see also State v. Lanza, 27 N.J. 516, 525, 143 A.2d 571 (1958) (<HOLDING>), appeal dismissed, 358 U.S. 333, 79 S.Ct. 351, Holdings: 0: holding that the university was not a political subdivision of the state because it had no power to tax or cause taxes to be levied 1: holding that tax exemption for church property does not violate establishment clause 2: holding statute requiring state to pay certain municipalities amounts equal to property taxes lost after condemnation for reservoir did not violate clause because tjhere is no bargain or professed contractual conventional or legal undertaking to recom pense the given loss of tax revenue but rather a truly voluntary appropriation for a lawful object 3: holding that taxes were a claim against the estate that had to be filed in probate court thus reversing an order requiring heirs to pay taxes on estate property because the district court did not have jurisdiction 4: holding that the essential purpose of use tax is the recoupment of lost sales tax revenue | [
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that right." Id. at 447. Dr. Richards and the Fund do not dispute that the Martins have a vested property right in their cause of action. However, they contend that the Martins have never had a vested right to a particular measure of damages, citing Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 88 n.32 (1978) (" 'A person has no property, no vested interest, in any rule of the common law'"); Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 88-92, ng that in a wrongful death action, the date of injury determines the tortfeasor's liability." '[R]ights growing out of a wrong must relate to the happening of the wrong itself.' ") (citation omitted), and may not be amended unless necessary for an important public purpose. See State ex rel. Briggs & Stratton, 100 Wis. 2d at 658 (<HOLDING>). The right to unlimited damages was implicit Holdings: 0: holding that the right to recover a particular measure of damages in a workers compensation case is fixed as of the date of injury 1: holding failure to raise issue of improper measure of damages in trial court waived review of complaints that proper measure of damages was not submitted to jury and that plaintiff failed to present evidence on the proper measure 2: holding that where the customary measure of damages for a vendors failure or refusal to convey land was inapplicable the measure of damages must be flexible enough to vary with the necessities of the situation 3: holding that the proper measure of damages to repair defects for a building contract that has not been substantially performed is the contractually agreed upon measure of damages 4: holding that the fixed measure of damages may not be retroactively amended simply for the purpose of offsetting the late adoption of a law | [
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F.2d 1305, 1312-12 (2d Cir.1993) (“The present violation requirement of the Act would be completely undermined if a violation included the mere decomposition of pollutants.”); Brewer v. Ravan, 680 F.Supp. 1176, 1183 (M.D.Tenn.1988) (dismissing citizen suit based on allegations made against a permanently closed manufacturing plant); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1354 (D.N.M.1995) (finding no ongoing discharge from pile of waste rock on surface); Wilson v. Amoco Corp., 33 F.Supp.2d 969, 975-76 (D.Wyo.1998) (concluding “that migration of residual contamination from previous releases does not constitute an ongoing discharge”), factual background stated in 989 F.Supp. 1159 (D.Wyo.1998); Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 120 (E.D.N.Y.2001) (<HOLDING>). This court is not so easily persuaded, Holdings: 0: holding that the court had jurisdiction to hear the suit under the citizen suit provision of the caa 1: holding that statute authorizing citizen suits against those alleged to be in violation of the clean water act cwa conferred no jurisdiction over cases based on wholly past violations 2: holding that the cwa authorizes citizen suits for the enforcement of all conditions of npdes permits including those imposed by georgia law 3: holding a suit against an agency of the state is a suit against the state 4: holding cwa does not allow citizen suit against a past polluter for the ongoing migrating leachate plume | [
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to act on the principal’s behalf.” (emphasis in original)). Finally, In-tamex and Amaleo observe that the evidence indicated that Hawkspere paid ICTS no commission on the freight that ICTS collected for Hawkspere. Appellants’ Br. at 20. This fact, though, cuts directly against agency, since it indicates that Hawkspere and ICTS lacked any formal relationship at all. On this record, the court was correct to conclude that there was no triable issue of fact as to whether ICTS acted as an actual or apparent agent for Hawkspere when it accepted payment from Intamex and Amaleo. VI. Given that ICTS was not Hawkspere’s agent, it remains only to be determined whether there exists any other basis on which the Shippers might be excused from their liability ., 693 F.Supp. 80, 84 (S.D.N.Y.1988) (<HOLDING>). Thus, under the approach taken by the Sixth Holdings: 0: holding that carrier may be estopped from collecting freight charges from shipper who paid freight to consolidator in reliance on carriers representation that such payment would discharge shippers bill of lading obligation 1: holding that bill of lading not charterparty governed contract dispute between carrier and shipper 2: holding that carrier is estopped from collecting freight charges from shipper when shipper had paid consolidator in reliance on carriers misrepresentation that it had already received its payment from consolidator and shipper would thus otherwise be unjustifiably liable for double payment 3: holding doctrine of equitable estoppel barred carriers claim against shipper for payment of freight bills after carriers documents and dilatory conduct led shipper to believe that carrier was receiving freight payments from cargo consolidator 4: holding that shipper negligence does not absolve a carrier of liability if damage would not have occurred but for the concurrent fault of the carrier | [
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as an alternative to the federal exemptions set forth in the Bankruptcy Code? It is not unreasonable to expect that the state’s policy judgment will be set forth with sufficient clarity to permit the bankruptcy court administering the estate to identify the state exemptions with reasonable certainty. While state courts frequently refer to statutes which prohibit only certain forms of judicial process as “exemption” statutes, the term “exemption” “conventionally connotes protection against all forms of pro-cess_” William T. Vukowich, Debtors’ Exemption Rights, 62 Geo.L.J. 779, 816 (1974). Therefore, it is appropriate, in our view, to give the word its common meaning in the absence of any legislative indication to the contrary. See, e.g., Scarlett v. Barnes, 121 B.R. 578 (W.D.Mo.1990) (<HOLDING>). This approach not only provides us with the Holdings: 0: holding in the absence of definitive state authority under missouri law a cause of action is not exempt unless immune from all types of judicial process 1: recognizing the cause of action 2: holding state immune from suit brought in state court 3: holding that if an individual is possessed of state authority and purports to act under that authority his action is state action 4: holding that proceeds of a personal injury settlement are not exempt under missouri law | [
"4",
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"2",
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] | [
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not determine whether counsel’s investigation into mitigating evidence in Lee’s case constituted deficient performance under the first prong of Strickland, because, even assuming the habeas court correctly concluded that counsel’s failure to investigate and present the habeas testimony of Lee’s childhood history of abuse and neglect constituted deficient performance, we conclude as a matter of law that Lee has not shown prejudice sufficient to warrant success of his overall ineffective assistance of counsel claim. See Strickland v. Washington, supra, 466 U. S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”). See also Schofield v. Holsey, 281 Ga. 809 (II), n. 1 (642 SE2d 56) (2007) (<HOLDING>). 4. Actual prejudice. To determine prejudice Holdings: 0: holding that the combined effect of trial counsels deficiencies should be considered in weighing prejudice 1: holding that the cumulative impact of multiple deficiencies in defense counsels performance prejudiced the defendant in a capital trial 2: holding that maryland law prohibits use of combined reporting 3: holding that the combined effect of trial counsels various professional deficiencies should be considered 4: holding that the combined effect of trial counsels errors should be considered | [
"1",
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] | [
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] |
perjury and corroborates Maxwell’s argument that Storeh had a signature modus operandi that he employed as a witness for the prosecution at Maxwell’s trial. The preliminary inquiry, then, remains whether it was objectively unreasonable— in light of the evidence revealed over the course of the evidentiary hearing — for the Superior Court to find that Storeh testified truthfully at the 1984 trial when he stated that Maxwell had confessed. The difficulty here is not whether Storeh became a professional “snitch” who frequently committed perjury. That much is clear. Rather, the question is whether, as the state court concluded, in 1984 Storeh remained an unsophistic e court’s finding that petitioner’s confession was voluntarily obtained was objectively unreasonable); Hall, 343 F.3d at 984 (<HOLDING>); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Holdings: 0: holding that an appellate court considers the entire record on appeal not just the evidence presented at the suppression hearing in affirming the denial of a motion to suppress 1: holding that the evidence presented at a factfinding hearing was sufficient to support the chins finding 2: holding that counsels success was not extraordinary in light of the evidence presented at trial and the noncomplexity of the case 3: holding that the state appellate court made an unreasonable determination of the facts in light of the evidence presented by finding that the falsity of the jailhouse informants notes had not been proven at a hearing 4: holding in the context of the criminal false claims act that to prove falsity the government only had to prove that the statement was known to be untrue at the time the defendant made it | [
"1",
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] | [
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decision whether to apply’ the doctrine of judicial estoppel in a particular case: whether the party’s later position is clearly inconsistent with its earlier position; whether the party succeeded in persuading the court in the earlier matter to accept its position, so that judicial acceptance of the contrary position in the later matter would create the perception that one of the courts had been misled; and whether the party seeking to assert the inconsistent position in the later matter would derive an unfair advantage, or would impose an unfair detriment on the other party, from being permitted to do so. Numerous courts in other jurisdictions have recognized the doctrine of judicial estoppel. See, e.g., Talavera v. School Bd. of Palm Beach County, 129 F.3d 1214, 1217 (11th Cir.1997) (<HOLDING>) (quoting McKinnon v. Blue Cross & Blue Shield Holdings: 0: recognizing the doctrine of collateral estoppel in agency proceedings 1: recognizing doctrine 2: recognizing that the purpose of the setoff doctrine is to prevent circuity of judicial actions 3: recognizing that the doctrine of judicial estoppel is applied to the calculated assertion of divergent sworn positions the doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings 4: holding the doctrine applied in a case of mistake | [
"0",
"1",
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sentencing judge impermissibly made factual findings in violation of tire Sixth Amendment to the United States Constitution. See State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014); State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014). Further, he does not argue that the collateral estoppel component of the Double Jeopardy Clause should bar the State from admitting evidence of his prior acquittal. See United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (applying Dowling and finding Double Jeopardy Clause does not preclude sentencing judge from considering issues decided in prior case where defendant was acquitted when the sub sequent action was a lower standard of proof); Dowling v. United States, 493 U.S. 342, 348-49, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990) (<HOLDING>); 21 Am. Jur. 2d, Criminal Law § 384. The only Holdings: 0: holding that double jeopardy clause did not apply to forfeiture proceeding before the court 1: holding that a criminal acquittal does not have collateral estoppel effect on a later civil forfeiture proceeding based on the same conduct 2: holding that the dismissal of criminal charges for evidentiary insufficiency is an acquittal for purposes of the double jeopardy clause 3: holding that a prior acquittal does not preclude the admission of evidence of a defendants other alleged crimes in a prosecution for the bank robbery on the basis of collateral estoppel principles because the prior acquittal did not determine an ultimate issue in the present case 4: holding that collateral estoppel component of tire double jeopardy clause did not preclude government from introducing defendants prior acquittal at trial because government was presented with lower standard of proof in the later case | [
"1",
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] | [
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114 Hawaii 302, 347, 162 P.3d 696, 741 (2007), Alaska’s constitution contains a provision that is “nearly identical in wording and substance” to article XVI, section 2 of the Hawaii Constitution. Accordingly, the court in Kaho'ohanohano cited Alaska’s case law as “instructive in interpreting our own clause.” Id. Although the issue of when an employee’s constitutionally protected benefits accrue was not squarely before the court in Kaho'ohanohano, the court twice referenced that the Supreme Court of Alaska has determined that such benefits vest or accrue upon the employee’s employment and enrollment in an ERS, rather than when the employee becomes eligible to receive the benefits. Id. at 347-48, 162 P.3d at 741-42 (citing, e.g., Hammond v. Hoffbeck, 627 P.2d 1052, 1057 (Alaska 1981) (<HOLDING>); Municipality of Anchorage v. Gallion, 944 Holdings: 0: holding that military retirement benefits are to be considered deferred pay for past services 1: holding that disability benefits are not retirementtype benefits 2: holding that benefits under alaskas ers are in the nature of deferred compensation and that the right to such benefits vests immediately upon an employees enrollment in that system 3: holding that unemployment compensation benefits received by plaintiff are collateral source and that defendant could not reduce personal injury damages because of such benefits 4: holding that retirement benefits are accrued benefits under erisa | [
"1",
"3",
"4",
"0",
"2"
] | [
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] |
denied defendant’s motion for mistrial and the trial court, therefore, would err by continuing to the sentencing proceeding with either an alternate juror or with a newly empaneled sentencing jury. The trial court ultimately seated an alternate juror for the capital sentencing proceeding. Defendant contends that the post-verdict removal of juror eleven for juror misconduct committed during the guilt-innocence phase deliberations violated his right under the North Carolina Constitution to trial by a jury composed of twelve qualified jurors. We agree. Article I, Section 24 of the North Carolina Constitution, which guarantees the right to trial by jury, contemplates no more or no less than a jury of twelve persons. See State v. Bindyke, 288 N.C. 608, 623, 220 S.E.2d 521, 531 (1975) (<HOLDING>); State v. Hudson, 280 N.C. 74, 79, 185 S.E.2d Holdings: 0: holding that there is both a statutory and a constitutional right to a jury trial under erisa because congress lacks constitutional authority to limit right to a jury 1: holding that an alternates presence in the jury room for a brief period at the beginning of jury deliberations was a violation of this constitutional right 2: holding batson claim untimely because it was not made before the jury or the last juror including the alternates is sworn but remanding for new trial in interests of justice 3: holding that failure to list a beginning date of a pay period on a pay stub was not a violation of section 226a6 when the employer provided an electronic wage statement that did include the beginning date of the pay period 4: recognizing the right to trial by jury is a constitutional right to be given the same protections as other constitutional rights | [
"2",
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file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.Bankr.R. 7056(c); Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The summary judgment procedure is appropriate in an action to review the record of an administrative agency because the reviewing court is generally limited to determining matters of law, i.e. sufficiency of record, statutory authority of agency, etc., and if there is no material issue of fact and only a question of law, summary judgment is appropriate. 6-Pt. 2 Moore’s Federal Practice ¶56.17[3], 56-362 — 56-364 (2d ed. 1993) (citing Milton v. Harris, 616 F.2d 968 (7th Cir.1980) (<HOLDING>)). A. The Negotiated Rates Act of 1993 On Holdings: 0: holding that a probable cause determination is appropriate for summary judgment where there are no genuine issues of material fact and no credibility issues 1: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact 2: holding that when a contract is ambiguous and the parties suggest different interpretations summary judgment is inappropriate because an issue of fact exists 3: holding that summary judgment is appropriate when no issue of material fact exists and the court is reviewing administrative record for sufficiency of evidence 4: holding that when there are no genuine issues of material fact summary judgment is appropriate | [
"0",
"2",
"1",
"4",
"3"
] | [
"3"
] |
to be credible and concludes that the deputies came no closer than 120 feet from Building 2 — and thus no closer than 240 feet from the residence — on the night of May 30, 2003. Standing in isolation, the fact that the deputies were approximately 240 feet from Building 1 does not rule out the possibility that the deputies intruded upon the curti-lage. As the Second Circuit has observed, “[o]n a large parcel of land, a pond 300 feet away from a dwelling may be as intimately connected to the residence as is the backyard grill of the bloke next door.” United States v. Reilly, 76 F.3d 1271, 1277, on reh’g, 91 F.3d 331 (2d Cir.1996). Nonetheless, even in rural areas, it is rare for curtilage to extend more than 100 feet beyond the home. See, e.g., Dunn, 480 U.S. at 297, 302, 107 S.Ct. 1134 (<HOLDING>); United States v. Van Damme, 48 F.3d 461, 464 Holdings: 0: holding that deputies who approached within 90 feet of a rural residence were not within the boundaries of the curtilage 1: holding canine sniff of an unattended vehicle parked outside the curtilage of defendants home was not a search within the meaning of the fourth amendment 2: recognizing federal enclave remains within geographic boundaries of state 3: holding that a warrantless search of garbage located within the curtilage of the defendants home violated his fourth amendment rights 4: holding that aerial observation of a greenhouse within the curtilage from a helicopter passing at an altitude of four hundred feet did not violate owners reasonable expectation of privacy | [
"3",
"1",
"4",
"2",
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] | [
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bases for finding Campbell unsuitable for parole in 2006 were properly supported by some evidence, bearing some indicia of reliability. See Biggs v. Terhune, 334 F.3d 910, 915-17 (9th Cir.2003) (setting forth due process requirements and upholding denial of parole based solely on gravity of offense and prior misconduct). Campbell’s contention that due process mandates that substantial evidence, rather than “some evidence,” support the parole suitability determination is foreclosed. See id. at 915. We do not reach Campbell’s contention that in 2006 the parole board applied the wrong suitability standards to his case because we conclude that “some evidence” supports the board’s determination under either standard. Cf. Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir.1992) (per curiam) (<HOLDING>). Campbell’s remaining contentions are Holdings: 0: holding unconstitutional the mandatory application of the federal sentencing guidelines 1: holding apprendi is not implicated by an application of the sentencing guidelines that increases the sentencing range so long as the sentence imposed does not exceed the statutory maximum 2: holding that the application of the determinate sentencing law parolesuitability guidelines to prisoners sentenced under the indeterminate sentencing law does not disadvantage them 3: holding that blakely does not apply to the federal sentencing guidelines 4: holding that the reliability analysis is not heightened by the shift from an unstructured sentencing regime to a more determinate guidelines system | [
"3",
"4",
"1",
"0",
"2"
] | [
"2"
] |
counsel, respectively, do not warrant termination. See id. Santos’s allegation of a violation of 8 C.F.R. § 236.1(e), regarding the right to communicate with consular officers, likewise does not warrant termination. See United States v. De La Pava, 268 F.3d 157, 165 (2d Cir.2001). Finally, Santos’s argument that the Government violated 8 C.F.R. § 287.6(a)by submitting the Form 1-213 without authentication does not provide a basis for termination because Santos was not prejudiced by the submission. See Waldron v. INS, 17 F.3d 511, 518 (2d Cir.1993). To the extent Santos wishes to argue that the unauthenticated 1-213 should be afforded diminished evidentiary weight, he will have an opportunity to do so on remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (<HOLDING>). For the foregoing reasons, the petition for Holdings: 0: holding that the weight accorded to documentary evidence lies largely within the ijs discretion 1: holding that the decision as to the weight to be afforded to documentary evidence lies largely within the discretion of the ij 2: holding that the weight afforded to documentary evidence lies largely within the discretion of the ij 3: holding that the weight afforded to the evidence lies largely within the agencys discretion 4: holding that the weight afforded to the applicants evidence in immigration proceedings lies largely within the discretion of the agency | [
"4",
"3",
"1",
"2",
"0"
] | [
"0"
] |
litigation.’ Consequently, some informality of proof is appropriate.” United States v. 88.88 Acres of Land, 907 F.2d 106, 108 (9th Cir.1990) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The Court of Federal Claims (a trial-level Article I court, see 28 U.S.C. § 171) has found inadequate a party’s unsupported statement that he satisfied the EAJA net worth requirement, but in that case there was contradictory evidence in the record about the plaintiffs net worth. Doe v. United States, 54 Fed.Cl. 337, 343 (Fed.Cl.2002). The court undoubtedly saw a red flag when “the underlying cause of action began with the assertion that plaintiff was ‘a prospective buyer’ of a yacht.” Id. See also Fields v. United States, 29 Fed.Cl. 376, 383 (Fed.Cl.1993) (<HOLDING>). By contrast, the Federal Circuit (which, of Holdings: 0: holding that conclusory allegation of conspiracy without supporting factual averments insufficient to state claim 1: holding that a conclusory affidavit without supporting evidence is inadequate to establish net worth 2: holding that conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based citations omitted 3: holding conclusory assertions of intent to cause insufficient without supporting facts 4: holding that a district court may rely on undisputed conclusory statements in the psr even in the absence of supporting evidence | [
"4",
"2",
"3",
"0",
"1"
] | [
"1"
] |
one possible exception (30 March 2001 purchase), Financial purchased its shares after Amresco disclosed the plan (in the Y2000 10-K, signed on the day of the first purchase (30 March) and filed on 2 April). Therefore, it cannot claim' it would not have done so had it known about the plan. b. Finally, Plaintiffs fail to adequately plead scienter for any Individual Defendant because the SAC makes only general allegations and conelusory statements, such as stating they knew, or were reckless in failing to disclose, adverse material. See ABC Arbitrage, 291 F.3d at 348. Along this line, Plaintiffs’ mere allegation that the Individual Defendants were motivated by a desire to retain their jobs does not satisfy the scienter requirement. See Melder v. Morris, 27 F.3d 1097, 1102 (5th Cir.1994) (<HOLDING>). Because Plaintiffs fail to plead material Holdings: 0: holding scienter required for fraud claim not established merely by alleging defendants were motivated by jobretention goal 1: holding the pslra standard for pleading scienter is more stringent than the second circuits standard prior to the act and that motive and opportunity is not an independent basis to show defendants had scienter 2: holding that a failure to maintain sufficient internal controls to avoid fraud is indicative of scienter 3: holding that in order to make out a hostile work environment claim plaintiff must provide evidence indicating that the defendants actions were motivated by discrimination 4: holding that regardless of whether the defendant actually had a right to monies claimed defendants demands under the contract were not extortion because they were motivated by the defendants interpretation of the agreement | [
"3",
"1",
"2",
"4",
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] | [
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al., Dobbs’ Law of Torts § 673 (2d ed. 2016) (noting that the “strength of the ‘notice’ to the plaintiff that investigation may be needed” is dependent on a number of factors including “the obscurity or obviousness of the contradiction in the defendant’s statements” and the “relationship of the parties”). Other courts that have considered the issue have concluded that it is justifiable for state unemployment agencies to rely on “weekly certifications to determine an applicant’s eligibility for benefits over specific periods of time.” See Ohio Dept. of Job & Family Servs. v. Yuppa (In re Yuppa), 2013 WL 4854479 (Bankr.S.D.Ohio June 12, 2013) (unpublished opinion) (citing State of Colorado ex rel. Central Collection Serv. v. O’Brien (In re O’Brien), 110 B.R. 27, 32-33 (Bankr.D.Colo.1990) (<HOLDING>). Discussing the Colorado unemployment system, Holdings: 0: holding that plaintiff failed to prove reasonable reliance on a false statement 1: holding that the state police is a state agency 2: holding in the context of a non 212c iirira retroactivity challenge that if reliance were required we would insist at most upon objectively reasonable reliance and not subjective reliance 3: holding that reasonable reliance is not an element of the defense 4: holding in a decision predating field v mans that the state unemployment agency satisfied a reasonable reliance standard | [
"0",
"3",
"2",
"1",
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] | [
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] |
of temporary insanity, trial counsel were not deficient for failing to further investigate and pursue the defense. See Sawyers v. State, 724 S.W.2d 24 (Tex.Crim.App.1986) (evidence showing the defendant was intoxicated and nothing more does not justify submission of an issue on temporary insanity, and refusal to submit such charge in mitigation of punishment is not error); Ex parte Lilly, 656 S.W.2d 490, 493 (Tex.Crim.App.1983) (counsel’s failure to investigate the facts of a case constitutes ineffectiveness if the result is that any viable defense available to the accused was not advanced). We conclude that, had counsel requested an instruction on temporary insanity as a mitigating factor, it would have been properly denied. See Hart v. State, 537 S.W.2d 21, 24 (Tex.Crim.App.1976) (<HOLDING>). Similarly, because applicant knew his Holdings: 0: holding that the evidence at trial showed hart was aware that what he was doing was wrong 1: holding that an appeal was not equitably moot because the person who was issued the money was a party and was aware when the payment was made that the award would be appealed 2: holding that willfully violating the prohibition on engaging in business as a brokerdealer or agent without registering with the state means the defendant acted intentionally in the sense that he was aware of what he was doing 3: holding that clearly established means the contours of the right were so clear at the time the officials acted that a reasonable official would have understood that what he was doing violated that right 4: 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 | [
"4",
"3",
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as soon as she returned home. D.J. was crying and upset when Johnson arrived home, which suggests that he was not capable of thoughtful reflection and deliberation. D.J. also had fresh blood on his lower lip that visibly showed that D.J. was in distress from the physical altercation. When D.J. told his mother that Jones had hit him in the mouth with her fist, he was still under the stress of the excitement caused by the startling event. Because D.J. was still under the stress of the event, it is reasonable to infer that he was unlikely to make deliberate falsifications to his mother. As such, the trial court did not abuse its discretion in admitting D.J.'s statements to his mother under the excited utterance exception to the hearsay rule. See e.g., Robinson, 730 N.E.2d 185, 193 (<HOLDING>). IL. Lastly, Jones argues that the trial court Holdings: 0: holding that a trial courts hearsay ruling will be affirmed on any legal basis apparent in the record 1: holding that appellate courts may uphold a trial courts ruling on any legal theory or basis applicable to the case but may not reverse a trial courts ruling on any theory or basis that might have been applicable to the case but was not raised 2: holding that a trial courts ruling on a motion for new trial will be upheld if it is correct on any applicable legal theory even if the court articulated an invalid basis 3: holding that judgment may be affirmed on any ground supported by the record 4: holding that judgment may be affirmed on any ground supported by record | [
"2",
"1",
"4",
"3",
"0"
] | [
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] |
affairs, including the authority to limit tribal sovereignty. See U.S. Const, art. I, § 8, cl. 3 (granting Congress the power to regulate Indian commerce); Worcester, 31 U.S. at 243, 6 Pet. at 561, 8 L.Ed. at 501 (stating that “[t]he whole intercourse between the United States and [Indian tribes] is, by our Constitution and laws, vested in the government of the United States”); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) (stating that Congress, in its exercise of power under the Indian Commerce Clause and Treaty Clause of the Constitution, has been the sole source of federal policy for Indian affairs); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10, 29 (1980) (<HOLDING>); Delaware Tribal Business Committee v. Weeks, Holdings: 0: recognizing that palmyra is under united states sovereignty 1: holding that the fifth amendment did not apply to tribal government 2: holding that federal courts do not have jurisdiction to interpret a tribal constitution or tribal laws 3: holding the governors emergency powers to take private property for the public benefit was a special sovereignty interest but the relief requested was not so much of a divestiture of the states sovereignty to render the suit as one against the state itself 4: holding that tribal sovereignty is dependent on and subordinate to only the federal government not the states | [
"3",
"1",
"2",
"0",
"4"
] | [
"4"
] |
plain, and (3) that affects substantial rights.” Id. If plain error occurred, relief is warranted where the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The district court failed to give MoraAngel notice of its intent to impose an above-guideline sentence that included the court’s factual and legal basis for so doing. Evans-Martinez, 448 F.3d at 1167 (explaining that parties must receive notice of the basis for the variance so that the issues can be “fully aired”); United States v. Hinojosa-Gonzalez, 142 F.3d 1122, 1123 (9th Cir.1998) (per curiam) (“Both factual and legal grounds for departure are within Rule 32’s reach.”); see also Fed.R.CrimJP. 32(h); Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (<HOLDING>). The district court’s failure to do so Holdings: 0: holding that the statement of specific grounds in a motion for a new trial waives all other grounds not specified 1: holding that notice must state the specific grounds for the departure 2: holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal 3: holding that defendants diminished capacity while grounds for departure from the guidelines sentencing range is not grounds for departure below the minimum sentence set by congress 4: recognizing that postoffense rehabilitative efforts while normally not grounds for departure may support departure in extraordinary circumstances and noting that the totality of the circumstances may justify a departure where a single circumstance is not alone sufficient | [
"4",
"3",
"0",
"2",
"1"
] | [
"1"
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as here, there is some evidence connecting defendant to those threats, testimony concerning the threats is admissible on the issue of consciousness of guilt.”); State v. Soke, 105 Ohio App.3d 226, 663 N.E.2d 986, 1001 (1995) (“[W]e note that evidence of threats or intimidation of witnesses reflects a consciousness of guilt and is admissible as admission by conduct.”); State v. Hicks, 333 N.C. 467, 428 S.E.2d 167, 177 (1993) (overruled on other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001)) (“An attempt by a defendant to intimidate a witness in an effort to prevent the witness from testifying or to induce the witness to testify falsely in his favor is relevant to show the defendant’s awareness of his guilt.”); Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App.1994) (<HOLDING>); People v. Lucas, 151 Ill.2d 461, 177 Ill.Dec. Holdings: 0: holding that rule 404b evidence is admissible in rebuttal 1: holding that evidence of threats or intimidation of a witness is admissible under rule 404b to show consciousness of guilt 2: holding that structural evidence showing the inception of the conspiracy prior to the charged activities was admissible under rule 404b 3: holding defendants false exculpatory statements admissible to show consciousness of guilt 4: holding criminal acts designed to reduce the likelihood of conviction including threats against witnesses are admissible under rule 404b as showing consciousness of guilt | [
"0",
"3",
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] | [
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] |
the property when the prohibitory ordinance was enacted. See Sico v. Indiana Township Zoning Hearing Bd., 166 Pa.Cmwlth. 321, 646 A.2d 655, 660 (1994) ("The doctrine of natural expansion ... applies only to nonconforming business uses”). See also Ryan, Pennsylvania Zoning Law, §§ 7.1.8 and 7.7.1 (recognizing that most, if not all lawfully pre-existing noncon-formaties receive some protection under Pennsylvania law and that the scope of protection is subject to obvious differences between nonconforming uses and nonconforming structures). The doctrine was never meant to allow for the expansion of nonconforming conditions, such as Baer’s accumulation of junk, oversize structures or encroachment into setbacks. See Constantino v. Forest Hills Borough, 128 Pa.Cmwlth. 407, 563 A.2d 953 (1989) (<HOLDING>). See also Chartiers Township v. W.H. Martin, Holdings: 0: holding city ordinance preempted by state law because ordinance prohibited act specifically allowed under state law 1: holding that setback and height requirements in zoning ordinance were not preempted by the solid waste act because they related to land use and not operation of a landfill 2: holding that a preexisting tariff did not preempt municipal ordinance requiring undergrounding of utility lines 3: holding that shrubbery exceeding the height limit imposed by subsequent ordinance not protected as a preexisting nonconformity 4: holding that a plaintiff had standing to attack an entire ordinance including portions of the ordinance not applied to the plaintiff | [
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