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450 Fed.Appx. 15, 19 (2d Cir.2011) (“[B]ald assertions of discrimination ... unsupported by any comments, actions, or examples ... from which [the court] could infer that the defendants possessed a discriminatory ... motive are ... insufficient to survive a motion to dismiss.”). Moreover, “[a] complaint based upon a violation of [§ ] 1983 that does not allege facts establishing the personal involvement of an individual defendant fails as a matter of law.” Hernandez v. Sposato, No. 12-CV-2530, 2014 WL 3489818, at *4 (E.D.N.Y. July 9, 2014). Plaintiff, however, fails to put forth “any meaningful comments, actions, or examples of similarly-situated persons outside of [his] protected class being treated differently.” Fouche v. St. Charles Hosp., 64 F.Supp.3d 452, 457 (E.D.N.Y.2014) (<HOLDING>); see also Lucas v. Apple Food Serv. of N.Y., Holdings: 0: holding that motion to dismiss cannot be treated as summary judgment 1: holding that the bare assertion that a dismissal without prejudice was favorable to the plaintiff was insufficient to survive a motion to dismiss 2: holding that the plaintiff s bald assertions of discrimination unsupported by any meaningful comments actions or examples of similarlysituated persons outside of the plaintiffs protected class being treated differently are insufficient to survive a motion to dismiss 3: holding that making a nonfrivolous allegation is insufficient to survive a motion to dismiss for lack of jurisdiction 4: holding that a mere allegation of fraud is insufficient to survive a motion to dismiss pursuant to the pslra | [
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as separate claims, even if the several legal theories depend on different shadings of the fact, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief”). This reasoning applies here. It is uncontested that Plaintiffs are bringing the same claims against Alexander & Alexander in the instant lawsuit as were brought against Alexander & Alexander in the Kansas lawsuit. These claims are based on the same underlying facts. The causes of action are thus identical, even though the instant matter may require the Missouri court before which the suit was brought to apply Missouri law, while the Kansas lawsuit required the application of Kansas law. See Austin v. Super Valu Stores, 31 F.3d 615 (8th Cir.Minn.1994) (<HOLDING>). Plaintiffs nevertheless contend that res Holdings: 0: recognizing that pleadings filed in federal court while the federal court has jurisdiction become part of the state court record on remand 1: holding that dismissal of prior action in louisiana federal court on the grounds of the statute of limitations bar subsequent action filed in minnesota federal district court 2: holding that a dismissal on limitations grounds is a judgment on the merits 3: recognizing twoyear statute of limitations for section 1981 claims filed in federal court in georgia 4: holding that illinois federal court erred in giving preclusive effect to minnesota state courts dismissal of action on statute of limitations grounds based on minnesotas treatment of statutes of limitations as procedural in nature and without preclusive effect | [
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and permanent injunction. The denial of a motion for contempt is not appealable because it is not a final order. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985); Velez v. DeLara, 905 S.W.2d 43, 46 (Tex.App.—San Antonio 1995, no writ). We therefore overrule points three and four by which Chambers complains of the court’s assessment of the final judgment. We can review the declaration that the agreed temporary injunction was void ab initio because of the lack of a bond. The supreme court has construed strictly the requirement of Texas Rule of Civil Procedure 684 that, before a trial court issues a temporary restraining order or temporary injunction, the applicant shall execute and file with the clerk a bond to the adverse party. Goodwin v. Goodwin, 456 S.W.2d 885, 885 (Tex.1970) (<HOLDING>); Lancaster v. Lancaster, 155 Tex. 528, 291 Holdings: 0: recognizing the importance of a determination on the merits with respect to the issuance of a permanent injunction 1: holding that the injunction did not constitute a claim 2: holding that injunction order simply setting out elements necessary for relief and failing to identify the injury from denial of the injunction was conclusory and void 3: holding that the failure of the applicant to file a bond before the issuance of the temporary injunction renders the injunction void ab initio 4: holding an appeal of injunction moot where the injunction expired three months before the appellate court heard arguments in the case | [
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Jan.10, 2003) (identical opinion, different defendant), appeal dismissed, 99 Ohio St.3d 1549, 795 N.E.2d 686 (2003); cf. State v. Young, Nos. 19472, 19473, 2003 WL 2004025, at *6 (Ohio Ct.App. May 2, 2003) (affirming trial court’s refusal to designate defendant as sexually oriented offender, and agreeing that abduction offenses “were not motivated in any way by sexual purpose, or with a purpose to gratify Young’s sexual needs, or to allow Young to engage in sexual activity” and there was no rational relationship between “governmental goal of protecting the public from sexually oriented offenders and the facts of this case”), appeal dismissed, 99 Ohio St.3d 1549, 795 N.E.2d 686 (2003); see also State v. Washington, No. 99-L-015, 2001 WL 1415568, at *3-4 (Ohio Ct.App. Nov. 2, 2001) (<HOLDING>). A New York court also has declared a similar Holdings: 0: holding evidence of sexual assault relevant to show defendants motive in kidnapping victim 1: holding evidence of past uncharged sexual encounters admissible in child sexual abuse case to show relationship between defendant and alleged victim 2: holding that classifying the defendant as a sexually oriented offender after he was convicted of kidnapping minors without a sexual purpose violated the defendants right to substantive due process where the statutory definition of sexual offender included one who had committed certain criminal offenses against a minor regardless of sexual intent 3: holding that no rational jury could conclude there was no intent to distribute where the defendants possessed 3000 pounds of marijuana 4: holding that the designation of a defendant as sexually oriented offender for kidnapping his child where there was no evidence of sexual motivation bore no rational relationship to purpose of the statute | [
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of public trust, U.S.S.G. § 3B1.3; and a three-level reduction for acceptance of responsibility, U.S.S.G. § 3El.l(a), (b). 13 . Because we conclude that Garrison's sentence improperly was enhanced for abuse of a position of public trust and remand for resentencing without this enhancement, we need not address her double-counting issue. 14 . Given Garrison’s sentencing date of October 26, 1995, we use the applicable United States Sentencing Guidelines Manual (1994) and statutes and regulations in effect on that date. See United States v. Camacho, 40 F.3d 349, 354 (11th Cir.1994) ("The sentencing court must employ the guidelines in effect at the time the sentencing hearing is held.”). 15 . See Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 1917-18, 123 L.Ed.2d 598 (1993) (<HOLDING>). 16 . As examples, our court has determined Holdings: 0: holding that sentencing guidelines commentary which is interpretive and instructive to application of a guideline is binding on federal courts 1: holding that commentary accompanying guidelines is binding 2: holding that where the commentary to a guideline is at odds with another provision of the guidelines the guideline prevails 3: recognizing the guidelines commentary is authoritative 4: recognizing that the aba guidelines and federal law are instructive | [
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to decline jurisdiction under Colorado River, notwithstanding the presumption in favor of assuming jurisdiction. See, e.g., Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50 (1st Cir.2006); Currie v. Group Ins. Comm’n, 290 F.3d 1 (1st Cir.2002); Liberty Mut. Ins. Co. v. Foremost-McKesson, Inc., 751 F.2d 475 (1st Cir.1985). In our view, this is such a case. Applying the factors, we conclude that while some are neutral to our inquiry, the balance of them strongly favors abstention. We begin with the neutral factors, which may be summarized quickly. The federal and Puerto Rico forums are equally convenient (second factor); the Puerto Rico forum is well equipped to protect the parties’ interests (sixth factor), see United States v. Fairway Capital Corp., 483 F.3d 34, 43 (1st Cir.2007) (<HOLDING>); there is nothing vexatious or contrived about Holdings: 0: holding that the adequacy of the state forum is relevant only when it would disfavor abstention 1: holding that england and its reservations are not relevant where the purpose of the abstention is not clarification of state law 2: holding that the question is not whether the party opposing abstention can demonstrate that the federal forum is a better or more convenient forum but whether the inconvenience of the federal forum is so great that this factor points towards abstention 3: recognizing that where plaintiff is from the forum state and defendant is from an alternate forum each forum can claim a connection to one of the parties 4: holding that younger abstention is jurisdictional | [
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232 (2005) (recognizing Restatement [Second] of Torts § 314A[3] imposes a duty upon one in possession of land); Gragg v. Wichita State Univ., 261 Kan. 1037, 1045-46, 934 P.2d 121 (1997) (same); Gardin v. Emporia Hotels, Inc., 31 Kan. App. 2d 168, 171-72, 61 P.3d 732, rev. denied 275 Kan. 963 (2003) (same). Thus, although not in the same context, Kansas has recognized and implemented § 314A of the Restatement (Second) of Torts. Moreover, and in a factual scenario very similar to the one presented here, two cases from the United States District Court for the District of Kansas have specifically applied Restatement (Second) of Torts § 314A(4) to hold that prison officials owed inmates the duty to prevent self-harm. Estate of Sisk v. Manzanares, 262 F. Supp. 2d 1162, 1185-87 (D. Kan. 2002) (<HOLDING>); Griffin v. United States, 2000 WL 33200259 Holdings: 0: holding that city policymakers who owed an independent duty to pretrial detainees were individually liable under 1983 for prisoner suicide even though factfinder determined that the turnkey had not violated prisoners constitutional rights 1: holding doc and its personnel had independent legal duty to prevent prisoner from committing suicide 2: holding no legal duty exists to prevent unforeseeable criminal acts 3: holding united states marshal service had legal duty of care with respect to suicidal prisoner who escaped from custody and then committed suicide by jumping from the fourth floor atrium of united states courthouse 4: holding that instructing the jury on a legal duty theory when appellant had no legal duty to prevent the commission of the offense was error | [
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NEPA challenge. E. Jurisdictional Bar of Section 9613(h) as Applied to Plaintiffs’ First Amendment Challenge — First Cause of Action The jurisdictional bar of section 9613(h) applies differently when it comes to Plaintiffs’ First Amendment claim. Most courts have flatly concluded that because section 9613(h) bars pre-enforcement judicial review of “any challenges to removal or remedial actions selected,” it also bars pre-enforcement judicial review of constitutional challenges to CERCLA itself. See Aztec Minerals Corp. v. United States Envtl. Prot. Agency, No. 98-1380, 1999 WL 969270, at *3 (10th Cir. Oct.25, 1999) (concluding that section 9613(h) barred plaintiffs due process claim as to the EPA’s regulation of a mine); Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 295 (6th Cir.1991) (<HOLDING>); Schalk, 900 F.2d at 1097 (rejecting Holdings: 0: holding the court lacked jurisdiction over claim under 2513 without certificate from district court 1: holding this court may affirm on any grounds supported by the record even if different from the district courts grounds 2: holding that a district court may impose sanctions for abuse of judicial process pursuant to rule 11 even after it is determined that the court lacked subject matter jurisdiction over the plaintiffs claims 3: holding that because the state failed to properly file the complaint the district court lacked jurisdiction to proceed to trial 4: holding that the district court lacked jurisdiction to enjoin the epa on due process grounds from regulating plaintiffs landfill | [
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but only days after his success on appeal. Two weeks after the court’s ruling, the government filed the present motion For Reconsideration and to Reopen Hearing. COURT’S DISCUSSION I. Motion For Reconsideration A. Standard of Review In order to succeed on a Federal Rule of Civil Procedure 59(e) Motion to Alter or Amend Judgment, petitioner must establish that the newly profered evidence was unavailable at the time of the hearing. United States v. Dickerson, 166 F.3d 667 (4th Cir.1999), rev’d on other grounds, — U.S. —, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see also Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). While the court recognizes that the Federal Rules of Civil Procedure are not binding in criminal cases, United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir.1981) (<HOLDING>), the court has a strong interest in Holdings: 0: recognizing that a court must balance the policy in favor of hearing a litigants claims on the merits with the policy in favor of finality 1: recognizing that in parental termination proceedings the fundamental liberty interest of parents must be balanced with societys interest in protecting the welfare of children 2: holding that a plaintiffs choice of forum is most influential and should rarely be disturbed unless the balance is strongly in defendants favor 3: recognizing the need to protect the accuseds right to a speedy trial without sacrificing societys interest in enforcement of its criminal laws 4: recognizing that societys interest in admitting all relevant evidence militates strongly in favor of permitting reconsideration | [
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duration within which modification is possible. Accordingly, the policy that underlies Lanning also supports our reading of § 1325(b)(1)(B). III. Conclusion In summary, we hold that a bankruptcy court may confirm a Chapter 13 plan under 11 U.S.C. § 1325(b)(1)(B) only if the plan’s duration is at least as long as the applicable commitment period provided by § 1325(b)(4). Accordingly, we overrule Kagenveama’s holding regarding the meaning of “applicable commitment period” and affirm the bankruptcy court’s ruling. The mandate shall issue forthwith. AFFIRMED. 1 . The Trustee has never questioned Debtors' good faith in proposing the plan. See 11 U.S.C. § 1325(a)(3) (setting forth requirement of the debtors’ good faith). 2 . See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (<HOLDING>). 3 . Debtors do not dispute the increase from Holdings: 0: holding that a threejudge panel may depart from circuit precedent that has not been expressly overruled when an intervening en banc or supreme court decision has undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable 1: holding that a three judge panel is free to reexamine the holding of a prior panel when the supreme court has undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable 2: holding that a three judge panel is not bound by prior circuit precedent if an intervening decision of a higher authority undercuts the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable 3: holding that where the relevant court of last resort has undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable then a threejudge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled 4: holding a threejudge panel may not reexamine normally controlling circuit precedent in the face of an intervening united states supreme court decision unless the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority | [
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further provides that a violation notice must (1) Be in writing; (2) Include a statement of the violation or violations and why the notice is being issued; (3) Inform the offender of the right to appeal; (4) Include a statement that a determination of violation shall be final unless appealed in accordance with this chapter; and (5) Include a statement of penalties provided for the violation(s). Id. Meloche’s confrontation with the O’Neills lacked all the elements required by LMCO §§ 91.073(A)-(B) and 91.074(D) — sections of an ordinance that Meloche claims he created — and was not reasonably calculated to apprise the O’Neills of the allegations against them or of the procedures available to present their objections. See United States v. Baker, 807 F.2d 1315, 1323-24 (6th Cir.1986) (<HOLDING>); cf. Herrada v. City of Detroit, 275 F.3d 553, Holdings: 0: holding that procedures whereby amount of restitution were determined without a hearing were constitutionally defective 1: holding that the worker adjustment and retraining notification act imposes a notice requirement in case of a mass layoff thereby imposing on an employer the obligation to provide either statutory notice or sixty days back pay in lieu of notice to relevant employees 2: holding the statutory notification requirement unenforceable 3: holding that notice was not constitutionally adequate where the clearcut statutory procedures for notification were not followed 4: holding that search warrant was constitutionally defective because it did not require notice | [
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Liberato, Summary Judgments in Texas, 47 S. Tex. L. Rev. 409, 480 (2006). 26 . See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998) ("A cause of action generally accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy.”); Moreno, 787 S.W.2d at 351 (‘‘[A] cause of action can generally be said to accrue when the wrongful act effects an injury.”); All-Tex Roofing, Inc. v. Greenwood Ins. Group, Inc., 73 S.W.3d 412 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (in claim for negligent placement of insurance with an insolvent insurer, claim did not accrue until insured was denied indemnification); Gilbreath v. White, 903 S.W.2d 851, 856 (Tex.App.-Texarkana 1995, no writ) (<HOLDING>). 27 . If late filing of the reply evidence was Holdings: 0: holding that plaintiff could recover medical fees not actually paid by the insurance company pursuant to an insurance contract 1: holding that even if an insurance broker is the agent of the insurance company for purposes of soliciting and procuring the policy that would not necessarily make the broker the agent of the insurance company for the purpose of receiving notice of suits and claims 2: holding that an insurance agent who does not procure the insurance coverage requested breaches his or her duty suggesting a negligence claim 3: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 4: holding that legal injury occurred for purposes of negligence action against insurance agent when insurance company rejected the claim | [
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explicitly stated: “Physicians providing medical services within this hospital are not employees of University Hospital. Each physician is an independent contractor.”). ' To the contrary, where patients were given no indication that the emergency-room physicians were independent contractors, courts have held that the question of apparent authority was at least a question for the jury—the trier of fact. See, e.g., Jennison v. Providence St. Vincent Med. Ctr., 174 Or.App. 219, 234, 25 P.3d 358, 367 (2001) (finding it was reasonable for the patient to assume -that the radiologist was a hospital employee where nowhere on the consent form did it indicate that radiologists were independent contractors); Abdul-Majeed v. Emory Univ. Hosp., 213 Ga.App. 421, 423, 445 S.E.2d 270, 272 (1994) (<HOLDING>). Here, HKH not only took affirmative action Holdings: 0: holding that no physicianpatient relationship between doctor who gave informal opinion over telephone at request of treating physician and minor patient whose case was discussed and thus doctor did not owe duty of care to patient 1: holding that the trial court had erred by excluding the expert testimony of a doctor 2: holding evidence of apparent authority insufficient where patient sought services of particular doctor rather than services of hospital generally 3: holding that a question of fact existed regarding whether the hospital held the doctor out as its agent if the hospital provided the doctor without explicitly informing the patient that the doctor was not its employee 4: holding erisa did not apply when doctor was not employee of the medical association of the state of alabama | [
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sole source of water. Horse Creek is a tributary of the Peace River, and Horse Creek supplies approximately fifteen percent of the fresh water to the portion of the Peace River from which the Authority withdraws water. The Authority has a water use permit (WUP) from the Southwest Florida Water Management District that both gives the Authority the right to withdraw water from the Peace River and sets conditions on those withdrawals. Thus, as an entity possessed of a legal right to withdraw water from the Peace River, the Authority inarguably has a substantial interest in the river’s environmental integrity, and this interest could be injured by changes in the flow of Horse Creek into the Peace River. See Royal Palm Square Ass’n v. Sevco Land Corp., 623 So.2d 533, 535 (Fla. 2d DCA 1993) (<HOLDING>). Further, the potential injury asserted by the Holdings: 0: recognizing that water rights constitute a real property interest 1: holding that a property owner who had the right to drain water into a specific lake had a substantial interest in that lakes environmental integrity and thus had a substantial interest in a permit that could alter the drainage into that lake 2: holding access to property by navigable lake was per se bar to finding of necessity 3: holding that the tribes are the beneficial owners of the south half of flathead lake and that tribal ownership encompasses the lake bed to the high water mark 4: holding lake on private land was not navigable in fact and there was no right of public use and enjoyment as lake was not fed by or part of a navigable stream | [
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Sheriff’s Dep’t, 858 S.W.2d 573, 575 (Tex.App.—Austin 1993, writ denied). 38 . Fed. Sign, 951 S.W.2d at 405. 39 . Will, 491 U.S. at 71, 109 S.Ct. at 2312; Scott, 16 S.W.3d at 180. 40 . 932 S.W.2d at 287. 41 . Id. at 289. 42 . Id. 43 . Id. at 290, (citing Tex.Code Crim. Proc. Ann. art. 2.13(a) (Vernon Supp.2001)); Davis v. Passman, 442 U.S. 228, 246, 99 S.Ct. 2264, 2277, 60 L.Ed.2d 846 (1979). 44 . Will, 491 U.S. at 71, 109 S.Ct. at 2312. 45 . City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); City of Dallas v. Moreau, 718 S.W.2d 776, 779 (Tex.App.—Corpus Christi 1986, writ ref'd n.r.e.). 46 . Moreau, 718 S.W.2d at 779. 47 . Will, 491 U.S. at 71, 109 S.Ct. at 2312; Scott, 16 S.W.3d at 180. 48 . See Salazar v. Morales, 900 S.W.2d 929, 932-34 (Tex.App.—Austin 1995, no writ) (<HOLDING>). 49 .Id. at 934; see also Barr v. Matteo, 360 Holdings: 0: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law not arizona law should be applied 1: holding sending two employees to work in texas and using an office in texas for limited purposes did not support finding of general jurisdiction 2: holding there was no general jurisdiction when there was no evidence that defendants advertised or promoted their goods or services in texas solicited business in texas sold their goods or services to a texas entity established a general business office or general business presence in texas or targeted texas markets 3: holding that texas attorney general has an absolute privilege to publish in response to news reporters inquiries material about employee terminations that may be perceived to be defamatory 4: holding that the court may issue an injunction prohibiting a defendant from repeating statements determined at trial to be defamatory | [
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threshold loss amount is determined by the date the policy was issued or renewed. The subject policies of these appeals were “issued or renewed before July 1, 2002.” MCL 500.3104(2)(a). Thus, the relevant threshold loss amount for these appeals is $250,000. Id. The current threshold is $440,000. MCL 500.3104(2)(h). 20 MCL 500.3104(25)(c). 21 See MCL 500.3104(2)(a)-(k). 22 In re Certified Question, supra at 723. 23 MCL 500.3163(1) obligated the plaintiff to provide Michigan no-fault benefits. 24 , 237 Mich App 235, 238 n 1; 602 NW2d 588 (1999) (“[T]he MCCA is not obligated to indemnify its member insurers for amounts the insurers are not obligated to pay under their no-fault policies.”); Transamerica Ins Group v Michigan Catastrophic Claims Ass’n, 202 Mich App 514; 509 NW2d 540 (1993) (<HOLDING>); J C Penney Cas Ins Co v Michigan Catastrophic Holdings: 0: holding that evidence not submitted to the district court cannot be part of the record on appeal 1: holding that surety was not liable for losses arising out of 1931 acts by the principal a committee of an incompetent person because the bond agreement limited the scope of the suretys undertaking by providing that the surety would assume liability on fiduciary court bonds for all losses occurring on and after the 1st day of may 1933 and all losses as to which no notice was received by the old company prior to midnight of april 30th 1933 2: holding under the federal tort claims act that plaintiff armed with the facts about the harm done to him is obligated to protect himself by seeking advice in the medical and legal community and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute 3: holding that the mcca was not obligated to indemnify a claim submitted by two insurers seeking to aggregate their shared losses to exceed the 250000 threshold 4: holding that the disputed issue with respect to the state law bar was properly submitted to the jury | [
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case rests squarely within the group of cases that have prosecuted similar private sector frauds under federal law, and appellants’ conduct is precisely the type of misuse of the mails and wires the statutes were meant to address. See, e.g., United States v. Von Barta, 635 F.2d 999, 1005 (2d Cir.1980). In a similar vein, appellants argue that the conduct at issue here was not illegal under New York state law and, therefore, could not form the basis of federal charges. We note that both the trial and appellate courts that were involved in the state court proceedings initially brought against the appellants and others based on the same scheme found that the type of conduct at issue here did violate state law. See New York v. Wolf, 284 A.D.2d 102, 726 N.Y.S.2d 83, 84 (N.Y.App.Div.2001) (<HOLDING>), leave to appeal granted, 96 N.Y.2d 926, 732 Holdings: 0: holding that the in connection with requirement of rule 10b5 was satisfied where investors were injured as investors through respondents deceptions and the scheme to defraud and the sale of securities coineided 1: holding that the statute requires actual intent to hinder delay or defraud creditors or the trustee constructive intent to defraud does not suffice 2: holding that a nineyear scheme by two defendants to defraud a single plaintiff of various real estate holdings constituted a rico pattern 3: holding that direct proof of intent to defraud is unnecessary and that it may be inferred from the act of the parties and from all circumstances 4: holding that similar conduct by codefendant of grae and rybicki satisfied the elements of commercial bribery and scheme to defraud | [
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rezoning. JUDGMENT UPHOLDING COMPREHENSIVE REZONING AFFIRMED; TRIAL COURT’S JUDGMENT OTHERWISE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY PRINCE GEORGE’S COUNTY. 1 . We do not identify the property because its identity is of little importance in our resolution of the issues. 2 . Unless the text indicates otherwise, we shall or "the functional equivalent” of a "practical ouster of [the owner's] possession” could constitute a constitutional taking. -U.S. at-, 112 S.Ct. at 2892 (brackets in original). 11 . The Supreme Court has found that a regulation resulted in an unconstitutional taking on only six occasions, beginning with Pennsylvania Coal, 260 U.S. 393, 43 S.Ct. 158. The cases include Lucas, — U.S. — , 112 S.Ct. 2886 (<HOLDING>); Loretto v. Teleprompter Manhattan CATV Corp., Holdings: 0: recognizing categorical taking when regulation denies all economically beneficial or productive use of land 1: holding that a regulation prohibiting a landowner from building houses on his beachfront property denied him all economically viable use of his land and therefore was a taking requiring compensation 2: holding that the state is obligated to pay property owners when it regulates private property under its police power in such a manner that the regulation effectively deprives the owner of the economically viable use of that property 3: holding that a zoning regulation which deprives property of all economically beneficial or productive use is a categorical regulatory taking 4: holding that zoning ordinance can effect a regulatory taking if the ordinance does not substantially advance legitimate state interests or denies an owner all economically viable use of his land | [
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regardless of the nature of the relief sought.” (internal quotation omitted)). Moreover, the state is not a “person” within the meaning of section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). In an attempt to elude the sovereign immunity bar, plaintiffs essentially ask this Court to order two legislative leaders, in their official capacities, to appropriate additional funds for the Clean Elections Fund. Case law makes clear that a suit against a state official in his or her official capacity, which is essentially a suit against the state itself, may be barred by the Eleventh Amendment regardless of whether injunctive or monetary relief is sought. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (<HOLDING>); Pennhurst, 465 U.S. at 101, 104 S.Ct. 900. Holdings: 0: holding that suit against county sheriff in his official capacity was suit against county 1: holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office 2: holding that an official capacity suit should be treated as a suit against the entity 3: holding that a damages suit against a state officer in his official capacity was barred because it was functionally a suit against the state 4: holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under 1983 | [
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Becerra, 155 F.3d at 753-54; Lyons, 888 F.2d at 1075. As for the change-in-the-law exception, the Supreme Court did address the question whether a duty to disclose arises from a defendant’s market activities and therefore Stoneridge does not affect the legal basis of the Fifth Circuit’s holding in Regents. (The Financial Institution Defendants insist Lead Plaintiff previously argued that Defendants’s alleged market activities gave rise to a duty to disclose and lists a number of examples in # 5986 at 4, 7 n. 5, 8 and nn. 6-7, and 10-11 and nn. 8-9.) Moreover, they maintain, logically Lead Plaintiff cannot rely on a case decided in 1977, Virginia Bankshares, and yet argue a change in controlling law. See Loa-Herrera v. Dept. of Homeland Sec., 239 Fed.Appx. 875, 880-81 (5th Cir.2007) (<HOLDING>). Furthermore the Supreme Court’s refusal to Holdings: 0: holding that where a contractor relied on montgomery countys prior reasonable and debatable interpretation of the statutory phrase nonhabitable structures and constructed its building based on that interpretation and with a valid permit it would be inequitable for the county board of appeals to apply a changed interpretation to require removal of the buildings fourth floor 1: holding that plaintiffs had no vested interest in former interpretation of state law 2: holding that an intervening change in statutory interpretation did not amount to a change in controlling law under the mandate rule where plaintiffs attempted on remand to rely on a different but related statute which could have been but was not previously raised and the interpretation of which had not changed 3: holding that state had waived argument because it could have been raised in an earlier appeal but was not and because it fell outside the scope of remand 4: holding an administrative interpretation cannot change the meaning of a statute or control the courts interpretation of it | [
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attacked Edwards’s testimony based on the deal he struck with the State. While counsel also sought to impeach Prince’s and Barksdale’s testimony, he did not attempt to attack the testimony given by Bridgett or Rainey. Although the defense brought out conflicting and impeachment evidence via cross-examination, this evidence had little or no bearing on the issue of Russell's intent in the Fast Freddy’s offense. Cf. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex.Crim.App.1985) (recognizing cross-examination of State’s witnesses can raise issue of identity). The State provided probative evidence on the issue of Russell’s intent in the Fast Freddy’s offense through numerous witnesses, and this evidence of intent was not seriously undermined by the defense. Accord DeLeon, 77 S.W.3d at 313-14 (<HOLDING>). b. Evidence of S & A Offense The State also Holdings: 0: holding that an insurer lacked standing to raise the issue of the intent of the parties to the settlement agreement to which it was not a party 1: holding defense crossexamination did not raise issue of intent or identity 2: holding that failure to raise issue in brief constitutes waiver of appeal of the issue 3: holding evidence of other crimes inadmissible when identity is not at issue 4: holding that a party may not raise an issue for the first time on appeal | [
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for the court. As to the distribution charge, Price and Ellis clearly are not accomplices under settled South Dakota law. “ ‘An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. To render one an accomplice he must in some manner knowingly and with criminal intent participate, associate or concur with another in the commission of a crime.’” State v. Fox, 313 N.W.2d 38, 40 (S.D.1981) (quoting State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (1965) (emphasis supplied)). Busack was charged with distributing methamphetamine to Price and Ellis. Neither of these witnesses could be charged with distributing to themselves, therefore they were not accomplices to these acts. See State v. Bufener, 401 N.W.2d 740, 743 (S.D.1987) (<HOLDING>). Indeed, under facts demonstrating more Holdings: 0: holding that a private citizen acting as undercover agent is not an accomplice witness so long as he does not bring about the crime 1: holding failure to instruct jury as to requirement of corroboration of accomplice witness testimony was error 2: holding that an adverse inference cannot be drawn from a defendants failure to call a witness if the states evidence establishes that the witness is an accomplice who would be entitled to assert a fifth amendment privilege 3: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 4: holding that witness was not an accomplice in distributing marijuana to himself | [
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Hearing at 11. The record indicates that all twelve defendants said, "[yles," and then the trial judge said, "[elv-eryone says yes." Id. The trial judge then addressed Barker individually, discussing the specifics of Barker's plea agreement. As the post-conviction court concluded, "there is no question that the twelve defendants were properly advised 'en masse' of the rights they were giving up by pleading guilty, and that the Court was satisfied that all twelve, including [Barker], understood and knowingly waived their rights." Appellant's Appendix at 183. Based upon our review of the record, we cannot say that the evidence is undisputed and leads inevitably to an opposite conclusion of the post-conviction court. See, e.g., Mescher v. State, 686 N.E.2d 418, 414-415 (Ind.Ct.App.1997) (<HOLDING>), reh'g denied, trans. denied. For the Holdings: 0: holding that one must voluntarily and intelligently waive the right to counsel 1: holding that the defendants guilty plea was entered into knowingly voluntarily and intelligently 2: holding that an appeal waiver is valid when it is entered into knowingly and voluntarily 3: holding that the record must establish that a defendants guilty plea was knowingly and voluntarily made and that the circuit court complied with rule 144 ala rcrim p 4: holding that where a criminal defendant has voluntarily and knowingly entered into a plea agreement in which he or she waives the right to appeal the defendant is not entitled to resentencing in light of booker | [
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2001) (reversing denial of summary judgment because plaintiff failed to provide “sufficient objective proof of the extent or degree of the alleged physical limitations resulting from the disc injuries”). Jacobson’s deposition testimony as to Molina’s neck and back limitations is based entirely upon Molina’s subjective complaints of pain, which, as stated above, is insufficient. Moreover, that evidence related to Molina’s injury in the days immediately following the accident. Without any objective evidence that these alleged limitations lasted much longer, no reasonable juror could conclude that Molina’s injuries were permanent, significant, or curtailed her customary activities for more than 90 days. See, e.g., Kim v. Kim, 266 A.D.2d 190, 697 N.Y.S.2d 676, 677 (App. Div.2d Dep’t 1999) (<HOLDING>); see also Petrone v. Thornton, 166 A.D.2d 513, Holdings: 0: holding that selfserving deposition testimony standing alone is insufficient to survive a motion for summary judgment 1: holding without discussing the plaintiffs burden of persuasion that the plaintiff had presented sufficient evidence to survive summary judgment 2: holding that the nonmoving party must produce more than a scintilla of evidence to survive summary judgment 3: holding that notice of judgment was insufficient 4: holding that evidence of alleged limitations obtained soon after accident was without more insufficient to survive summary judgment | [
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been informed of the registration requirement in order for his admission to have been valid. “For a guilty plea to be valid, it must be affirmatively shown that it was both intelligently and voluntarily given, and made with a full understanding both of what the plea connotes and of its possible consequences.” In re John D., 479 A.2d 1173, 1177 (R.I.1984) (citing Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-80 (1969)). Before accepting a plea, the court must set forth, in language understandable to the juvenile, the “essential elements underlying certain rights.” In re John D., 479 A.2d at 1178. However, the court need not inform a defendant of collateral consequences of an admission for it to be valid. State v. Figueroa, 639 A.2d 495, 499 (R.I.1994) (<HOLDING>). Matthew argues that the state’s case is moot Holdings: 0: holding that the sanction of deportation is a collateral not direct consequence of a guilty plea 1: holding that deportation is collateral consequence and deportations admonishments are not constitutionally required 2: holding that the court had no duty to warn defendants about the possibility of deportation as a collateral consequence of conviction 3: holding that potential civil commitment under a state statute was a collateral consequence of pleading guilty 4: holding that enhancement of sentence after violation of probation was collateral rather than direct consequence of plea | [
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by applying a mistaken standard of review and mischaracterizing Haverda’s rebuttal arguments. This Circuit has held that summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate. Click v. Copeland, 970 F.2d 106, 113-14 (5th Cir.1992). Courts applying the Mt. Healthy doctrine in summary disposition analyses have held that if a plaintiff brings forth evidence of pretext, the determination whether the employer’s stated reasons are pretextual is a fact issue reserved for the jury. See Click, 970 F.2d at 113-14 (finding that evidence of motivation for adverse employment action, along with plaintiffs evidence supporting a contrary inference, is “fodder for the jury”); Brawner v. City of Richardson, Tex., 855 F.2d 187, 193 (5th Cir.1988) (<HOLDING>). Courts deciding the causation issue by Holdings: 0: holding that an eeoc reasonable cause determination letter did not constitute evidence precluding summary judgment when the other evidence was insufficient to create a genuine issue of material fact 1: holding that there was a genuine issue of material fact precluding summary judgment 2: holding that there were genuine issues of material fact and reversing the district courts grant of summary judgment because in part the everchanging nature of the proffered reasons given for plaintiffs termination could be viewed as evidence tending to show pretext 3: holding that plaintiff failed to show genuine issue of material fact on equitable estoppel claim 4: holding after considering the plaintiffs evidence of pretext that the determination whether the plaintiffs speech was the motivating factor in his discharge turns on a genuine issue of material fact | [
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conjunction with the use of FLEXLINE the significance of the relatedness factor is significantly diminished. 3. Similarity a. In evaluation the similarity of trademarks, a superficial side-by-side comparison is not the appropriate test. Wynn Oil, 839 F.2d at 1188. Rather, “the marks must be viewed in their entirety and in context.” Homeowners Group, 931 F.2d at 1109. “A court must determine, in the light of what occurs in the marketplace, whether the mark will be confusing to the public when singly presented.” Id. (citations omitted). The addition of words can be sufficient to distinguish marks. See In re Hearst Corp., 982 F.2d 493 (1992) (finding presence of term GIRL in VARGA GIRL sufficient to distinguish from VARGAS for identical goods); Frisch’s Restaurants, 759 F.2d 1261, 1266-67 (<HOLDING>). Slight modifications of a mark do not Holdings: 0: holding that since we have already held that the concurrent use of plaintiffs mark by the defendants creates the likelihood of confusion the inescapable conclusion is that there was also irreparable injury 1: holding that as in an action alleging infringement of a mark likelihood of confusion is the essence of an unfair competition claim 2: holding that the use of the shoneys name over any subsidiary product line mark reduces the likelihood of confusion 3: holding that concurrent use of same mark on similar product was sufficient to demonstrate a likelihood of confusion 4: holding that even several isolated incidents of actual confusion are insufficient to support a finding of likelihood of confusion | [
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the job of a single guard as of the time of trial; all that has been required, according to the record, is some adjustments in scheduling and job assignments, adjustments that are no more burdensome than those required from time to time for a variety of other non-penological reasons. Superintendent Vail acknowledged reluctantly that the changes had been made without causing any significant disruptions, and did not suggest any reason that the changes could not remain in effect. The burden on the prison—enlisting the cooperation of the guards’ union, adjusting job responsibilities, calling female officers away from their on-duty meals to perform searches—is minor, and a minor burden must be endured in order to preserve constitutional rights. See Salaam v. Lockhart, 905 F.2d at 1171 (<HOLDING>). (2) While the prison’s penological interest Holdings: 0: holding prison nurse was not entitled to official immunity related to allegations that she failed to follow the prison policy related to inmate prescriptions because the prison policy regarding the maintenance and administration of inmates prescriptions does not depend on discretionary judgment calls 1: holding that state prison officials enjoy wide discretion in regards to a prison boards finding of guilt 2: holding that prison walls do not form a barrier separating prison inmates from the protections of the constitution 3: holding required changes in prison policy not burdensome in light of the overall cost of operating the prison 4: holding that prison conditions are those aspects of prison life affecting the entire prison population | [
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notion that charter counties possess wide authority under Missouri Constitution Article VI, Section 18(c), to regulate municipal functions as they see fit — even in contravention of state statutes concerning the same powers. See, e.g., Casper v. Hetlage, 359 S.W.2d 781 (Mo.1962). So if section 260.247 in fact regulates a “municipal function,” serving in effect as a default regulation for political subdivisions which do not have home rule, the County is constitutionally free to exercise legislative power over that function; but if section 260.247 is “within the province of general legislation involving the public policy of the state as a whole,” then the County is bound by it regardless of its charter status. See State ex rel. St. Louis County v. Edwards, 589 S.W.2d 283, 286 (Mo.1979) (<HOLDING>). To resolve this question, the trial court Holdings: 0: holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction 1: holding that although the juvenile restitution statute does not expressly require the juvenile court to determine whether the juvenile has the ability to pay the restitution ordered as a condition of probation the policies underlying the adult restitutions command that a trial court make such an inquiry applies with equal force to juvenile courts 2: holding juveniles statement inadmissible when after being placed in custody police took juvenile to police station and held juvenile in area where adult suspects were held instead of taking juvenile to a juvenile processing office or any of the places listed as an alternative in section 5202 and placing juvenile in specifically designated office for juveniles 3: holding that jeopardy attaches in juvenile adjudication that determines whether juvenile violated criminal law 4: holding that the juvenile codes comprehensive control of juvenile facilities for the purpose of providing care protection and discipline of children in the juvenile facility could not be overridden by st louis countys exercise of control over juvenile facility personnel citing flower valley shopping center v st louis county 528 sw2d 749 754 mo banc 1975 state ex rel spink v kemp 365 mo 368 283 sw2d 502 514 1955 | [
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and that “[i]t is simply best just to go to bed when that occurs.” JA 462 Getter from Mitchell K. Schwaber, M.D., to Kenneth A. Miller dated October 28, 2002). In the context of this case and this episodic disease, the ALJ has failed adequately to explain why Dr. Schwaber’s opinion (if not the opinions of other treating doctors) should not be treated as a valid medical opinion regarding “the frequency and duration of the disease’s exacerbations” rather than an opinion “on issues reserved to the Commissioner.” See Groskreutz v. Barnhart, 108 Fed.Appx. 412 (7th Cir.2004) (“The ALJ erroneously disregarded [a physician’s] opinion regarding how much weight [the applicant] could lift and how many days of work she may have to miss.”); Alexander v. Barnhart, 74 Fed.Appx. 23 (10th Cir.2003) (<HOLDING>); Abendroth v. Barnhart, 26 Fed.Appx. 580 (7th Holdings: 0: holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations 1: holding that the alj erred by failing to mention the contrary opinion of a treating physician 2: recognizing that the alj erred in disregarding a treating physicians opinion that a disabilitybenefits applicant might miss a day a week of work and need to lie down twice a day 3: holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician 4: recognizing treating physicians opinion that he would expect the applicant to miss more than two or more days of work per month as an opinion regarding the nature and severity of a medical condition that is entitled to controlling weight if wellsupported by medical findings and not inconsistent with other substantial evidence | [
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Scott, 172 F.3d at 966-67. 1. 11 U.S.C. § 727(a)(4)(A) NEL contends that 11 U.S.C. § 727(a)(4) should have precluded discharge. This section provides that a discharge does not apply to a debtor who, among others, “knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” In order for this section to preclude discharge, NEL must establish by a preponderance of the evidence that: (1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case. See, e.g., Lee Supply Corp. v. Agnew (In re Agnew), 818 F.2d 1284, 1289-90 (7th Cir.1987); see also Scott, 172 F.3d at 966-67 (<HOLDING>). A creditor can establish , fraudulent intent Holdings: 0: holding that the proper standard of proof is preponderance of the evidence 1: holding preponderance standard applies to 11 usc 727a objections 2: holding that the standard of proof for the dischargeability exceptions in 11 usc 523a is the preponderance of the evidence standard 3: holding that the preponderance of the evidence standard applies to 523 claims 4: holding that the preponderance standard is generally constitutional | [
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appeKant’s objections when Cook explained that the taxes, “1040” and “941,” reflected on the exhibits were personal income tax and an employment tax (social security) withholding. Cook also testified as to when the taxes accrued and that appeKant had paid $10,289.51, $13,551.60 and $14,-411.81 to satisfy income tax Kens and $60,-981.06 for the release of the employment tax, aK of which the certificates reflected. In his point of error, appeKant urges that the trial court erred in overruling an objection “concerning the reasons and detaüs” as to his tax debt. He has not pointed out where this specific objection was made if independent of his “prejudicial” and relevancy objections. We have found no such specific objection. See Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986) (<HOLDING>). AppeKant expressly bases his argument on Holdings: 0: holding that appellant did not preserve his complaint for review because the grounds raised on appeal did not comport with those urged to the trial court as justifying suppression 1: holding that complaint on appeal must be the same as that presented in the trial court 2: holding that defendant failed to preserve for appellate review complaint that prosecutors use of postarrest silence against defendant violated the texas constitution because complaint did not comport with defendants trial court objection based solely on the federal constitution 3: holding that an issue was not preserved for appellate review because appellants trial objection does not comport with the issue he raised on appeal 4: holding that the complaint on appeal must comport with the trial objection | [
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of a trustee who is liable to the fund. In this regard, the Report of the Senate Committee on Labor and Public Welfare states: The enforcement provisions have been designed specifically to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations.... The intent of the committee is to provide the full range of legal and equitable remedies available in both state and federal courts. S.Rep. No. 93-127, 93d Cong., 1st Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 4639, S.2d 857, 865 (N.Y.Sur.Ct.1941) (placing equitable lien upon the beneficial interest of a trustee/beneficiary who had embezzled trust property to compensate wronged beneficiaries of the trust); In re Burr’s Estate, 143 Misc. 877, 257 N.Y.S. 654 (N.Y.Sur.Ct.1932) (<HOLDING>), aff'd, 239 A.D. 774, 263 N.Y.S. 945 Holdings: 0: holding that companys president was trustee of trust funds because he had control and direction over the funds 1: holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust 2: holding that trust beneficiaries have no authority to maintain an action as third party beneficiaries of contracts between the trustee and agents of the trustee concerning the internal affairs of the trust 3: holding that the trustee of a nominee trust functions more as an agent than as a true trustee 4: holding that a trustee properly withheld trust payments owed to a prior trustee who had misappropriated trust funds | [
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complaint. On de novo review, Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-96 (9th Cir.2004), we affirm. 1. The district court properly dismissed the claim for wrongful foreclosure. Defendants had statutory authority to initiate nonjudicial foreclosure proceedings. Cal. Civ.Code § 2924(a)(1). Moreover, the statute does not allow a mortgagee to sue to determine authority to foreclose. Robinson v. Countrywide Home Loans, Inc., 199 Cal.App.4th 42, 130 Cal.Rptr.3d 811, 814 (2011); Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 121 Cal.Rptr.3d 819, 824 (2011). 2. The district court properly dismissed the claim for unjust enrichment. Even if such a theory exists in California, compare Melchior v. New Line Prods., Inc., 106 Cal.App.4th 779, 131 Cal.Rptr.2d 347, 357 (2003) (<HOLDING>), with Lectrodryer v. Seoul-Bank, 77 Holdings: 0: holding that a cause of action based on unjust enrichment does not require fault or illegality on the part of the defendant 1: holding that erisa does not permit a plaintiff to assert an independent federal common law cause of action such as unjust enrichment to enforce the terms of an erisa plan thus to the extent plaintiffs third cause of action for unjust enrichment is brought pursuant to a federal common law right it must be dismissed 2: holding that although money had and received and unjust enrichment were pled as separate causes of action they are really the same cause of action 3: holding that cause of action for unjust enrichment accrues upon payment of sum giving rise to duty of restitution 4: holding that there is no cause of action in california for unjust enrichment | [
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(defining “right” as claim that is “recognized or secured by law.”). In that situation, the triggering event that would vest the right to impose New York’s successor-liability law on Crown would be the entry of a final judgment, not the filing of a suit. See Dickson v. Navarro County Levee Improvement Dist. No. 3, 135 Tex. 95, 139 S.W.2d 257, 259 (1940); Durham Transp. Co. v. Beettner, 201 S.W.3d 859, 875 (Tex.App.-Waco 2006, pet. denied); Walls, 900 S.W.2d at 122; Trahan v. Trahan, 894 S.W.2d 113, 119 (Tex.App.-Austin 1995, writ denied); Houston Chronicle Publ’g Co., 798 S.W.2d at 589; see also Pimienta, 110 F.Supp.2d at 548; Thompson v. Miller, No. 03-98-00627-CV, 1999 WL 549205, at *2, 1999 Tex.App. LEXIS 5538, at *4 (Tex.App.-Austin 1999, no pet.) (not designated for publication) (<HOLDING>). Without a final judgment, Satterfield did not Holdings: 0: holding that claimant was not required to show monetary loss to claimants corporations in order to receive wage loss benefits where claimant was unable to perform his duties and had to reassign other employees to complete his duties even though he had authority to draw wages from the corporation due to his ownership interest 1: holding that trial counsel did not abuse its discretion by denying a continuance where appellant failed to specify the evidence which might have been revealed if the continuance had been granted and counsel had been afforded the opportunity to investigate further 2: holding that any right claimant might have had to receive certain information prior to statutes amendment was not vested because his lawsuit had not been resolved 3: holding that the district court had no right to apply the statute of limitations sua sponte because it had been waived 4: holding a claimant who refuses to provide financial information necessary to ascertain whether a claimant is working may have his indemnity benefits suspended until such information is provided | [
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that as a matter of law, a parent corporation cannot be a stranger to its subsidiaries’ business or contractual relations, and that no claim can be sustained against a parent for tortious interference with such relations.” Here, while Shekoy occupies the role of subsidiary and not parent, we are persuaded that the interwoven web of business arrangements likewise applies in this context and that Shekoy, as a subsidiary, cannot be a stranger to its parent Yoke’s business relations, which included the relationship between Cellchem and its customers. Therefore, Shekoy, through its parent, had a business relationship with Cellchem and its customers and is not a stranger to that relationship. Perry v. Unum Life Ins. Co. of America, 353 FSupp.2d 1237, 1240-1241 (III) (B) (N.D. Ga. 2005) (<HOLDING>). While it is clear that the Appellants were Holdings: 0: recognizing the tort of wrongful interference with anothers business relations 1: holding that sovereign immunity applies to claims alleging tortious interference with business relations because the tort requires proof of malice 2: holding that the statute of limitations for a claim of tortious interference with contractual relations begins to run when the contract in question has been breached 3: recognizing the supreme court of georgias endorsement in atlanta market center of a line of cases reducing the number of entities against which a claim of tortious interference with business relations may lie and in that context in re hercules and its finding that atlanta market center found that a parent corporation cannot be a stranger to its subsidiaries business or contractual relations 4: holding former employees breach of fiduciary duties to employer satisfies the sturges prerequisites for a claim of tortious interference with prospective business relations | [
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from the anxiety of incarceration). c. The Possibility that the Defense Will be Impaired The “impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony ‘can rarely be shown.’ ” Doggett, 505 U.S. at 655 (citing Barker, 407 U.S. at 532). Prejudice may be evident if witnesses are unable to recall accura of trial will be approximately thirty-five months. Because, “[e]xcessive delay presumptively compromises the reliability of trial in ways neither party can prove or, for that matter, identify,” Francis, 63 V.I. at 754, the Court finds that the 1,056 day (approximately 35 months) delay in this case is presumptively prejudicial. Accord, United States v. Ferreira, 665 F.3d 701, 706-08 (6th Cir. 2011) (<HOLDING>). However, “presumptive prejudice ... is Holdings: 0: holding prejudice created by improvements to and conveyance of land during pendency of delay 1: holding that a tenmonth delay did not bar the motion where there was no demonstration of prejudice and because disqualification is in the public interest where there is an ethical violation 2: holding that 35month delay created a presumption of prejudice without demonstration of specific cause 3: holding that the district courts decision to delay jury instructions and deliberations did not warrant a presumption of prejudice 4: holding that a twoyear delay did not bar the motion where there was no demonstration of unfair prejudice | [
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judges of the United States District Court for the Southern District of New York have expressly concluded that Mr. Kohlmann is qualified to provide expert testimony on terrorism similar to that which he intends to provide in this case. United States v. Sabir, 2007 WL 1373184, at *1; United States v. Paracha, 2006 WL 12768, at * 18. In Paracha, Judge Sidney Stein found that Mr. Kohl-mann “possesses sufficient education, training and experience to qualify as an expert on the origins, leadership and tradecraft of the al Qaeda organization.” 2006 WL 12768, at *20. And in Sabir, Judge Loretta Preska found that Mr. Kohlmann was qualified to offer testimony on the origins and history of al Qaeda as well as Azzam Publications. See 2007 WL 1373184, at *8-9; see also Aref, 2007 WL 603508, at *16 (<HOLDING>). The Court agrees with Judges Stein and Holdings: 0: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 1: holding that mr kohlmann could provide expert testimony on political groups in bangladesh 2: holding any error in admitting testimony of expert witness was harmless because it was cumulative of same testimony given by six other expert witnesses who testified at trial 3: holding that a request for funds for expert testimony must show inter alia that the testimony is crucial and is subject to varying expert opinions 4: holding expert testimony remedies speculation by the court | [
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to explain adequately the basis for its interpretation of “persistent” as applied to the evaluation of tinnitus under pre-1999 DC 6260. Suppl. Br. at 3. The Board reached its decision (1) without referring to the Secretary’s conclusion that an attribute of constancy was not well suited for rating a condition that, “under certain circumstances, comes and goes”, 59 Fed.Reg. at 17,297; (2) by paraphrasing only selectively from the Secretary’s 1994 Supplementary Information, ibid.; and (3) by basing its conclusion solely on one dictionary definition of “persistent” (R. at 8). See Theiss, 18 Vet.App. at 210-11 (criticizing General Counsel precedent opinion, upon which Board had relied, for “selective use of a narrow set of definitions”); see also Suozzi v. Broim, 10 Vet.App. 307, 311 (1997) (<HOLDING>). In this regard, the Court notes that Holdings: 0: holding courts must adhere to legislative intent when interpreting a statute 1: holding that secretary defines corroboration far too narrowly in interpreting 38 cfr 3304f 2: holding federal and not state law defines the term registrant 3: holding the court should only apply the doctrine narrowly and only under exceptional circumstances 4: holding that in interpreting a contract the actual purpose and intent of the parties must be derived | [
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in charge of other state actors who actually committed the violation.” Id. Rather, “the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” Id. at 994-95 (quotations and citations omitted). Mr. Spencer’s filings do not provide a basis for the imposition of supervisor liability. And in the supervisors’ official capacities, Mr. Spencer was required to demonstrate that his injuries were the result of a municipal “policy or custom.” Novitsky v. City of Aurora, 491 F.3d 1244, 1259 (10th Cir.2007) (“A municipality cannot be held liable for its officers’ actions under § 1983 unless those actions were caused by a policy or custom of the municipality.”); Myers v. Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1316 n. 2 (10th Cir.1998) (<HOLDING>). A “ ‘custom’ ... mean[s] an act that, Holdings: 0: holding that punitive damages are not recoverable against a state official sued in his or her official capacity 1: recognizing that suits against municipal officers acting in an official capacity are treated the same as those against a municipality 2: holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under 1983 3: holding that an official capacity suit should be treated as a suit against the entity 4: holding that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the officials office | [
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evidence to rebut the presumption of ownership created by the certificates of title; and (3) the facts of this case do not give rise to creation of a trust. It is accordingly ORDERED that the Trustee’s objection at ECF No. 14 is SUSTAINED and the three vehicles are determined to be non-exempt property of this bankruptcy estate. ORDERED. 1 . See [ECF No. 1], at 12. 2 . See [ECF No. 17], at 5. 3 . Fla. Stat. 710.111(1)(f). 4 . See [ECF No. 27-1], at 5 (the Debtor at her 341 meeting stating, "the reason they’re in my name is because to put them in their name the insurance would have been astronomical”). 5 . In re Kirk, 381 B.R. 800, 802 (Bankr.M.D.Fla.2007) (quoting Nash Miami Motors, Inc. v. Bandet, 47 So.2d 701, 703 (Fla.1950)); see also Cannova v. Corran, 92 So.2d 614, 619 (Fla.1957) (<HOLDING>) ("The presumption is that [the individual] was Holdings: 0: holding that a jury is presumed to follow the trial courts instructions 1: holding that an action brought in the name of a person adjudicated as incapacitated instead of in the name of her guardian cannot be corrected as a misnomer 2: holding arresting a person for refusing to provide his or her name violates the fourth amendment 3: holding that a jury is presumed to follow a judges instructions 4: holding that a person is presumed to own all property that is titled in her name | [
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rights and was not causally connected to plaintiff’s injury. Id. at 13-16. In addition, because Furtado was not a final policy-maker for the City, his single act of applying for an allegedly unconstitutional warrant could not create a municipal policy or custom sufficient to hold the municipality liable under § 1983. Reply Memorandum of Defendants at 5-7 (# 30); Supplementary Reply Memorandum of Defendants at 1-3 (# 36). Plaintiff responds that the search authorized by the warrant was unreasonable on its face and that a person in Furtado’s position could not have reasonably believed that the authorized search was reasonable. Memorandum in Opposition to Defendants’ Motion for Summary Judgment at 9-14 (# 24) (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (<HOLDING>); Schmerber v. California, 384 U.S. 757, 86 Holdings: 0: holding that the state courts conclusion that a suspect did not unambiguously request counsel was not unreasonable when during a postmiranda interview the suspect stated i think i would like to talk to a lawyer after which the police stopped questioning him left the room and did not resume questioning until the suspect explicitly said he did not want a lawyer and wanted to continue talking 1: holding that 20minute detention was not unreasonable where suspect gave misleading answers 2: holding that fifth amendment protection against selfincrimination requires police to notify suspect of right to counsel and to cut off interrogation once suspect invokes the right absent counsel further interrogation may not occur unless suspect initiates subsequent conversation if police initiate subsequent interrogation there can be no valid waiver of counsel even though police advise suspect of his or her constitutional rights and suspect acquiesces in the interrogation 3: holding that police officers had probable cause to arrest a suspect where the facts suggest a fair probability that the suspect has committed a crime 4: holding stomach pump of suspect unreasonable | [
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11 U.S.C. § 362(k)(l), the facts of this case are such that the USDA’s collection efforts began as a violation of the automatic stay, but ultimately became a violation of the discharge injunction upon the termination of the automatic stay once the Debtor received her discharge. The USDA notes as much, seemingly to refute the idea that any fees are warranted under 11 U.S.C. § 362(k) because the automatic stay was no longer in effect by the time Debtor’s counsel contacted the USDA. We find, however, that this is a distinction without a difference as attorney’s fees would otherwise have been available as compensatory damages under 11 U.S.C. § 105(a) for the USDA’s violation of the discharge injunction and would be analyzed under the same standard. See, e.g., In re Pratt, 462 F.3d at 17 (<HOLDING>); Bessette v. Avco Fin. Servs., Inc., 230 F.3d Holdings: 0: holding debtors are entitled to establish and recover their compensatory damages under 11 usc 105a for violations of the discharge injunction 1: holding that debtors are not barred from bringing an avoidance action under 11 usc 522f after their discharge has been granted 2: holding a bankruptcy court is empowered to reopen a bankruptcy case on its own motion under 11 usc 105a 3: holding bankruptcy court had jurisdiction to issue injunction of state court litigation against debtors principal stating this power under 11 usc 105a includes the authority to enjoin litigants from pursuing actions in other courts that threaten the integrity of the debtors estate 4: holding that a plaintiff who proves a cause of action under 1981 may recover punitive damages where the plaintiff is entitled to an award of compensatory damages even if nominal | [
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as required by § 34-36.1-3.04(c), or as a result of plaintiffs failure to timely exercise the right to exclude the property; the salient fact is that the right to exclude the real estate expired no later than January 11, 1999, when the time limit within which to withdraw the real estate expired under the terms of the declaration of condominium. Thus, in accordance with § 34-36.1-2.10(c)(4), title to unexercised declarant rights passed to the unit owners’ association as a matter of law. When a declarant fails to timely exercise his or her development or special declarant rights, those rights expire and a third party cannot thereafter revive them and convey what that third party does not own. See America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117, 131 (R.I.2004) (<HOLDING>); St. Jean Place Condominium Association v. Holdings: 0: holding that the date of the offense was material to the defense where defendant could not have anticipated from the date specified in the indictment that the state would present evidence that the crime occurred nearly two months later 1: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 2: holding that the state was estopped to argue that the 90day notice period expired on a date prior to the expiration date it cited to the claimant 3: holding that development rights automatically expired when the declarant failed to exercise them by a date specified in the declaration 4: holding the petition date is the appropriate date to value the collateral when the debtors intend to remain in the home | [
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the law was passed, as the processes of manufacture had been conducted, color was an approximate, or general indication of quality. Suppose this to be so, does it derogate from the fact that color was the standard which Congress, with the lights which it had, saw fit to adopt? Does it not tend to fortify that fact? If it be found by experience that the standard is a fallacious one, can the executive department supply the defects of the legislation? Congress alone has the authority to levy duties. Its will alone is to be sought. Id. at 700. In this case, Congress has provided a clear and unambiguous test: the quantity of soluble non-sugar solids. Following the Supreme Court in Merritt, this Court will not disturb Congress’ will. Furthermore v. United States, 32 C.C.P.A. 175, 184 (1945) (<HOLDING>); Robert G. Lynch Co. v. United States, 49 Holdings: 0: 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 1: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 2: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate 3: holding that mixing just enough cotton with wool to secure a lower rate of duty with no valid commercial purpose for the addition was within the importers legal right 4: holding that the addition of a enough cereal to dog food to place it in a tariff provision with a lower rate of duty was within the importers right to fashion merchandise to obtain a lower rate of duty | [
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for “sums due in connection with equipment and materials furnished and workmen employed in the construction of the M/V Gulf Tiger.” Complaint at ¶¶ 9-10. Gulf Fleet alleges that it has a privilege under article 3237(8) because it paid the vendors who supplied the materials, equipment, and labor to the construction of the vessel. Thoma-Sea contends that mere payment of vendors does not give rise to a privilege in favor of Gulf Fleet under article 3237(8) because the privilege is limited to suppliers who actually furnish materials to a vessel, or to laborers employed in the construction of the vessel. The scope of the article 3237(8) privilege is a question of law that is appropriate for a Rule 12(b)(6) motion. Louisiana state law privileges are stricti juris; they cannot be a.1860) (<HOLDING>); Hill v. Phoenix Tow, 2 Rob. (LA) 35, 1842 WL Holdings: 0: holding the limitation fund liability of a defendant shipowner may be increased to include his interest in the value of all vessels engaged in a common enterprise or venture with the vessel aboard which the loss or injury was sustained 1: holding a contract clause stating that the yard shall in no case be held responsible for the damages resulting from any loss of use or profit of the vessel to be unambiguous 2: holding that a party who lends money to be used in the repairs of a vessel or to furnish the vessel with supplies does not have a privilege against the vessel 3: holding that a creditor for advances or loans in money made to the owner and applied to the use of a vessel has no privilege allowed him by law because he is not subrogated to the rights of those whose privileged claims have been paid out of the money loaned 4: holding that a houseboat is a vessel capable of being subject to a maritime lien as the fact that she has no motive power and must be towed does not deprive her of the status of a vessel | [
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always been interpreted to provide for a private right of action. See Herman & MacLean v. Huddleston, 459 U.S. 375, 385-87, 103 S.Ct. 683, 688-90, 74 L.Ed.2d 548 (1983) (expressly interpreting section 10(b)’s private right of action as consistent with' securities laws’ “broad remedial purposes”). While some courts did not find the requisite congressional intent to infer a private right of action from section 17(a), see Touche Ross & Co. v. Redington, 442 U.S. 560, 574-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979) (legislative intent is the primary factor to consider when addressing whether a private right of action exists), other circuits found no meaningful distinction between section 17(a) and section 10(b). Compare Daniel v. Teamsters, 561 F.2d 1223, 1244-46 (7th Cir.1977) (<HOLDING>), and SEC v. Texas Gulf Sulphur Co., 401 F.2d Holdings: 0: holding that a private right of action exists 1: recognizing that no private right of action exists for subsection a violations 2: recognizing private right of action 3: holding that erisa creates no private right of action 4: holding that no private right of action exists under any of the provisions of the airport and airway improvement act | [
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This latter principle has given rise to Fifth Amendment claims in the context of court-ordered therapy requiring an admission of criminal conduct.- See generally William Wesley Patton, The World Where Parallel Lines Converge: The Privilege Against Self-Incrimination in Concurrent ■ Civil and Criminal Child Abuse Proceedings, 24 Ga. L.Rev. 473 (1990); Jessica Wilen Berg, Note, Give Me Liberty or Give Me Silence: Taking a Stand on Fifth Amendment Implications for Court-Ordered Therapy Programs, 79 Cornell L.Rev. 700 (1994); Scott Michael Sol-koff, Note, Judicial Use Immunity and the Privilege Against Self-Incrimination in Court Mandated Therapy Programs, 17 Nova L.Rev. 1441 (1993). Courts have viewed such situations differently. E.g., Mace v. Amestoy, 765 F.Supp. 847, 850-52 (D.Vt.1991) (<HOLDING>); Gyles v. State, 901 P.2d 1143,1148-50 (Alaska Holdings: 0: holding state had violated the defendants fifth amendment rights and consequently was prohibited from using any of the information revealed during courtordered treatment program in later separate criminal prosecution 1: holding defendants fifth amendment rights had been violated when his probation was revoked based on his failure to complete a sexual treatment program that required incriminating admissions 2: recognizing that probation condition required probationer to enter into and successfully complete a sex offender treatment program but finding that no condition of probation was imposed that required him to admit to a counselor the sexual acts charged 3: holding that a defendants probation cannot be revoked solely on the basis of hearsay 4: holding that a defendants fifth amendment rights were violated when an interpreter was withdrawn by the court | [
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See California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 92, 102 S.Ct. 172, 70 L.Ed.2d 262 (1981); see also Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 679, 124 S.Ct. 2788, 159 L.Ed.2d 690 (2004) (Scalia, J., dissenting) (defining “prurient interest” as “seek[ing] a sexual response from”). Whether an image appeals to a prurient interest is a question of fact for a jury to determine. See Smith v. United States, 481 U.S. 291, 300-01, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) ( ss of whether or not they subjectively wish to view sexually explicit or obscene materials, may be treated by the State as legally unable to consent to do so. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14, 214 n. 10-11, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (<HOLDING>). Such is the case under 18 U.S.C. § 1470, in Holdings: 0: recognizing the states undoubted police power to protect children its power to adopt more stringent controls on communicative materials available to youths than on those available to adults and its ability to suppress from minors material obscene as to them 1: recognizing broad district court discretion to stay proceedings as an incident to its power to control its docket 2: holding that the power to terminate a contract atwill subsumes the power to modify its terms 3: holding that the subpoena power of a court cannot be more extensive than its jurisdiction 4: recognizing the federal courts ability to impose inherent power sanctions on parties | [
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undocumented utilization of the dump by the general population over a protracted period of time, the contamination could never realistically be traced to particular contributors. • The cases relied upon by the Town do not support such a counter-intuitive proposition. In Delaney, the district court had to determine whether the Town of Carmel could be held strictly liable as an owner under CERCLA because it entered into leases with private landowners to allow septic waste haulers to dispose of such waste on the landowners’ property. In answering this question in the negative, the court concluded that plaintiffs did not present “sufficient allegations of ‘site control’ to render the leaseholder Carmel a CERCLA ‘owner.’ ” Delaney, 55 F.Supp.2d at 259; but see Commander Oil, 215 F.3d at 329 (<HOLDING>). The court further rejected plaintiffs’ Holdings: 0: recognizing cercla successor liability 1: holding that notice not required because cercla is a strict liability statute 2: holding substantial continuity is untenable as a basis for successor liability under cercla 3: holding that state law determines successor liability under cercla 4: holding that site control alone is an improper basis for imposition on lessees of owner liability under cercla | [
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to third parties because trademark law does not specifically excuse the licensor from accepting performance from a person other than the original licensee. Second, NCP argues that even if trademark law did make such an excuse for the licensor, NCP had consent to license the trademark from rights derived from the Settlement and License Agreements. We agree with the Bankruptcy Judge and hold that the Appellant had no rights to the Blanks’ trademark that were as sumed by NCP in its bankruptcy proceedings. 1. Section 365(c)(1) A debtor in possession, as well as a trustee, may, subject to the bankruptcy court’s approval, “assume any executory contract from itself as debtor.” City of Jamestown v. James Cable Partners, L.P. (In re James Cable Partners, L.P.), 27 F.3d 534, 537 (11th Cir.1994)(<HOLDING>) (applying 11 U.S.C. § 365(a)); K-4, Inc. v. Holdings: 0: holding creditor willfully violated the automatic stay in refusing after notified of debtors bankruptcy filing to turn over debtors funds in his possession 1: holding that the trustees preference actions against each of the defendants was precluded as a matter of law by the debtors earlier assumption of its agreements with them 2: holding that debtors in possession generally have rights powers and duties of trustees 3: holding that possession of a pistol in public requires knowing possession 4: holding that the csu board of trustees and individual trustees sued in their official capacity are a political arm of the state and as such are immune from suit | [
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Robert Doyle Murphy appeals from the district court’s summary judgment in favor of the defendants in Murphy’s 42 U.S.C. § 1983 action alleging his due process rights were violated when he was disciplined for possessing a weapon found in his cell. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Blanford, v. Sacramento County, 406 F.3d 1110, 1114 (9th Cir.2005), and we affirm. The district court properly granted summary judgment on Murphy’s due process claim because discovery of the weapon in Murphy’s cell was “some evidence” to support the disciplinary actions. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (<HOLDING>). We are not persuaded by Murphy’s contention Holdings: 0: holding that where the conviction was final the disciplinary commission was not authorized to assume the roles of both an accusatory tribunal and the ultimate determiner of guilt and that the separation of responsibility between the disciplinary board and the disciplinary commission provides constitutional due process 1: holding that due process requires that the findings and actions of a disciplinary prison board be supported by some evidence in the record 2: holding that depriving inmates of statecreated right to goodtime credits in prison disciplinary proceedings requires due process 3: holding because defendant does not argue in his brief that these findings of fact are not supported by evidence in the record this court is bound by the trial courts findings of fact 4: holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence | [
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at 498. The Court recognizes that defendant, with some justification, is frustrated by plaintiffs careful limitation of her claim to the jurisdictional limit, as amended and as it previously existed. Defendant’s removal is based solely on plaintiffs settlement demand of $75,000.00. This is insufficient to establish the jurisdictional amount for two reasons. First, the mere existence of a settlement demand is not dispositive of the issue of the jurisdictional amount. See, e.g., King v. Wal-Mart Stores, Inc., 940 F.Supp. 213, 217 n. 1 (S.D.Ind.1996); Saunders v. Rider, 805 F.Supp. 17, 18-19 (E.D.La.1992). Second, for diversity jurisdiction to attach, the amount in controversy must exceed the value of $75,000.00. 28 U.S.C. § 1332(a); see Larkin v. Brown, 41 F.3d 387, 389 (8th Cir.1994) (<HOLDING>). Assuming arguendo that plaintiffs case is Holdings: 0: holding under former jurisdictional limit that diversity jurisdiction did not exist where plaintiff sought damages of exactly 5000000 1: holding that the crossappeal time limit is jurisdictional 2: holding that because there was complete diversity when the action commenced diversity jurisdiction was not defeated by the addition of a nondiverse plaintiff which was not indispensable 3: holding 30day limit to be mandatory and jurisdictional 4: holding that a bankruptcy court could not use jurisdictional bootstraps to exercise jurisdiction that would not otherwise exist | [
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that CGG waived its statute of limitations affirmative defense by failing to raise it in response to Statom's motion for partial summary judgment. In each of these cases, summary judgment was ordered against the defendant, and the defendant waived its affirmative defenses by failing to raise the defenses in response to the plaintiff's motion for summary judgment. See, e.g., Flynn, 403 N.E.2d at 1126 (reversing the trial court's grant of summary judgment to defendants, granting partial summary judgment to the plaintiff, and noting that, on remand, the defendants could not argue their affirmative defenses because they had waived the affirmative defenses by failing to argue them in response to the plaintiff's motion for partial summary judgment); FI & G Ortho, 823 N.E.2d at 731 (<HOLDING>); Daniels, 678 N.E.2d at 430 (holding that the Holdings: 0: holding state is required to raise procedural bar as affirmative defense or it is waived 1: holding that defendant does not waive an affirmative defense if defendant raises it at a pragmatically sufficient time such as summary judgment and the defendants failure raise the affirmative defense in its answer did not cause the plaintiff prejudice 2: holding that arguments not presented to the district court in response to a motion for summary judgment are waived 3: holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second 4: holding that the defendants waived their affirmative defense of unenforceability by failing to raise the defense in response to the plaintiffs motion for summary judgment which the trial court granted | [
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stamp. The State argued that this fact made the article and photo in the September 18 paper irrelevant. In response, Mr. Schaefer pointed out that the victim could have seen the photo on either September 16 or 17. However, when Mr. Schaefer could produce nothing to show that Plott’s photo was in any paper other than the September 18 edition, the trial court denied the motion to suppress without hearing any evidence. In his rule 3.850 motion, Plott argued that Mr. Schae-fer was ineffective for failing to obtain all of the newspaper articles and for failing to bring them to the hearing. In summarily denying relief on this ground, the trial court held that this issue was procedurally barred because it was raised on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (<HOLDING>). However, the issue raised on direct appeal Holdings: 0: holding that the caldwell claim is procedurally barred because it could have been raised on direct appeal but was not 1: holding that a caldwell claim is procedurally barred if it is not raised on direct appeal 2: holding that claims raised on direct appeal are procedurally barred from consideration in a rule 3850 motion 3: holding that defendants 3850 motion for postconviction relief was procedurally barred as successive where the defendants current rule 3850 motion is one that could have or should have been raised in his first rule 3850 motion 4: holding that a similar claim in a rule 32 petition was procedurally barred because it was raised at trial and because it was raised on direct appeal | [
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We agree with KR. that Druhan was not appointed pursuant to the applicable rules governing such appointments and that his orders are therefore void. Initially, we note that KG.S. argues that KR.’s challenge of Druhan as the temporary probate judge is untimely. K.G.S. is correct; K.R. did not file her original mandamus petition with the Court of Civil Appeals until 17 days after Dru-han’s August 3, 2015, order denying K.R.’s supplemental motion requesting that Dru-han recuse himself. This is beyond the presumptively reasonable 14-day time in which to file a mandamus petition in an adoption proceeding. See Rule 21(a)(3) and § 26-10A~26(a). Regardless, we may consider K.R.’s argument because it concerns the probate court’s jurisdiction. See Bush v. State, 171 So.3d 679 (Ala.Crim.App.2014) (<HOLDING>). The timeliness of K.R.’s challenge to Holdings: 0: holding that a defendant was not entitled to a relief under section 2255 when he asserted that the sentencing judge who was not the trial judge was influenced by the sentence imposed by the trial judge on a codefendant 1: holding that an order or judgment issued by a disqualified judge is void but not because the court lacked jurisdiction 2: holding that an order purporting to amend a judgment was void because it was entered after the trial court had lost jurisdiction to rule on the parties postjudgment motions 3: holding that the improper appointment of a judge to a case deprived the court of jurisdiction to rule on any motions pending before that judge the orders entered by that judge were entered without jurisdiction of the court and were thus void 4: holding that the appointment of a pro tempore judge vests in him or her the powers of a judge of the court during the period specified in the assignment | [
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FAC contains no allegation that Lime Wire ever attempted to obtain or purchase a license from any of the counter-defendants or their respective joint ventures. Lime Wire’s retail competitors may have “faced excessive wholesale prices” for licenses as a result of the alleged price-fixing scheme (id. ¶ 36), but Lime Wire itself has n 18 S.Ct. 275, 139 L.Ed.2d 199 (1997)), Lime Wire has not established that it suffered injury-in-fact stemming from any such agreement. To the extent Lime Wire claims that it was an interbrand retail competitor of counter-defendants’ joint ventures, Lime Wire lacks standing to challenge the retail price-fixing agreement because the FAC contains no allegation that the fixed retail prices were predatory. See Atlantic Richfield, 495 U.S. at 339, 110 S.Ct. 1884 (<HOLDING>). Even accepting as true Lime Wire’s allegation Holdings: 0: holding that vertical maximum pricefixing agreement does not cause a competitor antitrust injury unless it results in predatory pricing 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 a plaintiff must show antitrust injury in order to bring an antitrust lawsuit 3: holding that injury to broker through loss of commission was not antitrust injury 4: holding that an antitrust injury is a necessary element of a 2 claim | [
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PER CURIAM. AND NOW, this 23rd day of February, 2010, the Petition for Allowance of Appeal is GRANTED. The order of the Superior Court is VACATED, and the matter is REMANDED to the Superior Court for consideration of whether the trial court improperly permitted newly-discovered evidence regarding the alleged contents of a telephone conversation between Petitioner and his wife to be introduced at trial over Petitioner’s objection, as the Superior Court erroneously found the issue to be waived because Petitioner did not also additionally request a mistrial. See Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237, 1242 (1976) Holdings: 0: holding that where defense counsel made a timely objection and it was overruled by the trial court a further request for a mistrial was unnecessary and futile since the reasons for the objection were apparent and the trial courts denial of the objection indicated its belief the jury could properly hear the matter which was the subject of the objection 1: holding that an objection was adequate when the judge cut short the objection and the defendant was not afforded the opportunity to explain his objection fully 2: holding that the foundational prerequisites are unnecessary where the test result is admitted in evidence without objection when evidence of one of the issues in the case is admitted without objection the party against whom it is offered waives any objection to the evidence and it may be properly considered even if the evidence would have been excluded upon a proper objection 3: holding that objection was timely even though objection was not made until after question was answered 4: holding that to preserve an alleged error in the admission of evidence a timely objection must be made to the introduction of the evidence specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court | [
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who assaults ... his or her spouse ... is guilty of a misdemean- or....” Because the record is incomplete as to what evidence was introduced at Sanders’ criminal trial, we cannot determine whether anything obtained as a result of the allegedly unlawful entry was essential to Sanders’ subsequent conviction. A remand is therefore necessary for further factual developments as to Heck’s applicability. Probable Cause Hearing Sanders’ second claim, that he was not afforded a prompt probable cause hearing, is unaffected by Heck, as that claim is for “monetary damages for a constitutional violation unrelated to [the plaintiff’s] ultimate conviction of the substantive offense.” Alkire v. Irving, 330 F.3d 802, 816 n. 10 (6th Cir.2003); Buckenberger v. Reed, 342 Fed.Appx. 58, 63 (5th Cir.2009) (<HOLDING>). Indeed, in Gerstein v. Pugh, the case which Holdings: 0: holding that the fourth amendment does not mandate payment and therefore such claims are not within the jurisdiction of the court 1: holding that claims arising under the sixth amendment fall outside the jurisdiction of the court of federal claims 2: recognizing the range of discretion of the trial judge 3: holding such claims fall within the narrow range of cases that are not barred by heck because a determination of the timeliness of the plaintiffs probable cause hearing will not affect the validity of his conviction 4: holding that as to allocation of burdens it is not material that the facts of the case and the causes of the collision are peculiarly within the knowledge of the respondents we are not aware of any ground on which such an inconvenience can affect the rule of law which governs the rights of the parties internal quotation marks omitted | [
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to the Doctrine of Exhaustion SVC argues that, even if it had actual or constructive notice that Commerce was applying the 1996 regulations, any failure to exhaust its administrative remedies nevertheless should be excused under two established exceptions to the doctrine of exhaustion — the “futility” exception, and the exception for “pure questions of law.” See generally Pl.’s Reply Brief at 12-14; Pl.’s Surreply Brief at 20-21. The Court of Appeals has recognized that “[a] party need not exhaust [its] administrative remedies where invoking such remedies would be futile.” Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1575 (Fed.Cir.1990) (citation omitted); see also McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (<HOLDING>) (citation omitted). Emphasizing that it first Holdings: 0: recognizing but finding inapplicable pure question of law exception to doctrine of exhaustion 1: recognizing futility exception to doctrine of exhaustion where agency was powerless to grant relief sought 2: recognizing the futility exception to the tribal exhaustion rule 3: holding that exhaustion is required even where the relief sought is not available in the administrative process 4: recognizing futility exception in context of 2241 petition | [
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claimant. Id. Smith contacted Prudential regarding his second appeal on August 1, 2005. In this letter, he did not formally request an appeal; however, on August 31, 2005, he confirmed in writing through his attorney that his August 1 letter was intended as a request for an appeal. Thus, Prudential’s review period began to run on August 31, 2005 at the latest; it expired on October 15, 2005, well before Prudential contacted Smith to seek an extension or to request further documentation. Although Pru dential did notify Smith on November 18, 2005 that it was taking a 90-day extension, by this time it was too late — the response period had expired and Smith’s appeal had been deemed denied. See Schmir v. Prudential Ins. Co. of Am., No. 03-187, 2003 WL 22466168, at *3 (D.Me. Oct. 30, 2003) (<HOLDING>). Because Smith exhausted his administrative Holdings: 0: holding that appellate court had jurisdiction over claimants appeal from the denial of his motion for reconsideration separable from underlying judgment despite claimants failure to appeal from the underlying judgment because the reconsideration motion raised changes in the relevant medical criteria 1: holding that appeal from denial of rule 60b motion raised for review only the district courts order of denial and not the underlying judgment itself 2: holding that although the denial notice that claimants received failed to satisfy the requirements of due process the only claimants who could have been injured by the inadequacy are those who detrimentally relied on the inadequate denial notice 3: holding that failure to advise of right of appeal entitles defendant to belated appeal 4: holding that prudential could not avoid the effectiveness of a deemed denial by issuing a belated response to claimants appeal | [
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whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). We have held that “Counsel has an obligation to consult with his client on important decisions and to keep him informed of important developments in the course of the prosecution.” Diaz, 930 F.2d at 834. This obligation includes the duty to inform a defendant of any plea offers. See id. at 834-35; see also Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. Unit B Mar. 1981) (<HOLDING>); Stano v. Dugger, 921 F.2d 1125, 1146 (11th Holdings: 0: holding that where a defendant pleads guilty or withdraws a guilty plea his attorney must inform him of all of the available options and possible consequences and the failure to do so can fall outside the range of competence required by attorneys in criminal cases 1: holding that a failure to inform the defendant of the minimum possible sentence meant that the defendant did not fully understand the consequences of his plea and his rights were therefore automatically substantially affected 2: holding that counsels failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance 3: holding that a defendant must have knowledge of the likely consequences of entering the guilty plea in order for a plea to be voluntary and knowing 4: holding that the defendants guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences of his guilty plea | [
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include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent. Id. at 479-80, 164 S.E.2d at 659 (internal quotation marks omitted); see also Tyler v. Commonwealth, 254 Va. 162, 167, 487 S.E.2d 221, 224 (1997) (<HOLDING>); Turner v. Commonwealth, 218 Va. 141, 148, 235 Holdings: 0: holding that the employer was not the insurers agent 1: 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 2: holding that fingerprint evidence coupled as it was with attendant circumstances was sufficient to prove that the defendant was the criminal agent 3: holding that admission of a summary chart was harmless because it was clear that the summary did not mislead the jury and the evidence introduced at trial was more than sufficient to prove the elements as to each defendant 4: holding that the abstract of judgment coupled with the information furnished sufficient proof that the defendant was convicted of all the elements of the generic crime of burglary | [
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that accepting the latter position would create the perception that at least one of the courts was misled. Id. at 750-51, 121 S.Ct. 1808; Eastman v. Union Pacific R.R. Co., 493 F.3d 1151, 1156 (10th Cir.2007). Accordingly, courts consistently hold that a debtor who conceals a legal claim and denies owning the asset in bankruptcy is judicially estopped from later pursuing that claim to the debtor’s personal benefit. See, e.g., Cannon-Stokes, 453 F.3d at 448; Jethroe v. Omnova Solutions, Inc., 412 F.3d 598 (5th Cir.2005); Barger v. City of Cartersville, 348 F.3d 1289, 1296 (11th Cir.2003). But here it is undisputed that Matthews did not conceal her administrative complaints during the bankruptcy proceedings. See Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 898 & n. 1 (6th Cir.2004) (<HOLDING>); see also InterGen N.V. v. Grina, 344 F.3d Holdings: 0: holding that judicial estoppel does not preclude a chapter 7 trustee from bringing a suit which the debtor failed to list on her schedules 1: holding that claims for alleged legal malpractice and breach of fiduciary duty against attorneys that represented the chapter 11 debtor in possession belonged to the bankruptcy estate and upon conversion of the case to chapter 7 such claims belonged to the chapter 7 trustee as successor to the debtor in possession 2: holding that a chapter 7 trustee was the only person with authority to bring a cause of action after the appointment of a trustee 3: holding that judicial estoppel was inapplicable where debtor omitted potential claim against defendant from chapter 7 schedules but orally disclosed it to the trustee during the meeting of creditors 4: holding in a case where a chapter 11 trustee was appointed after a period during which the debt or had operated as debtor in possession that a chapter 11 trustee has two years from the date of his appointment not from the commencement of the chapter 11 case to bring avoidance actions | [
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Fuentes, 271 Ill. App. 3d 1071, 649 N.E.2d 519 (1995), which interpreted section 2 — 1202(c), defendants contend that the circuit court here lost its jurisdiction even though no Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) finding was made as to the directed verdict’s immediate appealability. Doe, relying on Rule 304(a), argues that defendants’ argument is flawed conceptually in that it fails to recognize that a posttrial motion is not a prerequisite for a trial court to retain jurisdiction to vacate or modify a directed verdict where other claims in the matter remain pending and undetermined. Doe further argues that a posttrial motion is not ever required after a directed verdict. In support of this position, Doe relies on Keen v. Davis, 38 Ill. 2d 280, 282, 230 N.E.2d 859 (1967) (<HOLDING>), and Fitzpatrick v. ACF Properties Group, Holdings: 0: holding that a posttrial motion is not required after a grant of a directed verdict 1: holding that directed verdict does not violate seventh amendment 2: holding defendants failure to file motion for judgment notwithstanding verdict did not prevent district court from granting motion for directed verdict for which court reserved decision 3: holding that the trial court erred in granting the school boards posttrial motion for directed verdict because although the school board timely moved for a directed verdict during trial it did not serve its motion for directed verdict until the eleventh day after the verdict 4: holding a directed verdict motion stating specific grounds is a prerequisite for a subsequent motion for judgment notwithstanding the verdict | [
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that “[njothing in ... the Kansas tort claims act shall be construed as a waiver by the state of Kansas of immunity from suit under the [Eleventh] Amendment”); id. § 39-7,137 (stating same with respect to certain administrative proceedings for Kansas social welfare program). Accordingly, we hold that Kan. Stat. Ann. § 76-723 conferred upon KSU the power to waive Eleventh Amendment immunity. III. In conclusion, we AFFIRM the decision of the district court for the foregoing reasons. 1 . Because neither the bankruptcy court nor the district court relied on § 106(a) of the Bankruptcy Code, we do not address in this case whether it is constitutional. See, e.g., Sacred Heart Hosp. of Norristown v. Pennsylvania (In re Sacred Heart Hosp. of Norristown), 133 F.3d 237, 243-45 (3d Cir.1998) (<HOLDING>); Department of Transp. & Dev. v. PNL Asset Holdings: 0: holding 11 usc 106a unconstitutional to the extent that it purports to abrogate eleventh amendment immunity 1: holding that the tia does not abrogate states immunity under the eleventh amendment 2: holding that congress did not intend to abrogate eleventh amendment immunity in enacting 42 usc 1983 3: holding that 106a b offend the eleventh amendment 4: holding that although congress expressed its intent to abrogate eleventh amendment immunity in 11 usc 106a it could not do so under seminole tribe | [
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was clearly untimely. The BIA also properly held that Zhang’s conversion to Christianity was a change in his personal circumstances, not a change in country conditions that would support reopening. Liu v. Att’y Gen., 555 F.3d 145, 150-51 (3d Cir.2009). We have recognized, however, that an alien who has been ordered removed can file an untimely or successive asylum application based on changed personal conditions if the alien can also show changed country conditions in the motion to reopen. Id. at 150. Thus, Zhang would be eligible to file a second asylum application in reopened proceedings based on his Christian faith, if he is able to establish relevant changed country conditions since the time of his initial asylum proceedings. Filja v. Gonzales, 447 F.3d 241, 251, 252 (3d Cir.2006) (<HOLDING>). Zhang argued before the BIA that there has Holdings: 0: holding that change in country conditions is measured from time of proceedings before ij 1: holding that in determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below 2: holding that a change in personal circumstances in the united states does not constitute a change in country conditions and therefore does not establish an exception to the filing deadline for motions to reopen 3: holding that risk must be measured at the time the lawsuit is filed 4: holding that in evaluating evidence of changed country conditions the bia compares the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below | [
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their belief that probable cause existed to enter 214 South Fourth Street. The uncontradicted evidence that the officers were not in their usual patrol area and were unfamiliar with the home in question negates any thought that they used the situation which arose on May 13, 1999 as an excuse or ruse to gain entry to a known “drug house”. We are also struck by the great restraint that the police showed before they finally felt that they must enter the home. Even when they believed that a burglary was in progress they did not enter until they looked through the open window and saw the broken door latch and ransacked room. This, coupled with the open window, flight of four males from the home when the police approached, admission of two males that they were fleeing from the p th Cir.1982) (<HOLDING>), affirmed in relevant part, 710 F.2d 431 Holdings: 0: recognizing that among the circumstances accepted as providing exigent circumstances for a warrantless search are those where a true emergency exists 1: holding that 911 call reporting domestic dispute and child telling officer that a man with a gun was inside fighting with her mom constituted exigent circumstances that justified warrantless entry into home 2: holding that exigent circumstances justified warrantless entry where officers were faced with a call reporting burglary in progress 3: holding that exigent circumstances justified warrantless entry where it seemed apparent that a burglary was in progress 4: holding that officers warrantless entry to locate and abate loud music late at night was justified by exigent circumstances | [
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advertising restrictions related to product safety, the issue is not whether the restrictions were procompetitive, but whether they could be. Id. at 778, 119 S.Ct. 1604 (“[T]he plausibility of competing claims about the effects of the professional advertising restrictions rules out the indulgently abbreviated review to which the Commission’s order was treated.”). See also Areeda & Hovenkamp at ¶ 1911b (stating that courts must consider the plausibility of procompetitive effects when determining which mode of analysis to apply). Because the alleged restraints were arguably based, at least in part, on safety concerns, they may have had some procompetitive effects. It follows that an abbreviated per se analysis was inappropriate. See California Dental, 526 U.S. at 770-781, 119 S.Ct. 1604 (<HOLDING>). C. "Whether the Testimony of David Cole Holdings: 0: holding that even in a public forum the government may impose reasonable restrictions on the time place or manner of protected speech provided the restrictions are justified without reference to the content of the regulated speech that they are narrowly tailored to serve a significant governmental interest and that they leave open ample alternative channels for communication of the information 1: holding that a quick look analysis was inappropriate for restrictions imposed by professional association of dentists on member advertising where the likelihood of noncompetitive effects of restrictions were not obvious and restrictions could plausibly be thought to have procompetitive effect on competition 2: holding that citas decision to impose restrictions on textile imports and request consultations with foreign governments concerning such restrictions was beyond judicial re view 3: recognizing prudential concerns underlying antitrust standing restrictions 4: recognizing that time place and manner restrictions must be content neutral | [
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that a prosecutor's coercion of a witness would violate a defendant's rights but would not give rise to tort liability under 42 U.S.C. § 1983). 6 . See, e.g., United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir.1999); LaFrance v. Bohlinger, 499 F.2d 29, 34 (1st Cir.1974) (“Due process does not permit one to be convicted upon his own coerced confession. It should not allow him to be convicted upon a confession wrung from another by coercion.”) (quoting Malinski v. New York, 324 U.S. 401, 430-31, 65 S.Ct 781, 89 L.Ed. 1029 (Rutledge, J., dissenting)); McMillian v. Johnson, 878 F.Supp. 1473, 1512-14 (M.D.Ala.1995), rev’d in part on other grounds, 88 F.3d 1554 (11th Cir.1996); Tucker, 721 P.2d at 642. 7 . See, e.g., Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (<HOLDING>). 8 . See Hutto v. Ross, 429 U.S. 28, 30, 97 Holdings: 0: holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand 1: holding that trial court has discretion to permit defendant to call accused witness to stand and permit witness to invoke fifth amendment privilege in front of jury where entire defense was centered on witness commission of crime 2: holding that a judges lengthy perjury warnings to a defense witness effectively drove the witness off the stand thereby denying the defendant his due process right to present his defense 3: holding that a trial judges action in singling out a defense witness for a lengthy admonition on the dangers of perjury effectively drove that witness off the stand and thus deprived the defendant of due process of law under the fourteenth amendment 4: holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary | [
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282, 312, 4 P3d 1261 (2000). “If the trial court’s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion.” Id. Where, however, a trial court’s purported exercise of discretion flows from a mistaken legal premise, its decision does not fall within the range of legally correct choices and does not produce a permissible, legally correct outcome. See State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987) (explaining that, in some circumstances, a trial court can err if it “fails to exercise discretion, refuses to exercise discretion[,] or fails to make a record which reflects an exercise of discretion”); see also State v. Pemberton, 226 Or App 285, 289, 203 P3d 326 (2009) (<HOLDING>). This court’s recent decision in State v. Holdings: 0: holding that exercise of prosecutorial discretion was not subject to judicial review absent a constitutional claim or question of law 1: holding that under mayfield the exercise of discretion based on a mistaken premise of law can be a failure to properly exercise discretion 2: holding that the faas action in this case was analogous to an exercise of prosecutorial discretion and noting that when prosecutorial discretion is at issue the matter is presumptively committed to agency discretion by law 3: holding failure to exercise discretion is abuse of discretion 4: holding that dnrs exercise of task assigned to it by legislature invariably involved exercise of agency discretion and did not constitute regulation under apa nor abuse of discretion | [
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of mandatoiy minimum sentences in this limited context.”) (footnote omitted); Shendur v. United States, 874 F.Supp. 85, 86 (S.D.N.Y.1995) ("[Section] 3553(f) reflects a congressional decision that mandatoiy minimum sentences no longer be applied mechanically.”). 2 . See also United States Sentencing Commission, Guidelines Manual, § 5C1.2 (Nov.1995) (incorporating § 3553(f) verbatim). - 3 . The district court nevertheless appears to have imposed such a requirement, stating that "there was not full compliance [with § 3553(f) ], for the reason that I think it was incumbent upon [Ivester] to initiate the full confession of activities to the Government at an early time, and I cannot find that he has done that.” 4 . Contra United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir.1995) (<HOLDING>). 5 . Cf. USSG § 3E1.1, decreasing the Holdings: 0: holding a juveniles request to speak to a probation officer is not a per se invocation of fifth amendment rights 1: holding that defendants lies to probation officer preparing presentence report fall within 1001b exception if probation officer must include particular statement in report 2: holding that probation is not a sentence 3: holding that a condition of supervised release that requires a defendant to report to his probation officer upon reentry to the united states does not violate the defendants fifth amendment right against selfincrimination 4: holding that the defendants statements to the probation officer were insufficient to satisfy the safety valves fifth requirement the probation officer is for purposes of 5c12 not the government | [
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Tan, 446 F.3d at 1377; see also Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1238 (11th Cir.2007) (remanding because “the IJ failed to render a reasoned decision ... and [did] not appear to have considered evidence in the record”). We therefore remand to the agency for it to consider the entire record in evaluating Ms. Seek’s petition. We do not reach the question of whether Ms. Seek, as a mother who opposes the practice of FGM on her daughter, falls within a “particular social group” for purposes of withholding of removal. See 8 U.S.C. § 1231(b)(3)(A). This question was not reached by the BIA, and it is most appropriately considered by the agency in the first instance. See Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 1614-15, 164 L.Ed.2d 358 (2006) (per curiam) (<HOLDING>). Upon remand, the BIA should address this Holdings: 0: holding that the ninth circuit looks to state contract law to determine whether an arbitration award is valid 1: holding that when an agency has not reached an issue the proper course is to remand to the agency to address in the first instance 2: holding that when an agency has not reached an issue the proper course is to remand to the agency in the first instance to address 3: holding that when an agency has not reached an issue the proper course is to remand to the agency to address it in the first instance 4: holding it was improper for ninth circuit to determine that an aliens family constituted a particular social group for asylum purposes because proper course was to remand issue to board for initial determination | [
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strictly, seemed to encompass only contract claims. Mazzioni Farms, 761 So.2d a 68, 1372 (E.D.N.Y. 1988) (accepting parties’ stipulation that New York law applied to their insurance contracts where there was no strong public policy against applying New York law); National Can Co. v. Vinylex Corp., 687 F. Supp. 375, 376-77 (N.D. Ill. 1988) (deeming parties to have stipulated that Illinois law governed their dispute where both sides maintained in their briefs that Illinois law governed); and Ackerman v. Foster, 974 P.2d 1, 9 (Col. App. 1998) (accepting parties’ stipulation that California law applied to insurance policy). Courts in other jurisdictions have enforced choice of law stipulations on issues of tort law. Twohy v. First Nat’l Bank of Chicago, 758 F.2d 1185, 1191 (7th Cir. 1985) (<HOLDING>); Von Hundertmark v. Boston Prof’l Hockey Holdings: 0: holding that parties may stipulate to facts from which jurisdiction may be inferred 1: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract 2: holding consent is irrelevant and estoppel does not apply when subject matter jurisdiction is in question 3: holding that parties may stipulate which states substantive law governs their contract and tort claims if the chosen state bears a reasonable relationship to the alleged transaction and injury in question and the stipulation does not violate public policy nor call into question the courts subject matter jurisdiction 4: holding that because a valid arbitration clause existed the parties had to arbitrate all disputes when the subject matter of the dispute has a reasonable relationship to the subject matter of the contract | [
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States Bureau of Prisons, 413 F.3d 1225, 1238 (10th Cir.2005); see also 28 U.S.C. § 1915A (directing district court to screen prisoner cases early and dismiss defective claims). Second, Mr. Tauer is correct that the administrative-exhaustion requirement is not jurisdictional; failure to exhaust does not divest this court of the power to (10th Cir.2005) (applying applicable state statute of limitations to § 1983 action); Kan. Stat. Ann. § 60-513(a)(3) & (4) (supplying two-year limitations for actions based on fraud or injury to the rights of another). Mr. Tauer maintains that as long as he filed his grievance within two years after his constitutional rights were denied, federal litigation is not foreclosed. This court has specifically rejected this position. Ross, 365 F.3d at 1186 (<HOLDING>). Mr. Tauer also challenges the regulation Holdings: 0: holding cases are not authority for propositions not considered 1: holding that consequential damages are not to be considered 2: holding that an issue not presented to the trial court will not be considered on appeal 3: holding timebarred grievance is not considered exhausted 4: holding that where issues were not considered by the bia remand is appropriate | [
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Council meetings, the text of Art. I, § 2, Bessemer City Ordinances, and advisory opinions written by the Ethics Commission and the Office of the Alabama Attorney General. Considering these materials in making a determination as to whether the City councillors are entitled to qualified immunity necessarily would require converting the motion to dismiss into a motion for a summary judgment because "[i]f the trial court considers matters outside the pleadings, then the motion should be treated as a motion for summary judgment.” Stock-man v. Echlin, Inc., 604 So.2d 393, 394 (Ala. 1992). It is apparent from the language of the trial court's orders that it did not consider outside materials in reaching its decision. 6 . Cf. Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala.1981) (<HOLDING>). The claim of a breach of an implied contract Holdings: 0: recognizing the intentional tort of bad faith in firstparty insurance actions 1: holding that a bad faith claim is a tort 2: recognizing a tort for the intentional spoliation of evidence 3: holding expert testimony is not required as a per se rule in bad faith actions 4: recognizing the tort of intentional infliction of emotional distress | [
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including vanity plates, is to aid in vehicle identification. See Vt. Stat. Ann. tit. 23, § 304(b)(2)(C) (“[T]he primary purpose of motor vehicle plates is vehicle identification.”). Although a policy of vehicle identification is not necessarily inconsistent with a government’s intention to designate a public forum, the statement of such a legislative policy does not suggest, much less show, an intention to create a public forum. Second, as noted by counsel for the state at oral argument, Vermont’s vanity plates serve the purpose of raising revenue. Nothing about the revenue-raising aim of the vanity-plate regime suggests that Vermont intended to “create a forum for unlimited public expression.” DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 966 (9th Cir.1999) (<HOLDING>); see New York Magazine v. Metropolitan Transp. Holdings: 0: holding that a municipal transit vehicle is not a public forum for first amendment purposes because the city is engaged in commerce and the advertising space in question although incidental to the provision of public transportation is part of a commercial venture 1: holding that a public school did not create a public forum by allowing commercial advertising on a baseball field fence 2: holding that public meeting did not satisfy public participation requirement because public did not receive adequate notice 3: holding that a public high school newspaper was a limited public forum not a traditional or designated public forum because there was no evidence that the school permitted indiscriminate use by the general public quoting hazelwood sch dist v kuhlmeier 484 us 260 267 108 sct 562 98 led2d 592 1988 4: recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public | [
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the law); W. Va.Code § 61-2-9a (prohibiting “harassment”). Therefore, in light of the plaintiffs need to solicit donations to cover living expenses and medical bills, I FIND that the balance of equities tips in favor of issuing a preliminary injunction. E.Public Interest Although the defendants admit that preservation of First Amendment freedoms is a significant public interest, they argue that the public will be harmed by prohibiting enforcement of an “important public safety mechanism.” (Defs.’ Mem. [Docket 18], at 16-17). However, as I previously explained, the defendants can ensure safety near intersections by enforcing other statutes. Further, the public interest generally favors protecting First Amendment rights. See, e.g., Carey v. FEC, 791 F.Supp.2d 121, 135-36 (D.D.C. 2011) (<HOLDING>); Mullin v. Sussex Cnty., Del., 861 F.Supp.2d Holdings: 0: holding that campaign money laundering was in furtherance of political speech but an invalid exercise of free speech rights because it was illegal 1: holding that the plaintiffs right to political speech is fully in accord with the publics interest in free speech and association 2: recognizing that code is speech 3: holding that statute reaching beyond purely commercial speech to chill fully protected speech can merit application of the overbreadth doctrine 4: holding the right of free speech is not absolute at all times and under all circumstances | [
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for aliens entitled to protection but subject to mandatory denial of withholding. See Hosseini v. Gonzales, 471 F.3d 953, 958-61 (9th Cir.2006). The IJ denied Aguilar’s application for deferral of removal under CAT, and the BIA affirmed. Because neither the BIA nor the IJ made an adverse credibility finding, “we must assume that [Aguilar’s] factual contentions are true.” Navas v. INS, 217 F.3d 646, 652 on El Salvador was included in the record without objection and that Aguilar attached it to his pro se brief to the BIA. Yet, neither the IJ nor the BIA considered the Country Report in denying Aguilar relief under CAT. The failure of the IJ and BIA to consider evidence of country conditions constitutes reversible error. See, e.g., Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.2001) (<HOLDING>); Al-Saher v. INS, 268 F.3d 1143, 1147-48 (9th Holdings: 0: holding that bia did not abuse its discretion by declining to consider an unauthenticated document submitted with a motion to reopen to show changed country conditions 1: holding that the bia does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen particularly when dealing with evidence which the bia is asked to repeatedly consider 2: holding that the bia abused its discretion in denying a motion to reopen when it failed to consider the argument before it 3: holding that bia abused its discretion in denying motion to reopen 4: holding that the bia abused its discretion when it denied petitioners motion to reopen by failing to consider evidence of country conditions | [
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a (statutory) trade secret, they did no legal wrong”) (Illinois law). 11 . The court notes that, in boilerplate fashion, FS’s complaint alleges that AOS "accepted the benefit of [FS's] assistance under such circumstances that it would be inequitable for the defendant to retain the benefit without payment.” (Compl. ¶ 34). Such wholly conclusory allegations, without anything more, run afoul of the Federal Rules of Civil Procedure, which require that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see also Ashcroft v. Iqbal, -U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added) (<HOLDING>). 12 . FS dismisses Abbott Laboratories as an Holdings: 0: holding that a complaint must contain enough facts to state a claim to relief that is plausible on its face 1: holding that complaint must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged 2: holding that a plaintiffs complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face that is factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged 3: recognizing that to survive dismissal a complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face internal quotation marks omitted 4: holding that a complaint must contain only enough facts to state a claim to relief that is plausible on its face | [
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answered in the negative. While the instant case does not involve a service contract, the Court would follow the same analysis here in order to determine whether an independent tort exists, and thus whether the economic loss rule applies. 2 . In Walta, the New Mexico Court of Appeals did not address the issue of whether the economic loss rule applied when a fiduciary duty existed, because the parties did not preserve the issue for appeal. 131 N.M. at 546, 40 P.3d 449. 3 . Based on the Court’s conclusion on this issue, no further analysis is necessary with regard to whether the contracts between the parties constitute commercial transactions, or whether there was great disparity in bargaining power. See Farmers Alliance Mut. Ins. Co. v. Naylor, 452 F.Supp.2d 1167, 1171-72 (D.N.M.2006) Holdings: 0: holding that in commercial transactions when there is no great disparity in bargaining power of the parties economic losses are not recoverable in tort actions 1: recognizing that plaintiffs are prohibited from recovering in tort economic losses to which their entitlement flows only from a contract 2: holding that without some conduct resulting in personal injury or property damage there can be no independent tort flowing from a contractual breach which would justify a tort claim solely for economic losses 3: holding that punitive damages are not recoverable against municipalities in actions brought pursuant to 42 usc 1983 4: holding that no products liability claim lies in admiralty when commercial party alleges injury only to product itself resulting in purely economic loss insofar as the tort concern with safety is reduced when an injury is only to the product itself | [
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an applicable guideline”); United States v. Gonzalez, 134 Fed.Appx. 595, 598 (3d Cir.2005) ("Although the Sentencing Guidelines are not mandatory, sentences within the prescribed range are presumptively reasonable.”); United States v. Bartram, 407 F.3d 307, 313 (4th Cir.2005) (defining "reasonable under ordinary English usage as: being in agreement with right thinking or right judgment”); United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005) ("[I]t will be rare for a reviewing court to say ... a sentence [within a properly calculated Guidelines range] is ‘unreasonable.’ ”); United States v. Webb, 403 F.3d 373, 385 n. 9 (6th Cir.2005) ("[W]e decline to hold that a sentence within a proper Guidelines range is per se reasonable.”); United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005) (<HOLDING>); United States v. Lincoln, 413 F.3d 716, 717 Holdings: 0: holding that we may apply a presumption of reasonableness to a sentence within the guidelines range 1: holding that sentence within guidelines range enjoys a presumption of reasonableness 2: holding that a sentence within a properly calculated guidelines range is presumptively reasonable 3: holding that any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness 4: holding that guidelines create a rebuttable presumption | [
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26 (1995)) (“We have construed the provisions of the RA and the ADA in light of their close similarity of language and purpose.”); see also MX Group, 293 F.3d at 333-335 (finding standing under both the ADA and RA); Innovative Health, 117 F.3d at 47 (same). 5 . See 28 C.F.R. § 41.31(b)(1)(i) (including drug addiction as a “physical or mental impairment” that may qualify an individual as a “handicapped person” under the RA), cited in Bragdon v. Abbott, 524 U.S. 624, 632, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). 6 . We have previously noted that a corporation has standing to bring constitutional claims on its own behalf. Safeguard Mut. Ins. Co. v. Miller, 472 F.2d 732, 733 (3d Cir.1973); see also First Nat’l Bank v. Bellotti, 435 U.S. 765, 780 n. 15, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (<HOLDING>); Pierce v. Society of Sisters, 268 U.S. 510, Holdings: 0: holding school boards are persons within the meaning of the fifth amendment due process clause 1: holding that the flsa is not within the purview of section 5 of the fourteenth amendment 2: holding that bankruptcy jurisdiction is not within section 5 of the fourteenth amendment 3: recognizing that corporations are persons within the meaning of the fourteenth amendment 4: holding municipalities are not persons within the meaning of the due process clause of the fifth or fourteenth amendments | [
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] | [
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actions, standing alone, demonstrates an intent to forestall review unless and until the forfeiture process is completed. The legislative history cited by the FCC sheds no light on the issue. In 1978, Congress amended the Communications Act “to unify, simplify, and enlarge the scope of the forfeiture provisions,” but made no attempt to limit judicial review. S.Rep. No. 95-580, at 1 (1978), reprinted in 1978 U.S.C.C.A.N. 109. It simply added an alternative approach, giving the FCC the option of holding an adjudicatory hearing in “the exceptional forfeiture ease, where urgency, precedent value, or convenience of the Commission warrants a proceeding exclusively under the Commission’s control until a final judgment on appeal is obtained.” Id. at 4, 1978 d 564, 566 (10th Cir.1995) (<HOLDING>). We determine that nothing in the Holdings: 0: recognizing limitations existence in other circuits 1: holding that case law from other circuits squarely precluded jurisdiction over preenforcement ruling under the clean air act 2: holding the epa could regulate air pollutants under the clean air act solely on the basis of the pollutants risk to human health 3: holding that district courts are without jurisdiction to review preenforcement orders issued under the clean water act 4: holding judicial review of a preenforcement ruling unavailable under the clean air act because early intervention would interfere with statutorilyrequired efforts at negotiation and compromise | [
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trial court’s award of attorney fees pursuant to either Minn.Stat. § 549.21 (1996) or Minn. R.Civ.P. ll unless the trial court abused its discretion in awarding the fees. See Uselman v. Uselman, 464 N.W.2d 130, 141, 145 (Minn.1990) (applying abuse of discretion standard under both provisions). In imposing $20,000 in sanctions against Christensen, her deceased husband’s law firm and her attorneys, the trial court found Christensen’s claims to be frivolous and in bad faith because they were contrary to her stipulation in the attorney’s lien action and violated the public policy of the state. However, because we conclude Christensen’s claims are mérito- rious, and the record contains no evidence of bad faith, the trial court abused its discretion by awarding fees and costs. See id. at 144 (<HOLDING>). Therefore, we reverse the award of attorney Holdings: 0: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 1: holding a ruling on a motion for summary judgment adjudicating the rights of a party is a final judgment subject to appeal 2: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed 3: holding that the issue of defendants actual knowledge should not be resolved on summary judgment but should be left to the trier of fact 4: holding a party who survives summary judgment should not be subject to sanctions for asserting frivolous claims | [
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] |
858 S.W.2d 337, 343 (Tex.1993) (plurality op.). Accordingly, Tello has not demonstrated that there was a genuine issue of material fact on his DTPA counterclaim against the Bank. We overrule his fourth issue. C. Tello’s Affirmative Defenses In his second and third issues, Tello contends he raised a fact issue on his affirmative defenses of fraudulent inducement and equitable estoppel sufficient to defeat the Bank’s motion for summary judgment. Tello generally refers to his affidavit, but other than the general summary judgment standards, he cites no authority. He does not cite the elements of the doctrines of fraudulent inducement and equitable estoppel, much less argue why his affidavit raised a fact issue on each element of these defenses. See Sunnyside Feedyard, 106 S.W.3d at 173 (<HOLDING>). Nevertheless, in response to the motion for Holdings: 0: holding that in an action brought by alleged wife for permanent alimony suit money attorneys fees and restraining order an issue of fact existed concerning whether a commonlaw marriage existed thus precluding summary judgment 1: holding that standing existed 2: holding appellant waived contention that fact issue existed on legal doctrines sufficient to defeat summary judgment by referring to welldeveloped doctrines without citing basic authority as to their elements or any analysis to show a fact issue existed on these doctrines 3: holding there was fact issue as to whether agency relationship existed based on affiants testifying to alleged oral agreement to serve as agent 4: holding no triable issue of fact existed where employee had not asked for accommodation | [
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on the ground that determination not supported by substantial evidence; holding that IJ could not reject documentary evidence for the same reasons it rejected testimonial evidence; and holding that the documentary evidence established the objective component of petitioner’s claim of well-founded fear of future persecution). Here, Chen has submitted documents which support her contention that she had an abortion, that she and her husband were ordered to be sterilized, and that she and her husband were fired from their factory job for violating China’s one child policy. In the absence of an explicit rejection of petitioner’s documentary evidence by the IJ, this court must accept the petitioner’s documentary evidence as true. See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) (<HOLDING>); see also Zahedi, 222 F.3d at 1165 (holding Holdings: 0: holding that the court need not accept as true unwarranted factual inferences 1: holding when one identified ground for an adverse credibility determination is supported by substantial evidence and goes to the heart of petitioners claim of persecution the court is bound to accept the ijs adverse credibility determination 2: holding that an adverse credibility determination is sufficient to deny asylum 3: holding that an adverse credibility determination must be supported by a true inconsistency 4: holding that in the absence of an adverse credibility determination the court must accept petitioners testimony as true | [
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an “officer of the United States.” Brief for Respondent IBR 16-17. We find this argument unpersuasive. IBR’s broad definition of “officer of the United States” may well be favored today. Cf. Buckley v. Valeo, 424 U. S. 1, 126 (1976) (“ ‘[O]ffi-cer of the United States,’ ” as used in Art. II, § 2, cl. 2, refers to any “appointee exercising significant authority pursuant to the laws of the United States”). But there is no evidence that this was the definition Congress had in mind in 1948, when it enacted § 1442(a)(1) and the companion provision defining “agency.” Indeed, in 1948 and for some time thereafter, the relationship between certain independent agencies and the “Government of the United States” was often disputed. See, e. g., Pierce v. United States, 314 U. S. 306 (1941) (<HOLDING>); see also Rainwater v. United States, 356 U. Holdings: 0: holding that a public officer has no discretion or authority to misinterpret the law 1: holding that while a magistrate lacked the authority to enter an order granting a motion to correct error and thus that the order was defective for failing to contain the judges signature or another indication it was approved or adopted by the trial court the city waived any challenge to the validity of the order by failing to make a timely objection and observing that the indiana supreme court has long held that defects in the authority of a court officer as opposed to the jurisdiction of the trial court itself to enter a final order will be waived if not raised through a timely objection and more recently this court has applied the same principle to civil proceedings and clarified that any objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs or at least within such time as the tribunal is able to remedy the defect 2: holding that a bankruptcy trustee is an officer of the court appointed by the court directed by the court and paid by the court but is in no sense an agent or employee or officer of the united states 3: holding that an alcoholic beverage control officer was a public officer within the meaning of the statute 4: holding that an officer or employee of the tennessee valley authority was not an officer or employee acting under the authority of the united states or any department or any officer of the government thereof within the meaning of a criminal statute first enacted in 1884 | [
"3",
"1",
"0",
"2",
"4"
] | [
"4"
] |
of a material witness “[i]f it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. Under the Warrant Clause of the Fourth Amendment, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Therefore, an application for a material witness warrant under § 3144 must establish probable cause to believe that (1) the witness’s testimony is material, and (2) it may become impracticable to secure the presence of the witness by subpoena. See Bacon, 449 F.2d at 942-43 (<HOLDING>). Ordinarily, a search or seizure pursuant to a 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 the appropriate standard of review is abuse of discretion 2: holding that probable cause is the appropriate standard for 3144 material witness warrants 3: holding that new york law reasonable cause standard is equivalent to fourth amendments probable cause standard 4: holding that in a 1983 action issue of probable cause is for the jury | [
"4",
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"2"
] | [
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First Amendment rights — punishment, in the form of termination of a contract beneficial to him, because of his speech. While Defendants assert that the contract provided no benefit to the county, from which one could infer that its termination could inflict no injury on the county, Mr. Umbehr has alleged a benefit to him from the contract. The contract obviated the need for him to individually negotiate a trash hauling contract with each city; it gave him the exclusive right to haul trash for cities that ratified the agreement; and it gave him, for at least sixty days, the right to haul trash for cities pursuant to the agreement, inasmuch as the county could only terminate the contract on sixty days’ notice. Cf. Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 476 (9th Cir.1991) (<HOLDING>). Further, he claims monetary injury from the Holdings: 0: holding that private contract providing for immediate termination for cause or at will termination on ninety days notice gave rise to a legitimate claim of entitlement to ninety days of continued employment 1: holding requirement in contract to provide notice for termination but not limiting reasons for termination constitutes atwill employment relationship 2: holding that although a reason was provided in the termination letter the without cause termination provision was applicable 3: holding that termination is an adverse employment action 4: holding that 120 days notice was satisfied by 30 days work plus 90 days pay | [
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the insurer’s position is ‘reasonable and legitimate.’ ” Thompson v. Shelter Mut. Ins. Co., 875 F.2d 1460, 1462 (10th Cir.1989) (quoting Manis v. Hartford Fire Ins. Co., 681 P.2d 760, 762 (Okla.1984)). After carefully reviewing the parties’ briefs, the record, and relevant Oklahoma authorities, we believe that no reasonable jury could have concluded that State Farm’s evaluation and settlement offers constituted bad faith under this standard. First, we note that State Farm’s initial settlement offer was within the range it assigned to Mr. Roberts’ claim. Thus, we are not presented with the situation where an insurer has offered to settle a dispute in an amount below the range assigned to the claim by the insurer’s own investigation. See Newport v. USAA, 11 P.3d 190, 196-197 (Okla.2000) (<HOLDING>). Moreover, because we have determined that Holdings: 0: holding that an insurer has a duty to conduct an investigation reasonably appropriate under the circumstances 1: recognizing the wide latitude counsel must have in making tactical decisions and that strategic choices made after less than complete investigation may be reasonable if reasonable professional judgments support the limitations on investigation 2: holding there can be no claim for bad faith when an insurer has promptly denied a claim that is in fact not covered 3: holding that after a reasonable investigation an insurer must promptly settle a claim for the value or within the range assigned to the claim as a result of its investigation 4: holding the insurer liable for failing to settle the claim when time was of the essence | [
"4",
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no immediate action to cure the code violations because the Debtor had filed a bankruptcy petition and the automatic stay would have to be lifted before IPC could proceed. Notwithstanding this explicit admonition, the Knights thereafter served the Notices and then filed the unlawful detainer complaint seeking to recover possession of the Property. The reason given by the Knights’ counsel for his chosen course of action— bankruptcy court is slow — does not help them escape the conclusion that their actions were willful. Although the Knights may not have had the specific intent to violate the automatic stay, the Knights knew of the automatic stay and their actions were intentional, thus satisfying the definition of a “willful” violation of the automatic stay. See Bloom, 875 F.2d at 227 (<HOLDING>). The district court was correct in reversing Holdings: 0: holding that the denial of a motion to find a violation of the automatic stay was a final order 1: recognizing that any action taken in violation of the automatic bankruptcy stay is void and without effect 2: recognizing district courts authority to dispose of contempt action for violation of automatic stay of bankruptcy 3: holding knowledge of the bankruptcy petition and action taken thereafter was sufficient to find a willful violation of the stay 4: holding that an action taken in violation of the automatic stay is void ab initio | [
"4",
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liability under New Jersey’s local law for conduct that would not be illegal under New York’s law. The New York Legislature made its enactment narrower than federal RICO, instead of broader as did our Legislature. See Ball, supra, 268 N.J.Super. at 107, 632 A.2d 1222. New York also precluded private litigants from pursuing cases that prosecutors with limited resources might decline, as opposed to New Jersey’s decision to encourage private litigants with the prospect of treble damages and counsel fee awards. Cf. Lindsey v. Allstate Ins. Co., 34 F.Supp.2d 636, 646 (W.D. Tenn. 1999) (observing that Congress included a private cause of action in federal RICO “[t]o facilitate the enforcement of its provisions”); Metro. Int'l, Inc. v. Alco Standard Corp., 657 F.Supp. 627, 634 (M.D. Pa. 1986) (<HOLDING>). As in P.V., supra, 197 N.J. at 148-49, 962 Holdings: 0: holding that a plaintiff may receive both treble damages under rico and state law punitive damages for the same course of conduct 1: recognizing that to facilitate and strengthen enforcement congress created rico with a private right of action for treble damages 2: recognizing private right of action 3: holding that a private right of action exists 4: holding that united states cannot sue for treble damages under rico reasoning that it could not do so under similar language of clayton act on which rico was modelled | [
"4",
"2",
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"1"
] | [
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] |
from Ridgely’s harassment.” Pl.’s Opp’n at 22. She notes her doctor’s statement from the May 2007 letter that “it may be possible for [the plaintiff] to return to a position within DHHS in a part time capacity in 6-8 months,” but “she may not be able to to [sic] return to the office in which she is currently employed.” Def.’s Mot., Ex. 40. Given the doctor’s prognosis, the plaintiff potentially could have returned to work 13-14 months after she first went on leave, but the doctor offered no guarantee that she would return in that time. Furthermore, the letters .C. May 24, 2006) (stating that “[a]n employer is not required to provide an indefinite leave of absence”). Therefore, the plaintiffs request for an accommodation that would allow her to “complete her treatment 74 (2d Cir.1997) (<HOLDING>). Because the plaintiff argued to the OPM that Holdings: 0: holding parent entitled to credit for any social security disability benefits paid to child as a result of parents disability 1: holding that similarity between florida workers compensation disability law and social security disability law require that the alj give great weight to the florida determination 2: holding that an evidentiary hearing is not required prior to the termination of social security disability benefits 3: holding a social security number is not private 4: holding that a social security disability determination is a legal proceeding | [
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conduct violations in August 2015. (ECF No. 26-1, at 3). Plaintiff, proceeding pro se, filed the complaint in the United States District Court for the District of New Jersey on July 28, 2015. (ECF No. 1). Plaintiff seeks money damages and injunctive relief. Several weeks later, the action was transferred to this court. (ECF Nos. 16; 17). Plaintiff moved for emergency injunctive relief on September 2 (ECF No. 24), which the court denied (ECF No. 25). Shortly thereafter, Defendants moved to dismiss the complaint for failure to state a claim. (ECF Nos. 26; 27), Plaintiff was provided with a Roseboro notice, which advised him of the pendency of the motion to dismiss and his entitlement to respond within 17 days. (ECF Nos. 28; 29); see Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975) (<HOLDING>). Plaintiff responded in opposition, and Holdings: 0: holding that pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment 1: recognizing responsive pleadings may be necessary for a pro se plaintiff to clarify his legal theories 2: holding that a defendant has a right to proceed pro se at trial 3: holding that pro se litigants should be given reasonable opportunity to remedy the defects in their pleadings 4: holding that a pro se party must be advised of consequences of failing to respond to a dispositive motion including an explanation that the failure to respond may result in the district court granting the motion and dismissing the case | [
"3",
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the interception of communications “within the territorial jurisdiction of the court in which the judge is sitting.” I concur in the result reached by the majority, however, because, under the circumstances of this case, suppression of the evidence is not mandated by 18 U.S.C. § 2515. Under the majority’s interpretation of the statute any federal district court, circuit court of appeals or appropriate state court may authorize a wiretap any place in the country. A judge in the Southern District of New York may now authorize a tap on a phone in Chippewa Falls, Wisconsin, Nome, Alaska or Prescott, Arizona, even if no calls are ever placed to the east coast, as long as the listening post is set up in Manhattan. See, e.g., United States v. Burford, 755 F.Supp. 607, 609-11 (S.D.N.Y.1991) (<HOLDING>). Law enforcement officials are now able to Holdings: 0: holding that the southern district of new york had significant transportation advantages over the southern district of indiana particularly in terms of daily flights to and from the forum 1: holding the new york state wiretap statute controlling on this issue 2: holding that the magistrate judge did not abuse her discretion in considering the prevailing hourly rates in the southern district of new york when awarding attorneys fees 3: holding that judge in southern district of new york could authorize wiretap in maryland 4: holding that venue was not proper in the southern district of new york where the plaintiff resided because the allegedly erroneous advice to file a case in new york that could result in a finding of civil contempt against the plaintiff originated from the defendants office in california | [
"4",
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] | [
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to preserve error. See id.; Clausen v. R.W. Gilbert Constr. Co., 309 N.W.2d 462, 467 (Iowa 1981). Such a challenge does nothing to inform a trial judge how particular instructions were confusing, or were unfairly defense-oriented,- or improperly placed on the plaintiff impossible burdens of proof. A. Whether instruction nine improperly incorporates allocation of burdens of production under McDonnell Douglas. Sievers objected to instruction nine on two grounds, both of which she raises- on appeal. She first complains instruction nine improperly incorporates the shifting burdens of production under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). She relies on Grebin v. Sioux Falls Independent School District, 779 F.2d 18, 20 (8th Cir.1985) (<HOLDING>). Recently, we described the elements of a Holdings: 0: holding that a title vii plaintiff need not plead the elements of a mcdonnell douglas prima facie case to survive a motion to dismiss 1: holding that a plaintiff who could not demonstrate every element of the mcdonnell douglas test could nonetheless demonstrate a prima facie case 2: holding that although a jury instruction that included the phrase prima facie case and referred to defendants burden of production created a distinct risk of confusing the jury in certain instances it would be appropriate to instruct the jury on the elements of a prima facie case 3: holding that a prima facie case is subject to independent review 4: holding that in jury cases trial courts should not incorporate in instructions the threepart mcdonnell analysis of prima facie case answer and rebuttal | [
"1",
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hausted his administrative remedies and attach the appropriate documentation, including administrative decisions, demonstrating exhaustion.”); see also Baxter v. Rose, 305 F.3d 486, 489-90 (6th Cir.2002) (reaffirming the rule of Brown v. Toombs, 139 F.3d 1102 (6th Cir.1998), requiring a prisoner to plead exhaustion with particularity and attach to the complaint dispositions of available administrative remedies to demonstrate it). Most circuits that have considered the issue, however, including this circuit, have held that nonexhaustion is an affirmative defense, and that therefore defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity. E.g., Jenkins v. Haubert, 179 F.3d at 28-29; Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th Cir.2003) (<HOLDING>); Casanova v. Dubois, 304 F.3d 75, 78 n. 3 (1st Holdings: 0: holding that defendants are estopped from raising nonexhaustion as an affirmative defense when prison officials inhibit an inmates ability to utilize grievance procedures 1: holding that fair use is an affirmative defense 2: holding that laches is an affirmative defense 3: holding nonexhaustion to be an affirmative defense 4: recognizing laches as an affirmative defense | [
"2",
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v. Madigan, Cir.) (same), cert. denied, — U.S. -, 124 S.Ct. 531, 157 L.Ed.2d 412 (2003). Nonetheless, the court in Theodoropoulos II also recognized an exceedingly narrow exception. It stated that although “as a general rule, courts are required to strictly enforce statutory exhaustion requirements[,]” there are “some limited circumstances in which an exception to the general rule might apply.” 358 F.3d at 172-73. We invoke the narrow leeway afforded by Theodoropoulos II and hold that in light of the unusual facts of Pichardo’s case, an exception is necessary to prevent manifest injustice. Courts have historically interpreted procedural rules to prevent a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (<HOLDING>); McCleskey v. Zant, 499 U.S. 467, 494, 111 Holdings: 0: holding that in the case of state procedural default a federal habeas review of the claims is barred unless the prisoner can demonstrate among other things that failure to consider the claims will result in a fundamental miscarriage of justice 1: holding that failure to consider an improper jury instruction would constitute a miscarriage of justice 2: holding that federal review of claims is barred where those claims have been defaulted in state court pursuant to an independent and adequate state procedural rule unless the petitioner can demonstrate cause and prejudice 3: holding that courts may only review claims for fundamental miscarriage of justice 4: holding that a prisoners failure to pursue an appeal in state court is a procedural bar to federal habeas relief unless the petitioner shows both cause for failing to bring the state claim and actual prejudice from the failure to consider his federal claims | [
"3",
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lot. He said that less than fifteen seconds passed before Appellant caught them and struck them with his truck three times, jarring them. Gary testified that Appellant followed them after Randy turned right and was “coming up on [them] really fast.” Gary said that after Randy hit the brakes, Appellant “barely missed” them and drove into a ditch. This evidence is legally sufficient to support the jury’s finding that Appellant intentionally or knowingly threatened Randy and Gary with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2); Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778; see also Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3 (Tex.App.-Houston [1st Dist.] Apr. 8, 2010, no pet. h.) (mem. op., not designated for publication) (<HOLDING>). The evidence is also legally sufficient to Holdings: 0: holding that counsel was deficient when he failed to object to error in jury charge referring to aggravated assault when the charge was assault on a public servant 1: holdingthat evidence was sufficient to support defendants convictions on rape and aggravated assault charges 2: recognizing that if there is evidence upon which one may reasonably infer an element of the crime the evidence is sufficient to sustain that element and where reasonable minds could differ the evidence is sufficient to sustain a conviction 3: holding evidence legally and factually sufficient to sustain conviction for aggravated assault on a public servant and stating that the jury reasonably could have inferred that dominiques conduct was intentional based on his repeated attempts to run down the police officers who stood in his way 4: holding that where a defendant attempts to explain his actions and reveals his parolee status on direct examination the specific reason for his parole could not have been enlightening to the jury and therefore was not relevant | [
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