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judicial opinions for the meaning of economic loss will support the conclusion that all monetary damages are economic. Unfortunately, the imprecise use of the term “economic loss rule” by this court led many to erroneously conclude that it was a rule of general application that precluded recovery in tort of virtually any harm that could be measured in dollars if a business relationship also existed between the parties. Ill ¶56 Third, again, the independent duty doctrine is not a rule at all; rather it is an analytical tool used by courts to decide whether there is an independent duty cognizable in tort in the first instance. Whether or not we recognize a tort often involves policy considerations. See, e.g., Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984) (<HOLDING>); MacPherson v. Buick Motor Co., 217 N.Y. 382, Holdings: 0: recognizing the tort of retaliatory discharge 1: recognizing tort of wrongful discharge in violation of public policy 2: recognizing common law tort claim for wrongful discharge in violation of ohio public policy based upon statutory and judicial sources 3: holding that the oneyear statute of limitations for a tort action for wrongful termination in violation of public policy applied to the plaintiffs erisa 510 claim 4: recognizing cause of action for wrongful discharge | [
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in interpreting the Ohio statute. City of Columbus Civil Serv. Comm’n v. McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204, 206-07 (Ohio 1998) (‘We can look to regulations and cases interpreting the federal is under either misperception. First, there is no evidence that Continental believed that Gayer had a substantially limiting impairment that she in fact did not have. Continental did believe that Gayer could not lift over 40 pounds, but Gayer does not dispute this fact. The inability to lift over 40 pounds, however, is not, in and of itself, a disability. Indeed, “[f]ederal case law supports that a maximum weight restriction is not a disability as defined by the ADA.” Law v. City of Scottsdale, No. 98-6335, 2000 WL 799742, at *4 (6th Cir. June 15, 2000) (unpublished table decision) (<HOLDING>); see also McKay v. Toyota Motor Mfg. U.S.A., Holdings: 0: holding that the plaintiff who was under a 40pound lifting restriction was not disabled as defined by the ada and listing five cases from various circuits including our own in which courts have held that weight restrictions alone do not render a plaintiff disabled 1: holding that when an employer takes steps to accommodate an employees restrictions it is not thereby conceding that the employee is disabled under the ada or that it regards the employee as disabled 2: holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case 3: holding that plaintiffs hernia condition was not sufficient to render her disabled under the ada 4: holding that an employer did not regard the plaintiff as disabled | [
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and a consumer services division in Atmore, Florida. Plaintiff offers services throughout the United States. SBC Communications, Inc. (hereinafter, collectively referred to with its co-defendant subsidiaries as “Defendant” or “Defendants”) is a Delaware corporation with its principal place of business in San Antonio, Texas. Defendant seeks a transfer of this case from its current setting in the Texarkana Division to the San Antonio Division of the Western District of Texas. Defendant maintains that the Eastern District of Texas has no connection to the facts at issue in this case, while the San Antonio Division of the Western District of Texas is intimately connected. In response, Plaintiff details specific acts on the part of both Plaintiff and Defendant occurring in the Eas ir.1966) (<HOLDING>). In determining whether to grant a motion to Holdings: 0: holding that the defendant bears the burden of proving outside contact with the jury 1: holding that the defendant bears the burden under plainerror review 2: holding that the moving party for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial 3: holding that an appellant bears the burden of demonstrating error on appeal 4: holding that the defendant bears the burden of demonstrating that the action should be transferred | [
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§ 29-28-105 (1994). We agree with Telectronics that these slight variations in language make a difference in the impact of the law. However, we agree with Plaintiffs that these types of variations can be managed with proper jury instructions. Other variations pointed out by Telectronics are either insignificant or irrelevant to the issues presented in this case. For example, Telectronics asserts that Plaintiffs failed to analyze how states deal with compliance with federal regulations. In this instance, this variation is likely to be immaterial because the Supreme Court recently found the FDA “regulations” under which the “ J” Lead was allowed to proceed to market does not provide protection to the public. See Medtronic v. Lohr, — U.S.-,-, 116 S.Ct. 2240, 2254, 135 L.Ed.2d 700 (1996) (<HOLDING>). Accordingly, we find that the strict Holdings: 0: holding that fdas substantial equivalence doctrine does not preclude state law claims because the approval process did not involve safety and thus provide little protection to the public 1: holding that doctrine does not violate due process 2: holding that the jones act does not preempt state law in applying the doctrine of forum non conveniens and thus state law governs 3: holding the state law claims were not preempted 4: holding that doctrine does not violate equal protection | [
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represents first of all an individual right, it can, like other such rights, be waived.”)). Therefore, neither Colman nor Watson is relevant to the issue of personal jurisdiction. ¶ 13 Because the Paria court’s findings are not binding on PGM, there are insufficient undisputed facts to support the conclusion that PGM is a privy of parties in the Paria litigation or a party to a fraudulent transfer. In particular, PGM and Westches-ter dispute whether the transfer of Paria’s assets was for value, and, as we have concluded, the Paria court’s finding on that question is not binding on PGM. ¶ 14 We therefore reverse the dismissal of PGM’s complaint and remand for a hearing on the issue of whether PGM is the alter ego of Paria or Stephen Zimmer nc., 758 P.2d 451, 455 (Utah Ct.App. 1988) (<HOLDING>). In the present case, Westchester provided the Holdings: 0: holding that the supreme court will not issue advisory opinion on issue not before the court 1: holding that burden was on nonmoving party to show issue was not litigated where moving party presented supreme court opinion showing issue had been litigated 2: holding that trial by consent requires that the parties actually recognize the issue to have been litigated 3: recognizing that the burden on summary judgment shifts to the nonmoving party once the moving party has met its initial responsibility of showing the absence of a triable issue of fact and that the moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the case 4: holding that all matters litigated or which could have been litigated in al foreclosure action are forever at rest | [
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relationship.” Id. Hall contends that the CSRA does not preclude her Bivens action because although the CSRA provides for administra-five or judicial review of the action taken against her, her Bivens claim is not against her supervisor. Hall’s argument is without merit, however. The salient fact here is that the wrongful acts Hall alleges were taken against her arose out of her federal employment relationship. Because they did arise out of her federal employment, Bush and Zimbelman dictate that Hall’s claim is precluded. That the CSRA does not provide the remedy that she would prefer is of no moment. ■ See Bush, 462 U.S. at 388-90, 103 S.Ct. 2404 (refusing to allow a Bivens action even though “existing remedies [did] not provide complete relief’); Zimbelman, 228 F.3d at 370-71 (<HOLDING>); cf. Lombardi v. Small Business Admin., 889 Holdings: 0: holding csra controlled plaintiffs claims which arose as result of employment relationship 1: holding that plaintiffs were not released from the exclusive remedial framework of the csra when their claims arose from their federal employment even though the csra provided plaintiffs with no remedy 2: holding that plaintiffs claims were precluded by csra because actions complained of arose from federal employment relationship even though many of the alleged violations occurred after the employment relationship was terminated 3: holding that the csras exclusive and comprehensive remedial scheme precludes review under the apa of disputes that concern not only employment practices specifically prohibited under the csra but also employment practices that are so insignificant as not even to bear mention in the csra 4: holding that federal employee was precluded from bringing 19851 claim because the csra is the exclusive remedy for aggrieved federal employees advancing nonconstitutional claims | [
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procedures fell within the discretionary function exception and that its “judgment in deciding what tests were necessary to meet reasonable safety requirements ... require[s] a balancing of social and economic interests and a tailoring of safety requirements to local conditions.” In so holding, we noted that “ [determination of safety requirements involves a balancing of social, economic or political policies” and that “when Congress leaves the establishment and enforcement of safety standards to an agency, it intends an exercise of that discretion to fall within the discretionary function exception.” Id. at 1047-48 (citing Cunningham v. United States, 786 F.2d 1445, 1447 (9th Cir.1986)); accord Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 876-77 (10th Cir.1984) (<HOLDING>). Sidestepping these cases, Airlog argues that Holdings: 0: recognizing a discretionary function exception to that waiver 1: holding that the constitution can limit the discretion of federal officials such that the ftcas discretionary function exception will not apply 2: holding that the discretionary function exception may apply in the absence of a conscious decision 3: holding that terminal control area design was left to the discretion of the faa designer and that competing interests were weighed and then policy decisions were made which the discretionary function exception was intended to cover 4: holding that decision to establish recreational swimming area was discretionary but failure to replace buoy secured by an anchor that injured a swimmer was not within discretionary function exception | [
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relied upon does not support a removal.” Id. To establish an affirmative defense of disability discrimination due to alcoholism, an appellant must show (1) “he suffers from an addiction,” and (2) “that the addiction caused the misconduct.” Avant v. Dep’t of the Navy, 60 M.S.P.R. 467, 476 (1994). The AJ determined. Mr. Wyrick did not provide any evidence regarding his alcohol addiction or any treatment and that, even if he had, mitigation due to alcoholism is “outweighed by the seriousness of the offenses in relation to [Mr. Wyrick’s] position, his prior disciplinary record, and the fact that there is no reason to conclude that [Mr. Wyrick’s] failure to be fully truthful was caused by his use of alcohol.” Resp’t’s App. 42; see Huettner v. Dep’t of the Army, 54 M.S.P.R. 472, 475 (1992) (<HOLDING>). “It is a well-established rule of civil Holdings: 0: holding a defense of alcoholism was outweighed by the seriousness of the offense and the appellants prior disciplinary record 1: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense 2: holding that argument regarding victim of prior offense was improper 3: holding that courts must look to objective indications of the seriousness with which society regards the offense 4: holding military judge did not err by considering appellants admissions concerning the elements of the lesserincluded offense of aggravated assault in determining appellant was guilty of the greater offense of attempted premeditated murder | [
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light as to undermine confidence in the [second jury’s] verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. 5 . We agree with the district court that the state habeas court made a scrivener’s error where, at one point, it appears to endorse a conclusion that Ishman's testimony was material. All of the court’s other findings and conclusions cut against this isolated discrepancy. 6 . The district court expressly refused to decide whether the "troubling facts” surrounding the State’s nondisclosure of Ishman’s correct name and location constituted suppression for Brady purposes. 7 . Additionally, this Court has held that a Fourteenth Amendment violation will not lie “if the defendant, using reasonable diligence, could have obtained the information...." In re Smith, 142 F.3d 1993) (<HOLDING>). 11 . When asked about the materiality of Holdings: 0: recognizing this rule 1: recognizing the same rule in texas courts 2: recognizing this as the general rule 3: recognizing this texas rule 4: recognizing rule | [
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must report it to the IRS every year as part of the IRS’s regulation of offshore banking, and in part because they need the information to access their foreign bank accounts.” In re Grand Jury Investigation M.H., 648 F.3d at 1076. The Fifth Circuit has concluded similarly, stating that records are “customarily kept” in satisfaction of the required records exception’s second prong where they “are of the same type that the witness must report annually to the IRS pursuant to the IRS’s regulation of offshore banking: the name, number, and type of aceount(s), the name and address of the bank where an account is held, and the maximum value of the account during the reporting period.” In re Grand Jury Subpoena, 696 F.3d at 435; see also In re Grand Jury Investigation M.H., 648 F.3d at 1075 (<HOLDING>). This Court agrees. Accordingly, the records Holdings: 0: holding plaintiffs burden was to show that the misconduct for which she was discharged was nearly identical to that engaged in by a male employee whom her employer retained internal quotation omitted 1: holding that records relating to a student court were not education records 2: holding in a nearly identical case that second prong of required records doctrine met 3: holding the doctrine applied in a case of mistake 4: recognizing doctrine | [
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a new trial. We have been unable to find any prior decisions that are directly on point. However, State v. Johans, 613 So.2d 1319 (Fla.1993), would appear to support appellants’ argument. In Johans, the trial court had failed to require the state to give a race-neutral reason for an objected-to challenge of a prospective juror. The supreme court said that “[a] race-neutral justification for a peremptory challenge cannot be inferred merely from circumstances.... The burden imposed on the party required to provide a race-neutral justification is, at worst, minimal.” Id. at 1321. It then a rule would also help to ensure that the constitutional rights of prospective jurors are respected. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128, 140-42, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (<HOLDING>); Abshire v. State, 642 So.2d 542, 544 n. 7 Holdings: 0: holding that the equal protection clause forbids prosecutors from challenging potential jurors solely on account of their race 1: recognizing harassment claim under equal protection clause based on sexual orientation 2: holding that lprs are entitled to the protection of the equal protection clause 3: recognizing that potential jurors as well as litigants have a right based in the equal protection clause to nondiscriminatory jury selection procedures 4: holding that the equal protection clause also prohibits discrimination in jury selection on the basis of gender | [
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provisions of the statute condition the protection offered on a showing that military service adversely affected the ability to assert or protect a legal right, Congress’s omission of any such requirement in this section was deliberate). ii Application of Section 526 There is no dispute, and the Court so holds, that the appellant’s period of military service on active duty in the U.S. Army from May 16, 2011, to June 29, 2012, satisfies the SCRA’s definition of “military service.” 50 U.S.C. app. § 511(2). Thus, applying section 526 to the facts of this case, the Court holds the appellant’s time to file an NOA from the Board’s October 25, 2011, decision was tolled until June 29, 2012, the date he was released from active duty. See Diamond v. United States, 344 F.2d 703, 707 (Ct.C1.1965) (<HOLDING>). Accordingly, the appellant had 120 days from Holdings: 0: holding that even though the victim has settled a civil claim and signed a release the state is not barred from seeking or the court from imposing reasonable restitution 1: holding the timeliness provision in the habeas corpus statute is subject to equitable tolling 2: holding that the law imposes on every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm and calls a violation of that duty negligence that a complete binding contract between the parties is not a prerequisite to a duty to use due care in ones actions and that architects may be held liable for a breach of the duty of care and breach of contract that results in foreseeable injury economic or otherwise 3: holding that a release of unknown claims has no effect in the absence of evidence apart from the words of the release 4: holding that tolling under similar provision in the soldiers and sailors civil relief act ended upon release from active duty | [
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substance unless the substance was obtained directly from, or pursu.- it to, a valid prescription or order of a practitioner while s’ :ing in the course of professional practice or except as otb rwise authorized by ORS 475.005 to 475.285 and 475.8401 475.980.” ORS 475.840(3) contains or refers to a number of terms that are defined by statute, including “controlled substance,” ORS 475.005(6), “marijuana,” ORS 475.005(16), “practitioner,” ORS 475.005(18), “prescription,” ORS 475.005(19), “knowingly,” ORS 161.105(8), “intentionally,” ORS 161.085(7), and “possess,” ORS 161.015(9). When the legislature provides a specific meaning for a word used in a statute, courts have no authority to add or subtract from that definition. See, e.g., State v. Jones, 339 Or 438, 445, 121 P3d 657 (2005) (<HOLDING>). ORS 475.005 does not include a definition of Holdings: 0: holding that an initial communication within the meaning of the fdcpa includes the initiation of a lawsuit 1: holding that statutory words must be given their ordinary contemporary meaning 2: holding that by using a very specific meaning of the words oral communication the legislature limited the reach of a statutory suppression remedy 3: recognizing that we must give meaning to all the words in the claims 4: recognizing that the court must give meaning to all the words in the claims | [
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because of an imputed political opinion. Singh testified that the Indian police were interested in him because of his relationship to Khan, his domestic servant. An “applicant’s association with, or relationship to, people who are known to hold a particular political opinion” may serve as indirect evidence of an imputed political opinion. Garcia-Milian, 755 F.3d at 1032 (quoting Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000)) (internal quotation mark omitted). That appears to be precisely the case here. The Punjabi police asserted that Singh was a “traitor” based solely on his association with Khan, a reason we have repeatedly held to support the conclusion that a political opinion has been imputed to the applicant. See, e.g., Silaya v. Mukasey, 524 F.3d 1066, 1070-72 (9th Cir.2008) (<HOLDING>). The police targeted Singh and imputed Holdings: 0: holding that fathers military service alone was neither political opinion nor sufficient to establish imputed political opinion 1: holding that persecutors statements indicating that they had chosen her because of her fathers relationship to the philippine government constituted persecution on account of an imputed political opinion 2: holding that imputed political opinion is a protected ground 3: holding that applicant failed to establish imputed political opinion where he presented no evidence that an antigovernmental guerilla group imputed his fathers political beliefs to him 4: holding that retaliation for opposition to government corruption can constitute persecution on account of a political opinion | [
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Court Intervention 'Unit, following the issuance of a Protective Order removing the children to Polinsky by the Juvenile Court and the subsequent return of the children to the Mann home. Pis. Opp. and Resp. to Defs. Separate Statement of Undisputed Material Facts 3, ECF No. 203. As such, Monge and Solis played no role in the initial removal of the Mann children. Moreover, Monge and Solis are entitled to absolute immunity with respect to the actions they took following the court order. See Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir.2010) (noting that “[ajbsolute immunity is extended to state officials, such as social workers, when they are performing quasi-prosecutorial and quasi-judicial functions” such as the execution of court orders); Mabe, 237 F.3d at 1109 (<HOLDING>); see also Engebretson v. Mahoney, 724 F.3d Holdings: 0: holding that social workers are entitled to absolute immunity when prosecuting child delinquency petitions 1: holding that social workers enjoy absolute quasijudicial immunity when making postadjudication custody decisions pursuant to a valid court order quotation omitted 2: holding that state prosecutors enjoy absolute immunity for the initiation and pursuit of a criminal prosecution 3: holding that absolute immunity cannot attach to a quasijudicial officer if his actions are clearly and completely outside the scope of his jurisdiction 4: holding that officials charged with the duty of executing a facially valid court order enjoy absolute immunity | [
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63 . Id., at pp. 81-82. 64 . Id., atp. 88. 65 . See note 16, supra, and accompanying text. 66 . FEH Transcript, testimony of Dr. Shelia Bailey, atp. 101. 67 . Id., atpp. 102-03. 68 . Id., at p. 103. 69 . Id., at p. 104. 70 . Id., atp. 105. 71 . Id., atpp. 105-06. 72 . Id., at p. 107. 73 . Id., atp. 107. 74 . Id., atpp. 108-09, 114, 126. 75 . Id., atpp. 108-09, 126. 76 . Id., atp. 109. 77 . Id., atp. 109. 78 . Id., atp. 110. 79 . Id., atpp. 115-16. 80 . Id., atpp. 124-25. 81 . Id., atp. 134. 82 . Id., at p. 134. 83 . Id., atp. 137. 84 . FEH Transcript, testimony of Dr. Mary Alice Conroy, atp. 138. 85 . Id., atp. 139. 86 . Id., atp. 143. 87 . Id., atp. 143. 88 . Id., atp. 144. 89 . Report of Dr. Michael A. Ro 2 L.Ed.2d 860 (1995); Meraz v. State, 785 S.W.2d 146, 150 (Tex.Crim.App.1990)(<HOLDING>). The Texas Penal Code provides in pertinent Holdings: 0: holding hrs 7044114 which places the burden on the insanity acquittee to prove by a preponderance of the evidence that he or she is fit to be released does not violate due process principles 1: holding at trial a criminal defendant has the burden to prove his insanity by a preponderance of the evidence 2: holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence 3: holding that the government must prove the facts used in sentencing by a preponderance of the evidence 4: holding sections 801 and 204 of the texas penal code work together to impose the burden on the defendant to prove insanity by a preponderance of the evidence | [
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as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights.” The court went on to say that the possibility of being held in default acts as a deterrent to those parties resorting to delay as an element of their litigation strategy. 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2681 (1983) (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C.Cir.1970)). Some courts have considered default judgement to be an appropriate sanction when a respondent fails to answer the writ. See, e.g., Ruiz v. Cady, 660 F.2d 337 (7th Cir.1981) (<HOLDING>). In Ruiz v. Cady, the court reasoned that if Holdings: 0: holding generally that new rules of law should not be applied retroactively in habeas corpus cases 1: holding that a writ of habeas corpus cannot be used to review the weight of evidence 2: holding mcnally not to be retroactive in habeas corpus proceeding reversed on appeal 3: holding that although default judgement should be rare in a habeas corpus proceeding it should be preserved as a sanction against a respondents unwarranted delay 4: holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus | [
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citing Seymour v. Potts & Callahan Contracting Co., 2 F.R.D. 38, 39-40 (D.D.C., 1941) (stating that while there is no express provision in Fed. R. Civ. Proc. 59 for a motion to rehear, there is implied recognition of such a procedure). Plaintiff argues for inclusion of the newly discovered evidence under Fed. R. Civ. Proc. 52, 59, 60, and 61. Specifically, Plaintiff cites Fed. R. Civ. Proc. 60(b) as the standard for introduction of newly discovered evidence. Mr. France’s main argument for failing to pursue these documents earlier rests on the ground of “excusable neglect.” See In re Paine Webber Short Term U.S. Gov’t Income Fund, 1995 WL 512703 (S.D.N.Y. August 29, 1995), citing Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 394-395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (<HOLDING>). While it is not entirely clear which Federal Holdings: 0: holding that in selecting a proper discovery sanction a court should typically consider 1 the reasons the government delayed producing requested materials including whether the government acted in bad faith 2 the extent of prejudice to defendant as a result of the delay and 3 the feasibility of curing the prejudice with a continuance 1: holding that the standard that the district court must apply when considering a motion to dissolve an injunction is whether the movant has made a showing that changed circumstances warrant the discontinuation of the order 2: holding that the excusable neglect inquiry is at bottom an equitable one that should be made by considering the danger of prejudice to the nonmoving party the length of the delay and its potential impact upon judicial proceedings the reason for the delay including whether it was in the reasonable control of the movant and whether the movant acted in good faith 3: holding that when determining prejudice under the objective test relevant considerations include 1 whether the extrinsic evidence was received by the jury and the manner in which it was received 2 whether it was available to the jury for a lengthy period of time 3 whether it was discussed and considered extensively by the jury 4 whether it was introduced before a jury verdict was reached and if so at what point during the deliberations and 5 whether it was reasonably likely to affect the verdict considering the strength of the governments case and whether the governments case outweighed any possible prejudice caused by the extrinsic evidence 4: holding that when determining whether a delay in prosecution violates a defendants right to a speedy trial courts must consider the length of the delay the reason for the delay whether the defendant asserted his rights and the resulting prejudice to the defendant | [
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F.3d at 379. Deering’s argument that the district court lacked subject matter jurisdiction over him because his crime did not take place on federally-owned land and the Tenth Amendment reserves drug prosecutions such as his to the states is without merit. See United States v. Owens, 996 F.2d 59, 61 (5th Cir.1993) (per curiam) (prosecution under 21 U.S.C. §§ 841(a) and 846 did “not run Cir.1996) (where defendant did not object below, this court reviews for plain error only), cert. denied, 519 U.S. 1133, 117 S.Ct. 998, 136 L.Ed.2d 877 (1997). Accordingly, we affirm the judgment of the district court. 1 . The Honorable Michael J. Melloy, Chief Judge, United States District Court for the Northern District of Iowa. 2 . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) Holdings: 0: holding that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution 1: holding that suppression of evidence by the prosecution of evidence favorable to the defendant upon request violates the defendants right to due process where the evidence is material 2: holding that suppression of evidence favorable to an accused upon request violates due process when evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution 3: holding prosecutions suppression of favorable material evidence violates due process 4: holding that suppression by government of evidence favorable to accused upon request violates due process when evidence is material to guilt | [
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doors. Reddock fled from the house as police were arriving. 9 . At the time, Boyd’s co-defendants included appellant Walker and Owens. 10 . Boyd’s additional argument, that he was entitled to a separate trial because of Easter-ling's and Travis's testimony that they knew Boyd from selling drugs, has no merit. This could have come in even in a separate trial. For example, the testimony that Easterling blurted — that he and Boyd "used to hustle together” — came in as the prosecutor was asking questions designed to elicit that “a person who actually knew [Easterling] [and presumably knew that Easterling sometimes had large sums of cash] was Brian Boyd.” 11 . At that point, the defense had stricken seven white jurors. 12 . See also Robinson v. United States, 878 A.2d 1273, 1277 (D.C.2005) (<HOLDING>). 13 . The court did not make a finding about Holdings: 0: holding that a criminal defendant can bring a third party challenge to the peremptory striking of jurors based on race whether or not he is of the same race as the jurors who are struck 1: holding that a violation of 1981 requires purposeful race discrimination 2: holding that reasons for excusing black jurors that were objectively contradicted by the record provided evidence of purposeful discrimination 3: holding race and gender discrimination claim barred 4: holding that tire purposeful exclusion of prospective jurors because they are black and female is discrimination on account of both race and gender in direct violation of batson | [
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the premises to serve the common interests of the hotel and defendant. The results of tracking in enough snow and water to create a five-foot puddle were obvious and easily foreseeable; the severity of the harm created by this condition readily apparent; the opportunity to notify of the condition and insure prevention of the obvious danger readily available and the fairness of imposing such duty indisputable. Defendant claims that the custom in the industry precludes the imposition of a duty to notify. Even if it is the custom of a delivery person- not to alert the premises owner of a hazard that he has created, the custom is wrong. See United States v. Carroll Towing Co., 159 F.2d 169, 173, reh’g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.) (<HOLDING>), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 Holdings: 0: holding that it was proper for court to rely on affidavits of defendants representatives in negotiations because their personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore 1: recognizing drug traffickers will commonly possess firearms to protect their product to protect their drugs to protect their cash to protect their life and even to protect their turf alteration in original internal quotation marks omit ted 2: holding that while trial courts are encouraged to state all findings in their written orders they are not required to do so as long as the basis for their decisions is clear from the record and thus susceptible to review 3: recognizing strong preference that children live in their own homes with their own families 4: holding that tugs not equipped with radios were unseaworthy despite the custom among carriers to rely upon their crews to supply their own radios noting courts must in the end say what is required there are precautions so imperative that even their universal disregard will not excuse their omission | [
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a lien to Lot 125. Applicable principles of contract interpretation show that the trial court did not err in finding that a valid contract existed between DNS and the Family Trust for the construction of a seawall on Lot 125. Accordingly, the court was correct in ruling that DNS was precluded from recovering against the Family Trust under the theory of quantum meruit, because a valid contract existed between them, and DNS failed to bring a breach of contract clainl against the Family Trust. While DNS argues that if the Family Trust was a party to the seawall contract, then a breach of contract claim against the Trust was tried by acquiescence, there is no evidence to support this argument. See generally Alfred S. Austin Constr. Co., Inc. v. Narnia, 220 So.2d 36, 37 (Fla. 2d DCA 1969) (<HOLDING>). Thus, we affirm the trial court’s order Holdings: 0: holding that this court will not consider a theory or issue that was not pleaded or raised in the trial court 1: holding that the court neither weighs the evidence nor substitutes its own judgment for that of the agency 2: holding that where judgment was not entered the appeals period neither triggered nor expired 3: holding that court will not take judicial notice of foreign law that is neither pleaded nor proven 4: holding that trial court erroneously entered judgment pursuant to a theory which was neither pleaded nor tried by acquiescence or otherwise | [
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v. Greenway, 170 Ariz. 155, 167-68, 823 P.2d 22, 34-35 (1991) (rejecting double jeopardy argument and finding aggravating factor applied to each of defendant’s first degree murder convictions when both murders were committed during commission of offense); see also State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994) (same). 9. Is the death penalty proportional in this case? See State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992) (proportionality review not constitutionally required and court no longer conducts them). 10. Is death by lethal gas cruel and unusual punishment, barred by the 8th and 14th Amendments to the United States Constitution and article 2, § 15 of the Arizona Constitution? No. State v. Williams, 166 Ariz. 132, 142, 800 P.2d 1240, 1250 (1987) (<HOLDING>); see also Ariz. Const, art. 22, § 22 (approved Holdings: 0: holding that execution of the mentally retarded is prohibited under the eighth amendment to the united states constitution 1: holding that defendants claim that execution by electrocution or lethal injection constitutes cruel and unusual punishment is meritless 2: holding execution of mentally retarded individuals fails to achieve legitimate penalogical objectives for punishment as required by the eighth amendment to the united states constitution and article i 16 of the tennessee constitution 3: holding that execution by lethal gas is not cruel and unusual punishment prohibited by either 8th and 14th amendments to united states constitution or article 2 15 of the arizona constitution 4: holding californias sole method of execution lethal gas unconstitutional under the federal cruel and unusual provision | [
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incriminating information. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Drury v. State, 368 Md. 331, 335-36, 793 A.2d 567 (2002). The circuit court, however, found that Minehan was not in custody for purposes of Miranda, a finding we uphold after examining several cases and closely reading the transcript of the interrogation. Custody means a formal arrest, or another serious restriction on freedom of movement. See Miranda, 384 U.S. at 477, 86 S.Ct. 1602. It is an objective state that is entered when a suspect is “led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority.” Bond v. State, 142 Md.App. 219, 228, 788 A.2d 705 (2002) (citations omitted) (<HOLDING>). Practically speaking, we must consider: where Holdings: 0: holding that a juvenile questioned by an officer over the phone was not in custody 1: holding no reasonable suspicion where only indicia of criminal activity was truck driving on public road late at night 2: holding that defendant was in custody when police questioned him in his bedroom late at night 3: holding that a 17yearold questioned by an officer in the driveway outside of his home was not in custody 4: holding that ones presence in a high crime area late at night without more will not justify an investigatory stop | [
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about what course of conduct is best, but a court must “remember that the ultimate issue is whether the patients’ basic liberty interests are being safeguarded, not whether the optimal course of treatment as determined by some expert is being followed.” Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2d Cir.1984). “[Cjonstitutional standards are met when the professional who made a decision exercised ‘professional judgment’ at the time the decision was made.” Id. The court concludes that the Youngberg test is the appropriate standard in this case for determining whether the defendants’ violated M.H.’s substantive due process rights by their use of physical and mechanical restraints. See Society for Good Will to Retarded Children, 737 F.2d at 1245-46 (<HOLDING>); see also Heidemann v. Rother, 84 F.3d 1021, Holdings: 0: holding that a students right to bodily integrity under the fourteenth amendment encompasses a students right to be free from sexual assaults by his or her teachers 1: holding that school district policy requiring that students obtain the review and approval of school officials prior to distributing any written material violated free speech rights of students 2: holding that students free speech rights were breached by school officials when they prohibited students from peacefully wearing freedom buttons that advocated the lawful and peaceful abolition of racial segregation 3: holding that youngberg standard was appropriate to analyze whether students at state operated school for the mentally retarded were deprived of their right to freedom from undue bodily restraint 4: holding that school officials may not limit the first amendment rights of students and teachers to freedom of speech and expression | [
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highway and road design standards generally accepted at the time the road or highway was designed and constructed.” 4 . From the record, it is apparent that the trial court rested it ruling on MHTC’s argument that the PSC had exclusive jurisdiction over the placement of both the railroad crossing and the bridges. 5 . All statutory references are to RSMo 1994 unless otherwise noted. 6 . By the adoption of § 622.015, RSMo 1986, the legislature transferred all powers, duties, and functions relating to transportation activity within the State from the PSC to the Division of Transportation of the Department of Economic Development. Coon v. Atchison, Topeka & Santa Fe, 826 S.W.2d 66, 69 (Mo.App. W.D.1992). 7 . See also Walker v. St. Louis-Southwestern Ry., 835 S.W.2d 469 (Mo.App. E.D.1992) (<HOLDING>). 8 . See § 386.550, RSMo 1986 ("In all Holdings: 0: holding that where evidence shows that federal funds were expended for installation for warning devices or signs at railroad crossing state law claims based on adequacy of those warning devices are preempted by the federal railroad safety act 1: holding that in a personal injury action against a railroad a report containing the conclusions of a hearing examiner of the public utilities commission regarding an alleged hazardous railroad crossing was obvious hearsay 2: holding the state law claims were not preempted 3: holding claims that a railroad crossing was extrahazardous that warning devices were inadequate and that the train was not operating at a speed commensurate with the hazardous nature of the crossing were all preempted by federal law 4: holding that the old common law duty to moderate train speed at an extra or ultrahazardous crossing is preempted | [
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created, not the individual features.” Gateway, Inc. v. Companion Prods., Inc., 384 F.3d 503, 507 (8th Cir.2004). A parody does not receive absolute protection from trademark law; however, “a parody contained in an obvious editorial context is less likely to confuse, and thus [is] more deserving of protection than [trade dress and trademarks] displayed on a product.” Anheuser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769, 776 (8th Cir.1994). Although the Lanham Act does not require that a parody carry a disclaimer, the fact that the parody carries a label stating “satire” or “parody” “should alert most consumers” that the item is a parody. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d 490, 496 (2d Cir.1989). See also Anheuser-Busch, Inc., 28 F.3d at 776-77 (<HOLDING>). When determining the likelihood of confusion, Holdings: 0: holding that because the defendant could not have reasonably believed that the third person would have been justified in using force the trial courts finding of guilt was supported by substantial evidence 1: holding that ad parody violated lanham act but that by using an obvious disclaimer defendant could have substantially lessened risk of consumer confusion 2: holding that a statement of remorse by defendant would not have substantially affected the jurys deliberations 3: holding that the least sophisticated consumer standard applies to whether 1692e has been violated 4: holding that a contractor who had substantially complied with the building specifications substantially performed | [
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to the 90-day time period, the BIA does not abuse its discretion in denying the untimely motion to reopen. Abdi, 430 F.3d at 1150. Additionally, the BIA may deny a motion to reopen even if the alien establishes a prima facie case for relief. 8 C.F.R. § 1003.2(a). In this case, the BIA did not abuse its discretion in denying Likollari’s motion to reopen. As the record shows, the majority of the evidence presented could have been presented during his asylum proceedings, and the remainder of the evidence failed to establish changed country conditions. First, the affidavit of Likollari’s attorney, Marina Meyerovich, could not be considered evidence of changed circumstances because an attorney’s arguments are not evidence. Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (BIA 1980) (<HOLDING>). Similarly, Likollari’s sister’s and parents’ Holdings: 0: holding that arguments which are not sufficiently developed are waived 1: holding that attorneys and not clients choose the arguments to present 2: holding that an attorneys arguments are not evidence 3: holding that arguments not raised in district court are waived 4: holding that arguments not raised before the trial court are waived | [
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that he believed $15,000 would be reasonable. He also testified that, should the case go on to the Texas Supreme Court, another $5,000 to $7,000 would be required. O’Farrill’s attorney cross-examined the witness regarding the witness’s experience in filing appeals. O’Farrill’s attorney then took the stand and testified that reasonable appellate fees for an appeal to this court would be $1,500, and another $1,500 for an appeal to the Texas Supreme Court. This conflicting testimony raised a fact issue, which was resolved by the trial judge when he awarded $10,000 in appellate fees for an appeal to this court and $5,000 for an appeal to the state supreme court. This amount was somewhat less than requested and a great deal more than O’Farrill’s attorneys argued was reasonable. See id. (<HOLDING>). Legally sufficient evidence was before the Holdings: 0: holding that testimony of two experts was unreliable because they relied on the testimony of two other experts which was also unreliable 1: holding that even if an experts testimony arguably embraced the ultimate issue such testimony is permissible as long as the experts testimony assists rather than supplants the jurys judgment 2: holding that conflicting testimony raised fact issue fact finder was not obliged to accept one experts testimony over the other 3: holding that the issue of proximate causation involves application of law to fact which should be left to the fact finder subject to limited review 4: holding the question of necessity is one of mixed law and fact and accordingly one for the fact finder in the ordinary case | [
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of the Convention without any reservation, understandings or alterations specifically pertaining to its scope, we would find it difficult to interpret the statute as narrowly as the defendants suggest: Such a construction would likely create a conflict with our international treaty obligations, with which we presume Congress meant to comply fully. See Restatement (Third) of Foreign Relations Law, § 115, cmt. a (1987) ("It is generally assumed that Congress does not intend to repudiate an international obligation of the United States by nullifying a rule of international law or an international agreement as domestic law, or by making it impossible for the United States to carry out its obligations.”); Boureslan v. Aramco, 857 F.2d 1014, 1023 (5th Cir.1988) (King, J. dissenting) (<HOLDING>). We recognize that there may be some variation Holdings: 0: recognizing a presumption of reasonableness 1: recognizing presumption 2: recognizing the presumption that congress does not intend to violate international law 3: recognizing added presumption 4: recognizing this presumption | [
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associated with the judicial phase of the criminal process.” “Since the [Supreme] Court’s decision in Imbler, courts have taken a functional approach to absolute immunity.” “The analytical key to prosecutorial immunity ... is advocacy-whether the actions in question are those of an advocate.” “If the challenged actions of the prosecutor were not performed in his role as advocate, if they do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings, then only qualified immunity applies.” But courts will bar § 1983 suits arising out of even unquestionably illegal or improper conduct by the prosecutor so long as the general nature of the action in question is part of the normal duties of a prosecutor. Imbler, 424 U.S. at 413, 430, 96 S.Ct. 984 (<HOLDING>); Jones v. Shankland, 800 F.2d 77, 80 (6th Holdings: 0: holding that while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings they were not entitled to absolute immunity on a 1983 claim that they conspired to present false testimony 1: holding that prosecutors enjoy absolute immunity from 1983 suits for initiating a prosecution and presenting the case at trial 2: holding that the prosecutor is prohibited from knowingly presenting or failing to correct false and material evidence against the defendant 3: holding that a prosecutor accused of knowingly presenting false testimony at trial is protected by absolute immunity 4: holding that prosecutor cannot obtain conviction with the aid of false testimony where the prosecutor knows such testimony is false | [
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because the police officers’ actions were ‘discretionary’ for the purposes of qualified immunity under federal law, they were also performing 'discretionary functions’ for the purposes of [immunity under state law].”); Greiner v. City of Champlin, 816 F.Supp. 528, 545 (D.Minn 1993) ("The federal doctrine of qualified immunity does not apply to claims brought under [state] law.”). 3 . While some jurisdictions have held that a high-speed chase does not involve an officer's discretion, see Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090, 1100-01 (1993) (noting that discretionary immunity is limited to discretion exercised at highest levels of government in matters of .policy or planning and is not applicable in pursuit case); City of Pinellas Park v. Brown, 604 So.2d 1222, 1226 (Fla.1992) (<HOLDING>), the officers involved usually have had their Holdings: 0: holding officers engaged in search entitled to immunity 1: holding that immunity did not shield officers involved in 25mile highspeed chase of traffic violator because decisions by officers to continue the chase were operational rather than discretionary acts 2: holding that police officers who engaged in a dangerous highspeed chase of a fleeing suspect were immune from suit 3: holding that an officers use of deadly force to stop a dangerous car chase did not shock the conscience because an officers poor judgment in using unreasonable force does not automatically convert the officers acts into conscience shocking conduct 4: holding officers involved in investigatory raid entitled to immunity | [
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errors in it. Id. at Ex. 2, ¶ 29. Moreover, she failed to prepare for the March 10, 2004 meeting, and then became so emotional during the meeting that she could not function. Id. at Ex. 2, ¶¶ 31-33. She admits that she was falling behind at work, that she lacked focus, and that she was misplacing things. (R. Doc. 30-5 at Ex. 4, pp. 173-74, 180). The evidence supporting each of these contentions is not in dispute. When there is overwhelming and uncon-tradieted evidence that an adverse employment action was taken for other reasons, mere temporal proximity between the adverse action and an employee’s protected activity is insufficient to raise an issue of fact as to whether an employee was fired for taking leave. See Swanson v. General Services Admin., 110 F.3d 1180, 1188 (5th Cir.1997) (<HOLDING>); Alfonso-Ferro v. Stolthaven New Orleans, Holdings: 0: holding that more favorable treatment of similarly situated employees outside the race classification is required to make a prima facie race discrimination case 1: holding that in title vii disparate treatment case in order for a plaintiff to establish a prima facie case the plaintiff must proffer evidence among other things that she performed her job according to her employers legitimate expectations if the plaintiff establishes the prima facie case the presumption shifts the burden to the employer to produce a legitimate nondiseriminatory reason for its actions 2: holding that the fact that employer had knowledge of the employees protected activity was not sufficient to establish a prima facie case of retaliation where the timing of the discharge was not proximate to the protected activity 3: holding in a race discrimination case that close timing is an element of the plaintiffs prima facie case but insufficient on its own to rebut a legitimate nondiscriminatory reason that explains the action and its timing 4: holding that once an employer asserts a legitimate nondiscriminatory reason for its action it has done everything that would be required if the plaintiff had properly made out a prima facie case so whether the plaintiff really did so is no longer relevant | [
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be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 . Mejorado mentions that the court violated his Fifth and Sixth Amendment rights by preventing him from consulting with Reyna during the suppression hearing, but fails to adequately brief this assertion. The closest that Mejorado comes to arguing the point is the Delphic reference in his reply brief to McKas-kle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Mejorado, however, does not explain how McKaskle, which held that a defendant’s Sixth Amendment right are not violated when a trial judge appoints standby counsel, or any other case or authority supports his view. Accordingly, the issue is waived. United States v. Bailentia, 717 F.3d 448, 449 (5th Cir.2013) (<HOLDING>), cert. denied, - U.S. -, 134 S.Ct. 543, 187 Holdings: 0: holding issues raised in notice of appeal but not briefed are deemed waived 1: recognizing that arguments not briefed on appeal are waived 2: holding that generally arguments not briefed on appeal are deemed abandoned or waived 3: holding that an inadequately briefed assertion is waived on appeal 4: holding that arguments inadequately briefed in the opening brief are waived | [
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Polsby v. Shalala, - U.S. -, 113 S.Ct. 1940, 123 L.Ed.2d 646 (1993). Because the Supreme Court vacated Polsby on this ground, no meaningful argument can be made that the Supreme Court in any way addressed the merits of the present issue or concluded Polsby to be legally incorrect. See United States Dep't of Health & Human Servs. v. Federal Labor Relations Auth., 983 F.2d 578, 581-82 & n.2 (4th Cir.1992) (adopting reasoning of vacated opinion where vacatur did not address the issue). In light of the Supreme Court’s action, we write on a clean slate. 2 . See Reed, 939 F.2d at 492-93. 3 . See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); Passer v. American Chem. Soc’y., 935 F.2d 322, 331 (D.C.Cir.1991) (<HOLDING>); Bailey v. USX Corp., 850 F.2d 1506, 1509 Holdings: 0: holding that the adeas parallel provision prohibits retaliation against a federal employee who complains of age discrimination 1: holding employee under fair labor standard acts antiretaliation provision includes former employees 2: holding that claims arising under the age discrimination in employment act may be subject to arbitration 3: holding employees under age discrimination in employment acts adea parallel retaliation provision includes former employees as long as the alleged discrimination is related to or arises out of the employment relationship 4: holding that the age discrimination in employment act was not preempted by the nlra | [
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liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). The appellant argues that a farm tractor is a dangerous instrumentality because the legislature defines a farm tractor as a “motor vehicle” and extensively regulates their use. This argument is without merit. Although a farm tractor meets the statutory definition of a “motor vehicle,” at least three of our sister courts have held that statutory definitions of “motor vehicle” are not controlling in determining whether a device is a dangerous instrumentality. See §§ 316.003(12) & 322.01(19), Fla. Stat. (2008); Festival Fun Parks, LLC v. Gooch, 904 So.2d 542, 545-46 (Fla. 4th DCA 2005) (<HOLDING>); Edwards v. ABC Transp. Co., 616 So.2d 142, Holdings: 0: holding that plaintiff who slipped and fell on ice while securing cars on his employers motor vehicle carrier preparing to travel was very close to the vehicle and engaged in a task related to the vehicle and therefore was an occupier of a motor vehicle 1: holding that a trailer is not a dangerous instrumentality notwithstanding the fact that it meets the statutory definition of a motor vehicle 2: holding that the statutory definition of motor vehicle is not controlling 3: holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle 4: holding that although it does not meet the statutory definition of a motor vehicle a forklift is a dangerous instrumentality | [
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that state courts should generally follow the twists and turns in federal law would be ironic in light of the congressional intent to allow, if not encourage, state experimentation. G. A Note on Law of the Case, Stare Decisis, and Dictum. If one looks through our ICRA cases, federal cases are often simply cited for propositions of law without substantive discussion. Often times in this setting, we were simply restating legal principles that the parties were not contesting in the case. When a legal principle is embraced by the parties by agreement and is not contested on appeal, the court’s subsequent recitation of the legal principle is not a holding in the case that was a product of an adversary proceeding. See Berger v. Gen. United Grp., Inc., 268 N.W.2d 630, 635 (Iowa 1978) (<HOLDING>); see also United States v. Hemingway, 734 F.3d Holdings: 0: holding that the coordinate jurisdiction rule and all its attendant meanings and limitations expressed in previous case law would be assumed into law of the case doctrine 1: holding that because plaintiffs assumed delaware law was properly pled and proven by defendants we would consider delaware law but stressed that this case was not precedent for ignoring our rules of pleading and proof on foreign law 2: holding that a party relying on foreign law must plead and prove it and partys failure to do so entitles court to assume that foreign law is the same as forum law 3: holding that delaware law controlled delaware corporations capacity to sue or be sued 4: holding that the plaintiffs state law claims are preempted by federal law | [
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UMBC adopted a policy that addresses Plaintiffs’ facial constitutional challenge, namely by revising the policy to no longer allow university administrators to relocate an event for any reason. Additionally, and more importantly in light of the Fourth Circuit’s reasoning in Valero, there is no evidence in the record that UMBC has any intention to reenact its former Policy on Facilities Use. “Defendants have made the [revised Policy on Facilities Use] as public and as permanent as possible” by formally changing the policy, alerting the Court to the revision, and updating their public website to include the revised policy. Alpha Iota Omega Christian Fraternity v. Moeser, No. 1:04CV00765, 2006 WL 1286186, at *4, 2006 U.S. Dist. LEXIS 28065, at *16 (M.D.N.C. May 4, 2006) (unpublished) (<HOLDING>). Accordingly, Plaintiffs’ motion for summary Holdings: 0: recognizing that it is not essential for there to be a direct threat of litigation in order to invoke the declaratory judgment act 1: holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment 2: holding that a court may reach the merits in a declaratory judgment action when an agency decision although a notice or advisory opinion can affect property uses 3: recognizing that the court would be engaging in purely advisory theoretical analysis if it were to enter a declaratory judgment on the constitutionality of a nonexistent policy and refusing to do so at 4 2006 us dist lexis 28065 at 2627 4: recognizing that the declaratory judgment act is procedural in nature and not an extension of federal court jurisdiction | [
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Unionamerica Insurance Company Limited, and Certain Underwriters at Lloyd’s, London subscribing to Lloyd’s Excess Liability Claims Made Policy No. N00060A96 — of the Missouri plaintiffs claim. When the insurers denied Amtrak’s request for coverage, it filed suit. Before the Court is defendants’ Motion for Summary Judgment, which seeks the dismissal of Amtrak’s complaint on the ground that it failed to give timely notice of the Missouri case as required by each of the insurers’ policies. For the reasons below, the Court will grant defendants’ motion. BACKGROUND The facts underlying the present dispute are familiar and need not be repeated here, this being the third dispositive motion to have arisen from the parties’ disagreement regarding insurance coverage. See Amtrak, 365 F.3d at 1107 (<HOLDING>); Nat’l R.R. Passenger Corp. v. Lexington Ins. Holdings: 0: holding for similar though not identical reasons that commodities transactions are not covered by the act 1: holding that public speech motivated by personal displeasure with policies was not covered by the first amendment 2: holding that the missouri claim was not covered under an identical set of policies covering the period from october 1 1997 to september 30 1998 3: holding that variable insurance policies are covered securities under slusa 4: holding that an identical or nearly identical limitation of liability clause was valid and enforceable under georgia law | [
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Court explained this concept as follows: It is true, when the defendants ... purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, ... the supervision of the public health and the public morals is a governmental power, continuing in its nature, and to be dealt with as the special exigencies of the moment may require; and that, for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself. Mugler v. Kansas, 123 U.S. 623, 669, 8 S.Ct. 278, 31 L.Ed. 205 (1887) (internal citations and quotations omitted) (<HOLDING>). While the owner of land might once have been Holdings: 0: holding that local ordinance prohibiting the sale of beer or wine to persons less than 21 years of age was not preempted by state statute prohibiting the furnishing of any alcoholic beverages to persons under 21 1: holding that the statute qualifies as an exemption 3 statute 2: holding that the title of the statute did not limit the reach of the statute 3: holding that a state statute that prohibited manufacture of alcoholic beverages was not a taking even though such manufacture was legal before the statute 4: holding that the state must prove criminal negligence for its homicide by vehicle statute even though the statute specifically states that any traffic violation is sufficient | [
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days. We have held that an insurer or self-insured employer’s failure to serve the denial on a claimant’s attorney may be such “good cause.” See, e.g., Freres Lumber Co. v. Jegglie, 106 Or App 27, 806 P2d 164 (1991); Cowart v. SAIF, 94 Or App 288, 765 P2d 226 (1988). See also ORS 656.331(l)(b) (setting forth situations in which insurers and self-insured employers may not contact claimants without also contacting their attorneys); OAR 436-060-0015 (same). The legislature has not created any similar mechanism with respect to ORS 656.295(8). If a petition for judicial review is not filed before the order becomes final, we lack the authority to consider why the petition was not timely. Cf. Pease v. National Council on Comp. Ins., 113 Or App 26, 29, 830 P2d 605, rev den 314 Or 391 (1992) (<HOLDING>). 10 Because of that “slippage” between the Holdings: 0: holding that the notice of appeal filed after the district court entered judgment as to one defendant but before the court dismissed the claims against the other defendants would have become effective when those defendants were later dismissed 1: holding that agency properly dismissed appeal not filed within statutory time limit where the legislature has not chosen to provide a way around the limitation for those who were unable to meet it for some reason 2: holding that this court has jurisdiction when the appellant has filed a docketing statement indicating an intent to appeal a particular order within the time for filing an appeal 3: holding that tenday time limit to appeal is both mandatory and jurisdictional and an appellate court has no jurisdiction over an untimely filed appeal 4: holding that a statutory right is a creature of the legislature and does not exist where the legislature has not acted | [
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is somewhat perplexed by C. Line's insistence that it is entitled to a license under a statutory scheme that C. Line itself admits is void. See PL's Br. 7 n. 2 ("The City of Davenport attempts to regulate live nude dancing by requiring the owners of cabaret businesses to obtain licenses from the City of Davenport to operate their cabaret businesses offering live nude dancing under Davenport City Code chapter 5.16. Under the Mall Real Estate case, Davenport City Code chapter 5.16 is null and void.”). 24 . Ordinarily, once a party seeking a civil contempt finding meets the burden to proffer clear and convincing evidence that the alleged contemnors violated a court order, the burden shifts to the alleged contemnor to show an inability to comply. See Chicago Truck Drivers, 207 F.3d at 506 (<HOLDING>) that they were unable to comply with the court Holdings: 0: holding that a contempt finding may be averted if the alleged contemnor establishes 1 1: recognizing that no warning to a contemnor is necessary when contempt is flagrant the aoc also argues that williamss use of the term bullshit justifies a separate contempt finding particularly in light of the warning provided by the initial contempt citation17 assuming without deciding that certain forms of contempt are so selfevident that they excuse a court from complying with the plain terms of the statute we disagree that the record before us presents such circumstances regarding the trial courts initial contempt finding we decline the aocs invitation to speculate that williamss inaudible comment to the court was contemptuous on its face williamss comment may have been a patent obscenity or an innocuous comment taken out of context by the court or anything in between further the trial courts failure to make findings deprives us of any other relevant cireumstances not apparent in the bare transcript such circumstances might include williamss body language gestures or even a general air of defiance while these circumstances when combined with williamss actual comment may well have supported a contempt citation we cannot uphold the contempt finding based on mere conjecture therefore we conclude that the first finding of contempt is insupportable on the facts present in the recordt18 whether williamss use of the term bullshit independently supports a contempt finding presents a closer question the record reveals that williams used that term to describe either the sentence the trial court had just imposed or the trial courts initial contempt citation more troubling however than the language itself is the apparent challenge to the courts authority and decorum see utah code ann 783211 defining contempt as inter alia dlisorderly contemptuous or insolent behavior toward the judge while holding the court tending to interrupt the due course of a trial or other judicial proceeding see also haton v tulsa 415 us 697 698 94 sct 1228 39 led2d 693 1974 a single isolated usage of street vernacular not directed at the judge or any officer of the court cannot constitutionally support the conviction of criminal contempt emphasis added 2: holding that the district court committed reversible error by imposing criminal sanctions in a civil proceeding which did not afford the contemnor the procedural protections the constitution requires for the imposition of criminal contempt sanctions 3: holding that because civil contempt is only to obtain compliance it must be used only where the contemnor has the present ability to comply with the court order and the trial court specifically finds that the contemnor has that ability 4: holding that incarceration for civil contempt cannot be imposed absent a finding by the trial court that the eontemnor has the present ability to purge himself of contempt | [
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however, provide an extension of time to otherwise comply with a nonbankruptcy statutory deadline to record a continuation of a security interest or mortgage. See In re Chase, 2000 WL 33712297, at *9 (Bankr.D.Idaho 2000) (“Under Section 362(b)(3), the automatic stay does not prohibit the perfection of an interest in property if such perfection occurs within [thirty] days as provided by Section 547(e)(2)(A)”); In re Planned Protective Svcs., Inc., 130 B.R. 94, 98 (Bankr.C.D.Cal.1991) (“[T]he post-petition recordation of a lien interest generally would be a violation of the automatic stay. However, § 362(b)(3) provides an exception for acts of perfection which are authorized under ... 547(e)(2)(A)”) (footnote omitted); cf. In re Millivision, Inc., 331 B.R. 515, 522-23 (Bankr.D.Mass.2005) (<HOLDING>). In other words, if 201 Forest had filed for Holdings: 0: holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay 1: holding judgment in violation of automatic stay void 2: holding that the automatic stay exception under 362b3 did not override the trustees 544a strong arm powers 3: holding that the protections of the automatic stay apply only to actions against the debtor 4: holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached would be inconsistent with the underlying purpose of the automatic stay | [
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legislature’s stated goal when it enacted § 82-1451(0) to “more effectively protect the public health, safety, and welfare,” we conclude that the nondisclosure provisions of § 32-1451.01(0) and (E) do not apply when the Board “determines that a criminal violation may have occurred involving the delivery of health care[.]” A.R.S. § 32-1451(0). ¶ 15 This is not the only situation in which the legislature has distinguished between civil and criminal cases when addressing evidence involving confidential or privileged information. For example, the legislature has enacted separate statutes for the corporate attorney-client privilege, providing a broader privilege in civil proceedings than in criminal proceedings. See Roman Catholic Diocese of Phoenix, 204 Ariz. at 231, ¶ 16, 62 P.3d at 976 (<HOLDING>). Although the Diocese in that case argued that Holdings: 0: holding that state legislature may at pleasure create or abolish public offices 1: holding that the legislature may create or expand privileges by statute 2: recognizing that the legislature can create statutory exceptions to atwill employment 3: holding that when the legislature enacts a statute it is presumed that the legislature is aware of existing statutes 4: holding that in order for there to be state debt in the constitutional sense one legislature in effect must obligate a future legislature to appropriate funds to discharge the debt created by the first legislature | [
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do appear to use the phrase “jurisdictional fact” to connote an essential allegation of fact needed to establish subject-matter jurisdiction or personal jurisdiction. See, e.g., Ex Parte Hayes, 25 Fla. 279, 282-83, 6 So. 64 (Fla. 1889) (stating “[t]he question, then, is, did the court acquire jurisdiction of the case? We think not. In a special proceeding of this kind everything the statute makes an ingredient of the case must be made to appear in the beginning. The affidavit or complaint of the prosecu-trix before the magistrate is the foundation of the proceeding, and, if it fails to show jurisdictional facts, the action on it of either the magistrate or the court to which it is sent will be coram non judice and void”); City of Jacksonville v. L’Engle, 20 Fla. 344, 348 (Fla. 1883) (<HOLDING>); Deans v. Wilcoxon, 18 Fla. 531, 550 (Fla. Holdings: 0: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit and the district court has considerable authority whether or not to exercise this power in light of such considerations as judicial economy convenience fairness to litigants and eomity 1: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit 2: holding the appellate court lacked jurisdiction to hear an appeal where the circuit court had the power to remand the agency decision for further proceedings 3: holding that sometimes court must look at facts involving merits of claim to determine its jurisdiction to hear claim 4: holding if the legislature had the power to confer upon the county commissioners jurisdiction to hear and determine the question as to whether or not a town was of undue extent and to deprive it of a part of its territory then the proceeding being statutory before a body of limited powers the record must show affirmatively that such a case was brought before them as they were authorized to hear and determine and that all the jurisdictional facts were found to exist where the jurisdiction and power to hear and determine depends upon the existence of a fact that fact must appear or the proceedings are coram non judice and void | [
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“final decision”); accord Culbertson v. Shalala, 30 F.3d 934, 937 n. 3 (8th Cir.1994); Duda v. Sec’y of Health and Human Servs., 834 F.2d 554, 555 (6th Cir.1987); see also Harper v. Bowen, 854 F.2d 678, 680 (4th Cir.1988) (remand orders in social security cases are generally not final, appealable orders). Thus, because Iwachiw’s appeal was not from a final decision of the Commissioner, the district court correctly concluded that it lacked jurisdiction to hear his suit. See Weinberger v. Salfi, 422 U.S. 749, 764, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). 2. Injunctive Relief and Other Claims The court’s lack of subject matter jurisdiction also precluded it from granting Iwachiw’s motion for interim injunctive relief. See DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73 (2d Cir.1992) (<HOLDING>); see also Fitzgerald v. Apfel, 148 F.3d 232, Holdings: 0: holding that a complaint that sought injunctive relief as well as such further relief as the court deems just did not present a factual allegation supporting a claim for damages 1: holding that lack of subject matter jurisdiction precluded court from awarding injunctive relief as well as damages 2: holding that district court appropriately dismissed suit for lack of subject matter jurisdiction when the case was moot 3: holding that a court may award injunctive relief against a state officer 4: holding that a lack of a waiver of sovereign immunity deprives federal courts of subject matter jurisdiction | [
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was insufficient to convict him. The District Court denied these motions. Wrensford and Muller appeal. II A Wrensford argues that the District Court erred in denying his motion to suppress because his involuntary transportation to the police station and detention in a cell constituted an arrest without probable cause, in violation of the Fourth Amendment. We agree and conclude that Wrensford’s transportation to C Command and placement in a cell was a de facto arrest. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....” U.S. Const. amend. IV. A “seizure” occurs when, “taking i 19 (plurality opinion) -(<HOLDING>); Dunaway v. New York, 442 U.S. 200, 207, 212, Holdings: 0: holding that escorting the defendant from a baggage claim area to a dea office approximately 75 yards away was an arrest and that his consent to the search of his bag in that office was tainted by the illegal seizure 1: holding that the defendant was not seized where one officer read information from the defendants airline ticket and another officer took notes observing that the officers immediately returned the ticket after examination and did not retain the ticket for an unusual length of time 2: holding fourth amendment not implicated when police officers approached defendant who was standing outside of an airport terminal and asked to see his airline ticket and identification 3: holding fourth amendment not implicated when police officers asked defendant to see his airline ticket asked for identification and requested consent to search him 4: holding that the defendant had been subjected to an illegal arrest when after detectives requested and did not return his airline ticket and drivers license he was asked to come with the officers from the concourse into an interrogation room approximately 40 feet away where his suitcases were searched | [
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Court never explicitly addressed the Appellants’ immunity claims, we must decide whether we have interlocutory jurisdiction to review an implied denial of those claims. We join the other Circuit Courts of Appeals that have addressed this issue and hold that we do. See Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir.1998); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir.1990); Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.1988); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir.1987); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986) (per curiam); see also Nelson v. Jashurek, 109 F.3d 142, 146-147 (3d Cir.1997) (suggesting interlocutory jurisdiction might exist where denial of qualified immunity claim can be inferred); Ryan v. Burlington County, 860 F.2d 1199, 1203 (3d Cir.1988) (<HOLDING>). Allowing this case to proceed to trial Holdings: 0: holding the order is only reviewable if actually considered by the district court 1: holding that a district courts order is final and immediately reviewable under mitchell if the appellants properly raised a claim of qualified immunity in the district court 2: holding that a denial of a claim of qualified immunity is an appealable final decision 3: holding district courts order postponing ruling on defendants qualified immunity defense was immediately appealable 4: holding that the issue of whether the attorney general was entitled to qualified immunity is immediately appealable under the collateral order doctrine | [
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eighteen-year period of possession, the evidence .is sufficient to establish title to the Disputed Property in the Estrada parties under the twenty-five-year statute. See Duke, 128 S.W.2d at 485 (adverse possession may be established by party claiming adversely and paying taxes on’.land, when claim of title is made in tangible form calculated to bring notice to those adversely affected by it); Sterling, 456 S.W.2d at 534-35. For the foregoing reasons, we conclude, as a matter of law, that the trial court’s findings and conclusions that the Estrada parties did not establish their adverse possession claim are supported by legally insufficient evidence and that the evidence affirmatively establishes the Estrada parties’ adverse possession claim. See City of Keller, 168 S.W.3d at 816, 821 (<HOLDING>); see also Tex. Civ. PRAC. & Rem.Code § 16.026; Holdings: 0: holding unchallenged findings of fact are binding unless contrary is established as matter of law or there is no evidence to support finding 1: holding that we must sustain legal sufficiency or noevidence challenge if record shows that evidence conclusively establishes opposite of vital fact and matter is established as matter of law if reasonable people could not differ as to conclusion to be drawn from evidence 2: holding as a general rule of contract law if no other meaning is reasonable the court shall rule as a matter of law that the meaning is established 3: recognizing the court must grant a noevidence motion if the evidence establishes conclusively the opposite of the vital fact 4: holding that a finding of fact is supported by substantial evidence on the record as a whole if it would have been possible for a reasonable jury to reach the boards conclusion | [
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conduct of the defendant and his agents is a principal cause of the great disparity in the number of persons of each race who are registered and eligible to vote.” (Emphasis added) The figures themselves reveal the obvious: neither unregistered whites nor unregistered Negroes pay the poll tax, theoretical duties of citizenship notwithstanding. 11 . Pub.L.No.89-110, 89th Cong., 1st Sess., 79 Stat. 437, 42 U.S.C.A. § 1973 et seq., approved August 6, 1965. 12 . See United States v. Ward (Louisiana), 5 Cir., 1965, 352 F.2d 329, modifying on rehearing 349 F.2d 795; United States v. Ramsey, 5 Cir., 1965, 353 F.2d 650 [No. 2315, Nov. 12, 1965]. 13 . United States v. Mississippi, S.D.Miss., No. 3791, pending. See also United States v. Texas, W.D.Tex., 1966, 252 F. Supp. 234 [Feb. 9, 1966] (<HOLDING>). 14 . See 30 Fed.Reg. 9897 (August 7,1965); Holdings: 0: holding texas poll tax unconstitutional 1: holding texas flagdesecration statute facially unconstitutional 2: 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 3: holding that the twentyfourth amendment abolished the poll tax as a requirement for voting in federal elections 4: holding texas franchise tax constitutional | [
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does not of itself create an inference that a given act done by him was within the scope of employment. If, however, it is also proved that the act tended to accomplish an authorized purpose ... there is an inference that it was within the scope of employment.” Restatement § 228 Cmt. b. Even though some acts forbidden by the employer, including tortious or criminal acts, may be considered within the scope of employment, the “master is not responsible for acts which are clearly inappropriate or unforeseeable in the accomplishment of the authorized result.” Restatement § 231 Cmt. a.; § 229. . Several courts have held that sexual harassment is, by its very nature, not within the scope of employment. See, Jansen v. Packaging Corp of America, 895 F.Supp. 1053, 1061, n. 9 (N.D.Ill.1995) (<HOLDING>); Hicks v. Gates Rubber Co., 833 F.2d 1406, Holdings: 0: holding that eeoc charge filed by plaintiff more than 180 days after alleged incident of sexual harassment was timely where alleged sexual harassment violation continued as hostile work environment through time of plaintiffs termination 1: holding that an employer must remedy situation of sexual harassment 2: holding that restatement 2191 is inapplicable to alleged sexual harassment by a supervisor was sexual harassment within the scope of antonis employment of course not 3: holding that sexual harassment is a personal injury tort 4: holding that illegal sexual harassment is an illegitimate corporate activity beyond the scope of the supervisors employment | [
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suffered from an anxiety disorder that might disappear in one to two years, but might never improve. Consequently, she required unpredictable breaks of indeterminate time to recover from a condition she exhibited at work previously. Emerson worked at a job which required prompt, accurate handling of emergencies such as gas leaks and downed power lines that could pose significant danger to the public. Although Emerson argues that she is unlikely to suffer a panic attack at work, she has already suffered two. By its very nature, the consultant job could be stressful, and Emerson would be in contact with a supervisor who caused her further stress. This evidence is enough for us to find that Emerson posed a direct threat in the consultant position. See, e.g., Bekker, 229 F.3d at 671-72 (<HOLDING>); Borgialli, 235 F.3d at 1294 (determining that Holdings: 0: holding that a question of fact existed regarding whether the hospital held the doctor out as its agent if the hospital provided the doctor without explicitly informing the patient that the doctor was not its employee 1: holding that a doctor who was traveling to the hospital simply to be on call and not in response to a page was in the course of business even though she was not required to be in any particular location while on call 2: holding that doctor who was suspected of drinking on the job posed a direct threat although she had not injured any patients 3: holding that plaintiff did not receive adequate process during posttermination hearing because she was not given opportunity to crossexamine witnesses accusing her of drinking on the job and coming to school inebriated 4: holding that where doctor never had contact with patient nor reviewed patients records no relationship existed so as to trigger a duty | [
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of those damages. See, e.g., Birkenbuel v. M.C.C. Construction Corp., 962 F.Supp. 1805, 1306 (D.Mont.1997) (stating that it is up to the defendant to present evidence that shows the damage computation exceeds $75,000 and finding without such evidence that “it is impossible to say whether the Complaint states a claim for the jurisdictional amount”); see also Garza v. Bettcher Industries, Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990) (discussing examples of specific facts sufficient to establish the jurisdictional minimum including where “plaintiffs medical records revealed that he had undergone four separate surgical procedures for his injury”). Of course, the Defendant also can submit other evidence that may demonstrate the amount in controversy. See, e.g., Cohn, 281 F.3d at 840 (<HOLDING>). But Defendant cannot carry its burden by Holdings: 0: holding that when evaluating a settlement agreement the court is not to substitute its judgment for that of the parties nor is it to run consideration of the adequacy of the settlement into a trial or a rehearsal of the trial rather the cjourts responsibility is to reach an intelligent and objective opinion of the ultimate success should the claims be litigated and to form an educated estimate of the complexity expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise 1: holding that a settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiffs claim 2: holding that there must be sufficient competent evidence from which the trier of fact could estimate the amount of damages with a reasonable degree of certainty 3: holding that in the event it is not faeiaby apparent from the underlying complaint that the jurisdictional amount has been satisfied the court may rely on summary judgmenttype evidence to ascertain the amount in controversy 4: holding that the burden is on defendant as the party invoking removal jurisdiction to establish the existence of a sufficient amount in controversy | [
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EAJA application as premature, the court granted the Government’s December 26, 2006 Motion for an Enlargement of Time to respond thirty days after the earhest date on which the application properly could have been filed. Accordingly, on January 29, 2007, the Government filed a Response (“Gov’t Resp.”), together with three exhibits. On February 15, 2007, Plaintiff filed a Reply (“Pl.Reply”). II. DISCUSSION. A. The Relevant Statute. The Equal Access to Justice Act authorizes: a prevailing party other than the United States fees and other expenses ... incurred by bstantially justified,” to mean: “justified in substance or in the main-—that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (<HOLDING>); see also Smith v. Principi, 343 F.3d 1358, Holdings: 0: holding that for the administrative position of the government to be substantially justified it must have a reasonable basis both in law and fact 1: holding that the board cannot be liable for punitive damages citations omitted 2: recognizing special trust and confidence that must exist between attorney and client citations omitted 3: holding governments position unreasonable where government advanced no legal authority for its position and applicable principle of law was long settled 4: holding that the governments position must have a reasonable basis in both law and fact citations omitted | [
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period and was not deferred during the period when the divorce judgment was being appealed. Title 14 M.R.S. § 1602-C(2) expressly states that post-judgment interest “accrues from and after the date of entry of judgment and includes the period of any appeal,” except for good cause shown. Thus, absent a finding of good cause, Brown was obligated to pay post-judgment interest from on or about November 2, 2007, to the date when the sums ordered in the divorce judgment were fully paid in 2008. The entry is: Judgment regarding prejudgment interest affirmed. Judgment regarding post-judgment interest vacated. Remanded for further proceedings. 1 . M.R. Civ. P. 53(e)(2) allows parties ten days after service of notice to file objections to a referee's report and then states, in A.2d 176, 183 (<HOLDING>); Allen v. Allen, 629 A.2d 1228, 1230 (Me.1993) Holdings: 0: holding that the trial court did not abuse its discretion in changing the surname of the child where the court made factual findings that the name change would be in the best interest of the child 1: holding that erroneous findings of fact not necessary to support the judgment of the court are not grounds for reversal 2: holding that a reviewing court will only presume that the trial court made implicit factual findings when such findings were necessary to its ultimate conclusion 3: holding that the district court did not abuse its discretion by waiving postjudgment interest reviewing the predecessor to section 1602c on child support arrearage for good cause noting that this court was required to assume that the court made all necessary findings to support that decision because the parties failed to file a transcript or statement in lieu thereof 4: holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury | [
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defendant’s “sexual propriety” evidence for errors of law. See State v. Bea, 318 Or 220, 224, 864 P2d 854 (1993) (declining to accept the state’s concession as to a legal conclusion). See also Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (“In construing a statute, this court is responsible for identifying the correct interpretation, whether or not asserted by the parties.”). 5 See also Laird C. Kirkpatrick and Christopher B. Mueller, 1 Federal Evidence § 101 at 551 (2nd ed 1994) (“character evidence means proof relating to commonly-recognized human qualities that might be called innate or essential to the person being described”). 6 Other jurisdictions have similarly construed and applied their analogues to OEC 404. See State v. Anderson, 211 Mont 272, 292, 686 P2d 193, 204 (1984) (<HOLDING>); State v. Miller, 709 P2d 350, 353-54 (Utah Holdings: 0: holding that merely declining to rehire a person did not constitute defamation for deprivation of liberty interest purposes absent any charges against the good name or reputation of that person 1: holding that the defendant could not be liable for malicious prosecution where the plaintiff presented no evidence suggesting that defendants conspired with influenced or even participated in the prosecutors decision to bring charges against him 2: holding that in disciplinary proceedings a student must be given oral or written notice of the charges against him and if he denies them an explanation of the evidence the authorities have and an opportunity to present his side of the story 3: recognizing that evidence of the defendants sexual mores and good character functioned to establish his reputation for morality and personal truthfulnessconduct and beliefs inconsistent with the charges filed against him 4: holding that a criminal defendant is entitled to know the charges against him and to be tried solely upon the charges against him internal quotation marks and citation omitted | [
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justified by a reasonable suspicion of driving under the influence); cf. Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.2007) (“A field sobriety test is a minor intrusion on a driver only requiring a reasonable suspicion of intoxication and an easy opportunity to end a detention before it matures into an arrest.” (quotation omitted)). The record also does not demonstrate that the underlying reasonable suspicion had dissipated prior to the field sobriety tests. Although the district court found that the evidence regarding Amundsen’s behavior during the stop did not provide additional evidence of impairment, the court’s findings do not demonstrate that Amundsen’s conduct dispelled Jones’s earlier suspicions of intoxication. Cf. United States v. McSwain, 29 F.3d 558, 561-62 (10th Cir.1994) (<HOLDING>); Millan-Diaz, 975 F.2d at 722 (holding that an Holdings: 0: holding that an officer violated the fourth amendment because the reasonable suspicion of a traffic violation regarding a temporary registration sticker completely dissipated when the officer approached the car and determined the sticker was valid 1: holding that a traffic stop is valid under the fourth amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring 2: holding that under the fourth amendment the motive of the officer when stopping a vehicle for a minor traffic infraction whether subjective or objective is completely irrelevant 3: holding that a police officer may stop a driver where the officer has a reasonable and articulable suspicion regarding the commission of a civil traffic violation 4: holding that an officer has reasonable suspicion to conduct traffic stop even when his suspicion that a law has been violated is based on a reasonable mistake of law | [
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July 6, 2011) (characterizing database keyword searching as the nontaxable “ESI equivalent of having a room full of reviewers physically review paper documents”); Race Tires, 674 F.3d at 170 (approving of cases “recognizing] that gathering, preserving, processing, searching, culling and extracting ESI simply do not amount to ‘making copies’ ”). To be sure, it may be more or even most convenient for a producing party to create a database of ESI. But activities undertaken only “for the convenience of counsel are not taxable.” Gupta v. Walt Disney World Co., No. 6:05-cv-1432-Orl-22UAM, 2007 WL 2002454, at *3 (M.D.Fla. July 5, 2007) (citing Helms v. Wal-Mart Stores, Inc., 808 F.Supp. 1568, 1570 (N.D.Ga.1992), aff'd, 998 F.2d 1023 (11th Cir.1993) (table)); see CBT Flint, 737 F.3d at 1330 (<HOLDING>). Defendants are not entitled to an award of Holdings: 0: holding that producing party need only make requested documents available for inspection and need not pay for copying costs 1: holding that copying costs are taxable if they are necessary to make copies of information required to be produced and not incurred just to make copies for the convenience of the producing party 2: holding that where the defendants 107 claim was based on remediation costs they incurred and may incur in the future as the result of a lawsuit instituted under 107a they did not demonstrate that they incurred necessary costs of response within the meaning of 107a 3: holding that courier and messenger costs are not taxable costs 4: holding that travel and visa costs are incurred by guestworkers for the primary benefit and convenience of their employer and thus are not other facilities that can be counted as wage credits pursuant to 29 usc 203m | [
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that if the determination of damages is “mechanical and uneontroversial,” immediate appeal is allowed). In the instant case, the district court entered its sanctions order on March 14, 1996, but did not quantify the amount of the sanctions. On April 19, 1996, the district court entered a judgment granting SLU’s summary judgment motion, thus triggering the 30-day period for filing the notice of appeal on the merits of her case. Fed. R.App. P. 4(a)(1); Fed.R.Civ.P. 58. Hill filed her notice of appeal on May 17, 1996, from both the sanctions order and the grant of summary judgment. The district court had not yet reduced the sanctions to a sum certain, however, and thus, we hold that the sanctions order was not yet final. Accord Discon, Inc. v. NYNEX Corp., 4 F.3d 130, 132 (2d Cir.1993) (<HOLDING>). On August 27, 1996, the court ordered payment Holdings: 0: holding sanctions order was too general to support award 1: holding that trial court erred by imposing sanctions against attorney without notice and hearing but error was cured by attorneys subsequent challenge to sanctions 2: holding that while sanctions order did not meet specificity requirement of section 10005 trial courts findings of fact and conclusions of law supplied necessary particulars and thus deficient sanctions order did not constitute reversible error 3: holding that under fed r bankrproc 8002a an appeal of a bankrupt court order finding that sanctions are warranted was not premature where the order fixing the amount of sanctions and ordering payment was subsequently entered more than thirty days later 4: holding sanctions order not final where the amount of sanctions had not yet been determined | [
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of Colo., Div. of Youth Services, 17 F.3d 1323, 1330 (10th Cir.1994). The Court will address each of these bases for liability in turn. 1. Scope of Employment Restatement § 229 provides a general definition of “scope of employment”, stating that “[t]o be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.” The comments to the Restatement provide further explanation of the meaning of “scope of employment”: “Proof that the actor was in the general employment of the 18 (10th Cir.1987) (“sexual harassment simply is not within the job description of any supervisor or any other worker in any reputable business”) (citation omitted); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir.1987) (<HOLDING>). Although the effect is to restrict Holdings: 0: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 1: holding that restatement 2191 is inapplicable to alleged sexual harassment by a supervisor was sexual harassment within the scope of antonis employment of course not 2: holding that the liability of a principal or master to a third person based upon respondeat superior is purely derivative and thus a judgment on the merits for or against the agent or servant is res judicata visavis the principal or master though he was not a party to the action 3: recognizing that acts are not within the scope of employment and a master is insulated from liability under restatement 2191 where the servant was acting entirely for his own benefit 4: holding in accordance with the restatement that a master may be subject to liability for the torts of his servants acting outside the scope of their employment if the servants conduct violated a nondelegable duty of the master or the servant purported to act on behalf of the principal there was reliance upon the apparent authority or he was aided in accomplishing the tort by the existence of the agency relationship | [
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appointed. The trustee filed several adversary proceeding on July 11, 1988 seeking to avoid preferential transfers. These proceedings were filed more than two years from commencement of the Chapter 11 case, but less than two years from conversion to Chapter 7 and appointment of the trustee. The bankruptcy court, noting that the Tenth Circuit had reserved decision in Zilkha on whether the subsequent appointment of a trustee in a Chapter 11 case would affect the § 546(a) limitation period, ruled that such an appointment would begin a new two-year period by which avoidance actions must be brought. Id. at 989. Three other courts have come to the same conclusion as the D-Mart court. See Daff v. Regal Recovery Inc. (In re Continental Capital & Credit, Inc.), 158 B.R. 828 (Bankr.C.D.Cal.1993) (<HOLDING>); Sapir v. Green Forest Lumber Ltd. (In re Holdings: 0: 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 1: holding tort action accruing after original chapter 7 petition not part of estate when case converted to chapter 13 and then back to chapter 7 2: holding on facts similar to those in dmart that the 546a limitation period runs from appointment of chapter 7 trustee after case was converted from chapter 11 3: holding denial of motion to convert from chapter 11 to chapter 7 is interlocutory 4: holding that a chapter 7 trustee was the only person with authority to bring a cause of action after the appointment of a trustee | [
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apartment being held by the creditor. In order to effectuate the closing, the borrowers were required to pay a fee for the creditor to deliver the security at the clos ing. The court held that the fee was not a condition to the loan and “was not incident to the extension of the loan, but rather to the extinguishment of the debt....” Stutman, 1996 WL 539845, at *2-3. In Adamson, the plaintiffs alleged that they were required to pay certain fees as a condition of releasing the deeds of trust after they had completed payments on their mortgages. The fact that release fees would be charged was not disclosed at t they are required by the creditor. Rodash v. AIB Mortg. Co., 16 F.3d 1142 (11th Cir.1994) abrogated on other grounds by, Veale v. Citibank, F.S.B., 85 F.3d 577 (11th Cir.1996) (<HOLDING>). Based on the bare allegations in the amended Holdings: 0: holding that the district court erred in failing to properly charge the jury on defendants affirmative defenses 1: holding that the defendants violated tila as a matter of law by failing to disclose as part of the finance charge the charge imposed for payment of federal express delivery 2: holding that because trial court actually gave part of a jury charge that appellant claimed was improperly omitted and because remainder of courts charge adequately defined one of the legal terms at issue the courts jury charge taken as a whole was not misleading and did not constitute reversible error 3: holding that required courier fees must be included in the finance charge 4: holding that because a mutual combat charge authorizes a jury to find the defendant guilty of voluntary manslaughter in lieu of murder it is a charge that benefits a defendant and as such a convicted defendants complaint that it was improper to give the charge is without merit | [
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the Commonwealth’s efforts to equate the present circumstances with situations in which a Rule 1925(b) statement is filed, but the statement is later alleged to have omitted meritorious issues. In this regard, it is well established that the decision whether to presume prejudice or to require an appellant to demonstrate actual prejudice “turns on the magnitude of the deprivation of the right to effective assistance of counsel.” Flores-Ortega, 528 U.S. at 482, 120 S.Ct. at 1037. As we observed in Lantzy, the failure to perfect a requested direct appeal is the functional equivalent of having no repre sentation at all. Id. at 225, 736 A.2d at 571 (citing Evitts, 469 U.S. at 394 n. 6, 105 S.Ct. at 835 n. 6 (1985)); see also Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (<HOLDING>). The difference in degree between failures Holdings: 0: holding that prejudice should be presumed where counsel filed notice of appeal but failed to perfect the direct appeal 1: holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal 2: recognizing the right to counsel on appeal 3: holding that the complete denial of counsel on direct appeal requires a finding of prejudice 4: holding that the presumption of prejudice must extend as well to the denial of counsel on appeal when the granting of an attorneys motion to withdraw had left the petitioner entirely without the assistance of counsel on appeal | [
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unless otherwise stated, all statutory references shall be to Title 11 of the Unites States Code); The Court also notes that Official Form B22C, which debtors use to calculate their current monthly income, applicable commitment period, and disposable income, directs above median debtors on line 17 to indicate that their "applicable commitment period is 5 years.” 2 . See Educ. Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987). 3 . 11 U.S.C. § 1325(a)(3). 4 . Flygare v. Boulden, 709 F.2d 1344, 1347-48 (10th Cir.1983). 5 . In re Estus, 695 F.2d 311, 317 (8th Cir. 1982). 6 . Flygare, 709 F.2d at 1347-48. 7 . Id. 8 . See Zellner, 827 F.2d at 1227. 9 . 11 U.S.C.§ 1325(b)(1). 10 . Zellner, 827 F.2d at 1227. 11 . Id. 12 . In re Cranmer, 697 F.3d 1314, 1319 n.5 (10th Cir.2012) (<HOLDING>); In re Robinson, 987 F.2d 665, 668 n.7 (10th Holdings: 0: holding that bad faith includes lack of good faith in investigating the facts of a complaint 1: holding that while the creditor has the initial burden to produce some evidence of lack of good faith the ultimate burden is on the debtor to prove his good faith 2: holding that the courts analysis should focus on the nature of the abuse injuries inflicted and the effect of both 3: recognizing the more narrow focus of a good faith analysis 4: holding that the defendant did not establish good faith as a matter of law | [
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of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.” Id. The Court concluded that the Does did not have standing: Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does’ estimation, these possibilities might have some real or imagined impact on their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Id.; see also Abele v. Markle, 452 F.2d 1121, 1124-25(2d Cir.1971) (<HOLDING>). As with the Does, in McCormack’s case there Holdings: 0: holding that physician abortion providers asserting their own rights and those of their patients had standing to challenge abortion regulation and should not be required to await and undergo a criminal prosecution as the sole means of seeking relief 1: holding that it may not 2: holding that neglect was not excusable where the defendants did not do all that they were required to do after they received the summons and complaint in that they did not contact a lawyer or make any other arrangements with respect to their defense 3: holding that nonpregnant plaintiffs had no standing to challenge abortion statute solely on basis of childbearing age because ajlthough some of them may in the future become pregnant and may in such event desire an abortion it is also possible that they will not become pregnant or that if they do they will upon further reflection decide for other reasons against an abortion it is clear that any threat of harm to them is remote and hypothetical 4: holding that it is not | [
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statutory interference with contract against Hill-Rom with a triple damage penalty; (3) common law tortious interference with contract against Hill-Rom; and (4) breach of contract against Hill-Rom. J.A. at 10-12. Stinger demanded damages of $4,498,689.00 for breach of contract against Hill-Rom Medaes and Hill-Rom; $4,498,689.00 for common law interference with contract against Hill-Rom; and $13,496,067.00 in triple damages for statutory interference with contract against Hill-Rom. On April 25, 2000, Hill-Rom and Hill-Rom Medaes moved for judgment on the pleadings. A magistrate judge recommended granting the motion, because Stinger was “not necessarily obliged to perform any services at all under the Agreement.” The district court accepted the recommendation and dism 2 (6th Cir.1930) (<HOLDING>). In the Agreement, Stinger agrees to make Holdings: 0: holding that contract requiring buyer to purchase a fixed quantity of goods that amounted to roughly 6080 of its needs was not unlawful because the agreements contained no exclusive dealing clause and did not require the buyer to purchase any amounts of the defendants product that even approached its requirements 1: 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 2: holding that an executory distribution agreement that did not require the manufacturer to provide or the distributor to purchase any specific quantity of product lacked the required mutuality to enforce it 3: holding that the parties purchase agreement did not require a showing of prejudice for plaintiff to assert that defendant waived its claim for indemnification 4: holding that the court lacked jurisdiction to enforce arbitration settlement agreement about lease royalty rates | [
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are reasonable. See Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1327. The plaintiff’s invoice “ ‘need not present the exact number of minutes spent[,] nor the precise activity to which each hour was devoted[,] nor the specific attainments of each attorney.’” Holbrook, ion of the DCPS fee schedule to determine prevailing attorney rates for IDEA cases. See Jackson, 696 F.Supp.2d at 103 (declining to apply the DCPS fee schedule because the defendant provided no evidence to show how it represented prevailing market rates and because precedent supported application of the Laffey Matrix). The defendants here have not offered any evidence to indicate the methodology by which the DCPS fee schedule was calculated, nor why it should be applied in this case. See Cox, 754 F.Supp.2d at 76 (<HOLDING>). The court therefore declines to apply the Holdings: 0: holding that commentary to the guidelines is treated as an agencys interpretation of its own legislative rule 1: holding that defense counsel need only consult and be governed by his clients wishes when the question arises as to whether or not a plea of guilty should be entered trial by jury waived or whether the defendant should take the witness stand in his own defense 2: holding that the laffey matrix should apply because the defendant offered no reasoned defense for its own guidelines 3: holding that a district judge does not enjoy the benefit of a legal presumption that the guidelines sentence should apply 4: holding that blakely does not apply to the federal sentencing guidelines | [
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judg ment that the Crow Tribal Court exceeded its jurisdiction by ruling that Pease was not required to pay property taxes imposed by the County. Pease owns fee title to real property-located within the boundaries of the Crow Reservation. The property was allotted and patented in fee to Pease’s father under the Crow Allotment Act of 1920, 41 Stat. 751. Pease has failed to pay his state property taxes from 1987 to the present. In July 1991, he filed an action in Crow Tribal Court seeking to enjoin Yellowstone County from imposing state property taxes on his land. The parties agreed to stay the tribal court action pending the Supreme Court’s decision in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) (<HOLDING>). After the Court decided Yakima, the tribal Holdings: 0: holding that agency could not claim confidentiality for tax returns that had been exhibits in tax court and were therefore public records 1: holding that arizona could not impose an income tax on reservation indians 2: holding that a states interest in the integrity of its property tax system lies at the core of the states sovereignty it is impossible to imagine that a state government could continue to exist without the power to tax 3: recognizing congressional intent to permit the states to tax railroad property at a higher rate than agricultural land 4: holding that states could impose an ad valorem property tax on fee land that had been allotted under the general allotment act | [
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v. FDIC, 733 F.Supp. 1091, 1094 (N.D.Tex.1990) (Fitzwater, J.). 4 . “Suits against state officials in their official capacity are considered to be suits against the individual's office, and so are generally barred as suits against the state itself.” Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 n. 3 (5th Cir.1996) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989)). Although claims for prospective injunctive relief brought against state officials in their official capacity are not suits against the state, id., Gaines does not request such relief. 5 . In view of this holding, the court need not determine whether an educational opportunity is "property” under Texas state law. See teach v. FDIC, 860 F.2d 1266, 1274 n. 14 (<HOLDING>). 6 . The individual defendants move to dismiss Holdings: 0: holding that property is an inherently state lawrelated term and that courts should look to state law when applying rico 1: holding that federal courts should apply state substantive law 2: holding that when applying state law a federal court is bound to follow the highest court in the state 3: holding the court may look to state law for guidance where federal law is not fully developed 4: holding that courts must look to the state that rendered the judgment to determine whether the courts of that state would afford the judgment preclusive effect | [
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.a personal belief in the witness’ credibility. A jury could Reasonably believe the prosecutor’s indications if ... the prosecutor implicitly vouches for the witness’ veracity by indicating that information not presented to the jury supports the testimony. United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991) (citations omitted); see also United States v. Martinez, 96 F.3d 473, 476 (11th Cir.1996) (“[AJrgument to the jury "must be básed solely on the evidence admitted at trial”). The prosecutor^ statement that Darlene Steele’s testimony would have “corroborated” Bill Steele’s was an improper attempt to bolster Bill Steele’s credibility plain error question where cumulative effect of errors compelled reversal); cf. United States v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987) (<HOLDING>). The elements of this case — the introduction Holdings: 0: holding that although prosecutorial misconduct alone would not have merited reversal the cumulative effect of the errors committed by the judge and the prosecutor denied the defendants a fair trial 1: holding that the failure to identify and distinguish which claims of prosecutorial misconduct have been previously litigated and which were waived permits rejection of the underlying claims of prosecutorial misconduct which in turn eviscerates the cognizable layered claims 2: holding that alleged prosecutorial misconduct must be evaluated in light of the prosecutors argument and the entire record and if a review of the record convinces the court that the jury would have convicted defendant even if it were not exposed to the alleged improper prosecutorial comments then no actual prejudice occurred 3: holding prosecutorial misconduct claim barred by procedural default 4: recognizing that the court sanctions more harshly for cumulative misconduct than for isolated misconduct | [
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testimony there was confirmed that a confidential informant existed, that Ramsey contacted him about the transaction, and that the informant met with appellant at the parking-lot buy. Also, appellant’s purchase of the cocaine, which he claimed was due to the informant’s alleged entrapment, occurred very shortly before appellant’s possession of and arrest for the same cocaine, to which the officers testified; There were no significant intervening circumstances between these two events. For these reasons, the in camera evidence showed that the informant, as an eyewitness to the purchase, could potentially give testimony necessary to a fair determination of appellant’s guilt or innocence, specifically, appellant’s entrapment defense. See Tex.R. Evid. 508(c)(2); Anderson, 817 S.W.2d at 72 (<HOLDING>); cf. Bodin, 807 S.W.2d at 318-19 (holding Holdings: 0: holding defendant met initial burden under rule 508c2 because showed informant was eyewitness to crime 1: holding corroborating evidence sufficient that officer drove informant to defendants house saw defendant admit informant and saw informant come out with drugs and defendants voice was identified on audio tape of transaction 2: holding that testimony by police officer to effect that informant told him that defendant and his accomplice had come to informants home and discussed purchase of five kilograms of cocaine was not hearsay because statement was made by informant who was authorized by defendant to communicate such information to police officer under rule 801e2c 3: recognizing plaintiff met this burden 4: holding that wells fargo met its initial burden by attaching a default notice to its motion | [
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line of cases in which state courts have refused to allow an insured to be indemnified from liability resulting from the insured’s intentional causation of an injury. See Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 161, 589 N.E.2d 365, 369-70, 581 N.Y.S.2d 142, 146-47 (1992)(stating that the ordinary person “would be startled by the notion that [an insured] should receive insurance protection for sexually molesting [ ] children” and “in effect, be permitted to transfer the responsibility for his deeds onto the shoulders of other policyholders,” and holding that the insured was not entitled to indemnification because he intentionally caused the children’s injuries); Public Service Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 400, 425 N.E.2d 810, 814, 442 N.Y.S.2d 422, 427 (1981)(<HOLDING>). The Goldfarb court concluded that allowing Holdings: 0: holding compensatory and punitive damages constitute legal remedies 1: holding that a further finding that the insured intended to injure the defendant would preclude any liability for the insurer for indemnification of compensatory or punitive damages 2: holding that indemnification by excess liability insurer for punitive damages imposed on drug manufacturer contrary to public policy 3: holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages 4: holding that punitive damages do not need to be proportional to compensatory damages | [
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this provision codifies the common-law standard for injunctive relief, generally referred to as the “need-narrowness-intrusiveness” standard. See H.R. Rep. 104-21, at 24 n.2 (1995) (explaining that the “dictates of [18 U.S.C. § 3626(a)(1) ] are not a departure from current jurisprudence concerning injunctive relief’); see also Armstrong v. Davis, 275 F.3d 849, 872 (9th Cir.2001); Smith v. Ark. Dep’t of Corr., 103 F.3d 637, 647 (8th Cir.1996); Williams v. Edwards, 87 F.3d 126, 133 n. 21 (5th Cir.1996). Likewise, the PLRA requires that any prospective relief “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A); cf. Lewis v. Casey, 518 U.S. 343, 357-360, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (<HOLDING>). In class action lawsuits such as Plata and Holdings: 0: recognizing a bivens remedy for undocumented immigrants who were subjects of a raid by federal immigration officials reasoning that if a bivens remedy were precluded the present plaintiffs would have no forum in which to seek a remedy for the defendants alleged constitutional violations 1: holding that the remedy in a prison conditions case must remedy actual injuries that have been identified by the court and suffered by the plaintiffs 2: holding that the appealing party had sur rendered his claim to the equitable remedy of vacatur by settling the case and thus voluntarily forfeiting his legal remedy by the ordinary processes of appeal 3: holding that a remedy that prison officials prevent a prisoner from utilizing is not an available remedy under 1997e 4: holding that the illegality or unconstitutionality of a state or municipal tax or imposition is not of itself a ground for equitable relief in the courts of the united states in such a case the aggrieved party is left to his remedy at law when that remedy is as complete practicable and efficient as the remedy in equity | [
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at the very least authenticated and then subsequently rejected them. Thus, the district court was presented with minimal and primarily self-serving evidence from both BNI and appellees. On this record and at this early stage in the litigation, the district court’s finding that BNI did not show by a preponderance of the evidence that none of its officers or employees actually participated in the alleged commercial activity was not clearly erroneous. Accordingly, it did not err in denying BNI’s motion for judgment on the pleadings. B. Discovery Order The immunity provided under the FSIA protects foreign sovereigns from all the burdens of litigation, including the general burden of responding to discovery requests. See Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir.1992) (<HOLDING>); see also Phoenix Consulting, Inc. v. Republic Holdings: 0: holding that qualified immunity is not merely immunity from damages but also immunity from suit 1: recognizing that foreign sovereigns possess a legitimate claim to immunity from discovery 2: recognizing that under texas law governmental immunity embraces two principles immunity from liability and immunity from suit 3: holding that to relinquish its immunity a tribes waiver must be clear and not ambiguous and finding instructive the law governing waivers of immunity by foreign sovereigns internal quotation marks omitted 4: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law | [
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and that res judicata did not apply to Sanderson’s claim. We agree. Pursuant to the statutory requirements, the Report for Contempt became an order of the referring court when the referring court adopted the recommendation of the associate judge and signed the Report for Contempt under the notation “APPROVED AND SO ORDERED.” See id. Sanderson argues that the report could not be a final order, despite the trial court’s approval and signature, because the family code contemplates that the order is a separate document beyond the associate judge’s report. See Tex. Fam. Code Ann. § 201.007(a)(10) (Vernon Supp. 2006) (providing that an associate judge may “recommend an order to be rendered in a case”); In re Lausch, 177 S.W.3d 144, 151 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding) (<HOLDING>). However, Sanderson refers us to nothing in Holdings: 0: holding that an order which purports to become final upon the happening of an event specified in the order is not a final order and the happening of the event does not operate to render the order final 1: holding that because trial courts order did not dispose of the defendants counterclaim that order was not a final judgment that would support an appeal 2: holding that associate judges report was not final because it required approval of the trial court and contemplated an order to follow 3: holding that a bankruptcy order is not final unless it 1 4: holding because an initial order contemplated the subsequent entry of a judgment the initial order was not considered a final adjudication | [
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or similar subjects; and nacted the TCHRA and its legislative history do not provide insight into the legislature’s intent concerning the term “state instrumentality” beyond the plain wording of subsection (8)(D). See Tex. Lab.Code Ann. § 21.002(8)(D). The Act’s former statutory provisions, and the consequences of an exclusionary construction of the term “state instrumentality,” however, weigh in favor of the conclusion that the DFW Board is a state instrumentality. As noted by the Purdin court, the Act was amended in 1997 to expressly define “state agency.” Purdin, 148 S.W.3d. at 298. The term “state agency” was given a broad definition as including (A) a board, commission, committee, council, department, institution, office, or agency i 320, 325 (Tex.App.-Waco 2000, pet. denied) (<HOLDING>). We hold that the DFW Board is a state Holdings: 0: holding special utility district to be state instrumentality subject to claims made under tchra 1: holding that an entity majorityowned by an agency or instrumentality of a foreign state is itself an agency or instrumentality of that foreign state under the fsia 2: holding economic development corporation to be state instrumentality subject to claims made under the tchra and explaining that the employment discrimination prohibitions in chapter 21 are to be generally applied 3: holding school district in claim made pri or to amendment defining state agency to be state instrumentality subject to claims made under tchra 4: holding that utility boards are subject to state ethics laws | [
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workingdogs.com/doc0130.htm. These are not my words, but the words of the Arson Section Manager of the Oregon State Police. Even the guideline “published by the National Fire Protection Association suggests that evidence of a canine alert that is not confirmed by laboratory testing should not be considered valid.” Commonwealth v. Crouse, 447 Mass. 558, 855 N.E.2d 391, 402 (2006). “While the reliability of tracking dogs has been widely recognized and generally accepted by the courts, with thirty-two states approving of admissions of trailing by [dogs], courts have been much less receptive to accelerant-detection [canine alerts] not confirmed by laboratory analysis.” State v. Sharp, 395 N.J.Super. 175, 928 A.2d 165, 169 (Law.Div.2006). In fact, “[t]here is substantial scientific 7) (<HOLDING>); Sharp, 928 A.2d at 171; State v. Webber, 716 Holdings: 0: holding that the uncorroborated testimony of an informant may be sufficient to sustain a conviction 1: holding that an uncorroborated callers tip did not create reasonable suspicion 2: holding that uncorroborated testimony of one witness is sufficient by itself to sustain a conviction 3: holding that uncorroborated accomplice testimony may provide the exclusive basis for a criminal conviction 4: holding that reliability of uncorroborated canine alerts is questionable | [
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consideration of whether these preparation expenses are compensable under another theory of damages. See Maj. Op. at 1043 n. 9. This court has considered issues raised for the first time on appeal in “those cases in which the courts below were not presented with and did not consider the governing theory of law.” Aguon v. Calvo, 829 F.2d 845, 848 (1987). It is basic contract law that “the injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance,” when expectation damages are, for whatever reason, unavailable. Restatement (Second) Contracts § 349. Cases cited in the majority opinion uphold the right to such damages under FIRREA. See Nashville Lodging Co. v. RTC, 59 F.3d 236, 245-46 (D.C.Cir.1995) (<HOLDING>); cf. Monrad v. FDIC, 62 F.3d 1169, 1173-74 Holdings: 0: holding that emotional distress damages are not recoverable under section 504 1: holding reliance damages recoverable under firrea 2: holding punitive damages not recoverable under 2715 3: holding that punitive damages are not recoverable under viwda 4: holding that punitive damages are recoverable in a claim for retaliation under the flsa | [
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studies, articles, or texts on the issue of causation. Without these, defendant asserts that plaintiff “provided no evidence that his job indeed caused such stress. Moreover, he provided to Support to show a connection between such stress, if in fact any existed, and aneurysm formation.” Def.’s Mem. at 10. We find that defendant’s denial was arbitrary and capricious because administrators and fiduciaries are prohibited from adding a term or extra requirement into an insurance policy that is not expressly part of it. Miles v. New York State Teamsters Conference Pension and Retirement Fund, 698 F.2d 593, 599 (2d Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); see Duncan v. Continental Cas. Co., Civ. No. 96-2421, 1997 WL 88374, at *4 (N.D.Cal. Feb.10, 1997) (<HOLDING>); Velez v. Prudential Health Care Plan of New Holdings: 0: holding that plan administrator cannot exclude a claim for lack of objective medical evidence unless the objective medical evidence standard was made clear plain and conspicuous enough in the policy to negate layman sic plaintiffs objectively reasonable expectations of coverage 1: holding that because fibromyalgia is a disease that eludes objective measurement alj improperly discredited treating physicians disability determination based upon lack of objective evidence 2: holding that an insurance company could not deny a claim for longterm disability benefits based on a lack of objective medical evidence when the original policy did not refer to the objective medical evidence standard and never defined that term 3: holding that plan administrator could appropriately require objective medical evidence supporting disability claim where such a requirement is not contradicted by any provision of the administrators own policy 4: holding that metlife abused its discretion by requiring the plaintiff meet an additional requirement for eligibility beyond those imposed by the plan the administrator cannot exclude a claim for lack of objective medical evidence unless the objective medical evidence standard was made clear plain and conspicuous enough in the policy to negate plaintiffs objectively reasonable expectations of coverage | [
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coupled with the petitioner’s "diminished mental capacities,” established prejudice); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("Counsel failed to introduce available evidence that [the petitioner] was ‘borderline mentally retarded' and did not advance beyond sixth grade in school.” (citations omitted)); see also Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 3267, 177 L.Ed.2d 1025 (2010) (vacating the Supreme Court of Georgia’s decision because it improperly analyzed prejudice and noting that "[a] proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence of [the petitioner’s] ‘significant’ mental and psychological impairments"); Porter v. McCollum, 558 U.S. 30, 43-44, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (<HOLDING>). 97 . See Boyd v. Allen, 592 F.3d 1274, 1299 Holdings: 0: holding that because the petitioner failed in the petition to set forth facts known to petitioner or state that petitioner has no knowledge of facts regarding the name and address of any judicially appointed guardian or person or agency awarded custody of the child by a court and failed to attach the existing custody order to the petition it was facially defective and did not confer subject matter jurisdiction upon the trial court 1: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case 2: holding that the petitioner established prejudice and noting that the jury might find mitigating the intense stress and mental and emotional toll that extensive combat experience in the korean war took on the petitioner and that the courts did not consider testimony regarding the existence of a brain abnormality and cognitive defects 3: holding that rule 27 is not appropriate where the petitioner seeks discovery of unknown information that the petitioner hopes will assist it in the future when the petitioner applies for judicial relief 4: holding that the state court ruling was objectively unreasonable where prosecution failed to present sufficient evidence that the petitioner murdered a known drug dealer although the state established that the petitioner planned to rob drug dealers for drugs or money the victim was a known drug dealer who kept drugs in his freezer and that freezer was open and empty after the homicide the petitioner and the victim had engaged in drug transactions in the past the petitioner had a motive because he had seen the victim make a pass at the petitioners girlfriend and the petitioner had possessed and once purchased the murder weapon and a similar gun was seen in his home two weeks before the murder evidence placing the petitioner at the scene was conspicuously absent leaving only a reasonable speculation that the petitioner was present | [
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To satisfy this prong, “extreme deprivations are required ...,” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), and only deprivations denying “the minimal civilized measure of life’s necessities” are grave enough to create a violation of the Cruel and Unusual Punishment Clause. Rhodes, 452 U.S. at 347, 101 S.Ct. 2392. Harsh and uncomfortable prison conditions do not automatically create such a violation. Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997) (citing Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). However, a “remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33-34, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). See also Hill v. Marshall, 962 F.2d 1209, 1211, 1215 (6th Cir.1992) (<HOLDING>). With respect to the subjective prong, there Holdings: 0: holding that the government need not prove actual notice to the prisoner 1: holding that where the recipient is a federal prisoner the government is required to provide him with actual notice of a deprivation 2: holding the united states liable under the ftca for exposure of prisoners to prisoner with tuberculosis where the prisoners bodies harbored one or more dormant tubercle bacilli which could later develop into fullfledged cases of tuberculosis 3: holding as an investment for future development 4: holding that failure to provide prophylactic medication to prevent the possible future development of active tuberculosis is actual injury even though prisoner did not develop active tuberculosis | [
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denial of reh'g by 119 Nev. 460, 76 P.3d 22 (2003), cert. denied sub nom., Angle v. Guinn, 541 U.S. 957, 124 S.Ct. 1662, 158 L.Ed.2d 392 (2004)). 13 . See Wash. Rev.Code § 43.135.035. 14 . See FHR. Res. 6, 104th Cong. (1995), 141 Cone. Rec. 462, 463 (1995) (adding subsections (c) and (d) to House Rule XXI(5)). 15 . Skaggs v. Carle, 110 F.3d 831, 833 (D.C.Cir.1997). 16 . Id. at 837. 17 . 141 Cone. Rec. 29463, 29476-77 (1995) (Speaker Pro Tempore rules that waiving super-majority rule only requires a majority). 18 . Skaggs, 110 F.3d at $47 (Edwards, C.J., dissenting) (expressing view that House Rule XXXI(5)(c) violated the presentment clause of the Constitution, U.S. Const. art. I, § 7, cl. 2). 19 . See, eg., Powell v. McCormack, 395 U.S. 486, 538-39, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (<HOLDING>); Gerberding v. Munro, 134 Wash.2d 188, 949 Holdings: 0: holding that specific wording of constitutional qualifications clause invalidated resigntorun statute 1: holding that title vii provides the exclusive judicial remedy for claims of discrimination in federal employment 2: holding that the remedies are exclusive 3: holding that section 1220 provides an exclusive remedy for tort like actions against an insurer 4: recognizing that the us constitutions qualifications clause provides an exclusive list of qualifications for legislators notwithstanding its negative phrasing | [
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(“[A] promise is not good consideration unless there is mutuality of obligation....”); Kunzie, 330 S.W.3d at 483 (citing Baris v. Layton, 43 S.W.3d 390, 396 (Mo.App.E.D.2001)); Krusen v. Maverick Transp., 208 S.W.3d 339, 342 (Mo.App.S.D.2006). Mutuality of obligation “means that an obligation rests upon each party to do or permit to be done something in consideration of the act or promise of the other; that is, -neither party is bound unless both are bound.” Sumners, at 102 S.W.3d at 41 (quoting Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070, 1073 (1937)). Accordingly, in a bilateral contract, where no other consideration is found, Missouri courts scrutinize whether the obligations are, in fact, mutual. See, e.g., Greene v. Alliance Automotive, Inc., 435 S.W.3d 646 (Mo.App.W.D.2014) (<HOLDING>); see also Sumners, 102 S.W.3d at 41 Holdings: 0: holding arbitration provision lacked mutuality of obligation because it allowed car dealership to exercise its primary remedy of selfhelp repossession without waiving arbitration of other disputes thereby allowing it to unilaterally divest itself of the promise to arbitrate 1: holding that purpose of stay pending arbitration is twofold it relieves the party entitled to arbitrate of the burden of continuing to litigate the issue while the arbitration process is ongoing and it entitles that party to proceed immediately to arbitration without the delay that would be occasioned by an appeal of the district courts order to arbitrate 2: holding that in the context of uninsured motorist disputes where the insurance endorsement provides for arbitration only upon the agreement of both parties the insureds could not unilaterally compel insurer to arbitrate 3: holding that parties to an arbitration agreement need not equally bind each other with respect to an arbitration agreement if they have provided each other with consideration beyond the promise to arbitrate 4: holding that a dispute arising out of an insurance policy was not covered by the arbitration provision in the parties separate premium payment agreement because if the party had intended to subject this dispute to the arbitration provision it could easily clearly and unequivocally have done so either by including an arbitration provision in the insurance policy itself or by adding to the above arbitration provision | [
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precedent in this circuit. PER CURIAM: Alvin Johnson appeals the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2012) motion for a sentence reduction under Amendment 782. We have reviewed the record and conclude that the district court did not abuse its discretion in declining to grant a larger reduction in Johnson’s sentence. See United States v. Mann, 709 F.3d 301, 304 (4th Cir.2013) (standard of review); U.S. Sentencing Guidelines Manual § 1B1.10 cmt. n. 1(B) (2015) (addressing appropriate factors to consider in ruling on § 3582(c)(2) motion); see also Dillon v. United States, 560 U.S. 817, 825-27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (explaining that § 3582(c)(2) proceeding is not full resentencing); United States v. Smalls, 720 F.3d 193, 195-96 (4th Cir.2013) (<HOLDING>). Accordingly, we affirm the district court’s Holdings: 0: holding that only relevant factors must be considered 1: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 2: recognizing that district court is presumed absent contrary indication to have considered relevant factors when ruling on 3582c2 motion 3: holding that when trial court has considered all relevant factors in its forum non conveniens analysis the courts ruling deserves substantial deference and appellate court should not conduct de novo review by reweighing each of the factors quotation marks omitted 4: holding that erroneously admitted evidence may be considered when ruling on a motion to dismiss | [
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raw data would be destroyed after two years. See Caulfield, 722 N.W.2d at 313. And while the doctrine of forfeiture by wrongdoing continues to apply to Confrontation Clause violations under Crawford, that doctrine is usually applied in cases involving witness tampering or some other type of threats to witnesses to procure their unavailability. See Caulfield, 722 N.W.2d at 311-12; see also State v. Alvarez-Lopez, 136 N.M. 309, 98 P.3d 699, 703-05 (2004), cert. denied, 543 U.S. 1177, 125 S.Ct. 1334, 161 L.Ed.2d 162 (2005) (defendant did not forfeit his right to confrontation under Crawford by absconding from state and remaining fugitive for seven years). The loss of evidence from a delay in trial is often predictable. See generally Black v. State, 725 N.W.2d 772, 776 (Minn.App.2007) (<HOLDING>). Thus, a defendant may be deemed to forfeit Holdings: 0: holding that motion to withdraw guilty plea was untimely when made more than two years later given that drug evidence had been destroyed and witnesses memories had likely faded 1: holding that district court did not abuse its discretion in denying a motion to withdraw guilty plea filed three weeks after entering the plea 2: holding that where a witness had been convicted seventeen years earlier but had been given probation and had not been confined the date of the conviction controlled 3: holding that trial court lacked jurisdiction to consider defendants motion to withdraw guilty plea filed beyond term of court in which defendant was sentenced 4: holding that a motion to withdraw a guilty plea was not pending because nothing was left for the court to decide | [
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a substantive cause of action through which Ms. Hillman could collect Mr. Hillman’s FEGLI proceeds. Second, as noted above, FEGLIA does not contain any anti-alienation or similar provision that precludes the imposition of a constructive trust upon FEGLI proceeds. Third, if Ms. Hillman were to be able to reach the FEGLI proceeds, her actions would not be in direct contravention of any “plain and precise” requirement or “clear prohibition” expressly provided for in FEGLIA. The Court thus finds that the Supreme Court of Virginia’s rationale in Dugan does not govern this case either. 3. FEGLIA Preemption of Foreign State Equitable Remedies While there is no binding authority with respect to FEGLIA preemption of Virginia law, there are a number of foreign state a 575, 579-80 (7th Cir. 1992) (<HOLDING>); Metropolitan Life Ins. Co. v. Holdings: 0: holding that the asserted right of the insureds child based on his agreement with his mother during their divorce to name the child as his fegli beneficiary was preempted by feglia 1: holding debtor could not discharge that portion of his monthly army retirement benefits awarded to his wife pursuant to a divorce decree 2: holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce 3: recognizing that a divorce decree which obligated the divorcing husband to name the children of his first marriage as the irrevocable beneficiaries of an insurance policy precluded him from naming his new wife as a beneficiary entitled to a portion of the insurance benefits 4: holding that feglia preempted a divorce decree that ordered the insured to designate his children as beneficiaries on his fegli policy | [
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the district court’s disposition of this juvenile case. Bill did not ask to conditionally admit to the allegations against him, thereby reserving appeal of any legal issues. Instead, he entered an unconditional admission, and indicated that he understood there would be no appeal. It is longstanding law that no defenses can be raised on appeal after entry of a guilty plea, except that no offense has been charged. Commonwealth v. Elza, 284 S.W.3d 118 (Ky.2009). The effect of the guilty plea is to waive those other defenses and any appeal that seeks to raise them. Juveniles, -of course, are not held to the same level of competency as adults, simply as a matter of law. Nevertheless, they may waive their rights in juvenile proceedings. See Commonwealth v, B.J., 241 S.W.3d 324, 327 (Ky.2007) (<HOLDING>); Kozak v. Commonwealth, 279 S.W.3d 129, 133 Holdings: 0: holding juveniles do not have constitutional right to a jury trial but striking down statute that allowed juveniles to receive adult sentence without a jury trial three justices dissented reasoning juveniles should be entitled to a juiy trial under all cases because changes to juvenile justice code treated juveniles like criminals 1: recognizing that defendant may waive miranda rights 2: holding that juveniles may waive constitutional rights 3: holding that juveniles may not waive counsel unless parent or guardian also waives that right 4: holding that juveniles may waive right to counsel only upon advice of counsel | [
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credibility about a battered woman, we find the court’s evidential ruling unduly restrictive. 9 We note that several jurisdictions have found battered woman syndrome evidence to be admissible for certain purposes in respect of a claim of duress. See, e.g., United States v. Simpson, 979 F.2d 1282, 1287-88 (8th Cir.1992), cert. denied, 507 U.S. 943, 113 S.Ct. 1345, 122 L.Ed.2d 727 (1993); United States v. Marenghi, 893 F.Supp. 85, 92-96 (D.Me.1995), aff'd, 109 F,3d 28 (1st Cir.1997); United States v. Brown, 891 F.Supp. 1501, 1508 (D.Kan.1995); Romero, supra, 13 Cal.Rptr.2d at 338-39, rev’d on other grounds, 8 Cal.4th 728, 35 Cal.Rptr.2d 270, 883 P.2d 388 (1994); State v. Williams, 132 Wash.2d 248, 937 P.2d 1052, 1058 (1997). See also Dunn v. Roberts, 963 F.2d 308, 313-14 (10th Cir.1992) (<HOLDING>); United States v. Johnson, 956 F.2d 894, 898 Holdings: 0: holding that a lawyer is a necessary witness where the lawyers testimony is relevant to disputed material questions of fact and where there is no other evidence available to prove those facts 1: holding that the relevant intent is not the intent to return ultimately but the intent to return to the united states within a relatively short period 2: holding that the title of legislation is relevant to legislative intent 3: holding that the rule 404b evidence admitted to prove intent was clearly relevant because intent was at issue in the trial 4: holding battered woman syndrome evidence relevant when defendants intent is disputed | [
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not advise him of his appellate rights at the resentencing hearing and that he was diligent in pursuing his right to appeal the new sentence. The State does not dispute that Hull was not advised of his appellate rights at resen-tencing .... [W]e are unaware of any additional information that Hull could have provided in support of his motion. Id. at 1254. With respect to Hull’s Blakely claim, however, the court stated, Hull did not file a timely notice of appeal and thus, Hull’s direct appeal was not pending at the time Blakely was decided. It was nearly ten months after Blakely that Hull filed his motion to file a belated notice of appeal. In short, although it was later revived, Hull’s case was not on direct review when Blakely was decided. See Robbins v. State, [839 N.E.2d at 1199,] (<HOLDING>). Accordingly, Hull’s claims under Blakely must Holdings: 0: holding that blakely does not apply retroactively to 2255 motions 1: holding that blakely does not apply to the federal sentencing guidelines 2: holding that blakely did not apply to a case that was final but not on direct review when blakely was decided and in which the trial court later allowed a belated appeal 3: holding that the court of appeals has held that blakely does not apply to sentencing under the poaa blakely being specifically directed at exceptional sentences ball 127 wn app at 957 95960 we agree with this conclusion and determine that blakely has no application to the instant case 4: holding blakely not retroactive | [
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34 Cal.Rptr.3d 905 (2005). Here, petitioner does not have a criminal history of violence, which tends to show he is suitable for parole, rather than unsuitable. Moreover, the Governor’s finding to the contrary — especially given the length of time between petitioner’s past DUI convictions and the Governor’s reversal of the parole decision, and the fact petitioner’s alcoholism has been in remission for many years — is not supported by any evidence in the record. See Scott, 133 Cal.App.4th at 602-03, 34 Cal.Rptr.3d 905 (no evidence supported Governor’s finding that inmate had a significant criminal history when only prior convictions inmate suffered were misdemeanor reckless driving involving no injury and vandalism); Pirtle v. Cal. Bd. of Prison Terms, 2007 WL 1140817, *15 (E.D.Cal.) (<HOLDING>), adopted by, 2007 WL 1544620 (E.D.Cal. 2007). Holdings: 0: holding no evidence supported boards conclusion that inmates twentyfive year old criminal reeord which consisted of felony and misdemeanor drunk driving offenses and other misdemeanors shows that he would pose a danger to the public if released 1: recognizing that felony and misdemeanor dwi are separate offenses because a prior conviction is an essential element of felony driving while intoxicated but it is not an element of the misdemeanor offense 2: holding that a finding of fact is supported by substantial evidence on the record as a whole if it would have been possible for a reasonable jury to reach the boards conclusion 3: holding in a case involving a deaf person arrested for drunk driving that calling a drunk driving arrest a program or activity of the county the essential eligibility requirements of which in this case are weaving in traffic and being intoxicated strikes us as a stretch of the statutory language and of the underlying legislative intent 4: holding that misdemeanor drunk driving by its very nature involves conduct that presents a serious potential risk of physical injuiy to another | [
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that Appellants’ decision to bring the state court actions while the federal proceeding remained open evinces a dilatory motive. The obvious inference is that Appellants viewed the federal case as a “placeholder” that they could revisit depending on the outcome of their state cases. And regardless of Appellants’ intent, their decision to bring two state court actions while missing in action from the present case prejudiced Appellees. Appel-lees were forced to defend numerous cases in separate jurisdictions simultaneously, and Appellants’ absenteeism in the case below left Appellees alone to comply with the district court’s pre-trial deadlines. In sum, the court’s dismissal was not an abuse of discretion. Lewis v. Sherriff's Dept. Bossier Parish, 478 Fed.Appx. 809, 816 (5th Cir.2012) (<HOLDING>), cert. denied, — U.S. ---, 133 S.Ct. 865, 184 Holdings: 0: holding that in the circumstances presented viz plaintiffs failure to prosecute for months following suggestion of death but with no discernible prejudice to defendant dismissal without prejudice was appropriate sanction 1: holding that dismissal with prejudice is warranted where case delayed for more than a few months 2: holding that plaintiffs failure to respond to argument warranted dismissal with prejudice 3: holding that the parties stipulation of dismissal with prejudice was a final judgment 4: holding that dismissal for discovery violations was an extreme remedy but warranted under the facts of the case | [
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random seizures”). Even with the addition of the own the RV, “property rights are neither the beginning nor the end of [the relevant] inquiry.” United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The court must inquire “not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.” Id. at 92, 100 S.Ct. 2547; see also Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (finding that an overnight guest has a protected expectation of privacy in the home in which he stays). Generally speaking, persons who borrow cars have standing to challenge searches of the borrowed vehicles. Compare United States v. Baker, 221 F.3d 438, 442-43 (3d Cir.2000) (<HOLDING>) (citing multiple cases from other circuits); Holdings: 0: holding that the driver of a ear owned by his wife who had given him permission to use it had a legitimate expectation of privacy under the fourth amendment 1: holding that the driver of a borrowed car had the requisite legitimate expectation of privacy to support standing for fourth amendment purposes 2: holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver 3: holding that a defendant who had borrowed a car for a limited period of time had no legitimate expectation of privacy in the cars locked trunk where it was the very person from whom he had borrowed the car who first called the police after he failed to return the car 4: holding that the driver of a car who had permission to use the car had standing to challenge its search | [
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Group, Inc. v. Bon Tool Co., No. H-05-4127, 2008 WL 2962206, at *5-6 (S.D.Tex. July 29, 2008) (finding only one false marking offense when the defendant “made only one separate, distinct decision to mark its stilts after it knew the stilts did not meet all the claims of [the patent at issue]”); Bibow v. Am. Saw & Mfg. Co., 490 F.Supp.2d 128, 129 n. 1 (D.Mass.2007) (opining that "[i]t is doubtful that the statute ever intended to create such a lucrative game of ‘gotcha!’ " by imposing a fine for each lime a press release was "seen in some medium”); Undersea Breathing Sys., Inc. v. Nitrox Techs., Inc., 985 F.Supp. 752, 781 (N.D.Ill.1997) (fining the defendant $500 for a single decision to mark flyers); Sadler-Cisar Inc. v. Comm. Sales Network, 786 F.Supp. 1287, 1296 (N.D.Ohio 1991) (<HOLDING>); Joy Mfg. Co. v. CGM Valve & Gauge Co., 730 Holdings: 0: holding that the application of the enhancement for using a firearm in connection with another felony offense is proper only if there is a clear connection between the firearm that was used in the other offense and the one that was used in the offense of conviction 1: holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense 2: holding that no offense alleged where affidavit described offense as felony 3: holding that that the trial court erred when it determined that firstdegree sexual offense was an aggravated offense 4: holding that a defendant was liable for only one offense when falsely marking a device because continuous markings over a given time constitute a single offense | [
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testifying about the actual effect that the extraneous material had upon the jury’s deliberations or its verdict. To determine whether a probability of prejudice exists, the trial court should consider the following relevant inquiries: 1. The manner in which the extraneous material was received; 2. How long the extraneous material was available to the jury; 3. Whether the jury received the extraneous material before or after the verdict; 4. If received before the verdict, at what point in the deliberations was the material received; and 5. Whether it is probable that the extraneous material affected the jury’s verdict, given the overall strength of the opposing party’s case. See Doe, 101 N.M. at 366-67, 683 P.2d at 48-49; see also United States v. Hall, 85 F.3d 367, 371 (8th Cir.1996) (<HOLDING>). Additionally, the trial court should hold an Holdings: 0: holding that after court dismissed case at plaintiffs request notwithstanding the fact that jury had deliberated upon the case and indicated that it had reached a verdict there was no case pending in court on which a verdict could be predicated and the information which the judge got from an inspection of the petition handed to him by the foreman of the jury was information which he received as an individual and not as a judge of the court and further holding that despite violation of defendants right to receive the verdict that was purportedly reached the writing incorporated in the bill of exceptions as a verdict of the jury was in law no verdict because it was not received in court and published as required by law and was instead entirely extraneous and extrajudicial 1: recognizing the district judge diminished the prejudicial impact of the extrinsic evidence by properly instructing the jury for what limited purpose the extrinsic evidence was to be used 2: holding that in determining whether a discovery violation warrants the sanction of exclusion of evidence a court must look to whether the violation was substantial the timing of the violation the reason for the violation the degree of prejudice to the parties whether such prejudice may be cured by a postponement and the desirability of a continuance 3: holding that when determining prejudice under the objective test relevant considerations include 1 whether the extrinsic evidence was received by the jury and the manner in which it was received 2 whether it was available to the jury for a lengthy period of time 3 whether it was discussed and considered extensively by the jury 4 whether it was introduced before a jury verdict was reached and if so at what point during the deliberations and 5 whether it was reasonably likely to affect the verdict considering the strength of the governments case and whether the governments case outweighed any possible prejudice caused by the extrinsic evidence 4: holding that the key question in deciding whether the economic loss doctrine applies to a negligence claim is whether the negligence was extrinsic to the subject matter of the contract | [
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Fire Dep’t, 607 F.2d 17, 27 (2d Cir.1979); see also Grayned, 408 U.S. at 108, 92 S.Ct. 2294 (explaining that the Court’s concern about vague laws is that they do not give people a “reasonable opportunity to know what is prohibited” and “may trap the innocent by not providing fair warning”). In this case, it is undisputed that Perez was warned by the Stewards that his conduct would subject him to a fíne. See Janusaitis, 607 F.2d at 27 (rejecting vagueness challenge where plaintiff received a “specific warning” to cease his conduct and holding that plaintiff should have recognized that his actions would be viewed as a violation of the rule prohibiting “unbecoming conduct detrimental to the welfare or good name of the Department”); In re Bithoney, 486 F.2d 319, 324 (1st Cir.1973) (<HOLDING>); cf. diLeo, 541 F.2d at 953 (finding that Holdings: 0: holding that because respondent received a direct and specific warning from the court that his continued abuse of process would constitute conduct unbecoming a member of the bar regulation under which respondent was penalized was not vague 1: recognizing that the regulation was drafted pursuant to direct statutory authority 2: holding district courts dismissal following explicit and reasonable warning was not an abuse of discretion 3: holding facta was not vague and ambiguous and that defendants conduct was willful 4: holding that pma process is not specific regulation because the requirements are not contained in formal regulation | [
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“[A] seller of a ‘material part’ of a patented item may be a contributory infringer if he makes a non-staple article that he knows was ‘especially made or especially adapted for use in an infringement of such patent.’ ” Husky Injection Molding Sys. Ltd. v. R & D Tool & Eng’g Co., 291 F.3d 780, 784 (Fed.Cir.2002) (quoting 35 U.S.C. § 271(c); Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 219, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980)). Section 271(c) has been interpreted to require not only knowledge that the component was especially made or adapted for a particular use but also knowledge of the patent which proscribed that use. See Hewlett-Packard, 909 F.2d at 1469 n. 4 (citing Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (<HOLDING>)) OGT alleges that Mergen is liable for Holdings: 0: holding that apprendi does not require the government to prove that defendant knew type and amount of controlled substance 1: holding that a plaintiff seeking to establish inducement to infringe must show that the alleged infringers actions induced infringing acts and that he knew or should have known his actions would induce actual infringements 2: holding that section 1983 action requires a showing of defendants personal participation in alleged constitutional violation 3: recognizing that ocga 911111 embodies both a procedural and substantive component 4: holding that section 271c does require a showing that the alleged contributory infringer knew that the combination for which his component was especially designed was both patented and infringing | [
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sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i e., expressly charged) in the count of which the defendant was convicted involved the use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. (Emphasis added.) The guidelines, therefore, categorically define manslaughter, whether voluntary or involuntary, as a “crime of violence” for guidelines purposes. See also United States v. Sanders, 97 F.3d 856, 859-60 (6th Cir.1996) (<HOLDING>). Thus, in calculating the appropriate Holdings: 0: holding that a court must only look to the statutory definition not the underlying circumstances of the crime to determine whether a given offense is by its nature a crime of violence for purposes of 18 usc 16 1: holding that the definition of a violent felony is nearly identical to the definitions of a crime of violence used in the guidelines 2: holding for the purposes of 18 usc 924e that being a felon in possession of a firearm is not a violent felony as defined in 18 usc 924e2b 3: holding that the categorical approach applies to the identical definition of crime of violence in 18 usc 16 4: holding that for purposes of 18 usc 924e involuntary manslaughter in ohio is a violent felony the definition of which is identical for all relevant purposes to the definition of crime of violence in 4b12a | [
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evidence available to prove such intent. See id. at 578 (noting the problems associated with allowing extrinsic evidence to prove testator intent). In cases involving depletion of the decedent’s estate due to negligent tax planning, however, the personal representative need not prove how the decedent intended to distribute the estate; rather, the representative need only demonstrate that the decedent intended to minimize tax liability for the estate as a whole. Additionally, while the interests of the decedent and a potential beneficiary may conflict, a decedent’s interests should mirror those of his estate. Thus, the conflicts that concerned us in Barcelo are not present in malpractice suits brought on behalf of the estate. See Nevin v. Union Trust Co., 726 A.2d 694, 701 (Me.1999) (<HOLDING>). We note, however, that beneficiaries often Holdings: 0: holding that the better rule is to allow only personal representatives not beneficiaries to sue for estateplanning malpractice because what may be good for one beneficiary is not necessarily good for the estate as a whole 1: holding lack of prejudice to the defendant is not good cause 2: holding forbearance to sue is a good consideration for a promise founded thereon and it is only essential that the claim be asserted in good faith 3: holding that a legal malpractice claim arising from errors by an attorney in rendering estateplanning services is properly brought by the personal representative of the estate when excess estate taxes are paid by the estate in contravention of the decedents intended estate plan 4: holding that beneficiaries could not sue attorneys of the trust for legal malpractice because beneficiaries are not direct recipients of the attorneys services | [
"1",
"2",
"3",
"4",
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] | [
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] |
in the courts of such State ... from which they are taken." 28 U.S.C. § 1738. 3 . The doctrine stems from the United States Supreme Court decisions in Rooker v. Fidelity Trust, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). It is premised on both prudential grounds, namely the preservation of system consistency, and statutory grounds. See 28 U.S.C. § 1257 (giving the United States Supreme Court exclusive federal jurisdiction to review state court judgments); 28 U.S.C. §§ 1331 and 1334 (defining the jurisdiction of federal district courts as original, not appellate). 4 .See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (<HOLDING>); see also Miller v. Burns (In re Burns), 395 Holdings: 0: holding rookerfeldman doctrine deprived district court of jurisdiction to review decision of west virginia state bar 1: holding that although the state court affirmed the zoning board of appeals dismissal of plaintiffs appeal the statecourt judgment did not trigger rookerfeldman where the complaint did not allege that the judgment itself violated federal law 2: holding that rookerfeldman bars subject matter jurisdiction where but for the statecourt judgment the plaintiff would have no claim 3: holding rookerfeldman also bars federal claims raised in state court as well as claims that are inextricably intertwined with the statecourt judgment 4: holding that the rookerfeldman doctrine is confined to cases brought by statecourt losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments | [
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to bring an action “to enjoin any act or practice which violates any provision of’ subchapter I of ERISA or the terms of a plan. If, as plaintiff alleges, defendants engaged in acts or practices which violated ERISA and the terms of the plan, she may be entitled to obtain an injunction to prevent defendants from continuing to engage in such acts and practices even if plaintiff is also entitled to benefits under § 1132(a)(1)(B). Nothing in Varity Corp. or other cases cited by defendants appears to limit actions under § 1132(a)(3)(A) — as opposed to actions under § 1132(a)(3)(B) — to cases in which relief under § 1132(a)(1)(B) is unavailable. See Keir v. UnumProvident Corp., No. 02 CIV. 8781(DLC), 2003 WL 2004422, at *1-2, 2003 U.S. Dist. LEXIS 7020, at *1-3 (S.D.N.Y. April 29, 2003) (<HOLDING>). Indeed, I see no reason why a plaintiff could Holdings: 0: recognizing that plaintiffs may bring action to enjoin acts and practices that violate erisa pursuant to 1132a3a and that such an action is different than a claim for benefits pursuant to 1132a1b 1: holding that an action brought pursuant to 1983 cannot lie against federal officers 2: 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 3: holding that prevailing party to contract dispute may recover attorneys fees either pursuant to contract or pursuant to statute 4: recognizing that exhaustion of state administrative remedies is not required as a prerequisite to bringing an action pursuant to 1983 | [
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