input
stringlengths 15
850k
| references
sequence | gold
sequence |
|---|---|---|
divide the marital property. Moreover, the evidence sustains the trial court’s finding of “no real disparity in earnings” between the parties during the marriage. The wife has faded to demonstrate error in the failure of the trial court to reserve jurisdiction to award her periodic alimony in the future. For the foregoing reasons, the judgment of the trial court is affirmed. AFFIRMED. THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ„ concur. 1 . The wife also argues that the husband reported the income received from his operation of the restaurant on the parties' joint tax return. However, the evidence is undisputed that the husband does not own any part of the restaurant property, which solely belongs to his mother. See Bonner v. Bonner, 170 So.3d 697 (Ala.Civ.App.2015) (<HOLDING>). 2 . Section 30-2-51(b) provides that, subject Holdings: 0: holding the family court has jurisdiction to join third parties when property is alleged to be marital but is owned by a third party 1: holding that the beneficiary of a trust was not the real party in interest regarding rights owned by the trust 2: holding that forfeiture of real property may be adjudicated before the seizure occurs because real property cannot abscond 3: holding that plaintiffs may have a property interest in real property 4: holding that trial court cannot divide real property owned solely by third party witness | [
"1",
"0",
"3",
"2",
"4"
] | [
"4"
] |
threaten the employee-public servant. Similar pressure motivated by social issues likewise would not be covered by the proposed rule. As in the case of political pressure, I express no opinion on whether a clear mandate of public policy would cover that situation. The prospect of picketing in front of the employer’s place of business, threatening to withhold patronage, and other forms of economic pressure to effectuate the social goals of those protesting, should not be lightly dismissed. A rule prohibiting discharge might be totally ineffective: the protests and demonstrations would continue. Further, it might be unthinkable and perhaps unconstitutional to attempt to stop them. Cf. Madsen v. Women’s Health Ctr., Inc., 512 U.S. -,-, 114 S.Ct. 2516, 2530, 129 L.Ed.2d 593, 614-15 (1994) (<HOLDING>); Horizon Health Ctr. v. Felicissimo, 135 N.J. Holdings: 0: holding unconstitutional order prohibiting antiabortion protesters from demonstrating in front of family planning climes 1: holding unconstitutional an ordinance prohibiting opprobious language 2: recognizing that an order denying a motion to modify a family court order where the motion is based on changed factual or legal circumstances is appealable as a special order after final judgment 3: holding unconstitutional a statute prohibiting judges running for election from expressing a view on political issues during campaigns 4: holding statute prohibiting newspapers from publishing juvenile defendants name unconstitutional because inter alia in absence of regulation of electronic media it did not accomplish the stated purpose | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
Comment notes, this rule is the codification of the supreme court’s adoption of Rule 606(b), Fed.R.Evid., in State v. Blackwell, 664 S.W.2d 686, 688 (Tenn.1984). If the defendant shows that the jury has been subjected to extraneous prejudicial information or improper influence, then we presume prejudice and the burden shifts to the state to rebut this presumption by either explaining the exposure or proving that it was harmless. Id. at 689. The information that the jurors provided the defendant cannot be offered in court unless it qualifies under one of the three exceptions in 606(b). In the present case, unless the information is extraneous, it is inadmissible under Tenn. R. Evid. 606(b). “Extraneous means ‘coming from without.’ ” State v. Coker, 746 S.W.2d 167, 171 (Tenn.1987) (<HOLDING>). The trial court in this case questioned Holdings: 0: holding that the defendant bears the burden of proving outside contact with the jury 1: holding that discussion among jurors of their agreement to the defendants guilt during trial and before deliberation was not such misconduct as can be shown by the affidavit of a juror 2: holding that the defendant could not establish prejudice for trial counsels failure to hire an expert when the experts testimony would not have changed the nature of the states evidence 3: holding that the jurors alleged discussion about the possibility that the defendant would hire someone to kill them was inadmissible because the defendant had not shown that the jury learned of the threat from an outside source 4: holding that the jury instructions taken as a whole sufficiently informed the jury of the states burden of proving that the defendant specifically intended to kill the victim | [
"2",
"0",
"4",
"1",
"3"
] | [
"3"
] |
The appellate level of the State Bar Court of California has also consistently adhered to the "long established principle that it is inappropriate to use the same conduct relied on to establish .a disciplinary Vlolatlon to establish an aggrava- © ting circumstance." In re Silverton, Nos. 95-O-10829, 99-O-13251, 2004 WL 60709, at *16 (Review Dep't of the State Bar Ct. of Cal., Jan. 6, 2004); see also In re Sampson, No. 90-O-17703, 1994 WL 454888, at *12 (Review Dep't of the State Bar Ct. of Cal., Aug. 16, 1994) ("It appears that :the hearing judge used the same conduct constituting the ... violation as a finding in aggravation of the same charge. This is inappropriate."); In re Burckhardt, No. 88-0-15079, 1991 WL 16498, at *6 (Review Dep't of the State Bar Ct. of Cal., Feb. 4, 1991) (<HOLDING>); In re Trillo, No. 85-0-13726, 1990 WL 92610, Holdings: 0: holding that because a finding of aggravation for conduct involving bad faith dishonesty and concealment reflected the same conduct that is properly the basis for the finding of the violation the finding in aggravation was duplicative 1: holding that the district courts finding of no discrimination under title vii was not clearly erroneous because the finding was supported by the record 2: holding that the filing of frivolous claims could not form the basis for a finding of retaliatory conduct 3: holding that a finding of bad faith is necessary to invoke the spoliation doctrine 4: holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record | [
"1",
"3",
"2",
"4",
"0"
] | [
"0"
] |
altering, defacing, modifying and mutilating it, thus harming his honor and reputation as an artist. Continuing to take Pavia’s factual allegations to be true for the purposes of this motion, “The Ides of March” falls within the category of works protected under VARA. VARA deems a sculpture to be a “work of visual art” if it is “existing in a single copy ... or in multiple east, carved, or fabricated sculp tures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author.” VARA § 602, 17 U.S.C. § 101. Despite the fact that it consists of four separate elements, “The Ides of March” is alleged to be a single work of art whose elements “form an integrated whole.” Carter v. Helmsley-Spear, 861 F.Supp. 303, 314 (S.D.N.Y.1994) (<HOLDING>) As a single piece, “The Ides of March” thus Holdings: 0: holding that the two elements of a copyright infringement claim are 1 the plaintiff owns a valid copyright right and 2 the defendants copied constituent elements of the work that are original 1: holding a number of sculptural elements including art work attached to the ceiling and the floor interactive art a vast mosaic covering the majority of the floor of the lobby and portions of the walls and several sculptural elements to be a single work of art whose elements are interrelated 2: holding elements of rescission are 1 3: holding that invalidity for anticipation requires that all of the elements and limitations of the challenged claim are found within a single prior art reference 4: holding that the elements of a hostile work environment claim are the same across discrimination contexts and applying those elements specifically to the age discrimination in employment act | [
"0",
"4",
"3",
"2",
"1"
] | [
"1"
] |
v. Kroger Tex., LP, 288 F.3d 208, 210 (5th Cir.2002) (stating that the Fifth Circuit has held that “specific damage estimates that are less than the minimum jurisdictional amount, when combined with other unspecified damage claims, can provide sufficient notice that an action is removable so as to trigger the time limit for filing a notice of removal”). However, the Court believes that Plaintiffs Original Petition is not such a pleading. Since Plaintiffs Original Petition contains no information about his salary or the kinds of promotions allegedly denied him, any estimate as to his potential damages would be based on supposition, not affirmative revelations. Cf. Exceleron Software, Inc. v. TGEC Commc’ns Co., No. Civ. A. 3:05-CV-2007-L, 2005 WL 3542566, at *3 (N.D.Tex. Dec.23, 2005) (<HOLDING>). To demonstrate that his Original Petition Holdings: 0: holding that an initial pleading triggered the thirtyday time limit for removal under 1446b because it sets forth on its face express allegations as to the monetary amount of damages 1: holding that a writ of summons alone can no longer be the initial pleading that triggers the 30day period for removal under the first paragraph of 28 usc 1446b 2: holding that removal under the second paragraph of 1446b did not apply and defendants therefore had removed outside of the thirty day time period triggered at the time of service of the complaint 3: holding other paper must be unequivocally clear and certain to start the time limit running for a notice of removal under the second paragraph of section 1446b 4: holding that notice of removal was defective on its face because it failed to contain a copy of the process as required by the removal statute | [
"4",
"1",
"3",
"2",
"0"
] | [
"0"
] |
§ 2701(c)(1), or “by a user of that service with respect to a communication of or intended for that user,” id. § 2701(c)(2). The district court dismissed on the ground that NetGate had authorized defendants’ access. It held that this consent was not coerced, because the subpoena itself informed NetGate of its right to object. Plaintiffs contend that NetGate’s authorization was nonetheless invalid because the subpoena was patently unlawful. Their claim turns on the meaning of the word “authorized” in section 2701. We have previously reserved judgment on this question, see Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 879 n. 8 (9th Cir.2002), while other circuits have considered related issues, see, e.g., EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 582 n. 10 (1st Cir.2001) (<HOLDING>); United States v. Morris, 928 F.2d 504, 510 Holdings: 0: holding that compliance with rule 3 is both a mandatory and jurisdictional prerequisite to appeal internal quotation marks omitted 1: holding that an error is harmless if it was inconsequential to the ultimate nondisability determination internal quotation marks omitted 2: holding access might be unauthorized under the computer fraud and abuse act if it is not in line with the reasonable expectations of the party granting permission internal quotation marks omitted 3: recognizing that the declaratory judgment act is only procedural and does not create substantive rights internal quotation marks and citations omitted 4: holding that apprendi error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error internal quotation marks and citation omitted | [
"4",
"1",
"3",
"0",
"2"
] | [
"2"
] |
to believe that he would be prohibited from taking the weapon on board the aircraft. Wallace’s assertion that he sought to introduce this evidence is contradicted by his statement that the parties stipulated to the existence of all elements necessary for a conviction under 49 U.S.C. § 1472(f), with the one exception concerning the question of whether a stun gun is a dangerous weapon within the meaning of the statute. Brief for Appellant at 7. Accordingly, the Government opposes Wallace’s attempt to raise the question of his intent to conceal the weapon on appeal because the record does not show any effort to introduce evidence on non-concealment at trial. See United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984) (<HOLDING>). Assuming, however, that this issue is Holdings: 0: holding that issues not raised before the trial court cannot be raised on appeal 1: holding that errors not raised before the trial court will not generally be considered on appeal 2: holding that an issue not presented to the trial court will not be considered on appeal 3: holding that an argument not raised before the bankruptcy court will not be considered for the first time on appeal 4: holding that a claim not raised before the trial court will not be considered for the first time on appeal | [
"0",
"2",
"3",
"4",
"1"
] | [
"1"
] |
a variety of prescription medications on 22-23 August 2006. As a result, “the probative value of’ evidence relating to the seizure of prescription medications at the time of Defendant’s 10 February 2005 arrest “depends upon [his] having in fact committed the prior alleged offense.” Scott, 331 N.C. at 41, 413 S.E.2d at 788. Finally, “[e]vidence of other crimes is admissible when it tends to establish a common plan or sche iscellaneous bottles and a collection of unidentified pills would not tend to show the existence of such a common scheme or plan. Thus, “the probative value of’ evidence relating to items seized as part of Defendant’s 10 February 2005 arrest “depends upon [his] having in fact committed the prior alleged offense.” Scott, 331 N.C. at 41, 413 S.E.2 S.E.2d 475, 477 (1994) (<HOLDING>). After careful consideration, we are unable to Holdings: 0: holding improperly admitted evidence was harmless error given the overwhelming evidence of guilt 1: holding that the erroneous admission in a misdemeanor larceny case of evidence elicited on crossexamination that the defendant had been detained in another store resulting in charges for which she was later acquitted was harmless given the overwhelming evidence against the defendant 2: holding the error harmless in light of the overwhelming evidence of guilt 3: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 4: holding that in a felonious breaking or entering and possession of housebreaking implements case the erroneous admission of evidence that the defendant had committed a similar breaking or entering on another occasion for which he was later acquitted constituted harmless error given the overwhelming evidence of the defendants guilt | [
"3",
"2",
"1",
"0",
"4"
] | [
"4"
] |
145, 149 (Ind.Ct.App.2005). Further, the proposition that a surgeon cannot delegate a duty to remove foreign objects from a patient has been recognized. See, e.g., Miller v. Ryan, 706 N.E.2d 244, 250 (Ind.Ct.App.1999), trans. denied; Indiana Pattern Jury Instruction No. 23.03. Numerous opinions have held that a surgeon is not entitled to summary judgment under such res ipsa cases. See, e.g., Wright, 622 N.E.2d at 172 (affirming the denial of the motions for summary judgment of the surgeon and hospital); Burke v. Capello, 520 N.E.2d 439, 442 (Ind.1988) (reversing the trial court’s grant of summary judgment to a surgeon who left a piece of cement in the patient), overruled on other grounds by Vergara By Vergara v. Doan, 593 N.E.2d 185, 186-187 (Ind.1992); Balfour, 830 N.E.2d at 150 (<HOLDING>). However, our research reveals no Indiana Holdings: 0: holding that at summary judgment hearing trial court erred by considering theory not raised in the pleadings 1: holding that a grant of summary judgment in favor of one party creates a final judgment allowing appellate review of denial of opposing partys summary judgment motion 2: holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiffs motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith 3: holding that the trial court erred when it entered summary judgment in favor of the health care provider 4: holding that party may not appeal summary judgment in favor of opponent when grounds opposing summary judgment asserted on appeal were not raised before trial court | [
"0",
"1",
"4",
"2",
"3"
] | [
"3"
] |
by Microsoft for Hotmail users are not in electronic storage”). However, the Court need not resolve this issue now, for, consistent with numerous other courts, the Court determines that at a minimum email messages that have reached the addressee’s inbox, but which have yet to be opened by the addressee, are in “temporary, intermediate storage.” Crispin, 717 F.Supp.2d at 987(explaining that webmail messages that have not yet been opened are in electronic storage); United States v. Councilman, 418 F.3d 67, 81 (1st Cir.2005) (explaining that temporary storage refers to “when a message sits in an email user’s mailbox after transmission but before the user has retrieved the message from the mail server”); Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 461 (5th Cir.1994) (<HOLDING>); cf. United States v. Weaver, 636 F.Supp.2d Holdings: 0: holding that emails stored by employee on hard drive of companyissued laptop were not in electronic storage as contemplated by the sca 1: holding that users have a reasonable expectation of privacy in the content of stored email 2: holding that email messages stored on a computer but not yet read were in electronic storage 3: holding that subsection b did not apply because the communications at issue were not being stored by an electronic communication service 4: holding that users have reasonable expectation of privacy in text messages despite advance warning that the messages could be read | [
"4",
"1",
"0",
"3",
"2"
] | [
"2"
] |
are strong.... Losses like these can be insured [through warranties]. ... The increased cost to the public that would result from holding a manufacturer liable in tort for injury to the product itself is not justified. Id. at 871-72, 106 S.Ct. 2295. The Court continued by explaining how contract law is designed to account for the costs and risks of a product's nonperformance: Contract law, and the law of warranty in particular, is well suited to commercial controversies of the sort involved in this case because the parties may set the terms of their own agreements. The manufacturer can restrict its liability, within limi 992)(citing economic loss rule to bar action for negligent termination of employment); Scott Co. of California v. MK-Ferguson Co., 832 P.2d 1000, 1005 (Colo.App.1991) (<HOLDING>); Centennial Square, Ltd. v. Resolution Trust Holdings: 0: holding that an agreement which required the submission of an affidavit of payment to subcontractors or lien waivers before payment was made by the general contractor was for the direct benefit of the subcontractors 1: holding that the indemnity plaintiffs liability was due only because of its legal duty as the property owner and not because of any active or independent negligence 2: holding economic loss doctrine bars negligence claim based on service contract 3: recognizing the general rule that a property owner is not liable for the negligence of an independent contractor 4: holding that the rule bars subcontractors negligence claim because no independent duty was breached | [
"0",
"3",
"1",
"2",
"4"
] | [
"4"
] |
of the United States which relates to the subject matter as to which the witness has testified.” (emphasis added)). Third, Mr. Frederick offers nothing to rebut the government’s statement to the District Court that it had fully complied with its obligations under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), so we would be hard-pressed to say that the District Court abused its discretion by relying on those representations as true. Fourth, the Federal Rule of Evidence 404(b) violations alleged by Mr. Frederick involved criminal activities inextricably intertwined with the criminal conspiracy and therefore not governed by the requirements for admission of evidence under Rule 404(b). See United States v. Foster, 889 F.2d 1049, 1054-55 (11th Cir.1989) (<HOLDING>). Finally, Mr. Frederick impeached the Holdings: 0: holding that in a conspiracy case venue lies where the conspiracy agreement was formed or in any jurisdiction where an overt act in furtherance of the conspiracy was committed by any of the conspirators 1: holding that defendant was not entitled to buyerseller instruction in drug conspiracy prosecution given evidence that defendant played numerous roles in the conspiracy and that massive amounts of cocaine were involved 2: holding that in certain circumstances where a defendant is convicted of a charge alleging a conspiracy to distribute one drug or another he must be sentenced as if the conviction were only for a conspiracy involving the drug that triggers the lowest statutory sentencing range 3: holding that simple possession of cocaine is not lesser included offense of conspiracy to possess cocaine with intent to distribute 4: holding that evidence of specific uncharged drug trafficking offenses were not extrinsic to prosecution for conspiracy to possess and distribute cocaine where the events occurred within the time period of the alleged conspiracy and were demonstrative of the conspirators conduct | [
"0",
"3",
"2",
"1",
"4"
] | [
"4"
] |
Pursuant to section 7(a)(2) of the VCAA, that amendment to section 5107(a) is applicable to “any claim ... filed before the date of the enactment of [the VCAA] and not final as of that date.” VCAA § 7(a). The VCAA also amended 38 U.S.C. § 5103 (“Notice to claimants of required information and evidence”) and added 38 U.S.C. § 5103A (“Duty to assist claimants”). VCAA § 3(a). The appellant argues that the September 2000 BVA decision should be vacated and the matter remanded for readjudication in light of the enactment of the VCAA. Appellant’s Brief (Br.) at 3-4. Specifically, he argues that the VCAA “significantly modified] the provisions of chapter 51 of [title 38 of the United States Code], which addresses ‘claims, effective dates, and payments’ ” and that, because the 001) (en banc) (<HOLDING>). Accordingly, because the appellant’s VCAA Holdings: 0: holding vcaa inapplicable to claim that ro decision contained cue 1: holding that cue existed in ro decision that had reduced veterans benefits where court found that it is evident that cue existed therein 2: holding that prior ro decision that had not become final was not subject to cue collateral attack 3: holding that cue motion is not claim for benefits and that vcaa definition of claimant cannot encompass person seeking revision of final decision based on cue 4: holding that once a regional office decision is final a claimant may only attempt to overcome the finality of that decision in one of two ways a request for revision of the decision based on clear and unmistakable error or a claim to reopen based upon new and material evidence | [
"2",
"0",
"4",
"1",
"3"
] | [
"3"
] |
not constitute ineffective assistance of counsel.”). This conclusion is all the more appropriate given the relative strength of the issues that Baker’s counsel did raise on appeal. See Thompson, 598 F.3d at 285 (stating that appellate counsel is ineffective only if a Blakely claim would have been “clearly stronger than [the] issues that counsel did present”). Although Baker’s conviction and sentence were affirmed on appeal, the Second District found at least some merit in Baker’s ineffective-assistance-of-trial-counsel claims, noting that “evidence presented at trial could have supported an instruction for [the lesser included offense of] aggravated assault” had counsel requested one, and that counsel had called a witness whose testimony “was not helpful to the defense.” Cf. id. at 287 (<HOLDING>). 2. Prejudice Even if Baker could show that Holdings: 0: holding that the failure to raise a futile issue does not constitute ineffective assistance of counsel 1: holding failure to raise blakely claim was not ineffective performance where appellate counsel raised several plausible arguments and did not merely assert a perennial loser such as a sufficiencyoftheevidence claim quoting benning 345 fedappx at 158 2: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel 3: holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate 4: holding defendant did not show prejudice to support ineffective assistance of appellate counsel claim because any evidentiary error was harmless | [
"3",
"4",
"2",
"0",
"1"
] | [
"1"
] |
“tend to exchange prudent caution for timidity,” thereby hindering the performance of an already difficult job. Kari, 582 N.W.2d at 924 (quoting Pletan, 494 N.W.2d at 41). The same reasoning applies to government-employed ambulance crews providing emergency medical care. Fear of potential civil liability arising from their actions in an emergency situation could cause crew members to hesitate in providing treatment, thereby increasing the risk to patients. Finally, we note that the fact that a written protocol exists does not transform an otherwise discretionary act into a ministerial one. Field-level actions taken by public officials may be discretionary even when there are extensive regulations that dictate procedure. See Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 (Minn.1999) (<HOLDING>). In treating the unconscious Virginia Bailey, Holdings: 0: holding that despite the fact that police conduct is governed by extensive regulations statutes and caselaw officers responding to dispatch or making an arrest are engaging in discretionary conduct because they are required to make splitsecond decisions based on incomplete information 1: holding that attorneys engaging in conduct involving dishonesty amounts to conduct that adversely reflects on his fitness to practice law 2: holding that mandatory military procedures and regulations cannot be ignored by the agencies themselves even where discretionary decisions are involved 3: holding intent as an element for disciplining an attorney for engaging in conduct involving dishonesty fraud deceit or misrepresentation is proven by establishing that the conduct was deliberate or knowing 4: holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined | [
"4",
"2",
"1",
"3",
"0"
] | [
"0"
] |
shall be admitted to these programs.” KRS 533.262(2). 11 . KRS 533.262(1). This Court is unaware of any drug court diversion program, which operates separately from a pretrial diversion program authorized by KRS 533.250 — .260, that has been approved by both this Court and the Department of Corrections. 12 . Kenton Circuit Court Pretrial Diversion Program § III (emphasis in original). The rales contain a notation that "Comments appearing in bold type are not intended to be part of the rales but may provide guidance in applying the rules." Id. 13 . Id. at § IV(A). 14 . Id. at § IV(B) & (C). 15 . Id. at § V(A). 16 . Id. at § V(B). 17 . Id. at § VI. 18 . Kentucky Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 251 (2001). 19 . See Holbrooks v. Commonwealth, Ky., 85 S.W.3d 563, 566-7 (2002) (<HOLDING>); Ignatow v. Ryan, Ky., 40 S.W.3d 861 (2001) Holdings: 0: holding that direct appeal from subsequent conviction is the proper context in which to seek review of trial courts ruling declaring mistrial over defendants objection at previous trial 1: holding that a claimed violation of the right to a public trial must be preserved for review by a timely objection at trial 2: holding that where defense counsel made a timely objection and it was overruled by the trial court a further request for a mistrial was unnecessary and futile since the reasons for the objection were apparent and the trial courts denial of the objection indicated its belief the jury could properly hear the matter which was the subject of the objection 3: holding that the defendants motion in limine which sought to exclude the evidence to which the defendant later made a general objection at trial adequately provided the context for determining the specific ground of objection 4: holding that a trial courts evidentiary ruling on a pretrial motion is not sufficient to preserve the issue for appeal unless a defendant renews the objection during trial | [
"1",
"4",
"3",
"2",
"0"
] | [
"0"
] |
we conclude that even if it was made pre-Miranda, it was properly admitted. The Florida Supreme Court and the District Courts of Appeal in this state have routinely held that Miranda does not apply to questions designed to obtain basic booking information. In Holland v. State, 773 So.2d 1065, 1073-74 (Fla.2000), the Florida Supreme Court found that the trial court did not abuse its discretion in denying Holland’s motion to suppress his statements to the police. The facts are as follows. After Holland was arrested, the police obta with Holland was to ascertain his real name, not to speak with him about the case, the trial court did not err in denying Holland’s motion to suppress his statements. See also Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (<HOLDING>); Allred v. State, 622 So.2d 984, 987 Holdings: 0: holding that routine booking questions do not violate the constitutional protection against self incrimination as they do not constitute interrogation 1: holding that questions regarding a defendants name address height weight eye color birth date and current age constituted custodial interrogation but fell within the routine booking question exception which exempts from mirandas coverage questions to secure the biographical data necessary to complete booking or pretrial services but observing that that the exception would not apply to questions posed during the booking process that are designed to elicit incriminatory admissions citations and internal quotation signals omitted 2: holding that questions as to whether defendant was in the country legally were not routine booking questions but rather constituted interrogation requiring miranda warnings where defendant faced the charge of being an unlawful alien in possession of a firearm 3: recognizing routine booking question exception observing that the underlying rationale for the exception is that routine booking questions do not constitute interrogation because they do not normally elicit incriminating responses and holding that where questions regarding normally routine biographical information are designed to elicit incriminating information the questioning constitutes interrogation subject to the strictures of miranda citations omitted 4: holding that questions concerning the place and date of birth fall within the routine booking question exception to miranda | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
merely because it leads to a result that seems contrary to the court’s expectations.” Id. at 427. Similarly, it may be counterintuitive to allow credit against prison time for the period Anderson spent living at home wearing an electronic ankle bracelet, but this result is not so absurd as to permit us to disregard the plain language of the statute requiring that credit. See Holland, 253 Iowa at 1011, 115 N.W.2d at 164; Iowa R.App. P. 6.904(3)(to ). State courts in construing their respective state statutes have reached different conclusions as to whether sentencing credit is awarded for electronic monitoring and home supervision. Several states allow sentencing credit for electronic monitoring at home. See, e.g., State v. Guillen, 130 N.M. 803, 32 P.3d 812, 813 (N.M.Ct.App.2001) (<HOLDING>); Harris v. Charles, 171 Wash.2d 455, 256 P.3d Holdings: 0: holding the legislatures approval of granting a defendant credit against his sentence in a statute governing postsentence 17electronic monitoring by the department of correction but omission of that approval in a separate statute relating to pretrial electronic monitoring is evidence that the legislature did not intend for credit to be given for electronic monitoring while a defendant is awaiting trial 1: holding as a matter of law pretrial electronic monitoring and home confinement merits sentencing credit under its statute 2: holding electronic home monitoring is not time spent in custody because there is a difference in restrictions between electronic home monitoring and jail 3: holding that electronic home monitoring constitutes confinement under the sra 4: holding time spent on electronic monitoring while on bail release does not constitute custody within meaning of sentencing credit statute | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
.4 (providing for fines and imprisonment for acting as an attorney without authority). The fourth and final factor concerns the nexus between the lack of license and the contract at issue. In the present case, there is an undeniably direct connection. The performance for which Bergantzel seeks compensation is the unauthorized practice of law, conduct that she was prohibited by law from performing. In other words, the unlicensed conduct is not a collateral matter. Weighing all the factors, we conclude that the interest in refusing to enforce the contract must prevail. The fact that Ber-gantzel has already performed and, in that sense, Mlynarik will receive a windfall, simply does not outweigh the strong public policy against the unauthorized practice of law. See Meunier, 170 So. at 578 (<HOLDING>). Accordingly, we conclude that the contract is Holdings: 0: holding that under the supremacy clause a state court could not enforce a prohibition on the unauthorized practice of law against an individual who was permitted to practice law under the rules of a federal court located in the states jurisdiction 1: holding that adjuster who had fully performed could not recover his contractual contingent fee due to the strong public policy against the practice of law by laypersons 2: holding that public policy considerations require that the burden be placed on the attorney to provide for allocation of courtawarded attorneys fees in the contingent fee agreement 3: holding out admission to practice law when not admitted to practice 4: holding that aln attorney who is employed under a contingent fee contract and discharged pri or to the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of the services rendered to the client and may not recover the full amount of the agreed contingent fee | [
"0",
"4",
"3",
"2",
"1"
] | [
"1"
] |
been isolated for over five years, with only a few months of relief in the interim. # * * The duration of Bailey’s confinement is a necessary component in the Sandin analysis. We therefore vacate the JUDGMENT dismissing Bailey’s complaint and REMAND the case where it can be determined whether Bailey is still subject to the conditions he challenges. The court can then assess whether, in light of conditions and duration of the segregated confinement, Bailey has sufficiently alleged a state-created liberty interest in his custodial classification. * Pursuant to 5th Cir. R. 47,5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 . Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) (<HOLDING>), overruled on other grounds by Neitzke v. Holdings: 0: holding that an evidentiary hearing can be used in pro se cases in place of a typical requirement for a more definite statement 1: holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond 2: holding that an evidentiary hearing may be used to develop the factual basis of a prisoner complaint 3: holding that upon a demon stration of abuse a court can restrict future pro se pleadings if it first provides a pro se litigant reasonable notice and an opportunity to respond 4: holding that although pro se briefs are liberally construed even pro se litigants must brief arguments in order to preserve them | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
execution.” Boyd, 717 So.2d at 524 (emphasis added). Therefore, even though the Affidavits of Violation of Probation were filed within the probationary period, the “probation revocation process” as defined in Boyd was not set in motion within that period, and the county court did not have jurisdiction over these revocation proceedings. See Francois v. State, 695 So.2d 695, 697 (Fla.1997) (“[W]hen a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation.”). Furthermore, the mandate of Boyd and Francois cannot be avoided by construing the defendants’ violations of probation as “absconding” that would toll the probationary period. See Francois, 695 So.2d at 697 (<HOLDING>). Reversed and remanded for further consistent Holdings: 0: holding that under the law of the district of columbia the filing of a complaint does not toll the statute of limitations on a counterclaim 1: holding that the failure to satisfactorily meet the conditions of probation is not the legal equivalent of absconding and does not toll the probationary period 2: holding that probation is not a sentence 3: holding that a notation in the probation officers file that watkins was delinquent was not sufficient to initiate revocation proceedings and to toll the running of watkins probationary period 4: holding that the filing of a motion for reconsideration does not toll the period for seeking judicial review of the underlying order | [
"0",
"3",
"4",
"2",
"1"
] | [
"1"
] |
OPINION HUVELLE, District Judge. Before the Court is plaintiffs motion for entry of default judgment. Plaintiff, International Road Federation, and defendant, the Embassy of the Democratic Republic of the Congo, entered into a Sublease Agreement (“sublease”) whereby plaintiff sublet office space at 2600 Virginia Avenue, N.W., Washington D.C. to defendant. Plaintiff brings this action for damages for breach of contract alleging that defendant failed to take possession of the premises and failed to make payments required under the sublease. Defendant is a foreign state. Underwood v. United Republic of Tanzania, 1995 WL 46383 (D.D.C. Jan.27, 1995) (<HOLDING>); Gray v. Permanent Mission of People’s Holdings: 0: recognizing the structure of our nation as a union of states each possessing equal sovereign powers 1: holding that by the introduction and admission of the delawares as part of the cherokee nation they became a part of the people of such nation and bound in common with the cherokees by the political power of the nation 2: holding that while state shared federal goal of sanctioning foreign nation state remedies disrupted presidents flexibility in foreign affairs for conflict is imminent when two separate remedies are brought to bear on the same activity 3: holding that as a matter of law the embassy of a sovereign nation is a foreign state 4: holding that the united states has not recognized the sovereignty of the moorish nation thus precluding sovereign immunity claims | [
"1",
"0",
"4",
"2",
"3"
] | [
"3"
] |
inference that appellee’s delay in compliance -with that order was not a coincidence; it was a calculation designed to delay appellant until the use became prohibited. The County’s need to delay appellant was necessitated by the inherent length of time required to process the (SMA) for the larger geographical area. It would appear that only through the comprehensive rezoning process could the County accomplish a downzoning without the property owner’s consent. We hold, therefore, that especially egregious actions of public officials in stalling the issuance of permits in order to eliminate development by downzoning may create a zoning estoppel as to particular properties. In the case at bar, the allegations as to appellee’s actions in t 2-73, 100 S.Ct. 383, 389, 62 L.Ed.2d 332 (1979) (<HOLDING>); Armstrong v. United States, 364 U.S. 40, 48, Holdings: 0: holding that landowner was entitled to compensation because the condemnation destroyed all reasonable access to remainder property 1: holding that where by virtue of state action access is limited but remains reasonable there is no such denial of access as entitles the landowner to compensation 2: holding that the land under navigable waters was not granted by the constitution to the united states but was reserved to the states respectively and that new states have the same rights jurisdiction and sovereignty over the soil under navigable water as the original states 3: holding that the government could not require a landowner who improved his marina so that it fell within the definition of a navigable water to grant the public access without compensation 4: holding that congress had the authority under the commerce clause to require private riparian land owners to obtain a license prior to construction of dams even where the river in question was not navigable but could potentially have been made navigable | [
"1",
"2",
"0",
"4",
"3"
] | [
"3"
] |
The plaintiffs assert that the minor damage to then-home prior to the policy period is in no way related to or evidence of hidden decay. The plaintiffs contend that the decay of the interior portion of the rear wall remained hidden until the wall collapsed in October, 1996. By its terms, the Hartford homeowners policy “applies only to loss in Section 1 ... which occurs during the policy period.” Defendants’ Exhibit B, Sections I and II- — Conditions, ¶ 1 at 17 of 18. For insurance purposes, damages “occur” when they “first manifest themselves in a way that could be ascertained by reasonable diligence.” Keystone Automated Equipment v. Reliance Insurance Company, 369 Pa.Super. 472, 535 A.2d 648, 651 (1988); D’Auria v. Zurich Insurance Company, 352 Pa.Super. 231, 507 A.2d 857, 862 (1986)(<HOLDING>). This would apply even if the damage Holdings: 0: holding that excess coverage in four policies was not triggered until primary insurer satisfied the requirements necessary to trigger the excess insurers coverage and paid the full amount of its limits 1: holding the plain terms of the mortgage did not demonstrate any contractual duty on the mortgagee to procure coverage on plaintiffs property or to notify plaintiff of lapse in coverage 2: holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed 3: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 4: holding that none of the physicians insurers had a duty to provide coverage since the effects of the negligence first manifested themselves prior to the coverage periods of any of the three policies | [
"2",
"0",
"3",
"1",
"4"
] | [
"4"
] |
L.Ed.2d 398 (2009) (per curiam) (finding ineffective assistance of counsel at the penalty phase where the lawyer had never represented a defendant in a penalty-phase proceeding before). Here, by contrast, at the time of Petitioner’s trial, defense counsel had served as a public defender for more than ten years, had tried a capital case in the past, and had earned a Level IV ranking in the public defender’s office, meaning that defense counsel was the top trial lawyer in that office. Moreover, the main defense lawyer brought in an assistant to help in both the guilt and penalty phases of the trial. • There, the defense “investigation consisted of at most five interviews,” which took place shortly before jury selection began. Hamilton, 583 F.3d at 1114; see also Porter, 130 S.Ct. at 453 (<HOLDING>). Here, by contrast, counsel began the Holdings: 0: holding that hiring of only two mental health experts was not deficient 1: recognizing a constitutional right of privacy in mental health records 2: holding that counsel was deficient for failing to obtain any school medical or military records to interview any family members or otherwise to investigate the defendants mental health and background 3: holding that trial counsel did not act unreasonably in failing to raise the issue of the defendants mental health at trial 4: holding that counsels performance was deficient for failing to investigate readily available evidence of mental impairment | [
"3",
"0",
"1",
"4",
"2"
] | [
"2"
] |
Jenney has waived the privilege as to these matters. Neither party is entirely correct. As an initial matter, a petition for certiorari is the proper vehicle by which to review this type of discovery order. See Robichaud v. Kennedy, 711 So.2d 186, 187 (Fla. 2d DCA 1998) (“Certiorari is the appropriate avenue to challenge a trial court order directing the disclosure of communications presumptively covered by the attorney client privilege.”). The standard of review is whether the trial court departed from the essential requirements of the law in ordering disclosure, thereby causing irreparable harm to the petitioner. Nat’l Union Fire Ins. Co. v. Fla. Constr., Commerce & Indus. Self Insurers Fund, 720 So.2d 535, 535-36 (Fla. 2d DCA 1998). Turning to the substance of the . 2d DCA 1980) (<HOLDING>). Here, the employment agreement was not Holdings: 0: holding that a document which is given to an attorney in the course of seeking legal advice is privileged in the hands of the attorney only if it was privileged in the hands of the client 1: holding that retention of an attorney to investigate an insurance claim and make a coverage determination under a policy is a classic example of a client seeking legal advice from an attorney 2: holding that if documents are privileged in the hands of the client they retain that privilege when given to an attorney for the purpose of seeking legal advice 3: holding that discussions between management personnel concerning legal advice given by attorney is privileged even when attorney is not physically present 4: holding that a judgment debtors trust fund records are not protected by the attorneyclient privilege because djocuments which are not privileged in the hands of the client cannot be shielded by transferring them to the attorney | [
"1",
"3",
"4",
"0",
"2"
] | [
"2"
] |
the Court of Claims.”); Donovan v. Dillingham, 668 F.2d 1196, 1199 (11th Cir.1982) (finding the position of the United States to have been substantially justified because, both at the time it initially brought suit and at the time it appealed the adverse ruling by the district court, the governing law (for different reasons) was unsettled), rev’d on other grounds, 688 F.2d 1367 (11th Cir.1982) (en banc); Underwood v. Pierce, 547 F.Supp. 256, 261-62 (C.D.Cal.1982) (finding the position of HUD not to have been substantially justified, largely on the ground that at the time the position was taken, nine courts had rejected the argument, although the Supreme Court had granted certiorari in two related cases). But cf. Wyandotte Sav. Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982) (per curiam) (<HOLDING>). 75 . There is clear support in the Holdings: 0: recognizing limitations existence in other circuits 1: holding that the same conclusion is compelled by this circuits reasoning in an analogous case 2: holding that the nlrb was substantially justified in seeking the overruling of a controlling tenyearold sixth circuit precedent which had been rejected by two other circuits reasoning that the position taken by the board was a reasonable attempt to reopen a closed question 3: holding that for the administrative position of the government to be substantially justified it must have a reasonable basis both in law and fact 4: holding that congress did not want the substantially justified standard to be read to raise a presumption that the government position was not substantially justified simply because it lost the case citations omitted | [
"3",
"1",
"4",
"0",
"2"
] | [
"2"
] |
messages for over two years on a cell phone for which she discontinued service. Similarly, bad faith cannot be inferred because the text messages were not printed out when there is no indication that such a printout was even possible. Indeed, courts agree that HRE Rule 1004(1) is “particularly suited” to electronic evidence “[gjiven the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software (such as the automatic deletion of e-mail after a set time period) or otherwise unavailable....” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 580 (D.Md.2007). See also King v. Kirkland’s Stores, Inc., No. 2:04-cv-1055-MEF, 2006 WL 2239203, at *5 (D.Ala. Aug. 4, 2006) (unpublished decision) (<HOLDING>); Bidbay.com, Inc. v. Spry, No. B160126, 2003 Holdings: 0: holding that under former rcw 6933430 1959 although preferable if defendant is served personally with a copy of the search warrant it was not reversible error when defendant received the warrant the next day 1: holding that officers possession of affidavit at searched premises without leaving a copy with the occupant was insufficient to allow for consideration of the affidavit in evaluating the constitutionality of the warrant 2: holding that plaintiffs testimony regarding the content of an email from defendant was admissible although plaintiff argued only that a copy of the email as opposed to the original or sole copy was in the possession of the defendant 3: holding that failure to deliver a copy of search warrant and itemized copy of the warrant return to defendant in absence of showing of injury reveals no error 4: holding the excluded testimony was relevant to whether a signature was that of a deceased party and since a statement regarding the issue was the only testimony that could be given by the witness no offer to prove was necessary because the substance of the evidence was apparent from the context of the question asked | [
"3",
"4",
"0",
"1",
"2"
] | [
"2"
] |
including an error in converting sales in Euros in a way that undervalued the United States sales. See Memo in Support (Anson) at 14. We conclude that these miscalculations would in the ordinary case go to weight and not admissibility. But we note that the traditional means of addressing such errors, i.e., cross-examining the expert at trial, would not work in this case because, for reasons stated above, Louis Vuitton has produced the wrong expert to testify on the regression analysis. Indeed, this is another reason why Torres and not Anson should have been produced — otherwise errors in computation that traditionally go to weight should probably be treated as going to admissibility. Given the many other reasons for excluding Anson's testimony as to the regression analysis Cir.1999) (<HOLDING>); Hollander v. American Cyanamid Co., 172 F.3d Holdings: 0: holding that adverse inference alone insufficient to support a motion for summary judgment 1: holding that if there is any issue of fact which remains upon a motion for summary judgment the motion must be denied 2: holding that when plaintiffs allege classwide racially discriminatory treatment in violation of title vii proof of discriminatory motive is essential although the burden may be met in some situations by presentation of statistical evidence that permits an inference of racial discrimination 3: holding that statistical evidence that was too broad to support a prima facie case of systemic disparate treatment was nevertheless admissible in plaintiffs individual disparate treatment case but noting that a valid statistical analysis must encompass the rel evant labor market 4: holding that plaintiffs statistical analysis failed oh its own to support an inference of discriminatory treatment sufficient to withstand a summary judgment motion because the analysis did not account for any other causes for the fact that older workers were more likely to be terminated | [
"2",
"0",
"3",
"1",
"4"
] | [
"4"
] |
acres of residential property contained “in a sea of hundreds and hundreds of acres of industrially zoned land” had no viable value because a single family home had already been constructed, the fifteen acres were abutted on at least two sides by residentially-zoned property, and three units per acre could be developed under its present classification); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 724, 376 A.2d 483 (1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 769 (1978) (“[Ojnly that permissible densities ... have been significantly decreased; that showing is ... insufficient to demonstrate a confiscatory exercise____”); Governor of Maryland v. Exxon Corp., 279 Md. 410, 437, 370 A.2d 1102 (1977), aff'd, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) (<HOLDING>); Stratakis v. Beauchamp, 268 Md. 643, 654, 304 Holdings: 0: holding that a statute that prohibited producers and refiners from directly operating retail service stations did not constitute a taking because they were not deprived of all beneficial uses of their property 1: holding that airport noise regulations and county zoning ordinances which restricted certain development and adversely affected the value of property did not constitute a taking because the owner was not deprived of all beneficial use of the property considering the fact that there were a number of permitted uses consistent with the noise zone regulations and county zoning ordinances 2: holding that a statute requiring a natural gas producer to make gas available to pump water for agriculture irrigation at a price fixed by the corporation commission is not a regulation under the police power but a taking of the producers property without due process of law and an appropriation of the producers property without just compensation 3: holding that a zoning regulation which deprives property of all economically beneficial or productive use is a categorical regulatory taking 4: holding that plaintiffs had standing because they were directly affected by the laws and practices against which their complaints were directed | [
"3",
"2",
"4",
"1",
"0"
] | [
"0"
] |
could arise if the public construction project was “unreasonably prolonged.” Truck Terminal, 486 Pa. at 23 n. 8, 403 A.2d at 989 n. 8. In the temporary-obstruction scenario, therefore, the essential difficulty lies in ascertaining when the infringement upon reasonable access becomes unduly prolonged, or is otherwise accomplished in an arbitrary and unreasonable manner. Clearly, if the governmental entity arbitrarily obstructs access to the subject property in the sense that the interference is unnecessary and the project could have been completed just as conveniently without substantial harm to any property owner, the situation would come within the exception to the Truck Terminal rule for arbitrary deprivations. Cf. L-M-S Inc. v. Blackwell, 149 Tex. 348, 233 S.W.2d 286, 289-90 (1950) (<HOLDING>). Presently, however, although Ap- pellees Holdings: 0: holding that the plaintiffs attempted to recover lost profits which under the facts of the case were consequential damages 1: holding that lost profits were covered where the insureds product a motor used in a treadmill was defective and caused lost profits on the sale of the treadmills 2: holding that an unestablished business may recover lost prospective profits 3: holding that a restaurant owner could only recover lost profits resulting from temporary street obstructions upon showing that placement of the obstructions was unreasonable or unnecessary 4: holding past profits coupled with other facts and circumstances may establish lost profits | [
"0",
"4",
"1",
"2",
"3"
] | [
"3"
] |
asserted against the state defendants, explaining why none was legally viable. Count I against Officer Sanchez for negligently classifying Mr. Lymon for kitchen work, and Count II against Cap-' tain Hernandez for negligently denying access to the formal grievance process and thereby insulating Sanchez and Aramark from legal, accountability, failed because the New Mexico Tort Claims Act (NMTCA) did not waive governmental immunity for the alleged conduct. Specifically, N.M. Stat. § 41-4-6, which waives immunity for “operation or maintenance of any building,” concerns unsafe conditions on government property and does not apply to the administrative functions involved here. Lymon, 728 F.Supp.2d at 1266-68 (relying primarily on Archibeque v. Moya, 116 N.M. 616, 866 P.2d 344, 347 (1993) (<HOLDING>)). And N.M. Stat. § 41-4-12, which waives Holdings: 0: holding that the alien tort statute itself is not a waiver of sovereign immunity 1: holding prisons negligent classification of prisoner fell outside waiver of immunity 2: holding that the waiver of sovereign immunity must be clear and unequivocal 3: holding that claims not pursued within two years of their accrual fall outside of the federal tort claims acts limited waiver of sovereign immunity 4: holding remedy not available to prisoner where officials purportedly prevented plaintiff from employing the prisons administrative remedies | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
the signatures of Gary and Dale Kahl. 3 Because of this ruling, no determination was made as to when the partnership was formed and which assets were acquired after that date. 4 Gary and Dale Kahl d/b/a Kahl Farms, and Receiver Justice Burgweger are the named respondents. The partnership's other creditors, Bank of New Glarus, Badgerland Harvestore Systems, Inc., John Deere Company, United Bank in Sun Prairie, Mt. Horeb Farmers Co-op, Production Credit Association, and Susan Kahl, were joined as intervenor-respondents. 5 The parties cite two cases from other jurisdictions which are factually very similar to the case at hand: In Re Taylorville Eisner Agency, Inc., 445 F.Supp. 665 (S.D. Ill 1977), and Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20 (Iow F.2d 786 (7th Cir. 1981) (<HOLDING>). (Several of these cases predate the 1972 Holdings: 0: holding a filing under wishart equipment co insufficient to identify the debtor horace wishart 1: holding a filing under mccauleys reprographics and mapping insufficient to perfect a security interest in the assets of the debtor corporation 2: holding that claims of corporation vest in corporation 3: holding a filing under john and mayella lintz insufficient to identify the debtor corporation 4: holding that the filing of notice without motion is insufficient | [
"2",
"0",
"4",
"1",
"3"
] | [
"3"
] |
thus the claims against them were properly dismissed. V. Dismissal of the Malicious Prosecution Claim The District Court dismissed the malicious prosecution claim because the allegedly malicious prosecution had not terminated in McGee’s favor, as required by New York law. We agree. The prosecution against McGee terminated when, pursuant to N.Y. CPL § 170.30(l)(a), the accusatory instrument was dismissed as facially insufficient to state a claim for witness tampering. A55-56. We have held that a dismissal under CPL § 170.30 for facial insufficiency is “not a decision on the merits, an essential element of a cause of action for malicious prosecution.” Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999); see also MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996) (<HOLDING>). McGee relies upon Smithy-Hunter v. Harvey in Holdings: 0: holding that action could not form the basis of a malicious prosecution claim where criminal information was dismissed as insufficient to support the charges without prejudice and the prosecutors did not amend or refile 1: holding that a claim dismissed as malicious under the ifp statute should be with prejudice 2: 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 3: holding that a claim for malicious prosecution is not available when a prosecutor makes an independent determination of whether to pursue criminal charges 4: holding the same for malicious prosecution | [
"1",
"3",
"4",
"2",
"0"
] | [
"0"
] |
of the complaint. The complaint references an AOS employee requesting a LoadTec motor from FS, but the complaint does not state whether FS ever provided such a motor. (Compl. ¶ 19). 6 . The court notes that both parties are unclear as to how the court’s findings on summary judgment relate to a judgment on the pleadings. To the extent the evidentiary issues resolved by the court on summary judgment influence this court’s order, the defendant's motion will be treated as a request for summary judgment on the unjust enrichment claim, as both parties have had a reasonable opportunity to present all material relevant to summary judgment and the motion itself clearly anticipates a summary judgment ruling. See Fed.R.Civ.P. 56(f); cf. In re G. & A. Books, Inc., 770 F.2d 288, 295 (2nd Cir.1985) (<HOLDING>) The court finds this perfectly acceptable, Holdings: 0: holding that district courts consideration of matters outside the pleadings converted the defendants rule 12 motion into one for summary judgment 1: holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings 2: holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion 3: holding that the essential inquiry in conversion of a rule 12b6 motion to a rule 56 motion is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings 4: holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment | [
"2",
"4",
"0",
"1",
"3"
] | [
"3"
] |
decision does not specifically require a defendant to file verified affidavits or sworn testimony to satisfy Ms burden of makmg a preliminary substantial showing that the affiant recklessly or mtentionally made false statements in the warrant affidavit. The UMted States Court of Appeals for the Seventh Cirernt has not specifically addressed the issue of whether the defendant must file verified support for Ms allegations of falsity to mandate an evidentiary hearing under Franks. However, several other eir-cMts of the UMted States Court of Appeals have held that the defendant’s motion and allegations must be supported with affidavits or other sworn testimony in order to meet the “offer of proof’ requirement of Franks. The First CircMt has held that it is not error for a di (7th Cir.1983) (<HOLDING>). In regard to the sufficiency of the Holdings: 0: holding evidence insufficient to overcome presumption of correctness 1: recognizing presumption and finding that it was overcome 2: holding that a party seeking to establish particular claims as invalid must overcome the presumption of validity in 35 usc 282 by clear and convincing evidence 3: holding that the burden is on the defendant when the validity of the warrant is challenged 4: holding that the defendant must do more than produce a selfserving statement which refutes the warrant affidavit to overcome the warrants presumption of validity | [
"3",
"0",
"1",
"2",
"4"
] | [
"4"
] |
362, 389 (Del.2011) (citing Manley v. State, 709 A.2d, 643, 655 (Del.1998)). 75 . App. to Opening Br. A-1549-50, A-1552. 76 . Id. at A-1557-58 (first omission in original). 77 . Ploof III, 2012 WL 1413483, at *11 (Del.Super. Jan. 30, 2012). 78 . Ploof also stated that Trial Counsel was ineffective for failing to object to the striking of prospective juror Susan Smith for cause, however, the record reflects that the State immediately used a peremptory challenge on Smith after the trial judge denied the challenge for cause. App. to Opening Br. A-1593-94. Accordingly, Ploof's claim regarding Smith fails on prejudice grounds, because the trial judge denied the challenge for cause. 79 . Id. at A-1545. 80 . Id. at A-1566-67. 81 . See Keith v. Mitchell, 455 F.3d 662, 677-78 (6th Cir.2006) (<HOLDING>); Williams v. Collins, 16 F.3d 626, 633 (5th Holdings: 0: holding that a defendant could not establish stricklands prejudice prong because any erroneous exclusion of an impartial juror was harmless because we have every reason to believe the replacement was also an impartial juror the defendant does not dispute that he was convicted and sentenced by an impartial jury and he presents no reason to think that a jury composed of a slightly different set of impartial jurors would have reached a different verdict 1: holding that the defendants right to an impartial jury was not impaired when there was no common thread or similarity among the group of excluded jurors 2: holding that a defendants claim that a jury was not impartial must focus on the jurors who ultimately sat 3: holding that we could not review an aliens colorable due process claim that an ij was not impartial because the alien raised the claim for the first time on appeal 4: holding that a criminal defendants right to an impartial jury is guaranteed by article 1 section 9 of the pennsylvania constitution | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
discrimination can be proved from the face of the tax statute); cf. Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (quoting Oregon Waste Systems, Inc. v. Dep’t of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)) (“State laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ”); Trinova Corp. v. Michigan Dep’t of Treasury, 498 U.S. 358, 374, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L.Rev. 239, 242 (1960)) (a tax imposed “on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes”); PPG Industries, Inc. v. Commonwealth, Bd. of Finance & Revenue, 567 Pa. 580, 790 A.2d 261, 264 (2001) (<HOLDING>). In reaching its conclusion here, the majority Holdings: 0: holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce 1: holding that ordinance requiring all municipal solid waste generated within county to be delivered to a particular facility discriminated against interstate commerce 2: holding that stock exchanges asserting their rights to engage in interstate commerce free of discriminatory taxes are within the zone of interests protected by the commerce clause 3: holding that three municipal flow control ordinances similar to the one here at issue discriminated against interstate commerce 4: holding manufacturing exception to pennsylvanias capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce | [
"2",
"0",
"3",
"1",
"4"
] | [
"4"
] |
matter, then, the Appellate Division’s decision rests on an interpretation of the Federal Rules, which requires us to conduct plenary review. See L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27-28 (2d Cir. 2010) (plenary standard of review applies to “a district court’s interpretation of the Federal Rules of Appellate Procedure”); In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir. 2000) (same, regarding the Federal Rules of Civil Procedure); Miller, 624 F.2d at 1200-02 (exercising plenary review over a district court’s interpretation of one of its local rules insofar as the rule simply incorporated state law, interpretations of which are subject to plenary review); cf. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 568, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977) (<HOLDING>). IV. Discussion The Appellate Division Holdings: 0: holding that when presented with petitioners claim based upon state and federal law and the state court confined its analysis to state law aedpa deference does not apply 1: holding that a federal court in absence of a state supreme court pronouncement on a subject of state substantive law must determine as best it can what the highest court of the state would decide 2: holding that the supreme court may review statecourt judgments that rest on state law when the state court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did 3: holding that failure to cite federal law does not mean that state court decision was contrary to established federal law state court need not even be aware of supreme court precedents so long as neither the reasoning nor the result of the statecourt decision contradicts them 4: holding that supreme court possesses jurisdiction to review statecourt determinations that rest upon federal law | [
"1",
"0",
"4",
"3",
"2"
] | [
"2"
] |
- C - Police interrogated defendant three different times on October 28 before he confessed to the West Windsor crimes. When the police brought defendant to the station at 8:30 a.m., they informed him of his Miranda rights, and he signed a waiver. Defendant ate lunch at around 3:00 p.m. The first interrogation began at 3:37 p.m. At this first interrogation session, the police again read defendant his rights, and he signed another rights form. The interrogation lasted a little over an hour, at which point defendant started to cry and asked for a half-hour “to think.” The interrogation ceased, and the police returned defendant to his cell. By requesting “time to think,” defendant was not invoking his right to silence. See State v. Bey, 112 N.J. 123, 138-40, 548 A.2d 887 (1988) (Bey II) (<HOLDING>). Although the police granted defendant the Holdings: 0: holding a suspects request for some time to think alone was not an invocation of the right to silence 1: holding request to lie down and think about what happened not a clear invocation of the right to silence 2: holding defendants request to lay down and think about what happened did not constitute invocation of right to silence as not every break in questioning compels renewed administration of the miranda warnings 3: holding that fresh miranda warnings are necessary after right to silence has been invoked 4: holding that defendants request to call his mother to get an attorney was an invocation of miranda rights requiring that further questioning must end | [
"1",
"3",
"0",
"4",
"2"
] | [
"2"
] |
quotation marks omitted). IV. Conclusion For the reasons discussed herein, the district court’s denial of summary judgment on the basis of qualified immunity is AFFIRMED. 1 . The other defendants named in Karl’s complaint have either been dismissed from the case or have not appealed. Likewise, no other claims alleged in Karl’s complaint are before the court. 2 . We have previously declined to decide whether a public employee’s testimony is per se a matter of public concern regardless of its content or the type of proceeding in which it is offered. See Clairmont, 632 F.3d at 1103; Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 926 n. 6 (9th Cir.2004). We again decline to decide this question because in this case, as in our previous ones, the content th Cir.1998) (per curiam) (<HOLDING>). Far from creating a circuit split regarding Holdings: 0: holding that an insureds personal belief that he was not liable for an accident provided no basis for submitting the question of the reasonableness of his delay in notification to a jury when the insured knew the day after the accident that it had been claimed that the cable he had installed had caused the accident 1: holding that accident report was necessary to presentation of case and exclusion was in error 2: holding that a police officers deposition testimony in another individuals wrongful death suit was not protected speech where the testimony merely parroted the contents of an accident report generated in the normal course of his duties as an accident investigator 3: holding that a wrongful death claim related back to a personal injury claim in an automobile accident case where the wrongful death claim arose from the same transaction or occurrence as the original complaint and the defendant was advised of the essential facts necessary to prepare his defense even with the added claim 4: holding that a police officers deposition in a fellow officers 1983 action alleging unlawful retaliation was protected speech | [
"1",
"0",
"4",
"3",
"2"
] | [
"2"
] |
exclusion from admission to the United States, or denial of naturalization. In addition, while due process requires that a guilty plea be made with knowledge of its direct consequences, In re Personal Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988), a deportation proceeding that occurs subsequent to the entry of a guilty plea is a collateral consequence of that plea. In re Personal Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999) (citing State v. Ward, 123 Wn.2d 488, 512-13, 869 P.2d 1062 (1994)). As such, Jamison need not have been advised, on due process as opposed to statutory grounds, of the immigration consequences of the plea. See Yim, 139 Wn.2d at 588 (citing Ward, 123 Wn.2d at 512). See also State v. Holley, 75 Wn. App. 191, 198, 876 P.2d 973 (1994) (<HOLDING>). But Jamison claims that the 1996 amendments Holdings: 0: holding that mere disagreement over the proper treatment does not create a constitutional claim 1: holding that a claim that is constitutional in name only does not create jurisdiction over an appeal from the veterans court 2: holding that rcw 1040200 does not create a constitutional right to be advised of immigration consequences therefore failure to comply with statute does not create constitutional harm 3: holding the failure to comply with the act does not bar defendant from raising a constitutional challenge to jury selection procedures 4: holding arkansas statute does not impose standards constraining discretion about granting clemency and thus does not create a constitutional right and invoke the due process clause | [
"1",
"3",
"4",
"0",
"2"
] | [
"2"
] |
Mutual Casualty Co., 285 N.C. 313, 204 S.E.2d 829 (1974), the North Carolina Supreme Court held that the insured’s right to recover UM benefits from the insurer is derivative and conditional and that any defense that would have been available to the uninsured motorist is available to the insurer. The court explained: “In our view it would indeed constitute ‘antics with semantics’ to say that litigation with a stale tort claim, one against which the applicable statute of limitations has been specifically pleaded, remains ‘legally entitled to recover’ when his remedy has been taken away! To be ‘legally entitled to recover damages’ a plaintiff must not on aim seeking UM benefits “is actually one for the tort allegedly committed by the uninsured motorist.” Id. Inste 2d 16, 18-19 (1962) (<HOLDING>). The Alabama Supreme Court has stated that the Holdings: 0: holding that an insurer may assert as defenses the nonnegligence of the uninsured the contributory negligence of the insured and the lack of resulting damage all being matters of substantive law and legal defenses of the uninsured but it does not succeed to the rights of the uninsured motorist to interpose the latters procedural defense of statute of limitations 1: holding that the rejection was made a part of the policy because the declarations pages included the statements uninsured motorist covs rejected and uninsured motorists coverages have been rejected 2: holding that a hit and run or unknown driver is deemed to be uninsured for purposes of the uninsured motorist statute 3: holding that language requiring insurer to pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile includes recovery of exemplary damages under uninsured motorist provision of policy 4: holding that while the owner of several vehicles by paying a single premium for um coverage applicable to only one of them secures um coverage for himself and his family while occupying the uninsured vehicles as well as the insured vehicle the number of uninsured motorist coverages available to be stacked should be based upon the number of coverages for which uninsured motorist premiums were paid | [
"3",
"4",
"2",
"1",
"0"
] | [
"0"
] |
the plaintiffs employment severely enough to support a hostile work environment claim. Id. Other courts have also noted the severe impact of the use of the word. See Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984). “The use of the word ‘niggeP automatically separates the person addressed from every non-black person; this is discrimination per se.” Id. In addition, in the present case, it is undisputed that Vasilopulos not only used the word “nigger” in the exchange with Tutman but Vasilopulos also threatened to kill Tutman. This added physical threat makes the present case distinguishable from cases in which the Seventh Circuit has held that there was no hostile work environment as a matter of law. See McKenzie v. Illinois Dep’t of Transportation, 92 F.3d 473, 480 (7th Cir.1996) (<HOLDING>); Drake v. Minnesota Mining & Mfg. Co., 134 Holdings: 0: recognizing that the elements of title vii sexually hostile work environment claims apply to icra sexually hostile work environment claims 1: holding that a three to four month period between the protected activity is not enough to show very close temporal proximity 2: holding that a two month period might be enough to prove the causation prong 3: holding that three sexually suggestive comments over a three month period were not frequent enough nor severe enough to be unreasonable interference with the plaintiffs work environment 4: holding that plaintiffs work environment was not affected by comments and conduct of which she was not aware | [
"0",
"2",
"4",
"1",
"3"
] | [
"3"
] |
in an actuarially sound manner in the future and maintain solvency.”). In addition, over 85,000 class members accounting for more than 10 percent of the class have already responded to and taken advantage of the settlement. Tr. 9. Moreove agreement whereby an insured was to receive payment from the insurance company or have premiums reduced in consideration for services provided, or to be provided to the insurance company, did not constitute a rebate if there was a legitimate obligation to perform services of value to the company....”). More specifically, insurance premium discounts given in the context of a lawsuit settlement have been treated as legal and proper under such statutes. See e.g., Fidelity & Cas. Co. of New York v. Nello L. Teer Co., 179 F. Supp. 538 (M.D.N.C. 1960) (<HOLDING>); Cox v. Department of Insurance, 823 P.2d 177, Holdings: 0: holding that employees limited settlement of claims against third party did not extinguish claims of the insurer when employee and insurer had jointly filed suit against third party and settlement agreement provided that insurers claims would remain pending 1: holding that an agreement between insurer and insureds whereby insurer reimbursed insureds for costs of providing insurers administrative services did not violate antirebate statutes where agreements were not offered as an inducement to purchase insurance and reimbursements were reasonable in comparison to services rendered 2: holding that payment under settlement agreement between insurer and insureds concerning disputed premium claims was a compromise that did not violate antirebate statute 3: holding that insurance agents purchase of drinks for prospective insureds did not violate antirebate statute 4: holding that insureds demand to insurer was liquidated when insurer did not point to any evidence at trial in support of its contention that damages were disputed | [
"1",
"0",
"3",
"4",
"2"
] | [
"2"
] |
49, 444 A.2d 659, 661 (1982), which will be given its commonly accepted and plain meaning, J.K. Willison, Jr. v. Consol Coal Co., 536 Pa. 49, 54, 637 A.2d 979, 982 (1994). Additionally, in determining the intent of the contracting parties, all provisions in the agreement will be construed together and each will be given effect. Murphy v. Duquesne Univ., 565 Pa. 571, 591, 777 A.2d 418, 429 (2001). Thus, we will not interpret one provision of a contract in a manner which results in another portion being annulled. Capek, at 274, 767 A.2d at 1050. Our Court has previously concluded that a party to a franchise agreement has an obligation to conduct itself with good faith and in a commercially reasonable manner. See Atlantic Richfield v. Razumic, 480 Pa. 366, 378, 390 A.2d 736, 742 (Pa.1978) (<HOLDING>); cf. 13 Pa.C.S.A. § 1201(20) (defining good Holdings: 0: holding that litigating franchise dispute in michigan does not require that michigan law govern dispute as michigan franchise investment law does not expressly void choice of law provisions in franchise agreement 1: holding that an agreement providing this agreement when signed by author and publisher will cancel and supercede the previous agreements was clearly intended to terminate an earlier agreement 2: holding that noncompliance with terms of agreement did not terminate agreement failure to comply with date requirement in termination procedure rendered termination ineffective and letter between nonparty and party could not terminate agreement 3: holding franchisor could not arbitrarily terminate franchise agreement as it would be a disregard of franchisees interests under the agreement 4: holding that under michigan franchise investment law franchisees failure to comply with lawful provisions in franchise agreements by failing to pay royalties and advertising fees and failing to file monthly sales reports constituted good cause for franchisors termination of agreements where franchisor gave notice of termination in writing and franchisees made no effort to cure | [
"2",
"0",
"4",
"1",
"3"
] | [
"3"
] |
drawn, and all facts are viewed, in the government’s favor. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir.2001). “At least where some corroborative evidence of guilt exists for the charged offense ... and the defendant takes the stand in his own defense, the defendant’s testimony, denying guilt, may establish, by itself, elements of the offense.” United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.1995). To convict Moghaddam under 18 U.S.C. § 371, the government had to prove beyond a reasonable doubt that Moghaddam (1) knowingly and voluntarily entered into an agreement with another person to export paddlefísh without the required permits and (2) the agreement was manifested by an overt act. 18 U.S.C. § 371; see United States v. Lafaurie, 833 F.2d 1468, 1470 (11th Cir.1987) (<HOLDING>). In order to convict Moghaddam under 16 U.S.C. Holdings: 0: holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy 1: holding that a conspiracy is an agreement to commit an illegal act into which the defendant knowingly and voluntary enters and which is manifested by an overt act 2: holding that proof of an overt act is not required in a 846 conspiracy 3: holding that an overt act may be a verbal statement or a physical act 4: recognizing requirement that defendant conspired to commit an overt act in state in furtherance of the conspiracy | [
"3",
"4",
"2",
"0",
"1"
] | [
"1"
] |
offers testimony “material to the crucial issue of intent” must be admitted. (See PL’s Opp’n at 42) (citing Wright v. United States Postal Serv., 183 F.3d 1328, 1333 (Fed.Cir.1999); Jones v. Dep’t of Army, 68 M.S.P.R. 398, 405-07 (1995); Burge v. Dep’t of Air Force, 82 M.S.P.R. 75, 92 (1999).) However, these cases are fact specific; they certainly do not stand for the proposition that all witnesses who may add some additional detail need be allowed to testify. On the contrary, just as district courts enjoy broad discretion to exclude evidence, the probative value of which is substantially outweighed by “considerations of undue delay, waste of time, or needless presentation of cumulative evidence,” Fed.R.Evid. 403; see also United States v. Tarantino, 846 F.2d 1384, 1410 (D.C.Cir.1988) (<HOLDING>), the MSPB also enjoys substantial discretion Holdings: 0: holding that the district court did not abuse its discretion in limiting testimony to only one witness where additional witnesses would have provided the same testimony 1: holding trial court acted within its discretion in excluding expert testimony 2: holding that the district court exceeded its discretion in excluding testimony proffered to discredit the key government witness 3: holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative 4: holding trial court did not abuse its discretion in admitting highly probative and relevant evidence of other crimes | [
"4",
"2",
"1",
"0",
"3"
] | [
"3"
] |
to Batoon — is without merit. Nor does Alcantera’s sentence violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A. Minor Role Reduction In United States v. Haut, 107 F.3d 213, 218 (3d Cir.1997), we held that we must sustain the District Court’s factual findings as to a § 3B1.2 minimal or minor role adjustment unless those findings are clearly erroneous. See id. (“We review under a clearly erroneous standard the district court’s factual determinations, such as whether a defendant receives a reduced or increased offense level based on his role in the offense.”); United States v. Carr, 25 F.3d 1194, 1207 (3d Cir.1994); United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990) (citing United States v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th Cir.1989) (<HOLDING>)). A decision is clearly erroneous if the Holdings: 0: holding that we review for clear error a district courts factual determination of a defendants role in an offense for purposes of applying ussg 3b11a 1: holding that role in the offense is a factual determination albeit complex a district courts decision not to apply an adjustment based on such a determination is reversed only for clear error 2: holding that a district courts determination as to the applicability of a privilege is reviewed for clear error 3: holding that a determination as to a defendants credibility for a safety valve reduction is a factual finding that is reviewed for clear error 4: holding that summary judgment may be reversed when it is based on an error of law | [
"4",
"2",
"3",
"0",
"1"
] | [
"1"
] |
successive petition restrictions). Alternatively, the statute of limitations may be a non-issue because the administrative decision to confine a prisoner to IAS is usually not a discrete one-time act, but a continuing administrative process subject to regular and periodic review. In this case, the Court can pretermit the issue because the petitioner is not entitled to habeas review, regardless of the applicability of the statute of limitations. 3 . For instance, as discussed at the close of this order, the United States Court of Appeals for the Sixth Circuit has concluded that a pet r.1996) (post-AEDPA decision holding its presumption-of-correctness principles apply to prison administrative body imposing disciplinary penalties); Hanson v. Heckel, 791 F.2d 93, 96 (7th Cir.1986) (<HOLDING>); Hundley v. McBride, 908 F.Supp. 601, 602 Holdings: 0: holding that there is no protected liberty interest in the restoration of goodtime credits forfeited for disciplinary infractions under an older statutory scheme 1: holding 1983 suit seeking restoration of sentence credits properly construed as 2254 petition 2: holding that a prisoner who challenged prison procedures used to deny him goodtime credits and not actual denial of those credits stated a cognizable claim under 1983 3: holding habeas petition challenging denial of custody credits is not related to the conditions of confinement and was properly brought in the district of conviction 4: holding 1 that the district court properly construed one 1983 claim as a habeas petition but improperly summarily dismissed it and 2 that the district court should have construed another 1983 claim as a habeas petition | [
"2",
"3",
"0",
"4",
"1"
] | [
"1"
] |
four claims against the Individual Defendants in their official capacities, including one constitutional claim and three statutory claims under Title II of the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1983. Insofar as Plaintiff requests prospective injunctive relief, all of these claims fit squarely within the Ex parte Young exception and are not barred by the Eleventh Amendment. The Ex parte Young doctrine ensures the protection of individuals’ federal rights by allowing suits for prospective injunctive relief against state officials in their official capacity. It is beyond dispute that Ex parte Young actions may be maintained for violations of Title II of the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1988. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (<HOLDING>); Dube v. State Univ. of New York, 900 F.2d Holdings: 0: holding that in a suit against state officials in their official capacities monetary relief unlike prospective injunctive relief is generally barred by the eleventh amendment 1: holding that title ii ada suits and rehabilitation act suits for prospective injunctive relief may be brought under ex parte young against state officers in their official capacities 2: holding suits against state officials for prospective injunctive relief are permissible because they are in effect suits against the officials in their individual capacities 3: holding that punitive damages may not be awarded in suits brought under 202 of the ada and 504 of the rehabilitation act 4: holding that eleventh amendment does not bar suits for prospective injunctive relief against state officials in their official capacity | [
"0",
"4",
"3",
"2",
"1"
] | [
"1"
] |
of pollutants. Id. at § 1362(16). “Discharge” of a pollutant or pollutants means “any addition of any pollutant to navigable waters from a point source.” Id. at § 1362(12). The USFS asserts that the plain meaning of “discharge” is limited to a point source or a nonpoint source with a conveyance. Defendant-intervenors claim that “discharge” is limited to point sources only, interpreting the phrase “without, qualification” in the discharge definition as allowing some types of nonpoint source activity to fall within the statutory definition of point source. These arguments contradict the plain meaning of the term “discharge.” The term “including” in the discharge definition permits additional, unstated meanings. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 172 (D.C.Cir.1982) (<HOLDING>); Exxon Corp. v. Lujan, 730 F.Supp. 1535, 1545 Holdings: 0: holding that 3583e2 allows a district court to modify the conditions of supervised release without extending the term of that release 1: holding that the term includes in the cwa allows for additional unstated meanings 2: holding that 6905a of the cwa prevents any under claims under rcra that would be barred under the clean water acts cwa npdes permit shield 3: holding that an additional term did not materially alter the contract because the plaintiff cannot profess to be surprised by an additional term in an invoice when the price quotation contained the identical term 4: holding that as used in the cwa the term waters of the united states is not limited to the traditional tests of navigability | [
"2",
"4",
"3",
"0",
"1"
] | [
"1"
] |
of one or more of the entities in which the Debtor held an ownership interest. In such circumstances, this Court expected the Debtor to seek approval from bankruptcy courts to retain Mr. Kaplan to perform accounting services on behalf of his estate. The fact that Mr. Kaplan was performing such services for free or on behalf of one or all of the entities that the Debtor controls did not suspend this requirement. The Debtor’s failure to submit an application for retention of Mr. Kaplan prevented this Court from testing whether his services would benefit the interests of the estate and whether Mr. Kaplan may suffer from a conflict of interest that would otherwise prevent his employment by the Debtor’s estate. See, e.g., In re Liebfried Aviation, Inc., 445 B.R. 30, 34 (Bankr.D.Mass.2011) (<HOLDING>). VI. The Debtor’s Animus for his Creditors’ Holdings: 0: recognizing that debtors failure to submit application for employ ment prevented the court from evaluating accountants purported disinterestedness and lack of a material adverse interest as regards the debtor and the bankruptcy estate 1: holding that the debtors false statements about the location of assets of the estate were material to the proceedings 2: holding creditors lacked standing to file an adversary action asserting the interests of the estate in seeking to prevent a former principal of the debtor from interfering with the chapter 11 reorganization given the lack of showing of the debtors consent and any determination by the bankruptcy court that the suit would be beneficial to the estate and necessary to a fair and efficient resolution of the bankruptcy proceedings 3: holding that bankruptcy court is without jurisdiction to control disposition of chapter 13 debtors property that is not property of the bankruptcy estate unless the property is related to the bankruptcy proceedings of the code 4: holding that proper forum for debtor to challenge actions of coexecutor of debtors deceased husbands estate was state probate court not bankruptcy court | [
"1",
"2",
"3",
"4",
"0"
] | [
"0"
] |
are echoed by defendants and amici in their briefs on these cross-motions. First, these courts conclude that, viewed subjectively and objectively, notification statutes are “remedial” laws that are not motivated by “punitive, penal purposes.” W.P. v. Poritz, 931 F.Supp. at 1214; see also, e.g., Doe v. Poritz, 662 A.2d at 404 (“legislative intent [behind Megan’s Law] ... is clearly and totally remedial”). These courts rely heavily on their conclusion that these laws serve “significant remedial goals,” including as the “primary focus ... the protection of children and others from previously-convicted sex offenders, near them in the community, who have been found to have a moderate or high risk of re-offense.” W.P. v. Poritz, 931 F.Supp. at 1214; accord Stearns v. Gregoire, slip op. at 13 (<HOLDING>). Second, these courts also conclude that the Holdings: 0: holding a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant 1: recognizing that a court must balance the policy in favor of hearing a litigants claims on the merits with the policy in favor of finality 2: holding on motion for preliminary injunction that balance of hardships tipped in favor of public 3: holding that one candidates status as a pension fund tipped the scales in favor of its appointment as lead plaintiff 4: recognizing such balance of interests | [
"1",
"4",
"0",
"3",
"2"
] | [
"2"
] |
upon the relationship, if any, between the two debts. Additionally, the July 2000 notice of this debt was sent before the Secretary had taken any action with regard to Mrs. Edwards’ May 2000 submissions. Nevertheless, the Secretary treated the $2,366 and $12,347 overpay-ments as separate matters throughout the proceedings. In this case, whether Mrs. Edwards’ May 2000 submissions could be considered a waiver request of both debts becomes relevant if, and only if, the May 2000 submissions, individually or collectively, are deemed to be a request for waiver. Thus, this issue is interrelated with the matter being remanded. Under these circumstances, the matter will be remanded for consideration by the Board in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed.Cir.2000) (<HOLDING>). III. REMAND On remand, Mrs. Edwards may Holdings: 0: holding that this court has discretion to hear arguments presented to it in the first instance provided that it otherwise has jurisdiction over the claim 1: holding arguments not raised on appeal waived 2: holding that an issue not raised in the trial court cannot be raised for the first time on appeal 3: holding that this court lacked jurisdiction to hear a cue claim raised for the first time on appeal 4: holding that the court has discretion to hear or to remand legal arguments raised for the first time on appeal | [
"3",
"1",
"2",
"0",
"4"
] | [
"4"
] |
§ 8C-1, Rule 403. In State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), the Supreme Court stated in requiring the exclusion of evidence otherwise admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b) under N.C. Gen. Stat. § 8C-1, Rule 403, that: [W]here the probative value of such evidence depends upon defendant’s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant. Such evidence is thus barred by N.C. R dence tending to show that Defendant possessed various prescription drugs which he was acquitted of possessing. State v. Allen, 144 N.C. App. 386, 388, 548 S.E.2d 554, 555 (2001) (<HOLDING>). After careful review of the evidence and the Holdings: 0: holding that a sua sponte dismissal of the charges during trial was not an acquittal that barred retrial based on double jeopardy 1: recognizing the specific need for an appropriate double jeopardy review when an appeal is taken by the state from a lower courts dismissal of the criminal charges 2: holding that a delinquency proceeding places a juvenile in jeopardy for purposes of the double jeopardy clause 3: holding that the dismissal of criminal charges for evidentiary insufficiency is an acquittal for purposes of the double jeopardy clause 4: holding that the trial courts dismissal of the charges after jeopardy had attached based on the prosecution witnesses failure to appear was not an acquittal and therefore double jeopardy did not prevent the court from reconsidering its decision and reinstating the charges | [
"2",
"4",
"1",
"0",
"3"
] | [
"3"
] |
428, 429 n. 1, 343 S.E.2d 45, 46 n. 1 (Ct.App.1986). 2. Separation Agreements Prior to 1983, the law in South Carolina was unclear as to what specific words were necessary to render a separation agreement enforceable in the family court. In Kelly v. Edwards, 276 S.C. 368, 278 S.E.2d 773 (1981), the supreme court held that an agreement incorporated but not merged in a divorce decree was enforceable only as a contract and that the family court lacked subject matter jurisdiction to enforce it. Thereafter, in Brooks v. Brooks, 277 S.C. 322, 326, 286 S.E.2d 669, 671 (1982), the supreme court concluded the family court properly held a party in contempt for violating a separation agreement that was not merged in the final decree. See also Bryant v. Varat, 278 S.C. 77, 292 S.E.2d 298 (1982) (<HOLDING>). In 1983, however, the South Carolina Supreme Holdings: 0: holding that the trial court had authority to enforce a marital property settlement agreement that had not been incorporated into the parties final divorce decree 1: holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce 2: holding that the family court lacked subject matter jurisdiction to hold a party in contempt where the separation agreement was incorporated but not merged into a divorce decree 3: holding that the jurisdiction of the divorce court with regard to support and maintenance is statutorily determined unless otherwise provided by agreement incorporated into the divorce decree 4: holding a motion to revise an enrolled divorce decree because of a discrepancy between the separation agreement and the decree filed more than 5 years after entry of the enrolled decree was properly denied | [
"1",
"3",
"0",
"4",
"2"
] | [
"2"
] |
gave no consideration to lesser restraints and made no adequate findings that forcing Messrs. Pursley and Wardell to wear a stun belt ... was necessary.”). We uphold the district court’s stun-belt order. While a defendant enjoys the “right to appear before the jury unfettered from physical restraints,” this right is not unqualified. United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986). Freedom from restraint helps to preserve, among other constitutional guarantees, “the due process right to a fair and impartial trial.” United States v. Apodaca, 843 F.2d 421, 430-31 (10th Cir.1988). A district court, however, retains the discretion to take measures to maintain order and security within its courtroom. See Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (<HOLDING>); Hack, 782 F.2d at 867 (acknowledging the Holdings: 0: recognizing defense counsel must have wide latitude in making tactical decisions 1: recognizing that trial courts have great latitude and considerable discretion to determine necessary and proper jury instructions 2: recognizing a hearing officers latitude in making credibility calls 3: recognizing the need to give trial courts latitude in making individualized security determinations 4: recognizing the benefit of alternative determinations in the social security review process | [
"1",
"0",
"4",
"2",
"3"
] | [
"3"
] |
direct evidence of discrimination or relied solely on circumstantial evidence. See Price Waterhouse v. Hopkins, 490 U.S. 228, 270-78, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring) (describing the direct evidence model); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (describing the circumstantial evidence model). Like the parties, we apply the distinction drawn by these cases. As the Supreme Court has recently reemphasized, however, the McDonnell Douglas framework is a “flexible evidentiary, standard” whose requirements “vary depending on the context”; it is a method for proving cases rather than the definition of a cause of action. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002) (<HOLDING>). A. Direct Evidence It is generally to an Holdings: 0: holding that federal government employee successfully established prima facie case of retaliation under mcdonnell douglas but failed to prove employers proffered reason was pretextual 1: holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case 2: holding that a plaintiff who could not demonstrate every element of the mcdonnell douglas test could nonetheless demonstrate a prima facie case 3: holding that a title vii plaintiff need not plead the elements of a mcdonnell douglas prima facie case to survive a motion to dismiss 4: holding that denial of the opportunity to work overtime is an adverse employment action sufficient to make out a prima facie case under title vii | [
"4",
"0",
"2",
"1",
"3"
] | [
"3"
] |
Here, the Parish, the Levee District, and the Corps of Engineers undoubtedly formed an agreement to indemnify. See, e.g., Pizani, 12-1084, pp. 9-10, 125 So.3d at 553. The Corps of Engineers agreed to “identify and pay” affected landowners. The proper parties to this suit, however, remain the Parish and the Levee District. | ga“An indemnitor is not liable under an indemnity agreement until the indemnitee actually makes payment or sustains loss.” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 17 (La.4/12/05), 907 So.2d 37, 51 (internal quotations omitted). “An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying” action. Reggio, 07-1433, p. 5, 15 So.3d at 955, but see Pizani, 12-1084, p. 13, 125 So.3d at 555 (<HOLDING>). Here, Borgnemouth’s suit against the Parish Holdings: 0: holding that the governments cooperation with a thirdparty is not sufficient to establish a thirdparty beneficiary relationship 1: holding that the thirdparty beneficiary theory did not apply 2: holding that a plaintiff who had asserted no claim against a thirdparty defendant lacked standing to complain of the courts action with regard to the thirdparty defendant 3: holding employers thirdparty complaint seeking indemnity from employee for alleged flsa violations was preempted 4: holding that thirdparty indemnity claims are not premature | [
"0",
"1",
"3",
"2",
"4"
] | [
"4"
] |
principles of federalism and the Commerce Clause. Specifically, they contend that Act No. 26 may affect essential terms of insurance agreements entered in other states. To the extent that Act No. 26 is not limited to South Carolina, they claim the General Assembly improperly imposed its “public policy objections to the application of traditional occurrence definitions to construction cases involving faulty workmanship, on sister states.” We find several procedural barriers prevent the Amici from presenting this argument. The Amici lack standing to assert their challenge, and their claim is not ripe for review as they posit a hypothetical scenario, which Petitioner does not raise and which may not come to fruition. See James v. Anne's Inc., 390 S.C. 188, 193, 701 S.E.2d 730, 732 (2010) (<HOLDING>). Justice BEATTY (concurring in part and Holdings: 0: holding where a party failed to raise an issue clearly implicated in the initial decision of the trial court our mandate acted to prevent that party from raising this issue on remand 1: recognizing that justiciability encompasses several doctrines including ripeness mootness and standing and precluding amici from raising an issue not raised by the named party under rule 213 scacr 2: holding that the plaintiff was precluded from raising the issue for the first time on appeal 3: holding that the court bars a party from raising an issue on remand that was not raised on appeal 4: holding that failure to raise issue at district court forecloses party from raising same issue on appeal | [
"2",
"3",
"4",
"0",
"1"
] | [
"1"
] |
or of nude women in sexually provocative poses would not be insulated from Title VII claims simply because the photos were observable by all office employees, White and Black, male and female.” 192 F.3d at 320 (Newman, J., concurring in part and dissenting in part). The majority in Brennan found it unnecessary to reach this common-exposure issue to resolve that particular case, see id. at 319, but we now adopt Judge Newman’s reasoning and that of the Fourth Circuit in rejecting Bell Atlantic’s argument that the common exposure of male and female workers to sexually offensive material necessarily precludes a woman from relying on such evidence to establish a hostile work environment based on sex. See also Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1522-23 (M.D.Fla.1991) (<HOLDING>). In sum, although all Bell Atlantic employees Holdings: 0: holding that white female had standing under title vii to challenge her employees alleged racial discrimination against blacks 1: holding that evidence established a municipal custom within the police department of a code of silence regarding sexual harassment of female officers and of retaliation against female officers who complained about same 2: holding that an employers policy requiring female employees to make larger pension fund contributions than male employees was discriminatory on its face in violation of title vii 3: holding that a class of all high school female athletes could not be certified even if the alleged conduct of the defendant school system was discriminatory when some female athletes did not share the same goals or interests as the named female plaintiffs because those unnamed female athletes were satisfied with andor benefitted from the alleged discriminatory treatment 4: holding that sexually provocative pictures of nude and partially nude women which were put up before any female employees joined the workplace had a disproportionately demeaning impact on female employees and as such conveyed the message that women do not belong | [
"3",
"2",
"1",
"0",
"4"
] | [
"4"
] |
prong of the Central Hudson test. Rather, their dispute centers around the remaining three prongs. 2. Governmental Interest The defendants argue that the governmental interest behind § 189.635 is to protect accident victims’ privacy and safety by keeping the personal information contained in such reports out of the hands of the general public. We are persuaded that such an interest is substantial, as evidenced by the fact that a number of other courts that have considered similar statutes have reached the same conclusion. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir.1994); Speer v. Miller, 864 F.Supp. 1294 (N.D.Ga.1994); cf. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998) (<HOLDING>); United Reporting Publishing Corp. v. Holdings: 0: holding that disclosure of information contained in undercover officers personnel files violated the officers privacy interest in preserving their lives and personal security 1: holding that personnel records or conduct investigative records regarding police officers are exempt from disclosure under virginias freedom of information act which exempts personnel records from disclosure 2: holding a citys policy of freely releasing information from undercover officers personnel files created a constitutionally cognizable special danger 3: recognizing as a privacy right the individual interest in avoiding disclosure of personal matters 4: recognizing a right to privacy in avoiding disclosure of personal matters | [
"3",
"4",
"1",
"2",
"0"
] | [
"0"
] |
committee carries its burden, “[t]he plaintiff must . . . provide evidence of an objective, reasonable belief that his statements were true. See Burton v. Mottolese, 267 Conn. 1, 49-52, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).” The plaintiff has no burden to carry until the committee presents clear and convincing evidence of the violation. Here, after the plaintiff provides evidence that he had an objective, reasonable belief that his statements were true, the burden shifts back to the committee to rebut that evidence and, ultimately, to carry its burden of persuasion and to convince the finder of fact of the truth of the claimed violation. See, e.g., Somers v. Statewide Grievance Committee, 245 Conn. 277, 296-98, 715 A.2d 712 (1998) (<HOLDING>). At this point, I depart from the majority’s Holdings: 0: holding that employer failed to carry its burden to demonstrate that its past payment of maintenance and cure entitled it to an offset against jones act damages award for lost wages 1: holding that the defendant failed to carry his burden of proving the invalidity of the waivers of counsel for prior colorado convictions 2: holding that defendants failed to carry burden of proof to show that plaintiffs failed to mitigate damages when among other things they offered no evidence contradicting the plaintiffs evidence 3: holding that committee failed to carry its ultimate burden 4: holding that the utility did not carry its burden of proof by merely opening its books to inspection | [
"0",
"4",
"2",
"1",
"3"
] | [
"3"
] |
required to review the substance of the constitutional challenge to the (e)(9) aggravating circumstance which Fisher now pursues and, thus, the review was not independent of federal law. We disagree. In Mu’min v. Pruett, 125 F.3d 192 (4th Cir.1997), we rejected a similar claim that the Virginia Supreme Court implicitly considered and rejected a habeas applicant’s constitutional claims during its mandatory review of the applicant’s death sentence because the mandatory review procedures only required the Virginia Supreme Court to determine “whether the imposition of the death penalty was influenced by improper considerations,” and not to “examine the record for constitutional errors not specified on appeal.” Id. at 197; see Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir.1995) (<HOLDING>); see also Bennett v. Angelone, 92 F.3d 1336, Holdings: 0: holding a contemporaneous objection is required to preserve an issue for appellate review 1: holding that south carolinas prior practice of in favorem vitae review did not preserve otherwise defaulted claims 2: holding that dismissal of claim attacking sufficiency of a plea allocution by defendants failure to preserve the issue otherwise available on direct appeal for such review 3: holding that general objection did not preserve error on appeal 4: holding that litigant must object at trial to preserve error for review | [
"3",
"0",
"4",
"2",
"1"
] | [
"1"
] |
of sale statute, however, specifically authorizes “the mortgagee or ... his or their agent or attorney [to] sell the mortgaged premises ... by a public sale.” 33 M.R.S. § 501-A. , . [¶34] Even accepting Oceanic’s argument that Cummings violáted the plain language of the auctioneering licensing statute by conducting the auction, there is no support for the remedy Oceanic seeks— the licensing statutes próvidé for civil and criminal penalties for a violation of the statute, but do not provide for a private cause of action to invalidate a sale conducted by an unlicensed auctioneer. 10 M.R.S. § 8003 — C(3)-(5) (2015). As the trial' court noted, courts in other jurisdictidiis have reached the samé conclusion. ’ See Assocs. Discount Carp. v. Lunsford, 204 Va. 1, 128 S.E.2d 924, 924-25 (1963) (<HOLDING>); Gorman v. Berg, 141 A. 179, 179-80 (R.I.1928) Holdings: 0: holding that an auction sale by a creditors employee who was unlicensed as an auctioneer did not bar a deficiency judgment and noting that where a person sells at action without a license the question is one between the state and the auctioneer 1: holding that there is a difference between a debtor attempting to pursue an action for his own benefit and a trustee pursuing an action for the benefit of the creditors 2: holding that the district court did not abuse its discretion in denying his petition for reinstatement where membership in good standing in the state bar was required before attorney could be admitted to the federal bar and applicant had not been readmitted to state bar 3: holding that collateral estoppel did not bar the defendant from relitigating a pure question of law and noting that that is especially true when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it 4: holding that under the mwa the question of whether an employee was an independent contractor or an employee was a question of statutory interpretation | [
"1",
"3",
"2",
"4",
"0"
] | [
"0"
] |
of the taxing authority to perform its public functions could be brought to a standstill by mass appeals. The potential harm of such a rule is intolerable to government.'' Id. at 109-10, 351 A.2d 156. 11 . When the taxpayer paid under threat of immediate harm or duress to person or property, the taxpayer usually could recover the taxes in an action at law, since such a payment was considered involuntary. See City of Baltimore v. Lefferman, 4 Gill 425 (1846) ("We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual and existing duress, imposed upon it by the party, to whom the money is paid”); see also Martin G. Imbach Inc. v. Deegan, 208 Md. 115, 117 A.2d 864 (1955) (<HOLDING>). 12 . Code 1939 Art. 81, § 162 leads us to Holdings: 0: holding that appellants payment of poundage fees was not voluntary when appellant paid the fee to prevent a sheriff from attaching and taking away equipment belonging to appellants business in satisfaction of a prior judgment 1: holding officers articulated reasonable suspicion justified appellants contin ued detention to await canine unit when officer suspected appellant of drug trafficking based on appellants prior arrests for drug offenses appellants lie about his prior criminal history and appellants possession of small jewelers bags used in cocaine trafficking 2: holding that the appellants claim that the circuit court erred in failing to make specific findings of fact as to all claims in the appellants rule 32 petition was not preserved for review because the appellant did not first present the claim to the circuit court 3: holding error for chancellor to find that the appellants had tortiously interfered with the appellees business relationships where record failed to disclose a single client who was influenced by the appellants to terminate the appellees services due to the appellants intervention 4: holding that appellants privacy interests under the us and texas constitutions were not invaded when officer walked up appellants driveway to allow drug dog to sniff appellants garage door | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
intend the Bankruptcy Code to extend to Puerto Rico”); cf. Cohen, 523 U.S. at 221-22, 118 S.Ct. 1212 (explaining that the Code is not to be construed "to erode past bankruptcy practice absent a clear indication that Congress intended such a departure”); Wellness Int’l Network, Ltd. v. Sharif, - U.S. -, 135 S.Ct. 1932, 1939, 191 L.Ed.2d 911 (2015) (describing the Code’s expansion of power given to courts adjudicating bankruptcy cases). Even so, this omission and others in the Code's early years led to at least some ambiguity about the Code's applicability to Puerto Rico. See Lubben, 88 Am. Bankr.L.J. at 572-73 & n. 125 (explaining this was because both the definition of "State” and that of "United States” were absent in the original 1978 Code); see also In re Segarra, 14 B.R. at 872-73 (<HOLDING>). In addition to the general ambiguity about Holdings: 0: holding that puerto rico is to be treated like a state for purposes of the sherman antitrust act 1: holding that under rico plaintiff must prove an injury because of violation of statute 2: holding that plaintiffs cannot claim that a conspiracy to violate rico existed if they do not adequately plead a substantive violation of rico 3: holding that the code applied to puerto rico under 48 usc 734 4: holding that equitable relief under rico is available only to the government | [
"2",
"4",
"1",
"0",
"3"
] | [
"3"
] |
September 12, 1986 Notice of appeal filed October 2, 1986 Case refiled January 27, 1987 Case dismissed February 19, 1987 Case refiled 2nd time Appellant argues that the state cannot use the savings clause again for their second refiling, February 19, 1987. Nothing in the statute, however, forbids it so long as it is accomplished within the six-month time frame triggered by the initial dismissal without prejudice. And so it was here. The state apparently elected to forego the appeal inasmuch as the time extension to refile was running and not tolled by the appeal, and there was danger that the A.R.S. § 13-107(F) time limits would run before adjudication of the appeal. See State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978). See also Litak v. Scott, 138 Ariz. 599, 676 P.2d 631 (1984), (<HOLDING>). The A.R.S. § 13-107(F) six-month extension to Holdings: 0: holding that another complaint may be filed after conclusion of appeal if refiling is still allowable 1: holding that notice of appeal was not effectively taken where appeal was filed simultaneously with timely motion for reconsideration because when timely motion for reconsideration is filed a notice of appeal filed prior to disposition of the motion to reconsider has no effect 2: holding that an appeal is perfected when the appeal bond is filed 3: holding that when an employee is not provided with notice of termination and appeal rights by an employing agency a dismissal based on untimeliness may be proper if the employee fails to act promptly and within the allowable time limits after he or she becomes aware of those rights 4: holding that intermediate appellate courts have jurisdiction to address merits of appeal when amended notice of appeal is filed before briefs are filed | [
"2",
"4",
"3",
"1",
"0"
] | [
"0"
] |
at trial by the State was far more than Reynolds accepts. In addition to the evidence Reynolds has noted, the State also introduced expert testimony from a medical examiner demonstrating that the injury to Reynolds’ hand was inconsistent with his explanation of the injury; testimony from a neighbor of the victims who saw Danny Privett sitting on Reynolds’ car, which was parked at the victims’ residence the night the crimes were committed; microscopic and DNA analysis of a pubic hair found at the crime scene matched a hair sample taken from Reynolds; Reynolds’ admission during an interview with law officers that he had a heated argument with Danny Privett; eyewitness testimony corroborating the circumstances surrounding the argument between Reynolds and Danny Privett; evidence that ) (<HOLDING>). Based on the foregoing, we conclude that Holdings: 0: holding that evidence of prior uncharged sexual conduct with the victim is admissible to corroborate the victims testimony 1: holding that evidence that the defendant had stalked threatened and assaulted the victim his exgirlfriend was evidence as to the nature of the defendants relationship with the victim and that it was relevant to establish motive 2: holding that case involving evidence such as eyewitness testimony placing the defendant at the scene acknowledgment by the defendant of a dispute with the victim and theft of the victims purse and dna evidence suggesting that the defendant had engaged in sexual relations with the victim could not be deemed entirely circumstantial 3: holding that before a defendant is entitled to introduce evidence of the victims character for violence there must be sufficient evidence to support a finding that the victim was the first aggressor and that once the defendant testified that he was attacked and cut by the victim without provocation before using the victims utility tool to stab the victim the defendant was clearly entitled to question the victim about past acts of violence reflected in court documents from the state of oregon 4: holding that uncharged sexual acts committed upon the same victim are admissible to show the conduct of the defendant toward the victim and to corroborate the evidence of the offense charged in the indictment | [
"1",
"3",
"0",
"4",
"2"
] | [
"2"
] |
Dec. 21, 2007) (McCurn, S.J.); see also Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995). These claims are likewise precluded by the Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), where the Court held that: [I]n order to recover from damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s writ of habeas corpus, 28 U.S.C. § 2254. Id.; see also Tavarez, 54 F.3d at 110 (<HOLDING>). In the case at bar, Feldman was arrested, Holdings: 0: holding that collateral estoppel applies to 1983 claims 1: recognizing that the heck deferred accrual rule applies to fourteenth amendment equal protection claims 2: holding that the public harm requirement applies to fraudulent inducement claims because the fraud claims arise from related contract claims 3: holding that sovereign immunity also applies to cross claims and third party claims 4: holding that heck applies to bivens claims | [
"3",
"0",
"2",
"1",
"4"
] | [
"4"
] |
discussed, Plaintiffs theory of fraud does not hold up under Michigan law. More detailed descriptions of the time and place the alleged statements were made would not cure its defects. C. Promissory Estoppel Plaintiffs third claim invokes the doctrine of promissory estoppel. Under Michigan law, courts will enforce a clear and definite promise under this doctrine if the promisee or a third party reasonably relied on the promise and injustice can only be avoided by its enforcement. State Bank of Standish v. Curry, 442 Mich. 76, 500 N.W.2d 104, 107 (1993) (“Curry”) (citing the Restatement Second of Contracts, § 90.) As the Michigan Supreme Court explained, “the sine qua non of the theory of promissory estoppel is that the promise be clear and definite.” Id. at 108; see.id. at 109-10 (<HOLDING>). The court additionally emphasized that “the Holdings: 0: holding that unenforceable promises cannot form the basis for a claim of promissory estoppel 1: holding that even if the standard for waiver is clear the standard was not met 2: holding that evidence of the material terms of a promised loan was required to meet the clear and definite standard for promissory estoppel 3: holding that promissory estoppel is applicable only in the absence of an enforceable contract 4: holding that the absence of a binding agreement does not defeat a promissory estoppel claim | [
"0",
"4",
"3",
"1",
"2"
] | [
"2"
] |
of contra proferentem to resolve the ambiguities in the insurance contract. E.g., Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1551 (11th Cir.1994). “Application of this rule requires us to construe ambiguities against the drafter.... ” Id. In doing so, we must conclude that Billings’s organically based OCD does not fall within the policy’s mental illness limitation. See Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir.1995) (explaining that “[b]ecause of the rule that ambiguities are to be resolved in favor of the insured, if either a cause or a symptom of the disease were physical and caused the disability in whole or in part, then” the disease does not fall within the mental illness limitation); Phillips, 978 F.2d at 310-11, 314 (<HOLDING>). Accordingly, we affirm the district court’s Holdings: 0: holding that a mental illness limitation containing the exact language at issue in this case is ambiguous because it does not specify whether a disability is to be classified as mental by looking to the cause of the disability or to its symptoms and thus construed in favor of the insured does not encompass organically based illnesses 1: recognizing attorneys mental illness as grounds for relief under rule 60b6 2: holding that upon applying the doctrine of contra proferentem the insureds organically based illness does not fall within the mental illness limitation as a matter of law 3: holding that attorneys mental illness may justify equitable tolling 4: holding that a mental illness limitation limiting the maximum payment for care of mental illness or care of nervous conditions of any type or cause is ambiguous because the plan contains no definition or explanation of the term mental illness and thus construed against the insurance company does not include physically based illnesses | [
"1",
"0",
"3",
"4",
"2"
] | [
"2"
] |
237 F.Supp.2d 795, 801 (E.D.Mich.2003) (collecting cases). Thus, a consent to search that is obtained in violation of Miranda, that is, when it results from conversations initiated by the police after a suspect invokes his right to counsel or right to silence, is not necessarily violative of the Constitution. See ibid, (noting that “a consent to search obtained following a Miranda violation is not automatically tainted”). The Sixth Circuit has held that “where police simply fail to administer Miranda warnings, the admissibility of non-testimonial physical evidence derived from the uncounseled statements should turn of a statement mirror those used to assess the voluntariness of a consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (<HOLDING>); Guerra, 237 F.Supp.2d at 803. In this case, Holdings: 0: holding that whether a consent to a search was in fact voluntary or was the product of duress or coercion express or implied is a question of fact to be determined from the totality of all the circumstances 1: holding that the reasonableness inquiry is based upon the totality of the circumstances in determining whether or not a search was reasonable 2: holding threat to obtain a search warrant if individual does not consent to a search is just one factor in deciding whether the totality of the circumstances supports a voluntary consent finding 3: holding it is a question of fact 4: holding that the government bears the burden of proving voluntary consent under the totality of the circumstances | [
"2",
"4",
"3",
"1",
"0"
] | [
"0"
] |
issue “went to gambling, alcohol, and drugs. I lost all the money earned and had no money to pay the taxes. I hoped [I] could win money to pay the taxes, but I lost all the money.” (Def.’s Ex. 16, answer to interrogatory 6.) At trial, however, Long testified that he was not aware until 2005 that he did not pay his taxes, and that he thought Magida was filing his returns and paying his taxes for him. (Tr. at pp. 15, 28.) Finally, Long also testified at trial — inconsistently—that he thought the taxes for at least 2001 were being paid out of the proceeds of the sale of his McDonald’s franchise. (Id. at pp. 14, 29.) Long further testified at trial that he had never received prepared returns from Magida, though he later admitted that at least some of the returns Magida prepared, and 005) (<HOLDING>). Long’s failure to file his 1999, 2000, and 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 the conduct element satisfied where debtor failed to timely file tax returns and failed to pay taxes for those years 2: holding the conduct element satisfied where debtor earned income during the tax years at issue but did not make any estimated tax payments had inadequate or no withholdings and latefiled his tax returns 3: holding that debt or who failed to file income tax returns and failed to pay tax satisfied 523alcs conduct requirement despite no affirmative conduct to evade taxes 4: holding refund of discriminatory tax required because predeprivation remedy not clearly available for tax years at issue | [
"3",
"1",
"0",
"4",
"2"
] | [
"2"
] |
incident — reflecting conduct that is not pervasive or frequent — may be sufficiently severe to constitute sexual harassment, it must be “extremely serious” in order to “amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Id. (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). As this court recently noted, “[t]he determination of whether alleged conduct is sufficiently severe or pervasive is not an exact science, but this [cjourt’s decisions on this issue provide guidance.” Gibson v. Potter, 264 Fed.Appx. 397, 400 (5th Cir.2008). The type of non-consensual physical touching alleged by Paul was held to be actionable under Title VII only in cases where it was chronic and frequent. See McKinnis v. Crescent Guardian, Inc., 189 Fed.Appx. 307, 310 (5th Cir.2006) (<HOLDING>); Harvill, 433 F.3d at 435-36 (holding that Holdings: 0: holding that two alleged incidents of hostile treatment in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers did not constitute a hostile work environment 1: holding that consideration of the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period 2: holding that chronic unwanted touching including touching on the breasts and thigh over a yearlong period repeated demands for hugs and kisses and other inappropriate behavior resulting in plaintiffs resignation supported a hostile work environment claim 3: recognizing a hostile work environment claim under section 1983 4: holding that a plaintiff alleging a hostile work environment claim under title vii may seek damages for all behavior contributing to a hostile work environment claim including behavior allegedly occurring outside the limitations period provided that an act contributing to the claim occurs within the filing period | [
"4",
"0",
"3",
"1",
"2"
] | [
"2"
] |
I find this argument unavailing as well. The language of the condition precedent does not apply to claims that Carrón could or could not make at any given time. Rather, the condition applies to those “claims” that Carrón might make. Brentwood’s subjective belief concerning the likelihood of Carrón filing a lawsuit is irrelevant under the plain language of the condition precedent. As other courts have noted, this language instructs the court to first look at the insured’s subjective knowledge “and then the objective understanding of a reasonable attorney with that knowledge.” Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 306 (3rd Cir.2001) (emphasis added); see also Wittner, Poger, Rosenblum & Spewak, P.C. v. Bar Plan Mutual Ins. Co., 969 S.W.2d 749, 754 (Mo.1998) (en banc) (<HOLDING>). Brentwood also argues that the exclusion Holdings: 0: holding this statute did not bar insurers denial of coverage for legal malpractice claim because the insured prior to inception date of policy had reason to believe that an act or omission might reasonably be expected to be the basis of a claim 1: holding that reinsurer could be directly liable to an insured where the reinsurance agent was the ultimate consistent reimburser of losses of the insured and this status was conveyed to the insured 2: holding that the policy language expected or intended by an insured person is unambiguous and requires a subjective intent on behalf of the insured 3: holding that regardless of the subjective belief of the insured the record established a basis to believe that the insured had committed an act that could give rise to a claim under the policy 4: holding that where the insurer retains an attorney to represent the insured pursuant to an insurance policy the attorney acts in the capacity of an independent contractor for the insured | [
"1",
"4",
"2",
"0",
"3"
] | [
"3"
] |
environment claim because Roddy had not demonstrated an instance of harassment or abusive conduct within the five-year statute of limitations applicable to Roddy’s claim under 42 U.S.C. § 1981. See Drake v. Southwestern Bell Tel. Co., 553 F.2d 1185, 1188 (8th Cir.1977) (applying Missouri five-year statute of limitations to a cause of action under § 1981). According to the trial court, the last act of harassment directed at Roddy was the kicking incident in April 1991, and the statute of limitations ran back only to March 1992. Although Roddy agrees that conduct prior to March 1992 is not actionable, Roddy contends that the record as a whole shows the existence of a pattern of harassment more recently than March 1992. See Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir.1999) (<HOLDING>). However, even assuming that Roddy suffered Holdings: 0: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive 1: recognizing a hostile work environment claim under section 1983 2: holding that consideration of the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period 3: holding that a plaintiff alleging a hostile work environment claim under title vii may seek damages for all behavior contributing to a hostile work environment claim including behavior allegedly occurring outside the limitations period provided that an act contributing to the claim occurs within the filing period 4: holding a hostile work environment claim viable when the cumulative effects of a prolonged pattern of harassment extended into the limitations period | [
"0",
"2",
"1",
"3",
"4"
] | [
"4"
] |
abandoned their common law fraud claim, they continue to pursue all of their other claims for compensatory damages, treble damages (a remedy akin to the punitive damage claim plaintiffs elected to forego when they abandoned their fraud claim), attorneys’ fees and costs, and a judgment enjoining defendants from continuing their allegedly unlawful combination or conspiracy. This is not a case where the class representatives are pursuing relatively insignificant claims while jeopardizing the ability of class members to pursue far more substantial, meaningful claims. Rather, here the named plaintiffs simply decided to pursue certain claims while abandoning a fraud claim that probably was not certifiable. See, e.g., Gunnells v. Healthplan Servcs., Inc., 348 F.3d 417, 434 (4th Cir.2003) (<HOLDING>); Sandwich Chef of Tex., Inc. v. Reliance Nat’l Holdings: 0: holding that a district court did not commit reversible error because it attached great weight to one factor 1: holding that a reviewing court must first ensure that the district court committed no significant procedural error 2: holding that trial court committed reversible error in not instructing jury to determine credibility of incriminating statements attributed to defendant by state trooper 3: holding the district court committed reversible error by certifying a class with respect to fraud claim 4: holding that failure to review the evidence presented to the magistrate and failure even to have a transcript filed with the district court was reversible error | [
"2",
"1",
"0",
"4",
"3"
] | [
"3"
] |
544(b), however, puts the trustee in the creditor’s shoes, and allows him to assert claims that only they could assert outside bankruptcy. The claims inherited from the creditors are not arbitrable for the reasons explained in Allegaert Id. at 206-07 (citations omitted). Allegaert, Hays and Hagerstown all involved fraudulent transfer claims. Specifically addressing the arbitrability of preferential transfer claims brought under section 547 of the Bankruptcy Code, the court in OHC Liquidation, 2005 WL 670310, at *4, ruled that it was “entirely appropriate” to equate preferential transfers with fraudulent transfers as core proceedings belonging to the trustee and not derivative of the debtor. See also Pardo v. Pacificare of Tex., Inc. (In re APF Co.), 264 B.R. 344, 363 (Bankr.D.Del.2001) (<HOLDING>). The Hays court’s reasoning that “there is no Holdings: 0: holding that a settlement agreement is an arbitrable subject when the underlying dispute is arbitrable 1: holding that claims brought under section 10b of the securities exchange act and rico claims were arbitrable 2: holding that preferential transfer claims brought under section 547 are not arbitrable 3: holding that unfair competition claims are arbitrable 4: holding that claims under the securities act of 1933 are arbitrable | [
"4",
"0",
"1",
"3",
"2"
] | [
"2"
] |
stressed that an employer can be vicariously liable for conduct of an employee that was (1) done in furtherance of the employer’s business or at least partly motivated by an intention to serve the employer; (2) of the kind that the employee was employed to perform; (8) substantially within the authorized “time and space” limits of the employment; or (4) expectable in view of the employee’s duties. Booker v. GTE.net LLC, 350 F.3d 515, 518-19 (6th Cir.2003) (applying Kentucky law). As an initial matter, I note that RWT is not necessarily relieved of vicarious liability for malicious prosecution solely because it is an intentional tort. There are numerous decisions finding employers vicariously liable for the intentional torts of their employees. See, e.g., Patterson, 172 S.W.3d at 363 (<HOLDING>); Frederick v. Collins, 378 S.W.2d 617 Holdings: 0: holding that a car dealership could be held vicariously liable for the intentional tort of its employee who shot out the tires of the plaintiffs truck during a repossession attempt 1: holding a store vicariously liable for wrongful death when its employee shot and killed a customer 2: holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability 3: holding that the doctrine of respondeat superior in maryland allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship citations omitted 4: holding that auctioneer who handled sale of car between seller and buyer could not be held liable for allegedly defective condition of car | [
"2",
"4",
"1",
"3",
"0"
] | [
"0"
] |
supreme court. That court should decide if the subsequent case law in this area would cause a re-evaluation of the conclusion reached in 1985. See Valerio v. Bayer, Case No. 98-99033 [2000 WL 425016] (9th Cir. April 19, 2000) (a Nevada case in which the court upheld the Nevada Supreme Court’s ability to limit the unconstitutional depravity instruction and affirm the sentence). Moreover, since this court has already upheld an aggravating factor, it is not necessary for it to reach the ultimate conclusion on this issue. The court notes, however, that all of the evidence related to torture and Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991) (same); see also McKenna v. McDaniel, 65 F.3d 1483, 1487-90 (9th Cir. 1995) (<HOLDING>). The Nevada Supreme Court’s holding, on Holdings: 0: holding that an aggravating circumstance in the georgia death penalty statute was unconstitutionally vague 1: holding factor b is not unconstitutionally vague 2: holding that oklahomas especially heinous atrocious or cruel aggravating circumstance was unconstitutionally vague 3: holding a similar nevada aggravating circumstance unconstitutionally vague under godfrey 4: holding unconstitutionally vague under the reasoning of godfrey an aggravatingcircumstances instruction directing jurors to determine whether the murder was especially heinous atrocious and cruel | [
"2",
"0",
"4",
"1",
"3"
] | [
"3"
] |
The West court fundamentally altered products liability law in Florida by creating a new products liability tort action — strict liability in tort — out of the prior breach of implied warranty cases which had done away with privity of contract. In so doing, West necessarily swept away such no-privity, breach of implied warranty cases in favor of the new action of strict liability in tort. Stated differently, the doctrine of strict liability in tort supplants all no-privity, breach of implied warranty cases, because it was, in effect, created out of these cases. This ground-breaking holding, however, did not result in the demise of the contract action of breach of implied warranty, as that action remains, said the West court, where privity of contract is shown. Id. at 692 (<HOLDING>). The Florida Supreme Court later affirmatively Holdings: 0: holding breach of contract claim not preempted as a straightforward breach of contract action as it alleged violation of specific covenant 1: holding that a cause of action for breach of contract accrues at the time of the breach 2: holding that breach of good faith and fair dealing claim requires showing of breach of contract 3: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 4: holding that breach of implied warranty action exists solely as a contract remedy which of necessity requires a privity of contract showing as an essential element of the action | [
"2",
"0",
"3",
"1",
"4"
] | [
"4"
] |
assembly is not a motor vehicle under Chapter 601. Applying the common usage of the term and the definition in Chapter 601, we conclude that physical contact with a detached axle and tandem wheels is not actual physical contact with a motor vehicle under the unidentified motor vehicle provision. Elchehimi also argues that this collision involved a legally recognized substitute for the statute’s actual physical contact requirement. In Latham v. Mountain States Mutua of contact with parts of the vehicle itself, rather than simply cargo, has concluded that such contact is also not enough to satisfy this strict requirement. See Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 WL 21391534, at *1, 2003 Tex.App. LEXIS 5056, at *6-8 (Tex.App.-San Antonio June 18, 2003, pet. denied) (<HOLDING>). We agree that a collision with a separated Holdings: 0: holding that collision between the claimants vehicle and a steel pipe dropped from an exiting truck was not actual physical contact with a motor vehicle 1: holding that collision between loading ramp that detached from trailer and insureds vehicle was not actual physical contact with a motor vehicle 2: holding that water pump falling from truck and striking insured was not actual physical contact with a motor vehicle 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 the physical contact needed to support a direct claim against an uninsured motorist carrier pursuant to nc gen stat 2027921 existed where the physical contact arose between the hitandrun vehicle and plaintiffs vehicle through intermediate vehicles involved in an unbroken chain collision which involved the hitandrun vehicle | [
"2",
"0",
"4",
"3",
"1"
] | [
"1"
] |
was error not to have allowed it. Judgment of the Court of Special Appeals reversed, and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Montgomery County and remand the case for a new trial. Costs to be paid by Montgomery County. 1 . With respect to a few offenses, the Legislature has resolved the matter by statute. See Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 616. 2 . The Turberville court found it proper for a defense counsel in that case to argue in his closing presentation, that one of the several defendants should be convicted of a lesser offense than that charged. Turberville, supra at 404, 303 F.2d at 411. Compare Roberts, supra, and Turberville with People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973) (<HOLDING>). Rodowsky, J., concurring in part and Holdings: 0: holding that prior convictions relevant only to the sentencing of an offender found guilty of the charged crime do not need to be charged in an indictment or proven to a jury beyond a reasonable doubt 1: holding but offering no authority for the position that the defense counsel could neither argue nor receive an instruction distinguishing the crime charged from a lesserunincluded offense not charged 2: holding that admission of prior crime similar to the one charged increases likelihood that jury will convict based on past pattern of behavior rather than on facts of charged offense 3: holding that fedrevid 404b does not restrict evidence of crimes that arose out of the same series of transactions as the charged offense or that are necessary to complete the story of the charged crime 4: holding it is fundamental error to convict a defendant of crime not charged and which is not a lesser included offense of the charged crime | [
"0",
"3",
"2",
"4",
"1"
] | [
"1"
] |
Clause of the United States and Texas Constitutions. The State counters that Sony failed to preserve this issue for appeal because Sony did not assert in the trial court that the statute was facially void or void as applied to him. When challenging the constitutionality of a statute for vagueness, there are two types of challenges: (1) an “as applied” challenge, involving whether a statute is unconstitutional as applied to a defendant’s particular conduct, and (2) a “facial” challenge, involving whether a statute is unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex.App.-Texarkana 2003, no pet.). Texas law is clear that an “as applied” challenge cannot be raised for the first time on appeal. See, e.g., Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995) (<HOLDING>); Garcia v. State, 887 S.W.2d 846, 861 Holdings: 0: holding appellant waived his challenge to statute as vague as applied because he did not specifically object at trial 1: holding that defendant must object at trial to preserve as applied challenge for appeal 2: holding that appellant forfeited his complaint regarding his sentence because he did not object at trial 3: holding that appellant by failing to object to commissioners authority before or at the administrative hearing waived any challenge 4: holding that appellant forfeited his complaint regarding his postadjudication sentence because he did not object at trial or present his motion for new trial | [
"1",
"4",
"2",
"3",
"0"
] | [
"0"
] |
a reasonable worker from whistleblowing. And while Defendants muster a couple of easily distinguishable cases to support their argument to the contrary, none of those mandates a holding that reassignments that increase commute time and costs and decrease pay are insufficient, as a matter of law, to support a retaliation claim. We hold that Smith has successfully pled retaliation under Section 3730(h). The district court thus erred when it granted Defendants’ motion to dismiss that claim. V. In sum, we hold that the district court erred when it dismissed Counts I, II, and IV of Smith’s complaint with prejudice. In light of this holding, the district court’s award of costs to Defendants is also improper. Cf. Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 706 (4th Cir.1993) (<HOLDING>); Fed.R.Civ.P. 54 (“Unless a fed eral statute, Holdings: 0: holding that dismissal of a pro se complaint for failure to state a claim should generally be without prejudice but if the plaintiff has been given an opportunity amend his complaint and fails to do so the dismissal may be with prejudice 1: holding that the parties stipulation of dismissal with prejudice was a final judgment 2: holding that the district court had discretion where plaintiff sought to amend a count that had been dismissed with prejudice 3: holding that defendant was a prevailing party eligible to receive costs where there had been a dismissal with prejudice 4: holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice | [
"4",
"0",
"2",
"1",
"3"
] | [
"3"
] |
motion.”). 4 . United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quotation marks, citation, and emphasis omitted) 5 . United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (quotation marks omitted and alterations adopted). 6 . Id. (quotation marks omitted). 7 . Delgado, 672 F.3d at 332; see also United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) ("The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.”) (quotation marks omitted). 8 . Bowen, 818 F.3d at 188. 9 . United States v. Parada-Talamantes, 32 F.3d 168, 169-70 (5th Cir. 1994); see also United States v. McCall, 553 F.3d 821, 825-27 (5th Cir. 2008) (finding that the prosecution had introduce Cir. 1995) (per curiam) (table) (<HOLDING>). Because Covarrubia was issued before January Holdings: 0: holding that although portion of trial courts jury charge was inapplicable any error in providing it was harmless in light of the fact that charge considered as a whole was not likely to confuse or mislead the jury 1: holding that admission of hearsay constituted harmless error when there was more than sufficient other evidence in the record to support the verdict 2: holding that improper use of a summary chart was harmless because the evidence was merely cumulative and there was overwhelming evidence of the charged crime 3: holding that although the instruction at issue could have been worded more specifically the jury instructions as a whole did not mislead the jury as to the law 4: holding that admission of a summary chart was harmless because it was clear that the summary did not mislead the jury and the evidence introduced at trial was more than sufficient to prove the elements as to each defendant | [
"3",
"0",
"2",
"1",
"4"
] | [
"4"
] |
and received interline shipments to and from Texas and sent sales people to Texas to develop business, negotiate contracts and service national accounts: Wilson v. Belin, 20 F.3d 644, 651 (5th Cir. 1994)("Even if [the defendant's] contacts with Texas via his short-lived malpractice insurance arrangement through a Texas law firm and his multi-year pro bono association with the historical society were arguably continuous, we hold that they were not substantial enough to warrant the imposition of general personal jurisdiction over him.”); Access Telecom, 197 F.3d at 717 (in order to confer general jurisdiction it is not sufficient that a corporation do business in Texas; it must have a business presence in Texas); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 218 (5th Cir. 2000)(<HOLDING>). Johnston, 523 F.3d at 610-12 (concluding that Holdings: 0: holding there was no general jurisdiction when there was no evidence that defendants advertised or promoted their goods or services in texas solicited business in texas sold their goods or services to a texas entity established a general business office or general business presence in texas or targeted texas markets 1: 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 2: holding sending two employees to work in texas and using an office in texas for limited purposes did not support finding of general jurisdiction 3: holding that general jurisdiction did not exist where the defendant occasionally sold products to entities in texas that used the defendants products for projects in texas and the defendants employees made field visits to texas between december 1992 and december 1993 4: holding that isolated trips to texas more than 1500000 in purchases from texas vendors and two contracts with texas entities were not substantial enough to support general jurisdiction | [
"0",
"1",
"2",
"4",
"3"
] | [
"3"
] |
859 So.2d 553 (Fla. 1st DCA 2003). Because appellant in the instant case entered a non-bargained for, “straight up” plea, without expressly waiving his right to a later appeal premised on a double jeopardy issue, his plea did not amount to a waiver. See Novaton, 634 So.2d at 609; see also Williamson, 859 So.2d at 554-55. Concerning the issue of double jeopardy, settled precedent establishes that an appellant may not be charged with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search. § 775.021(4), Fla. Stat. (2005); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982), abrogated on other grounds by Gibbs v. State, 676 So.2d 1001, 1002 (Fla. 4th DCA 1996) (<HOLDING>); Lundy v. State, 596 So.2d 1167, 1168 (Fla. Holdings: 0: holding that jurys failure to find the defendant guilty of possession of marijuana could not be reconciled with a verdict of guilty of possession of marijuana with intent to purchase 1: holding that possession of marijuana is not protected by the free exercise clause of the first amendment 2: holding that the arresting officer lacked probable cause to arrest defendant a rear seat passenger of a car for possession of marijuana based on the discovery of two marijuana seeds in the front of the vehicle 3: holding that a defendants conviction for two possession of marijuana counts could not be supported by his possession of two marijuana cigarettes dropped from his hand and again for his possession of several packets of marijuana found in a nearby jacket during the same search 4: holding that officers had objective probable cause to search the pocket of a jacket found on the seat of the defendants truck where the discovery of marijuana in two different locations in the truck combined with the defendants possession of marijuana reasonably led officers to believe that other caches would be found elsewhere in the vehicle | [
"2",
"4",
"0",
"1",
"3"
] | [
"3"
] |
Guidelines Manual § 4B 1.2(a) (2004). Other sections have yet another definition. See, e.g., Sentencing Guidelines Manual § 2L1.2 Cmt., Application Note l(B)(iii) (2004). 7 .The difference is that, in the definition of "crinie of violence,” the use of force can be against another’s property; on the other hand, in the ACCA, property is not mentioned. Compare 18 U.S.C. § 16(a) with id. § 924(e)(l)(B)(i). 8 . In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), the Seventh Circuit provided an additional reason for this conclusion. Examining the term "crime of violence" in § 4B1.2 of the United States Sentencing Guidelines (which is almost identical to the ACCA), the court found that the first prong requires a specific intent. Id. at 372-374. It further reasoned that 5 (4th Cir.2001)(<HOLDING>). But see Sentencing Guidelines Manual § 4B1.4 Holdings: 0: holding that burglary is violent felony 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 that our reasoning regarding the meaning of violent felony is relevant to determining the meaning of crime of violence because the definitions are almost identical 3: 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 4: holding that sexual abuse of a minor is a violent crime within the meaning of the sentencing guidelines and noting that definitions of crime of violence in 18 usc 16 and ussg 4b12 differ slightly finding reyescastro to be persuasive in its 4b12 analysis | [
"3",
"1",
"4",
"0",
"2"
] | [
"2"
] |
she was required to stand “at some points” but “not all day” while substitute teaching. (Id. at 15). In sum, the evidence of record demonstrates that Plaintiff may have a diminished tolerance for a normal daily activity, but the record does not demonstrate that Plaintiffs condition substantially limits her major life activity of standing. See Chanda, 234 F.3d at 1222. The Court now turns to the question of whether Plaintiffs congenital heart disease substantially limits her major life activity of lifting. In her first deposition, Plaintiff testified that she has been restricted from lifting items weighing more than thirty pounds. (First Reis Depo. at 17). Plaintiff is able to engage in basic personal activities. She can bathe herself, prepare her own , 101 F.3d 346, 349 (4th Cir.1996) (<HOLDING>); Aucutt v. Six Flags Over Mid-Am., Inc., 85 Holdings: 0: holding that a lifting restriction did not substantially limit a computer technicians ability to engage in the major life activity of working 1: holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity 2: holding that a twentyfive pounds lifting restriction did not substantially limit any major life activities 3: holding that a permanent lifting restriction of no more than twentyfive pounds on a continuous basis is not substantially limiting 4: holding as a matter of law that a permanent twentyfive pound lifting restriction does not constitute a significant restriction on ones ability to lift work or perform any other major life activity | [
"2",
"3",
"1",
"0",
"4"
] | [
"4"
] |
S.Ct. 695, 172 L.Ed.2d 496 (2009);Hudson v. Michigan, 547 U.S. 586, 594-99, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Here, that task is simple. The deterrence benefit of suppressing the evidence will “ensure that an occupant’s right to privacy [in his home] is protected, and that his ... dignity [will be] preserved.” See United States v. Thompson, 667 F.Supp.2d 758, 768 (S.D. Ohio 2009). These twin concerns will grow more important, not less, as immigration plays an increasingly central and vitriolic role in our public discourse. The Court, therefore, finds great deterrence benefit in ensuring that law-enforcement officers know the bounds of their authority under the Fourth Amendment and federal immigration law. See United States v. Toledo, 615 F.Supp.2d 453, 464 n.5 (S.D.W. Va. 2009) (<HOLDING>). Suppressing the tainted evidence in this case Holdings: 0: recognizing due consideration to be given attorney general decisions especially in cases involving tpia 1: holding that deterrence benefits are clear in criminal cases involving immigration law given congressionally mandated restrictions on lawenforcement power 2: recognizing that generally pennsylvania applies decisions involving changes in the law in civil cases retrospectively le to cases pending on appeal 3: holding that although wade hearing may be constitutionally mandated under certain circumstances it is not mandated in all cases 4: holding that the clear and convincing standard provides appropriate due process in cases involving parental rights | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
injury, were the result of the December fall, an occurrence which is not a subject of the claims before us. As to the hip, Dr. Paff attributed one-third of her disability to the preexisting condition, one-third to the June, 1992 fall, and one-third to the December fall. Dr. Hufft testified that Claimant had no shoulder or sacroiliac joint injuries, and that her knee problem was caused by the problem in her hip. He concluded that the condition of Claimant’s hip was not caused by the falls, and that she sustained no permanent partial disability as a result of them. Claimant argues that the aggravation of a preexisting condition may result in a compen-sable condition. We do not dispute the validity of this general premise. See Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App. E.D.1994) (<HOLDING>). While Claimant presented the testimony of Dr. Holdings: 0: holding on rehearing that exclusion for disabilities caused by a preexisting medical condition would not support denial of benefits caused by staph infection resulting from surgery for a preexisting condition 1: holding that treatment for symptoms of undiagnosed multiple sclerosis activated the preexisting condition exclusion and stating that there is no requirement that a diagnosis definite or otherwise of the preexisting condition must be made during the preexisting condition period 2: holding that the preexisting duty exception does not apply where the preexisting duty is a limited one and the alleged negligence is the failure to provide a level of assistance beyond that required by the preexisting duty 3: holding that receiving advice or treatment during the exclusionary period for a condition which proves to be the same condition the claimant seeks benefits for qualifies as a preexisting condition regardless of whether there was an accurate diagnosis 4: holding that a preexisting but nondisabling condition does not bar recovery of compensation if a jobrelated injury causes the condition to escalate to the level of disability | [
"1",
"3",
"0",
"2",
"4"
] | [
"4"
] |
or commentary which restricts application of § 3C1.1 only to situations in which the defendant directly threatens a witness or communicates the threat to a third party with the likelihood that it will in turn be communicated to the witness.”); United States v. Bradford, 277 F.3d 1311, 1314-15 (11th Cir.2002) (expressly rejecting the holding in Brooks and concluding that communicating a threat directly to a witness is not required to support application of the obstruction-of-justice enhancement); United States v. Jackson, 974 F.2d 104, 106 (9th Cir.1992) (“Where a defendant’s statements can be reasonably construed as a threat, even if they are not made directly to the threatened person, the defendant has obstructed justice.”); United States v. Capps, 952 F.2d 1026, 1028 (8th Cir.1991) (<HOLDING>); United States v. Shoulberg, 895 F.2d 882, 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 because 3c11 applies to attempts to obstruct justice it is not essential that the threat be communicated to the target 2: holding that to be actionable the words must be communicated or published to someone other than the plaintiff 3: holding that the question of recusal of a supreme court justice is to be left to the individual justice 4: holding that it is not | [
"3",
"0",
"2",
"4",
"1"
] | [
"1"
] |
by an attorney in the family court, as were these parties) who is dissatisfied with the outcome of a child custody battle knows that there is very little likelihood that a family court will change its decision when reminded of its obligation to make specific findings, and few will pursue that route if not required to do so before seeking appellate review. Instead, this opinion permits a litigant who loses in the trial court to simply appeal and try to secure a more favorable outcome before a different judge when the child custody determination is inevitably vacated and the case remanded. At a time when the Arizona Supreme Court has recently limited the use of this type of litigation tactic in criminal cases, see State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (<HOLDING>), we should not expand its use in civil cases. Holdings: 0: holding that a defendant who fails to object to trial error forfeits his right to appellate review unless he can establish fundamental error 1: holding that defendant forfeits right to have issue considered on appeal when he fails to object to misconduct at trial 2: holding that where a defendant fails to challenge his plea in district court he must establish plain error 3: holding that a defendant who fails to object to an error at a plea colloquy hearing must satisfy the plain error rule 4: holding that absent fundamental error one who fails to appeal when placed on probation waives his right to review | [
"3",
"2",
"1",
"4",
"0"
] | [
"0"
] |
174 P.3d 706 (2008), the Washington Court of Appeals considered whether the forensic search of a computer which extended beyond ten days was unconstitutional. The officers obtained a search warrant on March 5 to search Grenning’s residence for his computer. On March 6 the officers entered Gren-ning’s residence and seized his computer. The officers conducted continuing forensic examinations of the computer for more than ten days after the date the search warrant had been issued. The court noted that, because computer searches usually occur at different locations than where the computer is seized and involve more preparation and expertise than an ordinary search, delays in the forensic examination of computers are expected and reasonable. Id., at 713-14. The court he 481 (D.P.R.2002) (<HOLDING>); Commonwealth v. Kaupp, 453 Mass. 102, 899 Holdings: 0: holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises 1: holding anticipatory warrant for search of defendants home was invalid because facts made known to magistrate did not establish at time warrant was issued the required nexus between the contraband to be seized which was mailed to defendants post office box and defendants home 2: holding the search of a computer after the warrant had expired constitutional because despite the delay probable cause for the search continued to exist 3: holding that if police conduct unconstitutional searches that acquire information used to obtain a search warrant then evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree 4: holding the search of defendants home took place within the time designated in the warrant and later examination of computer disks seized did not make the search unconstitutional | [
"0",
"1",
"3",
"2",
"4"
] | [
"4"
] |
risk of equine activities, as defined in § 6 — 5—337(b)(6). Estes does not dispute that the horse became startled, and he did not argue before the trial court that Croxton’s failure to assess A.G.E.’s riding ability was a cause of the accident. Estes’s contention is that the defendants are not entitled to immunity under the Equine Act because the defendants “made no attempt to assess what type of rider the minor child was, let alone whether she should have even been on the horse in the first place. Without the defendants fulfilling their obligations, i.e., inquiring to a rider’s ability and handling the horse in accordance with such abilities, the defendants are not entitled to the protection of the Act. See Willeck ex tel. Willeck v. Mrotek, Inc., 616 N.W.2d 526 (Wis.App.2000) (<HOLDING>).” In support of this argument, Estes cites Holdings: 0: holding the act inapplicable to the united states in its role as employer 1: holding equine activities liability act immunity inapplicable because the sponsor did not find out riders actual ability before matching horse with rider 2: recognizing that under texas law governmental immunity embraces two principles immunity from liability and immunity from suit 3: holding immunity from liability is not jurisdictional 4: holding that the tucker act does not waive the governments sovereign immunity for federal reserve activities | [
"4",
"0",
"3",
"2",
"1"
] | [
"1"
] |
the shooting which resulted in Mendez’s death. {32} Defendant is liable for the crime of first-degree depraved-mind murder whether or not he fired the fatal shot. It appears that in this case the jury rejected Defendant’s version of the incident, and we will not substitute our judgment for that of the jury. We hold that sufficient evidence exists, to affirm Defendant’s conviction of first-degree depraved-mind murder on either a principal or accessory liability theory. V. {33} Defendant was charged and convicted of conspiracy to commit a first-degree depraved-mind murder. The State concedes that this conviction must be vacated because this Court has explicitly held that this is not a cognizable crime in New Mexico. We agree. See Baca, 1997-NMSC-059, ¶ 51, 124 N.M. 333, 950 P.2d 776 (<HOLDING>); cf. State v. Varela, 1999-NMSC-045, ¶ 42, 128 Holdings: 0: holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder 1: holding that a conviction for conspiracy to commit firstdegree depravedmind murder could not stand under current case law because conspiracy requires both intent to agree and intent to commit the offense which is the object of the conspiracy and depravedmind murder is an unintentional killing resulting from highly reckless behavior 2: holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill 3: holding that an individual cannot attempt to commit murder of the second or third degree because the crime of attempt is a specific intent crime and an attempt to commit second or third degree murder would require proof that the individual intended to perpetrate an unintentional killing which is logically impossible 4: holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy | [
"2",
"0",
"4",
"3",
"1"
] | [
"1"
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.