input
stringlengths 15
850k
| references
sequence | gold
sequence |
|---|---|---|
it indicated so unequivocally.” United States v. Picklesimer, 585 F.2d 1199, 1203 (3rd Cir.1978). It would violate both congressional intent and longstanding practice for us to infer quantity limitations where no such limitations are affirmatively stated. This straightforward interpretation of the provision makes sense of the language. Although the linguistic conventions of the regulation are not entirely consistent, it appears that phrases based on the effect of the substance are included in the legal description when the category is denominated by a term based on its effect on users — for example, “stimulant” or “depressant” — and not when the category is denomin ilar language was merely a description of the listed drugs); United States v. White, 560 F.2d 787, 789 (7th Cir.1977) (<HOLDING>); United States v. Nickles, 509 F.2d 810 (5th Holdings: 0: holding that an unconstitutional act of congress has no legal effect 1: holding that where congress has directed the agency to issue a rule without regard to any other provision of statute or regulation that applies to issuance of such rule congress has amended the law and does not offend the constitution 2: holding that a customer list may be protectable as a trade secret if it is secret and the court examines and determines if it is protectable based on three factors 1 what steps if any an employer has taken to maintain the confidentiality of a customer list 2 whether a departing employee acknowledges that the customer list is confidential and 3 whether the content of the list is readily ascertainable 3: holding that cfr 130812d is a list of drugs that congress has determined to have a stimulant effect on the central nervous system 4: holding to the same effect | [
"2",
"1",
"4",
"0",
"3"
] | [
"3"
] |
Nissan removed the appeal to the United States District Court, Central Division, which action is CIV. 05-3018. [¶ 15] In CIV. 05-1015, Billion was added as an additional plaintiff and an amended complaint was allowed. QUESTIONS OF STANDING IN APPEAL FROM ADMINISTRATIVE RULING [¶ 16] I turn now to the Central Division case, the appeal from the administrative decision. The first question to be addressed in that case is the question of “standing.” General principles will first be addressed. Standing is a threshold matter that, if absent, prevents this court from exercising jurisdiction. Arkansas Right to Life State Political Action Comm. v. Butler, 146 F.3d 558, 560 (8th Cir.1998). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 1012-13, 140 L.Ed.2d 210 (1998) (<HOLDING>). The Constitution requires a party to satisfy Holdings: 0: holding that because article iii standing is jurisdictional it must be decided before other legal issues 1: holding that article iii standing is not a prerequisite to intervention 2: holding that federal courts may not consider other issues before resolving standing an article iii jurisdictional matter 3: holding that a court can dismiss a case under forum non conveniens before resolving any other jurisdictional issues 4: holding that article iii standing is necessary for intervention | [
"3",
"0",
"4",
"1",
"2"
] | [
"2"
] |
Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to prevail as a matter of law. Rule 56(c), SCRCP; Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). “In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn. from the evidence in the light most favorable to the nonmoving party.” David v. McLeod Reg’l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). A motion for summary judgment on the basis of the absence of a duty is a question of law for the court to determine. See Doe v. Greenville County Sch. Dist., 375 S.C. 63, 72, 651 S.E.2d 305, 309 (2007) (<HOLDING>). LAW/ANALYSIS Oblachinski contends the circuit Holdings: 0: recognizing that the critical question is whether any present violation exists 1: holding that the question whether a cause of action exists is not a question of jurisdiction and therefore may be assumed without being decided 2: holding that such a duty exists 3: holding that the question of whether an existing constitutional right is infringed is strictly a question of law 4: recognizing that whether a duty exists is a question of law for the courts | [
"2",
"1",
"3",
"0",
"4"
] | [
"4"
] |
thirty-day limit of § 3161(h)(l)(J)). The fact that pre trial motions are pending, standing alone, does not necessarily toll the speedy trial clock indefinitely; the motions must require a hearing under § 3161(h)(1)(F) if indefinite tolling is to occur. See generally United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir.1994) (providing an overview of the proper interplay between §§ 3161(h)(1)(F) and (J)). It appears that we have implicitly agreed with the several circuits that have consistently interpreted § 3161(h)(7) to provide that all defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant and that the excludable delay of one codefendant may be attributed to all defendants. United States v. Neal, 27 F.3d 1035 (5th Cir.1994) (<HOLDING>); see also United States v. Arbelaez, 7 F.3d Holdings: 0: holding that the clock was tolled from the day the lastarraigned defendant appeared before a judicial officer because at that time several defendants already had filed pretrial motions and pretrial motions of some type remained pending for over two years 1: holding in part that the presumption of public access attaches to pretrialnondiscovery motions whether preliminary or dispositive and the materials briefs and documents filed with the court in support of or in opposition to such motions but not to pretrial discovery motions 2: holding that there is a presumptive common law right to public access to all material filed in connection with nondiscovery pretrial motions but no such right as to discovery motions and their supporting documents 3: holding that although the defendant filed a number of motions because the original trial date never changed as a result of those motions no delay could be attributed to the motions 4: holding delays caused by numerous defense pretrial motions and defendants motion to continue do not weigh against the government | [
"4",
"3",
"2",
"1",
"0"
] | [
"0"
] |
and she had complaints from writing bad checks; (4) Latonya Bush— excluded because related to a murder suspect who had been arrested and worked for defense attorney; (5) Diane Saffore— excluded because disagreed with the death penalty; (6) Darlene Edwards — excluded because disagreed with the death penalty; (7) Shirley Blevins — excluded because a relative was convicted of capital murder in that county and she or one of her family members was represented by defense counsel, Burdine; (8) Joyce Ann Cox— excluded because previously arrested for shoplifting. The trial court found that the reasons proffered by the State were race-neutral. ¶ 13. We find that the reasons articulated by the State are race-neutral. This Court has previously sanctioned these reasons. See Mack, 650 So.2d at 1300 (<HOLDING>); Lockett v. State, 517 So.2d at 1351 (holding Holdings: 0: holding that opposition to a gangs criminal activity is not a protected political opinion 1: holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty 2: recognizing a distinction between pure opinion which does not imply that it is based upon undisclosed facts and mixed opinion which implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it 3: holding that it is proper to exclude potential venire persons for criminal activity and based upon opinion of the death penalty 4: holding that the death penalty is unconstitutional as applied to juvenile defendants | [
"1",
"2",
"0",
"4",
"3"
] | [
"3"
] |
346 Ill. at 258. The promise does not have to be for the sole benefit of the third party as long as it is for its direct or substantial benefit. Town & Country Bank of Springfield v. James M. Canfield Contract hat an agreement in which the third party was identified as the user of the building being constructed and given the authority to consult with the contractor and revise the drawings and specifications was for the direct benefit of the user); (3) Bates & Rogers, 109 Ill. 2d at 233-34 (concluding that one party to the contract intended to extend the benefit of an exculpatory clause to its engineer where the contract described the relationship between the party and the engineer and specified the responsibilities of the engineer in detail); (4) XL Disposal, 168 Ill. 2d at 360-61 (<HOLDING>); (5) East Peoria Community High School Holdings: 0: holding that an order imposing sanctions against an attorney for one of the parties in a pending case is final and therefore immediately appealable by the attorney 1: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable 2: holding contract for sale of law practice which included duty on part of selling attorney to refer clients as consideration for the sale violated rpc 3: holding that an agreement in which one party promised to make monthly payments to the other partys attorney as part of an asset sale contract was for the direct benefit of the attorney 4: holding attorney general could not contract on behalf of the state to employ an assistant attorney beyond the attorney generals own term | [
"2",
"4",
"1",
"0",
"3"
] | [
"3"
] |
for detrimental reliance upon the County’s issuance of BP2005-70, occupational tax certificates, and representations by County officials. Again, we agree. Lewis cannot state a claim for detrimental reliance where, as here, the County erroneously issued the permit for a “commercial” outbuilding. The issuance of a permit was permissible only for an outbuilding, i.e., an accessory structure for secondary uses, like a garage or storage. Loretta Riggins-Hylton, planning director of the County’s planning and building department, deposed that a commercial building would not qualify as an outbuilding. Since the permit was mistakenly issued, Lewis did not have a vested right to complete the construction of his building. Enviro Pro v. Emanuel County, 265 Ga. App. 309, 312 (593 SE2d 673) (2004) (<HOLDING>). Likewise, “[w]here a permit is issued by a Holdings: 0: holding that acts of promissory fraud which require proof that the defendants intended not to perform promised acts were not protected by stateagent immunity 1: holding admission of prior bad acts of child abuse was reversible error when the defendant did not have exclusive control over the children during the period when the prior bad acts occurred 2: holding that the acts of a corporate officer done in his or her official capacity are acts of the corporation 3: holding that party did not waive right to trial by jury by requesting directed verdict 4: holding ultra vires acts by chairperson did not vest right | [
"0",
"1",
"2",
"3",
"4"
] | [
"4"
] |
assistance, by persuading the court that there was no conceivable tactical basis for counsel's actions." Clark, 2004 UT 25 at T6, 89 P.3d 162 (alteration, citation, and quotations omitted). Marble's bare assertion that "[tlhere is no conceivable trial strategy to elicit and then allow that type of testimony especially when the case hinged on the vie-tim's credibility," does not rebut this presumption. {12 Utah courts have recognized that when viewing "the variety of cireumstances faced by defense counsel," a conscious choice not to object to arguably inadmissible testimony may, at times, fall within "the range of legitimate decisions regarding how best to represent a criminal defendant," Strickland, 466 U.S. at 689, 104 S.Ct. 2052. See, eg., State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (<HOLDING>); State v. Pecht, 2002 UT 41, ¶ ¶ 40-44, 48 Holdings: 0: holding that trial counsel made a reasonable tactical decision not to object to damaging testimony as it would merely serve to highlight the testimony 1: holding that even if the alleged failure to present mitigating evidence was an oversight and not a tactical choice by counsel it was harmless 2: holding that counsel may well have made a reasonable tactical choice to not object to arguably inadmissible testimony 3: holding that pretrial motions in limine were not feasible because counsel could not have anticipated inadmissible testimony 4: recognizing the wide latitude counsel must have in making tactical decisions and that strategic choices made after less than complete investigation may be reasonable if reasonable professional judgments support the limitations on investigation | [
"0",
"1",
"4",
"3",
"2"
] | [
"2"
] |
for tortious interference of contract, it is axiomatic that there must be a breach of contract by the other party.” Jack L. Inselman & Co. v. FNB Financial Co., 41 N.Y.2d 1078, 396 N.Y.S.2d 347, 349, 364 N.E.2d 1119, 1120 (1977). Inselman was cited by the Court of Appeals with approval and its holding affirmed as late as March 26, 1996. NBT Bancorp Inc. et al. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 620-21, 641 N.Y.S.2d 581, 584-85, n. 1, 664 N.E.2d 492 (N.Y.1996) (distinguishing between tortious interference with contract and tortious interference with prospective contractual relations and holding that the former requires that there be a breach of the contract). See also Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 934, 612 N.E.2d 289, 292 (N.Y.1993) (<HOLDING>). The Second Circuit has concurred in this Holdings: 0: holding that the statute of limitations for a claim of tortious interference with contractual relations begins to run when the contract in question has been breached 1: recognizing the tort of wrongful interference with anothers business relations 2: holding that there must be a tort distinguishable from or independent of the breach of contract in order for a party to bring a valid claim in tort based on a breach in a contractual relationship 3: holding that to sustain a claim under the tort of interference with contractual relations the plaintiff must inter alia show that the defendant intentionally induced the third party to breach or render performance impossible 4: recognizing the tort of interference with prospective contractual relations as a subspecies of the broader tort of interference with prospective economic advantage | [
"1",
"2",
"0",
"4",
"3"
] | [
"3"
] |
judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Furthermore, under the AEDPA, state-court determinations of factual issues “shall be presumed to be correct,” unless the petitioner rebuts the presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir.2000). Chief Judge Boudin reminded us in Fortini v. Murphy that AEDPA adopts a strict standard of review by federal courts to a claim adjudicated on the merits in state court proceedings. 257 F.3d 39, 47 (1st Cir.2001). Niland contends that the state court never addressed his constitu tional claim on the merits and therefore, the strict deferential standard of review is inapplicable. Id. (<HOLDING>). We disagree with Niland. A review of the Holdings: 0: recognizing that wiggins established de novo standard of review for any claim that was not addressed by the state courts 1: holding that de novo standard of review applies on federal claims never addressed by state courts 2: holding that appellant was entitled to a de novo review however he was not entitled to a de novo review of an argument never raised 3: recognizing de novo standard of review 4: holding that we review legal conclusions of the court of federal claims de novo | [
"3",
"0",
"2",
"4",
"1"
] | [
"1"
] |
an appellate court can review for plain error where the record is sufficiently developed. Id. at 10 n. 4. Similarly, in United States v. Hawkins, 249 F.3d 867, 871-72 (9th Cir.2001), although the Ninth Circuit C th Circuit colleagues refused to consider a challenge to a search warrant that was not raised to the district court. 887 F.2d 880, 885-86 (8th Cir.1989) (en banc) (citing Fed.R.Crim.P. 12). The Tenth Circuit Court likewise refused to consider a defendant’s suppression argument that his detention and the search of his car were unconstitutional because he raised the argument for the first time on appeal. United States v. Dirden, 38 F.3d 1131, 1139 n. 10 (10th Cir.1994) (citing Fed.R.Crim.P. 12(b)(3), (f)). But see United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991) (<HOLDING>). The Second Circuit Court followed the waiver Holdings: 0: holding that the district court committed plain error by admitting evidence obtained in violation of the fourth amendment where the error did affect a substantial right of the defendants and the admission of evidence which should have been excluded did have a prejudicial impact on the jury 1: holding that suppression issue was waived under rule 12 but then noting that the court did not find plain error in the district courts admission of the evidence 2: holding that suppression issue not raised to the district court was waived under rule 12 3: holding that the district court did not commit plain error in admitting physical evidence of the defendants prior drug arrest in addition to the fact of the arrest itself when the evidence was relevant under rule 404b and the district court gave a limiting instruction 4: holding that assuming suppression argument not waived there was no plain error | [
"2",
"0",
"3",
"4",
"1"
] | [
"1"
] |
in support of their motion, he insists that the Court cannot consider them, and the Privacy Policy in particular, on the ground that his claim does not depend on their contents. Pl.’s Opp’n at 13-14. The Court disagrees. Plaintiff alleges that he signed up to use Zimride but never consented to the disclosure of his personal information. But to use Zimride, Plaintiff necessarily had to agree with Zimride’s TOS and Privacy Policy, which clearly state that such information may, in fact, be disclosed. Because Plaintiffs claim necessarily depends on the application of Zimride’s policies — which relate directly to the issue of consent — the Court finds that these documents may appropriately be considered on a motion to dismiss. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (<HOLDING>); Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Holdings: 0: holding that a mere passing reference or even references however to a document outside the complaint does not on its own incorporate the document into the complaint itself citation omitted 1: holding that a court may consider a document submitted by a defendant in determining whether to dismiss the complaint because it was integral to and explicitly relied on in the complaint and because the plaintiffs do not challenge its authenticity 2: holding that a court ruling on a motion to dismiss may consider a document that is referenced in the complaint and is central to the plaintiffs claims 3: holding that in connection with a motion to dismiss the court may consider a document not attached to the pleadings where the plaintiffs claim depends on the contents of a document the defendant attaches the document to its motion to dismiss and the parties do not dispute the authenticity of the document even though the plaintiff does not explicitly allege the contents of that document in the complaint 4: holding that when a complaints factual allegations are expressly linked and admittedly dependent upon a document the authenticity of which is not challenged that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under rule 12b 6 | [
"4",
"1",
"0",
"2",
"3"
] | [
"3"
] |
Defendant Adolfo Barron-Galvan appeals his conviction for being found in the United States after having been removed, in violation of 8 U.S.C. § 1326(a), and the resulting sentence of 15 months’ imprisonment. We affirm. 1. Plain error did not occur when the government lawyer made certain statements at sentencing. See United States v. Maldonado, 215 F.3d 1046, 1051 & nn. 5-6 (9th Cir.2000) (<HOLDING>). The government stood by its recommendation of Holdings: 0: holding that plain error review applies where the defendant fails to object to the lack of an opportunity to allocute 1: holding that a defendant who fails to object to an error at a plea colloquy hearing must satisfy the plain error rule 2: holding that when a district court fails to provide reasons for imposing special conditions and the defendant fails to object we review for plain error 3: holding that where a defendant fails to challenge his plea in district court he must establish plain error 4: holding that we review for plain error whether the government breached its plea obligations when the defendant fails to object at sentencing | [
"2",
"3",
"1",
"0",
"4"
] | [
"4"
] |
Campbell argues that the, term “repair” as used in the limitation of liability clause encompasses diminished value. Urging that the term “repair” should not be interpreted narrowly to only cover physical repairs, Campbell states that “repair” should contemplate making the insured whole. Alternatively, Campbell argues that the language of the insurance policy is ambiguous. Campbell relies on a number of other states’ cases addressing first-party contract claims, wherein the courts have concluded |isthat coverage for diminished value is required either because of the plain meaning of the policy language or based on a finding that the language is ambiguous. Among the cases that Campbell cites are: MFA Ins. Co. v. Citizens National Bank of Hope, 260 Ark. 849, 545 S.W.2d 70 (1977), (<HOLDING>); Delledonne v. State Farm Mut. Auto. Ins. Co., Holdings: 0: holding that to find the measure of damages as the difference in market value immediately before and after the collision would be arbitrarily reading out of the policy the right of defendant to make repairs or replace the damaged part with materials of like kind and quality 1: holding that if the insurer cannot return the vehicle to substantially the same condition then the actual cash value is the appropriate measure where insured sued for damages caused by insurers inappropriate election to repair and the value after repairs was almost sixty percent less than its preloss value 2: holding that if repairs to a firedamaged vehicle with parts of like kind and quality would not restore the vehicle to its former market value the proper measure of damages was the difference in market value before and after the loss where the policy limited liability to the cost to repair or replace the property with other of like kind and quality less depreciation 3: holding that when the insurer elects to repair or replace the damaged part with other of like kind and quality less depreciation the insurer is obligated to put the automobile in substantially the same condition it was prior to the collision so as to render it as valuable and serviceable as before with the insured being compensated for any deficiency in loss of actual value 4: holding that unless the collision resulted in a total loss the measure of recovery is the difference between the fair market value of the vehicle in the condition in which it was immediately prior to the collision and its value thereafter | [
"0",
"3",
"4",
"1",
"2"
] | [
"2"
] |
(2007). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent the Commission’s finding from being supported by substantial evidence.” Id. LAW/ANALYSIS I. Injury to Lower Back First, Burnette asserts substantial evidence does not support the finding she did not injure her lower back in the June 2007 incident. We agree. An injured employee “who has a permanent physical impairment or preexisting condition” may receive benefits for a subsequent work-related disability if he establishes by a preponderance of the evidence that “the subsequent injury aggravated the preexisting condition or permanent physical impairment.” S.C.Code Ann. § 42-9-35 (Supp.2011); see also Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 436-37, 458 S.E.2d 76, 79 (Ct.App.1995) (<HOLDING>). Nonetheless, “an employee who suffers a Holdings: 0: recognizing the natural consequences flowing from a compensable injury absent an independent intervening cause are compensable as well as the aggravation of a preexisting condition infirmity or disease by a workrelated injury 1: holding that when a preexisting infirmity is aggravated by repetitive minute trauma as a result of the ordinary and necessary duties of employment the disability resulting from such aggravation is compensable as a personal injury under the workers compensation statute 2: holding that psychological conditions resulting from workrelated trauma are compensable 3: recognizing that a preexisting disease or infirmity of the employee does not disqualify a claim arising out of employment if the employment aggravated accelerated or combined with the disease or infirmity to produce disability for which compensation is sought 4: holding that although cause of dystonia unknown experts opinion regarding causation based on temporal relationship between plaintiffs workrelated injury and onset of condition was sufficient to support commission s finding that dystonia was caused by compensable injury | [
"4",
"3",
"1",
"2",
"0"
] | [
"0"
] |
Jordan, 356 B.R. at 660; LaBarge v. Ireland (In re Ireland), 325 B.R. 836, 838 (Bankr. E.D.Mo.2005); Katz v. Araujo (In re Araujo), 292 B.R. 19, 24 (Bankr.D.Conn. 2003). “Such a showing then imposes upon the debtor an obligation to explain [her] non-compliance.” Missouri ex rel. Nixon v. Foster (In re Foster), 335 B.R. 709, 716 (Bankr.W.D.Mo.2006). Whether a violation of a court order warrants a denial of discharge is a matter within the trial court’s discretion. Commerce Bank & Trust Co. v. Burgess (In re Burgess), 955 F.2d 134, 138 (1st Cir.1992) (finding that the bankruptcy judge who issues an order is in the best position to evaluate whether a delay in compliance warrants denial of discharge); Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir. 1985) (<HOLDING>); In re Jones, 490 F.2d 452 at 456 (5th Holdings: 0: holding a trial courts decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion 1: holding that the determination of whether statements are excited utterances is within the trial courts discretion and its ruling will be reversed only for an abuse of that discretion 2: holding that whether particular violations of its orders are so serious as to warrant a denial of discharge is a matter that is within the trial courts discretion 3: holding that such a decision was within the trial courts discretion 4: holding that denial of amendment is within discretion of trial court | [
"1",
"3",
"4",
"0",
"2"
] | [
"2"
] |
(1998), rev’d on other grounds, 175 F.3d 1365 (Fed.Cir.1999). Even though the Navy recognized that the procedure listed in the RFP was unnecessary, “the Navy [was] strictly bound by its terms....” Alfa Laval, 40 Fed.Cl. at 230. The appeals court noted that “in waiving a portion of the standard for [the winning bidder], the Navy violated a clearly applicable procurement statute and regulation.” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999). The Court of Appeals for the Federal Circuit ruled that the Navy was obligated to “evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation” Alfa Laval, 175 F.3d at 1367 (c 3d 1577, 1582 (Fed.Cir.1996)); see also Impresa Construzioni, 238 F.3d at 1332 (<HOLDING>); CACI, Inc.-Fed. v. United States, 719 F.2d Holdings: 0: holding that the definition of procurement under the tucker act is broader than the definition of procurement contract in the fgcaa such that an agency can engage in a procurement process for the purposes of the tucker act even though it is using a cooperative agreement instead of a procurement contract to memorialize the parties agreement 1: holding that if the procuring agencys decision lacked a rational basis or was made in violation of the applicable statutes regulations or procedures the court must then determine as a factual matter if the bid protester was prejudiced by that conduct 2: holding that without a valid reason for cancelling the procurement the government violated its duty to conduct a fair procurement 3: holding a bid award may be set aside if either 1 the procurement officials decision lacked a rational basis or 2 if the procurement procedure involved a violation of regulation or procedure 4: holding that as a matter of law where the procurement decision was rational a reviewing court may not award injunctive relief despite the presence of procedural irregularities in the procurement process | [
"4",
"1",
"0",
"2",
"3"
] | [
"3"
] |
theory that the district court rejected before. Gore does not point to any change in the relevant law. This is also not a case in which the district court made findings on remand th nts, or any interest therein, shall be assignable by law in an instrument in writing.”) (emphases added). However, BPV has never claimed that in 2003 it had all substantial rights to the '135 patent. BPV’s position is only that it was an exclusive licensee with the right to sue for infringement. It is well established that the grant of a license does not need to be in writing. See Waymark Corp. v. Porta Sys. Corp., 334 F.3d 1358, 1364 (Fed.Cir.2003) (“Only assignments need be in writing under 35 U.S.C. § 261. Licenses may be oral.”); Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1552 (Fed.Cir.1995) (en banc) (<HOLDING>). In any event, in 1997 there was a Holdings: 0: holding that to be an exclusive licensee a party may rely on either an express or implied promise of exclusivity 1: holding that a contract for an exclusive agency to market a product contains an implied promise to use all reasonable efforts to market the product 2: holding that the other source of law might be a moneymandating constitutional provision statute or regulation that has been violated or an express or implied contract with the united states 3: holding that an implied contract may not be found if there is an express contract between the same parties on the same subject matter quoting 42 cjs implied and constructive contracts 34 p 33 4: holding that a promise to make a loan is not covered by 1823e because a promise is not an asset | [
"3",
"4",
"1",
"2",
"0"
] | [
"0"
] |
quotation marks omitted). Substantive reasonableness pertains to “whether the length of the sentence is reasonable in light of the factors contained in 18 U.S.C. § 3553(a).” Id. “We apply a rebuttable presumption of reasonableness to a below-guideline sentence challenged by the defendant 'as unreasonably harsh.” United States v. Ray, 704 F.3d 1307, 1317 (10th Cir.2013) (internal quotation marks omitted). Benoit first contends his sentence is procedurally unreasonable, but he offers scant argument to support his contention. He mentions procedural error only when vaguely referencing a district court’s discretion to vary from the Guidelines due to a categorical policy disagreement. See, e.g., Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam) (<HOLDING>). Benoit seems to suggest the district court Holdings: 0: holding that district court did not err in determining that cocaine base was crack cocaine based on chemical analysis identifying cocaine base together with competent lay testimony bridging the evidentiary gap between cocaine base and crack cocaine and refusing to require showing of smokeability ie water solubility or melting point for purposes of establishing crack cocaine under the guidelines since smokeability distinguishes cocaine base from powder cocaine not from crack 1: recognizing district courts ability to vary from guidelines based on policy disagreement with sentencing range in cases involving child pornography 2: holding district courts are entitled to vary from the guidelines based on a policy disagreement with those guidelines 3: holding a district court has authority to vary from the crack cocaine guidelines based on a policy disagreement with them italics omitted 4: holding that our prior rule that a district court lacked authority to premise a variance on disagreement with the policy of a guideline does not survive the supreme courts decision in kimbrough v united states 552 us 85 128 sct 558 169 led2d 481 2007 which was a recognition of district courts authority to vary from the guidelines based on policy disagreement with them | [
"2",
"4",
"0",
"1",
"3"
] | [
"3"
] |
abused its discretion in dismissing the case for the failure of that condition. Mulino Cafe responds that the court’s grant of leave is irrelevant and the court did not err because the case was not at issue as of the October 15 deadline, reasoning that Mulino Cafe did not make an appearance until after the deadline and UTCR 7.020(3) requires all parties to appear for a case to be at issue. Moreover, defendant argues, the trial court’s determination that the cas f that the case be at issue or in default by October 15. Yet, the court’s subsequent grant of leave to amend the complaint took the ability to comply with that condition out of plaintiffs hands. In such circumstances, the failure of the condition cannot reasonably be attributed to plaintiff alone. Cf. Lambert, 148 Or App at 376 (<HOLDING>). Consequently, we reject Mulino Cafe’s Holdings: 0: holding that the trial court abused its discretion by allowing expert testimony that directly linked the characteristics of sexually abused children to the complainants in this case 1: holding that the court abused its discretion where the delay cannot not reasonably be attributed to the plaintiff alone 2: holding that the district court abused its discretion in denying leave to amend after a delay of eight months 3: holding district court abused its discretion in admitting state court findings of fact 4: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint | [
"3",
"2",
"0",
"4",
"1"
] | [
"1"
] |
public necessarily means that they did learn about the defect.” (Dkt. No. 95 at 20.) In the SAC, Plaintiffs’ allegations regarding the prerelease tests that they believe Defendant should have performed remain speculative. See, e.g., Wilson, 668 F.3d at 1147 (“The allegation that HP, as the manufacturer, had ‘access to the aggregate information and data regarding the risk of overheating’ is speculative and does not suggest how any tests or information could have alerted HP to the defect.”); Tietsworth v. Sears, Roebuck & Co., No. 5:09-CV-00288 JFHRL, 2009 WL 3320486, at *2 (N.D.Cal. Oct. 13, 2009) (finding conclusory the allegation that defendants were in a “superior position to know the truth about the [product]”); Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 974 (N.D.Cal.2008) (<HOLDING>); cf. Falk v. Gen. Motors Corp., 496 F.Supp.2d Holdings: 0: holding that the labeling act did not preempt design defect claim against cigarette manufacturer 1: holding that a violation of the forum defendant rule is a jurisdictional defect 2: holding that plaintiffs allegation that defendant had exclusive knowledge as the manufacturer did not support claim that defendant was aware of a defect 3: holding that an unspecified number of complaints posted on the defendants website was insufficient to show that the defendant had knowledge of an alleged defect 4: holding that notice of a defect could not be imputed to a defendant inasmuch as it created the defect | [
"3",
"0",
"1",
"4",
"2"
] | [
"2"
] |
discrimination cases, by stating that: “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same inju ry.’ ” Wal-Mart, 131 S.Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). “This does not mean merely that they have all suffered a violation of the same provision of law,” but instead that their claims “depend upon a common contention ... of such a nature that is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Although “for purposes of Rule 23(a)(2) even a single common question will do,” id. at 2556 (internal citation an 48, 56 (3d Cir.1994) (<HOLDING>). See also Californians for Disability Rights, Holdings: 0: holding individual defendants subject to suit 1: holding that where both liability and damages depend on individual factual determinations claims may only be determined on individual basis 2: holding that courts should consider the merits of the litigants claims the nature of the factual issues the litigants ability to present his claims and the complexity of the legal issues 3: holding that individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality 4: holding jurisdiction over an individual may not usually be predicated on jurisdiction over a corporation unless the corporation is the alter ego of the individual or when the individual perpetrates a fraud | [
"0",
"2",
"4",
"1",
"3"
] | [
"3"
] |
area formed to combat automobile theft. On November 10, 2011, they executed a search warrant at Douglas Rathbun’s business and seized five motor vehicles. Claiming the search warrant was invalid, Mr. Rathbun brought suit under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be free from unreasonable searches and seizures. He sued all of the officers in their individual capacities for money damages. The officers filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) invoking qualified immunity. The district court denied the motion and the officers appeal. We have jurisdiction under 28 U.S.C. § 1291 over this final collateral order denying the motion to dismiss on qualified-immunity grounds. See Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (<HOLDING>). We reverse. I. Background Mr. Rathbun owns Holdings: 0: holding that district courts do not have appellate jurisdiction over state courts 1: holding appellate courts have jurisdiction over the district courts orders rejecting as a matter of law qualified immunity raised in a motion to dismiss 2: holding that the court lacked appellate jurisdiction over a partial summary judgment on liability in a qualified immunity case 3: holding that a district courts order is final and immediately reviewable under mitchell if the appellants properly raised a claim of qualified immunity in the district court 4: holding that the circuit courts have no appellate jurisdiction over a general district courts review of an administrative license suspension in the absence of any statutory authority vesting them with such jurisdiction | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
evidence that the State could introduce only if defendant were to testify, in which case defendant’s record would have impeached his credibility. Before trial, defendant indicated by affidavit that he wished to testify but that the lack of jury bifurcation would prevent him from doing so because of the prejudicial impact of his criminal record. -As a result of the trial court’s refusal to bifurcate the jury, defendant elected not to testify in his own defense. Consequently, the trial court’s decision not to bifurcate the jury must be evaluated not only in light of the prejudicial impact of defendant’s record on the jury’s penalty-phase deliberations but also in light of defendant’s right to testify in his defense, see Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L. Ed.2d 37 (1987) (<HOLDING>); State v. Savage, 120 N.J. 594, 626-28, 577 Holdings: 0: holding violation of right to testify could not be harmless 1: holding right to testify was federal constitutional right 2: recognizing the right to trial by jury is a constitutional right to be given the same protections as other constitutional rights 3: recognizing defendants state and federal constitutional rights to testify 4: holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal | [
"4",
"2",
"3",
"0",
"1"
] | [
"1"
] |
v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005). The right to present a defense arises under the Fifth Amendment right to due process and the Sixth Amendment right to compulsory process. Id. We will reverse the district judge’s decision excluding evidence only if the proffered evidence is both relevant and material (i.e., its exclusion would affect a trial’s outcome). United States v. Hernandez-Hernandez, 519 F.3d 1236, 1238-39 (10th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 162, 172 L.Ed.2d 117 (2008). Here, even assuming that the district judge erred by excluding the testimony, we conclude that the exclusion was harmless and Mr. Eastom’s right to present a defense was not violated. Mr. Murray’s testimony would not have affected the trial’s outcome. See Velarde, 214 F.3d at 1211 (<HOLDING>); Hemandez-Hemandez, 519 F.3d at 1238-39 Holdings: 0: holding that the giving of an erroneous reasonable doubt instruction can never be harmless error 1: holding that a substantial right is affected when the error had a substantial and injurious effect or influence in determining the jurys verdict 2: holding that nonconstitutional error is harmless if it did not have substantial and injurious effect or influence in determining the jurys verdict 3: holding that an erroneous decision to exclude evidence is considered harmless unless the error had a substantial influence on the outcome or leaves this court in grave doubt as to whether it had such an effect 4: holding that erroneous admission of evidence was harmless where it had no substantial and injurious effect or influence on the jury verdict judged in relation to the total evidence on the issue in question internal quotation marks omitted | [
"4",
"1",
"2",
"0",
"3"
] | [
"3"
] |
Anderson-Tra-han simply by becoming embroiled in this conflict, and the existence of Mitchell’s lawsuit, regardless of whether Mitchell prevails. Hood’s claims against Judge Anderson-Trahan stand on their own, and Hood’s amended complaint does not limit his claims to mitigating any damages that he may need to pay to Mitchell. Because Judge Anderson-Trahan is not a properly impleaded party under Rule 14, she must be dismissed as a party. Therefore, we need not address whether Louisiana’s anti-SLAPP statute may be raised by a third party on behalf of an original defendant. Nor do we address whether a party must embrace the speech at issue in order to assert a defense under the anti-SLAPP statute. The district court also certified the question of whether it could a 54, 261 (9th Cir.2013) (<HOLDING>); Godin v. Schencks, 629 F.3d 79, 88 (1st Holdings: 0: holding cercla does not preempt californias corporate capacity statute 1: holding that californias liquor pricefixing statute violated federal antitrust law 2: holding that the district of columbias antislapp law could not be applied in federal court in a diversity case because it conflicted with federal rules of civil procedure 12 and 56 3: holding that californias antislapp statute is applicable in federal court 4: holding that maines antislapp statute could be applied in the district court because federal rules of civil procedure 12 and 56 are not so broad as to attempt to answer the same question as the statute | [
"4",
"0",
"2",
"1",
"3"
] | [
"3"
] |
and we review de novo the interpretation of purely legal questions. Id. at 1187. We deny the petition for review. Cruz admits that she was aware of an upcoming hearing, but did not contact the immigration court for eighteen years. Although Cruz contacted the government twice during the eighteen years to pursue other forms of relief, she failed to reveal her original alien registration number. The IJ properly determined that Cruz did not establish that the eighteen-year delay in filing the motion “was caused by circumstances beyond [her] control.” Socop-Gonzalez, 272 F.3d at 1193. As Cruz did not act with due diligence, she is not entitled to equitable tolling of her motion to reopen based on ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (<HOLDING>). Cruz’s remaining contentions lack merit. Holdings: 0: holding that equitable estoppel requires proof of fraud misrepresentation or affirmative deception 1: holding that aedpas time limitation may be equitably tolled where extraordinary circumstances prevent petitioner from filing a timely petition and where petitioner acts with reasonable diligence 2: holding that the equitable tolling doctrine applies to the 90day period provided in 8 cfr 323bl2000 for filing motions to reopen based on new facts 3: holding that this court recognizes equitable tolling on motions to reopen during periods when a petitioner is prevented from filing because of deception fraud or error as long as the petitioner acts with due diligence 4: holding that a petitioner must act with due diligence when pursuing an ineffective assistance of counsel claim to benefit from equitable tolling of deadlines | [
"0",
"2",
"4",
"1",
"3"
] | [
"3"
] |
present at the scene of a recently committed crime may be permissible without violating the Fourth Amendment. Such a stop is especially deemed permissible where only a limited number of persons are present at the scene of a violent crime. Wold v. State, 430 N.W.2d 171, 175 (Minn.1988). We agree with this reasoning. Professor LaFave, in his discussion of allowing police to “freeze” a situation, certainly does not condone a “dragnet approach,” which results “in the temporary seizure of a large number of persons within the range of [a suspect’s] possible flight.” 4 LaFave, supra, § 9.4(g), at 195. But rather in this context, “selective investigative procedures” are necessary “whereby seizures are made only of those as to whom there exists a ‘reasonable possibi 7 S.W.2d 919, 920-21 (1985) (<HOLDING>). An officer's reasonable and articulable Holdings: 0: holding that the initial stop by officer was based on reasonable suspicion that defendant was impersonating a police officer although another officer arrested defendant for privacy act violation 1: holding officer who received a radio dispatch about a loud party disturbance at an apartment created by a person who left in brown jeep did not give officer reasonable suspicion to stop defendant in brown jeep because officer had no reason to suspect that a misdemeanor involving personal or property damage had been committed as required by ark rcrim p 31 to justify temporary detention 2: holding that an officer had reasonable suspicion to justify an investigatory stop of an automobile where the officer received a dispatch that a black male in a black bmw with a temporary license tag was selling controlled substances and the officer observed a person in an automobile fitting that description less than one minute later 3: holding officer had reasonable suspicion of criminal activity necessary to support traffic stop where officer received dispatch that defendant committed disorderly conduct and record check showed parked truck was registered to defendant 4: holding that notwithstanding the officers testimony that he had no suspicion of criminality the officer was aware of facts that would give rise to reasonable suspicion in the mind of a reasonable officer | [
"0",
"4",
"3",
"2",
"1"
] | [
"1"
] |
will exist whenever a defendant is served within the United States. See Lorelei Corp. v. County of Guadalupe, 940 F.2d 717, 719 (1st Cir.1991) ("[Sjufficient contacts exist whenever the defendant is served within the sovereign territory of the United States.”). If that is the case, proper service according to § 1132(e)(2) will always establish personal jurisdiction, because the defendant must be in the United States to be properly served under § 1132(e)(2). See Reimer Express, 230 F.3d at 941 ("The RICO and ERISA service of process provisions state that service may be made in 'any district,’ which indicates that Congress authorized service only in the judicial districts of the United States and not world-wide.”); see also Stauffacher v. Bennett, 969 F.2d 455, 460-61 (7th Cir.1992) (<HOLDING>). 4 . Cf. Omni Capital, 484 U.S. at 106, 108 Holdings: 0: holding that service is not avoided by service on a partys attorney as service on an attorney is ineffective unless he has been authorized to accept such service 1: holding that ricos nationwide service of process provision did not authorize service outside the united states 2: recognizing that although provision of municipal service is not fundamental right inequitable provision of that service is subject to equal protection analysis 3: holding that 1132e2 allows for nationwide service of process and thus jurisdiction and that the nationwide service of process provision comports with the constitution 4: holding the rule 4 requirement of delivery to the appropriate united states attorney required personal service not service by certified mail | [
"3",
"4",
"0",
"2",
"1"
] | [
"1"
] |
homestead exemption applies retroactively. See Certification at 2 n.l; cf. In re Pappas, 207 B.R. 379, 381-82 (2d Cir. BAP1997) (discussing disputed question of bankruptcy law suitable for interlocutory review). There is no showing, furthermore, that evaluation of the bankruptcy court’s decision at this time would lead to a more rapid resolution of the case, in part because the decision does not appear to be either manifestly correct or manifestly incorrect. The 2005 amendment to the C.P.L.R. is plausibly remedial within the meaning of McKinney’s Statutes § 54. See In re Little, No. 05-68281, at *21-22. Moreover, it is unlikely that the retroactive application of New York’s homestead exemption would violate the Contracts Clause. Cf. In re Seltzer, 104 F.3d 234, 235-37 (9th Cir.1996) (<HOLDING>). In sum, we think that prior consideration by Holdings: 0: holding retroactive application 1: holding that the retroactive application of a nevada exemption did not violate the contracts clause 2: holding that the act is not retroactive 3: recognizing that the application of a retroactive amendment is discretionary 4: holding no retroactive application | [
"0",
"4",
"3",
"2",
"1"
] | [
"1"
] |
during the relevant time period amounted to just 0.236% of its total annual sales, they are de minimis and are insufficient to support an exercise Florida’s jurisdiction. In the instant case, A & V and Quem acted as brokers for Vos’ sale of chemicals to buyers in South America and the Caribbean. Vos did not ship a single ounce of chemicals into Florida, or through any of Florida’s ports. In TRW, strikingly similar percentages were involved; however, in that case, the defendants shipped actual goods to addresses in this state. Therefore, the connection between Vos and Florida is even more attenuated than the connection at issue in TRW, which lends further support to this Court’s conclusion. Finally, we address the evidence found by the trial court to b So.2d 657, 659 (Fla. 3d DCA 2002) (<HOLDING>). CONCLUSION Because the plaintiffs’ action for Holdings: 0: holding that defendants bank account and open line of credit in florida utilized to transfer money in international commerce was insufficient to confer jurisdiction under section 481932 florida statutes where defendant operated its business in honduras had no employees or agents in florida and did not advertise or solicit business in florida 1: holding that 155 trips to texas by foreign corporation personnel over a tenyear period did not support general jurisdiction because evidence did not establish a general business presence 2: holding assignee could collect debt on stated account 3: holding that the maintenance of a florida bank account even if used to collect premiums is too tenuous a contact to support an assertion of general jurisdiction over a foreign insurer 4: holding that an interactive website allowing clients to bank online was insufficient to confer general jurisdiction over a foreign bank | [
"1",
"0",
"4",
"2",
"3"
] | [
"3"
] |
that individual’s compliance with the defendant’s directions, instructions, or terms.” United States v. Possick, 849 F.2d 332, 336 (8th Cir.1988). Here, the evidence was sufficient to show that appellant organized, supervised, or managed Thaxton, Scott, Majors, Singleton, and Duncan. The evidence established that appellant employed Thaxton as a bodyguard during appellant’s crack-selling activities at the College Street crack house. Thaxton spent six or seven hours a day at that house working with and protecting appellant. His primary job was to look out for appellant, “physically and with a little artillery if need be.” As appellant’s bodyguard, Thaxton was clearly appellant’s subordinate and subject to his supervision. See United States v. Chalkias, 971 F.2d 1206, 1214 (6th Cir.1992) (<HOLDING>); United States v. Pino-Perez, 870 F.2d 1230, Holdings: 0: holding that a person employed by the defendant as a bodyguard during the defendants drugrelated activities was supervised by the defendant 1: holding that the injury was inflicted by the defendant when it occurred while the defendant applied force directly to the victims person 2: holding that invitederror doctrine precludes defendant from challenging sentence of supervised release where defendant requested sentence of supervised release 3: holding that courts failure to tell defendant in rule 11 plea hearing that he faced a mandatory period of supervised release was harmless error because the defendant was on notice of the supervised release requirement set out in the plea agreement and the defendant did not claim he was unaware of the requirement only that court technically had failed to comply with requirements of rule 4: holding that the failure to notify the defendant of the term of supervised release and its possible effect on his sentence was not harmless error where nothing in the record suggests that the defendant understood that his sentence would include supervised release and there was no written plea agreement by which he might have been warned | [
"2",
"4",
"3",
"1",
"0"
] | [
"0"
] |
Because these terms are synonymous, we will refer to this claim as intentional misrepresentation. 2 .The jury later clarified that it intended to include the $26,000 the plaintiffs had incurred in attorneys fees up until trial in its award of $75,000, leaving a pure compensatory award of $49,000. 3 . T (employee is entitled to treble damages and attorneys fees if employer disciplined or threatened to discipline or otherwise interfered with employee's right to communicate with an elected official); Tenn.Code Ann. § 46-2-41 l(Supp. 1998) (court shall award treble damages when a prevailing party proves fraud relative to a sales contract for cemetery merchandise and services); Tenn. Code Ann. § 47-29-101(d) (Supp.1998) (court shall award as damages treble the face a S.E.2d 611, 616 (1994) (<HOLDING>). Ensuring that the Tennessee Consumer Holdings: 0: holding that a plaintiff may recover damages under both the lanham act and the copyright act provided the copyright damages serve a purpose other than compensation 1: holding that plaintiff could recover both treble damages under state racketeering statute and punitive damages under fraud and breach of fiduciary duty claims because the statute provided that actions brought under it are remedial and not punitive and that civil remedies provided under it are supplemental and not mutually exclusive 2: holding that a plaintiff may receive both treble damages under rico and state law punitive damages for the same course of conduct 3: holding that where plaintiffs were entitled to recover both treble damages and punitive damages under the illinois nursing home care reform act both issues could be submitted to the jury and the plaintiff could choose which award to be reflected in the judgment 4: holding that plaintiff could recover both doubled damages under the state regulation of manufacturers distributors and dealers act and punitive damages in connection with the common law claim because the act expressly allows both types of damages | [
"1",
"0",
"2",
"3",
"4"
] | [
"4"
] |
the later aural disclosure of the contents.”). 8 . See, e.g., Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035, 1043 n. 1 (9th Cir.2001) ("If a person secretes a recorder in a room and thereby records a conversation between two others, an 'acquisition' occurs at the time the recording is made.”); Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 (4th Cir.1994) ("The recording of a telephone conversation alone constitutes an 'aural * * * acquisition' of that conversation.”); United States v. Wuliger, 981 F.2d 1497, 1502-03 (6th Cir.1992) ("Noncon- sensual recordings violate the Act, 18 U.S.C. § 2511(1)(a).”); Pascale v. Carolina Freight Carriers Corp., 898 F.Supp. 276, 279 (D.N.J.1995) (same); Lane v. Allstate Insurance Co., 114 Nev. 1176, 969 P.2d 938, 940 (199 91, 1394-95 (6th Cir.1995) (<HOLDING>); see also Sanders, 38 F.3d at 740 n. 8 Holdings: 0: holding that a recorder connected to an extension phone which was activated automatically when the extension phone handset was lifted was an interception device where there was no evidence that the recorder could have operated independently of the telephone 1: holding that even if the industry and federal regulations evidenced an inherent danger and the defendant knew or should have realized that the device was or was likely to be dangerous for the use for which it was supplied there was a complete absence of evidence that the defendant had reason to believe that the plaintiff or its employees would not realize the danger 2: holding that defense of fraud was waived where no special issue was submitted and there was disputed evidence 3: holding that it was error to admit into evidence a gun purchased by the defendant which was not connected with the charged crimes 4: holding that there was no question that the full and fair opportunity element was met where there was no indication that such an opportunity was unavailable | [
"4",
"3",
"2",
"1",
"0"
] | [
"0"
] |
b]ut to use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent.” 379 U.S. at 33, 85 S.Ct. 176 (emphasis added). But as both Congress and the Court have come to recognize, it may not be possible to exercise any leverage at all from a patent, if that patent does not confer any market power upon its owner. See Ill. Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 42, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006) (noting that Congress did not intend the mere existence of a patent to constitute the requisite “market power” for purposes of patent misuse and coming to the same conclusion for antitrust purposes); see also Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979) (<HOLDING>). The Federal Circuit’s decision in Windsurfing Holdings: 0: holding that it was not against public policy to enforce an agreement providing for deferred royalties on an invention whether or not a patent was ultimately granted 1: holding in a patent infringement case that plaintiff lacked standing where it held a conditional right to license a patent and enforce license agreements but did not have the right to transfer the patent 2: holding that an assignment or sale of rights in the invention and potential patent rights is not a sale of the invention within the meaning of section 102b 3: recognizing a public policy against discrimination but not providing for an independent cause of action 4: holding patent policy incorporated by reference into patent agreement | [
"2",
"4",
"1",
"3",
"0"
] | [
"0"
] |
are not recordings of “oral communications” and shall be turned over to Plaintiffs and Defendants for purposes of this litigation. III. 18 U.S.C. § 2517(3) ■ Although the Court has held that the face to face recordings are not recordings of “oral communications,” the issue remains whether the interception of telephone calls by Whitacre may also be disclosed in this litigation. In Briggs, supra, the Fifth Circuit stated that a telephone conversation is a “wire communication” as that term is defined in 18 U.S.C. § 2510(1). Briggs, 630 F.2d at 417. Such communications are protected against interception by electronic, mechanical, or other devices regardless of the speaker’s expectation of privacy. See id. at 417 n. 4; see also United States v. Harpel, 493 F.2d 346, 349 (10th Cir.1974) (<HOLDING>). Accordingly, the Court’s preceding Holdings: 0: holding that the defendant had a reasonable expectation of privacy in a telephone booth 1: holding that a person does not have a reasonable expectation of privacy with regard to physical characteristics which he or she routinely exposes to public view 2: recognizing lack of requirement to prove reasonable expectation of privacy with regard to intercepted wire communications 3: holding that this lack of any reasonable expectation of continued employment suffices to establish the lack of property in the constitutional sense and hence the lack of a viable due process claim 4: holding that society recognizes a reasonable expectation of privacy | [
"3",
"0",
"4",
"1",
"2"
] | [
"2"
] |
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Moody has not made the requisite showing. Accordingly, we deny leave to proceed in forma pauperis, deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED * We do not address Moody’s illegal vehicle stop claim as this claim is raised for the first time on appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.1993) Holdings: 0: holding that absent exceptional circumstances arguments not raised before the bankruptcy court in the first instance are waived 1: holding that issues raised for first time on appeal generally will not be considered absent exceptional circumstances of plain error or fundamental miscarriage of justice 2: holding that issues raised for the first time on appeal are generally waived absent exceptional circumstances 3: holding claims raised for first time on appeal will not be considered absent exceptional circumstances 4: holding that issues raised for the first time on appeal will not be considered absent exceptional circumstances of plain error or fundamental miscarriage of justice | [
"0",
"4",
"1",
"3",
"2"
] | [
"2"
] |
at 684-85 (Lewis, J. dissenting). The plaintiffs cite one state trial court decision rejecting the damages caps of Fla. Stat. § 766.118 as unconstitutional on the ground that Article I, § 26(a) guarantees claimants the right to collect the stated percentages of “all of the damages that a jury could potentially award.” Cavanaugh v. Cardiology Assoc. of Orlando, P.A., No. 06-CA-3814, Div. 40, 2007 WL 5844414 (Fla. 9th Jud. Cir.Ct. Oct. 30, 2007). Although the court has considered the trial court’s ruling in Cavanaugh, it respectfully declines to follow it, as the court’s analysis focuses on an isolated phrase in the provision rather than on the language of the section as a whole. The court also notes it is not bound by the Cavanaugh decision. See Bravo v. United States, 577 F.3d at 1326 (<HOLDING>). Absent authority from the Florida Supreme Holdings: 0: holding that when there is no ruling by the states highest court it is the duty of the federal court to determine as best it can what the highest court of the state would decide 1: holding that when applying state law this court follows the decision of the highest state court or in the absence of such a decision and any indication that the highest court would rule differently the decisions of the states intermediate courts 2: holding that when making such a guess under erie r r co v tompkins 304 us 64 58 sct 817 82 led 1188 1938 a federal court is bound by an intermediate state appellate court decision unless convinced by other persuasive data that the highest court of the state would decide otherwise 3: holding that when applying state law a federal court is bound to follow the highest court in the state 4: holding federal courts are bound to follow intermediate state appellate court decisions unless there is persuasive evidence that the states highest court would rule otherwise | [
"0",
"2",
"3",
"1",
"4"
] | [
"4"
] |
following his trial. Under the circumstances presented, we see no reason to depart from the rule established in Patten. See Estelle, 420 U.S. at 542 (dismissal warranted when escaped convict is at large during ongoing appellate process); Allen v. Georgia, 166 U.S. 138, 140-41 (1897) (upholding state court’s dismissal of appeal of escaped prisoner and refusal to reinstate appeal against constitutional due process attack). Because the defendant elected to absent himself from the jurisdiction during the period of appeal, he forfeited the right to appellate review. See Molinaro v. New Jersey, 396 U.S. 365 (1970) (per curiam) (“[E]scape . . . disentitles the defendant to call upon the resources of the Court for determination of his claims.”); cf. State v. Brenes, 151 N.H. 11, 12 (2004) (<HOLDING>). There are no “equities pertaining to the Holdings: 0: holding that a sentence to a term of imprisonment ten years greater than the applicable maximum affected the defendants substantial rights 1: holding defendant culpable for the natural and probable consequence of his conduct 2: holding destruction of trial transcript pursuant to court rule ten years after defendants escape disadvantaged defendant due to his own culpable misconduct 3: holding appellants deposition testimony that he believed his oral contract would exist for another eight to ten years was unenforceable pursuant to statute of frauds 4: holding that arbitrators failure to disclose his prior business dealings with defendant some twenty years earlier did not amount to misconduct | [
"4",
"0",
"1",
"3",
"2"
] | [
"2"
] |
dominion or control over the property and did not have the right to exclude others from the garage area in which the truck was parked. Because the gate was open, music was playing at a sufficient volume for the deputies to hear it, Myrick and his brother were drawing attention to their location by singing, the truck windows allowed the deputies to see inside, and the garage door was left open, Myrick did not take precautions customarily taken by those seeking privacy. Further, there was no evidence that Myrick put the place to private use (there was no testimony that personal items were kept at the property), and nothing suggests a claim of privacy in this context is consistent with historical notions of privacy. See Beck v. State, 583 S.W.2d 338, 345 (Tex.Crim.App. [Panel Op.] 1979) (<HOLDING>). We hold that Myrick did not meet his burden Holdings: 0: holding that defendant had standing to challenge the seizure of a box regardless of who owned it because it was in a house owned and possessed by defendant 1: holding that police chiefs son who alleged that he was denied an interview for a position because his father had criticized the local officials did not have standing to assert the first amendment rights of his father 2: holding that passengers lacked any reasonable expectation of privacy and therefore had no standing to challenge the search of the vehicle 3: holding that adult child who maintained his own residence separate from his fathers household but regularly vacationed and kept gear at his fathers vacation home was not a resident of his fathers household and therefore not an insured under his fathers insurance policy covering the vacation home 4: holding defendant who was employee of and had key to his fathers business premises searched lacked standing to challenge search of building his father owned | [
"3",
"1",
"0",
"2",
"4"
] | [
"4"
] |
the issue of claims filed beyond the bar date have reached the same conclusion as we do today — that the various guarantee associations are not liable for the late-filed claims. See Union Gesellschaft Fur Metal Industrie Co. v. Illinois Insur. Guar. Fund, 190 Ill.App.3d 696, 138 Ill.Dec. 21, 546 N.E.2d 1076, 1079 (1989) (noting that “[t]he requirement in the statute that claims be filed on or before the last date fixed for the filing of proofs of claim evidences an intent by the legislature to provide a cutoff date after which the Illinois Guaranty Fund is no longer obligated to indemnify claims,” and that the plaintiff’s ignorance of the claim was not “recognized by the statute”); Satellite Bowl, Inc. v. Michigan Prop. & Cas. Guar. Assn., 165 Mich.App. 768, 419 N.W.2d 460, 462 (1988) (<HOLDING>); Lake Hospital System, Inc. v. Ohio Ins. Guar. Holdings: 0: holding that under the mailbox rule the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed 1: holding that the relevant time of inquiry is the date of the filing of the complaint 2: holding that once a liquidating court establishes a definitive bar date the ohio insurance guaranty association becomes statutorily obligated to observe the finality of that date and noting that were we to hold otherwise the specific filing deadline set forth in the ohio statute would be rendered meaningless 3: holding that the date of sale for an installment contract was the date of contract formation not the date of the last payment due 4: holding that a claim filed after the last date fixed for the filing of claims was not a covered claim and noting that the requirement in the statute that claims be presented before the filing deadline evidences an intent on the part of the legislature to provide a cutoff date after which the association is no longer obligated to accept claims | [
"1",
"0",
"3",
"2",
"4"
] | [
"4"
] |
to the Texas Department of Insurance. 9 . Trinity made no assertion in its motion for summary judgment that diminished value is not a direct or accidental loss or that it does not fall within the coverage afforded under Part D of the insuring agreement. 10 . Cope cites cases from several courts of appeals in this state to support this statement. E.g., Calvert Fire Ins. Co. v. McClintic, 267 S.W.2d 568 (Tex.Civ.App.—Waco 1954, writ ref.'d n.r.e.); American Standard County Mut. Ins. C 6 Or. 690, 114 P.2d 1005, 1009 (1941) (stating "it cannot be said that there has been a complete restoration of the property unless it can be said that there has been no diminution of value after repair of the car.”); Ciresi v. Globe & Rutgers Fire Ins. Co., 187 Minn. 145, 244 N.W. 688, 690 (1932) (<HOLDING>); Edwards v. Md. Motorcar Ins. Co., 204 A.D. Holdings: 0: holding that depreciation could not be deducted from cost to repair building to its condition prior to fire under actual cash value policy 1: holding measure of damages for unabated nuisance affecting greenhouse was the depreciation of the market value by reason of the continuance of a permanent nuisance 2: holding that if repairs to a firedamaged vehicle with parts of like kind and quality would not restore the vehicle to its former market value the proper measure of damages was the difference in market value before and after the loss where the policy limited liability to the cost to repair or replace the property with other of like kind and quality less depreciation 3: holding that depreciation in land value caused by a material change in a highway grade which made access to the property difficult is compensable 4: holding plaintiff entitled to depreciation after repairs in determining the vehicles value at the time of the theft allowance must be made for depreciation then accrued | [
"1",
"2",
"3",
"0",
"4"
] | [
"4"
] |
court. MEYERS, J., filed a dissenting opinion. 1 . Tex. Penal Code § 46.04. 2 . U.S. Const, amends. IV, V, VI, XIV; Tex. Const, art. I, § 9; Tex.Code Crim. Proc. art. 38.23. 3 . The State’s objection that the proffered documents “were not on file 14 days before this date of trial as required under the Rules of Evidence” was sustained. Apparent 32 S.W.3d 853, 856, n. 22 (Tex.Crim.App.2000). 16 . U.S. Const, amend. IV. 17 . See generally Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("Except in certain well-defined circumstances, a search or seizure ... is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.”); Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (<HOLDING>); Ybarra v. Illinois, 444 U.S. 85, 91, 100 Holdings: 0: holding that policy requiring strip searches of prisoners prior to transfer did not violate fourth amendment 1: holding that bodycavity searches of prisoners are not unreasonable 2: holding that a plaintiff stated a fourth amendment claim where consecutive bodycavity searches were unnecessary 3: holding that prisoners have no legitimate expectation of privacy and that the fourth amendments prohibition on unreasonable searches does not apply in prison cells 4: holding searches conducted without a warrant based on probable cause are presumptively unreasonable | [
"2",
"3",
"0",
"4",
"1"
] | [
"1"
] |
” United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999), quoting United States v. Kamel, 965 F.2d 484, 490 (7th Cir.1992). The United States Court of Appeals for the Seventh Circuit has explained: To receive a new trial based on newly discovered evidence, the defendant must demonstrate that the evidence (1) came to their knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial. Woolfolk, 197 F.3d at 905. However, when the basis for a new trial is newly discovered evidence that the trial judge has had improper contact with a juror or jurors, the test is somewhat different because “[a]ny ex 321 (4th Cir.1995)(<HOLDING>). The moving defendant must meet this burden by Holdings: 0: holding that the moving party for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial 1: holding that the defendant bears the initial burden of demonstrating that the improper juror contact occurred and only if the contact is established must the government demonstrate absence of prejudice 2: holding that the defendant bears the burden of demonstrating that the action should be transferred 3: holding that an appellant bears the burden of demonstrating error on appeal 4: holding that the defendant bears the burden of proving outside contact with the jury | [
"2",
"3",
"0",
"4",
"1"
] | [
"1"
] |
preservation effort. In other words, the provision merely limits an historic district commission’s jurisdiction over structures (and portions thereof) not in public view. Thus, we conclude that the terms “structure” and “exterior architectural feature” are not to be narrowly construed in the way the newspapers contend. In a similar vein, the newspapers see guidance in some of our other cases defining the term “structure,” citing Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188 (1960), and Millbury v. Galligon, 371 Mass. 737 (1977). The newspapers draw from these cases that the term “structure” should be read akin to “building,” and therefore should not encompass a newsrack. See Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co., 264 Mass. 85, 87-89 (1928) (<HOLDING>). These decisions are inapposite, for they Holdings: 0: holding that the legislature did not intend the state to be bound by local zoning regulations when constructing a communications tower because the legislature neither named the state nor manifested an intention that it be bound by the provisions of the enabling act which granted zoning authority to the city 1: holding that billboard was not structure within meaning of the zoning enabling act g l c 40 25 2: holding that an improved public street is a structure within the meaning of illinois workers compensation law 3: holding that a state is not a person within the meaning of 1983 4: recognizing that philadelphia as a home rule city derives its power generally to govern itself and to enact zoning regulations from the home rule act 53 ps 13101 but that to the extent that provisions of the zoning enabling act 53 ps 14752 are not inconsistent with philadelphias zoning regulations they remain in force | [
"4",
"2",
"3",
"0",
"1"
] | [
"1"
] |
April 1997 and September 1997 were submitted as samples to the district court. This court has also examined them in camera. They contain: (1) dates; (2) names of timekeepers; (3) numbers of hours worked; (4) generic descriptions of activities, e.g., review files, update database, prepare for deposition, search and retrieve files, research on summary judgment motion; (5) occasional references to legal theories that were the subject of research; (6) occasional references to the source of documents being reviewed; and (7) total fees and disbursements for the month. The billing records carry no stamped or written indication that they are work product or protected by the attorney-client privilege. 4 . BCBS also relies on Annandale Advocate v. City of Annandale, 435 N.W.2d 24 (Minn. 1989) (<HOLDING>). But in that case, the subject of the report, Holdings: 0: holding that police officers have a duty to conduct an investigation into the basis of the witness report 1: holding that investigative report regarding potential premises liability claim was protected work product 2: holding that police chiefs suspen sion with pay was not an adverseemployment action 3: holding that hearsay within a police report was inadmissible 4: holding that investigative report into police chiefs conduct was protected as private personnel data | [
"1",
"0",
"2",
"3",
"4"
] | [
"4"
] |
upon the argument that parole is a "privilege.” 5 LaFave § 10.10(b), at 525-26. The United States Supreme Court rejected this theory two years after the Iowa Supreme Court did. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484, 495 (1972). The Court stated: It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a "right” or a "privilege.” By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Id. 4 . Our ultimate resolution of this case does not render the conditions of a parole agreement unenforceable. The State may ordinarily impose any reasonable condition on the grant of parole. Cf. State v. Valin, 724 N.W.2d 440, 445-46, 448-49 (Iowa 2006) (<HOLDING>). A violation of that condition can result in a Holdings: 0: holding that a defendant who scored more than sixty points on his sentencing scoresheet and was not convicted of an offense specifically referenced in the drug offender probation statute was ineligible to receive drug offender probation 1: holding that probation and suspension of sentence may not be revoked based solely on a violation or criminal offense that was committed before the offender was actually placed on probation 2: recognizing that probation condition required probationer to enter into and successfully complete a sex offender treatment program but finding that no condition of probation was imposed that required him to admit to a counselor the sexual acts charged 3: holding that probation is not a sentence 4: recognizing the state may impose reasonable conditions of probation but holding that a probation condition requiring a sex offender who was convicted of operating while intoxicated to be subjected to a penile plethysmograph exam for sexual arousal was unreasonable | [
"3",
"0",
"2",
"1",
"4"
] | [
"4"
] |
Town of Portland v. "Wisconsin Elec. Power Co., the court stated: [Z]oning setback and yard requirements are considered by courts to promote a variety of public purposes. They are held to relate to provision for light and air, fire protection, traffic safety, prevention of overcrowding, rest and recreation, solving drainage problems, protecting the appearance and character of a neighborhood, conserving property values, and may, in particular cases, promote a variety of aesthetic and psychological values as well as ecological and environmental interests. Id., 198 Wis.2d 775, 543 N.W.2d 559, 560-61 (App.1995) (citing 3 The Law of Zoning and Planning § 34B.02[2] (1995). See also Hanna v. American Nat’l Bank and Trust, 266 Ill.App.3d 544, 203 IlI.Dec. 507, 514, 639 N.E.2d 1326, 1333 (1994) Holdings: 0: holding that service and notice in a technical sense are incidental where the main purpose of obtaining the appearance of parties and their participation is accomplished 1: holding purpose of setback restriction is to create easement of unobstructed air light and vision and to insure uniformity of appearance 2: holding that party waived special appearance 3: holding that court should interpret statute in light of purpose of whole instrument 4: holding that defendant did not waive his special appearance by filing a motion for new trial subject to the special appearance | [
"2",
"4",
"3",
"0",
"1"
] | [
"1"
] |
(“[I]f a state allows petitioners to file second or subsequent petitions for post-conviction relief, federal courts should not undermine the state’s decision by refusing to toll the one-year period of limitation” while the petition is pending.). Washington permits a prisoner to file a petition based on newly discovered evidence outside the ordinary limitations period, as long as the prisoner acts with due diligence; Dictado filed his petition with due diligence after obtaining what he claimed was newly discovered evidence; Washington permitted it to be filed and considered it on the merits. Thus, the petition must be deemed “properly filed” and Dictado should be permitted to file his federal petition in district court. 1 . See, e.g., Lovasz v. Vaughn, 134 F.3d 146, 147 (3d Cir.1998) (<HOLDING>); Patterson v. Director, Virginia Dep’t of Holdings: 0: holding that second state petition for postconviction relief that was dismissed as frivolous and patently without merit was properly filed 1: holding that third state petition for postconviction relief that was dismissed as an abuse of the writ was properly filed 2: holding that second state petition for postconviction relief that was dismissed as an abuse of the writ was properly filed 3: holding that although louisiana court held postconviction petition untimely filed statutory exceptions to filing requirement rendered petition properly filed for purposes of 2244d 4: holding that a second or subsequent state petition for postconviction relief filed according to the procedural rules of the state constitutes a properly filed application without regard to the merits of the petition | [
"0",
"2",
"3",
"1",
"4"
] | [
"4"
] |
employer who has contracted to provide services to an exempt political subdivision does not retain sufficient control over the employment relationship to engage in meaningful collective bargaining, § 2(2) deprives the Board of jurisdiction.” The Memorial Hospital decision explained that when the private employer does not have sufficient control over labor relations to engage in meaningful bargaining, the Board is without jurisdic ng Board properly exercised jurisdiction when employer fully controlled the essential employment terms, including hiring, firing, discipline, grievance procedures, and benefits, although employer’s “flexibility with regard to wages and benefits undoubtedly is hampered by budget ceilings” imposed by governmental agency); R.W. Harmon & Sons, 664 F.2d at 251 (<HOLDING>); Memorial Hospital, 624 F.2d at 185-189 Holdings: 0: holding board properly exercised jurisdiction when employer controlled the basic bargaining subjects wages seniority grievance procedures vacation insurance and retirement plans 1: holding that opening day and duty days were not mandatory subjects of collective bargaining 2: holding transfer to another job that would violate seniority rights under collective bargaining agreement unreasonable 3: holding that the terms and conditions placed on applicants are not subjects of mandatory bargaining 4: holding that many courts have recognized that an employer may make reasonable inquiries into the retirement plans of its employees | [
"4",
"1",
"2",
"3",
"0"
] | [
"0"
] |
by the grantee so described declaring the purposes of such trust, if any, declaring that the real estate is held other than for the benefit of the grantee. Accordingly, that additional language referring to the owners as trustees, did not change the nature of the transaction. Because a sale had taken place, Schiffer was entitled to the fee for his services. However Zosman should not have been held accountable for Schiffer’s attorney’s fees. The contract provided: The architect shall be entitled to recover all costs actually incurred in collecting over-due accounts. The Supreme Court has observed that the term “costs” is not generally understood as including attorney’s fees. See Wiggins v. Wiggins, 446 So.2d 1078, 1079 (Fla.1984); see also Smith v. Sitomer, 550 So.2d 461 (Fla.1989) (<HOLDING>). Here, the transcript is devoid of evidence Holdings: 0: holding that although we typically review award or denial of attorneys fees and costs for an abuse of discretion where district court denies attorneys fees and costs based upon legal determination that a party is not a prevailing party we review the determination de novo 1: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 2: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith 3: holding parties agreement provided clear contractual justification for the award of costs and expenses including attorneys fees to the prevailing party 4: holding medical liability insurer with policy calling for payment of all costs taxed against insured was not obligated to pay prevailing party attorneys fees | [
"3",
"2",
"0",
"1",
"4"
] | [
"4"
] |
that Collins may have been eligible for an even larger penalty, as suggested by the ALJ’s application of a third-tier penalty. Fourth, Collins’s actions enabled Brown’s fraudulent actions, which targeted elderly customers considering complex financial products, with harm including withdrawal penalties of over $60,000 incurred by two of the victims. And the failures of supervision created a more general risk of wrongdoing in the office subject to Collins’s supervision. Thus, consideration of the four factors does not really help Collins’s cause. We note that Collins cites only two cases in which courts have set aside a fine for violating the Eighth Amendment, both featuring extremely large penalties contrasted with minimal harm. Bajakajian, 524 U.S. at 339, 118 S.Ct. 2028 (1998) (<HOLDING>); United States ex rel. Bunk v. Birkart Holdings: 0: holding that if the government fails to object to the presentence report the district courts reliance on the report is reviewed for plain error 1: holding that the district court properly exercised jurisdiction over a criminal forfeiture action where a state court in a related state court forfeiture proceeding had in personam jurisdiction over the same currency subject to forfeiture 2: holding that the defendant conceded the accuracy of his prior convictions in his psi report by failing to object to the report 3: holding invalid forfeiture of 357000 for failing to report exported currency affecting only the government and in a relatively minor way 4: holding that to establish a pattern of unlawful activity in a ease involving currency transaction report violations the government must prove that the currency transaction report violations were both repeated and related to one another | [
"4",
"2",
"1",
"0",
"3"
] | [
"3"
] |
For instance, a real estate license, state university transcript, or driver’s license may only be obtained from a particular governmental unit. A debtor who cannot obtain her real estate license will be unable to pursue her chosen profession; a debtor who cannot obtain his transcript will be unable to apply for certain jobs or further schooling; a debtor who cannot obtain a driver’s license will be unable to commute to many jobs or school. In re Stoltz, 315 F.3d at 90; see also Toth v. Michigan State Housing Development Authority, 136 F.3d 477, 480 (6th Cir.1998) (ruling that extensions of credit do not come within the section’s reach, and that the “target of § 523(a) is government’s role as a gatekeeper in determining who may pursue certain livelihoods”); In re Watts, 876 F.2d at 1093 (<HOLDING>). Thus, [bjeyond the area of driver’s licenses, Holdings: 0: recognizing governmental interest in rehabilitation 1: recognizing utswmc as a governmental unit under the act 2: holding that recovery against an individual employee is barred and may be sought against the governmental unit only when suit is filed against both the governmental unit and its employee id 101106e 3: recognizing the indicia of authority from a governmental unit to the authorized person to pursue some endeavor as common in the enumerated items 4: holding that while qui tam actions by private parties could be on behalf of or for a governmental unit they are not actions by a governmental unit as required by the bankruptcy code | [
"1",
"2",
"4",
"0",
"3"
] | [
"3"
] |
not have proceeded to trial had he not been assured that he would receive a sentence of 121 to 151 months of imprisonment. Mackay has provided no direct evidence that he would not have pleaded guilty if he had known that his sentence was not limited in this manner by his plea. Rather, the evidence in the record supports the contrary conclusion. The language of the plea agreement is clear that no representations or promises were made as to the sentence to be imposed. Additionally, he was admonished at rearraignment that sentence could be imposed from ten years to life imprisonment, and he responded negatively to the court’s specific inquiry whether anyone had made promises to him as to the sentence that would be imposed. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.1998) (<HOLDING>). Moreover, despite vigorously pursuing a Holdings: 0: holding there is a strong presumption of verity for solemn declarations in court 1: recognizing rule 403s strong presumption in favor of admissibility 2: recognizing a strong presumption favoring arbitrability 3: recognizing strong presumption against interlocutory appeals 4: recognizing presumption | [
"2",
"3",
"4",
"1",
"0"
] | [
"0"
] |
whether facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage’ ”). Whether the party asserting the claim was allowed to introduce specific evidence in support of that claim is an entirely different question, unrelated to deciding whether the same basic legal and factual matters were at issue in both cases. 3. Identity of parties The final element of claim preclusion is established by the fact that the parties to both suits are identical. Plaintiffs are the same and Hass is in privity with defendant AgriBank, his employer and principal. See Great Lakes Trucking Co., Inc. v. Black, 165 Wis.2d 162, 170, 477 N.W.2d 65, 68 (Ct.App.1991) (<HOLDING>). Plaintiffs do not deny that Hass and Holdings: 0: holding that a client is vicariously liable for an attorneys allegedly intentional tortious conduct if the attorney acted as the clients agent 1: holding that both agent and principal will be liable when the agent acts within the scope of his employment but for his own purposes 2: holding principal liable to third party for tort of agent despite lack of privity between principal and third party 3: holding that licensed agent is in privity with principal for purpose of establishing identity of parties record establishes classic employeremployee relationship in which corporation is vicariously liable for conduct of agent 4: holding that a principal is bound by a contract entered into by the principals agent on her behalf if the agent had authority to bind the principal | [
"4",
"0",
"2",
"1",
"3"
] | [
"3"
] |
research is assessable as a reasonable cost of litigation. See Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3d Cir.1980). The court in Wehr relied on a theory that a court has discretion to award costs which are not specifically allowed by statute pursuant to Rule 54 of the Federal Rules of Civil Procedure. Wehr can no longer be considered good law on this point, however, in light of the Supreme Court’s most recent pronouncements in Crawford Fitting and West Virginia Hospitals. The Supreme Court rejected the reasoning in Wehr and held that a court may only asses those costs which are specifically outlined in § 1920. Crawford Fitting, 482 U.S. at 441; West Virginia Hosps., 499 U.S. at 93; see also Neyer, Tiseo & Hindo, Ltd. v. Russell, No 92-2983, 1994 WL 158917 (E.D.Pa. Apr.29, 1994) (<HOLDING>). Applying the same reasoning to plaintiffs Holdings: 0: recognizing implicit overruling of wehr 1: recognizing the overruling of milford township 2: recognizing the effective overruling of bankes 3: recognizing implicit waiver of the attorney client privilege where the plaintiff has placed in issue a communication which goes to the heart of the claim in controversy 4: recognizing prandinis overruling | [
"4",
"3",
"1",
"2",
"0"
] | [
"0"
] |
1129, 1132 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); Douglass v. Glen E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971); Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 438-39 (N.D.Cal.1968), modified on other grounds, 430 F.2d 1202, 1210 (9th Cir. 1970); Kamen & Co. v. Paul H. Aschkar & Co., 382 F.2d 689, 697 (9th Cir.), cert. granted, 390 U.S. 942, 88 S.Ct. 1021, 19 L.Ed.2d 1129, cert. dismissed, 393 U.S. 801, 89 S.Ct. 40, 21 L.Ed.2d 85 (1967); Jackson v. Bache & Co., Inc., 381 F.Supp. 71, 93-5 (D.C.1974). The Third Circuit is in accord. Rochez Bros., Inc. v. Rhoades, 527 F.2d 880, 884-86 (3d Cir. 1975); Thomas v. Duralite Co., Inc., 524 F.2d 577, 586 (3d Cir. 1975). Cf. Sharp v. Coopers & Lybrand, 457 F.Supp. 879, 890-91 (D.C.Pa.1978) (<HOLDING>). The Eighth Circuit would seem to be in Holdings: 0: holding that rochez did not foreclose respondeat superior liability for brokerdealers for the fraudulent acts of their employees 1: holding that employees violation of his employers policy against drinking on the job does not preclude liability under respondeat superior 2: recognizing respondeat superior liability 3: holding that employees defamatory statements made at work about matters relating to work were within the scope of their employment for purposes of respondeat superior and recognizing that californias respondeat superior doctrine imposes a broad rule of liability on employers 4: holding that liability may not be predicated upon a theory of respondeat superior because a supervisor can be liable only for his own acts or omissions | [
"3",
"1",
"2",
"4",
"0"
] | [
"0"
] |
act that causes damage to the plaintiff. We stated: We recognize that some courts have spoken of the “last overt act” of a civil rights conspiracy as the time from which the statute begins to run, but do not believe those courts meant to depart from the traditional rule in civil conspiracies that the mere fact of a conspiracy does not toll the statute of limitations with respect to earlier clear-cut violations of rights that have not been concealed from the plaintiff. Id. at 404 n. 1 (citation omitted). As the appellants do not suggest that the violations that transpired in the course of this alleged conspiracy (such as the excessive use of force and the false arrest) were concealed from them, Hernandez Jimenez controls. See United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991) (<HOLDING>). The appellants attempt to withstand this blow Holdings: 0: recognizing that a prior panels holding is binding on all subsequent panels 1: holding that a prior panel decision is binding on subsequent panels 2: holding that in a multipanel circuit prior panel decisions generally are binding upon newlyconstituted panels 3: holding that the panel is bound by decisions of prior panels 4: holding that decisions by prior panels are binding | [
"3",
"0",
"4",
"1",
"2"
] | [
"2"
] |
as a jurisdictional bar. Although it “protects from judgment,” immunity from liability “is not jurisdictional.” Harris County Hosp. Disk, 283 S.W.3d at 842. Assuming without deciding that Jesus properly asserted this affirmative defense at trial, asserting an affirmative defense does not convert it into a jurisdictional issue. Even assuming it was error for the trial court to determine that section 216.106 did not apply to Jesus and to enter a judgment against him, these were not jurisdictional errors. Because Jesus did not raise his affirmative defense of immunity from liability on appeal and because the issue is not jurisdictional, we cannot reach the merits of this argument and it cannot be a basis for reversing the trial court’s judgment. See Pat Baker Co., 971 S.W.2d at 450 (<HOLDING>). C. Analysis Stephen’s claim of slander per se Holdings: 0: holding appellate courts cannot reverse judgment on grounds not raised on appeal 1: holding an appellate court cannot reverse a trial courts judgment absent properly assigned error 2: holding that the court of appeals may not reverse a trial courts judgment in the absence of properly assigned error 3: recognizing that appellate court may reverse trial courts judgment when it is based on an erroneous conclusion of law 4: holding that an appellate court may not review errors that have not been assigned by a party or a point of error | [
"2",
"3",
"4",
"0",
"1"
] | [
"1"
] |
to challenge section 14-107 both facially and as applied. The defendants dispute the plaintiffs’ standing to raise a facial challenge, but argue that the plaintiffs’ claims fail in any event. As discussed below, we conclude that section 14-107 was constitutionally applied to the plaintiffs despite reservations about the constitutionality of the statute were it subject to a facial vagueness challenge. The central question presented by this appeal therefore is whether the plaintiffs are permitted to bring their void-for-vagueness challenge facially. We conclude that they are not. A. Facial and As-Applied Vagueness Challenges Facial challenges are generally disfavored. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (<HOLDING>); Farrell v. Burke, 449 F.3d 470, 494 (2d Holdings: 0: holding that courts should exercise judicial restraint and decide asapplied challenges before facial challenges 1: recognizing that courts should exercise judicial restraint in a facial challenge 2: holding that a state may not exercise a prior restraint on publishing a newspaper 3: holding that in deciding on a facial constitutional challenge it is improper to consider only limited hypothetical applications 4: holding that exhaustion of arbitration procedure is not necessary before the district court could consider a facial constitutional challenge | [
"3",
"4",
"2",
"0",
"1"
] | [
"1"
] |
The State of California is an independent sovereign, which itself possesses the authority to enact legislation and thus to regulate the placement of tobacco vending machines, unless preempted by federal law. Before the enactment of section 300-x26, Congress did not regulate the sale of tobacco to minors. Since the field was legislatively unoccupied by the federal government, the states retained the power to so regulate. Section 300x-26(a)(1), by its very terms, does not indicate any preemption of the states’ power. Rather, it indicates that Congress did not want to itself impose an age restriction on the sale and distribution of tobacco, but rather wanted the states to continue to regulate in this field. Cf. Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961) (<HOLDING>). Congress’s enactment of section 300x-26, Holdings: 0: holding that the tobacco inspection act which imposed uniform standards of classification and inspection of tobacco sold at auction preempted the field and left no room for the georgia tobacco identification act which also imposed tobacco classification regulations 1: holding that a statecreated liberty interest in ones classification may exist where classification imposes atypical and significant hardship 2: holding that lack of notice regarding the classification of the disability did not prejudice the respondent 3: holding that prisoner had no constitutionallyprotected liberty interest in prisoninmate classification system process where director of department of corrections retained unfettered discretion in classification and housing of prisoners 4: holding that where the defendant challenges the use of documents purporting to establish the washington classification of an outofstate conviction the state must present additional evidence of the proper classification so as to carry its burden of proving the defendants criminal history by a preponderance of the evidence | [
"3",
"1",
"4",
"2",
"0"
] | [
"0"
] |
in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Ruci, 409 Mass. 94, 96 (1991) citing Commonwealth v. Latimore, supra at 676-677. The five elements of the offense of open and gross lewdness and lascivious behavior appear in Instruction 5.42 of the Model Jury Instructions for Use in the District Court (1988). While G. L. c. 272, § 16, does not itself define “open and gross lewdness and lascivious behavior,” these five elements were generated by our case law. See, e.g., Commonwealth v. Fitta, 391 Mass. 394, 396 (1984) (defendant’s act must be committed “in such a way as to produce alarm or shock”); Commonwealth v. Adams, 389 Mass. 265, 271-272 (1983) (<HOLDING>); Commonwealth v. Catlin, 1 Mass. 8, 10 (1804) Holdings: 0: holding that case law had made clear that masturbating in car on public road was sufficiently open 1: holding that a road not open to the public at all times was not a highway 2: holding that mere use of a road will not make a road a public road even though such use is with the knowledge and consent of the landowner unless the use is accompanied by recognition by public authority or by its maintainance sic 3: holding road was still a public highway although fifty years had passed since the road was used by the public 4: holding a car was broken into or entered when defendant reached in through the open window of a car | [
"4",
"1",
"2",
"3",
"0"
] | [
"0"
] |
a “special injury” under Iowa law? 3. Under the facts of this case, is the loss of financing, or interference with financing, a “special injury” under Iowa law? 4. Does Plaintiffs stress, accompanied by neck and back pain, constitute “special injury” under the facts of the case? Pursuant to our certification statute and in the exercise of our discretion, we now choose to answer these four certified questions. See Iowa Code § 684A.1 (stating we may answer a certified question where (1) it was certified by a proper court; (2) is a question of Iowa law; (3) “may be determinative of the cause ... pending in the certifying court”; and (4) it appears to the certifying court that there is no controlling Iowa precedent). But see Eley v. Pizza Hut, Inc., 500 N.W.2d 61, 63-64 (Iowa 1993) (<HOLDING>). II. The Certified Questions A. “Does the Holdings: 0: holding appellant could not obtain a new trial so that jury could answer liability question because the charge instructed the jury not to answer the question based on its answer to a prior question and because appellant did not object to this instruction 1: holding that government could not impeach witness with prior statement because he refused to answer any questions and thus gave no testimony in court with which the prior statement could be judged to be inconsistent 2: holding failure to object to conditioning instructions waived error arising from the jurys failure to answer question when answer could not be implied and that lack of objection waived right to new trial to have jury answer questions 3: recognizing discretion and declining to answer propounded questions because the statement of facts accompanying the certification were not specific enough 4: recognizing other state courts have declined to answer certified questions that would not be determinative of the action that were based on conflicting facts or that had already been decided by the state appellate court | [
"1",
"2",
"4",
"0",
"3"
] | [
"3"
] |
states, or the laws of only four states, in resolving the illegal gambling claims. (The plaintiffs contend that the court need apply only the laws of California (where Teleline’s home office was located), Illinois (where some calls were answered and a relevant AT&T facility was located), New Jersey (where a relevant AT&T office was located), and Missouri (where most of the calls were answered).) The district court unequivocally ruled that the gambling laws of all fifty states would have to be applied: "In order to eliminate any confusion, I now conclude that the laws of each state from which a call was made ... will be used to evaluate the gambling claims in this litigation.” Appellant AT&T agrees with the district court's determination on choice of law; its only content Cir.1986) (<HOLDING>); see also Harbor Tug & Barge, Inc, v. Belcher Holdings: 0: holding that in the absence of a crossappeal an appellee may urge affirmance of the lower courts ruling on any basis appearing in the record but may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary internal quotation marks omitted 1: holding that the failure to file a petition for crossappeal within the statutory time limit is a jurisdictional defect that bars the court from hearing the crossappeal 2: holding that the crossappeal time limit is jurisdictional 3: holding that an appellee who did not address an argument in the answering brief had waived that issue 4: holding that failure of an appellee to crossappeal ordinarily precludes review where an appellee seeks to enlarge his rights or lessen those of an adversary but is not a jurisdictional bar | [
"1",
"0",
"2",
"3",
"4"
] | [
"4"
] |
elements of the vehicles’ emission control systems. See No. 7:16CV00197 Compl. ¶ 20; No. 7:16CV00198 Compl. ¶22. Although the plaintiffs note that the installation of such devices is prohibited by the Clean Air Act, they assert that the operation of motor vehicles containing such devices is prohibited by Virginia law, namely the statutory and regulatory provisions cited above. Thus, to the extent the plaintiffs’ claims for equitable relief are based on the assertion that their vehicles are illegal to operate in Virginia, their claims could rise or fall entirely based on the interpretation of state law. As the United States Court of Appeals for the Fourth Circuit has recognized, “a plaintiffs right to relief for a given claim necess 670, 2016 WL 3067686 (D. N.J. May 19, 2016) (<HOLDING>). To the extent Volkswagen argues that the Holdings: 0: holding that alleged violations of a state statute did not give rise to federal constitutional claims 1: holding that the plaintiffs claims against volkswagen and others did not necessarily raise a federal question since they were also based on the assertion that the plaintiffs vehicle did not comply with state law 2: holding that the plaintiffs state statutory claim against volkswagen did not give rise to federal question jurisdiction under grable since the claim was based on alternative theories some of which had no necessary federal element 3: holding that just because a claim implicates a federal issue or involves construction of federal law does not necessarily give rise to a federal question and confer removal jurisdiction on a federal court 4: holding that the first grable requirement was met where the plaintiff in order to prevail on his legal malpractice claim had to show that he would have prevailed on his claim under federal patent law | [
"1",
"0",
"4",
"3",
"2"
] | [
"2"
] |
who did not preside over a trial announce fact findings gives rise to practical concerns that do not arise if the same judge files legal conclusions. See, e.g., Storrie v. Shaw, 96 Tex. 618, 75 S.W. 20, 21-22 (1903) (noting that it "would be impossible for a judge who had not heard the testimony to express in the form of conclusions of fact the impression which the conflicting evidence made upon the mind of one who heard it”). We are concerned in this case only with findings of fact—which we sometimes refer to simply as "findings”—and express n Tex. Civ. App.—Waco 1976, no writ) (relying in part on rule 18 to hold that a successor to a deceased judge was allowed to file findings); Horizon Prop. Corp. v. Martinez, 513 S.W.2d 264, 266 (Tex. Civ. App.—El Paso 1974, writ ref'd n.r.e.) (<HOLDING>). 7 . While the rules create a deadline for the Holdings: 0: holding that neither rule 18 nor section 30002 allowed the successor to an electoral loser to file findings when the transition did not happen during the period in which the trial court was obligated to file findings 1: holding that rule 18 grants authority to some successor judges to file findings 2: holding that rule 18 granted a successor to a deceased judge the power to file findings 3: holding that rule 18 granted a successor to a resigned judge the power to file findings when a case was transferred between districts 4: holding that not even the successor to a retiring judge may file findings because retirement is not listed in rule 18 and has a statutorily distinct meaning from resignation | [
"0",
"3",
"1",
"4",
"2"
] | [
"2"
] |
Plaintiff raises several other objections to the manner in which the ALJ and Appeals Council reached their decisions. First, he asserts that the ALJ improperly failed to consider Plaintiffs subjective complaints of pain. The Second Circuit has held that “the subjective element of pain is an important factor to be considered in determining disability.” Mimms v. Heckler (2d Cir.1984) 750 F.2d 180, 185. However, the Second Circuit has also held that “[t]he ALJ has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, re garding the true extent of the pain alleged by the claimant.” Marcus v. Califano (2d Cir.1979) 615 F.2d 23, 27. See also Jordan v. Barnhart (2d Cir.2002) 29 Fed.Appx. 790, 794 (<HOLDING>). “If the Secretaries findings are supported by Holdings: 0: holding that the alj properly relied on medical evidence undermining claimants subjective assessment of limitations 1: holding the alj may discredit complaints of claimant where inconsistencies appear in record 2: holding that an alj may consider a claimants household activities in evaluating complaints of disabling pain 3: holding that alj properly evaluated credibility where he cited specific instances where claimants complaints about pain and other subjective symptoms were inconsistent with the objective medical evidence of record 4: holding that an alj is entitled to make a credibility determination regarding the claimants subjective complaints after specifically addressing these complaints and reviewing the medical evidence in the record | [
"3",
"1",
"0",
"2",
"4"
] | [
"4"
] |
95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). To satisfy this requirement, the party must show, among other things, that he “has sustained or is immediately in danger of sustaining some direct injury” and that “the injury or threat of injury [is] both real and immediate, not conjectural or hypothetical.” Id. at 101-02, 103 S.Ct. 1660 (quotations omitted). Here, although Yanke’s home has not yet been searched, he has been assessed a surcharge of $100 per month since July 2003 because he has failed to comply with the Ordinance’s inspection requirement. The Court finds, therefore, that Yanke’s injury is concrete and immediate. Accordingly, Yanke has standing to bring a claim under the Fourth Amendment. Cf. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 797 (9th Cir.2001) (<HOLDING>). The Court now turns to the City’s argument Holdings: 0: holding tenants leasing house by oral agreement were coinsureds both landlord and tenants had liability insurance 1: holding that tenants had standing to bring fourth amendment claim where tenants were threatened with eviction unless they consented to allegedly unreasonable warrantless searches 2: holding landlord and tenants obligations mutually dependent 3: holding that police officers warrantless search of rented home with consent of landlord but not tenant violated tenants fourth amendment rights 4: holding tenants vacating premises allegedly in breach of a lease was not enough to trigger c 93a liability | [
"2",
"4",
"3",
"0",
"1"
] | [
"1"
] |
incidents, all of which predated her injury. However, these arguments are irrelevant to her workers’ compensation claim. If she wanted to pursue these arguments, she should have appealed her termination, as she had every right to do for a fee of $100. Because Mitchell knowingly failed to avail herself of that right, the agency’s stated reason for terminating her—which is entirely understandable and reasonable on its face—should not be subject to question. See Wright v. White, 693 So.2d 898, 902 (Miss.1997) (“[F]or state law purposes the statutory method of administrative appeal and judicial review provided by the state civil service statute is the exclusive remedy for grievances related to state employment...."); see also Miss. Dep’t of Corr. v. McClee, 677 So.2d 732, 736 (Miss.1996) (<HOLDING>); Miss. Dep’t of Corr. v. Smith, 883 So.2d 124, Holdings: 0: holding that plaintiff bears burden of production as well as persuasion 1: holding that employer bears the full burden of persuasion for the facts requisite to an exemption 2: recognizing that the burden of persuasion for a showing of prejudice was on the defendant 3: holding that a debtor bears the burden of persuasion under 1325a 4: holding that even if a state employees termination is properly appealed the employee bears the burden of persuasion that the alleged conduct did not occur | [
"0",
"1",
"2",
"3",
"4"
] | [
"4"
] |
of claim construction. 8 . The district court held claim 10 invalid under 35 U.S.C. § 112(d) of the America Invents Act ("AIA”). See Multilayer v. Inteplast, 2013 WL 5972195, at *40. 35 U.S.C. § 112(d) replaced the earlier (pre-AIA) 35 U.S.C. § 112 ¶ 4 when § 4(c) of the America Invents Act ("AIA”), Pub.L. No. 112-29, took effect on September 16, 2012. 125 Stat. 284, 296, 297 (2011). Because the '055 patent was filed in 1999, long before this effective date, pre-AIA 35 U.S.C. § 112 ¶ 4 in fact controls. The district court’s error is harmless, as the AIA did not alter the substance of this provision. 9 . The district court also found that at least some VLDPE and ULDPE resins can also be broadly characterized as LLDPE resins. Id. at *32; see also Multilayer v. Berry, 63 F.Supp.3d at 794 (<HOLDING>). 10 . Claim 24 does not specify whether the Holdings: 0: holding that an ex post facto claim can only be successful if the law can be characterized as punishment in the constitutional sense 1: holding that under the district courts construction of lldpe resins within the classes of mlldpe vldpe and uldpe can also broadly be characterized as lldpe resins 2: holding that the employment of some noncivil servants can properly be characterized as noncommercial 3: holding that nonconsensual oversecured creditor shall receive the statutory rate of interest unless it can be characterized as a penalty 4: recognizing rule of statutory construction that statutes must be read as a whole and sections which are part of the same general statutory scheme must be construed together and each given effect if it can be done by any reasonable construction | [
"2",
"3",
"0",
"4",
"1"
] | [
"1"
] |
It is evident from the state court filings that Schubert and his counsel suspected, alleged, and had , evidentiary support for this claim long before commencing federal habeas proceedings. Schubert’s ineffective assistance of counsel arguments fail because he has not raised a “substantial” claim under Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 1918, 185 L.Ed.2d 1044 (2013). 4. Because Schubert knew or should have known at the time of his original filing the facts and theories upon which he based his late proposal for amendment, the district court did not abuse its discretion when it denied Schubert leave to amend his petition to add a new Fifth Amendment claim. See Bonin v. Calderon, 59 F.3d 815, 845-46 (9th Cir.1995) (<HOLDING>). AFFIRMED. ** This disposition is not Holdings: 0: holding that the district court did not abuse its discretion in denying motion for new trial based on newly discovered evidence where the evidence would serve only to impeach testimony 1: holding that a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally 2: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 3: holding that district court erred in denying leave to amend complaint to add new legal theories even though trial was approaching 4: holding that district court did not abuse its discretion in denying a motion to strike when movant failed to show prejudice | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
which the defendant pleaded guilty.” Freeman, 131 S.Ct. at 2697. If the plea agreement “does not indicate the parties’ intent to base the term of imprisonment on a particular Guidelines range subsequently lowered by the Commission, then § 3582(c)(2) simply does not apply.” Id. at 2699, fn. 5. It is Justice Sotomayor’s concurring opinion in Freeman that is controlling and represents the holding of the Court. See United States v. Thompson, 682 F.3d 285, 290 (3rd Cir.2012) (“We therefore conclude, as has every other circuit to consider the question, that, because Justice Sotomayor’s opinion [in Freeman ] is narrower than Justice Kennedy’s, it expresses the holding of the Court.” (citations omitted)). See also Gregg v. Georgia, 428 U.S. 153, 169, n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (<HOLDING>). Unlike the plea agreement in Freeman, which Holdings: 0: holding of the court is the position taken by member who concurs in the judgment on the narrowest grounds 1: holding that a dismissal on limitations grounds is a judgment on the merits 2: holding that when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five justices the holding of the court may be viewed as that position taking by those members who concurred in the judgments on the narrowest grounds 3: holding of fragmented court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds 4: holding where movant asserts several grounds in support of its summary judgment motion and the trial court does not specify the grounds on which judgment was granted the reviewing court can affirm the judgment if any of the grounds are meritorious | [
"4",
"1",
"2",
"3",
"0"
] | [
"0"
] |
ground that it had inadvertently failed to apprise defendant or his attorney of its intent to impose an additional term of probation.”). 2. Information Considered Regarding Appropriate Sentence a. Breadth In assessing the. proper sentence, it has. “long [been] recognized that sentencing judges ‘exercise a wide discretion’ .in the types of evidence they may consider ... in determining the kind and extent of punishment to be imposed.” Pepper v.. United States, 562 U.S. 476, 480, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). “ ‘Highly relevant ... to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’” Id. (quoting Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)) (<HOLDING>). A “sentencing judge [is] to consider every Holdings: 0: holding that the district court may consider evidence of a defendants postsentence rehabilitation and that such evidence may support a downward variance from the federal sentencing guidelines 1: holding that when a defendants sentence has been set aside on appeal a trial court at resentencing may consider evidence of the defendants postsentencing rehabilitation 2: holding that resentencing should consider all sentencing arguments and remanding for court to consider defendants argument for downward departure based on postconviction rehabilitation 3: holding that the district court had the discretion to grant a downward departure for postsentence rehabilitation 4: recognizing that aberrant criminal behavior may justify downward variance | [
"2",
"3",
"4",
"1",
"0"
] | [
"0"
] |
However, provided that the aggregation of lost value for separate areas accurately reflects the diminution in value to all of the condemnee’s tract, it is unclear how such an approach is inherently unreliable or unfair. The Government cites no authority for its suggestion that a partial taking is assumed to affect the entirety of a condemnee’s tract on a uniform basis. To the contrary, such a notion seems artificial, particularly where, as here, the land taken is relatively small in area and fronts on a roadway while the remainder is sufficiently large that portions might have different characteristics relative to value and the taking might be expected to have less impact on more distant areas. Cf. United States v. 478.34 Acres of Land, Tract No. 400, 578 F.2d 156, 159 (6th Cir.1978) (<HOLDING>). Indeed, the drafters of the Model Eminent Holdings: 0: recognizing that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence internal quotation marks omitted 1: holding that an employer violates the nlra when it fails to provide information that is needed by the bargaining representative for the proper performance of its duties internal quotation marks omitted 2: holding that although the lower court had properly excluded evidence that the whole farm or a substantial portion of it could be subdivided in the near future there was sufficient evidence that the property was adaptable and needed or likely to be needed in the reasonably near future for home site development along the road internal quotation marks and citation omitted 3: holding that erroneous admission of evidence was harmless where it had no substantial and injurious effect or influence on the jury verdict judged in relation to the total evidence on the issue in question internal quotation marks omitted 4: holding with respect to a general motion for directed verdict that it raised the question as to the sufficiency of the evidence on venue an essential part of the governments case internal quotation marks and citation omitted | [
"1",
"0",
"4",
"3",
"2"
] | [
"2"
] |
essentially meaningless. The statute’s purpose of protecting employees whose benefits are threatened by their pension plan’s financial instability is best farthered by placing the functions most vital to participants’ well-being, interpreting the plan and determining benefits, with a fiduciary that is bound to act in their best interests. Taken together, the provisions of Title IV establish that, when PBGC is appointed a plan’s trustee following a decree of termination, it is subject to a fiduciary duty in all actions except those involving the function, statutorily reserved to the agency, of calculating the amount of benefits that are guaranteed under § 1322. Burstein v. Ret Account Plan for Employees of Allegheny Health Ed. and Res. Found., 334 F.3d 365, 381-82 & n. 23 (3d Cir.2003) (<HOLDING>). Thus, plaintiffs may maintain their claims Holdings: 0: holding that a termination of an erisa plans benefits must be based upon the plans terms and language 1: holding that a statute relates to erisa plans for the purposes of preemption if it requires the plans to purchase the benefits specified in the statute when they purchase a certain kind of common insurance policy 2: holding that pbgc acts as trustee for plans subject to termination except when it calculates guaranteed amounts under 1322 3: holding that the trustee of a nominee trust functions more as an agent than as a true trustee 4: holding that a state law requiring benefit plans to include minimum benefits related to erisa plans | [
"4",
"3",
"1",
"0",
"2"
] | [
"2"
] |
birth to a child who could possibly be afflicted with a physical abnormality. There is sufficient evidence in the record of this case to enable a jury to make that determination. In addition, in establishing proximate cause for wrongful birth, plaintiffs must show that the resulting birth defect was reasonably foreseeable, that is, not too remote in relation to defendants’ negligence, and that had defendants not been negligent, the pregnancy would have been terminated. See, e.g., Berman, supra, 80 N.J. at 426, 404 A.2d 8 (imposing liability for wrongful birth on premise that proximate cause was met where plaintiff, once notified that her child, if born, would have been afflicted with Down’s Syndrome, would have terminated pregnancy); Haymon v. Wilkerson, 535 A.2d 880, 882 (D.C.1987) (<HOLDING>); Proffitt v. Bartolo, 162 Mich.App. 35, 412 Holdings: 0: holding that plaintiff must establish that had she learned of impairment during her pregnancy she would have terminated pregnancy 1: holding appellant produced no evidence that when she made her complaints to management she ever mentioned that she felt she was being treated unfairly due to her race or sex 2: holding infertility is a pregnancy related condition where plaintiff claimed she was terminated because she took time off work to undergo in vitro fertilization 3: holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination 4: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired | [
"2",
"3",
"4",
"1",
"0"
] | [
"0"
] |
op., not designated for publication) (finding legally and factually sufficient evidence that the mouth of an HIV-positive defendant was a deadly weapon when defendant bit the complainant); Najera v. State, 955 S.W.2d 698, 700-01 (Tex.App.-Austin 1997, no pet.) (finding legally and factually sufficient evidence that defendant's penis and seminal fluids were capable of causing death); Weeks v. State, 834 S.W.2d 559, 561-65 (Tex.App.-East-land 1992, pet. ref’d) (finding evidence was sufficient to sustain HIV-positive defendant’s attempted murder conviction for spitting at complainant). 6 . John outcried about being anally raped before meeting with Garza, but the outcry did not entail any comment relating to the pain he felt. 7 . See Yount v. State, 872 S.W.2d 706, 712 (Tex.Crim.App.1993) (<HOLDING>). 8 . Emphasis added. 9 . See Leday v. State, Holdings: 0: holding that rules of evidence do not permit an expert to give opinion or state legal conclusions regarding a question of law 1: holding that federal rule of evidence 702 superceded the frye standard of admissibility of scientific evidence and that under rule 702 the district court had to determine that proffered expert testimony was both reliable and relevant 2: holding that an expert opinion on a question of law is inadmissible 3: holding that texas rule of evidence 702 does not permit an expert to give an opinion that the complainant or class of persons to which the complainant belongs is truthful 4: recognizing that the expert was particularly qualified to give his opinion | [
"4",
"1",
"2",
"0",
"3"
] | [
"3"
] |
or welfare that there is a virtual unanimity of opinion in regard to it....” Mamlin, 17 A.2d at 409. The legislature’s decision to lower the employee threshold from twelve to six to four, but not to one, indicates the lack of unanimous opinion that every employee should be protected from sex discrimination as Employee asserts. The legislature has had the opportunity to argue the merits of exempting small employers from compliance and to decide exactly where it should establish the threshold. It explicitly chose not to extend the protections against discrimination to employees of small employers. The wisdom of this decision is not before us. Where the legislature has spoken, we will not interpret statutory provisions to advance matters of public interest. See Geary, 319 A.2d at 176 (<HOLDING>). Rather, we are bound by the terms of the PHRA Holdings: 0: recognizing first two exceptions 1: recognizing constitutionally mandated exceptions to that statutory principle 2: recognizing three exceptions to atwill doctrine 3: recognizing exceptions to immunity 4: recognizing that the legislature can create statutory exceptions to atwill employment | [
"1",
"2",
"3",
"0",
"4"
] | [
"4"
] |
“clearly envisions that asbestos claims will be paid periodically as they accrue and as they are allowed,” since it requires courts to ensure that there will be sufficient funds available for both future demands and present claims to receive similar treatment. In re W. Asbestos Co., 313 B.R. 832, 842-43 (Bankr.N.D.Cal.2003). Therefore, differences in the timing of distributions and other procedural variations that have a legitimate basis do not generally violate § 1123(a)(4) unless they produce a substantive difference in a claimant’s opportunity to recover. See In re New Power Co., 438 F.3d at 1122-23 (concluding that a plan provision did not violate § 1123(a)(4) in part because it was “procedural rather than substantive”); cf. In re Dow Corning Corp., 280 F.3d 648, 660 (6th Cir.2002) (<HOLDING>). Under that standard, none of the provisions Holdings: 0: holding that the parentchild relationship is far more precious than any property rights 1: holding that where the claimants were servicemen injured or killed while on active duty due to the negligence of others in the armed forces they could not seek recovery under the ftca for injuries sustained that arose out of or were incident to their military service 2: holding a claimants injury report to a fellow employee did not satisfy the act because the claimants supervisor did not learn of the injury until six months later 3: holding that alj may not base adverse credibility finding on his perceptions of claimants pain at the hearing where record shows objective evidence of claimants pain 4: holding that a difference in the procedural protections offered to certain claimants violated 1123a4 because some claimants were accorded far more effective recovery rights than others | [
"1",
"3",
"2",
"0",
"4"
] | [
"4"
] |
motivated by something other than this litigation. Moreover, the capital infrastructure for collecting the tolls has been dismantled, hardly the behavior of a defendant that intended to return to its old ways upon dismissal of a case. In short, we have little cause to believe that the legislature repealed the tolls in order to immunize its actions from judicial review, and the voluntary cessation exception does not apply to save the mooted claims. B. Restitution Strictly speaking, the Town’s restitution claim may not be moot, unlike its claims for injunctive or declaratory relief. It is settled law that a claim for monetary relief, including restitution, may survive events that moot injunctive or declaratory relief. See N.L.R.B. v. Me. Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984) (<HOLDING>); see also Demelo v. U.S. Bank Nat’l Ass’n, 727 Holdings: 0: holding that the burden is on the defendant when the validity of the warrant is challenged 1: holding that a motion to terminate a consent decree was moot because the challenged provisions of the decree had expired 2: holding that a claim is not moot where there is a viable damages claim 3: holding that a sentencing decision will be affirmed if challenged factor is permissible and other factors are not challenged 4: holding that claim for cost reimbursement and making employees whole is not moot despite the defendant having ceased the challenged practice | [
"2",
"1",
"3",
"0",
"4"
] | [
"4"
] |
the subfreights prevented, as a matter of law, INB from validly receiving the subfreight fund, and that therefore the transfer of funds from POSCO could not have extinguished Cornish’s lien because it did not constitute legal payment of the subfreights to the charterer or its agent. Under our holding above, Cornish’s lien did not attach to the specific funds transferred by POSCO to INB; at the same time, this transfer was ineffective to extinguish Cornish's lien on POSCO's debt for subfreights. We note, in addition, that plaintiffs' argument incorrectly assumes that a Rule C arrest warrant is effective against property that comes into the possession of a garnishee after service of the warrant. See Reibor International Ltd. v. Cargo Carriers (KACZ-CO.) Ltd., 759 F.2d 262 (2d Cir.1985) (<HOLDING>); see also Union Planters National Bank v. Holdings: 0: holding that exclusionary rule does not extend to proceedings other than criminal trials 1: holding that an insurers obligation to defend an insured was a property interest subject to prejudgment attachment 2: holding that the attachment statute which did not expressly reach property beyond territorial limits of state would not be construed to apply to property outside state 3: holding that rule b attachment does not extend to afteracquired property 4: holding that the waiver of immunity from other liability did not explicitly waive immunity from prejudgment attachment but supporting the attachment on other grounds | [
"0",
"4",
"2",
"1",
"3"
] | [
"3"
] |
matter designated to the trial court." Ford v. Culp Custom Homes, Inc., 731 N.E.2d 468, 472 (Ind.Ct.App.2000), trams. denied. Thus, we may affirm the trial court's denial of the Association's motion for summary judgment if it sustainable on either basis. We conclude that the denial of the Asso-clation's motion for summary judgment if it is sustainable on the basis of laches. After the Association filed its motion for summary judgment, McGlothin responded by arguing, in part, that the Association lost the right to injunctive relief through "waiver, lashes [sic], or similar conduct." Appellant's Appendix at 76. The trial court denied the Association's motion for summary judgment, in part, because it found that genuine issues of material fact existed d 70, 73 n. 1 (Ind.Ct.App.1994) (<HOLDING>), reh'g demied. The Association makes no other Holdings: 0: holding that the rules of procedure are structured to provide the nonmovant with substantially more time for filing affidavits than the moving party because the nonmoving party should have an opportunity to examine and reply to the moving partys papers before the court considers them 1: holding that the affidavit in question did not satisfy the burden of the party moving for summary judgment where affiants eonclusory statement failed to indicate personal knowledge of the circumstances in question and personal knowledge could not be reasonably inferred from the contents of the affidavit 2: holding party did not waive right to arbitrate despite moving to dismiss and moving for summary judgment on opponents claim 3: recognizing that the burden on summary judgment shifts to the nonmoving party once the moving party has met its initial responsibility of showing the absence of a triable issue of fact and that the moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the case 4: holding that the party moving for summary judgment waived its argument that the opposing partys affidavit should not be considered because the moving party never objected to the timeliness of the affidavit to the trial court | [
"1",
"0",
"3",
"2",
"4"
] | [
"4"
] |
no report of any property crime, personal crime, or any weapons. The officer agreed that there was “nothing in Dispatch ... to imply that this may be a dangerous situation.” Id. Here, as in Hughes, there was no disturbance call or suspicious activity reported. The similarities end there, however. Before being ordered to stop, Mr. Charles raced up a flight of stairs. He then ran into an officer, and attempted to break the officer’s hold, pulling him down several steps at the same time. It is also a relevant consideration, though not necessarily dispositive, that the officers, upon arrival, encountered Mr. Charles along with several others at the apartment building, late at night, and in' a high-crime area. See Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (<HOLDING>). Although Mr. Charles’s response to his Holdings: 0: holding that ones presence in a high crime area late at night without more will not justify an investigatory stop 1: holding that the fact that an investigatory stop took place in a high crime area is pertinent to a terry analysis 2: holding that circumstances created reasonable suspicion for investigatory stop 3: holding that the forceable stop at issue was an investigatory stop rather than an arrest 4: holding that in a high crime area unprovoked headlong flight from police can form the basis for reasonable suspicion under terry | [
"4",
"0",
"2",
"3",
"1"
] | [
"1"
] |
“I hereby agree that any dispute related to my employment relationship shall be resolved exclusively through binding arbitration.” lb. Thus, this circumstance of Adler and Fred Lind Manor’s transaction does not support Adler’s claim of procedural unconscionability. 126 Nevertheless, we have cautioned that these factors should “not be applied mechanically without regard to whether in truth a meaningful choice existed.” Nelson, 127 Wn.2d at 131. Although Fred Lind Manor appears to have provided Adler with a reasonable opportunity to understand the terms of the agreement, and the important terms were not hidden, Adler and Fred Lind Manor offer remarkably different versions of the facts pertaining to the manner in which the contract was entered into. Cf. Luna, 236 F. Supp. 2d at 1177 (<HOLDING>). Consequently, we cannot make a determination Holdings: 0: holding the amount of procedural unconscionability was limited by the fact that the arbitration agreement was presented as a separate two page document 1: holding that courts should address a procedural unconscionability defense to the enforcement of an arbitration provision 2: holding that an arbitration agreement that was invalid due to unconscionability was not enforceable 3: holding that the plaintiff had failed to establish procedural unconscionability since he had a reasonable opportunity to consider the agreement and the arbitration clause was clearly set forth in the contract 4: holding that the plaintiffs failed to establish unconscionability based upon the alleged excessive cost of arbitration because they failed to supply information as to the actual costs that might be incurred | [
"1",
"0",
"4",
"2",
"3"
] | [
"3"
] |
connection test” of Rule 701 requires that the opinion or inference is one that a normal person would form on the basis of the observed facts. Carton v. Mo. Pac. R.R. Co., 303 Ark. 568, 571-72, 798 S.W.2d 674, 675 (1990). We will not reverse a court’s decision to admit relevant evidence absent an abuse of discretion. Moore v. State, 323 Ark. 529, 549, 915 S.W.2d 284, 295 (1996). We cannot say that the court abused its discretion in permitting Dr. Doland to testify without first requiring DHS to qualify her as an expert witness. In our view, Dr. Doland’s opinion that someone would have more extensive burns if they fell into a bathtub of scalding water is an opinion that a normal person could form on the basis of the observed facts. See Carton, 303 Ark. at 572, 798 S.W.2d at 676 (<HOLDING>). Moreover, appellant cross-examined Dr. Doland Holdings: 0: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 1: holding that opinion that fuel oil on her shoes caused her to fall is one which a normal person would form on the basis of observed facts 2: holding that a wifes net worth of approximately 62000 demonstrated her ability to pay her own attorneys fees notwithstanding her objection that her assets were illiquid in the form of home equity and a state retirement account 3: holding that an experts opinion must be based on facts in evidence or within his or her knowledge and that the admission of an experts opinion is reviewed for an abuse of discretion 4: holding that the plaintiffs claim of being startled by a child on a slide did not prevent summary judgment in her case because t he simple fact wa s that the plaintiff had actual knowledge of the hazard which caused her fall prior to encountering it | [
"3",
"4",
"0",
"2",
"1"
] | [
"1"
] |
and crashing. Id. at 1327. The court determined the persons to be stopped in the vehicle were “stopped by the very instrumentality set in motion ... to achieve that result,” when an officer fired his weapon to stop the passenger and driver, and one of those bullets struck the passenger. Id. at 1329. But, unlike Vaughan, a significant difference exists here because the instrumentality meant to stop Mr. Brooks — the bullet from Deputy Gaenzle’s gun — did not stop him, and therefore, the intended result was not achieved. We are not alone in interpreting Supreme Court precedent as requiring intentional termination of movement or acquisition of physical control in flight situations, regardless of the force applied. See, e.g., United States v. Bradley, 196 F.3d 762, 768 (7th Cir.1999) (<HOLDING>); United States v. Hernandez, 27 F.3d 1403, Holdings: 0: holding that an arrest requires either physical force or where that is absent submission to the assertion of authority 1: holding that an officer may use deadly force when a fleeing suspect threatens the officer with a weapon 2: holding force to be an element of pre1994 amendment 111 which may be satisfied by proof of force or threat of force 3: holding there must be either a show of authority or a use of force which must have caused the fleeing individual to stop attempting escape 4: recognizing that an arrest requires either physical force or where physical force is absent submission to the assertion of authority | [
"0",
"4",
"1",
"2",
"3"
] | [
"3"
] |
we must first address a procedural matter. It is the State’s contention that the Texas Code of Criminal Procedure rather than the Texas Rules of Appellate Procedure, controls the disposition of appellant’s first point of error. At the time of appellant’s guilty plea, Code of Criminal Procedure, Article 40.09 controlled the appellate process as to the record on appeal and therefore, the State contends, it should be followed in this appeal. The State asserts that Code of Criminal Procedure, Article 40.09 limits the appellate record to all matters developed at the trial, thereby precluding testimony from the evidentiary hearing ordered by the Court of Criminal Appeals pursuant to appellant’s petition for writ of habeas corpus. See Farris v. State, 712 S.W.2d 512, 515 (Tex.Crim.App.1986) (<HOLDING>). We disagree with the State’s assertion that Holdings: 0: holding that amendments to procedure apply to both pending and future matters 1: holding that all related matters must be arbitrated 2: holding that criminal defendant was not entitled to a jury trial on the issue of restitution under the oregon vehicle code 3: holding trial court erred by imposing sanctions under section 9 of civil practice and remedies code because claim for sanctions was based solely on section 10 of code and rule 13 of rules of civil procedure 4: holding under code of criminal procedure record refers to all matters developed at trial | [
"0",
"2",
"3",
"1",
"4"
] | [
"4"
] |
may recover twice or more for some elements of damages— one from the tortfeasor who caused the harm and again from any source of benefits collateral to the tortfeasor. Such multiple recovery, however, is the by-product of the rule and not a principle of the rule itself nor a policy at the foundation of the rule.” J. Kircher, “Insurer Subrogation in Wisconsin: The Good Hands (Or A Neighbor) in Another’s Shoes,” 71 Marq. L. Rev. 33, 51-52 (1987). “The types of payments that typically come within the collateral source rule include insurance proceeds, medical benefits, and payments made by an employer pursuant to a statutory compensation scheme.” (Emphasis added.) Rametta v. Stella, 214 Conn. 484, 490, 572 A.2d 978 (1990); see also Apuzzo v. Seneco, 178 Conn. 230, 233, 423 A.2d 866 (1979) (<HOLDING>); Healy v. White, 173 Conn. 438, 448, 378 A.2d Holdings: 0: holding 1001 prosecution for false statements in unemployment benefits not precluded by unemployment benefits statute specifically addressing topic 1: holding that medical expenses and wages paid pursuant to employment contract were collateral sources and that defendant could not reduce personal injury damages because of such benefits 2: holding that unemployment compensation benefits received by plaintiff are collateral source and that defendant could not reduce personal injury damages because of such benefits 3: holding that the consideration of the fact that claimant collected unemployment benefits while he was allegedly disabled was not a ground for reversal where there was other medical and vocational evidence supporting denial of benefits and claimants receipt of unemployment benefits was not decisive factor in denial of benefits 4: holding that pursuant to statute unemployment benefits must be offset against workers compensation payments | [
"4",
"3",
"1",
"0",
"2"
] | [
"2"
] |
would have acted had it known the true facts is “one of fact requiring testimony by the insurer’s representatives” that implicates “the subjective view of what a particular insurer would or would not have deemed material if it had known the true facts.” Singer, 512 So.2d at 1129 (discussing the earlier version of section 627.409 but concluding that this determination is subjective in nature and thus requires witness testimony). Florida courts have granted summary judgment in favor of insurers where an insured’s misrepresentation on an insurance application was , “of that character which the court can say would reasonably have affected the insurer’s judgment as to the nature of the risk and amount of premium.” Id. at 1128 (citation omitted); see also Salgado, 22 So.3d at 596-97, 604 (<HOLDING>); Kieser v. Old Line Life Ins. Co. of Am., 712 Holdings: 0: recognizing an insurers right to rescind an insurance contract where the insured has made fraudulent or material misrepresentation in insurance application 1: holding that defendant insurance company could not be held liable in negligence to a plaintiff for failure to disclose the insureds medical condition where defendant insurance company had not assumed a professional and expert position with respect to the insureds physical condition 2: holding that insurance company could sue in insureds name following assignment of insureds interest against tortfeasor 3: holding an insurance company waived the right to rescind coverage when it continued to accept premiums with knowledge of grounds for rescission 4: holding that insureds failure to list his brother as a member of the household was a material misrepresentation that provided the insurance company with grounds to rescind the policy | [
"0",
"3",
"1",
"2",
"4"
] | [
"4"
] |
was a probability of reaching a verdict. Further, the district court admonished jurors to answer these two questions with a simple “yes or no.” It did not attempt to target the holdout jurors or to determine which way the votes fell. If anything, the district court was attempting to avoid this effect. Also, there were no further instructions or lectures from the judge, and despite defense counsel’s own suggestion, the judge did not place a time limit on deliberations. See State v. Nelson, 63 N.M. 428, 433, 321 P.2d 202, 205 (1958) (pointing out that the district court’s repeated reminders of what jurors said on voir dire regarding death penalty was coercive on the one holdout juror); see also Pirch v. Firestone Tire & Rubber Co., 80 N.M. 323, 326-27, 455 P.2d 189, 192-93 (Ct.App.1969) (<HOLDING>). {57} Nor is there any evidence of juror Holdings: 0: holding that a 16 month relationship was not of sufficient length 1: holding new trial required after judges ex parte communication with jury in response to jury question during deliberations because there was no way of reaching a conclusion about what transpired other than by adopting the judges recollection 2: holding that under the circumstances the deception was so unfair as to be coercive 3: holding that judges remarks relating to length of trial expense involved importance of case and setting time limit on deliberations was coercive 4: holding that allen charge given by court was coercive and required a new trial | [
"4",
"2",
"0",
"1",
"3"
] | [
"3"
] |
towards the child or that the child actually be injured; rather, a child is endangered when the environment creates a potential for danger which the parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex.App.-Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to have had certain knowledge that one of the [sexual molestation] offenses actually occurred; it is sufficient that she was aware of the potential for danger to the children and disregarded that risk by ... leaving the children in that envi fender, who usually lived near criminals and drug addicts, and who lived a transient lifestyle. See id. (<HOLDING>); Hann v. Tex. Dep’t of Protective & Regulatory Holdings: 0: holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother endangered childs physical and emotional wellbeing by leaving child alone overnight with known cocaine abusers 1: holding evidence legally and factually sufficient to terminate mothers parental rights under section e for endangering physical wellbeing of child based in part on evidence that mother remained with physically abusive person while she was pregnant 2: holding evidence supported terminating mothers parental rights under section d based in part on evidence that mother could not adequately protect or provide financially for children 3: holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother placed children with father who lived transient lifestyle with children 4: holding evidence insufficient to terminate mothers parental rights under section c because mother made arrangements for adequate support of children evidence showed mother left children with father who maintained steady employment and adequately supported children mother knew that father would provide adequate support and mother left children pursuant to agreed divorce decree | [
"1",
"2",
"0",
"4",
"3"
] | [
"3"
] |
Christopher Village, L.P. v. United States, 360 F.3d 1319, 1329 (Fed.Cir. 2004). "In most circumstances a judgment may not be collaterally attacked on the ground that the original tribunal lacked subject matter jurisdiction, even if the issue of subject matter jurisdiction was not litigated in the first action”; Id. at 1329-30 (citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinea, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982))(explaining that principles of res judicata apply to the issue of subject matter jurisdiction, and that "[a] party that has had an opportunity to litigate the question of subject matter jurisdiction may not ... reopen that question in a collateral attack upon adverse judgment.”); see also Restatement (Second) of Judgments § 12 (1982) (<HOLDING>). Here, res judicata applies because the Holdings: 0: recognizing this texas rule 1: recognizing this rule 2: recognizing this as the general rule 3: recognizing a split of authority on this issue 4: recognizing exceptions to this rule when allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government which is not applicable in this situation | [
"3",
"2",
"0",
"1",
"4"
] | [
"4"
] |
that he is under arrest and handcuffed); State v. Clausen, 113 Wn. App. 657, 660-61, 56 P.3d 587 (2002) (finding custodial arrest when a detainee is told he is under arrest and will be released after booking)). In Radka, the defendant was told he was under arrest and placed in the patrol car, but without handcuffs. He was allowed to make numerous cell phone calls while he remained in the car. The court concluded that such circumstances would lead a reasonable detainee to believe that he was not under custodial arrest. Id. at 50. Consequently, although the officer had probable cause for a custodial arrest of the defendant, the lack of actual custodial arrest rendered the subsequent search of Radka’s car unconstitutional. See also State v. O’Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003) (<HOLDING>). ¶18 The circumstances surrounding Glenn’s Holdings: 0: holding that reasoning which would justify the arrest by the search and at the same time justify the search by the arrest will not do 1: holding that the searehincidenttoalawfularrest rule does not apply to a warrantless search that provides the probable cause for the subsequent arrest because one cannot justify the arrest by the search and then simultaneously justify the search by the arrest 2: holding that a search incident to a lawful arrest does not violate the fourth amendment 3: holding that an officer may search a suspects vehicle incident to a lawful arrest 4: holding that a lawful custodial arrest is a prerequisite to a search since the arrest is the authority of law justifying the search | [
"1",
"0",
"3",
"2",
"4"
] | [
"4"
] |
law.” Moreover, the allocation of the burden of proof in such administrative proceedings is set forth in the director’s regulations, which provide that: “The appellant has the burden of proving that the actions appealed were arbitrary, capricious or contrary to rule or law.” Administrative Procedure P10-3-8, 4 Code Colo.Reg. 801-2 (1987). Thus, under the applicable statutory and regulatory scheme here, the burden of proof was properly placed on plaintiff to show the panel that the selection and examination process conducted for the state lottery director position was arbitrary, capricious, or contrary to rule or law. Section 24-50-112(3)(a); Administrative Procedure P10-3-8, 4 Code Colo.Reg. 801-2 (1987); see Renteria v. Colorado State Department of Personnel, 811 P.2d 797 (Colo. 1991) (<HOLDING>); see also § 24-4-105(7), C.R.S. (1988 Holdings: 0: holding that traditional allocation of burden of proof to the party challenging the decisions applies to decisions under the tca 1: holding that a similar instruction reduced the states burden of proof 2: holding that similar burden of proof was properly placed on appellant in administrative appeal brought under provisions of comparable statute concerning the allocation of positions in the state personnel system 3: holding that in the absence of an express statutory allocation of the burden of proof the board of immigration appealss placement of the burden on the alien was reasonable under chevron 4: holding that the burden of proof is on the claimant | [
"1",
"3",
"4",
"0",
"2"
] | [
"2"
] |
constitutional and other rights.” Rule 10-101(B) NMRA 2002. The purposes of the Children’s Code and the children’s court rules are similar and we see nothing to prevent the application of Rule 10-230.1(B) ninety-day limit for determining a child-initiated motion to reconsider filed pursuant to Section 32A-2-23(G). {16} Child also acknowledges that both this Court and the Supreme Court have held thirty- and ninety-day jurisdictional time limits to be reasonable. See State v. Trujillo, 117 N.M. 769, 771, 877 P.2d 575, 577 (1994); Hayes, 106 N.M. at 808, 751 P.2d at 188 (stating that as a matter of law a motion is denied if the court does not enter a final ruling on it within a reasonable time frame of ninety days); Chavez-Rey v. Miller, 99 N.M. 377, 380, 658 P.2d 452, 455 (Ct.App.1982) (<HOLDING>). Child argues that his case can be Holdings: 0: holding that trial court has no power to allow party to amend motion for new trial more than thirty days after trial court signed the final judgment and that denial of amended motion for new trial filed more than thirty days after judgment preserved nothing for appellate review 1: holding court lost jurisdiction to enter its order after thirty days and the motion was denied by operation of law 2: holding that the requirement to serve a motion for attorney fees or costs within thirty days after filing of judgment applies even where the final judgment reserves jurisdiction to award same 3: holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment 4: holding that a coa is deemed denied if the district court does not address its issuance within thirty days | [
"2",
"3",
"0",
"4",
"1"
] | [
"1"
] |
made the transfer or incurred the obligation: (1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (ii) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. 3 . This narrow interpretation of implied consent is not exclusive to the First Circuit; but rather has been established in several circuits. See e.g., Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 358 (6th Cir.1992) (<HOLDING>); Wesco Mfg., Inc. v. Tropical Attractions of Holdings: 0: holding that when a contract is signed by one party but not the other the manifestation of consent by the nonsigning party is sufficient to bind that party 1: holding that a party waived an allegation that an instruction was erroneous where the party failed to object at trial to the instruction on those grounds 2: holding that evidence which is relevant to a pleaded issue as well as an unpleaded issue does not give opposing party adequate notice that the unpleaded issue is entering the case 3: holding that implied consent is not established merely one party introduced evidence relevant to an unpleaded issue and the opposing party failed to object 4: holding that the opposing party must show substantial harm | [
"4",
"0",
"1",
"2",
"3"
] | [
"3"
] |
(“Although there need not be the kind of hearing required if factual damages were the issue, there must, we think, be either some hearing or sufficient affidavits to give the trial judge an adequate reference base for his judgment.”) See also M. Nimmer & D. Nimmer, Nimmer on Copyright § 14.04[B][l][a] (2001) (“In considering the factual basis for a statutory damages award when [a] jury trial has been waived, there need not be a hearing of the sort required for an award of actual damages or defendant’s profits. Nonetheless, even in those circumstances, the defendant should be accorded some hearing on the issue, or sufficient affidavits to give the trial judge an adequate basis for his judgment.” (Footnotes omitted)). Cf. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir.1979) (<HOLDING>). Thus, as long as the parties are afforded an Holdings: 0: holding that district courts order granting motion for default judgment was erroneous because a default judgment cannot be entered until the amount of damages has been ascertained 1: holding that statutory damages under 504c could not be awarded in conjunction with a default judgment without a hearing or a demonstration by detailed affidavits establishing the necessary facts 2: holding that trial court must make entry of default prior to entry of default judgment and court may not make entry of default when there is no default in law or in fact 3: holding that a motion to dismiss or for summary judgment precluded default judgment 4: holding that district court did not abuse its discretion by entering default judgment without first holding evidentiary hearing where there was no uncertainty about the amounts at issue the pleadings contained specific dollar figures and the court requested and received affidavits in support of the default judgment | [
"0",
"2",
"4",
"3",
"1"
] | [
"1"
] |
relief from removal. Forgue, 401 F.3d at 1287. “Conversely, an adverse credibility determination alone may be sufficient to support the denial of an asylum application.” Id. “[A]n adverse credibility determination, [however], does not alleviate the IJ’s duty to consider other evidence produced by an asylum applicant,” and it is not sufficient for the IJ to rely on the adverse credibility finding alone, if the applicant produces other evidence of persecution. Id. “The weaker an applicant’s testimony, ... the greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.2005). This Court has held that an applicant’s failure to mention certain aspects of his claim before the hearing can support an adverse credibility finding. Forgue, 401 F.3d at 1287 (<HOLDING>). Upon review of the record and the briefs of Holdings: 0: holding that in light of an applicants omission of various relevant facts from his asylum application substantial evidence supported the ijs adverse credibility determination 1: holding that an asylum applicants submission of false documents without an adequate explanation supported adverse credibility findings 2: holding that the failure to list two collateral incidents on an asylum application did not provide substantial evidence for an adverse credibility finding 3: holding when one identified ground for an adverse credibility determination is supported by substantial evidence and goes to the heart of petitioners claim of persecution the court is bound to accept the ijs adverse credibility determination 4: holding that an adverse credibility determination is sufficient to deny asylum | [
"1",
"3",
"4",
"2",
"0"
] | [
"0"
] |
P.2d 1275 (1991). Here LKO sued for a judicial declaration of its understanding of the agreement with Mr. Fair and TCG. ¶25 In Hizey, clients sued their attorney and alleged legal malpractice based on the lawyer’s conflict of interest. Hizey, 119 Wn.2d at 256-57. The trial judge refused to let an expert testify on rules of professional conduct and refused to instruct the jury on those rules. Id. at 257-58. The Supreme Court affirmed. The court held that a violation of ethics rules must be pursued through a disciplinary proceeding. Id. at 259. And the court held that such violations may not serve as the basis for a private cause of action. Id. at 259, 261. The court reasoned that a claim for legal malpractice focuses on the duty of care owed to the client, which is establishe 28 (1991) (<HOLDING>)). At least one legal scholar has suggested Holdings: 0: holding contract for sale of law practice which included duty on part of selling attorney to refer clients as consideration for the sale violated rpc 1: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable 2: holding that the validity of a contract for a commission for the sale of real estate is determined by the law of the state where the contract is made 3: holding that an agreement in which one party promised to make monthly payments to the other partys attorney as part of an asset sale contract was for the direct benefit of the attorney 4: holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale | [
"3",
"4",
"2",
"1",
"0"
] | [
"0"
] |
present in the United States for a continuous period of not less than ten years immediately preceding the date of the application for cancellation of removal; (2) has been a person of good moral character during such period; (3) has not been convicted of certain criminal offenses; and (4) can establish that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent or child, who is a permanent resident or citizen of the United States. 8 U.S.C. § 1229b(b)(l). An alien is precluded from establishing the required good moral character if he or she has “been confined, as a result of conviction, to a pen alysis applies to decisions regarding eligibility for relief under 8 U.S.C. § 1255. See, e.g., Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st Cir.2005) (<HOLDING>); Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Holdings: 0: recognizing that the trial court is not precluded from enforcing its judgment even though an appeal is pending 1: recognizing burden is on alien when alien is removable 2: holding that a determination that precluded an alien from even applying for relief under section 1255 is a purely legal question that is reviewable 3: holding that for purposes of section 523a2b the reasonableness of a creditors reliance is a question of fact which is reviewable only for clear error 4: holding that whether a city has the authority to enact a particular statutory scheme is a purely legal question | [
"4",
"1",
"3",
"0",
"2"
] | [
"2"
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.