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which objection is made. [The district court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). However, to obtain this de novo review of a magistrate judge’s R & R, an objecting party “must point out the specific portions of the report and recommendation to which [he] object[s].” U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012). If a party “makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.2008); see also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir.2002) (<HOLDING>). Portions of the R & R to which a party makes Holdings: 0: holding that error was preserved by running objection because of defendants immediate objection to states specific question in combination with trial courts comments showing that it understood nature of defendants objection 1: holding that plaintiffs objection to an r r was not specific enough to constitute an adequate objection under fedrcivp 72b 2: holding that parties waived any choice of law objection by not raising an objection 3: holding that an objection was adequate when the judge cut short the objection and the defendant was not afforded the opportunity to explain his objection fully 4: holding that a party fails to preserve an evidentiary issue for appeal not only by failing to make a specific objection but also by making the wrong specific objection | [
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had an adequate remedy at law. The gist of appellants’ counterclaims is that American is a competitor and is unlawfully attempting to restrict them ability to maintain a competing business. Appellants’ complaint fails initially because they failed to support them written motion for continuance with an affidavit as required by rule 251. Tex.R. Civ. P. 251. Generally, when a movant fails to comply with rule 251, we presume the trial court did not abuse its discretion by denying a motion for continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.-Fort Worth 1999, pet. denied); see also TriSteel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448-49 (Tex.App.-Fort Worth 2005, pet. denied) (<HOLDING>). Appellants did not comply with rule 251; Holdings: 0: holding trial court did not abuse its discretion in denying a continuance to allow defendant to present mitigating evidence in the form of letters and affidavits from family members when they were not requested until the day before the hearing 1: holding that the district court did not err by concluding that the bankruptcy court did not abuse its discretion in denying motion for continuance motion to withdraw and motion for reconsideration and rehearing 2: holding that trial court did not abuse its discretion in denying defendants motion for a continuance when record showed that contrary to defendants contention state did not fail to comply with discovery duties and that defendant failed to show that denial resulted in harm to his case 3: holding that district court did not abuse its discretion in denying a motion to strike when movant failed to show prejudice 4: holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form | [
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and he accompanied the officers in their search of the garage, during which the officers discovered sixty-five bundles of marihuana. • The time between the officers’ arrival at appellant’s residence and appellant’s written consent was about ten to fifteen minutes. We conclude that the totality of the circumstances, as outlined above, show appellant’s consent was not freely and voluntarily given. Rather, appellant’s consent was the result of coercive police tactics aimed at forcing appellant to consent to a search of his residence. First, the officers knew they could not obtain a warrant to search appellant’s residence solely based upon the anonymous tip because the tip, standing alone, did not establish probable cause. See State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002) (<HOLDING>); see also Elardo v. State, 163 S.W.3d 760, 768 Holdings: 0: holding anonymous tip that someone at the residence was dealing drugs did not amount to anything the tip was never substantiated and none of the occupants were ever charged with drug dealing 1: holding that there was sufficient probable cause to search a defendants residence after evidence of drug dealing was found in his car during a traffic stop that was conducted when the defendant was coming from his residence and noting that under such circumstances a practical commonsense conclusion could be made that the drugs and money had been at the defendants residence a short time before the stop 2: holding that the officers had sufficient evidence to believe that the defendant was inside the residence to execute the arrest warrant because the officers relied on the anonymous tip given to the defendants parole officer the drivers identification of the defendant as meaty in a photograph and his assertion that meaty was in the residence at that time selling drugs 3: holding that the fact that the defendant did not handle the drugs is not dispositive of his involvement in drug dealing 4: holding an informants tip can establish reasonable suspicion without investigative confirmation if the tip is credible | [
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first argues that the district court exceeded its constitutional authority under the Sixth Amendment when it imposed “an enhancement based on facts not admitted by him and not found by a jury.” He acknowledges, however, that the line of cases beginning with Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), permits factfinding by the court regarding the nature of a prior conviction. But he wishes to preserve the issue in the event that the Supreme Court reconsiders Almendarez-Torres. By Ossa-Gallegos’s own admission, the district court’s classification of his prior sexual-assault conviction as violent does not violate his Sixth-Amendment rights under the current state of the law. See United States v. Richardson, 437 F.3d 550, 555 (6th Cir.2006) (<HOLDING>). The 16-level enhancement under the Holdings: 0: holding that the armed career criminal designation based on prior convictions does not violate the sixth amendment under booker 1: holding that a sentencing court may determine the nature of a prior conviction without violating the sixth amendment 2: holding that defendants sixth amendment right to trial by a jury was not violated by district courts reliance on his prior convictions for purposes of sentencing under the acca even though convictions were neither charged in indictment nor admitted 3: holding that controlling law both before and after booker counsels that a judge can make factual findings about a defendants prior convictions without implicating the sixth amendment 4: holding that defendants sixth amendment right to trial by a jury was not violated by district courts reliance on his prior convictions for purposes of sentencing as career offender | [
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Fed.R.Evid. 501 applies. This rule provides, in essence, that when the claims before the court are based in state law, the state privileges apply; but when the claims are based in federal law, the common law privileges apply. In spite of the distinction made by the Fed.R.Evid. 501, it has been held that when the information made privileged by state law “is relevant for both the federal and the state claims, the movant must rely upon a privilege developed by the federal courts and not state law privileges.” Sirmans v. City of South Miami, 86 F.R.D. 492, 495 (S.D.Fl.1980); see also, Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 226 (D.Ma.1997); Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir.1992); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir.1982)(<HOLDING>). Such is the case here. Notwithstanding the Holdings: 0: holding that when there are federal law claims in a case also presenting state law claims the federal rule favoring admissibility is the controlling rule the court found this approach consistent with the rule in federal practice disfavoring privileges not constitutionally based 1: holding that the plaintiffs state law claims are preempted by federal law 2: holding that the federal rule favoring admissibility of relevant evidence applies to state law claims in federal cases to which state law privileges might oth erwise apply 3: holding that exclusionary rule to be applied as a matter of state law is no broader than the federal rule 4: holding that a federal court may resort to state law analogies for the development of a federal common law of privileges in instances where the federal rule is unsettled | [
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ND 161, ¶ 5, 652 N.W.2d 354, and states that “[a]ny party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within 30 days after notice of the order has been given as required by section 28-32-39.” An “order” is defined in N.D.C.C. § 28-32-01(7) as “any agency action of particular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.” Section 28-32-42(3)(a), N.D.C.C., emphasizes that “[o]nly final orders are appealable. A procedural order made by an administrative agency while a proceeding is pending before it is not a final order.” [¶ 7] The requirement o N.W.2d 249, 251 (N.D.1992) (<HOLDING>); Ceartin v. Ochs, 479 N.W.2d 863, 865 Holdings: 0: holding that a disqualification order in a criminal case is not appealable 1: holding order granting a new trial is not a final appealable order because it does not terminate the action or any of the claims or parties in the action 2: holding that this court lacked preliminary authority to review the district courts jurisdiction because there was no immediately appealable order before the court 3: holding order partially vacating a judgment was not appealable because it does not provide the ultimate decision in the case and questions remained before the district court 4: holding appealable a case dismissed in effect by the district courts order | [
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of law better left for the court to decide.”). We reverse the district court’s order insofar as it grants the defendants’ motion for judgment as a matter of law on the plaintiffs claim for arrest without probable cause under § 1983. In this case, the district court erred by considering the jury verdict' from the common law false arrest claims in its qualified immunity analysis. As explained above, whether a right is “clearly established” — ’that is, whether an objectively reasonable officer would have believed his conduct to be law ful, in light of clearly established law — is a question of law that must be resolved by the court, not the jury. We reverse the district court on this issue and remand for a determination of whether the defendants are entitled to 178, 183-84 (4th Cir.1996) (<HOLDING>); Castellano v. Fragozo, 352 F.3d 939, 953-54 Holdings: 0: holding that a 1983 due process claim that essentially contests the fairness of the plaintiffs prosecution is similar to his malicious prosecution claim and claims resembling malicious prosecution do not accrue until the prosecution has terminated in the plaintiffs favor 1: holding that the fourth amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person 2: holding that a plaintiffs allegations that the defendant seized him pursuant to legal process that was not supported by probable cause and that the criminal proceedings terminated in his favor are sufficient to state a 1983 malicious prosecution claim alleging a seizure that was violative of the fourth amendment 3: holding that section 1983 claims alleging due process violations stemming from malicious prosecution are unavailable when a state malicious prosecution action exists 4: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same | [
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petition, in contrast, seeks the very different relief of rescinding the plea agreement, and it attacks the validity of his conviction and sentence. It is settled that “[mjotions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution,” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002), and a federal prisoner can seek relief under § 2241 only if the remedy provided by § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Ryan’s attempt to void his plea agreement as a result of the government’s alleged breach must be brought in proceeding under § 2255. See Nichols v. Symmes, 553 F.3d 647, 649-50 (8th Cir. 2009) (<HOLDING>); see also United States v. Eakman, 378 F.3d Holdings: 0: holding that district court did not abuse its discretion in denying a motion to withdraw guilty plea filed three weeks after entering the plea 1: holding that the court had no jurisdiction over an alleged breach of a plea agreement 2: holding that prisoner who sought to withdraw guilty plea based on alleged breach of plea agreement due to his placement in a federal rather than a state prison facility had to bring claim under 2255 not 2241 3: holding that a defendant who is allowed to withdraw his plea must either withdraw his plea to all charges or to none when his plea to all charges was part of an agreement with the state 4: holding that a defendant may withdraw a guilty plea as a matter of right before it is accepted by the court based on ndr crim p 32d3 which states that a defendant may not withdraw his plea of guilty as a matter of right once the plea has been accepted by the court alteration in original | [
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The record shows that the district court considered the § 3553(a) sentencing factors in denying Perez’s motion for reduction. The district court was not required to expressly refer to the specific § 3553(a) factors or provide more specific reasons in support of its determination that a reduction was not warranted. See Whitebird, 55 F.3d at 1010; Henderson, 636 F.3d at 718. As for Perez’s argument that the district court should have applied the analysis in Pepper, the holding in Pepper applied to the consideration of post-sentencing reha bilitation when resentencing after a defendant’s sentence had been vacated on appeal, not on a motion to reduce a sentence under § 3582(c)(2). See 562 U.S. at 490, 131 S.Ct. 1229; United States v. Harris, 643 Fed.Appx. 340, 341-42 (5th Cir. 2016) (<HOLDING>). AFFIRMED. * Pursuant to 5th Cir. R. 47.5, the Holdings: 0: recognizing this distinction in case with eeoc intervention 1: recognizing this distinction 2: recognizing the boggs distinction 3: recognizing this distinction between 2l12 and 4b12 4: recognizing distinction made by majority | [
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bank is probably prohibited from dishonoring the check that is otherwise valid. Finally, case law dealing with similar facts has addressed whether the creditor must turn over the funds, not its receipt of the property after lawful presentment of a negotiable instrument. See, e.g., In re Thomas, 311 B.R. 75, 79-80 (Bankr. W.D.Mo.2004). The Seventh Circuit’s decision in In re Roete, 936 F.2d 963 (7th Cir.1991), is not instructive as the check in that case was dishonored. The Supreme Court’s decision in Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995), also is not helpful because the bank froze the debtor’s account without violating the automatic stay to preserve its setoff rights, and setoff rights are not present 290 B.R. 487 (Bankr.S.D.N.Y.2003) (<HOLDING>); In re Boscia, 237 B.R. 184 Holdings: 0: holding creditor willfully violated the automatic stay in refusing after notified of debtors bankruptcy filing to turn over debtors funds in his possession 1: holding refusal to turn over property seized prepetition constituted violation of stay once notice of the stay had been given 2: holding that the automatic stay terminates as to the debtor personally and as to his nonestate property but that the stay persists as to property of the bankruptcy estate 3: holding that creditors failure to voluntarily turn over property lawfully seized prepetition constituted violation of automatic stay 4: holding secured creditors refusal to turn over property of debtors estate to debtor upon demand constituted an exercise of control over such property in violation of automatic stay | [
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authori 782 N.E.2d 275, 280-81 (2002) (detention for fifteen minutes to write out ticket while awaiting arrival of drug-sniffing dog called at outset of stop held unreasonable absent reasonable suspicion); Haas v. State, 172 S.W.3d 42, 50 (Tex.App.-Waco 2005, pet. ref’d) (citing United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.1993)) (noting, under appropriate circumstances, extensive questioning about matters wholly unrelated to routine traffic stop may violate Fourth Amendment). 29 . Caballes, 543 U.S. at 407, 125 S.Ct. at 837. 30 . Kothe, 152 S.W.3d at 64; Davis, 947 S.W.2d at 245 (purpose of stop for suspicion o 392 U.S. at 32-33, 88 S.Ct. at 1885-86 (Harlan, J., concurring)); see also United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002) (<HOLDING>). 46 . Bostick, 501 U.S. at 436, 111 S.Ct. at Holdings: 0: holding that one does not arouse reasonable suspicion merely by attempting to walk away from the police 1: holding only reasonable suspicion is required to conduct a field sobriety test 2: holding that while each separate item standing alone did not provide reasonable suspicion a combination of factors clearly satisfied the reasonable suspicion requirement 3: holding that the excluded evidence required a finding of reasonable suspicion 4: holding reasonable suspicion not required provided police do not induce cooperation by coercive means | [
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and the items that could be seized. The government agents responsible did not minimize intrusions on privacy, however, but instead seized papers and records beyond those the warrant authorized. See United States v. Rettig, 589 F.2d 418, 423 (9th Cir.1978) (concluding that although the warrant was sufficiently particular, the executing “agents did not confine their search in good faith to the objects of the warrant, and that while purporting to execute it, they substantially exceeded any reasonable interpretation of its provisions”). Unlike cases where the magistrate judge erred in filling out the warrant but the government reasonably relied on the judge’s approval, here the magistrate judge properly authorized the warrant but the agents did not follow it. See Hurd, 499 F.3d at 969 (<HOLDING>); United States v. Hitchcock, 286 F.3d 1064 Holdings: 0: holding that officers reasonably relied on the warrant though judge inadvertently failed to initial the appropriate line 1: holding that the warrant application at issue did not specifically mention the presence of criminal activity at defendants residence but that the executing officers reasonably relied on the warrant 2: holding that if the application for a warrant contains probable cause apart from the improper information then the warrant is lawful and the independent source doctrine applies providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry 3: holding that the warrant application at issue did not specifically mention the presence of criminal activity at defendants residence but that the executing officers reasonably relied on warrant 4: holding that executing officers reasonably relied on judges determination that there was probable cause to search motel room even though search warrant affidavit failed to mention a connection between motel room and criminal activity | [
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district court concluded, however, that McVeigh had not come close to establishing a reasonable basis to believe that he would be able to satisfy the exceedingly demanding standards applicable to a fraud on the court claim. Without the requisite fraud on the court foundation, the district court concluded that it would not have jurisdiction over McVeigh’s anticipated Rule 60(b) motion. Because § 1651 does not constitute a grant of jurisdiction, but instead merely empowers federal courts to issue all writs necessary or appropriate in aid of respective jurisdiction, and because it would not have jurisdiction over McVeigh’s anticipated Rule 60(b) motion, the district court concluded that it must deny McVeigh’s request for a stay. See Hatch v. Oklahoma, 92 F.3d 1012, 1017 (10th Cir.1996) (<HOLDING>) (citing Barefoot v. Estelle, 463 U.S. 880, Holdings: 0: recognizing numerous different grounds which may be relied upon for granting a stay and that in general a stay will be allowed or refused on the particular grounds best fitting the exigencies of the individual case and with a view to doing justice between the parties 1: 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 2: holding that a court may issue injunctive relief only when the movant demonstrates four factors substantial likelihood of success on the merits irreparable harm no substantial injury to the other party and furtherance of the public interest 3: holding that a stay of execution is only appropriate where the movant demonstrates substantial grounds upon which relief might be granted 4: holding that amendment is futile if the proposed amended complaint does not state a claim upon which relief can be granted | [
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“fully and finally affirmed,” it remained possible that attorneys’ fees could be reduced or the order reversed altogether. R. 97-1, Pg. ID 1488-89, 1508 (providing that “the Settling Parties enter[ed] into this Agreement on a conditional basis,” and that if the order was reversed on appeal the agreement “shall be deemed null and void”). And while it would have been good business practice to set the money aside, the contempt power is not meant to force businesses into good business practices. Nor is it meant to force parties to comply with contracts, where a breach of contract action would be more appropriate. Rather, the contempt power is reserved for parties that knowingly violate clear and specific commands of the court. See, e.g., Downey v. Clauder, 30 F.3d 681, 686 (6th Cir. 1994) (<HOLDING>); NLRB v. Deena Artware, Inc., 261 F.2d 503, Holdings: 0: holding that an order that did not specify a date or command the contemnor to act immediately was not definite and specific 1: holding that letter stating an annual salary did not embody the terms of any agreement between the parties as it did not specify a beginning date duration of time and did not require acceptance signatures 2: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 3: holding that an order of consolidation is interlocutory and not immediately appealable 4: holding that the march of time began for the period in which to file a rule 59e motion on the date the court entered an order that was immediately appealable | [
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Cir.1993); United States v. Miller, 821 F.2d 546, 548-49 (11th Cir.1987). In determining whether such a non-owner may claim a privacy interest in a car that he is driving, courts consider two factors: whether the driver manifested a subjective expectation of privacy in the area searched; and whether that expectation of privacy is one that society would find objectively reasonable. United States v. Amaral-Estrada, 509 F.3d 820, 826-27 (7th Cir.2007). Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle, with the permission of the owner. Garcia, 897 F.2d at 1418-19; Soto, 988 F.2d at 1553; Miller, 821 F.2d at 548-49; see also Thomas, 447 F.3d at 1197-98 (<HOLDING>). In lawfully possessing and controlling the Holdings: 0: holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver 1: holding that during a routine traffic stop it is reasonable for an officer to search the driver for weapons before placing the driver in a patrol car if placing the driver in the patrol car during the investigation prevents officers or the driver from being subjected to a dangerous condition and placing the driver in the patrol car is the least intrusive means to avoid the dangerous condition 2: holding that the driver of a car who had permission to use the car had standing to challenge its search 3: holding that the driver of a borrowed car had the requisite legitimate expectation of privacy to support standing for fourth amendment purposes 4: holding that the driver of a ear owned by his wife who had given him permission to use it had a legitimate expectation of privacy under the fourth amendment | [
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prosecution, a reasonable juror could conclude that (1) Ms. Colwell sold Carter the green Chrysler that was recovered by Officer Oliver; (2) Carter was the man Ms. Ford saw enter the Hartsville Citgo station and change into coveralls shortly before the bank robbery; (3) Carter was the man whom Ms. Cornwell saw at the carwash before the bank robbery; (4) Carter’s green car was the same car that Mr. Holder saw the robber drive away in after the robbery; (5) it was Carter who fled from both Officer Oliver and Sergeant Lanier; and (6) Carter fled because he knew he committed the robbery at the Hartsville Bank. In sum, a rational fact finder could decide that Carter was the man who robbed Hartsville Bank on October 15, 1996. See, e.g., United States v. Bond, 22 F.3d 662, 667 (6th Cir.1994) (<HOLDING>). 11 . The district court included the Holdings: 0: holding that the defendants allegations that his codefendant admitted that the defendant had no role in the robbery and that the codefendant had not testified on the defendants behalf because he had been coerced by the state were sufficient to state a prima facie claim of newly discovered evidence 1: holding that there was sufficient evidence for a robbery conviction where the getaway car a red firebird was identified by an individual who followed the vehicle and wrote down the license plate the firebird had been stolen from a gas station in a nearby city several weeks earlier the firebird had a defendants fingerprints both on its inside and outside on the drivers side a friend of one defendant testified that he had seen him driving a red firebird two or three weeks before the robbery a music tape reported missing by the owner of the firebird was found in one defendants house ammunition for handguns a spent shotgun shell and stacks of cash sorted by denomination were found in one defendants house a friend testified that the defendants confided in him about the robbery and an fbi agent testified that he overheard the defendants talking about killing a person who planned to testify against them 2: holding that defendants false statement was material even though the grand jury was not certain that the defendant had lied until several weeks later when three witnesses testified contrary to the defendant 3: holding that the defendants sentence for robbery was not inappropriate 4: holding that there was sufficient evidence of premeditation and deliberation when the defendant previously planned to commit the robbery armed himself with a shotgun and shot the victim during the robbery | [
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the requirements of Federal Rule of Civil Procedure 23(b)(3). Rule 23(b)(3) requires a plaintiff to demonstrate that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In applying these standards, the Court focuses on “the substantive elements of plaintiffs’ cause of action and inquire into the proof necessary for the various elements.” Simer v. Rios, 661 F.2d 655, 672 (7th Cir.1981). Moreover, the Supreme Court has held that “the predominance criterion is far more demanding” than “Rule 23(a)’s commonality requirement.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 62 F.R.D. 668, 674 (D.Wyo. 2011) (<HOLDING>); Kenro, Inc. v. Fax Daily, 962 F.Supp. 1162, Holdings: 0: holding class action to be superior adjudication method where individual class members had no interest in controlling prosecution of individual actions 1: holding that class action was superior to individual suits where class members had relatively small interests and might not have the wherewithal to bring suit to protect their individual rights 2: 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 3: holding that because the tcpa claims will require extensive individual fact inquiries into whether each individual gave express consent by providing their wireless number to the creditor during the transaction that resulted in the debt owed individual inquiries predominate over the class action 4: holding that because no class was certified at the time the individual claims were dismissed the class action was properly dismissed | [
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distinguishes work specific to Williams. (Jan. 31, 2006 Hackett Aff. 113-9.) Indeed, the affidavit explains that defense counsel excluded approximately $1 million in fees for work that could be used in this case and Kutten II. (Id. 13.) Third, Plaintiffs argue that Rule 41(d) provides only for an award of costs—not attorneys’ fees. Courts disagree on this issue. See Rogers, 230 F.3d at 874-75 (conceding that “the majority of courts find that attorney fees are available under Rule 41(d),” but nonetheless holding that the plain language of Rule 41(d) does not include attorneys’ fees). However, the Eighth Circuit Court of Appeals has awarded attorneys’ fees under Rule 41(d). See Evans v. Safeway Stores, Inc., 623 F.2d 121, 122 (8th Cir.1980); see also Copeland, 462 F.Supp.2d at 1022-24 (<HOLDING>). In addition, the Eighth Circuit has Holdings: 0: holding trial court had no authority to award attorneys fees when arbitrator had stated he would not award attorneys fees 1: holding that a court may award attorneys fees under rule 41d 2: holding that a district court may award attorneys fees while the merits are on appeal 3: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 4: holding that a court may award attorneys fees in a successful lmrda action | [
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Mr. Rosen “ethically would be compelled to inform other clients of [one witness's] testimony if detrimental to them.” Mr. Rosen, as noted earlier, has avoided that problem by keeping himself unacquainted with each witness’s version of the events at the Post. 12 . Counsel for appellant Rosen and Local 6 conceded at oral argument that there is no evidence in the record indicating what the witnesses think their relationship is with respect to Mr. Rosen, and furthermore that the witnesses were never asked whether they wanted this type of “representation.” 13 . The District Court has power to find criminal contempt on the part of a grand jury witness for refusing to obey a court order requiring him to testify. E. g., Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) (<HOLDING>). Of course, “the trial judge [should] first Holdings: 0: holding that right was available in grand jury proceedings 1: holding fedrcrimp 42b applicable to such criminal contempt proceedings for refusals to testify before the grand jury 2: holding that where witness refused to take the oath and testify his grand jury testimony should not have been admitted because he was not subject to cross examination before the grand jury 3: holding no right to crossexamine in grand jury proceedings 4: holding one man grand jury that held witness in contempt and sentenced him to prison was contempt proceeding to which there was a right to public access | [
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the breadth of § 541 to hold that causes of action which accrued prior to the filing of the bankruptcy petition are included in the bankruptcy estate). Upon the filing of a Chapter 7 petition, an interim Trustee is appointed to administer, inter alia, the property of the estate. See 11 U.S.C. § 701. The Trustee is the sole representative of the estate. See 11 U.S.C. § 323(a). As such, the Trustee has the exclusive right to prosecute causes of action that are property of the bankruptcy estate. See 11 U.S.C. § 323(b); see also Jones v. Harrell, 858 F.2d 667, 669 (11th Cir.1988) (concluding that a “trustee succeeds to all causes of action held by a debtor at the time the bankruptcy petition is filed”); In re Labrum & Doak, No. CIV.A. 99-753, 1999 WL 667284, at *1 (E.D.Pa. Aug. 26, 1999) (<HOLDING>) (quoting 11 U.S.C. § 323(b)). Thus, after a Holdings: 0: holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc 1983 based upon actions taken in his official capacity 1: holding that the trustee alone has the capacity to sue and be sued 2: holding that bank could not bring counterclaim in its capacity as trustee 3: holding that delaware law controlled delaware corporations capacity to sue or be sued 4: holding that the words sue and be sued when used in a statute do not by themselves waive immunity | [
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with the department. Section 84-917 provides that one “aggrieved by a final decision in a contested case” before an administrative agency “shall be entitled to judicial review ... .” Assuming, but not deciding, that the department has jurisdiction to pass upon the rights, if any, which Inner Harbour may have against the department under the latter’s agreement with the adoptive parents, the fact is that the matter was not before the department, and it therefore made no decision, final or otherwise, with respect thereto. That being so, there was no decision for the district court to review in that regard; it was therefore without jurisdiction to issue any orders with respect to the adoption agreement. See Bohling v. State Bd. of Pub. Accountancy, 243 Neb. 666, 501 N.W.2d 714 (1993) (<HOLDING>). Accordingly, the portion of the district Holdings: 0: holding that district court lacked power to decide personal jurisdiction issue already decided by district of columbia superior court 1: holding that the district court lacked jurisdiction to review state disciplinary proceedings against attorney 2: holding that this court lacked jurisdiction under 46110 for lack of finality and that the district court also lacked jurisdiction because the orders were not final and thus not ripe for review 3: holding that in absence of valid final order district court lacked power to review boards action 4: holding that this court lacked preliminary authority to review the district courts jurisdiction because there was no immediately appealable order before the court | [
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that the district court’s limitation of wrongful death damages and Kane’s subsequent choice to voluntarily abandon his attempt to seek damages for Cornish’s emotional distress left nothing further for the district court to do. We disagree. Rather, we find that Kane’s voluntary abandonment of the other “claims” in his complaint merely foreclosed the possibility of his recovering a certain type of damages. The question that will determine liability — whether the officers knocked and announced prior to entering Cornish’s apartment — is still live. Further, if this question is resolved in Kane’s favor, he will be able to recover nominal damages under § 1983 for the violation of Cornish’s constitutional rights. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (<HOLDING>). As such, a jury must resolve this factual Holdings: 0: holding that nominal damages are appropriate for deprivations of constitutional rights that do not result in actual injury 1: holding that the right to nominal damages for eighth amendment violations can be waived if such damages are not timely requested 2: recognizing availability of nominal damages for violations of constitutional rights notwithstanding statutory bar in prison litigation reform act 42 usc 1997ee 3: holding that under 1983 violations of constitutional rights are actionable for nominal damages without proof of actual injury 4: holding that the right to nominal damages was waived in a breach of duty action when plaintiff failed to raise the issue of nominal damages until after the verdict | [
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that the presumption of immunity creates an “unusual” standard for summary judgment. As the U.S. Court of Appeals for the Eleventh Circuit observed, [T]he rebuttable presumption ... creates an unusual summary judgment standard that can best be expressed as follows: “Might a reasonable jury, viewing the facts in the best light for [the plaintiff], conclude that he has shown, by a preponderance of the evidence, that the defendants’ actions are outside the scope of § 11112(a)?” If not, the court should grant the defendant’s motion. In a sense, the presumption language in HCQIA means that the plaintiff bears the burden of proving that the peer review process was not reasonable. (Citations omitted.) Bryan, 33 F.3d at 1333; see also Gordon v. Lewistown Hosp., 423 F.3d 184, 202 (3d Cir.2005) (<HOLDING>). We explained this standard in Goodwich: [T]he Holdings: 0: holding that the standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss 1: holding that plaintiff incorrectly concludes that an abuse of discretion is the standard of review for summary judgment 2: holding that hcqias presumption of immunity creates an unusual standard for reviewing summary judgment orders as the plaintiff bears the burden of proving that the professional review process was not reasonable and thus did not meet the standard for immunity 3: holding that the standard of review for the sufficiency of the evidence is the same as the standard for denying a motion for a directed verdict 4: holding that the defendant bears the burden of proving outside contact with the jury | [
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practices. We have previously rejected this precise argument in FTC v. Dixie Finance Co., 695 F.2d 926, 930 (5th Cir.1983), albeit under the second prong of McCarran Act preemption test set forth in Cochran, 606 F.2d at 464. The analysis set forth in Dixie Finance is equally applicable in this case, and for the sake of brevity, we will not repeat it. 7 . The First, Fourth, Seventh, and Ninth Circuits hold that if a practice is illegal under both state and federal law but federal law provides for a stronger remedy, the McCarran Act does not preempt the federal law. See Villafane-Neriz v. FDIC, 75 F.3d 727, 735-36 (1st Cir.1996) (Federal Deposit Insurance Act); Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1492 (9th Cir.1995) (RICO); NAACP, 978 F.2d at 295-97 (<HOLDING>); Mackey v. Nationwide Ins. Cos., 724 F.2d 419, Holdings: 0: holding that the federal cigarette labeling and advertising act did not preempt plaintiffs state law claims 1: holding flsa did not preempt state law fraud claim 2: recognizing provisions of the fair housing act that forbid false statements that housing is unavailable to a person because of his race 3: holding that mccarran act did not preempt application of fair housing act against redlining by insurance companies where state law outlawed the practice but provided no private remedy 4: holding that the brooke amendment to the housing act provided a cause of action under 1983 | [
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explicitly state whether it provides the exclusive means for removing a tow company from the list, and it contains no “explicitly mandatory language” limiting the police departments’ discretion to “maintain” the tow-rotation lists. See Ridgely, 512 F.3d at 735-36. In sum, for our interlocutory review of the denial of a preliminary injunction, the ordinances do not limit discretion sufficiently to confer a property interest in remaining on the tow-rotation list; the ordinances do not contain the requisite mandatory language. This is especially true in the light of our policy of construing ambiguities in defendants’ favor where a purported property interest is not “unequivocally granted in clear and explicit terms”. Batterton v. Tex. Gen. Land Office, 783 F.2d 1220, 1223 (5th Cir.1986) (<HOLDING>); see also Mills v. Brown, 159 Tex. 110, 316 Holdings: 0: holding in deciding whether texas law confers a property interest that purported legislative grants of property rights or privileges must be construed in favor of the state and whatever is not unequivocally granted in clear and explicit terms is withheld quoting texas v standard 414 sw2d 148 153 tex1967 1: holding that jurisdiction existed over nonresident printing customer despite the fact that texas printer solicited the business in alabama and nonresident sent no personnel to texas because nonresident placed additional orders from which it expected to profit sent payments to texas sent and received printing materials to and from texas paid for shipping of printed goods from texas and sent payments to texas the transactions were governed by texas law and substantial part of performance occurred in texas 2: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law not arizona law should be applied 3: recognizing strong interest in protecting texas citizens where tort was committed in whole or in part in texas 4: holding misrepresentation made by outofstate defendant to texas plaintiff who relied on it in texas satisfied requirement for jurisdiction under longarm statute based on commission of a tort in part in texas | [
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district court may decline to exercise supplemental jurisdiction over the remaining state law defamation claim. See Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1106 n. 9 (9th Cir.1999). The district court erred as a matter of law in holding that Rivera’s defamation claim was preempted by FELA. See Gottshall, 512 U.S. at 556, 114 S.Ct. 2396. A claim for defamation does not result in a physical impact and is therefore not the type of claim that FELA was designed to encompass. See id. at 555-56, 114 S.Ct. 2396; see also Smith v. Union Pacific Railroad, 236 F.3d 1168, 1172 (10th Cir. 2000) (rejecting plaintiffs emotional distress claim under FELA because there was no physical impact causing the disorder); Grown v. Union Pacific Railroad, 162 F.3d 984, 985-86 (8th Cir.1998) (<HOLDING>). Rivera should therefore be permitted to Holdings: 0: recognizing torts of intentional and negligent infliction of emotional distress 1: holding that employee could not state a claim for negligent infliction of emotional distress under fela without a showing of physical impact 2: holding that under south dakota law compensation for negligent infliction of emotional distress requires manifestation of physical symptoms and intentional infliction of emotional distress requires an extreme disabling emotional response 3: holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute 4: holding that in being discharged employee did not sustain the direct physical impact required to maintain an action for negligent infliction of emotional distress | [
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and filed an opinion on January 20, 1994, in which he ruled that, in light of claimant’s inconsistent reports of his accident to doctors, he failed to prove an injury by accident. The commission reversed the deputy commissioner’s ruling and awarded claimant benefits beginning November 17,1992. The commission further stated that it could not rely on history relayed by a claimant to determine how an accident occurred. II. CONSIDERATION OF MEDICAL HISTORIES As the Supreme Court of Virginia has stated, “injuries resulting from repetitive trauma ... as well as injuries sustained at an unknown time, are not ‘injuries by accident’ within the meaning of Code § 65.1-7.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis added). In this 9, 434 S.E.2d 904, 907 (1993) (<HOLDING>); Baker v. Babcock & Wilcox Co., 11 Va.App. Holdings: 0: recognizing that commissions rules permit hearsay evidence 1: recognizing privilege under federal rules 2: holding that because the rules of evidence including the rule against hearsay do not apply to sentencing hearings the district court did not err in relying on hearsay in ordering restitution 3: holding that rules of evidence do not permit an expert to give opinion or state legal conclusions regarding a question of law 4: holding that the district court did not err in relying on hearsay evidence where the government offered reasons why its hearsay evidence had indicia of reliability and the court considered the reliability of the evidence in deciding the weight to give the hearsay evidence | [
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that we should reverse our prior precedents and hold that, under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Fourth Amendment permits visual strip searches of all jail detainees upon being booked into a detention facility, regardless of reasonable suspicion. Second, the County argues in the alternative that the district court erred in classifying hindering apprehension as a “minor offense,” and that the nature of Ms. Jimenez’s offense therefore justified the search regardless of the lack of individualized reasonable suspicion. For the following reasons, we disagree. A t a policy of strip searching every arrestee booked into a jail or detention facility does not violate the Fourth Amendment); Roberts v. Rhode Island, 239 F.3d 107, 112-13 (1st Cir.2001) (<HOLDING>); Weber v. Dell, 804 F.2d 796, 802 (2d Holdings: 0: holding that mandatory visual strip search policy in county jail was unconstitutional 1: holding a visual strip and visual cavity search unreasonable when done beside a police car 2: holding that mandatory visual strip search policy at correctional institution intake center was unconstitutional 3: holding unconstitutional blanket jail policy of subjecting all arrestees to strip and visual body cavity searches 4: holding that mandatory routine visual strip search policy for all arrestees who were to be introduced into general jail population was constitutional | [
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research and development tasks was erroneous, because it was inaccurate and contrary to OHA precedent determining “research and development support” to be an acceptable justification for the NAICS Code 541712 designation. Pl. Mot. JAR at 22-23 (citing NAICS Appeal of DCS Corp., SBA No. NAICS-4874 (2007); see also NAICS Appeal of Davis-Paige Mgmt. Sys., LLC, SBA No. NAICS-5055 (2009)). Although some of the May 15, 2012 Solicitation’s research and development activities “envision direct performance on the part of the contractor,” the designation of NAICS Code 541712 also would be proper when “the work is an integral part of the research and development that will be conducted.” Pl. Mot.. JAR at 23 (citing NAICS Appeal of Information Ventures, Inc., SBA No. NAICS-4945, at 6-7 (2008) (<HOLDING>)). In sum, OHA’s decision was contrary to Holdings: 0: holding that congress intended the phrase physical force incorporated into 922g9 to encompass crimes characterized by the application of any physical force 1: recognizing that an arrest requires either physical force or where physical force is absent submission to the assertion of authority 2: holding that work by the contractor that did not itself entail physical research nonetheless was an integral part of physical research to be performed by the agency and thus supported the designation of naics code 541712 3: holding that your work exclusion is triggered only where the damage at issue is to work performed by you and is caused by work performed by you and does not apply to damage caused to original construction of a house during later repair work 4: holding iowa common law touching assault met use of physical force required for enhancement under 18 usc 922g9 be cause any physical contact by necessity requires physical force to complete | [
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to review by the courts.” Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir.2001); see also Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005) (“[A] claim is ‘available as of right’ if, at the very least, (1) the alien’s claim was within the jurisdiction of the BIA to consider and implicated agency expertise, and (2) the agency was capable of granting the remedy sought by the alien.”). “The principle underlying this policy is that courts should not address an immigration issue until the appropriate administrative authority has had the opportunity to apply its specialized knowledge and experience to the matter.” Padilla v. Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006) (citations omitted); See also I.N.S. v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (<HOLDING>). The Government contends that this Court does Holdings: 0: holding that the supreme court has final appellate review of agency decisions 1: holding that an appellate court cannot consider an issue that was not preserved for appellate review 2: holding that except in rare circumstances an appellate court should not intrude upon the domain which congress has exclusively entrusted to an administrative agency 3: holding that an appellate court has discretion to consider an issue not argued by the parties 4: recognizing the principle that an administrative agency error should not work to a claimants detriment | [
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claim time-barred, and in finding that he failed to raise a genuine issue of material fact entitling him to surcharge and contract reformation on either his § 102(a) or § 404(a) claims. Because Osberg seeks the same relief under § 404(a) as under § 102(a), and because the timeliness of the § 404(a) claim is undisputed, we need not conclusively decide whether Osberg’s § 102(a) claim is subject to a three- or six-year statute of limitations to resolve the instant appeal. To survive summary judgment on his disclosure claims, Osberg was required to raise a genuine issue of material fact with respect to his demand for “appropriate equitable relief’ — specifically, surcharge or reformation — under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). See CIGNA Corp. v. Amara, 131 S.Ct. at 1879-80 (<HOLDING>). We recently articulated the appropriate Holdings: 0: recognizing those actions for monetary relief that we have characterized as equitable such as actions for disgorgement of improper profits 1: holding that monetary damages may be awarded in a 1132a3 claim because when sought as a remedy for breach of fiduciary duty restitution is properly regarded as an equitable remedy because the fiduciary concept is equitable 2: recognizing surcharge and reformation as traditional equitable remedies that may allow for awarding monetary compensation based on misleading disclosures 3: holding that state prisoner seeking only monetary damages in 1983 suit need not exhaust administrative remedies pursuant to 1997e if such remedies do not provide for the award of monetary relief 4: holding that equitable relief is only appropriate where legal remedies are inadequate | [
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on the same or similar elements. Heath v. Alabama, 474 U.S. 82, 90, 106 S.Ct. 433, 438, 88 L.Ed.2d 387, 395 (1985); United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079,1082, 55 L.Ed.2d 303, 309 (1978); Bartkus v. Illinois, 359 U.S. 121, 136-38, 79 S.Ct. 676, 686, 3 L.Ed.2d 684, 694-95 (1959). This concept of “dual sovereignty” is premised on the principle that the states and federal government are each sovereign entities with the power to independently prosecute criminal offenses created under the laws of that sovereign by employing their own prosecutorial and adjudicative institutions for that purpose. Wheeler, 435 U.S. at 320, 98 S.Ct. at 1084, 55 L.Ed.2d at 310-11. This court has recognized this principle for many years. See State v. Moore, 143 Iowa 240, 121 N.W. 1052 (1909) (<HOLDING>). While conceding the force of the dual Holdings: 0: recognizing legislature knows difference between prosecution and conviction by noting former jeopardy provisions of code 192294 provide that if the same act be a violation of two or more statutes conviction under one of such statutes shall be a bar to a prosecution or proceeding under the other or others and holding that if the legislature had intended that the statutory bar apply to felony cases tried in the circuit court after the resolution in district court of misdemeanor charges arising out of the same act it would have provided that a conviction for a criminal offense arising out of one act would bar a later conviction for another offense arising out of the same act 1: holding that foreign states prosecution did not bar subsequent florida prosecution for same conduct 2: holding that a judgment in a criminal prosecution for dwi did not bar a subsequent civil proceeding founded on the same facts 3: holding federal conviction for forcibly breaking and entering post office does not bar state prosecution for burglary based on same facts 4: holding the same for malicious prosecution | [
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this case or that the Clemtex decision is dispositive. One important difference between Advantage's policy and the policy at issue in Clemtex is that the latter did not incorporate the applicable TDI rules. The court noted this fact in holding the insurer could not supplant the contract provisions with contradictory TDI rules not even mentioned in the contract. In the instant case, the TDI rules were clearly incorporated in the contract. Therefore, Clemtex is inapposite to this case. More importantly, the insurance contract that is the subject of this dispute is not one written in the ordinary private insurance setting, as was the contract at issue in Clemtex. The Facility, although not a state agency, is essentially an arm of the State. Compare Turner Bros. Trucking, 912 S.W.2d at 391 (<HOLDING>) with American Home Assur. v. Texas Dept. of Holdings: 0: holding that the medicaid statute did not create an enforceable cause of action against a private health care facility 1: holding the facility had certain powers despite fact that statute did not expressly confer those powers because facility does not derive power solely from statute 2: recognizing that a patients choice of a health care facility does not render the facility a beneficiary under 502a1b 3: holding that states grant of general corporate powers to hospital authorities does not include permission to use those powers anticompetitively 4: holding that the board of supervisors possesses only those powers expressly conferred by statute or necessarily implied therefrom | [
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was that, when credibility becomes the ultimate issue in a case, it is unfairly prejudicial for the fact finder to learn of any unrelated facts that might potentially affect the defendant’s credibility. This reasoning is applicable here. In this rape case, the witnesses’ credibility was the central issue for the trial judge to determine. We note that Delaware courts have been reluctant to disqualify a judge under Canon 3C(1) and the Los test. See, e.g., Robinson v. State, 869 A.2d 328, 2005 WL 535007, 2005 Del. Lexis 72 (Feb. 14, 2005) (finding there was no sufficient appearance of bias when the defendant had been accused of threatening a superior court judge who later presided over the defendant’s sentencing hearing on an unrelated matter); Johnson v. State, 797 A.2d 1206 (2002) (<HOLDING>); Steigler v. State, 277 A.2d 662, 668 Holdings: 0: holding that the burden is on the defendant when the validity of the warrant is challenged 1: holding that there is no appearance of impropriety sufficient to warrant recusal when the judge learned negative facts about the defendant from a social gathering held by a prosecutor in a former case involving the defendant 2: holding recusal not required 3: holding that the jurors alleged discussion about the possibility that the defendant would hire someone to kill them was inadmissible because the defendant had not shown that the jury learned of the threat from an outside source 4: holding that an appearance of impropriety existed where the deputy district attorney had an altercation with the defendant at the time of the defendants arrest | [
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dismissed because she cannot demonstrate having suffered any apprehension of an imminent harmful bodily contact — one of the essential elements of a common law assault claim. An ‘assault’ is “an intentional placing of another person in fear of imminent harmful or offensive contact.” United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir.1993). The plaintiff must show that the defendant intended “either to inflict personal injury or to arouse apprehension of harmful or offensive bodily contact.” Rivera v. Puerto Rican Home Attendants Servs., Inc., 930 F.Supp. 124, 133 (S.D.N.Y.1996). Thus, although plaintiff need not prove actual contact, she must allege some “physical menace against [her] body.” Prince v. Ridge, 32 Misc. 666, 66 N.Y.S. 454, 455 (Sup.Ct.1900) (<HOLDING>). Chapman is correct that actions that are Holdings: 0: holding that an effort of the defendant by words of persuasion alone to induce the plaintiff to grant him the favor of sexual intercourse was not an assault 1: holding in the context of a sexual assault charge that the state was required to prove beyond a reasonable doubt the first basic and essential element of the offense namely that an act of intercourse involving the victim had occurred and further stating that that fact had to be proved even if the defendant was not disputing that particular element of the offense 2: holding that allegations of sexual assault by an employee of the church fell within coverage for sexual misconduct 3: holding that merger did not apply because sexual assault was not a lesser included offense of seconddegree kidnapping involving sexual assault 4: holding that evidence was insufficient where the victim testified that she was awake and communicated her desire not to have sexual intercourse with the defendant | [
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(Second) of Torts, this Court is confident that the position most likely to be adopted by the Massachusetts courts is that a violation of well-established industry standards may indeed satisfy the improper means element of tortious interference. The Supreme Judicial Court of Massachusetts’ most thorough evaluation of the improper means element for tortious interference occurred in United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 817, 551 N.E.2d 20 (1990). In Geltman, the Court included within the ambit of “improper means” violations of a statute or a rule of common law, threats, misrepresentation, defamation, or any other improper means. Id. (emphasis added). The inclusion of the phrase “any other improper means,” makes this Court reluc o., 283 Or. 201, 582 P.2d 1365, 1371 (1978) (<HOLDING>) ; Adler, Barish, Daniels, Levin and Creskoff Holdings: 0: holding that im proper means may be wrongful by reason of a statute or other regulation or a recognized rule of common law or perhaps an established standard of a trade or profession 1: holding that the parentsubsidiary privilege could be lost by using wrongful means including fraud misrepresentation threats violence defamation trespass restraint of trade intimidation molestation or any other wrongful act recognized by statute or common law 2: holding that the phrase provided by law means prescribed or provided by statute 3: holding that interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review 4: 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 | [
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police standards and that there were alternative techniques available for subduing him that presented a lesser threat of death or serious injury. Smith offered an expert declaration on the training of police dogs and police dog handlers. Discussing whether the officers' conduct comported with law enforcement standards, the expert relied upon California's Peace Officer Standards and Training, which are applicable to all state police officers and are a part of Department policy. He concluded that the officers could and should have used control holds to complete the arrest rather than to sic Quando on him onc 1994) (suggesting that the use of deadly force is objectively reasonable where a suspect points a gun at officers); Garcia v. United States, 826 F.2d 806, 812 (9th Cir.1987) (<HOLDING>). The issue presented by Smith is initially Holdings: 0: holding that deadly force was justified where a suspect violently resisted arrest physically attacked the officer and grabbed the officers gun 1: holding that officers positioning himself next to his patrol car with gun drawn and then firing was a discretionary use of deadly force 2: holding that apprehension by the use of deadly force is a seizure 3: holding that expert testimony on what constitutes deadly physical force and whether the use of force was justified should have been excluded 4: holding that deadly force was reasonable where the plaintiff attacked a border patrol agent with a rock and stick | [
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at 154 (“Probable cause to support the issuance of a search warrant ts supporting a search warrant have become sta e search warrant for appellant’s apartment is based entirely on information received by the Pasadena Police Department from two informants, Thumann and Broderick. The affidavit does not state when Thumann filed his initial report with the Pasadena Police Department, when Officer Brinson was assigned to the case, y and basis of knowledge of persons supplying hearsay information in circumstances to be considered by magistrate in issuing search warrant). Therefore, because the affidavit was based entirely on hearsay with no substantial basis provided for crediting it, the affidavit was insufficient to support the issuance of a search warrant. See Schmidt, 659 S.W.2d at 421 (<HOLDING>). Moreover, all the information recited in the Holdings: 0: holding that information from confidential informant was reliable and credible where affidavit referred to previous instances in which informant provided correct information to police affiants own investigation and controlled buy of contraband confirmed information and second informant supplied same information to police 1: holding affidavit insufficient to support probable cause when one cannot learn from the affidavit when the past activities occurred and when the observations were made 2: holding corroborating evidence sufficient that officer drove informant to defendants house saw defendant admit informant and saw informant come out with drugs and defendants voice was identified on audio tape of transaction 3: holding affidavit that failed to recite when incident described took place insufficient to support issuance of search warrant 4: holding affidavit insufficient when it failed to state when affiant received information from informant when informant obtained information or when described incident took place | [
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these “findings” do not constitute true "findings of fact” because they were not separately filed as required by Texas Rule of Civil Procedure 299a. See Tex.R. Civ. P. 299a (requiring findings of fact to be separately filed and not simply recited in judgment); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 n. 6 (Tex.App.-Dallas 2001, pet. denied). Accordingly, we employ the standard of review applicable to cases where no findings have been requested or filed. Casino Magic Corp., 43 S.W.3d at 19 n. 6. In the absence of findings, we imply all necessary fact findings in support of the trial court’s order. In re Williams, 328 S.W.3d 103, 112 (Tex.App.-Corpus Christi 2010, orig. proceeding [mand. denied]); see also In re Weekley Homes, LP., 295 S.W.3d 309, 316 (Tex.2009) (orig. proceeding) (<HOLDING>); In re La. Tex. Healthcare Mgmt., L.L.C., 349 Holdings: 0: holding that while as a general matter discovery should be freely permitted j jurisdictional discovery is justified only if the plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through discovery 1: holding that it was within the trial courts discretion to refuse any additional discovery and that the courts refusal to allow additional discovery was not an abuse of discretion 2: holding that district court did not abuse its discretion by denying motion to extend discovery where no effort was made to explain why the requested discovery could not have taken place within the original discovery period 3: recognizing trial courts decision on discovery issues implies a finding that requested discovery was not reasonably available 4: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law | [
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alleged that the acceleration clause had.anticompetitive effects. It may be that with more factual and expert discovery, . the Warner Chilcott. .Defendants can establish that there were no anticom-petitive effects, or that, on the second prong of the rule of reason analysis, the “challenged payment was justified by some precompetitive objective.” Nexium II, 42 F.Supp.3d at 262-63. But at this juncture, the Court is not prepared to hold that an acceleration clause like the one in the Watson Agreement may never be cognizable as a component of a complex settlement agreement amounting to a large and unjustified reverse payment. Accordingly, the acceleration clause may be considered, a least for the time being, as a component in the greater calculus. But see Actos, 2015 WL 5610752, at *16 (<HOLDING>). c. Promotional Deals Defendants contend that Holdings: 0: holding that the acceleration clause was not cognizable as a large and unjustified payment 1: holding claim is cognizable 2: holding that the term reverse payment is not limited to a cash payment 3: holding that a clause making payment by the owner an express condition precedent to payment by the general contractor to the subcontractor was enforceable 4: holding claim is not cognizable | [
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her restrictions were based on “generalizations” and that she had not examined Plaintiff in over a year show that the assessment is not supported by specific medical findings. Furthermore, Dr. Vasicek’s assessment contradicts her own medical records. In a May 2007 evaluation, Plaintiff was allowed to return to modified work on April '30, 2007. (Tr. 290). It was noted that he could perform full weight bearing activities; constantly sit, stand and walk; frequently climb stairs; occasionally bend, squat and climb ladders; and had no lifting limitations. (Tr. 290). This directly conflicts with her September 2007 assessment, and she did not even examine Plaintiff during the intervening months. (Tr. 290, 369-73). See Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118 (6th Cir.1994) (<HOLDING>). Additionally, the ALJ noted that there was Holdings: 0: holding that the weight given to a treating physicians opinion is limited if the opinion consists only of conclusory statements 1: holding the alj did not err in declining to refer to treating physicians opinion where he originally opined that plaintiff could perform sedentary work and then changed his opinion without providing any supporting objective medical evidence 2: holding that an alj may discount a treating physicians opinion where the physician has offered inconsistent opinions 3: holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations 4: holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician | [
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here confirm that Officer Cuellar’s first approach to Reyes to ascertain whether he could render assistance was purely a consensual encounter from which Reyes was free to walk away. However, this encounter evolved into an investigatory stop when, upon approaching Reyes, Officer Cuellar noticed that the scooter had no key and that Reyes was nervous and sweating. These observations, combined with the time of day; the fact that Reyes was coming from the direction of a scooter store; Officer Cuellar’s knowledge of recent scooter thefts in the area; and Reyes’ statements that the scooter belonged to a friend whose last name and address he did not know, all gave rise to a reasonable suspicion that criminal activity might be afoot. See State v. Lennon, 963 So.2d 765, 768 (Fla. 3d DCA 2007) (<HOLDING>). As we stated in Lennon, 963 So.2d at 768: In Holdings: 0: recognizing that police officer may stop a suspect if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot 1: holding that an officer can stop an individual if the officer has reasonable articulable suspicion that criminal activity is underfoot 2: holding that absent probable cause to arrest a police officer may approach an individual to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion that criminal conduct is afoot 3: holding officer may search vehicle for weapons if officer has reasonable belief based on articulable facts that officer or another may be in danger 4: holding that an officer may detain a person in order to determine identity and circumstance when that officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot | [
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and respect for the D.C. Court of Appeals.”). The Supreme Court held in Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), that “a court of appeals should review de novo a district court’s determination of state law.” Id. 499 U.S. at —, 111 S.Ct. at 1221. The D.C. Court of Appeals has not squarely addressed the question whether bad faith denial of an insurance claim constitutes an independent tort under D.C. law. The district court has considered the issue in two separate reported cases, but these cases are directly in conflict. Compare GEICO, 769 F.Supp. at 387 (“District of Columbia law does not recognize the tort of bad faith denial of an insurance claim.”) with Washington v. Group Hospitalization, Inc., 585 F.Supp. 517, 520 (D.D.C.1984) (<HOLDING>). We find it unnecessary to divine whether the Holdings: 0: holding that an insurance contract between the parties and a breach thereof by the defendant is an element of a bad faith refusal claim 1: holding that the district of columbia is among the many jurisdictions that have recognized a cause of action in tort for the bad faith refusal of an insurer to pay 2: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith 3: holding that a bad faith claim is a tort 4: holding that no cause of action for bad faith exists when insurer has reasonable grounds to contest liability | [
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in the Department's initial brief. See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”); see also Glasscock, Inc. v. U.S. Fid. and Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 692 (Ct.App.2001) (issue cannot be raised for the first time in a reply brief). 8 . Although a previous version of the regulations was in effect prior to March 28, 2000, it did not apply to approved JDs. See 33 C.F.R. §§ 331.1 to 331.12 (1999). 9 . In fact, even if the regulations were in effect, the preamble to the regulations states that it is the position of the federal government that "jurisdictional determinations are not ripe for [judicial] review until a landowner who disagrees with a JD has gone through the permittin (<HOLDING>). 12 . "Under the doctrine of collateral Holdings: 0: holding that the plaintiffs state law claims are preempted by federal law 1: holding that new york law applies to this matter 2: holding that new york alcoholic beverage control law preempted local law 3: holding that cwa preempted vermont nuisance law to extent that vermont law sought to impose liability on new york point source 4: holding that a state election law is preempted only to the extent that it conflicts with federal law | [
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payment because the unsecured debt was otherwise dischargeable. Merely being a party to the agreement did not confer standing on McClellan to appeal the bankruptcy court’s order. In addition, the substance of McClellan’s argument on appeal is that the agreement should have been approved because it satisfied the requirements of § 524(c)(6)(A) , namely, that the agreement was in the debtor’s best interest and that it did not impose any undue hardship on the debtor. In sum, McClellan’s appeal is based entirely on its assertion that the agreement benefitted the debtor’s interests and, therefore, should have been approved. While the debtor could have prosecuted this appeal based upon whether the agreement was in his best interest, McClellan cannot. See Umpqua Shopping Ctr., 111 B.R. at 305 (<HOLDING>). Standing requires that an appellant rest its Holdings: 0: holding that a request made within 180 days of a modified confirmation order entered three months after the original confirmation order but more than 180 days after the original confirmation order was timebarred 1: holding that a debtor cannot appeal a confirmation order on the basis that it unfairly discriminates against a class of claims 2: holding that ordinance restricting use of foreign languages on business signs overtly discriminates on the basis of national origin 3: holding in the instant case although creditor obtained relief from the automatic stay it failed to object or appeal from the confirmation order accordingly creditor is bound by the confirmation order 4: holding confirmation vested property in the debtor and therefore properly of the estate was not liable for postconfirmation taxes incurred by debtor | [
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order to determine whether the comments can be considered to be harmless. Accordingly, the Government asks the Court to either conduct an evidentiary hearing or allow the parties to interview the jurors themselves concerning the nature of Judge Riley’s ex parte contact. II. APPLICABLE LAW Federal Rule of Criminal Procedure 33 provides that “the court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice.” Id. “Probably the most frequent basis for a Rule 33 motion-and the only one specifically mentioned in the rule-is one ‘based on the ground of newly discovered eviden preponderance of the evidence. United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991); see also United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.1991)(<HOLDING>); see also United States v. Cousins, 842 F.2d Holdings: 0: holding that to reopen a case an alien must show that the new evidence would likely change the result 1: holding that a defendant must make a colorable showing that an ex parte communication occurred 2: holding that prejudice must be shown from an ex parte communication 3: holding that the government must show only that a defendant had knowledge of the reporting requirements and acted to avoid them 4: holding that the defendant must show that improper communication of extrinsic information had likely occurred | [
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held that a Batson objection is waived if not made during the voir dire process, and some have specified that the objection must be made before the venire is excused. See Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 215-16 (4th Cir.1997) (upholding the trial court’s dismissal of appellant’s Batson challenge because appellant raised the challenge after the venire was excused); U.S. v. Maseratti, 1 F.3d 330, 335 (5th Cir.1993) (“To be timely, the Batson objection must be made before the venire is dismissed and before the trial commences”); U.S. v. Parham, 16 F.3d 844, 847 (8th Cir.1994) (“[A] Batson objection must be made at the latest before the venire is dismissed and before the trial commences”); Government of Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir.1986) (<HOLDING>); see also Dias v. Sky Chefs, Inc., 948 F.2d Holdings: 0: holding that the jurors failure to remember particular facts inquired about on voir dire and the jurors misunderstanding of voir dire questions do not constitute probable prejudice 1: holding that defendant waived his objection to the prosecutors use of her peremptory challenges by failing to make a contemporaneous objection during jury selection 2: holding that the defendant must renew a motion for a change of venue after voir dire to preserve the issue for appeal 3: holding that defendants have a right to be present at voir dire 4: holding that because the defendant failed to make any objection at the close of voir dire he waived his batson claim | [
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and CrR 3.1(c) delineate the right to counsel prior to arraignment, (2) CrR 4.1(b) outlines the right to counsel at arraignment and throughout trial, (3) CrR 7.2(b) requires notification of the right to counsel on appeal at sentencing, and (4) CrR 7.6(b) provides for counsel at probation revocation hearings. ¶12 Moreover, the right to counsel is constitutionally guaranteed at all critical stages of a criminal proceeding, including sentencing, and additionally on first appeal when states provide a right of appeal. State v. Rupe, 108 Wn.2d 734, 741, 743 P.2d 210 (1987) (“Sentencing is a critical stage of the proceedings, at which a defendant is constitutionally entitled to be represented by counsel.”); Douglas v. California, 372 U.S. 353, 355-56, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (<HOLDING>). ¶13 In only one area have we applied the Holdings: 0: holding that when a state provides a first appeal as of right due process requires that defendants receive the effective assistance of counsel during that appeal 1: holding on equal protection grounds that meaningful first appeal requires appointment of counsel for indigent defendants 2: holding that an indigent litigants right to appointed counsel has been recognized to exist only where she may be deprived of her physical liberty that the constitution does not require the appointment of counsel for indigent parents in every parentalstatus termination proceeding and that the decision whether due process calls for the appointment of counsel is to be answered in the first instance by the trial court subject to appellate review 3: holding that neither the due process clause nor the equal protection clause of the fourteenth amendment require the appointment of counsel on a petition for discretionary review to a state supreme court 4: holding that the constitution does not require the appointment of two attorneys for indigent capital defendants | [
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the period specified by the executive officers. The regulations deny courts this power. Basic principles of administrative law, including the Chevron doctrine, also require us to deny Zazueta-Carrillo’s petition. The BIA has interpreted immigration law to mean that voluntary departure periods begin on the date the BIA enters its order. Here, the BIA specified that Zazueta-Carrillo had to depart “within 30 days ,/toto the date of this order.” (emphasis added). The BIA later determined that Zazueta-Carrillo’s failure to depart within that thirty-day period violated the order. The BIA’s interpretations and applications of the immigration laws are entitled to deference when Congress’s intent is unclear. INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (<HOLDING>) (internal quotation marks and citations Holdings: 0: holding contract with ambiguous terms should not be dismissed on pleadings 1: holding that in the absence of a statutory definition a term should be accorded its ordinary meaning 2: holding that where statute is ambiguous deference is appropriately accorded to agencys interpretation 3: holding regulations entitled to chevron deference 4: holding that the bia should be accorded chevron deference as it gives ambiguous statutory terms concrete meaning through a process of casebycase adjudication | [
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Edberg v. Neogen Corp., 17 F.Supp.2d 104, 112 (D.Conn.1998) (noting that “the courts have repeatedly held that jurisdiction may not be manufactured by the conduct of others”); Elbex Video Kabushiki Kaisha v. Taiwan Regular Elec. Co., No. 93 Civ. 6160(KMW), 1995 WL 224774, at *2 (S.D.N.Y. Apr. 14, 1995) (finding no personal jurisdiction where plaintiff arranged for former employee to make purchase from defendant for purpose of creating jurisdiction); see also Claras Transphase Scientific, Inc. v. Q- 4 F.Supp.2d 1284, 1287 (D.N.M.1998) (“Courts have held repeatedly that a defendant’s responses to the unilateral acts of a plaintiff are not contacts with the forum state sufficient to establish personal jurisdiction.”); DeSantis v. Hafner Creations, Inc., 949 F.Supp. 419, 424 (E.D.Va.1996) (<HOLDING>); Network Profis., Inc. v. Network Int’l Ltd., Holdings: 0: holding that personal jurisdiction was lacking when the only contact by defendant with forum state was initiated by plaintiffs counsels paralegal for the sole purpose of establishing personal jurisdiction 1: holding that personal jurisdiction over defendant car manufacturer was inappropriate when defendants only contacts with the forum resulted from plaintiffs unilateral activity of driving defendants product into another state 2: holding that court did not have personal jurisdiction over nonresident defendant where defendant assignee received patents from assignor over whom court had personal jurisdiction in part because the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state 3: holding that court did not have personal jurisdiction over nonresident defendant because plaintiff failed to show that defendant was assignee of assignor over whom court had personal jurisdiction 4: holding that foreseeability of causing injury in forum state is not sufficient for specific personal jurisdiction | [
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Because GOL § 5-335 is Preempted by the Medicare Act In addition to their core claim for a declaratory judgment regarding the effect of GOL § 5-335 on MA organization reimbursement rights, Plaintiffs also bring a claim for deceptive business practices under New York General Business Law § 349, seeking compensatory damages, enhancement of damages, and attorney’s fees. There is a colorable argument that the exhaustion requirement does not apply to these claims. Courts have held that state tort law claims — even those that “relate to a denial of benefits” — -may not “arise under” the Medicare Act, “especially when th[o]se claims do not seek reimbursement or provision of Medicare benefits.” Kelly v. Advantage Health, Inc., No. CIV A 99-0362, 1999 WL 294796, at *4 (E.D.La. May 11, 1999) (<HOLDING>); see also Ardary v. Aetna Health Plans of Holdings: 0: holding that victims injuries did not arise out of the use of a motor vehicle when the victim received injuries from a gun fired in the vehicle 1: holding action did not arise under the patent laws 2: holding that tort law claim for injuries allegedly sustained because of negligently improper denial of coverage did not arise under act 3: holding that a claim did not arise under a workers compensation law when it stated a right to relief in tort and sought common law damages distinct from statutory compensation scheme 4: holding that the govemment is not liable under the federal tort claims act for injuries to service members where the injuries arise out of or are in the course of activity incident to military service | [
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(3) plaintiff was terminated; and (4) the employer assigned, at least temporarily, a younger person with no better credentials to do the same work. Hagtof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 493 (8th Cir.1990). See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff proves her prima facie case, the employer must come forward with a legitimate, nondiscriminatory reason for the dismissal. If the employer does so, the plaintiff must set forth specific facts which show that the employer's stated reason is merely a pretext for intentional discrimination. Texas Dep 't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). 11 .See Biggins, - U.S. at -, 113 S:Ct. at 1706 (<HOLDING>) (emphasis in original). 12 . Schibursky makes Holdings: 0: holding that age discrimination is not a personal injury tort 1: holding that a statement of fact relating to the plaintiffs age was not direct evidence of age discrimination because the relevance of the comment is provided by inference 2: holding that if the plaintiff makes out a prima facie case of age discrimination the employer must show that the discharge was based on reasonable factors other than age and if the employer meets that burden the plaintiff must show that age was a determining factor in the discharge 3: holding that adea plaintiff had failed to make a prima facie case of age discrimination when he was replaced by someone only two years younger and within the protected age group and there was no other evidence of age discriminatory motive 4: holding that when the employers decision is wholly motivated by factors other than age the problem of inaccurate and stigmatizing stereotypes disappears this is true even if the motivating factor is correlated with age as pension status typically is | [
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here, the private actor possesses considerably more information and has the opportunity for a greater degree of reflection, it is not unreasonable to expect more careful consideration on the part of the private citizen of the appropriateness of the assistance that he is furnishing. In all cases, however, the private citizen’s belief is unreasonable when the assistance he furnishes to a law enforcement official is a patently abusive misuse of police authority. Finally, an assisting private person who materially deviates from the directions given to him by law enforcement cannot reasonably expect that his unsupervised actions will be shielded from liability. This principle is, again, consistent with the common law basis for recognizing qualified immunity. See Firestone, 38 N.W. at 886-87 (<HOLDING>); Edger, 54 A. at 989 (holding private Holdings: 0: holding that the government was to be treated as a private person and a genuine issue of material fact existed as to whether the agents exceeded their ability to arrest because while a law enforcement officer may arrest a person without a warrant given probable cause a private person may only arrest someone for a crime committed in his presence 1: holding that private person requested to assist known police officer in making arrest is not liable if in his acts he confines himself to the order and direction of the sheriff 2: holding that a person who cut and removed timber pursuant to the direction of the person in possession of the property but without the written consent of the company holding legal title to the land could be held liable under the gtccs 3: holding that the subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause 4: holding that although jury found officer not to have had probable cause for arrest officer was entitled to immunity because law was not clearly established as to circumstances in which officer found himself | [
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B.R. 1005, 1007 (Bankr.W.D.Pa.1987). Rule 45(b) also may apply in proceedings supplementary to and in aid of execution of judgment. See Bankr.R. 7069(a) (providing that in supplementary proceedings, judgment creditor may obtain discovery by either Federal Rules or state practice). Finally, even where a subpoena is served to compel attendance at a rule 2004 examination, the reasonableness consideration of rule 45(b) applies. See id. 2004 (providing that non-debtor entity's attendance for examination and production of documents may be compelled by manner provided by rule 9016); id. 9016 (incorporating rule 45(b)’s provision of quashing or modifying unreasonable and oppressive subpoena duces tecum), see also In re Drexel Burnham Lambert Group, Inc., 123 B.R. 702, 712 (Bankr.S.D.N.Y.1991) (<HOLDING>); In re Fearn, 96 B.R. 135, 137, 138 Holdings: 0: holding that court may seal documents if publics right of access is outweighed by competing interests 1: holding that rule 2004 requires court to balance competing interests weighing necessity of information sought 2: recognizing such balance of interests 3: holding that court should balance competing interests 4: recognizing that competing interests of parents children and the state requires additional analysis | [
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in overbearing or coercive activity in making requests or conveys the message that compliance with requests is required). The officers did not have the squad car lights on or guns drawn; they simply approached on foot, and asked two questions. Cf. United States v. Thomas, 430 F.3d 274, 276-81 (6th Cir.2005) (finding no Fourth Amendment seizure when two officers knocked on the suspect’s back door, told the suspect they wanted to talk to him, and asked him to come outside); United States v. Foster, 376 F.3d 577, 581-84 (6th Cir.2004) (finding no seizure where three uniformed officers approached the suspect as he was emerging from a parked vehicle with the engine running, and asked the suspect his name, what he was doing, and whether he had identification); Waldon, 206 F.3d at 602-04 (<HOLDING>). Contrary to Mitchell’s suggestion, the Holdings: 0: holding that the facts that the vehicle described in the tip was parked outside the home that allen gave inconsistent answers to officers questioning and that in addition the defendant fit the physical description of the suspect were sufficient to support the officers reasonable inference that the defendant was actually the suspect and therefore that there was probable cause to arrest him 1: holding that no seizure occurred where officer approached the suspect at the bus stop mentioned that he was investigating a bank robbery asked the suspect what he was doing in the area and for his identification and otherwise gave no indication that the suspect was not free to leave or to refuse to respond to questioning 2: holding that the state courts conclusion that a suspect did not unambiguously request counsel was not unreasonable when during a postmiranda interview the suspect stated i think i would like to talk to a lawyer after which the police stopped questioning him left the room and did not resume questioning until the suspect explicitly said he did not want a lawyer and wanted to continue talking 3: holding that an officer engaged in the functional equivalent of interrogation when he asked a suspect to identify clothing found at a crime scene after the suspect was in custody and had invoked his right to silence regardless of the officers intentions 4: holding that if a police officer inflicted no constitutional injury on a suspect it is inconceivable that the police commissioners could be liable to the suspect | [
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for juror interviews after counsel violated the rules prohibiting contact with jurors in gathering facts to support an allegation of misconduct. There is no indication of improper contact by counsel with jurors in this case. Although the defense in this case did not present evidence of any apparent outward manifestation of intoxication, the use of crack cocaine may not be readily apparent. Additionally, crack cocaine is highly addictive. It is troubling that we are affirming this death case without obtaining an answer to the question of whether the forewoman of the jury used crack cocaine during the trial and in deliberations. Certainly, the use of crack cocaine by a juror in a capital case, if true, would require a new trial. Cf. Gamble v. State, 44 Fla. 429, 33 So. 471, 473 (1902) (<HOLDING>). Thus, given the seriousness of this Holdings: 0: holding that in case of a short term marriage a presumption against awarding permanent alimony arises but such presumption is rebuttable 1: holding that where a claim of ineffective assistance of counsel is grounded in the claim that counsel failed to strike a biased juror a defendant must show that the juror was actually biased against him 2: holding that where the issue is one of arbitrability the federal presumption in favor of arbitration shifts to favor a court determination 3: recognizing presumption 4: holding that if intoxicants have been used by a juror a presumption arises in favor of the convicted defendant that it resulted injuriously to him | [
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the Government and the defendant “agree that a specific sentence or sentencing range is the appropriate'disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).” Fed.R.Crim.P. 11(c)(1)(C). Banks’s plea agreement contains no such provision. More fundamentally, in Tyler and Freeman, the plea agreements at issue were “based on” § 2D1.1. See Tyler, 2012 WL 1396550, at *4; Freeman, 131 S.Ct. at 2699, 2700 (Sotomayor, J., concurring). In contrast, here Banks’s sentence as it stands today is based, not on § 2D1.1, but on § 4B1.1. As such, Tyler, and Freeman, are inapposite. See Warner, 565 Fed.Appx. at 313 (<HOLDING>). III. Conclusion For the foregoing reasons, Holdings: 0: holding that freeman is inapplicable to defendants sentenced under 4b11 seeking a sentence reduction based on amendments to the guidelines for crack cocaine offenses 1: holding that the recent amendment to the crack cocaine guidelines does not qualify defendant for a sentencing reduction under 3582c2 because defendant was originally sentenced pursuant to the guideline range for career offenders 2: holding that the defendants sentence was based on the career offender guidelines despite the fact that the district court calculated an offense level pursuant to the crack guidelines 3: 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 4: holding that a district court lacks authority under 3582c2 to reduce a defendants sentence when the defendant was sentenced under 4b11 as a career offender | [
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that an omission of an element from a jury instruction that is harmless, under the standard set forth in Neder, does not affect a defendant’s substantial rights for purposes of plain error review. United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 677 (9th’ Cir.2009). We must “conduct a thorough examination” of all the evidence in the record and ask whether the omitted element was supported by sufficient evidence. Neder, 527 U.S. at 17, 119 S.Ct. 1827. Cases that have upheld convictions rendered on incomplete or erroneous jury instructions have relied on “strong and convincing evidence” that the prosecution has adequately proved the missing element of the crime. United States v. Perez, 116 F.3d 840, 848 (9th Cir.1997); see also United States v. Smith, 282 F.3d 758 (9th Cir.2002) (<HOLDING>); Tuyet Thi-Bach Nguyen, 565 F.3d at 677 Holdings: 0: holding under a plain error analysis that a failure to charge the jury with an essential element did not warrant reversal of the conviction where the evidence supporting that element was overwhelming 1: holding that the omission of an element is subject to harmless error analysis 2: holding that the omission of an element from jury in structions was not plain error where the underlying fact supporting the element was undisputed based on the uncontradicted testimony of a government witness 3: holding that knowledge element could not be deemed in favor of plaintiff where defendant objected to the omission of that element from the jury charge 4: holding that omission was not plain error | [
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preempted under § 502. As such, it is proper for this court to exercise removal jurisdiction because claims preempted under § 502 fall within the complete preemption exception to the well-pleaded complaint rule. D. ERISA-Speciftc Pleading Requirements Beca th Cir.2000) (finding exhaustion was required when it was clearly required under the plan at issue); Schleeper v. Purina Benefits Ass’n, 170 F.3d 1157, 1157 (8th Cir.1999) (per curiam) (affirming dismissal for failure to exhaust administrative remedies and rejecting the plaintiffs argument that exhaustion would have been futile); Union Pac. R.R. Co. v. Beckham, 138 F.3d 325, 332 & n. 4 (8th Cir.1998) (recognizing the futility exception to the exhaustion requirement under ERISA); Layes v. Mead Corp., 132 F.3d 1246, 1252 (8th Cir.1998) (<HOLDING>). Policy considerations supporting the Holdings: 0: holding that a claimants claim is barred when administrative remedies that are clearly required under an erisa plan are not exhausted 1: holding exhaustion of administrative remedies not required prior to bringing statutory claim under erisa 2: holding that administrative remedies must be exhausted prior to filing a claim in court 3: holding that the ftca bars claimants from bringing suit in federal court until they have exhausted their administrative remedies 4: holding that if adequate administrative remedies are available it is improper to seek relief in court before those remedies are exhausted | [
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because Plaintiffs claims are not based on the Agreements, that its theory based on the earlier promises would not modify the Agreements (even if-they are integrated), and that the Court should admit parol evidence to interpret the terms of the Agreement. As a threshold matter, Plaintiff contends that Defendants cannot raise an argument based on the integration clause because they are not parties to the Agreements. Opp’n at 8-9. The Court rejects this argument. Plaintiff is suing Defendants based on the Agreements, and Plaintiffs authority does not support its position that non-parties cannot invoke the parol evidence rule or integrated contracts when the contracts are central to the issue at hand. See Thomson v. Canyon, 198 Cal.App.4th 594, 609, 129 Cal.Rptr.3d 525 (Cal.Ct.App.2011) (<HOLDING>). Defendants’ cases, however, support the Holdings: 0: holding that parol evidence is admissible to determine intent of parties 1: holding the parol evidence rule applicable where contractual obligations are at issue but noting that in some cases it is unclear whether third parties can rely on the rule 2: holding rule applicable to witness 3: holding that parol evidence can be presented when the terms of the agreement are ambiguous 4: holding that parol evidence is admissible to resolve a contractual term that is ambiguous | [
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when I get out is find you. I know where you live, or, I see you all the time in town. You’re mine.” Later, Wise was heard to say, “I’m going to stab that fucking cop.” The trial judge found that Wise’s testimony was “not credible” and that this evidence proved Wise meant he “was going to have [the officer] killed.” The First Amendment is not implicated in this case because Wise made a threat of bodily harm within the meaning of the statute. This was not a situation involving hyperbole analogous to Watts and the context does not otherwise indicate Wise was making a political statement. The trial judge found the evidence, in context, proved Wise intended to intimidate the officer by threatening physical harm. See Selph v. Commonwealth, 48 Va.App. 426, 433-35, 632 S.E.2d 24, 27-28 (2006) (<HOLDING>). See also Crawley v. Commonwealth, 29 Va.App. Holdings: 0: holding that intent and knowledge can be proved by circumstantial evidence 1: holding that such circumstantial evidence may be used to prove discrimination 2: holding intent to intimidate or threaten may be proved by circumstantial evidence such as ones conduct or statements 3: recognizing that identity of a substance as cocaine may be proved by circumstantial evidence 4: holding that motive is circumstantial evidence of intent | [
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relations cases are allowed to file separate common law contract actions to recover attorney fees, however, they can file actions against their former clients as long as 10 years after the domestic relations matters were resolved. (See 735 ILCS 5/13 — 206 (West 1992).) Plainly, if attorneys are allowed to file separate common law contract actions to recover attorney fees, it thwarts the purpose and intent of section 508 to have all issues involving attorney fees in domestic relations cases decided promptly. We must also bear in mind that before section 508 was enacted, generally an attorney could not seek or obtain a judgment for attorney fees against her own client in a pending domestic relations case. (Cf. Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 331, 364 N.E.2d 327, 328 (<HOLDING>).) Section 508 made an utter change. Section Holdings: 0: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case 1: holding that the court lacked jurisdiction to consider an award of sanctions entered against attorney because the notice of appeal did not provide that attorney was appealing in his own name 2: holding that an attorney could obtain a judgment for attorney fees against his own client in the divorce division of the circuit court of cook county where there was no objection 3: holding attorney general could not contract on behalf of the state to employ an assistant attorney beyond the attorney generals own term 4: recognizing that an attorney has a duty of loyalty to his client | [
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instructed payroll to stop, but despite my instructions some payroll continued.” Ibid. The IRS denied this claim as well, “because [the plaintiff] previously filed a Claim for Refund, Form 843, and the claim was denied on April 29, 2005.” Def.’s Mot., Ex., Decl. of Joann Rogers, Ex. E. The accompanying explanatory letter stated that the plaintiff must file suit within two years of the April 29, 2005 disallowance. Ibid. However, the plaintiff did not file the complaint until June 11, 2007. The go 12 (N.D.Ohio 1955) (stating that the section of the Internal Revenue Code limiting time for commencement of action for recovery of internal revenue tax paid is jurisdictional, and where claim is barred, action must be dismissed.); Schmitt v. Kavanagh, 91 F.Supp. 659, 662 (E.D.Mich.1950) (<HOLDING>). The parties agree that the complaint was Holdings: 0: holding that the time within which suit may be brought after disallowance of a claim by irs is not controlled by a statute of limitation as generally understood but on conditions under which the united states has consented to be sued 1: holding that in statute authorizing suits against united states limits time period in which such suits may be brought united states retains its sovereign immunity as to any suits brought outside of that time period therefore court does not have subject matter jurisdiction over suit against united states that is barred by statute of limitations 2: holding that wjaiver of the right to remove must be clear and unequivocal and that standard was not met by an agreement in which defendants consented to filing of suit in state court but which did not address removal 3: recognizing that under illinois law parties are free to contract for a time period within which a suit may be brought which is less than the general statute of limitation period applicable to written contracts 4: holding that six employees bringing suit under title vii were not in privity with the united states which had brought a previous suit against the same employer because the employees sought a type of relief which the united states had not sought | [
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its services in commerce. See OBH, 86 F.Supp.2d at 186; Planned Parenthood, 1997 WL 133313 at *3. The court considers each of Plaintiffs assertions in turn. 1. Hyperlinks The use of a plaintiffs trademark as the domain name for a website satisfies the “commercial use” requirement if the website contains a hyperlink that connects users to another of a defendant’s websites if it operates for “commercial purposes.” See OBH, 86 F.Supp.2d at 185-86. However, where a “website contain[s] no commercial links, but rather contain[s] links to a [website], which in turn contain[s] advertising” or has a commercial purpose, this does not satisfy the “commercial use requirement of the statute.” See Bosley Medical, 403 F.3d at 678; see also TMI, Inc. v. Maxwell, 368 F.3d 433, 435, 438 (5th Cir.2004) (<HOLDING>); see also Taubman Co. v. Webfeats, 319 F.3d Holdings: 0: holding but for requirement not satisfied where investigation had no unique special factual features that but for the requirement of the act would have permitted a quick termination if the investigation were conducted outside the act 1: holding that there is nothing improper with defendants purchase of sponsored links when defendants actually sell plaintiffs products on their website 2: holding that a competitive commercial purpose is not of itself improper 3: holding that challenge to oneyear residency requirement for divorce action was not moot even though plaintiff had since satisfied requirement 4: holding that the commercial use requirement is not satisfied where defendants site itself had no outside links | [
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991 F.2d at 1384 (citing Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511 (D.C.Cir. 1988)). This language seems to mean that in order for the second clause to apply, the facts establishing all elements of the plaintiffs claim must have occurred within the United States. Contrary to BP’s assertion, Sopo’s activities within the United States are not sufficient to establish a cause of action. All that Sopo allegedly did in the United States was disclose BP’s trade secrets to the United States vendors. This act if proved would not itself establish a trade secret misappropriation. For BP to prevail on a misappropriation theory, it would also have to show that Sopo acquired the information in an unlawful manner. E.g. BP Chemicals, Ltd. v. Baloun, No. 4.-98CV932 RWS (E.D.Mo. Oct. 11, 2000) (<HOLDING>); Restatement of Torts § 757(a) (1939) (stating Holdings: 0: holding that the term sold requires both a transfer of ownership to an unrelated party and consideration 1: holding that proceeds of a litigation settlement were an identifiable fund and thus a proper subject of a misappropriation and conversion claim 2: holding that a misappropriation under morevstat 417450ba requires both an improper acquisition and ultimate disclosure 3: holding that term sold requires both a transfer of ownership to an unrelated party and consideration 4: holding the term misappropriation of an advertising idea to be unambiguous | [
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and users. Id. at 123, 129. Similarly, in Penelas v. Arms Tech., Inc., No. 99-1941 CA-06, 1999 WL 1204353 (Fla.Cir.Ct. Dec. 13, 1999), the Mayor of Miami-Dade County brought an action against gun manufacturers, a gun distributor, and three trade associations, asserting various negligence claims and seeking to recover the costs incurred in providing police, fire, emergency, court, prison and other related services as a result of various homicidal, suicidal and accidental shootings in the county. Id. at *1. The court held that the county lacked standing because the damages were purely deriva tive of damages suffered by third parties and too remote to be recoverable. Id. at *2; see also Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F.Supp.2d 245, 257-58 (D.N.J.2000) (<HOLDING>); District of Columbia v. Beretta U.S.A. Corp., Holdings: 0: holding a county and a road district had standing to sue state highway commission and county tax collector based on their interest in and control over the public roads of the county 1: holding that county lacked constitutional standing to assert against gun manufacturers negligence claims seeking compensation for manufacturers alleged reckless and negligent handgun marketing and distribution because its theory of causation involved a great number of links in the causal chain and county would have been required to show that causation was not severed by distributor retailer or purchaser illegal conduct or gun theft 2: holding that evidence of appellants prior gun possession was admissible in a homicide prosecution to show malice and intent possession of a gun without more is not wrongful conduct 3: holding direct testimony tying a defendant to a gun was not required when the gun was found in the defendants truck and when the defendant had both ammunition for the gun and a rack in which it could have been kept 4: recognizing county officers as those whose general authority and jurisdiction are confined within the limits of the county in which they are appointed who are appointed in and for a particular county and whose duties apply only to that county and through whom the county performs its usual political functions | [
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of the company5’); Alfus v. Pyramid Technology Corp., 764 F.Supp. 598, 603 (N.D.Cal.1991) (finding that a company may be liable for not correcting analysts’ forecasts where it undertakes to provide information regarding and pass on the analysts’ forecasts, but finding no liability where a company officer merely examines and comments upon an analyst’s report); In re Aldus Sec. Litig., [1992-1993 Transfer Binder] Fed. Sec. L. Rep. (CCH ¶ 97,376 at 95,984-85) (W.D.Wash.1993) (finding plaintiffs’ claim sufficiently alleged that defendants placed their imprimatur on analysts’ reports, but employing a lower Rule 9(b) pleading requirement than is applied in this circuit); In re Cypress Semiconductor Sec. Litig., [1993 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 97,060 at 94,698 (N.D.Cal. 1992) (<HOLDING>). Appellants argue that we should adopt the Holdings: 0: holding that single paragraph asserting that plaintiffs based their information and belief on investigation of sec filings analysts reports press releases and discussions with consultants neither provided required facts underlying complaints allegations nor directed court to where facts could be found 1: holding no scienter had been alleged where the plaintiffs failed to allege that the defendants had access to information that specifically informed them of the alleged flaws in the preparation of pxres loss estimate reports 2: holding that such information is not material under securities law 3: holding that plaintiffs need only allege that defendants provided information to the securities analysts upon which the reports were based 4: holding that plaintiffs must specifically allege defendants knowledge of facts or access to information contradicting their public statements | [
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of 1989, which expressly abolished common law offenses and statutorily specified the conduct necessary to support a criminal prosecution in Tennessee. Id. at 728. We emphasized in Hill that “an indictment need not conform to traditionally strict pleading requirements.” Id. at 727. Since common law offenses no longer exist, “we now approach ‘attacks upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.’ ” Hill, 954 S.W.2d at 728 (quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir.1978)). In many decisions since Hill discussing the sufficiency of indictments, we have repeate writing for the Court) (<HOLDING>). Another even more recent decision further Holdings: 0: holding that an indictment gave sufficient notice when the indictment charged the elements of the offense 1: holding that an indictment under 922g1 was not required to allege a substantial effect on interstate commerce an indictment which tracked the statutory language was sufficient 2: holding that instructions are sufficient which substantially follow the language of the statute or use equivalent language 3: holding that an indictment which cites the pertinent statute and uses its language will be sufficient to support a conviction 4: holding that an indictment that is substantially in the language of the code is sufficient inform and substance | [
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F.3d 448 (6th Cir.1999) (<HOLDING>). Recognizing that the EEOC is vested with Holdings: 0: holding that a party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised fall within the scope of that agreement 1: holding that a party attempting to compel arbitration must first establish that the dispute in question falls within the scope of a valid arbitration agreement 2: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 3: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration 4: holding that a private arbitration agreement does not affect the scope of the eeocs federal court suit at all | [
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custody and control over another. Estate of Brennan v. Church of Scientology Flag Serv. Org., 832 F.Supp.2d 1370, 1377-78 (M.D.Fla.2011). For example, aduty to prevent suicide exists where a patient is committed to a psychological institution, Kelley, 68 So.3d at 957, or where a child is under the supervision of a school, see Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir.1997). Alternatively, some Florida courts have determined that professionals, such' as psychiatrists, have a duty to treat patients in accordance with professional standards and may be liable if negligent care'results in a patient’s suicide. See Granicz v. Chirillo, 147 So.3d 544, 548-49 (Fla. 2d DCA); review granted, 168 So.3d 224 (Fla.2014). But see Lawlor v. Orlando, 795 So.2d 147, 148 (Fla. 1st DCA 2001) (<HOLDING>). A legal duty requires more than just Holdings: 0: holding that counselors had no duty to prevent suicides of noncustodial clients 1: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave 2: holding the issue of negligence was properly submitted to the jury and its finding of negligence was a reasonable inference because decedent had known suicidal tendencies and committed suicide while a patient at a psychiatric hospital 3: holding doc and its personnel had independent legal duty to prevent prisoner from committing suicide 4: holding a psychotherapist had no duty for the suicide of a patient in a noncustodial setting | [
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1139 (1972). More recently, we have required a “clear expression” of legislative intent before installing a private right of action in a statute otherwise silent on the matter. State v. Moldovan, 842 P.2d 220, 227 (Colo. 1992) (discussing Quintano, 495 P.2d at 1138-39 and Bd. of Cty. Comm’rs v. Moreland, 764 P.2d 812, 818-19 (Colo. 1988)). 2. The Samelmplied-Private-Right-of-Action Analysis Applies to Governmental and Non-governmental Defendants ¶ 23 We have expressed the same concerns no matter the legal theory and no matter the defendant. Although our implied-private-right-of-action cases typically concern torts, e.g., Moldovan, 842 P.2d at 226-27, we have analyzed other implied statutory claims as well, e.g., Bd. of Cty. Comm’rs v. Pfeifer, 190 Colo. 275, 546 P.2d 946, 948-49 (1976) (<HOLDING>). We similarly hesitate to imply a private Holdings: 0: holding that the trial court was without authority to set aside entry of default on motion to set aside default judgment 1: recognizing that a trial court can set aside verdict 2: holding that the court may set aside agency action only in extremely limited circumstances 3: holding that family courts conclusions will not be set aside if supported by findings 4: holding statute did not create claim to set aside improper conveyance | [
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It was not until July 2, 2001, eleven months later still, that Baylor filed his motion for relief under 28 U.S.C. § 2255, arguing his conviction and his sentence were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, which had been decided on June 26, 2000. In order to be timely, Bay 1998) (“the court’s equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances”). Counsel is under an obligation to check with reasonable frequency on the status of a pending case, a duty the discharge of which in Baylor’s case was never more than a phone call away, and which now may be discharged over the Internet as well. Cf. Fox v. American Airlines, Inc., 389 F.3d 1291, 1294 (D.C.Cir.2004) (<HOLDING>). Baylor’s petition for rehearing was filed on Holdings: 0: 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: holding that ordinarily courts are not obligated to review evidence presented for the first time on appeal 2: holding that the timely filing of an administrative charge of discrimination is a prerequisite to bringing suit 3: holding that attorneys are obligated to monitor the courts docket and the failure to do so will not excuse the lack of a timely filing 4: holding that the timely filing of a motion to reopen or reconsider with the bia does not toll the time period for seeking appellate court review and that the mere act of filing the motion does not render nonfinal the underlying bia decision | [
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of the circumstances of which Cott-rill was aware, and compared to the facts in other cases in which we have rejected hostile work environment claims, we hold that Cottrill has not established a question of máterial fact as to whether the alleged harassment was so severe and pervasive as to constitute a hostile work environment at MFA’s Albany retail facility in violation of Title VII. See LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1100-03 (8th Cir.2005) (finding no objectively hostile work environment created by defendant’s unwelcome sexual advances on three separate occasions over a nine-month period, including asking the employee to watch pornographic movies with him, hugging and kissing, and grabbing the employee’s buttocks and thigh); Tug-gle, 348 F.3d at 720 (<HOLDING>); Duncan v. Gen. Motors Corp., 300 F.3d 928, Holdings: 0: holding no actionable hostile work environment based on defendants inappropriate sexual comments taking a photograph of plaintiffs rear end and giving plaintiff undesirable work assignments 1: holding that a hostile work environment is a form of discrimination that is actionable under the statute 2: recognizing a hostile work environment claim under section 1983 3: recognizing hostile work environment discrimination in ada context 4: holding that supervisors routine vulgar references to plaintiff could not support a hostile work environment claim because plaintiff was unaware of the comments and to show that he or she perceived the environment as hostile a title vii plaintiff must at least have been aware of those comments | [
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violation of Title VII “[gjiven the magistrate judge’s opportunity to view the demeanor of the witnesses at trial and the inconsistencies in [the employer’s] version of the events surrounding [the plaintiffs] departure from [the company].”); Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir.1986) (reversing district court’s grant of summary judgment to employer because plaintiffs allegations made in her affidavit that “ ‘she had never been warned or disciplined about her performance’ ... directly contradicted] [her supervisor’s] stated reason that [she] was discharged in part for poor performance[ ] ... [and] raise[d] a genuine issue of material fact with respect to the reason for her discharge so as to preclude summary judgment.”); Ferguson v. Small, 225 F.Supp.2d 31, 40-41 (D.D.C.2002) (<HOLDING>). Moreover, to the extent that director Holdings: 0: holding that plaintiff need only point to sufficient evidence to support an inference that the employer did not act for its proffered nondiscriminatory reasons 1: holding that the district court erred in failing to consider all of the employers proffered evidence of legitimate business reasons for the plaintiffs termination 2: holding that employees threats of violence against a coworker were legitimate nondiscriminatory reasons for termination 3: holding that the conflicting explanations given by defendants agents for the plaintiffs termination were also sufficient to raise a reasonable inference that defendants proffered reasons for the termination were pretextual the inconsistent testimony regarding the motivating reasons for plaintiffs termination cast doubts on the asserted nondiscriminatory legitimate reasons and may alone be sufficient to preclude summary judgment on plaintiffs claim 4: holding that the numerous inconsistencies in the testimony of the persons primarily responsible for plaintiffs termination when coupled with the timing of plaintiffs termination and the conflicting reasons given by defendants agents for the termination might well persuade a jury that defendant fired the plaintiff in retaliation for the letter sent by her attorney to defendants general counsel | [
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(see Docket Entries 1 and 9), and therefore there is no legal or factual basis for this claim to go to the jury. Thus, defendants’ ninth affirmative defense and third counterclaim should be dismissed to the extent it is based on the parties’ lease. There is also no basis to submit to the jury defendants’ attorneys fees claim under the Fair Housing Act. Indeed, 42 U.S.C. § 3613(e)(2), upon which defendants rely, clearly provides that “[i]n a civil action under [the Fair Housing Act], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs.” (Emphasis added). Thus, whether and to what extent defendants or plaintiffs are entitled to attorneys’ fees and costs will be decided by the Court. Sassower, 973 F.2d 75, 79 (<HOLDING>) (quoting Christiansburg Garment Co. v. EEOC, Holdings: 0: holding that feeshifting is permitted under the fair housing act where prevailing defendant shows that suit is frivolous unreasonable or without foundation 1: holding a district court may in its discretion award attorneys fees upon a finding that plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith 2: holding that courts may award prevailing title vii defendant attorney fees upon a finding that the plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith and fees also may be awarded if plaintiff continued to litigate after its action clearly became frivolous unreasonable or without foundation 3: recognizing provisions of the fair housing act that forbid false statements that housing is unavailable to a person because of his race 4: holding that a plaintiff who wins any measure of damages is a prevailing party for the purposes of feeshifting statutes | [
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district] plan at issue — The parties’ dispute as to this Court’s jurisdiction centers [instead] on whether the Wilmington .plan is a ‘governmental plan’ within the meaning of ERISA and therefore is.exempt....”). For example, in Weiner, the Sixth Circuit examined whether it had subject-matter jurisdiction over an ERISA appeal involving the Portage County Benefit Plan and the City of Barberton Health Benefit Plan. Weiner, 108 F.3d at 88-89. There, the court agreed that these governmental plans qualified as “employee benefit plans” within the meaning of ERISA but nevertheless fell outside of the Act’s coverage due to the governmental plan exclusion from 29 U.S.C. § 1003(b)(1). See id. at 89-90.& n.3 (“[A] plan may be an ‘employee benefit plan’ and th F.Supp.2d 443, 445-47 (D.Vt.1999) (<HOLDING>); Garvey v. Ruch Prudential HMO, Inc., No. 96 C Holdings: 0: holding that healthcare plan established by the state of vermont for eligible employees qualified for governmental plan exclusion 1: holding that plan language giving plan administrator power to determine which employees are eligible to participate in the plan and providing all parties dealing with the plan an interpretation of plan provisions on request indicates deferential standard of review of trustee eligibility decisions 2: holding that a group benefits policy purchased by the city for employees was a governmental plan even though the plan was offered and administered by a private insurer 3: holding that disability plan established by state university for benefit of employees qualified for governmental plan exclusion 4: holding that county governments healthcare plan qualified for governmental plan exclusion | [
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the filing of a bankruptcy petition, the Bankruptcy Code provides for an automatic stay of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). The “automatic stay pertains only to actions involving the debt- or or property of the estate.” In re Priestley, 93 B.R. 253, 261 (Bankr.D.N.M.1988). In turn, the Bankruptcy Code defines “property of the estate” as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). A directors and officers liability insurance policy is considered “property of the estate” if it increases the debtor’s worth or diminish its liabilities. In re Zenith Labs., 104 B.R. 659, 665 (D.N.J.1989) (<HOLDING>); In re Minoco Group of Cos., Ltd., 799 F.2d Holdings: 0: holding that the debtor could retain exempt property because it was not property of the estate 1: holding directors and officers liability policy was property of the estate because the estate was worth more with indemnification coverage than without the coverage 2: holding that the proceeds of a liability insurance policy were not property of the estate 3: holding directors and officers liability policy was not property of the estate because it did not increase or decrease the worth of the bankruptcy estate 4: holding that where the policy names only the directors or officers as insured the proceeds are not property of the estate | [
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argues that Dean and Lockwood are distinguishable because those cases involved the failure to install guardrails and did not involve wedge curbs. Nevertheless, the injuries suffered by Smith, like the injuries suffered by the plaintiffs in Dean and Lockwood, result from the motor vehicle traveling off the portion of the roadway intended for travel. Smith does not allege that his injuries were caused by the condition of any portion of Crucible Street that is intended for travel. The wedge curb cannot be said to be any more of a dangerous condition resulting in a reasonably foreseeable injury to Smith than the failure to install guardrails in Dean and Lockwood were dangerous conditions resulting in reasonably foreseeable injury. See also Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989) (<HOLDING>). There is no merit in Smith’s contention that Holdings: 0: holding that permitting a strip mine within the department of transportations rightofway without warning the public providing lighting or erecting a guardrail did not create a dangerous condition within the meaning of the real property exception to sovereign immunity 1: holding that a police department is not a person within the meaning of section 1983 2: holding that a state is not a person within the meaning of 1983 3: holding that department of transportation did not have control of motorists drivers license because although the department of transportation may have had a duty to recall the motorists license this authority to revoke does not involve physical possession or actual control sufficient to bring the license within the ambit of the personal property exception to sovereign immunity 4: holding that a public entitys property refers to the public entity that owns the property where a dangerous condition exists | [
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his motion for a new venire. During voir dire, the defense counsel asked the judge for a sidebar, during which he orally moved to dismiss the venire. The defense counsel stated that there were only 3 or 4 black members on the 44-person venire. Stating that there were also "other Eurasian people in the voir dire panel,” the judge denied the defense counsel’s motion. The judge began the proceedings the next day by citing People v. Peeples (1993), 155 Ill. 2d 422, 616 N.E.2d 294, in support of his ruling the day before. At this time, the defense counsel complained that the only black jury member was one whom the parties had selected as a potential alternate juror, but the judge did not change his ruling. There is no written motion for a new venire in the record, althou 1 N.E.2d 1263 (<HOLDING>). Even if we were to review the merits of the Holdings: 0: holding that defendant did not breach oral agreement because among other things the plaintiff had not established that the term in question was part of the oral contract 1: holding that the defendants oral motion challenging the venire was insufficient to preserve the issue for review 2: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only with the existence of the alleged oral contract 3: holding that an oral challenge to the venire is insufficient 4: holding that when the courts oral statements in the plea colloquy conflict with the written agreement the courts oral statements control | [
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217, 219 (3d Cir.1994). 36 . Id. at 219. 37 . Id. at 224-225. See also Elrod Holdings Corp., 426 B.R. 106, 111. 38 . In re Forklift LP Corp., 340 B.R. 735, 738-39 (D.Del.2006) (citing In re Parkline Corp., 185 B.R. 164, 169 (Bankr.D.N.J.1994)). 39 . Morris v. Sampson Travel Agency, Inc. (In re U.S. Interactive, Inc.), 321 B.R. 388, 392-93 (Bankr.D.Del.2005). 40 . Big Wheel Holding Co., Inc. v. Fed. Wholesale Co. (In re Big Wheel Holding Co.), 223 B.R. 669, 674 (Bankr.D.Del.1998). To the extent the ordinary course of business exception applies, the Court does not need to determine whether the third prong of § 547(c) is satisfied since the amended 2005 Code, as amended in 2005, requires only a showing that a transfer orp. (In re Sacred Heart Hosp.), 200 B.R. 114, 117 (Bankr.E.D.Pa.1996) (<HOLDING>). 42 . Molded Acoustical, 18 F.3d at 225. 43 . Holdings: 0: holding that a 14 month delay was unreasonable 1: holding that a five month delay was unreasonable 2: holding that a 13 month delay was unreasonable 3: holding that a six month delay was unreasonable 4: holding that a 16 month relationship was not of sufficient length | [
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debtors, which are specified as “Other Necessary Expenses” on Form B22C, a category for which the IRS does not set out specific dollar allowances. Rather, § 707(b)(2)(a)(ii)(I) allows debtors to deduct their actual expenses under this category. 45. Line 37 of Form B22C limits telecommunication expenses to those of the debtors or their dependents. Because Form B22C specifically so limits the deduction for telecommunication expenses, the debtors bear the burden of demonstrating that these expenses are actual, reasonable, and necessary expenses for themselves (rather than for a household of ten people). See 11 U.S.C. § 1325(b)(3) (indicating that disposable income is calculated by deducting “reasonably necessary” expenses from the debtor’s current monthly income); see also Edmunds at 645 (<HOLDING>). The debtors have failed to meet that burden. Holdings: 0: holding that debtors have the burden of proving that other necessary expenses on form b22c are actual reasonable and necessary expenses and that these expenses should be considered in light of schedule j and other relevant evidence 1: holding that necessary expenses such as living expenses are not considered a squandering or secreting of marital property such that reimbursement or a setoff should be ordered 2: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 3: holding that jury should decide whether plaintiffs testimony proved reasonable and necessary medical expenses 4: holding that medical expenses must be proven to be both reasonable and necessary | [
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the debtor lacked a good-faith statutory basis for claiming the exemption. In Peterson, the Eighth Circuit found that the debtors had a good-faith statutory basis for seeking to exempt their interest in the house. The trustee’s counsel asserts, in his brief, that the Debtors’ claim of exemption lacks a good-faith statutory basis because “a comprehensive review of existing case law reveals that the Debtors may not claim an exemption in an ERISA-qualified pension plan under RSMo (sic) Section 513.-430(10)(e) ... [because a] majority of the courts ... have held that ERISA preempts a state’s attempt to make a debtor’s interest in these plans exempt.” Trustee’s Memorandum of Law, at 2 (cites omitted). As the trustee concedes, only a majority of courts have held that ERISA preem .Mo.1990) (<HOLDING>) aff'd by 126 B.R. 348 (W.D.Mo.1990) (currently Holdings: 0: holding that erisa does not preempt revstatmo 51343010e because it is entirely consistent with both erisa and the bankruptcy code 1: holding that erisa does not preempt section 22213b7 2: holding that erisa does not preempt the plaintiffs claim that the erisa plan administrator is liable for medical malpractice where the plaintiff premised the claim solely on state law and did not invoke the erisa plan 3: holding that erisa does not preempt professional malpractice claims 4: holding that to the extent revstatmo 51343010e affects erisa it is preempted | [
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The High Court has explicitly affirmed that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present. Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (citing Lewis, supra at 374,13 S.Ct. 136). The determination that voir dire is a critical stage of trial flows directly from the recognition that a defendant’s “life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers in the selection of jurors.” Lewis, supra at 373, 13 S.Ct. 136. However, certain decisions regarding the conduct of voir dire are properly made by counsel alone. See, e.g., Gonzalez v. United States, 553 U.S. 242, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2009[2008]) (<HOLDING>). The High Court has also stated: The mere Holdings: 0: holding that district courts delegation of voir dire to magistrate judge is inconsistent with 28 usc 636b3 where defendant does not consent 1: holding that the jurors failure to remember particular facts inquired about on voir dire and the jurors misunderstanding of voir dire questions do not constitute probable prejudice 2: holding that defendants have a right to be present at voir dire 3: holding that defense counsel may decide whether to consent to voir dire proceedings before a federal magistrate 4: holding that voir dire of jury may be delegated to magistrate judge where defendant consents to the delegation because the district court retains the ultimate decision on empaneling the jury | [
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Va. 571, 9 S.E.2d 454, 458 (1940). The Virginia Supreme Court has not had occasion to decide this question, and as a result, this court must interpret Virginia law. (a) Background While the precise issue in this case has arisen recently in a number of Virginia state courts, no judicial consensus has emerged. The plaintiff’s argument carr GV96001893 (Charlottesville Gen. Dist. Ct.1996) (same); Babb v. Wal-Mart Stores, Inc., No. 2:95cv630 (E.D.Va. March 7, 1996) (permitting plaintiff to recover only the discounted medical fees paid by her health insurers). Analogous issues have been decided in bankruptcy cases where personal injury plaintiffs sought to recover medical expenses subsequently discharged in bankruptcy. See Walker v. Long, No. LU-3591 (City of Richmond Cir. Ct. Oet.20, 1993) (<HOLDING>); Morganthal v. Piper, CL 94-2496 (Va. Beach Holdings: 0: holding that state did not submit sufficient evidence to establish amount of restitution to victim for medical bills incurred when it did not introduce any medical bills 1: holding that plaintiff could not recover medical bills that were discharged in bankruptcy 2: holding that plaintiff could recover medical fees not actually paid by the insurance company pursuant to an insurance contract 3: holding that statute does not alleviate plaintiffs burden to provide additional evidence that medical bills were reasonable and necessary 4: holding that statute provides medical bills are admissible as evidence of necessary fair and reasonable charges | [
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District of Pennsylvania under 28 U.S.C. § 2241, arguing that the BIA violated his due process rights and erred in determining that he was not eligible for cancellation of removal. He also sought the opportunity to apply for protection under the United Nations Convention Against Torture (“CAT”). The District Court denied Gerbier’s request for habeas relief, finding that the BIA had properly determined that Gerbier was an aggravated felon and, thus, ineligible for cancellation of removal. The District Court permitted Gerbier to apply for protection under CAT, but Gerbier subsequently declined this opportunity. This timely appeal followed. The District Court had jurisdiction pursuant to 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001) (<HOLDING>). We have appellate jurisdiction to review a Holdings: 0: holding that neither the antiterrorism and effective death penalty act of 1996 nor the illegal immigration reform act of 1996 repealed the district courts jurisdiction to review aliens habeas petitions 1: holding that the oneyear statute of limitations for filing a habeas petition under the antiterrorism and effective death penalty act of 1996 is not jurisdictional 2: holding that the aedpa applies to those habeas corpus petitions filed after its effective date of april 24 1996 3: holding that habeas jurisdiction under 2241 was not repealed by the illegal immigration reform and immigrant responsibility act of 1996 iirira 4: holding that in a designation of a foreign terrorist organization under the antiterrorism and effective death penalty act of 1996 aedpa the governments use of classified information without permitting the organization to view the information did not violate the organizations due process rights | [
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weight of the eyewitness statements, with respect to FIRs 89, 34 and 100, Barapind offered his own compelling witness statements, in which all of the eyewitnesses upon which India relies either recant their earlier identification, or deny having made an identification in the first place. There is some confusion, however, as to whether this type of evidence is admissible in this context. The general rule is that evidence that “explains away or completely obliterates” probable cause is admissible, while evidence that “merely controverts the existence of probable cause” is not. Mainero v. Gregg, 164 F.3d 1199, 1207 n. 7 (9th Cir.1999). Courts, however, have struggled with the admissibility of recantation evidence under this rule. See, e.g., In re Extradition of Singh, 170 F.Supp.2d at 994 (<HOLDING>); compare Eain v. Wilkes, 641 F.2d 504, 511-512 Holdings: 0: holding that even if the standard for waiver is clear the standard was not met 1: holding that the protect act amendments to the standard of review apply retroactively 2: recognizing that the standard is extremely difficult to apply 3: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard 4: holding that an oral warning may be sufficient where the harassing conduct is not extremely serious | [
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a mental health worker held while Bowling was in jail, Bowling claimed that he "had no recollection of the day of the crime.” J.A. at 54 (Pet. Br. in Dist. Ct.). 2 . We note parenthetically that this argument was adopted by two justices of the Kentucky Supreme Court on Bowling's direct appeal. Bowling I, 873 S.W.2d at 182-85 (Leibson, J., dissenting). 3 . Under current Kentucky law, Bowling has the burden of proving EED; the government is not charged with proving its absence. See Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky.1985). Bowling argues in his brief that the government should have had the burden of proving an absence of EED at trial. Bowling cites a recent Sixth Circuit case that granted habeas relief on such grounds. See Gall v. Parker, 231 F.3d 265, 288-91 (6th Cir.2000) (<HOLDING>), cert. denied, 533 U.S. 941, 121 S.Ct. 2577, Holdings: 0: holding that the burden is on the plaintiff 1: holding that the burden is on the defendant when the validity of the warrant is challenged 2: holding that the burden of proving lack of negligence is on the owner 3: holding that the kentucky supreme court erroneously put the burden on the defendant to show eed when it was actually the governments obligation to prove a lack of eed 4: holding that the taxpayer has the burden to prove the governments tax assessment is incorrect | [
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see also United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir.2000) (per curiam) (“An error in admitting testimony may be harmless if the testimony is corroborated by independent sources, or if it amounts to cumulative evidence on matters already before the jury.”). Special Agent Starmer’s hearsay testimony concerning the incident in Oklahoma mirrored Winfrey’s testimony. Although, like Special Agent Starmer, Winfrey acknowledged that he had no first-hand knowledge of the vehicle stop, Robinson did not object to Winfrey’s testimony as hearsay. See United States v. White, 11 F.3d 1446, 1451 (8th Cir.1993). Neither did Robinson object to Ousley’s hearsay testimony confirming the incident. Indeed, there is no indication that Robinson even disputed that the s 2 (8th Cir.2005) (<HOLDING>). Finally, the record is replete with other Holdings: 0: holding that the improper admission of hearsay testimony concerning a childs report of sexual abuse warranted reversal where the childs otherwise uncorroborated testimony was the sole basis for conviction and the hearsay augmented the childs testimony with additional detail in certain areas 1: holding harmless the improper admission of a social workers hearsay testimony concerning a childs report of sexual abuse where the credibility of the childs testimony was supported by other witnesses 2: holding that the court erroneously admitted hearsay testimony from adults concerning a childs statements to them regarding her fathers sexual abuse 3: holding that the improper admission of hearsay testimony from two witnesses whose testimony was brief and consistent with the victims testimony did not constitute drumbeat repetition of the victims statements 4: holding that defendants absence from courtroom during childs testimony to jury instead of presenting videotape of childs testimony to jury with defendant present violated confrontation clause in absence of necessity or defendants consent | [
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fees awarded under the statute should be payable to the attorney, since a different interpretation would render the Savings Clause superfluous, noted that its decision best satisfied the purpose of the EAJA, while a decision paying fees to the plaintiff and subjecting them to administrative offset would subvert the legislature’s intent. Id. Likewise, in Richardson v. Astrue, the Western District of Missouri determined that a fee award under the EAJA must be paid to counsel, since “[cjlearly an award for attorney’s fees is intended to compensate the attorney, not generate income for the claimant so that it may be attached by other federal agencies.” No. 06-0331-CV-W-SWH, at *2 (W.D. Mo. Oct 2, 2007). See also Whatley v. Astrue, No. 2:07-cv-00117-UWC, at *3-4 (N.D.Ala. Nov. 2, 2007) (<HOLDING>) and Hagman v. Astrue, No. 5:06-cv-198-OC-GRJ Holdings: 0: holding that the eaja application satisfied the eaja content requirements because it contained among other things an itemized statement of the fees sought supported by an affidavit from the appellants counsel 1: holding that the plain language of the eaja requires the fee award payable to counsel as any other reading would render the savings clause nonsensical 2: holding that payment of eaja fees directly to the attorney also is consistent with the broad purpose for enacting the eaja if the commissioners narrow position was adopted there would be a substantial risk that counsel for a successful plaintiff might not be paid which would have a chilling effect on the willingness of attorneys to represent indigent claimants in social security cases thus thwarting the primary purpose the eaja was enacted 3: holding that a cause of action based on eaja will be deemed to have survived the death of the aggrieved party and the personal representative of the deceased partys estate or any other appropriate person may be substituted as the prevailing party to whom payment of an eaja award may be made 4: holding that incurred within the meaning of the eaja requires an express or implied arrangement that the fee will be paid over to a legal representative | [
"3",
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"1"
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doctrine survived the PSLRA); Stanley v. Safeskin Corp., 2000 WL 33115908 at *4, 2000 U.S. Dist. LEXIS 14100 at *13-14 (S.D.Cal. Sept. 15, 2000) (rejecting argument that group pleading doctrine did not survive the PSLRA); Zishka v. American Pad & Paper Co., 2000 WL 1310529 at *1-2, 2000 U.S. Dist. LEXIS 13300 at *6-7 (N.D. Tex. Sept 13, 2000) (rejecting the group pleading doctrine in light of the PSLRA and requiring plaintiffs to plead with particularity allegations against each defendant); In re Solv-Ex Corp. Sec. Litig., 2000 U.S. Dist. LEXIS 13113 at *15 (S.D.N.Y. Sept. 6, 2000) (“The PSLRA has not abolished the use of group pleading in Section 10(b) cases.”); In re Ashworth Secs. Li-tig., 2000 WL 33176041 at *11-12, 2000 U.S. Dist. LEXIS 15237 at *34-35 (S.D.Cal. July 18, 2000) (<HOLDING>); Marra v. Tel-Save Holdings, Inc., 1999 WL Holdings: 0: holding that although the express warranty claim was not federally preempted the plaintiff had not alleged sufficient facts for the claim to survive dismissal under rule 8 where the pjlaintiff alleged no facts demonstrating that defendants made any affirmations specifically to plaintiff or her physician so as to form the basis of the bargain 1: holding that a mere allegation of fraud is insufficient to survive a motion to dismiss pursuant to the pslra 2: holding that the group pleading doctrine survives the pslra as to rule 9bs particularity requirements but does not apply to the pslras scienter requirements 3: holding that the pslra particularity requirement compels plaintiffs to allege severe recklessness 4: holding that the group pleading doctrine did not survive the pslra because it cannot be reconciled with the pslras requirement that plaintiff state facts with particularity as to each alleged act or omission by the defendant | [
"1",
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may "take judicial notice of a document filed in another court ... to establish the fact of such litigation and related filings.” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.2006) (internal quotation marks omitted). 4 . The district court did not reach the defendants' other arguments for dismissal, including Best Buy and Speakeasy’s argument that RTI’s claim that they “assisted” in filing the California Action did not satisfy the plausibility standard for pleading, see Iqbal, 556 U.S. at 678-80, 129 S.Ct. 1937, and the Covad Defendants’ argument that they were not bound by the Agreement. Because we affirm the district court's dismissal under Lear, we do not reach these arguments. 5 . Cf. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1374 (6th Cir.1976) (<HOLDING>). 6 . This case differs from MCA in that the Holdings: 0: holding that the rationale of the consent decree cases was fully applicable where a stipulated dismissal and settlement resolved pending patent litigation and there were other licensees and alleged infringers who had an incentive to challenge the patents validity 1: recognizing that in patent infringement eases a finding of noninfringement prevents a court from reaching an affirmative defense asserting the patents invalidity because the validity issue becomes immaterial to the disposition of the case and that any determination of the patents validity by the district court in such a case should be vacated 2: holding that applicable federal patent law made patents personal and unassignable without consent of the licensor 3: holding that the complaint placed the defendant on notice when it alleged ownership of the asserted patent named the individual defendants cited the patents that are allegedly infringed described the means by which the defendants allegedly infringed the patents and pointed to specific sections of the patent law invoked 4: holding that a dismissal of a defendant who did not agree to settlement is not a favorable termination if dismissal of that defendant was a condition of settlement | [
"4",
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— Ft. Worth 1988, pet ref’d) (hands were deadly weapon in murder case); Fegurgur v. State, 734 S.W.2d 103 (Tex.App. — Austin 1987, no pet.) (knife or knuckles were deadly weapon in murder case); Cervantes v. State, 706 S.W.2d 685 (Tex.App. — Houston [14th Dist.] 1986, no pet.) (board was deadly weapon in aggravated assault case); see also State ex rel Esparza v. Paxson, 855 S.W.2d 170 (Tex.App. — El Paso 1993, no pet.) (trial court did not have discretion to disregard affirmative finding that sock was deadly weapon in strangulation case). The category of “deadly weapons” has likewise been broadly interpreted in deciding whether the indictment provided sufficient notice that the State would seek a deadly weapon finding. See, e.g., Ex parte McKithan, 838 S.W.2d 560 (Tex. Crim.App.1992) (<HOLDING>); Pena v. State, 864 S.W.2d 147 (Tex. App. — Holdings: 0: holding that indictment alleging serious bodily injury caused by motor vehicle colliding with a fixed object provides sufficient notice of states intent to seek deadly weapon finding 1: holding floor can be used as deadly weapon 2: holding a motor vehicle can be a deadly weapon by the manner of its use 3: holding hand can be deadly weapon 4: recognizing that motor vehicle can be a deadly weapon in involuntary manslaughter case for purposes of providing notice in indictment | [
"3",
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of a burden for purposes of the UUP test. Section 5 of the Charity Act After it concluded that Theater was not a “purely public charity” under the HUP test, the trial court then decided that Theater also did not qualify for an exemption under the Charity Act. It concluded that Theater did not prove that, upon dissolution, its assets would be donated to a charity or that it renders a substantial portion of its services gratuitously. Theater challenges both conclusions as inconsistent with the uncontradicted evidence. County responds that once the trial court determined that Theater did not qualify as a “purely public charity” under the HUP test, its analysis should have ended. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 615 Pa. 463, 44 A.3d 3, 9 (2012) (<HOLDING>). County argues that this Court should remand Holdings: 0: holding that the district courts question do you also understand that under some circumstances you or the government may have the right to appeal any sentence that i impose did not comply with rule llbln and failed to properly notify the defendant about the waiver of his appellate rights 1: holding that if you do not qualify under the hup test you never get to the statute 2: holding that it is not extortion to threaten economic harm when you have a legal right to engage in the activity you threaten 3: holding that verbal threats such as we going to get you you better drop the suit do not rise to the level of adverse action 4: holding do you think i need a lawyer to be ambiguous | [
"3",
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and the defendants’ decisions because those decisions allegedly violated the very statute that plaintiff alleges conferred state agency powers on these defendants. There thus can be no close nexus between the Commonwealth and the allegedly unlawful acts of the defendants here. We therefore find that defendants’ responsibilities under, and alleged violation of, the Pennsylvania statute do not render them state actors, regardless of which test we employ. Plaintiff has alleged nothing which would warrant a finding of state action in this matter. We note that former Chief Judge Lord and Judge Newcomer reached the same conclusion, without the guidance of the Lugar trilogy, years ago. See Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 536 F.Supp. 1065, 1091 (E.D.Pa.1982) (Lord, C.J.) (<HOLDING>); Holton v. Crozer-Chester Med. Ctr., 419 Holdings: 0: holding that ccmc and its employees were not state actors under either the symbiotic relationship or close nexus test 1: recognizing the test for business nexus is distinct from transactional nexus and its test for dissociation 2: recognizing the logical nexus test as appropriate 3: holding that foster parents are not state actors 4: holding that massachusetts statute did not create a sufficiently close nexus between private hospital and the state to warrant labeling private actors state actors | [
"1",
"3",
"4",
"2",
"0"
] | [
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that the Bureau’s own regulations indicate that it does not pay for “household work related to the individual,” which the federal regulation expressly contemplates as a component of companionship services. See Ohio Admin. Code § 4123-7-25(F) (denying compensation for household duties). We reject these arguments for two reasons. First, we find persuasive the rationale of the court in Lott, 746 F.Supp. at 1087-88, which drew on the exemption’s legislative history to hold that “domestic service employment” simply means being “employed in a private home.” Because Ms. Salyer renders her services to Mr. Salyer almost entirely within their home, she is undoubtedly engaged in domestic service employment to provide companionship services to her disabled husband. Cf. Linn, 891 F.Supp. at 578-79 (<HOLDING>). Moreover, as heretofore indicated, the Holdings: 0: holding that a professor who suffered a fatal fall collecting soil samples in antarctica was not engaged in public work within the meaning of the dba 1: holding that insider transaction did not fall within scope of 547c2 2: holding that a plaintiff analogous to ms salyer who did not work in private homes did not fall within the companionship services exemption 3: holding that counseling sessions and written criticisms of employees work performance did not fall within the types of materially adverse employment actions 4: holding that plaintiff who provided similar services which were arguably attendant care services under state law fell within the exemption | [
"4",
"3",
"0",
"1",
"2"
] | [
"2"
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an “interested party” under 28 U.S.C. § 1491(b)(1); see also American Fed’n Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001) (“We hold that standing under [28 U.S.C.] § 1491(b)(1) is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”). The United States Court of Appeals for the Federal Circuit has not addressed whether, in the context of a motion to set aside or enjoin an override of the automatic stay issued, under 31 U.S.C. § 3553(d)(3)(C), “prejudice” must be demonstrated to establish standing, ie., that the protestor would have a “substantial chance” of receiving the award absent the alleged error in the procu 6, 1562-63 (Fed.Cir.1996) (<HOLDING>); cf. United States v. Int’l Bus. Machines Holdings: 0: holding that a protester is not required to show that but for the alleged error the protester would have been awarded the contract instead a protester must show there was a substantial chance it would have received the contract but for the alleged error 1: holding that a protester must show only that there was a substantial chance it would have received the contract award but for that error 2: holding that a contractor lacked standing because it failed to show a substantial chance it would have received the contract award but for agency error 3: holding the appropriate standard is that to establish prejudice a protestor must show that had it not been for the alleged error in the procurement process there was a reasonable likelihood that the protestor would have been awarded the contract this is a refinement and clarification of the substantial chance language 4: holding that a contractor failed to show a substantial chance it would have received the contract award but for agency error | [
"4",
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Cuyahoga App. No. 80793, 2002-Ohio-7058, 2002 WL 31838501, at ¶ 24. Likewise, this court is bound by those same factual findings, and our review is limited to whether the trial court abused its discretion in adopting the magistrate’s decision. {¶ 20} Moreover, we must reject Yu’s argument that resolution of the residency issue may be based on documents not identified in the magistrate’s decision. “Without a transcript, * * * neither the trial court nor a reviewing court would know whether any exhibits not identified by the magistrate were admitted, authenticated, or ever actually introduced into evidence. A review of such exhibits * * * exceeds the proper boundaries of appellate review.” Id. at ¶ 25. But see Natsis, 2002-Ohio-7058, 2002 WL 31838501, at ¶ 36 (O’Donnell, J., dissenting) (<HOLDING>). {¶ 21} Here, Yu’s reliance on the documents Holdings: 0: holding that trial court has no duty to establish waiver on record 1: holding parole board has no duty to examine validity of prisoners convictions 2: holding that court must examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless 3: holding that the trial court must examine the entire course of criminal conduct in determining possession 4: holding that a trial court has a duty to examine the entire record including all physical documentary evidence in order to reach an equitable result | [
"2",
"1",
"0",
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provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 2 . Although Rabanales frames his challenge in terms of procedural and substantive reasonableness, his arguments sound primarily in substantive reasonableness. We therefore only address substantive reasonableness. See United States v. Jemigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003) Holdings: 0: holding that the appellant abandoned an issue to which he only made passing references 1: holding the appellant was deemed to have abandoned an issue for which he failed to provide any argument or supporting authority 2: holding that when an appellant fails to offer an argument on an issue that issue is abandoned 3: holding an issue abandoned in a counseled case where although the defendant made passing references to issues in his brief he did not devote a discrete section of his brief to the argument and the references were undertaken as background to claims that he had expressly advanced 4: holding that issues are deemed abandoned when the brief only makes a passing references to an issue | [
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followed by ten years’ probation. Because the postconviction court lacked jurisdiction to reduce the sentence, we reverse. A motion to reduce or modify a sentence must be filed “within 60 days after receipt by the court of a mandate issued by the court on affirmance of the judgment and/or sentence on an original appeal.” Fla. R. Crim. P. 3.800(c). Although Stewart sought collateral postcon-viction relief after our mandate issued, she did not pursue further appellate review of her judgment and sentence. Accordingly, jurisdiction returned to the trial court to hear the rule 3.800(c) motion on May 18, 2006, the date the mandate issued from this court. Stewart had sixty days from that date to seek modification of her sentence. See Joseph v. State, 835 So.2d 1221, 1221 (Fla. 5th DCA 2003) (<HOLDING>). The motion at issue in this appeal was filed Holdings: 0: holding that a judgment and sentence become final when direct review proceedings are concluded and jurisdiction returns to the trial court to entertain motions for postconviction relief 1: holding that for purposes of 2255 motions a federal criminal judgment becomes final when the time for filing a direct appeal expires 2: holding that jurisdiction to entertain a motion to withdraw a guilty plea pursuant to icr 33c expires when the judgment of conviction becomes final ie when an appeal is concluded or in the absence of an appeal when the time for appeal has expired 3: holding that a judgment and sentence which are not appealed become final when the thirtyday period for taking an appeal has expired 4: holding that a district court judgment is not a final judgment appealable by the defendant unless it includes the final adjudication and the final sentence | [
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that reason, we now hold that neither the prosecutor, defense counsel, nor the court may make any comment about the consequences of a particular verdict at any time during a criminal trial.”); State v. Okie, 987 A.2d 495, 497-500 (Me.2010); People v. Goad, 421 Mich. 20, 364 N.W.2d 584, 589-90 (1984) (not requiring the instruction because it would be impossible to fully explain the "consequences” of an NGRI verdict because they are contingent on future events); State v. Bott, 310 Minn. 331, 246 N.W.2d 48, 52-53 (1976); Emanuel v. State, 412 So.2d 1187, 1190 (Miss.1982); State v. Buckman, 193 Mont. 145, 630 P.2d 743, 748 (1981); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 631-32 (1989); Neely, 819 P.2d at 256-57 (due process did not require a consequence instruction) d 419, 426 (1980) (<HOLDING>); State v. McDonald, 89 Wash.2d 256, 571 P.2d Holdings: 0: holding that a consequence instruction was properly refused 1: holding a consequence instruction is not necessary because the consequences of the verdict have no bearing upon the guilt or innocence of the defendant 2: holding that when no objection was made to jury instruction evidence to support finding based on instruction should be assessed in light of the instruction given 3: holding that defendant was not entitled to entrapment instruction when there was insufficient evidence to support such an instruction 4: holding that issue of inadequate jury instruction was waived because the instruction given was the one expressly requested by defense counsel | [
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