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or during the Daubert hearing, that Mr. Lindsey failed to test his theory. Additionally, Defendant never cross-examined Mr. Lindsey regarding whether he tested his theories. Instead, Defendant argued Mr. Lindsey’s testimony was unreliable because he failed to rule out all other possible ignition sources, because the fire destroyed substantial portions of the coffee maker, and was primarily premised on missing materials. The Court cannot now assess whether Mr. Lindsey did or did not test his theories and what effect, if any, they would have on the admissibility of Mr. Lindsey’s testimony. As the first mention of this argument was in its motion for a new trial, the Court concludes Defendant has waived this argument. See Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986) (<HOLDING>) c. Precluding Evidence Regarding Dr. Zamiski’s Holdings: 0: holding that a definitive ruling in limine preserves an issue for appellate review without the need for later objection 1: holding that although a defendant filed a motion in limine on an evidentiary issue a failure to object to the evidence at trial waives the issue for appeal 2: holding litigant preserves an issue on appeal where substance of the objection has been thoroughly explored during the hearing on the motion in limine 3: holding grant or denial of motion in limine is preliminary ruling and normally preserves nothing for appellate review 4: holding that an objection raised in a motion to suppress evidence preserves the issue for appeal despite the lack of further objection at trial | [
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case has considered the precise issue posed by this case, courts in other states have recognized that liability may be imposed in the absence of a doctor-patient relationship. In Green, 910 F.2d at 296, for example, the Fifth Circuit found, between an employee and the doctor conducting an annual physical, a limited doctor-patient relationship that was sufficient to give rise to a duty of care in conducting the examination and reporting its results. The Ninth Circuit Court of Appeals has similarly recognized an obligation to report abnormal results obtained during a preemployment physical examination, despite the absence of a doctor-patient relationship. Daly v. United States, 946 F.2d 1467, 1468 (9th Cir.1991) (interpreting Washington law); see also Betesh, 400 F.Supp. at 245-47 (<HOLDING>); Meena v. Wilburn, 603 So.2d 866, 870 Holdings: 0: holding that broker owed no fiduciary duty to client as a matter of law 1: holding as a matter of maryland law that employerretained radiologists who observed abnormalities owed a duty of care and breached it by failing to notify the examinee 2: recognizing duty of care owed by business invitor to invitee 3: holding that in the absence of a product malfunction a plaintiff cannot establish that a defendant breached any duty owed 4: holding that the issue of whether or not a defendant airline breached its duty of due care by failing to transfer a pregnant employee from a flight precluded summary judgment for the defendant on plaintiffs negligence claim | [
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action under subsection (d) of this section or section 311(b) of this title or section 1365 of this title [33 U.S.C. § 1321(b) or 1365]. 33 U.S.C. § 1319(g)(6)(A). Under this provision of the Act, private citizens are precluded from bringing a particular civil penalty action when the EPA is diligently prosecuting an administrative penalty action for the same violations, or when a state is diligently prosecuting an action under a state law "comparable" to section 1319(g). Section 1319(g) deals exclusively with administrative penalties. A. Comparability: Penalties Courts have differed over whether section 1319(g)(6)(A) precludes citizen suits where the state enforcement action does not seek damages. Compare North and South Rivers Watershed Ass'n v. Scituate, 949 F.2d 552 (1st Cir.1991) (<HOLDING>) and Sierra Club v. Colorado Refining Co., 852 Holdings: 0: holding that even though the complaint was dismissed without prejudice as a sanction for misconduct and even though the order of dismissal was therefore not an adjudication on the merits the defendants were nevertheless properly considered the prevailing party for purposes of attorneys fees 1: holding state action comparable even though it did not seek monetary sanction 2: holding that appellant had standing to appeal because it was bound by the judgment even though it did not meet the second requirement 3: holding that the bankruptcy court did not abuse its discretion in imposing a monetary sanction of 25000 after counsel disregarded the courts previous admonishments 4: 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 | [
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455, 535 S.E.2d 438, 442 (2000). Because these issues have not been properly considered by the Commission, the Commission having included admittedly excluded evidence on one and having failed to make any findings whatsoever on the other, the circuit court was correct in remanding the matters to the Commission. See Baldwin v. James River Corp., 304 S.C. 485, 487, 405 S.E.2d 421, 422-23 (Ct.App.1991) (wherein the court of appeals remanded the case to the workers’ compensation commission because the commission made insufficient findings of fact so as to permit appellate review of the commission’s decision denying an award); Drake v. Raybestos-Manhattan, Inc., 241 S.C. 116, 124, 127 S.E.2d 288, 292-93 (1962), overruled on other grounds, Hunt v. Whitt, 279 S.C. 343, 306 S.E.2d 621 (1983) (<HOLDING>). For the foregoing reasons, the appeal in this Holdings: 0: holding remand proper on circuit courts own motion in a workers compensation case where the commission failed to make essential findings of fact because to hold otherwise would in such cases make the determination of the rights of the parties turn upon the neglect of the commission to make essential findings of fact or require the appellate court to make the omitted findings of fact which our statute forbids 1: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 2: holding that it is not an appellate courts function to make findings of fact 3: holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it 4: recognizing appellate courts must not make fact findings | [
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applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is the one whom the police suspect. See also United States v. Jones, 21 F.3d 165, 170 (7th Cir.1994) (<HOLDING>). We hold that Defendant was not in custody Holdings: 0: holding defendant was in custody under miranda while being detained under terry 1: holding a defendant was not in custody for purposes of miranda after he consented to go to police headquarters 2: holding miranda inapplicable because defendant not in custody 3: holding that miranda was constitutionally based but declining to go further than miranda to establish a constitutional right 4: holding on habeas review that defendant was not in custody for miranda purposes and reciting among other facts that defendant was transported to a police station for questioning in an unmarked police car which was not equipped with a shield inside the car | [
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that the acquisition of a new claim of homestead defeats and discharges a previously-filed claim of homestead. The court agreed with Citizens, holding that the plain language of § 2 meant that Garran’s § 1A declaration and corresponding homestead exemption was defeated and discharged by his wife’s subsequent § 1 declaration. We agree that this is the proper reading of the statutory language. Garran’s wife filed a declaration of homestead under § 1 on February 21, 2001. The declaration of homestead under § 1 is an acquisition of a homestead “for the benefit of [the] family.” Id. § 1. Therefore, by his wife’s filing of a § 1 declaration, Garran, as her spouse and member of her family, “acquired” a homestead on February 21, 2001. See In re Roberts, 280 B.R. 540, 547 (Bankr.D.Mass.2001) (<HOLDING>). Section 2 states that “the acquisition of a Holdings: 0: recognizing that no private right of action exists for subsection a violations 1: holding that the fourth amendment protects people not places 2: holding debtor could include property because the bank accepted payments directly from the debtor and had previously allowed the debtor to cure default 3: recognizing that the eighth amendment protects individuals from a lingering death 4: recognizing that a declaration filed under subsection 1 protects even the nonfiling debtor | [
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in favor of their client. NY CLS Jud § 475. The charging lien of an attorney under § 475 comes into being at the commencement of an action or proceeding. In re Brooklyn Bridge Southwest Urban Renewal Project, 31 A.D.2d 895, 297 N.Y.S.2d 835 (1st Dept. 1969). A charging lien is based upon an equitable doctrine that an attorney should be paid out of proceeds of a judgment procured by him. Theroux v. Theroux, 145 A.D.2d 625, 536 N.Y.S.2d 151 (2d Dept.1988). Section 475 of the New York Judiciary Law is enforceable by federal courts. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir.1998). An attorney is not entitled to a charging lien in cases in which he or she is discharged with cause. Artache v. Goldin, 173 A.D.2d 667, 570 N.Y.S.2d 238 (2d Dept.1991) (<HOLDING>); K.E.C. v. C.A.C., 173 Misc.2d 592, 599-600, Holdings: 0: holding that if an attorney is discharged without cause he is entitled to a charging lien for the reasonable value of his services rendered prior to the date of the substitution of counsel where 1 his representation was entirely competent and successful up until his discharge 2 any potential conflict of interest was disclosed and the plaintiff chose to continue to be represented by the attorney and 3 the discharge of the attorney occurred solely because of a fee dispute 1: holding that aln attorney who is employed under a contingent fee contract and discharged pri or to the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of the services rendered to the client and may not recover the full amount of the agreed contingent fee 2: holding that waiver by attorney was binding upon the accused when before the state introduced the evidence complained of on appeal counsel for the state in the presence of the accused and his counsel stated the agreement and the evidence of the witness was then read to the jury in the presence of the accused and his counsel without objection 3: holding that a conflict of interest independent of a claim of ineffective assistance of counsel constitute cause where the conflict caused the attorney to interfere with the petitioners right to pursue his 1 claim 4: holding in the context of an attorney malpractice suit an insurance company is not vicariously liable for the acts of the attorney it selects to defend the insured while the insurer selected the attorney to defend the insureds and controlled the ultimate decision to settle or defend under the policy there is nothing in the record to indicate the insurer had any control over the details of the litigation as it was being conducted by the the attorney | [
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USA, Inc., 564 F.3d 1256, 1274-75 (11th Cir. 2009) (stating that “common questions will rarely, if ever, predominate [in] an unjust enrichment claim, the resolution of which turns on individualized facts” and concluding there was a commonality problem because employees who understood the commission policy “cannot claim injustice when the company follows its compensation policies as expected and understood”); Oshana v. Coca-Cola Co., 472 F.3d 506, 515 (7th Cir. 2006) (finding that there was not an identifiable and definite class for the plaintiffs’ claim that they were deceived about whether Diet Coke contained saccharin, since the class of all purchasers could include many people who were not deceived); In re Actiq Sales & Mktg. Practices Litig., 307 F.R.D. 150, 169-71 (E.D. Pa. 2015) (<HOLDING>). Plaintiffs respond that some courts have Holdings: 0: holding that the court may only make a facial inquiry into the validity of the certification 1: holding that individualized factual determinations precluded finding that common issues predominate reversing the class certification order 2: holding that because the defendant has the right to litigate the issue of each class members consent the trial court did not improperly exercise its discretion in finding that these issues would predominate over common questions 3: holding that common issues of fact did not predominate because it was necessary to make an individualized inquiry into equitable circumstances 4: holding that whether a person has a disability under the ada is an individualized inquiry | [
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Pinson seeks is freely available to the public as she implies, “there would be no reason to invoke the FOIA to obtain access to the information.” Id. The Court thus proceeds to balance the private interest in privacy and the public interest in disclosure. Upon consideration of Pinson’s articulated public interest and its own independent evaluation, the Court concludes that the public interest in the disclosure here is likely very small. The disclosed portions of the SAMs memoran-da reveal considerable information about the operation of the SAMs program. The incremental value of revealing the identity of the affected individuals—either directly or indirectly through identifiable information—would provide only a small benefit to the public interest. Cf. Davis, 968 F.2d at 1282 (<HOLDING>). This conclusion is buttressed by reference to Holdings: 0: holding that even if a particular privacy interest is minor nondisclosure remains justified where the public interest in disclosure is virtually nonexistent 1: recognizing as a privacy right the individual interest in avoiding disclosure of personal matters 2: holding that the disclosure is a public disclosure within the meaning of the fca if the the prior public disclosure contained enough information to enable the government to pursue an investigation against the defendant 3: holding that bargaining unit employees have some nontrivial privacy interest in nondisclosure of their home addresses under the freedom of information act and concluding that that interest substantially outweighed the virtually nonexistent public interest in disclosure under foia and the privacy act not the nlra 4: recognizing the public interest exception | [
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other hand, this assertion, without more, does not sufficiently allege that Siemens Austria is financially dependent on its parent, ie., that Siemens Austria cannot run its businesses without the financial backing of its parent. Plaintiffs fail to allege any facts to support the third factor, the “degree to which the parent corporation interferes in the selection and assignment of the subsidiary’s executive personnel and fails to observe corporate formalities.” Beech Aircraft, 751 F.2d at 120-22. Their allegation that “Siemens-Germany [and] Siemens-Austria ... fail to observe proper corporate formalities,” MC ¶ 40, is entirely con-clusory. “Legal conclusions couched as factual allegations are not fact[ual allegations] and cannot substitute for them.” Schenker, 2002 WL 1560788, at *2 (<HOLDING>). Further, defendant offers sworn testimony Holdings: 0: holding that a prima facie case is subject to independent review 1: holding affidavits based on conclusory allegations insufficient at summary judgment 2: holding that denial of the opportunity to work overtime is an adverse employment action sufficient to make out a prima facie case under title vii 3: holding that district court erred by requiring plaintiffs to show that they were better qualified than employees who were promoted in order to make a prima facie case 4: holding that plaintiffs conclusory allegations were insufficient to make out prima facie case for mere department status of foreign corporation defendant | [
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of employment are actionable under § 1981. Id. Similarly, other courts that have interpreted § 1981(b) overwhelmingly indicate that retaliation claims are actionable under § 1981. See, e.g., Steverson v. Goldstein, 24 F.3d 666, 670 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995) (affirming jury’s finding on plaintiffs § 1981 claim of retaliation for his political activities); Butts v. City of New York Dep’t of Hous. Preservation and Dev., 990 F.2d 1397, 1404 (2d Cir.1993) (stating that if § 1981(b) were applied retroactively, plaintiffs allegations of discrimination in promotion and in the terms and conditions of her employment would state a cause of action under § 1981); Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 803 (E.D.N.Y.1996) (<HOLDING>); Collins v. Executive Airlines, Inc., 934 Holdings: 0: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation 1: holding that plaintiff states a cause of action under 1981 by alleging that defendant harassed and retaliated against him for filing eeoc claim and otherwise attempting to receive redress for disparate treatment 2: holding that a claim of retaliation for filing eeoc charges is cognizable under 1981 3: holding that retaliation arising out of first eeoc filing was reasonably related to that filing obviating the need for a second eeoc charge 4: holding that plaintiffs claim of reduction in work hours in retaliation for her filing of eeoc charge states a cause of action under 1981 | [
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1964) (<HOLDING>); see also Hornblower v. Cobb, 932 So.2d 402 Holdings: 0: holding that a right to be released when a joint tortfeasor has been released is a vested right 1: holding that the workers compensation act is to be liberally construed in the employees favor and any doubt in its construction is thus resolved in favor of the employee 2: holding that any doubt as to the propriety of granting relief must be resolved in favor of the party when the party is not responsible for the error that caused the default judgment 3: holding a defendant is not vested with a right to be absent from trial 4: holding that when a constitutional right is vested in a party and there is a doubt as to whether that right has been waived the doubt should be resolved in the defendants favor | [
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(Id. at 32). He has no affiliations with professional organizations dealing with' GPS systems. (Id. at 34). Prior to this case, he has never served or been asked to serve as an expert in the field. (Id.) Accordingly, we find that Williams does not have the specialized knowledge required of an expert witness. B. Does the matter require scientific, technical or specialized knowledge to be understood? The second factor is whether the subject matter that the proposed expert will testify to requires scientific, technical or specialized knowledge. Here, the proposed expert is to testify about GPS coordinates and analysis. Under the caselaw, this subject matter does not require scientific, technical or specialized knowledge. United States v. Thompson, 393 Fed.Appx. 852, 858, 859 (3d Cir.2010) (<HOLDING>); see also United States v. Espinal-Almeida, Holdings: 0: holding that a forensic accountant is an expert witness not a lay witness 1: holding that lay witness opinion as to guilt of defendant inadmissible 2: holding that the trial court properly allowed lay witness testimony concerning the operation of a gps device including authentication of the gpss data 3: holding that it is within the discretion of the trial judge to sustain the states objection where questions to a witness go to his understanding of the law concerning parole and call for the legal knowledge of a lay witness 4: holding that the admissibility of lay witness identification testimony turns on a number of factors | [
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that the district court committed reversible error by defining “knowingly” in Instruction No. 10. We generally review challenges to jury instructions for abuse of discretion, United States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir.2009), but our review is for plain error where, as here, the defendant failed to object to the offending instruction at trial, see United States v. Gianakos, 415 F.3d 912, 921 (8th Cir.2005). A person commits aggravated sexual abuse if he “knowingly causes another person to engage in a sexual act — by using force against that other person.” 18 U.S.C. § 2241(a)(1). In this case, Count I charged Robertson with attempted aggravated sexual abuse, which is a specific intent crime. Cf United States v. Kenyon (Kenyon II), 481 F.3d 1054, 1070 (8th Cir. 2007) (<HOLDING>). “[U]nder its usual definition, specific Holdings: 0: holding defendants prior conviction for assault related to sexual abuse of a minor even though it did not require an act of sexual abuse because it required intent to commit sexual abuse and such a mens rea demonstrate the offense was one relating to sexual abuse 1: holding that there is no crime of attempted felony murder in florida 2: holding that specific intent is an element of attempted illegal reentry 3: holding that attempted sexual abuse of a child under the age of fourteen is a crime of viqlenee 4: holding that attempted sexual abuse is a specific intent crime | [
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on the part of the lessee to do this can only be an implied one, in which instance said lessee has a reasonable time, after completion of the well, to comply with such covenant. Id. at 1012 (quoting McVicker v. Horn, Robinson and Nathan, 322 P.2d 410, 411 (Okla.1958)). Gazin held that, although the lessors would normally have the right to demand compliance with the implied covenant to market in the primary term, the acceptance of delay rental payments operated as a waiver of that right. Id. The diligence of the lessee’s efforts and the reasonable probability of success are factors to be taken into consideration when determining what is a “reasonable time.” Flag Oil Corp. v. King Resources Co., 494 P.2d 322, 325 (Okla.1972). See also Brimmer v. Union Oil Co., 81 F.2d 437 (10th Cir.) (<HOLDING>), cert. denied, 298 U.S. 668, 56 S.Ct. 833, 80 Holdings: 0: recognizing implied duty to market 1: recognizing implied obligation to use reasonable diligence 2: holding that a contract for an exclusive agency to market a product contains an implied promise to use all reasonable efforts to market the product 3: recognizing implied covenant to market gas 4: recognizing an implied fourth amendment action for damages | [
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between medical judgment and the standard of care, our courts have often struggled in determining whether the facts of a particular case call for the application of the judgment charge. We have generally limited the application of the judgment charge to medical malpractice actions concerning misdiagnosis or the selection of one of two or more generally accepted courses of treatment. Aiello, supra, 159 N.J. at 628-29, 733 A.2d 433; see Patton v. Amblo, 314 N.J.Super. 1, 9, 713 A.2d 1051 (App.Div.1998)(finding that doctor was not entitled to “exercise of judgment” charge where alleged malpractice involved making scalpel incision too deep because alleged deviation was in manner doctor performed procedure); Adams v. Cooper Hosp., 295 N.J.Super. 5, 10-11, 684 A.2d 506 (App.Div.1996)(<HOLDING>), certif. denied, 148 N.J. 463, 690 A.2d 610 Holdings: 0: holding that court did not err by refusing to charge jury with exercise of judgment instruction where issue was whether nurse had duty to constantly monitor patient because case did not involve selection between one of two courses of treatment or two schools of thought 1: holding that issue of inadequate jury instruction was waived because the instruction given was the one expressly requested by defense counsel 2: holding that trial court did not err 3: holding that trial court did not err in refusing to give charge because plaintiff failed to demonstrate that his requested charge was tailored to the evidence 4: holding that the trial court did not err in refusing to give the defendants tendered instruction regarding the voluntariness of his confession | [
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if fact’s existence was “more likely than not”). That finding was supported here by evidence of Hilson’s history of drug trafficking and his possession of the money at a time when he was known to be selling crack, as evidenced by his three recent sales to the confidential informant. It was further supported by evidence refuting Hilson’s suggestions that the monies derived from various legitimate sources, such as a student grant, a girlfriend’s tax refund, Hilson’s own bank accounts, or his one-week employment at Wendy’s. With the finding that the seized money constituted drug proceeds, Hilson does not—and cannot—seriously challenge the district court’s calculation that $10,366 would be the proceeds from the sale of 326.5 grams of crack. See United States v. Jones, 531 F.3d at 175 (<HOLDING>). The district court noted that the market Holdings: 0: holding that a state conviction is a drug trafficking offense because the trafficked drug is listed in a csa schedule 1: holding the district court did not clearly err in applying the enhancement where guns were found on the same premises from which the defendant trafficked drugs and were readily accessible to the defendant 2: recognizing that the district court may make drug quantity findings by a preponderance of the evidence to calculate an advisory guidelines sentence for a 841b1c offense 3: holding harmless any error in district courts drug quantity determination where undisputed quantity of drugs was enough to place defendant at the base offense level calculated by the district court 4: holding that where seized currency appears by a preponderance of the evidence to be the proceeds of narcotics trafficking a district court may consider the market price for the drugs in which the defendant trafficked in determining the drug quantity represented by that currency | [
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CURIAM In this appeal from a decision of the Oregon Tax Court, Gary Allan Clark (taxpayer) challenges both the Tax Court’s conclusion that he is liable for 1996 personal income taxes based on wages that he earned in that tax year and the Tax Court’s assessment of damages against him for pursuing a frivolous appeal. See ORS 305.437 (authorizing sanctions for frivolous or groundless appeals to Tax Court). The Tax Court’s rulings were correct. See Combs v. Dept. of Rev., 331 Or 245, 14 P3d 584 (2000) (<HOLDING>). Only one of taxpayer’s assertions merits Holdings: 0: holding that the united states court of federal claims does not have jurisdiction to enter declaratory judgment that taxpayers were not liable for any type of federal income tax or to issue injunction permanently removing the tax liens on property and levies on wages 1: holding that taxpayers failure to follow state requirement that he report change in federal income tax did not except state tax liability from discharge 2: holding as frivolous taxpayers argument that he was not subject to the income tax because he is a non resident alien and awarding sanctions of 8000 3: holding that wages are subject to oregons personal income tax and that a taxpayers argument to the contrary was frivolous 4: holding that an appeal by taxpayers in a lawsuit seeking to enjoin the government from collecting income tax deficiencies was mooted because the taxpayers had paid the deficiencies pending the appeal | [
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sets the limits placed on the compensation of chapter 7 and chapter 11 trustees, is based on “moneys disbursed.” 11 U.S.C. § 326(a). The use of the term “moneys” in § 326(a) circumscribes the word “disbursed” and suggests that disbursement means something more than monies. See, e.g., In re Lan Assocs. XI, L.P., 192 F.3d 109, 116 (3d Cir.1999) (concluding that the value of a credit bid may not be included in a trustee’s compensation base under § 326(a)); U.S. Trustee v. Tamm (In re Hokulani Square, Inc.), 460 B.R. 76 1) (concluding that payments the debtor made in connection with a transaction to refinance an existing debt, which was satisfied by the proceeds from a new loan, was a disbursement for purposes of 1930(a)(6)); In re Pars Leasing, Inc., 217 B.R. 218, 220 (Bankr.W.D.Tex.1997) (<HOLDING>); In re Flatbush Assocs., 198 B.R. 75, 78 Holdings: 0: holding that payments made by third parties on behalf of debtors are disbursements notwithstanding the debtors lack of control over the funds 1: holding there is no duty to third parties on the part of a premises owner who could not have foreseen the criminal acts of third parties 2: holding that prepayments the debtor made to a lender pursuant to modified settlement agreement that reduced the balance of loan and accrual of interest were considered disbursements for purposes of calculating the quarterly fee 3: holding that because the quarterly fee payments are not 503b claims chapter 7 administrative expenses and the quarterly fee payments have the same priority 4: holding that disbursements for purposes of calculating the quarterly fee included payments made by third parties on the debtors behalf | [
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v. Brown, 7 Vet.App. 476, 481 (1995). Although § 7722 does, by its terms, require VA to inform veterans of “all benefits and services to which they may be entitled” and to assist veterans “to the maximum extent possible ... in the preparation and presentation of claims,” the extent of such a duty will depend on the facts and law involved in a particular case. See Smith (Edward) v. Derwinski, 2 Vet.App. 429, 432 (1992). In this case, VA adopted certain duties as described in part II.B., above, with respect to pension benefits. In carrying out these duties, the Department also satisfied its general § 7722 duties when it informed the appellant in 1979 that he was entitled to pension benefits under the improved pension program and sent him the election card. See Gold, 7 Vet.App. at 319 (<HOLDING>); Kluttz v. Brown, 7 Vet.App. 304, 307-08 Holdings: 0: holding that although there was evidence of discrimination based on race there was insufficient evidence to support a finding of constructive discharge 1: recognizing a presumption of regularity that undergirds the official acts of public officers causing courts to presume that they have properly discharged their official duties 2: holding that presumption of regularity is afforded to clerks of court performing their official duties 3: holding that evidence that va sent appellant an election card when combined with presumption of regularity accorded to the official acts of public officers including mailings was enough to discharge any 7722 duty assuming there was one 4: holding there was no evidence to support the existence of any alleged fiduciary duty | [
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v. United States, 599 A.2d 1094, 1102 (D.C.1991)). Accordingly, the judgment on appeal herein with respect to R. J. is affirmed, and the judgment with respect to B.J. is reversed. So ordered. 1 . There is no petition for K.J.'s adoption involved in this case. 2 . There is also sufficient evidence to hold that the mother neglected her daughter according to another section of the D.C.Code dealing specifically with incarcerated parents. That section provides that a child is neglected if their parent "is unable to discharge his or her responsibilities to and for the child because of incarceration....” D.C.Code § 16-2301 (9)(A)(iii). For this section to apply, there must be a nexus between the incarceration and the inability to provide care. See In re T.T.C., 855 A.2d 1117, 1119 (D.C.2004) (<HOLDING>). Here, there seems to be a similar nexus Holdings: 0: holding in termination of fathers rights that evidence was sufficient to support finding children were removed for abuse or neglect when previous decree reflected trial court made findings that children were removed from mother under chapter 262 for abuse or neglect 1: holding an incarcerated fathers actions satisfied the standard for neglect who initially made arrangements for his children to receive adequate care but failed to provide sufficient legal protection so that the childrens drugaddicted mother could not take custody over them 2: holding evidence insufficient to terminate mothers parental rights under section c because mother made arrangements for adequate support of children evidence showed mother left children with father who maintained steady employment and adequately supported children mother knew that father would provide adequate support and mother left children pursuant to agreed divorce decree 3: holding care custody and control of children is a fundamental right 4: holding that a state is required to provide medical care to incarcerated individuals | [
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Jiang Yu, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny in part and dismiss in part the petition for review. Substantial evidence supports the IJ’s adverse credibility determination based on Yu’s admitted post-entry immigration fraud. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985) (<HOLDING>). Further, because the IJ had reason to Holdings: 0: holding that history of dishonesty can support an adverse credibility finding 1: holding that inconsistencies adequately support the administrative law judges alj adverse credibility finding 2: holding that material alterations in the applicants account of persecution are sufficient to support an adverse credibility finding 3: holding that speculation and conjecture cannot support an adverse credibility finding 4: holding that the record did not support the agencys adverse credibility finding in the absence of additional probing | [
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has also presented evidence that creates a reasonable inference that age discrimination was the determinative factor in her termination. The district court found that the firing of older employees during the reorganization period of September 1994 to October 1995 was not sufficient to create an inference of impermissible age discrimination. While we agree that timing alone does not create a presumption of age discrimination, see Nelson v. J.C. Penney Co., 75 F.3d 343, 346-47 (8th Cir.), cert. denied, 519 U.S. 813, 117 S.Ct. 61, 136 L.Ed.2d 23 (1996), it may lend force to contemporaneous evidence of age discrimination, depending on the quality of that evidence, see Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991) (<HOLDING>); Caudill v. Farmland Indus., Inc., 919 F.2d Holdings: 0: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted 1: holding that infer ence cannot be based on timing alone but must take into account other evidence 2: holding that to obtain a new trial based on newly discovered evidence the defendant must allege facts from which the court may infer diligence on the part of the defendant 3: holding in a race discrimination case that close timing is an element of the plaintiffs prima facie case but insufficient on its own to rebut a legitimate nondiscriminatory reason that explains the action and its timing 4: holding that evidence to prove a conspiracy need only be such that reasonable jurors could infer that the parties entered into an unlawful agreement | [
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to make substantive exclusions in the hospital’s interest. E.g., Peterson, 559 P.2d at 191(allowing exclusions based on rules that “comport[ ] with the legitimate goals of the hospital and the rights of the individual and the public”). Moreover, Arizona explicitly gives all hospitals the right to refuse to allow abortions to be performed at the hospital, Ariz.Rev.Stat. § 36-2151, and has prohibited all abortions in public university hospitals except those necessary to save the life of the woman having the abortion, Ariz.Rev.Stat. § 15-1630. Arizona itself does not have the power to prohibit any providers from performing abortions merely because it disapproves of abortion and would like to place obstacles in the way of women seeking abortions. Casey, 505 U.S. at 877, 112 S.Ct. 2791 (<HOLDING>). Thus, Arizona may not delegate such a power Holdings: 0: recognizing that the purpose of abortion laws in the late 19th and early 20th centuries did focus on the states interest in protecting the womans health rather than in preserving the embryo and fetus 1: holding that a county ordinance conflicted with state laws and was invalid as applied to all citizens 2: holding that laws that are administered with an unequal hand and an evil eye are unconstitutional 3: holding that laws with the purpose of placing an obstacle in the path of a woman seeking an abortion are invalid 4: holding that a ceremonial marriage performed under the laws of a foreign power by a foreign consular officer on united states territory was invalid because it did not comply with the laws of new york state | [
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after surveying California court decisions, that “courts generally presume that the fourth element of the applicable test has been established if there is sufficient evidence to prove the first three elements.” Del Amo v. Baccash, No. CV 07-663-PSG, 2008 WL 4414514, at *6 (C.D.Cal. Sept. 16, 2008) (presuming that injury was satisfied for purposes of a § 3344 claim seeking only minimum statutory damages, where plaintiff established use of non-celebrity models’ identity, appropriation of their name or likeness to defendant’s advantage, and lack of consent). Indeed, in cases involving celebrity plaintiffs, the mere allegation that the plaintiff was not compensated has been deemed sufficient to satisfy the injury prong. See, e.g., Solano v. Playgirl, Inc., 292 F.3d 1078, 1090 (2002) (<HOLDING>); Newcombe v. Adolf Coors Co., 157 F.3d 686, Holdings: 0: holding that the board cannot be liable for punitive damages citations omitted 1: holding that a plaintiff can seek statutory damages even in the absence of actual damages 2: holding that a plaintiff could recover actual damages under the tcpa for loss of credit if the plaintiff submitted sufficient proof of the amount damages requested 3: holding without discussion of the punitive damages issue that judgment for embezzlement which included actual and punitive damages was nondischargeable 4: holding that actor who was featured on the cover of an adult magazine without his consent could assert injury because the measure of damages available for misappropriation claims includes the economic value of the use of an individuals name and likeness and sjection 3344 specifically provides that a plaintiff may recover any profits from the unauthorized use in addition to actual damages or the 750 minimum statutory damage amount and punitive damages internal citations omitted | [
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of the saliva swabs and DNA evidence, which the trial court similarly overruled. After completion of the trial — which began and concluded on October 15, 2003 — the jury convicted Wyche as to all three counts of the information. On November 12, 2003, the trial court imposed a ten-year sentence as to Counts I and III, credited Wyche with 220 days time served, and ordered a five-year term of probation as to Count II. The trial court also adjudicated Wyche a habitual felony offender under section 775.04, Florida Statutes. On appeal, the First District issued a broad opinion with sweeping language, which affirmed the denial of the motion to suppress and held that deception is largely if not totally irrelevant for purposes of conducting a voluntariness inquiry. See Wyche, 906 So.2d at 1144 (<HOLDING>). In my view, the decision of the First Holdings: 0: holding that the dismissal of an indictment did not negate the presumption of probable cause 1: holding the fact that officers belief proved to be mistaken does not negate a finding of probable cause 2: holding that the pendency of postconviction motion does not negate the finality of convictions for immigration removal purposes 3: holding that a suspects ability to proffer an innocent explanation for the facts does not negate probable cause 4: holding without qualification that djeception does not negate consent | [
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A recent Eighth Circuit decision applying Hodari confirms this interpretation. In Cole v. Bone, 993 F.2d 1328 (8th Cir.1993), the Eighth Circuit applied Hodari to determine when a “seizure” occurs for purposes of a Fourth Amendment excessive force claim. David Cole, driving an 18-wheel tractor-trailer truck eastbound on 1-70, sped through a toll booth in Bonner Springs, Kansas, without stopping to pay the toll. Id. at 1330. Kansas and Missouri police employed numerous tactics in an effort to stop y, 962 F.2d 451, 456-57 (5th Cir.1992) (fleeing suspect not seized when police car blocked his ear’s path but only when he reversed gears and backed into another police car, thereby disabling his own car); Clark v. Nassau County, No. 89-1000-CIV-J-14, 1991 WL 350041 (M.D.Fla. Sept. 11, 1991) (<HOLDING>), aff'd, 968 F.2d 23 (11th Cir.1992). Applying Holdings: 0: holding that failure to train officers to disarm suspects rendered foreseeable the injuries to a suspect shot by an officer who did not attempt to disarm him 1: holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot 2: holding that suspect was not in custody when officer handcuffed him for officer safety while transporting him to police station 3: holding that deadly force was unreasonable where according to the plaintiffs version of facts the decedent possessed a gun but was not pointing it at the officers and was not facing the officers when they shot him 4: holding that a fleeing suspect in a car was seized only when an officer actually shot him not when several officers previously shot his vehicles tires in an effort to stop him | [
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Size shall be 38 mm thick by 400 mm in height by 1 meter in length, unless othenoise indicated [,]” while paragraph 2.2.2 provides that: “Precast concrete units shall have a compressive strength of no less than 17 MPa, reinforced with 150 mm by 150 mm by W1.4 WWF wire mesh, and 300 mm (height) by 1 m (length) by 40 mm (thickness) in size unless indicated.” Fort Hood Contract No. DACA63-02-C-0015, Specification Section 03100A, Paragraph 2.2 (emphases added). It is undisputed that the “unless indicated” language refers to the drawing detail. Thus, the specifications refer the contractor to the drawing detail to determine if the size of the material for the retainers is different than the size quoted in the specifications. See AD. Roe Co., Inc., A.S.B.C.A. No. 23,425, 79-1 BCA ¶ 13,575 (<HOLDING>). Second, it is undisputed that the drawing Holdings: 0: holding that only provisions relating to work specifications and performance were incorporated into the subcontract because the relevant clauses limited the incorporation of the terms insofar as they relate to the work undertaken herein 1: holding that the specifications reference to commercially available vacuum sensors constituted sufficient structure as one skilled in the art would have understood the reference 2: holding that unless otherwise specified language in the contracts specifications referred to the drawings and served to modify the specifications direction to only apply paint so that the instructions would also include applying a liquid glaze coating on some of the walls in accordance with the drawings 3: holding that subcontract requirement that work be performed in accordance with specifications in prime contract meant that prime contract governed the manner of the performance of the work not the basis for computing the amount to be paid the subcontractor 4: holding that the specifications reference to a selector sufficed as one skilled in the art would have understood the term | [
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eventually be dismissed if they fail to conform to Federal Rule of Civil Procedure 8 after the court gives the plaintiffs an opportunity to amend. See id. 2 . The plaintiffs typed the heading "Motion for a TRO” on their pleading but crossed it out before filing the document and indicated that they would file a separate motion for a temporary restraining order on the next day. But even if the court had jurisdiction to consider the motion for a temporary restraining order and treated the original pleading as a motion for the restraining order, the court would deny the motion because the plaintiffs have not demonstrated a likelihood of prevailing on the merits and have not demonstrated irreparable harm. See Davenport v. International Bhd. of Teamsters, 166 F.3d 356, 361 (D.C.Cir.1999) (<HOLDING>). Further, it appears that the plaintiffs have Holdings: 0: holding that the movant had to establish both of the first two factors ie likelihood of success and irreparable harm to receive a preliminary injunction 1: 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 2: holding that even when likelihood of success has been established the absence of irreparable injury standing alone makes preliminary injunctive relief improper 3: holding that injunctive relief may be warranted where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury 4: holding that a movant that clearly establishes likelihood of success on the merits receives the benefit of a presumption of irreparable harm | [
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three counts of first-degree CSC with a minor, in violation of South Carolina Code section 16-3-655. Another statute, section 16-3-657, provides that “[t]he testimony of the victim need not be corroborated in prosecutions under §§ 16-3-652 through 16-3-658.” The circuit court charged the jury the above quoted language of section 16-3-657. This was reversible error. “In general, the trial court is required to charge only the current and correct law of South Carolina. ... A jury charge is correct if it contains the correct definition of the law when read as a whole.” Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472 (2004) (citations omitted). Some principles of law, however, are not to be charged to a jury. See, e.g., State v. Grant, 275 S.C. 404, 408, 272 S.E.2d 169, 171 (1980) (<HOLDING>). Contrary to the majority opinion, we did not Holdings: 0: holding that erroneous instruction that flight from the scene of the crime implied guilt was harmless because there was other evidence to sustain a conviction 1: holding that motive is circumstantial evidence of intent 2: holding that although evidence of a defendants flight is admissible as circumstantial evidence of guilt it is improper for the trial judge to instruct the jury on the law of flight because such an instruction oftentimes has the potential for creating more problems than solutions as it places undue emphasis upon that part of circumstantial evidence 3: holding that such circumstantial evidence may be used to prove discrimination 4: recognizing that circumstantial evidence alone can be sufficient to demonstrate a defendants guilt | [
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or interests.” Johnson v. Lodge # 93 of the Fraternal Order of Police, 393 F.3d 1096, 1107 (10th Cir.2004)(citing United States v. City of Hialeah, 140 F.3d 968, 975 (11th Cir.1998)). The NMCGA has not demonstrated that the Proposed Settlement Agreement imposes any legal obligations on it or adversely affects its legal rights any more than the USFS can always do. The NMCGA contends that the Agreement adversely affects the permittees’ interest in maintaining a secure livestock grazing permit for the challenged allotments. See NMCGA’s Response at 6. Because the USFS has the discretion to modify permits as necessary to protect natural resources, the NMCGA cannot assert a legally cognizable interest in maintaining the current terms and conditions of the permits. See 43 U.S.C. § 1752(a) (<HOLDING>); 36 C.F.R. § 222.4(a) (stating that the USFS Holdings: 0: recognizing the language permitting the enjoining of any claim or demand that is to be paid in whole or in part by a trust does not appear to permit the enjoining of contribution claims 1: recognizing that the usfs has the authority to cancel suspend or modify a grazing permit or lease in whole or in part pursuant to the terms and conditions thereof 2: recognizing court has authority to modify agreement to cure any unreasonable provision as to duration or scope 3: holding that an officer or employee of the tennessee valley authority was not an officer or employee acting under the authority of the united states or any department or any officer of the government thereof within the meaning of a criminal statute first enacted in 1884 4: holding that the interest must be that created by a claim to the demand in suit or some part thereof which is the subject of litigation | [
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that foster parents have standing under federal law to raise foster child’s rights). We should join the growing number of our sister jurisdictions who have conferred standing to be heard to foster parents in proceedings related to children that have been in their care. Some states, such as Delaware, Nebraska, South Carolina, and West Virginia have conferred standing to foster parents via judicial decision. See In re C.M.D., 256 A.2d 266 (De.1969)(deciding that foster parents had standing to petition Family Court for custody of foster child); In re Jorius G., 249 Neb. 892, 546 N.W.2d 796 (1996)(finding that foster parents had standing to contest agency’s removal of foster child); Greenville County Department of Social Services v. Bowes, 313 S.C. 188, 437 S.E.2d 107 (1993)(<HOLDING>); In re Harley C., 203 W.Va. 594, 509 S.E.2d Holdings: 0: recognizing that the department is required to present clear and convincing evidence to support termination of a parents parental rights 1: holding foster parents not liable for willful act of their foster child 2: recognizing emotional bond between foster parents and child although ultimately determining foster parents did not have rights of parents in dependency action under chapter 2644 rcw 3: holding that natural parents could not lose parental rights to foster parents where the foster agreement contemplates a surrender of custody for only a temporary period of time 4: holding that foster parents have standing to intervene to seek termination of parental rights | [
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