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involved plain error because the defendant failed to timely object to the error, id. at 634, 122 S.Ct. 1781, not harmless error as is the case here. The crucial consideration in Cotton was that, because the evidence at trial was overwhelming and uncontroverted, “the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 632-33, 122 S.Ct. 1781. Here, because Lewis’s case does not involve review for plain error, the issue of whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings is not before us. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (noting that this is a question fer plain-error review); see also Jordan, 291 F.3d at 1096 n. 7 (<HOLDING>); Mackins, 315 F.3d at 409 (distinguishing

recognizing that where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis then the error will not be proven harmless beyond a reasonable doubt

holding that harmless error analysis is inappropriate in a powers case

holding that any error was harmless and thus not plain error

holding that cotton does not control nor aid our analysis because that case was analyzed under plain error not harmless error

holding that omission was not plain error

3

the Company's 22+ years of rate case history, this Commission’s regulatory expertise, and the public interest.” The dissent apparently faults the Commission for not considering the fact that in its 1987 rate case, Minnesota Power’s final rate was 193 percent of its initial request. We acknowledge that the Commission appears not to have considered the amount of the rate increase Minnesota Power received in 1987. But that failure does not make its decision arbitrary and capricious when the record reflects that in Minnesota Power's two most recent rate cases, those in 1994 and 2008, the utility received only 45 percent and 56 percent respectively of its initial rate request. See Quinn Distrib. Co. v. Quast Transfer, Inc., 288 Minn. 442, 448-51, 181 N.W.2d 696, 699-701, (1970) (<HOLDING>); cf. Citizens Advocating Responsible Dev. v.

holding that evidence contrary to an administrators decision does not make the decision arbitrary and capricious so long as a reasonable basis appears for the decision

holding that even when there is a conflict of evidence before the commission and the evidence was such that the commission could have reasonably reached a contrary decision the commissions decision was not arbitrary and capricious

holding that the citys decision was arbitrary and capricious when it was contrary to the evidence and based solely on speculation arising from prior unrelated acts

holding the court will not disturb the decision of the abcmr unless it was arbitrary capricious contrary to law or unsupported by substantial evidence

holding that when the agencys decision was based on an erroneous and completely unsupported assumption the decision was arbitrary and capricious

1

only a partial return toward original shape absent heat, to depict the “at least 3% elasticity” described in claim 5. It therefore follows that the term 3% elasticity as used in claim 5 refers not to the spontaneous return of a component to its original shape, but rather to the ability of a component to “spring back” by an amount equal to 3% of its original length. Moreover, the term is used in claim 5 precisely as it is used in claim 1, and there is no reasoned basis to apply different definitions to the same term used in two claims of the same patent. See Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed.Cir.1995), petition for cert. filed, 60 U.S.L.W. 3250 (Sept. 19, 1995) (No. 95-475); Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1570 (Fed.Cir.1983) (<HOLDING>). This Court concludes, therefore, that the

holding that declaratory judgments fall outside the scope of the court of claims jurisdiction

holding that evidence of the scope of a particular claim can be found on review of other claims

holding that as to the scope of court review substantial evidence is a stringent limitation

holding the scope of a particular claim can often be determined on inspection of other claims

holding that in the case of state procedural default a federal habeas review of the claims is barred unless the prisoner can demonstrate among other things that failure to consider the claims will result in a fundamental miscarriage of justice

1

at the time that Rhodes committed the offense, Count I of the indictment erroneously charged her with a felony for violating that section. To correct this error, the Government dismissed Count I and (with Rhodes’ consent) filed a direct information charging her with a misdemeanor for violating that section. In this opinion we refer to the direct information and Count I of the indictment collectively as “Count I.” 2 . After the court denied Rhodes’ motion to strike Browe for cause, Rhodes used her last peremptory challenge to remove Browe from the venire. Thus, Rhodes contends that the district court’s error was prejudicial because it impaired her statutory right to exercise ten peremptory challenges. See Fed.R.Crim.P. 24(b); United States v. Martin, 749 F.2d 1514, 1518 (11th Cir.1985) (<HOLDING>). 3 . In Bonner v. City of Prichard, 661 F.2d

holding that a defendants exercise of peremptory challenges is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause

holding that batson applies to a prosecutors use of peremptory challenges regardless of whether the stricken juror is of the same race as the defendant

holding use of peremptory strike against gay juror failed heightened scrutiny

holding that trial judges determination that the prosecutors use of peremptory challenges to strike all four africanamerican venirepersons for lack of education and business experience was not pretextual was not clearly erroneous

holding that trial courts erroneous refusal to strike juror for cause impaired defendants statutory right to his allotted number of peremptory challenges

4

From the client’s perspective, a lawyer owes a duty of loyalty to his/her client. “Loyalty is an essential element in the lawyer’s relationship to a client.” W. Va. Rules of Professional Conduct Rule 1.7 cmt. Loyalty to a Client. In addition, as we noted in the preceding section of this opinion, a lawyer is expected to deal with his/her clients fairly, honestly, and with integrity. See, e.g., W. Va. Standards of Professional Conduct, Preamble; In re Brown, 166 W.Va. at 232, 273 S.E.2d at 570. Implicit in such dealings is the sense that, because of a lawyer’s various professional responsibilities, there exists a relationship of trust between an attorney and his/her client. See, e.g., Kopelman & Assocs., L.C. v. Collins, 196 W.Va. 489, 496 n. 7, 473 S.E.2d 910, 917 n. 7 (1996) (<HOLDING>). See also Lawyer Disciplinary Bd. v. Friend,

holding that when an attorney represents multiple clients and a dispute between the attorney and one client later occurs there is a waiver of the privilege but only by the client asserting the liability

recognizing special trust and confidence that must exist between attorney and client citations omitted

holding that ambiguous agreement between attorney and client must be construed in the clients favor

holding that the governments position must have a reasonable basis in both law and fact citations omitted

holding that there are many transactions between attorney and client that have no element of confidence in them of which the attorney is competent to testify

1

at 2429 (quoting Leon, 468 U.S. at 920, 104 S.Ct. 3405). Before the Supreme Court’s Davis decision, the Sixth Circuit also emphasized that “precedent on a given point must be unequivocal” to suspend the exclusionary rule. United States v. Buford, 632 F.3d 264, 276 n. 9 (6th Cir.2011) (quoting United States v. Davis, 598 F.3d 1259, 1266 (11th Cir.2010)). And the Sixth Circuit was not alone. Other courts of appeals that considered this issue before Davis also limited the good-faith exception to binding appellate precedent. See Davis, 598 F.3d at 1266; United States v. McCane, 573 F.3d 1037, 1045 n. 6 (10th Cir.2009) (applying the good-faith exception because “the Tenth Circuit jurisprudence supporting the search was settled”); United States v. Jackson, 825 F.2d 853, 866 (5th Cir.1987) (<HOLDING>); cf. United States v. Real Prop. Located at

holding that the exclusionary rule generally does not apply to immigration proceedings

holding that due process requires exclusionary rule to be applied in state trials

holding that the exclusionary rule should not be applied to searches which relied on fifth circuit law that was subsequently overturned

holding that exclusionary rule to be applied as a matter of state law is no broader than the federal rule

holding that circuit court decisions bind circuit unless and until overturned by the court en banc or by higher authority

2

(App.Div.1981). 21 .Under this statute and N.J.S.A. 30:4-6, persons convicted and sentenced to terms of one year or more are required to be confined in a state prison. N.J.S.A. 2C:43-10(e); see Cryan v. Klein, 148 N.J.Super. 27, 31-32, 371 A.2d 812, 814 (App.Div.1977) (construing N.J.S.A. 2A:164-18, the forerunner of N.J.S.A. 2C:43-10), certif'n granted, 75 N.J. 606, 384 A.2d 836, appeal dismissed, 87 N.J. 304, 434 A.2d 61 (1978). 22 . Worthington, 88 N.J. at 205, 440 A.2d at 1139. 23 . Cf. Worthington, 88 N.J. at 205, 440 A.2d at 1139 ("Until permanent quarters can be found for [certain] state inmates, it makes sense to confine them in the county jails where they are already incarcerated.”). 24 . See also State v. Rosenberg, 78 N.J.Super. 400, 402, 188 A.2d 635, 636 (App.Div.1963) (<HOLDING>). 25 . Defendant’s Memorandum of Law, Exhibit

holding that njsa 2aj6418 the forerunner of njsa 2c4310 did not create a liberty interest in an inmate

holding that a prisoner has no constitutionallybased liberty interest in a particular prison classification because an inmate is not entitled to a particular degree of liberty in prison

holding that an inmate had no liberty interest in avoiding transfer to a more restrictive facility

holding that inmate has a liberty interest under the due process clause to refuse the involuntary administration of psychotropic drugs

holding that texas parole statutes do not create a protected liberty interest under an older statutory scheme

0

U.S. Tax Ct. LEXIS 49, at *41; Riggs II, 163 F.3d at 1369; Riggs III, 2001 WL 47274, at 17-18, 2001 Tax Ct. Memo LEXIS 20, at *64-66. Second, the root principles at work here — the principle that courts must be consistent with one another and the principle that governmental entities may in some circumstances be treated as private when taking on a private role or function— have a venerable lineage. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (putting a distinction between a government’s exercises of uniquely sovereign power and ordinary private power at the heart of foreign sovereign immunity); Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976) (plurality opinion) (<HOLDING>); Bank of the U.S. v. Planters’ Bank of Co., 22

recognizing the substantial body of case law discussing distinction between preliminary and postliminary activities on the one hand and principle activities of employment on the other

recognizing a traditional distinction between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other

holding not only does cincinnatis categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech but in this case the distinction bears no relationship whatsoever to the particular interests that the city has asserted

recognizing distinction between tolling and estoppel

recognizing the liens on the one hand and representing that the tax claim had been released on the other

1

Carr v. Gen. Motors Corp., 425 Mich. 313, 389 N.W.2d 686, 689 (1986) (“The Legislature ... has mandated, not just once, but many times throughout the [PWDCRA], that the only [disabilities] covered by the act, for purposes of employment, are those unrelated to ability to perform the duties of the position.”). Consistent with this qualification, the PWDCRA does not protect a plaintiff who, “on the date of [her] discharge is unable to perform the requirements of [her] job because of a disability” even if the plaintiff “would have regained the capacity to do the work within a reasonable time.” Lamoria v. Health Care & Ret. Corp., 233 Mich. App. 560, 593 N.W.2d 699, 701 (1999) (per curiam); see also Ashworth v. Jefferson Screw Prods., Inc., 176 Mich.App. 737, 440 N.W.2d 101, 102-04 (1989) (<HOLDING>). In this case, Maat was unable to perform the

holding injured employee who asked his employer for medical assistance and employer refused and employee then went to physician of his own choice employee could recover medical benefits

holding that plaintiff could not show that he was disabled because he conceded that he could do his job despite his impairment

holding that injured employee failed to state a claim under pwdcra even though he informed his employer that he could return to work in two months

holding as a matter of law that employer could not reasonably foresee employees boyfriends actions in shooting her even though employee had informed employer two days earlier that he posed a threat

holding that the plaintiff filed suit within the statute of limitations even though he could not prove the time at which he mailed his petition

2

deficient. The PCR court did not make any findings or conclusions directly on this point. However, the court did find that the mitigation specialist, Barb Bumpus, had never worked on a capital case and was not qualified to do so; the Legal Defender’s Office restricted counsel’s ability to perform mitigation; and counsel had no supervisory authority over mitigation personnel. ¶ 60 Although both Shriver and Sinclair testified that the mitigation specialist was unqualified, defendants do not have a stand-alone right to a mitigation specialist. See Phillips v, Bradshaw, 607 F.3d 199, 207-08 (6th Cir. 2010) (“[H]iring a mitigation specialist in a capital case is not a requirement of effective assistance of counsel.”); State v. Herring, 142 Ohio St.3d 165, 28 N.E.3d 1217, 1239 ¶ 113 (2014) (<HOLDING>). To determine whether counsel provided

recognizing constitutional right to effective counsel

holding right to testify was federal constitutional right

holding defendant had no constitutional right to a mitigation specialist or a right to an effective one

holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal

holding that a defendant who sought to receive the death penalty had the right to refuse to present mitigation evidence

2

for Ozman’s actions. Plaintiff speculates that, in denying the summary judgment motion, Judge Duffy merely found that the default judgment did not establish the Bank’s responsibility for Ozman’s actions. Relying heavily on Judge Duffy’s statement that “[t]he default taken establishes nothing,” the Bank argues that Judge Duffy has already ruled that the default judgment cannot be used against the Bank. In addition, the Bank argues that a default judgment, as a matter of law, has no effect on a co-defendant. Finally, arguing that it has been prejudiced by Ozman’s actions, the Bank argues that the default judgment is not admissible because it is irrelevant hearsay. But see Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 467, 121 L.Ed.2d 375 (1992) (<HOLDING>). As an initial matter, it is not productive to

holding that plaintiffs failure to mention vice president of thirdparty company in initial disclosures was harmless because plaintiffs mentioned president of company and defendants conducted no discovery of company

holding that statement is admission by partyopponent if made by partys agent or servant concerning matter within course and scope of the agency or employment and made during existence of agency or employment relationship

holding that liability to the insured for acts or contracts of an insurance agent within the scope of his agency with a full disclosure of the principal rests on the company

holding owner of limited liability company may be personally liable to third party if owner acts as agent for company and fails to disclose existence and identity of principal

holding that statements of a company vice president were admissible against the principal owner of the company under fedrevid 801d2d as an admission made by the partys agent or servant concerning a matter within the scope of the agency or employment

4

We should leave this determination for another day. The issue has never been framed as a challenge to any specific restrictions in the release plan. The parties never requested that we formulate a test for determining when specific conditions of release would satisfy due process, or provide the district court with guidance as to what release conditions would do so. And it is in no way necessary that we resolve this issue in order to address the issue that is properly presented in this case. Thus, we should follow our typical practice of moving the law forward incrementally and wait for a case that requires us to craft a test for determining when specific conditions of release violate due process. See State v. Pearson, 836 N.W.2d 88, 99 (Iowa 2013) (Cady, C.J., concurring specially) (<HOLDING>). Preferably, a case in which the parties ask

holding that the prosecutor acted improperly when he misstated that the key witness had not come forward until the day before trial when the witness had actually come forward over two months before trial

holding determination of property value in case to decide if assessed value was excessive is not a liquidated demand where only evidence of property value was the conclusory allegation of value in plaintiffs unsworn petition

recognizing value of moving the law forward on an incremental basis

holding the aggregate value of the land and its improvements is the controlling value

recognizing the witnesss failure to come forward promptly may impact the credibility of the witness

2

remand, the circuit court is instructed to determine the extent to which Dorsey satisfied the SIR requirements for each Gerling policy and to set off against Wheelwright’s recovery against Gerling under the consent judgment the amount of the SIR for each respective policy that was not satisfied by Dorsey. E. Gerling’s Argument that Dorsey Was “Not Legally Obligated to Pay” Gerling argues that its polices contain provisions requiring it to pay only those sums, in excess of the SIR amount, that Dorsey became “legally obligated to pay.” Gerling argues that because the consent judgment permits Wheelwright “to collect the judgment only to the extent that Dorsey’s insurance provides coverage,” Dorsey was never legally obligated to pay any part of the judgment. Gerling relie (5th Cir.1969)(<HOLDING>).” The circuit court also attached importance

holding that an insurance company which chose not to defend its insured could not later deny coverage by asserting the legally obligated to pay provision in the policy after the insured reached a settlement where the injured party agreed to collect only against insurance proceeds

holding that despite assurances from the insurance company that the insured could file the pol after femas deadline the insured could not collect because the insured was responsible for timely filing

holding that a plaintiffs agreement to collect only against a defendants insurance company was merely a covenant and did not constitute a release of the defendants from liability and stating that the defendant is still legally obligated to the injured party and the insurer still must make good on its contractual promise to pay

holding that the insurer had no duty to defend the insured because the allegations of the initial complaint did not allege facts which would bring the case within the coverage of the title insurance policy

holding that an insurance policy providing that the insurance company would pay all reasonable expenses incurred by the insured at our request emphasis omitted did not establish an agreement that the insurer would cover attorney fees and costs to the insured in a declaratory action

0

and uncle and the children had stability for the first time in their lives. Id. at 218-14. Additionally, Angie Deeds, the children's therapist, testified that she believed it would be harmful to the children to continue the parent-child relationship. Id. at 118. Deeds testified that the children had been doing better since having more stability in their lives and would continue to improve with stability. Id. In sum, these recommendations by the caseworker and the therapist coupled with the evidence of Wedding's extensive drug use, her failure to complete court-ordered services, and testimony that the children were thriving in their current home is sufficient to support a finding that termination of parental rights is in the children's best interest. See Im re A.J., 881 N.E.2d at 718-19 (<HOLDING>). Thus, we conclude that the trial court

holding that evidence of the fathers conduct in stabbing the childrens mother alleged to endanger the childrens physical and emotional wellbeing is pertinent to and entwined in the issue of the childrens best interest

holding that the recommendations of the childrens caseworker and guardian ad litem coupled with evidence of the mothers extensive drug history her incompletion of courtordered services and testimony that the children were happy and doing well in their foster homes were sufficient for the trial court to determine that termination of parental rights was in the childrens best interest

recognizing that upon request a district court may remove the guardian ad litem andor appoint another guardian ad litem to protect the childrens interests

holding that the governments interest in the welfare of children embraces not only protecting children from physical abuse but also protecting childrens interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents

holding that though the mother admitted that there were grounds to support termination of her parental rights the benefits of allowing the mothers relationship with her teenage daughter to continue were too palpable and the benefits of severing it too speculative for us to agree that the state had shown by clear and convineing evidence that termination was in the best interest of the child

1

that Defendant was entitled to a credit for taxes paid on the amount he originally received. See Clark v. Clark, No. D2976-86 (Sup.Ct.D.C. Apr. 21, 1995). 4 . On October 5, 1990, Defendant answered Plaintiff's complaint and also filed a counterclaim against his former wife. Defendant’s counterclaim asserted that Plaintiff was indebted to him for his interest in real property owned by them as tenants-in-common. He claimed that she had not accounted for past rental profits and that he was due his share of the value of the property from which he claims to have been ousted. 5 . The Court notes that the holding in Reese has been slightly modified by statute and case law, but with no effect on its application to this case. See Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1454 (9th Cir.1995) (<HOLDING>), cert. denied, - U.S. -, 116 S.Ct. 301, 133

holding that the defendant withheld pension benefits in breach of the plan

holding under the exclusive civil enforcement provisions of 502a as set forth in 29 usc 1132a that a beneficiary may sue to recover benefits due under the plan to enforce the participants rights under the plan or to clarify rights to future benefits

holding that plan participants in a defined benefit pension plan have no claim to the plans surplus assets

holding that an employees protected interest in a pension vested before he or she became eligible to collect the pension

recognizing that in passing the pension annuitants protection act of 1994 publ no 103401 oct 22 1994 amending 29 usc 1132a congress clarified that former pension plan participants or beneficiaries of terminated plans do in fact have standing to sue in the case of a fiduciary breach involving the purchase of insurance contracts or annuities

4

mental health evaluation and diagnosed Voth with resolved delirium due to a general medical condition, sustained remission alcohol dependence, and hypertension. In his report, Dr. Pounds concluded that Voth was presently competent but that Voth met the statutory criteria for legal insanity on the date of the incident. Dr. Pounds opined that the most likely cause of Voth's psychotic episode was an unidentified viral infection. Significantly, Dr. Pounds considered and explicitly rejected the possibility that the psychotic episode was the result of intoxication. 17 After receiving Dr. Pounds's report, the People stipulated to the NGRI finding and requested that Voth be committed to a mental health facility pursuant to People v. Laeke, 2012 CO. 18, 1 17, 271 P.3d 1111, 1115-16 (<HOLDING>), and section 16-8-105.5(4) (requiring that a

holding that a defendant must show reasonable probability that but for the error he would not have entered the plea

holding that due process requires that a defendant entering a plea of not guilty by reason of insanity understand that if the plea is accepted he could be committed to a state hospital for the criminally insane for a term up to the maximum possible penalty for the offense charged

holding that claim that counsel was ineffective for allowing defendant to proceed while incompetent was facially insufficient where defendant did not allege he actually was incompetent to proceed to trial or insane at the time of his offense

holding that pursuant to section 168103 a defendant does not have an absolute right to waive the assertion of a mental status defense when such defense is sought by counsel and setting forth a balancing test for trial courts to rule whether the ngri plea is necessary for a just determination under section 1681082

holding that a defendant does not have the right to a jury trial where a plea of ngri is entered and the prosecution concedes that the defendant was insane at the time of the offense

4

Sweeny site, Union Pacific’s contract mowers never came to mow the tall grass and weeds that surrounded the track and equipment. Dr. Murray testified that the mosquitoes that are most responsible for the transmission of West Nile virus—Culex mosquitoes— nest in dark, damp places. She also testified that they can nest in high grass and weeds. Dr. Murray testified that although the Culex mosquito typically lies dormant in the heat of the day, “if it’s disturbed in the heat[,] it would probably leave its resting place.” In short, there was evidence that the tamper’s state of disrepair allowed mosquitoes to both enter and/or nest in the cab. The high grass and weeds at the worksite, which were .never mowed in the four months that Nami’s crew wo , (Tex.App.Houston [1st Dist.] 2007, no pet.) (<HOLDING>). Nami’s case is clearly distinguishable.

holding that a grocery store employer had no duty to warn an employee that placing his hand in the doorjamb of a customers car is an obvious danger

holding that a restaurant supply employer had no duty to warn a delivery truck driver employee of the danger associated with water on a floor because that is a commonly known hazard and obvious to everyone

holding that an organization had no duty to warn of potential danger from sexual abuse of one of its volunteers where injured child was not associated with organizations programs

holding there is no duty to warn of risks obvious to the average user of the product

holding danger was so open and obvious to plaintiff that as a matter of law he knew or should have known of danger

1

of an old, defective, or low quality saddle. Defs SMF ¶ 19, Pl.’s Opp’n to Defs Statement of Material Fact ¶ 19 (Docket # 31) (PL’s Opp’n Def.’s SMF). Instead she asserts that Tinkerbell was not “properly saddled” and that her fall was “most likely due to Ms. Balmer’s negligence in failing to properly tighten the girth on the saddle or to perform the necessary checks to make sure that the saddle was properly secure.” Amend. Compl. ¶20; PL’s SAMF ¶49. Urging a more expansive definition of faulty tack and equipment, Samantha cites two decisions in which the definition of faulty tack was extended to include the improper installation or positioning of equipment or tack which is otherwise in sound condition. See Berlangieri v. Running Elk Corporation, 132 N.M. 332, 48 P.3d 70, 78 (2002) (<HOLDING>); Hubner v. Spring Valley Equestrian Center,

holding the terms faulty and faulty condition to be reasonably susceptible to an interpretation extending them to situations in which the fault consists of applying or positioning the equipment or tack in an unsafe manner

holding an administrative interpretation cannot change the meaning of a statute or control the courts interpretation of it

holding that msp by its terms limits the governments right to reimbursement to situations in which prompt payment has been made or can reasonably be expected by a primary plan

holding that an insurance contract should be construed as a reasonable person in the position of the insured would have understood it and that if the language used in the policy is reasonably susceptible to different constructions it must be given the construction most favorable to the insured

holding that ambiguity exists if the meaning of contractual terms cannot be deciphered from reading the entire instrument or if the terms are reasonably susceptible to more than one interpretation

0

disability or restraint, physical or otherwise.” To the extent the majority suggests that a restraint need be “physical” in order to resemble a punitive sanction, such a requirement simply does not exist. Rather, Smith discusses physical restraints as only one kind of possible restraint a criminal law might impose. Smith, 538 U.S. at 100, 123 S.Ct. 1140. In fact, our society regularly punishes wrongdoers without actually imposing physical restraints on them, most commonly, with criminal fines. And Supreme Court decisions tasked with applying the Mendoza-Martinez factors to ascertain the penal or regulatory nature of a particular sanction have regularly found non-physical sanctions to be affirmative disabilities or restraints. See, e.g., Kurth Ranch, 511 U.S. at 774, 114 S.Ct. 1937 (<HOLDING>). In fact, Mendoza-Martinez itself held a

holding that operates as a charge of debtors in personam tax liability not debtors in rem tax liability

holding a tax on illegal drugs to be a punitive measure in part because it allowed for sanctions by restraint of debtors property

holding that property seized by a creditor prior to debtors bankruptcy was property of the estate even though creditor the irs held a secured interest a tax lien in the property

holding that in some rcases there is an adequate remedy at law for an attack on an illegal or unconstitutional tax through the tax appeal board

holding that punitive damages are not allowed under the flsa

1

delay, or defraud creditors. F/R further asserted that the Levin Parties were equitably estopped from asserting section 726.110(1) as a bar to its claim because of the alleged false testimony regarding the reasons for the assignment and the delay in producing accounting documents. In a written order, denying the Levin Parties’ motion for involuntary dismissal, the trial court agreed with F/R that the one-year savings clause in section 726.110(1) was not triggered until F/R discovered or should have discovered the fraudulent nature of the assignments. It did not reach F/R’s alternative argument that the Levin Parties were equitably es-topped from asserting d 1186 (1997) (en banc) (same), with In re Hill, No. 3:03-cv-1034-J-32, 2004 WL 5694988, at *3 (M.D.Fla. Nov. 4, 2004) (Hill I) (<HOLDING>), and Treinish v. Spitaleri, No. 05-94988, 2006

holding that the oneyear period begins to run when the mandate of the court of appeals issues

holding that oneyear period commences on date of discovery of the fraudulent nature of the transfer

holding that the limitations period in section 1640e runs from the date of consummation of the transaction

holding that oneyear period runs from the discovery of the transfer

holding 727d1 complaint was untimely and noting the one year period for filing runs from discharge rather than discovery of the fraud but not addressing expressly equitable tolling

3

1990), the court ruled that the defendant restaurant did not have to reinstate the plaintiff veteran on the grounds that the plaintiff was unqualified under the VRRA because he brought numerous weapons to work, threatened to Idll fellow employees and served liquor to underage patrons. Moreover, all of this behavior occurred within six months prior to the plaintiff leaving to enter the service. Similarly, in Green v. Tho-Ro Products, Inc., 232 F.2d 172 (3 Cir., 1956), the court affirmed judgment for the defendant employer, holding that the plaintiff veteran was unqualified under the VRRA because he urged other employees to pass off defective products, created general discord in the workplace and threatened on numerous occasions to ruin the company. See also Doane, supra, 164 F.2d 537 (<HOLDING>); Greathouse, supra, 381 F.Supp. 156 (ruling

holding that the rule 404b evidence admitted to prove intent was clearly relevant because intent was at issue in the trial

holding that trial court was not permitted to conclude that damages could have been avoided absent evidence to that effect and that defendant bore burden of presenting that evidence

holding that appellate courts determine the sufficiency of the evidence to support a conviction based on a review of all of the evidence admitted at trial

holding that evidence that plaintiff employee was often drunk at work should have been admitted at trial because it bore on the issue of whether he was qualified under the vrra

holding that whether or not claimant would have returned to work at all was a question of fact

3

an error is harmless might suggest an error is per se reversible; however, it does not make it so. As for the error Knight raises, any question as to whether it is, or ever was, per se reversible was answered by the supreme court in Galindez: Finally, in [Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ], the Supreme Court reversed the Washington Supreme Court’s holding that harmless error analysis does not apply to [Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] error. Accordingly, to the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Re-cuenco has superseded them. See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (<HOLDING>); State v. Hargrove, 694 So.2d 729, 730

holding that a sentence was based on a mandatory statutory minimum sentence even though it was lowered under another statute

holding where the statutory minimum sentence exceeds the guidelines sentence a substantialassistance downward departure begins at the mandatory minimum sentence

holding that even where evidence regarding the use of a firearm is unrebutted to impose mandatory minimum sentence a jury must make that finding

holding that even if the minimum mandatory exceeds the statutory maximum the court must impose the minimum mandatory

holding that even where the evidence is uncontroverted to sentence a defendant to a minimum mandatory sentence for trafficking the jury must make express findings of the amount of cocaine involved

4

a judicial action does not “contest the wisdom of broad mili tary policy,” the Feres doctrine requires courts to reject actions which are “the type of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” Shearer, 473 U.S. at 59, 105 S.Ct. 3039. If a suit requires deep inquiry into military decisions or would strongly impact military discipline, the Feres doctrine will bar it. These considerations that prohibit servicemen’s suits against the government also prompt the extension of the Feres doctrine to prohibit non-servicemen’s suits against the government which are derivative of or ancillary to servicemen’s injuries. See Kendrick v. United States, 877 F.2d 1201, 1206-07 (4th Cir.1989) (<HOLDING>); Gaspard v. United States, 713 F.2d 1097, 1102

holding that burnett and its justification of uniformity is equally applicable to admiralty actions

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

holding that the united states is immune from monetary damages for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service

holding that feres doctrine is equally applicable to family member claims derivative of a service members injuries

recognizing doctrine

3

must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.”). State claims remain unexhausted if state proceedings remain pending at the time the petition is filed. Nonetheless, we have held that unjustified delay by a state court in adjudicating a direct criminal appeal may give rise to both a due process violation and relief from the exhaustion requirement itself. Harris v. Champion, 15 F.3d 1538, 1555, 1557 (10th Cir.1994) (<HOLDING>) (quotation omitted); see also 28 U.S.C. §

holding that ajlthough ocga 5648 c sets forth the conditions upon which the trial court may dismiss an appeal for delay it does not by its terms require the court to make a formal recitation of those conditions in its order and affirming a trial courts dismissal order which found that the delay was unreasonable but had no express finding that the delay was inexcusable punctuation omitted

holding that inexcusable or inordinate delay by the state in processing claims for relief may make the state process ineffective to protect the petitioners rights and excuse exhaustion

holding that the state courts rejection of the petitioners ineffective assistance of counsel claim was an unreasonable determination of the facts in light of the evidence before the state court

holding that a federal court may excuse a state habeas petitioners procedural default if the petitioner can show cause for the failure to raise the claim and prejudice resulting from such failure

holding that a party failed to present any evidence to rebut inference that delay was unreasonable and inexcusable

1

first-time offender waiver allows the court to impose up to 90 days of confinement for some first-time offenders “who have never been previously convicted of a felony in this state, federal court, or another state.” RCW 9.94A.650(1), (2). The trial court has the discretion to waive the imposition of a standard range sentence and sentence a defendant under the first-time offender option. RCW 9.94A.650(2); State v. Johnson, 97 Wn. App. 679, 682, 988 P.2d 460 (1999). The trial court declined to grant the first-time offender waiver because Kinneman’s theft amounted to a “major economic offense” and was an abuse of trust. 3 Former RCW 9A.56.010(17)(c) (1999) (amended as RCW 9A.56.010(18)(c) by Laws op 2002, ch. 97, § 1). 4 See, e.g., State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990) (<HOLDING>); State v. Petrich, 101 Wn.2d 566, 572, 683

holding family court has wide discretion in determining how marital property is to be distributed

recognizing that the trial judge must be given a wide range of discretion in determining whether a mistrial should be declared

recognizing that prosecutors are vested with wide discretion in determining how and when to file criminal charges

holding that trial court has wide discretion in determining sufficiency of foundation for opinion testimony

recognizing that wide discretion in imposition of sentence reposes in the trial judge

2

terms of these statutory provisions, this court and others have held that liability under section 1132(c)(1) is confined to the plan administrator and have rejected the contention that other parties, including claims administrators, can be held liable for the failure to supply participants with the plan documents they seek. Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1149 (7th Cir.1998); Jones, 16 F.3d at 144; Gore v. El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833, 843-44 (6th Cir.2007); Ross v. Rail Car Am. Group Disability Income Plan, 285 F.3d 735, 743-44 (8th Cir.2002); Lee v. Burkhart, 991 F.2d 1004, 1010 (2d Cir.1993); McKinsey v. Sentry Ins., 986 F.2d 401, 403-05 (10th Cir.1993). See also Klosterman v. Western Gen. Mgmt., Inc., 32 F.3d 1119, 1122 (7th Cir.1994) (<HOLDING>) (coll, cases dealing with section 1024(b)).

holding that one who is named in documents as plan administrator signs documents as plan administrator and assumes discretionary authority in the administration of the pension plan is a fiduciary

holding that liability for failing to comply with requirements of 29 usc 1022b as to contents of spd falls solely on plan administrator

holding that plan did not comply

holding that because the spd at issue stated that it is made part of the group policy its terms were sufficient to find that the plan conferred discretion on the plan administrator

holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant

1

that term was defined in § 13102(12). B. The Secretary of Transportation Has Discretion Over Cargo Liability Insurance Although Congress’ aim was to eliminate the separate registration requirements for common and contract carriers, we do not believe that fact is dispositive in this case. Rather, what is most important is the method by which Congress saw fit to implement the Termination Act. With respect to insurance, Congress left it to the Secretary of Transportation’s discretion to require cargo liability insurance. As we have stated, § 13906(a)(3) replaced former § 10927(a)(3) and gave the Secretary discretion over whether “a registered motor carrier,” including carriers once classified as common or contract, must insure cargo. The district court relie Ct. 1375, 92 L.Ed. 1787 (1948) (<HOLDING>). The only ICC interpretation of the Motor

holding that congress incorporation of jury provisions of the fair labor standards act into the age discrimination in employment act necessarily ratified and adopted longstanding judicial construction of those provisions

holding that the emergency price control act of 1942 did not unconstitutionally delegate the legislative power of congress to the office of price administration

holding that when congress included provisions of compulsory testimony act of 1893 in the emergency price control act of 1942 it necessarily adopted settled judicial construction of the 1893 act

holding when congress reenacted the voting rights act it necessarily adopted justice departments longstanding interpretation of acts requirements

holding that the phrase shall be granted in the injunctive enforcement provision of the emergency price control act of 1942 is less mandatory than a literal reading might suggest we cannot but think that if congress had intended to make such a drastic departure from the traditions of equity practice an unequivocal statement of its purpose would have been made

2

parent is absolutely bound to provide reasonably for [the child's] maintenance and education, and [the parent] may be sued for necessaries furnished, and schooling given to a child, under just and reasonable circumstances”). 4 . Our dissenting colleagues rely upon the absence of any express statement of this authority in Chapter 156, sometimes referring to this absence as the “silence” of Chapter 156. See post at pp. 720-21. Though the Legislature could have stated this authority expressly in Chapter 156, its failure to do so is not disposi-tive. The Legislature stated in section 156.401 that trial courts may modify a child-support order under circumstances such as those presented in the case under review. Se 02-00091-CV, 2003 WL 21705248, at *8 (Tex.App.-Austin Jul. 24, 2003, no pet.) (<HOLDING>) (mem. op.). Our Legislature has provided that

holding fees mandatory under predecessor statute of 38001

holding defendant could not recover attorneys fees under predecessor to statute 38001 when defendant did not present contract claim

holding that trial courts may not use section 38004 to take judicial notice of reasonableness of attorneys fees awarded under statute other than section 38001

holding that attorneys fees for quantummeruit claim may be recovered under texas civil practice and remedies code section 38001 because this claim falls within general statutory language even though statute does not specifically refer to quantummeruit claims

holding award of attorneys fees to party prevailing on contract claim is mandatory under section 38001 if there is proof of the reasonableness of the fees

3

Judge. The State of Florida appeals the sentence imposed after the postconviction court granted Carolyn Stewart’s motion to modify sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We have jurisdiction. § 924.07(l)(e), Fla. Stat. (2011). After a jury trial, Stewart was convicted of poisoning food and water in violation CA 2005) (<HOLDING>); Jackson v. State, 825 So.2d 1021, 1023 (Fla.

holding actions filed one day late are barred

holding that trial court lacked jurisdiction to consider defendants motion to withdraw guilty plea filed beyond term of court in which defendant was sentenced

holding that the trial court lacked jurisdiction to rule on a 3800c motion filed one day late

recognizing the late date of a motion to withdraw filed three weeks before trial

holding that a motion court is compelled to dismiss late filed claims

2

at the time the complaint was filed, also give rise to a possible loss of consortium claim. See Bennett v. Lembo, 145 N.H. 276, 282, 761 A.2d 494 (2000) (upholding $25,000 verdict for wife where defendant’s negligence rendered husband less “physically active”). Objectively viewed, Evans’s claims for her own alleged Hepatitis A and the loss of consortium and emotional distress resulting from her family’s allegedly coming down with the disease could be valued at $75,000 or more. See Stewart, 356 F.3d at 340 (concluding that married couple’s claims for slight “permanent impairment to their total bodily functions” in addition to mental anguish and loss of consortium not worth less than $75,000 per plaintiff); cf. Ortega v. Star-Kist Foods, Inc., 370 F.3d 124, 129-131 (1st Cir.2004) (<HOLDING>). Evans also seeks multiple damages under the

holding in a fcra case that plaintiffs may not rely on mere conclusory statements rather they must sufficiently articulate true demonstrable emotional distress including the factual context in which the emotional distress arose evidence corroborating the testimony of the plaintiff the nexus between the conduct of the defendant and the emotional distress the degree of such mental distress mitigating circumstances if any physical injuries suffered due to the emotional distress medical attention resulting from the emotional duress psychiatric or psychological treatment and the loss of income if any

holding that claim for emotional distress arising out of daughters relatively minor injuries did not exceed 50000 for purposes of amount in controversy

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

holding that act did not bar intentional infliction of emotional distress claim

recognizing indirect claim for infliction of emotional distress of mother who observed hyperalimentation of fluids through catheter in daughters jugular vein followed by daughters death

1

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him. U.S. Const, amend. VI. However, the Confrontation Clause does not preclude admission of an out-of-court statement if admission of the statement is necessary, and the statement bears adequate indicia of reliability. State v. Roby, 463 N.W.2d 506, 509 (Minn. 1990). Because DeVerney and Greenleaf are unavailable due to their refusal to testify, their statements are necessary. See Byers, 570 N.W.2d at 494. In addition, the same guarantees of trustworthiness that rendered the prior testimony admissible under the catchall exception to the hearsay rule satisfy the requirements of the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638 (1990) (<HOLDING>). In determining whether the statements satisfy

recognizing that statements admissible under an exception to the hearsay rule may be inadmissible when tested against the confrontation clause because confrontation clause analysis differs from hearsay rule analysis

holding that when deciding whether the admission of a declarants outofcourt statements violates the confrontation clause courts should independently review whether the governments proffered guarantees of trustworthiness satisfy the demands of the clause

holding that factors used in determining whether hearsay statements are sufficiently reliable to satisfy hearsay exceptions also apply to whether statements have sufficient guarantees of trustworthiness under confrontation clause

holding that an appellate court may review the entire record to determine whether hearsay statements are sufficiently reliable

holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule where the defendant was able to confront and crossexamine the witness who claimed that the statements at issue were made

2

managerial employees of an adverse party, even if the contact is made without the consent of the organization’s counsel. CarboMedics, Inc. v. ATS Med., Inc., Civ. No. 06-4601, 2008 WL 5500760, at *5-6 (D.Minn. April 16, 2008) (citing Minn. R. Prof. Conduct 4.2, Comment 7). However, a lawyer having contact with an organization’s former employees must not infringe on the organization’s legal rights. Minn. R. Prof. Conduct 4.4 (stating that “[i]n representing a client, a lawyer shall not ... use methods of obtaining evidence that violate the legal rights of [a third party]”); see also Minn. R. Prof. Conduct 4.2, Comment 7; CarboMedics, 2008 WL 5500760, at *6. Such rights include the right not to have privileged and confidential information disclosed. See Arnold, 2004 WL 2203410, at *7 (<HOLDING>). Thus, the “pivotal question in evaluating [an

recognizing academic privilege but holding plaintiffs need for information outweighed colleges interest in confidentiality

recognizing the ability of corporations to protect property rights in federal court

holding that while a state statute granted a foreign corporation the rights and privileges enjoyed by domestic corporations it did not transform such corporations into domestic or resident corporations

recognizing a corporations legal rights to confidentiality and privilege

recognizing privilege

3

argument that Intervenors’ lack Article III standing to maintain their appeal absent the government. 1. Intervenors’ Standing As noted above, Public Lands Council and American Farm Bureau Federation intervened on behalf of the BLM in the district court and now pursue this appeal. Although the BLM filed a notice of appeal, it subsequently abandoned its appeal. The end result is that Intervenors seek to defend the 2006 Regulations — regulations that the BLM itself no longer seeks to defend. While this situation presents an unusual circumstance, it is not one without precedent, and it is well established that the government is not the only party who has standing to defend the validity of federal regulations. See, e.g., Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir.2002) (<HOLDING>); see also Didrickson v. U.S. Dep’t of the

holding that under the law of the case doctrine an issue of fact or law decided on appeal may not be reexamined by the appellate court on a subsequent appeal

holding that defendants failure to appeal the voluntariness of a plea constitutes waiver of the issue on subsequent appeal

holding that a court may award injunctive relief against a state officer

holding that there is an exception to eleventh amendment immunity for actions seeking declaratory and injunctive relief against state officials for alleged violations of federal law

holding that intervenors could appeal and challenge the grant of injunctive relief by defending the governments action against alleged violations of nepa when the federal defendants decided not to appeal

4

The date of the alleged injury was in 2003. Defendant therefore argues that the trial court did not err in excluding Dr. Frost’s testimony. I agree. In Purvis, this Court held that an expert’s testimony was properly excluded where the expert’s only knowledge of the locality came four years after the alleged injury. Id. at 480-81, 624 S.E.2d at 385. We r s testimony was properly excluded per Purvis and thus plaintiff has failed to produce sufficient expert testimony to defeat defendant’s motion for a directed verdict, and I would affirm the ruling of the trial court on that ground. 3 . The fact that plaintiff’s expert relied on internet research is not a sufficient ground to exclude an expert’s testimony. See Coffman v. Roberson, 153 N.C. App. 618, 624-25, 571 S.E.2d 255, 259 (2002)

holding that experts may rely on inadmissible material in forming the basis of opinions but inadmissible material may not be admitted for truth of the matter asserted

holding that an alj is entitled to rely on vocational experts testimony that is based on assumptions that are supported by evidence in the record

holding that experts may rely in part on internet research

holding that a trial court has discretion to qualify experts and rely on various methods in making a valuation determination

holding that appellate court in affirming trial courts decision may rely in part on a ground not presented to trial court

2

we recognized in Wal-Mart Stores, the courts of appeals have generally limited the use of a spoliation instruction to two circumstances (generally referred to as the “two rules”): (1) a party’s deliberate destruction of relevant evidence, and (2) a party’s failure to produce relevant evidence or explain its nonproduction. 106 S.W.3d at 721. Under the first rule, a presumption arises that a party who deliberately destroys evidence does so because it is unfavorable to the party’s case. Id. Under the second, the same presumption arises because the party who controls the missing evidence is unable to explain its failure to produce the evidence. Id. at 722. Though we have never expressly adopted these two rules, both derive from our nineteenth-century precedent. See Cheatham, 8 Tex. at 167 (<HOLDING>); Underwood, 59 Tex. at 170 (observing that a

recognizing that all things are presumed against a wrongdoer

recognizing that jurors are presumed to follow instructions

holding that a person is presumed to own all property that is titled in her name

recognizing that an agencys decision to terminate an employee is presumed correct

holding that absent evidence to the contrary court proceedings are presumed to be procedurally proper

0

regularly used subcontractors for this work and he was familiar with the costs the subcontractors charged his company. While Fitzwater’s estimate is based on the entire basement square footage, on remand the district court should adjust the damages awarded by: (1) deducting an appropriate amount for the southern portion of the basement deconstruction and remodeling necessitated by the sewer back-ups and not caused by the undisclosed water problem; (2) deducting an appropriate amount for any basement bathroom deconstruction and remodeling; and (3) adjusting the mold remediation damages if the court deems it necessary. These steps will allow the court, while admittedly using some speculation, to arrive at a reasonable approximation of damages. See Metropolitan Transfer, 328 N.W.2d at 538 (<HOLDING>). Additionally, on remand the district court

holding failure to raise issue of improper measure of damages in trial court waived review of complaints that proper measure of damages was not submitted to jury and that plaintiff failed to present evidence on the proper measure

holding that the measure of damages of converted property is the market value at the time of conversion

holding that the proper measure of damages to repair defects for a building contract that has not been substantially performed is the contractually agreed upon measure of damages

holding defendants should not escape liability on the ground that the measure of damages attributable to them is uncertain

holding that where the customary measure of damages for a vendors failure or refusal to convey land was inapplicable the measure of damages must be flexible enough to vary with the necessities of the situation

3

the evidence in the light most favorable to the government. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998). If Jones’s stop of the car was based neither on probable cause to believe that it was involved in a traffic violation nor reasonable suspicion that the occupants were engaged in illegal activity, the ensuing search was illegal and the evidence obtained is inadmissible against Humphrey unless the government can demonstrate that the evidence was obtained independently of the illegal search. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Here, if the Defendant was illegally stopped, then the consent obtained was likely a product of that illegal stop and was vitiated. See e.g. United States v. Fernandez, 18 F.3d 874 (10th Cir.1994) (<HOLDING>). But if Jones had probable cause to stop the

holding that consent given immediately after an illegal stop was vitiated by the illegality

holding evidence that derived so immediately from violation is fruit of illegality and should be suppressed

holding there is no consent as a matter of law where the consent was given under coercion

holding that consent was freely and voluntarily given despite officers advisement that the police could get a search warrant if consent was not given

holding that because the individual was being illegally detained when he consented to the search of his luggage that consent was tainted by the illegality

0

by the special rules which have developed in that field. 234 N.W.2d at 793. Likewise, the Eighth Circuit has held, with respect to defamation and tortious interference claims brought under Minnesota law in the context of a labor dispute, that the malice standard required for “actionable defamation claims ... must equally be met for a tortious interference claim based on the same conduct or statements.” Beverly Hills Foodland, Inc. v. United Food & Comm’l Workers Union, 39 F.3d 191, 196 (8th Cir.1994) (footnote omitted). Indeed, the court held that “a plaintiff may not avoid the protection afforded by the Constitution and federal labor law merely by the use of creative pleading.” Id.; accord Johnson v. CBS, Inc., No. Civ-3-95624, slip op. at 5, 1996 WL 907735 (D.Minn. Sept. 4, 1996) (<HOLDING>). A decision of the Seventh Circuit (applying

holding that where both defamation and tortious interference claims are pled and are based on same facts minnesota law requires the application of the actual malice standard to tortious interference claims

holding that at will contracts of employment are subject to tortious interference with contracts claims

holding that the plaintiff stated a claim for tortious interference

recognizing action for tortious interference with prospective advantage

holding that sovereign immunity applies to claims alleging tortious interference with business relations because the tort requires proof of malice

0

a letter dated January 7, 2007, from Lian YanPing, see AR at 365, and another dated December 26, 2006, from Mr. Lin’s wife, see AR at 359-60, contained any reference to physical harm suffered by Mr. Lin himself. See AR at 202-97. See also Forgue, 401 F.3d at 1287 (applicant has the burden of rebutting the adverse credibility determination). Moreover, the Board specifically noted that Mr. Lin failed to identify “evidence of record that corroborates” his allegations of physical harm. AR at 4. Mr. Lin produced no evidence other than his own testimony and his November 2010 affidavit suggesting his own past persecution. Accordingly, the Board’s adverse credibility finding was supported by substantial evidence and was sufficient to deny Mr. Lin’s claim. See Mohammed, 547 F.3d at 1352 (<HOLDING>). IV Because we affirm the Board’s adverse

holding that an adverse credibility determination may be dispositive where the applicant does not produce any corroborating evidence

holding when one identified ground for an adverse credibility determination is supported by substantial evidence and goes to the heart of petitioners claim of persecution the court is bound to accept the ijs adverse credibility determination

holding that an adverse credibility determination must be supported by a true inconsistency

holding that an adverse credibility determination is sufficient to deny asylum

holding that an adverse credibility determination is overturned only if each proffered reason for the determination fails

0

under Section 3294. See, e.g., Mantic Ashanti’s Cause v. Godfather’s Pizza, No. 98-CV-2264 W, 1999 U.S. Dist. LEXIS 16675, at *18-19 (S.D. Cal. June 1, 1999) (“[C]onclusory assertions that the defendants acted with ‘malice’ or with ‘conscious disregard’ for plaintiffs rights are facially sufficient under federal pleading requirements and adequate to state a claim for punitive damages under Section 3294.”); Jackson v. East Bay Hosp., 980 F.Supp. 1341, 1353-54 (N.D.Cal.1997) (“[DJespite section 3294’s specific requirement that a pleading allege oppression, fraud, or malice, these ‘may be averred generally.’ ”) (quoting Fed.R.Civ.P. 9(b)); Bure v. Lohrey Enters., 984 F.2d 1015, 1018 (9th Cir.1993); see also Primerica Fin. Servs., Inc. v. Mitchell, 48 F.Supp.2d 1363, 1371 (S.D.Fla.1999) (<HOLDING>); 5 Charles Alan Wright & Arthur R. Miller,

holding that the fact that federal rule of civil procedure 9b requires a heightened pleading standard for some claims but not for a section 1983 claim against a municipality means that the rules do not require a heightened pleading standard for such a claim

holding that federal courts could not impose heightened pleading requirement in civil rights cases alleging municipal liability because such requirement conflicted with rule 8

holding that district court could not apply florida statute requiring heightened pleading for punitive damages because statute conflicted with lenient requirements of rules 8 and 9b

holding that the federal false claims act is an antifraud statute to which rule 9bs heightened pleading requirements apply

holding that heightened pleading standards of fed rcivp 9b apply to fraud elements of rico claim

2

have violated the duty to inform at any point the alien becomes eligible for relief under a post-removal interpretation of the law. He supports this argument with citations to cases involving direct review of removal orders. See, e.g., Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009). We disagree. First, such an interpretation would require the IJ to inform an alien about relief for which the alien is apparently in eligible during the hearing. It would also require an IJ to give an alien the “opportunity to make application” for relief that was not available “during the hearing.” See § 1240.11(a)(2). This interpretation is plainly illogical and inconsistent with the unambiguous language of § 1240.11(a)(2). See also United States v. Garza-Sanchez, 217 F.3d 806, 810 (9th Cir.2000) (<HOLDING>). Because the IJ does not violate §

holding that a precursor of 124011a2 did not require the ij to inform the alien of potential constitutional challenges to the immigration laws because such challenges were not mentioned in the regulatory text

holding that where the appellants listed challenges in the statement of issues but failed to brief them the challenges were waived

holding that we review constitutional challenges de novo

holding that courts should exercise judicial restraint and decide asapplied challenges before facial challenges

holding that challenges to an arrest warrant are not jurisdictional

0

imposition of attorneys’ fees only against removing parties and not against removing attorneys. The federal bankruptcy court, however, disagreed. It held that, as a matter of law, § 1447(c) applied both to parties and to attorneys. Appellees sought immediate review, and on interlocutory appeal, the United States District Court for the District of Maryland reversed. Crescent City Estates, LLC v. MR Crescent City, LLC (In re Crescent City), 2008 WL 5216243 (D.Md. Dec. 9, 2008). After examining statutory text, legislative history, and relevant case law, the district court concluded that “§ 1447(c) ... [gave] authority to impose liability for costs (includin Inc., 1993 WL 405494, at *3 (W.D.N.Y. Sept. 30, 1993) (same), with Peraza v. Mazak, 2008 WL 186613, at *3 (M.D.Fla. Jan. 18, 2008) (<HOLDING>); Saxon v. Thomas, 2007 WL 1115239, at *5-6

holding that 1447c applies to counsel

holding that the strickland test applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal

recognizing that strickland applies to ineffective assistance of appellate counsel claims

recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel

holding that the right to counsel applies in all critical stages of state and federal criminal proceedings

0

it was correct as to the wrongfully rejected votes and thus, for the reasons that follow, we affirm. 1. An election may be contested “[wjhen illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result.” OCGA § 21-2-522 (3). When illegal voting has been alleged, “it is only necessary to show (1) that electors voted in the particular contest being challenged and (2) a sufficient number of them were not qualified to vote. .. . [Cit.]” (Emphasis in original.) Taggart v. Phillips, 242 Ga. 454, 455 (249 SE2d 245) (1978) (decided under prior version of OCGA § 21-2-522). See also Jones v. Jessup, 279 Ga. 531, 532 (615 SE2d 529) (2005); Mead v. Sheffield, 278 Ga. 268, 274-275 (601 SE2d 99) (2004) (Hunstein, J., concurring specially) (<HOLDING>); Bailey v. Colwell, 263 Ga. 111 (428 SE2d 570)

recognizing possible conflict between the cases

recognizing distinction between illegal voter cases and irregular ballot cases

recognizing this distinction

recognizing distinction between tolling and estoppel

holding to the distinction between sodomy cases involving the depraved sexual instinct exception to the general rule of inadmissibility and rape cases

1

factually distinguishable. Corea involved the State’s attempt to validate a warrantless search conducted with the consent of a third party whom the State alleged had apparent authority. Id. at 315. After police officers received a tip that the defendant possessed stolen property, the officers went to the defendant’s apartment and received written consent to search the apartment from the defendant’s brother-in-law, who was a resident of the apartment. The officers then conducted a search of the defendant’s bedroom and discovered a paper bag containing cocaine. The trial court found that the brother-in-law had apparent authority to consent to the search and denied the defendant’s motion to suppress. Id. at 314-15. In reversing the trial court’s jud -Houston [1st Dist.] 1989, pet. ref'd) (<HOLDING>). Unlike Corea, appellant was never suspected

holding search not to violate fourth amendment where officers belief that apparent landlord had the power to consent and that he had not revoked that consent was reasonable emphasis added

holding that babysitter living in home connected via ramp to defendants home had no authority to consent to search of defendants home

holding that it was unreasonable to believe that womans boyfriend had authority to consent to the search of her purse even though he had authority to consent to the search of the car in which it was kept

holding that child residents had no actual or apparent authority to consent to search of mothers home

holding that child cannot consent to search of parents bedroom

3

the debtors to pay attorneys’ fees associated with collecting any default. These charges also have not been paid by the debtors. Thus, while the debtors have resumed making their monthly payments, it is unquestionable that the debtors remain in default on their obligation. Clearly, there is a factual distinction between Belanger and the instant case. American National Bank contends that this distinction is sufficient to remove the instant ease from the purview of Belanger. The Bank argues that because of the default in this case the debtors must either reaffirm their obligation or redeem the debt in order to retain the collateral under § 521(2). I agree with American National Bank that the holding in Belanger is not directly applicable to the instant case. See Boodrow, 126 F.3d at 48 (<HOLDING>); Johnson, 89 F.3d at 251 (“The Fourth Circuit

holding that where parties to an oral loan agreed that the loan would be repaid on demand the statute of limitations did not begin to run until the date plaintiff demanded repayment of the loan

recognizing that belanger applies to debtors who are current on a loan

holding that 1322b2 prohibits modification of the interest rate on the loan on the debtors principal residence

holding that the guarantor of debtors loan is a creditor by virtue of his right to reimbursement from debtor

holding that consideration for guaranty of loan previously made was that guarantors friend the bank manager who issued the loan would not lose his job for making a bad loan

1

specifications ... [Portland] reserves the right to set forth additional requirements if deemed necessary, (emphasis added). The Requirements potentially affect use of the land beyond the pipeline easement itself. Section 5.1.1 requires notification of any blasting proposed within “300 feet of [Portland’s] facilities.” Portland paints itself as the picture of flexibility in applying the Requirements and insists that it would permit certain uses, such as parking lots or access roads, on or near the pipeline easement. Nonetheless, as it concedes, it would have to do a project-by-project review to ensure safe and effective operation of the pipeline. Thus, from the viewpoint of the prospective purchaser, the Requirements introduce a hassle f an County, 197 F.3d 1368, 1374 (11th Cir.1999) (<HOLDING>). B. Partial Takings As the parties agree,

holding that federal law governs remedies available under title ix

holding that federal common law governs equitable remedies available under erisa

holding that under fedrcivp 71a federal procedure governs condemnation actions brought under the natural gas act

holding that fedrcivp 4d1 governs the method of service of process in a diversity action

holding that the natural gas act authorizes acquisition of gas storage easements by eminent domain

2

driving was a summary offense which carried a maximum sentence of not more than ten days imprisonment. Hence, the former serves as a disqualifying conviction under Section 922(g) of the Gun Control Act, whereas the latter does not. The PSP challenges the validity of the trial court’s partial expungement order and places heavy emphasis on the fact that it was not notified of, nor was it a party to, Rush’s expungement proceedings before the trial court. At the same time, the PSP concedes that even if it had been given proper notice, it was without standing to object to Rush’s petition for partial expungement before the trial court. See Pennsylvania State Police v. Court of Common Pleas of Bucks County, 150 Pa.Cmwlth. 338, 615 A.2d 946 (1992), affirmed, 533 Pa. 324, 623 A.2d 814 (1993) (<HOLDING>). Moreover, our Pennsylvania Supreme Court

holding that where defendant failed to object to facts in psi relating to prior conviction the failure to object constituted an admission

holding that a claimant without an interest in a particular specific asset lacks standing to initiate ancillary proceeding

holding that the psp lacks standing to object to an expungement request

holding that an entity that serves the disabled lacks standing under the ada

holding that owner of a chattel seized during an illegal search of a car owned by a third party has standing to object to the seizure but no standing to object to the search

2

cert. denied, 474 U.S. 909, 106 S.Ct. 279, 88 L.Ed.2d 244 (1985). The district court did not err in analogizing this case to Puritan Fashions. For these reasons, we cannot say that the district court abused its discretion in granting the stay. The judgment of the district court is AFFIRMED. 1 . Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). 2 . Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). 3 . There has been conflict among the cases in this circuit concerning whether the Colorado River/Moses Cone factors should apply to a declaratory judgment action. See generally, Mission Insurance Co. v. Puritan Fashions, Corp., 706 F.2d 599, 601 n. 1 (5th Cir.1983) (<HOLDING>); Evans-ton Insurance Co. v. Jimco, Inc., 844

holding that the exceptional circumstances test does not apply to declaratory judgment actions

holding that colorado river ab stention is inapplicable to actions requesting declaratory relief

holding that colorado river abstention test is inapplicable where the declaratory judgment act is involved

holding that moses conecolorado river factors do not apply to declaratory judgment actions

holding that the case or controversy requirement applies with equal force to actions for declaratory judgment

3

The three-year period is designed to enlarge the time in which to bring a claim if a party does not learn of the fraud until years after the fraud was committed. It is not meant to curtail the period in which claims can be filed. Therefore, defendant’s counterclaim under 31 U.S.C. § 3731(b) is not barred by the three-year statute of limitations. 2. Initiating the Six-Year Period Under the Statute of Limitations The next issue to consider is when the statute of limitations began to r L.Ed.2d 663 (1993); United States v. Incorporated Village of Island Park, 888 F.Supp. 419, 441-42 (E.D.N.Y.1995) (same); United States ex rel. Hartigan v. Palumbo Bros., Inc., 797 F.Supp. 624, 629 (N.D.Ill.1992) (same); United States ex rel. Duvall v. Scott Aviation, 733 F.Supp. 159, 161 (W.D.N.Y.1990) (<HOLDING>); Blusal Meats, Inc. v. United States, 638

holding that payment does not moot a confirmation request

holding that the term reverse payment is not limited to a cash payment

holding that it was not essential to an action by a supplier on a payment bond under the miller act that a demand be made on the general contractor for payment although there was evidence in the case from which it could be found that the materialman looked to the general contractor for payment since the statute does not require a demand for payment but merely requires written notice of the claim

holding that it is not

holding it is the payment and not the request which triggers the statute

4

wish to be mindful of in imposing a sentence over the loss of life of four Jewish people. I accept that you are a good friend, are a loving husband, and will prove to be a good father to your child as you have another child I understand. It is my sentence to downward depart by one year and impose a sentence of [double chai] 36 years, Florida state prison. While the appellant argues that the trial court abused its discretion in consideration of Jewish tradition and the use of chai, discretion is not involved. The essence of his claim, albeit obliquely made, is that the court used improper criteria in determining the extent of a downward departure. Although an appellate court generally may not review a sentence that is within statutory limits, an exception exists when the tr (Fla.2001) (<HOLDING>). In Nawaz, 28 So.3d at 125, the trial court

holding that any error in trial courts comparative negligence instruction was harmless where the jury found that both defendants were not negligent

holding that while it was error for the regular judge to disqualify himself for only the habitual phase of the trial the error was harmless

holding that any error was harmless and thus not plain error

holding that biblical references should not be used at sentencing but any error in the trial judges lone biblical reference in penalty phase of trial was harmless where jury was not exposed to the reference and the courts order stated that it did not consider any aggravators other than the two set forth in the order

holding that the trial judges misconduct at trial did not prejudice the defendant in light of the courts curative instructions

3

falls within the latter category because there is an express trust. LCC relies on the language in the bylaws and articles of incorporation for the Property Corporation, which states, in relevant part, that the purpose of the Property Corporation is “[t]o operate exclusively for the benefit of, and to carry out the purposes of the Lamont Christian Reformed Church, Coopersville, Michigan, or any church formed by a majority of the members of the Lamont Christian Reformed Church ....” Reliance on this language is only valid, however, as long as LCRC had the authority to set up the Property Corporation and transfer ownership of the church property to the Property Corporation. If LCRC had no such authority, the provisions of the Property Corporation are void. See Blankespoor, supra at 352 (<HOLDING>). Our determination whether LCRC had such

holding that once a local church submits itself to the authority of a hierarchical denomination provisions of the denominations constitution override inconsistent provisions in a local churchs articles of association

recognizing that provisions of the colorado constitution should be construed in the context of the constitution as a whole

holding that the hearing provisions of the ina supersede the provisions of the apa

holding that section 13c agreements do not override conflicting provisions of state law

holding that the venue provisions of the bankruptcy act were superseded by the local action doctrine

0

that it would not have any effect on Tecfidera sales, Rather, it alleges that defendants misrepresented and omitted the alleged substantial effect that the PML death was having on Tecfidera sales. The dispute is essentially one of degree, and the Court will not dismiss the claim on those grounds. 15 . The alleged misrepresentations in paragraphs 108, 113, and 131 of the complaint will be discussed in the section below concerning puffery. 16 . See also In re Apple Computer, Inc., 127 Fed.Appx. 296, 304 (9th Cir.2005) ("We have held the following similar statements to be non-actionable puffery: ‘We're doing well and I think we have a great future’; ... 'Old products are doing very well.’” (emphasis added)); In re Ubiquiti Networks, Inc. Sec. Litig., 33 F.Supp.3d 1107, 1133 (N.D.Cal.2014) (<HOLDING>). 17 . The statements at issue concern the

holding that the sentence was reasonable in part because it was well below the statutory maximum

holding how long and upon what terms a statecreated corporation may continue to exist is a matter exclusively of state power

holding that what is important is not simply that the element at issue is defined in terms of what it does but that the term as the name for a structure has a reasonably well understood meaning in the art

holding that a defendants sentence was reasonable in part because it was well below the statutory maximum

holding that defendants statement to analysts those countries all continue to do well for us was puffing in part because he omitted any mention of why how under what standard or compared to what those markets were doing well emphasis added

4

the detainee appears before a magistrate). Rather, the Fourth Amendment claim appears to be simply a repackaged claim for malicious prosecution. Our circuit doesn’t permit, this maneuver; we’ve held that a federal claim for malicious prosecution implicates (or at most may implicate) the right to due process, not the Fourth Amendment, and that no federal malicious-prosecution claim is available if state law provides a similar cause of action. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001). Indiana does provide a remedy for malicious prosecution, but the Indiana Tort Claims Act confers on public employees a broad immunity' from suit for acts committed within the scope of their employment. Ind. Code § 34-13-3-3(6); see also Serino v. Hensley, 735 F.3d 588, 593-95 (7th Cir. 2013) (<HOLDING>). We’ve held that this statutory immunity

recognizing the tort of intentional infliction of emotion distress for the first time in indiana

holding that act did not bar intentional infliction of emotional distress claim

recognizing the tort of intentional infliction of emotional distress

holding that intentional infliction of emotional distress is a personal injury tort

recognizing that the indiana tort claims act grants broad immunity to governmental employees from suit for malicious prosecution and intentional infliction of emotional distress

4

FCC must be filed “within 60 days after its entry.” 28 U.S.C. § 2344 (2000); see also 47 U.S.C. § 402(a). In this case, the petition for review was filed within 60 days of the Clarification but not within 60 days of the Supplemental Order. Respondent argues that it is timely only as to claims that arose from the Clarification, not as to ones essentially aimed at the Supplemental Order. But the Clarification radically changed the Supplemental Order in a way we have not yet mentioned. In the Supplemental Order the Commission said that it would issue a final decision on the EELs restriction in the Fourth Further Notice of Proposed Rulemaking (“FNPRM”), which notice “will occur on or before June 30, 2000.” Supplemental Order, 15 FCC Red 1760 at Comm’n, 720 F.2d 958, 961 (7th Cir.1983) (<HOLDING>). Here the initial order appeared to present

holding that in order to preserve an issue for review a party must make a timely and specific objection at trial

holding that the petitioner could demonstrate its constitutional standing for the first time on judicial review of an order of the land use board of appeals because the need to do so first arose when the petitioner sought to invoke the courts jurisdiction on judicial review

holding that a temporary order with no fixed time period had lasted so long as to make judicial review timely

holding that under the apa exhaustion is a prerequisite to judicial review when expressly required by statute or when an agency rule requires appeal before review so long as the administrative action is made inoperative pending that review

holding party must make timely and specific objection at trial to preserve issue for appellate review

2

a prima facie case. Second, the Court finds Defendant proffered a legitimate, non-discriminatory reason for terminating Plaintiffs employment, Plaintiffs repeated performance problems as a Kmart Store Manager, but Plaintiff failed to establish that this reason is merely a pretext for discrimination. Each shortcoming in the Plaintiffs case — his failure to establish a prima facie case and his failure to prove pret en as to three prongs of the prima facie case. He demonstrated he was born in 1950, and so was over age 40 when he was terminated in April 2010. (Complaint ¶ 7). He demonstrated he suffered an adverse employment action, when he was fired as a Kmart Store Manager. And he also presented evidence that he was replaced by two significantly younger employees — first (3d Cir.1995) (<HOLDING>). Plaintiffs problem is that he has failed to

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

holding that when a 56year old employee was replaced by a 40year old employee this qualified as someone substantially younger for the purposes of establishing a prima facie case

holding that the fourth prong of a prima facie age discrimination case was satisfied where plaintiff was replaced by two individuals one who was four years younger than plaintiff and the other who was ten years younger

holding that a plaintiff in a discrimination case need not demonstrate that she was replaced by a person outside her protected class in order to carry her burden of establishing a prima facie case

holding when an employee was temporarily replaced by a person who was 10 years younger and permanently replaced by a person four years younger this was sufficient for the prima facie case

4

Assessment (“EA”) rather than a more extensive Environmental Impact Statement (“EIS”), which is normally required for “major Federal actions significantly affecting the quality of the human environment.” Tree Boa, 918 F.Supp. at 891-92. Judge Finch concluded that the plaintiffs’ had failed to demonstrate a likelihood of success on the merits of this claim, because, as FEMA had adequately considered the environmental impact of the housing project and provided for mitigation measures to reduce “to an insignificant level” any adverse effects on the Tree Boa, its Environmental Assessment satisfied NEPA’s requirements. In disposing of plaintiffs’ ESA claims in turn, Judge Finch concluded that FEMA and FWS had conducted an adequate § 7 consultation, as requir d 1396, 1399 (3d Cir.1990) (<HOLDING>); Restatement of Judgments, supra, § 20, cmt.

holding that denial of amendment is within discretion of trial court

recognizing such limitations in dicta

holding that everything after denial of jurisdiction is dicta pure and simple

recognizing that alternative holdings are not dicta

recognizing that supreme courts conclusion was pure dicta but following it because it would be imprudent for us to ignore it

2

in the law. See Restatement (Third) of Agency § 1.01 (2006) (defining agency as “the fiduciary relationship that arises when [a principal] manifests assent to [an agent] that the agent shall act on the principal’s behalf and subject to the principal’s control”). Moreover, as discussed below, the Court concludes on the pleadings before it that there is no basis to hold IBM liable under theories of respondeat superior or vicari ous liability for the actions of the John Doe defendant, even if the attacks were actually carried out by an IBM employee or agent. Under District of Columbia law, an employer cannot be held liable for its employees’ intentional conduct solely on the basis of an employer-employee relationship. See Haddon v. United States, 68 F.3d 1420, 1424 (D.C.Cir.1995) (<HOLDING>) (citation omitted); see also Keys v. Wash.

holding that section 1220 provides an exclusive remedy for tort like actions against an insurer

holding that an employer who commits an intentional tort against his employee cannot claim that the act was accidental so that workers compensation is the employees exclusive remedy

holding improper conduct to be an element of the tort of intentional interference with an advantageous business relationship

holding that it is not enough that an employees job provides an opportunity to commit an intentional tort

holding in an employees action to recover for injury sustained during work against the employer and other defendants did not state an intentional tort claim against contractor

3

by the Court.” As discussed above, we generally will consider an issue waived that is not raised by the appellant. Chase, 9 A.3d at 1256. It is also true, however, that the trial justice assumed, without deciding, an element of a claim in a summary judgment proceeding, which we have held is “consistent with the summary judgment standard of viewing all facts in the light most favorable to the non-moving party, here, [the] plaintiff.” See Daniels v. Fluette, 64 A.3d 302, 305 (R.I.2013). We consistently have agreed with the United States Supreme Court that a plaintiffs burden to establish a prima facie ease of discrimination is “not especially onerous.” See Barros, 710 A.2d at 685; see also St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (<HOLDING>); McGarry, 47 A.3d at 280. In Daniels, 64 A.3d

holding that the burden of establishing prima facie case of discriminatory treatment may be satisfied by minimal showing

holding that a prima facie case is subject to independent review

recognizing that a plaintiffs burden in establishing a prima facie case is not onerous

holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence

holding that in title vii disparate treatment case in order for a plaintiff to establish a prima facie case the plaintiff must proffer evidence among other things that she performed her job according to her employers legitimate expectations if the plaintiff establishes the prima facie case the presumption shifts the burden to the employer to produce a legitimate nondiseriminatory reason for its actions

3

subject matter jurisdiction of a bankruptcy court and must be tried in the district court. See Adams v. Cumberland Farms, Inc., No. 95-1736,1996 WL 228567, *2 (1st Cir. May 7, 1996) (“[T]he specific provisions in question, viz 28 U.S.C. §§ 157(b)(2)(B) and 157(b)(5), strictly limit the authority of bankruptcy judges with respect to personal injury and wrongful death claims.”); In the Matter of Grabill Corp., 967 F.2d 1152, 1153 (7th Cir.1992) (“Section 157(b)(5) requires that such actions be tried in the district court.”); Hansen v. Borough of Seaside Park (In re Hansen), 164 B.R. 482, 485-86 (D.N.J. 1994) (“Pursuant to the express terms of 28 U.S.C. § 157(b)(5), bankruptcy courts do not have subject matter jurisdiction over personal injury tort causes of action 62 (Bankr.E.D.Mo.1991) (<HOLDING>); Vinci v. Town of Carmel (In re Vinci), 108

holding that a negligence claim is not a personal injury tort claim

holding that racial discrimination is not a personal injury tort

holding that sexual harassment is a personal injury tort

holding that age discrimination is not a personal injury tort

holding that racial discrimination is a personal injury tort

3

'550 patent would have greater than 75% of its copolymer-1 molecules, on a molar fraction basis, having molecular weights between 2,000 and 20,000 daltons. To establish inherency, Mylan must prove that an attribute is necessarily present each time the prior art is practiced. See Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1295 (Fed.Cir.2002) (“Inherent anticipation requires that the missing descriptive material is ‘necessarily present,’ not merely probably or possibly present, in the prior art.”). Against this standard, citing a few examples where overlap might occur is legally insufficient to establish that the claimed molar fractions inherently overlap with the molar fractions of the prior art. See also Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1047-48 (Fed.Cir.1995) (<HOLDING>); W.L. Gore & Assocs. v. Garlock, Inc., 721

holding that the one challenging the patent must in part show that the subject matter of the sale or offer to sell fully anticipated the claimed invention or would have rendered it obvious by its addition to the prior art

holding that the second pfaff prong is satisfied despite no actual completion of such software provided that there is a disclosure that is sufficiently specific to enable a person skilled in the art to write the necessary source code to implement the claimed method

holding no inherent disclosure of claimed crystalline polymorph by prior art patent where practicing disclosed prior art method could produce claimed polymorph or alternative unclaimed polymorph

holding that after reading the patent a person of skill in the art would not understand the patentee to have invented a generic method where the patent only disclosed one embodiment of it

holding that the moving party must show prior art references which alone or combined with other references would have rendered the invention obvious to one of ordinary skill in the art at the time of the invention

2

of Torts § 64(a) was adopted here, Plaintiff would still be entitled to judgment as a matter of law pursuant to the undisputed facts in this case because the higher burden is met under the RESTATEMENT (SECOND) OF TORTS § 428. The Court leaves this difficult question to the discretion of the Supreme Court, but highlights that the Second and Third Restatement provisions regarding a contractor’s nondelegable duties must be analyzed as a collective scheme which attempts to consolidate the application of these many nuanced and overlapping common law principles. 56 Black’s Law Dictionary, Instrumentality (9th ed. 2009) (“A thing used to achieve an end or purpose.”). 57 Restatement (Second) of Torts § 428 cmt. a (emphasis added). 58 See Reith, 22 Ill. App. 3d 337, 317 N.E.2d 369, 373 (1974) (<HOLDING>); See Williamson 265 S.W.2d 354. 59 Plaintiff’s

holding that insurance company operating under a reservation of rights had the right and the duty to control the defense until such time as it was determined that it had no liability insurance coverage

recognizing the debtorinpossessions duty to file records and operating reports

holding highlow settlement agreement between estate and company was not a mary carter agreement and it was not erroneous to have allowed the company to participate in the trial or by failing to disclose the agreement to the jury

holding that a customer has no reasonable expectation of privacy in dialed telephone numbers which were conveyed to the telephone company

recognizing a telephone company operating under a franchise agreement as holding a nondelegable duty to the public

4

legal rights between domestic and foreign claimants should no longer be a factor justifying the separate classification of such claims. In any event, most, if not all, of the foreign claims would likely be subject to forum non conveniens dismissal. See, e.g., Ashley, 887 F.Supp. 1469 (granting Dow Coming’s forum non conveniens motion as to 151,194 Australian, Canadian and British breast-implant plaintiffs). See also Piper Aircraft, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (discussing factors to be considered when deciding forum non con-veniens motion); Gschtvind v. Cessna Aircraft Co., 161 F.3d 602 (10th Cir.1998); Torres v. Southern Peru Copper Corp., 113 F.3d 540 (5th Cir.1997); Magnin v. Tele-dyne Continental Motors 91 F.3d 1424 (11th Cir.1996); but see Bhatnagar, 52 F.3d 1220 (<HOLDING>). Thus far, the only foreign breast-implant

recognizing that where plaintiff is from the forum state and defendant is from an alternate forum each forum can claim a connection to one of the parties

holding that florida courts should always consider this third step of the forum non conveniens inquiry even if the private factors weigh more heavily in favor of the alternative forum and should require that the balance of public interests also be tipped in favor of the alternative forum in order to defeat the presumption favoring the plaintiffs forum choice

holding mexico to be available and adequate forum after rejecting arguments that forum was inadequate due to restrictions on discovery and damages

holding that extreme delay in the alternative forum can render that forum inadequate

holding that a permissive forum selection clause containing a waiver of any claims of forum non conveniens amounts to a mandatory forum selection clause at least where the plaintiff chose the designated forum

3

require the same proof and level of preparation as those in Premier’s first amended answer. The Sellers’ proposed counterclaims seek much greater and varied damages than Premier’s counterclaims. In addition, the facts underpinning Premier’s counterclaims are distinct from those needed to sustain the Sellers’ proposed counterclaims. To allow the Sellers’ amendments now would unfairly obligate the Buyers to defend against these belated counterclaims, causing them to incur significant additional expenses by extending an already protracted discovery period. Given that the trial of this matter is less than two months away, to allow the proposed amendments at this late stage would impose undue hardship on the Buyers. See, e.g., Serrano Medina v. United States, 709 F.2d 104 (1st Cir. 1983) (<HOLDING>); DeBry v. Transamerica Corp., 601 F.2d 480

holding that erroneous admission of improper and prejudicial evidence did not require reversal because the jury would have returned a verdict of guilty against the defendant even without the prejudicial testimony

holding that where a plaintiff is unaware of the identity of alleged defendants plaintiff should be given an opportunity through discovery to identify the unknown defendants unless it is clear that discovery would not uncover the identities or that the complaint would be dismissed on other grounds

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

holding that entry of summary judgment while a motion for additional discovery was pending should be construed as an implicit denial of the motion for additional discovery

holding that an eleventhhour amendment that would require extensive additional discovery would be prejudicial to the defendants

4

request for discovery. It asserts that Elliott failed to demonstrate good cause for such discovery because the Commonwealth provided him with a copy of a report concerning Nardone’s death, and Elliott fails to indicate what further documents exist to support his claim. The PCRA court’s ruling is supported by the record and is free from legal error. As recognized by the PCRA court, appellate courts review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136 (2007). A trial court may exclude evidence that is irrelevant to the issues presented. Evidence is not relevant “unless the inference sought to be raised by it bears upon a matter in issue and renders the desired inference more probab , 647 (1996) (<HOLDING>). Accordingly, appellate counsel cannot be

holding that evidence should be excluded where the likelihood that it would confuse the jury and protract the proceedings outweighs its probative value

holding that the trial court properly excluded evidence relating to a purported additional suspect where the evidence was speculative and had little or no probative value

recognizing the probative value of objective and reliable hearsay evidence

holding that where the commonwealth presented no evidence linking appellant to injuries such evidence had no probative value to the commonwealths theory of the case

holding that the trial court properly excluded evidence that other persons had a motive to kill the victims because inter alia such evidence was speculative

1

existence of an extra-contractual duty between the parties, giving rise to a cause of action in tort separate from one based on the contract itself. The plaintiffs do not argue that their negligence claim falls into one of the three recognized exceptions, but they attempt to fashion a duty from the note-and-mortgage contract, from common law, and from GMAC Mortgage’s obligations under RES-PA. See PI. Reply Br. 8-15. However, each duty that the plaintiffs identify has its root in the note-and-mortgage contract itself. No matter GMAC Mortgage’s failings, the contract itself cannot give rise to an extra-contractual duty without some showing of a fiduciary relationship between the parties. See Judd v. First Federal Sav. & Loan Ass’n of Indianapolis, 710 F.2d 1237, 1241-Í2 (7th Cir.1983) (<HOLDING>); Ploog v. HomeSide Lending. Inc., 209

holding an employee manual did not create contract restricting the employmentatwill relationship

holding under indiana law that mortgage contract did not create a trust requiring the mortgagee to account to the mortgagors as beneficiaries nor did it transform a traditional debtorcreditor relationship into a fiduciary relationship

holding that relationship between executor and estates beneficiaries is one that gives rise to fiduciary duty as matter of law

holding that while the contract did not establish a formal fiduciary relationship the pleadings were sufficient to raise an issue as to the existence of an informal one

holding that a mortgagee could enforce mortgage covenants requiring the mortgagors to keep the property free of encumbrances even after it foreclosed by advertisement and purchased the property for the full amount of the mortgage debt because the mortgage covenants concerned title to the mortgaged property rather than repayment of the debt

1

in attorney’s fees, but, as a result of settlements, the amount presently in dispute is $265,948.41. Similarly, the total cubic yards taken were initially 248,296; on account of the settlement, the total cubic yards still in dispute have been reduced to 196,808. These revised figures are reflected in the Decree, post. 4 . See La. Const. art. 6, §§ 1, 38 (recognizing parishes and levee districts as political subdivisions of the State). 5 . La. Const. art. 1, § 4(G) was added after the taking involved in this case and does not apply on that account. 6 . La. R.S. 29:721 et seq. 7 . The Supreme Court prospectively overruled St. Julien in Lake, Inc. v. La. Power & Light Co., 330 So.2d 914 (La.1976). See also City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 977 (La.1981) (<HOLDING>). The Louisiana Legislature responded to this

holding that lake only overruled st julien prospectively

holding that schlitz was overruled to that extent

holding that almendareztorres was not overruled by apprendi

holding that the act applies prospectively to complaints filed after its effective date

holding new statute applicable only prospectively

0

as in this case acted in a manner that did not comply with the man date of Criminal Rule 5 which requires trial courts to arrange and provide for the recording of objections. Perryman asserts that “possible objections at trial were needlessly lost for direct appeal purposes without counsel’s knowledge, and Perry-man therefore could not have had a fair trial.” Id. at 30. He argues that his “ability to appeal any error regarding objections and trial court rulings at his trial was severely compromised because most of those bench conferences and rulings are nonexistent in his trial record, and [he] could not appeal what does not exist, which is the prejudice to [him] in this matter.” Id. The State argues that this issue is unavailable for post-conviction proceedings because many “ina ) (<HOLDING>), reh’g denied, cert. denied, 534 U.S. 1136,

holding that claims including constitutional claims must be asserted in trial court to be raised on appeal

holding that freestanding claim that the trial court committed fundamental error in giving a jury instruction after deliberations had begun was unavailable in postconviction proceedings

holding claims must be raised on direct appeal or waived

holding that postconviction procedures do not provide a petitioner with a superappeal or opportunity to consider freestanding claims that the original trial court committed error and that such claims are available only on direct appeal

holding that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through postconviction proceedings

3

the “lawyer and investigator had no authority ... to allow the vehicle to be destroyed, or to abandon a potential products liability claim.” Whether and to what extent an attorney-client relationship is present is a question of fact. See Dietz v. Doe, 131 Wash.2d 835, 935 P.2d 611, 615 (1997); Admiral Merchants Motor Freight Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 265 (Minn.1992). In identifying the conduct of the first attorney and the investigator as a basis of its order, the circuit court implicitly found that an attorney-client relationship, or some other fiduciary relation, existed between Stender and her first attorney and that the relationship included representation with respect to the accident. See generally Otaka, Inc. v. Klein, 71 Haw. 376, 382, 791 P.2d 713, 717 (1990) (<HOLDING>). We review circuit court findings of fact

recognizing special trust and confidence that must exist between attorney and client citations omitted

holding that a statutorilyimposed fiduciary obligation created an express trust fiduciary relationship for purposes of 523a4

holding that there is no right to a meaningful attorneyclient relationship

holding that there may be an obligation to defend under an insurance policy even though there is no obligation to indemnify

recognizing that where there is no express attorneyclient relationship there may exist nevertheless a fiduciary obligation or an implied professional relation citations brackets and ellipsis omitted

4

For the foregoing reasons, we conclude that the trial court was without jurisdiction to try defendant on the larceny charge and that it erred in denying defendant’s motion to dismiss the felony breaking or entering charge. Because there was sufficient evidence to sustain a conviction for misdemeanor breaking or entering, we remand for entry of judgment and resentencing on that offense. VACATED, in part; REVERSED, in part; and REMANDED. Judges STEPHENS and McCULLOUGH concur. 1 . See, e.g., State v. Cook, 242 N.C. 700, 703, 89 S.E.2d 383, 385 (1955) (evidence sufficient to preclude inference where the defendant did not flee when discovered, explained that he was looking for a particular person, and left when requested), State v. Moore, 62 N.C. App. 431, 434, 303 S.E.2d 230, 232 (1983) (<HOLDING>), State v. Humphries, 82 N.C. App. 749, 751,

holding that evidence of the same rather unusual name that the former conviction was in same county and city as the present case where evidence showed defendant lived and that the character of offenses was the same was sufficient to establish identity

holding that the rule 404b evidence admitted to prove intent was clearly relevant because intent was at issue in the trial

holding that a defendant owed no duty to a plaintiff with regard to the safekeeping of evidence because there was no promise by the defendant or its employees to inspect or safeguard the evidence for the plaintiffs benefit and destruction of physical evidence was not criminal because destruction was innocent and designed to ensure the safety of the defendants employees

holding that the evidence was insufficient to show intent to steal if the evidence showed only possession of the materials as a normal incident of employment

holding that there was sufficient evidence of innocent intent where both the states and defendants evidence showed that the defendant was coerced at knifepoint to enter

4

of Plaintiffs’ negligence claims. Further, the complained-of acts that allegedly caused the decedent’s emotional distress and pain and suffering took place prior to his death, and the decedent eould have filed an FHA claim before he died. Even in the “unusual” event where the emotional distress and pain and suffering occurred at a time close to his death, following the Eleventh Circuit’s reasoning in Estate of Gilliam, the Court finds that the operation of Florida’s survival law to preclude recovery for the decedent’s pain and suffering and emotional distress under'the FHA in this case is not inconsistent with the purposes of the FHA, which is remedial in nature. See Walters v. Cowpet Bay W. Condo. Ass’n, No. CV 2012-24, 2012-25, 2013 WL 2988021 at *5-*6 (D.V.I. June 14, 2013) (<HOLDING>).-’ Plaintiffs’ reliance on Ambmster does not

holding that a wide application was required given the legislative intent for the remedial provisions of the act

holding that the provisions of the federal fair housing act 42 usca 36013631 1977 which are similar to the provisions in the dade county code are not penal in nature or effect

holding that fha claim survives death of a defendant because the provisions are remedial not penal

recognizing that because the drafters of the connecticut penal code relied heavily upon the penal code of new york it is appropriate to look to new york statutory and case law for guidance in interpreting connecticut penal code

holding that such provisions are valid

2

child a FAPE, it was incumbent on them to bring that to the school’s attention via the available statutory mechanisms,” and on that basis denied relief. (J.A. at 179.) In this connection, the district court noted that “[s]chool boards must be given adequate notice of problems if they are to remedy them, and must be given sufficient time to respond to those problems before they can be held liable for failure to act.” (J.A. at 179-80 (citing Combs, 15 F.3d at 363-64).) Several of our sister circuits have concluded that an award of “compensatory education” — educational services ordered by the court to be provided prospectively to compensate for a past deficient program — may be “appropriate relief’ under the IDEA. See, e.g., Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 249 (3d Cir.1999) (<HOLDING>); Board of Ed. of Oak Park & River Forest High

recognizing appropriateness of compensatory education award and holding that plaintiff was entitled to recover compensatory education if she prevailed in her claim that she was denied a fape for several years

recognizing appropriateness in some circumstances of award of compensatory education beyond age 21 and re manding for determination of whether it should be awarded

recognizing that family court cannot eliminate compensatory part of maintenance award

holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages

recognizing equitable nature of back pay award under age discrimination in employment act

1

to the driver, Paul Roach. The rental contract stated that no other drivers were permitted. Ramirez was injured when Roach struck her with the rental car and she obtained a default judgment against him. Ramirez then sued State Farm in an attempt to recover the judgment. Ramirez first contends that the district court erred in holding that the rental car was not a “temporary substitute car” covered by the policy. A “temporary substitute car” as defined in the policy is a car replacing a car that is unable to be used. This rental car was intended to be an additional car to serve the convenience of the renter. It was not a “temporary substitute car” within the meaning of the policy. See State Farm Mut. Auto. Ins. Co. v. O’Brien, 14 Cal.3d 96, 98-99, 120 Cal.Rptr. 692, 534 P.2d 388 (1975) (<HOLDING>). Ramirez next contends that the district court

holding that surrounding drivers use of caution to avoid the appellants weaving vehicle did not render the weaving safe

holding the drivers refusal to consent to search of automobile did not give rise to reasonable suspicion that vehicle contained narcotics

holding that drivers decision to use alternate vehicle to avoid inconvenience of stopping at gas station did not render vehicle temporary substitute

holding that conviction for unauthorized use of vehicle merges with conviction for theft of same vehicle

holding automobile exeeption did not apply to warrantless search of vehicle where vehicle was not readily mobile because the vehicle was legally parked in parking lot occupants of vehicle were seated on a bench in the playground near the parking lot police officers surrounded the vehicle and the driver of the vehicle was handcuffed for safety purposes

2

639 (1980). However, a warrantless entry into a home may be justified if (1) the police have probable cause, and (2) exigent circumstances exist that make procurement s entry into the house did constitute an illegal search, we nonetheless find that the trial court did not abuse its discretion by denying appellant’s motion to suppress. Under the Fourth Amendment, evidence will not be excluded as “fruit of the poisonous tree” unless the alleged illegality is at least the “but for” cause of the discovery of the evidence. State v. Guo, 64 S.W.3d 662, 667 (Tex. App. — Houston [1st Dist.] 2001, no pet.). In other words, suppression of evidence is not required unless “the challenged evidence is in some sense the product of illegal governmental activit —Houston [14th Dist.] 1999, no pet.) (<HOLDING>). Because the warrantless entry was not even

holding that where information obtained from illegal warrantless search of a briefcase was used to establish probable cause for the warrant to search briefcase evidence obtained pursuant to the warrant was properly suppressed

holding that evidence obtained from a search made subsequent to an illegal stop was admissible when before the search the police officer discovered that there was an outstanding arrest warrant for the defendant and the defendant was thereupon arrested pursuant to that warrant

holding that because evidence supporting search warrant was illegally obtained evidence recovered by executing warrant was fruit of the illegal search

holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises

holding that evidence obtained from valid search warrant did not violate constitutional due process provisions

2

and DeBoom did provide other evidence linking her termination to her pregnancy. DeBoom presented evidence to support an inference of discrimination and rebut the legitimate nondiscriminatory reason for termination that Raining Rose put forth. First, DeBoom presented evidence of the circumstances of her termination. Raining Rose admitted it made the decision to terminate DeBoom sometime between the day she returned to work part-time and the day she was fired. DeBoom may fairly argue the termination decision was made before any of her alleged performance problems. Additionally, DeBoom provided evidence she was never notified of or disciplined for substandard performance prior to her termination whereas other employees received a warning before termination. See Smidt, 695 N.W.2d at 15-16 (<HOLDING>). Second, DeBoom presented statements from

holding that a reasonable trier of fact could find that the defendants acted with malice

holding a trier of fact could choose not to believe the employers afterthefact justifications where the employer failed to produce documentation of poor performance

holding that issues of discriminatory intent and actual motivation are questions of fact for the trier of fact

holding that on a review of the sufficiency of the evidence the court determines whether any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt

holding that a plaintiff s prima facie case combined with sufficient evidence to find that the employers asserted justification is false may permit the trier of fact to conclude that the employer unlawfully discriminated emphasis added

1

have a legitimate claim of entitlement which invokes procedural due process); Wright v. Califano, 587 F.2d 345, 354 (7th Cir.1978) (“[Benefit] denials do not necessarily deserve less due process than terminations.”); Daniels v. Woodbury Cnty., Iowa, 742 F.2d 1128, 1132 (8th Cir.1984) (refusing to distinguish between applicants and recipients when analyzing the due process requirements for determining eligibility for Iowa welfare benefits); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.1990) (“An applicant for social security benefits has a property interest in those benefits.”); Ressler v. Pierce, 692 F.2d 1212, 1214 (9th Cir.1982) (affirming that applicants for federal rent subsidies are entitled to due process protection); Griffeth v. Detrich, 603 F.2d 118, 119 (9th Cir.1979) (<HOLDING>); see also Cook v. Principi, 318 F.3d 1334,

holding that whether children are legitimate for purposes of entitlement to insurance benefits is determined by state law

holding that applicants for welfare benefits had a property interest or legitimate claim of entitlement and were entitled to due process to protect that interest

holding that entitlement to benefits is a property interest protected by the due process clause of the fifth amendment to the united states constitution

holding that sovereign immunity does not protect the state from claims for statutory employment benefits that constitute a protected property interest

holding that the federal due process clause protects a state employee who under state law has a legitimate claim of entitlement to state employment

1

398, 407 (Alaska 1976) (citations omitted). 23 . Rollins v. State ex rel. Municipality of Anchorage, 748 P.2d 767, 771 (Alaska App.1988) (citing Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980)). 24 . Bayless & Roberts, 548 P.2d at 407 (citations omitted). 25 . Id. at 400. 26 . "|T]he contradiction of my findings” is a reference to the letter the board wrote and sent out to the members with the copy of the court’s attorney's fees award. The letter the board wrote expressed, among other things, the board's disagreement with the court’s April 6 order and attorney's fees award. 27 . Continental Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); Carter v. Brodrick, 750 P.2d 843, 845 (Alaska App.1988). 28 . Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997) (<HOLDING>); see also Virgin v. Virgin, 990 P.2d 1040,

holding that when evidence did not prove dependency of child as alleged in complaint but revealed pure custody dispute juvenile court was without jurisdiction to determine custody of child

holding the trial court did not abuse its discretion in finding the best interest of the children require the continuation of primary physical custody with defendant and secondary custody with plaintiff and the trial court failed to make sufficient findings of fact and conclusions of law for this court to determine whether the guidelines were followed

holding in child custody context that court not required to make wrapup finding

holding that juvenile court that determined child was not dependent had no jurisdiction to thereafter determine custody of child

holding that personal jurisdiction is not required to make an outofstate parent a party to custody action where the state court has subject matter jurisdiction under the uniform child custody jurisdiction act

2

Cir.2002) (citing cases); United States v. Jones, 159 F.3d 969, 974-75 (6th Cir.1998) (same; finding probable cause to search the suspect’s residence though he was not seen selling drugs there but on the premises). When coupled with the anonymous tips, and the muriatic acid, and the fundamental fact that Defendant could not manufacture methamphetamine in the United States Post Office, the affidavit showed a fair probability that Defendant did so at his home. See United States v. Higgins, 557 F.3d 381, 389 (6th Cir.2009) (stating that “[t]he Fourth Amendment requires that a warrant must be supported by probable cause, i.e. a fair probability that contraband or evidence will be found in a particular place”) (internal quotation marks and citation omitted); cf. Carpenter, 360 F.3d at 594 (<HOLDING>). Alternatively, as the United States asserts,

holding that no federal nexus is required

holding that an affidavit describing a marijuana field near the residence to be searched and a road between failed to establish the required nexus between the premises and the criminal activity

holding that for recovery under the mississippi tort claims act to be barred because of a victims criminal activity at the time of the injury it must beshown that the criminal activity has some causal nexus to the wrongdoing of the tortfeasor

holding that a nexus between the corporate officers or directors official activity and the matter for which indemnification is sought must be shown though no more than a nexus whether a nexus exists is a question of fact to be determined by the trial court considering all the circumstances surrounding the proposed indemnification

holding that there must be a causal connection between the advertising activity and the injury alleged in the underlying complaint

1

U.S. Dist. Ct. for Dist. of Colo., 758 F.2d 1362, 1364 (10th Cir.1985); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (deciding district court has inherent authority to control admission to its bar). The Disciplinary Panel adhered to the court’s own rules in denying Mr. Smith readmission. See Mattox, 758 F.2d at 1364 (stating that proper question on appeal is “whether the district court has adhered to its own rules”). Mr. Smith has not been reinstated to the Colorado Supreme Court and his membership in that bar is required before he can be reinstated to the district court’s bar. The district court therefore did not abuse its discretion in denying his petition for reinstatement. Cf. In re Kandekore, 460 F.3d 276, 280 (2d Cir.2006) (per curiam) (<HOLDING>). Nor did the district court abuse its

holding that if the trial court would have had no discretion to deny summary judgment on an alternative ground the appellate court can on that alternative ground sustain the order granting summary judgment

holding that neither the new york location of the terrorist attack giving rise to the policyholders claim nor the new yorkbased claims adjustor rendered new york the locus of operative facts because new york was not the site of the contracts execution

recognizing forum selection clause providing that no such claim shall be commenced prosecuted or continued in any forum other than the courts of the state of new york located in the city and county of new york or in the united states district court for the southern district of new york as clear and unambiguous expression of parties selection of exclusive forum in affirming district courts dismissal of action commenced in united states district court for the district of new jersey

holding that the district court did not abuse its discretion in denying his petition for reinstatement where membership in good standing in the state bar was required before attorney could be admitted to the federal bar and applicant had not been readmitted to state bar

holding that the district court could properly deny attorneys readmission on the ground that he had not been readmitted to the bar of the state of new york

4

workers’ compensation awards whether by agreement or adjudication are final unless the Department reserves jurisdiction.” Id. ¶ 9, 575 N.W.2d at 229 (citations omitted). Further, we noted that “we have recognized in various circumstances an abiding exception to the general rule of finality.... As early as 1921 this Court held that besides fraud and misrepresentation, ‘equitable grounds’ may be sufficient to set aside a release.” Id. ¶ 10, 575 N.W.2d at 229. [¶ 17.] St. Paul’s reliance on Sopko is misplaced. A review of Sopko and the cases cited therein, reveal that they all dealt with the setting aside of a release based upon foreseeability of future injuries; that is not the question at issue we are facing in this case. See Mills v. Spink Elec. Coop., 442 N.W.2d 243, 245-46 (S.D.1989) (<HOLDING>); Novak v. C.J. Grossenburg & Son, 89 S.D. 308,

holding that trial counsel was not ineffective when he failed to introduce defendants prior consistent statement statement was not admissible because it was made after defendant had been arrested clearly not a time when the effect of the statement could not have been foreseen

holding that the plaintiff filed suit within the statute of limitations even though he could not prove the time at which he mailed his petition

holding the alj does not have to specifically refer to every piece of evidence so long as the decision is not a broad rejection that is insufficient to permit a court to conclude that the alj considered the claimants medical condition as a whole

holding the waiver ineffective because claimants medical condition could not have been anticipated or foreseen at the time he executed the settlement

holding that the petitioner in that case could not invoke the protections provided by miranda including the right to counsel because he was not in custody at the time he stated t think i need a lawyer

3

Testimonial Privilege Underwood argues that, even if the child-abuse exception applies, the district court violated due process when it failed to affirmatively find that Cora knew she had a voluntary right to refuse to testify. Underwood cannot raise this claim. The witness-spouse alone has a privilege to refuse to testify adversely. Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). Therefore, Underwood holds no right to the privilege and thus lacks standing to raise the issue on appeal. See United States v. Anderson, 39 F.3d 331, 350 (D.C. Cir. 1994) (finding defendant-spouse without standing to contest a district court’s decision to compel the spouse to testify) (vacated on other grounds); United States v. Lofton, 957 F.2d 476, 477 n.1 (7th Cir. 1992) (<HOLDING>); Grand Jury Subpoena of Ford v. United States,

holding that lofton would have no standing to appeal the district courts determination that his wife waived her spousal testimonial privilege

holding individual standing issue waived

holding the government waived its argument on appeal that the defendant did not have standing to challenge a search when it failed to raise the argument to the district court

holding that a district courts determination as to the applicability of a privilege is reviewed for clear error

holding trial court erred in finding purported wife unavailable to testify and admitting her sworn prior statements in lieu of her live testimony where record did not support courts ruling in light of its own finding that remarriage of wife and defendant was fraudulent and wife did not refuse to testify if claim of privilege was denied

0

opinion in our case, however, reaches the opposite conclusion — holding that a Bivens remedy is unavailable to undocumented immigrants challenging stops and arrests in violation of the Fourth Amendment. Because I disagree with the panel’s analysis and believe that the decision to take the extraordinary step of denying Bivens remedies for routine traffic stops and arrests to an entire class of people warrants review by the entire court, I respectfully dissent from the denial of rehearing en banc. 1 . The panel’s opinion refers to foreign nationals present in the United States without lawful immigration status as “illegal aliens”; I choose to refer to these individuals as "undocumented immigrants” instead. 2 . See Martinez-Aguero v. Gonzalez, 459 F.3d 618, 620-21, 625 (5th Cir.2006) (<HOLDING>). The panel’s justification for ignoring Fifth

holding that excessive force by a school official should be analyzed under the fourth amendment

holding that a mexican national who alleged that she had been illegally arrested and beaten by a border patrol agent may bring a bivens claim for unlawful arrest and the excessive use of force under the fourth amendment

recognizing that the fourth amendment protects against the use of excessive force by police officers in carrying out an arrest

holding that excessive force claims are to be treated under the fourth amendment

recognizing aliens bivens claim for damages under the fourth amendment against the chief border patrol agent arising from the us border patrol buffalo sectors policy which rewarded usbp buffalo sec tor agents with cash vacation time and gift cards for high arrest numbers but not for the legality of arrests

1

in their own behalf to establish that their co-defendant, Winn-Dixie, had the primary responsibility for any negligence — not G & I or Equity One. Respondents contend that trial counsel’s testimony will be adverse to his own client insofar as she is claiming negligence on their part. In Arcara, we quashed an order of disqualification because the opposing party, rather than the client, intended to call the lawyer as a witness. 574 So.2d at 326. “The requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.” AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 680 (Fla. 2d DCA 2006); see also Devins v. Peitzer, 622 So.2d 558, 558 (Fla. 3d DCA 1993) (<HOLDING>). A conflict requiring disqualification,

holding that counsel was not deficient in failing to call a witness where the defendant never provided the witnesss name to counsel and no evidence existed that counsel had any notice of the witnesss identity

holding that an adverse inference cannot be drawn from a defendants failure to call a witness if the states evidence establishes that the witness is an accomplice who would be entitled to assert a fifth amendment privilege

holding that the failure of defense counsel to call a corroborating witness resulted in prejudice to the defendant

holding that the clients right to its chosen counsel superseded the opposing partys right to call that counsel as a witness when there were other witnesses available to testify to the same facts

holding that defendants announced intention to call plaintiffs counsel as a witness is not a basis for disqualification

4

College Corp. v. W.R. Grace & Co., the Eighth Circuit stated, There is some question whether a putative class member can enjoy the benefits of tolling merely by opting out, even though the class action is still pending. The Supreme Court, in dicta has intimated as much, even though that is not the language of American Pipe or Crown, Cork & Seal. 999 F.2d 326, 332 n. 6 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994). But see Adams Public Sch. Dist. v. Asbestos Corp., Ltd., 7 F.3d 717, 719 n. 1 (8th Cir.1993) (“The fact that this participation ended with a decision to ‘opt out’ rather than with denial of class certification is irrelevant to the applicability of the American Pipe rule.”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir.1985) (<HOLDING>). In this diversity suit, a federal court must

holding that the filing of a class action by a class representative without standing tolls the period of limitations with regard to all asserted members of the class and that the amendment of the complaint by the addition of a class member with standing relates back to the original complaint

holding that no class member may opt out of a rule 23b1 class action

holding that a class plaintiff who seeks to assert statutory rights to protect a class of which he is a member is not asserting rights antagonistic to any members of that class

recognizing cause of action by class member against class counsel for negligence in providing notice

holding that limitations period begins running anew from the date when the class member exercises the right to opt out because before this time the class member is deemed to be actively prosecuting her rights

4

To the contrary, in an order entered 28 February 2006, the court specifically retained jurisdiction “for further orders.” We conclude that the trial court had exclusive, continuing jurisdiction to enter the order terminating respondent’s parental rights after jurisdiction attached on 28 March 2003, when the North Carolina court entered an order as to the custody of H.D. Since jurisdiction under the UCCJEA is exclusive and continuing, the courts of North Carolina still had jurisdiction over H.D. to enter an order terminating respondent’s parental rights, even though H.D. resided in Alabama with the custodial guardians, because the requisites of “substantial connection” jurisdiction pursuant to Section 201 were met. This assignment of error is overruled. II: Motions to Dismiss In (2007) (<HOLDING>). We follow the reasoning of B.D. and W.L.M.

holding that temporary order amounted to order modifying custody of children because language changed custody for an indefinite period

holding that dss was estopped to argue that the respondent mother was competent to surrender her children when dss had previously argued that she was so mentally ill that she could not care for her children

holding that the uccja applied to a california child custody order granting temporary custody of two children to their father

holding that the failure to attach a custody order was not reversible error because there was no showing of prejudice where the respondents were aware of the childs placement the petition noted that custody of the child was given by prior orders the respondent admitted that the child was in the legal custody of the buncombe county department of social services and the respondents were present at pretermination hearings in which custody was granted to petitioner and hearings in which visitation options were discussed and determined

holding that the failure to attach a custody order was not reversible error because there was no showing of prejudice where there was no indication that the respondent was unaware of the placement or custody of the children at any time the motion to terminate stated that dss was given legal custody of the minor children and the record included a copy of an order in effect when the motion was filed that awarded dss custody of the children

4

“[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ ” Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004) (quoting Spann v. State, 857 So.2d 845, 852 (Fla.2003)). Appellate review is therefore limited to the specific grounds for objection raised at trial. Lynx Transp. v. Atkinson, 720 So.2d 600, 600-01 (Fla. 5th DCA 1998); Clock v. Clock, 649 So.2d 312, 315 (Fla. 3d DCA 1995); Wilson v. Health Trust, Inc., 640 So.2d 93, 94 (Fla. 4th DCA 1994). Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court. See Steinhorst, 412 So.2d at 338; see also Smith v. State, 7 So.3d 473, 496 (Fla.2009) (<HOLDING>) (citing Steinhorst, 412 So.2d at 338); City of

holding party may not argue one ground at trial and another on appeal where appellant did not object to testimony at trial on the grounds raised on appeal that it was improper character evidence but objected only on the basis of relevancy issue was not preserved for review

holding that defendant must have clearly objected at trial to the matter he is raising on appeal

holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal

holding that claims based on grounds not objected to at trial cannot be considered on appeal

holding that appellate court could not consider objection to testimony when defendant objected at trial on different grounds

3

of questioning that would not trigger Mrs. Jaeger’s invocation of the Fifth Amendment, although defense counsel declined. On those facts, we find no substantial interference with Mrs. Jaeger’s decision whether to testify, let alone any coercion or intimidation. See United States v. Harlin, 539 F.2d 679, 680-81 (9th Cir.1976) (concluding that the trial judge’s warning given to the co-defendant’s counsel, “ ‘I assume you have advised her of the penalties of perjury ... and that if it appears that a defendant is lying, the Court can take that into account, too,’ ” was “neither coercive, threatening, grossly improper nor prejudicial”). Other circuit courts, considering similar facts, have reached the same conclusion. See, e.g., United States v. George, 363 F.3d 666, 670-71 (7th Cir.2004) (<HOLDING>); United States v. Blanche, 149 F.3d 763,

holding that a judges lengthy perjury warnings to a defense witness effectively drove the witness off the stand thereby denying the defendant his due process right to present his defense

holding that warnings given to a witness by the trial court and the prosecutor concerning the possibility that testifying could place the witness in jeopardy of revocation of his plea agreement and charges of perjury or false statement did not violate the defendants due process rights because the warnings merely corroborated in a straightforward and nonthreatening manner the information given by the witness attorney

holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary

holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand

recognizing that informing the jury that testifying witness has agreed to cooperate with the government is a doubleedged sword as the existence of such agreement may suggest either that the witness will testify in accordance with the governments wishes regardless of the truth or that the witness will not he under threat of revocation of the agreement should the witness commit perjury

1

less room for advancement.” Id. at 613 (quoting Sharp v. City of Hous., 164 F.3d 923, 933 (5th Cir.1999)); Pegram, 361 F.3d at 283 (“[A]n employment transfer may qualify as an adverse employment action if the change makes the job objectively worse.” (internal quotation marks omitted)); Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir.2001) (“A job transfer that includes a shift change that involves changes in duties or compensation or can be objectively characterized as a demotion may be an ‘adverse employment action’.... ”); see, e.g., Sharp, 164 F.3d at 933 (“The jury could have viewed transferring from the elite Mounted Patrol to a teaching post at the Police Academy to be, objectively, a demotion.”); Forsyth v. City of Doll., 91 F.3d 769, 774 (5th Cir.1996) (<HOLDING>); Click v. Copeland, 970 F.2d 106, 110 (5th

recognizing as demotions the reassignment of two police officers from the intelligence unit to night patrol because the intelligence unit positions were more prestigious had better work ing hours and were more interesting than night patrol and few officers voluntarilytransferred from the intelligence unit to night patrol and other officers had been so transferred as punishment

holding that injury of plaintiff who was detained in negligently parked patrol car that along with another patrol car was struck by thirdparty vehicle did not arise out of use or operation of patrol car within meaning of ttcas motorvehicle waiver rather patrol car merely furnished condition that made injury possible

holding that officers had reasonable suspicion to stop suspect seen driving late at night only a short distance from the area in which a crime had been committed

holding that defendant violated 148a1 when he refused officers repeated requests to step away from the patrol car

holding that the juvenile defendants who voluntarily left their homes in the middle of night to ride to the police department in patrol cars and who were told they were not under arrest were not in custody

0

from Local 254’s alleged improper secondary activity. Plaintiff argues that the International encouraged, ratified, and knowingly tolerated Local 254’s prohibited behavior. However, the evidence adduced by plaintiff fails to support this argument. Liability for a local union’s actions does not attach to an international affiliate merely because of the hierarchical link between the two unions. See Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 216-17, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979). Rather, a plaintiff must satisfy the traditional rules of agency law to saddle an international union with responsibility for acts carried out directly by a local in violation of § 303 of the LMRA. See United Mine Workers v. Gibbs, 383 U.S. 715, 736, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (<HOLDING>); see also 29 U.S.C. § 185(e). The United

holding that deference to an agency interpretation is not appropriate where a statute is administered by more than one agency

holding that 303 liability is established according to ordinary doctrines of agency

holding that an employment relationship allegedly terminated with fraud and malice may open employer to tort liability beyond the bounds of ordinary liability for breach of contract

holding that agreements established agency relationship

holding that coconspirator liability for a 924c offense may be established under pinkerton liability

1

find any plain error. Although the record does show that the defendant is black and the victim was white, it does not show that the state exercised any of its peremptory challenges to remove prospective black jurors from the veni-re. The record as a whole simply does not raise an inference that the state was engaged in the practice of purposeful discrimination. Under the plain error rule this Court will ‘notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial -rights of the petitioner.’ (Emphasis added.) Rule 39(k), supra. The defendant cannot successfully ar-güe that error is pla p.2005)(<HOLDING>). In another analogous situation, this Court

holding that trial counsel will not be convicted of ineffective assistance of counsel for failure to engage in futile acts

holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record

holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate

holding that an ambiguous or silent record will not support a claim of ineffective assistance of counsel

recognizing a constitutional claim for ineffective assistance of counsel

3

Dec. 211, 232, 1985 WL 56042 (BIA 1985), that a family may qualify as a “social group” under § 1101: [Persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic ... such as sex, color, or kinship ties, ... [will only qualify under § 1101 when] the common characteristic that defines the group [is] one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. (emphasis added). As lucidly explained in Hernandez-Montiel v. INS, 225 F.3d 1084, 1092 (9th Cir.2000), the First, Third, and Seventh Circuits have adopted Acosta’s immutability analysis. See Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985) (<HOLDING>); Fatin [v. INS ], 12 F.3d [1233, 1239-41 (3d

holding that the family court is required to consider all relevant factors in determining alimony

holding that evidence of the scope of a particular claim can be found on review of other claims

recognizing that creditor has burden of determining the accuracy of scheduling claims in determining whether filing proof of claim is necessary

holding family court has wide discretion in determining how marital property is to be distributed

recognizing acosta in determining that family relations can be the basis of a particular social group

4

to the issues being tried. ¶40 The court found that defense counsel mentioned in opening argument and in cross- examination that a number of other patients with legal claims have been referred by Durdens’ counsel to certain of the physicians who testified for Durdens — the implication being that those physicians were unworthy of belief and perhaps were part of a conspiratorial plan to bilk Chief. The trial judge observed that the physicians who appeared at trial were truthful, competent and professional in every respect; that their integrity as medical professionals was impugned by counsel’s statements; and that there was no evidence supporting any conspiracy among those doctors, Durdens and their counsel. ¶41 Finally, the court concluded that Durdens’ case was prejudic 3 P.2d 625 (<HOLDING>). ¶43 Finally, it is necessary that we address

holding lower court did not abuse its discretion in excluding evidence because proof of a modus operandi is only relevant when there is an issue regarding the defendants identity

holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative

holding that the trial court did not abuse its discretion in excluding evidence of family conflicts including an extramarital affair when there was no evidence of any causal connection with those and plaintiffs mental disorders

holding no abuse of discretion in trial courts exclusion of evidence where evidence was cumulative

holding that the district court did not abuse its discretion in excluding hearsay evidence and evidence that violated the best evidence rule in deciding a summary judgment motion

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misrepresentation.”). Additionally, SAB No. 99 observes that “[a]mong other factors, the demonstrated volatility of the price of a registrant’s securities in response to certain types of disclosures may provide guidance as to whether investors regard quantitatively small misstatements as material,” and that “[w]hile the intent of management does not render a misstatement material, it may provide significant evidence of materiality.” 64 Fed.Reg. at 45152. Case law supports the use of these additional factors as evidence of materiality. United States v. Bilzerian, 926 F.2d 1285, 1298 (2d Cir.1991) (“stock movement is a factor the jury may consider relevant” to materiality, although not itself determinative); see Gebhardt v. Con-Agra Foods, Inc., 335 F.3d 824, 829-30 (8th Cir.2003) (<HOLDING>). 2. Discussion The Court concludes that there

recognizing managements role in misstatements as part of the total mix of information that would probably be important to investors

holding that written information cures oral misstatements and omissions

recognizing that there is an important privacy interest in corporate financial documents the court agrees that the information can be protected therefore the court required that the information be disclosed pursuant to a confidentiality order only to be used in connection with this litigation

recognizing that the information possessed by the defendant is an important variable in that equation

holding that representations and omissions must be considered together and in context to determine whether they affect the total mix of information and mislead a reasonable investor

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the best interests of the child, however, must be made on the basis of evidence before the court. See, e.g., In re Jacinta M., 107 N.M. 769, 771, 764 P.2d 1327, 1329 (Ct.App.1988) (finding must be supported by evidence); Khalsa v. Khalsa, 107 N.M. 31, 36, 751 P.2d 715, 720 (Ct.App.) (harm to child cannot be assumed but must be demonstrated), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988); Fitzsimmons v. Fitzsimmons, 104 N.M. 420, 423, 722 P.2d 671, 674 (Ct.App.) (court’s ruling must be supported by evidence), cert. quashed, 104 N.M. 378, 721 P.2d 1309 (1986). We hold that, under New Mexico law, the district court erred in concluding that this type of an agreement is unenforceable as a matter of law. But see Sporleder v. Hermes (In re Z.J.H.), 162 Wis.2d 1002, 471 N.W.2d 202, 211 (1991) (<HOLDING>). Whether visitation would be against the best

holding similar agreement void on public policy grounds

recognizing an agreement whose sole purpose is to prevent competition per se is void as a matter of public policy

holding plaintiffs claims moot on similar grounds

holding that where agreement prohibits recovery of attorneys fees in civil rights case the relevant portions of the arbitration policy are therefore void as against public policy

holding that prospective waivers of claims are void as against public policy

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reasons which do not appear in the record on appeal, Crabtree did not testify in the trial of this matter. Crabtree’s actions, however, indicate rather clearly that Crab-tree himself knew that he did not have authority to modify the revised Consignment Agreement. It was Crabtree himself who informed Christie on March 13, 1987, that Orchard was the true owner of the painting and the “proper party to authorize the sale and receive the proceeds therefrom.” In this letter, Crabtree also insisted that the original Consignment Agreement be modified to re- fleet Orchard as the seller and the party to receive the sale proceeds. Based on this information, Christie submitted a revised Consignment Agreement reflecting these changes. And, consistent with Crabtree’s statement that P.2d 242 (1936) (<HOLDING>). In the setting described above, Crabtree

holding that a principal is bound by a contract entered into by the principals agent on her behalf if the agent had authority to bind the principal

holding that when an agent has limited authority and informs the third party of this limitation the principal is not bound by the agents actions that exceed that authority

holding that the insurer is not bound by acts of the agent which are beyond the scope of his authority when the insured has notice of the limitations upon an agents authority or when the circumstances are sufficient to suggest that an inquiry should be made as to such limitations

holding that a principal is not hable for the actions of an agent when these actions exceed the agents authority and the thirdparty has knowledge that the agent does not have the authority asserted

recognizing that a principal may limit the authority of its agent and such limitation will be binding on a third party who is aware of the limitation

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Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. U.S.S.G. § 5G1.3(b). In this case, Scott was not incarcerated at the time of his sentencing. Rather, he had been released from prison and has commenced serving a term of post-release supervision. While Scott was incarcerated when he pled guilty, the relevant time for consideration of § 5G1.3 is t Cir.2001) (<HOLDING>); United States v. Cofske, 157 F.3d 1, 1 (1st

holding that 3584a allows the district judge to specify the sequence of service of terms of imprisonment only when sentences are imposed at the same time or the other sentence is an undischarged term of imprisonment to which the defendant is already subject

holding that the concurrent sentencing requirement of 5g13b is only triggered when there is an undischarged term of imprisonment at the time of sentencing

holding that a term of imprisonment begins at the time a prisoner is sentenced

holding that 5gl3b does not apply when the undischarged term of imprisonment results from multiple offenses only some of which were taken into account in determining the defendants offense level

holding that a conviction is deemed final on the date of sentencing when there is no evidence that notice of appeal was filed

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in the public domain during the pendency of the case by virtue of a civil lawsuit filed by the executor of the victim’s estate. Heemstra, 721 N.W.2d at 563. This factor tended to diminish the need to protect the confidential interests of the particular patient. Finally, the nature of the confidential information was such that it could reasonably be viewed as an aid to the defendant in his self-defense claim. Id. This factor was considered to be the most important criteria in the ease because it not only placed the constitutional right to a fair trial into play, but it identified the specific need for the information and the particular prejudice that would be suffered by the accused without the information. See United States v. Alperin, 128 F.Supp.2d 1251, 1255 (N.D.Cal.2001) (<HOLDING>). The factors we identified in Heemstra were

recognizing a broader ethical duty of confidentiality

recognizing strong public interest in maintaining confidentiality of official records concerning child abuse

recognizing records material to selfdefense claim outweigh victims interest in confidentiality

recognizing a corporations legal rights to confidentiality and privilege

recognizing employers interest in protecting confidentiality of data bearing on employees basic competence

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retaliate against a witness and retaliation against a witness— as his codefendants. The charges stemmed from the same nucleus of facts, and the government proved each charge against each defendant through interrelated evidence. See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1234 (10th Cir.1997) (finding that the denial of defendant’s motion to sever was proper when the charges involved a common scheme and the evidence was “massive and interrelated”). Indeed, the evidence about which Mr. Wardell complains — evidence pertaining to the actual commission of the assault by Mr. Shields and Mr. Temple-man — would have been admissible against him in his own trial, as proof of an overt act in furtherance of the conspiracy. See United States v. Cardall, 885 F.2d 656, 668 (10th Cir.1989) (<HOLDING>). The district court also took steps to

holding regarding sixth amendment prejudice if there is no reasonable possibility that the appellate court would have ruled in his favor there can be no strickland prejudice

holding that there was no prejudice when evidence complained of would have been admissible against defendant in separate trial

holding that even in separate trial other crimes evidence would not have been admissible and identification testimony would have been admissible

holding that the conviction should be upheld because there was no prejudice to the defendant even though the defendant had been charged with one conspiracy and the proof at trial showed two separate conspiracies

holding that district court did not abuse its discretion in denying motion for severance where the allegedly prejudicial evidence would have been admissible in separate trials

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P.3d 985. “[T]he commonly stated purposes of statutory redemption are to encourage full value bidding at foreclosure sales and to protect mortgagors.” HSBC Bank, 2005-NMCA-138, ¶ 7, 138 N.M. 665, 125 P.3d 644; Brown v. Trujillo, 2004-NMCA-040, ¶ 27, 135 N.M. 365, 88 P.3d 881 (stating that redemption statutes protect the debtor because they “may increase the price of property at a foreclosure sale by creating the risk that a debtor will easily redeem his or her property from a purchaser who bids too low”). But see W. Bank of Las Cruces v. Ma n creditors can redeem or have redeemed, but do not expressly indicate that the holders of the junior mortgage or judgment lien foreclosed their liens against the debtor’s property. See HSBC Bank, 2005-NMCA-138, ¶¶ 2, 4, 138 N.M. 665, 125 P.3d 644 (<HOLDING>); Malooly, 119 N.M. at 747, 895 P.2d at 269

holding that an assignee of a debt can step into the shoes of the original creditor for purpose of 523a2a

holding that the redemption price was based on the amount bid at foreclosure and not what the subsequent purchaser paid for the property

recognizing that the right of redemption is one of the most important rights provided by the states to owners of real property

holding that the right of redemption is treated the same whether in a mortgage or security deed

holding that an assignee of the lien creditor who petitioned for certification of redemption had priority over an assignee of the former defendant owner based on a firstintime filing of the redemption petition

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agreement that is contrary to public policy.”). 47 . Id. (internal quotation marks omitted). 48 . E.g., Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l., 861 F.2d 665, 666-68, 674 (11th Cir.1988) (affirming the reversal of an arbitration award’s reinstatement of a pilot who flew while drunk); Amalg. Meat Cutters & Butcher Workmen, Local Union 540 v. Great W. Food Co., 712 F.2d 122, 125 (5th Cir.1983) (reversing enforcement of an award to reinstate a truck driver who drank on duty); NLRB v. Dixie Motor Coach Corp., 128 F.2d 201, 203 (5th Cir.1942) (permitting, pre-W.K. Grace, a company’s discharge of a bus driver who drank while working his route). But see Oil, Chem. & Atomic Workers, Int’l Union, Local No. 4-228 v. Union Oil Co. of Cal, 818 F.2d 437, 441-43 (5th Cir.1987) (<HOLDING>). 49 . 712 F.2d at 124. 50 . 768 F.2d 739, 742

holding 12year statute of limitations violated state guarantee of open courts when it would have barred right of actions against manufacturer of drug before they ever existed as it was not discovered until 20 years after drug was administered that the drug caused cancer

holding that additional witnesses were not needed to corroborate the defendants drug abuse problems because counsel had already introduced sufficient evidence of drug use

holding that an arbitrators award reinstating an oil refinery worker who used drugs offsite was not against public policy at the time it was issued before new drug problems cropped up but remanding for reconsideration in light of the further drug use

holding extraneous evidence that defendant was using drugs admissible under rule 404b because evidence not offered to show that defendant was drug user and was using drugs at the time of the offense but to rebut the defense of consensual sex

holding that evidence of prior drug sales was sufficiently similar to the crimes charged to be probative of the fact that the defendant was not merely an innocent driver who was involved in the drug transaction by accident

2

an impermissible fishing expedition.”); United States v. Reed, 726 F.2d 570, 577 (9th Cir.1984) (affirming trial court order quashing defendants’ subpoena after in-camera review where the defendants “did not request specific documents, but sought entire arson investigation files”). The name of a document and mere speculation as to its contents are not sufficient to satisfy the Rule’s specificity and relevance requirements. See United States v. Hardy, 224 F.3d 752, 755-56 (8th Cir.2000) (upholding trial court’s order quashing defendant’s subpoena of recorded police radio transmissions where the defendant had “stated why he wants to listen to the transmissions, but he cannot set forth what the subpoenaed materials contain”); United States v. Arditti, 955 F.2d 331, 345-46 (5th Cir.1992) (<HOLDING>). [¶ 36] Here, Marroquin-Aldana’s subpoena

holding that the defendant did not demonstrate and our review of the record did not reveal that the defendant made a showing of good cause as to why his late notice should be accepted and as such the trial court did not abuse its discretion when it denied the defendants belated oral motion to assert an insanity defense

holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge

holding that trial court did not abuse its discretion by allowing the state to introduce direct evidence of the controlling nature of defendants relationship with the victim

holding that a district court did not abuse its discretion when it denied a motion for reconsideration that relied on materials available to the movant at the time of the original motion and where movant did not give any explanation as to why she did not rely on those materials in the first instance

holding that the trial court did not abuse its discretion in quashing a subpoena where the defendant demonstrated why he wants to look into the subpoenaed material but has not set forth what the subpoenaed materials contain forcing the court to speculate as to the specific nature of their contents and its relevance

4