Datasets:

casehold

/

casehold

like 7

analysis.” This standard is not defined by bright lines and rigid boundaries. Instead, the standard allows a magistrate judge to review the facts and circumstances as a whole and make a common sense determination of whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” The magistrate judge’s decision in this regard is one we review with great deference. Grossman, 400 F.3d at 217 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (other internal quotation marks omitted). As part of such a common sense determination, we observed in Grossman, “it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key.” Id. at 218; see also Servance, 394 F.3d at 230 (<HOLDING>). In light of our precedent, the district court

holding that evidence was admissible under the good faith exception where the affidavit contained a detailed description of the nature of the offense the premises to be searched the items for which they were searching and the transaction which led the informant to believe that the drugs would be in this apartment

holding that on clear error review appellate court cannot secondguess the trial courts choice between permissible competing inferences internal quotation marks and ellipses omitted

recognizing that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence internal quotation marks omitted

holding that due process is violated if evidence of prior bad acts goes only to character and there are no permissible inferences the jury may draw from it internal quotation marks omitted

holding that a warrant lacking a description of items to be seized was not facially invalid and finding in the alternative that even if the warrant were found to be deficient the seized evidence was admissible under the good faith exception

2

to professional compensation would make the language of Sections 503(b)(2) superfluous. Congress enacted Sections 327, 330(a), and 503(b)(2) to provide the exclusive method for a debtor’s retention of professionals, subject to numerous safeguards, including the requirement of disinterestedness. A court should not circumvent the limitations placed on retention of professionals by compensating a disqualified professional under Section 503(b)(1)(A). Instead, Section (b)(1)(A) is properly applicable only to authorize priority treatment of non-professional employee claims, including wages, salaries and commissions. The remaining issue is whether the services rendered by Harold Zell were professional in nature, in which case his administrative claim cannot be allowed, or w E.D.N.C.1985) (<HOLDING>); Matter of Seatrain Lines, Inc., 13 B.R. 980

holding that a lottery ticket purchased prepetition that won postpetition was included in the debtor estate

holding that management consultant hired prepetition and retained postpetition was professional requiring appointment nonsalaried employee could not be compensated under section 327a or b

holding that a subcontract agreement could not circumvent the requirements of section 327a

holding that a postpetition claim under section 1305 is a liability that arises postpetition and relates only to postpetition activity

holding that creditors cannot allow postpetition funds to be automatically applied to a prepetition indebtedness absent some positive indication that debtors indeed intend to voluntarily assume their prepetition debts

1

(<HOLDING>). Marshall asserted that he was entitled to be

holding that consecutive fixedterm sentences for juveniles who committed multiple nonhomicide offenses are not clearly unconstitutional under graham even when they amount to the practical equivalent of life without parole

holding that williams fiftyyear sentence is not a de facto life sentence in violation of graham

holding that a juvenile nonhomicide offenders sentence of seventy years imprisonment is unconstitutional under graham for the reasons explained in henry

holding that the eighth amendment forbids life without the possibility of parole for a juvenile who commits a nonhomicide offense

holding that a juvenile seventeen years old or younger cannot be sentenced to life without parole in a nonhomicide case

2

of attorney’s fees for breach of contract. Allstate contends the subject contracts do not contain a fee provision such that no legal basis exists to award attorney’s fees for a simple breach of contract. Plaintiff appears to concede that he may not recover attorney’s fees under his contract claim unless he establishes that Allstate breached the implied covenant of good faith and fair dealing. (Pl.’s Opp’n at 12-13). The Court therefore GRANTS Allstate’s motion to the extent it seeks to preclude Plaintiff from recovering attorney’s fees and costs under the breach of contact claim. (CompLf 14). Plaintiff may, of course, pursue attorney’s fees under his implied covenant claim as permitted by Brandt v. Superior Court, 37 Cal.3d 813, 819, 693 P.2d 796, 800, 210 Cal.Rptr. 211, 215 (1985) (<HOLDING>). III. Conclusion and Order For the foregoing

holding that chapter 38 permits an insured to recover attorney fees from the insurer

holding that when the insured brings an action for a declaration of coverage and prevails absent a bad faith denial of coverage by the insurer attorneys fees incurred by the insured in the prosecution of that action are not incurred at the request of the insurer

holding that insured may recover attorneys fees from insurer where insurer acts in bad faith

holding that an insurer acted in bad faith by failing to keep the insured informed of settlement negotiations

holding that insured may recover from its insurer any attorney fees incurred in successfully attempting to force the insurer to defend an action against the insured

2

behavior after the accident was due to intoxication and not due to trauma from the accident. Appellant directs us to Officer Trusler’s cross-examination testimony in which the officer testified he was unsure what types of behavioral and neurological problems might be exhibited by someone who had recently been involved in an accident as opposed to someone who was intoxicated. Section 577.010 sets out in pertinent part that “[a] person commits the crime of [DWI] if he operates a motor vehicle while in an intoxicated or drugged condition.” “[A] person is in an ‘intoxicated condition’ when he is under the influence of alcohol, a controlled substance, or drug, or any combination thereof.” § 577.001.2. “ ‘Intox requested sobriety tests. See State v. Myers, 940 S.W.2d 64, 65 (Mo.App.1997) (<HOLDING>). Additionally, Officer Trusler testified at

holding evidence sufficient when appellant exhibited signs of possible intoxication failed field sobriety tests and had blood alcohol level in excess of legal limit

holding that a refusal to perform field sobriety tests was admissible as evidence of intoxication

holding that under florida precedent trial court erred in excluding expert testimony on intoxication as voluntary intoxication was a valid defense to a specific intent crime and expert testimony is relevant to a disputed voluntary intoxication defense

holding such intoxication to be voluntary

holding statistical conclusions admissible and questions regarding the size of a tests database goes to the weight not admissibility of the evidence

1

the estates would be better off litigating the claims than negotiating their resolution through a plan of reorganization. In fact, the Committee itself recognizes the possibility that “nego tiations might consensually resolve” its challenges. (Bankr. Dkt. No. 2740 at 25). If the motion is granted, the Committee says, the court should not require the proposed amended complaint to be filed right away or by a certain date. The Committee instead asks leave to file the complaint at its discretion—“to potentially avoid unnecessary litigation if it appears its discussions with the parties may yield progress.” (Id.). That the litigation could prove unnecessary given the parties’ settlement discussions is justification enough for the debtors’ not to pursue it. Cf. Caesars, 808 F.3d at 1188-89 (<HOLDING>). The debtors’ justification, though, might not

holding that this court could enjoin litigation in another court if doing so would promote settlement of disputes in these bankruptcy cases

holding bankruptcy court had jurisdiction to issue injunction of state court litigation against debtors principal stating this power under 11 usc 105a includes the authority to enjoin litigants from pursuing actions in other courts that threaten the integrity of the debtors estate

holding that bankruptcy court may enjoin federal administrative proceedings when they threaten the debtors estate

holding that bankruptcy court may enjoin state environmental reclamation order

holding that bankruptcy court could not enjoin third party tort claims that would not affect estate

0

(reasonable to believe suspect would be at home at 8:45 a.m. on Sunday morning); Edmonds, 52 F.3d at 1248 (entry at 6:45 a.m. was “early enough that it was unlikely someone living in the apartment would have already departed for the day”); Anderson, 104 F.3d 367, 1996 WL 731244 (“the officers came to the home at 8:45 p.m., on a cold, snowy evening, a time when a person would reasonably be expected to be at home”); observing the operation of lights or other electrical devices, Route, 104 F.3d at 63 (officers heard television set left on inside residence after third person left residence); Magluta, 44 F.3d at 1538 (observations that “the lawn was manicured and a porch light was on” gave “no indication that Magluta departed, such as for work or the like”); Morehead, 959 F.2d at 1496 (<HOLDING>); and the circumstances of a suspect’s

holding that an arrest warrant without a search warrant does not permit law enforcement authorities to enter a third partys home to legally search for the subject of the arrest warrant

holding that arrest warrant can support entry into suspects residence when there is reason to believe the suspect is within

holding that an illuminated light provided a reasonable basis for officers to believe the subject of an arrest warrant was within the building

holding that the vehicle of a recent occupant may be searched incident to arrest as an exception to the warrant requirement where it is reasonable to believe the vehicle contains evidence of the offense of arrest

holding that an arrest warrant can authorize entry into a dwelling only where the officials executing the warrant have reasonable or probable cause to believe the person named in the warrant is within

2

fees under 42 U.S.C. § 1988, "an appropriate ad justment for delay in payment-whether by the application of current rather than historic hourly rates or otherwise” is permissible. 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The Seventh Circuit in Brandt v. Schal Assoc., Inc. upheld a district court’s award of interest on attorney’s fees for the "delay factor” and affirmed the district court’s holding that awarding delay damages does not violate Cooter & Gell v. Hartmarx Corp. 960 F.2d 640, 645, 649 (7th Cir.1992) (citing 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). 171 . The FDIC disputes that it acted as a receiver here. See supra note 158. 172 . See, e.g., Spawn, 989 F.2d at 833 (quoting McGehee v. Panama Canal Comm'n, 872 F.2d 1213, 1215 (5th Cir.1989)) (<HOLDING>); see also Meyer, 510 U.S. at 482, 114 S.Ct.

holding that a government agency may lose its immunity to interest sanctions if congress has shed the cloak of sovereignty and given an agency the status of a commercial operation

holding that when congress has implicitly delegated legislative authority to an agency a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency

holding that a draft of a proposed letter from an area director of a government agency to a municipal administrative agency was properly excluded because it did not represent an agency finding

holding that when an agency has not reached an issue the proper course is to remand to the agency to address in the first instance

holding that agency regulations cannot be applied retroactively unless congress has so authorized the administrative agency and the language of the regulations require it

0

agree with the Commonwealth that the PCRA court’s reference to Pa.R.E. 705, which requires that “an expert must testify as to the facts or data on which the opinion or inference is based,” does not support a finding of counsel ineffectiveness. As the medical examiner testified that the basis for her time-of-death estimation was her investigator’s liv-idity test, she clearly set forth the facts or data on which her opinion was based, and an objection grounded on Pa.R.E. 705 would have been futile. Further, to the extent the PCRA court found counsel ineffective for failing to challenge the time-of-death testimony as speculative because it was based on the investigator’s notes, we find such legal conclusion to be in conflict with our ruling on direct appeal. See Elliott, 700 A.2d at 1252 (<HOLDING>). Thus, there is no arguable merit to a claim

holding victim waived physicianpatient privilege by authorizing her doctor to release her medical records to the department of criminal investigation because the information contained in her medical records was no longer confidential between herself and her physician

holding that a teachers complaint to school authorities that her principal had instructed her to make improper changes in her own students grades was unprotected because it was made pursuant to her official duties

holding that it was proper for the medical examiner to estimate the victims time of death based on the results of her investigators lividity test as it was standard procedure for her to rely on tests performed by members of her office

holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment

holding that plaintiffs motion to amend her complaint to add her husband as a defendant did not relate back because her failure to sue her husband was not due to misnomer or mistake involving the identity of the proper party but because the law at the time of the complaint did not allow one spouse to sue another in tort

2

elements of these “independent torts.” Koffman, 574 S.E.2d at 261. The Court explained that the “tort of assault consists of an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.” Id. The Court defined the tort of battery as “an unwanted touching which is neither consented to, excused, nor justified.” Id. In moving for summary judgment with respect to these claims, the Sheriffs Office defendants argue that the deputies’ actions were justified in light of the circumstances that they faced in this case, and thus, that the claims for assault and battery are without merit. See, e.g., McLenagan v. Karnes, 27 F.3d 1002, 1009 (4th Cir.1994) (<HOLDING>). In response to the defendants’ motion, the

holding that the plaintiffs claims for assault and battery were patently without merit since the officers actions under the circumstances were justified

holding that claims were clearly excluded from coverage under assault and battery exclusion and therefore insurer had no duty to defend or indemnify

holding that district court could impose attorney fees where plaintiffs lawsuit patently had no legal merit

holding that under maryland common law an assault is an attempted battery an actual battery or a combination of the two

holding that the actions were not actions of public and general applicability but were actions directed principally and primarily at plaintiffs

0

Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must ‘produce specific facts, in suitable evidentiary form’ sufficient to limn a trial-worthy issue.... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence.”); Medina-Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (<HOLDING>) Local Rule 56(b), moreover, requires the

holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted

holding that a district court must compare and weigh the opposing evidence and it must set aside the verdict if it determines that the verdict is against the clear weight of the evidence

holding that the evidence illustrating the factual controversy cannot be conjectural or problematic it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve

holding substance of claim must have been presented to state court

holding to prove possession the state must show that a defendant possessed a certain substance the substance was illegal and he had knowledge of the presence of the substance

2

524, 526 (Ind.1990) (discussing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel is presumed to be competent; "[iJsolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel." Id. Defendant first argues that defense counsel's performance was deficient when he failed to object to Jacob's testimony concerning Tanelle's Fourth of July statements. Defendant argues that this could not have been a strategy decision, since defense counsel already had objected to Darlene's testimony on the same topic. However, since the objection to Darlene's testimony already had been overruled, we cannot say that failure to object once again was deficient performance. See Drake v. State, 563 N.E.2d 1286, 1290 (Ind.1990) (<HOLDING>). Even assuming that this behavior was

holding that issue is preserved if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them

holding that a party waived its objections on appeal to an affidavit presented in support of a motion for summary judgment by failing to raise its objections to the trial court

holding that failure to make repeated objections is not ineffective when such objections would not have been sustained

holding that when defendants only timely filed objections to expert report were that two statements were speculative defendant waived all other objections

holding that because generic objections do not afford a sentencing court sufficient notice such objections are inadequate to preserve specific claims of sentencing error

2

residents of the Depot. Nor are the District and taxing entities attempting to assess taxes on property within the federal enclave that constitutes the Depot. Those aspects of a “state” within the federal system of these United States are not implicated. The tax is assessed solely on inventory while it is located on Aviall’s private property at its distribution center in Irving, Texas. See Tex. Tax Code Ann. §§ 11.01, 23.01, 32.01 (Vernon 2008). Moreover, Aviall’s interpretation would reverse the long-standing rule to strictly construe tax exemptions against the taxpayer. See River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854 (Tex.1963); ICAN Enter., Inc. v. Williamson County Appraisal Dist., No. 03-06-00594, 2009 WL 1025084, *3 (Tex.App.Austin April 17, 2009, pet. denied) (<HOLDING>). It is well settled that language granting

holding that trial court abused its discretion by denying a motion for rule 11 sanctions without adequate explanation

holding trial court erred in denying defendants motion for arrest of judgment where indictment was insufficient

holding trial court properly gave narrow interpretation for exemption for stored aircraft parts denying taxpayers application for its storage of entire aircraft

holding that before denying petition trial court must conduct an evidentiary hearing and state specific reasons for denying the petition

holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form

2

tance due to a failure to object to the introduction of time-barred offenses (the burglary charge), and Claim XII, which claimed that Overton’s death sentences were unconstitutional under Ring, were both properly denied without an evidentia-ry hearing. Overton’s posteonvietion counsel conceded that these were purely legal issues that did not require an evidentiary hearing. Moreover, as previously developed, no prejudice resulted from the introduction of the burglary charge, which the trial court correctly recognized in denying the evidentiary hearing. Additionally, the claim that Overton’s death sentences violated Ring was clearly without merit because this Court has previously held that Ring cannot receive retroactive application. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (<HOLDING>). Thus, these claims were legally insufficient

holding that the rule announced in ring does not apply retroactively to cases already final on direct review

holding that ring does not apply retroactively in florida postconviction proceedings to cases that were final on direct review at the time of the ring decision

holding that batson does apply retroactively to cases pending on direct review

holding that apprendi does not apply retroactively in florida in postconviction proceedings to cases that were final on direct review at the time of the apprendi decision

holding that apprendi does not apply retroactively in florida postconviction proceedings to cases that were final on direct review at the time of the apprendi decision

1

of the Debtor’s bad acts does not mandate that this Court restrict the scope of its findings. In determining whether appointment of a Chapter 11 Trustee was warranted, this Court was required to consider the totality of the circumstances. Each of the findings contained in the Trustee Order were relevant to this Court’s determination that the Debtor’s conduct manifested the extreme circumstances that are a prerequisite to appointment of a Chapter 11 Trustee pursuant to both § 1104(a)(1) and § 1104(a)(2). Accordingly, this Court believes that its decision to include all of its relevant findings, rather than some subset, does not constitute indisputable error. The Debtor’s appeal to equity is without merit. See, e.g., In re Combustion Engineering, Inc., 391 F.3d 190 (3d Cir.2004) (<HOLDING>). This Court can identify no principle that

recognizing derivative standing that bankruptcy courts can authorize

holding that mere procedural changes which do not affect substantive rights are not immune from retrospective application

recognizing that a bankruptcys equitable powers provided by 105 do not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law or constitute a roving commission to do equity

holding damages do not constitute other equitable relief

holding that similar doj guidelines not mandated by statute or the constitution do not confer substantive rights on any party

2

placed and allowed R.A. to remain with Akin, who engaged in conduct that endangered R.A.’s physical or emotional well-being, and (b) Jordan herself engaged in conduct that endangered R.A.’s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E). a. Placing and Allowing RA. to Remain with Akin For the same reasons detailed in our analysis of section D, we conclude the evidence supports the trial court’s determination that Jordan’s voluntary and knowing placement of R.A. with Akin and her voluntary and knowing decision to allow R.A. to remain with Akin by opting not to use earnest efforts until after September 2007 to regain custody of R.A., endangered the physical and emotional well-being of R.A. See In re S.P., 168 S.W.3d 197, 204-05 (Tex.App.-Dallas 2005, no pet.) (<HOLDING>); In re J.M.M., 80 S.W.3d at 241-42; Hann, 969

holding evidence insufficient to terminate mothers parental rights under section c because mother made arrangements for adequate support of children evidence showed mother left children with father who maintained steady employment and adequately supported children mother knew that father would provide adequate support and mother left children pursuant to agreed divorce decree

holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother placed children with father who lived transient lifestyle with children

holding evidence supported terminating mothers parental rights under section d based in part on evidence that mother could not adequately protect or provide financially for children

holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother placed children with physically abusive father

holding evidence supported termination of mothers parental rights where among other factors mother knowingly allowed abusive and sexually deviant father to have access to children

4

interest in their continued employment and that Richardson’s Age Discrimination in Employment Act (ADEA) claim was barred by Eleventh Amendment sovereign immunity. Plaintiffs contend that DHS’s discipline policies entitled them to due process protection and that Arkansas has waived its sovereign immunity to ADEA suits. After reviewing the relevant discipline policies, we agree with the District Court that they did not alter plaintiffs’ at-will employment status to create property interests in their jobs. See Singleton v. Cecil, 176 F.3d 419, 424-25 & n. 6 (8th Cir.) (finding that an at-will employee has no property interest in job), cert. denied, 528 U.S. 966, 120 S.Ct. 402, 145 L.Ed.2d 313 (1999); Ball v. Ark. Dep’t of Cmty. Punishment, 340 Ark. 424, 10 S.W.3d 873, 876 (Ark.2000) (<HOLDING>); Batra v. Bd. of Regents of the Univ. of Neb.,

holding that an atwill employee may not be discharged for refusal to violate the law

holding that under new york law employment is atwill unless the duration of an employment contract is set forth explicitly

holding that an atwill employee can be discharged for any reason or no reason unless employee is discharged for reasons that contravene a clear mandate of public policy

holding that under arkansas law employment is atwill unless personnel manual or employment agreement contains express provision that employee shall not be discharged except for cause

holding where employee handbook and employment offer letter disclaimed creation of employment contract that employees testimony of his understanding of terms of agreement did not raise fact issue of specific express and clear agreement contradicting the express provisions of the personnel manual and the employment offer letter

3

In his brief, Mat-lock asserts, “The district court order imposing a period of release with services after a finding that Matlock no longer suffers a mental abnormality violates his right to due process.” The brief makes only a passing objection to the breadth of the specific terms of supervision imposed by the district court. However, in context it is clear Matlock intends this reference to demonstrate that imposing any such restrictions constitutes a significant deprivation of liberty. Matlock makes no argument that the breadth of the release conditions somehow violates due process. Correspondingly, he offers this court no guidance as to the parameters of release that would satisfy due process. State v. Iowa Dist. Ct., 828 N.W.2d 607, 619 (Iowa 2013) (Appel, J., dissenting) (<HOLDING>). The sole remedy he requests is that we find

recognizing that lack of briefing and argumentation can lead to problems in the development of the law and noting that our precedents require us to defer to another day the other issues that the litigants have not brought to us

holding that the us attorneys actions would not bind the government even if he intended to compromise a taxpayers civiltax liability if the us attorney did not have authority to reach a compromise

holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims which alleges violation of an implied covenant of good faith and fair dealing seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if illinois law governs the contract it is no jump at all to find that any efforts to engraft implied terms into the agreement should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j r elecs inc v business decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care and were otherwise negligent in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health soc servs div of family youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac 147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac 2 see also id 19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac 2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac 10 see also id 114 in particular plaintiffs allege that defendant likely ignored ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id 11 see also id 111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id 12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id 8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id 19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014 liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether and what type of privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts 5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to buchalter in his role as advisor in 2007 sac 18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id 141 plaintiffs allege that the higher number would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id 18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac 16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac 138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id 56 plaintiffs also allege that defendant did not inform the trustee or the advisors of its failure to properly vet ssr id 143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac 113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac 57 agl life assurance company insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac 4 see also id 60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability is limited to a loss suffered by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts 5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice involves a professionals breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply footnote omitted goodman v goldman sachs co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac 162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs who were sophisticated investors and were represented by counsel knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois at least the great bulk of the consideration paid by the debtor to the creditors the essence of this claim for unjust enrichment was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which is subject to minnesota law because of the choice of law provision contained within the relevant agreement the parties common law counterclaims including for unjust enrichment are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law the existence of a valid and enforceable written contract ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a valid and enforceable written contract governing the subject matter beth isr med ctr v horizon blue cross blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue or where one party wrongfully has prevented the other from performing the contract first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac 76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler kreindler llp 814 fsupp2d 220 225 edny2011 choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10

holding failure to allege defendant is a debt collector defeats a fdcpa claim and further holding that nonjudicial foreclosure is not a collection of debt within the meaning of the fdcpa citing citing hulse v ocwen fed bank fsb 195 fsupp2d 1188 1204 dor2002 and ines v countrywide home loans no 08cvl267 2008 wl 4791863 2 sdcal nov 3 2008 this claim is dismissed without prejudicee claim under cal b pc 17200 et seqplaintiffs claim under california business professions code 17200 et seq is dismissed without prejudice this claim is premised on viola tions of tila see fac 80 98100 103 the fdcpa see fac 80 98 respa see fac 80 california civil code 19167b see fac 90 california civil code 191610cii see fac 91 california civil code section 1918519211920 and california civil code 1916710c see fac 93 defendant argues at least with regard to the state statutory allegations that this claim is preempted by the home owners loan act 12 usc 1461 et seq hola and its implementing regulations defendant further argues that plaintiffs claims are preempted by tila motion at 92728 n 1california business and professions code 17200 prohibits acts of unfair competition including any 1 unlawful 2 unfair or 3 fraudulent business practice unlawful practices are any activities that are forbidden by law samura v kaiser foundation health plan inc 17 calapp4th 1284 1292 22 cal rptr2d 20 1993 unfair acts are those that offend an established public policy or are immoral unethical oppressive unscrupulous or substantially injurious to consumers podolsky v first healthcare corp 50 calapp4th 632 647 58 cal rptr2d 89 1996 internal quotations and citations omitted virtually any state federal or local law can serve as the predicate for an action under 17200 idfirst it must be noted as a matter of bookkeeping that to the extent plaintiffs predicate federal statutory claims under tila respa and fdcpa are time barred andor otherwise dismissed as analyzed above plaintiffs state statutory section 17200 claim predicated on these federal statutory violations likewise must necessarily fail and must also be dismissed without prejudice because they do not state an unlawful ucl claim see eg chabner v united of omaha life ins co 225 f3d 1042 1048 9th cir2000 a court may not allow plaintiff to plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition internal quotation marks omitted rubio v capital one bank usa 572 fsupp2d 1157 1168 cdcal2008 finding that since plaintiffs tila claim failed plaintiffs ucl claim predicated on tila likewise failed see also smith v state farm mutual automobile ins co 93 calapp4th 700 718 113 calrptr2d 399 2001 celtech commcns inc v los angeles cellular telephone co 20 cal4th 163 180 83 calrptr2d 548 973 p2d 527 1999 stating by proscribing any unlawful business practice section 17200 borrows violations of other law and treats them as unlawful practices that the unfair competition law makes independently actionable citation omitted thus the court need not address defendants argument that tila preempts a ucl claim that is based on failure to disclose information or materials required by tilathe remainder of defendants preemption argument is focused on the state law claims which defendant argues are preempted by hola hola was enacted by congress to charter savings associations under federal law bank of america v city and county of sf 309 f3d 551 559 9th cir2002 cert denied 538 us 1069 123 sct 2220 155 led2d 1127 2003 and to restore public confidence by creating a nationwide system of federal savings and loan associations to be centrally regulated according to nationwide best practices fid fed sav loan assn v de la cuesta 458 us 141 160161 102 sct 3014 73 led2d 664 1982 hola and its regulations are a radical and comprehensive response to the inadequacies of the existing state system and so pervasive as to leave no room for state regulatory control conference of fed sav loan assns v stein 604 f2d 1256 1257 1260 9th cir1979 affd 445 us 921 100 sct 1304 63 led2d 754 citations omitted because there has been a history of significant federal presence in national banking the presumption against preemption of state law is inapplicable bank of america 309 f3d at 559 internal quotation marks omittedmoreover through hola congress gave the office of thrift supervision ots broad authority to issue regulations governing thrifts silvas v etrade mortg corp 514 f3d 1001 1005 9th cir2008 citing 12 usc 1464 ots promulgated 12 cfr 5602 section 5602 as a preemption regulation which has no less preemptive effect than federal statutes silvas 514 f3d at 1005 quoting de la cuesta 458 us at 153 102 sct 3014 section 5602a provides in pertinent part ots hereby occupies the entire field of lending regulation for federal savings associations ots intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation accordingly federal savings associations may extend credit as authorized under federal law including this part without regard to state laws purporting to regulate or otherwise affect their credit activities except to the extent provided in paragraph c of this section section 5602b provides the types of state laws preempted by section 5602a include4 the terms of credit including amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate balance payments due or term to maturity of the loan including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan5 loanrelated fees including without limitation initial charges late charges prepayment penalties servicing fees and overlimit fees 9 disclosure and advertising including laws requiring specific statements information or other content to be included in credit application forms credit solicitations billing statements credit contracts or other creditrelated documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants10 processing origination servicing sale or purchase of or investment or participation in mortgagesas noted by the ninth circuit court of appeals in silvas 514 f3d at 1005 and 1005 n 1 the ots has described the correct analysis when evaluating whether a state law is preempted under this regulationwhen analyzing the status of state laws under 5602 the first step will be to determine whether the type of law in question is listed in paragraph b if so the analysis ends there the law is preempted if the law is not covered by paragraph b the next question is whether the law affects lending if it does then in accordance with paragraph a the presumption arises that the law is preempted this presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph c for these purposes paragraph c is intended to be interpreted narrowly any doubt should be resolved in favor of preemptionots final rule 61 fedreg 50951 5096667 sept 301996section 5602c provides that the types of state laws not preempted to the extent that they only ineidently affect the lending operations of federal savings associations include contract commercial real property and tort lawhere as argued by defendant the claims relating to the loans negative amortization features and teaser rates and failure to provide adjustable rate mortgage disclosure notice brought pursuant to california civil code 19167 andor 1916710c are preempted by 12 cfr 5602b4 and b9 the claim pursuant to california civil code 191610 for improper failure to downwardly adjust a mortgage is rate is preempted by 12 cfr 5602b4 as well the claims relating to notification of changes in interest rate brought pursuant to california civil code 1918519211920 are preempted by 12 cfr 5602b4 as well to the extent plaintiff makes claims relating to inability to qualify for the loan she was given these are preempted by 12 cfr 5602b10 the court can identify no state law claims alleged within the ucl claim that are not preempted by some portion of 12 cfr 5602b see eg coyotzi v countrywide financial corp no cv f 091036 2009 wl 2985497 14 edcal sept 16 2009 as plaintiff may or may not be able to amend subject to rule 11 to allege defendant is not regulated by hola see footnote 12 plaintiffs claims herein based on these state statutory provisions are dismissed without prejudice for the above reasons plaintiffs claim for relief under section 17200 et seq is dismissed without prejudicef claim for quiet titlefinally plaintiff alleges a quiet title claim plaintiff does not cite any statutory or other basis for this claim either in her fac or in her opposition to the motion to dismiss however defendant cites california code of civil procedure 762010 et seq as the relevant statutory hook construing the fac to benefit plaintiff based on the allegations of this claim the court concludes plaintiff intends to bring this claim under the above statutory provision this claim is dismissed without prejudice as plaintiff has alleged no ability to tenderthe purpose of a quiet title action is to determine all conflicting claims to the property in controversy and to decree to each such interest or estate therein as he may be entitled to newman v cornelius 3 calapp3d 279 284 83 calrptr 435 1970 citation omitted california code of civil procedure 760010 pro vides for an action to establish title against adverse claims to real or personal property or any interest therein and section 761020 mandates a verified complaint that includes 1 a legal description and street address of the subject real property 2 the title of plaintiff as to which determination is sought and the basis of the title 3 the adverse claims to the title of the plaintiff against which a determination is sought 4 the date as of which the determination is sought and 5 a prayer for the determination of the title of the plaintiff against the adverse claims calcode civ proc 761020in order to allege a claim to quiet title plaintiff must allege ability to tender the amounts admittedly borrowed arnolds mgmt corp v eischen 158 cal app3d 575 578 205 calrptr 15 1984 miller v provost 26 calapp4th 1703 1707 33 calrptr2d 288 1994 citations omitted a mortgagor of real property cannot without paying his debt quiet his title against the mortgagee citations omitted see also connors v home loan corp 2009 us dist lexis 48638 2009 wl 1615989 at 7 sdcal2009 in the absence of allegations of ability to tender indebtedness and foreclosure irregularities plaintiffs quiet title claim fails pesayco v world savings inc cv 093926 2009 us dist lexis 73299 35 cdcal july 29 2009 as previously discussed plaintiff has failed to allege an ability to tender thus plaintiffs quiet title claim is dismissed without prejudice to plaintiffs right to amendv conclusiontherefore motion to dismiss docket no 12 is denied as moot the motion to dismiss docket no 24 is granted infull and plaintiffs claims are dismissed without prejudice plaintiff shall have twenty 20 days in which to file a second amended complaint sac failure to timely file a sac within 20 days will result in the sua sponte dismissal of this action with prejudiceit is so ordered1 the court advised plaintiff on september 1 2009 that further failure to comply with the local rules may lead to penalties pursuant to local rule 837 the court did not at that time deny the pending motion to dismiss docket no 12 which pertained to the complaint that has now been superseded by the fac the court now looks to the fac and to the motion to dismiss and other papers filed in connection with the fac accordingly the previous motion to dismiss docket no 12 is denied as moot2 this threeday period may be extended as long as the lender fails to provide material disclosures a point validly made by plaintiff but unnecessary to the decision here see lagrone v johnson 534 f2d 1360 1362 9th cir1976 we agree with the district court that the three omissions were material the threeday period for rescission therefore did not run and the notice of rescission filed by mrs lagrone was timely citing ljepava v mlsc properties inc 511 f2d 935 944 9th cir1975 sosa v fite 498 f2d 114 118 5th cir1974 see 12 cfr 22623a3 n 48 as amended effective date october 1 2009 as to what constitutes material disclosures defendant does not argue in the motion to dismiss that the tila rescission claim is time barred and the court makes no holding on the issue3 see eg lagrone v johnson 534 f2d 1360 1362 9th cir1976 powers v sims levin 542 f2d 1216 1222 4th cir1976 what we do hold is that when rescission is attempted under circumstances which would deprive the lender of its legal due the attempted rescission will not be judicially enforced unless it is so conditioned that the lender will be assured of receiving its legal due rudisell v fifth third bank 622 f2d 243 254 6th cir1980 tila clearly does not require the debtor to tender first it contemplates the creditor tendering first but upon the creditor fulfilling its obligations under the statute the debtor then must tender since rescission is an equitable remedy the court may condition the return of monies to the debtor upon the return of property to the creditor citations omitted emphasis added fdic v dev co 938 f2d 889 890 8th cir1991 tila generally provides that the creditor shall perform first ie return monies paid by the debtor and release its security interest however the act gives courts discretion to devise other procedures 15 usc 1635b including conditioning rescissions upon the debtors prior return of the principal defendant also cites to luciano v weyerhaeuser mortg co 200 fedappx 628 630 9th cir2006 however that opinion is not citable in this context pursuant to ninth circuit rule 3634 the fac alleges that the tender demand requested an itemization of the loan disbursements the loan charges the current principal balance and all payments received so that we may determine the exact amount needed for tender see fac 52 ex 7 and that because wachovia did not respond plaintiff was not able to tender the exact and definite amount even though the court chooses to assume on this motion that such information would not also be in the hands of a typical reasonable borrower there is still no allegation in the fac of any ability to tender any amount whatsoever5 the full relevant paragraph of the yamamoto opinion statesas rescission under 1635b is an ongoing process consisting of a number of steps there is no reason why a court that may alter the sequence of procedures after deciding that rescission is warranted may not do so before deciding that rescission is warranted when it finds that assuming grounds for rescission exist rescission still could not be enforced because the borrower cannot comply with the borrowers rescission obligations no matter what such a decision lies within the courts equitable discretion taking into consideration all the circumstances including the nature of the violations and the borrowers ability to repay the proceeds if as was the case here it is clear from the evidence that the borrower lacks capacity to pay back what she has received less interest finance charges etc the court does not lack discretion to do before trial what it could do afteryamamoto 329 f3d at 11736 see also in re wepsic 231 br 768 776 sdcal 1998 the court finds that wepsics proposal of treating josephsons claim as unsecured and paying her over the course of three or more years cuts against the purpose of rescission which is to return both parties to the status quo ante quenzer v advanta mortgage corp usa 288 br 884 888 dkan2003 within the meaning of tila rescission does not mean an annulment that is definitively accomplished by unilateral pronouncement but rather a remedy that restores the status quo ante7 of course that does not mean that we limit ourselves to the provision in perfect isolation we must instead construe that provision with the statutory scheme in which it is embedded in re bce west lp 319 f3d at 11708the court notes that language in a great many cases appears garbled admittedly because cases speak of equitably conditioning the rescission even though what they really are talking about is equitably modifying the conditioned procedural order in which tila says a rescission will place see eg fdic v hughes development co inc 938 f2d 889 890 8th cir1991 but as previously discussed while not a model of clarity in some respects the statutory and regulatory language at issue do seem to state fairly clearly irrespective of whether or not a security interest is terminated before or after a tender that money received by borrowers shall be tendered back at some procedural point9 one allegation by plaintiff deserves a more detailed response in this regard first plaintiff makes a serious allegation that the promissory note and the deed of trust for the mortgage transaction listed different amounts see fac 21 stating the amount of the loan in the note dated february 21 2008 was 44000000 the amount secured by the deed of trust dated february 21 2008 was 55000000 see also fac 19 62 this might appear to rise to the level of fraudulence required for equitable tolling though it is unclear whether it would represent a tila violation still plaintiff calls this the most glaring tila violation of defendants october 5 opposition 615 even to the extent such a discrepancy would relate to a tila violation and even to the extent if so that it would not have been apparent at the consummation of the transaction hubbard 91 f3d at 79 plaintiff has attached the purported note exhibit 2 and the purported deed of trust exhibit 3 to her fac and these documents controvert the alleged facts in the fac a court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint see eg sumner peck ranch 823 fsupp at 720 the attached deed of trust in fact shows an original principal amount of us 44000000 plus accrued and deferred interest and such other amounts as stated in the note fac exhibit 3 deed of trust part 1d the note likewise is a promise to pay us 44000000 called principal plus interest and any other charges incurred during the course of the loan fac exhibit 2 page 1 the 55000000 referenced by the deed of trust is the maximum aggregate principal balance secured by this deed of trust which is 125 of the original principal note amount fac exhibit 3 deed of trust p 1 this is the analogue provision to paragraph 3f of the note which provides my unpaid principal balance can never exceed 125 of the principal i originally borrowed fac exhibit 2 p 3 paragraph 3f consequently even to the extent a plaintiff would not notice such a discrepancy at the time of consummation of the transaction the facs allegations thus contradicted do not give rise to the sort of fraud that might toll the limitations period10 plaintiff also cites nonbinding outofstate and outofcircuit authority in the fac rather than in her opposition for the proposition that the oneyear statute of limitations does not apply when tila claims are asserted as a defense to a nonjudicial foreclosure claim at least one district court in this circuit has recently reached the opposite conclusion see ortiz v accredited home lenders inc 639 fsupp2d 1159 116465 sdcal200911 there is no 15 usc 1692a6fiii and the court assumes generously to the plaintiff that she meant to make allegations relating to 15 usc 1692a6fiii12 defendant has asked the court to take judicial notice 1 of other cases that treated wachovia mortgage fsb as a federal savings bank regulated by the office of thrift supervision and subject to hola 2

holding that appellate briefing did not contain unequivocal and deliberate admission in light of all the arguments and statements made in the briefing

0

to adjudicate plaintiffs claims because plaintiff “does not allege, and cannot demonstrate, that his conviction has been reversed or set aside upon grounds of innocence.” Def.’s Mot. 4. To support its argument, defendant quotes 28 U.S.C. § 1495: “ ‘[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.’ ” Id. (quoting 28 U.S.C. § 1495). Defendant then states that “[f]or the Court of Federal Claims to have jurisdiction pursuant to [Section 1495, a plaintiff must allege that his conviction has been reversed or set aside for one of the reasons listed in [Section] 2513.” Def.’s Mot. 4 (citing Salman v. United States, 69 Fed.Cl. 36, 39 (2005) (<HOLDING>)). Defendant argues that plaintiff “has failed

holding that section 311034 does not make section 890041 jurisdictional

holding 2513 to be jurisdictional and therefore must be strictly construed

holding that section 1495 does not stand alone and must be read in conjunction with section 2513

holding that section 1397k should be read to preserve state law claims

holding 362h should be construed more broadly than its literal language and should be read in conjunction with all of 362

2

a compensation claim to a conclusion on the merits, may file an action against an employer for that workplace injury under these circumstances if the employer’s conduct is to the level of intentional conduct substantially certain to result in injury for which workers’ compensation immunity is not available. Jones, 932 So.2d at 1105 (emphasis added). Vallejos improperly relies on Jones because Jones dealt with waiving the right to pursue an action under an intentional tort theory. All Jones means for Vallejos is that he can still pursue a civil action based upon an exception to the exclusivity of the workers’ compensation statute because none of those claims were litigated in the workers’ compensation case. See Petro Stopping Ctrs., L.P. v. Gall, 23 So.3d 849, 852 (Fla. 5th DCA 2009) (<HOLDING>); Vasquez, 962 So.2d at 413-14 (emphasis added)

holding that the plaintiffs lawsuit which was filed despite a general release in the parties settlement agreement constituted a material breach of the settlement agreement

holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt

holding that gall waived her right to sue for an intentional tort because her mediated settlement was a conclusion on the merits due to the fact that the settlement agreement provided that petro accepted gall as permanently and totally disabled

holding that because the alleged settlement was never approved by the court under rule 9019 the settlement agreement was unenforceable

holding that trial court did not err by refusing to enforce mediated settlement agreement that contained an illegal provision

2

was required because they were all members of the unit sharing in all production from the unit. Because the Ohrt-Heinold No. 1 Well was the only well in the unit, if appellants had prevailed on their claims seeking cancellation of the unit, appellants would have received all royalties from that well, and other unit lessors, including the McAdams and Chilcoats, would be entitled to no royalties on the Unit’s production from the well. Appellees further assert that the evidence showed that the Ohrt-Heinold Well was draining gas from under the McAdams’ and Chilcoats’ lands, entitling them to a share of the production from the well. We conclude that the trial court did not abuse its discretion in allowing joinder of the third-party defendants. See Royal Petroleum Corp., 332 S.W.2d at 316-17 (<HOLDING>); Veal v. Thomason, 138 Tex. 341, 159 S.W.2d

holding trial court did not abuse its discretion in finding that the energy company defendants lessors the owners of royalty interests in the property at issue and the owners of the mineral estate in unleased part of the 9200 acres should be joined as parties if feasible

holding that the trial court did not err in denying a plea in abatement to obtain joinder of other royalty owners in a pooled unit on grounds that the presence of the other royalty owners was not necessary to determine whether sabre pooled in bad faith and breached the terms of the lease

recognizing reverse piercing when other shareholders and creditors are not adversely affected

holding trial court has discretion to require joinder of royalty interest owners whose interests will be directly and possibly adversely affected by decree in trespass to try title action

holding trial court did not abuse its discretion in failing to require joinder of owners of nonpossessory royalty interests and possibilities of reverter in partition suit between owners of mineral leasehold estate although it would be wise to join them

3

been excused was excused. See Ross, 487 U.S. at 88, 108 S.Ct. 2273. The deprivation that remains in this cireumstance is the loss of the peremptory challenge. Thus, the harm to be evaluated is the harm attributable to the loss of one of the statutorily limited-in-number peremptory challenges. See State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993). 1 25 Second, in Novotny, the court appears to have regarded the error at issue in a case such as this as the deprivation of a peremptory challenge. See Novotny, I 14 (referring to the "erroneous ruling on a challenge for cause adversely impacting the defendafit’s ability to shape the jury through peremptory challenges"), 122 (same), 128 (referring to the "violation of our statutes and rules prescribing the use of peremptory challenges"), 1 27 (<HOLDING>). As discussed, such a deprivation is not a

holding that the defendant was precluded from asserting error where the defendant had used all of his peremptory challenges and did not ask for more

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 peremptory challenges may not be exercised in a discriminatory manner

holding that where a defendant does not use all of his or her peremptory challenges the defendant may not complain of prejudice for failure to dismiss prospective jurors

holding that allowing a defendant fewer peremptory challenges than authorized or than available to and exercised by the prosecution does not in and of itself amount to structural error

4

Nor did Hatcher allege facts underlying a claim of constitutional error that would show by clear and convincing evidence that, but for the error, no reasonable fact finder would have found him guilty of the underlying offense. Id. Most importantly, however, Hatcher did not present a timely, cognizable claim in his habeas petition. Because he presented an untimely claim, no purpose would be served by inquiring into the defaulted claim by way of an evidentiary hearing. The judgment of the District Court is affirmed. 1 . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. 2 . Nor did Hatcher's 1997 federal habeas petition toll the limitation period for his 1999 petition. See Duncan v. Walker, - U.S. -, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001)

holding statute of limitations period defined in 28 usc 2244d is subject to equitable tolling

holding that the other collateral review provision of 2244d2 encompasses federal review

holding that 2244d is subject to equitable tolling in appropriate cases

holding for the same reason that motion for appointment of counsel does not toll the period for filing a federal habeas petition

holding that the filing of a first federal habeas petition is not an application for other collateral review under the tolling provision of 2244d

4

from bringing a claim if (1) a court of competent jurisdiction (2) rendered a final judgment on the merits (3) on the same claim (4) in a prior action between the same parties or their representatives. In re Int’l Nutronics, Inc., 28 F.3d 965, 969 (9th Cir.1994). The doctrine bars all grounds for recovery that could have been asserted, regardless of whether they actually were asserted, during the prior action. Id. Defendant MTC argues that the present suit is barred by res judicata because of this Court’s final judgment in the Sierra Club/CBE litigation. See Citizens for a Better Env’t v. Wilson, No. C89-2044 TEH, Judgment (N.D.Cal. Aug. 27, 1992). The Court was a court of competent jurisdiction, thereby satisfying the first res ju-dicata requirement. CBE I, 731 F.Supp. at 1454-58 (<HOLDING>). Even though it was entered into by

holding a suit against an agency of the state is a suit against the state

holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit

holding that judicial review under the apa is precluded when a remedy is available under a citizen suit provision of an environmental statute citations omitted

holding in a patent case that when the plaintiff brought the suit in federal district court it submitted itself to the jurisdiction of the court with respect to all the issues embraced in the suit including those pertaining to the counterclaim of the defendants

holding that the court had jurisdiction to hear the suit under the citizen suit provision of the caa

4

in the wrongful-death action does not constitute a payment of White’s liabilities or debts and, therefore, does not run afoul of § 6-5-410(c), as Rodgers argues. Accordingly, we conclude that the trial court did not err in awarding McElroy a fee from the proceeds derived from the wrongful-death claim. Rodgers also argues that the fee of $15,750 that the trial court awarded to McElroy was excessive. The fee is 9% of the $175,000 in wrongful-death proceeds collected. Rodgers did not file a post-judgment motion challenging the amount of the award. “The long-established precedent in Alabama caselaw is that an appellate court cannot reverse a trial court’s judgment on an argument that was not first presented to the trial court. See Belcher v. Belcher, 18 So.3d 946, 948 (Ala.Civ.App.2009) (<HOLDING>); Smith v. Equifax Servs., Inc., 537 So.2d 463,

recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review

holding that defendant failed to raise a constitutional issue at trial and thus failed to preserve the issue for appellate review

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

holding to preserve an issue for appellate review the issue must have been raised to and ruled upon by trial court and a party may not argue one ground for objection at trial and another ground on appeal

holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court either at trial or in his postjudgment motion

4

prescription exception in the definition of the offense. Nor do we believe that the “except as otherwise provided” language is so “incorporated with the language describing and defining the offense” that all other potential exceptions or exemptions become elements of the offense. In light of the Segovia decision, and the subsequent enactment of I.C. § 37-2745, we deem it clear the Legislature intended that absence of an “exemption or exception,” such as a “valid prescription” or other “authority” to deliver, shall not be an element of the crime of possession or delivery of a controlled substance. Rather, the existence of a valid prescription or other “exemption or exception” must be placed in issue by the accused. Compare, e.g., State v. Huggins, 105 Idaho 43, 665 P.2d 1053 (1983) (<HOLDING>). This leaves the instruction as given. We

holding that the crime of rape is a lesser included offense of the crime of felony murder in the perpetration of rape and that since the latter crime included all of the elements of the former consecutive sentences were therefore improper

recognizing a privacy interest in the intimacies of the marital relationship

holding that evidence of uncharged incest with the same victim is admissible to illustrate the relationship existing between the defendant and the victim

holding that mistake as to the age of the victim is no defense to statutory rape

holding that elements of rape do not include proof of the absence of a marital relationship between the accused and the victim

4

collective knowledge of each individual Defendant and the Enterprise as a whole. Accordingly, the Government has met its burden to show that Defendants acted with the specific intent to defraud or deceive. a. Defendants Are Liable for the Acts of Their Officers, Employees, and Agents Each Defendant is liable for the acts of its officers, employees, and agents. Because a corporation can act only through its agents, it may be held liable for the acts of its officers, employees, and other agents in certain circumstances. Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); New York Cent & Hudson R.R. v. United States, 212 U.S. 481, 494, 29 S.Ct. 304, 53 L.Ed. 613 (1909) (<HOLDING>); R.R. Co. v. Hanning, 82 U.S. 649, 657, 15

holding that a corporation is held responsible for acts not within the agents corporate powers strictly construed but which the agent has assumed to perform for the corporation when employing the corporate powers actually authorized and in such eases there need be no written authority under seal or vote of the corporation in order to constitute the agency or to authorize the act

recognizing that agents of a corporation may be held criminally responsible for crimes committed in the name of the corporation

holding that corporation will be liable under false claims act if agent acts with apparent authority even if corporation received no benefit from agents fraud

holding that the funds in the privatelyheld corporations account belonged to the corporation not to the individuals who owned the corporation and expressly stating that directors officers and shareholders of a corporation do not have standing to claim an ownership interest in corporate property in their individual capacities they must state a claim in the corporate name

holding that a corporation could be served by delivering a copy of the subpoena to an officer or managing or general agent of the corporation and that the agent could be an individual a partnership or another corporation

0

1907 ("[T]he forum clause should control absent a strong showing that it should be set aside .... [the resisting party should] clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.”). 77 . See, e.g., Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 130, 740 N.E.2d 195 (2000) (quoting The Bremen, 407 U.S. at 18, 92 S.Ct. 1907). 78 . Lambert, 983 F.2d at 1116. 79 . Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 17 (1st Cir.2009). 80 . Id. (quoting 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). 81 . 1st Am. Compl., Ex. B [# 15]. 82 . 1st Am. Compl., Ex. B [# 15]. 83 . See, e.g., Lambert, 983 F.2d at 1112-13 (<HOLDING>); Action Corp. v. Toshiba Am. Consumer Prods.

holding that remand to state court was appropriate where mandatory forumselection clause placed venue in a specified county of the state

holding that a forumselection clause was mandatory where it stated that for any action brought to enforce such terms and conditions venue shall lie exclusively in clark county washington

holding that a forumselection clause was mandatory because it provided for exclusive jurisdiction and venue in a particular court

recognizing that shall will and must are all mandatory terms

holding clause reading the parties agree that in any dispute jurisdiction and venue shall be in california to be mandatory

1

that failure to do so would result in revocation. In United States v. Salas-Camacho, 859 F.2d 788 (9th Cir.1988), this court held that a false statement remains material when a declarant recants it only after he is confronted with suspicion on the part of a government agent and is faced with an imminent inspection that would reveal the truth. Id. at 791-92. Bound by that precedent, we affirm Johnson’s conviction on Count Five. For similar reasons, we hold that the jury instructions regarding Count Five adequately reflected the law as set forth in Salas-Camacho and, therefore, were not erroneous. The prosecutor’s statements in closing argument regarding the officers’ lack of motivation to lie constituted improper vouching. See United States v. Combs, 379 F.3d 564, 574-76 (9th Cir.2004) (<HOLDING>). However, we conclude that in this case such

holding that the prosecutors question to the defendant about a prior unrelated offense was improper

holding that while not reversible error a prosecutors vouching for a witness was improper and should be avoided on retrial

holding that prosecutors remark vouching for credibility of government agent was certainly improper

holding the prosecutors argument if it was there they can bring it to you was not an improper jury argument

holding that a prosecutors argument about the special agents disincentive to lie was impermissible vouching

4

of the discovery rule, the statute of limitations is tolled until an injured party discovers or reasonably should discover, (1) that she has been injured and (2) that her injury has been caused by another party’s conduct). While knowledge of the cause of injury is pertinent to determining the date on which the statute of limitations begins to run, it has no special relevance to determining the date an insurance policy is triggered, unless specifically required by the language of the applicable policy of insurance. Compare Wilson, 964 A.2d at 362 n. 3 (explaining that tolling the statute of limitations until the cause of injury is reasonably discoverable is necessary to protect the litigation rights of persons who suffer latent injuries) with Kvaerner Metals Div., 908 A.2d at 897 (<HOLDING>). Here, the language of the Penn National

holding that in interpreting a contract the actual purpose and intent of the parties must be derived

holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer

recognizing that in interpreting a statute our primary purpose is to ascertain the intent of the legislature

holding that the primary goal when interpreting an insurance contract is to ascertain the intent of the parties as manifested by the language of the specific insurance policy

holding that an arbitration award involving the appellants challenge to the failure of the insurance company to ensure that he had read and understood a signed waiver and to attach the waiver to the insurance policy as contrary to public policy is not reviewable by the courts because there is no challenge to a provision or term of the policy the appellant never claimed that the waiver or policy language itself was contrary to the public policy of this commonwealth

3

would help solve the crime.... ” Motive is one of the permissible purposes listed in Rule 404(b) not because the “why” helps solve a crime, but because it is highly relevant to show that a defendant had a motivation to commit the crime for which he is being charged. In a case like this, where Lee is asserting that he never had a gun on the day in question, it is important to know that he had a personal motivation to possess a gun. Indeed, someone who is involved in an ongoing feud — a feud during which guns have been used — is far more likely to have a gun in his possession than someone who is not involved in such a feud. United States v. Lee, 612 F.3d 170, 187 n. 19 (3d Cir.2010) (citation omitted and emphasis added); see also United States v. Harris, 587 F.3d 861, 868 (7th Cir.2009) (<HOLDING>); United States v. Weems, 322 F.3d 18, 25 (1st

holding that evidence of gang involvement was properly admitted to prove motive for participating in the alleged crimes

holding appellate counsel did not provide ineffective assistance of counsel by failing to appeal district courts decision to admit evidence that defendant was a member of a gang because gang membership was relevant to show motive and intent

holding the district court properly admitted expert testimony on defendants active gang membership

holding that evidence of gang membership was admissible because the testimony also reflected harriss motive for possessing these particular firearms

holding gang membership admissible because it did not substitute for evidence of actual participation in the drug distribution conspiracy

3

is led around by others? Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? Can the person hide facts or lie effectively in his own or others’ interests? Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Id. at 8-9. Although a jury determined the issue of mental retardation in this case, it is important to note at the outset that a jury determination of mental retardation is not required. See Schriro v. Smith, 546 U.S. 6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005) (<HOLDING>); see also Briseno, 135 S.W.3d at 9 (holding

holding that the ninth circuit erred in requiring arizona courts to conduct a jury trial to resolve mentalretardation claim

holding trial court erred in giving jury instruction requiring scienter in franchise fraud case

holding that the ninth circuit erred because the state appellate courts conclusion that one incorrect statement in jury instructions did not render the instructions likely to mislead the jury was not unreasonable

holding that the sixth circuit erred in finding that the state courts jury instructions were contrary to clearly established federal law

holding that the ninth circuit erred by failing to defer to the bias reasonable interpretation of the ina

0

v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981), included as a reason for its denial of the defendant’s motion to strike certain errata sheets that the original answers to the deposition would remain part of the record and could be read at trial, stating that “[t]he witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he changed his testimony.” In addition, district courts have provided another safeguard against abuse by allowing the deposing party to reopen the examination if the changes render the deposition useless or incomplete without additional testimony. See Tingley, 152 F.Supp.2d at 120 (<HOLDING>); Perkasie Indus. Corp. v. Advance Transformer,

holding that cjourts generally construe rule 30e broadly to permit any changes to the deposition even those having the effect of contradicting the original answers regardless of how unconvincing the deponents explanation for making the changes might be

holding that where a jury fails to return unanimous answers to some of the questions on a special verdict form the trial judge can enter judgment on the basis of the unanimous verdicts if they are dispositive of the case

holding that in light of the trial courts inquiry the defendants verbal responses and the defendants answers to the questions on the transcript of plea the trial court did determine that defendant was fully informed of the consequences of his choice to enter an alford plea

holding to prove possession the state must show that a defendant possessed a certain substance the substance was illegal and he had knowledge of the presence of the substance

holding that rule 30e allowed deponent to change the substance of his answers but reconvening the depositions for the limited purpose of inquiring into the reasons for the changed answers and where the changes originated

4

(although they certainly may be persuasive).” Mathai v. Warren, 512 F.3d 1241, 1248 (10th Cir.2008). “For purposes of most bankruptcy proceedings, property interests are created and defined by state law. Once that state law determination is made, however, we must still look to federal bankruptcy law to resolve the extent to which that interest is property of the estate” under § 541. Parks v. FIA Card Servs., N.A., 550 F.3d 1251, 1255 (10th Cir.2008) (citations and quotations omitted); 11 U.S.C. § 541(a)(1). We first consider whether and to what extent Debtors have an interest in the SARs under Kansas law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); see, e.g., Williamson v. Hall, No. KS-08-088, 2009 WL 4456542, at *8 (10th Cir. BAP Dec. 4, 2009) (<HOLDING>). We then consider whether that interest

holding that a debtors interest in a tenancy by the entirety is property of the bankruptcy estate under section 541 because of debtors undivided present interests in the use possession income and right of survivorship of the property

holding contingent prepetition property rights were sufficiently rooted in the prebankruptcy past to be part of the bankruptcy estate under 11 usc 541

holding that pay on death accounts were not part of the bankruptcy estate under 541 because under kansas law debtor had no property interest in the accounts until the death of the owner

holding inmates possess a constitutionally cognizable property interest in the interest earned on money held in their prison accounts

holding that because prisoner did not have private property interest in his prison accounts there could be no unconstitutional taking

2

the defendants exported them intact for reuse in monitors. And he did so without providing any explanation of what constitutes “processing” or how it impacts the original intended purpose requirement. Cf. United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir.2013) (noting that while an expert may refer to the law in expressing an opinion, testimony raises concerns “when an expert uses a specialized legal term and usurps the jury’s function”); McIver, 470 F.3d at 552 (expert testimony’s overreliance on terms that “have a separate, distinct and specialized meaning in the law different from that present in the vernacular” risks crossing the line into unhelpful and inadmissible testimony (internal quotation marks omitted)). Thus, the district court erred, by permitting Mr th Cir.1991) (<HOLDING>). Because the defendants claim Mr. Smith’s

holding that the probative value of contested evidence far outweighed any danger of unfair prejudice where any potential unfair prejudice was cured by a limiting jury instruction

recognizing that a limiting instruction has the potential to cure any prejudice from the erroneous admission of evidence

holding improper admission of extrinsic evidence may be cured by adequate limiting instruction

holding that written instructions did not cure erroneous oral instruction

holding potential for unfair prejudice related to evidentiary issue dispelled by the circuit courts limiting instruction to the jury

1

purposes of the EAJA, and whether the Government’s position was “substantially justified” is uncontested. The primary issue in this case is whether Murkeldove and the Vinning Plaintiffs incurred fees as contemplated by the EAJA. Here, the parties entered into contingency-fee agreements with their attorneys for the payment of an EAJA award. Thus, as a threshold matter, we must determine whether contingency-fee agreements are allowed under the EAJA. The Commissioner and Plaintiffs agree that Plaintiffs have incurred fees, and our analysis in United States v. Claro, 579 F.3d 452 (5th Cir.2009), supports this determination. The plaintiff in Claro sought attorney’s fees and expenses pursuant to the Hyde Amendment, which incorporates the requirements articulated in section 2412 4th Cir.1992) (<HOLDING>); Phillips v. Gen. Servs. Admin., 924 F.2d

holding parties agreement provided clear contractual justification for the award of costs and expenses including attorneys fees to the prevailing party

holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees

holding that under the eaja a prevailing party with an unconditional right to be indemnified for his legal expenses by a solvent third party had not incurred attorneys fees

recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea

holding that under the eaja a litigant did not incur fees when his former employer agreed to pay his legal fees and expenses

2

a contributory negligence defense would absolve such providers from tort responsibility in the event of medical negligence and thus operate to undermine substantially such providers’ duty of reasonable care. Numerous other jurisdictions agree that, where a patient seeks medical treatment for a condition that may have arisen in whole or in part from the patient’s own negligence, such negli Dist.Ct.App.1975) (“[C]onduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment ... simply is not available as a defense to malpractice which causes a distinct subsequent injury — here, the ultimate injury, wrongful death”). But see Krklus v. Stanley, 359 Ill.App.3d 471, 480, 295 Ill.Dec. 746, 833 N.E.2d 952, 960 (2005) (<HOLDING>) (quotation marks omitted). The convergence of

holding that the absence of privity does not constitute a policy reason for not imposing liability where negligence is a substantial factor in causing the harm alleged

holding that a motion for rule 37 sanctions should be promptly made thereby allowing the judge to rule on the matter when it is still fresh in his mind and that the motion should normally be deemed waived if it is not made prior to trial

recognizing the general rule that a property owner is not liable for the negligence of an independent contractor

holding that the obviousness of a danger is a factor for comparative negligence not a bar to recovery

recognizing an exception to the general rule that the patients conduct prior to treatment should not be considered in assessing damages holding that comparative negligence applies when the plaintiffs negligence is a legally contributing cause of his harm if but only if it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it

4

requested are. reasonable in light of the complexity of the litigation and the number of counsel involved, and are therefore approved by the Court. Linney v. Cellular Alaska P’ship, No. C-96-3008 DLJ, 1997 WL 450064, at *7 (N.D. Cal. July 18, 1997). The Court does not find this case persuasive in light of its cursory discussion and the more recent and ERISA-specific authority cited above. The other three cases cited by Plaintiffs, ECF No. 153 at 19-20, support an award of non-taxable costs as part of a reasonable attorneys’ fee, but expert fees were not awarded—or addressed—in any of those cases. Redland Ins. Co., 460 F.3d at 1258-59 (allowing recovery in ERISA case of “reasonable charges for computerized research”); Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577 (9th Cir. 2010) (<HOLDING>); Langston v. N. Am. Asset Dev. Corp. Grp.

holding that postage charges and telecopy charges are not taxable costs

holding that federal express costs telephone expenses and postage expenses did not qualify as taxable costs

holding that 1920 does not authorize taxing mediation fees as costs

holding that mediation costs are not compensable

holding that fair credit reporting act allows nontaxable costs and remanding to district court to consider whether to award claimed nontaxable costs which included the cost of postage facsimiles travel mediation services and video conferencing services used in depositions

4

employed by American at Logan, seven skycaps were employed by G2 at Logan, one skycap had formerly been employed by G2 at Logan, and one skycap was employed by American in St. Louis, Missouri. 2 . The district court permitted only seven of the nine Logan skycaps to pursue both theo fies at trial. During discovery, two skycaps asserted their privilege against self-incrimination to withhold their tax records; those two skycaps were precluded from presenting evidence of damages that would have been required to make out a claim for tortious interference. The district court also made clear to the jury that no duplicative recovery would be permitted for skycaps who prevailed on both theories. 3 . See Brown v. United Air Lines, Inc., 656 F.Supp.2d 244, 249-51 (D.Mass.2009) (Gertner, J.) (<HOLDING>); Travers v. JetBlue Airways Corp., No.

holding tips law preempted

holding that the plaintiffs state law claims are preempted by federal law

holding the state law claims were not preempted

holding that state law claim regarding breach of settlement agreement was preempted by federal labor law

holding misrepresentation claim to be preempted

0

in the English Court, and did not dispute its jurisdiction over him, but did raise numerous defenses during the English Action. The English Court ruled against Mullin on each of the defenses he asserted against his obligation to pay the Equitas Premium, and entered judgment in Lloyd’s favor on March 11, 1998 (the “English Judgment”). To date, the English Judgment remains unsatisfied, and led to the instant matter. On March 8, 2002, Lloyd’s filed its Complaint in this Court, seeking enforcement of the English Judgment against Mullin. Lloyd’s moved for summary judgment thereafter, and the motion is now ripe for a decision. This Court’s jurisdiction is premised on diversity of citizenship, and Pennsylvania law governs. See 28 U.S.C. § 1332; Choi v. Kim, 50 F.3d 244, 248 n. 7 (3d Cir.1995) (<HOLDING>). II. STANDARD OF REVIEW ON SUMMARY JUDGMENT

holding that in diversity cases federal courts are to apply state substantive law and federal procedural law

holding that federal courts must apply state substantive law in diversity cases

holding that state substantive rules of decision apply in federal diversity cases

holding in diversity cases without any federal question state law governs district courts determination of whether to recognize a foreign country judgment

holding that the declaratory judgment act as opposed to state law governs cases removed on the basis of diversity jurisdiction under an erie analysis

3

himself planned to do so.” Id. at 13,120 S.Ct. 1942. The Court carefully noted, however, that it did “not address whether a bankruptcy court can allow other interested parties to act in the trustee’s stead in pursuing recovery under § 506(c).” Id. at 13 n. 5, 120 S.Ct. 1942. Noting the “practice of some courts of allowing creditors ... a derivative right to bring avoidance actions when the trustee refuses to do so, even though the applicable Code provisions mention only the trustee,” the Court explained that this practice “ha[d] no analogous application here, since [Hartford] did not ask the trustee to pursue payment ... and did not seek permission from the Bankruptcy Court to take such action i enics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 580 (3d Cir.2003) (en banc) (<HOLDING>). Two other circuits have continued to approve

holding that bankruptcy courts can authorize creditors committees in chapter 11 proceedings to sue derivatively to avoid fraudulent transfers for the benefit of the estate notwithstanding hartford underwriters

holding that the purpose of the bankruptcy codes avoidance provisions is to prevent a debtor from making transfers that diminish the bankruptcy estate to the detriment of creditors

holding that derivative standing is available to a creditor to pursue avoidance actions when it shows that a chapter 7 trustee or debtorinpossession in the case of chapter 11 is unable or unwilling to do so notwithstanding hartford underwriters

holding that a creditors security was preserved notwithstanding the bankruptcy of the debtor

holding that the transfers at issue were not fraudulent transfers because they did not diminish the debtors estate

0

violation of petitioner’s right to a speedy trial where the lower court would have rejected claim as merit-less, and where petitioner could not have shown prejudice because government could have acquired new indictment on the same conduct); Walker v. Bennett, 262 F.Supp.2d 25, 37 (W.D.N.Y.2003) (denying petitioner’s- ineffective assistance of counsel claim premised upon counsel’s alleged failure to move for recovery from a speedy trial where the under lying speedy trial claim “would not have been successful[.]”). “Failure to make a meritless argument does not amount to ineffective assistance.” United States v. Arena, 180 F.3d 380, 396 (2d Cir.1999) abrogated on other grounds by United States v. Sekhar, 683 F.3d 436 (2d Cir.2012) rev’d — U.S.-, 133 S..Ct. 2720, 186 L.Ed.2d 794 (2013). (<HOLDING>). 3. Rule as Applied to Appellate Counsel

holding the defendant did not demonstrate a denial of his sixth amendment right to a speedy trial where even though the delay was substantial and the defendant was detained pretrial for three years the fault for the delay was shared and the defendant continued to request continuances following his assertion for the right to a speedy trial

recognizing in a case where the court sua sponte reduced the attorneys fee request that the district court has discretion to reduce the amount of the fee request and stating when defense counsel fails to do so the district court should not reward the defendants by denying the plaintiffs counsel an opportunity to defend his claim against specific challenges whatever their source

holding defendants right to counsel not violated despite district court denying pretrial request by the defendant to discharge his attorney where request was made on eve of trial and was openly part of attempt to have the district judge recuse himself and delay trial

holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion

holding that trial court erred in denying defendants request to allow standby counsel to conduct voir dire where there was no indication that the trial court considered the koehler factors or that granting the request would have disrupted or delayed the trial

2

the application of the doctrine of laches, the prejudice alleged by plaintiff simply does not match up to defendant having been dispossessed of her home and belongings without plaintiffs compliance with its procedural notice obligations. In these circumstances, where plaintiff cannot demonstrate compliance with the procedural requirements precedent to a valid mortgage foreclosure action, a conclusion to the contrary in respect of the applicability of the doctrine of laches lacks rationality, inexplicably departs from established policies, and rests, therefore, on an impermissible basis. Thus, despite the deference rightly owed to the Chancery Division in this context, its decision cannot be sustained. See, e.g., Assoulin v. Sugarman, 159 N.J.Super. 393, 397, 388 A.2d 260 (App.Div.1978) (<HOLDING>); Orange Land Co. v. Bender, 96 N.J.Super. 158,

holding that where property subject to the irss timely filed lien is sold during a nonjudicial sale and the irs is not given notice of the sale the sale of the property is made subject to and without disturbing the lien

holding that failure to comply with rule requiring notice of sheriffs sale requires voiding of sale

holding that failure of irs to provide statutory notice of sale caused sale to be voidable ab initio

holding that a failure to comply with the foreclosure statutes invalidates a foreclosure sale

holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale

1

that her constitutional injury resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to condonation or tacit authorization .... ” Rodríguez-García v. Miranda-Marin, 610 F.3d 756, 768 (1st Cir.2010) (internal quotation marks and citation omitted). A plaintiff can either show that the particular defendant personally participated in the deprivation of his or her rights, or can indirectly show that defendant “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause other to inflict the constitutional injury.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 51 (1st Cir.2009) (quoting Gutierrez-Rodriguez, 882 F.2d at 561); see also Penalbert-Rosa v. Fortufio-Burset, 631 F.3d 592, 594-95 (1st Cir.2011) (<HOLDING>). Defendants maintain Plaintiffs have failed to

holding that witness was not an accomplice in distributing marijuana to himself

holding a named defendant could be someone that participatedeither as a perpetrator or an accomplice in the decision to dismiss plaintiffs

holding that motion to dismiss cannot be treated as summary judgment

holding that the district courts decision to dismiss will be affirmed unless it has abused its discretion

holding that appellants could have amended as of right after they received the motion to dismiss and prior to the trial courts decision

1

included the following: Base Offense Level for 1.6 Kilograms of 38 Cocaine Base Firearms +2 Organizer Roll +4 Adjustment for Acceptance of Responsibility -3 Total Offense Level 41 At this offense level, the district court possessed the discretion to sentence McKnight to 360 months, taking into consideration his guilty plea and zero criminal history points (category I). However, at sentencing the government sought a two-point enhancement for obstruction of justice based upon McKnight’s alleged attempt to convince a co-defendant to withdraw his guilty plea. This particular claim was not included voluntarily pleaded guilty to the charge, and that he failed to show a “fair and just” reason for withdrawal of his guilty plea. See United States v. Yell, 18 F.3d 581, 582 (8th Cir.1994) (<HOLDING>). McKnight next claims that the plea agreement

holding that a criminal defendant must provide a fair and just reason to support withdrawal of his guilty plea even when that plea has not yet been accepted by the district court

holding that in passing 21 usc 846 congress left the common law burden of proving the affirmative defense of withdrawal on the defendant rather than requiring the government to prove nonexistence of withdrawal

holding that defendant was responsible for the delay from the withdrawal of his guilty plea

holding that the defendant has the burden of proving a fair and just reason for withdrawal of a guilty plea

holding that the government was not responsible for delay from withdrawal of guilty plea

3

through a post-verdict review, rather than with pre-verdict jury instructions. Similarly, Williams’ holding is inapposite in the context of the reasonable relationship inquiry. Williams mandates that juries receive proper instruction on harm to nonparties, an instruction that is essential if the jury is to calculate the proper amount of punitive damages. But the reasonable relationship inquiry is markedly different from the jury’s determination of a specific amount of punitive damages; its purpose is to aid in ascertaining the constitutional ceiling. Unlike the initial damage calculation, determining the constitutional ceiling on a punitive damage award is a question of law, properly reserved for the court. See Bains LLC v. Arco Prods. Co., 405 F.3d 764, 777 (9th Cir.2005) (<HOLDING>). Although states are certainly free to

holding that whether a previous conviction is a crime of violence is a question of law not of fact as it must be determined by interpreting 4b12

holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court

holding that when a prr sentence is determined to be illegal the defendant is entitled to a de novo resentencing

recognizing that determination of appropriate sentence to be imposed should ordinarily be determined by the trial court on remand rather than at the appellate level

holding state of the law must be determined at time of challenged action

1

that the required TILA disclosures were not made. Accordingly, the court limits its analysis of Plaintiffs' claim for rescission to the allegation that the required copies of the notice of their right to rescind were not provided. 9 . Courts are split over whether a borrower can recover damages and attorney's fees against an assignee who fails to honor a valid rescission notice. Compare Brodo v. Bankers Trust Co., 847 F.Supp. 353, 359 (E.D.Pa.1994) ("Neither § 1641 nor any other section provides for a statutory penalty or an award of attorney’s fees to a plaintiff should an assignee fail to respond to a valid rescission notice. Rescission is therefore the only remedy [] to which plaintiff is entitled.”) with Fairbanks Capital Corp. v. Jenkins, 225 F.Supp.2d 910, 916-17 (N.D.Ill.2002) (<HOLDING>). This court has not found a Fourth Circuit

holding that plaintiffs are entitled to attorneys fees for time spent litigating the fees issue on appeal under title viis attorneys fee provision

holding that attorneys fees are necessaries in a civil suit to recover money or property for the minor

holding party not entitled to recover attorneys fees without also recoveringdamages for breach of contract in part because attorney fees are in the nature of costs not damages

holding that although attorneys fees are usually not recoverable unless permitted by statute or contract contractual or statutory authorization was not necessary in a malpractice claim to recover attorneys fees and costs as damages

holding that plaintiffs are entitled to recover attorneys fees against an assignee who wrongfully refuses to rescind and suggesting that such plaintiffs are also probably entitled to recover statutory damages

4

“,[t]he vital test in determining whether an agency relationship exists is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.” Id. at 636, 532 S.E.2d at 257 (internal quotation marks omitted). Specifically, “ ‘the principal must have the right to control both the means and the details of the process by which the agent is to accomplish his task in order for an agency relationship to exist.’ ” Wyatt v. Walt Disney World Co., 151 N.C. App. 158, 166, 565 S.E.2d 705, 710 (2002) (emphasis added) (quoting Williamson v. Petrosakh Joint Stock Co. of the Closed Type, 952 F. Supp. 495, 498 (S.D. Tex. 1997)). See also Hoffman v. Moore Reg’l Hosp., Inc., 114 N.C. App. 248, 251, 441 S.E.2d 567, 569 (<HOLDING>), disc. review denied, 336 N.C. 605, 447 S.E.2d

holding that the principal must have control and supervision over the details of the agents work

holding that a principal does not have an action against his agent for indemnification based on the agents misrepresentations because the principal was not blameless in the misrepresentations made to the third parties

holding a principal liable for its sales agents misrepresentations

recognizing that enhancement requires control over a participant in the scheme not only control over the scheme itself

holding that the principal is liable for an agents acts committed within the scope of the agents employment

0

B The government argues, in the alternative, that even if § 216(b) gives the district court discretion to impose a penalty in an amount less than the unlawful payment, the court “abused its discretion in considering evidence of POGO’s good faith” without “holding a fair hearing to provide the Government with the opportunity to supplement the record” on that issue. Gov’t Br. 57-58. We note that the government never expressly sought such a hearing, but rather described to the court the evidence it would proffer if the court were to hold one. U.S. Resp. to [POGO’s] Req. that the Court Impose No Penalty Upon the Organization at 6-7 (Feb. 29, 2008). In any event, because we are remanding the case for a new trial, the government will have an opportunity to request a penalty hear .Cir.1985) (<HOLDING>). But see United States v. George, 386 F.3d

holding that 18 usc 1919 did not implicitly repeal 18 usc 1001

holding that 18 usc 1920 the misdemeanor false statement provision of the federal employees compensation act feca preempted 18 usc 1001 because 41 of feca expressly repealed all inconsistent statutes

holding that good faith is a defense to the willful filing of false statements under 18 usc 1001

holding that 18 usc 1001 which criminalizes making false statements to a united states agency is specifically made applicable to the postal service by 39 usc 410b2

holding that a good faith belief that a firearm is inoperable is not a viable defense to 18 usc 922g

2

“AGENCY shall make a deposit of probable compensation with the County Treasury in the amount of $3,091,000,” at which time, pursuant to section 1255.410, it would be empowered to take exclusive possession of the property. Mesdaq did not file a motion seeking determination or redetermination of the deposit amount under section 1255.030, subdivision (a). Immediately prior to trial, the court determined that the date of trial, not the statutorily determined date of deposit, would be the date of valuation. The court reasoned rising property values and delays in concluding the proceedings necessitated a later valuation date to enforce the constitutional mandate of just compensation, citing Saratoga Fire Protection Dist. v. Hackett (2002) 97 Cal.App.4th 895, 905-906 [118 Cal.Rptr.2d 696] (<HOLDING>). The parties and the trial court recognized

holding that the construction of a median in a roadway that causes traffic traveling to and from an abutting property to travel a cireuitous route does not constitute a compensable taking under indiana eminent domain law

holding that where necessary to enforce the california constitutions requirement of just compensation for a taking courts can disregard statutory eminent domain requirements

holding that a termination of a government contract does not constitute a taking of the plaintiffs property without just compensation or without due process of law

holding ripe a claim for a pre1987 taking because prior to first english california law did not permit landowners to seek compensation for a regulatory taking through an action in inverse condemnation

holding that the termination of a billboard lease according to its terms was not a taking of property by eminent domain

1

the ICF/[DD] program,” and from “paying providers for services at ICF/[DD] cluster facilities in a manner other than as provided for in a rate plan” that “pay[s] to each provider of ICF/[DD] services at cluster facilities the full Medicaid rate for that facility” and affords “each provider at cluster facilities all rights and protections accompanying a rate plan governing ICF/ [DD] facilities.” The injunction order specifically declined to modify the State’s existing plan by imposing new rates, but rather permitted Defendants themselves to file a new plan “which complies with the substantive requirements of’ the Medicaid Act. This Circuit has held repeatedly that “obey the law” injunctions are unenforceable. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir.1999) (<HOLDING>); Payne v. Travenol Labs., Inc., 565 F.2d 895,

holding that injunction which prohibited municipality from discriminating on the basis of race in its annexation decisions would do no more than instruct the city to obey the law and therefore was invalid

holding that a defendant may not be convicted of multiple offenses under 922g on the basis that he belonged to more than one prohibited class or that he simultaneously possessed more than one firearm

holding that the court properly refused to instruct on an issue for which no evidence was offered

holding that the failure to instruct on a definition or to amplify an element is not a failure to instruct on an essential element

holding that the failure to properly instruct the jury on the burden of proof required a new trial

0

1996. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992) , and we affirm. We affirm the district court’s finding that the tax liabilities for 1989, 1991 and 1992 are res judicata because the tax court adjudicated these deficiencies in a prior proceeding. See Baker v. Internal Revenue Service (In re Baker), 74 F.3d 906, 909-10 (9th Cir.1996) (per curiam) (“a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action”). We uphold the district court’s deficiency findings for 1993 through 1996, and its penalty finding for 1992, because the government submitted Forms 4340 in support of these determinations, see Hughes, 953 F.2d at 535 (<HOLDING>), and the Collinses did not produce evidence

holding that the color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty

holding that form 4340 shows in the absence of contrary evidence that notices and assessments were properly made

holding that official certificates such as forms 4340 can constitute proof of the fact that the assessments were actually and properly made

holding that as a matter of evidence juries may properly consider prior oral and written statements for the purpose of defining the contract that was actually made

holding that form 4340 is probative evidence in and of itself and shows in the absence of contrary evidence that notices and assessments were properly made

2

Blackstone’s Commentaries make clear that the legislature could compel a property owner to give up his property but only “by giving him full indemnification and equivalent for the injury thereby sustained.” 1 William Blackstone, Commentaries at 139. {44} The New Mexico Constitution addresses the power of eminent domain in two provisions. Article II, Section 18 provides that “[n]o person shall be deprived of life, liberty or property without due process of law,” and Article II, Section 20 provides that “[pjrivate property shall not be taken or damaged for public use without just compensation.” The “or damaged” provision of Section 20 serves to allow compensation even when an actual taking has not occurred. Bd. of County Comm’rs v. Harris, 69 N.M. 315, 317, 366 P.2d 710, 711 (1961) (<HOLDING>). But see Pub. Serv. Co. v. Catron, 98 N.M.

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

holding that sale was appropriate where dividing the property among six parties was difficult because the nature of the land made it impossible to divide it into six equal parcels and the land likely had more value sold as a whole

holding plaintiff entitled to depreciation after repairs in determining the vehicles value at the time of the theft allowance must be made for depreciation then accrued

holding that a cause of action relative to an asserted de facto condemnation did not arise until physical restrictions to access were effected since until such time the claim was speculative and remote as no compensable injury had occurred thus the mere filing of a highway plan showing a change of grade that would interfere with access did not give rise to a condemnation claim

holding that depreciation in land value caused by a material change in a highway grade which made access to the property difficult is compensable

4

the loss of housing assistance through the federally-subsidizing program Section 8, because of defendants [sic] fraud on the court.” Compl. ¶ 122. However, in contravention to Rule 9(b), Drawsand fails to identify the “the who, what, when, where, and how” of the alleged fraudulent conduct, Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997), and fails to “set forth an explanation as to why [a] statement or omission complained of was false and misleading,” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994) (en banc). To the extent that Drawsand is attempting to challenge the adverse ruling in the UD action, such claim is barred under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (<HOLDING>). In addition, Drawsand acknowledges in her

recognizing that the rookerfeldman doctrine bars cases brought by statecourt losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments

holding that rookerfeldman doctrine bars federal determination of claim where the district court must hold that the state court was wrong in order to find in favor of the plaintiff

holding rookerfeldman doctrine deprived district court of jurisdiction to review decision of west virginia state bar

holding that rookerfeldman bars subject matter jurisdiction where but for the statecourt judgment the plaintiff would have no claim

holding rookerfeldman also bars federal claims raised in state court as well as claims that are inextricably intertwined with the statecourt judgment

0

the ten minutes or so between being awakened and providing consent, Kyer’s mother took that time to compose herself and to listen to the officers explain why they came to her apartment and why they entered it uninvited. By itself, however, this brief duration does not put the attenuation inquiry to an end. It is just one of several considerations. Even a very short duration need not negate the efficacy of a voluntary consent. See, e.g., Seidman, 156 F.3d at 548 (finding a few minute period between entry and consent insufficient to negate consent); Sheppard, 901 F.2d at 1235 (“Even though the time span between the challenged conduct and Sheppard’s consent was short, we cannot find that the second search resulted from the exploitation of the challenged conduct.”); Owen, 453 So.2d at 1207 (<HOLDING>). III. In sum, we hold that the trial court

holding that although temporal proximity alone may show causation the proximity must be very close and action taken 20 months later suggests by itself no causality at all

holding that close temporal proximity is sufficient to establish a prima facie case of retaliation

holding that a three to four month period between the protected activity is not enough to show very close temporal proximity

holding that consent was valid despite close temporal proximity between the illegal entry and consent

holding that a close temporal proximity between a public employees speech and a defendants actions suggested a causal relationship

3

Plaintiff Shannon C. Horita appeals the district court’s decision to grant Defendant Kauai Island Utility Cooperative’s motion for summary judgment in this employment-related diversity case. We review de novo the district court’s grant of summary judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008). 1. The district court properly held that Plaintiff had faile f a discriminatory motive until later does not change the outcome under a straightforward application of the statute of limitations. See id. (<HOLDING>). 2. We do not reach Plaintiffs claims of

holding that the statute of limitations for an employment discrimination lawsuit by a college professor who did not receive tenure began when the college made the tenure decision and communicated that decision to the plaintiff

holding that termination is an adverse employment action

holding that the only alleged discrimination occurred and the filing limitations periods therefore commenced at the time the adverse employment action was made and communicated to the plaintiff

holding that the relevant time is the time of the employment decision

holding that although the plaintiff has suffered no adverse employment action she may still raise a claim of discrimination based on the alleged failure reasonably to accommodate her disability

2

groups on the basis such groups have not been.shown to share unique attitudes, ideas, or experiences, and therefore, do not constitute a “distinctive group.” E.g., State v. Puente, 69 Ohio St.2d 136, 431 N.E.2d 987, 989 (1982) (considering exemption of doctors, dentists, and lawyers from jury service); Boyd, 867 S.W.2d at 336 (considering systematic exclusion of doctors, lawyers, and the clergy); cf. Commonwealth v. Matthews, 406 Mass. 380, 548 N.E.2d 843, 848 (1990) (considering exclusion of “suburban parents” and “caretakers of adolescent children”). Other courts have skipped the distinctive-group analysis and have simply held the government had a legitimate reason to exclude the occupational group under consideration. E.g., United States v. Terry, 60 F.3d 1541, 1544 (11th Cir.1995) (<HOLDING>), cert. denied, — U.S. -, 116 S.Ct. 737, 133

holding that a defendant need not be a member of the excluded group in order to assert a sixth amendment faircrosssection claim

holding that fire departments are analogous to police departments in this respect

holding routine exclusion of members of fire and police departments did not violate the faircrosssection requirement because it is good for the community that these workers not be interrupted in their work

holding that the right of privacy does not extend to sexual behavior that is not purely private that compromises a police officers performance and that threatens to undermine a police departments internal morale and community reputation

holding that a defendant may object to the exclusion of members of the defendants own race

2

the availability of the MD-2 variety to the public does not undermine Del Monte’s Lanham Act claim. Although the Eleventh Circuit has not addressed this issue, the former Fifth Circuit has held that an unpatented article of commerce is subject to Lanham Act protectio s., Inc., 7 F.3d 1434, 1437 (9th Cir.1993) (stating that, even though plaintiffs unpatented lathes were in public domain, a defendant may be guilty of reverse palming off by modifying plaintiffs product for sale and labeling it with defendant’s name); Roho, Inc. v. Marquis, 902 F.2d 356, 360 (5th Cir.1990) (entertaining reverse palming off claim where defendant copied plaintiffs unpat-ented mattress but ruling for defendant on merits); c.f. Hypertherm, Inc. v. Precision Products, Inc., 832 F.2d 697, 700-01 (1st Cir.1987) (<HOLDING>); G.D. Searle & Co. v. Hudson Pharm. Corp., 715

holding that defendant who had copied plaintiffs swath was not liable for reverse palming off where it represented to public that its swaths were interchangeable with those of plaintiff

recognizing that the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material

holding that defendant who had copied plaintiffs perfume formula had a right to market it under defendants name because it identified to public plaintiffs product as competition

holding that the third factor disfavored fair use because the defendant copied a qualitatively substantial portion of the original work even though the defendants copied only approximately 300 words out of the 200000 words in the plaintiffs work

holding that plaintiff had established reverse palming off claim against defendant who modified plaintiffs seeds after obtaining them in open corn field

0

mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant.... In State v. Casaretto, 818 S.W.2d 313 (Mo.App.1991), the court, referring to § 547-200.2, said: Double jeopardy is an issue which is always raised 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79 (1978), the court held that a defendant who, after the introduction of evidence, deliberately chooses to seek termination of the proceedings against him by a motion to dismiss, unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the State is permitted to appeal and seek reversal of the dismissal. See also United States v. Kehoe, 516 F.2d 78, 86 (5th Cir.1975) (<HOLDING>). We do, therefore, find that this appeal is

holding that where the evidence offered by the state and admitted by the trial court whether erroneously or not would have been sufficient to sustain a guilty verdict the double jeopardy clause does not preclude retrial

holding that the double jeopardy clause bars retrial when the commonwealth intentionally undertakes to prejudice the defendant to the point of the denial of a fair trial

holding that a defendant who delays for reasons of trial tactics filing a motion attacking an indictment until after the jury is sworn and some evidence has been heard is not entitled to prevent a retrial on the basis of the double jeopardy clause

holding that under monge double jeopardy does not prevent retrial of an aggravating factor for sentencing purposes

holding that the granting of a mistrial due to a defect in the wording of the indictment did not prevent retrial even though the mistrial was declared after the jury was impaneled and sworn and over the objection of defendant

2

Separately, the Council’s denial of Permit Application 831 is not subject to judicial review under Stanley Municipal Code section 15.04.040.C because a municipal ordinance cannot create a right to judicial review. See Black Labrador Investing, LLC v. Kuna City Council, 147 Idaho 92, 97-98, 205 P.3d 1228, 1233-34 (2009). B. Neither party is awarded attorney’s fees on appeal. The City requests attorney’s fees on appeal according to Idaho Code section 12-117(1). Idaho Code section 12-117 provides, in pertinent part, as follows: Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing Cnty. Comm’rs, 147 Idaho 660, 214 P.3d 646 (2009) (<HOLDING>). Each of these decisions was issued prior to

holding that where a zoning board had no authority under state law to take certain actions with respect to a protected property interest a trier of fact could conclude that there was no rational basis for the towns zoning boards actions and that as a result the zoning board violated appellants rights to substantive due process

holding that reliance on comprehensive plan as basis for denying conditionaluse permit was improper where zoning ordinance did not list compliance with comprehensive plan as basis for denial

holding that a zoning commission was capable of being sued directly under section 1983 because zjoning commissions function legislatively when adopting zoning regulations and holding public hearings for the adjudication of individual petitions for zoning redress

holding that the llupa does not provide for judicial review of requests to change zoning or comprehensive zoning plans

holding that in the limited circumstances when local zoning authorities actions prohibit personal wireless service the act preempts local zoning law

3

more than sufficient to satisfy due process requirements and hence, if the Plaintiffs’ were “unknown” creditors at the time of the Bar Order, their claims are now barred. See New York, 344 U.S. at 296, 73 S.Ct. 299 (in providing notice to unknown creditors, constructive notice of the bar claims date by publication satisfies the requirements of due process); Chemetron Corp. v. Jones, 72 F.3d 341, 348-49 (3d Cir.1995) (“Publication in national newspapers is regularly deemed sufficient notice to unknown creditors, especially where supplemented, as here, with notice in papers of general circulation in locations where the debtor is conducting business”), cert. denied, 517 U.S. 1137, 116 S.Ct. 1424, 134 L.Ed.2d 548 (1996). See, e.g., Brown v. Seaman Furniture Co., 171 B.R. 26 (E.D.Pa.1994) (<HOLDING>); In re Chicago, Milwaukee, St. Paul & Pacific

holding that evidence of publication in local newspapers precludes defense of lack of notice of receivership

holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york

holding publication in local and national editions of the new york times sufficient notice to claimant in pennsylvania

holding that governments choice to publish notice in the new york times did not violate statutory publication requirements even though publication in the houston chronicle would have been more likely to provide notice to the claimant

holding that notice published in the new york times and the wall street journal was sufficient to satisfy due process owed to unknown creditors

2

§ 3 (“the word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”); cf. also Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11 Cir.1990); Matter of Guglielmo, 897 F.2d 58 (2 Cir.1990). In this regard, the operation of a motorized jet ski, like a small motor boat, sufficiently implicates traditional maritime activities. Foremost, supra, 457 U.S. at 676, 102 S.Ct. at 2659. As plaintiffs' complaint essentially alleges that decedent was killed as a result of “a collision between two vessels on navigable waters ... [it] properly states a claim within the admiralty jurisdiction of [this] federal court”, id. at 677, 102 S.Ct. at 2659; see also Sisson, supra, 497 U.S. at -, 110 S.Ct. at 2897 (<HOLDING>). It is important to note that this conclusion

holding that it is the conduct required to obtain a conviction rather than the consequences resulting from the crime that is relevant

holding that an indictment that is substantially in the language of the code is sufficient inform and substance

holding that because the activity reported did not constitute any form of criminally illegal activity mcarns narrow public policy exception is not applicable in this instance

holding that navigation is an example rather than a sole instance of conduct that is substantially related to traditional maritime activity

holding that standard of review is a matter of procedural rather than substantive law

3

found in Pinkerton v. United States to find that an act is reasonably foreseeable if it is “ ‘a necessary or natural consequence of the unlawful agreement.’ ” United States v. Martinez, 924 F.2d 209, 210 n. 1 (11th Cir.1991) (quoting Pinkerton v. United States, 328 U.S. 640, 648, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946)); see also Gallo, 195 F.3d at 1282 (noting with approval Martinez’s discussion of the Pinkerton definition of “reasonably foreseeable”). The fact that the co-conspirators agreed to a plan that did not involve carjacking or abduction does not preclude the district court from finding that carjacking and abduction were reasonably foreseeable if “the original plan went awry” and the police became involved. United States v. Molina, 106 F.3d 1118, 1121-22 (2d Cir.1997) (<HOLDING>), (“Even if Molina hoped that the original plan

holding the trial court erred in instructing the jury that it may find the defendant guilty if the jury found the defendant had conspired with the two coconspirators named in the indictment or both of them or others where evidence tended to show a conspiracy between the defendant and some person other than the named coconspirators

holding that the district court did not clearly err in finding that the defendant was an organizer or leader under 3blla in part because he recruited coconspirators

holding the district court erred by finding an automatic conflict of interest merely because insurer and administrator were the same

holding that the district court did not clearly err in finding that the defendant was an organizer or leader under 3blla because the defendant recruited and instructed coconspirators

holding that district court erred in finding that shooting was not reasonable foreseeable merely because the coconspirators had agreed not to discharge their firearms

4

the language of the superceding indictment compels the conclusion that either Count 1 or Count 6 was premised, in whole or in part, on the facts or circumstances giving rise to the felon-in-possession charge. The question remains, however, whether the government violated the plea agreement when it introduced evidence at trial that Garton was carrying firearms when he was pulled over in Rawlins. Both Officer Ford and Officer Palmer testified about the Rawlins traffic stop, and the firearms themselves were introduced into evidence. A review of the rec ord reveals this evidence was offered to prove that Garton engaged in drug trafficking activities and that he carried a firearm during and in relation to those activities. See United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir.1991) (<HOLDING>). Instruction 30 related to Count 1 and stated,

holding that uncharged amounts of drugs may be included as relevant conduct even if the defendant never actually possessed or distributed the drugs

holding firearms large sums of cash and uncharged quantities of illegal drugs are admissible to show a defendant is involved in the distribution of illegal drugs

holding prior acts of illegal drug distribution admissible to show modus operandi knowledge and absence of mistake

holding the large quantity of drugs sufficient evidence of intent to distribute

holding that the evidence did not plausibly support a buyerseller instruction because overwhelming evidence showed that defendants agreed to import drugs with the intent to distribute them and engaged in repeated transactions of large quantities of narcotic drugs for resale

1

separately, Baldwin offers no explanation of how any differences in the NYCHRL standards are material to the evidence in this case, or make her NYCHRL claims viable where her federal and state claims fail. We have considered all of Baldwin’s remaining arguments and find them to be without merit. For the foregoing reasons the judgment of the district court is AFFIRMED. 1 . Because Goddard did not raise the issue as a defense to Baldwin's claim under Title VII, we do not address whether opposition to housing discrimination qualifies as protected activity for a Title VII retaliation claim. See 42 U.S.C. §§ 2000e-2, 20000e-3 (prohibiting retaliation for opposition to employment practices made unlawful by Title VII); of. Wimmer v. Suffolk Cty. Police Dep't, 176 F.3d 125, 134 (2d Cir.1999)

holding that the plaintiffs reports of his fellow police officers discriminatory treatment of minority citizens was not protected activity under title vii

holding that the pittsburgh police department did not illegally terminate an officers hla benefits and that the police department was entitled to a subrogation interest against the officers thirdparty settlement

holding that individual employees are not liable under title vii

holding police department employees opposition to discrimination by police officers against black citizens did not constitute protected activity under title vii

holding that an attorneys letters constitute protected conduct under title vii

3

made on a showing of the relevant factors. [Brady, supra, 152 N.J. at 210-11, 704 A.2d 547 (quoting George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 27, 644 A.2d 76 (1994)).] Additionally, as we recently stated in State v. Locurto, 157 N.J. 463, 471, 724 A.2d 234 (1999), an appellate court may not “engage in an independent assessment of the evidence as if it were the court of first instance.” We frequently have observed that findings of fact made by a trial judge “are considered binding on appeal when supported by adequate, substantial and credible evidence,” Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974), and that standard is equally applicable to reviews of administrative decisions, see Close, supra, 44 N.J. at 599, 210 A.2d 753 (<HOLDING>). Accordingly, if in reviewing an agency

holding that in its review of the irs exercise of discretion the court is limited to a review of the administrative record

holding that the convenience of the witnesses has less relevance where the case involved judicial review of an administrative decision

holding that scope of review of administrative decision is the same as that for an appeal in any nonjury case

holding an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case

holding that the proper scope of the review under rule 307 is to review any prior error that bears directly upon the question of whether the order on appeal was proper

2

jurisdiction to act.” Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992). “Thus, due and legal service of process is necessary to give a court jurisdiction over a defendant.” Id. Without jurisdiction to act, the orders and judgment of the court are void ab initio. Id. at 521. “In order for the trial court to have jurisdiction in these contempt proceedings, personal service upon [defendant] under the provisions of SDCL 15-6-4 was mandatory. Because this service is absent, jurisdiction is totally lacking.” Matter of Gillespi, 397 N.W.2d 476, 477 (S.D.1986). [¶ 24.] “[T]he failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction.” Ripple v. Wold, 1997 SD 135, ¶15, 572 N.W.2d 439, 443; See also Lekanidis v. Bendetti, 2000 SD 86, ¶ 33, 613 N.W.2d 542, 549 (<HOLDING>). “One may research over 100 years of decisions

holding that it is well settled that there is no constitutional right to an appeal

holding that service of a statecourt summons and complaint after removal to federal court is valid service

holding that if service done by certified mail action commenced upon receipt of summons and complaint

recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act

holding that a defendants actual knowledge that an action is pending or that service has been attempted is not the equivalent of service of summons and will not relieve the plaintiff of its burden or vest the court with jurisdiction

3

1038, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Groome Resources, 234 F.3d at 217; Karlin v. Foust, 188 F.3d 446, 468 (7th Cir.1999); St. Croix Waterway Ass’n v. Meyer, 178 F.3d 515, 520 (8th Cir.1999); Kildea v. Electro-Wire Prods., Inc., 144 F.3d 400, 407 (6th Cir.1998); see also Coates v. City of Cincinnati, 402 U.S. 611, 613, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (striking down a city ordinance barring “conduct ... annoying to persons passing by” on vagueness grounds because, inter alia, the ordinance “did not indicate upon whose sensitivity a violation [would] depend — the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man”). But see Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir.1999) (<HOLDING>). Moreover, “it is well established that

holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city

holding factor b is not unconstitutionally vague

holding the phrase open and gross lewdness unconstitutionally vague

holding unconstitutionally vague a city ordinance imposing criminal sanctions because its use of the term reasonable to guide law enforcement discretion was not amenable to a limiting interpretation in the unique and everchanging context of open water restrictions

holding city could not enforce through administrative adjudication a city ordinance limiting vehicle weight

3

in an advisory instead of binding fashion by the sentencing judge in this case.” Id. at 1301. Reasonable probability of a different result means a probability “sufficient to undermine confidence in the outcome.” Id. at 1299 (citation and punctuation omitted). Under the fourth prong, we consider the plain error’s affect on the judicial proceedings and look for such factors as the district judge’s express desire to impose a sentence different than that imposed. Shelton, 400 F.3d at 1333-34. We have consistently held that a sentence even at the low end of the guideline range, standing alone, is insufficient to carry a defendant’s burden demonstrating a reasonable probability of a lesser sentence under advisory guidelines. See United States v. Fields, 408 F.3d 1356, 1361 (11th Cir.2005) (<HOLDING>). Even with the government’s concession that

holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range

holding that the fact that a sentence imposed under the prebooker mandatory guideline regime was at the bottom of the mandatory range is not enough to create a reasonable probability that the defendant would have received a different sentence upon resentencing under an advisory guidelines system

holding that a defendant met the third prong of plain error analysis demonstrating prejudice resulting from a booker error where the sentencing judge made several statements indicating the mandatory guideline sentence was very very severe and sentenced the defendant at the low end of the guideline range

holding that the fact that the defendant was sentenced at the bottom of the mandatory guideline range without more is insufficient to satisfy the third prongs requirement that the defendant show a reasonable probability of a lesser sentence under an advisory guideline system accord united states v cartwright 413 f3d 1295 1301 11th cir2005

holding that the fact that the defendant was sentenced to the bottom of the mandatory guidelines range without more was insufficient to satisfy the third prongs requirement that the defendant show a reasonable probability of a lesser sentence under an advisory guideline system

3

regulations implementing the VCAA. The petitioners objected to 38 C.F.R. § 3.159(b) on the ground that it was inconsistent with section 5103(a), in part because it did not require VA to provide specific notice to claimants. Paralyzed Veterans, 345 F.3d at 1347. In refusing to hold the regulation invalid for this reason, we stated that “the regulation is clearly consistent with the statute, and its requirements are both reasonable and sufficient.” Id. at 1348. Finally, while we think that section 5103(a) must be interpreted as requiring only generic notice at the outset, even if the statute were ambiguous, we would be required to defer to the VA’s interpretation under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (<HOLDING>). The Secretary of Veterans Affairs has

holding that a court is not empowered to substitute its judgement for that of the agency

holding that chevron deference is due only to a reasonable interpretation made by the administrator of an agency

holding that a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency

holding that the court may not under the guise of statutory construction rewrite a statutory provision

holding that court is not empowered to substitute its judgment for that of the agency

2

v. Ferguson, 111 S.W.3d 589, 598 (Tex.App.-Fort Worth 2003, pet. denied). B. Whether Valentina’s petition has a basis in law and fact In her petition, Valentina conceded that she signed the settlement agreement and that the agreement granted McCulloch the ability to sell the homestead. Even a liberal construction of the petition demonstrates that Valentina’s request to enjoin the sale of her homestead has no basis in law or in fact because the petition acknowledges that she signed an agreement permitting the sale, and it does not ask the court to revoke that agreement. Therefore, a rule of law (waiver) bars Valentina’s cause of action to enjoin the sale, and the facts pleaded refute that cause of action. See, e.g., In re Essex Ins. Co., 450 S.W.3d 524, 527 (Tex.2014) (per curiam) (<HOLDING>); Dailey v. Thorpe, 445 S.W.3d 785, 789-90

holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint

holding that trial court abused its discretion by denying a motion for rule 11 sanctions without adequate explanation

holding trial court abused discretion in denying rule 91a motion where cause of action barred by legal rale

holding that bia abused its discretion in denying motion to reopen

holding that district court abused its discretion by denying plaintiffs motion to file fourth amended complaint

2

and, except in certain enumerated circumstances, should not be released without proper consent." We agree with this reasoning and hold that, for purposes of 1.C. § 5-14-38-4(a)(8), FERPA is a federal law which requires education records to be kept confidential. See also U.S. v. Miami Univ., 294 F.3d 797, 809 (6th Cir.2002) (noting that onee federal funding and the conditions of FERPA are accepted by a school, the school is "indeed prohibited" from systematic non-consensual release of education records). B. Education Records Having determined that FERPA requires education records to be kept confidential, the question becomes whether the Reed materials are encompassed by the term "education records." FERPA defines educati L.Ed.2d 502, with DTH Publ'g Corp., 128 N.C.App. 534, 496 S.E.2d 8 (<HOLDING>), and Miami Univ., 294 F.3d 797 (holding that

holding that student loans for debtors sons education were for family purposes and should be considered consumer debt

holding that student information divulged in undergraduate court proceedings constituted education records

holding that university students redacted disciplinary records were not education records

holding that municipal court records were admissible under official records or public documents exception

holding that records relating to a student court were not education records

1

to show Defendant-Appellant Jay Jeffrey Werner (Defendant) could actually pay $20,000 in restitution. The majority goes on, however, to conclude that the order of the first circuit court (the court) “to pay ten percent of his gross income satisfies the [restitution] requirement better than ordering [Defendant] to pay specific monthly payments[,]” majority opinion at 15, because “[depending on [Defendant’s] income, a specific monthly payment could be too much or too little.” Id. I respectfully disagree. First, I think it is premature to determine whether the percentage method of payment is “reasonable” until after the court has sufficiently determined whether Defendant can actually pay $20,000 in restitution. See State v. Johnson, 68 Haw. 292, 297-98, 711 P.2d 1295, 1299 (1985) (<HOLDING>). The method of payment may be governed by the

holding that it is incumbent upon the trial court to enter into the record findings of fact and conclusions that the manner of payment is reasonable and one which defendant can afford

holding that court is not required to state findings of fact and conclusions of law when denying 3582 motion

holding because defendant does not argue in his brief that these findings of fact are not supported by evidence in the record this court is bound by the trial courts findings of fact

holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence

holding that before admitting rule 80324 hearsay statements the trial court must enter in the record appropriate statements rationale or findings of fact and conclusions of law

0

issue with the analogy drawn between the district court’s order in this case and the granting of a motion for new trial. 307 S.W.3d at 271 (“The Company argues that the district court’s order should not be appealable because it was like granting a motion for new trial in a case, which is not appealable. But the analogy does not fit.”). Whether the Court can find a more fitting analogy is beside the point: both precedent and the statute itself direct us to treat much of the process as we would a civil trial, and “an order vacating an arbitration award and directing a rehearing is the functional equivalent of an order granting a new trial.” Stolhandske, 14 S.W.3d at 814; see also Bison Bldg. Materials, Ltd. v. Aldridge, 263 S.W.3d 69, 75 (Tex.App.-Houston [1st Dist.] 2006, pet. granted) (<HOLDING>); Thrivent, 251 S.W.3d at 623 (same); Me. Dep’t

holding order granting motion to withdraw plea to be the functional equivalent of an order granting a new trial because like a postverdict mistrial it returns case to posture it had been before trial

holding that an order remanding an arbitration award is not a final appealable order when the order does not also vacate the arbitration award

holding that an order vacating an arbitration award and directing a rehearing is the functional equivalent of an order granting a new trial

holding that order to vacate award and order new arbitration is the functional equivalent of an order granting a new trial and therefore not subject to direct appellate review quoting stothandske 14 sw3d at 814

holding that order vacating award and ordering rehearing is analogous to order granting new trial

3

services rendered,” among other requirements. A.R.S. § 6-702(9)(f). If, as JHass argues, the phrase “receiving money,” as it is used in § 6-701(4) means “taking actual possession of,” then this exemption would be redundant; bill paying service providers who merely control, but do not actually possess, debtors’ funds would not constitute debt management companies within the language of § 6-701(4) and would not require a license to operate anyway. Likewise, if the legislature intended “receiving” to mean only actual physical possession, then presumably it would have used “receiving money” in § 6-702(9)(f), or it would have used “take physical possession” in § 6-701(4) to create a mirror image of the rule and the exception. See Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) (<HOLDING>). The legislature did not draft the statutes in

holding that the word void is not sufficient

holding that each provision of a statute must be afforded meaning when possible

holding that effect must be given if possible to every clause and word of a statute

recognizing that where the statutory language is not ambiguous the plain and ordinary meaning of the statute must be given effect

recognizing that each word and phrase of a statute must be given meaning so that no part of it will be void inert redundant or trivial

4

hearsay. Petitioner does not make any argument as to whether testimony about the messages are hearsay or whether this testimony would be admissible under an exception. Rather, Petitioner focuses his discussion on the allegation that the Complainant’s testimony was inadmissible hearsay because the Complainant read aloud from an inadmissible police report about the messages. Respondent also does not address whether the testimony about the text messages is hearsay. Momentarily setting aside the issue of whether the Complainant testified from her memory or from a verbatim reading of the police report, in general, testimony about the text messages is hearsay. If evidence is hearsay, then testimony about the evidence is also hearsay. See Bueno v. State, 677 S.W.2d 261, 265 (Tex.Ct.App.1984) (<HOLDING>). Correspondingly, if evidence is hearsay

holding that the admission of a report was not hearsay because it was not offered to prove its truth but to impeach the veracity of the witnesss direct testimony

holding the excluded testimony was relevant to whether a signature was that of a deceased party and since a statement regarding the issue was the only testimony that could be given by the witness no offer to prove was necessary because the substance of the evidence was apparent from the context of the question asked

holding that plaintiffs testimony in employment discrimination case about statement made to her by manager was inadmissible hearsay because it included statement made by others who were unidentified

holding that police officers testimony about writingon a card given to him by the motel manager was hearsay where it was offered to prove the motel room was registered to the defendant

recognizing that the state is entitled to prove all of the relevant ci t argues that the trial court erred by admitting the victims hearsay statements through the testimony of her children and of melvin gaither and through the admission of exhibit sixtyone the victims application for an order of protectiona hearsay statement is defined as a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted tenn r evid 801c as a general rule a hearsay statement is not admissible unless it falls within one of the exceptions to the hearsay rule tenn r evid 802 the following standards define our review of the trial courts rulings on the admissibility of hearsayinitially the trial court must determine whether the statement is hearsay if the statement is hearsay then the trial court must next determine whether the hearsay statement fits within one of the exceptions to answer these questions the trial court may need to receive evidence and hear testimony when the trial court makes factual findings and credibility determinations in the course of ruling on an evidentiary motion these factual and credibility findings are binding on a reviewing court unless the evidence in the record preponderates against them once the trial court has made its factual findings the next questionswhether the facts prove that the statement 1 was hearsay and 2 fits under one of the exceptions to the hearsay ruleare questions of law subject to de novo reviewif a statement is hearsay but does not fit one of the exceptions it is inadmissible and the court must exclude the statement but if a hearsay statement does fit under one of the exceptions the trial court may not use the hearsay rule to suppress the statement however the statement may otherwise run afoul of another rule of evidence if a trial court excludes otherwise admissible hearsay on the basis of rule 401 402 or 403 this determination is reviewed for abuse of discretionkendrick v state 454 sw3d 450 47980 tenn 2015 citations omitted see also state v howard 504 sw3d 260 27576 tenn 2016 we now apply these principles to evaluate each of the defendants challenges to the trial courts evidentiary rulings1 admission of the testimony of the childrenthe trial court permitted each of the children to testify about hearing the victim tell the defendant that she was going to call the police concluding that this testimony was nonhearsay offered to show the effect the victims statements had on the defendant not the truth of the victims statements that she planned to call the police the court of criminal appeals affirmed the trial courts decision hawkins 2015 wl 5169157 at 18 and we do as wellthe childrens testimony regarding the victims threats to call the police was offered to establish the effect the victims statements had on the defendant and to establish the defendant murdered her because he believed she planned to call the police this testimony was not offered to establish the truth of the victims threats as a result the childrens testimony about the victims statements was properly admitted as nonhearsay see state v venable 606 sw2d 298 301 tenn crim app 1980 clearly the statement was probative not as proof of the matter asserted therein but because of its effect on the hearer in this case the defendant supplying evidence of his motive in returning to the service station later in the day armed and threatening to kill the declarant see generally neil p cohen et al tennessee law of evidence 8017 6th ed 2011 hereinafter tennessee law of evidence discussing nonhearsay declarations offered to prove the effect on the listener2 testimony of melvin gaitherthe trial court also allowed melvin gaither to testify about the victims statements to him concerning her fear of the defendant the trial court ruled that the victims statements were hearsayoffered for the truth of the matter asserted thereinbut admissible pursuant to the state of mind exception to the hearsay rule tenn r evid 8033 the court of criminal appeals affirmed hawkins 2015 wl 5169157 at 19 and we agree that this evidence was properly admittedthe state of mind exception authorizes the admission of a hearsay statementof the declarants then existing state of mind emotion sensation or physical conditions such as intent plan motive design mental feeling pain and bodily health but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution revocation identification or terms of declarants willtenn r evid 8033 here the defendant initially told the police that the victim left home in anger following an argument with him later the defendant admitted the victim had been murdered but claimed that kt had murdered her after kt and the victim argued the defendant maintained that he had not participated in the murder at all and had only assisted kt in covering up the crime and dismembering and disposing of the victims body the defendant never recanted his statement implicating kt and denying his own involvement in the victims murder the defendants statements placed at issue the victims mental state at the time of her murder the state was entitled to establish that the victim feared the defendant not kt at the time of her murder see smith 868 sw2d at 573 ruling that the victims hearsay statements expressing fear of the defendant were admissible under the state of mind exception and relevant to reveal the falsehood of the defendants statement to the police indicating that he and his wife the victim were reconciling state v trusty 326 sw3d 582 603 tenn crim app 2010 given the proof of the onagain offagain nature of the victims relationship with the defendant we conclude that the statements she made shortly before her death about her fear of the defendant were relevant and admissible under the state of mind exception to show not only her state of mind at thetime she uttered the statements but also her probable mental state and behavior at the time of her death the trial court did not err by admitting mr gaithers testimony about the victims statements pursuant to the state of mind hearsay exception3 application for order of protectionthe defendant next challenges the trial courts admission of the victims january 15 2008 application for an order or protection the application was admitted as exhibit sixtyone through the testimony of deborah coffman a counselor and records keeper for citizens dispute a shelby county government agency that assists persons in completing the application process for orders of protection the victims application included the following statementsthe defendant had the impression that he would be moving with me and my three children when he realized he was not moving he became violent pulling my hair and hit me on my right cheek jaw with his fist he was telling my twelve year old daughter to lock herself in the bathroom and to tell the police that i pulled her hair abused her he was not arrested for his violencehe wants my twelve year old daughter to be around him often sleep with him and she has changed telling lies and disrespectful i hope he hasnt molested her he says no and she says no but both have lied so im just trying to protect me and the childreni dont want him around me or my children i dont trust himthe application also included the victims statement that the defendant had told her she was wrong for taking kt from him and that he could get the victim without even having to touch her because he could get somebody else to get the victimthe trial court admitted the application pursuant to the forfeiture by wrongdoing exception to the hearsay rule explainingand im finding just so well all understand their relationship had deteriorated to such a point the victim and the defendant that at this point i think the recordthat the state has shown by a preponderance of the evidence from this hearing that the reason for the killing the motive for the killing would be to stop her from prosecuting him for things against her and her child because shes here talking about harassing phone calls and things like that so i think tennessee rule of evidence 8046 is going to apply to this case to that extentthe court of criminal appeals affirmed the trial courts ruling hawkins 2015 wl 5169157 at 19 we also affirm the trial courts rulingthe forfeiture by wrongdoing exception authorizes the admission of a hearsay statement against a party that has engaged in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness tenn r evid 804b6 before admitting a hearsay statement under this exception the trial court must conduct a juryout hearing and determine that a preponderance of the evidence establishes 1

3

International Airport, continue to enjoy the right to join labor organizations and to engage in collective bargaining.” 5 . Specifically, the defendants state: Compare Compl. in Loy I at 6 para. (2) (requesting an order '[djeclaring that the directive issued by Under Secretary Loy prohibiting airport screeners from engaging in collective bargaining or form being represented by an organization for the purpose of engaging in such bargaining deprives plaintiffs of ar that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies.” Id. (quoting McKinley, 705 F.2d at 1114); see Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (<HOLDING>). 8 . In particular, the plaintiffs point out

holding that if the speech in question does not address a matter of public concern there is no first amendment violation

holding that the absence of a motivating desire to address a matter of public concern was not dispositive as to whether the speech addressed a matter of public concern

holding public employees conduct and expression in internal investigation of employees at county prosecutors office to expose potential wrongdoing constituted matter of public concern

holding that the plaintiffs speech was not a matter of public concern because it did not bring to light actual or potential wrongdoing or breach of public trust on the part of the defendant and others

recognizing the need to balance the states interest in fulfilling its responsibilities to the public the extent to which the speech in question involves a matter of public concern and the manner time place and context of the speech

3

even if he had preserved it, we do not believe that Barker’s motion was untimely. Barker could not file her motion until the litigation had commenced, and once it had commenced, she did not delay in bringing the matter to the trial court’s attention. Barker filed her original answer forty-five, days after Hendricks filed his original petition, and nine days after that, she moved to disqualify Proctor. The motion was filed well in advance of discovery, and it cannot be characterized as a dilatory trial tactic. See EPIC Holdings, 985 S.W.2d at 52-53 (concluding that the delay in filing the motion to disqualify was not prejudicial because “almost no discovery” had been conducted at the time of filing); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding) (<HOLDING>). We conclude that Barker’s motion was timely

holding that a year delay in filing a motion to disqualify did not bar the motion where there was no evidence that the motion was inspired by dilatory tactics

holding that delay is waived when the defendant makes dilatory pleadings and motions

holding that courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic

holding courts must adhere to legislative intent when interpreting a statute

holding that an accused cannot sustain a speedytrial claim when delay results from his making dilatory pleadings or motions failing to object when a continuance is granted the government

2

vehicles. This petition was based on the research of Leon Robertson, who served as an expert for the plaintiffs in this case. The NHTSA ultimately rejected the Wirth petition. Nevertheless, plaintiffs sought to introduce the memoran-da, in which NHTSA staff members expressed opinions that support Robertson’s methodology and the plaintiffs’ theory in this case. The district court excluded these memo-randa on hearsay grounds. Smith argues on appeal that these memoranda satisfy Federal Rule of Evidence 803(8), which excepts certain public records from the general rule that hearsay is inadmissible. That rule exempts: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, ... or (C) 1996) (<HOLDING>), cert. denied, .— U.S. -, 117 S.Ct. 1425, 137

holding that a notice because it was docketed should be considered a matter of public record

recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public

holding the right to record police activity on public property was not clearly established

holding that a childabuse report is not a public record and therefore is not subject to public inspection

holding that countys registry of applicants for firefighter position was a public record under rule 8038a

4

the specification otherwise would improperly broaden the scope of the invention. See On Demand Machine, 442 F.3d at 1340. It does not necessarily follow, however, that the preamble term “fixed dose combination” is necessary to breathe life and vitality into the claim. 3. The Prosecution Histories Beyond the specifications and claim language, Gilead claims that further support for its proposed construction can be found in the prosecution histories of the patents-in-suit. See Ormco Corporation v. Align Technology, Inc., 498 F.3d 1307, 1314 (Fed.Cir.2007). “Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent.” Phillips, 415 F.3d at 1317; see also Sentry Prods., Inc. v. Eagle Mfg. Co., 400 F.3d 910, 915 (Fed.Cir.2005) (<HOLDING>). In its application for the '397 patent,

holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category

holding that the prosecution history may modify a claim terms scope if the patentee expressly disclaimed the prior arts subject matter

holding that prosecution history will limit the interpretation of claim terms so as toexclude any interpretation that was disclaimed during prosecution

holding patentees are restricted by prosecution history estoppel to the scope of what they ultimately claim

holding that although term was not limited by the specification it was expressly defined in a narrow manner in the prosecution history

1

fact and law for a sentence below the Guidelines range. Among other reasons, Rhodes stressed his extraordinary restitution efforts and ability to repay restitution fully if he were not incarcerated, the aber-rance of his behavior and his emotional disorders, his low risk to reoffend, as indicated by the opinion of the social worker as well as his self-employment, his bond with his daughter and the need to provide her financial support. These factors have all been recognized at one time or another as providing appropriate grounds for a below-Guidelines sentence. United States v. DeMonte, 25 F.3d 343, 346-47 (6th Cir.1994) (defendant’s voluntary restitution payments before an adjudication of guilt may justify downward departure); United States v. Madden, 515 F.3d 601, 611 (6th Cir.2008) (<HOLDING>); United States v. Borho, 485 F.3d 904, 913

holding that the district court may consider evidence of a defendants postsentence rehabilitation and that such evidence may support a downward variance from the federal sentencing guidelines

recognizing the ninth circuits aberrant behavior spectrum

holding that substantial downward variance was substantively unreasonable

recognizing that aberrant criminal behavior may justify downward variance

holding there was no jurisdiction to review district courts discretionary refusal to depart downward on the grounds that defendants conduct constituted a single act of aberrant behavior

3

for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Addressing the first factor, Hatchett has clearly suffered an irreparable injury. The Supreme Court as well as the Court of Appeals for the Seventh Circuit have emphasized that “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (citation omitted); see also Dombrowski v. Pfister, 380 U.S. 479, 485-86, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (<HOLDING>); Joelner v. Vill. of Wash. Park, Ill., 378

holding that the relevant inquiry when assessing irreparable injury is whether there is an adequate remedy in the absence of an injunction

holding that movant must demonstrate that irreparable injury is likely in the absence of an injunction

holding that allegation of procedural injury does not affect the issues of injury in fact or causation

holding that an allegation of impairment to freedom of expression demonstrated an irreparable injury

holding that potential loss of a contract constitutes irreparable injury

3

was decided, Ohio had state-issued temporary tags, but had no law that governed how the tags had to be displayed. The officer who stopped Chatton justified his stop based on two grounds: the tag was not visibly displayed, and cars with temporary tags are often used in criminal activity. 15 . Id. at 1239-40. 16 . 242 Neb. 426, 495 N.W.2d 475 (1993). At the time Childs was decided, Nebraska issued "In Transit” stickers to newly acquired cars. The expiration date was not visible, however, without pulling the car over to examine the sticker. 17 . See State v. LaBarge, 275 S.C. 168, 268 S.E.2d 278 (1980) (noting that all presumptions of law are in favor of innocence until proven otherwise). 18 . S.C.Code Ann. § 56-3-2420 (1991). 19 . See United States v. Wilson, 205 F.3d 720 (4th Cir.2000) (<HOLDING>). 20 . See State v. Copeland, 321 S.C. 318,

holding detention of passenger for warrant check violated fourth amendment absent reasonable suspicion

holding that officers may consistent with the fourth amendment conduct a brief investigatory stop when they have a reasonable articulable suspicion that criminal activity is afoot

holding that an officer has reasonable suspicion to conduct traffic stop even when his suspicion that a law has been violated is based on a reasonable mistake of law

holding that absent probable cause to arrest a police officer may approach an individual to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion that criminal conduct is afoot

holding that absent an articulable reasonable suspicion of unlawful conduct the fourth amendment forbids stopping a car simply because it has a temporary tag

4

refusal to pay a significant portion of what it owed to ThoughtWorks. JX 66; Tr. 64. 15 . The $10 million line of credit was secured by ThoughtWorks's accounts receivable. 16 . ThoughtWorks did not seek or obtain approval from the holders of the preferred stock for the expansion of the line of credit to $5 million. 17 . SVIP thought the $10 million line of credit was excessive and well beyond what it thought was appropriate for the purposes of running the company. 18 . Tr. 54, 100-103. Goodwin testified that “the ultimate goal was to become an employee-owned and employee-controlled company.” The put right had the potential to threaten the company’s independence. 19 . JX 14 (emphasis added). 20 . Id. 21 .Id. 22 . Eagle Indus. v. DeVilbiss Health Care, 702 A.2d 1228, 1232 (Del.1997) (<HOLDING>). 23 . Id. at 1232; see also Capital Mgmt. v.

holding that person who is not party to contract does not have standing to challenge contract

holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract

holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties

holding for purposes of contract clause analysis a statute can be said to impair a contract when it alters the reasonable expectations of the contracting parties

holding that contract terms themselves will be controlling when they establish the parties common meaning so that a reasonable person in the position of either party would have no expectations inconsistent with the contract language

4

multiple qualifying drug offenses as the result of a single criminal episode would still be eligible for treatment under this amendment upon reof-fending a second time. However, the summary, when considered alone, gives voters the impression that a first-time offender who committed two qualifying offenses as the result of a single criminal episode (e.g., a defendant charged with possession of cocaine and possession of drug paraphernalia resulting from a single lawful search of her pocket), would only qualify once for treatment under this amendment. Thus, the summary’s use of “first two offenses” does not accurately describe the wide scope of the amendment’s text. See Advisory Opinion to the Attorney Gen. re Casino Authorization, Taxation and Regulation, 656 So.2d 466, 469 (Fla.1995) (<HOLDING>). Second, the term “legislative implementation”

holding that it may not

holding that the courts grant of summary judgment did not violate the plaintiffs seventh amendment right to a jury trial and describing the plaintiffs argument that it did as very misleading

holding that no jury could reasonably fail to find that it was objectively reasonable for the officers to take the actions they did when the only invasion of privacy that occurred was entry and an emergency sweep a search of the premises was not conducted until the magistrate informed of what the officers had learned on the scene prior to entry explicitly authorized a search of the third house

holding that the amendments summary was misleading because it could lead voters to believe that only operational floating vessels may house casinos when the amendment authorized casinos on stationary and nonstationary riverboats and us registered commercial vessels

holding that defendant staying in abandoned house had no legitimate expectation of privacy in the house despite having a key to the house and the ability to let people in and out of it

3

the EPA requested this information not-to uncover additional- information about Site operations, PRPs, or Gurley’s assets, but to use “Gurley’s understandably less than adequate recall as a means of attacking him.” Id. at 17. These claims were previously rejected by Judge Turner. See United States v. Gurley, No. 93-2775-TUA, slip, op. at 5-6. As a result, Gurley is es-topped from arguing these same claims a second time. Moreover, even if Gurley was not estopped, the EPA has the authority to seek information from Gurley even if the EPA already possessed-from other sources-some of the information it was seeking from Gurley. See Barkman, 784 F.Supp. at 1189; Crown Roll Leaf I, 19 Envtl. L. Rep. at 20265. See also United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1507 (S.D.Oh.1991) (<HOLDING>). Therefore, Gur-ley was not justified in

holding that certain dual purpose documents created in response to the epa information request and consent order were protected from discovery by the work product doctrine as they were created because of potential litigation with the epa

holding that private parties may contract to transfer financial responsibilities under cercla

holding that a request for information and explanation is not sufficient to constitute a claim absent a demand for action by the insured

holding claim based on failure to disclose information to the epa preempted

holding that parties subject to a cercla investigative request may not decide for the epa when they have provided sufficient information

4

safety.” While this particular piece of evidence does indicate a concern for safety rather than- “conscious indifference,” it does not in itself present overwhelming evidence contradicting the evidence provided by plaintiff. Oregon law makes no special exception relieving manufacturers from punitive damages if they issue product warnings. Second, Crown refers us to evidence properly excluded by the district court at trial, such as the military specifications and independent engineering reports. The jury cannot be said to have reached an erroneous verdict because of evidence that was not before it at trial. Evidence not admitted at trial cannot be used in a review of the district court’s denial of judgment as a matter of law. Elbert v. Howmedica, Inc., 143 F.3d 1208, 1209 (9th Cir.1998) (<HOLDING>). As a result, Crown is left to support its

holding that a motion for rule 37 sanctions should be promptly made thereby allowing the judge to rule on the matter when it is still fresh in his mind and that the motion should normally be deemed waived if it is not made prior to trial

holding that the court should make factual findings from the record evidence as if it were conducting a trial on the record

holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion

holding that trial court did not err in ruling on appellees motion for summary judgment before appellees complied with appellants discovery request when the record reflected that appellant filed a motion to compel three days before the hearing and the record did not reveal any effort on the part of appellant to secure a ruling from the trial court on its motion to compel or object at the trial court hearing the motion for summary judgment prior to ruling on the motion to compel

holding that when ruling on a rule 50 motion the record should be taken as it existed when the trial was closed

4

state prisoner Albert Hayes appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional and statutory claims in connection with the processing of his administrative grievances. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm. The district court properly dismissed Hayes’ Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) claims against defendants in their individual capacities because Title II of the ADA and Section 504 of the RA do not authorize claims against State officials in their individual capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (<HOLDING>). The district court properly dismissed Hayes’

holding title ix does not support an action against official in an individual capacity

holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc 1983 based upon actions taken in his official capacity

holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under 1983

holding that plaintiffs may bring a section 1983 claim for damages to vindicate their rights under idea

holding that a plaintiff cannot bring an action under 42 usc 1983 against a state official in her individual capacity to vindicate rights created by title ii of the ada or section 504 of the rehabilitation act

4

The identified constitutional concern with defendant’s construction of § 16913(d) is further aggravated by the fact that it presumes that Congress, without providing any meaningful guidance, delegated to the Attorney General, the very officer charged with executive power to enforce the criminal laws, the legislative power unilaterally to pronounce the scope of a law with crimi nal consequences. Cf. Buckley v. Valeo, 424 U.S. 1, 139, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.” (internal quotation marks omitted)); Mistretta v. United States, 488 U.S. at 391 n. 17, 109 S.Ct. 647 (<HOLDING>). This I expect is why the Supreme Court has

holding that unless that power is restricted by the principal an agent under a california statutory healthcare power of attorney has the power to execute applicable admission forms including arbitration agreements

recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power

holding that the power to terminate a contract atwill subsumes the power to modify its terms

recognizing that uniting power to prosecute and power to sentence in executive would raise constitutional concerns

recognizing that administrative agencies lack to power to consider or determine constitutional issues

3

fourteenth amendment imposes upon those state officials no obligation to prevent that harm.” Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.1989). The Court in DeShaney did, however, recognize “that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” 489 U.S. at 198, 109 S.Ct. 998; see also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (recognizing that the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment’s Due Process Clause, requires the State to provide adequate medical care to incarcerated prisoners); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (<HOLDING>); Revere v. Massachusetts General Hosp., 463

holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment

holding that the substantive component of the fourteenth amendments due process clause requires the state to provide involuntarilycommitted mental patients with such services as are necessary to ensure their reasonable safety from themselves and others

holding municipalities are not persons within the meaning of the due process clause of the fifth or fourteenth amendments

holding that the state must provide involuntarily committed mental patients with services that insure their reasonable safety

holding that for federal court to grant full faith and credit to state court judgment state proceedings must satisfy the minimum procedural requirements of the fourteenth amendments due process clause

1

their fourth issue, Appellees assert that legally and factually insufficient evidence exists to support the jury’s finding in question 6 that a joint enterprise existed between LMS and Hospital. Specifically, Appellees challenge the sufficiency of the evidence to support the second two elements of joint enterprise: (3) a community of pecuniary interest in the common purpose of the enterprise among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. The Texas Supreme Court has addressed legal sufficiency challenges to the third element, the eommunity-of-pecuni-ary-inter est-in-the-common-purpose-of-the-enterprise element, of a jury’s joint enterprise finding in several cases. See St. Joseph Hosp., 94 S.W.3d at 531-33 (<HOLDING>); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608,

holding evidence was legally insufficient to support conviction for violation of sex offender registration requirement

holding evidence legally sufficient under sections d and e

recognizing that evidence may be legally insufficient where there is variance between indictment allegations and proof

holding evidence legally sufficient

holding evidence legally insufficient

4

171 Cal.Rptr.3d 621. The delegation clause appears on the eleventh page of a form agreement, without a separate header or any other indicator (e.g., bold or relatively larger typeface) that would call a reader’s attention to the provision. Put simply, Gillette and other drivers would have no reason to know or suspect that arbitrability would be decided by an arbitrator under the 2013 Agreement. Thus, the delegation clause specifically is procedurally unconscionable. 2. Substantive Unconscionability Substantive unconscionability arises when a provision is overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. See Tompkins, 2014 WL 2903752, at *15; Tiri, 226 Cal.App.4th at 243, 171 Cal.Rptr.3d 621; see also id. at 243 n.6, 171 Cal.Rptr.3d 621 (<HOLDING>). Gillette contends the delegation clause in

recognizing that california supreme court is currently considering the appropriate standard for determining whether a contract or contract term is substantively unconscionable

recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract

holding that the more substantively oppressive the contract term the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable and vice versa

holding that when a term is not defined in a contract the presumption is that the term is to be given its ordinary meaning and significance

holding that additional consideration is a factor in determining whether there is an implied contract of employment

0

"even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998) (citations omitted). The only mention of their claims against CitiFinancial is in the Kinseys’ statement of the issues, which questions whether the court erred in informing CitiFinancial that its failure to answer the summons in 20 days would result in a default judgment. Flowever, the Kinseys offer no discussion on this issue or any other issue regarding CitiFinancial. TranSouth is not mentioned in the Kinseys’ brief. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6, (11th Cir. 1989) (<HOLDING>); Harris v. Plastics Mfg. Co., 617 F.2d 438,

holding in counseled case that listed issue was abandoned where it was not discussed in the argument portion of the brief

holding arguments not raised on appeal waived

holding in counseled appeal that an issue was abandoned where it was referred to in the statement of the case but no arguments on the merits were raised

holding an issue listed in statement of issues on appeal but not addressed in brief is abandoned

holding that where an appellant fails to raise arguments regarding an issue on appeal that issue is deemed abandoned

2

be a change in circumstances. |s(Emphasis added.) Michael’s argument that the circuit court’s award of permanent alimony should be reversed “as a matter of law” is not well taken. While Michael is correct that there is no such animal as “permanent” alimony, the nomenclature employed by the circuit court does not constitute error. As set forth in the case above, “permanent”—or as in the present case “lifetime”—alimony is just another way of saying that the circuit court has chosen not to limit the amount of time a spouse should receive alimony. We find no error, and we affirm. Michael also contests the amount of the alimony award: Our court has never reviewed an award of alimony solely on a mathematical-formula analysis. Kuchmas v. Kuchmas, 368 Ark. 48, 46, 243 S.W.3d 270, 272 (2006) (<HOLDING>). Here, because the circuit court considered

holding that the pearce presumption was not designed to prevent the imposition of an increased sentence on retrial for some valid reason associated with the need for flexibility and discretion in the sentencing process but was premised on the apparent need to guard against vindictiveness in the resentencing process

recognizing that expungement is appropriate when unusually substantial harm to the defendant not in any way attributable to him outweighs the governments need for a record of the arrest

recognizing need for flexibility and discretion by the secretary in section 13c certifications

holding that the amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty

recognizing relevance of information and that need for this information outweighs the burden to appellants

3

bears the ultimate burden of persuasion as to the adequacy of the forum. See, e.g., Norex, 416 F.3d at 159-160. When the district court granted Pfizer’s motion, it identified the pivotal issue as whether the plaintiffs produced sufficient evidence to show that Nigeria is an inadequate alternative forum. Abdullahi III, 2005 WL 1870811, at *15. Having found that they had not, it concluded that Nigeria was an adequate forum. Id. at *16-18. In so doing, the district court omitted an analysis of whether Pfizer discharged its burden of persuading the court as to the adequacy and present availability of the Nigerian forum and improperly placed on plaintiffs the burden of proving that the alternative forum is inadequate. Cf. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir.2002) (<HOLDING>). On remand, the district court will have an

holding that the burden of proof is on the claimant

holding the states reference to the defendants lack of remorse was error because it was a comment on the defendants assertion of his constitutional rights to plead not guilty and require the state to carry its burden of proof

recognizing that the burden of proof is an essential element of the claim itself and that one who asserts a claim has the burden of proof that normally comes with it

holding that it is error not to hold defendants to their burden of proof of the gilbert factors

holding that such factors may constitute a substantial burden

3

Harris has not tried to rebut by showing that the grand jury proceedings (or any other aspect of the indictment) were irregular. And cases interpreting Ohio law in analogous circumstances confirm that the officers had probable cause to believe that Harris knowingly attempted to cause physical harm by pushing Officer Harrison. See, e.g., Palshook v. Jarrett, 120 F.Supp.2d 641, 649 (N.D.Ohio 2000); Stillwell v. City of Xenia, No.2000CA-41, 2001 WL 127880, at *4, 2001 Ohio App. LEXIS 573, at *11-12 (Ohio Ct.App. Feb.16, 2001) (noting that “evidence existed to support a criminal assault charge” under Ohio law when plaintiff “intended to and did strike [the officer] in the chest with both hands”); Matlock v. Ohio Dep’t of Liquor Control, 77 Ohio Misc.2d 13, 665 N.E.2d 771, 773, 775 (1996) (<HOLDING>); cf. Hopkins v. City of Westland, 21 F.3d 427

holding that the opening of a makeup bag was justified when a woman had grabbed the bag when the officer turned away had resisted it being taken from her the bag felt heavy her companion had been armed the previous day and the officer and individual were alone

holding that defendant adequately indicated to officers that she sought assistance of counsel when she stated that she wanted to call her lawyer and officer testified that request was unambiguous

holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination

holding that excited utterance was proven when evidence showed that a patrol officer saw the victim screaming and waiving her hands when he approached she was crying her dress was ripped and she asked the officer to keep the defendant away from her

holding that plaintiff did not prove by a preponderance of the evidence that her arrest for assault under 290313 was unlawful or that her prosecution was malicious when she grabbed the officer from behind the officer pushed her away and she then grabbed the officers shirt

4

of the plan as a whole.” Id. at 142 n. 9, 105 S.Ct. at 3090 n. 9. Following Russell, the Sixth Circuit has provided that, pursuant to Section 502(a)(2), participants [and beneficiaries] are authorized to sue on behalf of a plan for breach of fiduciary duty and “[p]ermit-ting such suits ... is the mechanism which Congress established to enforce the plan’s right to recover for a breach of fiduciary duty.” Smith v. Provident Bank, 170 F.3d 609, 616 (6th Cir.1999). Thus ERISA grants four categories of plaintiffs the right to sue a fiduciary of an ERISA plan, on behalf of the plan, for injuries incurred by the plan due to a breach of the fiduciary’s ERISA duties, regardless of whether the plaintiff individually suffered any injury as a result of the breach. See Merck-Medco, 433 F.3d at 199 (<HOLDING>); Horvath v. Keystone Health Plan East, Inc.,

holding that a plan participant may have article iii standing to obtain injunctive relief related to erisas disclosure and fiduciary duty requirements without a showing of individual harm to the participant

holding that plaintiff is a plan participant and he is seeking to recover for the plan as a whole these are the only requirements on the face of the statute itself

holding that a plan participant or beneficiary may not recover extracontractual damages in an erisa suit for breach of fiduciary duty under 502a2 and 409a only the plan may recover damages in such cases

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

holding noneconomic harm satisfies article iii standing requirements

0

CURIAM. We DENY the petition for writ of cer-tiorari on the merits to the extent that petitioner argues that the trial court departed from the essential requirements of law in dissolving a notice of lis pendens. We DISMISS the petition to the extent that petitioner argues that the trial court erred in denying its request to amend its complaint as to certain counts. See Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (<HOLDING>); see also Venus Labs., Inc. v. Katz, 573 So.2d

holding that in considering common law certiorari district courts of appeal should be primarily concerned with seriousness of error not mere existence of error and should exercise certiorari discretion only when there has been violation of clearly established principles of law resulting in miscarriage of justice

holding that circuit court violated the essential requirements of the law in not issuing an order to show cause after receiving a facially sufficient petition for writ of certiorari

holding that for a nonfinal order to be reviewable by petition for certiorari the order must depart from the essential requirements of law thus causing material injury to the petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal

holding that a petition for writ of certiorari should be dismissed if there has been an insufficient showing of irreparable harm and should be denied when it is determined that an order did not depart from the essential requirements of law

recognizing the right to petition for writ of certiorari as a form of appellate review

3

conclusion was manifestly unreasonable. Rhoten’s testimony would have indicated that Helen had admitted to sexual intercourse with her boyfriend, but falsely claimed it was nonconsensual. Defendant, however, claimed that Helen made up claims that they had had sexual intercourse in order to retaliate against him. Thus, in one instance, Helen was covering up consensual intercourse with her boyfriend, while, in the other, she was alleged to have been lying about intercourse with her stepfather. Because of the different circumstances, the trial court could reasonably determine that Rhoten’s testimony was not highly probative when compared to the potential for unfair prejudice if the jury perceived Helen as promiscuous. See State v. Harris, 189 N.C. App. 49, 64, 657 S.E.2d 701, 711 (2008) (<HOLDING>), disc. review denied, 362 N.C. 366, 664 S.E.2d

holding that a trial court abused its discretion by excluding the testimony of an expert witness where the testimony would have been relevant to show that the defendant breached a duty of care

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 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

holding that trial court did not abuse discretion in excluding under rule 403 evidence of prior motel stays by prosecuting witness and defendant in case in which defendant denied that sexual encounter giving rise to charges occurred because of the questionable relevance of this evidence and its likely prejudicial effect on the remainder of the prosecuting witness testimony

holding that before immunity under the provision at okla const art ii 27 can be given a witness such witness must have testified under an agreement made with the prosecuting attorney approved by the court or such witness must have claimed the privilege of silence which was by the court denied and such witness must have been compelled by the court to so testify

3

for the Government’s position. The operative question here — whether Nash’s conviction was an adult conviction — was simply not addressed in Orlando-Mena. Admittedly, the court did take a somewhat more holistic approach to analyzing the nature of the conviction, which, at least in part, considered the nature of the sentence. This is consistent with Second Circuit precedent. See United States v. Cuello, 357 F.3d 162, 168-69 (2d Cir.2004) (considering the “substance” of the prior youthful offender adjudication for the purposes of U.S.S.G. § 2K2.1 and concluding it constituted an “adult conviction” because “defendant was indisputably tried and convicted in an adult forum, and [ ] defendant served his sentence in an adult prison”); United States v. Driskell, 277 F.3d 150, 154 (2d Cir.2002) (<HOLDING>). To the extent these cases suggest the nature

holding that a defendant cannot collaterally challenge a prior conviction used to calculate criminal history points

holding that an adjudication under new yorks youthful offender statute does not operate as an expungement of the defendants conviction and the conviction may be considered in calculating criminal history

holding that district courts should look to the substance of the past conviction when determining whether a youthful offender conviction should be considered an adult conviction for the pur poses of including criminal history points under ussg 4a11 and 4a12

holding that an aggravated misdemeanor conviction under section 7191 is a felony for purposes of assessing criminal history points under ussg 4a12c

holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense

2