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cert. denied, 506 U.S. 1071, 113 S.Ct. 1027, 122 L.Ed.2d 172 (1993). Moreover, after Lopez, courts have recognized that this de minimis standard continues in effect. United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 1713, 137 L.Ed.2d 837 (1997); United States v. Grey, 56 F.3d 1219, 1224-25 (10th Cir.1995). This is because § 1956 regulates activities that, in the aggregate, have a substantial effect on interstate commerce. See Lopez, 514 U.S. at 557, 115 S.Ct. at 1629 (stating that “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence”); cf. Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (<HOLDING>); United States v. Staples, 85 F.3d 461, 463 | [
"holding that congress may regulate purely local intrastate activities if they are part of an economic class of activities that have a substantial effect on interstate commerce",
"holding that commerce clause did not provide congress with authority to enact civil remedy provision of violence against women act inasmuch as provision was not regulation of activity that substantially affected interstate commerce",
"recognizing that the interstate nexus requirement is satisfied by proof of a probable or potential impact on interstate commerce",
"holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce",
"holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce"
] | 44
|
2d 266, ¶ 35 (discussing the reasoning in Brunst as being that "unless these 'time immemorial' duties were constitutionally protected from interference by others, the constitutional provision securing the people the right to choose sheriffs would become meaningless"). It seems incongruous to us that the policy of keeping duties within the office of sheriff because he is elected and answerable to the electors is consistent with the holdings in WPPA II (and, more recently Brown County), where the court held that because the duty was characteristically the sheriffs, he can, as a result, contract with third parties for the carrying out of the duty. Yet, we are bound by WPPA II (and its interpretation of Brunst) and Brown County. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997) (<HOLDING>). ¶ 29. For the reasons stated, we reverse the | [
"holding that one panel cannot overrule a prior panels published decision",
"holding that court of appeals may adopt such waiver rule",
"holding court of appeals erred in refusing to take judicial notice of published puc order",
"holding that the court need not follow a decision of the district of columbia court of appeals where it appears that the court of appeals itself would not follow that decision",
"holding that the court of appeals may not overrule modify or withdraw language from a previously published decision of the court of appeals"
] | 44
|
it fails because the procedures employed with respect to the photo array were not unduly suggestive. Tyni-cia Teague had seen Muller several times in the past and identified him as the truck’s driver from a six-photo array during an interview with police at a restaurant on May 13, 2012. As Defendants’ expert in the field of cognitive psychology, memory, and eyewitness identification testified at trial, the photo array contained "five additional photographs that were similar in appearance to Mr. Muller. And that’s the proper procedure for conducting an identification.” App. 2272. These procedures were not unduly suggestive, and the District Court did not err in admitting Tynicia Teague’s identification of Muller. See, e.g., United States v. Burnett, 773 F.3d 122, 133-34 (3d Cir. 2014) (<HOLDING>). 9 . Muller also argues that he should be | [
"holding that the photo lineup was not unduly suggestive where the defendants photo was the only one that included his name",
"holding that a photo array in which all of the men in the array were of similar age there was no striking difference in the amount of head hair each had and the skin color of the members of the array was not strikingly different was not impermissibly suggestive",
"holding in a very similar underagesex case that a school photo of the victim taken three months after the alleged crime plainly was relevant to the defendants mistakenage defense and did not prejudice the defendant because he was free to challenge the weight of the photo evidence by arguing that it did not show the victim as she had appeared on the night in question",
"holding that the admission of a family photo was harmless error in light of the overwhelming evidence in support of the conviction",
"holding that section 33021b was overbroad because it prohibited a wide array of constitutionally protected speech and was not drawn narrowly enough to achieve only the legitimate objective of protecting children from sexual abuse"
] | 11
|
mechanism by which a juvenile who has been adjudicated delinquent may file a “postadjudication” petition challenging counsel’s effectiveness. Rule 1(a), Ala. R. Juv. P., explains, in relevant part: “If no procedure is specifically provided in these Rules [of Juvenile Procedure] or by statute, ... the Alabama Rules of Criminal Procedure shall be applicable to those matters that are considered criminal in nature.” (Emphasis added,) Because no procedural mechanism for “postadjudication” petitions are specifically provided for in either the Alabama Rules of Juvenile Procedure or a statute, W.B.S. attempts to seek relief through the use of Rule 32, Ala. R.Crim. P. Because juvenile-delinquency proceedings are “quasi-criminal in nature,” see Driskill v. State, 376 So.2d 678, 679 (Ala. 1979) (<HOLDING>), and because Rule 1(a), Ala. R. Juv. P., | [
"holding that probation revocation proceedings are clearly not criminal proceedings",
"holding that private attorney who acted as courtappointed counsel for child in state juvenile delinquency proceedings was not acting under color of state law",
"recognizing a right of access to civil proceedings",
"holding that the exclusionary rule does not apply to civil deportation proceedings and noting the rules incompatibility with the streamlined administrative nature of such proceedings",
"recognizing the quasicriminal nature of delinquency proceedings"
] | 44
|
to its policy holders. For example, the company’s purpose can be readily revealed to the policyholder by the addition of a single line or sentence to the declarations page or by defining the term “driver name.” Thus, this court concludes that the arguments of the defendant are unavailing and that although our holding in this case comports with that of the minority of jurisdictions, we are of the opinion that it represents the better public policy. “And we are also convinced that reasonable expectations of coverage raised by the declaration page cannot be contradicted by the policy’s boilerplate unless the declaration page itself clearly so warns the insured.” Id. at 347, 638 A.2d at 892; see also Elliott Leases Cars, Inc. v. Quigley, 118 R.I. 321, 327, 373 A.2d 810, 812 (1977) (<HOLDING>). In conclusion, therefore, we affirm the | [
"holding that duration of limitation is a factor in determining whether limitation is significant",
"holding that an ordinary reader in the face of such detail would be warranted in concluding that any significant limitation on collision insurance would have been explicitly noted",
"holding that the patentees argument that any shape would be equivalent to the conical limitation would write such a limitation out of the claim",
"holding that it is most improbable that a significant change to bankruptcy procedure would have been made without even any mention in the legislative history",
"holding that even in separate trial other crimes evidence would not have been admissible and identification testimony would have been admissible"
] | 11
|
care ... to reasonably assure itself that its immediate vendee and distributor was so informed as to be able and likely to transmit ... knowledge of [the product’s] dangers.”); In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 838 (2d Cir.1992) (stating that “[t]he sophisticated intermediary doctrine protects a manufacturer from liability only if the chain of distribution is such that the duty to warn ultimate users should fall on an intermediary in that chain, rather than on the manufacturer”); Smith v. Walter C. Best, Inc., 927 F.2d 736, 741 (3rd Cir. 1990) (weighing totality of factors is required to determine reasonableness of reliance on a third party as a conduit of necessary product information); Stuckey v. Northern Propane Gas Co., 874 F.2d 1563, 1568 (11th Cir.1989) (<HOLDING>); Hunnings v. Texaco, Inc., 29 F.3d 1480 (11th | [
"holding that arizona rule of civil procedure 52a requires the court to find only the ultimate facts not the evidentiary facts upon which the ultimate facts are based",
"holding that the defendant pharmacist had undertaken a duty to accurately warn of a drugs side effects with respect to the warning actually given but not a duty to warn of all possible side effects of the medication",
"holding that there is no necessity to warn a consumer already aware through common knowledge or learning of a specific hazard",
"holding that the staffing agency which forwarded a background check conducted by another entity to the ultimate employer was liable under 1681bb3 because its decision to furnish the report to the ultimate employer was an adverse action",
"holding that a suppliers duty to warn an ultimate consumer can be discharged by a warning given to an intermediary but focus is on whether the intermediarys knowledge was sufficient to protect the ultimate consumer"
] | 44
|
Rehabilitation Act, the Second and Eighth Circuits have come to different conclusions. In Faconti v. Potter, the Second Circuit favorably notes the district court’s determination that claims under the CSRS and the Rehabilitation Act cannot functionally co-exist because of their inherent inconsistency. Faconti v. Potter, 242 Fed.Appx. 775, 776 (2d Cir.2007) (precluding a Rehabilitation Act claim after obtaining CSRS benefits because “the requirements for obtaining a [CSRS] disability retirement annuity are wholly inconsistent with the requirements for proving a claim of disability discrimination under the Rehabilitation Act” (quoting Faconti v. Potter, No. 01-cv-1034, slip op. at 17 (E.D.N.Y. July 25, 2002))); see also Wallace v. Soc. Sec. Admin., 108 F.Supp.2d 716, 719 (S.D.Tex.2000) (<HOLDING>). But, in Arneson v. Heckler, the Eight Circuit | [
"holding that an employees claim for breach of a letter agreement was preempted by erisa where the agreement did not specify the amount or other terms of the employees retirement benefits and the court would have to refer to the employers erisagoverned retirement plan to determine the employees retirement benefits and calculate the damages claimed",
"holding that employee who frequently missed work was not a qualified individual able to perform the essential functions of her job either with or without a reasonable accommodation as required to support disability discrimination and reasonable accommodation claims under the rehabilitation act",
"holding that although disability benefits cannot be included as part of the marital estate a court may consider the waiver of retirement pension benefits in favor of disability benefits in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse who was previously awarded a fixed percentage of the retirement pension benefits",
"holding disability discrimination claim barred",
"recognizing that a claim of disability retirement under the csrs precludes a rehabilitation act claim because plaintiffs applying for disability retirement under the csrs must be unable to work even with an accommodation"
] | 44
|
at 321. We explained that “the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable” but, “[r]ather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.” Id. ¶54 Other lower courts have correctly observed that while prior similar acts are among the best evidence available to demonstrate that a business owner is on notice of a risk of harm to invitees, they are not the only relevant evidence. See, e.g., Passovoy, 52 Wn. App. at 172-73 (recognizing a business may be on notice that a shoplifter confronted by store detectives could cause harm to invitees, though no such harm had occurred on the premises in the past); Griffin v. W. RS, Inc., 97 Wn. App. 557, 567-70, 984 P.2d 1070 (1999) (<HOLDING>), rev’d on other grounds, 143 Wn.2d 81, 18 P.3d | [
"holding evidence insufficient to support conviction for possession when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police",
"holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant",
"holding that the trial court committed no error in sustaining objection to plaintiffs testimony that the water had been there for some time because the plaintiff had no personal knowledge of how long the puddle had been there",
"holding business may be on notice of harm posed by intruder against invitee even when no intruder had been identified and there had been no prior acts on the premises",
"holding evidence insufficient to support conviction when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police"
] | 33
|
than December 18, 2000. Because notice was received by December 18, 2000, any jury damages for breach of contract after the expiration of the thirty-day notice period on January 17, 2001 are not supported by legally sufficient evidence. The portion of the jury damages award relating to the period from January 18 until January 31, 2001 should, therefore, be vacated. Finally, Rollins claims that the jury damage awards are unsupported by legally sufficient evidence. State substantive law governs the measure of damages in this breach of contract diversity case. Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d 595, 601-02 (5th Cir.2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Neither party di 7, 329 (Tex.Civ.App.Austin 1972, no writ) (<HOLDING>). The burden is on the plaintiff to provide | [
"holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract",
"holding that a construction contractor is entitled to recover profits upon breach of a partially performed contract but not the same amount as if the contract were completed because that amount must be reduced by the cost of completion",
"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 one method of computing damages for a breach of contract is the contract price less the reasonable cost of completion",
"holding that the measure of damages for the breach of a contract of sale where no fraud is shown is the difference between the contract price and the market price of the goods on the date of the breach"
] | 33
|
vehicle for accomplishing this goal a sedimentation control statute. Rather, the clear intent and purpose of N.C. Gen. Stat. § 113A-57(1) is to control sedimentation pollution in the waters of this State, and particularly in trout streams. Further, the issue of whether N.C. Gen. Stat. § 113A-57(1) prevented activities “on, over, or under” a trout stream was abandoned by petitioners before the trial court. This ruling by the trial court was not assigned as error to this Court, and is thus not before this Court. N.C.R. App. P. 10(a) (“[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .”); Atlantic Coast Mech., Inc. v. Arcadis, Geraghty & Miller ofN.C., Inc., 175 N.C. App. 339, 346, 623 S.E.2d 334, 340 (2006) (<HOLDING>). The second assumption made by the majority is | [
"holding that because the appellant did not present a question before a hearing examiner or district council the question was not properly before this court",
"holding that the putative noteholder lacked standing to foreclose because mers lacked authority to assign the note though it arguably had authority to assign the mortgage",
"holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it",
"holding that because plaintiff failed to assign error to the dismissal of one its claims that issue was not properly before this court",
"holding issue not properly before the appellate court where appellant fails to demonstrate where in the record an issue was raised in the district court"
] | 33
|
it necessary to inquire into the reasonableness of two delays: first, the delay between the seizure and the mailing of the notice informing claimants of their right to request a hearing and of the NOAA’s intent to initiate civil forfeiture proceedings; and second, the overall delay between seizure and the actual filing of forfeiture actions by the U.S. Attorney. Whether the time lapse between seizure and filing of forfeiture actions rises to the level of due process violation must be determined by weighing four factors: length of delay, the reason for the delay, the defendant’s assertion of right to a judicial hearing, and prejudice to the defendant. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 565, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1986) (<HOLDING>). In the present case, Plaintiffs have not made | [
"holding that revival by statute of an action which was already timebarred did not violate due process",
"holding that evidence obtained from valid search warrant did not violate constitutional due process provisions",
"holding that 18month delay in filing forfeiture action did not violate due process",
"holding that doctrine does not violate due process",
"holding that a filing deadline under federal land policy and management act carrying a penalty of an automatic forfeiture of a mining claim did not violate due process"
] | 22
|
Brief for Petitioner in No ord’s altered circumstances are immaterial to our resolution of this dispute, and we do not decide any questions that would arise if he were the only defendant. 10 Our analysis of the proper disposition of this case follows from our conclusion that government officials who secure a favorable judgment on immunity grounds may obtain our review of an adverse constitutional holding. See supra, at 708. As just noted, Munsingwear justified vacatur to protect a litigant who had the right to appeal but lost that opportunity due to happenstance. 340 U. S., at 39, 41. We have therefore left lower court decisions intact when mootness did not deprive the appealing party of any review to which he was entitled. See, e. g., U. S. Bancorp Mortgage Co., 513 U. S., at 25 (<HOLDING>); Karcher v. May, 484 U. S. 72, 83 (1987) | [
"holding that the appealing party had sur rendered his claim to the equitable remedy of vacatur by settling the case and thus voluntarily forfeiting his legal remedy by the ordinary processes of appeal",
"holding that the appellant had an adequate remedy by appeal for his discovery violation allegations",
"holding that the remedy in a prison conditions case must remedy actual injuries that have been identified by the court and suffered by the plaintiffs",
"recognizing constructive trust as appropriate equitable remedy",
"holding that the illegality or unconstitutionality of a state or municipal tax or imposition is not of itself a ground for equitable relief in the courts of the united states in such a case the aggrieved party is left to his remedy at law when that remedy is as complete practicable and efficient as the remedy in equity"
] | 00
|
the Bond offering because they underwrote the transaction and sold the Bonds to investors, either directly or through their brokers. Indeed, given the role of underwriters generally, Baird, Jones, and Stern “had a duty to make an to speak, they knew investors might rely on the statements made. The law firms’ duty, however, must also be considered in light of the services they were retained to perform. Because Kutak and Stinson were not hired to opine on the feasibility of the Event Center, they cannot have been held to a duty to investigate or determine whether the financial projections were realistic unless these firms otherwise became involved in the making, preparing, or drafting of those projections. See N.Y. City Emps.’ Ret. Sys. v. Berry, 616 F.Supp.2d 987, 994 (N.D.Cal.2009) (<HOLDING>). Similarly, to the extent the law firms | [
"holding that nothing in booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the 3553a factors or to discuss each of the 3553a factors",
"holding that substantial participation requires particular facts relating to each djefendants specific role in the preparation of each of the allegedly misleading statements",
"recognizing that questions of changed conditions and the amount of child support must be resolved on the particular facts of each case",
"holding that district court must conduct individualized assessment based on particular facts of each case",
"holding that the issue of waiver requires an analysis of the specific facts in each case"
] | 11
|
requires that the convict must have been sentenced to separate terms of at least one year for each of his two prior felonies. Id. However, Section 99-19-83 provides that any person convicted of a felony that has two previous felony convictions, one of those being a conviction of a violent crime, that person will be sentenced to life imprisonment without the possibility of parole or probation. Miss. Code Ann. § 99-19-83 (Rev.2000) (emphasis added). ¶ 12. This issue has been examined before. The Mississippi Supreme Court determined that “[i]t [is] not necessary for the State to specify in the indictment which section of the habitual criminal statute they were proceeding under.” Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985) (citing Osborne v. State, 404 So.2d 545, 548 (Miss.1981)) (<HOLDING>). ¶ 13. Assuming, for the sake of the argument, | [
"recognizing that the two statutes are nearly identical",
"holding that in the conviction and sentencing for criminal offenses committed in the course of one criminal episode it is the intent of the legislature that there be a separate conviction and sentence for each criminal offense unless one of the offenses is a degree of the other a necessarily included lesser offense subsumed in the other or both offenses are identical",
"holding these two statutes are not criminal offenses and only affect sentencing",
"holding that claims under 1983 1985 and 1986 are barred for the further reason that these statutes create rights solely against persons and a state is not considered a person under these statutes",
"holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction"
] | 22
|
in lost revenue 150, 154 (D.D.C.2007) (finding defendant’s claim that “the total cost ‘is certain’ to exceed $75,000” insufficient to establish jurisdiction). Here, Monster merely asserts that complying with the injunction would cause it to “suffer a decrease in revenue in an amount greater than $75,000.” See Def.’s Opp’n at 14. It argues that “[t]his conclusion follows logically from the fact that [defendant] sold more than $2,000,000 of Monster Energy products in the District of Columbia” in the three years before the complaint was filed. See id. As an initial matter, and as Zuckman points out, courts have held that it is improper to consider a decrease in future revenue as a cost of complying with an injunction. See, e.g., Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir.1977) (<HOLDING>). As a result, Monster’s contention that | [
"holding that in the event it is not faeiaby apparent from the underlying complaint that the jurisdictional amount has been satisfied the court may rely on summary judgmenttype evidence to ascertain the amount in controversy",
"holding that a court may deny a request for injunctive relief in a summary judgment proceeding if it is clear the plaintiff cannot meet the requirements for an injunction",
"holding that the amount of sanctions is appropriate only when it is the minimum that will serve to adequately deter the undesirable behavior",
"holding minimum amount in controversy required for district court jurisdiction is 20001",
"holding that injunctive relief does not meet the amount in controversy when the only reason the injunction is worth more than the jurisdictional minimum is that it would affect defendants future sales"
] | 44
|
S.W.3d at 595; Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception. Zuliani, 97 S.W.3d at 596. The critical determination is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event” at the time of the statement. Zuliani, 97 S.W.3d at 596. Stated differently, a reviewing court must determine whether the statement was made “under such circumstances as would reasonably show that it resulted from impulse rather than reason a -Houston [14th Dist.] 2003, pet. ref'd) (<HOLDING>); see also Reyes v. State, 48 S.W.3d 917, 920 | [
"holding that statements made while the declarant was in pain crying bleeding and having trouble breathing were properly admissible as excited utterances",
"holding that the statements of a scared to death declarant whispering help me to police officers twenty hours after being assaulted were excited utterances",
"holding statements qualified as excited utterances where declarant was scared and tired and her statements were in response to questions twenty hours after the event",
"holding that the statements of a recently assaulted very upset and crying assault victim were excited utterances",
"holding that the determination of whether statements are excited utterances is within the trial courts discretion and its ruling will be reversed only for an abuse of that discretion"
] | 33
|
fact that the oil traversed part of Transocean’s vessel before entering the Gulf of Mexico. We recognize that the aforementioned incidents involved blameless third parties, whereas here the owner or operator of the Deepwater Horizon might have contributed to the discharge. By all accounts, if the vessel’s blowout preventer had functioned properly, the oil would not have entered navigable waters in violation of the Clean Water Act. The defendants therefore reason that liability is properly imposed upon the owner or operator of the Deepwater Horizon. Yet it is well estab lished that this section of the Clean Water Act leaves no room for civil-penalty defendants to shift liability via allegations of third-party fault. See United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314 (7th Cir.1978) (<HOLDING>). Early in the implementation of the Act’s | [
"holding defendant assumed risk that third party would consent to search of storage locker where defendant instructed third party to rent locker under third partys name and allowed third party to keep possession of lease papers and to occasionally retain the keys",
"holding exculpatory statements by a third party should have been admitted in the punishment phase notwithstanding the hearsay rule",
"holding principal liable to third party for tort of agent despite lack of privity between principal and third party",
"holding that a third party has authority to consent to a search if the third party is a coinhabitant",
"holding defendant liable for penalty notwithstanding fault of a third party"
] | 44
|
conviction constitutes a violent felony. See United States v. Coleman, 158 F.3d 199, 202 (4th Cir.1998) (en banc). The instructions underlying Wardrick’s 1983 assault conviction support the proposition that the district court did not err in characterizing that conviction as a violent felony. In Maryland, a common-law assault “presents the unusual situation in which an offense may be committed in one of two ways — one of which requires the use, attempted use, or threatened use of physical force and one of which does not.” Coleman, 158 F.3d at 202. Because of this ambiguity, we have been “unable to conclude that a Maryland conviction for common-law assault is per se a violent felony within the meaning of § 924(e)(2)(B)(i).” Id. However, the jury instructions in Wardrick’ th Cir.1993) (<HOLDING>). Likewise, the district court accurately | [
"holding that necessity defense to escape did not require defendant to turn herself in and that escape is not a continuing offense",
"holding felony escape in north carolina to be crime of violence under acca because escape presents risk of injury to others",
"holding that an escape from custody under minnesota law is a crime of violence",
"holding attempt to rescue prisoner and assisting in escape to be crimes of violence because of inherent risk of force",
"holding that in light of our recognition that escape presents a continuing threat of violence until the escapee is safely returned to custody we hold that for purposes of 2k21b5 every escape is sufficiently continuing such that possession of a gun subsequent to the initial departure from custody can qualify as being in connection with the escape"
] | 33
|
Leak should not have been admitted, because, they say, 1) its prejudicial effect outweighed its probative value and 2) it was inadmissible under the general exclusionary rule. However, Tinsley and Tuscaloosa County did not object before the trial court based on these grounds. Because Tinsley and Tuscaloosa County failed to state these grounds for their objection, the alleged error was not preserved for appeal. Rule 103, Ala. R. Evid. The trial record shows that Tinsley and Tuscaloosa County based their objection to the testimony on a relevancy argument. They do not argue on appeal that the trial court erred in ruling that the evidence was relevant. Therefore, they have not presented any basis for appellate review on this issue. See Landreth v. State, 600 So.2d 440 (Ala.Crim.App.1992) (<HOLDING>). The judgment of the trial court is affirmed. | [
"holding that summary judgment must be affirmed where multiple grounds are asserted and the appellant does not attack all grounds on appeal",
"holding that issues raised for the first time on appeal will not be considered",
"holding that the statement of specific grounds in a motion for a new trial waives all other grounds not specified",
"holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal",
"holding that a claim not raised before the trial court will not be considered for the first time on appeal"
] | 33
|
presumption as he would before the Office of Unemployment Compensation. Raphael v. Okyiri, 740 A.2d 935, 945-46 (D.C.1999); see Jadallah v. District of Columbia Dept. of Emp’t Servs., 476 A.2d 671, 675 (D.C.1984) (“Not every act for which an employee may be dismissed from work will provide a basis for disqualification from unemployment compensation benefits because of misconduct.”). Moreover, in terms of incentives, while an employer faces merely a potential increase in its contribution to the unemployment compensation fund before the Office of Unemployment Compensation, see Morris, supra, 975 A.2d at 182 n. 5, an employer faces a potential reinstatement and back pay order before the OEA should the employee prevail. District of Columbia v. Thompson, 593 A.2d 621, 635 & n. 25 (D.C.1991) (<HOLDING>). These differences weigh heavily against | [
"recognizing that the court has construed broadly the grant of jurisdiction in section 201",
"recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power",
"recognizing that the court has the power to grant leave upon certain conditions",
"recognizing the oeas power to grant relief very broadly including the power to order reinstatement and back pay",
"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"
] | 33
|
of the Supreme Court of Pennsylvania and part of the “unified judicial system,” is an arm of the state. See Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir.2000) (“All courts and agencies of the unified judicial system ... are part of ‘Commonwealth government’ and thus are state rather than local agencies.”). As a state agency, the Board has Eleventh Amendment immunity. See id. Therefore, as an arm of the state, Lucas may not sue the Board unless one of the three exceptions to Eleventh Amendment immunity apply. See MCI Telcomm. Corp., 271 F.3d at 503 (listing immunity exceptions). On appeal, Lucas argues that the Ex Parte Young exception precludes the bar of the Eleventh Amendment to the present action against the Board. Howe 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (<HOLDING>). Neither of these exceptions are applicable in | [
"holding that the medicaid act does not provide the type of detailed remedial scheme that would supplant an ex parte young action",
"holding that the cwa does not include a remedial scheme sufficient to preclude an ex parte young action",
"holding that a remedial scheme created by congress even if incapable of addressing all of plaintiffs injuries precluded a bivens action",
"holding that existence of a detailed remedial scheme shows congressional intent to prohibit recourse to the ex parte young fiction",
"holding that young will not apply where congress has created a detailed remedial scheme for the enforcement of a federal statutory right against a state"
] | 44
|
action in response to improper comments usually is sufficient to cure any problems arising from such improper comments....”) (citations omitted). Considering Alcantara’s significant credibility problems, the evidence presented at trial of his illegal presences in the United States, and. the curative instruction given by the trial judge, Alcantara failed to demonstrate that “in the context of the entire trial, it is more probable than not that [the prosecutor’s comment] materially affected the verdict....” Dorsey, 677 F.3d at 954 (citation and internal quotation marks omitted). Stated another way, any error in vouching for the witnesses was harmless. See id. at 955. Finally, there was no abuse of discretion in denying the requested curative instruction. See Skinner, 667 F.2d at 1310 (<HOLDING>). Our decision in United States v. | [
"holding that the district courts use of limiting instructions and other measures defused any risk of prejudice",
"holding that the district courts curative instructions cured the governments truly improper and unfortunate comments",
"holding that the trial judges misconduct at trial did not prejudice the defendant in light of the courts curative instructions",
"recognizing that use of curative or limiting instructions is within the district courts discretion",
"holding that this court is required to assume that the jury followed the limiting instructions given by the district court"
] | 33
|
to find that the arbitrator did not willfully flout known, governing law in reading School of Rock I to hold that California law does not apply to the restrictive covenant. Local 863, 773 F.2d at 533. Here, the arbitrator plainly did not willfully flout known, governing law, because, as the District Court observed, section 16600 is not part of the CFIL. Alternatively, Smith argues that the restrictive covenant is invalid under Pennsylvania law. The District Court concluded that the non-compete provision is valid under Pennsylvania law. School of Rock II, 2009 WL 426175, at *3 (citing Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976)). Piercing Pagoda upheld a restrictive covenant in the context of a franchisee/franchisor relationship. Piercing Pagoda, 351 A.2d at 211 (<HOLDING>). As previously noted, the District Court need | [
"holding that a restrictive covenant with a tenyear term was unenforceable",
"holding that a restrictive covenant will be upheld where a franchisor has a protectable interest in the sale of his franchise",
"holding that franchisor has an interest in the goodwill its franchise has created",
"holding that restrictive covenants in franchise agreements are enforceable to protect the basic product which the franchisor has to sell namely the franchise itself ",
"holding that franchisor not only has valid interest in protecting good will it has developed but it also has an interest in being able to place a new franchisee at or near the same location where its goodwill has been created"
] | 11
|
whose last names begin with the letter "S” than to make the decision fully retroactive. The majority obviously would not countenance the latter course, but its failure to identify any truly relevant distinction between cases on direct appeal and cases raising collateral challenges makes the rule it announces equally indefensible. Shea v. Louisiana, supra, 470 U.S. [51] at 64 n. 1, 105 S.Ct. [1065] at 1072, n. 1 [84 L.Ed.2d 38] (White, J., dissenting). Griffith, supra, 107 S.Ct. at 719 n. 2 (White, J., dissenting) (emphasis added). The logic of Justice White is applicable here, for the majority "fail[s] to identify any truly relevant distinction between [this case] and cases raising collateral challenges...." Id.; cf. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) | [
"holding that alleyne does not apply to cases on collateral review",
"holding booker is not retroactively applicable to cases on collateral review",
"holding that batson v kentucky 476 us 79 106 sct 1712 90 led2d 69 1986 does not apply retroactively to cases on collateral review",
"holding that batson does apply retroactively to cases pending on direct review",
"holding that batson v kentucky does not apply retroactively to cases on collateral review"
] | 44
|
Fam.Code Ann. § 107.013. 58 . See Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984); 519 U.S. at 128, 117 S.Ct. at 570. This statutory right may not be taken away without due process of law. Cf. Steny v. State, 959 S.W.2d 249, 257 (Tex. App.-Dallas 1997, no pet.) (recognizing that a criminal defendant has no constitutional right to have jury assess punishment, but does, however, have a statutory right to have the jury assess punishment and that this valuable statutory right may not be taken away without due process of law). 59 . See Santosky, 455 U.S. at 764, 102 S.Ct. at 1400. 60 . Compare Rylander v. State, 75 S.W.3d 119, 125 (Tex.App.-San Antonio 2002, pet. granted) with Peeler v. Hughes & Luce, 909 S.W.2d 494, 4 an Antonio 1990, no writ) (<HOLDING>); Turner v. Lutz, 654 S.W.2d 57, 59-60 | [
"holding that trial courts failure to appoint parent an attorney ad litem in termination proceeding was reversible error",
"holding that a statute that provided that the court may appoint a guardian ad litem left the court with discretion to make an appointment",
"holding the trial court had jurisdiction where summons was served on the attorney advocate for the juveniles guardian ad litem",
"holding denial of a petition to vacate a termination order was reversible error",
"holding that guardian ad litem and psychologist fees incurred in child custody proceedings and ordered to be paid directly to the guardian ad litem and psychologist were nondischargeable under 523a5"
] | 00
|
2-401); McCarthy v. Imported Cars of Md., Inc. (In re Johnson), 230 B.R. 466, 468 (Bankr.D.D.C.1999) (“The passage of title cannot ... be delayed until after shipment or delivery of the goods to the buyer. After shipment or delivery, any retention of title by the seller results only in the reservation of a security interest.”); Associated Indus. v. Keystone Gen., Inc., 135 B.R. 275, 279 (Bankr.S.D.Ohio 1991) (“While the Uniform Commercial Code does permit the parties some power by allowing the parties to agree as to when title will transfer, the Code and the case-law place a limitation on this power. In short, if the seller attempts to retain title after delivery or until paid in full, all the seller gets is a security interest.”); In re Phillips, 77 B.R. 648, 650 (Bankr.E.D.Tenn.1987) (<HOLDING>); Seitz v. Stecklein, 111 Idaho 364, 723 P.2d | [
"holding that the retention of title pursuant to a repurchase agreement limits the seller to the reservation of a security interest under ucc 2401",
"holding that after delivery under a sale agreement even if the parties intended that title would not pass until the other documents were completed and signed retention of title would only have given the creditor a security interest",
"holding that delivery of possession of vehicle without delivery of certificate of title did not transfer ownership even though full payment had been received",
"holding that even if an agreement that title would pass once financing was obtained the most a creditor could claim was a security interest once the good was delivered",
"holding that the junior mortgagee had no right title or interest in the real estate after the sale was confirmed in the purchaser who became title owner"
] | 11
|
466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (citing California v. Carney, 471 U.S. 386, 390-91, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)). 3 . United States v. Vazquez, 555 F.3d 923, 930 (10th Cir.2009). 4 . United States v. Bradford, 423 F.3d 1149, 1160 (10th Cir.2005). 5 . See Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). 6 . United States v. Mathis, 357 F.3d 1200, 1203-04 (10th Cir.2004) (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). 7 . Ornelas, 517 U.S. at 696, 116 S.Ct. 1657. 8 . See United States v. Jarvi, 537 F.3d 1256, 1259 (10th Cir.2008) (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). 9 . See United States v. Gentry, 406 Fed.Appx. 274, 279 (10th Cir.2010) (<HOLDING>). 10 . See United States v. Herrera, 782 F.3d | [
"holding a defendant is not entitled to a franks hearing without making a substantial preliminary showing that defect in the affidavit is material",
"holding that speculation as to whether and when the police had actually field tested a bag reported to contain heroin falls far short of the substantial preliminary showing of intentional or reckless omission required by the franks test",
"holding that notice of a defect could not be imputed to a defendant inasmuch as it created the defect",
"holding that the defendant would have been entitled to a franks hearing had he shown that officers withheld negative information casting into doubt the dogs reliability",
"holding that a violation of the forum defendant rule is a jurisdictional defect"
] | 00
|
its own reasons, we review both decisions.” Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). Petitioners’ primary contention is that the IJ deprived them of due process by prejudging the case and preventing them from fully developing the record. Petitioners, however, did not raise a due process argument before the BIA. Because the due process claims made here are in the nature of procedural errors that the BIA could have remedied, they are subject to the exhaustion requirement. Because these claims were not exhausted before the BIA, we lack jurisdiction to review them. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004). On this record, we conclude that substantial evidence supports the IJ’s adverse credibility finding, see Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996) (<HOLDING>), and that petitioners did not suffer past | [
"holding that substantial evidence supports an adverse credibility finding if it is supported by specific cogent reasons",
"holding that we review adverse credibility determinations for substantial evidence",
"holding an ijs credibility findings are entitled to deference if supported by specific cogent reasons",
"holding that explicit credibility finding must be more than passing remark of disbelief and must be supported by specific cogent reasons",
"holding that an ijs credibility determinations enjoy highly deferential review when supported by specific cogent reasons that bear a legitimate nexus to the findings"
] | 00
|
unless the claims can stand independently. In Lirette v. N.L. Sperry Sun Inc., the Court held that a Jones Act claim and an unseaworthiness claim did not constitute separate and independent claims because the claims involved an invasion of a single primary right, and therefore the case was not removable. 810 F.2d 533, 539 (5th Cir.1987). In the present case, it is clear that removal is prohibited. Claims under the Jones Act and general maritime law are removable only if the claims are separate and independent. Gonsalves, 733 F.2d 1020. A separate and independent cause of action is one that involves the single wrongful invasion of a single primary right of the plaintiff. Baltimore Steamship Co., 274 U.S. at 321, 47 S.Ct. 600, 71 L.Ed. 1069 (1927); See Gonsalves, 733 F.2d at 1026 (<HOLDING>). The plaintiffs’ complaint includes | [
"recognizing the cause of action",
"recognizing cause of action",
"holding that a federal cause of action for damages arises upon a federal agents unconstitutional conduct",
"holding that the rule of splitting of causes of action as related to res judicata does not permit the owner of a single or entire cause of action or an entire indivisible demand to divide or split that cause of action and that all damages from a single wrongful act must be claimed in one action",
"holding that a single cause of action arises out of the same set of facts"
] | 44
|
stand against the principal or employer on the basis of vicarious liability or respon-deat superior. See Williams v. Hines, 80 Fla. 690, 86 So. 695, 699 (1920) (where a jury by its verdict exonerates the servant but finds the master guilty, the verdict as to the master is erroneous.); Buettner v. Cellular One, Inc., 700 So.2d 48 (Fla. 1st DCA 1997) (when principal’s liability rests solely on respondeat superior, principal cannot be liable if agent is exonerated); See also, e.g., Rothman, M.D., P.A. v. Hebebrand, 720 So.2d 595 (Fla. 4th DCA 1998) (physician’s professional association, which defaulted, could not be held liable for malpractice, where association’s liability was only vicarious and jury found in favor of physician); Keyes Co. v. Sens, 382 So.2d 1273, 1275 (Fla. 3d DCA 1980) (<HOLDING>). According to the allegations contained in | [
"holding that rochez did not foreclose respondeat superior liability for brokerdealers for the fraudulent acts of their employees",
"holding that employees defamatory statements made at work about matters relating to work were within the scope of their employment for purposes of respondeat superior and recognizing that californias respondeat superior doctrine imposes a broad rule of liability on employers",
"recognizing respondeat superior liability",
"holding that defendant whose liability for the acts of its employees was vicarious based on respondeat superior was not subject to a verdict or judgment for compensatory damages in excess of the amount of damage determined and found against its defendantemployees the active tortfeasors",
"holding that employees violation of his employers policy against drinking on the job does not preclude liability under respondeat superior"
] | 33
|
The USDA asserts authority to prescribe “restrictions on the use of a product,” including “limits on distribution of the product.” 9 C.F.R § 102.5(d). That regulation is the asserted basis for USDA’s decision to prohibit Creekstone’s “use” of a biological product for private BSE testing. Creekstone contends that USDA’s “use” regulation exceeds its authority to regulate “preparation, sale, barter, exchange, or shipment,” but Creekstone’s reading of the statute is too narrow. The principle of expressio unius est exclusio alterius will not restrict the application of a statute that also contains expansive modifiers such as “as may be necessary to prevent” and “or otherwise to carry out this chapter.” Compare NLRB v. Beverly Enterprises-Massachusetts, Inc., 174 F.3d 13, 32 (1st Cir.1999) (<HOLDING>)(emphasis added). See also United States v. | [
"recognizing equitable powers necessary and appropriate to carry out the provisions of this title",
"holding that 1 usc 1 does not apply except where it is necessary to carry out the evident intent of the statute",
"holding that the nlrb has the authority to interpret cbas in the first instance where its interpretation is for the purpose of enforcing a statutory right which congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of employment",
"holding grant of authority to an agency to adopt rules necessary to carry out this chapter clearly vested in the agency authority to interpret a statute",
"holding that terms of 29 usc 156 authorizing the nlrb to make such rules and regulations as may be necessary to carry out the provisions of the act grant the nlrb broad rulemaking authority"
] | 44
|
1854, 60 L.Ed.2d 435 (1979) (quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)). Although condemnation of private property under the Natural Gas Act is a matter of federal law, 15 U.S.C. § 717f(h) provides that a federal district court must look to and apply the “practice and procedure” followed in similar proceedings in the courts where the property is situated. Generally speaking, state law governs compensation issues in eminent domain proceedings involving private interests. See Georgia Power Co. v. 138.30 Acres of Land, 617 F.2d 1112, 1121 n. 5 (5th Cir.1980) (en banc) (applying state law to questions concerning compensation under the Federal Power Act); Algonquin Gas Transmission Company v. 60 Acres of Land, 855 F.Supp. 449, 453 (D.Mass.1994) (<HOLDING>); Tennessee Gas Pipeline Company v. 104 Acres | [
"recognizing that it is an open question whether drpa is a federal agency governed by the apa or a state agency governed by state administrative law",
"recognizing that it is the proponents burden to demonstrate the admissibility of expert scientific testimony",
"holding that the burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert and admissibility must be shown by a preponderance of the evidence",
"holding that the admissibility of expert testimony was governed by state law",
"holding that admissibility of a confession is governed by determining from the totality of the circumstances whether or not it was made voluntarily"
] | 33
|
the trial court erroneously classified property as marital when in fact it was non-marital, the question becomes what relief, if any, this court ought to grant. “The erroneous characterization of property requires reversal of the order dividing marital property if the error materially impacts the overall distribution of the marital property.” Halupa v. Halupa, 943 S.W.2d 272, 278 (Mo.App. E.D.1997). Here, by our calculation, the difference in the calculation is roughly five thousand dollars. The trial court awarded to each party a percentage of the property based on their respective contributions. The trial court was free to conclude that Wife was entitled to a share of the value of the home due to her significant contributions. Moritz v. Moritz, 844 S.W.2d 109, 112 (Mo.App. W.D.1992)(<HOLDING>). Because the property was not transmuted, it | [
"holding that a nonowning spouse is entitled to some benefit when marital funds are used to improve nonmarital property",
"holding that a trial court may find that a nonowning spouse is entitled to some benefit by reason of marital funds having been used to pay off debts on the owning spouses nonmarital property",
"holding that home purchased with separate funds and titled in one spouses name was transmuted into marital property because home was used as marital residence and the other spouse contributed to payments and repairs on home",
"holding that clear language in one portion of a later may cause ambiguity in another portion to dissipate",
"holding that one spouse may be entitled to a portion of the equity in home purchased with nonmarital funds"
] | 44
|
in state court, Romagosa and Brown filed supplemental proceedings against the P.A., Van Diepen, and OIM pursuant to Fla. Stat. § 56.29. Section 56.29(6)(b) states that “[w]hen any gift, transfer, assignment or other conveyance of personal property has been made or contrived by defendant to delay, hinder or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void-” Fla. Stat. § 56.29(6)(b). The purpose of § 56.29 is to assist judgment creditors in reaching the assets of judgment debtors. Morton v. Cord Realty, Inc., 677 So.2d 1322, 1324 (Fla.Dist.Ct.App.1996). Once the P.A. filed for bankruptcy, Ro-magosa’s supplementary proceeding action was properly stayed by the bankruptcy court. See In re Saunders, 101 B.R. 303, 306 (Bankr.N.D.Fla.1989) (<HOLDING>). The bankruptcy court ordered the Trustee to | [
"holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached would be inconsistent with the underlying purpose of the automatic stay",
"holding rule 11 sanction proceeding was exempt from automatic stay",
"holding that a state is immune by virtue of 11 usc 106c from money damages for violating the automatic stay provision of 11 usc 362a",
"holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay",
"holding that the plaintiffs 5629 action against the defendant for alleged fraudulent transfers was subject to the automatic stay provision 11 usc 362a"
] | 44
|
and onto her abdomen onee she submarined. He further indicated that Amanda’s pelvic and leg injuries were caused by- her knees impacting the vehicle’s dash panel. Mr. Lewis concluded that had Amanda not submarined and her seat not collapsed, she would not have sustained these injuries. Additional Evidence Amanda also introduced portions of Nissan’s pre-trial discovery responses wherein Nissan admitted to disposing of its developmental test reports including any reports concerning crashworthiness, front passenger seatbelt spool-out, submarining, and the effectiveness of the Pathfinder’s seatbelt systems. Mr. Whitman explained in detail why he believed that Nissan’s record retention policy was a bad of our sister states. E.g., Stone Man v. Green, 263 Ga. 470, 435 S.E.2d 205, 206 (1993) (<HOLDING>). The undisputed evidence demonstrates that | [
"holding that punitive damages are as a general rule improper where a defendant has adhered to environmental and safety regulations",
"holding tcpa is remedial statute and that statutory damages are not punitive damages",
"holding that punitive damages are not allowed under the flsa",
"holding a court may not award punitive damages",
"holding that punitive damages are not fines"
] | 00
|
By holding that the State lacks parens patriae standing because § 1132(a)(3) does not expressly provide for such standing, we do not of course intend to imply that states may only sue in their parens patriae capacity when a statute specifically provides for suits by states. States have frequently been allowed to sue in parens patriae to ... enforce federal statutes that ... do not specifically provide standing for state attorney generals. Id. at 121 (quotations and internal brackets omitted). To underscore the importance of this qualification, the court noted that unlike the carefully circumscribed standing provisions of ERISA, standing provisions in many other statutes implicitly authorized parens patriae standing by using language that permits any “person” who is “a 46 (3d Cir.1971) (<HOLDING>). Although these authorities do not address the | [
"holding title viii standing as broad as is permitted by article iii of the constitution and extends to indirect victims of defendants housing discrimination",
"holding that article iii standing is not a prerequisite to intervention",
"holding that article iii standing is necessary for intervention",
"holding that title viis term a person claiming to be aggrieved demonstrated congressional intent to confer standing to the fullest extent permitted by article iii",
"holding that because article iii standing is jurisdictional it must be decided before other legal issues"
] | 33
|
these arguments is sufficient to override the designation of Shar-key which appears in the record and Pine Tree did not abuse its discretion is so concluding. First, plaintiff contends that Sharkey waived her rights to the death benefits under the pension program when, attendant to the dissolution of her marriage to Decedent, she executed a Voluntary Separation Agreement, which was incorporated into, but not merged in the judgment of divorce. The Separation Agreement contained, inter alia, a mutual release by the Decedent and Sharkey of “any and all rights or interests which [they now have] or may hereafter acquire in the real, personal or other property of the other.” See Defs.’ Ex. 14. This contention founders on the rule of Estate of Altobelli v. IBM, 77 F.3d 78, 81 (4th Cir.1996) (<HOLDING>). The Separation Agreement in this case neither | [
"holding that erisa permits suits to recover benefits only against the plan as an entity and thus the beneficiary had erred by suing her exhusbands employer and plan administrator when proper party would have been the benefits plan itself",
"holding that a termination of an erisa plans benefits must be based upon the plans terms and language",
"holding that plan participants in a defined benefit pension plan have no claim to the plans surplus assets",
"holding that the family courts award to exwife of interest in 387 of debtors military pension payable directly from the plan was not subject to discharge because interest in pension plan was not a debt rather it was considered exwifes separate ownership interest",
"holding that exwife had no interest in exhusbands erisa plan because each party clearly intended by the terms of a property settlement to relinquish all interests in the pension plans of the other"
] | 44
|
this extraordinary relief, Harris cited a declaration in which his former lawyer swore that his representation in the first habeas proceeding had been ineffective. We ruled in Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir.2001), that relief under Rule 60(b) is available with respect to a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction. Harris has cast his Rule 60(b)(6) motion as such an attack on the integrity of his initial habeas proceeding, although the ground cited by Harris for reopening the first habeas proceeding would (if valid) require the habeas court to consider whether the sentencing judge committed reversible error. See Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir.1994) (<HOLDING>). Harris’s attack on the integrity of the | [
"holding that an ineffectivenessofappellatecounsel claim is only valid if the appellate error prejudiced the defendant",
"holding that lack of appellate jurisdiction is fundamental error",
"holding that appellate review is precluded when the error is invited",
"holding that where the state commits a discovery violation the standard for harmless error is extraordinarily high a defendant is presumed to be procedurally prejudiced if there is a reasonable probability that the defendants trial preparation or strategy would have been materially different had the violation not occurred and a states discovery violation is harmless only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced",
"recognizing under plain error review that the burden to show that substantial rights have been prejudiced is on the party that failed to raise the issue below and for an error to have affected substantial rights the error must have affected the outcome of the district court proceedings"
] | 00
|
case. Between the doctrine’s inapplicability here, coupled by the fact that neither the Bankruptcy Code nor the Federal Rules of Civil Procedure compel the fusion of both issues, this Court holds that Plaintiff did not waive its right to recover on an alleged preferential transfer. Y. Conclusion This Court concludes that § 502(d) does not preclude Plaintiff from bringing a preference action against Morris. Plaintiff was not required by the Bankruptcy Code to object to Morris’s c us. Holdings, Inc.), 2003 WL 1818177 (Bankr.D.Del. Apr. 2, 2003) (same); LaRoche Indus., Inc. v. Gen. Am. Transp. Corp. (In re LaRoche), 284 B.R. 406 (Bankr. D.Del. Sept.23, 2002) (same). But see Homeplace of Am., Inc. v. Salton, Inc. (In re Waccamaw’s Homeplace), 325 B.R. 524, 535 (Bankr.D.Del. May 31, 2005) (<HOLDING>); TWA Inc. Post Confirmation Estate v. City & | [
"holding defendant to a preference action has a right to a jury trial pursuant to the seventh amendment of the united states constitution but that right can be waived by filing a claim in the bankruptcy proceedings",
"holding that a chapter 7 trustee was the only person with authority to bring a cause of action after the appointment of a trustee",
"holding that parties waived any choice of law objection by not raising an objection",
"holding that party waived an objection to choice of law",
"holding trustee has not waived the right to bring a preference objection"
] | 44
|
asserting sovereign immunity under a separate provision of section 24-10-106(1)(e), by which a public entity retains immunity for "an injury caused by the natural condition of any unimproved property" ("the natural condition provision"). The parties subsequently stipulated that the improved campsite was a "public facility" but the trees adjacent to it originated on unimproved property. T8 The trial court determined that the "sole issue" was whether the trees adjacent to Burnett's campsite constituted a "public facility." In granting the State's motion to dismiss, the trial court conducted a two-part analysis to assess whether a pre-existing natural object, such as the tree, could be part of a "public facility." See Rosales v. City & Cnty. of Denver, 89 P.3d 507, 510 (Colo.App.2004) (<HOLDING>). The trial court held that the trees bordering | [
"holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver",
"recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public",
"holding that a tree is part of a public facility if a public entity incorporates it into a facility in such a manner that it 1 becomes an integral part of the facility and 2 is essential for the intended use of the facility",
"holding that the selection of the jury constitutes part of a public trial",
"holding sba is an integral part of federal government and is not a separate legal entity"
] | 22
|
of a memorandum filed by a defendant in anticipation of sentencing in a public-corruption case. See Huntley, 943 F.Supp.2d at 384-85. The letter argued for a lower sentence because of the defendant’s cooperation, and listed the state legislators and other elected officials who were recorded by the defendant as part of her cooperation. Id. In granting the media’s request for access to the letter, the court noted that the privacy interests of the elected officials were at their “lowest,” because these officials were “well-equipped” to “respond to any accusations of wrongdoing.” Id. at 387; see also Pansy, 23 F.3d at 787 (noting that “privacy interests are diminished when the party seeking protection is a public person subject to legitimate public scrutiny”); White, 2004 WL 2399731, at *5 (<HOLDING>). Huntley, however, provides limited support to | [
"holding that provisions protecting classified service employees from administrative demotion or discipline did not preclude reclassification of employees and warning against misinterpretation of scope of protections afforded to employees where protections apply only to administrative actions such as the promotion or discipline of employees they do not limit or preclude the city councils legislative authority to make necessary policy and budget decisions they do not somehow override the express authority for the city councils actions and thus they do not create a constitutionallyprotected property interest that prohibits the city council from passing the ordinance at issue in this case",
"holding that a city cannot be required to enter into collective bargaining sessions with an association of its employees",
"holding a city liable for personal injuries caused by a driver colliding with a girder in the center of a city street where the city did not give a warning",
"holding that disclosure of grandjury testimony of city employees was proper because they cannot be expected to have any personal privacy interest in their duties as city employees",
"recognizing as a privacy right the individual interest in avoiding disclosure of personal matters"
] | 33
|
Law. 11-12 (Nov. 1994) ("The side with the best case almost always wins, and the performance of the lawyers almost never matters. Some of the best lawyering I've ever seen has resulted in spectacular losses. And some of the most bumbling lawyers have had the fortune of attaching themselves to strong, and therefore winning, cases."). 50 . See Attorney Grievance Comm'n of Md. v. Snyder, 368 Md. 242, 793 A.2d 515, 531 (2002) (finding that attorney's failure to research whether his client, a criminal defendant, needed to be present at her initial appearance, as well as his failure to have her arrest warrant recalled once he learned of its issuance, provided sufficient evidence that he had violated MRPC 1.1); Attorney Grievance Comm'n of Md. v. Mooney, 359 Md. 56, 753 A.2d 17, 26-27 (2000) (<HOLDING>). 51 . Stip. Ex. 26 at Beecher00203. 52 . See | [
"holding that under texas law the mere representation of a party in a lawsuit does not establish privity between an attorney and his or her client",
"holding client is not liable for actions of attorney who misled client as to the status of case",
"holding that an attorney may only undertake to represent a new client against a former client where there is no confidential information received from the former client that is in any way relevant to representation of the current client",
"holding that an attorney whose office staff incorrectly instructed a client that he need not appear in court for trial provided incompetent representation",
"holding an attorney is an agent of the client and therefore cannot conspire with the client"
] | 33
|
Milwaukee, St. Paul & Pacific R. Co., 318 U.S. 523, 550, 63 S.Ct. 727, 87 L.Ed. 959 (1943); In re Minges, 602 F.2d 38, 39, 44 (2d Cir.1979); Matter of Tilco, Inc., 558 F.2d 1369, 1372 (10th Cir.1977). Indeed, the First Circuit Court of Appeals has referred to the decision to reject or assume an executory contract as within the “discretion” of the trustee. Gulf Petroleum, S.A. v. Collazo, 316 F.2d 257, 260 (1st Cir.1963). It is to be noted that Collazo dealt with the rejection of an agreement for the sale of real estate. Although Collazo was decided prior to the enactment of the Bankruptcy Code, Congress has given no indication that the “business judgment test” should not continue to apply under the present Code. In re A.J. Lane & Co., Inc., 107 B.R. 435, 440 (Bankr.D.Mass.1989) (<HOLDING>). Consequently, in confronting the question of | [
"holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable",
"holding that the business judgment test applies to the determination of whether a trustee should be allowed to reject an executory contract for the sale of real estate under 365",
"holding that the validity of a contract for a commission for the sale of real estate is determined by the law of the state where the contract is made",
"holding prospectively that a vendees interest in a real estate contract constitutes real estate within the meaning of the judgment lien statute",
"holding the real estate sale proceeds"
] | 11
|
the County acknowledges that Barrett involved litigation costs rather than attorney’s fees, it contends that this is a distinction without a difference and that it would not make sense to permit reimbursement of one and not the other given that both have their foundation in Section 440. Moreover, the County argues that It would be inequitable to force it to bear the costs of attorney’s fees where it had'a reásonable basis for its contest, and that Parker’s counsel will be unjustly enriched if the erroneously awarded fees are not disgorged. In this regard, the County observes that courts have frequently utilized equitable principles when interpreting provisions of the Workers’ Compensation Act. See Kiebler v. WCAB (Specialty Tire of America), 738 A.2d 510 (Pa. Cmwlth. 1999) (en banc) (<HOLDING>); Roadway Express Inc. v. WCAB (Alien), 152 Pa. | [
"holding that the delivery of an eeoc decision to the former attorney of a claimant did not constitute notice to the claimant",
"holding claimant was not entitled to agencys mistaken application of statutory provision",
"holding that the equitable principle of unjust enrichment allowed an employer to recapture a mistaken overpayment made to the claimant",
"holding that the burden of proof is on the claimant",
"holding that where employer paid benefits under group disability policy to employee under mistaken belief that his condition resulted from illness rather than injury arising out of and in course of employment employees acceptance of such benefits did not bar him from benefits to which he was entitled under workers compensation law and employer was properly allowed credit for payments made under disability policy"
] | 22
|
engage in any conduct subsequent to speaking with Cohen that could be construed as a waiver of the privilege: once Cohen advised him to invoke the Fifth Amendment, Fornes apparently stopped telling others about the murder. The fact that Fornes has died does not alter the privileged nature of the conversation, as the privilege survives his death. Nonetheless, under the authority of Chambers v. Mississippi, I conclude that Fornes’s statements to Cohen are admissible. As the Supreme Court held in Chambers, even if the evidence would otherwise be inadmissible under the state’s rules of evidence, a defendant in a criminal case may nonetheless be entitled to introduce the evidence if its exclusion would render his trial fundamentally unfair. See Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038 (<HOLDING>); see also Priest v. Hennessy, 51 N.Y.2d 62, | [
"holding declarations against penal interest admissible where certain conditions are met",
"holding that victims statements were hearsay admissible under the state of mind exception to the hearsay rule and constitutionally permissible under ohio v roberts citations omitted",
"holding that only selfinculpatory aspects of hearsay statement but not other parts of statement are admissible under exception for statements against penal interest",
"holding that exclusion of hearsay statements violated due process even though statements were not admissible under mississippi law which did not recognize declarations against penal interest as a exception to the rule against hearsay",
"holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule where the defendant was able to confront and crossexamine the witness who claimed that the statements at issue were made"
] | 33
|
facie case of retaliation. Upon review of the record, we find that the University satisfied its burden by producing evidence indicating that its actions were taken because of changes in Khazzaka’s conduct. See Defendant’s Motion for Summary Judgment, Exh. 1, Passon Affidavit at ¶¶ 9-14, 18-21, 81-83; id., Exh. 2, Adams Affidavit at ¶¶ 9-22; id., Exh. 3, Wiley Affidavit at ¶¶ 28-54. Although Khazzaka disputes some of this evidence, see Plaintiffs Response to Defendant’s Statement of Material Facts, he has not presented any evidence from which a fact-finder could disbelieve the University’s as serted reasons and/or believe that discrimination or retaliation was a motivating cause for the actions. See Fuentes, 32 F.3d at 764; Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir.2003) (<HOLDING>) (emphasis omitted). Consequently, the | [
"holding that a nonmoving party cannot defeat a motion for summary judgment by relying on conclusory statements",
"recognizing that nonmoving party must present affirmative evidence to defeat summary judgment",
"holding that the nonmoving party must show how additional discovery will defeat the summary judgment motion ie create a genuine dispute as to a material fact and that the nonmoving party must show that he has diligently pursued discovery of the evidence in question",
"holding that the nonmoving party must produce more than a scintilla of evidence to survive summary judgment",
"holding that the nonmoving party may not defeat a summary judgment motion by standing on the bare allegations in the pleadings"
] | 11
|
CURIAM: Michael Disch appeals his convictions for mailing threatening communication, in violation of 18 U.S.C. § 876(c), and making false statements to an FBI agent, in violation of 18 U.S.C. § 1001. Disch argues that the district court judge was required to recuse himself sua sponte under 28 U.S.C. § 455(a) and § 455(b). Ordinarily, we review a judge’s decision not to recuse himself under § 455(a) and § 455(b) for an abuse of discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir.1999); see also Parker v. Connors Steel Co., 855 F.2d 1510, 1527-28 (11th Cir.1988) (<HOLDING>). However, when a defendant fails to seek | [
"holding that a confrontation clause violation constituted harmless error",
"holding that a 455b violation is subject to harmless error review",
"holding that violation of rule 16 in that case was not harmless error",
"holding that confrontation clause violations are subject to harmless error review",
"holding that the omission of an element is subject to harmless error analysis"
] | 11
|
communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers.”); Davis v. United States, 328 U.S. 582, 587-91, 66 S.Ct. 1256, 1258-61, 90 L.Ed. 1453 (1946) (distinguishing private papers from public property in the custody of a citizen in applying the Fifth Amendment privilege); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944) (stating that the constitutional privilege against self-incrimination “protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by the legal process against him as a witness”); Wheeler v. United States, 226 U.S. 478, 489, 33 S.Ct. 158, 162, 57 L.Ed. 309 (1913) (<HOLDING>); Wilson v. United States, 221 U.S. 361, 377, | [
"holding that there is no selfincrimination where one is compelled to produce the papers of a business that has no privilege",
"holding where there is no duty to defend there is no duty to indemnify",
"holding that there is no unitary business in part because there is no flow of international business",
"holding that district court has no jurisdiction to take further action where there was no remand order",
"holding that where no factual dispute is raised no hearing is required"
] | 00
|
to dedicate all of their disposable income to their plan. The Trustee’s supplemental objection raised, for the first time, whether Section 1325(a)(5) bars a debtor from confirming a plan that strips off a wholly unsecured lien where the debtor has received a discharge in a prior bankruptcy case within the proscribed period set forth in Section 1328(f). Although TD Bank had previously argued that the Debtors’ ability to strip off its lien was contingent upon the entry of a discharge order, TD Bank did not rely on Section 1325(a)(5). IV. Discussion A. Jurisdiction and Venue The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and discharge in a bankruptcy case filed within four years of filing an earlier Chapter 7 petition 253 F.3d 778, 781-83 (4th Cir.2001) (<HOLDING>). However, there is no prohibition against lien | [
"holding that a wholly unsecured junior mortgage lien can be avoided under nobelman",
"holding that a socalled chapter 20 debtor may strip off a wholly unsecured junior lien",
"holding that an allowed wholly unsecured consensual junior lien may not be stripped off in a chapter 7 case",
"holding that a wholly unsecured junior mortgage on chapter 13 debtors residence could not be stripped down into an unsecured claim by debtors plan",
"holding that a debtors right to strip off a wholly unsecured lien is conditioned on the debtors obtaining confirmation of and performing under a chapter 13 plan that meets all of the statutory requirements rather than on a debtors discharge"
] | 22
|
right to additional BLM permits or approvals. See, e.g., Lewis v. Hickel, 427 F.2d 673, 676-77 (9th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 456, 27 L.Ed. 2d 440 (1971); Angelina Holly Corp. v. Clark, 587 F.Supp. 1152, 1156 (D.D.C.1984). They hold no more than an expectancy, the loss of which does not constitute a deprivation of property within the meaning of the due process clause of the Constitution. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 451, 66 L.Ed.2d 358 (1980); National Consumer Information Center v. Gallegos, 549 F.2d 822, 828 (D.C.Cir.1977). Their absence from the lawsuit does not preclude the district court from issuing the preliminary injunction. Compare Ohio ex rel. Brown v. Callaway, 497 F.2d 1235, 1241 (6th Cir.1974) (<HOLDING>). C. Exhaustion Mountain States asserts that | [
"holding it was error for the court to issue a permanent injunction at a hearing to show cause why a temporary restraining order should not be continued via a preliminary injunction",
"holding that when the district court applies the wrong preliminary injunction standard this court may review the record to determine whether the injunction is justified",
"holding that plaintiffs were not entitled to a preliminary injunction",
"recognizing the inappropriateness of a preliminary injunction where credibility determinations must be made but granting a preliminary injunction because the legal and factual issues have been sufficiently illuminated",
"holding that contract with construction company rendered inequitable a preliminary injunction restraining the contractors from performing the contractual obligations"
] | 44
|
court’s conclusion that the Jarvisons had a traditional ceremonial marriage under the Navajo Code. Moreover, because the Jarvi-sons had not completed the procedure under Navajo law to validate a traditional or common law marriage, the government argues that their marriage was invalid. In evaluating the government’s contentions, we observe that the district court could have produced a more robust order detailing its findings of fact and evidentia-ry basis similar to the detailed findings of fact and conclusions of law in Beller v. United States, 221 F.R.D. 679 (D.N.M.2003). Nonetheless, on our review of the record, we conclude that the evidence in the record is sufficient to establish a valid marriage between the Jarvisons. See United States v. Taylor, 97 F.3d 1360, 1364 (10th Cir.1996) (<HOLDING>). In this case, Esther testified to having | [
"holding that despite a trial courts failure to make specific factual findings an appellate court is free to affirm on any grounds for which there is sufficient record to permit conclusions of law",
"holding an appellate court is not limited to the grounds offered by the trial court in support of its decision and may affirm on any ground on which additional factual findings are not required",
"holding that an appellate court can affirm a district courts order on any basis for which there is a record sufficient to permit conclusions of law including grounds upon which the district court did not rely",
"holding this court may affirm on any grounds supported by the record even if different from the district courts grounds",
"holding that it is not an appellate courts function to make findings of fact"
] | 00
|
“[a] member of a limited liability company ... does not have an interest in any specific property of the company.” Tex. Bus. Orgs.Code Ann. § 101.106(b) (Vernon 2012). If further provides, “[ejxcept as and to the extent the company agreement specifically provides otherwise, a member or manager is not liable for a debt, obligation, or liability of a limited liability company, including a debt, obligation, or liability under ajudg ment, decree, or order of a court.” Id. § 101.114 (Vernon 2012). Thus, absent a showing that the LLC agreement provides otherwise (which has not been made here), no liability for the underlying judgment is imposed on BJVSD by virtue of its role as a member of Triton 2000. Furthermore, the relationship between BJVSD and the judg pp.-Eastland 2008, pet. denied) (<HOLDING>) (citing Redman v. Griffith, 202 S.W.3d 225, | [
"recognizing spoliation as an independent cause of action for negligence where a party is unable to prove its case due to the loss or destruction of key evidence",
"recognizing that when the corporations management or its shareholders are deadlocked with respect to a particular issue courts have realigned such corporations as party plaintiffs",
"holding that a corporation exists as an entity apart from its shareholders even where the corporation has but one shareholder the general proposition of corporate identity apart from its shareholders leads us to conclude in accordance with decisions from other jurisdictions that the attorneys client is the corporation and not the shareholders",
"holding under pennsylvania law that where fraud mismanagement or other wrong damages a corporations assets a shareholder does not have a direct cause of action however a corporation can suffer an injury unto itself and any claim it asserts to recover for that injury is independent and separate from the claims of shareholders creditors and others",
"holding that cause of action for injury to corporations property or for impairment or destruction of its business is vested in corporation as distinguished from its shareholders"
] | 44
|
of a firearm, in the absence of any aggravating circumstances charged in the indictment, does not constitute a per se ‘crime of violence’ .... ” Johnson, 953 F.2d at 115. The court reasoned that “[t]he danger inherent in the mere possession of a firearm is, in many cases, too highly attenuated to qualify the offense as a per se ‘crime of violence.’ ” Id. “While a felon in possession of a firearm may pose a statistical danger to society,” the offense in and of itself cannot be categorically considered a crime of violence. Id. While I recognize that, strictly speaking, the holding of Johnson applies only in the context of the Sentencing Guidelines, I can discern no basis to decline to apply its reasoning here. But cf. Fonner v. Thompson, 955 F.Supp. 638, 640-641 (N.D.W.Va.1997) (<HOLDING>). This is especially true in light of the very | [
"recognizing that the standard of review for issues of statutory interpretation and construction is de novo",
"holding an administrative interpretation cannot change the meaning of a statute or control the courts interpretation of it",
"holding that bop interpretation of 922g1 as a crime of violence is permissible construction of 3621e2b and limiting the holding of johnson to the interpretation of sentencing guidelines",
"holding erisa plan interpretation is simply one of contract interpretation",
"holding that in reviewing a claim construction decided under the broadest reasonable interpretation standard we determine whether the interpretation is within the range of reasonableness"
] | 22
|
claims. Case Nos. 75958 and 75961 represent appeals by the plaintiffs from the latter ruling, while Case Nos. 75959, 75960, 75962, and 75963 represent separate cross-appeals by the defendants from the former rul ing. Held: 1. The validity of a renewal action filed pursuant to OCGA § 9-2-61 (a) is contingent upon compliance with OCGA § 9-11-41 (d), which provides as follows: “Cost of previously dismissed action. If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” (Textual emphasis supplied.) See Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). See also Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984) (<HOLDING>). In reliance on such recent decisions as Hiley | [
"holding that laches is an affirmative defense",
"holding that the exclusivity of workers compensation is an affirmative statutory defense which must be timely raised or it is waived",
"holding that fair use is an affirmative defense",
"holding that payment of costs in a dismissed action is not an affirmative defense but a jurisdictional matter which may never be waived",
"holding that exhaustion requirement in bj997ea is an affirmative defense that may be waived or forfeited"
] | 33
|
system created or recognized by the law of the State, which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties. *** An employment differs from both an office and a position in that its duties, which are non-governmental, are neither certain nor permanent.” People v. Coffin (1918), 282 Ill. 599, 606-07. Although the designation of one by the law as an officer is of some significance (67 C.J.S. Officers § 8 (1978)), we recognize that such a designation is not conclusive as to the official or unofficial character of the person. Further, the nomenclature in a statute designating a person holding a position as an officer or employee is not controlling. (See Hall v. County of Cook (1935), 359 111. 528 (<HOLDING>).) We, therefore, consider whether the sheriff | [
"holding that notwithstanding language of statute authorizing appointment of a county architect by the board of commissioners of cook county such appointee is not an officer where he has no stated salary but is employed on a commission basis and where his work is generally casual and not continuous even though he is frequently referred to in the records of the county board as an officer",
"holding that a county ordinance imposing an impact fee on new residential construction to be used for new school facilities did not constitute an unauthorized delegation of power from the county to the school board because the fundamental policy decisions were made by the county and the discretion of the school board was sufficiently limited",
"holding a county and a road district had standing to sue state highway commission and county tax collector based on their interest in and control over the public roads of the county",
"holding before the apa definition of person was amended to include county that the board of county commission ers of dolores county could not sue the state agency that had ordered reappraisals of real property in dolores county in connection with valuation for ad valorem taxation because the board of county commissioners was not a person under the apa and did not otherwise have authority to sue under statute or constitution",
"holding that the lehigh county sheriff is a county officer rather than a state officer"
] | 00
|
all cases involving the conclusiveness of a judgment. It may be said that such privity involves a person so identified in interest with another that he represents the same legal right. See 30 Am.Jur. 954, Judgments § 227. In Indiana a privity is one who after rendition of the judgment has acquired an interest in the subject matter affected by the judgment. T.R. v. A.W., 470 N.E.2d 95 (Ind.App.1984). 4 . The Trustee’s action arises under 11 U.S.C. § 544(b) and his power as a hypothetical lien creditor and the representative of the estate. If the prior litigation has been brought in Federal Court, the Federal rule of res judicata would apply. See In the Matter of Energy Cooperative, Inc., 814 F.2d 1226 (7th Cir.1987). Compare Thibodeau v. Foremost Ins. Co., 605 F.Supp. 653 (N.D.Ind.1985) | [
"recognizing that state law controls applicability of res judicata or collateral estoppel in nondiversity action where prior judgment involved issues of state law",
"holding that a summary judgment is a determination on the merits for res judicata and collateral estoppel purposes",
"holding that state law controls whether issues decided in a prior state court action are entitled to preclusive effect and setting forth the elements of collateral estoppel under washington law",
"holding that res judicata and collateral estoppel apply to arbitration award",
"holding that federal rules of res judicata and collateral estoppel determine preclusive effect of prior federal ftca judgments even though liability is based on state law"
] | 00
|
F.Supp. 1424, 1426 & 1427 n. 3 (S.D.Fla.1993). The district court correctly determined that “the statute of limitations was tolled on Rothmeier’s whistleblower claim while the age discrimination claim was pending in federal court.” B. Prima facie case. Rothmeier failed to establish the first element of a prima facie case of retaliatory discharge because the record contains no evidence that he engaged in statutorily protected conduct. See Hubbard, 330 N.W.2d at 444. Whether a plaintiff made a report in “good faith” is a question of fact. McDonald v. Stonebraker, 255 N.W.2d 827, 831 (Minn.1977). Nevertheless, this court may determine as a matter of law that certain conduct does not constitute a “report.” See Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 180 (Minn.App.1991) (<HOLDING>), ajfd, 479 N.W.2d 58 (Minn.1992). Rothmeier | [
"recognizing the tort of retaliatory discharge",
"holding that an appellant waived a claim where he failed to cite any legal authority in support of an argument in his appellate brief",
"holding that the plaintiff alleged sufficient facts in his complaint to state a claim for wrongful discharge where he alleged he was discharged due to his political affiliation and activities",
"holding no jurisdiction where appellant argued report was no report because it failed to mention appellant in any substantive way but trial court found report was merely deficient on element of causation as to appellant and granted extension",
"holding that appellant failed to state a claim of retaliatory discharge where the record showed he merely gave his supervisor feedback and did not report alleged violations to any outside authority"
] | 44
|
between Marcon Exhibits, Eekstein’s Workshop, and the DSC.” Resp. to Mot., Ex. K at 1. The letter notes that “based on our discussions, it is clear that the parties possess a commonality of interest regarding the representation of AMTC against EPA and the Exhibition and are not adverse with one another or the DSC.” Ibid. Prihod signed the letter on behalf of Eek-stein’s Workshop and DSC, and Robert Gardella signed on behalf of Marcon Eek-stein and himself in his individual capacity. When an organization deals with its officers, directors, or members, Michigan law respects the separate identities of those involved, especially with respect to matching lawyers with clients. Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., 107 Mich.App. 509, 514, 309 N.W.2d 645, 648 (1981) (<HOLDING>). The ethics rules allow an lawyer to represent | [
"holding that individual shareholders of a corporation could disregard the corporate form and assert that a loan made to their corporation was usurious where the lender insisted that the shareholders incorporate an entity to receive the proceedseven though the proceeds were for the individual shareholders benefitsolely to avoid the lower usury rate for individual borrowers",
"holding that in a merger shareholders are effectively purchasing shares in a new corporation while losing their status as shareholders in the previous corporation",
"holding that the trustee could not bring a claim against sole shareholders of bankrupt corporation where shareholders had not looted or otherwise injured the corporation",
"holding that a corporation exists as an entity apart from its shareholders even where the corporation has but one shareholder the general proposition of corporate identity apart from its shareholders leads us to conclude in accordance with decisions from other jurisdictions that the attorneys client is the corporation and not the shareholders",
"holding that even where no attorneyclient relationship exists between a shareholder and the corporate attorney this does not necessarily mean that the law firm had no fiduciary duty to the shareholder and observing that instances in which the corporation attorneys stand in a fiduciary relationship to individual shareholders are obviously more likely to arise where the number of shareholders is small in such cases it is not really a matter of the courts piercing the corporate entity"
] | 33
|
calculated’ to ensure that notice reaches the alien.” Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997) (quoting United States v. Estrada-Trochez, 66 F.3d 733, 736 & 736 n. 1 (5th Cir.1995)); cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (finding that “notice must be such as is reasonably calculated to reach interested parties”). In this case, the INS simply followed the INA statute and chose a method of notice authorized by the statute — a method Congress itself determined was reasonably calculated to ensure proper notice. See 8 C.F.R. § 292.5(a) (1999); INA § 242B(a)(2), (c)(1), 8 U.S.C. § 1252b(a)(2), (c)(1) (1994). This method of notification does not violate an alien’s due process rights. See Farhoud, 122 F.3d at 796 (<HOLDING>); Wijeratne v. INS, 961 F.2d 1344, 1346 (7th | [
"holding that an alien is entitled to the fifth amendment guarantee of due process which is satisfied by a full and fair hearing",
"holding that alien need not receive actual notice for due process requirements to be satisfied",
"holding that the government need not prove actual notice to the prisoner",
"holding that due process rights were not violated when alien claimed a lack of actual notice but his attorney received notice",
"holding that due process is satisfied where notice is mailed to the wrong address if the appellant received actual notice"
] | 11
|
§ 507(a)(7)(E), even though the Bankruptcy Code itself provides no definition of ‘excise,’ ‘tax,’ or ‘excise tax.’ ” Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. at 220, 116 S.Ct. 2106. Even when the definition appears in a single statute, our sister circuits have also held that definitions limited to one section should not be applied to another section. Thus, for example, the Fourth Circuit held that, where Congress limited the definition of “investigative or law enforcement officer” to 28 U.S.C. § 2680(h), “[t]o apply the § 2680(h) definition beyond that subsection would make meaningless the limitation that Congress placed on the definition.” Andrews v. United States, 441 F.3d 220, 226 (4th Cir.2006); see also U.S. Postal Serv. v. Amada, 200 F.3d 647, 650-51 (9th Cir.2000) (<HOLDING>). We conclude that § 1337 is not designed to | [
"holding that the categorical approach applies to the identical definition of crime of violence in 18 usc 16",
"holding that the definition of operating deficits is not ambiguous despite the absence of a definition of the phrase in the contract",
"holding that the definition of supplier under the ocspa is substantially broader than the definition of debt collector under the fdcpa",
"holding that for purposes of 18 usc 924e involuntary manslaughter in ohio is a violent felony the definition of which is identical for all relevant purposes to the definition of crime of violence in 4b12a",
"holding that where the definition of lottery is expressly limited to 18 usc 1307b the definition cannot be applied to a related civil statute"
] | 44
|
his first issue, Samba maintains that the immigration judge placed too little weight on the length of his sentence and the assistance he provided to federal agencies in determining that the offense was a particularly serious crime. We have previously determined that such a claim, “which amount[s] to an argument that the immigration judge ‘abused [his] discretion in weighing the multiple desiderata made relevant by the [BIA’s] definition of a particularly serious crime,’ do[es] not present questions of law and therefore [is] not reviewable under section 1252(a)(2)(D).” Solorzano-Moreno v. Mukasey, 296 Fed.Appx. 391, 394 (5th Cir.2008) (third alteration in original) (quoting Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006)); see also Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007) (<HOLDING>). To the extent that the first issue challenges | [
"holding that a sentencing judge would commit a statutory error if the judge failed to consider the applicable guidelines range as well as the other factors listed in section 3553a",
"holding that the source of the federal funds was not a relevant factor in determining the number of violations",
"holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration",
"holding that the argument that the immigration judge did not consider all of the relevant factors in determining that his children would not suffer the requisite hardship was not a question of law under 1252a2d",
"holding that the family court is required to consider all relevant factors in determining alimony"
] | 33
|
goes to voluntariness The Court: Yeah. Crook: As I understand it. Hedgepeth (counsel for State): Well, as I understand it, it does too, but that’s what I want defense counsel to say on the record that he agrees that’s the way our courts ruled that that’s correct and we do not have to have every officer that was involved in everything. ¶ 17. The State submits that these exchanges indicate Sanders’s repeated and absolute waiver of the issue of the volun-tariness of her statement and was strictly based on whether Sanders had requested the presence of a lawyer during questioning. The State responds that Sanders never put on the evidence and expressly declined to attempt to produce evidence sufficient to invoke the Agee evidentiary rule. Hogan v. State, 730 So.2d 94, 98 (Miss.Ct.App.1998) (<HOLDING>). Further, the State submits that once the | [
"holding that agee applies only where defendant has alleged that his confession was induced by threats or promises",
"holding that confession was not induced from an improper promise where competent evidence supports the trial courts finding that the interviewing officer made no promises during the interrogation",
"holding that confession was involuntary where suspect was a few days short of his sixteenth birthday was questioned for at least four hours prior to his first confession and was not accompanied by counsel friends or family where defendants made no showing that petitioner acted coolly or callously during questioning or that he had past experiences with the police and where police made promises of leniency",
"holding that implicit threats or promises did not render a defendants statement involuntary when a review of the circumstances reveals that the defendants independent will was not overcome so as to induce a confession that he was not otherwise disposed to malee internal quotation marks omitted",
"holding that question of whether a confession was coerced was not to be resolved by considering the truth or falsity of the confession"
] | 00
|
trial court’s judgment wherein the appellant was sentenced to a loss of liberty”).’ ““““Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (‘ “If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.... The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” ’) (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (<HOLDING>).” “““Thus it is the lack of counsel, coupled | [
"recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel",
"holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal",
"recognizing the right to counsel on appeal",
"holding that the statutory right to counsel at a civil commitment hearing implicitly includes the right to the effective assistance of that counsel",
"holding that the right to counsel at arraignment is a jurisdictional matter"
] | 44
|
Judge. The husband, Theodore C. Rogers, appeals from an order granting the wife’s motion for temporary attorney’s fees and costs in a dissolution of marriage action. We reverse and remand for further proceedings. In March 2001, after approximately nineteen months of marriage, the husband filed for divorce. Shortly thereafter, the wife filed a motion for temporary attorney’s fees and costs. Following an eviden-tiary hearing, the lowe CA 1997)(<HOLDING>); Meighen v. Meighen, 813 So.2d 173, 176 (Fla. | [
"holding that trial court did not err in imputing income to wife for purposes of child support based on the continued monthly payment of wifes living expenses by wifes mother",
"holding that trial court did not err",
"holding that it was error to impute income to wife where there was no evidence of regular periodic payments and where assistance from wifes mother was of a temporary nature during the pendency of the divorce proceedings holding that lower court properly imputed income to husband where husbands parents maderegular periodic payments that allowed parties to maintain a high standard of living",
"holding that the order on the wifes petition for modification of child support was a final order because it disposed of all the issues except for the ancillary issue of attorneys fees",
"holding that the wifes testimony outlining the family living expenses constituted evidence from which the trial court could find that the needs of the children exceed the maximum support pursuant to the guidelines "
] | 00
|
discrimination on the basis of his disability, in violation of the ADA and NYHRL. Falardo, who was a PBA representative, also claims that after he helped negotiate the contract with the City of New York creating the VSF, the Code was altered from covering police officers who retire “from service” to those who retire “for service,” rendering those electing Disability Retirement ineligible for VSF benefits. Falardo alleges that this change in the statutory language constitutes fraud. B. PRIOR PROCEEDINGS The validity of the VSF statutory scheme (the “Scheme”) and the method by which it distributes funds has been extensively challenged in both state and federal actions under a variety of theories. See Castellano v. City of New York, 142 F.3d 58, 74 (2d Cir.1998) (“Castellano II ”) (<HOLDING>), cert. denied, 525 U.S. 820, 119 S.Ct. 60, 142 | [
"holding that because the federal arbitration act 9 usc 1 et seq preempts michigans lemon law mcl 2571401 et seq the plaintiffs lemon law claim should have been resolved through binding arbitration",
"holding that prejudgment interest ordinarily should be awarded on damages pursuant to claims under the copyright act of 1909 17 usc 1 et seq 1976 ed superceded by the copyright act of 1976 17 usc 101 et seq",
"holding that the plaintiffs state commonlaw tort claims were preempted by the national motor vehicle safety act 15 usc 1381 et seq",
"holding that denial of vsf benefits to disabled retirees does not violate the ada the rehabilitation act 29 usc 791 et seq or the age discrimination in employment act of 1967 29 usc 621 et seq and that plaintiffs due process and first amendment claims were frivolous",
"holding that the age discrimination in employment act adea 29 usc 621 et seq was not a valid abrogation of the states sovereign immunity"
] | 33
|
to that fact. A jury could infer that Kudner made the statement with the intent to induce the plaintiffs to sign the agreements and that the plaintiffs relied on the statement: Krupnick’s and Schapiro’s affidavits and testimony indicate that their signing the agreement was contingent on Avecia’s obtaining the registrations. (Exhibit P-6, Krupnick dep., 7/14/00, at 87; Krupnick aff. ¶¶17, 18; Schapiro aff. ¶¶29, 30.) There is evidence that the plaintiffs’ reliance on Kudner’s statements was justified: Kenline testified that it was Avecia’s responsibility to obtain the Reputex registrations and that Avecia had more regulatory experience than the plaintiffs. (Exhibit P-53, Kenline dep., 7/26/00, at 696); Wilmington Trust Co. v. Aetna Cas. & Surety Co., 690 A.2d 914, 916-17 (Del. 1996) (<HOLDING>). Finally, there is evidence of damages: the | [
"holding that whether the plaintiffs reliance on a negligent misrepresentation is justified generally raises a question of fact",
"holding that there was a genuine issue of material fact precluding summary judgment",
"holding that plaintiffs did not allege actual reliance on defendants misrepresentations and thus could not rely on 552 of the second restatement where plaintiffs proffered only fraudonthemarket theory alleging that defendants negligent misrepresentations affected market prices which induced plaintiffs to enter into certain transactions",
"holding it is a question of fact",
"holding that whether a plaintiffs reliance on defendants misrepresentations was justified is a question of fact precluding summary judgment"
] | 44
|
an issue, the federal court must predict how the state’s highest court would resolve the issue by “relying on guidance from analogous decisions in other states and other legal authorities.” Stratford Sch. Dist., S.A.U. Dist. No. 58 v. Emp’rs Reins. Corp., 162 F.3d 718, 720 (1st Cir.1998). There is a split of authority in other jurisdictions as to whether a hospital can be liable for breach of warranty when it supplies a defective medical device to a patient in the course of providing medical services and treatment. 35 Mass. Practice § 6:14 (2d ed. 2009). A number of federal courts have held that a hospital cannot be subject to strict liability because it is not a seller or distributor of medical devices. See, e.g., Vergott v. Deseret Pharm. Co., 463 F.2d 12, 16 n. 5 (5th Cir.1972) (<HOLDING>); Roell v. Stryker, No. 3:06-cv-443, 2007 WL | [
"holding that physicians as agents of the hospital are indistinguishable from the hospital for immunity purposes under the lgaa",
"holding that a company providing administrative purchasing and financial services to a hospital was not a hospital and thus could not be held directly liable under emtala",
"holding that a hospital cannot be strictly liable under texas law for a defective catheter because a hospital is not a seller engaged in the business of selling the product",
"holding that care of the grounds was part of the business of the hospital",
"holding that because the contract between the hospital and the health insurance company had a hold harmless provision which stated the hospital would not bill or hold insurance subscribers liable for any hospital expenses covered by the subscribers insurance contract and all expenses from the patients treatment for the automobile accident were covered in such contract there was no debt upon which the hospital could assert a lien pursuant to the states hospital lien statute"
] | 22
|
agents or brokers concerning the options available to them.” Strube, supra, 277 N.J.Super. at 241, 649 A.2d 624. In a series of decisions responding to those complaints, this Court, and the Appellate Division, held that insurance agents and brokers had a duty to exercise reasonable skill and good faith in advising their customers about UIM coverage and about their coverage selection options. See Weinisch v. Sawyer, 123 N.J. 333, 340, 587 A.2d 615 (1991); see also Avery v. Arthur E. Armitage Agency, 242 N.J.Super. 293, 301-02, 576 A.2d 907 (App.Div.1990) (discussing various initiating inquiries by insured that might trigger duty to provide advice concerning availability of additional UIM coverage options); Pinto v. Garretson, 237 N.J.Super. 444, 449-50, 568 A.2d 119 (App.Div.1989) (<HOLDING>); Sobotor v. Prudential Prop. & Cas. Ins. Co., | [
"holding insurance company that sent coverage selection form and buyers guide had no further duty to communicate directly with insured to advise of importance of notice or recommend purchase of additional coverage",
"holding insurance agent has no duty to advise insured of amount of insurance necessary to cover all potential losses",
"holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage",
"holding that insurance agents owe no duty to procure coverage for persons with no written or oral agreement with the agent to procure coverage or who have never contacted the agent about insurance coverage",
"holding that insurance company operating under a reservation of rights had the right and the duty to control the defense until such time as it was determined that it had no liability insurance coverage"
] | 00
|
of course, knew that Rios had Patrolman Coggins’ gun, did you not? A. At the time, yes. Further testimony showed that when defendant was captured he was seen to drop the .357 magnum revolver and kick it away. This evidence tends to show defendant first acquired the revolver when he shot Trooper Coggins and had it with him when he was captured. Bray’s testimony provides direct evidence defendant had Coggins’ revolver at the time he entered Mrs. Gillespie’s house. Considering all the evidence, circumstantial and direct, we conclude there was sufficient evidence from which the trial judge could find by a preponderance of the evidence that defendant was armed with a deadly weapon at the time he broke into Mrs. Gillespie’s home. See State v. Thompson, 318 N.C. 395, 348 S.E. 2d 798 (1986) (<HOLDING>); State v. Barts, 316 N.C. 666, 343 S.E. 2d 828 | [
"holding evidence sufficient to support aggravating factors of old age and infirmity",
"holding that if the imposition of the death penalty depends on the existence of aggravating factors a jury must find those factors beyond a reasonable doubt",
"holding evidence sufficient to support aggravating factor of old age",
"recognizing the validity of aggravating factors such as escape from confinement and prior felony conviction",
"holding that the grand jury need not find nonstatutory aggravating factors"
] | 00
|
Cir.1997) (“The text of § 1986 requires the existence of a § 1985 conspiracy.”), which in turn requires an allegation of four elements: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. See Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir.1994). Defendants contend that Ms. Rhyce cannot allege the first element because, under the single entity doctrine, the individual defendants, as employees of the Fire District, cannot be considered individuals sep arate from the Fire District. See id. at 653 (<HOLDING>); Benningfield v. City of Houston, 157 F.3d | [
"holding that petitioners status as school board members does not permit them to step into the shoes of the school board and invoke its right to appeal",
"holding that a school board and its employees constitute a single entity incapable of conspiring with itself for purposes of 19853",
"holding that the findings of fact conclusions of law and decision signed by the school board president constituted the decision of the board",
"holding that a county ordinance imposing an impact fee on new residential construction to be used for new school facilities did not constitute an unauthorized delegation of power from the county to the school board because the fundamental policy decisions were made by the county and the discretion of the school board was sufficiently limited",
"holding that the supreme court of pennsylvania is a state entity for purposes of the eleventh amendment"
] | 11
|
racketeering income.”). Although a few circuits have adopted a more liberal approach, the Second Circuit has consistently distinguished between injuries alleged to be caused by racketeering activity, and injuries alleged to be caused by investment of racketeering funds. See Gregory P. Joseph, Civil RICO: A Definitive Guide, § 7 (3d ed. 2010). Under the Second Circuit’s rule, injuries caused by the racketeering activity itself may not form the basis for a Subsection 1962(a) claim. See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1063 (2d Cir.1996), vacated in part on other grounds by, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998); Ouaknine, 897 F.2d at 82-83 (2d Cir.1990); Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 113 F.Supp.2d 345, 383-84 (S.D.N.Y.2000) (<HOLDING>). Similarly, neither can a plaintiff state a | [
"holding that to state a 1962a claim plaintiff must allege that the defendants received income derived from a pattern of racketeering activity and invested it in the acquisition of any interest in or the establishment or operation of a rico enterprise",
"holding that a plaintiffs claim of injury stemming from alleged procedural harm is insufficient to ground standing where the harm is uncoupled from any injury in fact or tied only to an undifferentiated injury common to all members of the public",
"holding that a shareholder lacks standing to bring a suit based on loss in value to his or her shares as this injury derives from and thus is not distinct from the injury to the corporation",
"holding that to state a subsection 1962a claim plaintiffs must allege a use or investment injury that is distinct from any injury resulting from the racketeering predicate acts themselves",
"holding under maryland law that a breach of fiduciary duty claim alleging loss in share value shareholder must allege an injury distinct from an injury to the corporation"
] | 33
|
183, 185-87, 66 L.Ed.2d 185 (1980). The judge, though immune from private suit, is not immune from criminal prosecution by a state or federal agency. See Dennis, 449 U.S. at 27-31, 101 S.Ct. at 186-88. Applying the rule here, the trial judge below — and the court-appointed psychiatrists who proved that they were functioning as an arm of the court — are immune from private prosecution by a private citizen. However, if they violated a criminal law, they are not immune from criminal prosecution by the government. Some cases using the functional approach have held that certain administrative functions of judges are not part of the judicial function and therefore are outside the scope of judicial immunity. See, e.g., Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (<HOLDING>). However, the case before us today does not | [
"holding an employee must be able to perform essential job functions at the time of termination",
"holding that the defendant is not entitled to be sentenced by the judge who took his plea when the judge made no promise to sentence him",
"holding judge not able to invoke judicial immunity in 1983 damages action against him for employment decision made in the exercise of his administrative functions",
"holding that the doctrine of sovereign immunity barred a claim for money damages against the librarian of congress in his official capacity because immunity had not been waived and the exceptions to immunity did not apply",
"holding that in a 1983 action issue of probable cause is for the jury"
] | 22
|
and has not argued that this defendant is a Thimerosal Defendant. Accordingly, the Holders have not shown that the district court e 78 F.3d 472, 477 (5th Cir.2002) (stating that an order granting a motion to dismiss is reviewed de novo). 7 . 343 F.3d 765 (5th Cir.2003), cert. denied, 544 U.S. 991, 125 S.Ct. 1823, 161 L.Ed.2d 755 (2005). 8 . 408 F.3d 177 (5th Cir.2005). 9 . 381 F.3d 501 (5th Cir.2004). 10 . 385 F.3d at 571. 11 . Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.2003)). 12 . Id. 13 . Id. at 574. 14 . Id. 15 . Id. at 575; see also Rainwater v. Lamar Life Ins. Co., 391 F.3d 636, 638-39 (5th Cir.2004) (noting that the Smallwood "common defense” rule only applies if the defense is "dispositive of all claims against all defendants”). 16 . 408 F.3d at 184 (<HOLDING>). 17 . 381 F.3d 501, 503-04 (5th Cir.2004) | [
"holding that claims against a city police chief in his official capacity were really claims against the city",
"holding claims based on the fair labor standards act subject to arbitration",
"holding that claims against vaccine manufacturers were subject to the vaccine act but claims against thimerosal manufacturers were not therefore the cause was properly removed based on a fraudulent joinder theory",
"holding the state law claims were not preempted",
"holding that claims based on asserted violations of the lad and 1983 are not subject to the new jersey tort claims act"
] | 22
|
his burden of showing that he has asserted either his factual or legal innocence. The other relevant factors also weigh against Hasson. As for prejudice to the government, it would be required to prepare for an unanticipated trial. In a case such as this, which the court designated as complex under 18 U.S.C. § 3161(h)(8)(B)(ii), the prejudice to the government is more obvious because trial preparation would entail considerable effort. Hasson also delayed the filing of his withdrawal motion until just days before sentencing, having waited almost four months after entering his guilty plea. See Carr, 80 F.3d at 420 (reasoning that a three-month delay in filing a motion to withdraw a plea weighs against the defendant); United States v. Vidakovich, 911 F.2d 435, 439-40 (10th Cir.1990) (<HOLDING>). The fourth and seventh factors, which | [
"holding that the delay is presumptively prejudicial does not necessarily mean the first factor weighs against the state but requires further consideration of the extent of the delay beyond this period",
"holding that a fivemonth delay did not render information stale",
"recognizing that a fivemonth delay weighs against the defendant",
"holding that a fivemonth delay in filing a motion to disqualify did not bar the motion where there was a reasonable explanation for the delay",
"holding a fivemonth delay in searching a computer did not invalidate the search because there was no showing that the delay caused a lapse in probable cause that it created prejudice to the defendant or that officers acted in bad faith"
] | 22
|
96, 98 (2) (561 SE2d 382) (2002). 12 Id. (punctuation omitted). 13 Id. (citation and punctuation omitted); see Richardson v. Marsh, 481 U. S. 200, 207 (II) (107 SC 1702, 95 LE2d 176) (1987); Bruton, 391 U. S. at 135-36. 14 Moss, 275 Ga. at 98 (2); see Bruton, 391 U. S. at 135-36. 15 481 U. S. 200 (107 SC 1702, 95 LE2d 176) (1987). 16 Moss, 275 Ga. at 98 (2) (punctuation omitted); see Richardson, 481 U. S. at 208. 17 Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) (485 SE2d 783) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) (601 SE2d 793) (2004). 18 See Moss, 275 Ga. at 99 (2) (<HOLDING>); Thomas, 268 Ga. at 137-38 (6) (holding that | [
"holding that admission of statement with references to we or they which did not directly implicate defendant did not violate defendants confrontation rights",
"holding that admission of nontestifying oodefendants statement to police that murder defendant came to his apartment and went in bathroom and stayed there for awhile did not violate bruton rule because statement standing alone did not clearly incriminate defendant but only became incriminating when linked with other evidence",
"recognizing the chance that the jury will credit a nontestifying codefendants incriminating statement and conclude that the statement pointed to the objecting defendant as the offender even though he could not crossexamine the declarant",
"holding that two or three references to everyone and they in testimony about confession did not violate bruton because testimony did not implicate the defendant expressly nor was it incriminating on its face",
"holding that the introduction of a jointly tried nontestifying codefendants statement violates the sixth amendment confrontation clause if the statement contains incriminating evidence concerning a defendant"
] | 11
|
(1st Cir.1983). The next hurdle is the one plaintiffs fail to clear: Does Congress have the power under the United States Constitution to abrogate the states’ Eleventh Amendment immunity? The Supreme Court has recently reiterated that Congress cannot invade Eleventh Amendment immunity except “pursuant to a valid exercise of power” conferred by the Constitution. Seminole Tribe, — U.S. at -, 116 S.Ct. at 1123. In determining the sources of power, the Supreme Court had previously found that Congress possessed the power to abrogate the states’ sovereign immunity when legislating pursuant to § 5 of the Fourteenth Amendment and the Commerce Clause. See id.; see also Fitzpatrick, 427 U.S. 445, 96 S.Ct. 2666; Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (<HOLDING>). However, the Supreme Court in Seminole Tribe | [
"holding that congress could not abrogate state sovereign immunity pursuant to the patent clause of article i",
"recognizing that congress has specifically abrogated the eleventh amendment defense when legislating pursuant to 5 of the fourteenth amendment and its article i 8 plenary power over commerce but refusing to extend authority to abrogate to legislation enacted pursuant to the indian commerce clause the indian gaming regulatory act",
"holding that congress may abrogate a states immunity pursuant to its enforcement power under 5 of the fourteenth amendment",
"holding that congress did not properly abrogate states eleventh amendment immunity from suits under the patent act",
"holding that congress could abrogate the eleventh amendment pursuant to the commerce clause"
] | 44
|
of the evidence. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749. In interpreting Hicks, supra, the Second Circuit has stated definitively as follows: [Defendant] misreads the Supreme Court’s statement in Hicks that once a defendant produces evidence of a legitimate, nondiscriminatory reason for his or her action, the plaintiff must then establish that the defendant’s actions were intentionally discriminatory. [Defendant] takes this statement as requiring the plaintiff to adduce additional evidence after the defendant’s production — evidence beyond that presented in the plaintiffs prima facie case. Justice Scalia took pains to preclude such an interpretation of the Court’s decision when he observed that, upon rejection of the defendant’s proffered reasons for its action , 142 (2d Cir.1993) (<HOLDING>), cert. denied, — U.S. -, 114 S.Ct. 1189, 127 | [
"holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence",
"holding that former employer met its burden of proof that ubc exception applied",
"holding that the burden of proof is on the claimant",
"holding plaintiffs ultimate burden of proof can be met by combining proof submitted in its prima facie case with evidence that defendants proffered reasons for its acts were false",
"recognizing that a plaintiffs burden in establishing a prima facie case is not onerous"
] | 33
|
the Plaintiffs’ Activities Involved Interstate Commerce The final question is whether the plaintiffs’ activities involved interstate commerce. For the purpose of the Motor Carrier Act exemption, “[a] carrier engages in interstate commerce by either actually transporting goods across state lines or transporting within a single state goods that are in the flow of interstate commerce.” Barefoot, 16 F.3d 1216, at *2 (citing Merchants Fast Motor Lines, Inc. v. I.C.C., 528 F.2d 1042, 1044 (5th Cir. 1976)); see also 29 C.F.R. § 782.7(b)(1) (“Highway transportation by motor vehic e intrastate transport of empty bottles destined for a bottling plant outside the state was a part of interstate commerce); Glanville v. Dupar, Inc., No. H-08-2537, 2009 WL 3255292, at *9-10 (S.D.Tex. Sept. 25, 2009) (<HOLDING>). The Eleventh Circuit has specifically | [
"holding that the connection between the robbery and interstate commerce was much more direct than in wang because at the time of the robbery the victim in walker was selling illegal drugs that had traveled through interstate commerce",
"recognizing that the interstate nexus requirement is satisfied by proof of a probable or potential impact on interstate commerce",
"holding that the time appliances were at a distribution center within the state did not break the continuity of interstate movement the subsequent delivery from the distribution center was the last phase in the interstate shipment",
"holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce",
"holding after lopez that the interstate nexus element of the hobbs act still requires the government to show only a minimal connection to interstate commerce"
] | 22
|
130 (2000). The Court of Appeals also held that Abrams had not preserved its objection to the trial court’s failure to give Abrams’s requested jury instruction containing the complete text of section 222A of the Restatement. Id. at 357. On review, Abrams first argues that the Court of Appeals erred in reviewing for abuse of discretion the trial court’s denial of his motion for a mistrial. Abrams contends that the abuse of discretion standard is appropriate only when an ex parte communication is between a party and a juror, or between a witness and a juror. According to Abrams, a communication between a lawyer and a juror is analogous to a communication between a judge and a juror, and should be considered error as a matter of law. Huntley v. Reed, 276 Or 591, 594, 556 P2d 122 (1976) (<HOLDING>). However, Abrams asked the Court of Appeals to | [
"holding that judges ex parte communication telling a jury it needed to reach a verdict was reversible error without any discussion of harmlessness",
"holding new trial required after judges ex parte communication with jury in response to jury question during deliberations because there was no way of reaching a conclusion about what transpired other than by adopting the judges recollection",
"holding a new trial required when juror is replaced by an alternate during jury deliberations",
"holding that judges comments to jury during equal pay act trial were harmless error",
"recognizing the hazards of ex parte communication with a deliberating jury"
] | 11
|
with the court, that Mr. Peralta has been granted a labor certification pursuant to a subsequent application filed by his employer. He has been awarded all of the relief that he sought, and there is consequently no live controversy concerning the original denial of his application for the same position with the same employer. As to the appellants whose employers have re-filed new certification applications that are currently pending, we do not think their claims are mooted. In contrast to Mr. Peralta, these parties have not yet received the relief originally sought and thus their original claim that the denial of their first certification application was arbitrary remains a live controversy. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (<HOLDING>). 3 . Actually, even after a certification is | [
"holding that a case under the declaratory judgments act remains a live controversy even if all requests for substantive declaratory relief become moot during the actions pendency as long as a claim for attorneys fees under the act remains pending",
"holding that issues as to whether declaratory relief should be granted had become moot and would be dismissed for lack of jurisdiction but that under hallman the entire appeal was not moot because there still was a live controversy as to whether appellee was entitled to recover attorneys fees under the declaratory judgments act and therefore issues regarding attorneys fees were not moot and would be decided",
"holding that appeals are moot when appellate courts can provide no effective relief",
"holding that a case is not moot so long as the court can fashion some form of meaningful relief for the injured party",
"holding that a previously live case can become moot only if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation"
] | 44
|
because of [the dealer’s] precarious financial condition .... ... [W]e decline to hold BMW/NA negligent and liable for damages since it could not reasonably have anticipated the crimes committed by [the dealer’s] principal, Eichler. Although BMW/NA may have been aware of [the dealer’s] shaky financial condition, that knowledge alone gave BMW/NA no cause reasonably to anticipate that Eichler would either engage in any criminal activity or that he would abscond with customer funds. In fact, no amount of supervision by BMW/NA would have enabled it to foresee Eichler’s thievery. Id. In other cases involving the franchisors of automobile dealerships, the courts have reached similar results. See Colson v. Maghami, No. CV 08-2150-PHX-MHM, 2010 WL 2744682, at *9-10 (D.Ariz. July 9, 2010) (<HOLDING>); DaimlerChrysler Motors Co., LLC v. Clemente, | [
"holding that owners and officers of automobile dealership who were neither consumers nor competitors in automobile market lacked standing to bring antitrust action against automobile manufacturer",
"holding that a franchisor had no duty to supervise its automobile dealership or to warn a customer of the dealership who paid a substantial deposit for a limited edition lamborghini reventon and who did not receive either the car or the return of his deposit",
"holding that an automobile dealership had no duty to prevent the misconduct of the executives of another company who misappropriated company funds to make the purchase of several automobiles from the dealership",
"holding that where no evidence was designated to show that a car buyer knew that a sale violated the rights of the dealership that owned the car the buyers were buyers in the ordinary course of business for purposes of indcode 26112019",
"holding that a car dealership could be held vicariously liable for the intentional tort of its employee who shot out the tires of the plaintiffs truck during a repossession attempt"
] | 11
|
to do it. The Bankruptcy Court provided counsel for Debtor with the opportunity at the October 3, 2013 status conference to address IndyMac’s argument that conversion was appropriate “based on the record that’s before the Court today” due to “lack of compliance with [the Bankruptcy Court’s] status conference order,” including the untimely filing of the status report and the “monthly operating reports [which] are missing” or “chronically late throughout the entire case.” (Suppl. Notice of Lodgment Supp. Mot. Stay, Ex. 7 at 5-6, 8, ECF No. 20-8). The Scheduling Order and the October 3, 2013 hearing provided Debtor with sufficient notice and opportunity to be heard to meet due process requirements. See In re Bijelonic, No. CV 11-08077-JVS, 2012 WL 2263289, at *5 (C.D.Cal. June 15, 2012) (<HOLDING>). Debtor contends that, prior to the October 3, | [
"holding that a bankruptcy courts initial scheduling order provided sufficient notice and opportunity to present evidence to meet due process requirements when the bankruptcy court sua sponte converted a chapter 11 case to chapter 7 because a debtor failed to comply with an initial scheduling order by not submitting a status report prior to the second status con ference and failing to appear at the second status conference",
"recognizing the distinction between the reorganized debtor and the converted debtor and holding an asset which was not property of the original chapter 11 estate does not become property of the converted chapter 7 estate",
"holding tort action accruing after original chapter 7 petition not part of estate when case converted to chapter 13 and then back to chapter 7",
"holding that a bankruptcy court is given wide discretion to convert a chapter 11 case to chapter 7 for cause and an order for conversion is reviewed for an abuse of discretion",
"holding that claims for alleged legal malpractice and breach of fiduciary duty against attorneys that represented the chapter 11 debtor in possession belonged to the bankruptcy estate and upon conversion of the case to chapter 7 such claims belonged to the chapter 7 trustee as successor to the debtor in possession"
] | 00
|
leave because the claim was not yet barred by the statute of limitations. Therefore, this claim could also have been re-filed without affecting the rights of the parties. In both cases, the amended complaint was considered filed because leave would have been granted had it been sought and no party would have been prejudiced if the formal requirements of requesting leave were bypassed. But that is not the situation here because HealthSouth would have been prejudiced if the court did not follow the formal requirements of Rule 15(a). Although it is true that upon re-filing leave would have been granted (as it was a week later), the loss of the affirmative defense of prescription would prejudicially affect HealthSouth. See Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir.2002)(<HOLDING>); Phillips v. III. Central Gulf R.R., 874 F.2d | [
"holding that the running of the statute of limitations is an affirmative defense",
"holding that the loss of a statute of limitations defense constitutes clear legal prejudice",
"holding that trial court erred by granting a directed verdict on statute of limitations defense and remanding for a new trial on the statute of limitations only",
"holding that the statute of limitations is nonjurisdictional and defendant expressly waived it observing in dicta that a statute of limitations defense should be raised no later than the trial",
"holding that the loss of a statute of limitations defense prejudices a defendant"
] | 44
|
28 U.S.C. § 2254(d). If, however, the petitioner’s federal constitutional claim was raised in the state courts but remained unresolved, we apply a de novo standard. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.2006). Under this standard, Williams’ petition should be granted if he can demonstrate that the erroneously admitted evidence so infused the proceeding with inflammatory prejudice that it rendered a fair trial impossible. Petrillo v. O’Neill, 428 F.3d 41, 44 n. 2 (1st Cir.2005). The Commonwealth contends that Williams’ federal claim was effectively adjudicated by the state court because the Massachusetts Appeals Court applied prejudicial error analysis, a standard that was at least as favorable to Williams as the federal standard. McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.2002) (<HOLDING>). The Appeals Court found that admission of the | [
"holding that if a state case explicitly states that the state standard is more favorable to the defendant than the federal standard the federal claim is considered adjudicated below when the state standard is applied",
"holding that the standard for withholding of removal is more demanding than the standard for asylum",
"holding that even if the standard for waiver is clear the standard was not met",
"holding that the standard of proof for dischargeability actions is the preponderance of the evidence standard",
"recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard"
] | 00
|
discretion. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 272 (2008). As noted, discovery in death penalty collateral proceedings is permissible only upon leave of court, and only for good cause shown. Pa.R.Crim.P. 902(E)(2). “ ‘A showing of good cause requires more than just a generic demand for potentially exculpatory evidence.’ ” Collins, 957 A.2d at 272 (quoting Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 750 (2004)). We agree with the Commonwealth that Elliott has failed to demonstrate that the PCRA court abused its discretion by denying Elliott’s request for additional discovery. Elliott has not identified any document that was withheld from him that would have been exculpatory, and his claims to the contrary constitute mere speculation. See Hanible, 30 A.3d at 484 (<HOLDING>); Commonwealth v. Carson, 913 A.2d at 261 | [
"holding lack of prejudice to the defendant is not good cause",
"holding that the government is not required to present exculpatory evidence to the grand jury",
"holding that record must show that evidence is exculpatory for defendant to establish brady violation",
"holding that speculation that production of requested documents might reveal exculpatory evidence is insufficient to establish good cause for discovery",
"holding that conjecture that opportunity to review homicide file might yield exculpatory evidence is inadequate to demonstrate good cause for discovery"
] | 44
|
court found Seamon’s representation misleading because (1) it did not show accessible curbs when they were near inaccessible ones, and (2) it relied on outdated data. Kirola has not shown that these findings were clearly erroneous either. Finally, the trial record included evidence that the City’s Municipal Transportation Agency provides both public transportation and paratransit services as part of the public right-of-way. Id. at 1205. The paratransit service in particular includes van and taxi service for disabled individuals. Id. The public transportation and para-transit services are the sorts of “other methods” that can satisfy program access even if other particular methods of benefit-ting from the program are inaccessible. 28 C.F.R. § 35.150(b)(1); see Daubert, 760 F.3d at 988 (<HOLDING>). In sum, we conclude that Kirola has not shown | [
"holding that a high school is not a public forum thus precluding free airing of religious views",
"holding that where a high school student and the students mother received adequate notice of the charges had sufficient opportunity to prepare for the meeting with school personnel were accorded an orderly hearing and were given a fair and impartial decision no due process violation occurred even though the school failed to provide advance notice that the potential disciplinary actions included a transfer to another school",
"holding that the public has an interest in having access to factual data from baseball games",
"holding that high school football games met program access standard where bleachers were inaccessible but other accessible locations provided unobstructed views of the field",
"recognizing that industrial arts teacher with a nineteenyear clean record at the same high school had a property interest protected by the due process clause in his particular assignment to that same high school"
] | 33
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Lee McNair appeals the district court’s order dismissing his civil action without prejudice as frivolous and as barred by the terms of a pre-filing injunction. We have reviewed the record and find no reversible error. Accordingly, we grant leave to proceed in forma pauperis and affirm for the reasons stated by the district court. McNair v. Evan, No. 4:12-cv-00069-FL, 2012 WL 2579338 (E.D.N.C. July 4 & 11, 2012). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED. * Generally, orders dismissing complaints without prejudice are interlocutory and not ap-pealable. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993) (<HOLDING>). However, orders dismissing actions or cases | [
"holding that an order dismissing a complaint without prejudice is a final appealable order only if no amendment to the complaint could cure the defects in the case internal quotation marks omitted",
"holding that a dismissal without prejudice is a final order only if no amendment to the complaint could cure the defects in the plaintiffs case",
"holding that dismissal without prejudice is final appealable order where no amendment to complaint could cure deficiencies identified by district court",
"holding that when the trial court signed an order dismissing the plaintiffs complaint but refused to enter a final judgment on that order the order refusing to enter judgment was appealable under former ors 190102a",
"holding that an order dismissing a claim without prejudice is a final appealable order if the statute of limitations for that claim has expired"
] | 00
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Modular obtained a release for Poerio — a party Mr. Smith did not sue and against which Mr. Smith’s statute of limitations had run at the time of trial — preserves Modular’s claim for contribution against Poerio. Although this issue has not'been squarely addressed by this Court, the Parke-Davis Court obliquely noted that, as in West Virginia, states which have adopted the Uniform Contribution Among Tortfeasors Act (“UCA-TA”) typically find that a settlement by a joint tortfeasor terminates its right of contribution, “barring a release obtained by the settling tortfeasor that expressly extinguishes any liability against all tortfeasors.” 217 W.Va. at 23, n. 11, 614 S.E.2d at 23, n. 11 (emphasis added); see also Mackey v. Irisan, 191 W.Va. 355, 361 n. 4, 445 S.E.2d 742, 748 n. 4 (1994) (<HOLDING>). Urging the Court to adopt this rule, Modular | [
"recognizing a right to contribution",
"recognizing contribution in the appropriate case",
"recognizing that prior to 1949 when the statute permitting contribution among joint tortfeasors was enacted no right of contribution existed between jointtortfeasors in delaware",
"holding that contribution will lie where no statute precludes recovery from the joint tortfeasor against whom contribution is sought",
"recognizing rule in ucata states that where settling defendant settles only his share contribution does not lie but contribution may be had from defendant whose liability was extinguished by joint tortfeasors settlement"
] | 44
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on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275] (1983) (per curiam) (emphasis added and internal quotation marks omitted); Berkemer v. McCarty, 468 U.S. 420, 439-40 [104 S.Ct. 3138, 82 L.Ed.2d 317] (1984). Furthermore, this court has held that a restraint on liberty which would constitute a seizure under the doctrine of Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), does not necessarily place the seized person in custody for Miranda purposes. Mcllwain v. United States, 568 A.2d 470, 472-73 (D.C.1989); see Berkemer, supra, 468 U.S. at 439-40 [104 S.Ct. 3138], E.A.H., 612 A.2d at 838 (footnote omitted); see also Morris v. United States, 728 A.2d 1210, 1216 (D.C.1999) (<HOLDING>). As we noted in Mcllwain, “[t]he comparatively | [
"holding that an applicant who had been detained for 36 hours and suffered a beating by the police but without serious injury had not been persecuted",
"holding that even if a reasonable person would not have felt free to leave the police station to which morris had been taken for questioning and where he had been for more than four hours and even if morris had thus been detained the restraint was not the equiva lent of a formal arrest and morris was not in custody for miranda purposes when he made an incriminating admission",
"holding in the context of a prosecution for second degree escape that although defendant was not handcuffed he had nonetheless been placed under arrest had had his liberty restrained in that he was not free to leave and at that point the first step in the process of transporting him to the police station had begun consequently the defendants arrest was complete and he was in custody",
"holding that accused was not in custody when told he was not under arrest and was free to leave and did in fact freely leave the interview",
"holding that a person is seized when a reasonable person would have believed that he was not free to leave"
] | 11
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CURIAM: Robb M. Harksen appeals the district court’s orders dismissing without prejudice pursuant to 28 U.S.C. § 1915A(b)(1) (2000) his complaint filed under 42 U.S.C. § 1983 (2000), for failure to state a claim. We have reviewed the record and find no reversible error in the district court’s dismissal of Harksen’s due process and access to courts claims. Accordingly, we affirm this portion of the district court’s order for the reasons stated by the district court. See Harksen v. Braxton, No. CA-04-242 (W-D.Va. Oct. 28, 2004); see also Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993) (<HOLDING>). With regard to Harksen’s Eighth Amendment | [
"holding that a dismissal without prejudice is a final order only if no amendment to the complaint could cure the defects in the plaintiffs case",
"holding that denial of a postconviction motion without prejudice and with leave to amend is not a final appealable order",
"holding that a plaintiffs voluntary dismissal of his claims with prejudice constituted a final order that was appealable",
"holding that an order dismissing a complaint without prejudice is a final appealable order only if no amendment to the complaint could cure the defects in the case internal quotation marks omitted",
"holding that dismissal without prejudice is final appealable order where no amendment to complaint could cure deficiencies identified by district court"
] | 44
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could not accurately enforce this portion of the property settlement agreement, despite testimony from both Mr. and Mrs. Prine that they knew exactly which tools Mr. Prine was to receive under the term “small hand tools” as such term was used in the property settlement agreement. Additionally, the chancellor made no finding as to Mr. Prine’s rights with respect to a “Yamaha 250 four wheel ATV” that Mr. Prine was to receive under the terms of the property settlement agreement, an article of personal property which Mrs. Prine gave away for no consideration after Mr. Prine fled the marital home. ¶ 16. Under these facts I must conclude that the chancellor committed manifest error in attempting to modify the terms of an enforceable property settlement agreement. See Mount, 624 So.2d at 1005 (<HOLDING>). Accordingly, I would reverse the chancellor’s | [
"holding that the evidence was sufficient for the jury to find that an oral agreement existed and that it was not modified",
"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 chancellor committed manifest error when he modified property settlement agreement",
"holding that it was error for the court to enter a modified agreement which materially altered the agreement reached by the parties",
"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"
] | 22
|
defendant’s conversion by wrongful act inconsistent with the property rights of the plaintiff; and (3) damages.” In re Emery, 317 F.3d 1064, 1069 (9th Cir.2003) (citing Burlesci v. Petersen, 68 Cal.App.4th 1062, 1065, 80 Cal.Rptr.2d 704 (1998)). One partner can be liable to another for conversion of partnership property. Oakdale Vill. Grp. v. Fong, 43 Cal.App.4th 539, 546, 50 Cal.Rptr.2d 810 (1996), as modified on denial of reh’g, (Apr. 10, 1996). Further, intangible property such as corporate shares and bonds may be the proper subject of a conversion claim. See Am. Bankers Mortgage Corp. v. Fed. Home Loan Mortgage Corp., 75 F.3d 1401, 1411 (9th Cir.1996) (collecting California cases); see also Fremont Indem. Co. v. Fremont Gen. Corp., 148 Cal.App.4th 97, 125, 55 Cal.Rptr.3d 621 (2007) (<HOLDING>). However, more abstract intangible property, | [
"holding that a calculation of the amount of loss is a factual finding",
"holding that proof of loss is not evidence of extent of loss and insured is not precluded from showing his damages were greater than shown in proof of loss",
"holding that it is not",
"holding insufficiently definite bonus agreement that did not establish amount or method for determining amount of payment",
"holding that a businesss net operating loss is the proper subject of conversion because it is a definite recordable amount"
] | 44
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appellant’s interpretation of the policy. Section B states that appellees will pay, when due, the benefits required. Section C gives appellees the right to investigate and settle all claims, proceedings, or suits. The actions taken by appellees pursuant to section C will determine if appellees are required to pay the benefits discussed in section B. If appellees exercise their rights under the policy in section C to settle a claim, then payment will be required of appellees under section B. There is .no requirement in the policy that appellees obtain the consent of appellant when settling a claim or investigating the merits of a claim, and we are not permitted to write such a clause into the policy. Dear v. Scottsdale Ins. Co., 947 S.W.2d 908, 913-14 (Tex.App.-Dallas 1997, pet. denied) (<HOLDING>), overruled on other grounds by Apex Towing Co. | [
"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",
"holding that thirdparty indemnity claims are not premature",
"holding that when policy gives absolute right to settle thirdparty claims courts are not permitted to engraft any consent requirement onto the policy",
"holding that injured employee has right to settle with thirdparty tortfeasor claims not covered by minnesota workers compensation act",
"holding insured relinquished right to sue general liability insurer for breach of contract relative to insurers allegedly improper handling and payment of thirdparty claim by purchasing policy which gave insurer right to settle"
] | 22
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In Granato v. City and County of Denver, No. CIV 11-0304 MSK/BNB, 2011 WL 3820730 (D.Colo. Aug. 20, 2011), the Honorable Marcia S. Krieger, now-Chief United States District Judge for the District of Colorado, ruled similarly: At a minimum, a party asserting a Mo-nell claim must plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation. Here, Ms. Granato’s allegations of an unconstitutional custom or policy maintained by Denver Health are entirely conclusory. She offers only the “formulaic recitation” of a Monell claim, alleging that Mr. Khazanov “act[ed] and/or fail[ed] to act pursuant to City or State policy, custom, decision, ordinance, re d 503, 506-07 (3d Cir.l985)(<HOLDING>). The Court does not believe a pre-determined | [
"holding that courts are to accept allegations in the complaint as being true including monell policies and writing that a federal court reviewing the sufficiency of a complaint has a limited task",
"holding that for purposes of a class certification motion the court must accept as true all factual allegations in the complaint and may draw reasonable inferences therefrom",
"recognizing that the allegations of the complaint must be accepted as true on a threshold motion to dismiss",
"holding that a court need not accept as true conclusory allegations which are contradicted by documents referred to in the complaint",
"holding that where the defendant was in default the district court correctly accepted the fact allegations of the complaint as true"
] | 00
|
n. 7, 713 P.2d at 960 n. 7 (1986) (“Counsel has no right to cast upon the court the burden of searching through a voluminous record to find the ground of an objection. It is counsel’s duty to cite accurately the portions of the record supporting counsel’s position.” (Internal citation omitted.)); Hoang, 93 Hawaii at 336, 3 P.3d at 602 (2000) (“Because the factual basis of [appellant’s] alleged point of error is not part of the record on appeal, this court has no basis upon which to rule on the merits of his claim.” (Citation omitted.)) Even if Appellants’ allegations of fraudulent inducement are taken at face value, they fall short of “clear and convincing” evidence of fraudulent inducement. Honolulu Federal Savings & Loan Ass’n v. Murphy, 7 Haw. App. 196, 202, 753 P.2d 807, 812 (1988) (<HOLDING>). At a more fundamental level, they do not | [
"holding that a finding of fraud may be reversed only for clear error but that the finding must be judged in view of the clear and convincing burden of proof",
"holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied",
"holding that the standard of proving fraudulent inducement with respect to written contracts is extremely high and a written contract will be cancelled only in a clear ease of fraud supported by clear and convincing evidence citations omitted",
"holding that fraud on the court must be supported by clear unequivocal and convincing evidence",
"holding clear and convincing standard to prove fraud or fraudulent intent and preponderance of the evidence to prove other elements under 727"
] | 22
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evidence was sufficient to support the jury’s determination that the illegal proceeds of wire fraud were thereafter used to promote the carrying on of the illegal scheme as alleged in the money laundering counts of the indictment. The proceeds generated from the underlying wire fraud were, in large part, the income stream that allowed Consortium to continue to maintain the appearance of legitimacy for a number of years. Indeed, the evidence showed that virtually all of the $3.2 million in fees was reinvested into Consortium’s business and expended to maintain the operation. Id. at 928. The Sentencing Guideline 3B1.1, we agree with Ross that using conduct from one group of counts to adjust the offense level of another group of counts without thereafter grouping all the cou 8th Cir.1998) (<HOLDING>); United States v. Hildebrand, 152 F.3d 756, | [
"holding that 28 usc 2461c authorizes criminal forfeiture of proceeds from general mail fraud via 18 usc 981a1c",
"holding that a count of 18 usc 1957 money laundering should not be grouped with mail fraud counts under either 3d12b or d",
"holding that restitution under the victim and witness protection act need not be limited to the specific amount alleged in the count of mail fraud to which defendant pled",
"holding that the defendant could be prosecuted for making false claims against the government under either the false claims statute 18 usc 287 or the mail and wire fraud statutes 18 usc 1341 1343",
"holding that a count of 18 usc 1956 reinvestment money laundering should not be grouped with wire fraud counts under 3d12b"
] | 11
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for new trial. 1 . The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri. 2 . In early 1994, Watson was detailed into an "Acting Building Management Specialist” position. During-his ninety-day detail, he was responsible for maintaining the environment and overseeing service contracts owned and leased by the IRS. The person ultimately selected for the open position, Milling Canon, replaced Watson in the ninety-day detail position. 3 . The only aspect of the district court's partial summary-judgment order addressed in Watson’s appeal is the court’s ruling on his retaliation claim. Thus, we will only consider this portion of the partial summary-judgment order in our analysis. See In re MidAmerican Energy Co., 286 F.3d 483, 487 (8th Cir.2002) (<HOLDING>). 4 . Because Watson offers no argument on | [
"holding issues not raised in appellate brief are waived",
"holding that claims not raised in an appellants initial brief to our court are waived",
"holding that issues not raised in an appellants initial brief are deemed abandoned",
"holding that issues not argued in initial brief are deemed waived",
"holding that arguments not raised in the opening brief are waived"
] | 11
|
v. Fortis Benefits Ins. Co., 116 F.Supp.2d 937, 950-51 (M.D.Tenn.2000). As other circuits have recognized, the treating physician rule is a standard that was developed in the Social Security context requiring the administrative law judge to give deference to the opinions of a claimant’s treating physician when determining the claimant’s eligibility for benefits. See, e.g., Regula, 266 F.3d at 1139; see also Peabody Coal Co. v. Groves, 277 F.3d 829, 833-35 (6th Cir.2002) (applying the “treating physician presumption” in a Black Lungs Benefit case holding that an AL J may place greater weight on the opinion of a claimant’s treating physician than those of non-treating physicians). Several circuits have adopted the treating physician rule in an ERISA context. Regula, 266 F.3d at 1139 (<HOLDING>); Donaho v. FMC Corp., 74 F.3d 894, 901 (8th | [
"holding that vicarious liability claim against union based on medical malpractice of treating physician is not preempted by erisa",
"holding that erisa benefits are not property of the estate",
"holding that an erisa plan administrator is not bound by an ssa disability determination when reviewing a claim for benefits",
"holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician",
"holding as a matter of first impression that the treating physician rule is applicable in the context of a disability benefits determination under erisa"
] | 44
|
to cause the U.S. government to overpay (i.e. suffer a direct financial loss to the federal fisc) for equipment to be resold to Saudi Arabia). 61 . Moreover, there is no indication in the legislative history that § 3729(c) was intended to expand the scope of FCA liability to demands for payment from money or property merely in the possession of the United States government. Nor does anything in the legislative history indicate an intent to overrule Cohn. Instead, Congress sought to clarify that the FCA extends to false claims made to states and other grantees of federal funds, overturning certain lower court decisions holding to the contrary. See S.Rep. No. 99-345, at 21 (1986); see also United States ex rel. Totten v. Bombardier Corp. (Totten II), 380 F.3d 488, 494-97 (D.C.Cir.2004) (<HOLDING>). Nowhere does the legislative history suggest | [
"holding that standing of a qui tam plaintiff under the false claims act requires an injury to the united states",
"holding that the defendant contractor violated 18 usc 286 a companion statute to the criminal fca because his claims were false when submitted even though the false claims were ultimately irrelevant to the total amount paid by the government to the contractor",
"holding that congress may even have been unsuccessful in this regard when those false claims are not ultimately presented to the united states",
"holding that apparel cleaners submission of false statements of their receipts a percentage of which were to be paid to the united states did not constitute false claims within the meaning of the federal false claims act",
"recognizing similar problem if fca is applied to claims presented to any federal grantee even if claims are not represented to united states"
] | 22
|
of the state. Our interpretation today is consistent with previous decisions construing the same phrase. In determining the state departments and agencies that are entitled to sovereign immunity, this Court has never restricted the defense or its waiver to entities with the words “department” or “agency” in their title. Instead, we have held that the terms apply to state political subdivisions and governmental entities, including the Board of Regents of the University System of Georgia and counties. Likewise, we have held that the phrase in the 1991 amendment does not apply to municipalities or local hospital authorities because they are neither the state nor a department or agency of the state. Based on the language and legislative history of the 19 217 Ga. 712 (124 SE2d 733) (1962) (<HOLDING>); State Ports Auth. v. Arnall, 201 Ga. 713 (41 | [
"holding that the but for test applied in a mixed motive case under the national labor relations act",
"holding that the nlrb was a creditor within the meaning of the code because it had been granted the power to enforce the national labor relations act even though a back pay award was made to individual workers not to the government",
"holding that a district court may have jurisdiction over action taken by the national labor relations board despite an express statutory finality provision when the agency has acted in excess of its delegated powers and contrary to a specific prohibition in the national labor relations act",
"holding ports authority was not an employer subject to the jurisdiction of the national labor relations board",
"holding that two entities were a single employer and therefore that their gross receipts could be totaled together to establish jurisdiction under the national labor relations act"
] | 33
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