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asserted against the state defendants, explaining why none was legally viable. Count I against Officer Sanchez for negligently classifying Mr. Lymon for kitchen work, and Count II against Cap-' tain Hernandez for negligently denying access to the formal grievance process and thereby insulating Sanchez and Aramark from legal, accountability, failed because the New Mexico Tort Claims Act (NMTCA) did not waive governmental immunity for the alleged conduct. Specifically, N.M. Stat. § 41-4-6, which waives immunity for “operation or maintenance of any building,” concerns unsafe conditions on government property and does not apply to the administrative functions involved here. Lymon, 728 F.Supp.2d at 1266-68 (relying primarily on Archibeque v. Moya, 116 N.M. 616, 866 P.2d 344, 347 (1993) (<HOLDING>)). And N.M. Stat. § 41-4-12, which waives | [
"holding that the alien tort statute itself is not a waiver of sovereign immunity",
"holding prisons negligent classification of prisoner fell outside waiver of immunity",
"holding that the waiver of sovereign immunity must be clear and unequivocal",
"holding that claims not pursued within two years of their accrual fall outside of the federal tort claims acts limited waiver of sovereign immunity",
"holding remedy not available to prisoner where officials purportedly prevented plaintiff from employing the prisons administrative remedies"
] | 11
|
the signatures of Gary and Dale Kahl. 3 Because of this ruling, no determination was made as to when the partnership was formed and which assets were acquired after that date. 4 Gary and Dale Kahl d/b/a Kahl Farms, and Receiver Justice Burgweger are the named respondents. The partnership's other creditors, Bank of New Glarus, Badgerland Harvestore Systems, Inc., John Deere Company, United Bank in Sun Prairie, Mt. Horeb Farmers Co-op, Production Credit Association, and Susan Kahl, were joined as intervenor-respondents. 5 The parties cite two cases from other jurisdictions which are factually very similar to the case at hand: In Re Taylorville Eisner Agency, Inc., 445 F.Supp. 665 (S.D. Ill 1977), and Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20 (Iow F.2d 786 (7th Cir. 1981) (<HOLDING>). (Several of these cases predate the 1972 | [
"holding a filing under wishart equipment co insufficient to identify the debtor horace wishart",
"holding a filing under mccauleys reprographics and mapping insufficient to perfect a security interest in the assets of the debtor corporation",
"holding that claims of corporation vest in corporation",
"holding a filing under john and mayella lintz insufficient to identify the debtor corporation",
"holding that the filing of notice without motion is insufficient"
] | 33
|
thus the claims against them were properly dismissed. V. Dismissal of the Malicious Prosecution Claim The District Court dismissed the malicious prosecution claim because the allegedly malicious prosecution had not terminated in McGee’s favor, as required by New York law. We agree. The prosecution against McGee terminated when, pursuant to N.Y. CPL § 170.30(l)(a), the accusatory instrument was dismissed as facially insufficient to state a claim for witness tampering. A55-56. We have held that a dismissal under CPL § 170.30 for facial insufficiency is “not a decision on the merits, an essential element of a cause of action for malicious prosecution.” Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999); see also MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996) (<HOLDING>). McGee relies upon Smithy-Hunter v. Harvey in | [
"holding that action could not form the basis of a malicious prosecution claim where criminal information was dismissed as insufficient to support the charges without prejudice and the prosecutors did not amend or refile",
"holding that a claim dismissed as malicious under the ifp statute should be with prejudice",
"holding that the defendant could not be liable for malicious prosecution where the plaintiff presented no evidence suggesting that defendants conspired with influenced or even participated in the prosecutors decision to bring charges against him",
"holding that a claim for malicious prosecution is not available when a prosecutor makes an independent determination of whether to pursue criminal charges",
"holding the same for malicious prosecution"
] | 00
|
of the complaint. The complaint references an AOS employee requesting a LoadTec motor from FS, but the complaint does not state whether FS ever provided such a motor. (Compl. ¶ 19). 6 . The court notes that both parties are unclear as to how the court’s findings on summary judgment relate to a judgment on the pleadings. To the extent the evidentiary issues resolved by the court on summary judgment influence this court’s order, the defendant's motion will be treated as a request for summary judgment on the unjust enrichment claim, as both parties have had a reasonable opportunity to present all material relevant to summary judgment and the motion itself clearly anticipates a summary judgment ruling. See Fed.R.Civ.P. 56(f); cf. In re G. & A. Books, Inc., 770 F.2d 288, 295 (2nd Cir.1985) (<HOLDING>) The court finds this perfectly acceptable, | [
"holding that district courts consideration of matters outside the pleadings converted the defendants rule 12 motion into one for summary judgment",
"holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings",
"holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion",
"holding that the essential inquiry in conversion of a rule 12b6 motion to a rule 56 motion is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings",
"holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment"
] | 33
|
decision does not specifically require a defendant to file verified affidavits or sworn testimony to satisfy Ms burden of makmg a preliminary substantial showing that the affiant recklessly or mtentionally made false statements in the warrant affidavit. The UMted States Court of Appeals for the Seventh Cirernt has not specifically addressed the issue of whether the defendant must file verified support for Ms allegations of falsity to mandate an evidentiary hearing under Franks. However, several other eir-cMts of the UMted States Court of Appeals have held that the defendant’s motion and allegations must be supported with affidavits or other sworn testimony in order to meet the “offer of proof’ requirement of Franks. The First CircMt has held that it is not error for a di (7th Cir.1983) (<HOLDING>). In regard to the sufficiency of the | [
"holding evidence insufficient to overcome presumption of correctness",
"recognizing presumption and finding that it was overcome",
"holding that a party seeking to establish particular claims as invalid must overcome the presumption of validity in 35 usc 282 by clear and convincing evidence",
"holding that the burden is on the defendant when the validity of the warrant is challenged",
"holding that the defendant must do more than produce a selfserving statement which refutes the warrant affidavit to overcome the warrants presumption of validity"
] | 44
|
362, 389 (Del.2011) (citing Manley v. State, 709 A.2d, 643, 655 (Del.1998)). 75 . App. to Opening Br. A-1549-50, A-1552. 76 . Id. at A-1557-58 (first omission in original). 77 . Ploof III, 2012 WL 1413483, at *11 (Del.Super. Jan. 30, 2012). 78 . Ploof also stated that Trial Counsel was ineffective for failing to object to the striking of prospective juror Susan Smith for cause, however, the record reflects that the State immediately used a peremptory challenge on Smith after the trial judge denied the challenge for cause. App. to Opening Br. A-1593-94. Accordingly, Ploof's claim regarding Smith fails on prejudice grounds, because the trial judge denied the challenge for cause. 79 . Id. at A-1545. 80 . Id. at A-1566-67. 81 . See Keith v. Mitchell, 455 F.3d 662, 677-78 (6th Cir.2006) (<HOLDING>); Williams v. Collins, 16 F.3d 626, 633 (5th | [
"holding that a defendant could not establish stricklands prejudice prong because any erroneous exclusion of an impartial juror was harmless because we have every reason to believe the replacement was also an impartial juror the defendant does not dispute that he was convicted and sentenced by an impartial jury and he presents no reason to think that a jury composed of a slightly different set of impartial jurors would have reached a different verdict",
"holding that the defendants right to an impartial jury was not impaired when there was no common thread or similarity among the group of excluded jurors",
"holding that a defendants claim that a jury was not impartial must focus on the jurors who ultimately sat",
"holding that we could not review an aliens colorable due process claim that an ij was not impartial because the alien raised the claim for the first time on appeal",
"holding that a criminal defendants right to an impartial jury is guaranteed by article 1 section 9 of the pennsylvania constitution"
] | 00
|
discrimination can be proved from the face of the tax statute); cf. Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) (quoting Oregon Waste Systems, Inc. v. Dep’t of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)) (“State laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ”); Trinova Corp. v. Michigan Dep’t of Treasury, 498 U.S. 358, 374, 111 S.Ct. 818, 112 L.Ed.2d 884 (1991) (quoting Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L.Rev. 239, 242 (1960)) (a tax imposed “on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes”); PPG Industries, Inc. v. Commonwealth, Bd. of Finance & Revenue, 567 Pa. 580, 790 A.2d 261, 264 (2001) (<HOLDING>). In reaching its conclusion here, the majority | [
"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",
"holding that ordinance requiring all municipal solid waste generated within county to be delivered to a particular facility discriminated against interstate commerce",
"holding that stock exchanges asserting their rights to engage in interstate commerce free of discriminatory taxes are within the zone of interests protected by the commerce clause",
"holding that three municipal flow control ordinances similar to the one here at issue discriminated against interstate commerce",
"holding manufacturing exception to pennsylvanias capital stock and franchise taxes unconstitutional because it facially discriminated against interstate commerce"
] | 44
|
matter, then, the Appellate Division’s decision rests on an interpretation of the Federal Rules, which requires us to conduct plenary review. See L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27-28 (2d Cir. 2010) (plenary standard of review applies to “a district court’s interpretation of the Federal Rules of Appellate Procedure”); In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir. 2000) (same, regarding the Federal Rules of Civil Procedure); Miller, 624 F.2d at 1200-02 (exercising plenary review over a district court’s interpretation of one of its local rules insofar as the rule simply incorporated state law, interpretations of which are subject to plenary review); cf. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 568, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977) (<HOLDING>). IV. Discussion The Appellate Division | [
"holding that when presented with petitioners claim based upon state and federal law and the state court confined its analysis to state law aedpa deference does not apply",
"holding that a federal court in absence of a state supreme court pronouncement on a subject of state substantive law must determine as best it can what the highest court of the state would decide",
"holding that the supreme court may review statecourt judgments that rest on state law when the state court felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did",
"holding that failure to cite federal law does not mean that state court decision was contrary to established federal law state court need not even be aware of supreme court precedents so long as neither the reasoning nor the result of the statecourt decision contradicts them",
"holding that supreme court possesses jurisdiction to review statecourt determinations that rest upon federal law"
] | 22
|
- C - Police interrogated defendant three different times on October 28 before he confessed to the West Windsor crimes. When the police brought defendant to the station at 8:30 a.m., they informed him of his Miranda rights, and he signed a waiver. Defendant ate lunch at around 3:00 p.m. The first interrogation began at 3:37 p.m. At this first interrogation session, the police again read defendant his rights, and he signed another rights form. The interrogation lasted a little over an hour, at which point defendant started to cry and asked for a half-hour “to think.” The interrogation ceased, and the police returned defendant to his cell. By requesting “time to think,” defendant was not invoking his right to silence. See State v. Bey, 112 N.J. 123, 138-40, 548 A.2d 887 (1988) (Bey II) (<HOLDING>). Although the police granted defendant the | [
"holding a suspects request for some time to think alone was not an invocation of the right to silence",
"holding request to lie down and think about what happened not a clear invocation of the right to silence",
"holding defendants request to lay down and think about what happened did not constitute invocation of right to silence as not every break in questioning compels renewed administration of the miranda warnings",
"holding that fresh miranda warnings are necessary after right to silence has been invoked",
"holding that defendants request to call his mother to get an attorney was an invocation of miranda rights requiring that further questioning must end"
] | 22
|
quotation marks omitted). IV. Conclusion For the reasons discussed herein, the district court’s denial of summary judgment on the basis of qualified immunity is AFFIRMED. 1 . The other defendants named in Karl’s complaint have either been dismissed from the case or have not appealed. Likewise, no other claims alleged in Karl’s complaint are before the court. 2 . We have previously declined to decide whether a public employee’s testimony is per se a matter of public concern regardless of its content or the type of proceeding in which it is offered. See Clairmont, 632 F.3d at 1103; Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 926 n. 6 (9th Cir.2004). We again decline to decide this question because in this case, as in our previous ones, the content th Cir.1998) (per curiam) (<HOLDING>). Far from creating a circuit split regarding | [
"holding that an insureds personal belief that he was not liable for an accident provided no basis for submitting the question of the reasonableness of his delay in notification to a jury when the insured knew the day after the accident that it had been claimed that the cable he had installed had caused the accident",
"holding that accident report was necessary to presentation of case and exclusion was in error",
"holding that a police officers deposition testimony in another individuals wrongful death suit was not protected speech where the testimony merely parroted the contents of an accident report generated in the normal course of his duties as an accident investigator",
"holding that a wrongful death claim related back to a personal injury claim in an automobile accident case where the wrongful death claim arose from the same transaction or occurrence as the original complaint and the defendant was advised of the essential facts necessary to prepare his defense even with the added claim",
"holding that a police officers deposition in a fellow officers 1983 action alleging unlawful retaliation was protected speech"
] | 22
|
exclusion from admission to the United States, or denial of naturalization. In addition, while due process requires that a guilty plea be made with knowledge of its direct consequences, In re Personal Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988), a deportation proceeding that occurs subsequent to the entry of a guilty plea is a collateral consequence of that plea. In re Personal Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999) (citing State v. Ward, 123 Wn.2d 488, 512-13, 869 P.2d 1062 (1994)). As such, Jamison need not have been advised, on due process as opposed to statutory grounds, of the immigration consequences of the plea. See Yim, 139 Wn.2d at 588 (citing Ward, 123 Wn.2d at 512). See also State v. Holley, 75 Wn. App. 191, 198, 876 P.2d 973 (1994) (<HOLDING>). But Jamison claims that the 1996 amendments | [
"holding that mere disagreement over the proper treatment does not create a constitutional claim",
"holding that a claim that is constitutional in name only does not create jurisdiction over an appeal from the veterans court",
"holding that rcw 1040200 does not create a constitutional right to be advised of immigration consequences therefore failure to comply with statute does not create constitutional harm",
"holding the failure to comply with the act does not bar defendant from raising a constitutional challenge to jury selection procedures",
"holding arkansas statute does not impose standards constraining discretion about granting clemency and thus does not create a constitutional right and invoke the due process clause"
] | 22
|
Mutual Casualty Co., 285 N.C. 313, 204 S.E.2d 829 (1974), the North Carolina Supreme Court held that the insured’s right to recover UM benefits from the insurer is derivative and conditional and that any defense that would have been available to the uninsured motorist is available to the insurer. The court explained: “In our view it would indeed constitute ‘antics with semantics’ to say that litigation with a stale tort claim, one against which the applicable statute of limitations has been specifically pleaded, remains ‘legally entitled to recover’ when his remedy has been taken away! To be ‘legally entitled to recover damages’ a plaintiff must not on aim seeking UM benefits “is actually one for the tort allegedly committed by the uninsured motorist.” Id. Inste 2d 16, 18-19 (1962) (<HOLDING>). The Alabama Supreme Court has stated that the | [
"holding that an insurer may assert as defenses the nonnegligence of the uninsured the contributory negligence of the insured and the lack of resulting damage all being matters of substantive law and legal defenses of the uninsured but it does not succeed to the rights of the uninsured motorist to interpose the latters procedural defense of statute of limitations",
"holding that the rejection was made a part of the policy because the declarations pages included the statements uninsured motorist covs rejected and uninsured motorists coverages have been rejected",
"holding that a hit and run or unknown driver is deemed to be uninsured for purposes of the uninsured motorist statute",
"holding that language requiring insurer to pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile includes recovery of exemplary damages under uninsured motorist provision of policy",
"holding that while the owner of several vehicles by paying a single premium for um coverage applicable to only one of them secures um coverage for himself and his family while occupying the uninsured vehicles as well as the insured vehicle the number of uninsured motorist coverages available to be stacked should be based upon the number of coverages for which uninsured motorist premiums were paid"
] | 00
|
the plaintiffs employment severely enough to support a hostile work environment claim. Id. Other courts have also noted the severe impact of the use of the word. See Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984). “The use of the word ‘niggeP automatically separates the person addressed from every non-black person; this is discrimination per se.” Id. In addition, in the present case, it is undisputed that Vasilopulos not only used the word “nigger” in the exchange with Tutman but Vasilopulos also threatened to kill Tutman. This added physical threat makes the present case distinguishable from cases in which the Seventh Circuit has held that there was no hostile work environment as a matter of law. See McKenzie v. Illinois Dep’t of Transportation, 92 F.3d 473, 480 (7th Cir.1996) (<HOLDING>); Drake v. Minnesota Mining & Mfg. Co., 134 | [
"recognizing that the elements of title vii sexually hostile work environment claims apply to icra sexually hostile work environment claims",
"holding that a three to four month period between the protected activity is not enough to show very close temporal proximity",
"holding that a two month period might be enough to prove the causation prong",
"holding that three sexually suggestive comments over a three month period were not frequent enough nor severe enough to be unreasonable interference with the plaintiffs work environment",
"holding that plaintiffs work environment was not affected by comments and conduct of which she was not aware"
] | 33
|
in an actuarially sound manner in the future and maintain solvency.”). In addition, over 85,000 class members accounting for more than 10 percent of the class have already responded to and taken advantage of the settlement. Tr. 9. Moreove agreement whereby an insured was to receive payment from the insurance company or have premiums reduced in consideration for services provided, or to be provided to the insurance company, did not constitute a rebate if there was a legitimate obligation to perform services of value to the company....”). More specifically, insurance premium discounts given in the context of a lawsuit settlement have been treated as legal and proper under such statutes. See e.g., Fidelity & Cas. Co. of New York v. Nello L. Teer Co., 179 F. Supp. 538 (M.D.N.C. 1960) (<HOLDING>); Cox v. Department of Insurance, 823 P.2d 177, | [
"holding that employees limited settlement of claims against third party did not extinguish claims of the insurer when employee and insurer had jointly filed suit against third party and settlement agreement provided that insurers claims would remain pending",
"holding that an agreement between insurer and insureds whereby insurer reimbursed insureds for costs of providing insurers administrative services did not violate antirebate statutes where agreements were not offered as an inducement to purchase insurance and reimbursements were reasonable in comparison to services rendered",
"holding that payment under settlement agreement between insurer and insureds concerning disputed premium claims was a compromise that did not violate antirebate statute",
"holding that insurance agents purchase of drinks for prospective insureds did not violate antirebate statute",
"holding that insureds demand to insurer was liquidated when insurer did not point to any evidence at trial in support of its contention that damages were disputed"
] | 22
|
49, 444 A.2d 659, 661 (1982), which will be given its commonly accepted and plain meaning, J.K. Willison, Jr. v. Consol Coal Co., 536 Pa. 49, 54, 637 A.2d 979, 982 (1994). Additionally, in determining the intent of the contracting parties, all provisions in the agreement will be construed together and each will be given effect. Murphy v. Duquesne Univ., 565 Pa. 571, 591, 777 A.2d 418, 429 (2001). Thus, we will not interpret one provision of a contract in a manner which results in another portion being annulled. Capek, at 274, 767 A.2d at 1050. Our Court has previously concluded that a party to a franchise agreement has an obligation to conduct itself with good faith and in a commercially reasonable manner. See Atlantic Richfield v. Razumic, 480 Pa. 366, 378, 390 A.2d 736, 742 (Pa.1978) (<HOLDING>); cf. 13 Pa.C.S.A. § 1201(20) (defining good | [
"holding that litigating franchise dispute in michigan does not require that michigan law govern dispute as michigan franchise investment law does not expressly void choice of law provisions in franchise agreement",
"holding that an agreement providing this agreement when signed by author and publisher will cancel and supercede the previous agreements was clearly intended to terminate an earlier agreement",
"holding that noncompliance with terms of agreement did not terminate agreement failure to comply with date requirement in termination procedure rendered termination ineffective and letter between nonparty and party could not terminate agreement",
"holding franchisor could not arbitrarily terminate franchise agreement as it would be a disregard of franchisees interests under the agreement",
"holding that under michigan franchise investment law franchisees failure to comply with lawful provisions in franchise agreements by failing to pay royalties and advertising fees and failing to file monthly sales reports constituted good cause for franchisors termination of agreements where franchisor gave notice of termination in writing and franchisees made no effort to cure"
] | 33
|
drawn, and all facts are viewed, in the government’s favor. United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir.2001). “At least where some corroborative evidence of guilt exists for the charged offense ... and the defendant takes the stand in his own defense, the defendant’s testimony, denying guilt, may establish, by itself, elements of the offense.” United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.1995). To convict Moghaddam under 18 U.S.C. § 371, the government had to prove beyond a reasonable doubt that Moghaddam (1) knowingly and voluntarily entered into an agreement with another person to export paddlefísh without the required permits and (2) the agreement was manifested by an overt act. 18 U.S.C. § 371; see United States v. Lafaurie, 833 F.2d 1468, 1470 (11th Cir.1987) (<HOLDING>). In order to convict Moghaddam under 16 U.S.C. | [
"holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy",
"holding that a conspiracy is an agreement to commit an illegal act into which the defendant knowingly and voluntary enters and which is manifested by an overt act",
"holding that proof of an overt act is not required in a 846 conspiracy",
"holding that an overt act may be a verbal statement or a physical act",
"recognizing requirement that defendant conspired to commit an overt act in state in furtherance of the conspiracy"
] | 11
|
offers testimony “material to the crucial issue of intent” must be admitted. (See PL’s Opp’n at 42) (citing Wright v. United States Postal Serv., 183 F.3d 1328, 1333 (Fed.Cir.1999); Jones v. Dep’t of Army, 68 M.S.P.R. 398, 405-07 (1995); Burge v. Dep’t of Air Force, 82 M.S.P.R. 75, 92 (1999).) However, these cases are fact specific; they certainly do not stand for the proposition that all witnesses who may add some additional detail need be allowed to testify. On the contrary, just as district courts enjoy broad discretion to exclude evidence, the probative value of which is substantially outweighed by “considerations of undue delay, waste of time, or needless presentation of cumulative evidence,” Fed.R.Evid. 403; see also United States v. Tarantino, 846 F.2d 1384, 1410 (D.C.Cir.1988) (<HOLDING>), the MSPB also enjoys substantial discretion | [
"holding that the district court did not abuse its discretion in limiting testimony to only one witness where additional witnesses would have provided the same testimony",
"holding trial court acted within its discretion in excluding expert testimony",
"holding that the district court exceeded its discretion in excluding testimony proffered to discredit the key government witness",
"holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative",
"holding trial court did not abuse its discretion in admitting highly probative and relevant evidence of other crimes"
] | 33
|
to Batoon — is without merit. Nor does Alcantera’s sentence violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A. Minor Role Reduction In United States v. Haut, 107 F.3d 213, 218 (3d Cir.1997), we held that we must sustain the District Court’s factual findings as to a § 3B1.2 minimal or minor role adjustment unless those findings are clearly erroneous. See id. (“We review under a clearly erroneous standard the district court’s factual determinations, such as whether a defendant receives a reduced or increased offense level based on his role in the offense.”); United States v. Carr, 25 F.3d 1194, 1207 (3d Cir.1994); United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990) (citing United States v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th Cir.1989) (<HOLDING>)). A decision is clearly erroneous if the | [
"holding that we review for clear error a district courts factual determination of a defendants role in an offense for purposes of applying ussg 3b11a",
"holding that role in the offense is a factual determination albeit complex a district courts decision not to apply an adjustment based on such a determination is reversed only for clear error",
"holding that a district courts determination as to the applicability of a privilege is reviewed for clear error",
"holding that a determination as to a defendants credibility for a safety valve reduction is a factual finding that is reviewed for clear error",
"holding that summary judgment may be reversed when it is based on an error of law"
] | 11
|
successive petition restrictions). Alternatively, the statute of limitations may be a non-issue because the administrative decision to confine a prisoner to IAS is usually not a discrete one-time act, but a continuing administrative process subject to regular and periodic review. In this case, the Court can pretermit the issue because the petitioner is not entitled to habeas review, regardless of the applicability of the statute of limitations. 3 . For instance, as discussed at the close of this order, the United States Court of Appeals for the Sixth Circuit has concluded that a pet r.1996) (post-AEDPA decision holding its presumption-of-correctness principles apply to prison administrative body imposing disciplinary penalties); Hanson v. Heckel, 791 F.2d 93, 96 (7th Cir.1986) (<HOLDING>); Hundley v. McBride, 908 F.Supp. 601, 602 | [
"holding that there is no protected liberty interest in the restoration of goodtime credits forfeited for disciplinary infractions under an older statutory scheme",
"holding 1983 suit seeking restoration of sentence credits properly construed as 2254 petition",
"holding that a prisoner who challenged prison procedures used to deny him goodtime credits and not actual denial of those credits stated a cognizable claim under 1983",
"holding habeas petition challenging denial of custody credits is not related to the conditions of confinement and was properly brought in the district of conviction",
"holding 1 that the district court properly construed one 1983 claim as a habeas petition but improperly summarily dismissed it and 2 that the district court should have construed another 1983 claim as a habeas petition"
] | 11
|
four claims against the Individual Defendants in their official capacities, including one constitutional claim and three statutory claims under Title II of the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1983. Insofar as Plaintiff requests prospective injunctive relief, all of these claims fit squarely within the Ex parte Young exception and are not barred by the Eleventh Amendment. The Ex parte Young doctrine ensures the protection of individuals’ federal rights by allowing suits for prospective injunctive relief against state officials in their official capacity. It is beyond dispute that Ex parte Young actions may be maintained for violations of Title II of the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1988. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (<HOLDING>); Dube v. State Univ. of New York, 900 F.2d | [
"holding that in a suit against state officials in their official capacities monetary relief unlike prospective injunctive relief is generally barred by the eleventh amendment",
"holding that title ii ada suits and rehabilitation act suits for prospective injunctive relief may be brought under ex parte young against state officers in their official capacities",
"holding suits against state officials for prospective injunctive relief are permissible because they are in effect suits against the officials in their individual capacities",
"holding that punitive damages may not be awarded in suits brought under 202 of the ada and 504 of the rehabilitation act",
"holding that eleventh amendment does not bar suits for prospective injunctive relief against state officials in their official capacity"
] | 11
|
of pollutants. Id. at § 1362(16). “Discharge” of a pollutant or pollutants means “any addition of any pollutant to navigable waters from a point source.” Id. at § 1362(12). The USFS asserts that the plain meaning of “discharge” is limited to a point source or a nonpoint source with a conveyance. Defendant-intervenors claim that “discharge” is limited to point sources only, interpreting the phrase “without, qualification” in the discharge definition as allowing some types of nonpoint source activity to fall within the statutory definition of point source. These arguments contradict the plain meaning of the term “discharge.” The term “including” in the discharge definition permits additional, unstated meanings. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 172 (D.C.Cir.1982) (<HOLDING>); Exxon Corp. v. Lujan, 730 F.Supp. 1535, 1545 | [
"holding that 3583e2 allows a district court to modify the conditions of supervised release without extending the term of that release",
"holding that the term includes in the cwa allows for additional unstated meanings",
"holding that 6905a of the cwa prevents any under claims under rcra that would be barred under the clean water acts cwa npdes permit shield",
"holding that an additional term did not materially alter the contract because the plaintiff cannot profess to be surprised by an additional term in an invoice when the price quotation contained the identical term",
"holding that as used in the cwa the term waters of the united states is not limited to the traditional tests of navigability"
] | 11
|
of one or more of the entities in which the Debtor held an ownership interest. In such circumstances, this Court expected the Debtor to seek approval from bankruptcy courts to retain Mr. Kaplan to perform accounting services on behalf of his estate. The fact that Mr. Kaplan was performing such services for free or on behalf of one or all of the entities that the Debtor controls did not suspend this requirement. The Debtor’s failure to submit an application for retention of Mr. Kaplan prevented this Court from testing whether his services would benefit the interests of the estate and whether Mr. Kaplan may suffer from a conflict of interest that would otherwise prevent his employment by the Debtor’s estate. See, e.g., In re Liebfried Aviation, Inc., 445 B.R. 30, 34 (Bankr.D.Mass.2011) (<HOLDING>). VI. The Debtor’s Animus for his Creditors’ | [
"recognizing that debtors failure to submit application for employ ment prevented the court from evaluating accountants purported disinterestedness and lack of a material adverse interest as regards the debtor and the bankruptcy estate",
"holding that the debtors false statements about the location of assets of the estate were material to the proceedings",
"holding creditors lacked standing to file an adversary action asserting the interests of the estate in seeking to prevent a former principal of the debtor from interfering with the chapter 11 reorganization given the lack of showing of the debtors consent and any determination by the bankruptcy court that the suit would be beneficial to the estate and necessary to a fair and efficient resolution of the bankruptcy proceedings",
"holding that bankruptcy court is without jurisdiction to control disposition of chapter 13 debtors property that is not property of the bankruptcy estate unless the property is related to the bankruptcy proceedings of the code",
"holding that proper forum for debtor to challenge actions of coexecutor of debtors deceased husbands estate was state probate court not bankruptcy court"
] | 00
|
are echoed by defendants and amici in their briefs on these cross-motions. First, these courts conclude that, viewed subjectively and objectively, notification statutes are “remedial” laws that are not motivated by “punitive, penal purposes.” W.P. v. Poritz, 931 F.Supp. at 1214; see also, e.g., Doe v. Poritz, 662 A.2d at 404 (“legislative intent [behind Megan’s Law] ... is clearly and totally remedial”). These courts rely heavily on their conclusion that these laws serve “significant remedial goals,” including as the “primary focus ... the protection of children and others from previously-convicted sex offenders, near them in the community, who have been found to have a moderate or high risk of re-offense.” W.P. v. Poritz, 931 F.Supp. at 1214; accord Stearns v. Gregoire, slip op. at 13 (<HOLDING>). Second, these courts also conclude that the | [
"holding a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant",
"recognizing that a court must balance the policy in favor of hearing a litigants claims on the merits with the policy in favor of finality",
"holding on motion for preliminary injunction that balance of hardships tipped in favor of public",
"holding that one candidates status as a pension fund tipped the scales in favor of its appointment as lead plaintiff",
"recognizing such balance of interests"
] | 22
|
upon the relationship, if any, between the two debts. Additionally, the July 2000 notice of this debt was sent before the Secretary had taken any action with regard to Mrs. Edwards’ May 2000 submissions. Nevertheless, the Secretary treated the $2,366 and $12,347 overpay-ments as separate matters throughout the proceedings. In this case, whether Mrs. Edwards’ May 2000 submissions could be considered a waiver request of both debts becomes relevant if, and only if, the May 2000 submissions, individually or collectively, are deemed to be a request for waiver. Thus, this issue is interrelated with the matter being remanded. Under these circumstances, the matter will be remanded for consideration by the Board in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed.Cir.2000) (<HOLDING>). III. REMAND On remand, Mrs. Edwards may | [
"holding that this court has discretion to hear arguments presented to it in the first instance provided that it otherwise has jurisdiction over the claim",
"holding arguments not raised on appeal waived",
"holding that an issue not raised in the trial court cannot be raised for the first time on appeal",
"holding that this court lacked jurisdiction to hear a cue claim raised for the first time on appeal",
"holding that the court has discretion to hear or to remand legal arguments raised for the first time on appeal"
] | 44
|
§ 8C-1, Rule 403. In State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), the Supreme Court stated in requiring the exclusion of evidence otherwise admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b) under N.C. Gen. Stat. § 8C-1, Rule 403, that: [W]here the probative value of such evidence depends upon defendant’s having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant. Such evidence is thus barred by N.C. R dence tending to show that Defendant possessed various prescription drugs which he was acquitted of possessing. State v. Allen, 144 N.C. App. 386, 388, 548 S.E.2d 554, 555 (2001) (<HOLDING>). After careful review of the evidence and the | [
"holding that a sua sponte dismissal of the charges during trial was not an acquittal that barred retrial based on double jeopardy",
"recognizing the specific need for an appropriate double jeopardy review when an appeal is taken by the state from a lower courts dismissal of the criminal charges",
"holding that a delinquency proceeding places a juvenile in jeopardy for purposes of the double jeopardy clause",
"holding that the dismissal of criminal charges for evidentiary insufficiency is an acquittal for purposes of the double jeopardy clause",
"holding that the trial courts dismissal of the charges after jeopardy had attached based on the prosecution witnesses failure to appear was not an acquittal and therefore double jeopardy did not prevent the court from reconsidering its decision and reinstating the charges"
] | 33
|
428, 429 n. 1, 343 S.E.2d 45, 46 n. 1 (Ct.App.1986). 2. Separation Agreements Prior to 1983, the law in South Carolina was unclear as to what specific words were necessary to render a separation agreement enforceable in the family court. In Kelly v. Edwards, 276 S.C. 368, 278 S.E.2d 773 (1981), the supreme court held that an agreement incorporated but not merged in a divorce decree was enforceable only as a contract and that the family court lacked subject matter jurisdiction to enforce it. Thereafter, in Brooks v. Brooks, 277 S.C. 322, 326, 286 S.E.2d 669, 671 (1982), the supreme court concluded the family court properly held a party in contempt for violating a separation agreement that was not merged in the final decree. See also Bryant v. Varat, 278 S.C. 77, 292 S.E.2d 298 (1982) (<HOLDING>). In 1983, however, the South Carolina Supreme | [
"holding that the trial court had authority to enforce a marital property settlement agreement that had not been incorporated into the parties final divorce decree",
"holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce",
"holding that the family court lacked subject matter jurisdiction to hold a party in contempt where the separation agreement was incorporated but not merged into a divorce decree",
"holding that the jurisdiction of the divorce court with regard to support and maintenance is statutorily determined unless otherwise provided by agreement incorporated into the divorce decree",
"holding a motion to revise an enrolled divorce decree because of a discrepancy between the separation agreement and the decree filed more than 5 years after entry of the enrolled decree was properly denied"
] | 22
|
gave no consideration to lesser restraints and made no adequate findings that forcing Messrs. Pursley and Wardell to wear a stun belt ... was necessary.”). We uphold the district court’s stun-belt order. While a defendant enjoys the “right to appear before the jury unfettered from physical restraints,” this right is not unqualified. United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986). Freedom from restraint helps to preserve, among other constitutional guarantees, “the due process right to a fair and impartial trial.” United States v. Apodaca, 843 F.2d 421, 430-31 (10th Cir.1988). A district court, however, retains the discretion to take measures to maintain order and security within its courtroom. See Deck v. Missouri, 544 U.S. 622, 632, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (<HOLDING>); Hack, 782 F.2d at 867 (acknowledging the | [
"recognizing defense counsel must have wide latitude in making tactical decisions",
"recognizing that trial courts have great latitude and considerable discretion to determine necessary and proper jury instructions",
"recognizing a hearing officers latitude in making credibility calls",
"recognizing the need to give trial courts latitude in making individualized security determinations",
"recognizing the benefit of alternative determinations in the social security review process"
] | 33
|
direct evidence of discrimination or relied solely on circumstantial evidence. See Price Waterhouse v. Hopkins, 490 U.S. 228, 270-78, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring) (describing the direct evidence model); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (describing the circumstantial evidence model). Like the parties, we apply the distinction drawn by these cases. As the Supreme Court has recently reemphasized, however, the McDonnell Douglas framework is a “flexible evidentiary, standard” whose requirements “vary depending on the context”; it is a method for proving cases rather than the definition of a cause of action. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002) (<HOLDING>). A. Direct Evidence It is generally to an | [
"holding that federal government employee successfully established prima facie case of retaliation under mcdonnell douglas but failed to prove employers proffered reason was pretextual",
"holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case",
"holding that a plaintiff who could not demonstrate every element of the mcdonnell douglas test could nonetheless demonstrate a prima facie case",
"holding that a title vii plaintiff need not plead the elements of a mcdonnell douglas prima facie case to survive a motion to dismiss",
"holding that denial of the opportunity to work overtime is an adverse employment action sufficient to make out a prima facie case under title vii"
] | 33
|
Here, the Parish, the Levee District, and the Corps of Engineers undoubtedly formed an agreement to indemnify. See, e.g., Pizani, 12-1084, pp. 9-10, 125 So.3d at 553. The Corps of Engineers agreed to “identify and pay” affected landowners. The proper parties to this suit, however, remain the Parish and the Levee District. | ga“An indemnitor is not liable under an indemnity agreement until the indemnitee actually makes payment or sustains loss.” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 17 (La.4/12/05), 907 So.2d 37, 51 (internal quotations omitted). “An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying” action. Reggio, 07-1433, p. 5, 15 So.3d at 955, but see Pizani, 12-1084, p. 13, 125 So.3d at 555 (<HOLDING>). Here, Borgnemouth’s suit against the Parish | [
"holding that the governments cooperation with a thirdparty is not sufficient to establish a thirdparty beneficiary relationship",
"holding that the thirdparty beneficiary theory did not apply",
"holding that a plaintiff who had asserted no claim against a thirdparty defendant lacked standing to complain of the courts action with regard to the thirdparty defendant",
"holding employers thirdparty complaint seeking indemnity from employee for alleged flsa violations was preempted",
"holding that thirdparty indemnity claims are not premature"
] | 44
|
principles of federalism and the Commerce Clause. Specifically, they contend that Act No. 26 may affect essential terms of insurance agreements entered in other states. To the extent that Act No. 26 is not limited to South Carolina, they claim the General Assembly improperly imposed its “public policy objections to the application of traditional occurrence definitions to construction cases involving faulty workmanship, on sister states.” We find several procedural barriers prevent the Amici from presenting this argument. The Amici lack standing to assert their challenge, and their claim is not ripe for review as they posit a hypothetical scenario, which Petitioner does not raise and which may not come to fruition. See James v. Anne's Inc., 390 S.C. 188, 193, 701 S.E.2d 730, 732 (2010) (<HOLDING>). Justice BEATTY (concurring in part and | [
"holding where a party failed to raise an issue clearly implicated in the initial decision of the trial court our mandate acted to prevent that party from raising this issue on remand",
"recognizing that justiciability encompasses several doctrines including ripeness mootness and standing and precluding amici from raising an issue not raised by the named party under rule 213 scacr",
"holding that the plaintiff was precluded from raising the issue for the first time on appeal",
"holding that the court bars a party from raising an issue on remand that was not raised on appeal",
"holding that failure to raise issue at district court forecloses party from raising same issue on appeal"
] | 11
|
or of nude women in sexually provocative poses would not be insulated from Title VII claims simply because the photos were observable by all office employees, White and Black, male and female.” 192 F.3d at 320 (Newman, J., concurring in part and dissenting in part). The majority in Brennan found it unnecessary to reach this common-exposure issue to resolve that particular case, see id. at 319, but we now adopt Judge Newman’s reasoning and that of the Fourth Circuit in rejecting Bell Atlantic’s argument that the common exposure of male and female workers to sexually offensive material necessarily precludes a woman from relying on such evidence to establish a hostile work environment based on sex. See also Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1522-23 (M.D.Fla.1991) (<HOLDING>). In sum, although all Bell Atlantic employees | [
"holding that white female had standing under title vii to challenge her employees alleged racial discrimination against blacks",
"holding that evidence established a municipal custom within the police department of a code of silence regarding sexual harassment of female officers and of retaliation against female officers who complained about same",
"holding that an employers policy requiring female employees to make larger pension fund contributions than male employees was discriminatory on its face in violation of title vii",
"holding that a class of all high school female athletes could not be certified even if the alleged conduct of the defendant school system was discriminatory when some female athletes did not share the same goals or interests as the named female plaintiffs because those unnamed female athletes were satisfied with andor benefitted from the alleged discriminatory treatment",
"holding that sexually provocative pictures of nude and partially nude women which were put up before any female employees joined the workplace had a disproportionately demeaning impact on female employees and as such conveyed the message that women do not belong"
] | 44
|
prong of the Central Hudson test. Rather, their dispute centers around the remaining three prongs. 2. Governmental Interest The defendants argue that the governmental interest behind § 189.635 is to protect accident victims’ privacy and safety by keeping the personal information contained in such reports out of the hands of the general public. We are persuaded that such an interest is substantial, as evidenced by the fact that a number of other courts that have considered similar statutes have reached the same conclusion. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir.1994); Speer v. Miller, 864 F.Supp. 1294 (N.D.Ga.1994); cf. Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998) (<HOLDING>); United Reporting Publishing Corp. v. | [
"holding that disclosure of information contained in undercover officers personnel files violated the officers privacy interest in preserving their lives and personal security",
"holding that personnel records or conduct investigative records regarding police officers are exempt from disclosure under virginias freedom of information act which exempts personnel records from disclosure",
"holding a citys policy of freely releasing information from undercover officers personnel files created a constitutionally cognizable special danger",
"recognizing as a privacy right the individual interest in avoiding disclosure of personal matters",
"recognizing a right to privacy in avoiding disclosure of personal matters"
] | 00
|
committee carries its burden, “[t]he plaintiff must . . . provide evidence of an objective, reasonable belief that his statements were true. See Burton v. Mottolese, 267 Conn. 1, 49-52, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).” The plaintiff has no burden to carry until the committee presents clear and convincing evidence of the violation. Here, after the plaintiff provides evidence that he had an objective, reasonable belief that his statements were true, the burden shifts back to the committee to rebut that evidence and, ultimately, to carry its burden of persuasion and to convince the finder of fact of the truth of the claimed violation. See, e.g., Somers v. Statewide Grievance Committee, 245 Conn. 277, 296-98, 715 A.2d 712 (1998) (<HOLDING>). At this point, I depart from the majority’s | [
"holding that employer failed to carry its burden to demonstrate that its past payment of maintenance and cure entitled it to an offset against jones act damages award for lost wages",
"holding that the defendant failed to carry his burden of proving the invalidity of the waivers of counsel for prior colorado convictions",
"holding that defendants failed to carry burden of proof to show that plaintiffs failed to mitigate damages when among other things they offered no evidence contradicting the plaintiffs evidence",
"holding that committee failed to carry its ultimate burden",
"holding that the utility did not carry its burden of proof by merely opening its books to inspection"
] | 33
|
required to review the substance of the constitutional challenge to the (e)(9) aggravating circumstance which Fisher now pursues and, thus, the review was not independent of federal law. We disagree. In Mu’min v. Pruett, 125 F.3d 192 (4th Cir.1997), we rejected a similar claim that the Virginia Supreme Court implicitly considered and rejected a habeas applicant’s constitutional claims during its mandatory review of the applicant’s death sentence because the mandatory review procedures only required the Virginia Supreme Court to determine “whether the imposition of the death penalty was influenced by improper considerations,” and not to “examine the record for constitutional errors not specified on appeal.” Id. at 197; see Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir.1995) (<HOLDING>); see also Bennett v. Angelone, 92 F.3d 1336, | [
"holding a contemporaneous objection is required to preserve an issue for appellate review",
"holding that south carolinas prior practice of in favorem vitae review did not preserve otherwise defaulted claims",
"holding that dismissal of claim attacking sufficiency of a plea allocution by defendants failure to preserve the issue otherwise available on direct appeal for such review",
"holding that general objection did not preserve error on appeal",
"holding that litigant must object at trial to preserve error for review"
] | 11
|
of sale statute, however, specifically authorizes “the mortgagee or ... his or their agent or attorney [to] sell the mortgaged premises ... by a public sale.” 33 M.R.S. § 501-A. , . [¶34] Even accepting Oceanic’s argument that Cummings violáted the plain language of the auctioneering licensing statute by conducting the auction, there is no support for the remedy Oceanic seeks— the licensing statutes próvidé for civil and criminal penalties for a violation of the statute, but do not provide for a private cause of action to invalidate a sale conducted by an unlicensed auctioneer. 10 M.R.S. § 8003 — C(3)-(5) (2015). As the trial' court noted, courts in other jurisdictidiis have reached the samé conclusion. ’ See Assocs. Discount Carp. v. Lunsford, 204 Va. 1, 128 S.E.2d 924, 924-25 (1963) (<HOLDING>); Gorman v. Berg, 141 A. 179, 179-80 (R.I.1928) | [
"holding that an auction sale by a creditors employee who was unlicensed as an auctioneer did not bar a deficiency judgment and noting that where a person sells at action without a license the question is one between the state and the auctioneer",
"holding that there is a difference between a debtor attempting to pursue an action for his own benefit and a trustee pursuing an action for the benefit of the creditors",
"holding that the district court did not abuse its discretion in denying his petition for reinstatement where membership in good standing in the state bar was required before attorney could be admitted to the federal bar and applicant had not been readmitted to state bar",
"holding that collateral estoppel did not bar the defendant from relitigating a pure question of law and noting that that is especially true when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it",
"holding that under the mwa the question of whether an employee was an independent contractor or an employee was a question of statutory interpretation"
] | 00
|
of the taxing authority to perform its public functions could be brought to a standstill by mass appeals. The potential harm of such a rule is intolerable to government.'' Id. at 109-10, 351 A.2d 156. 11 . When the taxpayer paid under threat of immediate harm or duress to person or property, the taxpayer usually could recover the taxes in an action at law, since such a payment was considered involuntary. See City of Baltimore v. Lefferman, 4 Gill 425 (1846) ("We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual and existing duress, imposed upon it by the party, to whom the money is paid”); see also Martin G. Imbach Inc. v. Deegan, 208 Md. 115, 117 A.2d 864 (1955) (<HOLDING>). 12 . Code 1939 Art. 81, § 162 leads us to | [
"holding that appellants payment of poundage fees was not voluntary when appellant paid the fee to prevent a sheriff from attaching and taking away equipment belonging to appellants business in satisfaction of a prior judgment",
"holding officers articulated reasonable suspicion justified appellants contin ued detention to await canine unit when officer suspected appellant of drug trafficking based on appellants prior arrests for drug offenses appellants lie about his prior criminal history and appellants possession of small jewelers bags used in cocaine trafficking",
"holding that the appellants claim that the circuit court erred in failing to make specific findings of fact as to all claims in the appellants rule 32 petition was not preserved for review because the appellant did not first present the claim to the circuit court",
"holding error for chancellor to find that the appellants had tortiously interfered with the appellees business relationships where record failed to disclose a single client who was influenced by the appellants to terminate the appellees services due to the appellants intervention",
"holding that appellants privacy interests under the us and texas constitutions were not invaded when officer walked up appellants driveway to allow drug dog to sniff appellants garage door"
] | 00
|
intend the Bankruptcy Code to extend to Puerto Rico”); cf. Cohen, 523 U.S. at 221-22, 118 S.Ct. 1212 (explaining that the Code is not to be construed "to erode past bankruptcy practice absent a clear indication that Congress intended such a departure”); Wellness Int’l Network, Ltd. v. Sharif, - U.S. -, 135 S.Ct. 1932, 1939, 191 L.Ed.2d 911 (2015) (describing the Code’s expansion of power given to courts adjudicating bankruptcy cases). Even so, this omission and others in the Code's early years led to at least some ambiguity about the Code's applicability to Puerto Rico. See Lubben, 88 Am. Bankr.L.J. at 572-73 & n. 125 (explaining this was because both the definition of "State” and that of "United States” were absent in the original 1978 Code); see also In re Segarra, 14 B.R. at 872-73 (<HOLDING>). In addition to the general ambiguity about | [
"holding that puerto rico is to be treated like a state for purposes of the sherman antitrust act",
"holding that under rico plaintiff must prove an injury because of violation of statute",
"holding that plaintiffs cannot claim that a conspiracy to violate rico existed if they do not adequately plead a substantive violation of rico",
"holding that the code applied to puerto rico under 48 usc 734",
"holding that equitable relief under rico is available only to the government"
] | 33
|
September 12, 1986 Notice of appeal filed October 2, 1986 Case refiled January 27, 1987 Case dismissed February 19, 1987 Case refiled 2nd time Appellant argues that the state cannot use the savings clause again for their second refiling, February 19, 1987. Nothing in the statute, however, forbids it so long as it is accomplished within the six-month time frame triggered by the initial dismissal without prejudice. And so it was here. The state apparently elected to forego the appeal inasmuch as the time extension to refile was running and not tolled by the appeal, and there was danger that the A.R.S. § 13-107(F) time limits would run before adjudication of the appeal. See State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978). See also Litak v. Scott, 138 Ariz. 599, 676 P.2d 631 (1984), (<HOLDING>). The A.R.S. § 13-107(F) six-month extension to | [
"holding that another complaint may be filed after conclusion of appeal if refiling is still allowable",
"holding that notice of appeal was not effectively taken where appeal was filed simultaneously with timely motion for reconsideration because when timely motion for reconsideration is filed a notice of appeal filed prior to disposition of the motion to reconsider has no effect",
"holding that an appeal is perfected when the appeal bond is filed",
"holding that when an employee is not provided with notice of termination and appeal rights by an employing agency a dismissal based on untimeliness may be proper if the employee fails to act promptly and within the allowable time limits after he or she becomes aware of those rights",
"holding that intermediate appellate courts have jurisdiction to address merits of appeal when amended notice of appeal is filed before briefs are filed"
] | 00
|
at trial by the State was far more than Reynolds accepts. In addition to the evidence Reynolds has noted, the State also introduced expert testimony from a medical examiner demonstrating that the injury to Reynolds’ hand was inconsistent with his explanation of the injury; testimony from a neighbor of the victims who saw Danny Privett sitting on Reynolds’ car, which was parked at the victims’ residence the night the crimes were committed; microscopic and DNA analysis of a pubic hair found at the crime scene matched a hair sample taken from Reynolds; Reynolds’ admission during an interview with law officers that he had a heated argument with Danny Privett; eyewitness testimony corroborating the circumstances surrounding the argument between Reynolds and Danny Privett; evidence that ) (<HOLDING>). Based on the foregoing, we conclude that | [
"holding that evidence of prior uncharged sexual conduct with the victim is admissible to corroborate the victims testimony",
"holding that evidence that the defendant had stalked threatened and assaulted the victim his exgirlfriend was evidence as to the nature of the defendants relationship with the victim and that it was relevant to establish motive",
"holding that case involving evidence such as eyewitness testimony placing the defendant at the scene acknowledgment by the defendant of a dispute with the victim and theft of the victims purse and dna evidence suggesting that the defendant had engaged in sexual relations with the victim could not be deemed entirely circumstantial",
"holding that before a defendant is entitled to introduce evidence of the victims character for violence there must be sufficient evidence to support a finding that the victim was the first aggressor and that once the defendant testified that he was attacked and cut by the victim without provocation before using the victims utility tool to stab the victim the defendant was clearly entitled to question the victim about past acts of violence reflected in court documents from the state of oregon",
"holding that uncharged sexual acts committed upon the same victim are admissible to show the conduct of the defendant toward the victim and to corroborate the evidence of the offense charged in the indictment"
] | 22
|
Dec. 21, 2007) (McCurn, S.J.); see also Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995). These claims are likewise precluded by the Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), where the Court held that: [I]n order to recover from damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s writ of habeas corpus, 28 U.S.C. § 2254. Id.; see also Tavarez, 54 F.3d at 110 (<HOLDING>). In the case at bar, Feldman was arrested, | [
"holding that collateral estoppel applies to 1983 claims",
"recognizing that the heck deferred accrual rule applies to fourteenth amendment equal protection claims",
"holding that the public harm requirement applies to fraudulent inducement claims because the fraud claims arise from related contract claims",
"holding that sovereign immunity also applies to cross claims and third party claims",
"holding that heck applies to bivens claims"
] | 44
|
discussed, Plaintiffs theory of fraud does not hold up under Michigan law. More detailed descriptions of the time and place the alleged statements were made would not cure its defects. C. Promissory Estoppel Plaintiffs third claim invokes the doctrine of promissory estoppel. Under Michigan law, courts will enforce a clear and definite promise under this doctrine if the promisee or a third party reasonably relied on the promise and injustice can only be avoided by its enforcement. State Bank of Standish v. Curry, 442 Mich. 76, 500 N.W.2d 104, 107 (1993) (“Curry”) (citing the Restatement Second of Contracts, § 90.) As the Michigan Supreme Court explained, “the sine qua non of the theory of promissory estoppel is that the promise be clear and definite.” Id. at 108; see.id. at 109-10 (<HOLDING>). The court additionally emphasized that “the | [
"holding that unenforceable promises cannot form the basis for a claim of promissory estoppel",
"holding that even if the standard for waiver is clear the standard was not met",
"holding that evidence of the material terms of a promised loan was required to meet the clear and definite standard for promissory estoppel",
"holding that promissory estoppel is applicable only in the absence of an enforceable contract",
"holding that the absence of a binding agreement does not defeat a promissory estoppel claim"
] | 22
|
of contra proferentem to resolve the ambiguities in the insurance contract. E.g., Lee v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1551 (11th Cir.1994). “Application of this rule requires us to construe ambiguities against the drafter.... ” Id. In doing so, we must conclude that Billings’s organically based OCD does not fall within the policy’s mental illness limitation. See Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir.1995) (explaining that “[b]ecause of the rule that ambiguities are to be resolved in favor of the insured, if either a cause or a symptom of the disease were physical and caused the disability in whole or in part, then” the disease does not fall within the mental illness limitation); Phillips, 978 F.2d at 310-11, 314 (<HOLDING>). Accordingly, we affirm the district court’s | [
"holding that a mental illness limitation containing the exact language at issue in this case is ambiguous because it does not specify whether a disability is to be classified as mental by looking to the cause of the disability or to its symptoms and thus construed in favor of the insured does not encompass organically based illnesses",
"recognizing attorneys mental illness as grounds for relief under rule 60b6",
"holding that upon applying the doctrine of contra proferentem the insureds organically based illness does not fall within the mental illness limitation as a matter of law",
"holding that attorneys mental illness may justify equitable tolling",
"holding that a mental illness limitation limiting the maximum payment for care of mental illness or care of nervous conditions of any type or cause is ambiguous because the plan contains no definition or explanation of the term mental illness and thus construed against the insurance company does not include physically based illnesses"
] | 22
|
237 F.Supp.2d 795, 801 (E.D.Mich.2003) (collecting cases). Thus, a consent to search that is obtained in violation of Miranda, that is, when it results from conversations initiated by the police after a suspect invokes his right to counsel or right to silence, is not necessarily violative of the Constitution. See ibid, (noting that “a consent to search obtained following a Miranda violation is not automatically tainted”). The Sixth Circuit has held that “where police simply fail to administer Miranda warnings, the admissibility of non-testimonial physical evidence derived from the uncounseled statements should turn of a statement mirror those used to assess the voluntariness of a consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (<HOLDING>); Guerra, 237 F.Supp.2d at 803. In this case, | [
"holding that whether a consent to a search was in fact voluntary or was the product of duress or coercion express or implied is a question of fact to be determined from the totality of all the circumstances",
"holding that the reasonableness inquiry is based upon the totality of the circumstances in determining whether or not a search was reasonable",
"holding threat to obtain a search warrant if individual does not consent to a search is just one factor in deciding whether the totality of the circumstances supports a voluntary consent finding",
"holding it is a question of fact",
"holding that the government bears the burden of proving voluntary consent under the totality of the circumstances"
] | 00
|
issue “went to gambling, alcohol, and drugs. I lost all the money earned and had no money to pay the taxes. I hoped [I] could win money to pay the taxes, but I lost all the money.” (Def.’s Ex. 16, answer to interrogatory 6.) At trial, however, Long testified that he was not aware until 2005 that he did not pay his taxes, and that he thought Magida was filing his returns and paying his taxes for him. (Tr. at pp. 15, 28.) Finally, Long also testified at trial — inconsistently—that he thought the taxes for at least 2001 were being paid out of the proceeds of the sale of his McDonald’s franchise. (Id. at pp. 14, 29.) Long further testified at trial that he had never received prepared returns from Magida, though he later admitted that at least some of the returns Magida prepared, and 005) (<HOLDING>). Long’s failure to file his 1999, 2000, and | [
"holding that agency could not claim confidentiality for tax returns that had been exhibits in tax court and were therefore public records",
"holding the conduct element satisfied where debtor failed to timely file tax returns and failed to pay taxes for those years",
"holding the conduct element satisfied where debtor earned income during the tax years at issue but did not make any estimated tax payments had inadequate or no withholdings and latefiled his tax returns",
"holding that debt or who failed to file income tax returns and failed to pay tax satisfied 523alcs conduct requirement despite no affirmative conduct to evade taxes",
"holding refund of discriminatory tax required because predeprivation remedy not clearly available for tax years at issue"
] | 22
|
incident — reflecting conduct that is not pervasive or frequent — may be sufficiently severe to constitute sexual harassment, it must be “extremely serious” in order to “amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Id. (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). As this court recently noted, “[t]he determination of whether alleged conduct is sufficiently severe or pervasive is not an exact science, but this [cjourt’s decisions on this issue provide guidance.” Gibson v. Potter, 264 Fed.Appx. 397, 400 (5th Cir.2008). The type of non-consensual physical touching alleged by Paul was held to be actionable under Title VII only in cases where it was chronic and frequent. See McKinnis v. Crescent Guardian, Inc., 189 Fed.Appx. 307, 310 (5th Cir.2006) (<HOLDING>); Harvill, 433 F.3d at 435-36 (holding that | [
"holding that two alleged incidents of hostile treatment in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers did not constitute a hostile work environment",
"holding that consideration of the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period",
"holding that chronic unwanted touching including touching on the breasts and thigh over a yearlong period repeated demands for hugs and kisses and other inappropriate behavior resulting in plaintiffs resignation supported a hostile work environment claim",
"recognizing a hostile work environment claim under section 1983",
"holding that a plaintiff alleging a hostile work environment claim under title vii may seek damages for all behavior contributing to a hostile work environment claim including behavior allegedly occurring outside the limitations period provided that an act contributing to the claim occurs within the filing period"
] | 22
|
I find this argument unavailing as well. The language of the condition precedent does not apply to claims that Carrón could or could not make at any given time. Rather, the condition applies to those “claims” that Carrón might make. Brentwood’s subjective belief concerning the likelihood of Carrón filing a lawsuit is irrelevant under the plain language of the condition precedent. As other courts have noted, this language instructs the court to first look at the insured’s subjective knowledge “and then the objective understanding of a reasonable attorney with that knowledge.” Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 306 (3rd Cir.2001) (emphasis added); see also Wittner, Poger, Rosenblum & Spewak, P.C. v. Bar Plan Mutual Ins. Co., 969 S.W.2d 749, 754 (Mo.1998) (en banc) (<HOLDING>). Brentwood also argues that the exclusion | [
"holding this statute did not bar insurers denial of coverage for legal malpractice claim because the insured prior to inception date of policy had reason to believe that an act or omission might reasonably be expected to be the basis of a claim",
"holding that reinsurer could be directly liable to an insured where the reinsurance agent was the ultimate consistent reimburser of losses of the insured and this status was conveyed to the insured",
"holding that the policy language expected or intended by an insured person is unambiguous and requires a subjective intent on behalf of the insured",
"holding that regardless of the subjective belief of the insured the record established a basis to believe that the insured had committed an act that could give rise to a claim under the policy",
"holding that where the insurer retains an attorney to represent the insured pursuant to an insurance policy the attorney acts in the capacity of an independent contractor for the insured"
] | 33
|
environment claim because Roddy had not demonstrated an instance of harassment or abusive conduct within the five-year statute of limitations applicable to Roddy’s claim under 42 U.S.C. § 1981. See Drake v. Southwestern Bell Tel. Co., 553 F.2d 1185, 1188 (8th Cir.1977) (applying Missouri five-year statute of limitations to a cause of action under § 1981). According to the trial court, the last act of harassment directed at Roddy was the kicking incident in April 1991, and the statute of limitations ran back only to March 1992. Although Roddy agrees that conduct prior to March 1992 is not actionable, Roddy contends that the record as a whole shows the existence of a pattern of harassment more recently than March 1992. See Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir.1999) (<HOLDING>). However, even assuming that Roddy suffered | [
"holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive",
"recognizing a hostile work environment claim under section 1983",
"holding that consideration of the entire scope of a hostile work environment claim including behavior alleged outside the statutory time period is permissible for the purposes of assessing liability so long as any act contributing to that hostile environment takes place within the statutory time period",
"holding that a plaintiff alleging a hostile work environment claim under title vii may seek damages for all behavior contributing to a hostile work environment claim including behavior allegedly occurring outside the limitations period provided that an act contributing to the claim occurs within the filing period",
"holding a hostile work environment claim viable when the cumulative effects of a prolonged pattern of harassment extended into the limitations period"
] | 44
|
abandoned their common law fraud claim, they continue to pursue all of their other claims for compensatory damages, treble damages (a remedy akin to the punitive damage claim plaintiffs elected to forego when they abandoned their fraud claim), attorneys’ fees and costs, and a judgment enjoining defendants from continuing their allegedly unlawful combination or conspiracy. This is not a case where the class representatives are pursuing relatively insignificant claims while jeopardizing the ability of class members to pursue far more substantial, meaningful claims. Rather, here the named plaintiffs simply decided to pursue certain claims while abandoning a fraud claim that probably was not certifiable. See, e.g., Gunnells v. Healthplan Servcs., Inc., 348 F.3d 417, 434 (4th Cir.2003) (<HOLDING>); Sandwich Chef of Tex., Inc. v. Reliance Nat’l | [
"holding that a district court did not commit reversible error because it attached great weight to one factor",
"holding that a reviewing court must first ensure that the district court committed no significant procedural error",
"holding that trial court committed reversible error in not instructing jury to determine credibility of incriminating statements attributed to defendant by state trooper",
"holding the district court committed reversible error by certifying a class with respect to fraud claim",
"holding that failure to review the evidence presented to the magistrate and failure even to have a transcript filed with the district court was reversible error"
] | 33
|
544(b), however, puts the trustee in the creditor’s shoes, and allows him to assert claims that only they could assert outside bankruptcy. The claims inherited from the creditors are not arbitrable for the reasons explained in Allegaert Id. at 206-07 (citations omitted). Allegaert, Hays and Hagerstown all involved fraudulent transfer claims. Specifically addressing the arbitrability of preferential transfer claims brought under section 547 of the Bankruptcy Code, the court in OHC Liquidation, 2005 WL 670310, at *4, ruled that it was “entirely appropriate” to equate preferential transfers with fraudulent transfers as core proceedings belonging to the trustee and not derivative of the debtor. See also Pardo v. Pacificare of Tex., Inc. (In re APF Co.), 264 B.R. 344, 363 (Bankr.D.Del.2001) (<HOLDING>). The Hays court’s reasoning that “there is no | [
"holding that a settlement agreement is an arbitrable subject when the underlying dispute is arbitrable",
"holding that claims brought under section 10b of the securities exchange act and rico claims were arbitrable",
"holding that preferential transfer claims brought under section 547 are not arbitrable",
"holding that unfair competition claims are arbitrable",
"holding that claims under the securities act of 1933 are arbitrable"
] | 22
|
stressed that an employer can be vicariously liable for conduct of an employee that was (1) done in furtherance of the employer’s business or at least partly motivated by an intention to serve the employer; (2) of the kind that the employee was employed to perform; (8) substantially within the authorized “time and space” limits of the employment; or (4) expectable in view of the employee’s duties. Booker v. GTE.net LLC, 350 F.3d 515, 518-19 (6th Cir.2003) (applying Kentucky law). As an initial matter, I note that RWT is not necessarily relieved of vicarious liability for malicious prosecution solely because it is an intentional tort. There are numerous decisions finding employers vicariously liable for the intentional torts of their employees. See, e.g., Patterson, 172 S.W.3d at 363 (<HOLDING>); Frederick v. Collins, 378 S.W.2d 617 | [
"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",
"holding a store vicariously liable for wrongful death when its employee shot and killed a customer",
"holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability",
"holding that the doctrine of respondeat superior in maryland allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship citations omitted",
"holding that auctioneer who handled sale of car between seller and buyer could not be held liable for allegedly defective condition of car"
] | 00
|
supreme court. That court should decide if the subsequent case law in this area would cause a re-evaluation of the conclusion reached in 1985. See Valerio v. Bayer, Case No. 98-99033 [2000 WL 425016] (9th Cir. April 19, 2000) (a Nevada case in which the court upheld the Nevada Supreme Court’s ability to limit the unconstitutional depravity instruction and affirm the sentence). Moreover, since this court has already upheld an aggravating factor, it is not necessary for it to reach the ultimate conclusion on this issue. The court notes, however, that all of the evidence related to torture and Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991) (same); see also McKenna v. McDaniel, 65 F.3d 1483, 1487-90 (9th Cir. 1995) (<HOLDING>). The Nevada Supreme Court’s holding, on | [
"holding that an aggravating circumstance in the georgia death penalty statute was unconstitutionally vague",
"holding factor b is not unconstitutionally vague",
"holding that oklahomas especially heinous atrocious or cruel aggravating circumstance was unconstitutionally vague",
"holding a similar nevada aggravating circumstance unconstitutionally vague under godfrey",
"holding unconstitutionally vague under the reasoning of godfrey an aggravatingcircumstances instruction directing jurors to determine whether the murder was especially heinous atrocious and cruel"
] | 33
|
The West court fundamentally altered products liability law in Florida by creating a new products liability tort action — strict liability in tort — out of the prior breach of implied warranty cases which had done away with privity of contract. In so doing, West necessarily swept away such no-privity, breach of implied warranty cases in favor of the new action of strict liability in tort. Stated differently, the doctrine of strict liability in tort supplants all no-privity, breach of implied warranty cases, because it was, in effect, created out of these cases. This ground-breaking holding, however, did not result in the demise of the contract action of breach of implied warranty, as that action remains, said the West court, where privity of contract is shown. Id. at 692 (<HOLDING>). The Florida Supreme Court later affirmatively | [
"holding breach of contract claim not preempted as a straightforward breach of contract action as it alleged violation of specific covenant",
"holding that a cause of action for breach of contract accrues at the time of the breach",
"holding that breach of good faith and fair dealing claim requires showing of breach of contract",
"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 breach of implied warranty action exists solely as a contract remedy which of necessity requires a privity of contract showing as an essential element of the action"
] | 44
|
assembly is not a motor vehicle under Chapter 601. Applying the common usage of the term and the definition in Chapter 601, we conclude that physical contact with a detached axle and tandem wheels is not actual physical contact with a motor vehicle under the unidentified motor vehicle provision. Elchehimi also argues that this collision involved a legally recognized substitute for the statute’s actual physical contact requirement. In Latham v. Mountain States Mutua of contact with parts of the vehicle itself, rather than simply cargo, has concluded that such contact is also not enough to satisfy this strict requirement. See Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 WL 21391534, at *1, 2003 Tex.App. LEXIS 5056, at *6-8 (Tex.App.-San Antonio June 18, 2003, pet. denied) (<HOLDING>). We agree that a collision with a separated | [
"holding that collision between the claimants vehicle and a steel pipe dropped from an exiting truck was not actual physical contact with a motor vehicle",
"holding that collision between loading ramp that detached from trailer and insureds vehicle was not actual physical contact with a motor vehicle",
"holding that water pump falling from truck and striking insured was not actual physical contact with a motor vehicle",
"holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle ",
"holding that the physical contact needed to support a direct claim against an uninsured motorist carrier pursuant to nc gen stat 2027921 existed where the physical contact arose between the hitandrun vehicle and plaintiffs vehicle through intermediate vehicles involved in an unbroken chain collision which involved the hitandrun vehicle"
] | 11
|
was error not to have allowed it. Judgment of the Court of Special Appeals reversed, and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Montgomery County and remand the case for a new trial. Costs to be paid by Montgomery County. 1 . With respect to a few offenses, the Legislature has resolved the matter by statute. See Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 616. 2 . The Turberville court found it proper for a defense counsel in that case to argue in his closing presentation, that one of the several defendants should be convicted of a lesser offense than that charged. Turberville, supra at 404, 303 F.2d at 411. Compare Roberts, supra, and Turberville with People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973) (<HOLDING>). Rodowsky, J., concurring in part and | [
"holding that prior convictions relevant only to the sentencing of an offender found guilty of the charged crime do not need to be charged in an indictment or proven to a jury beyond a reasonable doubt",
"holding but offering no authority for the position that the defense counsel could neither argue nor receive an instruction distinguishing the crime charged from a lesserunincluded offense not charged",
"holding that admission of prior crime similar to the one charged increases likelihood that jury will convict based on past pattern of behavior rather than on facts of charged offense",
"holding that fedrevid 404b does not restrict evidence of crimes that arose out of the same series of transactions as the charged offense or that are necessary to complete the story of the charged crime",
"holding it is fundamental error to convict a defendant of crime not charged and which is not a lesser included offense of the charged crime"
] | 11
|
Clause of the United States and Texas Constitutions. The State counters that Sony failed to preserve this issue for appeal because Sony did not assert in the trial court that the statute was facially void or void as applied to him. When challenging the constitutionality of a statute for vagueness, there are two types of challenges: (1) an “as applied” challenge, involving whether a statute is unconstitutional as applied to a defendant’s particular conduct, and (2) a “facial” challenge, involving whether a statute is unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex.App.-Texarkana 2003, no pet.). Texas law is clear that an “as applied” challenge cannot be raised for the first time on appeal. See, e.g., Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995) (<HOLDING>); Garcia v. State, 887 S.W.2d 846, 861 | [
"holding appellant waived his challenge to statute as vague as applied because he did not specifically object at trial",
"holding that defendant must object at trial to preserve as applied challenge for appeal",
"holding that appellant forfeited his complaint regarding his sentence because he did not object at trial",
"holding that appellant by failing to object to commissioners authority before or at the administrative hearing waived any challenge",
"holding that appellant forfeited his complaint regarding his postadjudication sentence because he did not object at trial or present his motion for new trial"
] | 00
|
a reasonable worker from whistleblowing. And while Defendants muster a couple of easily distinguishable cases to support their argument to the contrary, none of those mandates a holding that reassignments that increase commute time and costs and decrease pay are insufficient, as a matter of law, to support a retaliation claim. We hold that Smith has successfully pled retaliation under Section 3730(h). The district court thus erred when it granted Defendants’ motion to dismiss that claim. V. In sum, we hold that the district court erred when it dismissed Counts I, II, and IV of Smith’s complaint with prejudice. In light of this holding, the district court’s award of costs to Defendants is also improper. Cf. Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 706 (4th Cir.1993) (<HOLDING>); Fed.R.Civ.P. 54 (“Unless a fed eral statute, | [
"holding that dismissal of a pro se complaint for failure to state a claim should generally be without prejudice but if the plaintiff has been given an opportunity amend his complaint and fails to do so the dismissal may be with prejudice",
"holding that the parties stipulation of dismissal with prejudice was a final judgment",
"holding that the district court had discretion where plaintiff sought to amend a count that had been dismissed with prejudice",
"holding that defendant was a prevailing party eligible to receive costs where there had been a dismissal with prejudice",
"holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice"
] | 33
|
motion.”). 4 . United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quotation marks, citation, and emphasis omitted) 5 . United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (quotation marks omitted and alterations adopted). 6 . Id. (quotation marks omitted). 7 . Delgado, 672 F.3d at 332; see also United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) ("The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.”) (quotation marks omitted). 8 . Bowen, 818 F.3d at 188. 9 . United States v. Parada-Talamantes, 32 F.3d 168, 169-70 (5th Cir. 1994); see also United States v. McCall, 553 F.3d 821, 825-27 (5th Cir. 2008) (finding that the prosecution had introduce Cir. 1995) (per curiam) (table) (<HOLDING>). Because Covarrubia was issued before January | [
"holding that although portion of trial courts jury charge was inapplicable any error in providing it was harmless in light of the fact that charge considered as a whole was not likely to confuse or mislead the jury",
"holding that admission of hearsay constituted harmless error when there was more than sufficient other evidence in the record to support the verdict",
"holding that improper use of a summary chart was harmless because the evidence was merely cumulative and there was overwhelming evidence of the charged crime",
"holding that although the instruction at issue could have been worded more specifically the jury instructions as a whole did not mislead the jury as to the law",
"holding that admission of a summary chart was harmless because it was clear that the summary did not mislead the jury and the evidence introduced at trial was more than sufficient to prove the elements as to each defendant"
] | 44
|
and received interline shipments to and from Texas and sent sales people to Texas to develop business, negotiate contracts and service national accounts: Wilson v. Belin, 20 F.3d 644, 651 (5th Cir. 1994)("Even if [the defendant's] contacts with Texas via his short-lived malpractice insurance arrangement through a Texas law firm and his multi-year pro bono association with the historical society were arguably continuous, we hold that they were not substantial enough to warrant the imposition of general personal jurisdiction over him.”); Access Telecom, 197 F.3d at 717 (in order to confer general jurisdiction it is not sufficient that a corporation do business in Texas; it must have a business presence in Texas); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 218 (5th Cir. 2000)(<HOLDING>). Johnston, 523 F.3d at 610-12 (concluding that | [
"holding there was no general jurisdiction when there was no evidence that defendants advertised or promoted their goods or services in texas solicited business in texas sold their goods or services to a texas entity established a general business office or general business presence in texas or targeted texas markets",
"holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law not arizona law should be applied",
"holding sending two employees to work in texas and using an office in texas for limited purposes did not support finding of general jurisdiction",
"holding that general jurisdiction did not exist where the defendant occasionally sold products to entities in texas that used the defendants products for projects in texas and the defendants employees made field visits to texas between december 1992 and december 1993",
"holding that isolated trips to texas more than 1500000 in purchases from texas vendors and two contracts with texas entities were not substantial enough to support general jurisdiction"
] | 33
|
859 So.2d 553 (Fla. 1st DCA 2003). Because appellant in the instant case entered a non-bargained for, “straight up” plea, without expressly waiving his right to a later appeal premised on a double jeopardy issue, his plea did not amount to a waiver. See Novaton, 634 So.2d at 609; see also Williamson, 859 So.2d at 554-55. Concerning the issue of double jeopardy, settled precedent establishes that an appellant may not be charged with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search. § 775.021(4), Fla. Stat. (2005); Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982), abrogated on other grounds by Gibbs v. State, 676 So.2d 1001, 1002 (Fla. 4th DCA 1996) (<HOLDING>); Lundy v. State, 596 So.2d 1167, 1168 (Fla. | [
"holding that jurys failure to find the defendant guilty of possession of marijuana could not be reconciled with a verdict of guilty of possession of marijuana with intent to purchase",
"holding that possession of marijuana is not protected by the free exercise clause of the first amendment",
"holding that the arresting officer lacked probable cause to arrest defendant a rear seat passenger of a car for possession of marijuana based on the discovery of two marijuana seeds in the front of the vehicle",
"holding that a defendants conviction for two possession of marijuana counts could not be supported by his possession of two marijuana cigarettes dropped from his hand and again for his possession of several packets of marijuana found in a nearby jacket during the same search",
"holding that officers had objective probable cause to search the pocket of a jacket found on the seat of the defendants truck where the discovery of marijuana in two different locations in the truck combined with the defendants possession of marijuana reasonably led officers to believe that other caches would be found elsewhere in the vehicle"
] | 33
|
Guidelines Manual § 4B 1.2(a) (2004). Other sections have yet another definition. See, e.g., Sentencing Guidelines Manual § 2L1.2 Cmt., Application Note l(B)(iii) (2004). 7 .The difference is that, in the definition of "crinie of violence,” the use of force can be against another’s property; on the other hand, in the ACCA, property is not mentioned. Compare 18 U.S.C. § 16(a) with id. § 924(e)(l)(B)(i). 8 . In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), the Seventh Circuit provided an additional reason for this conclusion. Examining the term "crime of violence" in § 4B1.2 of the United States Sentencing Guidelines (which is almost identical to the ACCA), the court found that the first prong requires a specific intent. Id. at 372-374. It further reasoned that 5 (4th Cir.2001)(<HOLDING>). But see Sentencing Guidelines Manual § 4B1.4 | [
"holding that burglary is violent felony",
"holding that the definition of a violent felony is nearly identical to the definitions of a crime of violence used in the guidelines",
"holding that our reasoning regarding the meaning of violent felony is relevant to determining the meaning of crime of violence because the definitions are almost identical",
"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 sexual abuse of a minor is a violent crime within the meaning of the sentencing guidelines and noting that definitions of crime of violence in 18 usc 16 and ussg 4b12 differ slightly finding reyescastro to be persuasive in its 4b12 analysis"
] | 22
|
she was required to stand “at some points” but “not all day” while substitute teaching. (Id. at 15). In sum, the evidence of record demonstrates that Plaintiff may have a diminished tolerance for a normal daily activity, but the record does not demonstrate that Plaintiffs condition substantially limits her major life activity of standing. See Chanda, 234 F.3d at 1222. The Court now turns to the question of whether Plaintiffs congenital heart disease substantially limits her major life activity of lifting. In her first deposition, Plaintiff testified that she has been restricted from lifting items weighing more than thirty pounds. (First Reis Depo. at 17). Plaintiff is able to engage in basic personal activities. She can bathe herself, prepare her own , 101 F.3d 346, 349 (4th Cir.1996) (<HOLDING>); Aucutt v. Six Flags Over Mid-Am., Inc., 85 | [
"holding that a lifting restriction did not substantially limit a computer technicians ability to engage in the major life activity of working",
"holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity",
"holding that a twentyfive pounds lifting restriction did not substantially limit any major life activities",
"holding that a permanent lifting restriction of no more than twentyfive pounds on a continuous basis is not substantially limiting",
"holding as a matter of law that a permanent twentyfive pound lifting restriction does not constitute a significant restriction on ones ability to lift work or perform any other major life activity"
] | 44
|
S.Ct. 695, 172 L.Ed.2d 496 (2009);Hudson v. Michigan, 547 U.S. 586, 594-99, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Here, that task is simple. The deterrence benefit of suppressing the evidence will “ensure that an occupant’s right to privacy [in his home] is protected, and that his ... dignity [will be] preserved.” See United States v. Thompson, 667 F.Supp.2d 758, 768 (S.D. Ohio 2009). These twin concerns will grow more important, not less, as immigration plays an increasingly central and vitriolic role in our public discourse. The Court, therefore, finds great deterrence benefit in ensuring that law-enforcement officers know the bounds of their authority under the Fourth Amendment and federal immigration law. See United States v. Toledo, 615 F.Supp.2d 453, 464 n.5 (S.D.W. Va. 2009) (<HOLDING>). Suppressing the tainted evidence in this case | [
"recognizing due consideration to be given attorney general decisions especially in cases involving tpia",
"holding that deterrence benefits are clear in criminal cases involving immigration law given congressionally mandated restrictions on lawenforcement power",
"recognizing that generally pennsylvania applies decisions involving changes in the law in civil cases retrospectively le to cases pending on appeal",
"holding that although wade hearing may be constitutionally mandated under certain circumstances it is not mandated in all cases",
"holding that the clear and convincing standard provides appropriate due process in cases involving parental rights"
] | 11
|
injury, were the result of the December fall, an occurrence which is not a subject of the claims before us. As to the hip, Dr. Paff attributed one-third of her disability to the preexisting condition, one-third to the June, 1992 fall, and one-third to the December fall. Dr. Hufft testified that Claimant had no shoulder or sacroiliac joint injuries, and that her knee problem was caused by the problem in her hip. He concluded that the condition of Claimant’s hip was not caused by the falls, and that she sustained no permanent partial disability as a result of them. Claimant argues that the aggravation of a preexisting condition may result in a compen-sable condition. We do not dispute the validity of this general premise. See Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App. E.D.1994) (<HOLDING>). While Claimant presented the testimony of Dr. | [
"holding on rehearing that exclusion for disabilities caused by a preexisting medical condition would not support denial of benefits caused by staph infection resulting from surgery for a preexisting condition",
"holding that treatment for symptoms of undiagnosed multiple sclerosis activated the preexisting condition exclusion and stating that there is no requirement that a diagnosis definite or otherwise of the preexisting condition must be made during the preexisting condition period",
"holding that the preexisting duty exception does not apply where the preexisting duty is a limited one and the alleged negligence is the failure to provide a level of assistance beyond that required by the preexisting duty",
"holding that receiving advice or treatment during the exclusionary period for a condition which proves to be the same condition the claimant seeks benefits for qualifies as a preexisting condition regardless of whether there was an accurate diagnosis",
"holding that a preexisting but nondisabling condition does not bar recovery of compensation if a jobrelated injury causes the condition to escalate to the level of disability"
] | 44
|
or commentary which restricts application of § 3C1.1 only to situations in which the defendant directly threatens a witness or communicates the threat to a third party with the likelihood that it will in turn be communicated to the witness.”); United States v. Bradford, 277 F.3d 1311, 1314-15 (11th Cir.2002) (expressly rejecting the holding in Brooks and concluding that communicating a threat directly to a witness is not required to support application of the obstruction-of-justice enhancement); United States v. Jackson, 974 F.2d 104, 106 (9th Cir.1992) (“Where a defendant’s statements can be reasonably construed as a threat, even if they are not made directly to the threatened person, the defendant has obstructed justice.”); United States v. Capps, 952 F.2d 1026, 1028 (8th Cir.1991) (<HOLDING>); United States v. Shoulberg, 895 F.2d 882, | [
"recognizing that it is not essential for there to be a direct threat of litigation in order to invoke the declaratory judgment act",
"holding that because 3c11 applies to attempts to obstruct justice it is not essential that the threat be communicated to the target",
"holding that to be actionable the words must be communicated or published to someone other than the plaintiff",
"holding that the question of recusal of a supreme court justice is to be left to the individual justice",
"holding that it is not"
] | 11
|
by an attorney in the family court, as were these parties) who is dissatisfied with the outcome of a child custody battle knows that there is very little likelihood that a family court will change its decision when reminded of its obligation to make specific findings, and few will pursue that route if not required to do so before seeking appellate review. Instead, this opinion permits a litigant who loses in the trial court to simply appeal and try to secure a more favorable outcome before a different judge when the child custody determination is inevitably vacated and the case remanded. At a time when the Arizona Supreme Court has recently limited the use of this type of litigation tactic in criminal cases, see State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (<HOLDING>), we should not expand its use in civil cases. | [
"holding that a defendant who fails to object to trial error forfeits his right to appellate review unless he can establish fundamental error",
"holding that defendant forfeits right to have issue considered on appeal when he fails to object to misconduct at trial",
"holding that where a defendant fails to challenge his plea in district court he must establish plain error",
"holding that a defendant who fails to object to an error at a plea colloquy hearing must satisfy the plain error rule",
"holding that absent fundamental error one who fails to appeal when placed on probation waives his right to review"
] | 00
|
174 P.3d 706 (2008), the Washington Court of Appeals considered whether the forensic search of a computer which extended beyond ten days was unconstitutional. The officers obtained a search warrant on March 5 to search Grenning’s residence for his computer. On March 6 the officers entered Gren-ning’s residence and seized his computer. The officers conducted continuing forensic examinations of the computer for more than ten days after the date the search warrant had been issued. The court noted that, because computer searches usually occur at different locations than where the computer is seized and involve more preparation and expertise than an ordinary search, delays in the forensic examination of computers are expected and reasonable. Id., at 713-14. The court he 481 (D.P.R.2002) (<HOLDING>); Commonwealth v. Kaupp, 453 Mass. 102, 899 | [
"holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises",
"holding anticipatory warrant for search of defendants home was invalid because facts made known to magistrate did not establish at time warrant was issued the required nexus between the contraband to be seized which was mailed to defendants post office box and defendants home",
"holding the search of a computer after the warrant had expired constitutional because despite the delay probable cause for the search continued to exist",
"holding that if police conduct unconstitutional searches that acquire information used to obtain a search warrant then evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree",
"holding the search of defendants home took place within the time designated in the warrant and later examination of computer disks seized did not make the search unconstitutional"
] | 44
|
risk of equine activities, as defined in § 6 — 5—337(b)(6). Estes does not dispute that the horse became startled, and he did not argue before the trial court that Croxton’s failure to assess A.G.E.’s riding ability was a cause of the accident. Estes’s contention is that the defendants are not entitled to immunity under the Equine Act because the defendants “made no attempt to assess what type of rider the minor child was, let alone whether she should have even been on the horse in the first place. Without the defendants fulfilling their obligations, i.e., inquiring to a rider’s ability and handling the horse in accordance with such abilities, the defendants are not entitled to the protection of the Act. See Willeck ex tel. Willeck v. Mrotek, Inc., 616 N.W.2d 526 (Wis.App.2000) (<HOLDING>).” In support of this argument, Estes cites | [
"holding the act inapplicable to the united states in its role as employer",
"holding equine activities liability act immunity inapplicable because the sponsor did not find out riders actual ability before matching horse with rider",
"recognizing that under texas law governmental immunity embraces two principles immunity from liability and immunity from suit",
"holding immunity from liability is not jurisdictional",
"holding that the tucker act does not waive the governments sovereign immunity for federal reserve activities"
] | 11
|
the shooting which resulted in Mendez’s death. {32} Defendant is liable for the crime of first-degree depraved-mind murder whether or not he fired the fatal shot. It appears that in this case the jury rejected Defendant’s version of the incident, and we will not substitute our judgment for that of the jury. We hold that sufficient evidence exists, to affirm Defendant’s conviction of first-degree depraved-mind murder on either a principal or accessory liability theory. V. {33} Defendant was charged and convicted of conspiracy to commit a first-degree depraved-mind murder. The State concedes that this conviction must be vacated because this Court has explicitly held that this is not a cognizable crime in New Mexico. We agree. See Baca, 1997-NMSC-059, ¶ 51, 124 N.M. 333, 950 P.2d 776 (<HOLDING>); cf. State v. Varela, 1999-NMSC-045, ¶ 42, 128 | [
"holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder",
"holding that a conviction for conspiracy to commit firstdegree depravedmind murder could not stand under current case law because conspiracy requires both intent to agree and intent to commit the offense which is the object of the conspiracy and depravedmind murder is an unintentional killing resulting from highly reckless behavior",
"holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill",
"holding that an individual cannot attempt to commit murder of the second or third degree because the crime of attempt is a specific intent crime and an attempt to commit second or third degree murder would require proof that the individual intended to perpetrate an unintentional killing which is logically impossible",
"holding criminal conspiracy is sustained where the commonwealth establishes the defendant entered into an agreement to commit or aid in an unlawful act with another person with a shared criminal intent and an overt act was done in furtherance of the conspiracy a coconspirator may commit the overt act and conspirators are liable for acts of the coconspirators committed in furtherance of the conspiracy"
] | 11
|
has “expressly retained” submerged lands. Reinforcing this reading of the Act is the fact that the Act’s terms reach lands governed by the equal footing doctrine as well as lands beneath the territorial sea. Under the terms of the statute, equal footing lands, like those beneath the territorial sea, pass to a State unless the United States “expressly retained” them. In passing the Act, Congress would have legislated against the backdrop of our early equal footing cases. See Montana, 450 U. S., at 552, n. 2. There is no indication that, in formulating the “expressly retained” standard, Congress intended to upset settled doctrine and to impose on the Federal Government a more or less demanding standard than the one reflected in those cases, see, e. g., Holt State Bank, supra, at 55 (<HOLDING>), and carried forward in Montana and Utah Div. | [
"holding that where congressional intent is clear a court must give effect to such intent",
"holding that courts must generally give effect to the plain meaning of a statute because that is the best evidence of the legislatures intent",
"holding that intent of parties to choice of law must be given effect",
"holding that the title of legislation is relevant to legislative intent",
"holding that intent to defeat state title to submerged lands must be definitely declared or otherwise made very plain"
] | 44
|
of the action and afford them an opportunity to present their objections.” Greaves, 121 B.R. at 235 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Miller & Custom fail to note, however, that the 4 (9th Cir. BAP 1994), aff'd, 56 F.3d 70 (9th Cir.1995). “When it is found that there has been defective service of process, the judgment is void: ‘A person is not bound by a judgment in litigation to which rica, AFL-CIO, 491 F.2d 245, 249 (4th Cir.1974) (“It is axiomatic that a federal court cannot acquire in personam jurisdiction over a defendant who does not voluntarily appear unless he is served with process in a manner authorized by federal statute or rule.”); Mooney Aircraft, Inc. v. Donnelly, 402 F.2d 400, 406 (5th Cir.1968) (<HOLDING>). The only exception to this principle arises | [
"holding that service of a statecourt summons and complaint after removal to federal court is valid service",
"recognizing that a default judgment based on improper service is void",
"recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act",
"holding such service satisfies due process",
"holding that absent valid service of process proceedings are void from the outset"
] | 44
|
part of the legislative process; and (2) whether the actions were legislative “in substance” and “bore newing their motion with respect to the applicability of the doctrine of legislative immunity after sufficient discovery and development of the record. II. Contracts Clause Defendants move to dismiss Plaintiffs’ federal claims for impairment of contract. Article I, Section 10 of the U.S. Constitution prohibits states from passing any law “impairing the Obligation of Contracts.” While the language of the Contracts Clause is absolute on its face, “[i]t does not trump the police power of a state to protect the general welfare of its citizens, a power which is ‘paramount to any rights under contracts between individuals.’ ” Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 367 (2d Cir.2006) (<HOLDING>) (quoting Allied Structural Steel Co. v. | [
"recognizing inherent power of courts of appeals",
"recognizing the inherent power of the court to coerce compliance with its orders",
"holding that the inherent power of the district court includes the power to santion attorneys for violations of court orders or other conduct which interferes with the courts power to manage its calendar and the courtroom ",
"recognizing the inherent power of the courts to issue warrants",
"holding that courts must accommodate the contracts clause with the inherent police power of the state to safeguard the vital interests of its people"
] | 44
|
judg ment.” Parker v. Conway, 581 F.3d 198, 201 (3d Cir.2009). In addition, the Supreme Court has stated that when a plaintiff recovers only nominal damages because he has failed to prove actual, compensable injury, “the only reasonable fee is usually no fee at all.” Farrar, 506 U.S. at 115, 113 S.Ct. 566. Section 1997e(d)(2) of the PLRA has been consistently interpreted by our Court and others to cap attorney’s fee awards in prisoner litigation to 150 percent of the judgment, which, in this case, would be $1.50. While we have not previously faced a challenge to this fee cap in the context of a nominal damages case, we have elsewhere considered whether it violates equal protection and, in that context, have confirmed that § 1997e(d)(2) imposes such a cap. See Parker, 581 F.3d at 204 (<HOLDING>). See also Collins v. Montgomery Cty. Bd. of | [
"holding that the cap does not violate equal protection",
"holding missouri transfer rule did not violate equal protection",
"holding transfer rule did not violate federal equal protection",
"holding that doctrine does not violate equal protection",
"holding that the admission of his juvenile conviction did not violate equal protection"
] | 00
|
Ciba. As a result, its employees’ positions were essentially unaltered because they performed the same work under the same conditions for almost all of the same supervisors. Therefore, there was substantial continuity between the Brown & Root and Brown-Eagle operations. Second, but for its discriminatory hiring practices, as found by the NLRB based on substantial evidence, Brown-Eagle applicants would have constituted a majority of the Brown & Root workforce in this department, which would have satisfied the second prong of the successorship doctrine. Because it cannot benefit from its unlawful practices, we must uphold the NLRB’s finding that Brown & Root was a successor employer and had a duty to bargain with the Union. In re Galloway, 321 NLRB 1422, 1425, 1996 WL 514510 (1996) (<HOLDING>). In addition, because of its discriminatory | [
"recognizing that when an entity exercises sufficient control over employees it may be considered a joint employer",
"holding that a section 8a3 violation is sufficient to find that the new employer would have employed a sufficient number of predecessor employees to be a successor employer had it acted lawfully",
"recognizing that an employer is liable for an employees action if the employer knew or should have known about an employees acts of harassment and fails to take appropriate remedial action",
"holding that existence of deliberate and informed consent turns on whether it is understood between the employee and his employers that he is to remain in the allegiance of the first employer or is to be employed in the business and subject to the direction of the temporary employer",
"holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation"
] | 11
|
any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. 15 U.S.C. § 1692f. In Ohio, there is no right to recover court costs or statutory interest except for when a court enters a lawful judgment in an action validly commenced under law. See Ohio Rev.Code § 2335.19. Any debt collector’s attempt to recover court costs in the absence of a valid judgment constitutes a violation of 15 U.S.C. § 1692f. See Shula v. Lawent, 359 F.3d 489, 491 (7th Cir. 2004); Veach v. Sheeks, 316 F.3d 690, 692 (7th Cir.2003) (<HOLDING>); Duffy v. Landberg, 215 F.3d 871, 873-74 (8th | [
"holding that college violated stay by not delivering transcript to chapter 7 debtor when debt had not yet been determined dischargeable",
"holding that an entity engaged in collection activity on a defaulted debt acquired from another is a debt collector under the fdcpa even though it may actually be owed the debt",
"holding that the name under which a debt collector is licensed to do business is the debt collectors true name for purposes of the fdcpa",
"holding that rawlings a codefendant in the present action is not a debt collector within the meaning of the fdcpa",
"holding that debt collector violated fdcpa when it held debtor liable for court costs that had not yet been awarded"
] | 44
|
temporary, lasting only from May 4, 1995 to August 10, 1995. Defendant reasons that even if the plaintiff suffered from bipolar disorder, that disorder could not substantially interfere with a major life activity because it lasted only four months. Plaintiff has a well-documented history of bipolar disorder since 1989. (Pl.’s Stmt. Ex. 2.) Defendant’s view of plaintiffs disability ignores the teaching of Sutton, where the Supreme Court acknowledged that medication may partially, but not wholly, relieve an impairment that substantially limits a major life activity, and expressly rejected the notion that partial amelioration of a disabling condition renders the individual ineligible for protection under the ADA. Sutton, 527 U.S. at 488, 119 S.Ct. 2139; accord Vande Zande, 44 F.3d at 544 (<HOLDING>). In addition, contrary to the defendant’s | [
"holding that a proceeding on a writ of error coram nobis is part of the underlying criminal matter",
"holding that periodic alimony is not mandatory",
"holding evidence of a 13 permanent partial disability insufficient to establish disability for purposes of ada",
"holding that the periodic characteristic disabling manifestation is part of the underlying recognized disability",
"recognizing the importance of the employers knowledge of the disability"
] | 33
|
Used Auto Parts, the Supreme Court of Virginia held that an employee, who had chosen a suit at law for recovery under the statute, but had been unsuccessful in that suit, was not barred from seeking compensation through a traditional workers’ compensation claim under the statute. Id. at 102-03, 181 S.E.2d at 613-14. Similarly, the Supreme Court of Virginia decided in Delp v. Berry that an employee who has been unsuccessful in collecting an award through a workers’ compensation claim is not barred from resorting to a civil action to recover damages from the employer. 213 Va. 786, 789, 195 S.E.2d 877, 879 (1973). However, if the employee obtains a full recovery under one of the two avenues of relief afforded in Code § 65.2-805, they are not entitled to pursue the other avenue. See id. (<HOLDING>). In its analysis, the Virginia Used Auto Parts | [
"holding that an injured employee is only entitled to one full recovery but where an employee does not receive the full satisfaction of payment for their injury they may pursue the other avenue",
"holding that the full payment rule literally requires full not partial payment and rejecting the argument that a partpayment remedy is necessary when a taxpayer is too poor to pay the full amount of the tax",
"holding that when an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct the employee may pursue a civil action against his employer and also pursue benefits under the workers compensation act",
"holding that any constitutionally protected property interest an employee has as a result of his employment contract is satisfied by payment of the full compensation due under the contract",
"holding that it is wellsettled that although a plaintiff is entitled to full recovery for its damages it is not entitled to a double recovery for the same loss or injury"
] | 00
|
22] Francis argues that she must have access to State court remedies because the PHA was the only defendant in her Tribal Court litigation and because a jury trial, attorney fees, punitive damages, and the capacity to seek relief pursuant to the Maine Civil Rights Act (MCRA) were not available to her in Tribal Court. If such were the case, any claim involving an internal tribal matter could be shifted to State court by the simple device of pleading an entitlement to a remedy not available in Tribal Court. [¶ 23] The important policies of the law to support tribal self-government over internal tribal matters limits claims involving such matters where, as here, some remedy and a forum to assert entitlement to the remedy is available within the Tribe. See Fellencer, 164 F.3d at 707, 713 (<HOLDING>); see also Akins, 130 F.3d at 485, 486 n. 5. | [
"holding that a federal district court lacked subject matter jurisdiction over a suit that effectively sought review of an indiana state courts decision",
"holding that federal and state courts have concurrent jurisdiction over 1983 claims",
"holding that the nations decision to terminate fellencers employment was an internal tribal matter within the meaning of section 62061 over which state courts lacked jurisdiction notwithstanding the fact that its decision foreclosed fellencers ability to pursue a claim under the maine human rights act over which like mcra claims maine superior courts have exclusive jurisdiction",
"holding that district courts do not have appellate jurisdiction over state courts",
"holding that federal courts have exclusive jurisdiction over securities act class actions"
] | 22
|
harassment); Hensler v. O’Sullivan Corp., VLW 095-3-290 (W.D.Va.1995) (Crigler, Mag. J.) (same); Christine Wright, Constructive Discharge Supports Bowman Suit, Virginia Lawyers Weekly, Nov. 20, 1995, at *1. In contrast, a Virginia Circuit Court for the City of Virginia Beach recently concluded: “Even if the Plaintiff could present facts which establish a case of constructive discharge, no Virginia court has extended the tort of wrongful discharge in violation of public policy to include such a scenario.” Jones v. Professional Hospitality Resources, Inc., 35 Va.Cir. 458, 460 (1995). In addition, at least two federal courts have reached conclusions which are consistent with Jones. See Hairston v. Multi-Channel TV Cable Co., No. 95-2363, 1996 WL 119916, at *3 (4th Cir. March 19, 1996) (<HOLDING>). The Court concludes as a matter of law that a | [
"holding that an employee could maintain a claim for constructive discharge in violation of virginias public policy exception to the employment atwill doctrine",
"holding that a district court correctly dismissed a constructive discharge claim under virginia law because that cause of action had not been recognized by virginias courts",
"holding subject matter jurisdiction divested because federal cause of action had been dismissed without prejudice",
"recognizing that a constructive discharge claim and a hostile work environment claim are not equivalent because a constructive discharge claim imposes a higher standard",
"recognizing cause of action for wrongful discharge"
] | 11
|
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. Tex.R. Civ. P. 39(a); g that it was error for the trial court not to join non-party lessors who had a financial interest in the leases and pooling agreement); Longoria, 255 S.W.3d at 183 (<HOLDING>); Tex. Oil & Gas Corp. v. Ostrom, 638 S.W.2d | [
"holding trial court has discretion to require joinder of royalty interest owners whose interests will be directly and possibly adversely affected by decree in trespass to try title action",
"holding trial court did not abuse its discretion in finding violation was willful and substantial",
"holding that the trial court did not err in denying a plea in abatement to obtain joinder of other royalty owners in a pooled unit on grounds that the presence of the other royalty owners was not necessary to determine whether sabre pooled in bad faith and breached the terms of the lease",
"holding trial court did not abuse its discretion in failing to require joinder of owners of nonpossessory royalty interests and possibilities of reverter in partition suit between owners of mineral leasehold estate although it would be wise to join them",
"holding trial court did not abuse its discretion in finding that the energy company defendants lessors the owners of royalty interests in the property at issue and the owners of the mineral estate in unleased part of the 9200 acres should be joined as parties if feasible"
] | 44
|
reading [of the Act]_This remedial statute reaches beyond “claims” which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money. Id. at 232-33, 88 S.Ct. 959 (quotations and footnote omitted). Here, the Relator has alleged in Counts II, IV, and VI that Parke-Davis has caused the submission of numerous off-label prescription for Neurontin to the Medicaid program through both its fraudulent statements about the safety and efficacy of Neurontin and its system of unlawful financial incentives and kickbacks to doctors who prescribe Neurontin. Defendant does not dispute that an off-label prescription submitted for reimbursement by Medicaid is a false claim within the meaning of the FCA. Cf Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir.) (<HOLDING>), cert. denied sub nom. Peterson v. Mathews, | [
"holding that knowing submission of medicare claims for services that are not covered and payable under the medicare act is a violation of the fca",
"holding that county of delaware was not a person for purposes of fca liability",
"holding that the treating physician rule applies in a ease where a plaintiff sought reimbursement for air ambulance services under medicare part b",
"holding that because negligence and breach of fiduciary duty claims are covered by the martin act these claims must be dismissed",
"recognizing that information disclosed in private is not a public disclosure under the fca"
] | 00
|
contends that if we uphold the award of guardianship as a permanent plan, “then respondent’s compliance with OCDSS and court demands becomes irrelevant to whether or not reunification efforts would be futile.” Respondent-father counters that OCDSS’s argument is circular; we believe it is more properly characterized as backwards, probably because OCDSS has changed its position in this appeal from its position in the trial court. On appeal, OCDSS now supports the trial court’s decision to cease reunification efforts. At the hearing, OCDSS recommended that reunification efforts continue. In some instances, parties may be judicially estopped from taking inconsistent positions at different points in the same litigation. See In re Maynard, 116 N.C. App. 616, 621, 448 S.E.2d 871, 874 (1994) (<HOLDING>), disc. rev. denied, 339 N.C. 613, 454 S.E.2d | [
"holding that even though the declarant was not in danger she was experiencing an ongoing emergency because she did not know where her children were and she feared for their safety",
"holding birth mothers samesex partner was a presumed mother because she received the children into her home and openly held them out as her natural children",
"holding that dss was estopped to argue that the respondent mother was competent to surrender her children when dss had previously argued that she was so mentally ill that she could not care for her children",
"holding that the bia correctly imputed a parents knowledge that she and her children were not eligible for entry to the united states to her children",
"holding that the failure to attach a custody order was not reversible error because there was no showing of prejudice where there was no indication that the respondent was unaware of the placement or custody of the children at any time the motion to terminate stated that dss was given legal custody of the minor children and the record included a copy of an order in effect when the motion was filed that awarded dss custody of the children"
] | 22
|
Olaf Peter Juda, a federal prisoner, appeals pro se the district court’s judgment dismissing his Bivens action alleging due process and Eighth Amendment violations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). We affirm. The district court properly dismissed Juda’s action because he conceded in his First Amended Complaint that he failed to exhaust his administrative remedies. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Wyatt v. Terhune, 305 F.3d 1033, 1045-46 (9th Cir.2002) (<HOLDING>). To the extent Juda contends that he did | [
"holding that denial of remand was proper where plaintiff failed to raise the proper objection",
"holding that summary judgment as to one of plaintiffs claims was appropriate bjecause plaintiff concedes that he cannot establish an essential element of this claim",
"holding that a routine dismissal for failure to exhaust administrative remedies does not count as a strike under 1915g",
"holding that proper remedy for failure to exhaust is dismissal of the claim without prejudice",
"recognizing that dismissal may be proper where plaintiff concedes the failure to exhaust"
] | 44
|
in trade, not unfair practices in general. Apart from claims of unfair competition, a plaintiff must allege some sort of transaction between the parties for liability to attach under sections two and eleven. See Cash Energy, 768 F.Supp. at 894; see also Reisman v. KPMG Peat Marwick LLP, 965 F.Supp. 165, 175, n. 14 (D.Mass.1997) (noting that plaintiff and defendant must be engaged in business relationship for claim to lie under Chapter 93A § 11); John Boyd Co. v. Boston Gas Co., 775 F.Supp. 435, 440 (D.Mass.1991) (noting that Supreme Judicial Court “has stressed the existence of some contractual or business relationship between the parties as a precursor to liability under Chapter 93A”); Standard Register Co. v. Bolton-Emerson, Inc., 38 Mass.App.Ct. 545, 551, 649 N.E.2d 791 (1995) (<HOLDING>) This is the “common thread” of 93A cases. Cash | [
"holding that an individual debtor not engaged in business is eligible for chapter 11",
"holding that where there was no evidence of the claimed underlying violation and where there were no unique arguments related to the chapter 93a claim defendant was entitled to summary judgment on plaintiffs chapter 93a claim",
"holding that the issue of fraud was precluded because the previous jury necessarily considered fraud as the basis for chapter 93a liability",
"holding that to maintain claim for fraud under chapter 93a 11 parties need not be in privity of contract so long as they are engaged in more than a minor or insignificant business relationship",
"holding that summary judgment on chapter 93a claim is appropriate when summary judgment is granted on fraud claim and chapter 93a claim is solely based on the underlying claim for common law fraud"
] | 33
|
sanction when a plaintiff tries to deceive the district court by falsifying an IFP application. Thomas, 288 F.3d at 306-07; Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir.1998). Proceeding in forma pauperis is a privilege, and courts depend on the plaintiffs honesty in assessing her ability to pay. Abusing this privilege warrants dismissal with prejudice as a sanction for lying, and we therefore conclude that the district court did not abuse its discretion. See Greviskes v. Univs. Research Ass’n, Inc., 417 F.3d 752, 754-59 (7th Cir.2005) (upholding dismissal with prejudice where plaintiff had assumed identity of former coworker and faxed to former employer a fraudulent request for coworker’s payroll records); Dotson v. Bravo, 321 F.3d 663, 668-69 (7th Cir.2003) (<HOLDING>); Thomas, 288 F.3d at 306-07 (upholding | [
"holding that the district court possessed the inherent judicial authority to empanel a resentencing jury on remand from reversal of the respondents enhanced sentence and because the district court erred by failing to recognize that it possessed this inherent judicial authority boehl reversed and remanded for the district courts discretionary determination of whether to exercise that authority",
"recognizing a trial courts inherent authority to dismiss a cause of action with prejudice for violations of court orders",
"recognizing inherent power of federal district court to sanction conduct abusive of judicial process",
"holding that district courts possess the inherent authority to dismiss an action sua sponte for failure to prosecute with or sans notice to the parties",
"recognizing district courts inherent authority to dismiss with prejudice for abuse of judicial process"
] | 44
|
A.2d 243,1 find that Miller & Gallagher’s representation of Atlantic City in 2006 and 2007 was substantially related to the representation of taxpayers adverse to the City in 2009. The fact that the matters are not identical is outweighed by the fact that all matters deal with tax assessments in which the issue is the value of real estate. The fact that different experts will be defending Atlantic City in 2009 from those who defended Atlantic City in 2007 and 2006 is outweighed by the fact that the assessor is the same person and the Mayor and Council are performing the same functions, defending Atlantic City’s assessments, as the prior Mayors and Councils of Atlantic City. The likelihood that Miller & Gallagher was privy to relevant confidences of the Ass 2ffd 861, 870 (D.N.J.2001) (<HOLDING>); 3 Gray v. Commercial Union Ins. Co., 191 | [
"holding an attorney who carries on representation of an existing case after a law firm dissolves does so on the firms behalf and any income derived from the case belongs to the dissolved firm",
"holding that under the doctrine of direct estoppel a law firms failure to appeal the bankruptcy courts earlier order barred it from challenging the courts holding on its appeal from a subsequent order",
"holding that a law firms representation of a corporation in a suit relating to enforcement of a severance agreement with the companys former ceo was substantially related to the firms prior consultations with the ceo about the matter that led to his termination",
"holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit",
"holding that former employees lawsuit was not barred by res judicata by unions prior suit where employee was not a party to the prior suit as a former union member was not in privity with the union and never authorized the union to represent his interest in prior suit"
] | 22
|
957 F.2d 353, 354 (7th Cir.1992) (citations omitted). To state a viable claim under § 1983, a plaintiff must allege sufficient facts to demonstrate that he was “deprived of an interest secured by the Constitution or laws of the United States, and the deprivation was visited upon him by a person or persons acting under color of state law.” Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1249 (7th Cir.1994) (citing Gomez v. Toledo, 446 U.S. 635, 638-40, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980)). However, “[i]n evaluating constitutional claims of prisoners, we must balance the need to protect prisoners’ procedural rights against the need for prison safety and security.” Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir.1991); see also Woods v. O’Leary, 890 F.2d 883 (7th Cir.1989) (<HOLDING>). In 1972, the United States Supreme Court | [
"holding that when a prison regulation impinges on inmates constitutional rights the regulation is valid if it is reasonably related to legitimate penological interests",
"holding that prison regulations impinging on prisoners constitutional rights are only valid where reasonably related to legitimate penological interests",
"holding that regulations may impinge constitutional rights if the regulation is reasonably related to legitimate penological interests",
"holding that prison administration may infringe upon prisoners first amendment rights as long as the infringement is reasonably related to legitimate penological interest",
"holding that an inmate has a privacy interest in guarding against disclosure of sensitive medical information from other inmates subject to legitimate penological interests"
] | 22
|
Appellant Mickey Thomas entered a conditional guilty plea to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Thomas conditioned his guilty plea on his right to appeal the district court’s denial of his motion to suppress statements that were the product of an allegedly unlawful arrest. After an evidentiary hearing, the magistrate judge entered a thorough report with extensive factual findings. It concluded that the police had adequate cause, first to detain Thomas and then to arrest him at the scene. See United States v. RojasMillan, 234 F.3d 464, 468-69 (9th Cir. 2000) (<HOLDING>); United States v. Valencia Amezcua, 278 F.3d | [
"holding that reasonable suspicion that there is contraband in the vehicle justifies greater intrusion unrelated to the traffic stop",
"holding that reasonable suspicion justifies an investigatory detention",
"holding that flight from police can help establish reasonable suspicion for an investigatory stop",
"holding that circumstances created reasonable suspicion for investigatory stop",
"holding that a tip may provide the reasonable suspicion necessary to justify an investigatory stop"
] | 11
|
used “unlawful and unreasonable” force against her while acting under color of state law. See Moore v. Indehar, 514 F.3d 756, 759 (8th Cir.2008) (“The right to be free from excessive force is a clearly established right under the Fourth Amendment’s prohibition against unreasonable seizures of the person ... [and] [a] section 1983 action is supported when a [state actor] violates this constitutional right.”) (internal quotation marks and citation omitted). We further construe the complaint as alleging a violation of Henley’s right to be free from gender-based discrimination inasmuch as she is asserting defendants, as state actors, intentionally discriminated against and sexually harassed her because of her gender. See Ottman v. City of Independence, Mo., 341 F.3d 751, 756 (8th Cir.2003) (<HOLDING>); Moring v. Ark. Dep’t of Corr., 243 F.3d 452, | [
"holding private actors are not acting under the color of state law for the purposes of section 1983 liability",
"holding that the equal protection clause also prohibits discrimination in jury selection on the basis of gender",
"holding intentional gender discrimination in public employment by persons acting under color of state law violates the equal protection clause of the fourteenth amendment and is actionable under section 1983",
"holding that the electorate cannot order governmental action through a referendum which violates the equal protection clause of the fourteenth amendment",
"holding that racially discriminatory use of peremptory challenges violates the equal protection clause of the fourteenth amendment"
] | 22
|
Housewares and Bekem agreed to remove an underground storage tank from the Lexington site. Housewares claims that this order “established, at most, General Housewares’ liability for part of the cost of removing the underground storage tank.” Appellant’s Brief at 13. We agree. Housewares, by agreeing to a cleanup of the Lexington site, assumed partial liability. This establishes, prima facie, that Housewares actually knew that it had incurred some liability at this site prior to the inception of the first National policy. On July 19, 1993, the EPA notified Housewares that it was a potentially responsible party (PRP) with regard to the Antrim site. The receipt of this notice does not establish actual liability. See Montrose, supra, 10 Cal.4th 645, 42 Cal. Rptr.2d 324, 913 P.2d at 904 (<HOLDING>). As its name suggests, this letter merely | [
"holding that appellants specific factual denial of receipt was sufficient evidence to defeat the presumption of receipt raised by a docket entry showing mailing",
"holding that an unsworn letter was insufficient to contest a claim of exemption",
"holding that receipt of a prp letter was insufficient to defeat coverage under the lossinprogress rule",
"holding that acts of improper maintenance were insufficient to defeat plaintiffs defective design claim",
"holding that anonymous letter was insufficient to entitle petitioner to hearing"
] | 22
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him, claiming his termination was without just cause, i.e., in violation of the collective bargaining agreement. Under the Railway Labor Act ("RLA”), American’s decision to terminate Perry qualifies as a "minor dispute” over which the Adjustment Board has exclusive jurisdiction. See 45 U.S.C. § 151 (defining "minor dispute” as disputes "growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”). Under the RLA, minor disputes must be submitted to the Adjustment Board for binding arbitration; judicial review of these decisions is only available in certain circumstances, none of which is present here. See id.; Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (<HOLDING>); United Transp. Union v. South Carolina Public | [
"holding the circuit court has exclusive jurisdiction over condemnation proceedings",
"recognizing that the attorney general has vested immigration judges with exclusive jurisdiction over applications for adjustment of status in cases of deportation or removal",
"holding that federal jurisdiction over rico claims is concurrent and not exclusive",
"holding that federal courts have exclusive jurisdiction over securities act class actions",
"holding that adjustment boards have exclusive jurisdiction over minor disputes under rla"
] | 44
|
guided” by the jury verdict on the common law false arrest claims. Thus, the court granted the defendants’ motion for judgment as a matter of law on the § 1983 false arrest claims. We hold that the district court erred by considering the jury verdict from the common law false arrest claims in its qualified immunity analysis. Hi * * The Supreme Court has held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (<HOLDING>). Courts have emphasized that whether a § 1983 | [
"holding that questions of reasonableness depend upon the facts and circumstances the total atmosphere of the case citation omitted which must be viewed in the light of established fourth amendment principles",
"holding that beneficiary of general support trust has a legal right to compel distribution of funds internal quotation marks omitted",
"holding that qualified immunity turns upon the objective legal reasonableness of the officers action assessed in light of the legal rules that were clearly established at the time the action was taken internal quotation marks and citation omitted",
"holding that qualified immunity analysis begins with the court asking whether the plaintiffs allegations if true establish a constitutional violation internal quotation marks omitted",
"holding that qualified immunity applies if either a the defendants action did not violate clearly established law or b it was objectively reasonable for the defendant to believe that his action did not violate such law internal quotation marks omitted"
] | 22
|
that a grant of a plaintiffs request for a temporary restraining order may be sufficient grounds to grant attorney’s fees to the plaintiff pursuant to 42 U.S.C. § 1988(b). See, e.g., LaRouche v. Kezer, 20 F.3d 68, 74 (2d Cir.1994) (citing Christopher P. v. Marcus, 915 F.2d 794, 804-05 (2d Cir.1990)). In so suggesting, however, we have explicitly rejected claims for attorney’s fees where the temporary restraining order merely maintained the status quo. See, e.g., Christopher P., 915 F.2d at 805 (“[T]he procurement of a [temporary restraining order] in which the court does not address the merits of the case but simply preserves the status quo to avoid irreparable harm to the plaintiff is not by itself sufficient to give a plaintiff prevailing party status.”); cf. Vacchio, 404 F.3d at 673 (<HOLDING>); LaRouche, 20 F.3d at 74-75 (holding that “a | [
"recognizing that a private settlement without judicial imprimatur is insufficient to convey prevailing party status",
"holding that to be a prevailing party a plaintiff must obtain a judgment or judiciallyenforced consent decree a party does not prevail without a judicially sanctioned change in the legal relationship of the parties",
"holding that prevailing party status may be conferred by interim judicial relief that alters the parties legal relationship",
"holding that plaintiff may be entitled to prevailing party status where the mediation agreement entered into by the parties was read into the record before a hearing officer",
"holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees"
] | 22
|
and warranties, such as its technical requirements pertaining to internal management and accounting, could only occur intentionally. In the absence of contextual evidence of the meaning of the term “wilful” as used in the Agreement, it is too early in this litigation for a finding as to its meaning. Extrinsic evidence — that is, “evidence relating to a contract but not appearing on the face of the contract because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement” — is admissible to explain the meaning of an ambiguous term. Simon Prop. Group, L.P. v. Michigan Sporting Goods Distrib., Inc., 837 N.E.2d 1058, 1071 & n. 10 (Ind.Ct.App.2005); see also Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 535 (Ind.2006) (<HOLDING>). Discovery in this case has not yet been had. | [
"holding that court may not use extrinsic evidence unless contract language is ambiguous",
"holding that a court may consider extrinsic evidence to determine whether a contract is ambiguous",
"holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous",
"holding that extrinsic evidence is permissible to interpret an ambiguous contract",
"holding that where an instrument is ambiguous all relevant extrinsic evidence may properly be considered in resolving the ambiguity"
] | 44
|
issue of fact that the denial of ice demonstrated “deliberate ind ed by the refusal to give him ice. He claims that he suffered severe dehydration; an unrelenting pounding in his head brought on by migraine headaches; and a burning sensation in his throat, chest, and stomach. Thus, Plaintiff offered sufficient evidence to raise a genuine issue of material fact as to whether Defendants were deliberately indifferent to his serious medical needs. The district court erred by granting summary judgment to Defendants on this claim. B. Retaliation. Plaintiff failed to introduce evidence raising a genuine issue of material fact as to whether he was sanctioned for exercising his constitutional rights to file an administrative complaint. See Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995) (<HOLDING>). The administrative complaint that Plaintiff | [
"holding that a plaintiff must demonstrate a direct causal link between the municipal action and the deprivation of federal rights",
"holding that plaintiff cannot be the only link between the defendant and the forum",
"holding that to prevail on a 1983 retaliation claim a prisoner must submit evidence establishing a link between the prisoners exercise of constitutional rights and the alleged retaliatory action",
"holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action",
"holding that to prevail on a 1983 claim a plaintiff must allege that the defendant acted under color of state law in other words that there was state action"
] | 22
|
CURIAM. The State appeals the trial court’s order withholding adjudication on Andrew Joseph Foster’s first-degree felony conviction. The withhold of adjudication was entered after Foster entered an open no-contest plea to the sale or possession of a controlled substance with intent to sell within 1000 feet of a school or child care facility. See § 402.302, Fla. Stat. (2010). Commendably, Foster concedes error, based upon the plain language of section 775.08435(l)(a), Florida Statutes (2012), which prohibits a court from withholding an adjudication of guilt upon a defendant who commits a first-degree felony, and State v. Joseph, 995 So.2d 1182 (Fla. 2nd DCA 2008) (<HOLDING>). See also State v. Ketchum, 111 So.3d 197 | [
"holding that after the trial court reclassified the seconddegree felony to a firstdegree felony based on the use of a firearm and imposed the minimum mandatory sentence of twentyfive years under section 775087 it was improper to impose a sentence that exceeded the thirtyyear statutory maximum penalty for firstdegree felonies under section 7750823b",
"holding that defendant truthfully stated on firearm purchase form that he had no felony convictions given the fact that adjudication of guilt was deferred and sentence suspended on his prior offense of felony receipt of a stolen car",
"recognizing that section 77508435la prohibits trial courts from withholding an adjudication of guilt on a defendant convicted of a firstdegree felony",
"holding error is not harmless when the accused is convicted of firstdegree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused if the felony underlying the felony murder charge is based on a legally unsupportable theory",
"holding that a defendant may be convicted of felony murder when the death of his accomplice was a reasonably foreseeable result of their commission of a felony"
] | 22
|
must be regarded as complete until the time the petition for review is denied. Florida Star at 289. “Moreover, the denial of review ... did not operate to deprive this Court of its subject-matter jurisdiction retroactively, but merely constituted the point in time at which jurisdiction, for whatever reason, had ended.” Id. at 289. Because of the nature of our opinion in Mullins’ direct appeal (a PCA with citation to a case pending supreme court review), the Florida Supreme Court had subject-matter jurisdiction and Mullins could appropriately petition the court to exercise its discretionary jurisdiction. While the Florida Su s not whether the court has subject matter jurisdiction, which it does, but whether it chooses to exercise it. Cf. Jollie v. State, 405 So.2d 418 (Fla.1981) (<HOLDING>); Harrison v. Hyster, Co., 502 So.2d 100 (Fla. | [
"holding that a district court of appeal opinion which cites as controlling authority a decision that is either pending review in or has been reversed by the court constitutes prima facie express conflict and allows the court to exercise its discretionary jurisdiction",
"holding that a circuit court has no jurisdiction to review a district courts discretionary decision not to depart downward from the guidelines but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart",
"holding that district court opinion which cites controlling authority that is pending review in florida supreme court allows supreme court to exercise jurisdiction",
"holding that the court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this court",
"holding that a district court decision rendered without opinion or citation constitutes a decision from the highest state court empowered to hear the cause"
] | 00
|
failure to make a showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce “evidence of evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997); see Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (<HOLDING>). “In deciding a motion for summary judgment, | [
"recognizing that nonmoving party must present affirmative evidence to defeat summary judgment",
"holding that a trial court may enter summary judgment for a nonmoving party under appropriate circumstances",
"holding that grant of summary judgment is appropriate where the nonmoving party adduces nothing more than speculation to support its claims",
"recognizing that a noevidence summary judgment is improper if the nonmovant brings forth more than a scintilla of evidence",
"holding that the nonmoving party must produce more than a scintilla of evidence to survive summary judgment"
] | 44
|
first issue, the size of the disparity between those with the status alleged to be the basis of the alleged disparate impact versus those without the status must be at least twenty percent. See Tabor v. Hilti, Inc., 703 F.3d at 1222 (noting that the EEOC “guidelines provide that a disparity of 20% or more in selection rate will be considered evidence of adverse impact in a disparate impact claim” and that “[although not controlling on courts, this guideline is persuasive”). As to the'statistical significance of the disparity, the Tenth Circuit has noted that “ ‘[t]he Supreme Court has recognized that a disparity of more than two or three standard deviations in a large sample makes ‘suspect’ the contention that the differential occurs randomly.’ ” Tabor v. Hilti, Inc., 703 F.3d at 1223 (<HOLDING>)(quoting Carpenter v. Boeing Co., 456 F.3d at | [
"holding that in criminal case a continuous chain of custody need not be proven as long as the evidence as a whole establishes that it is more probable than not that the object introduced is the same as that seized",
"recognizing that a defendant physicians own practice was at least some evidence of the standard of care and concluding that the case was properly submitted to the jury notwithstanding the plaintiffs failure to call an independent expert on the standard of care",
"holding that ms tabors evidence was statistically significant at 2777 standard errors as to which the plaintiffs expert concluded the probability is less than 0006 that a disparity at least as large as this could occur solely as the result of chance factors if promotions were unrelated to sex",
"recognizing that although the term good cause is undefined it is at least as demanding as the excusable neglect standard",
"holding substantial evidence is defined as more than a scintilla but less than a preponderance and consists of such relevant evidence as a reasonable person would accept as adequate to support a eonclusion "
] | 22
|
in them from a standpoint of predisposition. The extensive Planning Board transcripts show that the chairman refereed an exhaustive, highly contentious Planning Board process that extended over a period of sixteen months. Although he often had difficulty keeping control over a very outspoken group of town residents opposed to the project, he nevertheless moved the process forward while following the presentations, questioning witnesses, and fairly discussing the evidence. See 5 M.R.S. § 9062(3)(C) (2007) (stating that presiding officers have the authority to “[rjegulate the course of the hearing”); Gorham, 625 A.2d at 902-03, On this record, his actions cannot be said to be the result of bias. Cf. Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (<HOLDING>). Finally, while the chairman’s statements to | [
"holding a party must bring a motion demonstrating prejudice or implied or actual bias if the party failed to remove the judge before trial",
"holding that an assertion of prejudice is not a showing of prejudice",
"recognizing that expressions of impatience dissatisfaction annoyance and even anger by a judge do not constitute bias or prejudice",
"holding that a trial judge has discretion to exclude evidence of pending charges and that where the defendant was given a full opportunity outside the presence of the jury to develop a foundation for bias but failed to do so the trial judge did not abuse its discretion",
"recognizing that settlement discussions do not constitute an offer of judgment"
] | 22
|
. The new language states in relevant part, "The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under col- or of State law.” 42 U.S.C. § 1981(c). This language creates a right, but not a remedy, and therefore shows no Congressional intent to overrule Jett. See Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000) ("[T]he section creates a right that private or state actors may violate but does not itself create a remedy for that violation.”). 7 . We may affirm a district court for any reason, including a reason not considered by the district court. Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 677 (6th Cir.2005). 8 . Jones v. Bock overruled Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.1998) (<HOLDING>), Burton v. Jones, 321 F.3d 569, 574 (6th | [
"holding that a prisoner exhausted his administrative remedies even though his grievance was untimely",
"holding that the prisoner has the burden of demonstrating he has exhausted his administrative remedies in his complaint",
"holding that a texas prisoner who had not exhausted his clearly available administrative remedies was properly denied habeas relief in the district court",
"holding that a plaintiff has exhausted his administrative remedies when his claim is deemed denied because of failure of administrator to respond in a timely manner",
"holding that exhaustion requirement is satisfied so long as prisoner exhausted his administrative remedies with respect to new claims asserted in an amended complaint before filing that complaint"
] | 11
|
Subsets and Splits