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Read the following excerpt from a US court opinion:
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question is one of first impression for this court, the Ninth Circuit has previously held that “both applicants for and recipients of [service-connected death and disability] benefits possess a constitutionally protected property interest in those benefits.” Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 588 n. 7 (9th Cir.1992). Additionally, seven of our sister circuits have addressed similar questions concerning statutorily mandated benefits. “Every regional circuit to address the question ... has concluded that applicants for benefits, no less than benefits recipients, may possess a property interest in the receipt of public welfare entitlements.” Kapps v. Wing, 404 F.3d 105, 115 (2d Cir.2005); see, e.g., Kelly v. R.R. Ret. Bd., 625 F.2d 486, 489-90 (3d Cir.1980) ; Mallette v. Arlington Cnty. Employees’
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What is the most suitable continuation to the opinion? Your options are:
A. holding an applicant for a disabled childs annuity was denied due process
B. holding that petitioner did not exhaust his due process claim that he was denied a full and fair hearing by arguing that due process was violated on the ground that the ij admitted uncertified evidence
C. holding that the due process clause confers a right to direct a childs education
D. holding that the defendant was denied due process because the procedural rule was not followed in any respect by the trial court
E. holding that no ada violation was shown because the disabled were not denied benefits that were otherwise available
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Read the following excerpt from a US court opinion:
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questions whether we have jurisdiction over CTF’s cross-appeal of the District Court’s stay, and has moved to dismiss CTF’s appeal for lack of subject-matter jurisdiction. Marriott argues that the stay is not a final order and is therefore not appealable. We agree that a stay is usually not a final order because it provides only a temporary respite from litigation. Marcus v. Twp. of Abington, 38 F.3d 1367, 1370 (3d Cir.1994). However, when a stay amounts to an effective dis missal of the underlying suit, it may be subjected to appellate review. Cheyney State Coll. Faculty v. Hufstedler, 703 F.2d 732, 735 (3d Cir.1983) (citing Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); see also United States v. Spears, 859 F.2d 284, 287 (3d Cir.1988) . We have also recognized that an indefinite
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What is the most suitable continuation to the opinion? Your options are:
A. holding a trial judges unappealed procedural rulings become the law of the case
B. holding that the district court should not have exercised pendent party jurisdiction over the husbands loss of consortium claim and therefore the jurys verdict in his favor had to be reversed
C. holding that consideration of a moot case was not required when there was no award of attorneys fees that would be affected by appellate review and the issue has not been preserved for appeal
D. holding that appellate review was effectively foreclosed unless we exercised pendent jurisdiction because the issues would become moot and untouchable because of the procedural limbo in which the decision placed the case
E. holding that issues as to whether declaratory relief should be granted had become moot and would be dismissed for lack of jurisdiction but that under hallman the entire appeal was not moot because there still was a live controversy as to whether appellee was entitled to recover attorneys fees under the declaratory judgments act and therefore issues regarding attorneys fees were not moot and would be decided
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Read the following excerpt from a US court opinion:
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Act, the rest of the case was devoted to a statute limiting contingency fee agreements for Civil War claims. Id. Other cases have followed Nutt and Calhoun to hold that attorneys may not take a contingency interest in or a lien against claims against the United States. See United States v. Transocean Air Lines, Inc., 386 F.2d 79, 82 (5th Cir.1967) (“A contingent fee in a judgment against the United States is an assignment subject to the Anti-assignment Act.”); Kearney v. United States, 152 Ct.Cl. 202, 285 F.2d 797, 800 (1961) (“[A] contract between an attorney and a client which gives the attorney an interest in the client’s claim against the Government is exactly what the anti-assignment statute forbids.”); Pittman v. United States, 127 Ct.Cl. 173, 116 F.Supp. 576, 580 (1953) . However, Honig is not asserting a right akin
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What is the most suitable continuation to the opinion? Your options are:
A. holding that nutt stands for the broad principle that any attempt to impress a lien upon the proceeds of a claim against the united states as security for the payment of an attorneys fee is within the ends to which the prohibition of the act was aimed
B. holding that sovereign immunity bars an attorneys lien against the united states
C. holding the beginning of a creditors action to subject an equitable estate to the payment of a judgment gives a specific lien upon the property which it is sought to reach and this lien continues while the cause is pending
D. recognizing the delegation of authority to the united states attorneys
E. holding that the fourth amendment does not mandate the payment of money by the united states
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Read the following excerpt from a US court opinion:
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the defendant of the specifics of the charges he must defend against at trial. In this case, the family court’s discretion should have been exercised in light of the purposes of a bill of particulars, which is designed to enable the defendant to “prepare for trial and to prevent surprise.” State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000) (emphases added) (citing State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994), overruled on other grounds by Balanza, 93 Hawai'i at 288, 1 P.3d at 290). This court has held that a bill of particulars is not required if the information called for has been provided “in some other satisfactory form.” Reed, 77 Hawai'i at 78, 881 P.2d at 1224 (citation omitted), overruled on other grounds by Balanza, 93 Hawai'i at 288, 1 P.3d at 290 . However, without being apprised in the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the trial court did not abuse its discretion by denying the appellants motion for change of judge where the appellant failed to demonstrate actual bias
B. holding that the trial court did not abuse its discretion in denying reeds motion for bill of particulars when reed did not deny that the transcripts of the preliminary hearing and police reports provided him with the information that he claimed was lacking in the complaint
C. holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form
D. holding that the district court did not err by concluding that the bankruptcy court did not abuse its discretion in denying motion for continuance motion to withdraw and motion for reconsideration and rehearing
E. holding that trial court did not abuse its discretion in denying motion to amend complaint because the proposed amendment would have been futile
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Read the following excerpt from a US court opinion:
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purpose of the form (drafted by and to give assistance to the clinic) and the circumstances of execution.” Id. at 1056. One of those circumstances was the husband’s execution of the consent forms in blank. The court, therefore, doubted that the form represented the parties’ intent in the event of a dispute between them. Id. at 1056-57. Nevertheless, the court addressed and rejected the enforceability of such an agreement: With this said, we conclude that, even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public 6 U.S. 40, 51, 119 S.Ct. 977, 986, 143 L.Ed.2d 130, 144 (1999) and Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that private insurers decision to seek review by private utilization review organization of reasonableness and necessity of medical treatment though authorized by pennsylvania workers compensation statute did not involve state action to the extent necessary to trigger due process guarantees under fourteenth amendment
B. holding that statute allows admissibility of evidence by affidavit to prove reasonableness and necessity of medical expenses
C. holding that a state medicaid agency can review the medical necessity of treatment prescribed by a doctor on a casebycase basis
D. recognizing private right of action
E. holding that while the fourteenth amendment is directed against state action and not private action the state action requirement is met in a civil action where state law is applied whether by statute or common law
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Read the following excerpt from a US court opinion:
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charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him. New Jersey’s Good Samaritan Act, N.J.SA. § 2A:62A-1, however, shields from civil liability volunteers who, in good faith, render care at the scene of an emergency, even if they do so unreasonably. Lundy, 34 F.3d at 1180. Although the Act does not apply when there was a preexisting duty that was breached, we have already determined that issue against Mrs. Abramson. See id. . Moreover, there is no allegation much less
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What is the most suitable continuation to the opinion? Your options are:
A. 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
B. 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
C. 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
D. holding the duty to indemnify is narrower than the duty to defend
E. holding that the duty of good faith and fair dealing is a contractual duty
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Read the following excerpt from a US court opinion:
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period. (Defs.’ Ex. 18 (Blood Aff.) ¶ 5.) As such, they were deprived of neither their ultimate- wages nor the immediate use of those wages. Accord Lovejoy-Wilson, 263 F.3d at 224 (finding adverse action from week-long suspension where plaintiff “may have at least suffered the loss of the use of her wages for a time”); cf. Markel v. Bd. of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 911 (7th Cir.2002) (“Typically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay.”)(quoting Ellerth, 524 U.S. at 761-62, 118 S.Ct. 2257 (emphases added)). Moreover, there is no indication that the suspension served, or could have served, as the basis for any subsequent adverse action against plaintiff. See Russell, 257 F.3d at 819-20 . Indeed, the fact that Dickerson and Reed were
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that a set of actions may constitute an adverse employment action when considered collectively even though some actions do not rise to the level of an adverse employment action individually
B. holding that an unrealized risk of future adverse action even if formalized is too ephemeral to constitute an adverse employment action
C. holding that termination is an adverse employment action
D. holding that a transfer of job duties can constitute an adverse employment action
E. holding that denial of a bonus was not an adverse employment action
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Read the following excerpt from a US court opinion:
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on the confirmation order, the court is barred from revoking the confirmation order — even if the order was procured by fraud. For reasons that are amplified in point III, below, the statute bars revocation of the confirmation order in this case because an order satisfying the mandatory statutory predicate cannot be drafted. Another noteworthy feature of this statute is the relatively short time frame in which a cause of action may be filed. The request to revoke the confirmation order must come “before 180 days after the date of the entry of the order of confirmation.” Courts have been very strict in their adherence to this 180-day rule. See, e.g., BFP Invs., Inc. v. BFP Invs., Ltd., 150 Fed.Appx. 978, 979 (11th Cir.2005); In re Orange Tree Assocs., 961 F.2d 1445, 1447 (9th Cir.1992) ; In re Medical Analytics, Inc., 410 F.Supp.
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What is the most suitable continuation to the opinion? Your options are:
A. holding 1330a motion not now justiciable because not raised within 180 days of confirmation
B. holding 1330a motion untimely when filed over 180 days from confirmation
C. holding in the instant case although creditor obtained relief from the automatic stay it failed to object or appeal from the confirmation order accordingly creditor is bound by the confirmation order
D. holding that payment does not moot a confirmation request
E. holding that a request made within 180 days of a modified confirmation order entered three months after the original confirmation order but more than 180 days after the original confirmation order was timebarred
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Read the following excerpt from a US court opinion:
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at 16) This claim will be tried at the Phase One trial. RELEVANT LAW Under Plaintiffs’ direct operator liability claim that will be tried during Phase One, Plaintiffs must prove that sole agents of Anaconda “manage[d], directed], or eon-duct[ed] operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Bestfoods, 524 U.S. at 66-67, 118 S.Ct. 1876, (document # 1221 at 10) Under the rule of Bestfoods, Plaintiffs must prove their “arranger” liability claim through evidence that Anaconda sole agents arranged for disposal of hazardous substances owned or possessed by Anaconda. See, Transportation Leasing Co. v. California, 861 F.Supp. 931, 941 (C.D.Cal.l993); Raytheon Constructors, Inc. v. Asarco, Inc.,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a party that sold a product to another party arranged for disposal of a hazardous substance
B. holding that arranger liability claim requires proof that defendant arranged for the disposal of hazardous substances owned or possessed by defendant
C. holding that a claim for municipal liability under 1983 requires inter alia proof of an underlying constitutional violation
D. holding that potentially liable party could avoid all liability by proving its released hazardous substances did not contribute to response costs
E. holding that fraud claim requires proof that the defendant made a material representation that was false
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Read the following excerpt from a US court opinion:
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constitutional scrutiny of police action. {¶ 70} By that era, the Supreme Court recognized that a juvenile could “receive[] the worst of both worlds” in the juvenile court system by being provided “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Kent, 383 U.S. at 556, 86 S.Ct. 1045, 16 L.Ed.2d 84. In a series of cases, the court addressed that concern. {¶ 71} Although the court had recognized a due process interest in juvenile court proceedings as early as 1948, see Haley v. Ohio (1948), 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224, the understanding that the Due Process Clause of the Fourteenth Amendment applied to juvenile proceedings because of the juvenile’s liberty interests was more fully developed in Kent , and crystallized in In re Gault (1967), 387
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the court without violating due process of the law may conduct a hearing to determine whether to waive juvenile jurisdiction even if the juvenile fails to appear if counsel is present and allowed to participate on the juveniles behalf
B. holding that jeopardy attaches in juvenile adjudication that determines whether juvenile violated criminal law
C. recognizing that the admonition to function in a parental relationship is not an invitation to procedural arbitrariness and holding that a juvenile is entitled to a hearing on the issue of whether juvenile court jurisdiction should be waived before being released to a criminal court for prosecution
D. holding that although the juvenile restitution statute does not expressly require the juvenile court to determine whether the juvenile has the ability to pay the restitution ordered as a condition of probation the policies underlying the adult restitutions command that a trial court make such an inquiry applies with equal force to juvenile courts
E. holding that juvenile court has no jurisdiction to consider constitutional claims
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Read the following excerpt from a US court opinion:
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even in the Hugheses and Calhoun’s trial brief, they argued that the Hugheses had sustained $9,262.50 in damage but did not argue that Calhoun had sustained any damage. Because we conclude that the damages awards were not supported by evidence in the record, we must reverse the trial court’s judgment on this issue. See, e.g., Blair v. Cooper, 392 So.2d 1205, 1207 (Ala.Civ.App.1981). V. Additionally, the Darnalls argue that the trial court erred in admitting a “Google Earth” aerial photograph and an Alabama Atlas and Gazetteer as exhibits. We need not determine whether these exhibits were admissible, because, even if their admission was error, the Darnalls have not shown how the error was injurious to their ease. See New Plan Realty Trust v. Morgan, 792 So.2d 351, 363 (Ala.2000) . They argue that the Google Earth map showed
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the appellants bear the burden of showing that an error in the admission of evidence has probably injuriously affected substantial rights of the appellants quoting atkins v lee 603 so2d 937 946 ala1992 quoting in turn rule 45 ala rapp p
B. holding that defendants bear the burden of showing that the challenged act was objectively reasonable citation omitted
C. recognizing under plain error review that the burden to show that substantial rights have been prejudiced is on the party that failed to raise the issue below and for an error to have affected substantial rights the error must have affected the outcome of the district court proceedings
D. holding that any error in the exclusion of evidence is cured by the subsequent admission of the evidence
E. holding that plaintiffs bear the burden of showing by a preponderance of the evidence that defendants have failed to adhere to the requirements of nepa
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Read the following excerpt from a US court opinion:
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450 (1999). The plaintiff fails to meet this burden. Garrett has produced scant evidence to show that his impairment substantially limits his ability to work. Garrett provides no evidence of the number of jobs from which he is precluded because of his impairment. The plaintiff has admitted that he can work in a variety of jobs. See Plaintiffs dep. pp. 176-177. Plaintiff admits that he can work most jobs that do not require “sport type activities”. Id. In fact, plaintiff has worked a variety of jobs since he was fired from Autozone. See id. at 226-231. Without some evidence that Garrett is precluded from a broad range of jobs, his impairment does not meet the definition of disability under 42 U.S.C. § 12102(2)(A). See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir.1997) ; See also, Skorup v. Modern Door Corp., 153
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a plaintiff who could not perform some jobs because he wore a pacemaker was nevertheless still capable of performing most jobs in the workforce
B. holding that the plaintiffs evidence that his back injury precluded him from performing at least 50 of the jobs previously available to him was enough to classify him as disabled under the ada
C. holding plaintiff not substantially limited in working because plaintiff failed to present evidence of disqualification because of knee condition from any jobs in the geographic area to which she had reasonable access
D. holding that similar impairments do not create a genuine issue of material fact as to whether her impairment rendered the plaintiff unable to perform a class of jobs or a broad range of jobs in various classes within a geographical area to which she had reasonable access
E. holding that under pwdcra the inability to perform a particular job does not constitute a substantial limitation instead the impairment must significantly restrict an individuals ability to perform at least a wide range of jobs
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Read the following excerpt from a US court opinion:
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at PA. However, this alone, does not prove discriminatory intent. Notably missing is any evidence that the disparity is the result of discrimination. To the contrary, there is no evidence that women at PA have repeatedly sought and been turned down for the partnership rank. See, e.g., Roberson v. Snow, 404 F.Supp.2d 79, 91 (D.D.C.2005) (ruling that plaintiffs attempt to show pretext by pointing to historical disparities within the company was unavailing because he “failed to show actual statistics comparing rates of promotion at [the company] between similarly situated black and white employees, or even statistics comparing rates of hiring black and white applicants to their presence in the applicant pool”); Metrocare v. Wash. Metro. Area Transit Auth., 679 F.2d 922, 930 (D.C.Cir.1982) . Having considered all of the record evidence
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the percentage of minority faculty need not approximate the percentage of minority students
B. holding that a prima facie case of discrimination is not established merely by the number of peremptory strikes against blacks in cases where the percentage of blacks on the empaneled jury is higher than the percentage of the venire pool
C. holding that while proper statistical evidence can be the most important vehicle for showing class discrimination the plaintiff failed to compare the percentage of blacks hired for given jobs with the percentage of blacks qualified for those positions and it was not sufficient to merely show that black managers formed a smaller percentage of the manager pool than did managers of other races
D. holding that blacks who were not subjected to racial discrimination had standing under title vii to sue over discrimination against other blacks
E. holding that both the lodestar and the percentage of the fund methods are permitted
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Read the following excerpt from a US court opinion:
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reasonably available means”). Generett has satisfied neither the Brady nor the Trombetta test. Brady v. Maryland, to begin with, does not apply. The LeSabre from which Officers Teeters and Smith recovered the firearm — as Generett himself appears to recognize, see Generett Br. at 13 (“[T]he disposal of the car, in essence, destroyed potentially useful evidence that may have been exculpatory in nature.”) — was at best only potentially useful evidence. See Illinois v. Fisher, 540 U.S. 544, 548, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (deeming destroyed evidence to be only “potentially useful” when “[a]t most, [the defendant] could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him”); Youngblood, 488 U.S. at 58, 109 S.Ct. 333 ; Trombetta, 467 U.S. at 488 — 89, 104 S.Ct.
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the defendant bears the burden of proof and that such a disposition does not violate the due process clause
B. holding that police failure to inform the accused of his attorneys attempts to contact him and misstatements to the attorney as to whether the accused was at the police station did not violate the accuseds due process rights
C. holding that states inadvertent or negligent destruction of evidence did not violate defendants due process rights
D. holding that doctrine does not violate due process
E. holding that the failure of the police to refrigerate clothing and to perform tests on semen samples can at worst be described as negligent and did not violate the due process clause
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Read the following excerpt from a US court opinion:
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see also Swarna v. Al-Awadi, 607 F.Supp.2d 509, 514 (S.D.N.Y.2009) (explaining that initial suit was properly dismissed for lack of subject matter jurisdiction despite the fact that the diplomat had left his post because service was effected prior to the diplomat’s departure). The certification of Defendants’ status of diplomats by the State Department prior to service of the Amended Complaint therefore applies throughout the continuation of the suit, making Defendants immune from subject matter jurisdiction in this Court. Additionally, Defendants properly asserted that the “commercial activity” exception in Article 31(1)(c) of the Vienna Convention does not apply to the hiring of a domestic employee, therefore immunity is neither waived nor eliminated. See Mufti, 73 F.3d at 538 . Thus, Defendants sufficiently proved they
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What is the most suitable continuation to the opinion? Your options are:
A. holding that statement is admission by partyopponent if made by partys agent or servant concerning matter within course and scope of the agency or employment and made during existence of agency or employment relationship
B. recognizing that acts are not within the scope of employment and a master is insulated from liability under restatement 2191 where the servant was acting entirely for his own benefit
C. holding that sovereign immunity does not protect the state from claims for statutory employment benefits that constitute a protected property interest
D. holding that for a domestic corporation the foreign principal place of business does not count
E. holding that the employment of a domestic servant does not void diplomatic immunity
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Read the following excerpt from a US court opinion:
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in the Court’s Memorandum Opinion and Order, the Court grants defendant Greenwood Hospitality Management LLC’s Motion for Summary Judgment [55] as to all claims and its Motion to Strike Each of Plaintiffs Declarations in Opposition to Defendant’s Motion for Summary Judgment [76]. The Clerk is directed to enter judgment in favor of defendant Greenwood Hospitality Management LLC and against plaintiff Karen Hoosier. This is a final and appeal-able order. It is so ordered. 1 . Federal Rule of Civil Procedure 56 requires that affidavits or declarations “used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on th , 604-05 (7th Cir.2012) ; Mach v. Will County Sheriff, 580 F.3d 495,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an isolated comment is not direct evidence of discrimination even if a plaintiff interpreted it as motivated by a discriminatory animus
B. recognizing that the seventh circuit consistently has held that isolated comments that are no more than stray remarks in the work place are insufficient to establish that a particular decision was motivated by discriminatory animus
C. holding managers discriminatory remark indicative of age bias where buttressed by other evidence of discrimination and thus remark was not an isolated comment
D. holding that direct evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action
E. holding that employer was entitled to summary judgment even if it conducted a shoddy investigation and subsequently made a poorly informed decision to fire plaintiff so long as there was no evidence that it was discriminatory animus that motivated the decision to conduct the investigation and terminate plaintiffs employment
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Read the following excerpt from a US court opinion:
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outside the limitations period by establishing a liability cut-off if notice of the first violative behavior is not given within 180 days. CP at 22 (emphasis added). Therefore, we hold that the 180-day limitations provision in the agreement unreasonably favors Fred Lind Manor and thus is substantively unconscionable. Severance of the Substantively Unconscionable Provisions ¶42 Fred Lind Manor urges us to sever any provisions we find to be substantively unconscionable arguing that the essential term of the parties’ bargain, i.e., arbitration, should be retained. Adler, however, contends that because the substantively unconscionable provisions pervade the entire agreement, we should refuse to sever those provisions and declare the entire agreement void. See Ingle, 328 F.3d at 1180 . The 2 Restatement (Second) of Contracts § 208
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What is the most suitable continuation to the opinion? Your options are:
A. holding that one candidates status as a pension fund tipped the scales in favor of its appointment as lead plaintiff
B. holding that the relevant time is the time of the employment decision
C. holding that the employers insidious pattern of seeking to tip the scales in its favor during employment disputes justified a decision to declare the entire agreement unenforceable
D. holding that an employers reservation of right to alter amend or revoke the arbitration policy in an employee handbook did not invalidate the binding agreement to arbitrate employment disputes
E. holding employer cannot lawfully make the signing of an employment agreement which contains an unenforceable covenant not to compete a condition of continued employment an employers termination of an employee who refuses to sign such an agreement constitutes a wrongful termination in violation of public policy
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Read the following excerpt from a US court opinion:
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a procedural violation by not specifying the minutes of instruction to be devoted to each of KL.’s services in her individualized educational programs. School districts need not specify minutes of instruction if they are reasonably known to all “involved in both the development and implementation of the IEP.” See 64 Fed.Reg. 12,479. Under the circumstances of this case, we conclude that the amount of time to be devoted to KL.’s services was clearly known to KL.’s individualized educational program team. Even if the minutes were not known, however, Plaintiffs have failed to set forth a plausible argument that this procedural violation resulted in the denial of a free appropriate public education. Cf. O’Toole v. Olathe Dist. Schs. Unified Sch, 144 F.3d 692, 705-06 (10th Cir.1998) . We hold that the District did not violate the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an individualized educational program that merely provided for educational services as appropriate did not result in the denial of a free appropriate public education
B. recognizing that under the act states are granted federal funds to provide disabled children with a free appropriate public education in the least restrictive environment
C. holding that the eha established right to public education for students with disabilities that consists of educational instruction specially designed to meet the unique needs of the handicapped child supported by such services as are necessary to permit the child to benefit from the instruction
D. holding that the local educational agency is the appropriate target of a suit under the idea and that private entities cannot be held liable under the statute as the idea obligates the statenot the private schoolto ensure that such children are provided special education and related services in accordance with an individualized education program
E. holding that school districts provision of teaching materials in a tardy fashion had an educational source and educational consequences
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Read the following excerpt from a US court opinion:
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evidence should be excluded on the basis of unfair prejudice or any other ground of inadmissibility set out in Tennessee Rule of Evidence 403. The Defendant instead claims that the lay testimony was improper under Tennessee Rule of Evidence 701(a), which provides that non-expert witnesses may testify as to opinions only when they are “rationally based on the perception of the witness” and are either “helpful to a clear understanding of the -witness’s testimony or the determination of a fact in issue.” Rule 701(a) authorizes the admission of this testimony. Mr. Payne and Mr. Car-ringer merely testified to the presence of asbestos without offering a scient 354 N.C. 572, 558 S.E.2d 867 (2001); Olinger v. Pretty Prods., Inc., No. 96-CA-29, 1997 WL 33814208, at *4 (Ohio Ct.App. Nov. 7,1997) ; Per-man v. C.H. Murphy/Clarlc-Ullman, Inc.,
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What is the most suitable continuation to the opinion? Your options are:
A. holding improperly admitted testimony was cumulative to the other properly admitted evidence and was therefore harmless
B. holding that lay testimony as to the presence of asbestos in the workplace was admissible because it was rationally based upon the perception of the witness
C. holding that lay opinion testimony on the technical subject of asbestos in the workplace was inadmissible when the witness failed to demonstrate sufficient personal experience or technical knowledge to qualify him to offer an opinion
D. holding that lay testimony as to the presence of asbestos in the workplace which was based upon personal knowledge of employees was properly admitted
E. holding that it was error to allow a police officer who was admitted as a lay witness after a prosecution motion to admit him as an expert was denied for lack of timeliness to give testimony as to a matter about which he had no personal knowledge
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Read the following excerpt from a US court opinion:
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he hesitate to answer questions at any time.” The trial court made extensive findings of fact in accord with this evidence. Defendant did not except to any of these findings. Id. The Court then held that “[f]rom these findings the trial court correctly concluded that the statement ‘was made freely, voluntarily, understanding [sic] and knowingly ....’” Id. at 20, 277 S.E.2d at 529. The Court concluded, therefore, that the trial court properly admitted the defendant’s incriminating statements. In this case, the trial court made comparable findings based on similar evidence. Under McCoy, therefore, the trial court’s findings in this case support its conclusion that defendant’s three statements were voluntary and admissible. See also State v. McKoy, 323 N.C. 1, 17, 372 S.E.2d 12, 20 (1988) , vacated on other grounds, 494 U.S. 433, 108
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What is the most suitable continuation to the opinion? Your options are:
A. holding that trial court did not err
B. holding that even though defendant began to display physical signs of withdrawal his waiver was voluntary because he remained coherent and responsive was aware of what was going on and told the agents that he was able to continue with questioning
C. holding that district court did not err in admitting defendants prior conviction during governments caseinchief to rebut defendants expected defense announced in opening statements that he was not involved in the offense
D. holding that trial court did not err in admitting statements made two hours after defendants blood alcohol level was 026 when trial court found that during questioning the defendant was coherent and that his answers were extremely reasonable responsive and appropriate
E. holding that a defendants statement made outside of police custody was voluntary because he was awake and relatively coherent during the questioning despite painful injuries
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Read the following excerpt from a US court opinion:
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David to sell his hundreds of franchises in the U.S., and a "breach" scenario, in which, due to defendants failure to perform, David, three years later, had to set up prototypes himself and then sell the franchises. See D.Mem. re Causation and Damages at 9-13; D.Exh. A. 7 . While the most recent Kenford decision sets forth a stricter rule than previously articulated, prior cases — in both New York and federal courts — have also set forth high standards for when lost profits for new businesses can be awarded. These cases make clear that lost profit claims by new businesses must be certain, specific, and precise. See, e.g., Hirschfeld v. IC Securities, Inc., 132 A.D.2d 332, 521 N.Y.S.2d 436, 439 (1st Dep’t.1987), appeal dism’d, 72 N.Y.2d 841, 530 N.Y.S.2d 556, 526 N.E.2d 47 (1988) ; Perma Research & Development Co. v. Singer
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What is the most suitable continuation to the opinion? Your options are:
A. holding that such damages could be recovered but only if the plaintiffs were experienced in the business and if the lost profits could be ascertained with some certainty
B. holding that a business owners testimony was insufficient to establish lost profits where he was not able to specify which contracts they lost how many they lost how much profit they would have had from the contracts or who would have awarded them contracts and explaining that the plaintiffs could have supported their lost profits with testimony that they had lost out on specific contracts but failed to do so
C. holding past profits coupled with other facts and circumstances may establish lost profits
D. holding that the plaintiffs attempted to recover lost profits which under the facts of the case were consequential damages
E. holding that lost profits were covered where the insureds product a motor used in a treadmill was defective and caused lost profits on the sale of the treadmills
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Read the following excerpt from a US court opinion:
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Cyr, 533 U.S. at 314 n. 38, 121 S.Ct. 2271 (“Congress could, without raising any constitutional questions, provide an adequate substitute [for habeas corpus] through the courts of appeals.”). An adequate substitute for habeas corpus must fulfill the traditional role of the writ, which is to give the petitioner “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’ ” Boumediene v. Bush, — U.S. -, 128 S.Ct. 2229, 2266, 171 L.Ed.2d 41 (2008) (quoting St. Cyr, 533 U.S. at 302, 121 S.Ct. 2271). A petition for review with the court of appeals constitutes “an adequate substitute for district court habeas corpus jurisdiction.” Puri, 464 F.3d at 1042; see also Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir.2007) ; Alexandre v. U.S. Att’y Gen., 452 F.3d 1204,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that substantive review is adequate
B. holding that because the real id act created a remedy as broad in scope as a habeas petition the act is an adequate substitute for habeas corpus
C. holding that a petition for review is an adequate substitute for habeas corpus
D. holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus
E. holding that the remedy of habeas corpus is not available as a substitute for postconviction relief under rule 3850
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Read the following excerpt from a US court opinion:
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challenged here was constructed to prevent one thing: seasonal holiday displays of a religious character. The absence of an explicit list of permissible subjects upon which discourse is permissible in this nonpublie forum does not mean that there is no “otherwise includible subject” for discussion in the forum. In Hedges, 9 F.3d at 1296-97, for example, the school board announced two policies prohibiting the distribution of “written material that is of a religious nature” and “written material ... which expresses religious beliefs or points of view.” This court recognized that the policies impliedly allowed the distribution of all other written material, and concluded that the prohibition of religious speech was unconstitutional. See also Good News/Good Sports Club, 28 F.3d at 1506-07 ; Searcey v. Crim, 815 F.2d 1389 (11th
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What is the most suitable continuation to the opinion? Your options are:
A. holding that adam walsh act violates the eighth amendments prohibition against excessive bail and the fifth amendments guarantee of procedural due process
B. holding that adam walsh act violates the eighth amendments prohibition against excessive bail the fifth amendments guarantee of procedural due process and separation of powers
C. holding that a policy generally encouraging the moral character and development of youth by permitting on school premises the boy scouts and girl scouts but not permitting a religious youth organization violates the first amendments prohibition of viewpoint discrimination
D. holding that school policy prohibiting written material of a religious nature violates the fust amendment
E. holding unconstitutional a rule excluding all religious speech as viewpoint discrimination
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Read the following excerpt from a US court opinion:
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the waiver provision largely referred to “sentence” in the context of the term of imprisonment. See id. (discussing “probable sentencing range” and “sentence within the maximum provided in the statutes of conviction”). As such, we find the plea agreement’s waiver provision is ambiguous as to whether “sentence” includes the amount of restitution, or refers only to term of imprisonment. For example, on the one hand, restitution is part of “sentence” in the colloquial sense in that it is a determination for the district court after guilt has been adjudged. On the other hand, resti tution is not simply “imposed in accordance with the Sentencing Guidelines and Policy Statements” as the plea agreement specifies. J.A. 30 1Í 4; cf. United States v. Ready, 82 F.3d 551, 559-60 (2d Cir.1996) . Rather, Appellant’s challenge is levied
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a similar omitted warning together with ambiguity as to the plea agreements recommended sentence constituted reversible error
B. holding that a waiver of right to appeal contained in a plea agreement is enforceable
C. holding that waiver of right to appeal sentence unless its was an upward departure barred appeal of sentence within guidelines range
D. holding that term any sentence within plea agreements waiver of right to appeal provision did not include restitution because of ambiguity
E. holding that a plea agreement with a waiver of direct appeal rights does not include a waiver of collateral remedies because the government could have included a waiver of collateral rights in the plea agreement and chose not to do so
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Read the following excerpt from a US court opinion:
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which vary from one facility to the next, from one tour to the next, and from one day to the next. Plaintiff herself has stated that the number of hours actually spent at the MPLSM per week vary considerably. Defendant is free to expand or contract the duties of an employee to suit its changing needs, but in so doing cannot alter plaintiff's right to seek protection under the Rehabilitation Act on the basis of her own job description. Numerous courts entertaining Rehabilitation Act claims have looked to position descriptions in assessing the essential functions of a job. See e.g., Treadwell, 707 F.2d at 476 n. 5; Prewitt, 662 F.2d at 298; Coleman v. Darden, 595 F.2d 533, 535 (10th Cir.1979), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Jasany, 33 FEP Cases at 1117 ; see also Daubert v. U.S. Postal Service, 733
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What is the most suitable continuation to the opinion? Your options are:
A. holding that employee who frequently missed work was not a qualified individual able to perform the essential functions of her job either with or without a reasonable accommodation as required to support disability discrimination and reasonable accommodation claims under the rehabilitation act
B. holding that an employer is not liable where it takes reasonable steps to provide an accommodation and the employee is responsible for a breakdown in the process of identifying a reasonable accommodation
C. holding that the actual amount of capital employed in the state by a foreign corporation was to be based on the property of the corporation that was within the state and that was used in business transacted within the state
D. holding that because plaintiff was not hired as a general postal employee to serve various functions within the post office but was employed specifically as the operator of a high speed letter sorting machine defendants duty to provide reasonable accommodation for his handicap was limited to adjustments within the job for which he was hired
E. holding that claimant failed to show that he was terminated solely because of handicap
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Read the following excerpt from a US court opinion:
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on by the Blasingame court have been overruled. Zamore v. Whitten, 395 A.2d 435 (Me.1978) was overturned by Bahre v. Pearl, 595 A.2d at 1035 and Kenney v. Porter, 557 S.W.2d 589 (Tex.Civ.App.1977) was overturned by Kenney v. Porter, 604 S.W.2d at 301-02. 21 .In his concurrence to the Court of Appeals’ opinion, Judge Susano asserted that he felt bound by the Blasingame decision, but urged the Supreme Court to “revisit Blasingame” because he felt that “the cases espousing the majority view are arguably the better-reasoned cases on the subject at hand.” 22 .It is not necessary for us to address the policy debate concerning whether closely-held stock is commonly dealt in on securities exchanges or markets or is commonly recognized as a medium for investment because the O 70, 374 (1980) ; Nelson v. Brostoff, 70 Or.App. 486, 689 P.2d
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What is the most suitable continuation to the opinion? Your options are:
A. holding failure to establish terms of an oral loan agreement precluded the existence of a breach of contract claim
B. holding that a federal habeas court may grant specific performance of a plea agreement in the face of evidence that the state has breached the terms of such an agreement
C. holding that the judicial admission exception did not apply to prove the existence of an oral agreement for the sale of stock where the defendant offered his deposition testimony acknowledging that the parties agreed to have a document transferring the stocks drafted by an attorney because the defendants references to the agreement were in terms of a tentative or incomplete agreement and because any admission of such a contract would necessarily have to include a statement of the price and quantity terms
D. holding in a suit to establish the existence of an oral agreement for the sale of stock that the judicial admission exception was not satisfied by the plaintiffs deposition testimony acknowledging that before negotiations had broken down the parties had reached an agreement with regard to price and quantity of stock and had drafted a document reflecting the agreement
E. holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only with the existence of the alleged oral contract
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Read the following excerpt from a US court opinion:
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to have been concerned that since Nix had “never before held office” and at the time of the complaint had taken few steps to establish his candidacy, LaRoque, 755 F.Supp.2d at 175, the risk he would change his mind was unacceptably high, thus raising the possibility that the court would end up “render[ing] an advisory opinion in ‘a case in which no injury would have occurred at all,’ ” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C.Cir.1994) (quoting Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130). But when plaintiffs filed their complaint, the election in which Nix planned to run was only nineteen months away, a far cry from the more than four-year gap that sank Senator Mitch McConnell’s standing in McConnell v. FEC, 540 U.S. 93, 225-26,124 S.Ct. 619,157 L.Ed.2d 491 (2003) , overruled on other grounds by Citizens United
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What is the most suitable continuation to the opinion? Your options are:
A. holding that senator mcconnell lacked standing to challenge a provision of the bipartisan campaign reform act of 2002 bcra that at earliest would have affected him in his 2008 reelection campaign
B. holding citizens lacked standing to challenge statute when all citizens affected in the same way
C. holding that incumbent congressmen subject to twoyear election cycles had standing to challenge the fecs implementation of certain provisions of bcra
D. holding that plaintiffs lacked standing to sue
E. holding that letters from the union during an election campaign containing arguably misleading statements did not affect the employees right to a free and fair choice
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Read the following excerpt from a US court opinion:
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broader, requirement of knowledge in other state statutes. The analogous section of the Oregon Blue Sky Law provided for the liability of every director, officer or agent of the seller, if such director, officer or agent with knowledge of the violation personally participated or aided in any way in making [the sale] * * *. [Emphasis added.] Ore.Rev.Stat. § 59.250(1). The Oregon Supreme Court, sitting in banc, held that “such knowledge is established by proof that the person knew the security was unregistered and it is not necessary, in addition, to prove that the person knew that the law required the security to be registered.” Spears v. Lawrence Securities, Inc., 239 Or. 583, 399 P.2d 348, 350 (1965) (in banc). See Lolkus v. Vander Wilt, 258 Iowa 1074, 141 N.W.2d 600, 604 (1966) . In their petition appellants Dayan and Bibi
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What is the most suitable continuation to the opinion? Your options are:
A. holding that 2073 was not inconsistent with the provision regarding the discharge of a teacher employed by public schools iowa code 27927
B. holding interpretation of workers compensation statutes not clearly vested by a provision of law in the discretion of the agency triggering review under iowa code section 17a1910c
C. holding that notwithstanding similar provision code of iowa 50223 1962 defendants could not because of their inexperience in the field of security sales claim immunity because of ignorance of the statutes
D. holding that proof of willfulness in criminal tax cases requires negating a defendants claim of ignorance of the law or a claim that because of a misunderstanding of the law he had a goodfaith belief that he was not violating the law
E. holding that ignorance or misunderstanding of the law would not toll the running of the statute of limitations
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Read the following excerpt from a US court opinion:
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this regard, in Benavidez v. City of Albuquerque, 101 F.3d 620-627 (10th Cir.1996), we spoke as follows: When the pre-termination process offers little or no opportunity for the employee to present his side of the case, the procedures in the post-termination hearing become much more important. Such a post-termination hearing represents the only meaningful opportunity the employee has to challenge the employer’s action, and requiring a dismissed employee to prove in this context that he was terminated without just cause may increase the risk of an erroneous deprivation. It is often difficult to prove a negative, and where the pre-termination process has been minimal, the employee’s fate may depend entirely upon the post-termination hearing. Cf. Lavine, 424 U.S. at 585, 96 S.Ct. at 1016 ; Speiser v. Randall, 357 U.S. 513, 525, 78
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the burden of proof lies on the party asserting the protection of the work product doctrine
B. recognizing that wjhere the burden of proof lies on a given issue is of course rarely without consequence and frequently may be dispositive
C. holding that section 523a2c shifts the burden of production and not the burden of proof on the issue of intent only
D. recognizing burden
E. holding that the burden of proof is on the claimant
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Read the following excerpt from a US court opinion:
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a blood specimen to police after they properly secured that specimen from appellee for medical purposes. Where a non-governmental party has “a legitimate independent motivation” for engaging in the challenged conduct, the Fourth Amendment does not apply. See United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990) (concluding that for the conduct of a party to be subject to the Fourth Amendment that party must have acted with the intent to assist the government in its investigations for administrative purposes and not for an independent purpose). Consequently, evidence obtained by private parties and turned over to the police is not obtained in violation of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); Attson, 900 F.2d at 1433 . There is no evidence before this Court that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a physician employed by the government who drew a blood sample from the defendant for medical not investigatory purposes did not conduct a search under the fourth amendment
B. holding that canine sniff not a search under the fourth amendment
C. holding that impoundment of a vehicle can be a seizure under the fourth amendment
D. holding that doctor who drew blood for purely medical reasons did not possess the requisite intent to engage in a search or seizure under the fourth amendment
E. holding seizure of evidence in plain view reasonable under fourth amendment
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Read the following excerpt from a US court opinion:
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as a basis for a RICO violation, those allegations must meet a heightened sentation to whom and the general content of the misrepresentation. See Saporito, 843 F.2d at 675; Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658-59 (3d Cir.1998); Klein v. General Nutrition Companies, Inc., 186 F.3d 338, 345 (3d Cir.1999); see also First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 178 (2nd Cir.2004) (requiring RICO violation based on bankruptcy fraud to be pleaded with heightened particularity); see also Lum, supra, (requiring mail and wire fraud-based RICO claim to be subject to Rule 9(b) pleading standard). In addition to mail and wire fraud, the Amended Complaint also pleads the predicate acts of money Coast Ingredients, Inc., 2004 WL 941815 *19 (W.D.N.Y.) ; and see Perlman v. Zell, 938 F.Supp. 1327,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the fact that federal rule of civil procedure 9b requires a heightened pleading standard for some claims but not for a section 1983 claim against a municipality means that the rules do not require a heightened pleading standard for such a claim
B. holding that claim of trading in counterfeit goods need only meet rule 8a2 notice pleading standard
C. recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard
D. holding where party fails to challenge specificity of pleading it waives right to claim that pleading fails to meet legal requirements
E. holding that a constructive fraud count need not comply with rule 9s heightened pleading standard
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Read the following excerpt from a US court opinion:
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to consent in sexual battery cases. See Engle v. State, 290 Ga. App. 396, 398 (2) (659 SE2d 795) (2008); Carson v. State, 259 Ga. App. 21, 24 (5) (b) (576 SE2d 12) (2002); Hendrix v. State, 230 Ga. App. 604, 606 (3) (497 SE2d 236) (1997); see also Haynes v. State, 302 Ga. App. 296, 302 (3), n. 4 (690 SE2d 925) (2010) (applying age of consent to hold that the state is “not required to prove lack of consent to establish sexual battery”). Our cases in that regard are consistent with the principle, expressed by our Supreme Court in connection with a case involving rape, “that the element of‘against her will’was automatically shown by [the minor victim’s] age.” Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977). See also Lee v. State, 300 Ga. App. 214, 216 (1) (684 SE2d 348) (2009) (citations omitted; emphasis supplied);
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What is the most suitable continuation to the opinion? Your options are:
A. holding that battery is an inherently included offense of aggravated battery
B. holding that consent is not a defense to the crime of aggravated battery even though the defendant alleged that the victim procured the weapon and invited the defendant to shoot him because the public has a stronger and overriding interest in preventing and prohibiting such acts
C. holding that the offense of sexual battery requires the state prove the victims lack of consent regardless of the victims age and charge the jury on the same
D. holding that the defendant could be convicted of sexual battery a lesser crime not included in the offense for which he was indicted where the defendant requested that sexual battery be submitted to the jury
E. holding state could prove aggravated sexual battery by showing among other things that the victim did not consent or lacked the capacity to consent in case where defendant father argued he had been addressing minor daughters medical and hygiene needs
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Read the following excerpt from a US court opinion:
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that she made specific arguments outlining her objections to the jury instructions at the charge conference; however, arguments made at a charge conference do not preserve a subsequent challenge to a jury instruction on appeal. Rather, an objection “must be made at the close of the court’s initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error.... ” McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859 (Ala.1988). The objection made by McDonald at the close of the trial court’s instructions to the jury was not specific and accordingly fails to meet the requirements of Rule 51, Ala. R. Civ. P., for preserving any alleged error in jury instructions for appellate review. See also Burnett v. Martin, 405 So.2d 23, 27 (Ala.1981) . Because the alleged error was not preserved
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an exception to the charges having to do with contributory negligence charges two three and four was insufficient to preserve issue for appeal
B. holding that two general objections were insufficient to properly preserve the issue
C. recognizing that conclusory statements do not preserve an issue for appeal
D. holding that the speedy trial clock for state charges did not begin to run when the defendant was taken into custody by federal authorities on federal charges but rather when he was indicted for the state charges
E. holding defendant failed to preserve burden of proof issue for appeal
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Read the following excerpt from a US court opinion:
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that even assuming, arguendo, that defendants’ failure to oppose Keosay’s reduced bail bond increased the danger of significant harm to Ammy, the defendants’ conduct, when viewed in total, was not conscience shocking such as to constitute a violation of substantive due process. Finally, the court concludes that the County defendants are entitled to assert prosecutorial immunity from plaintiff Sophapmysay’s lawsuit. Therefore, the County defendants’ and defendant Driebilbus’s respective motions for summary judgment are granted. IT IS SO ORDERED. 1 . Although the complaint refers to defendant Lori Limits, "Limits’s” actual name is Lori Limoges. Therefore, the court will use Limoges actual name in this opinion but will continue to use "Lori Limits” in the caption to t (1st Cir.) , cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93
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What is the most suitable continuation to the opinion? Your options are:
A. holding that private attorney who acted as courtappointed counsel for child in state juvenile delinquency proceedings was not acting under color of state law
B. holding that private doctor under contract with a state prison to provide medical care to prisoners acted under color of state law when he treated inmate
C. holding private actors are not acting under the color of state law for the purposes of section 1983 liability
D. 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
E. holding that courtappointed guardian ad litem for child in child custody dispute did not act under color of state law
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Read the following excerpt from a US court opinion:
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of a concealed firearm on a prior instance is relevant to a charge of possession of a firearm in his car while he sought to transport drugs.... Introduction of a prior conviction for carrying a concealed weapon helped the government establish that Gomez was aware of the dangers of and law relating to concealed weapons and rebut Gomez’s claim that the gun was for an innocent purpose and its presence was mere accident or coincidence. The district court did not abuse its discretion in allowing such evidence. 927 F.2d 1530, 1534 (11th Cir.1991) (emphasis added); see also United States v. Coleman, — F.3d - (3d Cir.2003) (“Coleman put at issue during trial whether he had knowledge of, and thus possessed, the shotgun and narcotics found in the apartment in which he resi (2d Cir.1983) ; United States v. Beechum, 582 F.2d 898, 913
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the introduction of evidence of previous instances in which the defendant had been present in an automobile with a shotgun were admissible under fed rules of evid 404b to show that his presence in the car with the shotgun on the occasion in question was intentional and not a mistake or accident
B. holding that the sound of a television on the inside of the house and the presence of a car in the driveway were sufficient to form the basis of the reasonable belief that the suspect was in the home
C. holding that rule 404b evidence is admissible in rebuttal
D. holding that evidence of prior criminal misconduct is admissible under rule 404b to prove motive opportunity intent preparation plan knowledge identity or absence of mistake or accident
E. holding that probable cause was clearly present justifying the taking of a blood sample without the defendants consent when it was established that the defendant was involved in an automobile accident and the police noticed liquor on his breath at the scene of the accident and at the hospital
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Read the following excerpt from a US court opinion:
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. See 29 C.F.R. part 1630, § 1630.1 (1992). 20 . See 29 C.F.R. § 1630.2 (1992). 21 . 29 C.F.R. Part 1630, Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.1(a). 22 . Id. at § 1630.2(j). 23 . See infra Part 11(A)(2). 24 . See 29 U.S.C.S. § 706(8)(B)(iii) (1990). 25 . 794 F.2d 931 (4th Cir.1986). 26 . Id. at 935. 27 . 755 F.2d 1244, 1249-50 (6th Cir.1985). 28 . Id. at 1249; see also Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir.1992) (applying these factors in affirming summary judgment against plaintiff on grounds that he failed to establish that he was regarded as handicapped). 29 . 755 F.2d at 1249 n. 3. Such a "narrow range of jobs" need not be numerically insignificant. See, Daley v. Koch, 892 F.2d 212, 215 (2d Cir.1989) . This court takes judicial notice that New
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing sleeping as major life activity
B. holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity
C. holding that disqualification from an especially traumatic occupation does not constitute a substantial limitation on the major life activity of working
D. holding that a perceived impairment that prevented the plaintiff from successfully applying for a position as a police officer for the city of new york did not constitute a substantial limitation of a major life activity
E. holding that reproduction is not a major life activity
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Read the following excerpt from a US court opinion:
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2757. Circuit courts have consistently applied this principle in sustaining plans designed to redress past discrimination’s lingering effects. See, e.g., Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752, 758 (9th Cir.1984) (“It is sufficient for the employer to show a conspicuous imbalance in its workforce” to justify a race-conscious remedy.), cert. granted, — U.S. -, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986); Bushey v. New York State Civil Service Commission, 733 F.2d 220, 228 (2d Cir.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985) (“[A] prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact” satisfies the remedial predicate.); Van Aken v. Young, 750 F.2d 43 (6th Cir.1984) ; Janowiak v. Corporate City of South Bend, 750
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What is the most suitable continuation to the opinion? Your options are:
A. holding that city may remedy imbalance in the composition of the fire department created by traditional segregative practices
B. holding that the city of denver police department is not a suable entity
C. holding that a volunteer fire department which was a nonprofit corporation was an agency of a political subdivision for the purposes of the flsa
D. holding no municipal liability in light of city administrators ultimate authority to approve or rescind departmental personnel decisions despite evidence that the fire chief was in charge of establishing rules regula tions policies and procedures for the operation of the fire department
E. holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures
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Read the following excerpt from a US court opinion:
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had discriminated against him as a result of a handicap when it terminated him in March 1995. The Commission took no action during the next 180 days. As he was entitled to do, Mr. Ross withdrew this complaint and the Commission issued a notice of dismissal on December 11, 1996. Mr. Ross did not file his lawsuit against Jim Adams Ford until July 21, 2000. His complaint contained two counts. In count II, he alleged that he had been terminated in retaliation for filing a workers’ compensation claim. See § 440.205, Fla. Stat. (1993). The trial court dismissed this count because it was filed more than four years after Mr. Ross’s termination and was barred by the statute of limitations provided for statutory claims in section 95.11(8)(f). See Scott v. Otis Elevator, 524 So.2d 642 (Fla.1988) . Mr. Ross does not challenge this ruling on
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What is the most suitable continuation to the opinion? Your options are:
A. holding that for purposes of determining the appropriate limitations period section 14a actions are treated identically to actions under section 10b
B. holding fouryear period for statutory actions applies to section 440205 claims
C. holding fouryear statute of limitations in section 95113f applies to claims under florida civil rights act when commission on human relations fails to make reasonable cause determination within 180 days
D. recognizing a fouryear statute of limitation for fraud claims
E. holding that either a fouryear or a twoyear limitations period applies to claims under the idea in ohio for tuition reimbursement either way the claims were timebarred
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Read the following excerpt from a US court opinion:
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find the design of the card-holding container nonfunctional. IV. CONCLUSION For the foregoing reasons, Defendants are entitled to summary judgment as against Continental’s claims for trade dress infringement and unfair competition. 1 . On July 7, 2000 this Court issued an order granting Defendants’ motion for summary judgment and entering final judgment in favor of Defendants on all claims. (See Memorandum Opinion and Order re: Trade Dress Claims.) This memorandum incorporates several minor editorial changes and corrections. Because more than 10 days have passed since entry of final judgment, this memorandum cannot effect any change in the judgment or extend the time to appeal. See Fed.R.Civ.P. 59(d)-(e); Burnam v. Amoco Container Co., 738 F.2d 1230, 1231 (11th Cir.1984) (per curiam) ; Scott v. Younger, 739 F.2d 1464, 1467 (9th
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What is the most suitable continuation to the opinion? Your options are:
A. holding in a case where the plaintiff had argued that the district court lacked jurisdiction to amend its judgment more than ten days after entry because that is the time limit under federal rule of civil procedure 59 that a district court can amend its judgment because of mistake or inadvertence months after judgment has been entered pursuant to rule 60b of the federal rules of civil procedure
B. holding that when a court sua sponte converts a motion to dismiss into a motion for summary judgment the court must give at least 10 days notice to the nonmovant
C. holding that 10 day period under rule 59 is jurisdictional and cannot be waived by the district court
D. holding the district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff who is represented by counsel never filed a motion to amend nor requested leave to amend before the district court
E. holding that district court has limited authority under rule 59 to alter or amend judgment sua sponte so long as court acts within 10 days of entry of judgment
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Read the following excerpt from a US court opinion:
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accord those opinions little weight. For the reasons set forth below, the evidence the ALJ cites as contradicting the opinions of Santiago’s treating physicians is not substantial. For example, the ALJ completely disregarded Nunez’s opinion that Santiago’s depression met the B Criteria on the ground that Nunez expressed his view by signing a report that the ALJ believes was written by Malinowska. (Tr. 23.) However, even if the ALJ’s handwriting analysis is accurate and the report was written by Malinowska, there is no reason to believe that the report Nunez signed does not reflect his own view. Nor is there any legal principle which states that a doctor must personally write out a report that he signs for it to be afforded weight. See Ruiz v. Apfel, 98 F.Supp.2d 200, 209 (D.Conn.1999) . Since Nunez signed his name to the report and
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a question of fact existed regarding whether the hospital held the doctor out as its agent if the hospital provided the doctor without explicitly informing the patient that the doctor was not its employee
B. holding that alj must give weight to a report signed by doctor even though it was prepared by someone else
C. holding that a summary report prepared by police officers for the solicitors use in prosecuting the case was not subject to discovery
D. holding that where a treating doctor is called to give an expert opinion on the standard of care that doctor is properly labeled an expert witness and must be disclosed to the other party along with other experts
E. holding expert report requirement fulfilled in claim against nurse by providing expert report of nurse as to standard of care and expert report of medical doctor as to causation
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Read the following excerpt from a US court opinion:
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entitle him to credit against his sentence, and which is a factor affecting security level and parole decisions. Generally speaking, inmates have no legally protected interest in remaining in a particular location of confinement. Meachum v. Fano, 427 U.S. 215, 226-27, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Although plaintiff argues that the ability to take and complete classes is a protected liberty interest, he has not pointed to a state statute creating such an interest. See id.; Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, the potential effect of preventing plaintiff from taking classes on the duration of his sentence is “too attenuated to invoke the procedural guarantees of the Due Process Clause.” Sandin, 515 U .S. at 487, 115 S.Ct. 2293 . VIII Challenge of the seizure of plaintiffs
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What is the most suitable continuation to the opinion? Your options are:
A. holding that even though the complaint was dismissed without prejudice as a sanction for misconduct and even though the order of dismissal was therefore not an adjudication on the merits the defendants were nevertheless properly considered the prevailing party for purposes of attorneys fees
B. holding that a sentence was based on a mandatory statutory minimum sentence even though it was lowered under another statute
C. holding that sentence was erroneous but not void where sentence of life imprisonment without parole was imposed for first degree murder under unconstitutional penalty statute
D. holding that effect of misconduct record on duration of sentence was too attenuated even though it was a relevant consideration for parole
E. holding that the state courts decision to uphold the parole boards denial of parole was an unreasonable determination of the facts in light of the evidence
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Read the following excerpt from a US court opinion:
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Aristides Omar Mantilla petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal. Substantial evidence supports the conclusion of the Immigration Judge (“IJ”) that Mantilla failed to establish eligibility for asylum. Mantilla did not establish a connection between threats made against his family and one of the five statutory grounds for asylum. See Cruz-Navarro v. INS, 232 F.3d 1024, 1028-30 (9th Cir.2000) . Mantilla also has presented no evidence that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that persecution on account of a protected category must be because of that category
B. holding that persecution based on being a current member of the military national police force or us embassy guard does not qualify as persecution on a protected ground
C. holding that persecution by militants for purpose of recruitment does not establish a nexus to a protected ground
D. holding that dangers arising from police work do not support a claim of persecution on account of a protected ground
E. holding that petitioners who apply for withholding of removal must establish that a statutorily protected ground was a reason for their persecution
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Read the following excerpt from a US court opinion:
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would not shock the conscience. Accordingly, we hold that the Rooker-Feldman doctrine does not bar the plaintiffs’ substantive due process theory. VI. The defendants finally argue that since the Rooker-Feldman doctrine divests federal courts of jurisdiction to order relief that prevents the enforcement of an order previously entered by a state court, Rooker-Feldman precludes the plaintiffs’ attempt to obtain an injunction against the closure of Desi’s and further harassment by the defendants. We disagree. The plaintiffs’ request for an injunction against the closure of Desi’s pursuant to the state court’s order is moot, as the state court’s injunction has expired and Desi’s has resumed operations. See, e.g., Orion Sales v. Emerson Radio Corp., 148 F.3d 840, 842 (7th Cir.1998) ; Hodges v. Schlinkert Sports Assocs., 89 F.3d
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What is the most suitable continuation to the opinion? Your options are:
A. holding an appeal of injunction moot where the injunction expired three months before the appellate court heard arguments in the case
B. holding that plaintiffs were not entitled to a preliminary injunction
C. holding that when the district court applies the wrong preliminary injunction standard this court may review the record to determine whether the injunction is justified
D. holding that where a noncompetition clause in a contract had expired by its own terms the plaintiffs appeal from the district courts denial of the plaintiffs request for a preliminary injunction enforcing the clause was moot
E. holding that where a district courts preliminary injunction preventing the appellant from terminating its agreement with the defendant had expired the appellants appeal of the district courts decision to grant that injunction was moot
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Read the following excerpt from a US court opinion:
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“injuries caused by defects existing on their property and . . . the law does not regard natural accumulation of snow and ice as an actionable property defect.” Id. at 79. Liability may attach, however, “where some act or failure to act has changed the condition of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard.” Sullivan, 416 Mass, at 827, citing Aylward, 412 Mass, at 80, n.3. In this regard, courts in the Commonwealth have typically assessed liability to defendants in three distinct areas: (1) where the plaintiff sustained injuries from a fall on an unnatural accumulation of ice or snow that formed as a result of water flowing from a defective roof, see Baldassari v. Produce Terminal Realty Corp., 361 Mass. 738, 744 (1972) ; (2) where the plaintiff sustained injuries
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the juiy would have been warranted in finding that snow melted and flowed through holes in the roof which the defendant negligently had failed to repair and thus created an unnatural accumulation of ice resulting in the plaintiffs fall
B. holding that the trial court did not abuse its discretion in refusing to allow the withdrawal of the juiy trial waiver
C. holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims which alleges violation of an implied covenant of good faith and fair dealing seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if illinois law governs the contract it is no jump at all to find that any efforts to engraft implied terms into the agreement should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j r elecs inc v business decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care and were otherwise negligent in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health soc servs div of family youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac 147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac 2 see also id 19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac 2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac 10 see also id 114 in particular plaintiffs allege that defendant likely ignored ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id 11 see also id 111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id 12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id 8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id 19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014 liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether and what type of privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts 5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to buchalter in his role as advisor in 2007 sac 18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id 141 plaintiffs allege that the higher number would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id 18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac 16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac 138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id 56 plaintiffs also allege that defendant did not inform the trustee or the advisors of its failure to properly vet ssr id 143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac 113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac 57 agl life assurance company insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac 4 see also id 60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability is limited to a loss suffered by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts 5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice involves a professionals breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply footnote omitted goodman v goldman sachs co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac 162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs who were sophisticated investors and were represented by counsel knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois at least the great bulk of the consideration paid by the debtor to the creditors the essence of this claim for unjust enrichment was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which is subject to minnesota law because of the choice of law provision contained within the relevant agreement the parties common law counterclaims including for unjust enrichment are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law the existence of a valid and enforceable written contract ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a valid and enforceable written contract governing the subject matter beth isr med ctr v horizon blue cross blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue or where one party wrongfully has prevented the other from performing the contract first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac 76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler kreindler llp 814 fsupp2d 220 225 edny2011 choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10
D. holding that the mere presence of ice snow or frost on a sloped rooftop generally does not create an unreasonably dangerous condition
E. holding that the court had an adequate record to grant the defendants motion for summary judgment because the relevant evidence would have been in plaintiffs possession
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should be denied as to the Plaintiffs’ common law tort claims for negligent hiring and supervision (Count 3), negligent infliction of emotional distress (Count' 6), negligence (Count 7), and loss of services (Count 8). B. Negligent infliction of emotional distress. The Defendants argue that Mrs. Reiber’s claim for negligent infliction of emotional distress fails for another reason also. They argue that “‘[t]o maintain a claim for negligent infliction of emotional distress, a plaintiff must show that she suffered a .direct physical impact.’ Neal, [ 2005 WL 1939955 at *10] (citing Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2005) (stating that ‘[a]s modified, the [impact] rule still requires physical impact’); Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1263-64 (Ind.Ct.App. 2002) ; Ketchmark v. N. Ind. Pub. Serv. Co., 818
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing torts of intentional and negligent infliction of emotional distress
B. holding that act did not bar intentional infliction of emotional distress claim
C. holding that under south dakota law compensation for negligent infliction of emotional distress requires manifestation of physical symptoms and intentional infliction of emotional distress requires an extreme disabling emotional response
D. holding that employee could not state a claim for negligent infliction of emotional distress under fela without a showing of physical impact
E. holding that in being discharged employee did not sustain the direct physical impact required to maintain an action for negligent infliction of emotional distress
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B. Validity of Petitioner’s Marriage Under New York Law Petitioner concedes that his marriage ceremony “was not done according to New York laws [sic ].” (Pet. Mem. at 4.) Nonetheless, Petitioner maintains that his marriage is valid under New York law, because: 1) the marriage was authorized under Polish law, and, therefore, should be recognizable in all jurisdictions (Pet.’s Mem. at 3); and 2) “there is no strict requirement for how marriage should be performed.” (Id. at 9.) Petitioner makes two arguments in support of his position that a marriage authorized under Polish law is valid in New York State. First, Petitioner argues that his consular marriage should be recognized under New York law, because “New York State has a history of recognizing judgments rendered in fo .Ct. 1944) . Second, Petitioner relies on Article 25(c) of
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What is the most suitable continuation to the opinion? Your options are:
A. holding state buy american statute unconstitutional because it interfered with federal foreign affairs power emphasizing its effect on foreign commerce
B. holding that a ceremonial marriage performed under the laws of a foreign power by a foreign consular officer on united states territory was invalid because it did not comply with the laws of new york state
C. holding that a divorce granted at a foreign consulate in new york was not valid for immigration purposes because it did not comply with new york law
D. holding that in the event that parties are from different states and the subject matter is national in scope and where the contract states it shall be deemed to be made under the laws of the state of new york and for all purposes construed in accordance with laws of said state new york law applies as the parties choice of law
E. holding that statements by an american consular officer that petitioners mother could not return to the united states because of her pregnant condition did not constitute affirmative misconduct sufficient to estop the government from relying on petitioners foreign birth to deny citizenship
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consider both separately. With respect to the Peace Child Care Center, Inc., the determination to be made is whether it was operated primarily for religious purposes and whether it was operated, supervised, controlled, or principally supported by the Church. The record reflects no disagreement that the now defunct child care center was primarily subsidized by the Church. The only step remaining is determining if the child care center was operated primarily for religious purposes. The evidence on this issue is not disputed. The Church’s bookkeeper testified that the function of the child care center was to take care of children and provide an outreach for the church. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 784-85, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981) . Likewise, Co-manic’s testimony that she
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What is the most suitable continuation to the opinion? Your options are:
A. holding that disaffiliated church had de facto dissolved when last vote of its full membership was to dissolve and to transfer assets to mother church
B. holding the federal unemployment tax act section exempting service performed in employ of church after which florida molded its unemployment law was meant to apply to schools that have no separate legal existence from the church and therefore employees working within such schools are in employ of the church
C. holding that first amendment barred child victim of sexual abuse by priest from bringing breach of fiduciary duty claim against priest church official and church
D. holding that a church was entitled to employ only members of its faith
E. holding that members of a church congregation lacked sufficient interest to support intervention in an action by the church itself challenging the designation of the church as a landmark
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valid[.]” (citation omitted)). In Georgia v. Randolph, the Supreme Court reiterated a narrow exception to this rule, holding that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” 547 U.S. at 122-23, 126 S.Ct. 1515; see also Fernandez, 134 S.Ct. at 1134 (emphasizing Randolph does not extend to cases where the objector is not present and objecting). Put another way, the Supreme Court has held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120, 126 S.Ct. 1515 (footnote omitted) . Subsequent courts have applied Randolph in
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What is the most suitable continuation to the opinion? Your options are:
A. holding that each occupant of a car has a right to challenge the propriety of a traffic stop under the fourth amendment
B. holding police incident to arrest of occupant of automobile may search entire passenger compartment of vehicle
C. holding that a warrantless search of a shared dwelling was reasonable as to one occupant who gave consent but not to another who did not
D. holding search invalid under the fourth amendment when a physicallypresent occupant expressly objected to a search notwithstanding the consent of a fellow occupant
E. holding defendants girlfriend had authority to consent to search as a joint occupant
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until peremptory challenges are exercised. 22 . In McCrory v. Henderson, 82 F.3d 1243 (2d Cir.1996), the court observed: If ... a Batson objection may be raised after the jury has been sworn and trial has begun, there can be no remedy short of aborting the trial. This would permit the defendant to manipulate the system to the extreme prejudice of the prosecution and give the defendant a strong inducement to delay raising the objection until trial is underway. As the trial judge is unlikely for reasons of judicial economy to abort the. trial, the defendant may have the opportunity to test his fortunes with the first jury, preserving the opportunity for a mistrial and a second round in the event of a conviction. See United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir. [1990]) , cert. denied, 498 U.S. 877, 111 S.Ct. 206,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that batson challenge raised for the first time after trial was untimely in part because only remedy after trial is vacating the conviction
B. holding that an issue not raised in the trial court cannot be raised for the first time on appeal
C. holding batson challenge untimely because objection made after all jurors were sworn
D. holding that a claim not raised before the trial court will not be considered for the first time on appeal
E. holding that claims raised by appellant for first time in motion for new trial were untimely and therefore waived
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cannot prevail. The second temporal issue relates to when the mold and bacteria came into existence. There is no evidence whatsoever, undisputed or otherwise, of when the mold and mildew came into existence. This shortfall in the evidence that Panorama put forth to support its motion for summary judgment impacts all counts of the complaint, but especially the count for negligence. The Schornbergs in their complaint state that they were advised in June 2003 that the water intrusion they had detected a month earlier had caused growth of mold and bacteria. However, the complaint is not evidence. Straub v. Village of Wellington, 941 So.2d 1269 (Fla. 4th DCA 2006) (stating that a complaint is not admissible to prove or disprove a fact in issue). Evidence that the mold and bacteria w A 1999) ; Floyd v. Homes Beautiful Constr. Co., 710
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What is the most suitable continuation to the opinion? Your options are:
A. holding that despite release language discharging defendant from claims upon or by reason of any matter cause or thing whatsoever from the beginning of the world to the day of these presents release did not bar any claims accruing after the date of execution
B. holding that release which barred all claims from the beginning of the world to the day of the date of these presents included all claims which had matured at the time of its execution
C. holding that a release of such claims or other matters arising from the beginning of time to the date of execution of this agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreements execution
D. holding that release which barred all claims from the beginning of the world to the day of these presents included claims which the releasor had or could have had against the releasee up to the date of its execution
E. holding that all inclusive language from the beginning of the world to the days present barred all claims arising prior to releases execution
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that the Supreme Court has recognized as giving rise to standing if allegedly infringed. West Virginia’s claimed injury does not involve the State’s interest in the enforcement of its own laws. See Snapp, 458 U.S. at 601, 102 S.Ct. 3260 (identifying as a sovereign interest “the power to create and enforce a legal code, both civil and criminal”). It does not involve a demand that West Virginia’s sovereignty be recognized by another state.' See id. (identifying as a sovereign interest “the demand for recognition from other sovereigns”). It does not involve the State’s real property, see E.P.A., 549 U.S. at 519, 127 S.Ct. 1438 (recognizing “Massachusetts’ well-founded desire to preserve its sovereign territory”); its public fisc, see Nat’l Fed’n of Indep. Small Bus., 132 S.Ct. at 2604-05 ; or another form of proprietary interest, see
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the threatened loss of over 10 percent of a states overall budget is economic dragooning that leaves the states with no real option but to acquiesce in a federal demand
B. holding that the sentence in article ii section 16 constitution of montana that guarantees an employee the right of full legal redress against third parties is mandatory and self executing and leaves no room for erosion based on what federal courts or the courts of other states would do pursuant to federal laws or the laws of other states
C. holding that where a state voluntarily chooses to submit to a federal forum principles of comity do not demand that the federal court force the case back into the states own system
D. holding that the land under navigable waters was not granted by the constitution to the united states but was reserved to the states respectively and that new states have the same rights jurisdiction and sovereignty over the soil under navigable water as the original states
E. recognizing federal constitutional claim against the united states
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Read the following excerpt from a US court opinion:
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Pennington, judge of the 38th Judicial District Court, Uvalde County, Texas. 5 . The trial court also denied the District’s motion to sever the partial summary judgment granted by the trial court. Because the trial court denied the severance motion, the court's summary judgment ruling is not at issue in this appeal. 6 . (emphasis added). The fact that the Board approved the permit applications upon the condition that the District’s General Manager confirm each applicant’s installation of a water well flow meter, compliance with the Rules of the Kinney County Groundwater Conservation District, and payment of all fees due and owing to the District does not diminish or affect the definitiveness of the District’s order in this instance. See Tex.-New Mexico Power Co., 806 S.W.2d at 233 . 7 . The District argues the cases cited in
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that conditions placed on the issuance of a permit do not necessarily diminish or eliminate the definitiveness of the order approving the permit
B. recognizing the importance of a determination on the merits with respect to the issuance of a permanent injunction
C. holding that issuance of an order to show cause satisfied this requirement
D. holding that once district court entered order approving the settlement of class claims it could not alter the class in the absence of egregious error
E. holding the acquisition of vested rights requires the issuance of a permit and some substantial expenditure obligation or change in relation to the land
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Read the following excerpt from a US court opinion:
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an insurer to defend when there may be no ultimate duty to indemnify. This is true because the duty to defend is broader than the duty to indemnify. We are satisfied that the interests of justice and the conservation of scarce judicial resources support the course we have chosen.” Merrimack Mut. Fire Ins. Co. v. Brennan, 534 A.2d 353, 354 (Me.1987) (citation omitted). We therefore conclude that the hardship to the insurer is outweighed by the competing interests of preventing duplicative litigation and sparing insureds the costs of defending a collateral action brought by the insurer to determine its obligations under the insurance contract before the nat parties’ stipulation of fact to determine duties to defend and indemnify); cf. Bowen v. Hanover Ins. Co., 599 A.2d 1150 (Me.1991) . In Dolley, the insurer filed its declaratory
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What is the most suitable continuation to the opinion? Your options are:
A. holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer
B. holding that the parties stipulation of dismissal with prejudice was a final judgment
C. holding that insurer had no duly to indemnify insured in view of the parties stipulation of fact
D. holding that under new york law for an insurer to have no duty to defend the court must find as a matter of law that based on the pleadings there was no possible factual or legal basis on which the insurer might eventually be held obligated to indemnify the insured
E. holding that where all necessary parties including the insurer the insured and the third party claimant had stipulated to the material facts in the dispute a declaratory judgment action on the insurers duty to indemnify could proceed
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Read the following excerpt from a US court opinion:
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challenge the computation of the compensatory damages. 7 . Although some of these events did take place prior to the plan's confirmation, the claims are not barred by res judicata because the breaches of fiduciary duly did not occur until well afterward. The pre-confirmation events are looked at only for background, pattern of activity, and for evidence of motive. See n.4, supra. 8 . We also find that the punitive damages were proportional to the compensatory damages, less than a 2 to 1 ratio, and that there is therefore no need to discuss a possible conflict between Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (suggesting that punitive damages disproportionate to compensatory damages may violate due process), and Kirkbride, 555 A.2d at 803 . See Tunis Bros. Co. v. Ford Motor Co., 952
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What is the most suitable continuation to the opinion? Your options are:
A. holding that punitive damages do not need to be proportional to compensatory damages
B. holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages
C. holding that when compensatory damages are nominal a much higher ratio of punitive damages to compensatory damages can be contemplated
D. holding compensatory and punitive damages constitute legal remedies
E. holding that punitive damages are available in an intentional discrimination action even if the jury does not assess compensatory damages
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Read the following excerpt from a US court opinion:
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secured to the defendant’s dock and had the effect of extending the dock’s work area. The barge was moved infrequently, primarily to launch the newly constructed concrete barges. This Court, relying on the Supreme Court’s decision in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887), concluded that the barge was a construction platform not designed for the transportation of passengers, cargo, or equipment across navigable waters, and that “the status of the craft [was] governed by the proposition that, ‘as a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock.’ ” Id. at 1002 (citations omitted). The barge in question was merely an extension of the dock. See also Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir.1981) ; Leonard v. Exxon Corp., 581 F.2d 522 (5th
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What is the most suitable continuation to the opinion? Your options are:
A. holding that floating barge moored to shore remaining in same place for approximately seven years and used as work platform to clean and strip cargo and gas from barges was not a vessel
B. holding that barge moored to the shore and used as a stationary work platform to clean other barges was not a vessel
C. holding that two barges fastened together moored to bank of river and used to weld pipeline together were not vessels
D. holding a bank liable where a bank officer held checks that were intended to pay the irs for withheld taxes
E. holding that an africanamerican investment advisor who accompanied two clients into a bank could assert a 51 claim alleging discrimination against the bank even though his clients were the actual customers of the bank
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Read the following excerpt from a US court opinion:
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that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit.” Brandon v. Board of Ed. of Guilderland Cent. School District, 635 F.2d 971, 978 (2d Cir.1980); see Roemer v. Board of Public Works, 426 U.S. 736, 750, 764, 96 S.Ct. 2337, 2346, 2353, 49 L.Ed.2d 179 (1976). Here, since defendants display Martin’s painting in a high school auditorium, students view the painting each time they enter the auditorium. Further, defendant School District uses the auditorium for numerous events at which elementary students are required to attend. Susan Affidavit, Doc. 7 at ¶ 4. Accordingly, this court’s scrutiny of the painting and its placement must be all the more discriminating. See Grand Rapids, 473 U.S. at 390, 105 S.Ct. at 3226 . Taking into account the significant message
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What is the most suitable continuation to the opinion? Your options are:
A. holding that when a defendant raises a claim of ineffective assistance of counsel the trial judge must conduct an inquiry into the claim
B. holding that the inquiry into endorsement test must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years
C. recognizing parents fundamental liberty interest in the care custody and management of their children
D. recognizing fundamental right of parents to care for their children
E. holding that natural parents have a fundamental liberty interest in the care custody and management of their children
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Read the following excerpt from a US court opinion:
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Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69, 75 (1980); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982); Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App.1976); Beck v. Sheppard, 566 S.W.2d 569 (Tex.1978); Rhiness v. Dansie, 24 Utah 2d 375, 472 P.2d 428 (1970); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950); Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961). The rules regarding negligence in such situations are the same as in ordinary negligence 190 Cal.Rptr. 729 (App.Dep’t Super.Ct.1983) ; Jackson v. Hardy, 70 Cal.App.2d 6, 160 P.2d
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What is the most suitable continuation to the opinion? Your options are:
A. holding that nominal damages award was appropriate where the evidence supporting the damages was speculative
B. holding that plaintiffs own testimony that he was embarrassed and humiliated by defendants conduct was sufficient to support compensatory damages award
C. holding that when compensatory damages are nominal a much higher ratio of punitive damages to compensatory damages can be contemplated
D. holding that the plaintiffs evidence that the ranchers cows had escaped several times over the past 10 years constituted sufficient evidence for jury to properly find simple negligence and to award compensatory damages where the plaintiffs sustained damages when their car collided with a cow owned by the defendant
E. holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages
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Read the following excerpt from a US court opinion:
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EmCare, which resulted in Scott’s firing. Also similar to Scott, the plaintiff in Butler used the same equipment as the manufacturer’s employees and produced the goods that were the manufacturer’s core business. See id. But there are important differences between the two cases. For example, the manufacturer’s employees supervised the Butler plaintiff on the factory floor. See id. Here, Scott was supervised by an EmCare employee. Further, the Butler plaintiff performed the same tasks as the manufacturer’s employees, whereas all hospitalists like Scott were EmCare employees. Given these differences, Butler does not convince us that the jury here rendered a verdict against the great weight of the evidence. Cf. Ling Nan Zheng v. Liberty Apparel Co. Inc., 617 F.3d 182, 185-86 (2d Cir. 2010) . The relationship between Scott and the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that probable cause determination presents a mixed question of law and fact
B. holding that an error pertaining to a mixed question of law and fact under state law is not cognizable in a federal habeas proceeding
C. holding the question of necessity is one of mixed law and fact and accordingly one for the fact finder in the ordinary case
D. holding that whether the defendants confession was voluntary was a mixed question of law and fact subject to de novo review
E. holding that joint employment determination was a complex mixed question of law and fact properly determined by jury
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Read the following excerpt from a US court opinion:
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fairly have granted Appellants’ petition to open. However, under these circumstances, we cannot conclude that the trial court abused its discretion in declining to do so. Order affirmed. Gantman, J. concurs in the result. 1 . See Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971) (ruling that court did not abuse discretion in striking default judgment where insurer lost client's court papers and prejudice lacking); Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 620 A.2d 1206 (1993) (deeming insurer’s delay reasonable excuse); Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc) (forgiving delay when disadvantaged party was aban doned by multiple attorneys for want of ability to pay); cf. Jung v. St. Paul’s Parish, 522 Pa. 167, 560 A.2d 1356 (1989) ; Manson v. First Nat'l Bank in Ind., 366 Pa.
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the trial court must ensure that the requests are tailored to the specific action and that discovery requests that reflect a mere fishing expedition should not be allowed
B. holding that not only must discovery requests be reasonably tailored to include only matters relevant to case but discovery requests may not be used as fishing expedition or to impose unreasonable discovery expenses on opposing party
C. holding that the defendants discovery requests were untimely because they were not served in time for the responses to be due before the discovery deadline
D. holding that non pros should have been opened where parties were engaged in settlement negotiations and rule to file complaint was intermingled with discovery requests
E. holding default was the appropriate remedy for failure to comply with numerous court orders and discovery requests
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Read the following excerpt from a US court opinion:
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(BIA 1992). Its construction of ambiguous statutory provisions — like the term “crime involving moral turpitude” — is entitled to Chevron deference. Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.2012). Consequently, this court “must uphold the BIA’s construction [of 8 U.S.C. § 1227(a)(2)(A)® ] unless it is arbitrary, capricious, or manifestly contrary to the statute.” Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) (internal quotation marks omitted). Our circuit has held— along with a number of other circuits— that the BIA’s interpretation of “crime involving moral turpitude” is reasonable. Novatchinski v. Holder, 516 Fed.Appx. 526, 530-31 (6th Cir.2013) ; Ghani v. Holder, 557 F.3d 836, 841 n. 3 (7th
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What is the most suitable continuation to the opinion? Your options are:
A. holding the bias interpretation reasonable and listing cases reaching the same conclusion
B. holding that the ninth circuit erred by failing to defer to the bias reasonable interpretation of the ina
C. holding that bias interpretation of immigration law is entitled to deference except where the interpretation is clearly contrary to the plain and sensible meaning of the statute
D. holding that a court should afford deference to the bias interpretation if reasonable of the phrase aggravated felony set forth in the ina but the court should review de novo the bias determination of whether the elements of a statelaw conviction met that interpretation
E. holding same and citing cases
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Read the following excerpt from a US court opinion:
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represent conflicting interests; that Mitchell’s representation of Williams did not have an adverse effect on Mitchell’s representation of Chambers; and that Mitchell did not have a conflict of interest while representing Chambers. We observe that the Supreme Court has not held that the standard applied by the state court applies to claims of successive representation conflicts. See Mickens v. Taylor, 535 U.S. 162, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (declining to decide whether to extend standard for multiple concurrent representation conflicts in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)— conflict actually affected adequacy of representation—to successive representation conflicts); but see Perillo v. Johnson, 205 F.3d 775, 797-98 (5th Cir.2000) . Even assuming that the state court
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What is the most suitable continuation to the opinion? Your options are:
A. holding that strickland applies to cases involving successive representation
B. holding teague applies to capital cases
C. holding that conflicts of constitutional magnitude can arise from cases of successive representation
D. holding that teague applies only to procedural rules and not to decisions of the supreme court deciding the meaning of criminal statutes
E. holding that cuyler standard applies to all multiple representation conflicts whether concurrent or successive under preaedpa law and holding teague bar inapplicable
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Read the following excerpt from a US court opinion:
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denies the remainder of RMC’s motion. It is further ORDERED that LSC’s motion for summary judgment is granted as to the Georgia incident. The court denies the remainder of LSC’s motion. It is further ORDERED that RMC’s challenge under the FOIA is denied. It is further ORDERED that the LSC Decision is remanded to LSC and LSC is instructed to fashion a proper remedy in accordance with this order. IT IS SO ORDERED. 1 . In actuality, SCLSA operated as an arm of PLS in 1994 and 1995. (Mem. in Supp. of Pis.' Mot. for Summ.J. at 6) (citing Berkowitz Dep. of 9/22/97, at 19.) - 2 . Local legal services organizations have also recently challenged these restrictions in court, questioning their legality under the Constitution. See Velazquez v. Legal Services Corp., 985 F.Supp. 323 (E.D.N.Y.1997) ; Legal Aid Soc'y v. Legal Services Corp., 981
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing louisianas ban on class actions and expressing view that plaintiffs could not get a class certified under that particular law in either state or federal court
B. holding that ban on use of nonlsc funds for class actions violates first amendment
C. holding that a class action tolls the statute of limitations only for subsequent individual actions not for subsequent class actions
D. holding that malicious or sadistic use of force with intent to harm violates the eighth amendment
E. holding that no subsequent class actions may benefit from tolling when class certification has been denied
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Read the following excerpt from a US court opinion:
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to withdraw his pleas on the basis that he pleaded guilty with the understanding that he would not be sentenced as a habitual offender. The portion of the transcript of the plea hearing that Harris attached to his motion appears to support this claim. However, Harris again failed to allege prejudice, because he failed to allege that he would not have pleaded if he had known that the trial court would sentence him as a habitual offender. When a defendant, in a rule 3.850 motion, seeks to withdraw his plea on the ground that it was involuntary because he was provided incorrect information regarding the consequences of the plea, he must allege that he would not have accepted the plea if he had been fully aware of the consequences. See State v. Taylor, 738 So.2d 988 (Fla. 2d DCA 1999) . Again our affirmance is without prejudice to
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What is the most suitable continuation to the opinion? Your options are:
A. holding in direct conflict with the second third and fifth districts that allegations of affirmative misadvice by trial counsel on the sentenceenhancing consequences of a defendants plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim
B. holding that a defendant must be allowed to withdraw a plea entered based upon the misadvice of counsel regarding potential penalties to be faced upon entry of the plea
C. holding that in order to establish prejudice based on misadvice regarding sentence length defendant must allege generally that he would not have pleaded but for the bad advice
D. holding that the defendant was entitled to have his plea accepted absent a sound reason for rejecting the plea
E. holding that for a facially sufficient claim that the plea was involuntary based on misadvice of counsel defendant must allege he would not have accepted the plea agreement but for the misadvice
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Read the following excerpt from a US court opinion:
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banc) (extending claim to adult children); Miller v. Subia, 514 P.2d 79, 80 (Colo.App.1973) (implication that action would be allowed upon display of adequate evidence); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926) (but the law in Florida at present is unclear; in Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973), the Court held that Wilkie permitted either parent to recover for the loss of the child's companionship, society and services. But other cases have limited Wilkie to authorizing only damages for lost services. See Youngblood v. Taylor, 89 So.2d 503, 506 (FIa.1956); City Stores Co. v. Langer, 308 So.2d 621, 622 (Fla.App.1975); Dymek v. Nyquist, 128 Ill.App.3d 859, 83 Ill.Dec. 52, 59, 469 N.E.2d 659, 666 (1984) ; Ferguson v. Burkett, 454 So.2d 413, 416 (La.App.1984) ; First Trust Co. of North Dakota v. Scheels
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing this presumption
B. recognizing this rule
C. holding that statute of limitations for antitrust claim begins to run at time of accrual notwithstanding plaintiffs ignorance of facts giving rise to claim
D. recognizing a 1982 amendment giving rise to this claim
E. recognizing the conduct giving rise to punitive damages must be a proximate cause of the harm inflicted
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Read the following excerpt from a US court opinion:
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the level of persecution; 2) that the persecution was on account of one or more of the five protected grounds; and 3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000). We have defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (internal quotation marks omitted); see also Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Threats and attacks can constitute persecution even where an applicant has not been beaten or physically harmed. See, e.g., Artiga Turcios v. INS, 829 F.2d 720, 723-24 (9th Cir. 1987) . Here, Ganut and his party were attacked by
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What is the most suitable continuation to the opinion? Your options are:
A. holding that trial court abused its discretion in denying petitioners request for counsel in evidentiary hearing where petitioner had requested counsel and had indicated in his motion that all documents had been prepared by prison law clerk he had only ninthgrade education he had no training in the law and he lacked the skills necessary to participate in hearing
B. holding that petitioner had established persecution even though he had not been physically harmed and received only an indirect threat relayed by a neighbor
C. holding that a claim for surcharge had been plausibly stated even though the precise term had not been used
D. holding that alien must show that he faces a particularized threat of persecution
E. holding that where petitioner testified that some of her cousins had been killed because they served in the military and that she had received two threatening notes she had demonstrated past persecution
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Read the following excerpt from a US court opinion:
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an appeal”). 46 .See, e.g., Milton v. United States, 105 F.2d 253, 255 (5th Cir.1939) ("The word ‘filed’ ... is, as applied to court proceedings, a word of art, having a long established and well understood meaning, deriving from the practice of filing papers on a string or wire. It requires of one filing a suit, merely the depositing of the instrument with the custodian for the purpose of being filed.... [I]t charges him with no further duty[.]”); Black’s Law Dictionary 660 (8th ed. 1999) (defining "file” as "To deliver a legal document to the court clerk or record custodian for placement into the official record”). The distinction between filing and service is well-established in our jurisprudence. See, e.g., Varela v. Hi-Lo Powered Stirrups, 424 A.2d 61, 67-68 (D.C.1980) (en banc) (emphasis in the original). 47 . See Henderson
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing the clear understanding that the manner by which an action is commenced via filing of the complaint with the court presents a completely different and separable array of considerations from the manner by which service of process is to be made
B. holding that plaintiffs amended complaint was not barred by the applicable statute of limitations where the amendment merely expanded on plaintiffs negligence theories and stating that in a tort action an amendment may vary the statement of the original complaint as to the manner in which the plaintiff was injured or as to the manner of the defendants breach of duty
C. holding that dismissal of a complaint pursuant to former 1915d now 1915e is not appropriate where a plaintiff has made a partial payment of filing fees and that in such cases the court must treat the complaint in the same manner as one for which in forma pauperis status has not been granted
D. holding that the relevant time of inquiry is the date of the filing of the complaint
E. 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
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Read the following excerpt from a US court opinion:
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appear before us on appeal. 3 . There is some dispute as to when the process of amending the City’s zoning ordinance began. However, since we conclude that the City has no intention of re-enacting the allegedly unconstitutional segments of the zoning code, we need not decide what initially motivated the City's comprehensive overhaul of its entire zoning ordinance. 4 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 5 . We cataloged many of the Supreme Court decisions on this subject in our Coral Springs decision: See, e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472, 474, 110 S.Ct. 1249, 1252, 108 L.Ed.2d 400 (1990) ; Massachusetts v. Oakes, 491 U.S. 576, 582-83,
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What is the most suitable continuation to the opinion? Your options are:
A. holding moot a challenge to a florida tax exemption for church property when the law had been repealed
B. holding that an overbreadth challenge to a child pornography law was rendered moot by amendment to the statute
C. holding that a commerce clausebased challenge to florida banking statutes was rendered moot by amendments to the law
D. holding that a challenge to the disbursement of attorneys fees was not equitably moot
E. holding that defendants bank account and open line of credit in florida utilized to transfer money in international commerce was insufficient to confer jurisdiction under section 481932 florida statutes where defendant operated its business in honduras had no employees or agents in florida and did not advertise or solicit business in florida
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Read the following excerpt from a US court opinion:
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106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir.1980) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). McDonnell Douglas pretext analysis Given the absence of direct evidence of age discrimination in the present case, plaintiffs disparate treatment claim is best analyzed at the present stage of the litigation as a McDonnell Douglas pretext case. See Ryther v. KARE 11, 108 F.3d 832, 836 & n. 1 (8th Cir.1997) (en banc) , cert. denied, — U.S.-, 117 S.Ct. 2510, 138
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a title vii plaintiff need not plead the elements of a mcdonnell douglas prima facie case to survive a motion to dismiss
B. holding that the facts of the ease fall under the mcdonnell douglas standard which does not require direct proof of discrimination for the plaintiff to make a submissible case
C. holding that whether the case could proceed under a mixedmotive instruction was not relevant because the case could proceed under the more taxing mcdonnell douglas standard
D. holding that without a link to the challenged decision stray remarks did not constitute indirect evidence of discrimination sufficient to satisfy the final prong of the mcdonnell douglas framework
E. holding that a plaintiff who could not demonstrate every element of the mcdonnell douglas test could nonetheless demonstrate a prima facie case
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Read the following excerpt from a US court opinion:
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487 U.S. 1242, 108 S.Ct. 2918, 101 L.Ed.2d 949 (1988); Julius v. Johnson, 840 F.2d 1533, 1540 (11th Cir.) (allowing double-counting of felony-murder factor), cert. denied, 488 U.S. 960, 109 S.Ct. 404, 102 L.Ed.2d 392 (1988). I. Improper Prosecution Arguments Coe cites four statements made by the prosecution at the sentencing stage that he claims were improper. First, Coe complains that the prosecutor improperly injected his expertise into his death-penalty argument. The prosecutor said that he took his decision to seek the death penalty very seriously; that the decision was difficult; that he had only ever requested the death penalty once before. Coe cites Eleventh Circuit precedent that is directly on point. See, e.g., Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir.1985) (en banc) . But Kemp ultimately held the error to be
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What is the most suitable continuation to the opinion? Your options are:
A. holding very similar commentsto be prejudicial
B. holding that the special needs exception did not apply to very similar facts
C. recognizing similar duties
D. holding that explicit finding that probative value of similar transactions outweighed their prejudicial impact is not required
E. holding that erroneous admission of improper and prejudicial evidence did not require reversal because the jury would have returned a verdict of guilty against the defendant even without the prejudicial testimony
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Read the following excerpt from a US court opinion:
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version of the peculiar risk doctrine, that is, under either section 413 or section 416. Privette, 5 Cal.4th 689, 21 Cal. Rptr.2d 72, 854 P.2d 721 (1993); see also Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 264 n. 2, 74 Cal. Rptr.2d 878, 955 P.2d 504 (1998); Camargo v. Tjaarda Dairy, 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (2001) (applying the peculiar risk analysis of Privette to section 410, negligent hiring, and holding hirer not liable for the negligent performance of a hired contractor for injuries to the contractor’s employees). When considering a hirer’s liability under the peculiar risk provisions, the courts consistently distinguished the issue before them from the tort theory set forth in section 414. Toland, 74 Cal.Rptr.2d 878, 955 P.2d at 511 n. 2 ; Camargo, 25 Cal.4th at 1245, n. 2, 108
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What is the most suitable continuation to the opinion? Your options are:
A. holding that under the mwa the question of whether an employee was an independent contractor or an employee was a question of statutory interpretation
B. holding that the grant of review did not extend to and therefore we do not decide whether privette would preclude an employee of an independent contractor from seeking tort recovery from workplace injuries under the theory of section 414
C. holding that we must decide whether to grant or deny the petition for review based on the boards reasoning rather than our own independent analysis emphasis added
D. holding osha does not preclude an employee from pursuing a tort action for a retaliatory discharge
E. holding that the determination of whether an individual is an independent contractor lies in the common law and not under an express provision of the act
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Read the following excerpt from a US court opinion:
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of the case, because the court treated the Guidelines range as mandatory and “the Supreme Court has now excised the mandatory nature of the Guidelines in Booker.” Shelton, 400 F.3d at 1330 (reviewing Booker claim for plain error). In Shelton, we concluded that “it was Booker error for the district court to sentence Shelton under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment enhancement violation.” Id. (citation omitted). Based on the excision of the mandatory provisions of the Guidelines, in cases involving preserved Booker error, we have required the Government to show that the mandatory, as opposed to the advisory, application of the Guidelines did not contribute to the defendant’s sentence. See United States v. Paz, 405 F.3d 946, 948-49 (11th Cir.2005) . The government bears the burden to show that
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What is the most suitable continuation to the opinion? Your options are:
A. holding that sentencing under the mandatory guidelines regime creates a presumption of prejudice that the government must rebut with clear and specific evidence that the district court would not have sentenced the defendant to a lower sentence if it had treated the guidelines as advisory
B. holding statutory error harmless where district court imposed the highest available sentence under guidelines range and considered sentencing to the statutory maximum
C. holding that the government could not meet its burden under harmless error analysis because the record indicated that district court would have imposed shorter sentencing under advisory guidelines scheme
D. holding statutory booker error was not harmless where district court imposed sentence in middle of guidelines range and there were no statements in the record reflecting that the court would have imposed the same or greater sentence under advisory guidelines
E. holding government failed to meet it burden to show harmlessness of mandatory application of the guidelines where transcript of sentencing hearing indicated district court would have imposed shorter sentence under advisory sentencing scheme
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Read the following excerpt from a US court opinion:
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due process requirements. And that question is not before us now. As such, I cannot agree that a procedure created and used for § 1226(a) detainees tells us anything about the constitutional adequacy of the procedures governing unreasonably prolonged detention under § 1226(c). Our decision regarding what due process requires in this context perhaps should bear upon the protections owed to § 1226(a) detainees, not the other way around. Indeed, the Ninth Circuit, which has adopted a clear and convincing evidence standard for § 1226(c) detainees, appears to have adopted the same standard for § 1226(a) detainees. See Rodriguez, 804 F.3d at 1087 (applying a clear and convincing evidence standard to a class comprised of aliens detained under § 1226(a) and (c)); Singh, 638 F.3d at 1205 . Significant deprivations of liberty warrant
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the clear and convincing evidentiary standard applies to section 101 challenges
B. holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied
C. holding that the clear and convincing evidence standard of proof applies in casascastrillon 535 f3d at 948 1226a bond hearings
D. holding that the clear and convincing evidence standard of proof applicable in fraud actions does not apply to the proof of misrepresentations under ors 743612
E. holding that in a proceeding to terminate parental rights the preponderance of the evidence standard of proof violates the due process clause and that due process requires at least a clear and convincing evidence standard
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Read the following excerpt from a US court opinion:
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majority correctly points out that certain federal courts recognize the application of res judicata to a dismissal without prejudice under a factual scenario similar to this case. Majority Opinion ¶ 8. However, our appellate courts appear to disagree with this federal position 9, ¶¶ 9-10, 141 N.M. 127, 151 P.3d 88 (denying the application of res judicata to the dismissal of a foreclosure action without prejudice that was based upon significant inactivity by the bank); Salazar v. Yellow Freight Sys., Inc., 1990-NMCA-003, ¶¶ 11-13, 109 N.M. 443, 786 P.2d 57 (denying the application of res judicata to a recommended decision arising during the first of two workers’ compensation administrative proceedings where the first claim was dismissed without prejudice); Bralley, 1985-NMCA-043, ¶ 18 ; Chavez v. Chenoweth, 1976-NMCA-076, ¶¶ 25-27,
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that the words without prejudice when used in an order or decree generally indicate that there has been no resolution of the controversy on its merits and leaves the issues in litigation open to another suit as if no action had ever been brought
B. holding that the circuit courts order concluding that it was without jurisdiction to entertain a complaint because the case had been dismissed without prejudice constituted a final order because all other claims either had been refiled or dismissed with prejudice
C. holding that a sua sponte dismissal by the court for failure of the plaintiff to comply with an order of the court should operate as an adjudication on the merits because the defendant has been put to the trouble of preparing his defense because there was no initial bar to the courts reaching the merits
D. holding if there has been no termination of employment there has been no layoff or reduction in force
E. holding that review is de novo where there has been no adjudication on the merits in state court
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Read the following excerpt from a US court opinion:
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deportation proceedings have been completed.’ Plyler v. Doe, 457 U.S. 202, 226, 102 S.Ct. 2382, 2399, 72 L.Ed.2d 786[, 805] (1982) (the bracketed words are substituted for the words ‘child’ or ‘children’ in the original).” St. Joseph’s Hosp., 142 Ariz. 94, '688 P.2d at 991. The St. Joseph’s Hosp. court went on to conclude: “Given these words from the nation’s highest court concerning a field of federal legislation, it is unnecessary to pursue the matter further. There is no federal impediment to an undocumented alien becoming a resident of an Arizona county. We have been cited to no state law which would create such an impediment.” St Joseph’s Hosp., 142 Ariz. 94, 688 P.2d at 992. See also Cabral v. State Bd. of Control, 112 Cal.App.3d 1012, 169 Cal.Rptr. 604, 607 (Cal.Ct.App.1980) . Many other state courts have held that aliens
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What is the most suitable continuation to the opinion? Your options are:
A. holding that whether alien abandoned domicile for purposes of section 212c turns on whether alien intended to remain elsewhere indefinitely
B. holding that an alien who illegally reenters this country is not eligible for adjustment of status because the reinstatement provision controls
C. holding that adjustment of status was permitted even if deportable alien had entered the country as a lawful permanent resident
D. holding that an alien who entered this country illegally from mexico could establish domicile
E. holding that zadvydas applies to inadmissible aliens who have illegally entered the united states
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Read the following excerpt from a US court opinion:
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has provided none. Accordingly, this argument must be rejected as well. D. Conclusion In consideration of the foregoing, the plaintiffs motion for summary judgment is granted as to that portion of the requested relief that has not been mooted by the USTR’s removal of Gilda’s products from the retaliation list. Accordingly, Gilda’s imports of rusks or toasted breads from Spain entered after July 29, 2007 must be liquidated without the 100 percent retaliatory duty described herein. Further, the U.S. Bureau of Customs and Border Protection shall refund to the plaintiff all of the retaliatory duties (described herein) collected on Gilda’s toasted bread imports from Spain between July 29, 2007 and March 23, 2009. See Shinyei Corp. of America v. United States, 355 F.3d 1297 (Fed.Cir.2004) . 1 . The plaintiff's motion for summary
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a physical or theoretical possibility that the government actor would repeat challenged actions is insufficient to demonstrate that the challenged action is capable of repetition
B. holding that reliquidation is not prohibited where a decision of customs is not being challenged
C. holding that it is not
D. holding that a sentencing decision will be affirmed if challenged factor is permissible and other factors are not challenged
E. holding that the burden is on the defendant when the validity of the warrant is challenged
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Read the following excerpt from a US court opinion:
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under Article 9 by selling the collateral; it is an action to enforce the obligation of the buyer to pay the full sale price to the seller, an obligation which is an essential element of all sales and which exists whether or not the sale is accompanied by a security arrangement.”); First Nat’l Bank in Albuquerque v. Chase, 118 N.M. 783, 887 P.2d 1250, 1252 (1994) (“a deficiency action is essentially an action for the price and is, therefore, part of the general sales aspect of the agreement”). Admittedly, CFCU exercised its right to repossess the vehicle under SCUCC Article 9. See S.C. Code Ann. § 36-9-609 (2003) (allowing repossession of collateral after default); S.C. Code Ann. § 36-9-610(a) (2003) (allowing the sale of collateral after default); S.C. Code Ann. § 36-9-615(d) (2003) . However, as assignee to the sales contract,
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What is the most suitable continuation to the opinion? Your options are:
A. holding the obligor liable for any deficiency following sale
B. holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment
C. holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice
D. holding no jurisdiction when trial court granted extension because it found deficiency even though it was not same deficiency complained of by appellant in his motion to dismiss
E. holding that where notice of deficiency fails adequately to describe the basis on which the commissioner relies for his deficiency determination burden shifts to the commissioner to prove the accuracy of the deficiency determination
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Read the following excerpt from a US court opinion:
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her payments for escrow items never decreased. The Court finds that plaintiff alleges that Chase’s duty to make flood insurance payments arises from the mortgage agreement. The Court, therefore, rejects Chase’s argument that plaintiffs claims arise out of and are preempted by the NFIA. See Rentrop v. Nationwide Mut. Fire Ins. Co., No. 07-384, 2008 WL 2465288, at *3 (S.D. Miss. June 12, 2008) (“In my opinion, [mortgageej’s duty to make these payments, if any, does not arise under the NFIA[,] [but] would arise, if at all, from the terms of the contracts that govern the business relationship between [mortgagee] and the plaintiffs or from the course of dealings concerning these premium payments.”); Bennen v. Allstate Ins. Co., No. 06-5742, 2006 WL 3240786, at *1-2 (E.D.La. Nov. 6, 2006) . (ii) Breach of Contract Plaintiff asserts
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What is the most suitable continuation to the opinion? Your options are:
A. holding the state law claims were not preempted
B. holding that carmark act preempted state law claims including those for liability for payment of claims
C. holding plaintiffs negligence claims were preempted by the nfia because any alleged duty to provide a correct flood zone determination arises out of the nfia and not from any other place in louisiana law
D. holding that because plaintiffs claims did not challenge the handling administration or payment of his flood claim or compliance with the act or the regulations the state law claims for breach of contract and tort are not preempted by the nfia
E. holding that the plaintiffs state law claims are preempted by federal law
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Read the following excerpt from a US court opinion:
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for a serious health condition, the employer may request certification by the employee's health provider. 29 C.F.R. § 825.305(a). Simpson v. Office of the Chief Judge of the Cir. C. of Will Cnty., 559 F.3d 706, 709 (7th Cir.2009); Kauffman, 426 F.3d at 886. Certification is sufficient if it provides the date the serious health condition began, its probable duration, relevant medical facts, and a statement that the employee is unable to work. 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306. Kauffman, 426 F.3d at 886. If the employee fails to submit certification of her condition in a timely manner, then an employer is entitled to deny FMLA leave. 29 C.F.R. § 825.313. Simpson, 559 F.3d at 709. Under the regulations, if an employer finds a certification incomplete, the emplo t *4 (N.D.Ill.2009) ; Sewall v. Chi. Transit Auth., 2001 WL 40802
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What is the most suitable continuation to the opinion? Your options are:
A. holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave
B. holding that employee who exceeded fmla leave was subject to immediate discharge on the very first workday that he was both absent from work and no longer protected by the fmla
C. holding a plaintiff to be ineligible for fmla leave wherein the plaintiff had not accumulated enough work hours
D. holding that there was no sustainable fmla interference claim wherein a plaintiff could not establish that her daughter suffered from a serious health condition as defined by the regulations
E. holding a plaintiff to be ineligible for fmla leave wherein the plaintiffs leave exceeded twelve weeks within a twelve month period
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Read the following excerpt from a US court opinion:
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undisputed that Mr. Avila engaged in protected opposition to discrimination when the union filed a grievance on his behalf on September 2, 2003, alleging national origin discrimination. See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir.2004) (indicating that lodging union grievance asserting discrimination constitutes protected activity). It is also undisputed that Mr. Avila suffered an adverse employment action when he was terminated. See Fye, 516 F.3d at 1228 (stating “termination ... is clearly an adverse employment action”). Finally, it is undisputed that Mr. Avila established a causal connection between his protected activity on September 2, 2003 and his termination nine days later. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006) . Thus, Mr. Avila established a prima facie
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What is the most suitable continuation to the opinion? Your options are:
A. holding that twentyfour days between protected activity and termination is sufficient to infer existence of causal connection
B. holding that a sixmonth gap between the protected activity and the employees termination was insufficient to infer that the protected activity was a contributing factor
C. holding that a temporal proximity of one month between the plaintiffs protected activity and adverse employment action was sufficient to establish a causal connection
D. holding that more than a year between the protected activity and the discharge is not close enough to support the causal connection requirement
E. holding that five weeks between protected activity and adverse employment action insufficient to establish a causal connection
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Read the following excerpt from a US court opinion:
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or sentencing, when it was cognizable and the trial court had jurisdiction, the Setzer appellant had waived his right to raise the issue. Id. (“[W]e find it clear that practical considerations dictate that this issue be deemed waived when, as in the instant case, it is not raised until almost two years after disposition of the charges which gave rise to the confiscation of property.”); Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283, 286 (1977) (“It is a fundamental doctrine in this jurisdiction that where an issue is cognizable in a given proceeding and is not raised it is waived and will not be considered on a review of that proceeding.”). The Commonwealth Court has likewise previously applied a waiver analysis in the same circumstances. One 1990 Dodge Ram Van, 751 A.2d at 1237 . The trial court in this case agreed with the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a defendant waived a sentencing issue by failing to object in district court
B. holding that because appellant had waived review of constitutional challenge to sentencing statute by failing to raise it at the first opportunity the trial court correctly proceeded to examine whether the appellants trial counsel was ineffective for failing to raise constitutional challenges to the sentencing statutes
C. holding the appellant waived the issue of return of property by failing to raise it following trial or sentencing for the underlying crimes
D. holding that appellant waived issue by failing to raise it in opening brief
E. holding that plaintiffs had waived the issue of remand by failing to raise it with the jpml or the district court
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Read the following excerpt from a US court opinion:
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as standardized, pre-printed forms that each plaintiff had to sign, and, from a negotiating standpoint, Amoco clearly had greater bargaining power than plaintiffs. Nevertheless, the court does not find that the contracts are so “one-sided” or unfair as to render either the integration clauses or the contracts themselves unenforceable. Even construing the standardized contracts strictly against Amoco and in the light most favorable to plaintiffs, there is nothing that could reasonably be considered shockingly unfair or offensive about the wording of the contracts or the inclusion of the integration clauses therein. Standardized contracts with integration clauses have been a common part of plaintiffs’ and Amoco’s franchise relationship. See Adams, 13 Kan.App.2d at 497, 774 P.2d 355 . In addition, this case does not involve the
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What is the most suitable continuation to the opinion? Your options are:
A. holding that hearing officers noting the parties agreement did not constitute a change in the parties legal relationship
B. holding parties to an exculpatory clause where the parties intent is clear
C. holding that nolostprofits clause in parties agreement was not unconscionable as a matter of law in part because similar clause had been in the agreement between the parties for years
D. holding that even if the parties had formed a contract under 2207l the arbitration clause materially altered the contract and therefore did not become part of the parties agreement
E. holding arbitration clause in credit card agreement unconscionable
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Read the following excerpt from a US court opinion:
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be a mitigating factor because it does not relate to a defendant’s character or background or to the circumstances of the offense. We are unpersuaded by defendant’s argument. In Martini I, supra, the Court rejected the same argument advanced by defendant. 131 N.J. at 313, 619 A.2d 1208. There, the Court concluded that although the trial court should instruct the jury during the penalty phase on potential noncapital sentences, “the court should inform the jury that defendant’s possible sentence for the other convictions should not influence its determination regarding the appropriateness of a death sentence on the murder count.” Ibid. Martini I’s holding in this regard is in harmony with the Court’s pronouncements in related contexts. See Bey III, supra, 129 N.J. at 603, 610 A.2d 814 . Indeed, it would lead to an incongruous
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences
B. holding that juries should be informed of noncapital sentences but that they should base sentencing decision solely on aggravating and mitigating factors
C. holding that although the guidelines should be the starting point and the initial benchmark of calculating a proper sentence the district court should then consider all of the 3553a factors to determine whether they support the sentence requested by a party
D. holding that although court should inform jury about defendants prior sentences the court should instruct the jury that it should not consider prior sentences in its decision to impose a life or death sentence because they are not statutory aggravating or mitigating factors
E. holding that it was improper for the trial court to instruct the jury that it could not consider the states failure to videotape the defendant
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Read the following excerpt from a US court opinion:
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defendant’s fear at the time of the incident. E.B., 531 So.2d at 1054. As part of that foundation, the defendant must establish that the victim committed some overt act at or about the time of the incident that reasonably indicated a need for action by the defendant in self-defense. Id.; Sanchez v. State, 445 So.2d 1, 2 (Fla. 3d DCA 1984); Hager v. State, 439 So.2d 996, 997 (Fla. 4th DCA 1983). Once the proper foundation is laid, the defendant may introduce evidence of the victim’s reputation or of specific i 356, 357 (Fla. 4th DCA 1992) (concluding that the trial court erred by excluding testimony that the victim had a reputation as a bully because there was no showing that the defendant had knowledge of the victim’s reputation); Marcum v. State, 341 So.2d 815, 817 (Fla. 2d DCA 1977) . Conversely, the purpose of specific acts
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What is the most suitable continuation to the opinion? Your options are:
A. holding that where an issue is the identity of the initial aggressor it is irrelevant whether the defendant was aware of his adversarys reputation
B. holding that a defendant who alleges selfdefense can show through the testimony of another witness that the alleged victim had a propensity for violence thereby inferring that the alleged victim was the aggressor a defendants prior knowledge of the victims reputation for violence is irrelevant because the evidence is offered to show the conduct of the victim rather than the defendants state of mind
C. holding that being deported after a conviction for an aggravated felony is all that is required and it is irrelevant whether the conviction is valid at the time of sentencing
D. holding that when the factual issue is as between the defendant and the other person who was the aggressor the defendant may introduce evidence of the other persons violent or aggressive character
E. holding that the race of the prosecutor is irrelevant
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Read the following excerpt from a US court opinion:
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statutes do not mandate the issuance of an injunction, and that plaintiffs must still show some tangible irreparable environmental injury. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Production Co. v. Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Town of Huntington v. Marsh, 884 F.2d 648 (2nd Cir.1989) (applying Weinberger and Amoco and concluding that they require a showing of irreparable injury apart from the violation of NEPA procedural requirements). Although NEPA violations may not create a presumption of irreparable injury, the Court believes that such violations do create a type of injury that courts must consider when deciding whether to grant injunctive relief. Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989) . More specifically, such violations by their
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the threat of irreparable harm must be immediate
B. holding that the district court erred when it failed to consider the presumption of irreparable harm
C. holding that nepa is designed to prevent harm to the environment through inadequately informed decision making and that courts should take account of this harm and its potentially irreparable nature
D. holding that a party who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative
E. holding that likelihood of irreparable harm must be based on evidence in the record not unsupported and conclusory statements regarding harm the plaintiff might suffer
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Read the following excerpt from a US court opinion:
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Feb. 14, 2012) (Lauriat, J.); Lantor Inc. v. Ellis, Civil No. 98-01064, 1998 WL 726502, **9-10 [9 Mass. L. Rptr. 221] (Norfolk Super. Ct. Oct. 2, 1998) (Gants, J.). “It is well settled that a material breach of contract by one party excuses the other party from performance as matter of law.. .” HRPT Advisers, Inc. v. MacDonald, Levine, Jenkins & Co., P.C., 43 Mass.App.Ct. 613, 626 n.16 (1997), citing Hastings Assocs., Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass.App.Ct. 162, 171 (1997). Therefore, the question of Colameta’s conduct only becomes relevant if the court determines as a matter of law that Protégé’s conduct did not constitute a material breach of the 2007 Employment Agreement that discharged Colameta’s obligations under that agreement. See, e.g., Ward, 15 Mass.App.Ct. at 101 . A breach is material if it is “of ‘an
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What is the most suitable continuation to the opinion? Your options are:
A. holding that no reporters record was required in suit to recover damages for breach of employment contract because the claim for damages was liquidated and proved by the employment contract attached to the petition
B. holding the government liable to plaintiffs for breach of contract
C. holding only a material breach discharges contractors duty to perform
D. holding that employers wrongful discharges of the plaintiffs constituted breaches of the employment agreements so material as to discharge the plaintiffs from any further obligations under the contracts ie covenants not to compete and to allow them to recover contract damages for total breach
E. holding that if the breach of an entire contract is only partial the plaintiff can recover only such damages as he or she has sustained leaving prospective damages to a later suit in the event of further breaches
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Read the following excerpt from a US court opinion:
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have had a track record of reliability, their tips corroborated the first informant’s tip and to some extent each other’s tips, which also “render[s] their information enough to support a finding of probable cause.” United States v. Fulgham, 143 F.3d 399, 401 (8th Cir.1998). In like fashion, in United States v. Le, 173 F.3d 1258, 1266 (10th Cir.1999), a case where the sufficiency of an affidavit upon which a search warrant was challenged, we said: The affidavit contained information provided by two different informants whose stories were remarkably consistent. “[CJonsistency between the reports of two independent informants helps to validate both accounts.” United States v. Schaefer, 87 F.3d 562, 566 (1st Cir.1996); see also United States v. Fulgham, 143 F.3d 399, 401 (8th Cir.1998) ; United States v. Pritchard, 745 F.2d 1112,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that noncompliance with mandatory requirement of search warrant statute designed to ensure that warrants are issued upon reliable information required that information provided by informants be ignored in determining probable cause
B. holding that a credibility determination based on among other things a tendency to exaggerate was supported by substantial evidence
C. holding among other things that the officers observations that the defendant was under the influence of a controlled substance without more did not establish probable cause to believe that the defendant had committed a crime
D. holding that the magistrates finding of probable cause was supported by among other things the reciprocally corroborative consistency in the information provided by two separate informants
E. holding that in order to prevail on a malicious prosecution claim under 1983 a plaintiff must establish among other things the absence of probable cause for the initiation of the proceedings against her
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Read the following excerpt from a US court opinion:
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It is not the duty of this Court to construct arguments for or find support for appellant’s right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Plaintiff has not addressed the appealability of the interim order here and thus has failed to meet her burden of showing that the appeal has been properly taken. This Court has recognized that similar “interim” orders entered in the domestic context are not immediately appealable. See, e.g., Dixon v. Dixon, 62 N.C. App. 744, 303 S.E.2d 606 (1983) ; Smart v. Smart, 59 N.C. App. 533, 297 S.E.2d
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the ordering of a rehearing caused the judgment to not be final and appealable
B. holding that a third party holding legal title to property is a necessary party in an action for equitable distribution
C. holding such denial to be an immediately appealable collateral final order
D. holding that a mandatory injunction entered pursuant to nc gen stat 5020i ordering one party to return property to the former marital home pending final resolution of the action for divorce and equitable distribution is not immediately appealable
E. holding that an order imposing sanctions against an attorney for one of the parties in a pending case is final and therefore immediately appealable by the attorney
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Read the following excerpt from a US court opinion:
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years 1999, 2000, and 2001. See, e.g., Def.’s Ex. 6-8 (containing Certificate of Assessments and Payments for plaintiffs 1999, 2000, and 2001 tax years indicating that no payment had been made). A Certificate of Assessments and Payments “is routinely used to prove that a tax assessment has in fact been made.” Rocovich, 933 F.2d at 994. Where, as here, a plaintiff has failed to allege that he paid the full amount of the assessed taxes that are the basis of his refund claim, the court may accept as true the assertions contained in a Certificate of Assessments and Payments indicating that the plaintiff has not fully paid the assessment. Daniels v. United States, No. 97-442T, 1999 WL 302450, at *3 (Fed.Cl. Apr.14, 1999); see also United States v. Chila, 871 F.2d 1015, 1018 (11th Cir.1989) ; Dallin ex rel. Estate of Young v. United
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that a certificate of assessments and payments is presumptive proof of a valid assessment quoting united states v dixon 672 fsupp 503 506 mdala1987 affd 849 f2d 1478 11th cir1988
B. recognizing speedy trial analysis is genesis of presumptive prejudice rulings and holding that notion of presumptive prejudice has no application to preindictment delays
C. holding that the united states court of federal claims may not reweigh the factual evidence quoting munn 970 f2d at 871
D. holding that full payment of the assessment is also required for tax refund suits brought in the united states court of federal claims
E. recognizing federal constitutional claim against the united states
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Read the following excerpt from a US court opinion:
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the United States Supreme Court has also recognized that “the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U.S. 379, 395 n. 13, 99 S.Ct. 675, 685 n. 13, 58 L.Ed.2d 596 (1979). While “the requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain ... it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.” Id. (quoting Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 1495 (1995), (plurality opinion)). See, e.g., Village of Hoffman Estates, at 499, 102 S.Ct. at 1193-94 ; Robinson v. State, 600 A.2d 356, 365 (1991).
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that statutes requiring intent are not likely to be invalidated because of vagueness
B. holding residual clause of acca void for vagueness
C. holding the statutory scheme of two federal laws was not void for vagueness and did not violate equal protection or due process even though the defendants conduct violated both laws
D. recognizing that laws and regulations may bear upon the existence of a constitutional interest
E. recognizing that a scienter requirement may mitigate a laws vagueness
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Read the following excerpt from a US court opinion:
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and did not schedule her for any work on Saturdays. (Pl.’s Mem. of Law at 4). Indeed, Dr. Eckstein’s proffered position at Beth Israel was conditioned upon her receiving Sabbath observance accommodation like that which she had at NYU. (Id.) In order to prevail over defendants’ summary judgment motions, the plaintiff must establish a prima facie case by showing that the facts surrounding defendants’ refusal to hire her give rise to an inference of religious discrimination. Stetson v. NYNEX Service Co., 995 F.2d 355, 359-360 (2d Cir.1993). Because defendants offered the same position to someone else with similar religious practices, an inference of discrimination cannot be drawn from their refusal to hire plaintiff. See, e.g., E.E.O.C. v. Wiltel, Inc., 81 F.3d 1508 (10th Cir.1996) ; Eng v. Beth Israel Medical Center, 93 Civ
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What is the most suitable continuation to the opinion? Your options are:
A. holding that plaintiff could not establish prima facie case of discrimination where plaintiff failed to meet minimum qualifications for job
B. holding that plaintiff failed to establish a prima facie case in a religious discrimination suit because among other reasons employer hired someone else with identical religious practices
C. holding that replacement by someone outside the protected group is required to make a prima facie age discrimination case
D. holding that a plaintiff had not established a prima facie case of race discrimination because she failed to show valid comparators and presented no other circumstantial evidence of discrimination
E. holding to establish a prima facie case of racial discrimination a plaintiff must show he 1
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Read the following excerpt from a US court opinion:
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had not been made. Id. at 1310. However, he also stated his view “that from a purely technical standpoint a public defender may appear as ‘next friend’ with as much justification as the mother of [one or another capital defendant].” Id. As noted above, there is no issue of competence in this case; the reason for seeking next friend standing is inaccessibility, and the government has conceded that. There being no “technical” impediment to appointing a lawyer to serve as next friend, it is not surprising that courts have done so in appropriate cases. See, e.g., Miller ex rel. Jones v. Stewart, 231 F.3d 1248 (9th Cir.2000) (granting next friend status to lawyer seeking to stay execution and remanding for hearing on defendant’s competence); Ford v. Haley, 195 F.3d 603, 624 (11th Cir.1999) ; In re Cockrum, 867 F.Supp. 494, 495
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What is the most suitable continuation to the opinion? Your options are:
A. recognizing that lawyer who had represented petitioner for years was as fit as a relative to serve as next friend
B. holding that a choice of law provision in a lease did not serve as a basis for jurisdiction
C. recognizing first english requirement was not met where trial counsel represented petitioner on direct appeal
D. holding that there is no constitutional right for a represented defendant to act as cocounsel
E. recognizing that the intent that of rule 1070j is to serve as a case management tool and not as a severe sanction
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Read the following excerpt from a US court opinion:
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AND JUDGMENT TACHA, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant Marco Antonio Arreola-Najera plea 6 (7th Cir.1992) . This circuit has not resolved the issue. As
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What is the most suitable continuation to the opinion? Your options are:
A. holding that note 9 does not preclude downward departure where defendant had no control over or knowledge of the highlevel purity of methamphetamine involved
B. holding that note 9 did not authorize downward departure based on drug purity
C. holding that the district courts denial of a downward departure was an exercise of discretion and therefore not reviewable
D. holding that district court did not have authority to depart downward under note 9 based on low purity of methamphetamine involved in case
E. holding that a defendants substance abuse or addiction does not justify a downward departure
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Read the following excerpt from a US court opinion:
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771 F.2d 235, 242 (7th Cir.1985)(disapprov-ing “of a trial judge’s procedure in entering a jury room, despite agreement by both counsel and the presence of a court reporter, to give a supplemental instruction after the jury had already begun its deliberations” and noting that discourses between a judge and the jury during deliberations undermines the appearance of justice). In short, the Court cannot say, under the circumstances, that there exists no reasonable possibility that the jury’s verdict was not influenced by an improper communication. Cheek, 94 F.3d at 141. A criminal defendant has a right to a fair trial, U.S. CONST. amend. VI, and a right to be present at every stage of the trial. Fed. R.Crim. Pro. 43(a); see United States v. Coffman, 94 F.3d 330, 335-36 (7th Cir.1996); see also United States v. Pressley, 100 F.3d
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the defendant is entitled to be present at all stages of his trial and a judges response to a note from the jury is one of those stages
B. holding that an actual controversy must be extant at all stages of review not merely at the time the complaint is filed
C. holding that rule 43aentitles a defendant to be present at all stages of his trial and that cjommunication between the judge and the jury or a single juror is one of those stages
D. holding that defendants constitutional right to be present at all stages of his trial does not arise before the trial begins
E. holding that the right to counsel applies in all critical stages of state and federal criminal proceedings
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Read the following excerpt from a US court opinion:
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In re Amy Unknown provided no clarification on this provision, which has unambiguously required proximate cause under the plain language of the statute since its enactment in 1994. Because Gonzalez failed to raise arguments regarding “other losses” and specific categories of damages in his initial briefing, he has waived this issue on appeal. In any event, fact questions “capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” Gonzalez’s argument that Vicky’s costs for “educational ... counseling needs” predated his criminal acts and therefore this category of costs could not be proximately caused by his crime is a factual issue. It cannot be the basis for plain error, and even were we to consider i 6 (5th Cir.2008) . 7 . Cf. Rita. 551 U.S. at 359, 127 S.Ct. 2456
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What is the most suitable continuation to the opinion? Your options are:
A. holding that civil settlements have no bearing on decisions of criminal punishment and imposition of a restitution order is a form of punishment and part of a criminal sentence
B. holding that designation is neither a sentence nor a punishment
C. holding that trial courts failure sua sponte to give reasonabledoubt in struction during punishment phase about pen packets offered during punishment was harmless error because sentence imposed was well within punishment range and prosecutor had asked for greater sentence
D. holding that district courts statement that it believed sentence would adequately address the objectives of punishment and deterrence was adequate explanation
E. holding that the courts statement that the sentence was sufficient and a greater sentence is not necessary did not contradict the requirements of 3553a
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Read the following excerpt from a US court opinion:
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the scope of the duty to avoid causing emotional distress that results from negligence. A. Duty and Foreseeability In general, courts rely on the concept of “foreseeability” to determine whether the defendant owed a duty to the claimant in a negligence action and examine whether the risk to the claimant was “reasonably foreseeable” to the defendant. See, e.g., District of Columbia v. Shannon, 696 A.2d 1359, 1366 (D.C.1997); Haynesw orth, v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C.1994). If the injury that befell the plaintiff was “reasonably foreseeable” to the defendant, then courts will usually conclude that the defendant owed the plaintiff a duty to avoid causing that injury; if the injury was not “reasonably foreseeable,” then there was no duty. Compare Shannon, 696 A.2d at 1366 , with Galloway v. Safeway Stores, Inc., 632
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the defendants motion for discharge was premature and thus properly denied by the trial court
B. holding that defendants failure to renew their motion for judgment as a matter of law which was denied by the district court when they made it at the close of the evidence limited the relief the appellate court could grant to a new trial
C. holding that a successive 3850 motion can be denied on the ground that it is an abuse of process if there is no reason why the issue could not have been raised in a previous motion
D. holding that the trial court may not grant summary judgment on a ground not raised in the motion
E. holding that because playground accident due to poor maintenance could have been reasonably foreseeable to the district trial court properly denied districts motion for judgment on the ground it owed no duty to child using playground
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Read the following excerpt from a US court opinion:
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198 N.J.Super. 214, 217, 486 A.2d 932 (App.Div.1985)); see also Buck v. Henry, 207 N.J. 377, 390, 25 A.3d 240; (2011); In re Attorney Gen.’s “Directive on Exit Polling: Media & Non-Partisan Pub. Interest Groups ”, 200 N.J. 283, 297-98, 981 A.2d 64 (2009); DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 307, 865 A.2d 649 (2005). The Court’s construction of N.J.S.A 39:4— 88(b) gives meaning to all of the! statute’s language, and thereby effects the intent of the Legislature. Moreover, if N.J.S.A 39:4-88(b) precludes only unsafe lane changes, a driver would not violate the statute even by allowing a vehicle to straddle two lanes or swerve back and forth over the lines defining traffic lanes, unless that conduct created a safety issue. See State v. Lewis, 185 N.J p.1998) ; Rowe v. State, 363 Md. 424, 769 A.2d 879,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures
B. holding that exclusionary rule only requires exclusion of evidence obtained in violation of constitutional rights and that exclusion of evidence obtained in violation of statutory rights is not necessarily required
C. holding that one claim was not preempted because it did not allege the violation of duties created by any welfare plan but a violation of duties as a past employer
D. holding that the language of the statute clearly requires proof of a causal connection between the drivers intoxication and the death of another person
E. holding that violation of fl stat ann 316089a requires evidence that the drivers conduct created a reasonable safety concern
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Read the following excerpt from a US court opinion:
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1988, when Section 9711(h) required a remand for imposition of a sentence of life imprisonment in instances where this Court vacated a defendant’s sentence of death, he would not have been subjected to the possibility of a second death sentence under the amended version of Section 9711. Appellant’s Brief at 42. Thus, Appellant claims he is subjected to harsher punishment than individuals who had their death sentences vacated by this Court prior to 1988. This Court, however, has repeatedly rejected the argument that “retroactive” application of Section 9711(h)(4) offends a defendant’s due process and equal protection rights, and we have held that application of Section 9711(h)(4) is constitutionally permissible. See Commonwealth v. Chambers, 546 Pa. 870, 381-82, 685 A.2d 96, 102 (1996) ; Commonwealth v. Young, 536 Pa. 57, 66, 637
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What is the most suitable continuation to the opinion? Your options are:
A. holding that retroactive application of amended guidelines provision is not plain error
B. holding that application of section 9711h as amended did not deprive appellant of any constitutional right
C. holding that appellant had waived any objection to an instruction that he had himself introduced and which was amended by the state without objection from appellant
D. holding that a defendant has a constitutional right to counsel as a matter of right on direct appeal
E. holding that where appellant did not submit permit application until four years after the ordinance in question was amended appellant had no vested rights
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Read the following excerpt from a US court opinion:
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Apex are evident in this case: the viability of the legal malpractice claims alleged by the clients depends on the outcome of personal injury litigation in Mexico and in federal court, where the only procedural progress has been the determination of a presumptive forum in Mexico. See id. The alleged injuries are intertwined with and dependent upon further hypothetical adjudication by both Mexican courts and the federal district court. Similarly, in the context of accounting malpractice, the Texas Supreme Court held that a cause of action for' negligence based on the accountant’s use of the cash instead of the accrual method of accounting for tax purposes did not accrue until the Internal Revenue Service had assessed a tax deficiency. Atkins v. Crosland, 417 S.W.2d 150, 158 (Tex.1967) ; see also Street v. Honorable Second Court of
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What is the most suitable continuation to the opinion? Your options are:
A. holding that cause of action for malpractice did not arise until the tax deficiency was assessed because prior to assessment the plaintiff had not been injured
B. holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice
C. holding that plaintiffs legal malpractice claim was not ripe until the appeal had been exhausted because plaintiffs harm remained speculative until then
D. holding that a tax refund claim must be dismissed if the principal tax deficiency has not been paid in full
E. holding that the debtor lacked standing to bring a claim against the internal revenue service for the improper assessment of a tax deficiency because the cause of action was the property of the estate and had not been abandoned to the debtor
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Read the following excerpt from a US court opinion:
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F.3d at 560-62, 566-67. 17 . Id. at 566-67. 18 .Id. at 567. 19 . United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir.2008). 20 . United States v. Scruggs, 714 F.3d 258, 262 (5th Cir.2013). 21 . 18 U.S.C. § 3231. 22 . Scruggs, 714 F.3d at 262 (internal quotation marks and citations omitted). 23 . See id. at 263 ("Even though a [subsequent Supreme Court case] might have rendered the instant information factually insufficient, it did not divest the district court of subject matter jurisdiction over the case.” (emphasis in original, internal quotation marks omitted)); United States v. Scruggs, 691 F.3d 660, 668-69 (5th Cir.2012) (reaching a similar conclusion). 24 . United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). 25 . See Scruggs, 691 F.3d at 668 . 26 . United States v. Carreon-Palacio, 267
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the abstract of judgment may not sufficiently establish that the defendant pled guilty to a specific crime when the only other document provided was the charge which simply contained the generic broad statutory language
B. holding that in connection with a motion to dismiss the court may consider a document not attached to the pleadings where the plaintiffs claim depends on the contents of a document the defendant attaches the document to its motion to dismiss and the parties do not dispute the authenticity of the document even though the plaintiff does not explicitly allege the contents of that document in the complaint
C. holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted
D. holding that there was no jurisdictional defect when the language of the charging document tracked the statutory language even though the facts proffered at the plea hearing were insufficient to establish that the defendant committed the crime
E. holding that the complaint pled a claim under the unamended 3729a2 in part because it tracked the language of the statute
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Read the following excerpt from a US court opinion:
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exculpatory findings.” Standing as it does, “could have” is merely an introduction to speculation and is not a substitute for “concrete evidence.” Id. There was no abuse of discretion, and there is no basis to disturb the judge’s denial of the motion to suppress. See Commonwealth v. O’Day, ante 296, 307 (2003) (affirming denial of motion to dismiss due to inadequate showing that Commonwealth’s intentional destruction of infernal device denied defendant access to exculpatory evidence); Commonwealth v. Cintron, supra at 785 (affirming denial of motion to dismiss or suppress due to defendant’s failure to show that access to original fingerprint would have provided evidence more favorable than did access to photographs of fingerprint); Commonwealth v. Gomes, 403 Mass. 258, 277 (1988) ; Commonwealth v. Neal, 392 Mass. 1, 12 (1984)
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What is the most suitable continuation to the opinion? Your options are:
A. holding the tenday requirement was ministerial and the defendant failed to show he was prejudiced by the delay
B. holding that defendant failed to show that lack of photographs of test plates used to analyze blood stains prejudiced his case
C. holding blood test taken for independent medical purpose is not same as blood test taken pursuant to section 3755a
D. holding that a defendants right to an independent blood alcohol test means the right to a test that is not subject to government manipulation
E. holding that funds for an accountant were appropriately denied where defendant did not show that lack of an accountant prejudiced his case
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