Context: . The government relies on Whren for the proposition that so long as there is probable cause to arrest, it does not matter what the officer's true motivation is.

See Whren v. United States, 517 U.S. at 812-13, 116 S.Ct. 1769 (ulterior, even pretextual motives do not invalidate stop of vehicle and arrest for traffic offense based on probable cause to believe violation of law has occurred); see also Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (so long as arrest is supported by probable cause Fourth Amendment not violated even if officer had pretextual subjective motive for stopping driver for speeding); United States v. Bookhardt, 277 F.3d 558, 565 (D.C.Cir.2002) (even if stop is pretext for search, officer’s subjective intent is irrelevant so long as there was probable cause to believe driver had committed traffic violation); United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir.1998), cert. denied, 534 U.S. 897, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001) (officer's use of traffic violation as pretext to stop car in order to obtain evidence of more serious crime is of no constitutional significance).


even if stop is pretext for search, officer's subjective intent is irrelevant so long as there was probable cause to believe driver had committed traffic violation


officer's use of traffic violation as pretext to stop car in order to obtain evidence of more serious crime is of no constitutional significance


Context: Since Kalina, the Ninth Circuit has repeatedly held that prosecutors are not entitled to absolute immunity when they swear to facts underlying a charging document. "[I]n personally attesting, '[the prosecutor in Kalina] performed an act that any competent witness might have performed,' and was thus not entitled to absolute immunity."

where prosecutor signs and submits affidavit in support of arrest warrant, he acts as a witness, "[ljike the prosecutor in Kalina," and is not entitled to absolute immunity

Milstein, 257 F.3d at 1010 (quoting Kalina, 522 U.S. at 129-30, 118 S.Ct. 502); see id. (quoting Kalina, 522 U.S. at 131, 118 S.Ct. 502) (“[T]he only function that [the prosecutor] performs in giving sworn testimony is that of a witness.”); Morley, 175 F.3d at 760 (where prosecutor signs and submits affidavit in support of arrest warrant, he acts as a witness, “[ljike the prosecutor in Kalina,” and is not entitled to absolute immunity); see also Malley, 475 U.S. at 340-41, 106 S.Ct. 1092 (like complaining witness, police officer swearing to affidavit in support of warrant not afforded absolute immunity).


Context: The Norris-LaGuardia Act achieved protection of these rights by divesting federal courts of the equitable power to issue injunctions or temporary restraining orders except in those situations specifically enumerated in SS 4 of the Act.

The NorrisLaGuardia Act places a "limitation upon the jurisdiction and authority of courts of the United States in labor disputes"

See 29 U.S.C. § 104 (1992); United Bhd. of Carpenters & Joiners of Am. v. United States Bay Counties Dist. Council of Carpenters of United Bhd. of Carpenters & Joiners of Am., 330 U.S. 395, 401, 67 S.Ct. 775, 779, 91 L.Ed. 973 (1947) (The NorrisLaGuardia Act places a “limitation upon the jurisdiction and authority of courts of the United States in labor disputes”); see also Burlington N. R.R. v. Bhd. of Maintenance of Way Employees, 481 U.S. 429, 434, 107 S.Ct. 1841, 1845, 95 L.Ed.2d 381 (1987) (“In the Norris-LaGuardia Act, Congress divested federal courts of the power to enjoin secondary picketing in railway labor disputes.”).

"In the Norris-LaGuardia Act, Congress divested federal courts of the power to enjoin secondary picketing in railway labor disputes."


Context: For essentially the reasons provided by the District Court, we affirm the dismissal of McKeon's claims alleging malicious prosecution and false arrest against Daley in his individual capacity, her claims against Daley in his official capacity, and her claims against the County of Herkimer. Even presuming that Daley gave Ahern the expired subpoena, we agree with the District Court's conclusion that McKeon failed to raise a genuine issue of material fact regarding Daley's alleged violation of her Fourth Amendment rights. As the District Court indicated, McKeon recognized the subpoena was "expired" be fore she agreed to accompany Ahern; she consulted with her attorney before agreeing to accompany Ahern to Daley's office; and she received the benefit of her attorney's presence and advice at Daley's office.

See United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990) (listing factors to determine whether a reasonable person, in light of all the circumstances, would feel that he was not free to leave); cf. United States v. Waksal, 709 F.2d 653, 660 (11th Cir.1983) (finding violation of Fourth Amendment rights when officers retained suspect’s airline ticket and driver’s license and gave no indication that suspect was free to leave, to refuse consent to a search, or to contact an attorney).

finding violation of Fourth Amendment rights when officers retained suspect's airline ticket and driver's license and gave no indication that suspect was free to leave, to refuse consent to a search, or to contact an attorney


Context: Barksdale and Lozano, for example, fall in this category. But reliance on state law duties seems inappropriate, as we observed in Baskin and as indicated by subsequent Supreme Court decisions.

"A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not 'all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment.' "

See DeShaney, 489 U.S. at 189, 109 S.Ct. at 998 (“A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not ‘all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment.’ ”); Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 667, 88 L.Ed.2d 662 (1986) (“Jailers may owe a special duty of care to those in their custody under state tort law ... but ... we reject the contention that the Due Process Clause of the Fourteenth Amendment embraces such a tort law concept.”); Davis v. Scherer (rejecting breach of state law duties as a basis to deny qualified immunity under section 1983).

"... recent Supreme Court decisions call into question the proposition that a breach of duties imposed by state law can form the basis of an action under section 1983"

See also Thompkins v. Belt, 828 F.2d 298, 304 n. 8 (5th Cir.1987) (“... recent Supreme Court decisions call into question the proposition that a breach of duties imposed by state law can form the basis of an action under section 1983”).


"Jailers may owe a special duty of care to those in their custody under state tort law ... but ... we reject the contention that the Due Process Clause of the Fourteenth Amendment embraces such a tort law concept."


Context: Union members are considered to be in privity with their union for purposes of res judicata. See Adams v. Pension Ben.

"Courts have recognized that unions are in privity with their membership for the purposes of res judicata."

Guar. Corp., 332 F.Supp.2d 231, 239 n. 8 (D.D.C.2004) (“Courts have recognized that unions are in privity with their membership for the purposes of res judicata.”); Heade v. Washington Metro. Area Transit Auth., No. 09-02460, 2010 WL 938462, at *2 n. 2 (D.D.C. Mar. 12, 2010) (“Plaintiff’s contention that the arbitration’s findings do not bar her claim because she was not a party to that proceeding is also without merit .... [since] she was in privity with her union.”); see also Hitchens v. County of Montgomery, 98 Fed.Appx. 106, 114 (3d Cir.2004) (“[C]ourts have held union members to be in privity with the union and have held-that a decision against a union can bind union members in a subsequent action.” (citing Handley v. Phillips, 715 F.Supp. 657, 666-67 (M.D.Pa.1989); Stokes v. Bd. of Tr. of Temple Univ., 683 F.Supp. 498, 502 (E.D.Pa.1988)); Monahan v. Dep’t. of Corr., 214 F.3d 275, 285-86 (2d Cir.2000) (recognizing that union members’ “interests [are] adequately represented” by the union); Meza v. Gen. Battery Corp., 908 F.2d 1262, 1268 (5th Cir.1990) (“Federal courts have long recognized that individual members of labor unions ... can be bound by judgments in suits brought by the union____”).

recognizing that union members' "interests [are] adequately represented" by the union


"Federal courts have long recognized that individual members of labor unions ... can be bound by judgments in suits brought by the union____"


"Plaintiff's contention that the arbitration's findings do not bar her claim because she was not a party to that proceeding is also without merit .... [since] she was in privity with her union."


Context: If the cireumstances warrant, however, a court will stay its case pending resolution of independent proceedings which bear upon the case.

But see Adolph Coors, 89 F.R.D. at 158 (federal district court declined to stay proceedings despite the pendency of a state court action in the same case because it was not clear whether the state court would have jurisdiction over the case).

Leyva v. Certified Grocers of Calif, 593 F.2d 857, 864 (9th Cir.1979) (trial court had authority to stay adjudication of employment claims pending arbitration of contract claims which would be of valuable assistance to the court); Procter & Gamble Distrib. Co. v. Lloyd's Underwriters, 44 Misc.2d 872, 255 N.Y.S2d 361, 364-66 (N.Y.Sup.Ct.1964) (state trial court had authority to stay proceedings until determination of two pending federal court actions on related issues).


state trial court had authority to stay proceedings until determination of two pending federal court actions on related issues


Context: And, we cannot say that the trial court's assessment of the probative value of the conviction for impeachment purposes was so off the mark as to have rendered defendant's trial unfair. Although the dissent viewed the conviction as only "theoretically" speaking to credibility, it is at least as probative of credibility as prior convictions used in numerous other proceedings.

affirming State's use of seven-year-old conviction for possession of marijuana as "clearly havi'ing] a bearing on ... credibility"

See, e.g., State v. Lagares, 247 N.J.Super. 392, 396-97, 589 A.2d 630 (App.Div.1991) (affirming State’s use of seven-year-old conviction for possession of marijuana as “clearly havi'ing] a bearing on ... credibility”), rev’d on other grounds, 127 N.J. 20, 601 A.2d 698 (1992); see also Slate v. Hawthorne, 49 N.J. 130,145, 228 A.2d 682 (1967) (Weintraub, C.J., concurring) (noting the “widespread belief that conviction for crime has ‘probative value’ with respect to the credibility of a witness”), overruled on other grounds by Sands, supra, 76 N.J. at 147, 386 A.2d 378.

noting the "widespread belief that conviction for crime has 'probative value' with respect to the credibility of a witness"


Context: Thus, at the time Berman commenced the action, his cause of action had not accrued. This renders his claim fatally defective.

"If a plaintiff has no valid cause of action on the facts existing at the time of' filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending."

See Hasam Realty Corp. v. Dade County, 178 So.2d 747, 748 (Fla. 3d DCA 1965), cert. dismissed, 192 So.2d 499 (Fla.1966)(“If a plaintiff has no valid cause of action on the facts existing at the time of' filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending.”); see also Rolling Oaks Homeowner’s Ass’n, Inc. v. Dade County, 492 So.2d 686 (Fla. 3d DCA 1986), rev. denied, 503 So.2d 328 (Fla.l987)(same); Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607 (Fla. 4th DCA 1975)(stating the general rule that a “plaintiff may not be permitted to cure the defect of non-existence of a cause of action when suit was begun, by amendment of his pleadings to cover subsequently accruing rights”).

stating the general rule that a "plaintiff may not be permitted to cure the defect of non-existence of a cause of action when suit was begun, by amendment of his pleadings to cover subsequently accruing rights"


Context: In Twining, the Court observed that "[e]xpert opinion testimony concerning a person's mental status is not admissible unless the expert holds his or her opinion with reasonable medical and psychological certainty."

delineating an expert's qualifications as a criterion separate from "reasonable medical certainty" in evaluating the admissibility of the expert's testimony

See id. at 891-93 (equating “reasonable medical certainty” with “more likely than not”); State v. Martin, 14 Wn. App. 74, 76-77, 538 P.2d 873 (1975), review denied, 86 Wn.2d 1009 (1976) (delineating an expert’s qualifications as a criterion separate from “reasonable medical certainty” in evaluating the admissibility of the expert’s testimony); see also State v. Tyler, 77 Wn.2d 726, 756-59, 466 P.2d 120 (1970), judgment vacated in part on other grounds, 408 U.S. 937, 92 S. Ct. 2865, 33 L. Ed. 2d 756 (1972) (testimony of two psychiatrists regarding defendant’s diminished capacity as a result of intoxication was properly excluded as lacking in “reasonable medical certainty” because the psychiatrists did not examine defendant within the relevant time period and did not know what kinds, amounts, or intervals of drugs defendant allegedly consumed); State v. Terry, 10 Wn. App. 874, 884, 520 P.2d 1397 (1974) (testimony of pathologist, who exhibited confusion concerning the meaning of “rea sonable medical certainty” and would only testify as to the “more probable than not” cause of death, satisfied the standard).

testimony of two psychiatrists regarding defendant's diminished capacity as a result of intoxication was properly excluded as lacking in "reasonable medical certainty" because the psychiatrists did not examine defendant within the relevant time period and did not know what kinds, amounts, or intervals of drugs defendant allegedly consumed


testimony of pathologist, who exhibited confusion concerning the meaning of "rea sonable medical certainty" and would only testify as to the "more probable than not" cause of death, satisfied the standard


Context: Courts have declined to recognize a state evidentiary privilege when doing so would impose a substantial cost to federal substantive and procedural policy, particularly when a plaintiff would be precluded from pursuing his federal claims.

See Univ. of Penn. v. EEOC, 493 U.S. 182, 193, 202, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (refusing to create a new common-law privilege protecting records relating to the peer review process in a Title VII action, finding the records should be produced in part because it was the very peer review process itself that was at issue); Shadur, 664 F.2d at 1059 (holding that the state privilege should not apply when the peer review records sought directly related to the allegations challenging the peer review process); Accreditation Ass’n for Ambulatory Health Care, Inc. v. United States, 2004 WL 783106 (N.D.Ill.2004) (refusing to recognize the Illinois Medical Studies Act evidentiary privilege because, inter alia, the Government’s interest in accessing the information to investigate alleged health care fraud outweighed the policy underlying the peer-review privilege); State of Ill., 148 F.R.D. 587 (refusing to recognize the Illinois Medical Studies Act evidentiary privilege in a federal civil rights case because doing so would thwart the purpose of the underlying federal statute); but see Freeman v. J.W. Fairman, Jr., 917 F.Supp. 586 (N.D.Ill.1996) (recognizing the state-law privilege because there was no federal claim to which the records sought would be relevant).


holding that the state privilege should not apply when the peer review records sought directly related to the allegations challenging the peer review process


refusing to recognize the Illinois Medical Studies Act evidentiary privilege because, inter alia, the Government's interest in accessing the information to investigate alleged health care fraud outweighed the policy underlying the peer-review privilege


refusing to recognize the Illinois Medical Studies Act evidentiary privilege in a federal civil rights case because doing so would thwart the purpose of the underlying federal statute


Context: This provision leaves no room in Florida for a purely prospective application of a judicial determination that a given search or seizure is constitutionally unreasonable. Once it is decided, as by Payton, that this is the case, the Florida courts are mandated to reject any evidence thus secured.

"constitutional principle applies . . . regardless of the scope of the Fourth Amendment exclusionary rule."

See Grubbs v. State, 373 So.2d 905 (Fla.1979) (exclusionary rule applicable in probation proceeding only because of Florida constitutional provision); see also, Odom v. State, 403 So.2d 936 (Fla. 1981) (“constitutional principle applies . . . regardless of the scope of the Fourth Amendment exclusionary rule.”)


Context: Guzzino mistakenly argues that the Northern District of Indiana has jurisdiction because his custodian is the United States Attorney General. But Guzzino did not name the Attorney General as a respondent, and, in any event, the Attorney General would not be a proper respondent.

See Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994) (concluding that prison wardens, not individuals who merely have power to release a prisoner (including an attorney general), are custodians for habeas corpus purposes because they have “day-to-day control over the prisoner and ... can produce the actual body”); see also Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir.1996) (concluding that if a petitioner under § 2254 is in prison, then the warden of the prison is the proper respondent, not a state’s attorney general).

concluding that if a petitioner under SS 2254 is in prison, then the warden of the prison is the proper respondent, not a state's attorney general


Context: Finally, in a decision affirmed by the Ninth Circuit, a Montana district court refused to hold Cable News Network ("CNN") liable for secretly filming an investigative search of plaintiffs' property conducted by law enforcement agents who had consented to CNN's presence. Instead, the recordings were made for the purpose of producing a news story and for the defendants' commercial gain."

upholding summary judgment on an eavesdropping claim on the grounds that the plaintiff had failed to establish that the defendants had taped the conversation at issue "or the specific purpose" of committing the torts alleged

Berger, 1996 WL 390528 at *3; aff'd, Berger, 129 F.3d at 516 (“we hold the media appellees not liable under the Federal Wiretap Act”); see also Deteresa, 121 F.3d at 467 (upholding summary judgment on an eavesdropping claim on the grounds that the plaintiff had failed to establish that the defendants had taped the conversation at issue “or the specific purpose” of committing the torts alleged).

"we hold the media appellees not liable under the Federal Wiretap Act"


Context: Consequently, we do not weigh the interests of granting and denying immediate appellate review in each and every case. Consistent with Supreme Court precedent and the general purposes of the final judgment rule, we determine whether an order is appealable as a general or categorical matter.

"[WJe have consistently eschewed a case-by-case approach to deciding whether an order is sufficiently collateral."

See Cunningham v. Hamilton County, 527 U.S. 198, 206, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (“[WJe have consistently eschewed a case-by-case approach to deciding whether an order is sufficiently collateral.”); Digital Equip., 511 U.S. at 868, 114 S.Ct. 1992 (“[T]he issue of appeal-ability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted, by a prompt appellate court decision.” (quotation marks, citation, and alteration omitted)); see also In re Carco Elec., 536 F.3d 211, 213 (3d Cir.2008) (“[T]he Supreme Court’s statement in Cunningham that we should not apply the collateral order doctrine on a ‘case-by-case’ basis indicates that we should not attempt to carve out individualized, case-specific exceptions to the general rule that discovery orders are not immediately appealable.”).

"[T]he Supreme Court's statement in Cunningham that we should not apply the collateral order doctrine on a 'case-by-case' basis indicates that we should not attempt to carve out individualized, case-specific exceptions to the general rule that discovery orders are not immediately appealable."


Context: Here, the commissioner found that wife deposited $20,500 from an inheritance into the account on March 25, 1991. The evidence established that no withdrawals were made from the account after wife deposited the inheritance money.

See Brown v. Brown, 72 N.C.App. 332, 324 S.E.2d 287, 289 (1985) (separate property deposited into marital bank account was retraceable where no withdrawals were made after deposit and balance never fell below amount of deposit); cf. Pollock v. Pollock, 7 Wash.App. 394, 499 P.2d 231, 237 (1972) (separate property deposited into marital bank account was community property where party failed to establish character of funds withdrawn thereafter).


Context: Indeed, the United States Supreme Court has held that the United States Constitution prohibits the federal government from commandeering a state legislature or a state executive and making them foot soldiers in the creation and enforcement of federal law.

See, e.g., Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 2384, 138 L.Ed.2d 914, 944 (1997) (invalidating provisions of Brady Handgun Violence Prevention Act because United States Constitution prohibits requiring state executive officials from enforcing federal law); New York v. United States, 505 U.S. 144, 180-83, 112 S.Ct. 2408, 2430-32, 120 L.Ed.2d 120, 153-55 (1992) (invalidating environmental law provision that commandeered state legislature); see also Mazzone, 92 Minn. L. Rev. at 75-76 (arguing consolidation of constitutional law fails to respect the importance placed upon state courts by the United States Constitution).


Context: Other cases make clear that trips within a single state are made in interstate commerce when they are part of "a practical continuity of movement of the goods" in interstate commerce.

Walling v. Jacksonville Paper Co., 317 U.S. at 568, 63 S.Ct. at 335 (involving wholesale distributor of paper products made outside the state but transported only to customers within the state); see also Baez, 938 F.2d at 181-82 (involving armored trucks delivering to Florida banks checks and other instruments bound for banks outside Florida); Galbreath v. Gulf Oil Corp., 413 F.2d 941 (5th Cir.1969) (involving oil company’s transport within Georgia of petroleum products originating from refineries in Texas and Mississippi); Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37 (5th Cir.1962) (involving wholesale soft drink distributor transporting drinks bottled in Georgia from Alabama warehouse to Alabama customers and returning empty bottles to Alabama warehouse, where other trucks took them back to Georgia).


involving oil company's transport within Georgia of petroleum products originating from refineries in Texas and Mississippi


involving wholesale soft drink distributor transporting drinks bottled in Georgia from Alabama warehouse to Alabama customers and returning empty bottles to Alabama warehouse, where other trucks took them back to Georgia


Context: Although Massachusetts has yet to define what conduct constitutes "more than a minor or insignificant business relationship," the Supreme Judicial Court, the Appeals Court and the federal courts have tended to find such a relationship where the defendant played an active role in the underlying transaction.

holding that despite the absence of a contractual relationship and no formal authority over the mortgagor, since the defendant was a member of the mortgagor's inner circle, the mortgagee could sustain his 93A claim

Compare Kattar, 433 Mass. at 14-15 (holding that despite the absence of a contractual relationship and no formal authority over the mortgagor, since the defendant was a member of the mortgagor’s inner circle, the mortgagee could sustain his 93A claim); Reisman, 57 Mass.App.Ct. at 125 (holding that the shareholders could bring a 93A claim against an accounting firm that actively participated in the transaction at issue); Standard Register, 38 Mass.App.Ct. at 551 (holding that the purchaser could sustain a 93A claim against the president and vice-president of a manufacturing company because they took an active role in the dealings with the plaintiff); Mongeau v. Boutelle, 10 Mass.App.Ct. 246, 247-48 (1980) (holding that the purchaser could bring a 93A claim against the real estate broker because the broker misinformed the plaintiff as to the acreage of the parcel and failed to disclose that the property was encumbered); Chestnut Hill Development Corp. v. Otis Elevator Co., 653 F.Sup. 927, 933 (D.Mass. 1987) (holding that the owner could maintain a 93A claim against the subcontractor where there was a genuine issue of material fact as to whether the owner was the third-party beneficiary of the contract between the general contractor and the subcontractor); contrast Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324 (1983) (holding that the purchaser of the land could not maintain a 93A claim against the surveyor where the surveyor did not participate in the negotiations or in the signing of any of the documents, and did not misrepresent the size of the lot); John Boyd Co. v. Boston Gas Co., 775 F.Sup. 435, 440 (D.Mass. 1991) (holding that the owner of the land could not bring a 93A action against a prior owner of the land, who was not the seller, because there was no business connection between the two parties); Cash Energy, Inc. v. Weiner, 768 F.Sup. 892, 893-94 (D.Mass. 1991) (holding that an abutter could not bring a 93A claim because there was no business relationship with the defendant).


holding that the shareholders could bring a 93A claim against an accounting firm that actively participated in the transaction at issue


holding that the purchaser could sustain a 93A claim against the president and vice-president of a manufacturing company because they took an active role in the dealings with the plaintiff


holding that the purchaser could bring a 93A claim against the real estate broker because the broker misinformed the plaintiff as to the acreage of the parcel and failed to disclose that the property was encumbered


Context: To the extent Plaintiff seeks back pay from Defendants in their official capacities, the Eleventh Amendment bars her claim. An award of back pay is "retroactive relief' and "would constitute the payment of money damages from the state treasury in a suit against state officials."

Lussier v. Dugger, 904 F.2d 661, 669 (11th Cir.1990) (noting that absent abrogation, retroactive payment of salary and benefits is not prospective injunctive relief and is therefore barred by the Eleventh Amendment); see also Cobb v. Alabama, 10-CV-502-MHT, 2011 WL 3666696, at *3 (M.D.Ala. Aug. 22, 2011) (refusing an award of back pay on an official capacity claim), Earl v. Dupree, 98-0898 CB-L, 2001 WL 36152178, *2 (S.D.Ala. Feb. 21, 2001) (same).


Context: Section 287.250.4 gives the Commission "considerable discretion in determining an employee's average weekly wage" when there are exceptional facts present. Oberley at 958. While the statute does not specifically define "exceptional facts," we note that Missouri courts have upheld the application of the provision when circumstances prevented the Commission from using other statutory formulas to fairly and justly calculate a weekly wage.

intermittent and part-time nature of an employee's work was deemed an exceptional fact that warranted application of SS 287.250.4

See Id. at 957-58 (exceptional fact existed when president and sole shareholder of S corporation received both wages and payments for personal expenses); Ash v. Ahal Contracting Co., 916 S.W.2d 439, 441 (Mo.App.1996) (intermittent and part-time nature of an employee’s work was deemed an exceptional fact that warranted application of § 287.250.4); but see Thompson, 58 S.W.3d at 661-62 (no exceptional fact existed when parties disputed whether to include income from separate job, not the calculation of the award itself).


Context: Here, the defendant used the very instrumentality that he was not lawfully allowed to possess to injure his alleged assailant. This opinion does not, however, comment on any right the defendant may have to assert a justification defense.

explaining that when "a defendant was engaged in an unlawful activity or was in a place where he did not have a right to be at the time he was attacked, the common law duty to retreat still applies"

See Marrero v. State, 516 So.2d 1052, 1054 n. 3 (Fla. 3d DCA 1987) (stating “the defendant may very well be excused from his assault upon his assailant by reason of duress or self-defense without being excused from his possession of the firearm”); see also Dorsey, 74 So.3d at 527 (explaining that when “a defendant was engaged in an unlawful activity or was in a place where he did not have a right to be at the time he was attacked, the common law duty to retreat still applies”).

stating "the defendant may very well be excused from his assault upon his assailant by reason of duress or self-defense without being excused from his possession of the firearm"


Context: After close examination of the sentencing hearing transcript, we find that the Fcmfan error in this case was prejudicial to Walters. The Fanfan error affected the sentence Walters received because the mandatory nature of the Guidelines at the time of his sentencing forced the district court to impose at least the minimum 15-month term for count 1, in addition to the statutorily mandated 60-month consecutive sentence on count 2, where the court indicated that Walters's total imposed sentence of 75 months seemed too harsh.

noting that "the standard for determining whether an error affects substantial rights" is that "the error 'must have affected the outcome of the district court proceedings' "

See Mares, 402 F.3d at 521 (noting that “the standard for determining whether an error affects substantial rights” is that “the error ‘must have affected the outcome of the district court proceedings’ ”) (quoting Ola-no, 507 U.S. at 734, 113 S.Ct. 1770); see also Pineiro, 410 F.3d at 286 (explaining the standard as “the district court would have imposed the same sentence absent the error”).

explaining the standard as "the district court would have imposed the same sentence absent the error"


Context: . It is also apparent, however, that the right of publicity does not fit neatly into the category of tort-based lawsuits from which Congress sought to immunize interactive service providers, i.e., dissemination of damaging information via the internet.

See Zeran, 129 F.3d at 328 (involving negligence action against AOL alleging unreasonable delay in removing defamatory content); Ben Ezra, 206 F.3d at 983 (involving defamation and negligence claims against AOL); Blumenthal v. Drudge, 992 F.Supp. 44, 46 (D.D.C.1998) (involving defamation claim); see also Gucci, 135 F.Supp.2d at 417 (stating that the legislative history reflects only that section 230(c) “immunizes ISPs from defamation and other, non-intellectual property, state law claims arising from third-party content”).

stating that the legislative history reflects only that section 230(c) "immunizes ISPs from defamation and other, non-intellectual property, state law claims arising from third-party content"


Context: .Based on the Court's conclusion that the jury's verdict was justified under the theory of promissory estoppel, a theory on which the jury was instructed, the Court need not decide the merits of plaintiff's contention that he need not show any particular reliance. The Court notes, however, that there is a persuasive line of cases holding that when an employer promulgates an employee handbook that would indicate an intent to be bound by the provisions contained therein, an enforceable unilateral contract is formed, even when the employee does not provide additional consideration beyond continuing to perform his duties.

Panto v. Moore Business Forms, Inc., 130 N.H. 730, 547 A.2d 260, 264 (1988); see also Duldulao v. St. Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 106 Ill.Dec. 8, 12, 505 N.E.2d 314, 318 (1987) (employee's continued work constitutes consideration for promises in policy statement when promise is clear, policy statement is disseminated to employee in a manner such that employee is aware of contents and reasonably believes it to be an offer, and employee continues work after learning of policy statement); Woolley, 491 A.2d at 1268 (employee’s continued services are sufficient acceptance and consideration for promise in employment manual, and reliance on such promise is to be presumed); Pine River State Bank v. Mettille, 333 N.W.2d 622, 629-30 (Minn.1983) (employee’s retention of employment with knowledge of new or changed conditions constitutes acceptance of offer of unilateral contract); cf. Small v. Springs Indus., Inc., 292 S.C. 481, 357 S.E.2d 452, 454 (1987) (“[hjaving announced the policy, presumably with a view to obtaining the benefit of improved employee attitudes and behavior and improved quality of the work force, the employer may not treat its promise as illusory”) (internal citation and quotation omitted).

"[hjaving announced the policy, presumably with a view to obtaining the benefit of improved employee attitudes and behavior and improved quality of the work force, the employer may not treat its promise as illusory"


employee's continued services are sufficient acceptance and consideration for promise in employment manual, and reliance on such promise is to be presumed


employee's retention of employment with knowledge of new or changed conditions constitutes acceptance of offer of unilateral contract


Context: Moreover, in this situation, Aetna made a factual determination that certain diagnostic testing and IVIG treatments were not medically necessary. "[F]actual determinations made by [an] administrator during the course of a benefits review will be rejected only upon the showing of an abuse of discretion." Meditrust Fin. Servs.

holding that an administrator's findings of fact should always be reviewed for an abuse of discretion, based on the record before the administrator

Corp., 168 F.3d at 213); Vercher, 379 F.3d at 226 (noting “that even where the plan does not expressly give the administrator discretionary authority, ‘for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard’ ”) (quoting Pierre v. Connecticut Gen. Life Ins. Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1562 (5th Cir.), cert. denied, 502 U.S. 973, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991)); Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th Cir.1994) (commenting that “district courts in the Fifth Circuit review under an abuse of discretion standard a plan administrator’s factual determinations ... ”); see also Schadler, 147 F.3d at 395 (holding that an administrator’s findings of fact should always be reviewed for an abuse of discretion, based on the record before the administrator).

noting "that even where the plan does not expressly give the administrator discretionary authority, 'for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard' "


commenting that "district courts in the Fifth Circuit review under an abuse of discretion standard a plan administrator's factual determinations ... "


Context: The federal courts also recognize the distinction and have strongly upheld the informant's privilege.

although informant observed all crucial events and was characterized as a "supporting player" to the investigators, nondisclosure of his identity was upheld

See United States v. Cooper, 949 F.2d 737, 749 (5th Cir.1991) (nondisclosure of informant’s identity upheld because he was neither a witness nor participant), cert. denied,-U.S.-, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992); United States v. Bowser, 941 F.2d 1019, 1022 (10th Cir.1991); United States v. Singh, 922 F.2d 1169, 1172 (5th Cir.), cert. denied,-U.S.-, 111 S.Ct. 2066, 114 L.Ed.2d 471, and cert. denied sub nom., Khanna v. U.S., •—• U.S.-, 112 S.Ct. 260, 116 L.Ed.2d 214 (1991); United States v. Martinez, 922 F.2d 914, 921 (1st Cir.1991); United States v. Moralez, 917 F.2d 18, 19 (10th Cir.1990); see also United States v. Blevins, 960 F.2d 1252, 1258 (4th Cir.1992) (although informant observed all crucial events and was characterized as a "supporting player” to the investigators, nondisclosure of his identity was upheld); United States v. Mabry, 953 F.2d 127, 131-32 (4th Cir.1991) (informer's identity could not be disclosed even though he introduced defendant to the agent who purchased the cocaine), cert, denied, - U.S. -, 112 S.Ct. 1951, 118 L.Ed.2d 555 (1992); United States v. Harrington, 951 F.2d 876, 878 (8th Cir. 1991) (nondisclosure upheld where informant made controlled purchases of cocaine from defendant); United States v. Gutierrez, 931 F.2d 1482, 1490-91 (11th Cir.) (although informant's participation was "substantial," nondisclosure was affirmed), cert, denied, -— U.S. -, 112 S.Ct. 321, 116 L.Ed.2d 262, and cert. denied sub nom., Palacio v. U.S.,-U.S.-, 112 S.Ct. 398, 116 L.Ed.2d 347-48, and cert. denied sub nom., Palma-Rodriguez v. U.S., — U.S.-, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991), and cert. denied sub nom., Rogue v. U.S., — U.S. —, 112 S.Ct. 905, 116 L.Ed.2d 806 (1992); United States v. Batista-Polanco, 927 F.2d 14, 20 (1st Cir.1991) (informant’s presence during prior drug transactions was insufficient to defeat the privilege); United States v. Williams, 898 F.2d 1400, 1402 (9th Cir.1990) (purchased small quantities from defendant; nondisclosure affirmed); United States v. Alexander, 761 F.2d 1294, 1303 (9th Cir. 1985) (one informant visited defendant's ranch; nondisclosure upheld); United States v. Brinkman, 739 F.2d 977, 981 (4th Cir.1984) (two important discussions between defendant and informant were insufficient to require disclosure of informant's identity); United States v. Varella, 692 F.2d 1352, 1356 (11th Cir.1982) (informer was participant in drug transaction, but not integral; nondisclosure enforced), cert. denied sub nom., Gavin v. U.S., 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1392, and cert. denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983); United States v. Ward, 722 F.Supp. 1523, 1524-25 (S.D.Ohio 1989) (although informant was directly involved, because life was threatened nondisclosure was upheld); but see United States v. Palacios, 763 F.Supp. 380, 381 (N.D. Ill.1991) (disclosure of identity ordered because of informant’s direct participation).

nondisclosure of informant's identity upheld because he was neither a witness nor participant


informer's identity could not be disclosed even though he introduced defendant to the agent who purchased the cocaine


nondisclosure upheld where informant made controlled purchases of cocaine from defendant


informant's presence during prior drug transactions was insufficient to defeat the privilege


two important discussions between defendant and informant were insufficient to require disclosure of informant's identity


although informant was directly involved, because life was threatened nondisclosure was upheld


Context: In assessing the validity of appellant's claim, we must first address the reach of the Second Amendment. "It is settled law ... that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

concluding that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment and applies it against state and local governments

But see Nordyke v. King, No. 07-15763, 2009 WL 1036086 (9th Cir. Apr.20, 2009) (concluding that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and applies it against state and local governments).

See also, Bach v. Pataki, 408 F.3d 75, 84 (2d Cir.2005) (holding that the Second Amendment imposes a limitation on only federal, not state, legislative efforts.); State v. Mendoza, 82 Hawai’i 143, 920 P.2d 357, 360 (1996) (stating that the Second Amendment does not apply to the states through the Fourteenth Amendment to the United States Constitution).


stating that the Second Amendment does not apply to the states through the Fourteenth Amendment to the United States Constitution


Context: XI. Courts have held this immunity to extend to "state agents and state instrumentalities."

finding that the Ex parte Young exception "does not apply to actions against State officials seeking to compel their compliance with State law"

District Court Opinion, 675 F.Supp.2d at 679. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding an exception to Eleventh Amendment immunity “inapplicable in a suit against state officials on the basis of state law”); see also Antrican v. Odom, 290 F.3d 178, 187 (4th Cir.2002) (finding that the Ex parte Young exception “does not apply to actions against State officials seeking to compel their compliance with State law”).

holding an exception to Eleventh Amendment immunity "inapplicable in a suit against state officials on the basis of state law"


Context: This holding is entirely consistent with the conventional interpretation accepted by local courts.

See Cooper, 365 A.2d at 629 (holding that contracts for an indefinite period are excluded from the statute’s coverage); see also Farrow, 663 F.2d at 207 n. 29 (noting this distinction in the conventional view); cf. Coan v. Orsinger, 265 F.2d 575, 576-77 (D.C.Cir.1959) (concluding that contingencies that defeat a contract rather than complete its performance are within the statute).

holding that contracts for an indefinite period are excluded from the statute's coverage


Context: Yet as these sources themselves emphasize, many so-called plus factors simply "demonstrate that a given market is chronically noncompetitive," without helping to explain whether agreement or conscious parallelism is the cause. To be sure, providing this evidence demonstrates that plaintiffs' claim is not economically implausible.

"[I]f the claim is one that simply makes no economic sense[, plaintiffs] must come forward with more persuasive evidence to support their claim than would otherwise be necessary."

See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (“[I]f the claim is one that simply makes no economic sense[, plaintiffs] must come forward with more persuasive evidence to support their claim than would otherwise be necessary.”). But such evidence does not by itself suggest that defendants’ conduct shows agreement.

distinguishing "evidence of noncompetitive behavior" from "evidence that the structure of the market was conducive to such behavior"

See Flat Glass, 385 F.3d at 360-61; see also In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 658 (7th Cir.2002) (Posner, J.) (distinguishing “evidence of noncompetitive behavior” from “evidence that the structure of the market was conducive to such behavior”).


Context: Facts discovered as a result of such an encounter may provide probable cause to support a custodial arrest. The defendant's conduct during the Terry stop and the discovery of the vial indicated that his prior activities were more than merely "suspicious."

defendant's suspicious actions provided law enforcement officials with probable cause to open two small packages wrapped in duct tape

See Robles v. State, 510 N.E.2d 660 (Ind.1987) (defendant’s suspicious actions provided law enforcement officials with probable cause to open two small packages wrapped in duct tape); State v. Buckley, 426 So.2d 103 (La. 1983) (police observation of a suspicious transfer provided them with probable cause to search defendant’s purse); see also United States v. Green, 670 F.2d 1148 (D.C.Cir.1981) (officer’s observation of a suspicious transfer involving currency and a concealed object provided probable cause to search); United States v. White, 655 F.2d 1302 (D.C.Cir.1981) (probable cause to search found where, in a high narcotics area, police observed a transaction involving a small object and currency).

officer's observation of a suspicious transfer involving currency and a concealed object provided probable cause to search


probable cause to search found where, in a high narcotics area, police observed a transaction involving a small object and currency


police observation of a suspicious transfer provided them with probable cause to search defendant's purse


Context: . Federal habeas petitioners are also required to fact plead their claims.

"Habeas corpus petitions must meet heightened pleading requirements____" (citing 28 U.S.C. SS 2254 Rule 2(c)

See McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994) ("Habeas corpus petitions must meet heightened pleading requirements____” (citing 28 U.S.C. § 2254 Rule 2(c))); see also Borden v. Allen, 646 F.3d 785, 808-13 (11th Cir.2011) (comparing Alabama's post-conviction scheme to the federal rules governing habeas proceedings).


Context: This argument fails for three reasons. First, when clarity in the text of a law is required, legislative history by definition cannot supply it.

requiring a "clear statement" to extend "federal criminal jurisdiction" to an area "traditionally policed by the States"

See United States v. Nordic Village, 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (“[Ljegisla-tive history has no bearing on the ambiguity point [because] ... the ‘unequivocal expression’ of elimination of [the United States’] sovereign immunity that we insist upon is an expression in statutory text.”); Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (“[E]vi-dence of congressional intent must be both unequivocal and textual” to provide the clarity necessary to abrogate a State’s Eleventh Amendment immunity; “[l]egis-lative history generally will be irrelevant.”) (emphasis added); Gregory, 501 U.S. at 470, 111 S.Ct. 2395 (equating the dear-statement rule applied in the sovereign immunity context with the clear-statement rule applied in the context of Commerce Clause, legislation that would alter the federal-state balance); see also Cleveland, 531 U.S. at 24, 27, 121 S.Ct. 365 (requiring a “clear statement” to extend “federal criminal jurisdiction” to an area “traditionally policed by the States”).

"[Ljegisla-tive history has no bearing on the ambiguity point [because] ... the 'unequivocal expression' of elimination of [the United States'] sovereign immunity that we insist upon is an expression in statutory text."


equating the dear-statement rule applied in the sovereign immunity context with the clear-statement rule applied in the context of Commerce Clause, legislation that would alter the federal-state balance


Context: P 6. Had Bailey not raised the issue, however, this Court would be required to address the appealability of the circuit court's order on our own initiative.

noticing "plain error in the improvident granting of [the] judgment," the supreme court dismissed the appeal sua sponte for improper Rule 54(b

See Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285(¶ 5) (Miss.1999) (although a party fails to raise the issue as to whether the circuit court’s order is appealable, the appellate court “must address this question on [its] own initiative”); see also Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899 (Miss.1987) (noticing “plain error in the improvident granting of [the] judgment,” the supreme court dismissed the appeal sua sponte for improper Rule 54(b) certification).

although a party fails to raise the issue as to whether the circuit court's order is appealable, the appellate court "must address this question on [its] own initiative"


Context: This makes no sense, and it would render the entitlement to sue an empty one. We decline to read the entitlement provision in this manner.

"No rule of [statutory] construction necessitates our acceptance. of an interpretation resulting in patently absurd consequences."

See United States v. Brown, 833 U.S. 18, 27, 68 S.Ct. 376, 92 L.Ed. 442 (1948) (“No rule of [statutory] construction necessitates our acceptance. of an interpretation resulting in patently absurd consequences.”); see also Abdulshakur v. District of Columbia, 589 A.2d 1258, 1266 (D.C.1991) (“Courts avoid interpretations of statutes which lead to implausible results.”).

"Courts avoid interpretations of statutes which lead to implausible results."


Context: Trial Tr. 605-07, ECF 356. Smiths' ongoing questions as to the effectiveness of its own internal dual tower alternating regenerative drying system further suggests that such solution was "inventive" as it yielded somewhat "unexpected" results in that it appears to have yielded a far longer desiccant life than Smiths anticipated.

stating that the "objective evidence of nonobviousness includes ... unexpected results created by the claimed invention, [and] unexpected properties of the claimed invention"

See KSR, 550 U.S. at 416, 127 S.Ct. 1727 ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”); cf. In re Rouffet, 149 F.3d 1350, 1355 (Fed.Cir.1998) (stating that the “objective evidence of nonobviousness includes ... unexpected results created by the claimed invention, [and] unexpected properties of the claimed invention”).

"The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."


Context: Pond's first explanation is foreclosed by our prior decisions. He cannot rely on the district court's opinion to identify deficiencies in his complaint, and it is not an abuse of discretion for a court to refuse leave to amend on this basis.

finding no abuse of discretion when a district court refused to allow a post-judgment amendment based on the plaintiffs' argument that "they had no way of knowing that [a- letter] would factor heavily in the district court's decision"

See Kuyat, 747 F.3d at 444-45 (finding no abuse of discretion when a district court refused to allow a post-judgment amendment based on the plaintiffs’ argument that “they had no way of knowing that [a- letter] would factor heavily in the district court’s decision”); Leisure Caviar, 616 F.3d at 616-17 (refusing to find an abuse of discretion when a district court denied the plaintiffs request to “reopen the case by amending their complaint to take account of the court’s decision”); see also Ricker, 534 Fed.Appx. at 501 (refusing to find an abuse of discretion for denying a post-judgment motion to amend when the plaintiff claimed he was “unaware” of the defects in the complaint and deserved an opportunity to correct them).

refusing to find an abuse of discretion for denying a post-judgment motion to amend when the plaintiff claimed he was "unaware" of the defects in the complaint and deserved an opportunity to correct them


refusing to find an abuse of discretion when a district court denied the plaintiffs request to "reopen the case by amending their complaint to take account of the court's decision"


Context: Whether the failure resulted from excusable neglect depends on the nature of the omission itself, both in terms of cause and culpability. Consequently, until the reason for the omission is determined to be sufficiently blameless, the consequences of the failure, such as the effect on the parties or the impact on the judicial system, are not relevant.

In re Vertientes, Ltd., 845 F.2d 57, 60 (CA3 1988) (“The court has no discretion to grant an extension simply because no prejudice would result, or for any other equitable reason”); In re South Atlantic Financial Corp., 767 F.2d 814, 819 (CA11 1985) (The focus of the Rule is on the omission and the reasons therefor rather than on the effect on others), cert, denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986); see also Maressa v. A.H. Robins Co., 839 F.2d 220, 221 (CA4 1988) (no exception to claim filing deadlines based on general equitable principles).

"The court has no discretion to grant an extension simply because no prejudice would result, or for any other equitable reason"


The focus of the Rule is on the omission and the reasons therefor rather than on the effect on others


Context: "In deciding cases . . . [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to a jury's common sense in closing remarks." (Internal quotation marks omitted.)

prosecutor's remarks about driving time on Interstate 95 from West Haven to New Haven permissible appeal to jurors' common knowledge

State v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245 (prosecutor’s remarks about driving time on Interstate 95 from West Haven to New Haven permissible appeal to jurors’ common knowledge), cert. denied, 249 Conn. 926, 733 A.2d 850 (1999); see also State v. Singh, supra, 259 Conn. 716 n.22 (remark that “ ‘gasoline is heavier than air’ ” not improper because “most people would know” that fact).

remark that " 'gasoline is heavier than air' " not improper because "most people would know" that fact


Context: Defenses at 4-5; Def.'s Post-Trial Brief at 2-7, 13.) The burden is on Northam to establish non-conformity.

Weir v. Crown Equipment Corp., 217 F.3d 453, 466 (7th Cir.2000) (Ripple, J., dissenting) (when an affirmative defense is raised, the burden is on the deféndant to establish its elements); see also Abatron, Inc. v. Fulton Contracting Co., 175 Ill.App.3d 692, 125 Ill.Dec. 158, 530 N.E.2d 76, 81 (1988) (court held that the buyer did not sustain its burden of proving the product was nonconforming). ' The evidence is evaluated in light of that burden.

when an affirmative defense is raised, the burden is on the defendant to establish its elements


Context: Baranda concedes, as he must, that he could not collaterally attack his prior conviction as the district court allowed.

See United States v. Burrows, 36 F.3d 875, 885 (9th Cir.1994) (holding that a defendant cannot collaterally challenge a prior conviction used to calculate criminal history points); see also Clawson v. United States, 52 F.3d 806, 807 (9th Cir.1995) (concluding that a defendant has “no constitutional right to collaterally attack the validity of a state conviction in a federal sentencing hearing on any basis other than denial of the right to counsel.”) (citation omitted).

concluding that a defendant has "no constitutional right to collaterally attack the validity of a state conviction in a federal sentencing hearing on any basis other than denial of the right to counsel."


Context: This result is not inconsistent with the federal court decisions cited by Pretty Products in its memorandum contra. While CERCLA does contain express provisions preserving additional liability under state law, see 42 U.S.C. SS 9614(a), 42 U.S.C. SS 9607(e), and 42 U.S.C. SS 9652(d), these general provisions must be read in the context of the specific provision granting contribution immunity to settling parties. 42 U.S.C. SS 9613(f). Thus, because virtually every case cited by Pretty Products occurred outside the context of a settlement between the government and various potentially responsible parties, the decisions do not consider the effect of SS 9613(f) and are inapposite.

occurring outside the context of a judicially approved settlement, with no consideration of SS 9613(f

See Boone v. DuBose, 718 F.Supp. 479 (M.D.La.1988) (involving motion to remand, not judicially approved CERCLA settlement); Con-Tech Sales Defined Benefit Trust v. Cockerham, 715 F.Supp. 701 (E.D.Pa.1989) (occurring outside the context of a judicially approved settlement, with no consideration of § 9613(f)); United States v. Moore, 703 F.Supp. 460 (E.D.Va.1988) (occurring outside the context of a judicially approved settlement); Allied Towing Corp. v. Great Eastern Petroleum Corp., 642 F.Supp. 1339 (E.D.Va.1986) (occurring before operation of SARA amendments and outside the context of a judicially approved settlement); but see Allied Corp. v. Frola, 730 F.Supp. 626, 639 (D.N.J.1990) (finding that “CERCLA does not restrict the right to common law indemnification” in the context of a judicially approved settlement).

finding that "CERCLA does not restrict the right to common law indemnification" in the context of a judicially approved settlement


occurring before operation of SARA amendments and outside the context of a judicially approved settlement


Context: Defense counsel agreed that the prosecutor could "make a statement on opening ... [that] the evidence will show [defendant] knew he was not to escape or knew he was on some sort of notice," but objected to "quoting the statement of the [ALJ]." The court overruled defendant's objection, stating that the tape concerned the knowledge of defendant and merely duplicated the warrant which committed defendant to prison. We therefore hold that the tape was offered to prove notice to defendant and was not hearsay.

See Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984)(where evidence offered for a purpose other than to prove the truth of the thing asserted and to prove the existence of notice, no abuse of discretion in its admission); see also Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972)(where testimony was not offered to prove the truth of the matter stated, but solely to prove notice, which is a state of mind, hearsay rule does not apply).


Context: In making such an argument, the parties betray a fundamental misunderstanding of the nature of civil judgments. The courts have made amply clear that judgments are public property, and -- once entered -- cannot be bought and sold, vacated and modified, for the convenience of the parties.

"[Wjhile this Court has encouraged the parties to settle cases before the filing of a decision that is not reviewable as of right, once such a decision has been rendered we decline to allow them to dictate, by purchase and sale, whether the precedent it sets will remain in existence."

See Yanakas, 11 F.3d at 385 (“[Wjhile this Court has encouraged the parties to settle cases before the filing of a decision that is not reviewable as of right, once such a decision has been rendered we decline to allow them to dictate, by purchase and sale, whether the precedent it sets will remain in existence.”) The courts have undeniably been more flexible where vacatur would bring an end to the tortured history of a litigation, opening a door to settlement by relieving some party from having to fight an undesirable ruling on appeal. Here, however, there exists no such competing interest.

equitable rationale does not justify vacatur if judgment mooted by settlement because by settling "the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur. The judgment is not unreviewable, but simply unreviewed by his own choice."

See Major League Baseball Properties, 150 F.3d at 151 (“[Wjhen a judgment is mooted by settlement, vacatur is usually not justified because the social value in preserving precedents is not outweighed by equitable considerations.”); see also U.S. Bancorp, 513 U.S. at 25, 115 S.Ct. 386 (equitable rationale does not justify vacatur if judgment mooted by settlement because by settling “the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur. The judgment is not unreviewable, but simply unreviewed by his own choice.”)


"[Wjhen a judgment is mooted by settlement, vacatur is usually not justified because the social value in preserving precedents is not outweighed by equitable considerations."


Context: Contrary to Tapia's contention, the IJ did not violate her due process rights by admitting her statements to immigration officials in the Form 1-213, Record of Inadmissible Alien, and a transcript of her sworn interview.

"the bare assertion that a statement is involuntary is insufficient" to prove coercion

See Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir.1979) (“the bare assertion that a statement is involuntary is insufficient” to prove coercion); see also Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.1995) (“The burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade the court not to admit it.”).

"The burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade the court not to admit it."


Context: 1. Based on the material inconsistencies between Reddy's asylum application and his testimony, his failure to produce corroborating evidence, his non-responsiveness, and his testimony concerning events not included in his asylum application, there was substantial evidence supporting the adverse credibility determination.

"The Board had reason to question [Reddy's] credibility, it supplied specific reasons that related to the basis for his claim, and he failed to produce non-duplicative, material, easily available corroborating evidence and gave no explanation for such failure."

See Chebchoub v. I.N.S., 257 F.3d 1038, 1045 (9th Cir.2001) (“The Board had reason to question [Reddy’s] credibility, it supplied specific reasons that related to the basis for his claim, and he failed to produce non-duplicative, material, easily available corroborating evidence and gave no explanation for such failure.”) (citations omitted); see also Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254 (9th Cir.2003) (concluding that adverse credibility determination was supported by substantial evidence because of a “major inconsistency.”).

concluding that adverse credibility determination was supported by substantial evidence because of a "major inconsistency."


Context: The Ninth and Tenth Circuits, as well as a number of district courts, have held that the required use of accrued benefits to cover partial day absences from work does not violate the salary basis test.

holding that leave banks do not constitute salary and that any reduction to leave banks would not negate an exempt employee's status

Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994); Aaron v. City of Wichita, 54 F.3d 652, 658 (10th Cir.); Bennett v. City of Albuquerque, No. 94-2094, 1995 WL 230315 (10th Cir. Apr.18, 1995), (holding that absent a specific policy to reduce the amount of pay, as opposed to reductions in accrued benefits, the salary basis concept is not violated), cert. denied, 516 U.S. 965, 116 S.Ct. 419, 133 L.Ed.2d 336 (1995); see also Kuchinskas v. Broward County, 840 F.Supp. 1548, 1553 (S.D.Fla.l993)(holding that leave banks do not constitute salary and that any reduction to leave banks would not negate an exempt employee’s status), aff'd, 86 F.3d 1168 (11th Cir.1996), petition for cert, filed, 65 U.S.L.W. 3342 (Oct. 22, 1996) (No. 96-652); International Ass’n of Fire Fighters, Alexandria Local 2141 v. City of Alexandria, 720 F.Supp. 1230, 1232 (E.D.Va.l989)(holding that “the docking of leave or accrued compensatory time for absences of less than an entire day [does not] defeat salaried status”), affd without opinion, 912 F.2d 463 (4th Cir.1990).


holding that "the docking of leave or accrued compensatory time for absences of less than an entire day [does not] defeat salaried status"


Context: . Contrary to the suggestion in appellant's brief, nothing in this holding suggests that we would sustain a finding that a defendant who was "under the influence" was in physical control of her vehicle if the evidence was merely that she ''possessed] keys to a vehicle in her vicinity" or was "waiting outside near [the] vehicle with keys in [her] pocket waiting for a taxi [she had] called to take [her] home[.]" But, as some courts have found, "an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public."

acknowledging that "[t]he danger is less than where an intoxicated person is actually driving a vehicle," but reasoning that there still "is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away"

Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (emphasis added) (acknowledging that "[t]he danger is less than where an intoxicated person is actually driving a vehicle,” but reasoning that there still “is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”); see also City of Naperville v. Watson, 175 Ill.2d 399, 222 IIl.Dec. 421, 677 N.E.2d 955, 958-59 (1997) (“A person may embark upon an evening of drinking with the intention of sleeping in his or her car, but the actual decision whether to do so will be made at a time when the person’s judgment is impaired by alcohol.”); Thorne v. Contee, 80 Md.App. 481, 565 A.2d 102, 107 (Md.Ct.

"A person may embark upon an evening of drinking with the intention of sleeping in his or her car, but the actual decision whether to do so will be made at a time when the person's judgment is impaired by alcohol."


Context: Second, as Cheung points out, pre-1871 decisions did refer to Indian nations as non-sovereign, or at least as less than fully sovereign.

Indian "rights to complete sovereignty, as independent nations, were necessarily diminished"

See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 17-18, 5 Pet. 1, 8 L.Ed. 25 (1831); see also Johnson v. M'Intosh, 8 Wheat. 543, 21 U.S. 548, 574, 5 L.Ed. 681 (1823) (Indian “rights to complete sovereignty, as independent nations, were necessarily diminished”); but see Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832) (describing Indian nations as “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil”).

describing Indian nations as "distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil"


Context: Oh this point, the Ohio Supreme Court has explained: "Redaction of personal information, however, does not divest the privileged status of confidential records. Redaction is merely a tool that a court may use to safeguard the personal, identifying information within confidential records that have become subject to disclosure either by waiver or by an exception." Roe, 912 N.E,2d at 71. And other than a desire to prove their claim with additional, duplicative information, Plaintiffs have offered no reason, such as a competing right, which compels production of any information in the records.

allqwing, under enumerated circumstances, production of protected law enforcement personnel records in light of a criminal defendant's constitutional right to proffer a defense

See Milstead v. Smith, 2016 S.D. 55, ¶ 32, 883 N.W.2d 711, 723 (allqwing, under enumerated circumstances, production of protected law enforcement personnel records in light of a criminal defendant’s constitutional right to proffer a defense); Milstead v. Johnson, 2016 S.D. 56, 883 N.W.2d 725 (holding the same); see also Novotny v. Sacred Heart Health Servs., 2016 S.D. 75, 887 N.W.2d 83 (rejecting procedural due.process and open courts challenge to medical peer review privilege).


Context: It is the government's position that use of the word "testimony" implies that the speaker was under oath. The government cites a number of cases in support of this position.

finding that "[t]he word 'testimony' or to 'testify' implies the usual preliminary qualification of taking an oath to speak the truth"

See e.g. Edelstein v. United States, 149 F. 636, 640 (8th Cir.1906) (finding that “[t]he word ‘testimony’ or to ‘testify’ implies the usual preliminary qualification of taking an oath to speak the truth”); see also United States v. Molinares, 700 F.2d 647, 651 n. 6 (11th Cir.1983) (concluding that “[t]he fact that the proceedings take place before a court or a grand jury gives rise to an inference that the defendant was under oath while testifying”).

concluding that "[t]he fact that the proceedings take place before a court or a grand jury gives rise to an inference that the defendant was under oath while testifying"


Context: The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." This privilege has been construed to protect an individual from being compelled to produce personal records that might incriminate him.

"It has long been established ... that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony."

See Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886) (finding that “a compulsory production of the private books and papers” of a person constitutes compelling him “to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution” and also is an unreasonable search and seizure within the meaning of the Fourth Amendment); see also Bellis v. United States, 417 U.S. 85, 87, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678 (1974) (“It has long been established ... that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony.”); Couch v. United States, 409 U.S. 322, 328-31, 93 S.Ct. 611, 615-17, 34 L.Ed.2d 548 (1973) (stating that the privilege against self-incrimination adheres basically to the person and not to the potentially incriminating information, and that the privilege applies to the possessor and not the owner of the information); Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966) (“It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers.”); Davis v. United States, 328 U.S. 582, 587-91, 66 S.Ct. 1256, 1258-61, 90 L.Ed. 1453 (1946) (distinguishing private papers from public property in the custody of a citizen in applying the Fifth Amendment privilege); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944) (stating that the constitutional privilege against self-incrimination “protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by the legal process against him as a witness”); Wheeler v. United States, 226 U.S. 478, 489, 33 S.Ct. 158, 162, 57 L.Ed. 309 (1913) (holding that there is no self-incrimination where one is compelled to produce the papers of a business that has no privilege); Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911) (finding that the privilege against self-incrimination “undoubtedly” protects one “against the compulsory production of his private books and papers”).

finding that "a compulsory production of the private books and papers" of a person constitutes compelling him "to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution" and also is an unreasonable search and seizure within the meaning of the Fourth Amendment


stating that the privilege against self-incrimination adheres basically to the person and not to the potentially incriminating information, and that the privilege applies to the possessor and not the owner of the information


"It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers."


distinguishing private papers from public property in the custody of a citizen in applying the Fifth Amendment privilege


stating that the constitutional privilege against self-incrimination "protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by the legal process against him as a witness"


holding that there is no self-incrimination where one is compelled to produce the papers of a business that has no privilege


finding that the privilege against self-incrimination "undoubtedly" protects one "against the compulsory production of his private books and papers"


Context: We note that, while a stricter compliance with the version of rule 1.442 in effect at the time of the proposal might have helped eliminate some ambiguity, as is often the case, the release attached to the proposal caused, rather than clarified, confusion and ambiguity.

See Stasio v. McManaway, 936 So.2d 676, 679 (Fla. 5th DCA 2006) (discrepancy between settlement proposal and attached release created an ambiguity as to the settlement amount offered by defendant); see also Palm Beach Polo Holdings, Inc. v. Vill. of Wellington, 904 So.2d 652, 653-54 (Fla. 4th DCA 2005) (proposed general release attached to proposal for settlement caused confusion as to whether the release would extinguish claims unrelated to those in the pending action).


Context: Yet, his offer to buy the unit, made in November, did not respond in any way to the company's safety concerns and was, as the district court put it, simply "an impotent attempt" to renew his earlier request. Scotts's reiteration of its earlier denial was, at most, "merely a consequence of its [earlier] discriminatory act," and not, as Hall contends, the culmination of an interactive process to accommodate his disability.

explaining that "[t]he rejection of a proposed accommodation is a single completed action when taken"

Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th Cir.1996) (“[Allowing [the plaintiff] to restart the statute of limitations by sending a letter requesting reasonable accommodations after she has been unequivocally fired would destroy the statute of limitations.”); see also Elmenayer v. ABF Freight Sys., 318 F.3d 130, 135 (2d Cir.2003) (explaining that “[t]he rejection of a proposed accommodation is a single completed action when taken”); Zdziech v. DaimlerChrysler Corp., 114 Fed.Appx. 469, 472 (3d Cir.2004) (unpublished) (“To permit [an employee] to reset the statutory requirements for the timely filing of a complaint merely by writing a new letter to his former employer would clearly vitiate the intent behind the 300-day time limit.”).

"[Allowing [the plaintiff] to restart the statute of limitations by sending a letter requesting reasonable accommodations after she has been unequivocally fired would destroy the statute of limitations."


"To permit [an employee] to reset the statutory requirements for the timely filing of a complaint merely by writing a new letter to his former employer would clearly vitiate the intent behind the 300-day time limit."


Context: There is no indication that the IJ gave any consideration to factors militating in petitioner's favor and establishing good cause. Especially where an attorney-client relationship pre-dates the alien's detention or transfer to a remote location, the right to representation by counsel of choice is a compelling reason for venue change.

See Rios-Berrios, 776 F.2d at 863 (transfer to remote location one element in host of agency actions that interfered with statutory right to obtain counsel); Chlomos, 516 F.2d at 314 (where petitioner resided, obtained counsel and initially appeared before immigration court in New Jersey, agency’s decision to hold deportation hearings in Florida violated right to counsel); see also Baires, 856 F.2d at 92-93 (statutory right to present evidence violated where immigration judge denied motion to change venue to place where witnesses were located).


where petitioner resided, obtained counsel and initially appeared before immigration court in New Jersey, agency's decision to hold deportation hearings in Florida violated right to counsel


Context: First -- contrary to Stackhouse's arguments on appeal -- the court's Guidelines calculations were correct, the court did not impose a sentencing enhancement under 18 U.S.C. SS 924(e), the court did not treat the Guidelines as mandatory, and the court was not obligated to order a new presen-tence report (PSR).

district court's interpretation and application of Guidelines are reviewed de novo, and its factual findings are reviewed for clear error

See United States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir.2002) (Fed.R.Crim.P. 32 does not require updated PSR for resentencing if, e.g., parties are given full opportunity to be heard and to supplement PSR as needed); United States v. Crank, 21 Fed.Appx. 521, 522-28 (8th Cir.2001) (per curiam) (where basis for remand was limited, rejecting argument that district court should have required new PSR before resentencing); see also United States v. Bates, 584 F.3d 1105, 1108 (8th Cir.2009) (district court’s interpretation and application of Guidelines are reviewed de novo, and its factual findings are reviewed for clear error).


where basis for remand was limited, rejecting argument that district court should have required new PSR before resentencing


Context: According to the Fourth Circuit, the after-acquired evidence doctrine "concerns the effect of evidence of employee misconduct acquired by the employer after the employee has been terminated" for an improper reason -- precisely the factual scenario presented in this case. Though the Court is unaware of any reported decisions that apply the doctrine to claims under the EPPA, other courts have applied it broadly to claims for improper termination under other provisions of Title 29 of the United States Code.

applying doctrine to employee's claim for unlawful termination under the Age Discrimination in Employment Act ("ADEA"

See, e.g., McKennon, 513 U.S. at 360-63, 115 S.Ct. 879 (applying doctrine to employee’s claim for unlawful termination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.); Miller, 250 F.3d at 836-38 (quoting McKennon and applying the doctrine to claim for wrongful termination under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654); Wallace v. Dunn Const. Co., 62 F.3d 374, 378 (11th Cir.1995) (en banc) (applying doctrine to claim for violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d)(1)); see also Russell v. Microdyne Corp., 65 F.3d 1229, 1238 (4th Cir.1995) (applying doctrine to claim for unlawful sex discrimination under Title VII, 42 U.S.C. §§ 2000e-17). Because the EPPA — like the ADEA, EPA, and Title VII — is similarly “but part of a wider statutory scheme to protect employees in the workplace nationwide”, McKennon, 513 U.S. at 357, 115 S.Ct. 879, the Court finds the after-acquired evidence doctrine instructive as to the effect of Plaintiffs alleged falsehood on his ability to claim wrongful termination under the EPPA.

applying doctrine to claim for unlawful sex discrimination under Title VII, 42 U.S.C. SSSS 2000e-17


applying doctrine to claim for violation of the Equal Pay Act ("EPA"


Context: The Second Hickenlooper Amendment did overrule, at least with respect to confiscations of property, the Sabbatino decision to the extent that it held that the act of state doctrine would apply without regard to whether a foreign state's actions violated international law.

Compare Sab-batino, 376 U.S. at 428, 84 S.Ct. at 940 ("[T]he Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government ... even if ... the taking violates customary international law."), with 22 U.S.C. § 2370(e)(2) ("[N]o court in the United States shall decline . . . to make a determination on the merits ... in a case [involving confiscations of property] by an act of [] state in violation of the principles of international law . . ."); see also Occidental of Umm Al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden, 577 F.2d 1196, 1203 n. 10 (5th Cir.1978) ("The Hickenlooper Amendment [] prevents any United States court from applying the federal act of state doctrine if the confiscation violated international law.").


Context: Under the canon of construction that "to express or include one thing implies the exclusion of the other," Black's Law Dictionary 620 (8th ed. 2004) (defining "expressio unius est exclusio alterius"), the express proscription of the making or broadcasting of indecent visual recordings implies that the viewing of indecent visual recordings is not proscribed.

"[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent."

See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980) (“[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”) (citation and footnote omitted); see also People v. Nichols, 3 Cal.3d 150, 89 Cal.Rptr. 721, 474 P.2d 673, 680-81 (1970) (applying the maxim of expressio unius est exclusio alterius to conclude that the statutory proscription on arson did not include the burning of a car).


Context: Even if Plaintiff had proven that Defendants trespassed on Plaintiffs land, Plaintiffs claim would fail, insofar as it relates to the two steel barges, because Plaintiff did not mitigate his damages. New York courts adhere to the universally accepted common law principle that a harmed plaintiff must mitigate damages.

holding that the district court properly applied New York's mitigation doctrine against plaintiff stockholders who brought suit for breach of contract.

Air Et Chaleur, 757 F.2d at 494 (holding that the district court properly applied New York’s mitigation doctrine against plaintiff stockholders who brought suit for breach of contract.); see also Hamilton v. McPherson, 28 N.Y. 72, 76-77 (N.Y.1863) (requiring “reasonable exertions to render the injury as light as possible”).

requiring "reasonable exertions to render the injury as light as possible"


Context: Woodland was not held because he was an alleged criminal but because his mental health at the time warranted such confinement. This period should not be used to calculate a speedy trial violation.

See Trafny, 799 P.2d at 706 (stating that time spent holding defendant on separate parole violation following formal dismissal of charges cannot be attributable to state); see also Johnson v. United States, 333 F.2d 371, 374 (10th Cir.1964) (holding that “[ajppellant can not complain of the denial of his constitutional right to a speedy trial because of his confinement in a State mental institution after dismissal of the former indictment”).

holding that "[ajppellant can not complain of the denial of his constitutional right to a speedy trial because of his confinement in a State mental institution after dismissal of the former indictment"


Context: It is true that a court sitting in equity would not assert jurisdiction over a disputed interest in real property if the plaintiff could obtain full, complete, and adequate relief through an action for ejectment.

"[T]he mere fact that damages are sought is not determinative of the legal or equitable nature of the action, because damages may be recovered in purely equitable proceedings."

See Hawkins, 268 Mich at 488 (“Of course, where a court of chancery has jurisdiction of the subject matter on an independent ground, it may determine the question of title although an action of ejectment would likewise be open.”). That is, while an action for ejectment was limited to a narrow set of circumstances and never permitted the grant of equitable relief, an equitable action — such as one to quiet title — could apply to a broad array of factual patterns and included both equitable relief and relief traditionally thought of as legal. Whipple, 3 Mich at 446; see also Madugula, 496 Mich at 713-714; Anzaldua, 216 Mich App at 576 n 4 (“[T]he mere fact that damages are sought is not determinative of the legal or equitable nature of the action, because damages may be recovered in purely equitable proceedings.”).

"Of course, where a court of chancery has jurisdiction of the subject matter on an independent ground, it may determine the question of title although an action of ejectment would likewise be open."


Context: Finally, to the extent that Plaintiff has requested monetary damages for mental and emotional injuries, he has not demonstrated that he suffered any physical injuries as a result of any of his alleged constitutional violations.

noting that the PLRA contains a provision barring "suits for mental or emotional injury unless there is a prior showing of physical injury"

See Crawford-El v. Britton, 523 U.S. 574, 596, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (noting that the PLRA contains a provision barring “suits for mental or emotional injury unless there is a prior showing of physical injury”).

noting that the Fifth Circuit Court of Appeals has applied the PLRA's damage limits in SS 1997e(e

But see Oliver v. Scott, 276 F.3d 736, 747 n. 20 (5th Cir.2002) (noting that the Fifth Circuit Court of Appeals has applied the PLRA’s damage limits in § 1997e(e) only to prisoners’ alleged claims of cruel and unusual punish ment under the Eighth Amendment and has not considered its applicability to constitutional violations usually unaccompanied by physical injury, such as First Amendment retaliation claims, privacy claims, and equal protection claims).


Context: Citizens have a First Amendment right to criticize court decisions.

See Brown v. Iowa Dist. Ct., 158 N.W.2d 744, 747 (Iowa 1968) (collecting cases and concluding a letter of criticism was not punishable in contempt proceeding), overruled on other grounds by Phillips v. Iowa Dist. Ct., 380 N.W.2d 706, 707-09 (Iowa 1986); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Attorney Doe No. 792, 878 N.W.2d 189, 194-96 (Iowa 2016) (reviewing First Amendment protection for an attorney’s ex parte email criticizing the presiding judge after an adverse ruling).

reviewing First Amendment protection for an attorney's ex parte email criticizing the presiding judge after an adverse ruling


Context: This is be cause the death of another was the act intended although the attempt to accomplish this result failed. There is no such offense as attempted manslaughter in Alabama since "intent" and "recklessness" are incompatible terms.

"one cannot recklessly attempt [i.e. intend but fail] to commit murder"

See Free v. State, 455 So.2d 137 (Ala.Crim.App.), cert. denied (Ala.1984) (“one cannot recklessly attempt [i.e. intend but fail] to commit murder”).

But see Paige v. State, 494 So.2d 795 (Ala.Crim.App.), cert. denied (Ala.1986) (although the appellant contended that the trial court should have charged on attempted manslaughter as a lesser included offense of attempted murder, this Court did not address this issue and held only that reckless manslaughter is a lesser included offense of intentional murder).


Context: The deaths of the children directly figure into petitioner's sentence for leaving the scene of the accident according to Pennsylvania's statute. In addition, the sentencing judge has traditionally been permitted to conduct "an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."

prior convictions excluded in computing prior record score may still be considered in fixing the penalty within the range of "mitigated" to "aggravated" at a particular step

United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978) (taking into account a defendant’s false testimony does not constitute punishment for the crime of perjury for which the defendant has not been tried or convicted by due process); see also Commonwealth v. Lupatsky, 341 Pa.Super. 338, 342, 491 A.2d 845, 847 (1985) (prior convictions excluded in computing prior record score may still be considered in fixing the penalty within the range of “mitigated” to “aggravated” at a particular step); Commonwealth v. Holler, 326 Pa. Super. 304, 309, 473 A.2d 1103, 1106 (1984) (court has broad discretion in sentencing that will not be disturbed absent abuse); Commonwealth v. Weldon, 320 Pa.Super. 102, 104-105, 466 A.2d 1082, 1084 (1983) (court is bound to examine a range of factors concerning the person and history of defendant, and the particular circumstances of the crime in fashioning a sentence). Finally, in addition to the deaths of the two children, the court relied on the presentence investigation report, the seriousness of the offenses, and the history, character, and condition of petitioner. This court finds no error.

taking into account a defendant's false testimony does not constitute punishment for the crime of perjury for which the defendant has not been tried or convicted by due process


court has broad discretion in sentencing that will not be disturbed absent abuse


court is bound to examine a range of factors concerning the person and history of defendant, and the particular circumstances of the crime in fashioning a sentence


Context: The Immigration Judge's (IJ) reliance on Ban Htoi's delay in referencing the rapes as a basis for the adverse credibility finding is at odds with our circuit precedent. We have held that "cultural reluctance" is a "compelling explanation" for a woman's "failure to mention her rape at an earlier time in the [immigration] proceedings."

"That Mousa, a Chaldean Christian woman from Iraq, was not forthcoming with details about her rape is hardly an irreconcilable problem with her asylum application."

Mousa v. Mukasey, 530 F.3d 1025, 1027-28 (9th Cir.2008) (“That Mousa, a Chaldean Christian woman from Iraq, was not forthcoming with details about her rape is hardly an irreconcilable problem with her asylum application.”); see also Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir.2002) (“Paramasamy provided a strong, unrebutted explanation for her reluctance to reveal details — her cultural reluctance to tell male interviewers that she had been violated.”).

"Paramasamy provided a strong, unrebutted explanation for her reluctance to reveal details -- her cultural reluctance to tell male interviewers that she had been violated."


Context: Although appellant contends that the exclusionary rule is the usual and, in this instance, only effective way to enforce the treaty's requirement, this and other circuits have held in recent years that an exclusionary rule is typically available only for constitutional violations, not for statutory or treaty violations.

rejecting suppression as a remedy for a treaty violation because the exclusionary rule "was not fashioned to vindicate a broad, general right to be free of agency action not 'authorized' by law, but rather to protect certain specific, constitutionally protected rights of individuals."

See also United States v. Hensel, 699 F.2d 18, 29 (1st Cir.1983) (rejecting suppression as a remedy for a treaty violation because the exclusionary rule “was not fashioned to vindicate a broad, general right to be free of agency action not ‘authorized’ by law, but rather to protect certain specific, constitutionally protected rights of individuals.”); United States v. Ware, 161 F.3d 414, 424 (6th Cir.1998) (holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right); United States v. Mason, 52 F.3d 1286, 1289 n. 5 (4th Cir.1995) (same); United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir.1991) (holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right or evidence that Congress intended exclusion as a remedy); United States v. Benevento, 836 F.2d 60, 69 (2d Cir.1987) (same); United States v. Kington, 801 F.2d 733, 737 (5th Cir.1986) (same).

"The use of the exclusionary rule is an exceptional remedy typically reserved for violations of constitutional rights."

See United States v. Smith, 196 F.3d 1034, 1040 (9th Cir.1999) (“The use of the exclusionary rule is an exceptional remedy typically reserved for violations of constitutional rights.”).


holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right


holding a statutory violation insufficient to justify imposition of the exclusionary rule, absent an underlying constitutional violation or right or evidence that Congress intended exclusion as a remedy


Context: Healthy doctrine in summary disposition analyses have held that if a plaintiff brings forth evidence of pretext, the determination whether the employer's stated reasons are pretextual is a fact issue reserved for the jury. Courts deciding the causation issue by summary disposition have generally done so only when the employer's reasons have not been controverted.

holding that the plaintiff did not present evidence of retaliation and, therefore, the plaintiff failed to allege facts that would allow a rational jury to conclude that the employer's reasons for termination were pretextual

See Pierce, 37 F.3d at 1151 (holding that the plaintiff did not present evidence of retaliation and, therefore, the plaintiff failed to allege facts that would allow a rational jury to conclude that the employer’s reasons for termination were pretextual); see also Beattie, 254 F.3d at 604 (finding that the plaintiff had not offered evidence to rebut the employer’s evidence that it would have terminated the plaintiff in the absence of the protected speech and, therefore, summary judgment was proper).

finding that the plaintiff had not offered evidence to rebut the employer's evidence that it would have terminated the plaintiff in the absence of the protected speech and, therefore, summary judgment was proper


Context: Even when viewed in the light most favorable to the Penleys, the evidence reveals no genuine issues of material fact as to whether Lieutenant Weippert's use of force was reasonably necessary. Under Florida law, Lieutenant Weippert had no duty to retreat and his use of force was justifiable.

relying on "facts and reasoning set forth" in Fourth Amendment analysis to evaluate whether, under Florida law, an officer's use of force was excessive

See State v. Rivera, 719 So.2d 335, 337-38 (Fla. 5th DCA 1998) (holding that after being chased by a car-full of angry men, it would have been reasonable for Mr. Rivera, a private citizen, to believe that deadly force was necessary, even if only a single, unarmed pursuer had approached his now-stopped car, “because [the pursuer] and his friends had already threatened Rivera’s life and the lives of other innocent people by engaging in a high-speed chase and throwing deadly missiles,” namely a bottle of soda and a can of tuna); see also Davis v. Williams, 451 F.3d 759, 768 (11th Cir.2006) (relying on “facts and reasoning set forth” in Fourth Amendment analysis to evaluate whether, under Florida law, an officer’s use of force was excessive).

holding that after being chased by a car-full of angry men, it would have been reasonable for Mr. Rivera, a private citizen, to believe that deadly force was necessary, even if only a single, unarmed pursuer had approached his now-stopped car, "because [the pursuer] and his friends had already threatened Rivera's life and the lives of other innocent people by engaging in a high-speed chase and throwing deadly missiles," namely a bottle of soda and a can of tuna


Context: When reviewing a petition for writ of habeas corpus, alleging an unconstitutional conviction due to insufficient evidence, federal courts do not review the reasoning underlying the state court's decision. Instead, we focus on whether the state court's ultimate decision -- affirmation of the conviction -- was supported by sufficient record evidence.

explaining that when conducting ha-beas review, "we are determining the reasonableness of the state courts' 'decision,' 28 U.S.C. SS 2254(d

See 28 U.S.C. § 2254(d)(1 )-(2) (providing that petition for writ shall only be granted if the state court’s “adjudication of the claim ... resulted in a decision ” that was contrary to federal law or based on “unreasonable determination of the facts” (emphasis added)); Hollman v. Wilson, 158 F.3d 177, 180 n. 3 (3d Cir.1998) (noting state appellate court’s reasoning was incorrect, but because result was proper, petitioner was not entitled to habeas relief); see also Cruz v. Miller, 255 F.3d 77, 86 (2d Cir.2001) (explaining that when conducting ha-beas review, “we are determining the reasonableness of the state courts’ ‘decision,’ 28 U.S.C. § 2254(d)(1), not grading their papers”).

noting state appellate court's reasoning was incorrect, but because result was proper, petitioner was not entitled to habeas relief