Context: Next, the Circuit found that the care of mentally disabled patients was "neither traditionally nor exclusively reserved to the state." And, this Court finds Sybalski highly persuasive in terms of our issues, and particularly as to the historical perspective of medical treatment and care rendered by nursing homes.

noting that the government, under New York Social Services Law SS 395, is responsible for the welfare of children, and thus any delegation to a private actor regarding the custody of children was found to be a public function

See Kia P. v. McIntyre, 235 F.3d at 756 (finding that a hospital acting in its capacity as a private provider of medical care was not a state actor); Hogan v. A.O. Fox Mem’l Hosp., 346 Fed.Appx. 627, 629 (2d Cir.2009) (after Sybalski, the Court determined that the conduct of the defendants, a private hospital and physician, could not be fairly attributable to the State); cf. Perez v. Sugarman, 499 F.2d 761, 765 (2d Cir.1974) (noting that the government, under New York Social Services Law § 395, is responsible for the welfare of children, and thus any delegation to a private actor regarding the custody of children was found to be a public function).


after Sybalski, the Court determined that the conduct of the defendants, a private hospital and physician, could not be fairly attributable to the State


Context: To determine whether a defect is too trivial to be negligent, the court should consider the "time, place, and circumstances" of the injury, in addition to dimensions and appearance of the defect.

holding that, although the alleged defect was only one-half inch deep, plaintiffs raised triable issue of fact as to whether the color of the carpet and poor lighting in the room "presented a trap for the unwary"

Trincere, 665 N.Y.S.2d 615, 688 N.E.2d at 490. In some instances, however, “the trivial nature of the defect may loom larger than another element” and therefore “[n]ot every injury allegedly caused by an elevated brick or slab need be submitted to a jury.” Id.; see Nathan v. City of New Rochelle, 282 A.D.2d 585, 723 N.Y.S.2d 402, 403 (N.Y.App.Div.2001) (holding that a one-inch height difference created by a crack in a sidewalk is not actionable, and that plaintiffs assertions “that triable issues of fact were raised by the time, place, and circumstances of the accident are without merit”); but see Sanna v. Wal-Mart Stores, Inc., 271 A.D.2d 595, 706 N.Y.S.2d 156 (NY.App.Div.2000) (holding that, although the alleged defect was only one-half inch deep, plaintiffs raised triable issue of fact as to whether the color of the carpet and poor lighting in the room “presented a trap for the unwary”).

holding that a one-inch height difference created by a crack in a sidewalk is not actionable, and that plaintiffs assertions "that triable issues of fact were raised by the time, place, and circumstances of the accident are without merit"


Context: We have previously applied a rule similar to the federal rule, though without the explanation we provide here as to why the same rule should apply.

See In re People of the V.I., 49 V.I. 297, 309 (V.I. 2007) (implying that a contempt order is final by declining to grant mandamus because the petitioner could obtain relief by refusing to comply with a court order, standing in contempt, and immediately appealing the contempt citation) (citing In re Flat Glass Antitrust Lit., 288 F.3d 83, 91 (3d Cir. 2002)); see also In re Najawicz, 52 V.I. 311, 326-27 (V.I. 2009) (deciding that because a show cause order was not an order of contempt, it lacked the finality necessary for appellate review).


Context: Common experience dictates that precautions are necessary to use a handgun properly. The recklessness involved in pointing the weapon at another human being under these circumstances, whether it is defective or not, excuses the manufacturer as the struggle was an independent superseding cause.

See Eichstedt v. Lakefield Arms Ltd., 849 F.Supp. 1287, 1292 (E.D.Wis.1994) (even if rifle was defective and unreasonably dangerous, intentional reckless actions of individual in aiming and pulling trigger of allegedly unloaded weapon at another person was a superseding cause of gunshot injury); cf. Martin, 743 F.2d at 1205 (criminal misuse of handguns not a foreseeable consequence of gun manufacturing).


Context: Appellants' suit challenges the validity and authority of public officers. We agree with the Commissioner that appellants have no standing to pursue the declaratory and injunctive relief they seek.

See Lewis, 641 S.W.2d at 394; Hamman v. Hayes, 391 S.W.2d 73, 74-75 (Tex.App.Beaumont 1965, writ ref'd) (concluding taxpayer suit to contest legality of police chiefs appointment on grounds of illegal public expenditures could only be brought in quo warranto).

See also Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 269-70 (Tex.1922) (concluding that where defendant is at least de facto officer, quo warranto, rather than injunction, is exclusive remedy).


Context: Even though the Court finds that Plaintiff is not likely to succeed on the merits of a claim under the Lanham Act due to insufficient evidence of the likelihood of confusion, Plaintiff can demonstrate success on the merits under Florida law, "notwithstanding the absence of ... confusion as to the source of goods or services," if Plaintiff makes a showing that there "[1] exists a likelihood of injury to business reputation or [2] of dilution of the distinctive quality of the mark, trade name, label or form of advertisement of the prior user____" Fla.Stat. SS 495.141. Since the Court has already found that Plaintiffs "A B" mark is not similar to Defendant's corporate name, "A-B Distributors," that it is not a distinctive mark, and that extensive third party usage has rendered the mark a weak one (see discussion infra), Plaintiff cannot demonstrate the likelihood of prevailing on the merits of the dilution prong, [2], of the statute.

anti-dilution statute's purpose is to prevent the weakening of a distinctive trademark and to "protect[ ] the owners of such strong, distinctive marks from the diminution of consumer goodwill by competitors or non-competitors"

See Amstar, 615 F.2d at 265 (applying same analysis to similar anti-dilution statute under Georgia law); see also Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1024 (11th Cir.1989) (anti-dilution statute’s purpose is to prevent the weakening of a distinctive trademark and to “protect[ ] the owners of such strong, distinctive marks from the diminution of consumer goodwill by competitors or non-competitors”) (emphasis added); accord Freedom Savings and Loan Ass’n, 757 F.2d at 1186. Nor does the Court find that Plaintiff has presented sufficient evidence for the Court to find that it will succeed on the merits of a claim of a likelihood of injury to its business reputation.


Context: RSA 510:4, I (1983). The New Hampshire Supreme Court has determined that the scope of RSA 510:4 is as broad as is consistent with the statutory language and the dictates of due process.

RSA 510:4 provides jurisdiction "to the full extent that the statutory language and due process will allow."

See Phelps v. Kingston, 130 N.H. 166, 171, 536 A.2d 740, 742 (1987) (RSA 510:4 provides jurisdiction “to the full extent that the statutory language and due process will allow.”); see also Estabrook v. Wetmore, 129 N.H. 520, 522, 529 A.2d 956, 958 (1987); Keeton v. Hustler Magazine, Inc., 682 F.2d 33, 33 (1st Cir.1982), rev’d on other grounds 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (RSA 510:4 seeks “to extend jurisdiction over nonresidents to the fullest extent permitted under the federal constitution”).

RSA 510:4 seeks "to extend jurisdiction over nonresidents to the fullest extent permitted under the federal constitution"


Context: Wachovia's reliance on the "as is" provision of the sales contract in support of its motion to dismiss is misplaced. The inclusion of an "as is" clause in a contract for the sale of residential real property does not waive the duty imposed upon a seller under Johnson.

"[W]e discern no 'as is' contractual exception to the duty imposed on the seller herein by the Johnson decision."

Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1130 (Fla. 2d DCA 2003) (“An ‘as is’ clause in a contract for the sale of residential real property does not waive the duty imposed by Johnson v. Davis to disclose hidden defects in the property.”); Levy v. Creative Constr. Servs. of Broward,, Inc., 566 So.2d 347 (Fla. 3d DCA 1990) (“[W]e discern no ‘as is’ contractual exception to the duty imposed on the seller herein by the Johnson decision.”); Rayner, 504 So.2d at 1364 (“[W]e note that generally, an “as is” clause in a contract for sale of real property cannot be relied upon to bar a claim for fraudulent misrepresentation or fraudulent nondisclosure.”); see also Frank J. Wozniak, Annotation, Construction and Effect of Provision in Contract for Sale of Realty by Which Purchaser Agrees to Take Property “As Is” or in Its Existing Condition, 8 A.L.R. 5th 312 § 2a (“[I]t has generally been held or recognized that an “as is” provision in a contract for the sale of realty does not bar a vendee’s claim based on allegations of fraud, misrepresentation, or nondisclosure.”).

"[I]t has generally been held or recognized that an "as is" provision in a contract for the sale of realty does not bar a vendee's claim based on allegations of fraud, misrepresentation, or nondisclosure."


Context: In this case, the state offered to prove that Clavijo had made the phone call as a preliminary step to executing the robbery through the information conveyed by the business associate. Thus, the testimony as to how the police obtained the telephone number that linked Clavijo to the robbery was inadmissible hearsay.

"When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a non-hearsay label."

See Keen v. State, 775 So.2d 263, 274 (Fla.2000) (“When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a non-hearsay label.”).

"Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant's guilt, the testimony is not admissible."

See also Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000) (“Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.”).


Context: Questions arising out of transactions, including coal mining leases, on the. Navajo and Hopi reservations and on the tribes' joint land have been extensively litigated.

See, e.g., Navajo Nation, 537 U.S. at 493-513, 123 S.Ct. 1079 (rejecting claim by Navajo Nation that the Secretary of the Interior breached fiduciary duties owed to the Nation by approving the coal leases); Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 946 (9th Cir.2004) (holding that the court lacked jurisdiction to enforce arbitration settlement agreement about lease royalty rates); see also Clinton v. Babbitt, 180 F.3d 1081, 1083-86 (9th Cir.1999) (describing the lengthy dispute between Navajo and Hopi Nations over joint use land in Arizona); Navajo Nation v. Peabody Holding Co., 209 F.Supp.2d 269, 275-76 (D.D.C.2002) (describing history of amendments to the leases in a RICO suit by the tribe against Peabody).


describing history of amendments to the leases in a RICO suit by the tribe against Peabody


holding that the court lacked jurisdiction to enforce arbitration settlement agreement about lease royalty rates


Context: Generally, we review a district court's decision to refuse application of the two-level reduction for acceptance of responsibility under the deferential clearly erroneous standard.

"Whether the facts of a particular case warrant a reduction for acceptance of responsibility is a question of fact that we review under the clearly erroneous standard."

See United States v. Dazey, 403 F.3d 1147, 1172 (10th Cir.2005) (“Whether the facts of a particular case warrant a reduction for acceptance of responsibility is a question of fact that we review under the clearly erroneous standard.”); accord United States v. Hamilton, 413 F.3d 1138, 1145 (10th Cir.2005); cf. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

'Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."


Context: The remaining counts upon which defendants were convicted involve allegations of wire fraud (Count VI), interstate transportation of the proceeds of fraud (Count VIII), and mail fraud (Count IX). The mail and wire fraud counts require the government to prove that the defendants did the alleged act (mailed or wired the proceeds of fraud) in furtherance of the bank fraud scheme.

See also Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954) (distinguishing between causing the use of the mails and finding the mailing to be in furtherance of the scheme).

United States v. Brown, 79 F.3d 1550, 1557 (11th Cir.1996); United States v. Haimowitz, 725 F.2d 1561, 1568-69 (11th Cir.1984) (mail fraud conviction requires proof of a scheme to defraud, the use of the mails in furtherance of the scheme, and causation of the use of the mails).


Context: Virginia courts must consider a communication in its particular context when determining whether a speaker's words constitute a true threat. In view of this requirement, the proscription against threats of bodily harm complies with Watts and its progeny.

apply ing Watts factors to determine whether appellant's statements constituted "true threat"

See Watts, 394 U.S. at 708, 89 S.Ct. at 1401 (considering context in which threat was made, conditional nature of statement, and reaction of the listeners to determine whether defendant’s statements were a “true threat”); see also United States v. Lockhart, 382 F.3d 447, 451-52 (4th Cir.2004) (apply ing Watts factors to determine whether appellant’s statements constituted “true threat”); United States v. Cooper, 865 F.2d 88, 85 (4th Cir.1989) (same).

considering context in which threat was made, conditional nature of statement, and reaction of the listeners to determine whether defendant's statements were a "true threat"


Context: Rather, the government must set forth "something in the record [to] suggest[ ] that the district court would have imposed the same or a greater sentence." Moreover, the comments of the sentencing judge here that "the defendant and his family enjoyed a lavish lifestyle at the expense of many unsuspecting victims" and that "a sentence in the middle range of the Guidelines would sufficiently punish the defendant and deter others from committing like or similar crimes" are insufficient to say with fair assurance that the statutory Booker error was harmless.

Id. at 749-50 (holding statutory Booker error was not harmless where district court imposed sentence in middle of guidelines range and there were no statements in the record reflecting that the court would have imposed the same or greater sentence under advisory guidelines); see also United States v. Cain, 433 F.3d 1345, 1348-49 (11th Cir.2005) (concluding that constitutional error was not harmless because district court did not state that it would have imposed the same or higher sentence if it had the discretion to do so, even though it sentenced defendant to the “high end” the guidelines range and stated that the sentence was “appropriate”); cf. United States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir.2005) (holding statutory error harmless where district court imposed the highest available sentence under guidelines range and considered sentencing to the statutory maximum); United States v. Mejia-Giovani, 416 F.3d 1323 (11th Cir.2005) (finding that district court’s express statements that the defendant might not benefit under an advisory system with the court’s warning that defendant was at risk for an upward departure made statutory error harmless).

concluding that constitutional error was not harmless because district court did not state that it would have imposed the same or higher sentence if it had the discretion to do so, even though it sentenced defendant to the "high end" the guidelines range and stated that the sentence was "appropriate"


finding that district court's express statements that the defendant might not benefit under an advisory system with the court's warning that defendant was at risk for an upward departure made statutory error harmless


Context: Aplt. App. at 357. None of the other circumstances surrounding her confession, including Owens' admonishment, "[D]on't lie to me," id. at 359, indicates that her confession was involuntary.

holding that officer's encouragement "to tell the truth ... did not amount to coercion"

See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir.1997) (holding that officer’s encouragement “to tell the truth ... did not amount to coercion”); cf. Beecher v. Alabama, 389 U.S. 35, 36, 38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967) (indicating that suspect’s confession was involuntary where officer fired rifle next to suspect’s ear and another officer said, “If you don’t tell the truth I am going to kill you”).

indicating that suspect's confession was involuntary where officer fired rifle next to suspect's ear and another officer said, "If you don't tell the truth I am going to kill you"


Context: This court is bound by the decisions of the United States Supreme Court and the United States Court of Appeals for the Federal Circuit. This court, however, respects and reviews carefully the guidance offered by other federal courts.

"[T]he decisions of other regional circuits are persuasive authority and instructive."

See Bank of Guam v. United States, 578 F.3d 1318, 1326 n. 4 (Fed.Cir.2009) (“[T]he decisions of other regional circuits are persuasive authority and instructive.”); see also Confederated Tribes and Bands of the Yakama Nation v. United States, 89 Fed.Cl. 589, 609 n. 31 (2009); Hutchens v. United States, 89 Fed.Cl. 553, 563 n. 12 (2009); CNG Transmission Mgmt. VEBA v. United States, 84 Fed.Cl. 327, 336-37 (2008) (“[T]his court looks to the regional circuit courts of appeal for persuasive authority.”), aff'd, 588 F.3d 1376 (Fed.Cir.2009), reh’g en banc denied (Fed.Cir.2010).

"[T]his court looks to the regional circuit courts of appeal for persuasive authority."


Context: In particular, we observe that there was no evidence backing the prosecutor's comments that the U.S. Attorneys and law enforcement officers could not have behaved as unscrupulously as defense counsel alleged they did without violating their oaths of office and jeopardizing their careers. Even setting aside DiLoreto's strong condemnation of extra-record vouching, we would disapprove of these portions of the prosecutorial argument, as it is inappropriate for a prosecutor to invoke his or her oath of office as a means of defending the credibility of government witnesses.

disapproving of a prosecutor's suggestion that he might be "personally disadvantaged" if it were determined that a government witness had disregarded the truthful testimony proviso of his plea agreement

See also United States v. Oxman, 740 F.2d 1298, 1303 (3d Cir.1984), vacated and remanded on other grounds sub. nom. United States v. Pflaumer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985) (disapproving of a prosecutor’s suggestion that he might be “personally disadvantaged” if it were determined that a government witness had disregarded the truthful testimony proviso of his plea agreement).

prosecutor's claim that his oath of office prevented him from offering perjured testimony "placed him in the inappropriate role of a witness"

United States v. Torres, 809 F.2d 429, 445, 446 (7th Cir.1987) (Flaum, J., concurring) (prosecutor’s claim that his oath of office prevented him from offering perjured testimony “placed him in the inappropriate role of a witness”); United States v. Saenz, 747 F.2d 930, 942 (5th Cir.1984), cert. denied, 473 U.S. 906, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985) (prosecutor’s insinuation that he only prosecuted the guilty was improper, albeit fair reply to defense attacks on the prosecutor’s integrity in maintaining prosecution).


prosecutor's insinuation that he only prosecuted the guilty was improper, albeit fair reply to defense attacks on the prosecutor's integrity in maintaining prosecution


Context: Jackson's main contention is that the IRS abated his tax liabilities.

noting that a compromise is "within the discretion of the agency conducting the litigation"

United States v. Forma, 784 F.Supp. 1132, 1139 (S.D.N.Y.1992); see also Slovacek v. United States, 40 Fed.Cl. 828, 833 (1998) (agreeing with Forma); Int'l Paper Co. v. United States, 36 Fed.Cl. 313, 321 (1996) (agreeing with Forma); Brubaker v. United States, 342 F.2d 655, 662 (7th Cir.1965) (determining that excess tax “liabilities cannot be compromised by the Attorney General or the [DOJ] unless and until the Commissioner refers [the matter] to the [DOJ] for prosecution or defense”); cf. Bergh v. Dep’t of Transp., 794 F.2d 1575, 1577 (Fed.Cir.1986) (noting that a compromise is “within the discretion of the agency conducting the litigation”).

determining that excess tax "liabilities cannot be compromised by the Attorney General or the [DOJ] unless and until the Commissioner refers [the matter] to the [DOJ] for prosecution or defense"


Context: The public records concerning the property on which the failed cattle operation was rooted, as well as the property itself, are in Bryan County. The overwhelming amount of documentary and testimonial evidence has close physical proximity not to this Court, which is situated approximately 350 miles from Bryan County, but to the Oklahoma state court.

noting, in reversing exercise of abstention by a district court, that the federal court and state court at issue "are equidistant from ... where the dispute arose"

See Colorado River, 424 U.S. at 820, 96 S.Ct. at 1247 (finding significant a 300-mile distance between the state and federal courts at issue); cf. Signad, Inc. v. City of Sugar Land, 753 F.2d 1338, 1340 (5th Cir.) (noting, in reversing exercise of abstention by a district court, that the federal court and state court at issue “are equidistant from ... where the dispute arose”), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985).


Context: Officer Golden was entitled to rely on the description in combination with other clues: the precise number of robbers, the immediacy of the robbery, the suspects' close proximity to the crime scene, the direction in which the men were headed, and the dearth of others in the critical two-block area. The totality of the circumstances supported a logical inference that the appellant and his companion were the robbers.

"The two men were not only in the right place at the right time, but also fit the suspects' descriptions."

See Lee, 317 F.3d at 31 (“The two men were not only in the right place at the right time, but also fit the suspects’ descriptions.”); see also United States v. Pontoo, 666 F.3d 20, 28-29 (1st Cir.2011) (concluding that reasonable suspicion existed to detain the only person walking at 3:30 a.m. in the vicinity of a reported murder where that person fit the general description of the suspect).


Context: Once challenged, the burden of establishing a federal court's subject matter jurisdiction typically rests on the party asserting jurisdiction. However, where it is asserted that jurisdiction is lacking because of mootness, courts have placed the initial burden of demonstrating mootness on the defendant.

plaintiff bears burden of demonstrating that action which is otherwise moot falls under the mootness exception for cases that are "capable of repetition, yet evading review"

See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (case was dismissed where defendants had met their burden of demonstrating mootness); but see Video Tutorial Services, Inc. v. MCI Telecommunications Corp., 79 F.3d 3, 6 (2d Cir.1996) (plaintiff bears burden of demonstrating that action which is otherwise moot falls under the mootness exception for cases that are “capable of repetition, yet evading review”).


Context: Nevertheless, the Turek panel affirmed the usefulness of Walton insofar as it found that an excessive force claim can be premised on handcuffing, i.e., the right not to be handcuffed in an objectively unreasonable manner was clearly established.

recog nizing Walton as "holding that an excessive force claim may be based on officers' handcuffing an arrestee unnecessarily tightly"

See id; St. John, 411 F.3d at 775 (recog nizing Walton as “holding that an excessive force claim may be based on officers’ handcuffing an arrestee unnecessarily tightly”); Solomon, 389 F.3d at 173 (same); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.2004) (citing Walton for having “articulated a clearly established right to be free from specific types of non-deadly excessive force, such as handcuffing an individual too tightly”); Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir.2001) (same); see also Burchett, 310 F.3d at 944 (“The right to be free from ‘excessively forceful handcuffing’ is a clearly established right for qualified immunity purposes”).

"The right to be free from 'excessively forceful handcuffing' is a clearly established right for qualified immunity purposes"


Context: Moreover, even if he had, the fact remains that Thorn was arrested. Thus, he has failed to demonstrate that the information provided by the police blotters was false, let alone demonstrate the other elements required for a viable defamation claim under Louisiana state law.

See Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997) (“Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.”); see also Lee v. Pennington, 830 So.2d 1037, 1045 (La. Ct. App. 2002) (concluding report of the plaintiffs arrest was neither false nor defamatory).

"Four elements are necessary to establish a defamation cause of action: (1


Context: . As to his 24 month sentence, Defendant suggests the district court erred in declining to depart downward from the guideline range based on Agent Chard's alleged Miranda violation. Because the district court recognized its authority to grant a downward departure at the sentencing hearing, we lack jurisdiction to review its decision to deny Defendant's motion for such departure.

expressing "serious doubts about whether police misconduct that did not have any effect on the nature of the offense or the individual offender would ever be a permissible ground for departure"

See United States v. Fonseca, 473 F.3d 1109, 1111-1115 (10th Cir.2007) ("This court may review a denial of a downward departure only if the denial is based on the sentencing court's interpretation of the Guidelines as depriving it of the legal authority to grant the departure."); see also United States v. Washburn, 383 F.3d 638, 644 (7th Cir.2004) (expressing "serious doubts about whether police misconduct that did not have any effect on the nature of the offense or the individual offender would ever be a permissible ground for departure”).


Context: P 52 If Officer Craft did not have reasonable suspicion sufficient to detain Appellant at the conclusion of the traffic stop, he certainly did not gain any additional insights to arrive at such a conclusion during this extremely brief consensual encounter. If he did have reasonable suspicion, then he was obligated to act on it before telling Appellant he could leave.

Johnson, — U.S. at —, 129 S.Ct. at 786 (stating that once reasonable suspicion is aroused, police officers must be positioned to act instantly on that suspicion); see also Terry, 392 U.S. at 20, 88 S.Ct. 1868 (recognizing the need for police officers to take swift action based upon on-the-spot observations that lead to reasonable suspicion).


Context: This determination compels our resolution of the question of jurisdiction: because the NYSE's alleged violations of the federal securities laws and its improper interpretation of those laws underlie D'Alessio's state law claims, the federal issue is substantial. "[U]pon [the federal statute's] construction the vindication of rights and definition of relationships created by federal law depends."

federal question jurisdiction did not lie under section 301 of the Labor Management Relations Act where the resolution of the plaintiffs' breach of an individual employment contract claims "[did] not substantially depend[ ] upon interpretation of the collective-bargaining agreement"

W. 14th St. Commercial Corp., 815 F.2d at 193, 196 (“arising under” jurisdiction established where plaintiffs state law claims “encompass a substantial federal question under the Condominium and Cooperative Abuse Relief Act”); see also Caterpillar Inc., 482 U.S. at 395, 107 S.Ct. 2425 (federal question jurisdiction did not lie under section 301 of the Labor Management Relations Act where the resolution of the plaintiffs’ breach of an individual employment contract claims “[did] not substantially depend[ ] upon interpretation of the collective-bargaining agreement”); Sparta Surgical Corp., 159 F.3d at 1212 (“[Although [plaintiffs] theories are posited as state law claims, they are founded on the defendants’ conduct in suspending trading and de-listing the offering, the propriety of which must be exclusively determined by federal law.”).

"arising under" jurisdiction established where plaintiffs state law claims "encompass a substantial federal question under the Condominium and Cooperative Abuse Relief Act"


"[Although [plaintiffs] theories are posited as state law claims, they are founded on the defendants' conduct in suspending trading and de-listing the offering, the propriety of which must be exclusively determined by federal law."


Context: Although a trial court may elect to do so, it is not necessary for it to repeatedly instruct the jury on the same element, here, specific intent, for different crimes charged. As long as the jury has been fully instructed once, it is not reasonably possible that a jury is misled because it was not repeatedly instructed on that same element.

trial court's incorporation by reference of its earlier instruction regarding element of crime, as well as its highlighting of similarity of elements between counts, reasonably would have led jury to conclude that element applied to both counts

See, e.g., State v. Millan, 290 Conn. 816, 824-25 n.7, 966 A.2d 699 (2009) (trial court’s incorporation by reference of its earlier instruction regarding element of crime, as well as its highlighting of similarity of elements between counts, reasonably would have led jury to conclude that element applied to both counts); State v. Padua, 73 Conn. App. 386, 402, 808 A.2d 361 (2002) (“[b]ecause the jury was fully instructed on the sale of a controlled substance in count one, we conclude that it is not reasonably possible that the jury was misled by not being repeatedly instructed on that same element in counts four and five”), rev’d in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005); cf. State v. DeBarros, 58 Conn. App. 673, 682-83, 755 A.2d 303 (where trial court repeatedly referenced improper jury instruction, “[i]t is reasonably possible that the jury was misled because the probable effect of the improper charge was that it guided the jury to an incorrect verdict”), cert. denied, 254 Conn. 931, 761 A.2d 756 (2000).

where trial court repeatedly referenced improper jury instruction, "[i]t is reasonably possible that the jury was misled because the probable effect of the improper charge was that it guided the jury to an incorrect verdict"


"[b]ecause the jury was fully instructed on the sale of a controlled substance in count one, we conclude that it is not reasonably possible that the jury was misled by not being repeatedly instructed on that same element in counts four and five"


Context: That determination often turns on whether the money alleged to have been converted was contained in a segregated fund of some sort. See, e.g., Mfrs.

"Money, specifically identifiable and segregated, can be the subject of a conversion action."

Hanover Tr. Co. v. Chem. Bank, 160 A.D.2d 113, 559 N.Y.S.2d 704, 712 (1990) (“Money, specifically identifiable and segregated, can be the subject of a conversion action.”); see also Thys v. Fortis Sec. LLC, 74 A.D.3d 546, 903 N.Y.S.2d 368, 369 (2010) (“An action for conversion of money may be made out where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question.” (emphasis added) (internal quotation marks and citation omitted)); Sperrazza v. Kail, 267 A.D.2d 692, 699 N.Y.S.2d 609, 610 (1999) (holding that contents of joint bank accounts, which had been withdrawn in their entirety by one of cotenant without consent of the other eotenant, were “sufficiently identifiable to be the subject of a claim for conversion”); Bankers Tr. Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 385, 590 N.Y.S.2d 201 (1992) (holding that proceeds of a litigation settlement were an “identifiable fund” and thus “a proper subject of a misappropriation and conversion claim”); Brennan’s Bus Serv., Inc. v. Brennan, 107 A.D.2d 858, 484 N.Y.S.2d 297 (1985) (affirming conversion judgment in favor of plaintiff where defendant withdrew corporate funds invested in certificates of deposit and spent it for non-corporate purposes).

holding that contents of joint bank accounts, which had been withdrawn in their entirety by one of cotenant without consent of the other eotenant, were "sufficiently identifiable to be the subject of a claim for conversion"


holding that proceeds of a litigation settlement were an "identifiable fund" and thus "a proper subject of a misappropriation and conversion claim"


affirming conversion judgment in favor of plaintiff where defendant withdrew corporate funds invested in certificates of deposit and spent it for non-corporate purposes


Context: ORDERED that Gary M. Anderson is hereby indefinitely suspended from the practice of law in the District of Columbia with reinstatement subject to a fitness requirement and the right to petition for reinstatement after five years or when reinstated in the state of Maryland, whichever occurs first.

explaining that the presumption of identical discipline in D.C. Bar R. XI, SS 11 (c) will prevail except in "rare" cases

See In re Maignan, 988 A.2d 493, 495 (D.C. 2010) (setting forth the functionally equivalent discipline for an indefinite suspension without a required minimum period of suspension); see also In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010) (explaining that the presumption of identical discipline in D.C. Bar R. XI, § 11 (c) will prevail except in “rare” cases); In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (explaining that in unopposed reciprocal matters the “imposition of identical discipline should be close to automatic”). For purposes of eligibility to petition for reinstatement, the suspension will not begin to run until such time as respondent files a D.C. Bar R. XI, § 14. (g) affidavit.


explaining that in unopposed reciprocal matters the "imposition of identical discipline should be close to automatic"


Context: The suicide cases, allowing recovery, reviewed in preparation of my earlier opinion denying summary judgment, uniformly involve cases in which there exists the possibility of finding a strong, direct link between the suicide and the wrongful act of the defendant.

E. g., Fuller v. Preis, 363 N.Y.S.2d 568, 35 N.Y.2d 425, 322 N.E.2d 263 (Ct.App.1974) (seven-month lapse marked by repeated medical treatment for symptoms resulting from the wrongful act); Zygmaniak v. Kawasaki Motors Corp., U.S.A., 131 N.J.Super. 403, 330 A.2d 56 (1974) (four-day lapse — suicide in direct response to serious injury); Freyermuth v. Lutfy, 382 N.E.2d 1059 (Mass.1978) (two-month lapse with direct connection between mental illness relapse, accident, and eventual suicide); Exxon Corp. v. Brecheen, 519 S.W.2d 170 (Ct.App.Tex.1975) (thirty-four-month lapse marked by continuing psychological instability immediately and directly related to injury); cf. McMahon v. City of New York, 16 Misc.2d 143, 141 N.Y.S.2d 190 (Sup. Court 1955) (six-month lapse, during which plaintiff returned to work, found to preclude wrongful death claim).


four-day lapse -- suicide in direct response to serious injury


two-month lapse with direct connection between mental illness relapse, accident, and eventual suicide


thirty-four-month lapse marked by continuing psychological instability immediately and directly related to injury


Context: We now turn to the government's arguments on appeal. The government asserts, "The best and most direct evidence of the Maoists['] intent is their own words." Gov't Br. at 20. We agree with that statement, as far as it goes, as it recognizes the difficulty in gathering evidence of motivation in asylum cases.

noting that, in ascertaining motive, the agency may evaluate "statements or actions by the perpetrators"

See Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812 (refusing to require an asylum applicant “to provide direct proof of his persecutor’s motives”); see also In re S-P-, 21 I. & N. Dec. 486, 494 (B.I.A.1996) (noting that, in ascertaining motive, the agency may evaluate “statements or actions by the perpetrators”).

refusing to require an asylum applicant "to provide direct proof of his persecutor's motives"


Context: As we have recognized in previous cases, rule 65B was fashioned to prevent abuse of the judicial process by prisoners who "burden the courts and frustrate the ends of justice" by filing multiple habeas petitions for claims which could have been brought in a single petition.

See Wright, 886 P.2d at 60 (concluding that rule 65B(b)(7) is intended to prevent abuse by prisoners through filing of successive writs); see also Candelario v. Cook, 789 P.2d 710, 712 (Utah 1990) (“Rule 65B(i)(2) is designed to prevent successive petitions for a writ based on identical grounds, a potential abuse of the judicial system.”); Hurst, 777 P.2d at 1036 (“The law can and does protect itself against vexatious and abusive successive petitions for writs.”).

"Rule 65B(i)(2) is designed to prevent successive petitions for a writ based on identical grounds, a potential abuse of the judicial system."


"The law can and does protect itself against vexatious and abusive successive petitions for writs."


Context: The law has long recognized that failure to follow a party's precautionary steps or procedures is not necessarily failure to exercise ordinary care.

57A Am.Jur.2d Negligence § 187 at 239 (1998) (failure to follow company rule does not constitute negligence per se; jury may consider rule, but rule does not set standard of conduct establishing what law requires of a reasonable person under the circumstances); 1 Dan B. Dobbs, The Law of Torts § 165 (2000) (defendant’s rules or practices are evidence bearing on the reasonable care issue, but do not ordinarily count as the standard of care; limiting instruction may be required, advising jury that rules cannot set a higher duty than is required by law); 1 J.D. Lee and Barry A. Lindahl, Modern Tort Law § 3.29 (1996) (“Company rules are generally admissible but not conclusive on the question of the standard of care.”); Rupert v. Clayton Brokerage Co., 737 P.2d 1106, 1111 (Colo.1987) (internal rules of brokerage firm relevant to standard of care for breach of fiduciary duty, but not determinative of the standard of care); Sherman v. Robinson, 80 N.Y.2d 483, 591 N.Y.S.2d 974, 606 N.E.2d 1365, 1369 n. 3 (1992) (defendant’s company manual did not create a separate duty of care; where internal rules require a standard that transcends reasonable care, breach of rules cannot be considered evidence of negligence); cf. Boutilier v. Chrysler Ins. Co., No. 8:99-cv-2270-T-26MAP, 2001 WL 220159, at * 1, 2001 U.S. Dist. LEXIS 5526, at *4 (M.D.Fla. Jan. 31, 2001) (in negligence action, mere fact that defendant has internal corporate poli cy does not create a legal duty or cause a breach of that duty).


Context: For the foregoing reasons the petition for review is GRANTED in part. This panel retains jurisdiction to rule, if necessary, upon the issue of Mustafaj's removability.

See Shi Liang Lin v. DOJ, 416 F.3d 184, 192 (2d Cir.2005) (retaining jurisdiction to decide issues on appeal following remand to the BIA); cf. United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994) (retaining jurisdiction while remanding to the district court for supplementation of the record).


Context: The majority has not taken notice of certain exceptions to the employment-at-will doctrine that have developed in a recent line of cases. This court has held that discharge of an at-will employee is actionable if the employee is discharged for exercising a statutorily protected right.

See also Macken v. Lord Corp., supra (suggesting that Pennsylvania courts would recognize wrongful discharge claim based upon discharge in retaliation for filing workers’ compensation claim); Sorge v. Wright’s Knitwear Corp., 832 F.Supp. 118 (E.D.Pa.1993) (under Pennsylvania law, discharge for reporting safety violations to OSHA would violate public policy embodied in federal statute protecting employees who voluntarily file complaints under Occupational Safety and Health Act); Kilpatrick v. Delaware County S.P.C.A, 632 F.Supp. 542 (E.D.Pa.1986) (under Pennsylvania law, discharge for reporting safety violations to Pennsylvania Department of Agriculture would violate public policy embodied in federal statute protecting employees who voluntarily file complaints under or related to Occupational Safety and Health Act).

Raykovitz v. K Mart Corp., 445 Pa.Super. 378, 665 A.2d 833 (1995) (discharge for collecting partial unemployment compensation based on previous full-time job while employed part-time by K Mart would violate public policy embodied in statute rendering void any agreement by employee to waive, release or commute rights to unemployment compensation); Highhouse v. Avery Transportation, supra (constructive discharge for filing unemployment compensation claim during periods when employer offered no work to employee would violate public policy embodied in statute rendering void any agreement by employee to waive, release or commute rights to unemployment compensation).


under Pennsylvania law, discharge for reporting safety violations to Pennsylvania Department of Agriculture would violate public policy embodied in federal statute protecting employees who voluntarily file complaints under or related to Occupational Safety and Health Act


Context: Third, it is apparent that the Strattons were represented by counsel throughout the state court proceedings, and that their constitutional rights were protected. Fourth, any claim against the judicial defendants would certainly be subject to dismissal based on the doctrine of absolute judicial immunity.

affirming dismissal of SS 1983 claim on basis of judicial immunity

See Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L.Ed. 646 (1871) (explaining that “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself’); see also Dean v. Shirer, 547 F.2d 227 (4th Cir.1976) (affirming dismissal of § 1983 claim on basis of judicial immunity).

explaining that "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself'


Context: Parks's complaint makes numerous references to the judicial proceedings in Pennsylvania state court that resulted in the razing of the family home. Although the record of those proceedings was not attached to the complaint, this Court can, and will, take judicial notice of the publicly available opinions rendered by the state courts in those proceedings, as they provide the relevant background to the present suit.

"[T]he official record of the parallel state case is a proper object for judicial notice."

See McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.2009) (explaining that the “court may take judicial notice of a prior judicial opinion”); see also Lumen Const. v. Brant Const., 780 F.2d 691, 697 (7th Cir.1985) (“[T]he official record of the parallel state case is a proper object for judicial notice.”).

explaining that the "court may take judicial notice of a prior judicial opinion"


Context: Thus, the Court concludes that a genuine issue of material fact exists, and summary judgment is therefore inappropriate.

"Here, a reasonable jury could find, based on the evidence, that [defendants] violated the plaintiffs' clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury's verdict."

See Ricciuti 124 F.3d at 130 (“Here, a reasonable jury could find, based on the evidence, that [defendants] violated the plaintiffs’ clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury’s verdict.”); see also Jocks, 316 F.3d at 138 (holding that summary judgment was inappropriate where plaintiff testified that statement written by defendant was false, and defendant testified that statement was verbatim and accurate, because, “[although there was certainly not overwhelming evidence of falsification, a reasonable jury would be entitled to credit [plaintiffs] testimony and reject [defendant’s]”).

holding that summary judgment was inappropriate where plaintiff testified that statement written by defendant was false, and defendant testified that statement was verbatim and accurate, because, "[although there was certainly not overwhelming evidence of falsification, a reasonable jury would be entitled to credit [plaintiffs] testimony and reject [defendant's]"


Context: Boeing is not required to create positions merely to accommodate Aldrich. This is not required by the ADA.

See Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) (holding transfer to another job that would violate seniority rights under collective bargaining agreement unreasonable); see also Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir.1997) (“[A]n accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable.”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir.1997) (“Following the other circuits which have considered this issue, we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement.”); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir.1996) (“[T|he ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees."); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir.1995) ("The ADA does not require that [the employer] take action inconsistent with the contractual rights of other workers under a collective bargaining agreement.”); cf. Shea v. Tisch, 870 F.2d 786, 790 (1st Cir.1989) (employer "not required [under Rehabilitation Act] to accommodate plaintiff further by placing him in a different position since to do so would violate the rights of other employees under the collective bargaining agreement"); Carter v. Tisch, 822 F.2d 465, 469 (4th Cir.1987) (duty to reassign under Rehabilitation Act "would not defeat the provisions of a collective bargaining agreement unless it could be shown that the agreement had the effect or the intent of discrimination”). But see Aka v. Washington Hosp. Ctr., 116 F.3d 876, 894-897 (D.C.Cir.) (holding terms of collective bargaining agreement only a factor in weighing reasonableness of accommodation), reh'g en banc granted and judgment vacated, 124 F.3d 1302 (D.C.Cir.1997).

"[A]n accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable."


"Following the other circuits which have considered this issue, we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement."


"[T|he ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees."


"The ADA does not require that [the employer] take action inconsistent with the contractual rights of other workers under a collective bargaining agreement."


employer "not required [under Rehabilitation Act] to accommodate plaintiff further by placing him in a different position since to do so would violate the rights of other employees under the collective bargaining agreement"


Context: It is not immediately apparent that such further action would be required here. Some courts have required perfection under state law for liens involving specifically designated property, though these courts were not confronted with judgments involving ERISA-regulated pension benefits.

See Miller v. Conte, 72 F.Supp.2d 952, 960 (N.D.Ind.1999) (requiring that judgment lien be recorded in case of real property where state law so required); Smith Barney, Harris Upham & Co. v. Connolly, 887 F.Supp. 337, 344 (D.Mass.1994) (same).

"In order to perfect a judgment lien in Texas on personal property [to satisfy a money judgment], a form of execution such as garnishment is required"

See also Palandjoglou, 821 F.Supp. at 1185 (“In order to perfect a judgment lien in Texas on personal property [to satisfy a money judgment], a form of execution such as garnishment is required”) (internal quotation and citation omitted).


Context: In addition, the court notes that he complained of disability discrimination in a May 5, 2004 e-mail to Sommers, Howard, and Pike, in which he characterized Defendant's attempt to change his work schedule as evidence that Defendant was not accommodating his disability. (5/5/04 E-mail.) Even the shorter time period between Plaintiffs May 5, 2004 complaint of disability discrimination and his June 25 termination is not, standing alone, sufficient to establish causation, however: "[Sjuspicious timing alone rarely is sufficient to create a triable issue" of fact on summary judgment.

See EEOC v. Yellow Freight Sys., 253 F.3d 943, 952-53 (7th Cir.2001) (en banc) (six-week gap between filing of EEOC charge and termination insufficient to establish retaliation and therefore affirming award summary judgment for defendant); Jasmantas v. Subaru-Isuzu Auto., Inc., 139 F.3d 1155, 1158 (7th Cir.1998) (one-month between employee’s filing of EEOC charge and her discharge insufficient to link filing of charge to termination without other evidence).

"By itself, temporal proximity would not normally create an issue of material fact as to causation .... "

Tomanovich, 457 F.3d at 665 (quoting Moser, 406 F.3d at 905); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir.2004) (“By itself, temporal proximity would not normally create an issue of material fact as to causation .... ”).


one-month between employee's filing of EEOC charge and her discharge insufficient to link filing of charge to termination without other evidence


temporal proximity of one day between any employee's protected activity and termination sufficient to overcome a motion for summary judgment

Cf. King v. Preferred Technical Group, 166 F.3d 887, 893 (7th Cir.1999) (temporal proximity of one day between any employee’s protected activity and termination sufficient to overcome a motion for summary judgment).


Context: The wholesale price of a kilogram of heroin in the eight years between 2000 and 2008 appears to have ranged from $60,000 to roughly $100,000. We assume that district judges in this circuit, who handle large numbers of wholesale-quantity drug cases each year, are familiar with these prices and require no further evidence unless the point is challenged. In short, because Nino admitted trafficking in a quantity of heroin with a wholesale value at least in the high six figures, that admission by itself provided a sufficient factual basis to support a preponderance finding that the proceeds realized by the conspiracy were at least $100,000.

See United States v. Treacy, 639 F.3d at 48 (holding that forfeiture calculation is not “exact science” and that district court “may make reasonable extrapolations” from evidence); see also United States v. Benevento, 836 F.2d 129, 130 (2d Cir.1988) (recognizing forfeiture liability among criminal confederates to be joint and several).

holding that forfeiture calculation is not "exact science" and that district court "may make reasonable extrapolations" from evidence


Context: Indeed, Buyer does not appear to contest that point. Therefore, the district court did not clearly err in finding that Buyer could not have justifiably relied on Seller's alleged misrepresentation.

M.D.C./Wood, 866 P.2d at 1382 (a party has no right to rely on a misrepresentation if it has "access to information that was equally available to both parties and would have led to the true facts"); Nielson v. Scott, 53 P.3d 777, 780 (Colo.App.2002) (where the plaintiff had actual knowledge of the truth or was put on inquiry notice, he could not justifiably rely on the defendant's misrepresentation); see Brush Creek Airport, L.L.C., v. Avion Park, L.L.C., 57 P.3d 738, 749 (Colo.App.2002) (the plaintiff did not reasonably rely on the defendant's misrepresentation where it was on inquiry notice).


where the plaintiff had actual knowledge of the truth or was put on inquiry notice, he could not justifiably rely on the defendant's misrepresentation


Context: . Because of inadequate briefing by the parties on this issue, we do not address whether a Heck bar properly applies to a person formerly in custody, even if the person could have practicably sought habeas relief. We simply note that the binding precedent from the Supreme Court and in this Circuit does not clearly impose a "practicable diligence" requirement for former prisoners.

declining to permit "a plaintiff who ignored his opportunity to seek collateral relief while incarcerated to skirt the Heck bar simply by waiting to bring a SS 1983 claim until habeas is no longer available"

But see Burd v. Sessler, 702 F.3d 429, 436 (7th Cir.2012) (declining to permit "a plaintiff who ignored his opportunity to seek collateral relief while incarcerated to skirt the Heck bar simply by waiting to bring a § 1983 claim until habeas is no longer available”); Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir.2006) (finding Heck applicable, despite the legal impossibility of pursuing habeas relief, because "failure timely to achieve habeas relief is self-imposed”).

noting that Heck should not bar a claim if it would be "impossible as a matter of law" for a person to satisfy the favorable-termination requirement, without specifying whether it should apply if habeas relief was ever possible

See Spencer, 523 U.S. at 21, 118 S.Ct. 978 (Souter, J., concurring) (noting that Heck should not bar a claim if it would be "impossible as a matter of law” for a person to satisfy the favorable-termination requirement, without specifying whether it should apply if habeas relief was ever possible); Wilson, 535 F.3d at 268 (noting that "courts have taken a keen interest” in whether "a prisoner could have filed a habeas” petition, but not imposing a practicable-diligence requirement).


finding Heck applicable, despite the legal impossibility of pursuing habeas relief, because "failure timely to achieve habeas relief is self-imposed"


noting that "courts have taken a keen interest" in whether "a prisoner could have filed a habeas" petition, but not imposing a practicable-diligence requirement


Context: However, "[b]efore certifying a defendant class, the court must carefully examine the impact of such certification on the rights of unnamed class members." Certification of this defendant class as to all claims except the SS 12(2) claim, which is addressed below, would not adversely impact the rights of the class members.

certifying defendant class under SS 11 of the 1933 Act

See Akerman, 609 F.Supp. at 375 (“th[e] determination ... depends on the nature of the various claims and the statutory scheme of remedies”); see also In re Itel Sec. Litig., 89 F.R.D. 104, 109-14 (N.D.Cal.1981) (certifying defendant class under § 11 of the 1933 Act); In re Gap Stores, 79 F.R.D. at 302-06 (same).

"th[e] determination ... depends on the nature of the various claims and the statutory scheme of remedies"


Context: Plaintiff argued it was not required as a matter of law to exhaust its appellate remedies or continue the prophylactic, and potentially frivolous, subsequent lawsuits against the nursing homes to perfect its legal malpractice claim. Rather, plaintiff contended, it only was required to take reasonable steps to avoid the consequences of its former attorney's tortious conduct before it sued the attorney for malpractice.

finding that unlike the plaintiff in Spaulding, Mrs. Bueehel was not confronted with a "litigation catastrophe" that required her to accept a lesser settlement and pursue the perceived difference in future litigation because the trial court had not decided her motion to vacate the first settlement agreement

Cf. Puder, supra, 183 N.J. at 440, 874 A.2d 534 (finding that unlike the plaintiff in Spaulding, Mrs. Bueehel was not confronted with a “litigation catastrophe” that required her to accept a lesser settlement and pursue the perceived difference in future litigation because the trial court had not decided her motion to vacate the first settlement agreement).

holding that the plaintiffs inadequate settlement of his underlying claim at trial was a reasonable mitigation of damages in the professional malpractice action against his treating physician for failing to appear in court, as promised, because the plaintiff and his attorney were threatened with a "litigation catastrophe"

See Spaulding v. Hussain, 229 N.J.Super. 430, 444, 551 A.2d 1022 (App.Div.1988) (holding that the plaintiffs inadequate settlement of his underlying claim at trial was a reasonable mitigation of damages in the professional malpractice action against his treating physician for failing to appear in court, as promised, because the plaintiff and his attorney were threatened with a “litigation catastrophe”); see also Covino v. Peck, 233 N.J.Super. 612, 619, 559 A.2d 868 (App.Div.1989) (holding that a client’s legal malpractice action instituted after his attorney failed to file suit in New Jersey within the statute of limitations was a reasonable response to a “legal catastrophe” and was not barred by the doctrine of mitigation of damages although the client could have filed suit against one of the underlying tortfeasors in Mississippi, which had a longer statute of limitations; the client was not required to litigate in an inconvenient forum in an attempt to extricate the defendant from his own wrongful act).


Context: A parole revocation in itself implies a failure of the parolee to satisfy the obligations of conditional liberty; it has a far greater bearing on future administrative or judicial decisions than denial of early eligibility, especially since the latter denial may reflect a judgment on the seriousness of the underlying crime rather than about rehabilitative progress or suitability for parole." A decision now cannot affect this sentence, but we do not know that its result may not affect the commencement date of later from-and-after sentences").

parolees discharged from custody by the time the appeal was argued so questions of validity of pairole revocation held moot

Contrast Lane v. Williams, 455 U.S. 624, 631-634 (1982) (parolees discharged from custody by the time the appeal was argued so questions of validity of pairóle revocation held moot).

recognizing in a probation revocation case that a revocation in a person's record "may have future administrative or judicial consequences," but deciding to pretermit a mootness question on the grounds that it had not been developed in the argument and the defendant had diligently pursued his claims

Compare Commonwealth v. Christian, 46 Mass. App. Ct. 477, 479-480 (1999), S.C., 429 Mass. 1022 (1999) (recognizing in a probation revocation case that a revocation in a person’s record “may have future administrative or judicial consequences,” but deciding to pretermit a mootness question on the grounds that it had not been developed in the argument and the defendant had diligently pursued his claims).


Context: Mere "random" and "attenuated contacts" with New Jersey are insufficient. Plaintiffs rely on the fact that C & F was a facet of Fairfax's consolidated financial statements in arguing that an attack on one entity was an attack on another or all. But they also recognize that harm to C & F was a byproduct and "cascading effect" of Fairfax's injuries.

finding "that defendants who published defamatory electronic messages, with knowledge that the messages would be published in New Jersey and could influence a claimant's efforts to seek a remedy under New Jersey's Law Against Discrimination, may properly be subject to the State's jurisdiction"

See Blakey, supra, 164 N.J. at 46, 751 A.2d 538 (finding “that defendants who published defamatory electronic messages, with knowledge that the messages would be published in New Jersey and could influence a claimant’s efforts to seek a remedy under New Jersey’s Law Against Discrimination, may properly be subject to the State’s jurisdiction”); Lebel, supra, 115 N.J. at 320, 558 A.2d 1252 (considering that the defendant actively solicited the business of a New Jersey plaintiff); Goldhaber v. Kohlenberg, 395 N.J.Super. 380, 389-90, 928 A.2d 948 (App. Div. 2007) (recognizing that the defendant “not only knew that plaintiffs resided in New Jersey, he knew the municipality in which they resided and made specific disparaging references to that municipality in many of his postings”); cf. Matsumoto v. Matsumoto, 335 N.J.Super. 174, 180-85, 762 A.2d 224 (App. Div.) (holding there was no personal jurisdiction over a foreign national who helped her son in an out-of-state conspiracy to violate his former wife’s custody rights under their New Jersey divorce decree, even if she had retained title to the New Jersey marital home), aff'd in part, mod. in part on other grounds, 171 N.J. 110, 792 A.2d 1222 (2000).

holding there was no personal jurisdiction over a foreign national who helped her son in an out-of-state conspiracy to violate his former wife's custody rights under their New Jersey divorce decree, even if she had retained title to the New Jersey marital home


considering that the defendant actively solicited the business of a New Jersey plaintiff


recognizing that the defendant "not only knew that plaintiffs resided in New Jersey, he knew the municipality in which they resided and made specific disparaging references to that municipality in many of his postings"


Context: RCW 13.34.020. Tragically, parents sometimes inflict upon their own children not only neglect but verbal, physical, and sexual abuses that defy detailed description here.

See, e.g., State v. Lorenz, 152 Wn.2d 22, 25, 93 P.3d 133 (2004) (parent raped and molested five year old child to produce pornography); State v. Marshall, 144 Wn.2d 266, 274, 27 P.3d 192 (2001) (describing father who mistreated wolf-dog hybrids and punished son by throwing him into their pen); State v. Gaines, 144 Wash. 446, 456-57, 258 P. 508 (1927) (evidence suggested that a father murdered his daughter when she attempted to extricate herself from an incestuous relationship with him); see also DeShaney, 489 U.S. at 193 (father beat his four year old son so severely as to put him in a coma and cause tremendous brain damage).


describing father who mistreated wolf-dog hybrids and punished son by throwing him into their pen


evidence suggested that a father murdered his daughter when she attempted to extricate herself from an incestuous relationship with him


Context: K.S.A. 21~3401(a). Intent and premeditation are necessary elements of that offense.

See State v. Wimbley, 271 Kan. 843, 847-48, 26 P.3d 657 (2001) (sufficient evidence to support premeditated first-degree murder conviction requires proof of intent to kill victim and premeditation); see also K.S.A. 21-3201(a) (criminal intent, established by proof of intentional conduct, essential element of every crime under Kansas Criminal Code unless statute otherwise specifies); State v Phillips, 295 Kan. 929, 937, 287 P.3d 245 (2012) (noting intentional second-degree murder differs from intentional first-degree murder by lacking element of premeditation); State v. Cravatt, 267 Kan. 314, 328, 979 P.2d 679 (1999) (premeditation is state of mind relating to reasons and motives for accused’s acts and is necessary element of premeditated first-degree murder).


premeditation is state of mind relating to reasons and motives for accused's acts and is necessary element of premeditated first-degree murder


Context: In sum, we affirm the district court's conclusion that Arce's confinement did not "present a dramatic departure from the basic conditions of [Arce's] ... sentence."

fifteen months of administrative segregation not atypical when "inmates in a myriad of circumstances [would] find themselves exposed to the [same], conditions to which [the inmate] was subjected"

Sandin, 515 U.S. at 485, 115 S.Ct. at 2301; Griffin v. Vaughn, 112 F.3d 703, 708. (3d Cir.1997) (fifteen months of administrative segregation not atypical when “inmates in a myriad of circumstances [would] find themselves exposed to the [same], conditions to which [the inmate] was subjected”); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir.1997) (holding that 117 days in administrative segregation due to lack of bed space did not implicate a state-created liberty interest), cert. denied, —— U.S.-, 118 S.Ct. 136, 139 L.Ed.2d 84 (1997); see Cody, 895 F.Supp. at 436 and 441 (periodic deprivation of outdoor exercise over the span of several months did not implicate state-created liberty interest); Gill v. Pact Organization, 1997 WL 539948, at *10 (S.D.N.Y.


holding that 117 days in administrative segregation due to lack of bed space did not implicate a state-created liberty interest


Context: 34 Mental illnesses fall within the ordinary meaning of the term "mental condition."

See, e.g., People v. Roadcap, 78 P.3d 1108, 1112 (Colo.App.2003) (concluding that a mental illness listed in Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) was a mental condition triggering section 16-8-107(8)(b)); see also In re People v. Wilburn, 2012 CO 21, ¶ 28, 272 P.3d 1078 (when a defendant's expert intends to testify that a defendant possesses a learning disorder, the requirements of section 16-8-107(@B)(b) are triggered).


Context: The State maintains that regardless of the validity of the Fifth Amendment privilege, the trial court should not call a witness to the stand for the singular purpose of exercising this right in the jury's presence.

holding that Sixth Amendment only requires that witness be brought to court, not that he be required to take witness stand after refusing to testify and observing that "[i]t is irrelevant whether the witness's refusal is grounded in a valid Fifth Amendment privilege, an invalid privilege, or something else entirely"

See U.S. v. Griffin, 66 F.3d 68, 70 (5th Cir.1995) (holding that Sixth Amendment only requires that witness be brought to court, not that he be required to take witness stand after refusing to testify and observing that “[i]t is irrelevant whether the witness’s refusal is grounded in a valid Fifth Amendment privilege, an invalid privilege, or something else entirely”); see also Martin v. U.S., 756 A.2d 901, 905 (D.C.2000) (recognizing that policy reasons undergirding assertion of Fifth Amendment privilege outside jury’s presence apply even if privilege is invalid). Those courts that require the assertion of the privilege outside the jury’s presence adhere to this practice as a means of preventing the jury from drawing any improper inferences from the witness’ decision to exercise his constitutional privilege.

recognizing that policy reasons undergirding assertion of Fifth Amendment privilege outside jury's presence apply even if privilege is invalid


Context: Based on the above, we conclude that a claimant is entitled to the presumption so long as he or she provides evidence establishing a prima facie case of a work-related injury.

Georgetown Univ. I, supra, 830 A.2d at 870-71 (explaining that the presumption applies where the claimant establishes a prima facie case); see Prima Facie Evidence, Black’s Law Dictionary, at 877 (10th Ed. 2014) (defining prima facie evidence as “[ejvidence that will establish a fact or sustain in a judgment unless contradictory evidence is produced). And that, it is not appropriate for the ALJ to weigh the evidence or make credibility findings at this initial stage in assessing whether a claimant has established a pri-ma facie case of a work-related injury.

See, e.g., Burke v. Scaggs, 867 A.2d 213, 218-19 (D.C. 2005) (credibility findings and weighing of the evidence are not appropriate in determining whether a plaintiff has established a prima facie case for a directed verdict).


Context: Further, the juxtaposition of the crucifix with Wdiitney's strangled and bound body could have been seen as providing religious overtones to the murder. Inclusion of the crucifix would have run the risk of affecting one or more jurors in an unpredictable, but unfairly prejudicial way.

See Taylor v. State, 640 So.2d 1127, 1135 (Fla.Dist.Ct.App.1994) (videotape of victim’s home that included panning shots of a crucifix on the wall “invite[d] an emotional response”); cf. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 644 (1991) (establishing a per se rale against religious invocations in prosecutorial closing arguments in capital cases).

videotape of victim's home that included panning shots of a crucifix on the wall "invite[d] an emotional response"


Context: Thus, the correct inquiry is not whether it was impossible for Plaintiff to bring suit, but whether it was impossible for [the decedent] or his successor in interest to bring suit."). Thus, RCHSD's cases discussing representative class standing and assignment-based rights to bring claims under the UCL are inapplicable.

See Arias v. Super. Ct. 46 Cal.4th 969, 977-80, 95 Cal.Rptr.3d 588, 209 P.3d 923 (2009) (holding that a private party could pursue a representative action on behalf of others under the UCL only if the party met the requirements for a class action); see also In re WellPoint, Inc. v. Out-of-Network “UCR” Rates Litig., 903 F.Supp.2d 880, 898 (C.D. Cal. 2012) (holding that plaintiffs could only pursue UCL claims via assignment if they satisfied class action requirements).


Context: The district court did not abuse its discretion with respect to exhibit RRR where it ordered defendants to redact Thorns's prior offenses from the exhibit immediately upon Thorns's objection and before entering the exhibit into evidence.

"To reverse on the basis of an evidentiary ruling, this Court must conclude both that the district court abused its discretion and that the error was prejudicial."

See McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir.2003) (“To reverse on the basis of an evidentiary ruling, this Court must conclude both that the district court abused its discretion and that the error was prejudicial.”); see also United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir.1978) (no abuse of discretion for not giving a limiting instruction where no party asked for one).


Context: In addition, the record indicates that Taylor has served three prior prison terms; that he was on misdemeanor probation when he committed the present felony offense; and that he previously violated a misdemeanor probation.

noting that the petitioner's prior incarceration included only a single, one-year jail sentence

See Ewing, 538 U.S. at 12, 123 S.Ct. 1179 (noting that the petitioner “committed most of his crimes while on probation or parole”). As such, “[o]ne in [Taylor’s] position has been both graphically informed of the consequences of lawlessness and given an opportunity to reform, all to no avail.” Rum-mel, 445 U.S. at 278, 100 S.Ct. 1133; see also Ramirez, 365 F.3d at 769 (noting that the petitioner’s prior incarceration included only a single, one-year jail sentence).

noting that the petitioner "committed most of his crimes while on probation or parole"


Context: . It bears noting that this Court is cognizant of the growing concern in other jurisdictions with reliance on eyewitness identification testimony, the growing body of scientific and psychological studies regarding the questionable accuracy of the accounts of eyewitnesses, and the efforts made to prevent a miscarriage of justice. However, in this case, that issue was not raised before the trial justice and is not properly before us.

requiring that "a cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification"

See Commonwealth v. Gomes, 470 Mass. 352, 22 N.E.3d 897, 907-16 (2015) (updating model instructions on eyewitness identifications to include several "generally accepted principles”, holding modified by Commonwealth v. Bastaldo, 472 Mass. 16, 32 N.E.3d 873, 877 (2015) (requiring that "a cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification”)); see also State v. Cabagbag, 127 Hawaii 302, 277 P.3d 1027, 1038-39 (2012) (deciding that "when eyewitness identification is central to the case, circuit courts must give a specific jury instruction upon the request of the defendant to focus the jury’s attention on the trustworthiness of the identification”); Henderson, 27 A.3d at 919, 920-21 (overturning longstanding precedent on evaluating trustworthiness of identification evidence; specifying many more variables that courts must consider beyond the five Neil v. Biggers factors, and clarifying when identifications are deemed admissible).

deciding that "when eyewitness identification is central to the case, circuit courts must give a specific jury instruction upon the request of the defendant to focus the jury's attention on the trustworthiness of the identification"


Context: Or put another way, the conduct at issue is not nearly identical when the difference between the plaintiffs conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer. See Wyvill v. United Cos.

requiring the plaintiff to show that the company treated others differently in "nearly identical circumstances" and finding that "the striking differences between the two men's situations more than account for the different treatment they received"

Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir.2000) (requiring the plaintiff to show that the company treated others differently in “nearly identical circumstances” and finding that “the striking differences between the two men’s situations more than account for the different treatment they received”); see also Polanco v. City of Austin, Tex., 78 F.3d 968, 977 (5th Cir.1996) (where jury had to reject the employer’s contention that two employees were not similarly situated, the “evidence had to contradict the legitimacy of the [employer’s] explanation that the differences between [the two employees] justified” the difference in treatment).

where jury had to reject the employer's contention that two employees were not similarly situated, the "evidence had to contradict the legitimacy of the [employer's] explanation that the differences between [the two employees] justified" the difference in treatment


Context: "Persecution on account of ... political opinion ... is persecution on account of the victim's political opinion, not the persecutor's." To qualify for withholding of removal based on persecution by a guerilla group on account of a political opinion, Sanchez must establish that the guerillas persecuted her or will seek to persecute her in the future because of her actual or imputed political opinion.

"Purely personal retribution is, of course, not persecution on account of political opinion," but mixed-motive persecution may qualify if one of the motives is political.

See id. at 483, 112 S.Ct. at 816 (finding that persecution due to a refusal to join forces with the guerillas is not persecution on account of a political opinion); see also Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th Cir.2000) (“Purely personal retribution is, of course, not persecution on account of political opinion,” but mixed-motive persecution may qualify if one of the motives is political.) (persuasive authority); Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001) (finding that evidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground) (persuasive authority).


finding that evidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground


Context: Plaintiffs contend that the FVEC violates their right to equal protection because it gives fewer benefits to Filipino veterans than to veterans of the United States Armed Forces. But our circuit, as well as one of our sister circuits, has already held that the disparity in benefits created by SS 107 of title 38, established by the Surplus Appropriation Rescission Acts, does not require strict scrutiny because it is based on status as a territory and not on the basis of race, nationality, or alienage and is constitutional under rational basis review.

holding that the "broad powers of Congress under the Territory Clause are inconsistent with the application of heightened judicial scrutiny" and finding several potential rational bases, including conserving finances, to support the law

See Besinga v. United States, 14 F.3d 1356, 1360-62 (9th Cir.1994) (holding that the “broad powers of Congress under the Territory Clause are inconsistent with the application of heightened judicial scrutiny” and finding several potential rational bases, including conserving finances, to support the law); see also Quiban v. Veterans Admin., 928 F.2d 1154, 1160-62 (D.C.Cir.1991) (rejecting an argument that strict scrutiny should apply because Filipino veterans are an insular minority and finding that limiting tax-funded social-welfare programs to United States veterans is a rational basis for the law).


Context: Unlike the circumstances in Adamson, the present record thus fails to reveal that the defendant appreciated and understood the full consequences of breaching the plea bargain and thereby deliberately chose to upset the finality of his convictions and sentences when he decided not to abide by the terms of the agreement. Adamson therefore provides no authority for vacating the defendant's guilty pleas and sentences and exposing him to a second prosecution for the crimes originally charged by the state.

a defendant's unilateral breach of a plea bargain may constitute "cause" for setting aside his agreement with the state and returning the parties to their pre-plea positions in cases in which he or she has not yet been sentenced on his guilty plea and jeopardy has therefore not yet attached

See Dyer v. State, 34 P.3d 652 653-54 (Okla.Crim.App.2001) (distinguishing Adamson because “[t]he state merely stated that [defendant] could then be charged with perjury” if he breached his plea bargain, and “[n]o | oother possible results of a breach were discussed.”); cf. State v. Nall, 379 So.2d 731 (La.1980)(a defendant’s unilateral breach of a plea bargain may constitute “cause” for setting aside his agreement with the state and returning the parties to their pre-plea positions in cases in which he or she has not yet been sentenced on his guilty plea and jeopardy has therefore not yet attached); State v. Kelly, 96-0903 (La.App. 5th Cir.11/12/97), 704 So.2d 800, writ denied, 97-3104 (La.4/9/98), 717 So.2d 1142 (same).

distinguishing Adamson because "[t]he state merely stated that [defendant] could then be charged with perjury" if he breached his plea bargain, and "[n]o | oother possible results of a breach were discussed."


Context: Accordingly, when an employee occupies a position for which political loyalty is a legitimate criterion, the nature of the position itself weights the balance in favor of the government.

stating that whether the statement "has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary" is a "pertinent consideration" in the Pickering balance

See Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (stating that whether the statement “has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary” is a “pertinent consideration” in the Pickering balance); see also McEvoy, 124 F.3d at 103 (noting that an employee’s role as a policymaker normally weighs “heavily” on the government’s side of the Pickering balance).

noting that an employee's role as a policymaker normally weighs "heavily" on the government's side of the Pickering balance


Context: We disagree. Our research has uncovered several cases in which the Commonwealth had sought to enjoin future conduct based on past acts. See Commonwealth by Zimmerman v. Nat'l Apt.

where petitioner entered into a consent decree with Commonwealth in action arising under the Law and admitted to participating in vehicle odometer rollback scheme, State Board of Vehicle Manufacturers, Dealers and Salespersons was not precluded from revoking petitioner's salesperson's license or imposing civil penalty

Leasing Co., 102 Pa.Cmwlth. 623, 519 A.2d 1050 (1986) (where Commonwealth alleged that apartment leasing company wrongfully withheld security deposits, it was sufficient that Commonwealth believe that a violation of Law occurred in order to set forth cause of action against company); see also Frishman v. Dep’t of State, Bureau of Prof. and Occupational Affairs, 140 Pa. Cmwlth. 455, 592 A.2d 1389 (1991) (where petitioner entered into a consent decree with Commonwealth in action arising under the Law and admitted to participating in vehicle odometer rollback scheme, State Board of Vehicle Manufacturers, Dealers and Salespersons was not precluded from revoking petitioner’s salesperson’s license or imposing civil penalty); Commonwealth by Preate v. Pennsylvania Chiefs of Police Ass’n, Inc., 132 Pa.Cmwlth. 186, 572 A.2d 256 (1990) (Commonwealth’s complaint alleged that association held itself out to be a charitable organization and solicited contributions for itself and other entities); Northview Motors, Inc. v. Commonwealth by Zimmerman, 128 Pa. Cmwlth. 54, 562 A.2d 977 (1989) (evidence was sufficient to support restitution award to consumers who were damaged by auto dealer that violated Law by misleading consumers about the price and quality of the vehicles); Commonwealth by Zimmerman v. Society of the 28th Div., A.E.F.


Commonwealth's complaint alleged that association held itself out to be a charitable organization and solicited contributions for itself and other entities


evidence was sufficient to support restitution award to consumers who were damaged by auto dealer that violated Law by misleading consumers about the price and quality of the vehicles


Context: This Court has found no New York Court of Appeals decision directly addressing the question of whether an insured may recover punitive damages in such circumstances.

punitive damages may be recovered for breach of insurance contract upon "an extraordinary showing of a disingenuous or dishonest failure to carry out a contract"

See Dano v. Royal Globe Ins. Co., 59 N.Y.2d 827, 829, 464 N.Y.S.2d 741, 742, 451 N.E.2d 488, 489 (1983) (assuming availability of remedy but dismissing claim because general business practice not supportable on facts of case); Hubbell v. Trans World Life Ins. Co. of New York, 50 N.Y.2d 899, 901, 430 N.Y.S.2d 589, 590, 408 N.E.2d 918, 919 (1980) (same); Halpin v. Prudential Ins. Co. of Amer., 48 N.Y.2d 906, 908, 425 N.Y.S.2d 48, 49, 401 N.E.2d 171 (1979) (same); cf. Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 437-39, 334 N.Y.S.2d 601, 608-10, 285 N.E.2d 849, 854-55 (1972) (punitive damages may be recovered for breach of insurance contract upon “an extraordinary showing of a disingenuous or dishonest failure to carry out a contract”).


Context: The Record on Appeal does not contain the court's responses to the inquiries. Therefore, we assume the court correctly advised the jury it should not consider insurance in its deliberations.

State v. Vanderhorst, 257 S.C. 114, 184 S.E. (2d) 540 (1971) (where the trial judge’s instructions are not printed in the record, the appellate court must presume the judge correctly charged the jury); see also Dunn v. Charleston Coca-Cola Bottling Co., 311 S.C. 43, 426 S.E. (2d) 756 (1993) (voir dire question on whether any members of the venire believed damages should be limited in order to reduce insurance rates was inherently prejudicial); cf. Landry v. Hilton Head Plantation Property Owners Ass’n, Inc., 452 S.E. (2d) 619 (S.C. Ct. 1994) (Davis Adv.

where the trial judge's instructions are not printed in the record, the appellate court must presume the judge correctly charged the jury


Context: Contrary to Plaintiffs' assertions, these cases do not stand for the proposition that "individuals have standing to bring claims against all facilities in a nationwide chain, even if the individuals did not visit every facility." (Pls.' Mem. at 22.) Indeed, only one of the cases cited by Plaintiffs, Celano v. Marriott Int'l, even involved a nationwide chain, and there the court held that the plaintiffs had standing to sue twenty-six golf courses around the country because the plaintiffs alleged that they had actually been deterred from play ing at these courses.

"All three plaintiffs have attempted to arrange tee times at numerous Marriott courses, but have been unable to play because Marriott advised them that it did not provide accessible carts."

No. 05-4004, 2008 WL 239306, at *7 (ND.Cal. Jan. 28, 2008) (“All three plaintiffs have attempted to arrange tee times at numerous Marriott courses, but have been unable to play because Marriott advised them that it did not provide accessible carts.”); see also Bacon v. City of Richmond, 386 F.Supp.2d 700, 705 (E.D.Va.2005) (holding that plaintiffs had standing to obtain relief against all facilities within a school district, not just against the four schools that they attended, because “[ejach plaintiff has expressed a well-founded interest in attending events at facilities other than the four schools mentioned”).

holding that plaintiffs had standing to obtain relief against all facilities within a school district, not just against the four schools that they attended, because "[ejach plaintiff has expressed a well-founded interest in attending events at facilities other than the four schools mentioned"


Context: In these circumstances, and against this legislative framework, we think there are at least two sound reasons for not inferring a congressional intention to dedicate two forums to the task of assessing alleged "mistakes of fact" relating to an employee's testimony before the ALJ. First, where newly discovered evidence of fraud implicates the evidentiary basis for an employee's compensation claim, the LHWCA discloses a decided preference for utilizing the DOL's in-house expertise in resolving the dispute.

"the benefits of agency expertise become irrelevant" under the LHWCA only after "claim determination" is complete

See, e.g., Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 290, 76 L.Ed. 598 (1932) (the LHWCA provides “a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task”) (emphasis added); cf. Youghiogheny & Ohio Coal Co. v. Vahalik, 970 F.2d 161, 162 (6th Cir.1992) (“the benefits of agency expertise become irrelevant” under the LHWCA only after “claim determination” is complete).

the LHWCA provides "a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task"


Context: . Both parties agree the court erred in accepting Appellant's plea to the firearm charge in Appellant's absence.

See Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (stating that such a plea is void because it is not an intentional relinquishment of a known constitutional right or privilege); cf. Dover v. State, 304 S.C. 433, 434-35, 405 S.E.2d 391, 392 (1991) (finding that a defendant's guilty plea was not knowing and voluntary when the trial court did not discuss the maximum allowable sentences for the crimes with the defendant).


Context: . Had Nationwide wanted to reduce the amount of interest accruing on the judgment, it could have paid its $100,000 policy limits immediately after the judgment was entered and before any substantial amount of interest had accrued.

holding that a judgment debtor may abate the accrual of interest by paying amount owed, and may abate the accrual of interest during appeal by complying with O.C.G.A. SS 9-11-67 by "depositing with the court all or any part of such sum ... to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security"

See JTH Tax, Inc. v. Flowers, 311 Ga.App. 495, 497, 716 S.E.2d 559, 561 (2011) (holding that a judgment debtor may abate the accrual of interest by paying amount owed, and may abate the accrual of interest during appeal by complying with O.C.G.A. § 9-11-67 by "depositing with the court all or any part of such sum ... to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security”); Threatt v. Forsyth Cnty., 250 Ga. App. 838, 552 S.E.2d 123 (2001) (“Threatt I"); Threatt, 585 S.E.2d at 163; see also United States v. Midwest Constr. Co., 619 F.2d 349, 353-354 (5th Cir.1980) (construing similar FRCP 67 to require, that in order to stop accrual of interest defendant must make money available to plaintiff without imposing conditions on its acceptance).


Context: Gallo is correct that this court is the appropriate forum in which to request attorney fees incurred in proceedings before this court.

"[W]hen attorney fees and expenses are authorized in connection with an appeal, the amount of the award for such fees and expenses shall be determined by this court."

See Phillips, 924 F.2d at 1581 (“We conclude that a request for attorney fees under the Back Pay Act for services rendered in judicial proceedings must, as in the case of an EAJA request, be directed to this court.”); see also Gavette, 808 F.2d at 1468 (“[W]hen attorney fees and expenses are authorized in connection with an appeal, the amount of the award for such fees and expenses shall be determined by this court.”).

"We conclude that a request for attorney fees under the Back Pay Act for services rendered in judicial proceedings must, as in the case of an EAJA request, be directed to this court."


Context: Fines, participation in alternative programs, and terms of probation constitute "punishment[s], penalties], or restraint[s] on the alien's liberty" under the plain language of SS 1101 (a)(48)(ii).

restitution payments are "plainly a punishment or penalty" where failure to make them could ripen into a guilty plea and lead to further punishment

See Matter of Cabrera, 24 I. & N. Dec. 459, 460-62 (BIA 2008) (finding that costs and surcharges in the criminal sentencing context constitute penalties for purposes of establishing a conviction under § 1101(a)(48)(A)); In re Salazar-Regino, 23 I. & N. Dec. 223, 228, 234 (BIA 2002) (examining legislative history, noting that Congress indicated “that a conviction occurs upon a finding or confession of guilt, before the term of probation begins, regardless of whether the state requires further proceedings to determine the alien’s guilt or innocence if probation is violated” and that “a subsequent dismissal of charges based solely on rehabilitative goals does not vitiate the original admission of guilt”); see also De Vega v. Gonzales, 503 F.3d 45, 49 (1st Cir. 2007) (restitution payments are “plainly a punishment or penalty” where failure to make them could ripen into a guilty plea and lead to further punishment); Uritsky v. Gonzales, 399 F.3d 728, 734-35 (6th Cir. 2005) (participation in state youthful offender trainee program constitutes a penalty for purposes of immigration conviction); Gill v. Ashcroft, 335 F.3d 574, 576 (7th Cir. 2003) (term of probation is a penalty).

finding that costs and surcharges in the criminal sentencing context constitute penalties for purposes of establishing a conviction under SS 1101(a)(48)(A


participation in state youthful offender trainee program constitutes a penalty for purposes of immigration conviction


examining legislative history, noting that Congress indicated "that a conviction occurs upon a finding or confession of guilt, before the term of probation begins, regardless of whether the state requires further proceedings to determine the alien's guilt or innocence if probation is violated" and that "a subsequent dismissal of charges based solely on rehabilitative goals does not vitiate the original admission of guilt"


Context: In the present situation, the question for decision is whether under c. 210, SS 8, as it read prior to the 1958 amendment, the two Flemings adopted in California, can be included within the term "issue" as used by the testator in his will, interpreted and construed in accordance with Massachusetts law.

"The question is not one of the legal effect of the adoption under the laws of the State of . . . [California], but of the meaning of . . . [the testatrix's] will under the laws of this Commonwealth."

See Hutchins v. Browne, 253 Mass. 55, 58-59; Bundy v. United States Trust Co. 257 Mass. 72, 80 (“The question is not one of the legal effect of the adoption under the laws of the State of . . . [California], but of the meaning of . . . [the testatrix’s] will under the laws of this Commonwealth.”).

See also Estate of Stanford, 49 Cal. 2d 120, 142 (indicating that the California court would apply Massachusetts law in this case), and In re Cheney’s Estate, 109 N. Y. S. 2d 704 (Spec. Term), where a New York court applied Massachusetts law to a child adopted in Georgia.


Context: Assuming that this was the court's theory, any error in the court's remarks was harmless, because the theory was not communicated to the jury. Certainly we agree that it would be error to instruct the jury that notice to one conspirator that his conduct is illegal -- or notice to the conspiracy generally -- is, in itself, notice to all members of the conspiracy sufficient to overcome everyone's Cheek defense.

where statute required proof of defendant's specific knowledge that drug was illegally imported, it was plain error to instruct jury that knowledge of any alleged co-conspirator was imputed to all members of conspiracy, thus permitting jury to impute one conspirator's knowledge regarding illegal importation to his co-conspirators, without proof that other conspirators actually knew drug was imported illegally

See Jefferson v. United States, 340 F.2d 193, 197-98 (9th Cir.1965) (where statute required proof of defendant’s specific knowledge that drug was illegally imported, it was plain error to instruct jury that knowledge of any alleged co-conspirator was imputed to all members of conspiracy, thus permitting jury to impute one conspirator’s knowledge regarding illegal importation to his co-conspirators, without proof that other conspirators actually knew drug was imported illegally); see also Cheek, 498 U.S. at 202, 111 S.Ct. at 610 (“if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge requirement of the wilfulness requirement”) (emphasis ours).

"if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge requirement of the wilfulness requirement"


Context: . We also note that although HSAA is not identical to CERCLA, it mirrors CERCLA in many respects. It therefore seems inconsistent to consider the Insurers' federal preemption claims, while at the same time abstaining from the related state law preemption claims.

But see Fields v. Rockdale County, 785 F.2d 1558 (11th Cir.1986) (finding that Pullman abstention is proper if the state constitution provides greater protections than exist under the federal Constitution, even if the state and federal provisions at issue are mirror images of each other).

Cf. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (holding that Pullman abstention should not be invoked to avoid interpreting state law constitutional questions when the provision of the state constitution at issue mirrors a provision of the federal constitution).