Context: McSperitt's claims against Hartford for breach of the duty of good faith and fair dealing and for alleged violations of the Texas DTPA are likewise preempt ed. The Fifth Circuit has concluded that ERISA preempts claims brought under the Texas DTPA for failure to pay or misrepresenting benefits under an ERISA plan because such claims "relate to" the plan.

holding that ERISA preempts the Texas DTPA because plaintiff "reli[ed] on state law to advance his complaint that his benefits under the plan were terminated"

Hogan, 969 F.2d at 144; Boren v. N.L. Industries, Inc., 889 F.2d 1463, 1465-66 (5th Cir.1989) (holding that ERISA preempts the Texas DTPA because plaintiff “reli[ed] on state law to advance his complaint that his benefits under the plan were terminated”), cert. denied, 497 U.S. 1029, 110 S.Ct. 3283, 111 L.Ed.2d 792 (1990); see also Ramirez, 890 F.2d at 762-64 (finding that the plaintiffs efforts to collect his medical benefits based on a provision of the Texas Insurance Code, which incorporates the Texas DTPA, were related to his employer’s plan and thus preempted by ERISA). ERISA therefore preempts McSperitt’s claims for breach of the duty of good faith and fair dealing and for alleged violations of the Texas DTPA.

finding that the plaintiffs efforts to collect his medical benefits based on a provision of the Texas Insurance Code, which incorporates the Texas DTPA, were related to his employer's plan and thus preempted by ERISA


Context: In short, the incremental information that the defendant sought to discover was largely irrelevant. Under the circumstances, the lower court was not obliged to convene an evidentiary hearing.

no evidentiary hearing required in criminal ease where defendant failed to "make a sufficient threshold showing that material facts were in doubt or dispute"

See, e.g., United States v. Ibanez, 924 F.2d 427, 430 (2d Cir.1991) (sentencing court need not conduct full-blown evidentiary hearing every time a defendant requests one); United States v. Gerante, 891 F.2d 364, 367 (1st Cir.1989) (decision whether or not to conduct an evidentiary hearing lies within sound discretion of the sentencing court); see also United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.1990) (no evidentiary hearing required in criminal ease where defendant failed to “make a sufficient threshold showing that material facts were in doubt or dispute”); United States v. Pellerito, 878 F.2d 1535, 1545 (1st Cir.1989) (in a criminal case, the movant ordinarily has the obligation “to justify holding an evidentiary hearing”).


in a criminal case, the movant ordinarily has the obligation "to justify holding an evidentiary hearing"


decision whether or not to conduct an evidentiary hearing lies within sound discretion of the sentencing court


Context: In several decisions the Supreme Court has considered whether and to what extent a state or local prosecutor qua prosecutor is immune from liability under 42 U.S.C. SS 1983. As the Court has recognized, the law of immunity in a Bivens claim against a federal official mirrors that in a section 1983 claim against a state official.

deeming it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under SS 1983 and suits brought directly under the Constitution against federal officials"

See, e.g., Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978) (deeming it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials”); see also Briggs v. Goodwin, 569 F.2d 10, 17-18 n. 8 (D.C.Cir.1977) (“[Assuming the rule of Bivens comprehends a damage action for a particular constitutional infringement by a federal officer, the federally-determined immunity applicable in such a case should be no different from the federally-determined immunity available in a § 1983 suit against a state official.”) (emphasis origi nal).

"[Assuming the rule of Bivens comprehends a damage action for a particular constitutional infringement by a federal officer, the federally-determined immunity applicable in such a case should be no different from the federally-determined immunity available in a SS 1983 suit against a state official."


Context: However, Miranda does not require the police to accept as conclusive any statement, no matter how ambiguous, as a sign that the suspect desires to cut off questioning. Rather, a defendant's invocation of the right to remain silent must be clear and unequivocal.

See Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (the right to counsel must be invoked unambiguously; the articulation must be sufficiently clear that a reasonable police officer would understand the statement to be a request for an attorney); Evans v. Demosthenes, 902 F.Supp. 1253 (D.Nev.1995) (Davis ’ “clear articulation” rule applies to the right to remain silent); see also People v. Cooper, 731 P.2d 781 (Colo.App.1986) (silence alone is not enough to invoke the right to cease an interrogation).

Davis ' "clear articulation" rule applies to the right to remain silent


Context: Under the weight of authority, the court may justifiably decline to conduct the necessary line-by-line analysis of the Movants' requests which this court finds to be too extreme and therefore declines at this time to award monetary sanctions in their favor which fall into the first two categories of sanctions identified above.

Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir. 1991) (suggesting that inflated and/or inadequate fee applications place intolerable burdens on the court thereby providing sufficient grounds for denying application); Thelen Oil Co., Inc. v. Fina Oil & Chemical Co., 962 F.2d 821, 824 (8th Cir. 1992) ("it is not inappropriate to deny fees completely when the fee request is outrageously excessive and unsupported by adequate documentation"); Sun Publishing Co. Inc. v. Mecklenburg News, Inc., 823 F.2d 818, 819 (4th Cir. 1987); Farris v. Cox, 508 F. Supp. 222, 227 (6th Cir. 1981); Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980); cf., Cimador v. Secretary of Health and Human Services, 645 F.Supp. 1273, 1275 (W.D.Pa. 1986) (relying on Brown to eliminate certain excessive claims as "plain profiteering").


"it is not inappropriate to deny fees completely when the fee request is outrageously excessive and unsupported by adequate documentation"


Context: Because Thomas's convictions were not already enhanced by a specific habitual offender scheme, use of the general habitual offender statute does not result in double enhancement.

holding that defendant's auto theft conviction could serve to support his conviction for auto theft as a Class C felony and as a prior unrelated felony conviction under the habitual offender statute

See Haymaker v. State, 667 N.E.2d 1113 (Ind.1996) (holding that defendant’s habitual traffic violator conviction could also serve as a predicate felony conviction under the general habitual offender statute); see also Williams v. State, 676 N.E.2d 1074 (Ind.Ct.App.1997) (holding that defendant’s auto theft conviction could serve to support his conviction for auto theft as a Class C felony and as a prior unrelated felony conviction under the habitual offender statute).

holding that defendant's habitual traffic violator conviction could also serve as a predicate felony conviction under the general habitual offender statute


Context: For starters, the sheer length of the delay, when coupled with her prior five-month leave from December 2011 to May 2012, jumps off the page. Courts confronted with similar requests--even ones for half the amount of time that Delgado requested-- have concluded that such requests are not facially reasonable.

See, e.g., Hwang v. Kan. State Univ., 753 F.3d 1159, 1162-63 (10th Cir. 2014) (Gorsuch, J.); see also Luke v. Bd. of Trustees of Fla. A & M Univ., No. 15-13995, 674 Fed.Appx. 847, 850, 2016 WL 7404677, at *3 (11th Cir. Dec. 22, 2016) (holding that request for additional leave, after employee had already received nine months of leave, was unreasonable-accommodation request where employee would remain unable to perform essential function for another six months); Stallings v. Detroit Pub. Schs., 658 Fed.Appx. 221, 226-27 (6th Cir. 2016) (holding that teacher’s request for four months’ leave was not a reasonable accommodation); Epps v. City of Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (concluding that employee failed to show that requested accommodation of six months of leave was reasonable); cf. Larson v. United Nat. Foods W., Inc., 518 Fed.Appx. 589, 591 (9th Cir. 2013) (“[A]n indefinite, but at least six-month long,-leave of absence to permit [the employee] to fulfill the [substance-abuse professional’s] treatment recommendations so that he might eventually be physically qualified under the DOT regulations is not a reasonable accommodation.”); Byrne v. Avon Prods., Inc., 328 F.3d 379, 380-81 (7th Cir. 2003) (suggesting that two months employee spent away from work for treatment for mental difficulties would not qualify as reasonable accommodation because “[i]nability to work for a multi-month period removes a person from the class protected by the ADA”).

"[A]n indefinite, but at least six-month long,-leave of absence to permit [the employee] to fulfill the [substance-abuse professional's] treatment recommendations so that he might eventually be physically qualified under the DOT regulations is not a reasonable accommodation."


suggesting that two months employee spent away from work for treatment for mental difficulties would not qualify as reasonable accommodation because "[i]nability to work for a multi-month period removes a person from the class protected by the ADA"


holding that teacher's request for four months' leave was not a reasonable accommodation


concluding that employee failed to show that requested accommodation of six months of leave was reasonable


Context: Although a complaint "attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of actions elements will not do." In order to survive a motion to dismiss, however, the court "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."

"[0]nly a complaint that states a plausible claim for relief survives a motion to dismiss"

Id. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (“[0]nly a complaint that states a plausible claim for relief survives a motion to dismiss”). When reviewing a motion to dismiss for failure to state a claim upon which relief may be granted, the court “must accept as true all the factual allegations in the complaint, and ... indulge all reasonable inferences in favor of the non-movant.”

"[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."

Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001) (citations omitted); but see Iqbal, 129 S.Ct. at 1949 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).


Context: Linda L. Chezem & Sarah L. Nagy, Judicial Abrogation of a Husband's Paternity: Can a Third Party Seek to Establish Paternity Over a Child Born into a Marriage While that Marriage Remains Intact?, 30 Ind. L.Rev. 467 (1997). Other states interpret the statutory language to grant the putative father standing to challenge paternity.

interpreting "father" in statute listing individuals permitted to commence a paternity-action to include "putative father"

See, e.g., R.A.J. v. L.B.V., 169 Ariz. 92, 817 P.2d 37, 40 (Ct.App.1991) (interpreting "father” in statute listing individuals permitted to commence a paternity-action to include "putative father”); Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924, 926 (1988) (statutory legitimacy presumptions do not preclude a party from litigating paternity); see also Simcox v. Simcox, 131 Ill.2d 491, 137 Ill.Dec. 664, 546 N.E.2d 609, 612 (1989) (although putative father had statutory right to bring paternity action, issue of whether he was barred from such action was not ripe); K.S. v. R.S., 669 N.E.2d 399, 404 (Ind.1996) (statute permits putative father to maintain paternity action); Smith v. Jones, 566 So.2d 408, 413-14 (La.Ct.App.1990) (recognizing dual paternity, where biological father has actual relationship with child or has been prevented from forming relationship by mother, and acts to establish paternity within a reasonable time of child's birth, he may use compulsory blood test in avowal action); Ivy v. Harrington, 644 So.2d 1218, 1223 (Miss.1994) (putative father has standing to challenge paternity to child born during mother’s marriage to another man); M.F. v. N.H., 252 N.J.Super. 420, 599 A.2d 1297, 1299-1301 (App.Div.1991) (putative father had standing to bring paternity action, but action could not proceed unless in the best interests of the child); McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254, 260-62 (1987) (while paternity statute permits putative father standing to contest paternity, action will not go forward unless it is in the best interests of the child); In re T.R.B., 154 Wis.2d 637, 454 N.W.2d 561, 561-62 (Ct.App.1990) (hearing to determine child's best interests necessary before putative father’s action to establish paternity could be heard).


recognizing dual paternity, where biological father has actual relationship with child or has been prevented from forming relationship by mother, and acts to establish paternity within a reasonable time of child's birth, he may use compulsory blood test in avowal action


putative father has standing to challenge paternity to child born during mother's marriage to another man


putative father had standing to bring paternity action, but action could not proceed unless in the best interests of the child


while paternity statute permits putative father standing to contest paternity, action will not go forward unless it is in the best interests of the child


hearing to determine child's best interests necessary before putative father's action to establish paternity could be heard


statutory legitimacy presumptions do not preclude a party from litigating paternity


Context: (Brosnan Aff. UTI2, 4.) It is well-settled that both traffic safety and aesthetics are substantial governmental goals.

interpreting Metromedia as foreclosing Plaintiff's argument that city's articulated goal of traffic safety is mere pretense

See Vincent, 466 U.S. at 807, 104 S.Ct. at 2130 (stating that “the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property [] constitutes a significant substantive evil within the City’s power to prohibit”); Metromedia, 453 U.S. at 507-08, 101 S.Ct. at 2892-93 (finding that both traffic safety and aesthetics are substantial governmental goals); see also Georgia Outdoor Advertising, Inc. v. City of Waynesville, 833 F.2d 43, 46 (4th Cir.1987) (interpreting Metromedia as foreclosing Plaintiff’s argument that city’s articulated goal of traffic safety is mere pretense); Major Media of Southeast, Inc. v. City of Raleigh, 792 F.2d 1269 (4th Cir.1986) (interpreting Metromedia as standing for the proposition that a city may prohibit all off-premise signs and billboards for aesthetics and safety reasons).

stating that "the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property [] constitutes a significant substantive evil within the City's power to prohibit"


interpreting Metromedia as standing for the proposition that a city may prohibit all off-premise signs and billboards for aesthetics and safety reasons


finding that both traffic safety and aesthetics are substantial governmental goals


Context: Although the Harcar court did not specifically address the appealability of the order finding mother in contempt but declining imposition of sanctions, it seems that because mother's contempt was "flagrant," the trial court's finding of contempt without imposition of sanctions was effectively a denial of father's motion for contempt, which left father aggrieved. We might also simply reason that the trial court's order in the instant ease is clearly appealable as to Father inasmuch as it is a denial of relief to Father, similar to a complete denial of a motion for contempt, which is an appealable order.

reiterating that "[w]here a petition alleges refusal to comply with a court order, and the trial court denies the petition, the denial order is appealable"

See Basham v. Basham, 713 A.2d 673, 674 (Pa.Super. 1998) (reiterating that “[w]here a petition alleges refusal to comply with a court order, and the trial court denies the petition, the denial order is appealable”); see also Flannery v. Iberti, 763 A.2d 927, 930 n.1 (Pa.Super. 2000) (noting that “a trial court’s denial of a civil contempt petition is appealable”).

noting that "a trial court's denial of a civil contempt petition is appealable"


Context: That is not so in this case. Consequently, we find no abuse of discretion in permitting the former wife to testify regarding domestic violence.

confirming that a "trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion"

See Heath v. State, 648 So.2d 660, 664 (Fla.1994)(confirming that a “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion”); Castro v. State, 547 So.2d 111, 114 (Fla.1989) (finding that “[ajbsent an abuse of discretion, a trial court’s ruling on the admissibility of evidence will not be disturbed”); see also Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000) (noting that “[a] trial judge is afforded significant discretion in determining whether the prejudicial nature of evidence outweighs any relevance the evidence may have at trial”).

noting that "[a] trial judge is afforded significant discretion in determining whether the prejudicial nature of evidence outweighs any relevance the evidence may have at trial"


finding that "[ajbsent an abuse of discretion, a trial court's ruling on the admissibility of evidence will not be disturbed"


Context: We reject Hawley's argument. Because of the division of powers between the federal government and the states under the dual sovereignty principle of our form of government, a defendant may not, by agreement with state authorities, compel the federal government to impose a sentence that is concurrent with an existing state sentence.

See also United States v. Eastman, 758 F.2d 1315 (9th Cir.1985) (federal court cannot, by attempting to impose a federal sentence to run consecutively to a state sentence which was yet to be imposed, preempt the right of a state court to apply its own sentencing laws).

"under the dual sovereignty principle, Sackinger could not, by agreement with state authorities, compel the federal government to grant a concurrent sentence"

United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983) (“under the dual sovereignty principle, Sackinger could not, by agreement with state authorities, compel the federal government to grant a concurrent sentence”).


Context: It is one of four, now three, basic statutes that have been in our law over most of that period to define the responsibilities of towns for the upkeep of roads and the consequence of failure to meet those responsibilities. The other two existing statutes provide (1) for criminal liability of a town which "liable to keep in repair a highway . . . fails to do so," 19 V.S.A. SS 991; see also 1840 R.S. ch. 21, SS 30, and (2) relief through county road commissioners and the superior court when a highway "is out of repair or unsafe for travel." 19 V.S.A. SS 971; see also 1840 R.L. SS 3101. The fourth statute, now narrowed to apply only to bridges and culverts, allowed individuals to sue towns for damages caused by "insufficiency or want of repair" of a highway the town is obligated to keep in repair. 19 V.S.A. SS 985(a); see also 1840 R.S. ch. 21, SS 26. These statutes all deal with aspects of the same subject and must be viewed in pari materia.

See Robes v. Town of Hartford, 161 Vt. 187, 192, 636 A.2d 342, 346 (1993) (provisions part of the same statutory scheme must be read in pari materia); see also Moody v. Town of Bristol, 71 Vt. 473, 475, 45 A. 1038, 1038 (1899) (statutes create duty on towns “to keep their highways and bridges reasonably safe for travel thereon”).

statutes create duty on towns "to keep their highways and bridges reasonably safe for travel thereon"


Context: Plaintiffs are not entitled to relief on this claim. Participation in a voluntary reha bilitation program which requires inmates to accept responsibility of their crimes does not offend the constitutional privilege against self-incrimination.

inmate's limited interest in refusal to participate in sex offender treatment designed to help offenders accept responsibility outweighed by penological interest in rehabilitation

See Russell v. Eaves, 722 F.Supp. 558, 560 (E.D.Mo.1989) (voluntary sexual offender treatment program requiring inmates to accept responsibility for crimes did not violate Fifth Amendment), appeal dismissed, 902 F.2d 1574 (8th Cir.1990); cf. Sundby v. Fiedler, 827 F.Supp. 580 (W.D.Wis.1993) (inmate’s limited interest in refusal to participate in sex offender treatment designed to help offenders accept responsibility outweighed by penological interest in rehabilitation).


Context: Therefore, we construe the district court's dismissal of Mr. Abernathy's petition as resting on a lack of statutory jurisdiction. And, as such, it was a dismissal without prejudice.

construing a district court's dismissal as being for lack of jurisdiction and thus without prejudice, even though the court was silent regarding whether its dismissal was with or without prejudice

See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.2006) (“Since standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and should be corrected to a dismissal without prejudice.”); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973) (“It is fundamental, of course, that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore dismissal of [plaintiffs] claim must be without prejudice.”); cf. Costello v. United States, 365 U.S. 265, 284-85, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) (construing a district court’s dismissal as being for lack of jurisdiction and thus without prejudice, even though the court was silent regarding whether its dismissal was with or without prejudice).

"Since standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and should be corrected to a dismissal without prejudice."


"It is fundamental, of course, that a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore dismissal of [plaintiffs] claim must be without prejudice."


Context: "Of course the mere fact that an agency interpretation contradicts a prior agency position is not fatal." Fed. Commc'ns Comm. v. Fox TV.

"Reasoned decision making, therefore, necessarily requires the agency to acknowledge and provide an adequate explanation for its departure from established precedent." (citing Fox TV., 129 S.Ct. at 1811

Safety Bd., 588 F.3d 1085, 1089 (D.C.Cir.2009) (“Reasoned decision making, therefore, necessarily requires the agency to acknowledge and provide an adequate explanation for its departure from established precedent.” (citing Fox TV., 129 S.Ct. at 1811)). Here, the Secretary has offered no explanation, much less a reasoned one, for her departure from her earlier interpretation of the phrase “entitled to benefits under [Medicare] part A.” Accordingly, even at Chevron step two, the Court would still vacate the Secretary’s final decision and remand for further proceedings.

"[B]ecause the Board departed from its precedent without reasoned explanation, we grant the petition for review, vacate the order, and remand for further proceedings."

See Dillmon, 588 F.3d at 1095 (“[B]ecause the Board departed from its precedent without reasoned explanation, we grant the petition for review, vacate the order, and remand for further proceedings.”).


Context: Accordingly, a plaintiff in a partisan gerrymandering case-cannot satisfy the discriminatory intent requirement simply:by proving, that- the redistricting body intended to rely on political data or to take into account partisan considerations. Rather, the plaintiff must show that the redistricting body intended to. apply partisan classifications "in an invidious manner or in a way unrelated to any legitimate legislative objective."

holding redistricting plan would violate Equal Protection Clause if it reflected "a naked desire to increase partisan strength"

Vieth, 541 U.S. at 307, 124 S.Ct. 1769 (Kennedy, J., concurring in the judgment); id. at 339, 124 S.Ct. 1769 (Stevens, J., dissenting) (holding redistricting plan would violate Equal Protection Clause if it reflected “a naked desire to increase partisan strength”); see also Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (defining an “invidious” classification as “a classification of persons undertaken for its own sake .,. inexplicable by anything but animus towards the class it affects”). To that end, a plaintiff satisfies.the discrimi natory purpose or intent requirement by introducing evidence establishing that the state redistricting body acted with an intent, to “subordinate adherents of one political party'and entrench a rival party in power.” Ariz. State Leg., 135 S.Ct. at 2658.

defining an "invidious" classification as "a classification of persons undertaken for its own sake .,. inexplicable by anything but animus towards the class it affects"


Context: Many courts have addressed the issue of whether the parties' prior course of dealing and/or trade usage is sufficient to show that the parties intended to incorporate limitation of liability, warranty, or arbitration clauses in their agreements. The courts have granted motions for summary judgment when the evidence established a prior course of dealing between the parties.

See, e.g., Valhal Corp., 44 F.3d at 201 (prior course of dealing, consisting of negotiations, several written proposals which included limitation of liability clause, and revisions which did not eliminate the limitation, established consent to limitation of liability provision even though final version of contract was not signed, but approval given in separate letter); Westinghouse Elec. Co. v. Murphy, Inc., 228 A.2d at 659 (prior course of dealing established where parties contracted to provide maintenance service on over 80 occasions in six years using purchase orders which incorporated terms and conditions through reference to an attached appendix); Gov’t of United Kingdom of Great Britain & N. Ireland v. Northstar Serv., Ltd., 1 F.Supp.2d 521, 524 (D.Md.1998) (prior course of dealing, consisting of at least 100 transactions between the parties where terms and conditions appeared on every invoice without any affirmative exclusionary provision, established that the invoice terms and conditions were part of contract); Well Luck, 421 F.Supp.2d at 540-41 (evidence that parties conducted over 150 transactions involving invoice containing copy of terms and conditions of service, including limitation of liability provision, was legally sufficient to establish a course of dealing between parties limiting defendant’s liability to $50); Capitol Converting Equip., 965 F.2d at 395-96 (parties’ prior course of dealing on hundreds of occasions, involving receipt and payment of invoices which all included limitation of liability provisions, supplemented their oral contract which was silent as to limitation of liability); but cf. Argo Welded Prod., 528 F.Supp. at 592 (declining to find that limitation of liability was incorporated into parties’ agreement based solely on prior course of dealing on at least five prior occasions during which standard printed delivery receipts containing limitation of liability clause were issued to purchaser and signed by its agent, who admitted that he was familiar with the form, but finding a binding agreement based on signature of agent); Kunststoffwerk Alfred Huber v. R.J. Dick, Inc., 621 F.2d 560, 564-65 (3d Cir.1980) (recognizing that course of dealing may establish limitation of damages as part of parties’ bargain in fact, but finding record was devoid of any evidence to establish a prior course of dealing between parties).

declining to find that limitation of liability was incorporated into parties' agreement based solely on prior course of dealing on at least five prior occasions during which standard printed delivery receipts containing limitation of liability clause were issued to purchaser and signed by its agent, who admitted that he was familiar with the form, but finding a binding agreement based on signature of agent


recognizing that course of dealing may establish limitation of damages as part of parties' bargain in fact, but finding record was devoid of any evidence to establish a prior course of dealing between parties


prior course of dealing established where parties contracted to provide maintenance service on over 80 occasions in six years using purchase orders which incorporated terms and conditions through reference to an attached appendix


prior course of dealing, consisting of at least 100 transactions between the parties where terms and conditions appeared on every invoice without any affirmative exclusionary provision, established that the invoice terms and conditions were part of contract


evidence that parties conducted over 150 transactions involving invoice containing copy of terms and conditions of service, including limitation of liability provision, was legally sufficient to establish a course of dealing between parties limiting defendant's liability to $50


parties' prior course of dealing on hundreds of occasions, involving receipt and payment of invoices which all included limitation of liability provisions, supplemented their oral contract which was silent as to limitation of liability


Context: Moreover, plaintiffs allegation that she was "[forced] ... to republish the false information to explain her circumstances" is also insufficient.

where plaintiff demanded that charges be made public, "it was his own hand that was on the dagger"

See Derstein v. Kansas, 915 F.2d 1410, 1414 (10th Cir.1990) (no liberty interest impinged when plaintiff himself reveals reasons for discharge in response to questions by prospective employers), cert. denied, 499 U.S. 937, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991); see also Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir.1984) (where plaintiff demanded that charges be made public, “it was his own hand that was on the dagger”).


Context: NRS 616C. 150(1). An in jury occurs within the course of employment when there is a causal connection between the injury and the nature of the work or the workplace.

Wood, 121 Nev. at 733, 121 P.3d at 1032; Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 604, 939 P.2d 1043, 1046 (1997) (recognizing that an injury arises out of the employment relationship if it can be traced to the nature of employment or the workplace environment); see also MGM Mirage v. Cotton, 121 Nev. 396, 400-01, 116 P.3d 56, 58-59 (2005) (concluding that an injury that occurs when an employee is on the employer’s premises and is coming or going to work is considered to have occurred in the course of employment). If the nature of the work or the workplace contributes to or increases the risk of injury more than that of the general public, the injury is covered by the NIIA.

concluding that an injury that occurs when an employee is on the employer's premises and is coming or going to work is considered to have occurred in the course of employment


adopting the increased-risk test for determining whether a claimant's injury arose out of employment

Wood, 121 Nev. at 736, 121 P.3d at 1034; see also Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 240 P.3d 2 (2010) (adopting the increased-risk test for determining whether a claimant’s injury arose out of employment).


Context: This court has held repeatedly, "the proper avenue for pursuing such claims is through a collateral proceeding in which the factual basis for the claim may be developed." Id. at 598. There is, however, a narrow exception to the rule that defendants cannot attack the efficacy of their counsel on direct appeal. Where the record is sufficient to allow determination of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not needed.

no direct review "[u]nless the record sufficiently establishes a basis for our review"

Government of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir.1984) (defendant’s counsel was ineffective because of a conflict of interest); see also Theodoropoulos, 866 F.2d at 598 (no direct review “[u]nless the record sufficiently establishes a basis for our review”).

defendant's counsel was ineffective because of a conflict of interest


Context: However, when police find a rented window-tinted van parked by itself in the middle of the night with its engine running in a "hot area for drug trafficking," it is not unreasonable for police to suspect that a crime, particularly a drug crime, might be afoot. Tr. at 52 ("It looked like they were just waiting for people to purchase [drugs]."). And it is well recognized that firearms are "regularly found on narcotics traffickers."

it is well known that "narcotics dealers frequently carry weapons"

United States v. Reyes, 353 F.3d 148, 154 (2d Cir.2003) (firearms are common “tools of the trade” for drug traffickers); see United States v. Salazar, 945 F.2d 47, 51 (2d Cir.1991) (it is well known that “narcotics dealers frequently carry weapons”).

firearms are common "tools of the trade" for drug traffickers


Context: The reliability-based test of Roberts for determining whether the Sixth Amendment requires confrontation thus was the principal foundation of our decision in Howard. That foundation was removed when the Supreme Court overruled Roberts in Crawford. In light of that overruling, Howard's constitutional holding no longer can be considered binding precedent.

"When intervening constitutional rulings necessitate a change in prior law, a division of this court is empowered to recognize that earlier decisions no longer have force."

See Kleinbart v. United States, 604 A.2d 861, 870 (D.C.1992) (“When intervening constitutional rulings necessitate a change in prior law, a division of this court is empowered to recognize that earlier decisions no longer have force.”); see also Allison v. United States, 623 A.2d 590, 592 (D.C.1993) (“To the extent that its [constitutional law] decisions may be inconsistent with ours, we must defer to the Supreme Court .... ”).

"To the extent that its [constitutional law] decisions may be inconsistent with ours, we must defer to the Supreme Court .... "


Context: It is incumbent on the court to determine whether it has subject matter jurisdiction over this action before it can address plaintiffs' motion to confirm the attachment.

federal court "must satisfy itself that it has subject-matter jurisdiction over the dispute before it addresses the merits of the claims"

See Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir.1983) (federal court “must satisfy itself that it has subject-matter jurisdiction over the dispute before it addresses the merits of the claims”), cert. denied, 465 U.S. 1025, 104 S.Ct. 1281, 79 L.Ed.2d 684 (1984); Rice v. Rice Found., 610 F.2d 471, 474 (7th Cir.1979) (“The initial inquiry in any suit filed in federal court must be whether the federal court possesses subject matter jurisdiction.”); Blessing v. United States, 447 F.Supp. 1160, 1167 (E.D.Pa.1978) (“jurisdictional issues must be re solved before other questions may properly be considered”); cf. Visual Sciences, Inc. v. Integrated Communications Inc., 660 F.2d 56, 59 (2d Cir.1981) (“A court must have in personam jurisdiction over a party before it can validly enter even an interlocutory injunction against him.”).

"A court must have in personam jurisdiction over a party before it can validly enter even an interlocutory injunction against him."


"The initial inquiry in any suit filed in federal court must be whether the federal court possesses subject matter jurisdiction."


"jurisdictional issues must be re solved before other questions may properly be considered"


Context: However, I would hold the court erred when it dismissed the complaint with prejudice.

Sealy v. Dodge, 289 S.C. 543, 544, 347 S.E.2d 504, 505 (1986) (“[Dismissal ... does not bar a subsequent action brought before expiration of the statute of limitations if the dismissal is based merely on the insufficiency of the complaint.”); cf. Owens v. Atlantic Coast Lumber Corp., 108 S.C. 258, 94 S.E. 15 (1917) (dismissal is proper and will bar another action if the complaint affirmatively shows that the plaintiff is not entitled to relief).

"[Dismissal ... does not bar a subsequent action brought before expiration of the statute of limitations if the dismissal is based merely on the insufficiency of the complaint."


Context: Domegan obtained a final judgment for damages on a significant constitutional claim.

stating: Carey "makes clear that nominal damages ... are the appropriate means of 'vindicating' rights whose deprivation has not caused actual, provable injury."

See id. & infra note 32; see also Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 2544 n. 11, 91 L.Ed.2d 249 (1986) (stating: Carey “makes clear that nominal damages ... are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.”).

as procedural due process is an "absolute" right, its denial is actionable without proof of actual injury, because of "the importance to organized society that procedural due process be observed"

See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978) (as procedural due process is an “absolute” right, its denial is actionable without proof of actual injury, because of “the importance to organized society that procedural due process be observed”). Although the monetary damage award is minuscule in amount, in the eyes of the law its remedial significance is substantial, as society recognizes the intrinsic deterrent effect in judgments against public officials who violate procedural due process rights guaranteed under the Constitution.


Context: In the instances in which we have created a new common law cause of action, the facts have been more clear-cut and the issues better defined by other jurisdictions than in the case before us.

See Rupert, 90 Nev. 397, 528 P.2d 1013 (creating a cause of action in tort for personal injury from a motor vehicle accident for one spouse against another by abrogating the doctrine of spousal immunity); see also Eaton, 101 Nev. 705, 710 P.2d 1370 (creating a cause of action for emotional distress caused by apprehending the death or serious injury of a loved one due to another’s negligence); cf. Greco v. United States, 111 Nev. 405, 409, 893 P.2d 345, 347 (1995) (declining to recognize a wrongful life cause of action because of the difficulty of the issues).

creating a cause of action for emotional distress caused by apprehending the death or serious injury of a loved one due to another's negligence


declining to recognize a wrongful life cause of action because of the difficulty of the issues


Context: Neither this court nor the Supreme Court have extended the open fields doctrine to anything beyond observation searches.

See generally Donovan v. Dewey, 452 U.S. 594, 602-03, 101 S.Ct. 2534, 2539-40, 69 L.Ed.2d 262 (1981) (Fourth Amendment applies to searches of mines); see also Allinder v. State of Ohio, 808 F.2d 1180, 1186 (6th Cir.) (open fields doctrine limited to visual inspection and Fourth Amendment applies to search of apiaries in a field), appeal dismissed, 481 U.S. 1065, 107 S.Ct. 2455, 95 L.Ed.2d 865 (1987); but see Care v. United States, 231 F.2d 22, 24-25 (10th Cir.) (open fields doctrine precludes Fourth Amendment application to search of a closed, artificial cave in a field), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956).


Context: . We note that other circuits have construed the ERISA enforcement statute narrowly, proscribing those parties entitled to bring ERISA claims.

See, e.g., Gulf Life Ins. v. Arnold, 809 F.2d 1520 (11th Cir.1987) (fiduciary of plan had no standing to sue for a declaration of its rights under the plan); Grand Union Co. v. Food Employers Labor Relations Ass'n, 808 F.2d 66 (D.C.Cir.1987) (employer had no standing to sue under ERISA); Hermann Hosp., 845 F.2d 1286 (5th Cir.1988) (health care provider had no standing to sue under ERISA); but see Fentron Indus., 674 F.2d 1300 (9th Cir.1982) (employer did have standing to sue under ERISA to protect employer-employee relations).


health care provider had no standing to sue under ERISA


Context: Deer Creek urges this court not to follow Oklahoma but instead to apply California's approach on this issue. Under California law, if an underlying action is dismissed against a nonconsenting defendant because it was a necessary condition of settlement with the other defendants in the underlying litigation, the dismissal with prejudice does not reflect on the substantive merits of the case and is therefore not a favorable termination for malicious prosecution purposes.

See Haight, 244 Cal.Rptr. at 490 (holding that a dismissal of a defendant who did not agree to settlement is not a favorable termination if dismissal of that defendant was a condition of settlement). The California courts have reasoned that the dismissal of an objecting defendant from a case does not reflect on the underlying merits of the claim against that defendant if the dismissal was a condition of settlement with the other defendants in the underlying litigation.

finding that "even where a defendant does not agree to a settlement made on his behalf, his or her dismissal from the lawsuit pursuant to that settlement will not be viewed as a favorable termination as long as it was a necessary condition to settlement"

See id.; see also Villa, 6 Cal.Rptr.2d at 649 (finding that “even where a defendant does not agree to a settlement made on his behalf, his or her dismissal from the lawsuit pursuant to that settlement will not be viewed as a favorable termination as long as it was a necessary condition to settlement”). “Such a dismissal is not considered unilateral because it was required by the terms of a settlement agreement, and it will act as a bar to a later malicious prosecution action by the nonsettling defendant.”


Context: The court denied the new trial, finding that it had properly excluded the evidence because whatever relevance and probative value it had was substantially outweighed by its potential for unfair prejudice, relying on rule 403 of the Utah Rules of Evidence. While a correct legal standard, it is not clear from an examination of the record that this was the actual reason that the evidence was excluded during the trial. But even if the trial court's analysis in ruling on the motion for a new trial was flawed, we can sustain its result on alternative grounds.

stating court's duty to sustain trial court's order on any proper grounds

See State v. Pearson, 943 P.2d 1347, 1353 (Utah 1997) (“[T]his court will ‘sustain a trial court’s evidentiary ruling on any available ground, even though it may be one not advanced below.’ ”) (quoting State v. Rimmasch, 775 P.2d 388, 400 (Utah 1989)); see also In re Estate of Shepley, 645 P.2d 605, 607 (Utah 1982) (stating court’s duty to sustain trial court’s order on any proper grounds).

"[T]his court will 'sustain a trial court's evidentiary ruling on any available ground, even though it may be one not advanced below.' "


Context: Accordingly, the Court concludes that while Epstein can properly assist the trier of fact by pointing out marked differences and unusual similarities between Mrs. Ramsey's writing and the Ransom Note, he has not demonstrated a methodology whereby he can draw a conclusion, to an absolute certainty, that a given writer wrote the Note. Such a holding is consistent with numerous other districts that have allowed a qualified handwriting expert to testify as to the "similarities" between a challenged document and a known exemplar, but have not allowed the expert to express his ultimate "opinion" on the matter.

finding that proponent of forensic document expert had failed to establish testimony's reliability

But see United States v. Lewis, 220 F.Supp.2d 548, 552 (S.D.W.Va. 2002) (finding that proponent of forensic document expert had failed to establish testimony’s reliability); United States v. Saelee, 162 F.Supp.2d 1097, 1106 (D.Alaska 2001) (excluding handwriting expert testimony in its entirety as inherently unreliable).

allowing an expert to testify about "the specific similarities and idiosyncrasies between the known writings and the questioned writings, as well as testimony regarding, for example, how frequently or infrequently in his experience, he has seen a particular idiosyncrasy."

See, e.g., United States v. Van Wyk, 83 F.Supp.2d 515, 524 (D.N.J.2000) (allowing an expert to testify about “the specific similarities and idiosyncrasies between the known writings and the questioned writings, as well as testimony regarding, for example, how frequently or infrequently in his experience, he has seen a particular idiosyncrasy.”); United States v. Rutherford, 104 F.Supp.2d 1190, 1194 (D.Neb.2000) (limiting a forensic document examiner’s testimony to “identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents.”); United States v. Hines, 55 F.Supp.2d 62, 68 (D.Mass.1999) (permitting forensic examiner to testify about unique features common or absent in the writings).


excluding handwriting expert testimony in its entirety as inherently unreliable


limiting a forensic document examiner's testimony to "identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents."


permitting forensic examiner to testify about unique features common or absent in the writings


Context: Because the question is one of adequacy of attorney representation, potential remediation might involve examination of the administration of substantial number of individual cases. Thus, we conclude that the declaratory relief sought by Plaintiffs so intrudes in the administration of the Sacramento County Dependency Court as to require abstention under O'Shea.

See Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (noting that claims for declaratory relief can be just as intrusive as claims for injunctive relief); Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir.2004) (en banc) (same); see also O’Shea, 414 U.S. at 500, 94 S.Ct. 669; Parker, 626 F.2d at 7 (“When the state agency in question is a state court ... the equitable restraint considerations appear to be nearly absolute.”).

"When the state agency in question is a state court ... the equitable restraint considerations appear to be nearly absolute."


Context: The Whistleblower Act expressly states that a report is properly made to "an appropriate law enforcement authority if the authority is a part of a state or local government entity .., that the employee in good faith believes is authorized to ... investigate or prosecute a violation of criminal law." Thus, in determining whether a report was properly made to an appropriate law enforcement authority, it is the entity's authority to investigate allegations of criminal wrongdoing that must be the focus of the court's inquiry, and the individual to whom a report is made must be a "part of' that entity.

individual to whom -report is made must be "part of' the relevant governmental entity that has authority to conduct the investigation

See, e.g., Robertson County v. Wymola, 17 S.W.3d 334, 340-41 (Tex.App.-Austin 2000, pet. denied) (the term “authority” as used in the Act refers to the governmental entity receiving the report, rather than to the individual within the entity); see also Hunt County Cmty. Supervision & Corr. Dep’t v. Gaston, 451 S.W.3d 410, 421 (Tex.App.-Austin 2014, pet. denied) (individual to whom -report is made must be “part of’ the relevant governmental entity that has authority to conduct the investigation).

the term "authority" as used in the Act refers to the governmental entity receiving the report, rather than to the individual within the entity


Context: Although the charge conference between court and counsel was not transcribed, the record contains, in addition to Ramsey's requested instructions, a memorandum which sets forth Ramsey's position with respect to its requested instructions. Thus, although Ramsey's formal objections to the court's refusal to give its requested instructions are not accompanied by a distinct statement of its grounds, Ramsey, by making its position known to the court prior to stating its formal objections, adequately preserved these issues for review.

Rule 51 "is not without exceptions, however, and the failure to object may be disregarded if the party's position has previously been made clear to the court and it is plain that a further objection would have been unavailing."

Cf. Lang, 624 F.2d at 1279 (Rule 51 “is not without exceptions, however, and the failure to object may be disregarded if the party’s position has previously been made clear to the court and it is plain that a further objection would have been unavailing.”).

See, e.g., Little v. Green, 428 F.2d 1061, 1069 (5th Cir.) (approving procedure whereby counsel provides court with reasons for its objections prior to the time, prescribed by Rule 51, for formal objections, followed by simple objections, without reasons, at the Rule 51 time), cert. denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970).


Context: Since the CO's initial code designation and OHA's decision rejecting that designation -- a decision that Areata argues violates the SBA's regulations governing OHA's standard of review for NAICS code appeals and the selection of NAICS codes -- are both "in connection with" a proposed ongoing procurement, 28 U.S.C. SS 1491(b)(1) authorizes the court to adjudicate the claims alleged in the December 7, 2012 Complaint. See RAMCOR Servs.

"As long as a statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction."

Grp., 185 F.3d at 1289 (“As long as a statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction.”); see also InGenesis, Inc. v. United States, 104 Fed.Cl. 43, 48 (2012) (determining that the United States Court of Federal Claims had jurisdiction, because the contracting officer’s NAICS code designation and the OHA’s decision reviewing that NAICS code designation were “in connection with” a proposed procurement) (citing 28 U.S.C. § 1491(b)(1); Ceres Envtl. Servs., Inc. v. United States, 52 Fed.Cl. 23, 33 (2002)).

determining that the United States Court of Federal Claims had jurisdiction, because the contracting officer's NAICS code designation and the OHA's decision reviewing that NAICS code designation were "in connection with" a proposed procurement


Context: Thus, in this Circuit, Quarles applies only to an exigency involving a stray or suspected weapon.

describing 2007 Williams case as "set[ting] forth the standard the government must satisfy in order ... [to use] the Quarles public safety exception."

See Liddell, 517 F.3d at 1013 (noting strict rule in Sixth Circuit); United States v. Williams, 272 Fed.Appx. 473, 477 (6th Cir.2008) (describing 2007 Williams case as “set[ting] forth the standard the government must satisfy in order ... [to use] the Quarles public safety exception.”); see also United States v. Martinez, 406 F.3d 1160, 1165 (9th Cir.2005) (“In order for the public safety exception to apply, there must have been ‘an objectively reasonable need to protect the police or the public from an immediate danger associated with [a] weapon.’ ”) (citation omitted); United States v. Blackmon, No. 96-6701, 1998 WL 109992, at *2-3 (6th Cir. Mar. 3, 1998) (unpublished) (jail ease discussing Quarles as applying to “the location of a gun”).

"In order for the public safety exception to apply, there must have been 'an objectively reasonable need to protect the police or the public from an immediate danger associated with [a] weapon.' "


Context: He also refused to inquire whether other jurors had knowledge of the incident and about the possible impact on them. We therefore agree with Leaper that while he has tibe burden of showing prejudice, and eventually abuse of judicial discretion in the denial of his mistrial motion, he is slowed in meeting his burden by the trial court's refusal. And in the absence of a judicial admonition and instruction to any of the jurors, they may mistakenly believe that consideration of Roderick's tape taking was appropriate.

State v. Dixon, 289 Kan. at 55 (appellate review of denial of mistrial should consider whether limiting instruction was given); cf. Angelo, 287 Kan. 262 (mistrial declared only when an event of prejudicial misconduct and damaging effect cannot be removed by admonition and instruction).


Context: . We note that three slate supreme courts have concluded that the use of a tracking device is impermissible under their respective state constitutions.

See People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009); State v. Jackson, 150 Wash.2d 251, 76 P.3d 217 (2003) (holding, under a state constitutional provision more protective than the Fourth Amendment, that police may not use a mobile tracking device without a warrant); State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988) (holding that using a track ing device without a warrant or obviating exigency violates the state constitution).

But see Osburn v. State, 118 Nev. 323, 44 P.3d 523 (2002) (following Mclver and holding that the police use of a mobile tracking device does not infringe a reasonable expectation of privacy). In Weaver, for example, the New York Court of Appeals expressed fear that to permit the police to use tracking devices "would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy.” 882 N.Y.S.2d 357, 909 N.E.2d at 1202. "But the fact is that the 'reality hardly suggests abuse.’ " Knotts, 460 U.S. at 284-85, 103 S.Ct. 1081 (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 566, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)).


holding that using a track ing device without a warrant or obviating exigency violates the state constitution


Context: This case involves only the constitutional components of the standing requirement. Congress may eclipse prudential standing limitations by "granting] an express right of action to persons who would otherwise be barred by prudential standing rules."

"EPCA clearly removes the judicial authority to create prudential barriers"

See CAS I, 793 F.2d at 1336 (“EPCA clearly removes the judicial authority to create prudential barriers”); see also id. at 1336-37 (listing numerous cases construing similar provisions to eclipse the prudential standing barrier); National Wildlife Federation v. Hodel, 839 F.2d 694, 704 n. 7 (D.C.Cir.1988) (also construing statutory provision authorizing suits by “adversely affected” persons to obviate prudential standing limitations).

also construing statutory provision authorizing suits by "adversely affected" persons to obviate prudential standing limitations


Context: The Davids' warranty deed includes a gulf-to-sound pedestrian easement that makes no mention of the dock on Parcel A. And while the Davids' warranty deed states that the property was "[subject to current taxes, easements and restrictions of record," it is undisputed that the Declaration and the purported dock easement in that Declaration were not yet "of record" when the deed was delivered to the Davids. The Davids took title to Parcel A at the earliest fifty days before Ip- polite recorded the Declaration or at the latest forty minutes before Ippolite recorded the Declaration.

"[A] deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice,"

See Sweat v. Yates, 468 So.2d 306, 307 (Fla. 1st DCA 1984) (“[A] deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice,”); see also Sargent v. Baxter, 673 So.2d 979, 980 (Fla. 4th DCA 1996) (“A grantor’s recording of a deed ... is generally presumed equivalent to delivery”). Thus, even if the Declaration clearly creates an easement for access to the dock on Parcel A, it was not a recorded document at the time that the Davids took the property.

"A grantor's recording of a deed ... is generally presumed equivalent to delivery"


Context: We hold that La.Rev.Stat.Ann. 13:3886, as interpreted by the district court, cannot be squared with Mennonite's allocation of notice burdens. Appellee argues, however, that a recent line of authority establishes the correctness of the district court's holding.

Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982) (holding constitutional a statute providing that a mineral interest would lapse to the surface owner if the interest owner either made no use of the interest, or failed to file a claim with the State, within a twenty year period); see United States v. Locke, 471 U.S. 84, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (holding constitutional a federal recording system requiring owners of certain mineral interests on federal lands to file annual claims of their interest, in the absence of which the interest would escheat to the federal government); see also Pope, 108 S.Ct. 1340.


Context: Our conclusion is not changed by the fact that, in structuring its proposal, Cen-tech apparently relied upon the later-retracted Policy Memorandum. The Air Force Material Command could not, through the Policy Memorandum, alter the requirements of the LOS clause, which was mandated by statute and regulation.

noting that "not all agency publications are of binding force" and that "an agency's power is no greater than that delegated to it by Congress"

See United States v. Amdahl Carp., 786 F.2d 387, 392-93 (Fed.Cir.1986) (“Administrative actions taken in violation of statutory authorization or requirement are of no effect.”); cf. Lyng v. Payne, 476 U.S. 926, 937, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) (noting that “not all agency publications are of binding force” and that “an agency’s power is no greater than that delegated to it by Congress”). In short, the Policy Memorandum could not override the LOS clause.

"Administrative actions taken in violation of statutory authorization or requirement are of no effect."


Context: There are no cases that are directly on point with this case; i.e., addressing whether the defendanl/claimant substantially prevails in instances where the case is dismissed with prejudice. However, the Supreme Court has considered several fee-shifting statutes that award attorneys' fees under the "prevailing party" standard and has consistently held that such statutes prohibit an award of fees to the plaintiff unless the court awards relief on the merit s, either through a judgment on the merits or through a settlement agreement enforced through a consent decree.

See Buckhannon ..., 532 U.S. 598, 121 S.Ct. 1835 ... (addressing a request for attorneys' fees under the Fair Housing Amendments Act and the Americans with Disabilities Act); see also Kentucky v. Graham, 473 U.S. 159 [105 S.Ct. 3099, 87 L.Ed.2d 114] ... (1985) (addressing a request for attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976).

addressing a request for attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976


Context: The district court properly dismissed the action because Marks's claims were raised, or could have been raised, in prior actions between the parties or their privies that resulted in a final judgment on the merits.

See Mpoyo, 430 F.3d at 987 (setting forth claim preclusion elements and requirements for identity of claims under federal law); Manufactured Home Cmties., Inc. v. City of San Jose, 420 F.3d 1022, 1031 (9th Cir.2005) (describing claim preclusion under California law); see also Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002) (the doctrine of res judicata bars subsequent litigation both of claims that were raised and those that could have been raised in the prior action).


Context: Sept. 30, 2008)).) While the Court need not conclusively resolve the issue of the precise, applicable standard today, the Court considers each of Plaintiffs' First Amendment claims in light of appropriate therapeutic interests as well as relevant safety and security concerns.

applying "a version of the Turner test, moderated to account for the principles stated in Senty-Haugen " in order to determine whether an MSOP policy "is reasonably related to legitimate institutional and therapeutic interests"

Ivey, 2008 WL 4527792, at *4-5 (applying “a version of the Turner test, moderated to account for the principles stated in Senty-Haugen ” in order to determine whether an MSOP policy “is reasonably related to legitimate institutional and therapeutic interests”); see Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir.2006) (acknowledging that the liberty interests of individuals committed to state custody as dangerous persons “are considerably less than those held by members of free society,” but that such individuals are “entitled to more considerate treatment and conditions of confinement” than prison inmates) (internal citations omitted); Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir.2004) (“Although an involuntarily committed patient of a state hospital is not a prisoner per se, his confinement is subject to the same safety and security concerns as that of a prisoner.”); Serna v. Goodno, 567 F.3d 944, 953 (8th Cir.2009), cert, denied, 558 U.S. 972, 130 S.Ct. 465, 175 L.Ed.2d 312 (2009) (finding that “governmental interests in running a state mental hospital are similar’in material aspects to that of running a prison” because “[a]dministrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients’ own safety” and concluding, therefore, that “the government may take steps' to maintain security at its institutions where sexually violent persons are confined”).

acknowledging that the liberty interests of individuals committed to state custody as dangerous persons "are considerably less than those held by members of free society," but that such individuals are "entitled to more considerate treatment and conditions of confinement" than prison inmates


"Although an involuntarily committed patient of a state hospital is not a prisoner per se, his confinement is subject to the same safety and security concerns as that of a prisoner."


finding that "governmental interests in running a state mental hospital are similar'in material aspects to that of running a prison" because "[a]dministrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients' own safety" and concluding, therefore, that "the government may take steps' to maintain security at its institutions where sexually violent persons are confined"


But see Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th Cir.2012) (applying the four-factor Turner test to a First Amendment claim asserted by civilly committed sex offenders where the parties agreed to its application).


Context: While Goins proceeded throughout this case pro se, Rule 9011 "unambiguously [states] that any signer must conduct a 'reasonable inquiry' or face sanctions."

"The fact that [the pro se party] filed the complaint without the assistance of counsel ... did not excuse him from having to investigate the factual basis of his suit."

Business Guides, 498 U.S. at 548, 111 S.Ct. at 932 (emphasis added); Shrock v. Altru Nurses Registry, 810 F.2d 658, 661-62 (7th Cir.1987) (“The fact that [the pro se party] filed the complaint without the assistance of counsel ... did not excuse him from having to investigate the factual basis of his suit.”); see Ginter v. Southern, 611 F.2d 1226, 1227-28 n. 1 (8th Cir.1979) (Rule 11 applies with equal strength to attorneys and pro se litigants); In re 1801 Restaurant, Inc., 40 B.R. 455, 457-58 (Bankr.D.Md.1984) (“Pro se litigants have the same duties and obligations as attorneys under [Rule] 11, no more and no less.”). Thus, one appearing pro se has “no impenetrable shield ... [and] has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.”


"Pro se litigants have the same duties and obligations as attorneys under [Rule] 11, no more and no less."


Context: ited, essentially because a successor judge is in no position to pass on the credibility of witnesses whom he has not seen."

recognizing that, where the credibility of the government's witnesses was a serious issue in a criminal case, a successor judge should not rule on a motion for new trial

Daru v. Martin, 89 Ariz. 373, 363 P.2d 61, 64 (1961); see also Connelly v. United States, 249 F.2d 576, 580 (8th Cir. 1957) (recognizing that, where the credibility of the government’s witnesses was a serious issue in a criminal case, a successor judge should not rule on a motion for new trial); Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 737 (1960) (holding that a successor judge may consider a motion for new trial in a case tried to the court where she “is not required to weigh conflicting evidence or pass upon the credibility of witnesses, but can resolve such issues ... upon evidence which is not materially in conflict”); Jackson v. Commonwealth, 445 S.W.2d 835, 838-39 (Ky.1969) (successor judge could rule on criminal defendant’s motion for new trial because the grounds raised “were all matters which could be determined from the record”); Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D.1984) (adopting Anderson v. Dewey); Ruggieri v. Beauregard, 110 R.I. 197, 291 A.2d 413, 415 (1972) (holding that the applicable rule of procedure “vests a successor judge with judicial discretion to review the jury verdict on a motion for new trial on the ground that such verdict was contrary to the weight of the evidence where the record clearly discloses that no question of the credibility of the witnesses or the weight to be given to their testimony will require resolution by him”); cf. Hunter v. Union State Bank, 505 N.W.2d 172, 175 (Iowa 1993) (successor judge could decide case tried to previous judge because “credibility was not that crucial”).

successor judge could decide case tried to previous judge because "credibility was not that crucial"


reversing successor judge's vacating of original trial court's grant of new trial because original trial court "observed the entire trial, all witnesses, and the jury ... [and] was ... in the best place to judge the prejudicial effect of evidence and to judge whether any evidence led to bias, passion, and prejudice on the part of the jury ... [such that original trial court] was in a far superior position to determine the necessity of a new trial"

But see Pinecrest, LLC v. Harris, 40 So.3d 557, 563 (Miss.2010) (reversing successor judge’s vacating of original trial court’s grant of new trial because original trial court “observed the entire trial, all witnesses, and the jury ... [and] was ... in the best place to judge the prejudicial effect of evidence and to judge whether any evidence led to bias, passion, and prejudice on the part of the jury ... [such that original trial court] was in a far superior position to determine the necessity of a new trial”); Adkins v. Adkins, 43 Ohio App.3d 95, 539 N.E.2d 686, 692 (1988) (“While it is always desirable to have the factfinder personally observe the witnesses whose credibility he or she is called upon to determine, considerations of judicial economy may weigh against the additional delay and expense represented by a new trial.


holding that a successor judge may consider a motion for new trial in a case tried to the court where she "is not required to weigh conflicting evidence or pass upon the credibility of witnesses, but can resolve such issues ... upon evidence which is not materially in conflict"


successor judge could rule on criminal defendant's motion for new trial because the grounds raised "were all matters which could be determined from the record"


holding that the applicable rule of procedure "vests a successor judge with judicial discretion to review the jury verdict on a motion for new trial on the ground that such verdict was contrary to the weight of the evidence where the record clearly discloses that no question of the credibility of the witnesses or the weight to be given to their testimony will require resolution by him"


Context: This definition does not get us very far. We believe, however, that only individuals who receive compensation from an employer can be deemed "employees" under the statute.

reversing a grant of summary judgment for employer because question of whether benefits provided to plaintiff were sufficient "compensation" to render plaintiff an employee was one of disputed fact

See O’Connor v. Davis, 126 F.3d 112, 115-16 (2nd Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1048, 140 L.Ed.2d 112 (1998) (“Where no financial benefit is obtained by the purported employee from the employer, no plausible employment relationship of any sort can be said to exist because ... compensation ... is an essential condition to the existence of an employer-employee relationship.” (internal quotations and citations omitted)); see also Haavistola v. Community Fire Co., 6 F.3d 211, 221-22 (4th Cir.1993) (reversing a grant of summary judgment for employer because question of whether benefits provided to plaintiff were sufficient “compensation” to render plaintiff an employee was one of disputed fact); cf. McClure, 460 F.2d at 557 (holding that an individual who was “selected, employed, controlled, trained, and paid ” by the employer was an employee (emphasis added)).

holding that an individual who was "selected, employed, controlled, trained, and paid " by the employer was an employee (emphasis added


Context: The Court of Federal Claims is an Article I court of limited jurisdiction created by Congress as a forum where private parties could sue the government for non-tort money claims, where the claims would otherwise be barred by sovereign immunity. E.g.

taxpayers' claims for declaratory and injunctive relief were outside jurisdiction of Court of Federal Claims

Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997) (taxpayers’ claims for declaratory and injunctive relief were outside jurisdiction of Court of Federal Claims).

See also United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 1501-1502, 23 L.Ed.2d 52 (1969) (jurisdiction of Court of Claims is limited to money claims and does not extend to equitable matters); Beck v. Secretary of Dep’t of HHS, 924 F.2d 1029, 1036 (Fed.Cir.1991) (“Claims Court has no general equitable power to issue injunctions in cases other than those in which such power has explicitly been granted.”)


"Claims Court has no general equitable power to issue injunctions in cases other than those in which such power has explicitly been granted."


Context: With sufficient autonomy from the state, especially with regard to financial matters, an agency, political subdivision, or state university is the real party in interest and is thus a "citizen" for the purposes of diversity jurisdiction.

state university with "a considerable amount of economic and operational authority" is a citizen, not an alter ego of the state

See University of R.I., supra, 721 F.Supp. at 403 (state university with “a considerable amount of economic and operational authority” is a citizen, not an alter ego of the state); Howard supra, 744 F.2d at 886 (suggesting that “[a]n autonomous governmental corporation” is not an alter ego of the state because it is financially independent even though it received periodic appropriations from the state treasury).

state agency that received more than 70 percent of a recent annual budget from general funds of Puerto Rico and whose policies are under significant control by the governor's office found to be so financially and politically dependent upon the Commonwealth as to be an arm of it

But see In re San Juan, supra, 888 F.2d at 943 (state agency that received more than 70 percent of a recent annual budget from general funds of Puerto Rico and whose policies are under significant control by the governor’s office found to be so financially and politically dependent upon the Commonwealth as to be an arm of it); Whitten, supra, at 181 (university construction fund, with “no financial independence of its own”, was held to be an alter ego of the state); Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir.1978) (extent and nature of the Commonwealth of Puerto Rico’s financial support for the University of Puerto Rico was a dispositive factor in concluding that the university was an “arm” of the state).


extent and nature of the Commonwealth of Puerto Rico's financial support for the University of Puerto Rico was a dispositive factor in concluding that the university was an "arm" of the state


suggesting that "[a]n autonomous governmental corporation" is not an alter ego of the state because it is financially independent even though it received periodic appropriations from the state treasury


Context: While our supreme court has not created a new rule or standard for addressing this issue, this court has adopted a two-prong test for determining the sufficiency of an indictment involving a purportedly overbroad time period: (1) whether time is a material element of the offense; and (2) whether the time period covered by the indictment occurred prior to the return of the indictment by the grand jury.

State v. Nicholson, 366 S.C. 568, 574, 623 S.E.2d 100, 103 (Ct.App.2005) (holding an indictment alleging commission of second-degree criminal conduct during periods of June 1 through July 20, 1995; July 1 through July 31, 1995; and August 1 through August 18, 1995, was sufficient as to time); State v. Wingo, 304 S.C. 173, 175, 403 S.E.2d 322, 323 (Ct.App.1991) (finding an indictment charging first-degree criminal sexual conduct with a minor covering a two-year period was sufficient as to time); see also State v. Thompson, 305 S.C. 496, 500-01, 409 S.E.2d 420, 423 (Ct.App.1991) (“The specific date and time is not an element of the offense of first-degree criminal sexual conduct.”).

"The specific date and time is not an element of the offense of first-degree criminal sexual conduct."


Context: The district court likewise did not err in holding IMV jointly liable for the portion of those ill-gotten funds that it received. The relief defendants argue that IMV neither possesses nor benefitted from the funds it received and subsequently transferred, and that it therefore should not be subject to the disgorgement order. The district court was free to reject this argument because ongoing possession of the funds is not required for disgorgement.

"A person who controls the distribution of illegally obtained funds is liable for the funds he or she dissipated as well as the funds he or she retained."

See Platforms Wireless, 617 F.3d at 1098 (“A person who controls the distribution of illegally obtained funds is liable for the funds he or she dissipated as well as the funds he or she retained.”); SEC v. JT Wallenbrock & Assocs., 440 F.3d 1109, 1116 (9th Cir. 2006) (“The manner in which [the recipient of ill-gotten funds] chose to spend the illegally obtained funds has no relevance to the disgorgement calculation.”); see also Colello, 139 F.3d at 677 (approving the use of relief defendant procedures even where the disputed funds were “paid over to others” by the relief defendant after their receipt).

approving the use of relief defendant procedures even where the disputed funds were "paid over to others" by the relief defendant after their receipt


"The manner in which [the recipient of ill-gotten funds] chose to spend the illegally obtained funds has no relevance to the disgorgement calculation."


Context: Rule 8.4 generally prohibits attorney misconduct. Subsection (c) of Rule 8.4 states that it is professional misconduct for an attorney to engage in conduct that involves dishonesty, fraud, deceit or misrepresentation. "The retention of unearned fees paid by a client, alone, may constitute a violation of Rule 8.4(c)."

holding an attorney violated Rule 8.4(c) when the attorney made misrepresentations about holding two clients' money in trust

Attorney Grievance v. McLaughlin, 372 Md. 467, 502-03, 813 A.2d 1145, 1166 (2002) (holding that an attorney violated Rule 8.4(c) when the attorney retained unearned fees from four clients); see also Attorney Grievance v. Gallagher, 371 Md. 673, 712, 810 A.2d 996, 1019 (2002) (holding an attorney violated Rule 8.4(c) when the attorney made misrepresentations about holding two clients’ money in trust). Here, Respondent accepted a $1,500.00 fee, deposited the fee into an account other than an attorney trust account and did not perform any legal services in exchange for the fee.


Context: Spencer failed to challenge the district court's dismissal of his action for failure to effectuate service of process, and has therefore waived any such challenge.

"[O]n appeal, arguments not raised by a party in its opening brief are deemed waived,"

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived,”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (‘We will not manufacture arguments for an appellant .... ”).

'We will not manufacture arguments for an appellant .... "


Context: On the other hand, section 58-33-275(E) applies only after a utility has already deviated from an existing base load review order and attempts to recoup costs from the deviation. In that situation, a party must demonstrate by a preponderance of the evidence that the utility has deviated from the original base load review order, and then the utility may only recoup costs that were not the result of imprudence. Thus, the Commission correctly rejected Appellants' attempt to convert the modification proceeding into a deviation proceeding, and because SCE & G sought to update the existing base load review order, section 58-33-270 plainly applied.

"A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers."

See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (“[I]t is not the court’s place to change the meaning of a clear and unambiguous statute.”); see also Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606 (2006) (“A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.”).

"[I]t is not the court's place to change the meaning of a clear and unambiguous statute."


Context: Finally, the jury heard testimony that even if the material strap was properly secured around the load, the materials could fall out. From this testimony, we believe the jury could utilize its common experience to find that Drury breached its duty to safely secure and lift the roofing materials by using a material handling strap, rather than an alternative method, to secure the bundles.

See Salem, 370 U.S. at 36, 82 S.Ct. 1119 (finding that the jury had “sufficient evidence, both from oral testimony and from photographs, ... to determine whether some railing or hand hold ... was reasonably necessary for the protection of a seaman .... ”); cf. Parra v. Bldg. Erection Servs., 982 S.W.2d 278, 285-86 (Mo.Ct.App.1998) (finding that the trial court erred in directing a verdict for the defendant on a negligence claim because whether an unsecured wire rope cable posed a danger was a subject within the experience or knowledge of the jurors, rendering expert testimony unnecessary).

finding that the jury had "sufficient evidence, both from oral testimony and from photographs, ... to determine whether some railing or hand hold ... was reasonably necessary for the protection of a seaman .... "


Context: This is not a case in which appellant is objecting that the prosecutor's jury argument was a comment on her failure to testify, because in this case, appellant did testify. When a prosecutor's jury argument can reasonably be construed to refer to appellant's failure to produce evidence other than her own testimony, the comment is not improper.

holding the prosecutor's argument "If it was there, they can bring it to you," was not an improper jury argument

Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App.1995) (holding the prosecutor’s argument “If it was there, they can bring it to you,” was not an improper jury argument); see also Thomas v. State, 688 S.W.2d 481, 483 (Tex.Crim.App.1982) (stating that the prosecutor may comment on the defendant’s failure to present any witnesses or evidence on his behalf).

stating that the prosecutor may comment on the defendant's failure to present any witnesses or evidence on his behalf


Context: . Similarly, in a quasi-criminal case or a case in which the government is a party, the balance may be struck in favor of excluding illegally obtained evidence.

But see Webster v. Redmond, 599 F.2d 793 (7th Cir. 1979), cert. denied, 444 U.S. 1039, 100 S.Ct. 712, 62 L.Ed.2d 674 (1980) (in deciding to suspend teacher, school board may consider illegally seized evidence); United States v. Paepke, 550 F.2d 385 (7th Cir. 1977) (evidence illegally seized by state officers not suppressed in federal tax case); NLRB v. South Bay Daily Breeze, 415 F.2d 360 (9th Cir. 1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970) (when government did not instigate private search, evidence held admissible); Lamartiniere v. Dept. of Emp. Sec., 372 So.2d 690 (La.App.), cert. denied, 375 So.2d 945 (La. 1979) (illegally seized evidence admitted in proceeding to determine validity of claim for unemployment compensation payments).

See, e. g., Standard Oil Co. v. Iowa, 408 F.2d 1171 (8th Cir. 1969) (exclusion required in treble action antitrust action); Knoll Associates, Inc. v. FTC, 397 F.2d 530 (7th Cir. 1968) (documents stolen by private citizen with the knowledge of the government may not be used by the government in a FTC proceeding); Carlisle v. State ex rel. Trammell, 276 Ala. 436, 163 So.2d 596 (1964) (suppression of illegally obtained evidence required in a proceeding to abate a gambling nuisance; decision rested in part on state statute); Carson v. State, 221 Ga. 299, 144 S.E.2d 384 (1965) (evidence seized pursuant to deficient warrant must be excluded in a proceeding to abate public nuisance); People v. Moore, 69 Cal.2d 674, 446 P.2d 800, 72 Cal.Rptr. 800 (1968) (illegally seized evidence inadmissible in narcotic addict commitment proceeding); Parish of Jefferson v. Bayou Landing Ltd., Inc., 350 So.2d 158 (La.1977) (illegally obtained evidence not admissible in action to enjoin future obscenity nuisance); State v. Spoke Committee, Univ. Center, 270 N.W.2d 339 (N.D.1978) (illegally obtained evidence not admissible in action to enjoin future showing of obscene film).


evidence illegally seized by state officers not suppressed in federal tax case


when government did not instigate private search, evidence held admissible


illegally seized evidence admitted in proceeding to determine validity of claim for unemployment compensation payments


evidence seized pursuant to deficient warrant must be excluded in a proceeding to abate public nuisance


illegally obtained evidence not admissible in action to enjoin future obscenity nuisance


illegally obtained evidence not admissible in action to enjoin future showing of obscene film


Context: Unlike Title VII's prohibitions of intentional discrimination, the prohibition of disparate impact discrimination in certain circumstances is intended to redress procedures or policies that, without adequate justification, as a practical matter limit the job opportunities of historically-disfavored groups.

"Our disparate impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities"

See Griggs v. Duke Power Co, 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (establishing the basis for disparate impact claims by construing Title VII to proscribe “not only overt discrimination but also practices that are fair in form but discriminatory in practice”); see also Wards Cove Parking Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (“Our disparate impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities”) (emphasis in original). It is difficult to see how one alleged instance of the defendant’s failure to post a job — a job which the defendant was aware of, and interviewed for — is sufficient to plead an actionable employment practice or policy which limits the job opportunities of historically disfavored groups.

establishing the basis for disparate impact claims by construing Title VII to proscribe "not only overt discrimination but also practices that are fair in form but discriminatory in practice"


Context: The district court properly dismissed Phillips's claims stemming from his prior state civil actions as barred by the Rooker-Feldman doctrine because these claims constitute a "de facto appeal" of prior state court judgments, or are "inextricably intertwined" with those judgments.

concluding plaintiffs claim for conspiracy was "inextricably intertwined" with the state court's decision

See Noel, 341 F.3d at 1155-56 (the Rooker-Feldman doctrine bars de facto appeals of a state court decision); see also Cooper v. Ramos, 704 F.3d 772, 782-83 (9th Cir. 2012) (concluding plaintiffs claim for conspiracy was “inextricably intertwined” with the state court’s decision); Henrichs v. Valley View Dev., 474 F.3d 609, 616 (9th Cir. 2007) (Rooker-Feldman doctrine barred plaintiffs claim because the relief sought “would require the district court to determine the state court’s decision was wrong and thus void").


Rooker-Feldman doctrine barred plaintiffs claim because the relief sought "would require the district court to determine the state court's decision was wrong and thus void"


Context: The fact that it was Jackson who initiated the appeal of the original pre-guide-lines sentence, citing as error the district court's failure to sentence under the guidelines, somewhat undermines his claim that he held a crystallized expectation that his original sentence was final.

See Gauntlett v. Kelley, 849 F.2d 213, 218-19 (6th Cir.1988) (harsher resentencing no double jeopardy violation because defendant challenged legality of initial sentence and was on notice that his appeal could lead to a more severe sentence); United States v. Colunga, 812 F.2d 196, 198 (5th Cir.) cert. denied 484 U.S. 857, 108 S.Ct. 165, 98 L.Ed.2d 120 (1987); but see United States v. Bello, 767 F.2d 1065, 1070 (4th Cir.1985) (the fact that defendant initiated the appeal is not a dispositive determinant of defendant’s legitimate expectation of finality). However, we rely on a still more basic reason to find that Jackson had no legit imate expectation of finality and, accordingly, that Jackson’s resentencing comports with double jeopardy concerns.

the fact that defendant initiated the appeal is not a dispositive determinant of defendant's legitimate expectation of finality


Context: However, Nobles and Hales long knew of East's involvement in the transaction at issue, and should have known that RCIS was a subsidiary of Wells Fargo. Thus, their "mistake" was a mistake in legal judgment, not a mistake in the naming of the party, and thus it is not covered by Rule 15(c).

finding no abuse of discretion in district court's refusal to allow relation back when plaintiffs knew defendants' identity before statute of limitations ran

Rendall-Speranza v. Nassim, 107 F.3d 913, 917-18 (D.C.Cir.1997) (“[A] plaintiffs mistaken belief that A is liable for a tort against her when in fact B is the responsible party ... is one of legal judgment rather than a mere misnomer.”); see also Powers v. Graff, 148 F.3d 1223, 1227 (11th Cir.1998) (finding no abuse of discretion in district court’s refusal to allow relation back when plaintiffs knew defendants’ identity before statute of limitations ran).

"[A] plaintiffs mistaken belief that A is liable for a tort against her when in fact B is the responsible party ... is one of legal judgment rather than a mere misnomer."


Context: By enacting Senate Bill 0182-008, the General Assembly has provided persuasive evidence of its intent concerning the interpretation of SS 42-4-1801(9)(a)(II), making it clear that Senate Bill 01-168 was not intended to modify the penalties for vehicular homicide.

See People v. Holland, 708 P.2d 119 (Colo.1985)(while subsequent legislative declarations concerning the intent of an earlier statute are not controlling, they are entitled to significant weight); BQP Indus., Inc. v. State Bd. of Equalization, 694 P.2d 337 (Colo.App.1984)(noting that the same General Assembly enacted both provisions at issue there, and holding that, while subsequent legislative pronouncement of intent is not a part of the legislative history, such statements may be considered in construing the statute in question); cf. State v. Nieto, 993 P.2d 493 (Colo.2000)(courts cannot infer the intent of an earlier legislature from the views of a subsequent one).


noting that the same General Assembly enacted both provisions at issue there, and holding that, while subsequent legislative pronouncement of intent is not a part of the legislative history, such statements may be considered in construing the statute in question


Context: In the first instance, a reasonable trier of fact could find that the actions of the Mayor himself towards plaintiff came to represent town policy or, to say the least, condoned a custom of sexual harassment by the town's officials and employees. In addition, a trier of fact could find that the Mayor's personal engagement in the allegedly unconstitutional treatment of plaintiff satisfied Turner's second criterion for municipal liability.

sheriff's alleged participation as co-conspirator in plan to subject plaintiff to "sham" trial in violation of her due process rights would, if proven, lead to municipal liability under SS 1983

See Turner, 915 F.2d at 137 (sheriff’s alleged participation as co-conspirator in plan to subject plaintiff to “sham” trial in violation of her due process rights would, if proven, lead to municipal liability under § 1983); see also Pembaur v. Cincinnati 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986) (“municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances”).

"municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances"


Context: Appellant, an expert marksman, also fired a shot into Burger's occupied car at close range, causing a bullet to narrowly miss Mandy McConnell who was sitting in the back seat. (N.T., at 24.) It can be inferred that appellant intended to cause serious bodily injury to Mandy because the bullet he fired into the car missed her by only three inches.

See Commonwealth v. Thompson, 559 Pa. 229, 739 A.2d 1023 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000) (finding sufficient evidence presented to convict appellant of aggravated assault where appellant shot at and narrowly missed the victim); see also Commonwealth v. Woods, 710 A.2d 626 (Pa.Super.1998) (holding specific intent to harm may be inferred from the circumstances and that finding is a matter for the jury).


Context: As to the first excerpt, the use of the word "alarm" rather than "monitor" does not so alter the meaning of Samee's statements as to render them no longer "substantially true."

in affirming trial court's application of "substantial truth" test, court held on appeal that "a more recent doctrine extends First Amendment protection to statements that are 'substantially true' -- that is, 'supportable interpretations' of ambiguous underlying situations"

Hunter v. Hartman, 545 N.W.2d 699, 706 (Minn.Ct.App.1996) (in affirming trial court’s application of “substantial truth” test, court held on appeal that “a more recent doctrine extends First Amendment protection to statements that are ‘substantially true’ — that is, ‘supportable interpretations’ of ambiguous underlying situations”) (citations omitted); see also Mas-son v. New Yorker Magazine, Inc., 501 U.S. 496, 517-18, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991) (common law of libel “overlooks minor inaccuracies and concentrates upon substantial truth”).

common law of libel "overlooks minor inaccuracies and concentrates upon substantial truth"


Context: A considerable body of case law instructs that when analyzing a Title IX claim courts should apply Title VII jurisprudence.

"the same rule [as when a supervisor sexually harasses a subordinate under Title VII] should apply when a teacher sexually harasses and abuses a student."

Franklin, 503 U.S. at 73-76, 112 S.Ct. at 1036-38 (“the same rule [as when a supervisor sexually harasses a subordinate under Title VII] should apply when a teacher sexually harasses and abuses a student.”); Murray, 57 F.3d at 249 (“In reviewing claims of discrimination brought under Title IX by employees, whether for sexual harassment or retaliation, courts have generally adopted the same legal standards that are applied to such claims under Title VII.”); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186, 1190 (11th Cir.1996) (Title VII standards governing hostile working environment applicable to Title IX claim against school for knowingly failing to act to remedy hostile school environment); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir.1993) (Title VII provides “the most appropriate analogue when defining Title IX’s substantive standards.”); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988) (Title VII standard for proving discriminatory treatment applies to claims arising under equal protection clause and Title IX); see also, Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir.1994) (In the case of gender discrimination occurring in college disciplinary proceedings, courts should interpret Title IX by looking to the body of law developed under Title VI, as well as the case law interpreting Title VII).


"In reviewing claims of discrimination brought under Title IX by employees, whether for sexual harassment or retaliation, courts have generally adopted the same legal standards that are applied to such claims under Title VII."


Title VII standards governing hostile working environment applicable to Title IX claim against school for knowingly failing to act to remedy hostile school environment


Title VII provides "the most appropriate analogue when defining Title IX's substantive standards."


Title VII standard for proving discriminatory treatment applies to claims arising under equal protection clause and Title IX


Context: Nor does it prevent other states from regulating gift card sales differently within their own territories."). In other words, under the state's interpretation of its own law, as sanctified by the Second Circuit, the statute was constitutional because it regulated only transactions within the state; whether any subsequent effects of the transaction -- such as the use of the gift card -- were felt out of state was irrelevant.

noting that the Commerce Clause "precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State"

See also Freedom Holdings, 624 F.3d at 66 (finding statute that applied only to cigarettes sold in the state did not regulate extraterritorially); cf. Edgar, 457 U.S. at 642, 102 S.Ct. 2629 (noting that the Commerce Clause “precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State”).


Context: Perez-Lopez's contention that the agency failed to consider all hardship factors does not state a colorable due process claim.

"traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction."

See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (holding that the “misapplication of case law” may not be reviewed).

holding that the "misapplication of case law" may not be reviewed