Context: [Wjhile the FDPA specifically provides for victim impact evidence, 18 U.S.C. SS 3593, there is no parallel provision allowing for execution impact evidence. Asking the jury to sentence a defendant to life is not mitigating evidence.

approving of district court not allowing witnesses to offer opinions on what jury's verdict should be

United States v. Mitchell, 502 F.3d 931, 991 (9th Cir.2007) (approving of district court not allowing witnesses to offer opinions on what jury’s verdict should be); United States v. Caro, 461 F.Supp.2d. 459, 465 (W.D.Va.2006) (“[A]n express plea for mercy to the jury from a defendant’s witness is not mitigating evidence that could aid the jury in their decision making.”); see also Stenson v. Lambert, 504 F.3d 873, 892 (9th Cir.2007) (noting there are no federal cases requiring the admission of execution impact testimony); Jackson v. Dretke, 450 F.3d 614, 617-18 (5th Cir.2006); but see Jackson, 450 F.3d at 620 (Dennis, J., dissenting).


Context: Indeed, in other cases, outside of Maryland, the doctrine has been applied after the completion of a trial in the underlying case.

"The case- within-a-case doctrine requires that, but for the attorney's alleged negligence, litigation would have ended with a more favorable result for the client."

See McIntire v. Lee, 149 N.H. 160, 816 A.2d 993 (2003) (malpractice established after jury determined that evidence that was not introduced in the underlying trial was relevant and should have been introduced); Prince v. Garruto, Galex & Cantor, Esqs., 346 N.J.Super. 180, 787 A.2d 245 (App.Div.2001) (ordering a trial on the merits to determine when omission of a witness in previous trial constituted malpractice); see also Meyer v. Maus, 626 N.W.2d 281, 287 (N.D.2001) (“The case- within-a-case doctrine requires that, but for the attorney’s alleged negligence, litigation would have ended with a more favorable result for the client.”); Aubin v. Barton, 123 Wash. App. 592, 98 P.3d 126, 134 (2004) (“[T]he trial court hearing the malpractice claim retries, or tries for the first time, the client’s cause of action that the client contends was lost or compromised by the attorney’s negligence, and the trier of fact decides whether the client would have fared better but for the alleged mishandling.”).


"[T]he trial court hearing the malpractice claim retries, or tries for the first time, the client's cause of action that the client contends was lost or compromised by the attorney's negligence, and the trier of fact decides whether the client would have fared better but for the alleged mishandling."


ordering a trial on the merits to determine when omission of a witness in previous trial constituted malpractice


Context: Because this jurisdictional challenge arises in the context of a motion to register a foreign judgment, this Court must look to the rendering state's law-- that is, Oklahoma's substantive law -- to determine whether the Oklahoma court had personal jurisdiction over Mr. Frazee. The facts and circumstances considered in determining whether personal jurisdiction exists are those found by the registering and enforcing jurisdiction, rather than the rendering jurisdiction.

See Gletzer v. Harris, 159 S.W.3d 462, 465-66 (Mo.App.2005) (applying New York substantive law to the facts found by the Missouri court); see also Whipple v. JSZ Fin. Co., 885 So.2d 933, 936 (Fla.Dist.Ct.App.2004) (applying Texas substantive law to the facts found by the Florida court).


Context: As discussed in this Court's prior Decision and Order, "[t]he Second Circuit has instructed that;where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings."

"Had the district court rejected the magistrate's conclusions regarding the credibility of the central witnesses without hearing live testimony from those witnesses, troubling questions of constitutional due process would have been raised."

United States v. Lawson, 961 F.Supp.2d 496, 499 (W.D.N.Y. 2013) (citing Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (“[A] district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge.” (quoting Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)))); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (“Had the district court rejected the magistrate’s conclusions regarding the credibility of the central witnesses without hearing live testimony from those witnesses, troubling questions of constitutional due process would have been raised.”); see also United States v. Raddatz, 447 U.S. 667, 675-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (district court is not required to rehear witness testimony when accepting a magistrate judge’s credibility findings).

district court is not required to rehear witness testimony when accepting a magistrate judge's credibility findings


Context: In order to preserve the notice purpose of Rule 8(c) and the discretionary structure of Rule 15(a), we hold that Rule 8(c) means what it says: a party must first raise its affirmative defenses in a responsive pleading before it can raise them in a dispositive motion. The Fifth Circuit has interpreted Rule 8(c) similarly.

unpled affirmative defense not waived when raised at trial at "pragmatically sufficient time"

But cf. Lucas v. United States, 807 F.2d 414, 417-18 (5th Cir.1986) (unpled affirmative defense not waived when raised at trial at “pragmatically sufficient time”).

See Ashe v. Corley, 992 F.2d 540, 545 n. 7 (5th Cir.1993); Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976) (unpled affirmative defense cannot be raised on summary judgment unless summary judgment motion is first responsive pleading).


Context: In making its finding, the judge also found that the "fortress theory" applied at least to some extent, even though no drugs were involved here. This theory originated in cases involving 18 U.S.C. SS 924(c)(1), which provision penalizes anyone who, "during and in relation to any crime of violence or drug trafficking crime[,] ... uses or carries a firearm." The theory was a means for courts to find that a defendant "used" a firearm, even where there was no evidence that the defendant had fired, brandished, or even picked up the weapon.

"[I]f it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction, then such firearms are used 'during and in relation to' a drug trafficking crime." (quoting 18 U.S.C. SS 924(c

See United States v. Grant, 545 F.2d 1309, 1312 (2d Cir.1976) (finding “use,” based on the fact that the social club that housed the defendants’ drug operation was a “veritable fortress”); see also United States v. Henry, 878 F.2d 937, 944 (6th Cir.1989) (“[I]f it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction, then such firearms are used ‘during and in relation to’ a drug trafficking crime.” (quoting 18 U.S.C. § 924(c)(1))). Though the Supreme Court has curtailed the theory in relation to § 924(c)(1) by holding that the term “use” in § 924(c)(1) means “active employment” and not merely possession, see Bailey v. United States, 516 U.S. 137, 150, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the theory is still applicable in § 2K2.1(b)(5) cases because the latter provision contains the additional word “possessed.”

finding "use," based on the fact that the social club that housed the defendants' drug operation was a "veritable fortress"


Context: . The State's assertion that the prosecution "bears no burden with regard to the finding of mitigating circumstances or the weighing process" is not only irrelevant, for the reasons explained above, but is refuted by the decisions of the Nevada Supreme Court.

"The State has the burden of ... proving that aggravating circumstances exist and are not outweighed by any mitigating circumstances."

See, e.g., Floyd v. State, 118 Nev. 156, 42 P.3d 249, 258 (2002) (en banc) (per curiam) ("The State has the burden of ... proving that aggravating circumstances exist and are not outweighed by any mitigating circumstances.”), abrogated on other grounds by Grey v. State, 178 P.3d 154 (Nev.2008) (enbanc); see also Witter, 921 P.2d at 896 (rejecting the argument that Nevada's death penalty statute "shifts the burden of proof to the defendant to prove that mitigating circumstances outweigh aggravating circumstances”); accord Blake v. State, 121 Nev. 779, 121 P.3d 567, 580 (2005) (en banc).

rejecting the argument that Nevada's death penalty statute "shifts the burden of proof to the defendant to prove that mitigating circumstances outweigh aggravating circumstances"


Context: 2. Because Singh suffered past persecution at the hands of the Indian police, he is entitled to the presumption that the threat of persecution against him exists nationwide, and the government bears the burden of proving, by a preponderance of the evidence, that he could reasonably relocate to avoid future persecution. The generalized information relied on by the BIA falls short of providing substantial evidence to support the determination that a preponderance of the evidence showed that Singh could reasonably relocate free of future persecution to other parts of the country.

See also Salazar-Paucar v. INS, 281 F.3d 1069, 1077 (9th Cir.2002) (mere passage of time cannot rebut the presumption of future persecution).

country report stating it was "generally possible to seek internal resettlement" was insufficient to overcome presumption

See Singh v. Ilchert, 69 F.3d 375, 380 (9th Cir.1995); Borja v. INS, 175 F.3d 732, 737-38 (9th Cir.1999) (en banc) (country report stating it was “generally possible to seek internal resettlement” was insufficient to overcome presumption).


Context: Lastly, the argument here that the jury could find sufficient proof on this record of venue by a preponderance of the evidence is particularly cogent because, unlike some of our prior cases, there was no evidence before the jury that Mr. Kelly committed any of the charged criminal conduct in any place other than where he was tried, the District of Utah. Accordingly, there were no competing venue possibilities.

noting that a jury's guilty verdict signals a proper finding of venue "[wjhere the entirety of the defendant's illegal activity is alleged to have taken place within the trial jurisdiction, and no trial evidence is proffered that the illegal act was committed in some other place or that the place alleged is not within the jurisdiction"

See Miller, 111 F.3d at 751 (noting that a jury’s guilty verdict signals a proper finding of venue “[wjhere the entirety of the defendant’s illegal activity is alleged to have taken place within the trial jurisdiction, and no trial evidence is proffered that the illegal act was committed in some other place or that the place alleged is not within the jurisdiction”).

concluding that, where the theft at issue occurred in Kansas -- -where defendant was tried -- "[tjhere is not a sufficient relationship between the fact of possession [of items from the theft] in Oklahoma and ... receiving and possessing in Kansas" to support a finding of venue in Kansas

Cf. Jenkins, 392 F.2d at 306 (concluding that, where the theft at issue occurred in Kansas — -where defendant was tried — “[tjhere is not a sufficient relationship between the fact of possession [of items from the theft] in Oklahoma and ... receiving and possessing in Kansas” to support a finding of venue in Kansas). Accord United States v. Greene, 995 F.2d 793, 801 (8th Cir.1993) (agreeing with defendant charged with manufacturing marijuana that where the only evidence of venue in the Southern District of Iowa was holes in a map purporting to show marijuana fields and the holes were “distributed both inside and outside” that district, “only by speculating could a reasonable jury have found that any of the marijuana fields was in the district of indictment”).


Context: (Id.) (emphasis added). In other words, the discretion that the Park Road Standards provide to the NPS concerns functions such as design, construction, and reconstruction -- not the maintenance of roadways. This interpretation of the Park Road Standards is wholly in line with the reading by various circuit courts.

"[I]t does not follow that the Standards' basic, scientific safety specifications may be disregarded, particularly those that do not require redesigning or reconstructing the [roadways]."

See Soldano, 453 F.3d at 1150 (“[I]t does not follow that the Standards’ basic, scientific safety specifications may be disregarded, particularly those that do not require redesigning or reconstructing the [roadways].”); see also Mitchell, 225 F.3d at 364 (“Under these guidelines, the Park Service’s decision about how and when to reconstruct Route 209 would seem to be a discretionary decision ... .”).

"Under these guidelines, the Park Service's decision about how and when to reconstruct Route 209 would seem to be a discretionary decision ... ."


Context: .Many of the cases address how to remedy inadequate or defective repairs.

See, e.g., Barbee, 262 S.W.2d at 123-24 (finding more than twenty items on the insured’s vehicle were repaired improperly or not repaired at all; the court concluded the repairs did not restore the car to its former condition and value); Roberdeau, 231 S.W.2d at 951-52 (finding some repairs made but additional repairs could have restored vehicle to the same or as good condition); see also Cope, 448 S.W.2d at 718 (finding no repairs were made due to parties' disagreement over the correct measure of damages). Other cases address the consequences of an insurer’s inappropriate decision to repair rather than declare the vehicle a total loss.


Context: This interpretation of Section 141(b) comports with how our law has developed. Under the common law, "the voluntary assumption of management responsibility by the directors carried with it a concomitant vested right to serve out the full term for which they were elected unless there was cause for removal...."

Drexler, supra, § 13.01, at 13-2; see Roven v. Cotter, 547 A.2d 603, 608 (Del.Ch.1988) (“At common law a director had a vested right in his position arising from his duties and responsibilities to the corporation.”); see also Campbell v. Loew’s, Inc., 134 A.2d 852, 857 (Del.Ch.1957) (Seitz, C.) (recognizing common law authority of stockholders to remove a director for cause).

"At common law a director had a vested right in his position arising from his duties and responsibilities to the corporation."


Context: We conclude Coleman's evidence was insufficient to show constructive discharge, a hostile work environment, or any adverse employment action; rather, the evidence showed her treatment by supervisors was due to her poor performance.

See Ross v. Douglas County, 234 F.3d 391, 395-96 (8th Cir.2000) (holding prima facie case for hostile work environment includes showing of severe conduct that affected term, condition, or privilege of employment); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156-59 (8th Cir.1999) (holding prima facie case of discrimination includes showing of adverse employment action; constructive discharge could satisfy element of adverse employment action, but there was no constructive discharge where evidence did not support that discrimination, rather than actual performance problems, prompted reprimands and poor evaluations); see also Helfter v. UPS, Inc., 115 F.3d 613, 616 (8th Cir. 1997) (holding conclusory statements in affidavits and deposition testimony, “standing alone, are insufficient to withstand a properly-supported motion for summary judgment”).

holding conclusory statements in affidavits and deposition testimony, "standing alone, are insufficient to withstand a properly-supported motion for summary judgment"


Context: We are unpersuaded by Vonneida's contention that evidence of his 24-year old conviction was unfairly prejudicial. With respect to its age, "[t]he legislative history of Rule 414 reveals that Congress meant its temporal scope to be broad, allowing the court to admit evidence of Rule 414 acts that occurred more than 20 years before trial."

holding redacted 19-year-old conviction for sodomy by forcible compulsion was properly admitted in prosecution for sexual exploitation of a minor to prove defendant's "propensity and proclivity"

United States v. Larson, 112 F.3d 600, 605 (2d Cir.1997) (emphasis added) (affirming admission of victim testimony regarding prior acts of molestation that occurred 16 to 20 years prior to trial); see also Davis, 624 F.3d at 511-12 (holding redacted 19-year-old conviction for sodomy by forcible compulsion was properly admitted in prosecution for sexual exploitation of a minor to prove defendant’s “propensity and proclivity”).


Context: Most circuits have held that in reviewing decisions of plan administrators under the arbitrary and capricious standard, the re-; viewing court may consider only the evidence that the administrators themselves considered.

"[A] district court's review under the arbitrary and capricious standard is limited to the administrative record."

See Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir.1995) (“[A] district court’s review under the arbitrary and capricious standard is limited to the administrative record.”); Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1550 (11th Cir.1994) (requiring courts “to look only to the facts known to the administrator”); Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471-72 (9th Cir.1993) (fearing that examination beyond the administrative record would too easily lead to findings of abuse of discretion, defeating the goal of ERISA to resolve disputes expeditiously); Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 48 n. 8 (3d Cir.1993) (holding that evaluations submitted after the committee’s final decision cannot be considered in determining whether the decision was arbitrary and capricious); Oldenburger v. Central States Southeast & Southwest Areas Teamster Pension Fund, 934 F.2d 171, 174 (8th Cir.1991) (“We limit our review to the evidence that was before a pension fund’s board of trustees when the final decision was made.”); Perry v. Simplicity Eng’g, 900 F.2d 963, 967 (6th Cir.1990) (noting that both de novo and arbitrary and capricious standards of review do “not mandate or permit the consideration of evidence not presented to the administrator”).

allowing district courts to look beyond the administrative record to review the administrator's plan interpretation, but not to review "the historical facts underlying a claim"

But see Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638-42 (5th Cir.1992) (allowing district courts to look beyond the administrative record to review the administrator’s plan interpretation, but not to review “the historical facts underlying a claim”). Nevertheless, Chambers urges us to disregard Sandoval and these other cases for three reasons.


requiring courts "to look only to the facts known to the administrator"


fearing that examination beyond the administrative record would too easily lead to findings of abuse of discretion, defeating the goal of ERISA to resolve disputes expeditiously


holding that evaluations submitted after the committee's final decision cannot be considered in determining whether the decision was arbitrary and capricious


"We limit our review to the evidence that was before a pension fund's board of trustees when the final decision was made."


noting that both de novo and arbitrary and capricious standards of review do "not mandate or permit the consideration of evidence not presented to the administrator"


Context: The Equal Protection Clause of the Fourteenth Amendment originated in the post-Civil War era when Congress purposely intended to resolve lingering racial inequalities from disparate application of state laws; it is an instrument by which the federal government may correct official discrimination at the state, commonwealth, or territorial level.

Yick Wo v. Hopkins, 118 U.S. 356, 369-71, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (opining that the Fourteenth Amendment guarantees equal enjoyment of fundamental liberties and privileges, including the franchise, which is the foundation to all civil rights); see also Harper v. Va. Bd. of Elections, 383 U.S. 663, 665-67, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (invalidating a poll tax as a discriminatory test for wealth which is irrelevant to protecting the integrity of elections). “These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”


Context: Op. at 253 n.4. If discovery reveals that the Greek government knew its revocation would cause losses to investors in this country, then the revocation may constitute "an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere" that "causes a direct effect in the United States," triggering the third exception.

Argentina's rescheduling of payment dates for bonds caused direct effect in United States within third exception where bond payees had designated their accounts in New York as the place of payment, and Argentina made some interest payments into those accounts before announcing that it was rescheduling the payments"

See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1112 (5th Cir.1985) (action against Mexican bank for breach of obligations under certificates of deposit issued to American investors comes within third exception where bank “engaged in a regular course of business conduct” with investors “over a several-year period,” having “called them in the United States, mailed the certificates to them there, and remitted payments through an American correspondent bank”); cf. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (Argentina’s rescheduling of payment dates for bonds caused direct effect in United States within third exception where bond payees had designated their accounts in New York as the place of payment, and Argentina made some interest payments into those accounts before announcing that it was rescheduling the payments”).

action against Mexican bank for breach of obligations under certificates of deposit issued to American investors comes within third exception where bank "engaged in a regular course of business conduct" with investors "over a several-year period," having "called them in the United States, mailed the certificates to them there, and remitted payments through an American correspondent bank"


Context: . We note that even in non-constitutional cases, the admission of the out-of-court statement of a criminal cohort can be harmful error when the statement is the only direct evidence of the defendant's participation in the crime.

co-defendant's statement that Za-rychta directed him repeatedly to shoot victim was probably given great weight by jury when only other evidence of Zarychta's aid or encouragement was receipt for box of ammunition

See, e.g., Zarychta, 961 S.W.2d at 459-60 (co-defendant’s statement that Za-rychta directed him repeatedly to shoot victim was probably given great weight by jury when only other evidence of Zarychta's aid or encouragement was receipt for box of ammunition); see also Cofield v. State, 857 S.W.2d 798, 805 (Tex.App.-Corpus Christi 1993) (statement by Cofield's companion that they had smoked crack cocaine together before police arrived and arrested them was only direct evidence Cofield had possessed cocaine, where paraphernalia was found in Co-field’s car but only companion possessed cocaine), off d, 891 S.W.2d 952 (Tex.Crim.App. 1994).

statement by Cofield's companion that they had smoked crack cocaine together before police arrived and arrested them was only direct evidence Cofield had possessed cocaine, where paraphernalia was found in Co-field's car but only companion possessed cocaine


Context: Coleman says his convictions for the two 1975 armed robberies were consolidated for sentencing because he was sentenced for both robberies on the same day in the same court and received concurrent sentences. These facts, in and of themselves, simply do not suggest that the cases were consolidated for sentencing.

defendant's receiving concurrent sentences for separate offenses does not mean that the cases were consolidated for sentencing

See United States v. Smith, 905 F.2d 1296, 1303 (9th Cir.1990) (defendant’s receiving concurrent sentences for separate offenses does not mean that the cases were consolidated for sentencing); United States v. Jones, 899 F.2d 1097, 1101 (11th Cir.1990) (same); United States v. Flores, 875 F.2d 1110, 1114 (5th Cir.1989) (same).

See also Metcalf, 898 F.2d at 46 (sentencing of two cases on same day does not necessitate finding of consolidation).


Context: The individual voter plaintiffs may be harmed by the issuance of this stay. But we find that this harm does not outweigh the other three factors.

"While we acknowledge that Planned Parenthood has also made a strong showing that their interests would be harmed by staying the injunction, given the State's likely success on the merits, this is not enough, standing alone, to outweigh the other factors."

See Planned Parenthood, 734 F.3d at 419 (“While we acknowledge that Planned Parenthood has also made a strong showing that their interests would be harmed by staying the injunction, given the State’s likely success on the merits, this is not enough, standing alone, to outweigh the other factors.”).

"[T]he right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system."

Cf. Burdick v. Takushi, 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (“[T]he right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system.”).


Context: But Fortress misconstrues the nature of its own activities in Massachusetts by comparing them with the actions of the defendants in the "manipulative purchase" line of cases. In Buccellati and Edberg, the defendants sold their products only on their own websites; they did not place their products into the national stream of commerce through online retailers. Further, the Buccellati and Edberg plaintiffs initiated the defendants' contacts with the forum by seeking out their websites, and in one ease even used a third-party buyer to conceal the true location of the purchaser.

"Jurisdictional discovery also revealed that Defendants' website ... has made only one sale in [the forum] ... to Plaintiffs' New York-based private investigator .... "

See Buccellati, 935 F.Supp.2d at 620 (“Jurisdictional discovery also revealed that Defendants’ website ... has made only one sale in [the forum] ... to Plaintiffs’ New York-based private investigator .... ”); see also Edberg, 17 F.Supp.2d at 107 (noting that the defendant’s contact with the forum was not caused by its “promotion, advertising, or sales activities,” but by the plaintiff hiring a third party to purchase the defendant’s product).

noting that the defendant's contact with the forum was not caused by its "promotion, advertising, or sales activities," but by the plaintiff hiring a third party to purchase the defendant's product


Context: Based on this fact and the plain language of the statute, the Government maintains that Vial is not entitled to file a second or successive SS 2255 motion because, even if Bailey announced a rule of constitutional law, the Court did not explicitly state that the rule was available on collateral review. Vial protests such a literal reading of the statute, arguing that Bailey is available on collateral review pursuant to Supreme Court precedent.

noting that " 'a showing that the factual or legal basis for a claim was not reasonably available' " constitutes cause for failing to raise the claim in a previous proceeding

See Sanders v. United States, 373 U.S. 1, 16-17, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963) (concluding that an intervening change in the law justifies the filing of a § 2255 motion on an issue previously decided); see also McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (noting that “ ‘a showing that the factual or legal basis for a claim was not reasonably available’ ” constitutes cause for failing to raise the claim in a previous proceeding) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)).

concluding that an intervening change in the law justifies the filing of a SS 2255 motion on an issue previously decided


Context: The advanced progress of discovery, the length of time since removal, and the more substantial involvement of the Court tip the balance of interests closer to retention of jurisdiction here than in Thelen. Similar to Thelen, however, is the fact that the state law claims here are departing on a motion to dismiss, not summary judgment.

See id. at *2 (distinguishing voluntary dismissal of claims from a concession of the merits on summary judgment, finding voluntary dismissal weighed in favor of remand) (citing Hansen v. Sioux By-Products, 988 F.Supp. 1255, 1261 (N.D.Iowa 1997) (where plaintiff conceded summary judgment on the federal claim eleven months after removal, court found the resources invested in pre-trial administration justified retaining jurisdiction)); see also Grain Land Coop v. Kar Kim Farms, 199 F.3d 983, 993 (8th Cir.1999) (when the district court has invested substantial resources in ruling on summary judgment, it is not an abuse of discretion for the court to exercise supplemental jurisdiction, even when all federal claims are disposed of before trial) (citing Murray v. Wal-Mart, Inc., 874 F.2d 555, 558 (8th Cir.1989) (a substantial investment of judicial time and resources may justify a district court’s exercise of jurisdiction over state law claims even when all federal claims are dismissed)); cf. Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir.2001) (“the usual course is for the district court to dismiss the state-law claims without prejudice if all federal claims are disposed of on summary judgment.”).

"the usual course is for the district court to dismiss the state-law claims without prejudice if all federal claims are disposed of on summary judgment."


Context: Moreover, that some additional litigation may later arise to enforce an injunction does not itself justify abstaining from deciding a constitutional claim. Any plaintiff who obtains equitable relief under 42 U.S.C. SS 1983 enforcing his constitutional rights against a state official may need to return to court to ensure compliance with the judgment.

See, e.g., Gluth v. Kangas, 951 F.2d 1504 (9th Cir.1991) (upholding procedures established by the district court to ensure compliance with an injunction); cf. Brown v. Plata, — U.S. -, 131 S.Ct. 1910, 1946, 179 L.Ed.2d 969 (2011) (“A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order.”).

"A court that invokes equity's power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order."


Context: Code of Children and Adolescents of Peru art. 74(e). Such patria potestas rights, which Correa received when the Children were born, are recognized as "rights of custody" within the meaning of the Hague Convention.

See Whallon, 230 F.3d at 459 (holding that patria potestas rights under Mexican law are custody rights under the Hague Convention).

Cf. Bader v. Kramer, 445 F.3d 346, 350 (4th Cir.2006) (holding that German law presumptively confers joint custody upon both parents until a court enters a contrary order).


Context: District courts have discretion to treat Rule 12(b)(1) motions as either facial or factual challenges to their subject matter jurisdiction.

"A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction."

See Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) (“As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.”); 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 n.47 (3d ed. 2004); see also Gould Elecs., Inc., 220 F.3d at 176 (“A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court’s subject matter jurisdiction.”).

"As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court."


Context: Section 2255(f) does not define "judgment of conviction" or "final." Nonetheless, we have concluded that when a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires.

Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.2000) (noting that when no direct appeal was taken from the original judgment of conviction, the judgment of conviction became final when the time for filing a direct appeal expired); Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir.2000) (“A conviction ordinarily becomes final when the opportunity for direct appeal of the judgment of conviction has been exhausted.”); cf. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003) (“Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”).

"Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires."


"A conviction ordinarily becomes final when the opportunity for direct appeal of the judgment of conviction has been exhausted."


Context: The district court properly granted summary judgment to defendants Kanalakis and Barrera because Braninburg failed to establish a genuine dispute of material fact as to whether these defendants personally participated in any constitutional violations.

party opposing summary judgment must present "significant probative evidence tending to support its claim that material, triable issues of fact remain"

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (supervisor is liable for constitutional violations of subordinates only if he “participated in or directed the violations, or knew of the violations and failed to act to prevent them”); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (party opposing summary judgment must present “significant probative evidence tending to support its claim that material, triable issues of fact remain”).

supervisor is liable for constitutional violations of subordinates only if he "participated in or directed the violations, or knew of the violations and failed to act to prevent them"


Context: A court can also reduce entries which "are too vague to sufficiently document the hours claimed."

twenty percent reduction in the total number of hours billed was warranted based on record replete with vague entries such as, "Study and Review file," "Telephone call with client," "Letter to Silkey," and "Research"

Kirsch, 148 F.3d at 172 (upholding reduction of 20% for entries such as “letter to court,” “staff conference,” or “work on motion”); see also Trustees of the Bricklayers & Allied Craftworkers Local 5 New York Retirement, Welfare & Training Funds v. Helmer-Cronin Const., Inc., No. 03 Civ. 748(MDF), 2005 WL 3789085 at *5 (S.D.N.Y. Oct.24, 2005) (twenty percent reduction in the total number of hours billed was warranted based on record replete with vague entries such as, “Study and Review file,” “Telephone call with client,” “Letter to Silkey,” and “Research”).

upholding reduction of 20% for entries such as "letter to court," "staff conference," or "work on motion"


Context: In those cases, one party to a transaction violates a duty to the other party when it secretly bribes the latter's agents. Commonly, a seller bribes employees of a buyer in order to ensure that the buyer remains a customer of the seller.

noting that, in light of the statutory purposes, "we can hardly conceive of a duty more clearly implicated than the obligation of recipients not to make side-payments to these inspectors"

See, e.g., JSG Trading II, 235 F.3d at 610-11 (affirming the Secretary’s description of “a duty of produce sellers not to corrupt agents and employees of their buyers”); JSG Trading Corp. v. Dep’t of Agric., 176 F.3d 536, 543 (D.C.Cir.1999) (“JSG Trading I”) (affirming a construction of the implied duty clause to include commercial bribery); Sid Goodman & Co. v. Dep’t of Agric., 945 F.2d 398 (4th Cir.1991) (per curiam) (unpublished table decision), available in 1991 WL 193489, at *3 (accepting as reasonable the Secretary’s construction of the clause as imposing an “implied duty to deal fairly with other members in the industry,” and that such duty is violated by commercial bribery); cf. G & T, 468 F.3d at 97 (noting that, in light of the statutory purposes, “we can hardly conceive of a duty more clearly implicated than the obligation of recipients not to make side-payments to these inspectors”).

affirming the Secretary's description of "a duty of produce sellers not to corrupt agents and employees of their buyers"


affirming a construction of the implied duty clause to include commercial bribery


accepting as reasonable the Secretary's construction of the clause as imposing an "implied duty to deal fairly with other members in the industry," and that such duty is violated by commercial bribery


Context: Under these circumstances, the jury was authorized to conclude that Love was not negligent.

trial court did not err in denying Willis' motion for directed verdict

See also Willis v. Love, 232 Ga. App. 543 (502 SE2d 487) (1998) (trial court did not err in denying Willis’ motion for directed verdict).

See James v. Tyler, 215 Ga. App. 479, 480 (1) (451 SE2d 506) (1994) (in rear-end collision cases, issues of liability are for the jury to decide). Accordingly, Lucas’ claim is without merit.


Context: There is no indicated preference for one course over another. Refusal on the part of defendant to withdraw the plea and proceed to trial does not entitle him or her to specific performance of the original plea agreement.

Tesiero, 584 N.Y.S.2d at 228 (affirming judgment of lower court denying defendant specific performance of original plea deal); see also Walker, 591 N.Y.S.2d at 77 (finding defendant’s refusal to withdraw plea did not entitle him to specific performance of the original plea deal, and holding lower court appropriately gave defendant option to either withdraw plea or accept a one-year jail sentence after it indicated it was no longer willing to impose negotiated sentence in light of its review of presentence probation report and victim impact statement); Pittman, 514 N.Y.S.2d at 88 (holding defendant’s refusal to withdraw plea when afforded opportunity by sentencing court,- which had reviewed pre-sentence report and found terms of plea deal inappropriate, was not entitled to specific performance of original plea); cf. People v. Jenkins, 11 N.Y.3d 282, 869 N.Y.S.2d 370, 898 N.E.2d 553 (2008) (defendant not entitled to specific performance of plea bargain where he failed to uphold his end of deal which required him to provide documentary proof of attendance in drug rehabilitation program); People v. Curdgel, 83 N.Y.2d 862, 611 N.Y.S.2d 827, 634 N.E.2d 199 (1994) (defendant who initially cooperated with prosecution pursuant to plea agreement, but then willfully acted to eliminate his usefulness as a prosecution witness, was. not entitled to specific performance).

finding defendant's refusal to withdraw plea did not entitle him to specific performance of the original plea deal, and holding lower court appropriately gave defendant option to either withdraw plea or accept a one-year jail sentence after it indicated it was no longer willing to impose negotiated sentence in light of its review of presentence probation report and victim impact statement


holding defendant's refusal to withdraw plea when afforded opportunity by sentencing court,- which had reviewed pre-sentence report and found terms of plea deal inappropriate, was not entitled to specific performance of original plea


defendant not entitled to specific performance of plea bargain where he failed to uphold his end of deal which required him to provide documentary proof of attendance in drug rehabilitation program


defendant who initially cooperated with prosecution pursuant to plea agreement, but then willfully acted to eliminate his usefulness as a prosecution witness, was. not entitled to specific performance


Context: Instead, we hold the contract for deed passed sufficient interest in Lot 13 for appellees to have exclusive possession of Lot 13 and the Disputed Area and commence adverse possession of the Disputed Area for their own benefit.

See Graves, 958 S.W.2d at 472 (in a nuisance case, court held that parties possessing property under a contract for deed had sufficient interest in the property to permit an action for nuisance against a third party); see also City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 464 (Tex.1970) (a purchaser in possession pursuant to a contract for deed is entitled to the condemnation award in an eminent domain case).


Context: . Keyes does not make the argument that pretrial screening by a medical review panel violates the constitutional jury trial guarantee because it obstructs a litigant's access to a jury. We observe that' those courts faced with this claim have held that requiring a medical malpractice plaintiff to begin the process of obtaining a final determination of his claim by submitting it to the panel is a permissible interference with the jury trial right.

See, e.g., Woods, 591 F.2d at 1179-80; Eastin, 570 P.2d at 748; St. Vincent Hosp., 404 N.E.2d at 592 (delay in commencement of trial and expense of investigating and marshalling evidence do not alter or change the substantial elements and incidents of jury trial right for either party); Linder v. Smith, 629 P.2d 1187, 1189-90 (Mont.1981) (noting other approved pre-trial procedures, such as mandatory pre-trial conferences and submission of a case to a master, which similarly burden a litigant's attempt to get into court); Strykowski, 261 N.W.2d at 450 (panel review procedure imposes no greater burden than administrative agency proceedings of which would-be litigants are generally required to avail themselves before trial under exhaustion-of-remedies rule); cf. Paro v. Longwood Hosp., 373 Mass. 645, 369 N.E.2d 985, 991 (1977) (upholding requirement that claimant post a bond as a condition for further prosecution if panel determines that no "legitimate question of liability appropriate for judicial inquiry” exists).

upholding requirement that claimant post a bond as a condition for further prosecution if panel determines that no "legitimate question of liability appropriate for judicial inquiry" exists


noting other approved pre-trial procedures, such as mandatory pre-trial conferences and submission of a case to a master, which similarly burden a litigant's attempt to get into court


panel review procedure imposes no greater burden than administrative agency proceedings of which would-be litigants are generally required to avail themselves before trial under exhaustion-of-remedies rule


Context: Moreover, the Nupath partners who have been offered the more favorable settlements by the IRS are not similarly situated to plaintiffs. As defendant correctly argues, once plaintiffs filed their refund action in court, their case was referred to DOJ, and the authority to settle their case shifted from the IRS to the Attorney General, or her delegate.

"Once a tax matter is referred to the [DOJ] only the Attorney General ... may settle the matter."

See also United States v. Forma, 784 F.Supp. 1132, 1139 (S.D.N.Y.1992) (“Once a tax matter is referred to the [DOJ] only the Attorney General ... may settle the matter.”)

settlement decision is "within the discretion of the agency conducting the litigation."

See Bergh v. Department of Transp., 794 F.2d 1575, 1577 (Fed.Cir.1986) (settlement decision is “within the discretion of the agency conducting the litigation.”).


Context: While no court has apparently addressed whether there is a state administrative remedy exhaustion requirement before bringing suit under SS 1983 for violations of the Medicare Act, the Eleventh Circuit has addressed the exhaustion of state administrative remedies in the context of the Medicaid Act and SS 1983 suits. In holding against an exhaustion requirement, the Alacare court rejected the notion that the existence of a federally-mandated state administrative review process was sufficient to evidence Congress' intent that exhaustion of those remedies should be required before permitting a SS 1983 claim.

holding that there is an exhaustion requirement in SS 1983 suits asserting violations of the Medicaid Act

Id. at 967 (emphasis in original). The Alacare court also reasoned that to hold that the mere existence of a state remedial scheme is sufficient to support an exhaustion requirement would eviscerate the general rule established in Patsy and would dramatically narrow the scope of relief available under § 1983. See id. at 968; see also Greenwald v. Axelrod (In re: Greenwald), 48 B.R. 263, 270-71 (S.D.N.Y.1984) (holding no exhaustion requirement in § 1983 suit alleging violations of the Medicaid Act); but see Arden House, Inc. v. Heintz, 612 F.Supp. 81, 85 (D.Conn. 1985) (holding that there is an exhaustion requirement in § 1983 suits asserting violations of the Medicaid Act); St. Joseph Hosp. v. Electronic Data Sys. Corp., 573 F.Supp. 443, 450 (S.D.Tex.1983) (same).

holding no exhaustion requirement in SS 1983 suit alleging violations of the Medicaid Act


Context: When a prisoner seeks "equitable relief that will result in immediate or more speedy release, then habeas is the exclusive federal remedy."

finding that a complaint seeking to alter the "fact or duration" of a prisoner's confinement can only be granted through a habeas corpus proceeding

Monk v. Secretary of the Navy, 793 F.2d 364, 367-68 (D.C.Cir.1986) (“[W]hen a prisoner challenges action other than his underlying conviction, the nature of the relief requested determines whether habeas corpus is the exclusive federal remedy.”); see also Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (finding that a complaint seeking to alter the “fact or duration” of a prisoner’s confinement can only be granted through a habeas corpus proceeding).

"[W]hen a prisoner challenges action other than his underlying conviction, the nature of the relief requested determines whether habeas corpus is the exclusive federal remedy."


Context: The district court properly dismissed McCulloek's action because he did not allege facts suggesting that the defendants knew of and disregarded an excessive risk to his health.

"A supervisor may be liable under SS 1983 only if there exists either (1

See Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.2002) (describing the subjective and objective requirements for a showing of deliberate indifference); see also Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir.2001) (“A supervisor may be liable under § 1983 only if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.”) (internal quotations omitted).


Context: . Although no Pennsylvania precedent directly addresses the definition of "government vehicle" pursuant to section 4524(e)(2)(i), we note that the term has appeared in cases adjudicating disputes under the Motor Vehicle Financial Responsibility Law ("MVFRL"). 75 Pa.C.S. SSSS 1701-99. Both this Court and our Commonwealth Court utilize the term "government vehicle" in those cases to denote government ownership of a vehicle. See Nationwide Assur.

utilizing the phrases "government vehicles," "government-owned vehicles," and "Commonwealth agency vehicles" interchangeably

Co. v. Easley, 960 A.2d 843, 846 n. 5 (Pa.Super.2008) (referring to the "government vehicle exception” of MVFRL that exempts any motor vehicle owned by the federal government) (citing 75 Pa.C.S. § 1703); Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 788 A.2d 955, 961-62 (2001) (utilizing the phrases "government vehicles,” "government-owned vehicles,” and "Commonwealth agency vehicles” interchangeably); see also City of Philadelphia v. Melendez, 156 Pa.Cmwlth. 271, 627 A.2d 234, 237-38 (1993) (utilizing the terms "motor vehicle in possession or control of the local agency,” "government owned vehicle” and "government vehicle” interchangeably).

utilizing the terms "motor vehicle in possession or control of the local agency," "government owned vehicle" and "government vehicle" interchangeably


Context: See Appellants' Reply Br. at 21-22. The physicians disagree and point to similar language found in both amended complaints with respect to HMOs' conspiracy. See Appellee's Br. at 19-20. The district court agreed with the physicians.

"[T]he 'new' allegations differ more in degree than in kind."

See In Re Managed Care Litig., 2003 WL 22410373 *6 (S.D.Fla. Sept. 15, 2003) ("[T]he 'new' allegations differ more in degree than in kind.”); see also Klay v. Humana, Inc., 382 F.3d 1241, 1247 n. 1 (11th Cir.2004) ("[T]he substance of the allegations is the same across all three of the plaintiffs’ complaints.'”).

"[T]he substance of the allegations is the same across all three of the plaintiffs' complaints.'"


Context: (Docket Entry-No. 1). All four patents stem from a senior Canadian Priority Application, but they do not incorporate that Application into either the claim terms or specification. The contents of the Priority Application are intrinsic evidence, like claim language, the specification, or prosecution history, but cannot alone support a particular construction.

affirming the district court's construction of "crystalline" as "Crystal A" "as outlined in the specification" despite the fact that "the Crystal B formulation actually appears in the parent ... application" because "Abbott knew exactly how to describe and claim Crystal B compounds" yet "chose to claim only the A form in the [junior] patent"

See Abbott Labs. v. Sandoz, 566 F.3d 1282, 1289 (Fed.Cir.2009) (affirming the district court’s construction of “crystalline” as “Crystal A” “as outlined in the specification” despite the fact that “the Crystal B formulation actually appears in the parent ... application” because “Abbott knew exactly how to describe and claim Crystal B compounds” yet “chose to claim only the A form in the [junior] patent”); see id. at 1290 (“[T]he rest of the intrinsic evidence, including the prosecution history and the priority [ ] application, evince[d] a clear intention to limit the [junior] patent to Crystal A as defined by the seven PXRD peaks in the specification and in claim 1.”); see also AIA Eng’g Ltd. v. Magotteaux Int’l S/A 657 F.3d 1264, 1279 (Fed.Cir.2011) (noting “that evidence proffered by [the patentee] regarding statements in the specification of one of the European priority applications is, at best, equivocal as to the meaning of’ a disputed claim term and “does not alter the clear import of the claim language, specification, and relevant extrinsic evidence in this case” (citing Abbott Labs., 566 F.3d at 1290)); cf. Pfizer v. Ranbaxy Labs.

noting "that evidence proffered by [the patentee] regarding statements in the specification of one of the European priority applications is, at best, equivocal as to the meaning of' a disputed claim term and "does not alter the clear import of the claim language, specification, and relevant extrinsic evidence in this case" (citing Abbott Labs., 566 F.3d at 1290


Context: There is some authority supporting the Trustee's argument with respect to the first part of the test.

option to terminate pursuant to "adjustment clause" was a right to terminate under UCC test

But cf. In re Owen, 221 B.R. 56, 61 (Bankr.N.D.N.Y.1998) (option to terminate pursuant to “adjustment clause” was a right to terminate under UCC test).

See e.g. In re Taylor, 209 B.R. 482 (Bankr.S.D.Ill.1997) (lease buyout provision did not constitute right to terminate obligation); In re Architectural Millwork of Virginia, Inc., 226 B.R. 551, 555 (Bankr.W.D.Va.1998) (lease agreement similar to the instant case did not permit debtor to terminate obligation).


lease agreement similar to the instant case did not permit debtor to terminate obligation


Context: . The Commonwealth made this argument in the trial court and on brief on appeal. The fact that the trial court concluded appellant consented to the search and, thus, did not reach the probable cause issue does not prevent us from considering that issue on appeal where no further factual findings are necessary.

See Driscoll v. Commonwealth, 14 Va.App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (holding that appellate court may affirm ruling where trial court reached right result for wrong reason, as long as alternate basis for affirmance was presented to trial court and no further factual findings are necessary); see also Hancock v. Commonwealth, 21 Va.App. 466, 469, 465 S.E.2d 138, 140 (1995) (where trial court applied erroneous intent standard in convicting accused for possession of firearm by convicted felon, considering, without discussing authority to do so, whether evidence was sufficient to prove requisite intent and reversing based on holding, as a matter of law, that it did not prove requisite intent).


Context: Entry No. 6.) As such, Rule 4(k)(l)(C) provides an additional basis for this Court to exercise personal jurisdiction over Defendant, to the extent permitted by due process.

exercise of personal jurisdiction pursuant to Rule 4(k)(l)(C) still requires demonstration that defendant has sufficient "minimum contacts" to satisfy traditional due process inquiry

See In re Terrorist Attacks, 349 F.Supp.2d at 806 (exercise of personal jurisdiction pursuant to Rule 4(k)(l)(C) still requires demonstration that defendant has sufficient “minimum contacts” to satisfy traditional due process inquiry); see also Wultz I, 755 F.Supp.2d at 32 (“Nationwide service of process does not dispense with the requirement that an exercise of personal jurisdiction comport with the Due Process Clause.”)

"Nationwide service of process does not dispense with the requirement that an exercise of personal jurisdiction comport with the Due Process Clause."


Context: All of this contradictory case law points out that, regardless of whether a constitutional violation occurred when Turcotte temporarily seized and read Barstow's letter to his attorney, all Defendants are entitled to qualified immunity.

"It is arguable, in light of Wolff, that a reasonable prison official could not believe that clearly marked legal mail, which could not be read by officials when it arrived at the prison, could be read during a random search of a prison cell."

See Schenck v. Edwards, 921 F.Supp. 679, 690 (E.D.Wash.1996) ("The court is not aware of any clearly established law in [the Ninth] [CJircuit which requires the inmate’s presence during an inspection of the legal documents in his cell.”); Proudfoot v. Williams, 803 F.Supp. 1048, 1053 (E.D.Pa.1992) ("The question of reading a prisoner’s outgoing legal mail remains unsettled — neither the Supreme Court nor the Third Circuit has addressed the matter squarely”); cf. Allen v. Rainey, Civ. No. 93-1580-FR, 1994 WL 487936, at *3 (D.Or. Sept.7, 1994) ("It is arguable, in light of Wolff, that a reasonable prison official could not believe that clearly marked legal mail, which could not be read by officials when it arrived at the prison, could be read during a random search of a prison cell.”).

"The court is not aware of any clearly established law in [the Ninth] [CJircuit which requires the inmate's presence during an inspection of the legal documents in his cell."


"The question of reading a prisoner's outgoing legal mail remains unsettled -- neither the Supreme Court nor the Third Circuit has addressed the matter squarely"


Context: The G'i'eenwood Village court held that the trial court was correct in doing so and that it must proceed to apply the provisions contained in the revised statute.

holding legislature's intent to change tax liability retroactively was permissive exercise of legislative power

See Perry v. City of Denver, 27 Colo. 93, 59 P. 747 (1899)(pending annexations are subject to additional procedures of statutes enacted by the General Assembly after initiation of the pending but as yet uncompleted annexation); see also Gen. Tel. Co. v. Johnson, 103 Ill.2d 363, 83 Ill.Dec. 133, 469 N.E.2d 1067 (1984)(holding legislature’s intent to change tax liability retroactively was permissive exercise of legislative power); Schlenz v. Castle, 84 Ill.2d 196, 49 Ill.Dec. 322, 417 N.E.2d 1336 (1981)(rejecting separation of powers challenge where legislature’s curative act did not have effect of setting aside final adjudication); Andresen v. Andresen, 317 Md. 380, 564 A.2d 399, 401 (1989)(affirming dismissal of motion to modify property distribution where final dissolution decree was entered, Congress enacted relevant law and intended retroactive effect, but motion did not allege sufficient facts to set aside final order); Atlantic City Casino Ass’n v. City of Atlantic City, 217 N.J.Super. 277, 525 A.2d 1109(rejecting separation of powers challenge where litigation upon which legislature purportedly intruded was still pending), remanded, 102 N.J. 323, 508 A.2d 203 (1985); Bowen v. Mabry, 154 N.C.App. 734, 572 S.E.2d 809 (2002)(General Assembly has power to amend statute that it believes has been misconstrued by the courts and “undo any perceived undesirable past consequences of misinterpretation of its work product” unless retroactive application impairs vested rights, quoting 82 C.J.S. Statutes § 411, at 568 (1999)); cf. In re Kirchner, 164 Ill.2d 468, 208 Ill.Dec. 268, 649 N.E.2d 324 (1995)(refusing to apply statute that changed final judicial determination of parties’ rights).


rejecting separation of powers challenge where legislature's curative act did not have effect of setting aside final adjudication


affirming dismissal of motion to modify property distribution where final dissolution decree was entered, Congress enacted relevant law and intended retroactive effect, but motion did not allege sufficient facts to set aside final order


rejecting separation of powers challenge where litigation upon which legislature purportedly intruded was still pending


General Assembly has power to amend statute that it believes has been misconstrued by the courts and "undo any perceived undesirable past consequences of misinterpretation of its work product" unless retroactive application impairs vested rights, quoting 82 C.J.S. Statutes SS 411, at 568 (1999


refusing to apply statute that changed final judicial determination of parties' rights


Context: As the president and CEO of the entire Industrial Systems Division, however, Defendant Trotter could potentially be hable for Plaintiffs ultimate termination from the Transmission Leader position. Individual liability under Ohio Revised Code chapter 4112 extends only to an individual's own actions, and therefore, only to direct supervisors or supervisors who played a direct role in making an employment decision.

finding that under Genaro, "only the 'decision maker' of the adverse employment action is liable"

See Genaro, 703 N.E.2d at 787 (“[IJndividual supervisors and managers are accountable for their own discriminatory conduct occurring in the workplace environment.”) (emphasis added); see also Brown v. Worthington Steel, Inc., 211 F.R.D. 320, 327 (S.D.Ohio 2002) (finding that under Genaro, “only the ‘decision maker’ of the adverse employment action is liable”) (quoting Jones v. Kilboume Med. Labs., 162 F.Supp.2d 813, 830 (S.D.Ohio 2000)).

"[IJndividual supervisors and managers are accountable for their own discriminatory conduct occurring in the workplace environment."


Context: The State argues that the court did not have to hear testimony to reach that conclusion because its offer of proof was a sufficient basis on which to conclude that the event actually occurred. "Where the existence of a prior bad act is contested, the trial court should conduct a pretrial hearing so that it can hear the testimony and determine which version is more credible.

"trial court's preliminary finding" that a prior bad act was proved by a preponderance of the evidence will be upheld if supported by substantial evidence (italics ours

State v. Stanton, 68 Wn. App. 855, 865, 845 P.2d 1365 (1993) ("uncharged act must be proved by á preponderance of evidence before it can be admitted under ER 404(b)”); see Benn, 120 Wn.2d at 653 ("trial court’s preliminary finding” that a prior bad act was proved by a preponderance of the evidence will be upheld if supported by substantial evidence (italics ours)).

"uncharged act must be proved by a preponderance of evidence before it can be admitted under ER 404(b)"


Context: It is true that the general rule "appears to assume that the insured or applicant does not have reason to know of the information's materiality apart from whether the insurer makes an inquiry. Such knowledge, combined with knowledge that the insurer is ignorant of the information, generally would impose a duty to disclose." 6 Russ & Segalla, supra, SS 84:2. The general rule, however, is not without exception. As at least one decision in this District has recognized, many state courts allow claims for "[fraudulent concealment ... even without inquiry concerning the concealed material facts by the insurer."

allowing a claim for fraudulent concealment based on omitting the fact that fires had occurred in the plaintiffs' basement several months before applying for insurance, even though "plaintiffs were asked no question with relation to prior fires"

Putnam Res. v. Pateman, 757 F.Supp. 157, 162 n. 1 (D.R.I.1991); see Lighton v. Madison-Onondaga Mut. Fire Ins. Co., 106 A.D.2d 892, 892-93, 483 N.Y.S.2d 515 (N.Y.App.Div.1984) (allowing a claim for fraudulent concealment based on omitting the fact that fires had occurred in the plaintiffs’ basement several months before applying for insurance, even though “plaintiffs were asked no question with relation to prior fires”); Sun Ins. Co. of N.Y. v. Hercules Sec. Unlimited, Inc., 195 A.D.2d 24, 30, 605 N.Y.S.2d 767 (N.Y.App.Div.1993) (affirming judgment on claim for fraudulent concealment even though “the insured ha[d] not been asked” about the concealed fact that the insured planned to steal the insured assets); see also Harrison State Bank v. U.S. Fid. & Guar. Co., 94 Mont. 100, 22 P.2d 1061, 1064 (1933) (stating that “any concealment of a material fact known to a party, increasing the ordinary risk, would be deemed ... fraudulent,” and explaining that the applicant for bank insurance knew of a planned robbery that law enforcement intended to allow in an attempt to catch the criminals).

stating that "any concealment of a material fact known to a party, increasing the ordinary risk, would be deemed ... fraudulent," and explaining that the applicant for bank insurance knew of a planned robbery that law enforcement intended to allow in an attempt to catch the criminals


affirming judgment on claim for fraudulent concealment even though "the insured ha[d] not been asked" about the concealed fact that the insured planned to steal the insured assets


Context: Additionally, it is doubtful that this Court even has the authority to grant petitioner's motion, because to do so would require that it "review the discretionary actions of the Court of Appeals" to determine whether the Second Circuit erred by ignoring the supposedly fraudulent behavior of the Government. The Court has not located any Second Circuit authority addressing the question of whether a district court has the authority to review a decision of the Court of Appeals. However, other courts have answered that question in the negative.

"Absent Supreme Court authority contrary to our decision in a case, a district court cannot entertain, even in a manner properly before it, a petition by a party which in effect seeks to undo our court's resolution of a matter first addressed to and fully and fairly adjudicated by it."

See Feldman v. Henman, 815 F.2d 1318, 1321 (9th Cir.1987) ( “Absent Supreme Court authority contrary to our decision in a case, a district court cannot entertain, even in a manner properly before it, a petition by a party which in effect seeks to undo our court’s resolution of a matter first addressed to and fully and fairly adjudicated by it.”); Page v. United States, 884 F.2d 300, 302 (7th Cir.1989) (“If the court of appeals has actually considered and rejected a claim ... on appeal, that decision binds the district court unless there has been an intervening change in the law.”); Rivera v. United States, 477 F.2d 927, 928 (3rd Cir.1973) (“The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred.... is self-evident.”); see also United States v. Sanders, 142 F.Supp. 638, 641(D.Md.l956) (“[Tjhis court cannot properly vacate a sentence imposed here and affirmed by the Court of Appeals for any alleged or suggested error of the Court of Appeals.”). This Court therefore cannot, and will not, review the discretionary decision of the Second Circuit.

"[Tjhis court cannot properly vacate a sentence imposed here and affirmed by the Court of Appeals for any alleged or suggested error of the Court of Appeals."


"If the court of appeals has actually considered and rejected a claim ... on appeal, that decision binds the district court unless there has been an intervening change in the law."


"The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred.... is self-evident."


Context: Section 3742(a) does, however, grant us jurisdiction over an appeal of a sentence that "(1) was imposed in violation of law; or (2) was imposed as a result of an incorrect application of the sentencing guidelines," even if the alleged error involved a downward departure.

"[A]n appeal from a sentence founded on a mistake of law is within our jurisdiction even if the dispute concerns the fact or extent of departure."

See Eureka Lab., 103 F.3d at 912 (“[A]n appeal from a sentence founded on a mistake of law is within our jurisdiction even if the dispute concerns the fact or extent of departure.”) (quoting United States v. Gomez, 24 F.3d 924, 927 (7th Cir.1994)); see also United States v. Martinez, 905 F.2d 251, 254 (9th Cir.1990) (“[Defendant] does not assert the sentence imposed was in violation of law, involved an incorrect application of the guidelines, [or was based on other] grounds upon which a defendant is expressly authorized to appeal. Absent such challenges we have no basis to review the district court’s downward departure.”) (citation omitted).

"[Defendant] does not assert the sentence imposed was in violation of law, involved an incorrect application of the guidelines, [or was based on other] grounds upon which a defendant is expressly authorized to appeal. Absent such challenges we have no basis to review the district court's downward departure."


Context: The INS argues that these activities are consistent with those of a nonimmigrant visitor for business and we agree. The evidence clearly shows a visitor who spent a sporadic amount of time in the United States until he could establish a permanent residence in this country "at some indefinite time in the possibly distant future." These visits do not qualify as "temporary" and, by making them, Singh abandoned his legal permanent residency in the United States.

See Huang, 19 I. & N. Dec. at 756 (permanent residency relinquished when family lived in Japan while waiting for husband to finish doctoral studies so they could all move to the United States); see also Angeles, 729 F.Supp. at 481 (alien not permitted to spend a month or two annually in the U.S. with the intention of retaining permanent resident status); Kane, 15 I. & N. Dec. at 258 (same).


Context: We have limited the application of Pisa-ni "to the context of unrelated counts."

United States v. Vasquez, 85 F.3d 59, 61 (2d Cir.1996) (remanding for resentencing on remaining narcotics counts after vaca-tur of firearm conviction); see also United States v. Rosario, 386 F.3d 166, 170 (2d Cir.2004) (holding that “in some circumstances, a sentence on one count may be increased after the sentence on a similar or related count has been vacated on appeal”). While Weingarten argues that his counts are unrelated because “related” counts are only those that mandate consecutive sentences, that argument has no support in our case law or in the reasoning of Pisani. Pisani involved a diverse set of crimes based on entirely distinct behavior that were joined as “a matter of trial convenience.” 787 F.2d at 75-76 (noting that campaign-fund mail fraud and tax charges were unrelated to the law-practice mail fraud charges).


Context: It is another matter to find within these jurisdictional provisions the additional requirement that the party possessing the enforceable right be named as plaintiff. Such a requirement is not obvious from the wording of the statutes, and to the extent that it simply represents broader notions of justiciability that inhere in standing doctrine, Delta's status as representative of the co-owners' interests, combined with its allegations of injury in fact to those interests, suffices to pass the minimal test required for invoking the court's jurisdiction. A plaintiff's suit may, of course, be subject to dismissal if the substantive statute on which he relies affords no right to relief to either him or those he represents. But that is properly an issue for determination on the merits.

See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (“[T]he failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.”); see also Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981) (cautioning against dismissal for lack of subject matter jurisdiction when basis of jurisdiction is also an element of cause of action).

"[T]he failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction."


Context: Here, in determining whether to extend asylum relief to spouses, the BIA reasonably considered the general principles underlying the definition of persecution and concluded that a husband is persecuted "when the government forces an abortion on a married couple." ("When the government intervenes in the private affairs of a married couple to force an abortion or sterilization, it persecutes the married couple as an entity."). I see no reason why the BIA could not reasonably conclude that one has suffered harm or injury sufficiently severe to constitute persecution when one's spouse is forced to undergo an abortion or sterilization. Indeed, this determination finds support in the decisions of a number of courts that have explicitly recognized that non-physical harm may support a finding of past persecution in at least some circumstances.

"Persecution may be emotional or psychological, as well as physical."

See Junshao Zhang, 434 F.3d at 1001 (rejecting explicitly the “notion that [a husband] suffers no persecution independent of his wife, as the result of the forcible abortion of his child” and holding that “[although his wife was certainly a very direct victim of China’s population control measures, Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the ability to realize the family that his wife and he had desired, and forever deprived him of the ability to become a parent to that unborn son or daughter with his wife”); see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006) (noting that “[u]n-der the right set of circumstances, a finding of past persecution might rest on a showing of psychological harm” (quotation marks omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.2004) (“Persecution may be emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will be forced to undergo female genital mutilation” because her “fear of ... being forced to witness the pain and suffering of her daughter is well-founded”).

rejecting explicitly the "notion that [a husband] suffers no persecution independent of his wife, as the result of the forcible abortion of his child" and holding that "[although his wife was certainly a very direct victim of China's population control measures, Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the ability to realize the family that his wife and he had desired, and forever deprived him of the ability to become a parent to that unborn son or daughter with his wife"


holding that the applicant was entitled to asylum "based on her fear that her daughter will be forced to undergo female genital mutilation" because her "fear of ... being forced to witness the pain and suffering of her daughter is well-founded"


Context: Thus, Gene almost certainly would have to sell land .or cattle in order to pay Becky's attorneys' fees. Under these circumstances, we hold that Becky .is able to pay her attorneys' fees, and therefore it was an abuse of discretion to order Gene to pay them for her.

holding that a wife's net worth of approximately $62,000 demonstrated her ability to pay her own attorneys' fees, notwithstanding her objection that her assets were illiquid, in the form of home equity and a state retirement account

See Jones v. Jones, 917 So.2d 95, 104 (¶80) (Miss.Ct.App.2Q05) (holding that a wife’s net worth of approximately $62,000 demonstrated her ability to pay her own attorneys’ fees, notwithstanding her objection that her assets were illiquid, in the form of home equity and a state retirement account); see also Seymour v. Seymour, 960 So.2d 513, 520-21 (¶ 18) (Miss.Ct.App.2006) (holding that a wife was able to pay her own Attorneys’ fees because she' had “an investment account of $16,000, which could be liquidated” to pay the fees).

holding that a wife was able to pay her own Attorneys' fees because she' had "an investment account of $16,000, which could be liquidated" to pay the fees


Context: Abonce-Barrera also asserts that the magistrate judge erred in failing to require the production of a list of all the cases on which the informant worked. Abonce-Barrera has failed, however, to show how such a list would be material under Brady.

holding that additional detailed information about a previous unrelated investigation involving an informant could be withheld after balancing the government's interest in insuring the informant's safety

See also United States v. Cutler, 806 F.2d 933, 935 (9th Cir.1986) (holding that additional detailed information about a previous unrelated investigation involving an informant could be withheld after balancing the government’s interest in insuring the informant’s safety).

"Evidence is material for Brady purposes only if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different."

See Kyles v. Whitley, 514 U.S. 419, 434-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Manning, 56 F.3d at 1198 (“Evidence is material for Brady purposes only if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different.”).


Context: The First Amendment protects ideas and the freedom to express them.

Cf. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 608-09, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (no First Amendment right to physical originals of audio tapes where reporters received transcripts of tapes and could communicate contents to public if desired). Kaezynski offers instead practical, forensic considerations for why the originals are more valuable, but no explanation as to how his right to free speech or freedom of expression is impinged by their sale.

the First Amendment "was fashioned to assure unfettered interchange of ideas"

See, e.g., Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (the First Amendment “was fashioned to assure unfettered interchange of ideas”); Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (“free trade in ideas” includes opportunity to persuade); Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (discussing historical importance of freedom of discussion). Kaezynski cites no authority for the proposition that the original pieces of paper on which his ideas were written are independently deserving of constitutional protection.


Context: Here, Nelson challenges the court's decision to depart upward. But we need not consider whether the court properly calculated the guideline range with the upward departure because any error was harmless.

reasoning that the district court stated that it would have imposed the same sentence regardless of its guideline calculations, recognized the advisory nature of the guidelines, stated that the sentence complied with the 18 U.S.C. SS 3553(a

United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir.2006) (explaining that a Guidelines calculation error is harmless, and thus does not require remand, when (1) the record includes evidence that the district court would have reached the same result even if it had decided the Guidelines issue the other way, and (2) the sentence imposed would be reasonable even if the Guidelines issue had been decided the other way); see also United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir.2007) (reasoning that the district court stated that it would have imposed the same sentence regardless of its guideline calculations, recognized the advisory nature of the guidelines, stated that the sentence complied with the 18 U.S.C. § 3553(a) factors, and imposed a sentence within the statutory maximum).


Context: Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Trice.

See United States v. Franik, 687 F.3d 988, 990 (8th Cir.2012) (where defendant does not raise procedural error, court bypasses review and only reviews substantive reasonableness of sentence for abuse of discretion); see also United States v. Lazarski 560 F.3d 731, 733 (8th Cir.2009) (where district court varied downward from Guidelines range, it was “nearly inconceivable” that court abused its discretion in not varying downward further).

where district court varied downward from Guidelines range, it was "nearly inconceivable" that court abused its discretion in not varying downward further


Context: We recognize that disclosure may not always be possible. For example, an unclassified summary may not be possible because, in some cases, the subject matter itself may be classified and cannot be revealed without implicating national security. Depending on the circumstances, OFAC might have a legitimate interest in shielding the materials even from someone with the appropriate security clearance.

noting that disclosure of sensitive information to a limited number of lawyers led to "unauthorized disclosure of military secrets"

See Ott, 827 F.2d at 477 (holding, in a different context, that “Congress has a legitimate interest in authorizing the Attorney General to invoke procedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involved in the surveillance operation in question, whether or not she happens for unrelated reasons to enjoy security clearance”); see also Gen. Dynamics, 181 S.Ct. at 1904 (noting that disclosure of sensitive information to a limited number of lawyers led to “unauthorized disclosure of military secrets”).

holding, in a different context, that "Congress has a legitimate interest in authorizing the Attorney General to invoke procedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involved in the surveillance operation in question, whether or not she happens for unrelated reasons to enjoy security clearance"


Context: The survival of prior case law would not, however, make the otherwise agreed language in the statute superfluous; it would merely narrow its scope. The otherwise agreed in writing language would only apply to cases where no decree has been issued or where the decree declared that the agreement shall survive the decree.

See, e.g., Stone v. Bayley, 75 Wash. 184, 134 P. 820 (1913) (agreement not incorporated into a decree providing child support during the minority of a child does not terminate obligation upon payor's death); In re Marriage of Olsen, 24 Wn. App. 292, 297-98, 600 P.2d 690 (1979) (contract survives divorce decree because the Mexican court decided that it would); cf. Scudder v. Scudder, 55 Wn.2d 454, 460, 348 P.2d 225 (1960) (settlement incorporated in decree requiring that Dr. Scudder support his children during their minority does not survive his death).


contract survives divorce decree because the Mexican court decided that it would


Context: P 20. Still, on appeal, Taylor offers a fleeting argument that we could conclude, as a matter of law, that Kustelski was at least 51% negligent and, therefore, the summary judgment should be upheld on that basis. The summary judgment submissions, however, preclude such a conclusion as a matter of law. They include factual allegations of Taylor's conduct and driving, supported by witnesses and an accident reconstruction ist, that would require a jury's evaluation.

See Dottai v. Altenbach, 19 Wis. 2d 373, 375, 120 N.W2d 41 (1963) ("It is a rare case when summary judgment can be granted in an action grounded on negligence."); see also Bishop v. Johnson, 36 Wis. 2d 64, 68, 152 N.W.2d 887 (1967) ("In the great majority of cases the evidence is such that a jury question on the comparison of the causal negligence is presented."). Material factual issues, including the speeds of the vehicles and Taylor's alleged lane change and possible consumption of alcohol, remain.


Context: Defendant does not disclose the number of pages purchased, nor the price per page. Without these variables -- which are regularly submitted to this Court with bills of costs -- -the Court cannot conclude whether the amounts requested are reasonable.

See Rogers v. Baxter Int’l, Inc., 2011 WL 941188, at *4 (N.D.Ill. Mar. 16, 2011) (denying request for $173,150.00 in costs for expert witness expenses because court could not ascertain from materials provided by prevailing party whether any part of requested amount was compensable under relevant statutes); Highway Commercial Services, Inc. v. Midwest Trailer Repair, Inc., 2011 WL 3159128, at *2 (N.D.Ill. July 26, 2011) (noting that “even as to the unchallenged costs, [the court] must still ensure that each proposed cost is allowed under § 1920, is reasonable, and is necessary to the litigation.”); see also Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964) (“Items proposed by winning parties as costs should always be given careful scrutiny.”); Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir.2008).

"Items proposed by winning parties as costs should always be given careful scrutiny."


noting that "even as to the unchallenged costs, [the court] must still ensure that each proposed cost is allowed under SS 1920, is reasonable, and is necessary to the litigation."


Context: Here, the officers executing the warrant correctly identified the premises to be searched as apartment number 517 (quite possibly recognizing that the incorrect identification of the apartment number as "484" was simply an inadvertent repetition of the building address number). But the Court need not speculate as to how the executing officers correctly chose number 517 over number 484 because the executing officers included the Affiant who submitted the warrant application, which contained the same error as the warrant itself.

upholding validity of search pursuant to warrant that specified wrong apartment number where the executing officer "immediately went to correct apartment" based on his personal knowledge

See United States v. Clement, 747 F.2d 460, 461 (8th Cir.1984) (upholding validity of search pursuant to warrant that specified wrong apartment number where the executing officer “immediately went to correct apartment” based on his personal knowledge).

upholding validity of search pursuant to warrant that specified wrong apartment number where the executing officers "had conducted ex-tensive surveillance of the premises before the warrant was executed, ... had personal knowledge of the premises that they intended to search, and the premises that they intended to search were, in fact searched"

Cf. United States v. Gamboa, 439 F.3d 796, 806 (8th Cir.2006) (upholding validity of search pursuant to warrant that specified wrong apartment number where the executing officers “had conducted ex-tensive surveillance of the premises before the warrant was executed, ... had personal knowledge of the premises that they intended to search, and the premises that they intended to search were, in fact searched”).


Context: We may not, therefore, add terms not present in the easement, as Bluebonnet's and Petro-Guard's conten tion would require. See Am. Mfrs.

Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 161-68 (Tex.2003) (stating, in context of insurance-coverage determination, “we may neither rewrite the parties’ contract nor add to its language”); Helmerich & Payne Int’l Drilling Co. v. Swift Energy Co., 180 S.W.3d 635, 640-42 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (declining to “rewrite” drilling contract or “add to it under the guise of interpretation”); see also Oxford v. Williams Cos., 154 F.Supp.2d 942, 949-50 (E.D.Tex.2001) (memo op.) (holding that language of easement did not support restrictive interpretation proposed by landowner owners of servient estate).

stating, in context of insurance-coverage determination, "we may neither rewrite the parties' contract nor add to its language"


Context: Under our precedent, the district court was not obligated sua sponte to provide appellant with an opportunity to amend her complaint prior to dismissing it with prejudice. See Wagner v. Daewoo Heavy Inds.

Am. Corp., 314 F.3d 541, 542 (11th Cir.2002) (en banc) (“A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.”); see also Long v. Satz, 181 F.3d 1275, 1279-80 (11th Cir.1999) (requiring plaintiff to make by separate motion, setting forth the substance of proposed amendments, a request for leave to amend a complaint); Fed.R.Civ.P. 7(b)(1)(A) (“A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial”). Therefore, if we are to conclude that there was an abuse of discretion by the district court in dismissing any part of First Amended Complaint, we must find that appellant sufficiently remedied the procedural errors in the amended complaint such that it was unreasonable for the district court to dismiss that count.

"A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court."


Context: R., Vol. 1 pt. 2 at 290. Nothing more was required. As we have said, "[A]n in camera hearing is the appropriate procedural vehicle for determining whether the informant's testimony would lend significant credence to [the] defense."

Gaines v. Hess, 662 F.2d 1364, 1369 (10th Cir.1981) (informant had arranged drug sale between defendant and police officer and was present at the sale); see United States v. Martinez, 487 F.2d 973, 977 (10th Cir.1973); United States v. Cortese, 614 F.2d 914, 922 (3d Cir.1980) (denying release to defense attorney of notes of in camera testimony because “disclosure to attorneys is likely to compromise the policy behind the informer privilege”).

denying release to defense attorney of notes of in camera testimony because "disclosure to attorneys is likely to compromise the policy behind the informer privilege"


Context: But, by the same token, an expert witness "may in any event be required to disclose the underlying facts or data on cross-examination." Fed.R.Evid. 705. The need to permit a criminal defendant the means to expose the basis of expert evidence against him is particularly strong.

noting the possibility that "the introduction of expert testimony with no basis could ... be so lacking in reliability, and so prejudicial, as to deny a defendant a fair trial"

See Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 296, 88 L.Ed.2d 15 (1985) (noting the possibility that “the introduction of expert testimony with no basis could ... be so lacking in reliability, and so prejudicial, as to deny a defendant a fair trial”); United States v. Williams, 447 F.2d 1285, 1290 (5th Cir.1971) (en banc) (stating that introduction of expert opinion without opportunity to cross-examine author as to bases of opinion would infringe confrontation clause rights of defendant), cert. denied, 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231 (1972); 3 Weinstein’s Evidence Tf 703[04]. Rational use of expert evidence in the courtroom, however, demands that defense testimory be equally open to scrutiny by the government.

holding that civil defendant had the right to cross-examine plaintiffs expert psychological witness about plaintiffs juvenile record, in part because examination of this record formed part of the basis for expert's testimony

Cf. District of Columbia v. Cooper, 483 A.2d 317, 322-23 (D.C.1984) (holding that civil defendant had the right to cross-examine plaintiffs expert psychological witness about plaintiffs juvenile record, in part because examination of this record formed part of the basis for expert’s testimony).


stating that introduction of expert opinion without opportunity to cross-examine author as to bases of opinion would infringe confrontation clause rights of defendant


Context: A movant meets the "need" requirement of Rule 35(a) by showing that- the requested examination will produce some relevant evidence that is not available from other sources. Accordingly, several courts have refused to order physical or mental examinations where the movant could obtain the desired information from other sources.

See, e.g., Pearson, 178 F.R.D. at 582 (denying an examination where the movant could obtain copies of relevant records); Marroni v. Matey, 82 F.R.D. 371, 372 (E.D.Pa.1979) (denying an examination where the movant had not established that the information was unavailable from less intrusive methods); Hughes v. Groves, 47 F.R.D. 52, 57 (W.D.Mo.1969) (stating that the discovery of medical reports may deprive the movant of “good cause” for an examination); Petition of Trinidad Corp., 238 F.Supp. 928, 935 (E.D.Va.1965) (stating that the discovery of medical records may deprive the movant of the right to thereafter seek an examination); Martin v. Tindell, 98 So.2d 473, 475 (Fla.1957) (stating that although the denial of a Rule 35 motion might be an abuse of discretion where the defendant does not have access to the reports of either the hospital or the physician, there was no abuse of discretion in denying the motion where the defendant had such access), cert. denied, 355 U.S. 959, 78 S.Ct. 545, 2 L.Ed.2d 534 (1958); cf. Lahr, 164 F.R.D. at 200-01 (ordering an examination where the defendant demonstrated that the existing medical evidence was inadequate to evaluate the employee’s mental condition and the defendant’s psychologist averred that a mental examination was necessary to evaluate the employee’s emotional state); Eckman v. University of Rhode Island, 160 F.R.D. 431, 434 (D.R.I.1995) (ordering an examination where the movant established that the severity of the injury would play a central role and that the examination would result neither in duplication of prior examinations nor in cumulative or invasive procedures).

ordering an examination where the defendant demonstrated that the existing medical evidence was inadequate to evaluate the employee's mental condition and the defendant's psychologist averred that a mental examination was necessary to evaluate the employee's emotional state


ordering an examination where the movant established that the severity of the injury would play a central role and that the examination would result neither in duplication of prior examinations nor in cumulative or invasive procedures


But see Anson v. Fickel, 110 F.R.D. 184, 186 (N.D.Ind.1986) (finding good cause for an examination even though the movant had access to the plaintiffs medical records).


denying an examination where the movant had not established that the information was unavailable from less intrusive methods


stating that the discovery of medical reports may deprive the movant of "good cause" for an examination


stating that the discovery of medical records may deprive the movant of the right to thereafter seek an examination


stating that although the denial of a Rule 35 motion might be an abuse of discretion where the defendant does not have access to the reports of either the hospital or the physician, there was no abuse of discretion in denying the motion where the defendant had such access


Context: Although the standard is rigorous, as is the case with claims of selective prosecution, this threshold showing to obtain a discovery order is less than that required to establish a prima facie claim of vindictive prosecution.

See Valencia-Alvarez, 101 P.3d at 1116 (discovery standard for selective prosecution claim is less than prima facie case of selective enforcement); cf. United States v. Alameh, 341 F.3d 167, 174 (2d Cir.2003) (discovery for selective prosecution is lesser standard than that for the merits).


Context: Not every violation of a statute or regulation, nor the failure to comply with a congressional request for reports and internal approvals, renders a contract void or invalid -- particularly after it has been fully performed. Indeed, contracts between the government and a private party have been sustained even when statutes and regulations relating to the procurement or award process have been violated.

E. Walters, 576 F.2d at 367 (“the fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable”); see Walsh v. Schlecht, 429 U.S. 401, 408, 97 S.Ct. 679, 685, 50 L.Ed.2d 641 (1977) (requiring preservation of the validity of contracts' that are not plainly illegal); United States v. New York & Porto Rico S.S. Co., 239 U.S. 88, 92, 36 S.Ct. 41, 42, 60 L.Ed. 161 (1915) (when government did not comply with formal requirements, contract not illegal and recovery permitted upon quantum vale- bat when performed) (citing United States v. R.P. Andrews & Co., 207 U.S. 229, 243, 28 S.Ct. 100, 105, 52 L.Ed. 185 (1907)); Triton Educational Corp. v. United States, 217 Ct. Cl. 266, 578 F.2d 1356, 1361 (1978) (the fact that the contracting officer may have disregarded a directive of the ASPR does not ordinarily render the contract a nullity); Ocean Tech., Inc. v. United States, 19 Cl.Ct. 288, 294 (1990) (“Performance having been fully completed, holding the obligation to pay unenforceable is not a position favored in this circuit.”).

"the fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable"


when government did not comply with formal requirements, contract not illegal and recovery permitted upon quantum vale- bat when performed


the fact that the contracting officer may have disregarded a directive of the ASPR does not ordinarily render the contract a nullity


Context: We therefore conclude that the warrant failed to describe with particularity the evidence sought and, more specifically, to link that evidence to the criminal activity supported by probable cause. As a result, the warrant violated the Fourth Amendment's proscription against general searches.

noting that the subject warrant, when viewed by itself, was impermissibly broad because it described "neither the precise items to be seized nor the possible crimes involved"

See Bianco, 998 F.2d at 1116 (noting that the subject warrant, when viewed by itself, was impermissibly broad because it described “neither the precise items to be seized nor the possible crimes involved”); see also United States v. Burgess, 576 F.3d 1078, 1091 (10th Cir.2009) (“If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment’s particularity requirement.”).

"If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment's particularity requirement."