Context: Montero's complaint raised four claims, two of which alleged Jones Act negligence, one of which alleged unseaworthiness, and one of which asserted a cause of action for maintenance and cure. But for Montero's service on the vessel, none of those claims would have been viable.

holding that claims arising under the Jones Act and allegations of "unseaworthiness" and "maintenance and cure" "are dependent on [the plaintiffs] status as a seaman employed by the cruise line and the rights that she derives from that employment status"

See Doe, 657 F.3d at 1220-21 (holding that claims arising under the Jones Act and allegations of “unseaworthiness” and “maintenance and cure” “are dependent on [the plaintiffs] status as a seaman employed by the cruise line and the rights that she derives from that employment status”); see also O’Boyle v. United States, 993 F.2d 211, 213 (11th Cir.1993) (“[I]n order to recover damages under the Jones Act, [a plaintiff] must have the status of a seaman.”); Hurst v. Pilings & Structures, Inc., 896 F.2d 504, 505 (11th Cir.1990) (“The Jones Act permits a seaman injured in the course of employment to bring an action against his employer for damages.”); Offshore Co. v. Robison, 266 F.2d 769, 781 (5th Cir.1959) (“The admiralty doctrine of absolute liability for unseaworthiness is based on protection of seamen who sign articles for a voyage and are then under the absolute control of a master with power to order seamen to do the ship’s work in any weather, under any conditions, using such equipment as may be furnished by the shipowner.”); Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1122-23 (11th Cir.1995) (“Maintenance and cure is a remedy with roots in the medieval sea codes; it is a remedy designed to protect seamen from the perils of living and working at sea.”). Because none of Montero’s claims would be viable if he had not served as an employee on one of Carnival’s cruise ships, this dispute arises out of his service on the vessel and falls within the scope of the arbitration clause.

"[I]n order to recover damages under the Jones Act, [a plaintiff] must have the status of a seaman."


"The Jones Act permits a seaman injured in the course of employment to bring an action against his employer for damages."


"The admiralty doctrine of absolute liability for unseaworthiness is based on protection of seamen who sign articles for a voyage and are then under the absolute control of a master with power to order seamen to do the ship's work in any weather, under any conditions, using such equipment as may be furnished by the shipowner."


Context: We begin by acknowledging that the Due Process Clause generally provides constitutional protection for parental rights. Indeed, the Supreme Court has stated that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."

"It is not implausible to think that rights invoked here -- the right to refuse a medical exam and the parent's right to control the upbringing, including the medical care, of a child -- fall within [the Due Process Clause's] sphere of protected liberty."

See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th Cir. 2003) (“It is not implausible to think that rights invoked here — the right to refuse a medical exam and the parent’s right to control the upbringing, including the medical care, of a child — fall within [the Due Process Clause’s] sphere of protected liberty.”).

'We express no opinion on whether such a right [to direct a child's medical care] might exist within the context of general familial rights."

Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Furthermore, although we have never specifically recognized or defined the scope of a parent’s right to direct her child’s medical care, see Roska v. Peterson, 328 F.3d 1230, 1247 n. 14 (10th Cir.2003) (‘We express no opinion on whether such a right [to direct a child’s medical care] might exist within the context of general familial rights.”), we do not doubt that a parent’s general right to make decisions concerning the care of her child includes, to some extent, a more specific right to make decisions about the child’s medical care.


Context: The Globe also argues that it has a "common law right of access" to the documents submitted to the court for its ruling on the discovery motions. There is a long-standing presumption in the common law that the public may inspect judicial records.

trial court's "eminently reasonable action" unquestionably lawful "[i]n the absence of some overriding constitutional command to provide access"

Nixon v. Warner Communications, Inc., 435 U.S. at 599, 98 S.Ct. at 1312; In re Reporters Committee for Freedom of the Press, 773 F.2d at 1340 (trial court’s “eminently reasonable action” unquestionably lawful “[i]n the absence of some overriding constitutional command to provide access”); cf. McCoy v. Providence Journal Co., 190 F.2d at 765 (“[traditionally, courts have exercised the power to impound their records when circumstances warranted such action”).

"[traditionally, courts have exercised the power to impound their records when circumstances warranted such action"


Context: The trial court record fails to establish how Juror 016's marital or parental status would have had any bearing on her ability to serve as a juror in a case involving prosecution for crack cocaine possession, and the prosecutor failed to offer any such explanation. Further, the record shows that the prosecutor did not strike Juror 015, a white juror who possessed the same objective characteristics as Juror 016: both were single, employed females with no children who responded to the court's questions in the same manner, thereby revealing the pretextual nature of this justification.

"Peremptory challenges cannot be lawful ly exercised against potential jurors of one gender unless potential jurors of another gender with comparable characteristics are also challenged."

See United States v. Alanis, 335 F.3d 965, 969 (9th Cir.2003) (“Peremptory challenges cannot be lawful ly exercised against potential jurors of one gender unless potential jurors of another gender with comparable characteristics are also challenged.”); Lewis, 321 F.3d at 832-33 (“[A] comparative analysis of D.F. with empaneled jurors reveals that a finding of pretext was warranted.”); McClain, 217 F.3d at 1221-22 (holding that where a non-black juror with no prior jury experience was empaneled, the proffered reason for striking a black juror for lack of jury experience was not genuine and therefore was pretextual); cf. Miller-El, 537 U.S. 322, 123 S.Ct. at 1043, 154 L.Ed.2d 931 (noting the fact that “three of the State’s proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged” showed that the strikes “might have been selective and based on racial considerations”).

noting the fact that "three of the State's proffered race-neutral rationales for striking African-American jurors pertained just as well to some white jurors who were not challenged" showed that the strikes "might have been selective and based on racial considerations"


"[A] comparative analysis of D.F. with empaneled jurors reveals that a finding of pretext was warranted."


holding that where a non-black juror with no prior jury experience was empaneled, the proffered reason for striking a black juror for lack of jury experience was not genuine and therefore was pretextual


Context: They are invested with large discretion to model their judgments to fit the exigencies of the particular case."). Moreover, the cost of additional procedures and the details of their implementation are matters peculiarly suited to the experience of the district court and the knowledge of the parties.

noting that a district court has "broad equitable discretion to apportion remedial costs" in desegregation cases

See Fuentes, 407 U.S. at 97 n. 33, 92 S.Ct. 1983 (“Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing .... ”); cf. United States v. City of Yonkers, 197 F.3d 41, 57 (2d Cir.1999) (noting that a district court has “broad equitable discretion to apportion remedial costs” in desegregation cases).

"Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing .... "


Context: . The appellant's assignment of error challenges only the validity of the initial seizure and does not independently contest what happened afterward. Additionally, to the extent that he attempts in the argument portion of his brief to contest the officer's act of ordering him to return to his vehicle, this argument is without merit.

holding that it is "reasonable ... that a police officer at the scene of ... [an] investigation will not let people move around in ways that could jeopardize his safety" and discussing the various ways an officer may limit such movement

See, e.g., Alston v. Commonwealth, 40 Va.App. 728, 733-35, 741-43, 581 S.E.2d 245, 248, 252-53 (2003) (holding that officers detaining a driver who parked and exited his car quickly as they approached in their patrol vehicle did not violate his Fourth Amendment rights by requiring him to "get back in his car before questioning him”); see also Brendlin v. California, 551 U.S. 249, 258, 127 S.Ct. 2400, 2407, 168 L.Ed.2d 132 (2007) (holding that it is "reasonable ... that a police officer at the scene of ... [an] investigation will not let people move around in ways that could jeopardize his safety” and discussing the various ways an officer may limit such movement).

holding that officers detaining a driver who parked and exited his car quickly as they approached in their patrol vehicle did not violate his Fourth Amendment rights by requiring him to "get back in his car before questioning him"


Context: We review de novo Washington's claim that the sentencing court improperly penalized him for invoking his constitutional right against self-incrimination.

reviewing de novo claim sentence was result of "judicial vindictiveness"

See State v. Iowa Dist. Ct., 801 N.W.2d 518, 517 (Iowa 2011) (reviewing evidence de novo on claimed violation of Fifth Amendment); see also State v. Harrington, 805 N.W.2d 391, 393 (Iowa 2011) (reviewing de novo claim sentence was result of “judicial vindictiveness”).


Context: The question of whether the State can constitutionally require appellant to register is central to the review of his conviction, because the existence of a legal duty to register is a necessary element of failing to register under CP 2010 SS 11-721. Section 11-721 expressly states that sex offenders must provide accurate information and notice "as required" by "this subtitle" and various sections therein.

holding that one essential element of the crime of "failing to notify the appropriate sheriff of a sex offender's change of address" is that "the defendant is a 'person required ... to register' "

See United States v. Gould, 568 F.3d 459, 470 (4th Cir.2009) (“As noted above, the elements of a SORNA failure to register offense ... are that the defendant (1) was required to register....”), cert. denied, 559 U.S. 974, 130 S.Ct. 1686, 176 L.Ed.2d 186 (2010); see also State v. Abshire, 363 N.C. 322, 677 S.E.2d 444, 449 (2009) (holding that one essential element of the crime of “failing to notify the appropriate sheriff of a sex offender’s change of address” is that “the defendant is a ‘person required ... to register’ ”).

"As noted above, the elements of a SORNA failure to register offense ... are that the defendant (1


Context: The main concern with permitting the Juvenile Court to charge juveniles in CHONS proceedings is "bootstrapping," which occurs when a CHONS juvenile is elevated to delinquent status by virtue of the failure to comply with CHINS conditions (status offenses). See Rothgerber, The Bootstrapping of Status Offenders: A Vicious Practice, 1 Ky. Children's Rights J. 1, 3 (1991). Jurisdictions which have recognized the inherent power of contempt generally have limited that power to circumstances when all less restrictive options have failed in order to prevent bootstrapping.

See, e.g., L.A.M. v. State, 547 P.2d 827 (Alaska 1976); In re Michael G., 44 Cal. 3d 283 (1988); In re J.E.S., 817 P.2d 508 (Colo. 1991); G.S. v. State, 709 So. 2d 122 (Fla. Dist. Ct. App. 1998) (statute provides that juveniles may be held in contempt and placed in secure detention as permissible alternative); In re G.B., 88 Ill. 2d 36 (1981), cert. denied, 456 U.S. 963 (1982); In re B.L., 688 N.E.2d 1311 (Ind. Ct. App. 1997); State ex rel. L.E.A. v. Hammergren, 294 N.W.2d 705 (Minn. 1980); In re M.S., 73 N.J. 238 (1977); In re Jones, 59 N.C. App. 547 (1982); In re Darlene C., 278 S.C. 664 (1983); In re D.L.D., 110 Wis. 2d 168 (1983).

statute restricting use of contempt for truancy to second or subsequent offenses is proper legislative restriction of court's inherent contempt power

But see In re Aaron D., 214 Wis. 2d 56 (Ct. App. 1997) (statute restricting use of contempt for truancy to second or subsequent offenses is proper legislative restriction of court’s inherent contempt power).


contempt power in child protection cases is beyond court's discretion because it is inconsistent with statute and policy to decriminalize status offenses

Cf. In re Ann M., 309 Md. 564 (1987) (contempt power in child protection cases is beyond court’s discretion because it is inconsistent with statute and policy to decriminalize status offenses).


Context: In any event, we do not view the language of section 4-9-620 as dearly authorizing the "definite term" to extend beyond the terms of the outgoing council members. Therefore, it does not fall within Newman's exception to the prohibition against binding successor governing bodies.

"Newman allows an exception, however, where the enabling legislation dearly authorizes the local governing body to make a contract extending beyond its members' own terms." (emphasis added

See Cowart II, 324 S.C. at 241, 478 S.E.2d at 838 (“Newman allows an exception, however, where the enabling legislation dearly authorizes the local governing body to make a contract extending beyond its members’ own terms.” (emphasis added)); see also 16 Jade St., LLC v. R. Design Const. Co., 398 S.C. 338, 343, 728 S.E.2d 448, 450 (2012), reh’g granted (May 7, 2012) (holding that if a statute is in derogation of a common law right, it must be strictly construed and not extended in application beyond clear legislative intent); Doe v. Marion, 361 S.C. 463, 473, 605 S.E.2d 556, 561 (Ct.App.2004), aff'd, 373 S.C. 390, 645 S.E.2d 245 (2007) (“[A]ny legislation [that] is in derogation of common law must be strictly construed and not extended in application beyond clear legislative intent.”); id.


"[A]ny legislation [that] is in derogation of common law must be strictly construed and not extended in application beyond clear legislative intent."


Context: Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint contain a short and plain statement of the claims demonstrating that the pleader is entitled to relief.- The Court notes that there is not an abundance of precedent substantively analyzing the adequacy of pleading that data was in electronic storage for purposes of the SCA. However, the courts that have addressed the issue, albeit obliquely, have sustained claims containing somewhat vague allegations regarding electronic storage.

finding plaintiff adequately pled a violation of the SCA where plaintiff alleged that defendant "accessed [plaintiffs] protected computer and, without authorization, obtained an electronic communication ... while it was in electronic storage"

See Devine, 729 F.Supp.2d at 1028 (“[w]here, as here, a plaintiff pleads that it stores electronic communications on its own systems, and that a defendant intentionally and without authorization got hold of those stored communications through the plaintiffs electronic facilities, the plaintiff states a claim under § 2701 of the SCA.”); see also Bloomington-Normal Seating Comp., Inc. v. Albritton, No. 09-1073, 2009 WL 1329123, at *4 (C.D.Ill. May 13, 2009) (finding plaintiff adequately pled a violation of the SCA where plaintiff alleged that defendant “accessed [plaintiffs] protected computer and, without authorization, obtained an electronic communication ... while it was in electronic storage”) (internal quotation marks omitted).

"[w]here, as here, a plaintiff pleads that it stores electronic communications on its own systems, and that a defendant intentionally and without authorization got hold of those stored communications through the plaintiffs electronic facilities, the plaintiff states a claim under SS 2701 of the SCA."


Context: For example, the Supreme Court has held that the crimes of receiving a firearm and possessing a firearm, although listed in different statutes, constitute the same crime for double jeopardy purposes. Howev er, the court has also held that the commission of a substantive crime and conspiracy to commit that crime are different offenses for double jeopardy.

But see Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)(holding. that conviction of and punishment for both the underlying predicate offense and continuing criminal enterprise does not violate double jeopardy).

See also United States v. Avery, 128 F.3d 966, 971-72 (6th Cir.1997)(holding that convictions for the crimes of conspiracy and continuing criminal enterprise violate double jeopardy).


Context: The family court was required to weigh the probative value of Arakawa's threatening statements against the potential for prejudice, but was not required to enter written findings if the weighing was adequate.

See United States v. Sangrey, 586 F.2d 1312 (9th Cir.1978) (refused to require a recitation of Rule 403 formula on the record as a prerequisite to a Rule 404(b) admission, if it was clear from the record that an adequate weighing had been made); see also State v. Pinero, 70 Haw. 509, 518, 778 P.2d 704, 711 (1989) (overturned Rule 404(b) admission where record did not indicate a weighing had been made).


Context: In Yellow, the District of Kansas confronted nearly the same lack-of-process issue presently before this court. The court held that "[s]o long as the defect in removal procedure does not involve a lack of federal subject matter jurisdiction, there is no reason why either State or Federal courts, or the parties, should be subject to the burdens of shuttling a case between two courts that each have subject matter jurisdiction."

defendant's failure to file notice of removal within the thirty-day period necessitated remand upon plaintiffs motion

Id. at 1217; see Huffman, 194 F.3d at 1077-79 (defendant’s failure to file notice of removal within the thirty-day period necessitated remand upon plaintiffs motion); see also Cornwall v. Robinson, 654 F.2d 685, 686-87 (10th Cir.1981) (finding that remand was appropriate when the notice was defective because a co-defendant had not joined the notice of removal). Last, the court found that the sole objective sought by Congress when it amended the removal statutes was to force the parties to raise objections promptly so procedural defects cannot later be used to prejudice the other party in court. Yellow, 406 F.Supp.2d at 1219. The defendant in Yellow, like the defendants here, failed to attach process to its notice of removal. Id. at 1214. In denying remand, the court stated that the failure to attach process was inadvertent and trivial and “did not unduly burden the court or reflect the complete failure to follow the removal procedure that typically leads to remand orders....


Context: The question before this Court is whether non-signatories to a CBA can invoke SS 301 preemption as a defense to a plaintiffs state law claims. Several courts have held that they can.

holding that plaintiffs state law claim against a non-signatory, to the CBA was preempted by SS 301

See also Golden v. Kelsey-Hayes Co., 878 F.Supp. 1054, 1056-57 (E.D.Mich.1995) (holding that plaintiffs state law claim against a non-signatory, to the CBA was preempted by § 301). Plaintiff has cited to no authority to the contrary.

"section 301 can preempt claims against non-signatories to a collective bargaining agreement"

See Covenant Coal, 977 F.2d at 899-900; Dashields v. Robertson, No. 99-1124, 2000 WL 564024, at *2 n. 8 (4th Cir. May 10, 2000) (“section 301 can preempt claims against non-signatories to a collective bargaining agreement”); Mullins v. International Union of Operating Eng’rs Local No. 77, 214 F.Supp.2d 655, 668 (E.D.Va.2002)(holding that § 301 preempts state claims against non-signatories where interpretation of the collective bargaining agreement is required for resolution).


holding that SS 301 preempts state claims against non-signatories where interpretation of the collective bargaining agreement is required for resolution


Context: We find defendant waived any challenge to the amended trial information by failing to object to the amendment and by consenting to it. Defendant waived any objection to the trial information by failing to raise it earlier pursuant to Iowa Rule of Criminal Procedure 10(2)(b) (defenses and objections based on defects in the information must be raised before trial).

See State v. Hobson, 284 N.W.2d 239, 241 (Iowa 1979) (objection that information was signed by assistant attorney general rather than county attorney was waived where not raised within time limitations of rule 10(2)(b)); State v. Fortunski, 200 Iowa 406, 407-08, 204 N.W. 401, 401 (1925) (objections to defects in trial information were waived by defendant’s failure, prior to plea, to move to set aside information); cf. State v. Japone, 202 Iowa 450, 456, 209 N.W. 468, 471 (1926) (where the trial is conducted as though the amendment requested had been made, the objection that there was no formal amendment to an information will be deemed waived).


objections to defects in trial information were waived by defendant's failure, prior to plea, to move to set aside information


Context: It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." PROC. art. 37.07(3)(a) (Vernon Supp. 1994).

explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive

Pursuant to § 311.005(13), we established that the list following “including” in Article 37.07(3)(a) of the Texas Code of Criminal Procedure was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature’s use of the term “including” in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to “the prior criminal record of the defendant, his general reputation and his character”).

holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"


Context: JPMorgan's delay in seeking injunctive relief has neither disadvantaged Plaintiffs nor altered the outcome of this proceeding.

finding that the delay in seeking the injunction had not disadvantaged the other party's interests

See RoDa Drilling Co., 552 F.3d at 1212 (finding that the delay in seeking the injunction had not disadvantaged the other party’s interests); see also Kan. Health Care Ass’n, Inc., 31 F.3d at 1543-44 (finding that the delay in that instance did not alter the outcome of the proceedings).


Context: First, the test in Colorado for whether a plaintiff has standing to challenge overbreadth is similar to the test for over-breadth itself. Second, the Colorado doctrine of standing to challenge overbreadth has become more complex than the overbreadth doctrine.

See also New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) ("we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected") (emphasis added).

reserving facial over-breadth challenges to "those defendants whose speech is at the fringes of that activity which the statute is designed to regulate. Those defendants whose speech is central to the interests which the statute seeks to protect and is clearly of a type regulated by the statute in question, cannot attack the statute as overbroad. They must demonstrate that the statute is unconstitutional as applied to them."

Compare People v. Weeks, 197 Colo. 175, 179, 591 P.2d 91, 94 (1979) (reserving facial over-breadth challenges to "those defendants whose speech is at the fringes of that activity which the statute is designed to regulate. Those defendants whose speech is central to the interests which the statute seeks to protect and is clearly of a type regulated by the statute in question, cannot attack the statute as overbroad. They must demonstrate that the statute is unconstitutional as applied to them.”) (citing Broadrick; Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975)); People v. McBurney, 750 P.2d 916, 918 (Colo.1988) (quoting Weeks, 197 Colo, at 179, 591 P.2d at 94); People v. Bridges, 620 P.2d 1, 5 (Colo.1980) (quoting Weeks, 197 Colo. at 179, 591 P.2d at 94) with People v. 735 East Colfax, Inc., 697 P.2d 348, 356 n. 11 (Colo.1985) (arguing that Weeks and Bridges may not be consistent with the holdings in Broadrick and Bolles); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982, 986 n. 5 (Colo.1981) (arguing that Bridges and Weeks may not be consistent with Broadrick and Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), as well as with Bolles).


Context: Furthermore, Plaintiff is clearly the "prevailing party" in this case. The Court granted Plaintiff summary judgment, found him disabled, and ordered the award of social security benefits.

finding that a "material alteration" of the parties occurs when the plaintiff becomes entitled to enforce a judgment

See also id. at 113, 113 S.Ct. 566 (finding that a “material alteration” of the parties occurs when the plaintiff becomes entitled to enforce a judgment).

"[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."

See Farrar v. Hobby, 506 U.S. 103, 111-112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”).


Context: Nor had they received an anonymous report suggesting a need for emergency action. Fernandes had not given police evasive answers or implausible explanations of his conduct.

See Whren, 517 U.S. at 813, 116 S.Ct. 1769 (police stop for a traffic violation can lead to a search for evidence of far more serious illegal activity).

Compare Devenpeck v. Alford, 543 U.S. 146, 155-156, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (individual suspected of impersonating a police officer gave inconsistent and implausible explanations for car modifications, a police radio scanner, and a pair of handcuffs). Finally, the detectives did not observe any offense being committed, even one of a minor or technical nature, that would justify a stop and arrest.


Context: Supp. SJ at 13-18. As a matter of law, however, when a tenant "merely retains the keys to the premises," the tenant does not become a holdover tenant. See Restatement (Second) of Prop.: Landlord & Tenant SS 14.2, Reporter's Note to Section 14.2, Note 6 (1977). If a tenant retains the keys to the premises, the court must examine the circumstances in their totality, looking to other factors to determine if the tenant should be deemed a holdover tenant.

See Hoopes v. Prudential Ins. Co., 48 Ill.App.3d 146, 6 Ill.Dec. 167, 362 N.E.2d 802, 805 (Ct.1977) (holding that even though the tenant retained the keys, the tenant was not a holdover tenant because the tenant provided the landlord with notice he was moving out and the tenant had actually moved out); see also Four “S” Alliance, Inc. v. Am. Nat’l Bank & Trust Co., 104 Ill.App.3d 636, 60 Ill.Dec. 314, 432 N.E.2d 1213, 1217-18 (Ct.1982) (holding that the tenant was not a holdover tenant, despite retaining keys, because the tenant recognized the termination of the tenancy, relinquished possession of the premises and the landlord was able to gain access to the property); Brennan v. City of New York, 80 A.D. 251, 253, 80 N.Y.S. 247 (N.Y.App.Div.1903) (holding that where the landlord was aware the tenant had moved out, a tenant who attached a lock to the door and accidentally retained the keys to the lock was not a holdover tenant).


holding that where the landlord was aware the tenant had moved out, a tenant who attached a lock to the door and accidentally retained the keys to the lock was not a holdover tenant


Context: [P 10] This Court has also recognized that city police officers have jurisdiction to stop vehicles and arrest individuals outside of their geographical jurisdiction when responding to requests from another law enforcement agency for aid and assistance.

holding that although officer's observation and stop of the defendant's vehicle occurred outside of the officer's geographical jurisdiction, the officer still had jurisdiction where the officer was requested by a state trooper to stop the suspect's vehicle

See State v. Graven, 530 N.W.2d 328, 330 (N.D.1995) (holding that although officer’s observation and stop of the defendant’s vehicle occurred outside of the officer’s geographical jurisdiction, the officer still had jurisdiction where the officer was requested by a state trooper to stop the suspect’s vehicle).

See also N.D.C.C. § 44-08-20(3) (stating, “Peace officers employed by a law enforcement agency within the state have the power of a peace officer ... [w]hen responding to requests from other law enforcement agencies or officers for aid and assistance.”); Mead v. North Dakota Dep’t of Transp., 1998 ND App 2, ¶ 12, 581 N.W.2d 145 (holding peace officer who responded to a request from another law enforcement agency for assistance had authority to complete the investigation and make an arrest). There is no evidence Officer O’Donnell requested authorization to make an extra-territorial stop.


Context: P 28. The trial court made no findings as to whether Howe and Lalime were negligent in their preparation of the deeds, whether this negligence was a proximate cause of the errors in the deeds, and whether and to what extent Therrien's actions contributed to these errors. Therefore, we must reverse and remand the Paragraph 7 portion of the liability determination to allow the court to make the appropriate factual findings.

See Crawford v. Johnson, 489 S.E.2d 552, 555 (Ga. Ct. App. 1997) (upholding summary judgment on claim for contribution or indemnity against attorney to the extent that plaintiffs liability was based on his own fraud and willful conversion, but remanding on other parts of claim that may have been caused by attorney's actions); see also Carr v. Peerless Ins. Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998) (“Summary judgment is inappropriate if there is a disputed issue of material fact.”); Berlin Dev. Assocs. v. Dep’t of Soc. Welfare, 142 Vt. 107, 112, 453 A.2d 397, 400-01 (1982) (recognizing propriety of granting partial summary judgment pursuant to V.R.C.P. 56(d) as method for dealing with complex litigation).

"Summary judgment is inappropriate if there is a disputed issue of material fact."


recognizing propriety of granting partial summary judgment pursuant to V.R.C.P. 56(d) as method for dealing with complex litigation


Context: In contrast, Texas and Missouri courts have rejected the nondelegable duty doctrine in connection with care provided by emergency room physicians.

Baptist Mem’l Hosp. System v. Sampson, 969 S.W.2d 945, 949 (Tex.1998) (finding it unnecessary to adopt nondelegable duty doctrine for malpractice by emergency room physicians because the patient may sue the negligent physician, and sue the hospital for violation of any duties owed directly to patients); Kelly v. St Luke’s Hospital of Kansas City, 826 S.W.2d 391 (Mo.Ct.App.1992) (declining to apply nondelegable duty because it was not in statutes or regulations, and practice of medicine in emergency room is not an inherently dangerous activity); see also Estates of Milliron v. Francke, 243 Mont. 200, 793 P.2d 824, 827 (1990) (refusing to apply nondelegable duty doctrine to hold hospital liable for the negligent acts of a radiologist, an independent contractor).


declining to apply nondelegable duty because it was not in statutes or regulations, and practice of medicine in emergency room is not an inherently dangerous activity


Context: There is nothing, however, about that disclosure that is any more incriminating or revealing than what could be gleaned from the activation of a pen register or from physical surveillance. Moreover, outside of the home it is doubtful that the tracking of a cell phone has any Fourth Amendment implication whatsoever.

See Karo, 468 U.S. at 713-720, 104 S.Ct. 3296 (distinguishing the unlawful warrantless monitoring of beeper signals that disclose information about a private dwelling from information that could be obtained from public observation); United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (no warrant is required when law enforcement monitors the signals of a concealed beeper transported along a public highway); cf. Smith v. Maryland, 442 U.S. 735, 744-745, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (a phone subscriber has no reasonable expectation of privacy in the numbers he or she dials through telephone company switching equipment).


no warrant is required when law enforcement monitors the signals of a concealed beeper transported along a public highway


Context: The district court properly dismissed the action because Davis did not complete the Nevada Department of Corrections prison grievance process prior to filing suit.

holding that "proper exhaustion" under SS 1997e(a) is mandatory and requires adherence to administrative procedural rules

See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also Griffin v. Arpaio, 557 F.3d 1117, 1120-21 (9th Cir.2009) (concluding that inmate grievance cannot serve to exhaust administrative remedies where it fails to “ ‘alert[ ] the prison to the nature of the wrong for which redress is sought’ ”) (citation omitted).

concluding that inmate grievance cannot serve to exhaust administrative remedies where it fails to " 'alert[ ] the prison to the nature of the wrong for which redress is sought' "


Context: Rather, Walsh asked the court to keep Good Stuff in the case based on a negligence theory of liability, which the court ultimately rejected based on the economic-loss rule. In short, with respect to Good Stuff, Walsh made the tactical decision to abandon his contractual claims and instead rely on a negligence claim of liability. He now seeks to backtrack from that strategy by claiming on appeal that the trial court erred in not addressing his ratification theory -- even though he pointedly did not challenge the trial court's ruling below in his motion to clarify. On this record, we decline to consider the argument.

See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983) (stating that party who fails to object to trial court ruling and proceeds to trial cannot later claim error in ruling on appeal); cf. Pinewood Manor, Inc. v. Vt. Agency of Transp., 164 Vt. 312, 320, 668 A.2d 653, 659 (1995) (stating that party sufficiently apprised trial court of its claim of error and adequately preserved the claim for review on appeal by filing motion to amend).


Context: Before the Government is put to its burden of showing that an improper contact by an outsider with the jury is harmless, however, a defendant must first establish that an ex parte communication occurred.

See Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984)(holding that the defendant bears the burden of proving outside contact with the jury); see also United States v. Wilson, 715 F.2d 1164, 1172 (7th Cir.1983)(holding that while “private communications between jurors and others are presumptively prejudicial[,][t]here can be no prejudice ,.. in the absence of any such communication.”); see also United States v. Heater, 63 F.3d 311, 321 (4th Cir.1995)(holding that the defendant bears the initial burden of demonstrating that the improper juror contact occurred, and only if the contact is established must the Government demonstrate absence of prejudice). The moving defendant must meet this burden by a preponderance of the evidence.

holding that while "private communications between jurors and others are presumptively prejudicial[,][t]here can be no prejudice ,.. in the absence of any such communication."


holding that the defendant bears the initial burden of demonstrating that the improper juror contact occurred, and only if the contact is established must the Government demonstrate absence of prejudice


holding that the defendant must show that "improper communication of extrinsic information had likely occurred."

United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991); see also United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.1991)(holding that the defendant must show that “improper communication of extrinsic information had likely occurred.”); see also United States v. Cousins, 842 F.2d 1245, 1247 (11th C3r.l988)(holding that a defendant must make a “colorable showing” that an ex parte communication occurred).


holding that a defendant must make a "colorable showing" that an ex parte communication occurred


Context: Although the Miller court did not determine whether the detention of the defendant, i.e., the Terry stop, was valid, it did determine that the extraterritorial officers' investigation did not violate the provisions of the Connecticut constitution. We further note that the decision in Miller is consistent with other decisions by Connecticut courts that have found that an officer's extraterritorial conduct did not violate the provisions of the United States constitution and the Connecticut constitution.

See, e.g., State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986) (Brookfield police officer investigated parked car in neighboring town of Bridgewater and defendant was arrested by state police, after investigation by Brookfield police officers, for crimes of criminal possession of cocaine and possession of cocaine with intent to sell); see also State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993) (Connecticut police officer may obtain evidence outside this state after lawful arrest in Connecticut); State v. Pierce, supra, 67 Conn. App. 634; State v. Andrews, 33 Conn. App. 590, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).


Context: The court concludes that the 180-day requirement in 29 C.F.R. SS 1613.281(b) is better viewed as a condition precedent rather than as a jurisdictional prerequisite.

Cf Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983) (holding that the receipt of a right-to-sue letter in a Title VII claim is a condition precedent rather than a jurisdictional prerequisite); see also Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th Cir.1989) (leaves open the question of whether a right-to-sue letter is a jurisdictional prerequisite or a condition precedent).


Context: Similarly, even where parties to a contract expressly characterize the contrac tual relationship as a trust, courts will look to the substance of the relationship rather than to the language chosen to express it, to determine whether a fiduciary relationship exists. Thus, Justice Cardozo observed, "It is not enough that by the very act of wrongdoing out of which the debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto."

"trust receipt," evidencing security for a transaction consisting of borrowing and lending money did not give rise to a fiduciary relationship so as to bar discharge of debt in bankruptcy

See also Bloomingdale v. Dreher, 31 F.2d 93 (3d Cir.1929) (“trust receipt,” evidencing security for a transaction consisting of borrowing and lending money did not give rise to a fiduciary relationship so as to bar discharge of debt in bankruptcy); In re Miles, 5 B.R. 458 (Bkrtcy.E.D.Va.1980) (where the “magic words,” “in trust” did not suffice to bring a financing agreement with a security interest in all the debtor’s inventory, equipment and assets within the purview of a fiduciary relationship as contemplated by 11 U.S.C. § 523(a)(4)).

David v. Aetna Acceptance Co., 293 U.S. 328, at 333, 55 S.Ct. 151, at 153, 79 L.Ed. 393 (1934) (holding that a mortgagor in possession is not a fiduciary of the mortgagee within the meaning of the Bankruptcy Act, even though the mortgagor has obligated himself to keep the security intact).


where the "magic words," "in trust" did not suffice to bring a financing agreement with a security interest in all the debtor's inventory, equipment and assets within the purview of a fiduciary relationship as contemplated by 11 U.S.C. SS 523(a


Context: We find that the one book rule does not violate the Ex Post Facto Clause as applied to a series of grouped offenses like Vidal's. In so holding, we make explicit what has long been implicit in the case law of this circuit.

"We conclude that the one-book rule set forth in SS 1B1.11(b

United States v. Kumar, 617 F.3d 612, 626-28 (2d Cir.2010) (“We conclude that the one-book rule set forth in § 1B1.11(b)(3) does not violate the Ex Post Facto clause when applied to the sentencing of offenses committed both before and after the publication of a revised version of the Guidelines.”) (emphasis omitted); United States v. Duane, 533 F.3d 441, 449 (6th Cir.2008) (“[Wjhere, as here, offenses grouped together for sentencing purposes were committed before and after an amended version of the Guidelines went into effect, the use of the amended version of the Guidelines does not violate the Ex Post Facto Clause.”); United States v. Sullivan, 255 F.3d 1256, 1262-63 (10th Cir.2001) (same); United States v. Vivit, 214 F.3d 908, 918-19 (7th Cir.2000) (“[Wje believe that the enactment of the grouping rules provides fair notice such that the application of §§ lBl.ll(b)(3) and 3D1.2 does not violate the Ex Post Facto Clause.”); United States v. Lewis, 235 F.3d 215, 218 (4th Cir.2000) (“[I]t was not § 1B1.11(b)(3) that disadvantaged Lewis, but rather her decision to commit further acts of tax evasion after the effective date of the 1993 guidelines.”); United States v. Kimler, 167 F.3d 889, 893-95 (5th Cir.1999) (“[A] defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group.”); United States v. Bailey, 123 F.3d 1381, 1404-07 (11th Cir.1997) (same); United States v. Cooper, 35 F.3d 1248, 1250-53 (8th Cir.1994), vacated, 514 U.S. 1094, 115 S.Ct. 1820, 131 L.Ed.2d 742 (1995), reinstated, 63 F.3d 761, 762 (8th Cir.1995) (per curiam) (same).

But see United States v. Ortland, 109 F.3d 539, 546-47 (9th Cir.1997) (finding ex post facto violation where district court applied revised Guidelines to all five mail fraud counts, only one of which involved conduct committed after the amendment).


"[Wjhere, as here, offenses grouped together for sentencing purposes were committed before and after an amended version of the Guidelines went into effect, the use of the amended version of the Guidelines does not violate the Ex Post Facto Clause."


"[Wje believe that the enactment of the grouping rules provides fair notice such that the application of SSSS lBl.ll(b


"[A] defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group."


Context: In this case, CCS Fitness appears to have argued from the start that its "reciprocating member" ought to carry its ordinary meaning and that the scope of this ordinary meaning encompasses the multi-component, curved structure used by the accused exercise machines.

"That an appellant's arguments had been ineptly presented to a trial court does not in itself preclude a reversal by this court if the record unequivocally establishes that the appealed judgment resulted from clear and reversible legal error."

See Interactive Gift Express, 256 F.3d at 1347, 59 USPQ2d at 1419; cf. Senmed, Inc. v. Richardr-Allan Med. Indus., Inc., 888 F.2d 815, 818, 12 USPQ2d 1508, 1511 (Fed.Cir.1989) (“That an appellant’s arguments had been ineptly presented to a trial court does not in itself preclude a reversal by this court if the record unequivocally establishes that the appealed judgment resulted from clear and reversible legal error.”).

e.g., by adding a discussion about "Alternatives A and B"

See Interactive Gift Express, 256 F.3d at 1347, 59 USPQ2d at 1419. Indeed, the district court itself indicated that CCS Fitness focused on this same argument during summary judgment, which further shows that neither Life Fitness nor the district court lacked notice or an opportunity to address the arguments now presented on appeal. See Finnigan Corp., 180 F.3d at 1362-63, 51 USPQ2d at 1007. That CCS Fitness may have elaborated upon the argument it initially made to the district court (e.g., by adding a discussion about “Alternatives A and B”) does not undermine this conclusion.


Context: Nor has Codding-ton's counsel done so on appeal. Quite to the contrary and to his credit, he candidly acknowledges that no case law supports the requirement of a written waiver. Br. for Appellee at 48. And Supreme Court precedent regarding the standard for effective assistance of counsel has long resisted such unyielding rules in this area.

"We ... reject a bright-line rule that counsel must always consult with the defendant regarding an appeal."

See Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules.”); see also Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (“We ... reject a bright-line rule that counsel must always consult with the defendant regarding an appeal.”).

"Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules."


Context: The diseovery rule applies on a categorical basis to injuries that are both inherently undiscoverable and objectively verifiable. When applicable, the discovery rule "defers the accrual of the cause of action until the injury was or could have been reasonably discovered."

Shell Oil Co., 356 S.W.3d at 929-30. As we have observed, “Texas courts have refused to apply the discovery rule to claims arising out of probate proceedings in most instances ... even in the face of allegations of fraud.” Little, 943 S.W.2d at 420 (declining to apply the discovery rule to inheritance claims of adopted children); see Frost Nat’l Bank, 315 S.W.3d at 497 (“[W]e hold that the discovery rule does not apply to ... bill of review claims to set aside probate judgments”).

"[W]e hold that the discovery rule does not apply to ... bill of review claims to set aside probate judgments"


Context: To address this inequity, Congress passed the Retirement Equity Act of 1984 ("REA"), Pub.L. The REA amended ERISA to recognize an express exception to the broad anti-alienation provisions where a QDRO exists. 29 U.S.C. SS 1056(d)(3)(A). The purpose of the REA was "primarily to safeguard the financial security of widows and divorcees."

stating that " 'primary focus'alienation of plan benefits for spouses seeking enforcement of domestic support orders."

Ablamis, 937 F.2d at 1453; Mack- ey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 838-89, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (stating that “ ‘primary focus’alienation of plan benefits for spouses seeking enforcement of domestic support orders.”); see also In re Gendreau, 122 F.3d 815, 817 (9th Cir.1997) (same); Metropolitan Life v. Wheaton, 42 F.3d 1080, 1083 (7th Cir.1994) (“The draftsmen of the Retirement Equity Act were concerned with the financial security of the spouses and other survivors of employees who died enrolled in ERISA plans.”).

"The draftsmen of the Retirement Equity Act were concerned with the financial security of the spouses and other survivors of employees who died enrolled in ERISA plans."


Context: The question that remains is what level of "nexus," "bond," "link," or "connection" is necessary. We conclude that a claim is "based upon" events in the United States if those events establish a legal element of the claim.

stating, "In determining whether the commercial activities exception applies, the courts focus only on those specific acts that form the basis of the suit"

See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1109 (5th Cir.1985) (stating that “the emphasis should be on the elements of the cause of action itself” in determining jurisdiction under the Immunities Act); Gilson v. Republic of Ireland, 682 F.2d 1022, 1027 n. 22 (D.C.Cir.1982) (stating that jurisdiction would be present if the plaintiff could show conduct in the United States that would be “an element of the cause of action under whatever law governs his claims”); see also Joseph v. Office of the Consulate General, 830 F.2d 1018,1023 (,9th Cir.1987) (stating, “In determining whether the commercial activities exception applies, the courts focus only on those specific acts that form the basis of the suit”) (emphasis original), cert. denied 485 U.S. 905,108 S.Ct. 1077, 99 L.Ed.2d 236 (1988).

stating that "the emphasis should be on the elements of the cause of action itself" in determining jurisdiction under the Immunities Act


stating that jurisdiction would be present if the plaintiff could show conduct in the United States that would be "an element of the cause of action under whatever law governs his claims"


Context: Whether or not a defendant waived an error is a mixed question of law and fact, requiring review of factual findings for abuse of discretion and de novo review of legal conclusions. On the other hand, a party may waive an alleged error during trial, for example, by expressly stating that the party is not arguing about it.

See Beeks, 224 F.3d at 747. Similarly, numerous courts, including the Eighth Circuit Court of Appeals, have held, in criminal and habeas cases, that a party waives an issue for post-trial relief by failing to brief that issue or failing to do so adequately. See, e.g., Sweet v. Delo, 125 F.3d 1144, 1159 (8th Cir.1997) (a habeas petitioner “waived [a] claim by failing to argue it with any specificity whatsoever”), cert, denied sub nom. Sweet v. Bowersox, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998); United States v. Bonilla-Mungia, 422 F.3d 316, 319 & n. 1 (5th Cir.2005) (citing cases from the Fifth Circuit and other circuits in which the court held that the government had waived an argument by failing to brief it post-trial); see also Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th Cir.2005) (habeas petitioners waived an issue by failing to brief it adequately, where their entire argument consisted of a case citation, without explanation of how the cited decision should apply to their case, and they failed to mention that the opinion they cited had been overruled); Ramirez v. Debs-Elias, 407 F.3d 444, 447 & n. 3 (1st Cir.2005) (to avoid waiver, a party must brief an issue in more than a “perfunctory manner,” citing United States v. Bongiomo, 106 F.3d 1027, 1034 (1st Cir.1997)).

a habeas petitioner "waived [a] claim by failing to argue it with any specificity whatsoever"


Context: Supp. Opp'n, at 17), there is no evidence that Asbury expressed this intention to MBUSA at or near the time it executed the Acknowledgment. The email is also irrelevant and not competent extrinsic evidence because, although intent determines the meaning of a contract, Cal. Civ. Code SSSS 1636, 1638, California recognizes the objective theory of contracts, under which "[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation."

"It is the outward expression of the agreement, rather than a party's unexpressed intention, which the court will enforce."

Berman v. Bromberg, 56 Cal.App.4th 936, 948, 65 Cal.Rptr.2d 777 (1997) (citations and quotes omitted); Winet, 4 Cal.App.4th at 1166 n. 3, 6 Cal.Rptr.2d 554 (observing that evidence of subjective intent is not “competent extrinsic evidence, because evidence of undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language”); see also id. at 1166, 6 Cal.Rptr.2d 554 (“It is the outward expression of the agreement, rather than a party’s unexpressed intention, which the court will enforce.”); Founding Members, 109 Cal.App.4th at 956, 135 Cal.Rptr.2d 505 (“The parties’ undisclosed intent or understanding is irrelevant to contract interpretation.”)

observing that evidence of subjective intent is not "competent extrinsic evidence, because evidence of undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language"


"The parties' undisclosed intent or understanding is irrelevant to contract interpretation."


Context: We agreed with the referee that this was a selfish motive. We expressly noted that but for the significant mitigation in that case, the sanction would have been disbarment.

Id. at 561 (citing Fla. Bar v. Smith, 650 So.2d 980, 981-82 (Fla.1995) (suspending an attorney for three years for tax evasion and other misconduct where the attorney had underre-ported his income due to financial pressures and an inability to pay the full tax owed, but recognizing that the Court will not “hesitate[] to disbar attorneys who knowingly and willfully engage in the felonious conduct of filing or assisting in filing fraudulent income tax returns”); Fla. Bar v. Nedick, 603 So.2d 502, 503 (Fla.1992) (disbarring an attorney based on a conviction for attempting to evade or defeat tax in violation of federal law)); see also Fla. Bar v. Weed, 559 So.2d 1094, 1096 (Fla. 1990) (suspending an attorney for three years for, among other things, failing to file income tax returns for four years, and recognizing that a failure to file tax returns amounts to engaging in illegal conduct involving moral turpitude); Fla. Bar v. Hosner, 536 So.2d 188, 188 (Fla.1989) (disbarring an attorney after he was convicted of mail fraud and felony charges of assisting in the preparation of false income tax returns).


disbarring an attorney after he was convicted of mail fraud and felony charges of assisting in the preparation of false income tax returns


Context: The purpose of including such a certification on the form is to provide a "record" that the warnings were given, as "[ajbsent a record that the court provided the advisement required by [SS 29D], the defendant shall be presumed not to have received the required advisement." G.

notation on docket that defendant advised of "alien rights" constituted sufficient "record" that SS 29D warnings administered

L. c. 278, § 29D. See Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999) (notation on docket that defendant advised of “alien rights” constituted sufficient “record” that § 29D warnings administered).

notation on docket that guilty plea accepted "after hearing," combined with evidence that "standard colloquy" included alien warnings, constituted sufficient "record" that warnings given

See also Commonwealth v. Pryce, 429 Mass. 556, 557-558 (1999) (notation on docket that guilty plea accepted “after hearing,” combined with evidence that “standard colloquy” included alien warnings, constituted sufficient “record” that warnings given).


Context: In determining whether a sentence violates the "vertical proportionality" requirement, "[t]he relevant comparison for purposes of Article I, section 16, is between the actual sentence imposed for the defendant's offense and the maximum sentence allowed by law for the greater offense."

concluding that a penalty was unconstitutionally disproportionate where the defendant's "acts in committing sexual abuse in the second degree necessarily [were] less severe than the same acts would have been if [the] defendant's victims had been younger," but the penalty for the defendant's crimes was "greater than the potential penalty for the same acts against younger victims"

State v. Barajas, 254 Or App 106, 111, 292 P3d 636 (2012), rev den, 353 Or 747 (2013) (internal quotation marks and brackets omitted); see State v. Dobash, 210 Or App 145, 147, 149 P3d 1235 (2006) (determining whether the imposition of a sentence for a lesser offense is greater than that available for a more serious offense “requires a comparison between the actual sentence imposed and the maximum sentence allowable by law for the greater offense” (internal quotation marks and brackets omitted)); Koch, 169 Or App at 227 (“Under Article I, section 16, we compare the actual sentence imposed to the maximum sentence allowed by law for the greater offense to evaluate a disproportionality challenge.”); cf. State v. Simonson, 243 Or App 535, 541-42, 259 P3d 962 (2011), rev den, 353 Or 788 (2013) (concluding that a penalty was unconstitutionally disproportionate where the defendant’s “acts in committing sexual abuse in the second degree necessarily [were] less severe than the same acts would have been if [the] defendant’s victims had been younger,” but the penalty for the defendant’s crimes was “greater than the potential penalty for the same acts against younger victims”).

"Under Article I, section 16, we compare the actual sentence imposed to the maximum sentence allowed by law for the greater offense to evaluate a disproportionality challenge."


Context: . The family court found the prenuptial agreement was valid and enforceable, and Wife does not appeal that ruling.

See Hardee v. Hardee, 355 S.C. 382, 389, 585 S.E.2d 501, 504 (2003) (stating that when determining whether a prenuptial agreement should be enforced, a court must consider “(1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?"); see also Holler v. Holler, 364 S.C. 256, 270, 612 S.E.2d 469, 477 (2005) (finding the family court possessed jurisdiction to determine whether the premarital agreement was valid and enforceable).

stating that when determining whether a prenuptial agreement should be enforced, a court must consider "(1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts? (2


stating that when determining whether a prenuptial agreement should be enforced, a court must consider "(1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3


Context: We conclude that the appeal waiver is enforceable and applicable to the issue raised in this appeal, based in part on Storm's own statements at his change-of-plea hearing.

noting that a defendant's representations made during a plea hearing are presumed to be true

See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (reviewing de novo the validity and applicability of an appeal waiver); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.) (en banc) (discussing enforcement of appeal waivers), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003); see also Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (noting that a defendant’s representations made during a plea hearing are presumed to be true).


Context: Further, the cases suggest that the owner maintains an ongoing responsibility to provide maintenance and cure despite the government's provision of free medical care. If the owner, for example, discovers that a seaman is not receiving proper care at a public facility the owner is obligated to pay for his treatment elsewhere.

1B Benedict on Admiralty § 49, at 4-47 (7th ed. 1983); see also Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477, 482 (5th Cir. 1981) (seaman entitled to private care where Public Health Service Hospital was unsuccessful in treating back injury); Keiser v. American President Lines, Ltd., 384 F.Supp. 554 (S.D.N.Y.1974) (shipowner required to reimburse seaman for private medical care where Public Health Service failed to diagnose seaman’s injury); Williams v. United States, 133 F.Supp. 319 (E.D.Va.), aff'd, 228 F.2d 129 (4th Cir.1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499 (1956) (owner would be responsible for moving seaman to different .mental hospital if he were notified that care at state facility was inadequate; dictum); cf. Diaz v. Gulf Oil Corp., 237 F.Supp. 261 (S.D.N.Y.1965) (where Public Health Service hospital too far away, seaman entitled to emergency private hospitalization).


shipowner required to reimburse seaman for private medical care where Public Health Service failed to diagnose seaman's injury


Context: The answer is clear. Edwards and its progeny teach that once the right to counsel has been invoked "subsequent incriminating statements made without [the defendant's] attorney present [violate] the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution."

Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103 S.Ct. 2830, 2833, 77 L.Ed.2d 405 (1983) (emphasis added); See Shea v. Louisiana, 470 U.S. 51, 52, 105 S.Ct. 1065, 1066, 84 L.Ed.2d 38 (1985) (interrogation subsequent to a request for counsel violates Fifth and Fourteenth Amendments).

See also Minnick, 111 S.Ct. at 489 (valid waiver cannot be established by showing that defendant responded to further questions).


Context: In this case, we have before the court not a mere standard form UCC statement, but several documents from which the FDIC urge us to find "evidence of an agreement". As pointed out by the FDIC, the composite document rule is the rule in most circuits which have addressed this question.

some grant language is necessary to "create or provide security"

Contra Shelton v. Erwin, 472 F.2d 1118 (10th Cir.1973) (some grant language is necessary to “create or provide security”).

Matter of Miller, 545 F.2d 916 (5th Cir.1977); Matter of Numeric Corp., 485 F.2d 1328 (1st Cir.1973); Matter of Bolinger Corporation, 614 F.2d 924 (3rd Cir.1980) (a well reasoned opinion which surveys and attempts to reconcile the existing law on the subject); Matter of Wambach, 484 F.2d 572 (7th Cir.1973); In re Amex Protein Development Corp., 504 F.2d 1056 (9th Cir.1974).


Context: The state court's journal entry for the plea hearing simply states that Thornton pleaded guilty to Count II of the information: burglary, in violation of Kan. Stat. Ann. SS 21-3715 (1992); the entry for the sentencing hearing adds nothing substantive to the journal entry for the plea hearing. To the extent these are "comparable judicial records," they are unable to provide the necessary information to determine whether Thornton pleaded guilty to generic burglary.

including "comparable judi cial records" as documents to be utilized in determining whether a conviction qualifies under the ACCA

See Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (including “comparable judi cial records” as documents to be utilized in determining whether a conviction qualifies under the ACCA); see also Forrest, 611 F.3d at 913 (holding that the district court did not err in finding the record sufficient to conclude prior conviction qualified as a violent felony for purposes of the ACCA, as the evidence was sufficient to conclude the criminal action charged in one court was the basis for a judgment against the defendant in a different court).


Context: Appellants first argue that the District Court wrongly dismissed their claim alleging that IBEW and Local 5 infringed their union rights under the Labor Management Reporting and Disclosure Act (LMRDA) by denying them the equal rights and privileges guaranteed by 29 U.S.C. SS 411. However, SS 411 only guarantees rights to union "members." When a union's constitution gives the local union the discretion to accept or deny membership to applicants, unsuccessful applicants have not fulfilled the requirements for membership, and thus are not members of the local union.

"The mere application for membership, which is subject to approval as prescribed by the Unions' constitution, does not constitute membership or result in any vested right."

See Bullock v. Sweeney, 644 F.Supp. 507, 509 (N.D.Cal.1986) (“The mere application for membership, which is subject to approval as prescribed by the Unions’ constitution, does not constitute membership or result in any vested right.”); cf. Hughes v. Local No. 11 of Int’l Ass’n of Bridge, Structural and Ornamental Ironworkers, 287 F.2d 810, 816 (3d Cir.1961) (explaining “this case may be distinguished from the ordinary case of an application for membership in a voluntary association on the ground that there was not in this case a reservation of power by the organization to refuse membership, in its discretion, to those who have fulfilled its standard membership requirements”).

explaining "this case may be distinguished from the ordinary case of an application for membership in a voluntary association on the ground that there was not in this case a reservation of power by the organization to refuse membership, in its discretion, to those who have fulfilled its standard membership requirements"


Context: Plaintiffs declaration is insufficient to create a triable issue. Plaintiff has not identified one other African-American who, allegedly, has not been promoted on account of race, nor has Plaintiff pointed to any evidence which suggests that, for promotions, African-Americans are disproportionately affected when compared to other racial groups.

affirming grant of summary judgment in favor of the employer on a disparate impact claim, stating that plaintiff "presented evidence that the BIA's policy affected some Indian employees, but he presented no evidence that the failure to provide actual and timely notice disproportionately affected Indians more than other racial groups."

See Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir.2003) (“Summary judgment is appropriate when statistics do not support a disparate impact analysis”); see also Lawrence v. Dep’t of Interior, 525 F.3d 916, 921 (9th Cir.2008) (affirming grant of summary judgment in favor of the employer on a disparate impact claim, stating that plaintiff “presented evidence that the BIA’s policy affected some Indian employees, but he presented no evidence that the failure to provide actual and timely notice disproportionately affected Indians more than other racial groups.”); Paige v. California, 291 F.3d 1141, 1145 (9th Cir.2002) (recognizing that “[sjtatistical evidence is used to demonstrate how a particular employment practice causes a protected minority group to be under represented in a specific area of employment (for example, hiring or promotion)” and stating that the “statistical analysis must show a disparity that is sufficiently substantial”) (internal quotation marks omitted).

"Summary judgment is appropriate when statistics do not support a disparate impact analysis"


recognizing that "[sjtatistical evidence is used to demonstrate how a particular employment practice causes a protected minority group to be under represented in a specific area of employment (for example, hiring or promotion


Context: The Ninth Circuit, however, has not left the trial judge without guidance in determining whether a plaintiff has met the "reasonable person" test. The Watson panel stated the generally accepted proposition that "a 'single isolated instance' of employment discrimination is insufficient as a matter of law to support a finding of constructive discharge."

Watson, 823 F.2d at 361, citing, Nolan, 686 F.2d at 813-14 (held that evidence of four incidents of differential treatment over two years was sufficient to create a genuine issue of fact for trial); Satterwhite, 744 at 1381-82 (“courts which have considered the question [of constructive discharge] are reluctant to predicate a finding of constructive discharge solely on the fact of employment discrimination.”); see also, Clark v. Marsh, 665 F.2d 1168 (D.C.Cir.1981) (holding that the mere fact of discrimination sans aggravating factors would not sustain a constructive discharge action).


Context: P 29 Freeney also contends the amended indictment violated the Sixth Amendment. As noted above, the touchstone of the Sixth Amendment notice requirement is whether the defendant had actual notice of the charge, from either the indictment or other sources.

"Even an inadequate indictment satisfies due process if the defendant has actual notice, so that she suffers no prejudice."

See, e.g., Stephens, 59 F.3d at 934-36 (failure of indictment to charge felony murder did not violate Sixth Amendment notice requirement when defendant “had five days of actual notice [before closing arguments] of the prosecution’s intention to rely on a felony-murder theory”); see also Sheppard, 909 F.2d at 1237; cf. United States v. Odom, 252 F.3d 1289, 1298 (11th Cir.2001) (“Even an inadequate indictment satisfies due process if the defendant has actual notice, so that she suffers no prejudice.”).

failure of indictment to charge felony murder did not violate Sixth Amendment notice requirement when defendant "had five days of actual notice [before closing arguments] of the prosecution's intention to rely on a felony-murder theory"


Context: The reasonable-doubt standard has become incorporated into the Fourteenth Amendment to the United States Constitution. Since the Federal courts have clarified their "reasonable-likelihood" test for reviewing jury instructions, we have persisted in looking for possible misunderstandings by reasonable jurors.

post- Victor case finding that a judge's misstatement of burden of proof "could not have" been misunderstood

Commonwealth v. Grant, 418 Mass. 76, 84-85 (1994) (post- Victor case finding that a judge’s misstatement of burden of proof “could not have” been misunderstood).

post-Victor case finding that judge's instructions could not have been read as suggesting improper standard of proof

Cf. Commonwealth v. Gagliardi, 418 Mass. 562, 571 n.4 (1994), cert. denied, 115 S. Ct. 753 (1995) (post-Victor case finding that judge’s instructions could not have been read as suggesting improper standard of proof). Our case law is more favorable to a criminal defendant than the Federal standard.


Context: The automatic stay does not apply to prevent acts to collect claims that a bankruptcy court has determined to be non-dischargeable under section 523(a)(8).

See In re Watson, 78 B.R. 232 (9th Cir. BAP 1987) (a creditor who obtains a section 523 judgment of nondischargeability may proceed with execution on non-estate property without obtaining relief from the automatic stay); see also Johnson v. Edinboro State College, 728 F.2d 163 (3d Cir.1984) (bankruptcy court could not order the college to turn over to the debtor his diploma and a copy of the transcript after bankruptcy court determined that a debt for an outstanding student loan was nondischargeable under § 523(a)(8)). Where, however, the debt is merely presumed to be nondis-chargeable under section 523(a)(8), but the bankruptcy court has not yet determined that the debt is nondischargeable, policy reasons compel the application of a different rule.

bankruptcy court could not order the college to turn over to the debtor his diploma and a copy of the transcript after bankruptcy court determined that a debt for an outstanding student loan was nondischargeable under SS 523(a


Context: According to settled principles, a third party, with standing to do so, may validly consent to the search of a closed container, even though the actual owner of the container has a heightened expectation of privacy in its contents.

"[A] person's expectations of privacy in personal luggage are substantially greater than in an automobile."

See, e.g., Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (cousin had authority to consent to search of the defendant’s duffel bag, wMch both men used and wMch had been left in the cousin’s home); United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997) (holding that a mother could consent to a search of her adult son’s bedroom, including a closed duffle bag stored in between the mattresses on the bed); United States v. Richardson, 562 F.2d 476 (7th Cir. 1977) (holding that a woman can consent to a search of a bedroom, shared by herself and the man she lived with, including the closet); see also Florida v. Jimeno, 500 U.S. 248, 253, 111 S.Ct. 1801, 1805, 114 L.Ed.2d 297 (1991) (Marshall, J., dissenting) (stating that, “an individual has a heightened expectation of privacy in the contents of a closed container”); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (“[A] person’s expectations of privacy in personal luggage are substantially greater than in an automobile.”). But, consent to search a private container, such as a smtcase or backpack, is only effective if given by someone “with common authority over or other sufficient relationsMp to the ... effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. at 993. Common authority “rests ... on mutual use of the property by persons generally having joint access or control for most purposes.”

cousin had authority to consent to search of the defendant's duffel bag, wMch both men used and wMch had been left in the cousin's home


holding that a mother could consent to a search of her adult son's bedroom, including a closed duffle bag stored in between the mattresses on the bed


holding that a woman can consent to a search of a bedroom, shared by herself and the man she lived with, including the closet


Context: If the relief sought is prospective in nature, it is proper "notwithstanding a direct and substantial impact on the state treasury."

Milliken v. Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (finding an injunctive relief order to be proper despite its explicit requirement that the state bear one half of the cost of developing a comprehensive educational program); see also Papasan v. Attain, 478 U.S. 265, 281-82, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (declining to dismiss on Eleventh Amendment grounds plaintiffs’ claim challenging the state’s unequal allocation of resources to state school districts, even though remedying the disparity “might require the expenditure of state funds”).

declining to dismiss on Eleventh Amendment grounds plaintiffs' claim challenging the state's unequal allocation of resources to state school districts, even though remedying the disparity "might require the expenditure of state funds"


Context: As noted in Vaughn, a principal also can be liable for physical torts committed by an agent if the principal hada nondelegable duty of care or was negligent in hiring, instructing, or supervising the agent. In that circumstance, the principal's liability is direct, not vicarious, however.

hospital has potential independent tort liability for negligent acts of physicians based on hospital's own negligence in hiring and supervising staff

See, e.g., Sprinkle v. Lemley, 243 Or 521, 528-31, 414 P2d 797 (1966) (physicians who diagnose and treat patient in concert can be liable for each other’s negligence); Moulton v. Huckleberry, 150 Or 538, 549, 46 P2d 589 (1935) (physician who refers patient to another can be hable for negligence of other physician if that physician is an employee, partner, or agent of the referring physician, or if the referral was itself negligent); Wemett v. Mount, 134 Or 305, 315, 292 P 93 (1930) (physician partners in the practice of medicine are liable for each other’s negligence); see also Huffaker v. Bailey, 273 Or 273, 282, 540 P2d 1398 (hospital has potential independent tort liability for negligent acts of physicians based on hospital’s own negligence in hiring and supervising staff).

physicians who diagnose and treat patient in concert can be liable for each other's negligence


physician who refers patient to another can be hable for negligence of other physician if that physician is an employee, partner, or agent of the referring physician, or if the referral was itself negligent


physician partners in the practice of medicine are liable for each other's negligence


Context: Finally, our case law does not compel the conclusion that Kiggundu suffered mistreatment but not persecution.

Compare Soumahoro v. Gonzales, 415 F.3d 732, 737-38 (7th Cir.2005) (suggesting imprisonment for two weeks, regular beatings, denial of adequate food and water, and loss of job may constitute persecution), Diallo v. Ashcroft, 381 F.3d 687, 697-98 (7th Cir.2004) (six months’ unlawful imprisonment, hard labor, physical torture, and expulsion from country consistent with past persecution), and Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir.2003) (finding compelling case of persecution based on physical mistreatment over a month-long period, the assault of a family member, and threats), with Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir.2005) (being “interrogated at various times by the police, detained for twenty-four hours, harassed for money, and beaten, causing an injury to his hands” does not compel a finding of persecution), Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2003) (finding that three-day detention, a lack of food, and beatings causing facial trauma did not compel finding of persecution), and Zalega, 916 F.2d at 1260 (finding that detainment, periodic searches, and arrests were not past persecution).

IJ's opinion resting entirely on unsupported adverse credibility determination vacated because IJ did not determine whether petitioners fell within protected group

See Tabaku, 425 F.3d 417, 420 (IJ’s opinion resting entirely on unsupported adverse credibility determination vacated because IJ did not determine whether petitioners fell within protected group); see also Singh v. Gonzales, 404 F.3d 1024, 1028 (7th Cir.2005) (observing harmless error analysis applies to immigration cases).


Context: Because the limits on money given to support clear electoral advocacy bear a substantial relationship to the governmental purpose of preventing corruption and the appearance thereof, and only marginally burden speech, these limits are constitutional. Indeed, the Supreme Court has upheld limits on "contributions" defined much more broadly than the term in the North Carolina Act.

upholding limit on "contributions" defined as "[fjunds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary!

See Buckley, 424 U.S. at 23-35, 96 S.Ct. 612 (upholding limit on “contributions” defined as “[fjunds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary!), or] dollars given to another person or organization that are earmarked for political purposes,” 424 U.S. at 24 n. 24, 96 S.Ct. 612); McConnell, 540 U.S. at 170, 124 S.Ct. 619 (upholding contribution caps for a “public communication that promotes or attacks a clearly defined candidate”); see also Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (upholding a ban on any contributions from NCRL’s general treasury).

upholding a ban on any contributions from NCRL's general treasury


upholding contribution caps for a "public communication that promotes or attacks a clearly defined candidate"


Context: Appel-lees' Br. 32 & n.9. Although this raises certain policy concerns, Congress is better suited to address them by revising the estoppel provisions for CBM review should it see fit. Thus, we leave the soundness of exempting the government from the estop-pel provision to Congress, as precedent demands.

"[T]his Court has never upheld an assertion of estoppel against the' Government by a claimant seeking public funds"

See Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (“[Hit is for Congress, not this Court, to rewrite the statute.”); see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 434, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (“[T]his Court has never upheld an assertion of estoppel against the' Government by a claimant seeking public funds”).

"[Hit is for Congress, not this Court, to rewrite the statute."


Context: In the instant case, by contrast, defense counsel established outside of the presence of the jury that Padilla had several larceny convictions for shoplifting and that he had taken elusive action to avoid detection. The district court did not err, having looked beyond the elements of the offense to the underlying facts, in determining that the circumstances of Padilla's larceny convictions did not involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).

"[Cjrimes such as theft, robbery, or shoplifting do not involve 'dishonesty or false statement' within the meaning of Rule 609(a

See United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977) (noting that “crimes of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny, do not come within” Rule 609(a)(2) (internal citations omitted)); cf. United States v. Sellers, 906 F.2d 597, 603 (11th Cir.1990) (“[Cjrimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2).”).

noting that "crimes of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny, do not come within" Rule 609(a


Context: 'Waiver requires a defendant to intentionally surrender a known right." As we have previously explained, a non-specific question like "Anything else?" does not direct the defendant to any specific issue, so a negative answer does not intentionally surrender a known right.

"In this case, the district court's generic inquiry of 'anything further?' did not serve the specific purpose we had in mind in Garcia-Segura."

United States v. Morris, 775 F.3d 882, 885-86 (7th Cir. 2015) (“In this case, the district court’s generic inquiry of ‘anything further?’ did not serve the specific purpose we had in mind in Garcia-Segura.”); see also Speed, 811 F.3d at 857 (“[W]e never intended [in Garcia-Segurd\ to imply that a general ‘anything else?’ results in the waiver of a specific right.”).

"[W]e never intended [in Garcia-Segurd\ to imply that a general 'anything else?' results in the waiver of a specific right."


Context: In this case, however, the absence of similarities rendered the collateral crime evidence irrelevant to the charges for which McCain was being tried. Other than the type of drug involved, there were no similarities between McCain's mere personal possession of a baggie with methamphetamine residue and the charges that he trafficked and conspired to traffic in a large quantity of the substance.

distinguishing sentencing options available for drug users but not drug traffickers and noting that "[t]he personal acquisition and consumption of illegal drugs differs sharply ... from the peddling of such drugs for profit"

See Hill v. State, 624 So.2d 826, 827 (Fla. 2d DCA 1993) (distinguishing sentencing options available for drug users but not drug traffickers and noting that “[t]he personal acquisition and consumption of illegal drugs differs sharply ... from the peddling of such drugs for profit”); cf. United States v. Glen-Archila, 677 F.2d 809, 816 (11th Cir.1982) (“For evidence of an extrinsic act to be admissible as proof of intent ..., it must require the same intent as the charged offense.... ”).

"For evidence of an extrinsic act to be admissible as proof of intent ..., it must require the same intent as the charged offense.... "


Context: . Several jurisdictions have limited tortious interference claims arising out of the preparation of a will to instances where a will contest is not available or, if available, would not provide adequate relief to the injured party.

describing an "emerging majority of case law" that limits intentional interference claims to when an adequate remedy does not exist in probate court

See Wilson v. Fritschy, 132 N.M. 785, 55 P.3d 997, 1001-02 (App.2002) (describing an "emerging majority of case law” that limits intentional interference claims to when an adequate remedy does not exist in probate court); see also Jackson v. Kelly, 345 Ark. 151, 44 S.W.3d 328, 331-34 (2001) (declining to apply the tort because adequate relief was available to the injured party in the probate court); DeWitt v. Duce, 408 So.2d 216, 218 (Fla. 1981); In re Estate of Ellis, 236 I11.2d 45, 337 Ill.Dec. 678, 923 N.E.2d 237, 241-42 (2009); Minton v. Sackett, 671 N.E.2d 160, 162 (Ind.Ct.App.1996); McMullin v. Borgers, 761 S.W.2d 718, 719-20 (Mo.Ct.App.1988); Garruto v. Cannici, 397 N.J.Super. 231, 936 A.2d 1015, 1021-22 (App.Div.2007) (declining to address the issue of whether the tort was recognized in New Jersey but noting that adequate relief was available to the injured party in the probate court and the tort therefore could not apply).


declining to address the issue of whether the tort was recognized in New Jersey but noting that adequate relief was available to the injured party in the probate court and the tort therefore could not apply


Context: Last, to the extent that plaintiff is alleging that his right to privacy or association was violated because the conversations of plaintiffs wife and daughter were recorded, the uncontroverted evidence establishes that the conversations were taped by George, who was not employed by the city and was not acting at the direction of anyone. Therefore, plaintiffs claim must fail.

holding that individuals could not maintain action against private citizens and law enforcement officers who intercepted individuals' cordless telephone conversations, as users of cordless telephone did not have justifiable expectation of privacy for their conversations

See Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990) (holding that individuals could not maintain action against private citizens and law enforcement officers who intercepted individuals’ cordless telephone conversations, as users of cordless telephone did not have justifiable expectation of privacy for their conversations); State v. King, 873 S.W.2d 905, 909 (Mo.Ct.App.1994); see also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.1990) (holding that liability under § 1983 requires a causal link to, and direct responsibility for, the deprivation of rights). The uncontradicted evidence shows that the defendants had a legitimate, good faith belief that plaintiff, with his family, was engaging in improper conduct by conspiring to bribe the Chief of Police. Terminating him for this reason did not violate his constitutional rights.

holding that liability under SS 1983 requires a causal link to, and direct responsibility for, the deprivation of rights


Context: We have also acknowledged that zoning is unlikely to be a fertile ground for inverse condemnation claims.

"While the theory ofinverse condemnation arises out of the eminent domain paragraph of the Georgia Constitution,... it is not synonymous with a claim attacking the constitutionality of an existing zoning ordinance following the denial of an application to rezone."

See, e.g., Alexander v. DeKalb County, 264 Ga. 362, 363 (444 SE2d 743) (1994), overruled on other grounds by In re Crane, 253 Ga. 667 (324 SE2d 443) (1985); Mayor & Aldermen of the City of Savannah, 267 Ga. at 174 (assuming, only arguendo, that inverse condemnation is an available remedy in rezoning cases); see also City of Tybee Island v. Live Oak Group, 324 Ga.App. 476, 479 (751 SE2d 123) (2013) (“While the theory ofinverse condemnation arises out of the eminent domain paragraph of the Georgia Constitution,... it is not synonymous with a claim attacking the constitutionality of an existing zoning ordinance following the denial of an application to rezone.”). Indeed the majority in the seminal Penn Central case rejected zoning regulations as a likely source of inverse condemnation.


Context: The manner of the annexation usually is not decisive but only one of several factors to be taken into account in determining whether the article loses its character as personalty and becomes a part of the realty. Furthermore, the property was used by Bankrupt in its business, and Minnesota is committed to the "trade fixtures" rule which permits trade fixtures to be removed no matter how permanently attached, so long as such removal does not result in material and permanent injury to the freehold.

Moffat v. White, 203 Minn. 47, 279 N.W. 732 (1938) (gasoline pumps, storage tanks, electric motors, etc. on gasoline station premises held not to be realty); Northwestern Lumber & Wrecking Co. v. Parker, 125 Minn. 107, 145 N.W. 964 (1914) (boiler set upon permanent foundation, smoke pipe through building wall connecting boiler to smoke stack outside, engine bolted to engine bed supported by braces on another floor, steam heat— radiator heating system on two floors connected to boiler with usual plumbing apparatus in building, held not to be fixtures under the trade fixtures doctrine).

See also Bee Bldg. Co. v. Daniel, 57 F.2d 59 (8th Cir.1932) (metal cages, marble railings, office partitions, steel vault doors, steel safe deposit boxes, mahogany booths, all electric fixtures, exhaust ventilating fans, wooden cabinets in savings and loan office, held not to be realty under trade fixtures doctrine); 4 Collier, Bankruptcy (14th Ed.) ff 70.20, p. 1157. There is no record evidence of any material and permanent injury to the freehold.


boiler set upon permanent foundation, smoke pipe through building wall connecting boiler to smoke stack outside, engine bolted to engine bed supported by braces on another floor, steam heat-- radiator heating system on two floors connected to boiler with usual plumbing apparatus in building, held not to be fixtures under the trade fixtures doctrine


Context: . At oral argument in this court, the state conceded that Mangum's prior conviction technically was an element of the prohibited possessor charge under A.R.S. SSSS 13 -- 3101 (A)(6)(d) and 13-3102(A)(4).

under Colorado's prohibited possessor statute, "the defendant's prior conviction is an element of the crime which the prosecution must prove beyond a reasonable doubt"

See People v. Quintana, 707 P.2d 355, 359 (Colo.1985) (under Colorado’s prohibited possessor statute, "the defendant's prior conviction is an element of the crime which the prosecution must prove beyond a reasonable doubt”); see also State v. Portsche, 258 Neb. 926, 606 N.W.2d 794, 796 (2000) (under Nebraska’s prohibited possessor statute, prior conviction constituted "material element of being a convicted felon”).

under Nebraska's prohibited possessor statute, prior conviction constituted "material element of being a convicted felon"


Context: In the course of our discussion of the trial court's inherent authority to effectuate its prior judgments more than four months after judgment has been rendered, we also expressly noted that "courts have inherent power to change or modify their own injunctions that is not limited by SS 52-212a . . . ." (Citation omitted.)

Id., 242 n.11, citing Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969) (“[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions [when] circumstances or pertinent law have so changed as to make it equitable to do so”); see also O’Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989) (common law vests courts with continuing jurisdiction to modify their injunctions more than four months after judgment has been rendered).

"[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions [when] circumstances or pertinent law have so changed as to make it equitable to do so"


Context: "A treating physician's opinion does not deserve controlling weight when it is nothing more than a conclusory statement." Moreover, checking a box on a form, without more, cannot amount to substantial evidence.

"Because of the interpretive problems inherent in the use of forms such as the physical capacities checklist, our Court has held that while these forms are admissible, they are entitled to little weight and do not constitute "substantial evidence" on the record as a whole."

O’Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir.1983) (“Because of the interpretive problems inherent in the use of forms such as the physical capacities checklist, our Court has held that while these forms are admissible, they are entitled to little weight and do not constitute “substantial evidence” on the record as a whole.”) (citations omitted); see also Swigert v. Astrue, 226 Fed.Appx. 628 (8th Cir.2007) (“A treating physician’s checkmarks on an MSS form may be discounted if they are contradicted by other objective medical evidence in the record.”) (citations omitted).

"A treating physician's checkmarks on an MSS form may be discounted if they are contradicted by other objective medical evidence in the record."


Context: Yet, under the bankruptcy court's reading of Section 5, an employer could prevent the creation of a trust simply by refusing to segregate the funds resulting from the tax withholdings. Nothing in Section 5 indicates that the Massachusetts Legislature wanted the debtor's whim to dictate the extent of protection afforded the Commonwealth's treasury, and I decline to interpret the statute as condoning such an anomalous result.

"A statute should not be read in a manner that defeats its intended utility."

See Simon v. Solomon, 385 Mass. 91, 100, 431 N.E.2d 556 (1982) (“A statute should not be read in a manner that defeats its intended utility.”); Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453, 509 N.E.2d 1173 (1987) (“A statute ... should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available.”); see also Begier, 496 U.S. at 61, 110 S.Ct. at 2264 (refusing to construe Section 7501 to permit an employer to avoid the creation of a trust simply by refusing to segregate funds).


"A statute ... should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available."


Context: Evidence of prior acts that otherwise qualifies for admission under CRE 404(b) is not rendered inadmissible by the defendant's acquittal on criminal charges arising out of those acts.

defendant's acquittal in previous ease did not collaterally estop court from admitting prior act evidence

See People v. Wallen, 996 P.2d 182 (Colo.App.1999)(defendant’s acquittal in previous ease did not collaterally estop court from admitting prior act evidence); People v. Conley, 804 P.2d 240 (Colo.App.1990) (same); see also Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (introduction of evidence relating to crime of which defendant had previously been acquitted does not violate double jeopardy or due process).


Context: There are few cases that turn on the time of loss (as distinct from time of defalcation) in the fiduciary bond context, but the cases that do address the issue similarly focus on the solvency of the guardian or other fiduciary (and thus employ reasoning more akin to that followed in the bankers blanket bond cases than to the reasoning followed in property insurance cases). The cases recognize that a loss from the fiduciary's misuse or misappropriation of assets entrusted to her occurs when the fiduciary is or becomes insolvent (meaning that upon demand she would unable to restore the estate to its original position).

reasoning that when the guardian misused funds belonging to the ward's estate by putting them into his own business, that initially "constitute[d] a diversion but not the destruction or loss of the estate," but that if the guardian "had become absolutely insolvent[,] ... there would have been proof of loss"

See In re Estate of Sacks, 153 Misc. 262, 274 N.Y.S. 707, 715, 716 (N.Y.Sur.Ct.1934) (reasoning that when the guardian misused funds belonging to the ward’s estate by putting them into his own business, that initially “constitute[d] a diversion but not the destruction or loss of the estate,” but that if the guardian “had become absolutely insolvent[,] ... there would have been proof of loss”) (emphasis added); see also First Nat’l Bank & Trust Co. v. Nat’l Surety Corp., 25 F.Supp. 392, 397, 398-99 (D.Minn.1938) (“If one is intrusted with trust funds and he violates the trust by spending the estate for his own personal use and has no funds with which to make good the loss, it does not require much to convince any reasonable person that an act has occurred which has caused, the beneficiary loss.”) (emphasis added).

"If one is intrusted with trust funds and he violates the trust by spending the estate for his own personal use and has no funds with which to make good the loss, it does not require much to convince any reasonable person that an act has occurred which has caused, the beneficiary loss."