Context: In addition, we have repeatedly held that, when a party has failed to demand that an issue of fact be submitted to the jury or fails to object to the trial court taking an issue of fact away from the jury, the party waives any objection to the factual issue not being submitted to the jury.

"holding that defendant was required to voice an objection to the court's decision to remove that issue from the jury in order to avoid waiving the right to a jury trial of that issue"

Precision Lumber Co., 125 Or App at 37-38 (noting that “when an issue has been omitted” from a special verdict, “the parties must propose additional interrogatories for submission to the jury before it retires; otherwise, the right to a jury trial on that issue is waived”); Taylor v. Ramsay-Gerding Construction Co., 235 Or App 524, 531, 234 P3d 129 (2010) (“holding that defendant was required to voice an objection to the court’s decision to remove that issue from the jury in order to avoid waiving the right to a jury trial of that issue”); see also State ex rel Sam’s Texaco & Towing v. Gallagher, 314 Or 652, 663, 842 P2d 383 (1992) (a party must object to the form of a question in the special verdict form before the jury retires, otherwise the right to raise the issue is waived). Because defendant did not advance at trial the legal issue it raised after trial, it waived any right to have a jury decide any additional or different fact issues related to its employer status under ORS 652.150 that defendant believes existed.


Context: The state maintains that the district court failed to recognize that the contraband found in the consensual search of the passenger compartment gave Officer Howard probable cause to search the trunk and Darnall's knapsack, and, therefore, consent was not required.

See State v. Schinzing, 342 N.W.2d 105, 111 (Minn.1983) (if police lawfully discover contraband in passenger compartment of car, they then have probable cause to search trunk); see also United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982) (probable cause permits search of every part of vehicle that may conceal object of search), cited in Schinzing, 342 N.W.2d at 111. Darnall responds that the district court implicitly found that there was no probable cause to believe his knapsack would contain the object of the search.


Context: That Act established two categories of debts, those that were "allowable" and those that were "provable." "Only if a debt was allowable could the creditor receive a share of the bankrupt's assets."

Id., at 45, 107 S.Ct., at 358. See, e.g., In re Abramson, 210 F. 878, 880 (CA2 1914) (“judgments for penalties are not debts which can be proved or allowed as such because they are not for a fixed liability”); cf. In re Alderson, 98 F. 588 (W.Va.1899) (the only federal court decision found by the Kelly Court that allowed a discharge to affect a sentence imposed by a state criminal court).

"judgments for penalties are not debts which can be proved or allowed as such because they are not for a fixed liability"


Context: . Section 3304 also has a similar effect to Section 3303, in that it removes local government's necessary and reasonable authority to carry out its trustee obligations by prohibiting the enactment of ordinances tailored to local conditions. As we explained relative to Section 3303, the General Assembly may not command municipalities to ignore their obligations under Article I, Section 27 and, thereby, abridge citizens' constitutional rights indirectly.

Judiciary "must possess" inherent power to carry out its mandated responsibilities

See Mesivtah, 44 A.3d at 9 (statute “cannot excuse the constitutional minimum” for meeting public charity exemption from taxation); cf. Carroll, 274 A.2d at 196-97 (Judiciary “must possess” inherent power to carry out its mandated responsibilities).

statute "cannot excuse the constitutional minimum" for meeting public charity exemption from taxation


Context: The parties here have done just that. The language here expresses the parties' clear intention that acceleration is automatic in the event of a bankruptcy filing, thereby avoiding the need to resort to the rule of construction established in Tymon and Wurzler.

Corp. v. Pioneer Auto. Parks, Inc., 46 N.Y.2d 573, 577, 415 N.Y.S.2d 800, 389 N.E.2d 113 (1979) (“[A]greements providing for the acceleration of the entire debt upon the default of the obligor ... [i]n the vast majority of instances ... have been enforced at law in accordance with their terms.”)); see also Key Int’l Mfg. Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528, 530-31 (1984) (holding that acceleration clauses are quite common and are generally enforceable according to their terms).

"It was entirely appropriate to provide for automatic acceleration in the Original Indenture .... "

See, e.g., In re Solutia, 379 B.R. at 484 (“It was entirely appropriate to provide for automatic acceleration in the Original Indenture .... ”); Calpine Corp., 2010 WL 3835200, at *3, 2010 U.S. Dist. Lexis 96792, at *10 (“According to the terms of the notes, a voluntary bankruptcy filing constitutes an event of default that accelerates and matures the notes.... ”); Premier Entm’t, 445 B.R. at 628, 631 (citing, inter alia, Fifty States Mgt.


"According to the terms of the notes, a voluntary bankruptcy filing constitutes an event of default that accelerates and matures the notes.... "


"[A]greements providing for the acceleration of the entire debt upon the default of the obligor ... [i]n the vast majority of instances ... have been enforced at law in accordance with their terms."


Context: As to these purported acts of disparate treatment based on race, other than his own speculation and subjective belief, Quintana fails to provide the court with evidence that these events were the result of discriminatory animus. Speculation that these events were motivated in whole, or in part, by racial discrimination, is insufficient to raise a genuine dispute of material fact that racial discrimination was a motivating factor in FNAC's decision to terminate Quintana as part of the RIF.

"Subjective beliefs are insufficient to overcome [employer's] summary judgment evidence."

Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (“This Court has cautioned that ‘eonclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy’ the nonmovant’s burden in a motion for summary judgment.”)); see also M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (2000) (“Subjective beliefs are insufficient to overcome [employer’s] summary judgment evidence.”) (citations omitted).

"This Court has cautioned that 'eonclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy' the nonmovant's burden in a motion for summary judgment."


Context: We have held, albeit without much discussion, that the fact that a defendant raped his victim twice justified an exceptional sentence because inflicting multiple penetrations on a victim is more egregious than the single act necessary to commit the crime. Other cases hold that more than one act of sexual intercourse cannot, standing alone, constitute a separate aggravating factor, but can be considered as evidence of deliberate cruelty.

See, e.g., State v. Strauss, 54 Wn. App. 408, 419, 773 P.2d 898 (1989) (rejecting the State’s contention that the defendant’s multiple penetrations supported the trial court’s finding of deliberate cruelty); State v. Post, 59 Wn. App. 389, 797 P.2d 1160 (1990) (rape defendant’s multiple attempts at penetration over one hour did not, without more, warrant finding of deliberate cruelty, distinguishing Falling because that case involved both oral and vaginal intercourse over 30-minute period), aff’d, 118 Wn.2d 596, 826 P.2d 172, 837 P.2d 599 (1992); but see State v. Herzog, 69 Wn. App. 521, 849 P.2d 1235, review denied, 122 Wn.2d 1021 (1993) (multiple penetrations can be evidence of deliberate cruelty because multiple penetrations or sexual acts over a period of time are more degrading than a single act of rape). We recently resolved this issue in State v. Vaughn, 83 Wn. App. 669, an opinion filed after oral argument in this case.

rejecting the State's contention that the defendant's multiple penetrations supported the trial court's finding of deliberate cruelty


rape defendant's multiple attempts at penetration over one hour did not, without more, warrant finding of deliberate cruelty, distinguishing Falling because that case involved both oral and vaginal intercourse over 30-minute period


Context: The court finds that the Terms and Conditions are a "complete and exclusive statement of the terms of the agreement" under Iowa Code section 554.2202, and, therefore, the agreement is fully integrated.

See Iowa Code § 554.2202 (providing that, if “the court finds the writing to have been intended ... as a complete and exclusive statement of the terms of the agreement,” the agreement cannot be supplemented “by evidence of consistent additional terms”); see also Whalen, 545 N.W.2d at 291 (noting that, under the parol evidence rule, a party cannot supplement a fully integrated agreement with extrinsic evidence); Levien Leasing Co., 380 N.W.2d at 750 (“A contract with an integration clause typically represents the complete agreement of the parties and .any- extrinsic evidence which varies, adds, or subtracts from its terms is barred by the parol evidence rule.”).

See C & J Vantage Leasing Co., 795 N.W.2d at 85. The court reaches this conclusion because it finds that: (1) the parties intended the invoice to represent the entire agreement because the Terms and Conditions printed on the back of the invoice include an integration clause; (2) the parties acted in compliance with the invoice when BVS paid CDW' the price listed in the invoice rather, than the price listed in the purchase order, see S. Tex. Land Co., 202 N.W. at 553 (finding that the parties intended a subsequent written agreement to be a final expression when the parties acted in compliance with the written terms);, and (3) the parties are sophisticated and of equal bargaining strength, see Whalen, 545 N.W.2d at 291 (applying the parol evidence rule to a contract with an integration clause and noting that the parties “were sophisticated business persons ... of equal bargaining strength” (quoting Montgomery Props.


"A contract with an integration clause typically represents the complete agreement of the parties and .any- extrinsic evidence which varies, adds, or subtracts from its terms is barred by the parol evidence rule."


Context: "Congress has afforded ITA a degree of latitude in implementing its verification procedures ____ The decision to select a particular method of verification rests solely within the agency's sound discretion."

upholding the ITA's decision not to apply BIA based on ITA's claim that it was able to verify respondent's questionnaire response through "alternative means"

Floral Trade Council v. United States, 17 CIT 392, 399, 822 F.Supp. 766, 772 (1993)(upholding the ITA’s decision not to apply BIA based on ITA’s claim that it was able to verify respondent’s questionnaire response through “alternative means”) (citations omitted); see also American Alloys, Inc. v. United States, 30 F.3d 1469, 1475 (Fed.Cir.1994) (“[T]he statute gives Commerce wide latitude in its verification procedures.”).

"[T]he statute gives Commerce wide latitude in its verification procedures."


Context: Furthermore, we agree with the District Court and the State that the statute of limitations defenses which are applicable in a normal civil suit do not apply here because the riverbeds are public trust lands under Article X, Section 11 of the Montana Constitution.

noting that the government's efforts to enforce and maintain a policy respecting lands held in the public trust trumps the equitable and legal affirmative defenses which are normally available against State actions

See Norman, 182 Mont. at 446, 597 P.2d at 719 (noting that the government’s efforts to enforce and maintain a policy respecting lands held in the public trust trumps the equitable and legal affirmative defenses which are normally available against State actions); see also Chennault v. Sager, 187 Mont. 455, 460, 610 P.2d 173, 176 (1980) (stating that the interests of the general public should not be defeated by the unauthorized or unlawful acts of public agents or officers) (citing Norman).


Context: Because our 2014 opinion resolved these legal issues on the merits, the trial court was constrained by the law of the case doctrine and was not at liberty to disregard and contradict our holdings.

See Cantu de Villarreal, 330 S.W.3d at 20-21 (law of the case doctrine applied where appellate court had resolved issue presented to it on the merits in previous mandamus proceeding); B S P Mktg,, Inc., 2004 WL 119235, at *1-2 (applying law of the case doctrine to issue on appeal where appellate court had resolved issue on merits in earlier mandamus proceeding); see also Landerman, 247 S.W.3d at 433 (determination that trial court has abused its discretion in taking some action is a question of law); Hudson, 711 S.W.2d at 630 (application of law of the case doctrine means that question of law decided by appellate court governs case in subsequent stages); Trevino, 564 S.W.2d at 685 (when court has decided question of law, law of the case doctrine means that decision governs case throughout subsequent stages).


application of law of the case doctrine means that question of law decided by appellate court governs case in subsequent stages


when court has decided question of law, law of the case doctrine means that decision governs case throughout subsequent stages


applying law of the case doctrine to issue on appeal where appellate court had resolved issue on merits in earlier mandamus proceeding


Context: Rather, every aspect of this case supports the conclusion that the Secretary was acting in his role as the initial trier of fact when he agreed with Mr. Washington -- and represented to the Court and to the Board -- that Mr. Washington's testimony was probative. Because the trier of fact cannot find probative that which has no credibility, it is axiomatic that the Secretary, as the initial trier of fact, had agreed with Mr. Washington that his testimony was credible.

credibility "is a factual matter going to the probative value of the evidence"

See Layno v. Brown, 6 Vet.App. 465, 469 (1994) (credibility “is a factual matter going to the probative value of the evidence”); see also Commonwealth Land Title Ins. Co. v. Barber, 95 B.R. 684, 688 n. 13 (1988) (“Unless credible, testimony can carry no probative weight as evidence.”)

"Unless credible, testimony can carry no probative weight as evidence."


Context: Clearly, where it is alleged that an individual is mentally retarded, the trial court must consider that factor when determining whether an individual "has the mental capacity to achieve the necessary understanding" of a guilty plea. Additionally, we have stressed that this is an area where expert testimony should be considered and a trial judge should refrain from relying on personal observations of the individual.

Hunter, supra, 548 A.2d at 810-11 (expert informed judge that appellant appeared to be suffering from organic brain damage); cf. Mitchell v. United States, 609 A.2d 1099, 1104 (D.C.1992) (advising trial judge to have assistance of expert guidance and not rely on one’s own perceptions where appellant is al legedly mentally ill, citing Hunter and Masthers).

advising trial judge to have assistance of expert guidance and not rely on one's own perceptions where appellant is al legedly mentally ill, citing Hunter and Masthers


Context: Weighing the harm of introducing Ms. Day's potential silence to the jury versus the harm of denying to Appellant any potential benefit from that anticipated silence, compels us to conclude that Appellant was unfairly prejudiced by the trial court's refusal to call Ms. Day to the stand. As a result of this refusal to permit Appellant the benefit of his right to compel witnesses in his favor, Appellant was wrongly denied the benefit of either Ms. Day's testimony or any inference from her refusal to testify in light of her complete immunity from prosecution.

recognizing that "we are obligated to reverse where the improper exclusion of evidence places the underlying fairness of the entire trial in doubt or where the exclusion affects the substantial rights of the defendant"

See State v. Blake, 197 W.Va. 700, 709, 478 S.E.2d 550, 559 (1996) (recognizing that “we are obligated to reverse where the improper exclusion of evidence places the underlying fairness of the entire trial in doubt or where the exclusion affects the substantial rights of the defendant”); see also Harman, 165 W.Va. at 499, 270 S.E.2d at 150 (recognizing that exclusion of “testimony [that] provides a direct link to someone other than the defen dant [committing the crime] ... constitutes reversible error”).

recognizing that exclusion of "testimony [that] provides a direct link to someone other than the defen dant [committing the crime] ... constitutes reversible error"


Context: We conclude Harrington did not have the "essential facts" of the police reports so as to allow the defense to wholly take advantage of this evidence. As the Nevada Supreme Court stated under similar circumstances, "[0]nly access to the documents themselves would have provided the range and detail of information necessary to fully understand the implications of the police investigation."

Mazzan v. Warden, 116 Nev. 48, 993 P.2d 25, 37 (2000) (holding oral disclosure of identity of another suspect was not sufficient to avoid Brady violation for failing to produce police investigatory reports); see also Wilson v. State, - So.2d -, -, 2002 WL 732110 (Ala.Crim.App.2002) (finding Brady violation despite defendant’s knowledge of witnesses’ identities, where withheld police report gave details of their testimony in the absence of which the defendant would have had “no reason to expend the time or resources to locate them”).

finding Brady violation despite defendant's knowledge of witnesses' identities, where withheld police report gave details of their testimony in the absence of which the defendant would have had "no reason to expend the time or resources to locate them"


Context: At the outset, we note the parties agree an investigatory stop occurred when police stopped Martinez. More than one officer was present, and those officers used a commanding tone of voice, told Martinez to stop, and attempted to control his ability to leave the driveway; one officer also displayed a weapon. Moreover, Martinez submitted to the officers' show of authority by stopping his car.

See State v. Weaver, 259 Kan. 844, 849, 915 P.3d 746 (1996) (a seizure occurs when defendant submits to show of authority by stopping); see also State v. Walker, 292 Kan. 1, 6, 251 P.3d 618 (2011) (investigatory stop occurred when there was more than one officer, a display of weapon, physical contact by officer, use of commanding voice tone and sirens or lights, command to stop, and attempt to control ability to flee); Johnson, 293 Kan. at 5 (seizure occurred when officers were dressed in FBI clothes, had weapons drawn, used lights on squad cars).


seizure occurred when officers were dressed in FBI clothes, had weapons drawn, used lights on squad cars


Context: The testimony offered by defendant in this case cannot be said to relate to the circumstances of the offense. Thus, in order to be relevant, the evidence must be relevant to "any aspect of the defendant's character or background * * * that one or more * * * jurors believe would justify a sentence less than death."

holding that relevance of evidence with respect to the so-called "fourth question" under ORS 163.150(1)(b)(D) to be determined under criteria established by ORS 163.150(1)(c)(B

See State v. Guzek, 322 Or 245, 254, 906 P2d 272 (1995) (holding that focus of ORS 163.150(1)(b)(D) is on mitigating evidence); see also Stevens, 319 Or at 579 (holding that relevance of evidence with respect to the so-called “fourth question” under ORS 163.150(1)(b)(D) to be determined under criteria established by ORS 163.150(1)(c)(B)).


Context: . Everett, 893 So.2d at 1286-87: We note that most courts that have considered this issue have held similarly.

"view[ing] a request for consent to search, after the [Fifth Amendment] right to counsel has been invoked, as interrogation and the serving of a search warrant as conduct 'reasonably likely to elicit an incriminating response' "

See, e.g., United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir.1996) (holding that a "consent to search is not an interrogation within the meaning of Miranda "); United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir.1993) (holding that consent to search obtained after defendant invoked right to remain silent is not a self-incriminating statement because it is neither testimonial nor communicative); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir.1993) ("We have held that a consent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation. This view comports with the view taken by every court of appeals to have addressed the issue.”); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir.1993) (stating that a request for consent to search is not custodial interrogation and holding that "consent to search is not the type of incriminating statement which the Fifth Amendment was designed to address”); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir.1985) (staling that Fifth Amendment right to counsel stems from privilege against self-incrimination and is not an independent right and that consent to search is not an incriminating statement because it is not testimonial, nor is physical evidence obtained pursuant to search); State v. Moralo, 619 N.W.2d 655, 662 (S.D.2000) (stating that "[a]n officer's request that a suspect consent to a search, however, is not an interrogation or its functional equivalent” and "Morato’s consent to search does not constitute an incriminating statement”); State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 1009 (2000) (concluding that the request for consent to search did not violate defendant's Fifth Amendment rights); contra United States v. Yan, 704 F.Supp. 1207, 1211-12 (S.D.N.Y.1989) (holding that a request for search constitutes an interrogation); State v. Britain, 156 Ariz. 384, 752 P.2d 37, 39 (Ariz.Ct.App.1988), ("view[ing] a request for consent to search, after the [Fifth Amendment] right to counsel has been invoked, as interrogation and the serving of a search warrant as conduct 'reasonably likely to elicit an incriminating response' ”).


holding that consent to search obtained after defendant invoked right to remain silent is not a self-incriminating statement because it is neither testimonial nor communicative


"We have held that a consent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation. This view comports with the view taken by every court of appeals to have addressed the issue."


stating that a request for consent to search is not custodial interrogation and holding that "consent to search is not the type of incriminating statement which the Fifth Amendment was designed to address"


staling that Fifth Amendment right to counsel stems from privilege against self-incrimination and is not an independent right and that consent to search is not an incriminating statement because it is not testimonial, nor is physical evidence obtained pursuant to search


stating that "[a]n officer's request that a suspect consent to a search, however, is not an interrogation or its functional equivalent" and "Morato's consent to search does not constitute an incriminating statement"


concluding that the request for consent to search did not violate defendant's Fifth Amendment rights


Context: However, where a statute establishes procedures for protection of substantive rights, such as section 77-23-5 does, violation of the statute cannot be dismissed as technical or ministerial in nature and suppression of the evidence gained from the challenged search is the appropriate remedy.

But see State v. Brock, 294 Or. 15, 653 P.2d 543, 545-46 (1982) (warrant allowing nighttime search without any showing of reasonable necessity not invalid and suppression not required, when legislature had considered and declined to enact specific exclusionary rule for such circumstances).

Awaya v. State, 5 Haw.App. 547, 705 P.2d 54, 59 (seizure of evidence not particularly described in the warrant required suppression), cert. denied, 67 Haw. 685, 744 P.2d 781 (1985); Wiggin v. State, 755 P.2d 115, 117 (Okla.Crim.App.1988) (violation of statute similar to section 77-23-5 mandates suppression); State v. Coyle, 95 Wash.2d 1, 621 P.2d 1256, 1263 (1980) (suppression required for violation of notice requirement).


Context: Nonetheless, the presence of obstructions or gates, open or closed, unlocked or locked, has been treated as only one of the many factors a trial court may consider when determining if the public use was continuous. Indeed, the Utah Supreme Court has declined opportunities to rely solely on the presence of a gate, locked or unlocked, to affirm trial courts' determinations that roads have not been dedicated to the public.

See Thomson v. Condas, 27 Utah 2d 129, 493 P.2d 639, 640-41 (1972) (weighing presence of gates, locked and unlocked, along with signage, lack of governmental maintenance, nature of use, and character of users in finding road was not abandoned); Gillmor v. Carter, 15 Utah 2d 280, 391 P.2d 426, 427 (1964) (relying on evidence of gates, as well as signs, grants of permission, past litigation initiated by the property owners alleging private road,; and contracts for exclusive use); cf. Wilhelm v. Pine Meadows Estates, Inc., 2001 UT App 285U, No. 20000559-CA, 2001 WL 1178570, at *1-*2, 2001 Utah App. LEXIS 181, at *3-*4 (Oct. 4, 2001) (per curiam) (noting that the owners had blocked access to the road several times but also weighing character of users and nature of use); Campbell, 962 P.2d at 809 (examining evidence of locked gate and testimony by members of the public who had been unable to use the road because of the gate).


Context: Thus, violations of the covenant prohibiting mobile homes exist on 1.75% of the lots in Pebble Beach. In support of its argument that this is an insufficient number of violations to constitute a waiver of the restrictive covenant, PBPOA presents a relative statistical analysis of cases where the courts have found no waiver of a restrictive covenants.

But see Tanglewood Homes Ass’n, 728 S.W.2d at 43 (holding, on allegation of separate violation, that eight violations of particular covenant in total of 56 properties (14.28%) supported finding of abandonment of restrictive covenant).

See Dempsey, 737 S.W.2d at 595(no waiver where 11 of 2,460 properties (4%) violated covenants); Tanglewood Homes Assoc. v. Henke, 728 S.W.2d 39, 44 (Tex.App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.)(no waiver where five violations existed in total of 560 properties (.89%)); New Jerusalem Baptist Church, 598 S.W.2d at 669 (finding no waiver where four violations in total of 169 properties (2.3%) existed); Underwood v. Webb, 544 S.W.2d 187, 190 (Tex.Civ.App.—Waco 1976, writ ref'd n.r.e.) (waiver did not exist when two violations existed in total of 493 properties (.4%)).


finding no waiver where four violations in total of 169 properties (2.3%) existed


Context: . In this regard, we distinguish the cases in which the denial of an expert psychiatrist was deemed a due process violation. Those cases recognized that when the defendant's mental state is an important issue and is seriously in question, and when obtaining an accurate assessment of that mental state is uniquely dependant on psychological expertise, an expert psychiatrist indeed becomes a basic and integral tool to presenting an adequate defense.

See, e.g., Ake, 470 U.S. at 74, 80-83, 105 S.Ct. at 1091-92, 1094-96 (holding that due process entitled indigent defendant to psychiatrist to present insanity defense and cross-examine state psychiatrists because of the tremendous reliance jurors place on psychiatric testimony where "there is often no single, accurate psychiatric conclusion on legal insanity”); United States v. Sloan, 776 F.2d 926, 928-29 (10th Cir.1985) (holding that due process entitled indigent defendant to psychiatrist to present defense of lack of capacity to form specific intent and to cross-examine government’s psychiatrist on this point); see also Dunn v. Roberts, 963 F.2d 308, 314 (10th Cir.1992) (finding due process violation where denying expert on battered women's syndrome prevented defendant from presenting information on specific intent, an essential element of the crime).

holding that due process entitled indigent defendant to psychiatrist to present insanity defense and cross-examine state psychiatrists because of the tremendous reliance jurors place on psychiatric testimony where "there is often no single, accurate psychiatric conclusion on legal insanity"


holding that due process entitled indigent defendant to psychiatrist to present defense of lack of capacity to form specific intent and to cross-examine government's psychiatrist on this point


Context: First, she inferred that Tommasetti's pain was not as all-disabling as he reported in light of the fact that he did not seek an aggressive treatment program and did not seek an alternative or more-tailored treatment program after he stopped taking an effective medication due to mild side effects. This is a permissible inference.

rejecting subjective pain complaints where petitioner's "claim that she experienced pain approaching the highest level imaginable was inconsistent with the 'minimal, conservative treatment' that she received"

See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.2007) (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment”); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir.1999) (rejecting subjective pain complaints where petitioner’s “claim that she experienced pain approaching the highest level imaginable was inconsistent with the ‘minimal, conservative treatment’ that she received”).

stating that "evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment"


Context: The district court did not abuse its discretion in denying Yassin's motion to vacate summary judgment and granting the government's motion to enforce the judgment, because Yassin failed to establish that the judgment was obtained through fraud, and did not explain why he could not have discovered this alleged fraud pri- or to the judgment.

See Fed.R.Civ.P. 60(b)(3); Casey, 362 F.3d at 1260 (to prevail on a Rule 60(b)(3) motion the moving party must prove that the judgment was obtained through fraud, and that the fraud was not discoverable by due diligence before or during proceedings); see also Cal. Dep’t of Social Services v. Leavitt, 523 F.3d 1025, 1031 (9th Cir.2008) (reviewing for an abuse of discretion the denial of a motion to enforce a judgment).


Context: . An example of the additional type of bias evidence that is required would be evidence that the hearing examiner stood to benefit financially from the result that was reached.

See Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (holding that mayor whose village revenues were comprised of between one-third to one-half of levied traffic fines could not be impartial hearing examiner); cf. Commonwealth of N. Mariana Islands v. Kaipat, 94 F.3d 574 (9th Cir.1996) (rejecting contention that statute earmarking civil and criminal fines for judicial building fund created improper incentive for levy of fines). Besides a direct pecuniary interest in the outcome of the proceedings, another basis for disqualifying a hearing officer exists when the decision maker has strong institutional responsibilities requiring him or her to rule in the institution’s favor.


Context: Even when the Government has discretion to act, it may not act arbitrarily or irrationally or base its actions on an unconstitutional motive.

holding that government-motion requirement of SS 5K1.1 does not impose duty on Government but that Government decision not to move must be related to legitimate governmental end

Wade v. United States, 504 U.S. 181, 186-87, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (holding that government-motion requirement of § 5K1.1 does not impose duty on Government but that Government decision not to move must be related to legitimate governmental end); see also United States v. Solis, 169 F.3d 224, 226 (5th Cir.1999) (government motion for downward departure under § 5C1.2 for defendant who provides substantial assistance in investigation cannot be withheld for unconstitutional motive).

government motion for downward departure under SS 5C1.2 for defendant who provides substantial assistance in investigation cannot be withheld for unconstitutional motive


Context: Pis.' Opp'n at 27. These policies and procedures are not D.C. law and do not create liberty interests.

"Agency protocols and procedures, like agency manuals, do not have the force or effect of a statute or an administrative regulation."

Wanzer v. Dist. of Columbia, 580 A.2d 127, 133 (D.C.1990) (“Agency protocols and procedures, like agency manuals, do not have the force or effect of a statute or an administrative regulation.”); see also Abney v. Dist. of Columbia, 580 A.2d 1036, 1041 (D.C.1990) (finding that an MPD General Order did not carry the force of law).


Context: dence therefore does not support the BIA's reliance on this omission to find Ghebremedhin incredible, because the record does not support the agency's rejection of Ghebremedhin's explanation for the omission.

See Singh v. Gonzales, 403 F.3d 1081, 1087-91 (9th Cir.2005) (stating that without officer testimony or detailed notes from the asylum interview, an Assessment to Refer provides insufficient evidence to support an adverse credibility determination); see also Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (holding the BIA must address in a reasoned manner the explanations that a petitioner offers for perceived inconsistencies).


Context: On the contrary, given the clear language of the rule and its underlying rationale, courts consistently require substantial contemporaneity. Indeed, we have previously expressed skepticism that a statement made some 40 minutes after the fact could be properly admitted as a present-sense impression.

concluding it was "not necessarily an abuse of discretion" to admit statement made "several minutes" after the fact as excited utterance, but noting "courts have recognized that the length of time separating the event from the statement [for admission as an excited utterance] may be considerably longer than for statements qualifying under the present sense impression exception of Rule 803(1

Mitchell, 145 F.3d at 577 (where robbery occurred between 9:00am and 9:15am and notes were found in getaway car a mile from the crime scene at approximately 10:00am, intervening lapse was “probably too long for applicability of the present-sense impression ... which requires the statement to be made virtually contemporaneously with the event being perceived”); see also Miller, 754 F.2d at 512 (concluding it was “not necessarily an abuse of discretion” to admit statement made “several minutes” after the fact as excited utterance, but noting “courts have recognized that the length of time separating the event from the statement [for admission as an excited utterance] may be considerably longer than for statements qualifying under the present sense impression exception of Rule 803(1)”) (emphasis added).

where robbery occurred between 9:00am and 9:15am and notes were found in getaway car a mile from the crime scene at approximately 10:00am, intervening lapse was "probably too long for applicability of the present-sense impression ... which requires the statement to be made virtually contemporaneously with the event being perceived"


Context: . There is no evidentiary basis for inferring that H & M's professional standards were met by Byrd, nor that any other associate remained with the firm notwithstanding such deficiencies in performance. And though it is undisputed that no female associate had ever been considered for partnership at H & M before Byrd's termination, Byrd has not shown that any other associate-- male or female--who failed to conform with the firm's professional standards, had ever been considered for partnership.

statistical data on general hiring patterns, though relevant, cany less probative weight in disparate treatment cases than in disparate impact cases: ''[A] company's overall employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer when dismissing a particular individual.''

See Stratus, 40 F.3d at 17 (”[F]or us to compare [female plaintiff's] treatment with that of ... male executives in a meaningful way, [plaintiff] would have to show that she was similarly situated to those men in terms of performance, qualifications and conduct, 'without such differentiating or mitigating circumstances that would distinguish' their situations.") (citation omitted); cf. LeBlanc, 6 F.3d at 848 (statistical data on general hiring patterns, though relevant, cany less probative weight in disparate treatment cases than in disparate impact cases: ‘‘[A] company’s overall employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer when dismissing a particular individual.’’).

"[F]or us to compare [female plaintiff's] treatment with that of ... male executives in a meaningful way, [plaintiff] would have to show that she was similarly situated to those men in terms of performance, qualifications and conduct, 'without such differentiating or mitigating circumstances that would distinguish' their situations."


Context: It is unclear whether our affirmance of the District Court's findings regarding actual bias ends our inquiry, or whether a post-trial allegation of jury partiality may alternatively be proven by implied or inferred bias.

"[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias."

See Smith, 455 U.S. at 215, 102 S.Ct. 940 (“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”).

But see McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J., concurring) (noting that in exceptional circumstances, post-trial hearing could demonstrate inferred bias).


Context: Because neither the plain language of the statute nor our interpretation of it compels the conclusion that Alvarado-Ca-sas must have been the direct cause of the serious bodily injury to be criminally liable under SS 1324(a)(1)(B)(iii), we conclude that the district court's error in accepting Alvarado-Casas's plea, if any, was not plain.

"[A]s we have never addressed whether obtaining a phone number and having conversations with a minor about meeting for illicit sexual activity constitutes a substantial step toward persuading a minor to engage in illicit sexual activity under SS 2422(b

See Broussard, 669 F.3d at 550 (“[A]s we have never addressed whether obtaining a phone number and having conversations with a minor about meeting for illicit sexual activity constitutes a substantial step toward persuading a minor to engage in illicit sexual activity under § 2422(b) — nor has any intervening decision clarified the issue — any error on the district court’s part in accepting Broussard’s plea on the factual basis established by the evidence could not be plain.”); id. at 550-51 (“[A]ny error the district court may have committed was not plain as we have never addressed whether an alleged violation of § 14:81.3 of the Louisiana Revised Statutes constituted ‘sexual activity for which any person can be charged with a criminal offense’ under § 2422(b).”); Trejo, 610 F.3d at 319 (“Variously describing Trejo’s claim as ‘novel’ and ‘not entirely clear under the existing case authority,’ we doom the case for plain error.”); see also Caraballo-Rodriguez, 480 F.3d at 70-76 (concluding that any error could not be plain because the defendant’s proposed reading of the statute was not compelled by its plain language or a binding judicial construction of it).

concluding that any error could not be plain because the defendant's proposed reading of the statute was not compelled by its plain language or a binding judicial construction of it


"Variously describing Trejo's claim as 'novel' and 'not entirely clear under the existing case authority,' we doom the case for plain error."


Context: Vang argues that because his French travel document expired after he entered the United States, France may forbid his return. Vang claims that the BIA therefore erred in finding him to be firmly resettled in France. Vang's position is not persuasive, however, because the fact that Vang allowed his French travel document to expire after he entered the United States cannot alter the disposition of his asylum claim.

determining that expiration of petitioner's UAE residence permit after entry into United States did not affect finding that petitioner had firmly resettled in UAE

See Yang, 79 F.3d at 934 (finding firm resettlement despite petitioners’ claim that they would no longer be able to return to country of firm resettlement due to eviration of travel documents); see also Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.1994) (determining that expiration of petitioner’s UAE residence permit after entry into United States did not affect finding that petitioner had firmly resettled in UAE). We consequently affirm the BIA’s asylum determination.

finding firm resettlement despite petitioners' claim that they would no longer be able to return to country of firm resettlement due to eviration of travel documents


Context: Hayes, Prison Suicide: An Overview and Guide to Prevention 78 (1995) (noting that inmates at high risk for suicide should be in rooms without electrical outlets). The police saw further evidence that Coscia intended to commit suicide when he tried to bite off his handcuffs and hit and kicked the walls at the station.

See Sanville v. McCaughtry, 266 F.3d 724, 738 (7th Cir.2001) (stating that strange behavior may be relevant to the determination of delib erate indifference under the Eighth Amendment when combined with other facts indicating a likelihood of suicide); cf. McKenzie v. Benton, 388 F.3d 1342, 1355 & n. 6 (10th Cir.2004) (listing wall punching as a potential indicator of the likelihood of violent conduct or suicide in an Americans with Disabilities Act case).


Context: There is no force to the argument that the destruction of duplicative materials constitutes spoliation of evidence or that there is anything improper in the DVA's practice of retaining only a single copy of particular medical records in veterans' claim files in an effort to maintain orderly records. The routine destruction of duplicative documents does not present the risk of denying an adversary access to relevant information, which is what the doctrine of spoliation is directed to.

holding that an adverse inference for spoliation of evidence requires proof that evidence was destroyed "with a culpable state of mind" and that it was "relevant to the party's claim or defense"

See Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed.Cir.2007) (holding that an adverse inference for spoliation of evidence requires proof that evidence was destroyed “with a culpable state of mind” and that it was “relevant to the party’s claim or defense”); see also Kirkendall v. Dep’t of the Army, 573 F.3d 1318, 1325-27 (Fed.Cir.2009) (spoliation found when agency destroyed relevant documents in violation its own document retention program and petitioner made a “compelling case” that his effort to prove his case was hampered by the destruction of the documents).

spoliation found when agency destroyed relevant documents in violation its own document retention program and petitioner made a "compelling case" that his effort to prove his case was hampered by the destruction of the documents


Context: Defendant argues that the assignment "can only reasonably be read to reflect Betty-as-Trustee's distribution of principal to Betty-as-beneficiary," because "there can be no serious dispute concerning the intentions of the two Trustees: they intended to and did transfer the Betty 1989 Trust's interest in the Partnership to the Betty 1992 Trust." Def.'s Opp'n at 11. This argument fails because the trustees' intentions, whatever they may have been, cannot override the unambiguous language of the assignment.

affirming the lower court's exclusion of intent evidence because "there was no ambiguity in the language of the trust instrument"

See Elmore v. Virginia Nat’l Bank, 232 Va. 310, 350 S.E.2d 603, 607 (1986) (affirming the lower court’s exclusion of intent evidence because “there was no ambiguity in the language of the trust instrument”).

"Where the language of a contract is clear and unambiguous on its face, a court will assume that the meaning ordinarily ascribed to those words reflects the intentions of the parties"

See also NRM Corp. v. Hercules, Inc., 758 F.2d 676, 681 (D.C.Cir.1985) (“Where the language of a contract is clear and unambiguous on its face, a court will assume that the meaning ordinarily ascribed to those words reflects the intentions of the parties”).


Context: The trial court was in no position to judge whether the resumed operation of the range under new conditions would create a nuisance when it had neither evidence of what those new conditions would be, nor evidence of how those new conditions affected sound frequency and levels on Wild's property. The court's opinion would have been advisory if under these circumstances it had applied the nuisance criteria and issued an injunction based on range operations that were no longer extant.

judicial power, as conferred by Vermont Constitution, is limited to the determination of "actual controversies arising between adverse litigants"

See In re Bennington School, Inc., 2004 VT 6, ¶ 19, 176 Vt. 584, 845 A.2d 832 (judicial power, as conferred by Vermont Constitution, is limited to the determination of “actual controversies arising between adverse litigants”); see also Parker v. Town of Milton, 169 Vt. 74, 77, 726 A.2d 477, 480 (1998) (“The existence of an actual controversy turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance.”) (internal quotations omitted).

"The existence of an actual controversy turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance."


Context: Courts typically have refused the instruction where the eyewitness or victim had an adequate opportunity to observe the defendant, there was corroborating evidence bolstering the identification, and/or there was no evidence that race affected the identification.

declining instruction in rape and robbery case where victim was terrorized for fifteen to twenty minutes in broad daylight and could see the attacker's face

See Hyatt, supra, 647 N.E.2d at 1171 (declining instruction in rape and robbery case where victim was terrorized for fifteen to twenty minutes in broad daylight and could see the attacker’s face); see also Commonwealth v. Engram, 43 Mass.App.Ct. 804, 686 N.E.2d 1080 (1997) (declining instruction where numerous eyewitnesses saw defendant at close range and positively identified him from a lineup and photo array).


Context: Even accepting that Defendants engaged in some monitoring and discipline, however, the Court finds that the first factor slightly favors independent contractor status.

"[E]ven assuming that, for the purposes of this motion, [Defendant] did actually exercise or retain control over [Plaintiff] as set forth in the Franchise Agreement and the Rulebook ... the court finds that the totality of the circumstances weighs in favor of finding that an independent contractor relationship existed as a matter of law."

See Browning, 885 F.Supp.2d at 608 (noting that while “the Defendants certainly had some degree of control over the overall safe performance of the Plaintiffs in their tasks[,] ... the degree of control is not so great as to weigh in favor of finding the Plaintiffs.to be employees as opposed to independent contractors”); Scruggs v. Skylink Ltd., No. 10-CV-789, 2011 WL 6026152, at *5 (S.D.W.Va. Dec. 2, 2011) (noting that, even accepting that failure to attend weekly meetings could subject plaintiffs to discipline, “no reasonable trier of fact could take these issues in context with the undisputed facts, and conclude that Plaintiffs were employees”); cf. Leach, 2011 WL 1240022, at *23 (“[E]ven assuming that, for the purposes of this motion, [Defendant] did actually exercise or retain control over [Plaintiff] as set forth in the Franchise Agreement and the Rulebook ... the court finds that the totality of the circumstances weighs in favor of finding that an independent contractor relationship existed as a matter of law.”)

noting that while "the Defendants certainly had some degree of control over the overall safe performance of the Plaintiffs in their tasks[,] ... the degree of control is not so great as to weigh in favor of finding the Plaintiffs.to be employees as opposed to independent contractors"


noting that, even accepting that failure to attend weekly meetings could subject plaintiffs to discipline, "no reasonable trier of fact could take these issues in context with the undisputed facts, and conclude that Plaintiffs were employees"


Context: Petitioner was never arrested, imprisoned, or detained. He and his wife have traveled into and from Kenya without difficulty. To bolster his asylum claim, Patel testified to various events, and the most recent occurred in 1997. The record shows that Petitioner and his family have been the victim of several crimes, but such generalized lawlessness normally does not constitute persecution.

holding "[cjonditions of political upheaval which affect the populace as a whole or in large part are generally insufficient to establish eligibility for asylum"

See Singh, 134 F.3d at 967 (stating that “[m]ere generalized lawlessness and violence between diverse populations ... generally is not sufficient” to obtain asylum); see also Meghani v. INS, 236 F.3d 843, 847 (7th Cir.2001) (holding “[cjonditions of political upheaval which affect the populace as a whole or in large part are generally insufficient to establish eligibility for asylum”); Mitev v. INS, 67 F.3d 1325, 1330-31 (7th Cir.1995) (stating that “unpleasant and even dangerous conditions do not necessarily rise to the level of persecution”). At most, Patel describes incidents that constitute harassment or discrimination based upon wealth.

stating that "[m]ere generalized lawlessness and violence between diverse populations ... generally is not sufficient" to obtain asylum


stating that "unpleasant and even dangerous conditions do not necessarily rise to the level of persecution"


Context: Given Herbert's steps to protect her identity, however -- including referring to herself in the third person -- there is no rational basis to draw such an inference. Moreover, Dixon denies having any knowledge of the complainant's identity until April 2008, long after Herbert was demoted. (Def. 56.1 Stmt. P 70) In short, there is no evidence in the record to suggest that Dixon knew at the time of Herbert's demotion in January 2008 that the December 2007 complaint to SCI was authored by Herbert. Herbert cannot rely on conjecture and speculation -- and that is all there is here-- to defeat Defendants' summary judgment motion concerning the whistleblower retaliation claim.

nothing in Title VII retaliation context that "district courts have consistently held that, with regard to the causation prong of the prima facie standard, absent any evidence to support an inference that the decision-makers knew of plaintiffs complaints, plaintiff cannot rely on circumstantial evidence of knowledge as evidence of causation"

See Manessis, 2003 WL 289969, at *15 (dismissing N.Y. Civil Service § 75-b retaliation claim because decision-maker lacked knowledge of plaintiffs complaint); see also Murray v. Visiting Nurse Servs. of NY, 528 F.Supp.2d 257, 271 (S.D.N.Y.2007) (nothing in Title VII retaliation context that “district courts have consistently held that, with regard to the causation prong of the prima facie standard, absent any evidence to support an inference that the decision-makers knew of plaintiffs complaints, plaintiff cannot rely on circumstantial evidence of knowledge as evidence of causation”); Gross v. National Broad. Co., Inc., 232 F.Supp.2d 58, 67 (S.D.N.Y.2002) (“Mere conclusory statements, conjecture or speculation” by the plaintiff will not defeat a summary judgment motion.).

dismissing N.Y. Civil Service SS 75-b retaliation claim because decision-maker lacked knowledge of plaintiffs complaint


"Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat a summary judgment motion.


Context: Under these circumstances, Pacheco's continued detention following the traffic stop amounted to a full-fledged arrest, thus requiring probable cause , to believe he was (1) unlawfully present in the United States and (2) likely to escape before Agent Myers could obtain a warrant for his arrest.

asking whether officer "had 'reason to believe' (i.e., probable cause to believe

See Quintana, 623 F.3d at 1241 (asking whether officer “had ‘reason to believe’ (i.e., probable cause to believe) that the [arrestee] was an alien subject to deportation.... [and] likely to escape before a warrant [could] be obtained” in assessing lawfulness of “a warrantless ‘administrative’ arrest for deportation proceedings under 8 U.S.C. § 1357(a)(2)”); see also Morales, 793 F.3d at 216 (“It is beyond debate that an immigration officer ... would need probable cause to arrest and detain individuals for the purpose of investigating their immigration status.”); Vargas Ramirez, 93 F.Supp.3d at 1221-22 (same).

"It is beyond debate that an immigration officer ... would need probable cause to arrest and detain individuals for the purpose of investigating their immigration status."


Context: Telegroup contends that appellants' claims "arise from" the purchase or sale of Telegroup's common stock because they allege a breach of the purchase agreement whereby claimants acquired shares of- Tel-egroup stock, which required Telegroup- to use its best efforts to register its stock.

holding that a claim for breach of a provision in a merger agreement arises from the purchase or sale of the debtor's securities

See In re NAL Fin. Group, Inc., 237 B.R. 225 (Bankr.S.D.Fla.1999) (holding that claims for breach of debtor’s agreement to use its best efforts to register its securities arise from the purchase of those securities, for purposes of § 510(b)); see also In re Betacom of Phoenix, Inc., 240 F.3d 828 (9th Cir.2001) (holding that a claim for breach of a provision in a merger agreement arises from the purchase or sale of the debtor’s securities); In re Int’l Wireless Communications Holdings, Inc., 257 B.R. 739, 746 (Bankr.D.Del.2001) (disapproving Angeles and Amarex, supra, and holding that claims against the debtor for breach of a supplement to a share purchase agreement arise from the purchase or sale of those securities); In re Kaiser Group Int’l, Inc., 260 B.R. 684 (Bankr.D.Del.2001) (holding that plaims for breach of a merger agreement arise from the purchase or sale of debtor’s securities).

holding that claims for breach of debtor's agreement to use its best efforts to register its securities arise from the purchase of those securities, for purposes of SS 510(b


disapproving Angeles and Amarex, supra, and holding that claims against the debtor for breach of a supplement to a share purchase agreement arise from the purchase or sale of those securities


holding that plaims for breach of a merger agreement arise from the purchase or sale of debtor's securities


Context: Even before the Francis decision, the supreme court had held that a settlement agreement adopted in a divorce decree falls within the purview of contract law.

See Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370, 375 (1962) (holding that judgment based on terms of settlement agreement must be interpreted under law of contracts rather than law of judgments). Since Francis, the supreme court has, on several occasions, confirmed that under Texas law the legal force and meaning of marital property settlement agreements are governed by the law of contracts. See McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex.1984); see also McCray v. McCray, 584 S.W.2d 279, 281 (Tex.1979) (applying law of contracts to contractual alimony agreement); cf. Hutchings v. Bates, 406 S.W.2d 419, 421 (Tex.1966) (holding that agreement for periodic child support payments is governed by law of contracts).


Context: Debtor argues that, objectively viewed, Sweetwater's rejection of the Plan does not make economic sense, so it must have another, improper purpose in rejecting it. It is for Sweetwater, however, and Sweet-water alone, to decide what is in its economic interest.

"Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest."

In re Fed. Support Co., 859 F.2d 17, 20 (4th Cir.1988) (“It was for [the creditor] to decide its own self-interest.”); accord, Landing Assoc., 157 B.R. at 803 (“each creditor is expected to cast his vote ‘in accordance with his perception of his own self-interest’ ”), quoting Fed. Support, 859 F.2d at 19; see also In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) (“Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest.”).

"It was for [the creditor] to decide its own self-interest."


Context: As the Supreme Court has noted, a state law "determination that [an entity] is a 'government agency,' and therefore entitled to the treatment accorded a governor, a mayor, or a state tax commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question." The analysis may differ when the government nominally controls the production of advertisements, but as a practical matter has delegated control over the speech to a particular group that represents only one segment of the population.

"We conclude that the pork industry's extensive control over the Pork Act's promotional activities prevents their attribution to the government."

See Frame, 885 F.2d at 1133-34 (describing compelled contributions to a nominally government controlled “Cattleman’s Board,” where the persons with actual control over the disbursement of funds were private individuals “whose primary or overriding purpose is to promote the welfare of the cattle producers” (quoting 7 U.S.C. § 2905(b)(4))); see also Mich. Pork Producers Ass’n v. Veneman, 348 F.3d 157, 161 (6th Cir.2003) (“We conclude that the pork industry’s extensive control over the Pork Act’s promotional activities prevents their attribution to the government.”).

describing compelled contributions to a nominally government controlled "Cattleman's Board," where the persons with actual control over the disbursement of funds were private individuals "whose primary or overriding purpose is to promote the welfare of the cattle producers" (quoting 7 U.S.C. SS 2905(b


Context: This statutory and regulatory framework, like the statutory and regulatory framework of the Americans with Disabilities Act (ADA), involves an interactive process that requires participation by both the employer and the employee.

"Although the burden is on the employer to accommodate the employee's religious needs, the employee must make some effort to cooperate with an employer's attempt at accommodation."

See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (stating that, consistent with the goals expressed in the legislative history of the religious accommodation provision, “courts have noted that bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business”) (internal quotations and citations omitted); Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987) (“Although the burden is on the employer to accommodate the employee’s religious needs, the employee must make some effort to cooperate with an employer’s attempt at accommodation.”); cf. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir.1999) (en banc) (discussing the interactive process between an employer and an employee under the ADA).


Context: Under the legal prong, an instruction on the lesser offense is proper "only if the charged crime 'could not be committed' without also committing the lesser offense." Under this test, a lesser included instruction is inappropriate when alternative means exist by which the charged crime can be committed, one of which would not result in the commission of the alleged lesser included offense.

See Davis, 121 Wn.2d at 5-6 (holding that there are no lesser included offenses of second degree felony murder because of the multiple means of committing the offense); see also Curran, 116 Wn.2d at 183 (holding thát an instruction on reckless driving was inappropriate as a. lesser included offense of vehicular homicide because the offense could be committed by the alternative means of driving with disregard for the safety of others).

holding that an instruction on reckless driving was inappropriate as a. lesser included offense of vehicular homicide because the offense could be committed by the alternative means of driving with disregard for the safety of others


Context: The district court properly determined that defendants were entitled to qualified immunity from Campbell's Free Exercise and RLUIPA claims for damages, because defendants' conduct did not violate clearly established law.

clarifying that sincerity of prisoner's religious beliefs, not objective doctrinal centrality of beliefs, determines whether Free Exercise Clause applies

See Levine v. City of Alameda, 525 F.3d 903, 906 (9th Cir.2008) (“Under the defense of qualified immunity, a government official is immune from civil damages unless his conduct violates a clearly established right of which a reasonable person would have known”); see also Shakur, 514 F.3d at 884-85 (clarifying that sincerity of prisoner’s religious beliefs, not objective doctrinal centrality of beliefs, determines whether Free Exercise Clause applies).

"Under the defense of qualified immunity, a government official is immune from civil damages unless his conduct violates a clearly established right of which a reasonable person would have known"


Context: Corson argues that the ALJ erred in relying on the grids as she exhibits nonex-ertional limitations which restrict her from performing a full range of work. Plaintiffs Memorandum at 34. The Second Circuit has directed that where a disability benefits claimant cannot perform the full range of sedentary work, a strict, mechanical application of the grids is improper; rather, the claimant must be evaluated on an individual basis, and that such evaluation on an individual basis can "can be met only by calling a vocational expert to testify as to the plaintiffs ability to perform some particular job."

reversing district court's decision upholding denial of plaintiffs claim for disability benefits and remanding for further evaluation of plaintiff on an individual basis, including testimony by a vocational expert, given that the grids do not apply to claimants who are unable to perform a full range of sedentary work

Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) (reversing district court’s decision upholding denial of plaintiffs claim for disability benefits and remanding for further evaluation of plaintiff on an individual basis, including testimony by a vocational expert, given that the grids do not apply to claimants who are unable to perform a full range of sedentary work); see also Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir.1986) (holding that application of the grids is inappropriate if a claimant suffers from nonexertional impairments which diminish his or her ability to perform a full range of work). However, the testimony of a vocational expert is not required where there is a finding that the claimant can perform a full range of work within a given category.


Context: However, as the Supreme Court observed in Morgan, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act."

"The law is clear that termination and promotion claims may not be based on discrete acts falling outside the limitations period."

Morgan, 536 U.S. at 113, 122 S.Ct. 2061; see Petrosino, 385 F.3d at 220 (“The law is clear that termination and promotion claims may not be based on discrete acts falling outside the limitations period.”); Butts, 2007 WL 259937, at *7, 2007 U.S. Dist. LEXIS 6534, at *22-23; see also Sundaram v. Brookhaven Nat’l Lab., 424 F.Supp.2d 545, 560 (E.D.N.Y.2006) (“[T]he exception does not apply to discrete, completed employment actions such as transfers, failures to promote, demotions, or inadequate wages.”) (citations omitted).

"[T]he exception does not apply to discrete, completed employment actions such as transfers, failures to promote, demotions, or inadequate wages."


Context: I am less sanguine about the majority conclusion that there was no concealment or "deliberate misstatement" within the meaning of the controlling case law in this area. However, because materiality is a sine qua non to the grant of a new trial on the basis of juror nondisclosure, Tejada, 814 So.2d at 339 (delineating three elements, all of which must exist for a party to be awarded a new trial on the basis of juror nondisclosure), we need not reach that question.

"[I]f it is not necessary to decide more, it is necessary not to decide more ... "

See Mann v. State, 937 So.2d 722, 730 (Fla. 3d DCA 2006) (Shepherd, J., specially concurring)(noting that “[the] procedural ground [was] a sufficient ground to affirm the decision of the trial court” and therefore declining to join remainder of majority opinion); N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 640 (Fla.2003) (declining to address remaining constitutional claims in case because unnecessary to disposition of the case); see also PDK Labs., Inc. v. United States DEA, 362 F.3d 786, 799 (D.C.Cir.2004)(Roberts, J., concurring) (“[I]f it is not necessary to decide more, it is necessary not to decide more ... ”).


Context: Accordingly, we conclude the court did not abuse its discretion when it included this instruction in the charge.

"A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged."

See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993) (“A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged.”); see also Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000) (petition is sufficient if it gives fair and adequate notice of facts upon which pleader bases claim).


Context: The Supreme Court has never upheld, by contrast, a police roadblock designed to promote general law enforcement purposes. Indeed, the Court has indicated that the police must have individual suspicion before they can seize someone for general law enforcement purposes.

"if the primary purpose of the [roadblock] were to detect crime or gather evidence of crime, we would agree with the contention that an individualized suspicion of wrongdoing is required"

In Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), the Court stated that “[i]t would be intolerable and unreasonable if a prohibition officer were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.” Thus, if Judge Dixon meant that the police established the Galberth roadblock in order to detect evidence of drugs or other crimes, the roadblock would be unconstitutional. See 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(b), at 551 (2d ed. 1987) (“a general roadblock ... established on the chance of finding someone who has committed a serious crime” would “quite clearly” be unconstitutional) (citation omitted); see also Ingersoll v. Palmer, 43 Cal.3d 1321, 1327-28, 743 P.2d 1299, 1303 (1987) (“if the primary purpose of the [roadblock] were to detect crime or gather evidence of crime, we would agree with the contention that an individualized suspicion of wrongdoing is required”); Meeks v. State, 692 S.W.2d 504, 508 (Tex.Crim.App.1985) (“The mere asking for a driver’s license will not validate the stopping of an automobile if it is clear that the driver’s license check was not the reason for detention”).

the governmental interest in controlling automobile thefts "is not distinguishable from the general interest in crime control" and is therefore insufficient to justify suspicionless stops

See Delaware v. Prouse, supra, 440 U.S. at 659 n. 18, 99 S.Ct. at 1399 n. 18 (the governmental interest in controlling automobile thefts “is not distinguishable from the general interest in crime control” and is therefore insufficient to justify suspicionless stops).


"The mere asking for a driver's license will not validate the stopping of an automobile if it is clear that the driver's license check was not the reason for detention"


"a general roadblock ... established on the chance of finding someone who has committed a serious crime" would "quite clearly" be unconstitutional


Context: . In his Concurring Opinion, Mr. Justice Saylor proposes that appellant was not a civil officer within the meaning of Article VI, Section 7 because he was not a statewide officer.

contending that "state-level officials were almost exclusively in view when [the precursor to Article VI, Section 7] was framed" in 1873

See Concurring Op., at 213-14, 923 A.2d at 1167 (contending that "state-level officials were almost exclusively in view when [the precursor to Article VI, Section 7] was framed” in 1873). Although he acknowledges that this Court applied Article VI, Section 7 to local officers as recently as South Newton Township Electors, supra, and In re Petition to Recall Reese, 542 Pa. 114, 665 A.2d 1162 (1995), Justice Saylor would distinguish those decisions by noting that “it is not clear that those decisions took into account the Commonwealth-official versus local-official distinction.”

Op. at 213, 923 A.2d at 1167; see also Allegheny Inst. Taxpayers Coalition v. Allegheny Regional Asset Dist., 556 Pa. 102, 727 A.2d 113, 118 (1999) (applying Article VI, Section 7 to board members of the Allegheny Regional Asset District).


Context: Other than requesting attorney's fees in their pre-judgment pleadings, the LaAsmars failed to follow any of these other required procedures. Under these circumstances, the district court did not err in not addressing their request for fees.

affirming the district court's denial of an untimely Rule 54(d)(2)(B) motion for fees in an ERISA case

See Bender; 436 F.3d at 750 (affirming the district court’s denial of an untimely Rule 54(d)(2)(B) motion for fees in an ERISA case); cf. Quigley v. Rosenthal, 427 F.3d 1232, 1236-38 (10th Cir.2005) (holding the district court did not abuse its discretion in denying attorney’s fees because plaintiffs’ Rule 54(d)(2) motion was untimely and they had failed to show excusable neglect that would justify extending the time they had to file such a motion).

holding the district court did not abuse its discretion in denying attorney's fees because plaintiffs' Rule 54(d


Context: The exact nature of Leonard's conduct is instead a disputed issue of material fact, and our legal analysis need not consider the merits of that dispute. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."

noting "an 'equality of status in the field of ideas' "

Street, 394 U.S. at 592, 89 S.Ct. 1354; Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (noting “an ‘equality of status in the field of ideas’ ”).

upholding conviction for breach of the peace where sidewalk speaker created an "immediate threat to public safety, peace, or order."

But see Feiner v. New York, 340 U.S. 315, 320, 71 S.Ct. 303, 95 L.Ed. 295 (1951) (upholding conviction for breach of the peace where sidewalk speaker created an “immediate threat to public safety, peace, or order.”)


Context: In finding the statute constitutional under the Commerce Clause, we reasoned that, unlike the Gun-Free School Zones Act at issue in Lopez, the felon-in-possession statute has an express jurisdictional element, which would ensure that the firearm possession in question affects interstate commerce.

holding that "Morrison does not change the holding in McAllister and that SS 922(g

United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) ] alters the reasoning upon which McAllister is moored.”); United States v. Dupree, 258 F.3d 1258, 1259 (11th Cir.2001) (holding that “Morrison does not change the holding in McAllister and that § 922(g) is a constitutional exercise of Congress’s commerce power.”); see also United States v. Ballinger, 395 F.3d 1218 (11th Cir.) (en banc) (rejecting facial and as-applied challenges, based on the Commerce Clause, to 18 U.S.C. § 247, pursuant to the “approach this Circuit has repeatedly taken to the nearly identical language found in § 922(g)”), pet. for cert. filed, No. 04-9627 (Apr. 7, 2005).

rejecting facial and as-applied challenges, based on the Commerce Clause, to 18 U.S.C. SS 247, pursuant to the "approach this Circuit has repeatedly taken to the nearly identical language found in SS 922(g


Context: We do not think that de la Cruz-Paulino's comment, "No, watch out the police is around, going around here," is sufficient in this context to allow a reasonable jury to conclude that de la Cruz-Paulino specifically intended to aid and abet Diaz-Perez in possessing cocaine for distribution. Even if de la Cruz-Paulino could have inferred from Diaz-Perez's sudden shift in attitude and her statements about the "two bales," and from the two government agents' opening of one of the garbage bags, that, unbeknownst to her, a drug transaction was going on, such last-minute knowledge would not support the conclusion that she shared the specific intent to possess cocaine for distribution.

stating that warning about police in the area and advice on avoiding arrest were what "anyone might do as a friend"

See Francomano, 554 F.2d at 487 (“Even if it could be inferred that appellants acquired knowledge of the throwing of the packages [of marijuana] overboard, such last minute knowledge together with all other evidence produced by the Government affords no legal basis for appellants’ conviction as aiders and abetters.”); see also United States v. Lopez-Pena, 912 F.2d 1536, 1538 (1st Cir.1989) (stating that warning about police in the area and advice on avoiding arrest were what “anyone might do as a friend”).

"Even if it could be inferred that appellants acquired knowledge of the throwing of the packages [of marijuana] overboard, such last minute knowledge together with all other evidence produced by the Government affords no legal basis for appellants' conviction as aiders and abetters."


Context: A prime function of that limited judicial review, however, is to ensure that the Board's decisions are consistent with the Act's basic premises. See, e.g., H.K.

Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970) (Board’s remedial authority does not include directing an employer to accede to a particular contract clause); cf. Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940) (Board exceeded its remedial authority in ordering employer to repay government for wages paid to illegally discharged workers because Board is not empowered to vindicate public rights).

Board's remedial authority does not include directing an employer to accede to a particular contract clause


Context: Other jurisdictions have similarly conelud-ed that juror statements about possible consequences of a jury's verdict cannot be offered as evidence under their versions of CRE 606(b).

See, eg., Dobbs v. Zant, 963 F.2d 1403, 1411 (11th Cir.1991) (testimony concerning a jury's mistaken belief that the defendant would not be executed if sentenced to death held not admissible under Federal Rule of Evidence 606(b)), rev'd on other grounds, 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993), Stlagy v. Peters, 905 F.2d 986, 1008 (7th Cir.1990) (refusing to consider evidence of a juror's erroneous statements that the defendant would serve only seven years if convicted and would not be executed if sentenced to death); Lewis v. State, 249 Ga.App. 812, 549 S.E.2d 732, 736 (2001) (refusing, under a rule similar to CRE 606(b), to consider jurors' testimony that they believed defendant would receive probation if convicted), disapproved of on other grounds by Miller v. State, 285 Ga. 285, 676 S.E.2d 178 (2009); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 330 (1994) (refusing to consider information based on juror's previous experiences regarding possibility defendant would receive parole); State v. Galbreath, 359 S.C. 398, 597 S.E.2d 845, 849 (2004) (information regarding the possible sentence the defendant would receive held not extraneous because a juror had acquired the knowledge through her own personal experience); see also Fullwood v. Lee, 290 F.3d 663, 684 (4th Cir.2002) (in a habeas corpus proceeding, a juror's statement regarding the availability of parole for the defendant was not extraneous information for purposes of the Sixth Amendment).


refusing to consider information based on juror's previous experiences regarding possibility defendant would receive parole


information regarding the possible sentence the defendant would receive held not extraneous because a juror had acquired the knowledge through her own personal experience


Context: We also recognize that Remmer established a separate, but related requirement that a defendant be entitled to a hearing when the defendant presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury.

referring to the post-trial evidentiary hearing concerning potential juror bias as a "required" hearing

See Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir.1986) (describing the Remmer presumption and explaining that “Remmer also established the requirement of a post-trial evidentiary hearing in which the prevailing party has the opportunity and burden of rebutting the presumption of juror prejudice”); see also United States v. Malloy, 758 F.2d 979, 982 (4th Cir.1985) (referring to the post-trial evidentiary hearing concerning potential juror bias as a “required” hearing); Stouffer v. Trammell, 738 F.3d 1205, 1214 (10th Cir.2013) (explaining that “[t]he trial court’s duty to conduct a Remmer hearing when genuine concerns of improper juror contact arise is clearly established by the Supreme Court”).

describing the Remmer presumption and explaining that "Remmer also established the requirement of a post-trial evidentiary hearing in which the prevailing party has the opportunity and burden of rebutting the presumption of juror prejudice"


explaining that "[t]he trial court's duty to conduct a Remmer hearing when genuine concerns of improper juror contact arise is clearly established by the Supreme Court"


Context: The Eighth Circuit has taken the view "that Rule 54(b) certifications must, either in express words or by unmistakably clear implication, contain the findings specifically required by the rule."

appeal dismissed where district judge endorsed "So Ordered" on motion for Rule 54(b

Cf. Mooney v. Frierdich, 784 F.2d 875 (8th Cir.1986) (appeal dismissed where district judge endorsed “So Ordered” on motion for Rule 54(b) certification); Kocher v. Dow Chem. Co., 132 F.3d 1225, 1228-29 (8th Cir.1997) (finding that orders “unquestionably were intended to be final for purposes of appeal.”); Speer v. City of Wynne, Arkansas, 276 F.3d 980, 987-88 (8th Cir.2002) (“Where the district court’s intent to enter a partial final judgment under Rule 54(b) is clear, the order is considered appealable.”).

district court's statement that "immediate appeal from its Order may ultimately advance termination of this litigation" was not the equivalent of a finding that there was no just reason for delay

Bullock v. Baptist Memorial Hosp., 817 F.2d 58, 59 (8th Cir.1987) (district court’s statement that “immediate appeal from its Order may ultimately advance termination of this litigation” was not the equivalent of a finding that there was no just reason for delay).


finding that orders "unquestionably were intended to be final for purposes of appeal."


"Where the district court's intent to enter a partial final judgment under Rule 54(b


Context: Washington's motion may be more properly construed as a Wis. Stat. SS 974.06 postconviction motion.

See bin-Rilla v. Israel, 113 Wis. 2d 514, 520, 335 N.W.2d 384 (1983) (We liberally construe a pro se defendant's motion and are not bound by the defendant's labels.); see also Loop v. State, 65 Wis. 2d 499, 501, 222 N.W.2d 694 (1974) (§ 974.06 motions are properly used to bring issues of jurisdictional or constitutional dimension before the court).

SS 974.06 motions are properly used to bring issues of jurisdictional or constitutional dimension before the court


Context: Dismissal of the case terminated the automatic stay and co-debtor stay as to Deutsche and all creditors. 11 U.S.C. SSSS 362(c)(2)(B) and 1301(a)(2). The court retained jurisdiction, however, to consider Deutsche's request for imposition of an equitable servitude or relief under 11 U.S.C. SS 362(d)(4), since that motion was pending at the time of dismissal and has not been withdrawn.

See In re Hardy, 209 B.R. 371, 373 (Bankr.E.D.Va.1997)(“Notwithstanding the fact that [debtor’s] bankruptcy case is closed and all scheduled debts have been discharged, the Court retains jurisdiction over the debtor’s case for certain purposes,” including when a “party claims a right or remedy created by one of the specific Bankruptcy Code sections.”) (citations omitted); cf. Matter of Querner, 7 F.3d 1199, 1201-02 (5th Cir.1993)(when main bankruptcy case dismissed or closed, court has discretion to retain jurisdiction or dismiss related proceedings).

"Notwithstanding the fact that [debtor's] bankruptcy case is closed and all scheduled debts have been discharged, the Court retains jurisdiction over the debtor's case for certain purposes," including when a "party claims a right or remedy created by one of the specific Bankruptcy Code sections."


Context: Nevertheless, in applying Article II, Section 7 of the Colorado Constitution, we have ruled that Colorado law affords broader protections in some instances than the Fourth Amendment.

See People v. Oates, 698 P.2d 811, 815 (Colo.1985)("Several times we have determined that the Colorado proscription against unreasonable searches and seizures protects a greater range of privacy interests than does its federal counterpart."); People v. - Sporleder, - 666 P.2d 135, 140 (Colo.1983)("Although Article II, Section 7 of the Colorado Constitution is substantially similar to its federal counterpart, we are not bound by the United States Supreme Court's interpretation of the Fourth Amendment when determining the seope of state constitutional protections."); see also People v. Mason, 989 P.2d 757, 759 (Colo.1999)("IWle have afforded suspects in Colorado greater rights than are available under the federal Constitution."); People v. Young, 814 P.2d 834, 842-43 (Colo.1991)("We have recognized and exercised our independent role on a number of occasions and on several have determined that the Colorado Constitution provides more protection for our citizens than do similarly or identically worded provisions of the United States Constitution.").


"We have recognized and exercised our independent role on a number of occasions and on several have determined that the Colorado Constitution provides more protection for our citizens than do similarly or identically worded provisions of the United States Constitution."


"Although Article II, Section 7 of the Colorado Constitution is substantially similar to its federal counterpart, we are not bound by the United States Supreme Court's interpretation of the Fourth Amendment when determining the seope of state constitutional protections."


Context: Reply Br. 7. An exiguous mention in one's introductory "statement of the case" does not a developed argument make, however.

"A skeletal 'argument,' really nothing more than an assertion, does not preserve a claim."

See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.”); cf. Bradshaw v. Miners' Bank, 77 F. 932, 933 (7th Cir. 1897) (expressing displeasure with appellants’ brief because its “so-called 'statement of the case' is burdened and confused with matter of argument”).

expressing displeasure with appellants' brief because its "so-called 'statement of the case' is burdened and confused with matter of argument"


Context: When the advertising at issue directly or indirectly implied that one non-Orange Book drug was the generic of or equivalent to another drug, courts have split over whether a claim was precluded.

stating that this issue "is better left to the FDA" because "this Court would be forced to determine FDA policy in order to determine the truth or falsity of the 'generic' nomenclature"

See First Horizon, 228 F.Supp.2d at 1055 (stating that this issue “is better left to the FDA” because “this Court would be forced to determine FDA policy in order to determine the truth or falsity of the ‘generic’ nomenclature”); Ethex, 273 F.Supp.2d at 846 n. 140 (finding the generic claim was within the FDA’s jurisdiction); Stratus, 273 F.Supp.2d at 793 n. 147 (same); but see Schwarz, 388 F.Supp.2d at 975 (allowing the plaintiffs claim to proceed where the defendant used the term “reference” in comparing its drug to the plaintiffs drug); Solvay, 298 F.Supp.2d at 885 (allowing “generic” claims to proceed).

allowing the plaintiffs claim to proceed where the defendant used the term "reference" in comparing its drug to the plaintiffs drug


Context: A signatory cannot base a cause of action on terms or obligations of a contract and refuse to submit to that contract's arbitration provision.

"To allow [a plaintiff] to claim the benefit of the contract and simultaneously avoid its burdens would both disregard equity and contravene the purposes underlying the enactment of the Arbitration Act."

See MS Dealer Serv. Corp., 177 F.3d at 947 (“To allow [a plaintiff] to claim the benefit of the contract and simultaneously avoid its burdens would both disregard equity and contravene the purposes underlying the enactment of the Arbitration Act.”) (internal citations omitted).

See also Hughes Masonry Co., 659 F.2d at 840-41 (finding signatory equitably estopped from repudiating arbitration clause in agreement on which suit against nonsignatory was based).


Context: Specifically, the IJ found that Ms. Romentes's demeanor at the merits hearing was casual and detached even though she was describing repeated incidents of physical abuse that she allegedly suffered at the hands of the person whom she feared in the Ukraine. Further, the IJ outlined numerous inconsistencies between Ms. Ro-mentes's testimony and her documentary evidence -- many of which went to the heart of her asylum claim -- and the IJ was unpersuaded by the reasons that Ms. Ro-mentes gave to justify or explain the discrepancies.

See Ali v. Holder, 686 F.3d 534, 537-38 (8th Cir. 2012) (credibility findings are reviewed for substantial evidence, and are conclusive unless any reasonable adjudicator would be compelled to reach contrary conclusion); cf. Redd v. Mukasey, 535 F.3d 838, 842 (8th Cir. 2008) (unexplained inconsistencies that went to heart of asylum claim supported IJ’s credibility determination).

unexplained inconsistencies that went to heart of asylum claim supported IJ's credibility determination


Context: Defendants Intelsat, Cowan, and Stoner, if they hosted the Christmas party and after-party for social reasons, will not be hable to plaintiffs. Social hosts have no duty and are not liable to parties who are injured when alcohol is served to social guests.

See, e.g., Chastain v. Litton Sys., 694 F.2d 957, 960 (4th Cir.1982) (stating North Carolina common law does not permit recovery against a social host); Hill v. Honey’s, Inc., 786 F.Supp. 549, 550 (D.S.C.1992) (explaining a social host is free from liability to third parties when he serves alcohol in South Carolina (citing Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508, 510 (Ct.App.1986))); Wright v. Sue & Charles, Inc., 131 Md.App. 466, 749 A.2d 241, 247 (Md.2000) (“Maryland does not recognize a cause of action for social host liability”); Dan B. Dobbs, The Law of Torts § 332 (1st ed. 2000) (“Social host liability today remains the exception rather than the rule.”); but see Makynen v. Mustakangas, 39 Mass.App.Ct. 309, 655 N.E.2d 1284, 1285-87 (1995) (allowing liability to be imposed upon a social host for serving an obviously intoxicated person); Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18, 21 (1971) (permitting social host liability against parties who had reason to know the people alcohol was served to might do unreasonable things).


permitting social host liability against parties who had reason to know the people alcohol was served to might do unreasonable things


"Maryland does not recognize a cause of action for social host liability"


Context: Furthermore, the June 13, 2006, order did not make the fines payable to VITA. At the conclusion of the September 7, 2006, show cause hearing, the trial judge directed that the $105,000 retroactive fine be paid to the registry of the Superior Court. The retroactive fines levied by the June 13, 2006, order do not serve to compensate VITA, but rather to vindicate the authority of the Superior Court.

"If the relief provided is a fine, it is . . . punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order."

See Hicks, 485 U.S. at 632 (“If the relief provided is a fine, it is . . . punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.”); see also Roe I, 919 F.2d at 870 (“[I]f the fine is unconditionally payable to the court, the relief is punitive, not remedial, and the contempt proceeding is, by definition, criminal.”).

"[I]f the fine is unconditionally payable to the court, the relief is punitive, not remedial, and the contempt proceeding is, by definition, criminal."


Context: . See Walker v. M & G Convoy, Inc., No. CIV.A.

88C-DE-191, 1989 WL 158511, at *1 (Del.Super.Ct. Nov.2, 1989) (concluding that claimant who slipped and fell on ice while securing cars on his employer's car trailer was an occupier of the vehicle and therefore entitled to PIP coverage); Padron v. Long Island Ins. Co., 356 So.2d 1337, 1339 (Fla.Dist.Ct.App.1978) (concluding that injuries sustained by motorist whose left foot slid as he stepped out of car on driver’s side, causing right leg to hit bottom part of car door, thereby breaking leg, was bodily injury arising out of use of motor vehicle for which motorist was entitled to PIP benefits); Putkamer, 563 N.W.2d at 688 (concluding that injuries sustained when person slipped on ice while entering car were covered by statutory scheme for PIP coverage); Haagenson, 277 N.W.2d at 652 (upholding jury verdict that no-fault provisions covered claimant's injuries suffered while entering motor vehicle); Hill, 555 N.Y.S.2d at 805-06 (concluding that injuries suffered when a claimant caught her arm in the bus door and then tripped on a nail or tile on the floor were covered by no-fault scheme); Berry, 534 S.W.2d at 432-33 (concluding PIP coverage existed for injuries sustained when claimant snapped the cartilage in his knee while exiting car); S. Surety Co. v. Davidson, 280 S.W. 336, 337 (Tex.Civ.App.-Fort Worth 1926, no writ) (concluding that coverage existed for injuries sustained when claimant stepped on a brick while exiting the car); cf. Parker v. Atlanta Cas. Co. 157 Ga.App. 539, 278 S.E.2d 119, 120 (1981) (finding that PIP coverage was not available when claimant stepped on grease when alighting from car only because policy excluded conduct within the course of business of repairing or servicing vehicles unless conduct also involved “actual operation of a motor vehicle as a vehicle on business premises”).

finding that PIP coverage was not available when claimant stepped on grease when alighting from car only because policy excluded conduct within the course of business of repairing or servicing vehicles unless conduct also involved "actual operation of a motor vehicle as a vehicle on business premises"


concluding that injuries sustained by motorist whose left foot slid as he stepped out of car on driver's side, causing right leg to hit bottom part of car door, thereby breaking leg, was bodily injury arising out of use of motor vehicle for which motorist was entitled to PIP benefits


concluding that injuries sustained when person slipped on ice while entering car were covered by statutory scheme for PIP coverage


upholding jury verdict that no-fault provisions covered claimant's injuries suffered while entering motor vehicle


concluding that injuries suffered when a claimant caught her arm in the bus door and then tripped on a nail or tile on the floor were covered by no-fault scheme


concluding PIP coverage existed for injuries sustained when claimant snapped the cartilage in his knee while exiting car


Context: Utah courts have repeatedly addressed nervousness as a factor supporting reasonable suspicion and have long downplayed its significance. Similarly, the late hour is not particularly suspicious given the location of the stop on a public highway.

Umited States v. Wood, 106 F.3d 942, 948 (10th Cir.1997); see also United States v. Sandoval, 29 F.3d 537, 548 (10th Cir.1994) ("If the law were otherwise, any person with any sort of criminal record ... could be subjected to a Terry-type investigative stop by a law enforcement officer at any time without the need for any other justification at all."). And finally, without more detail, Dennis and Straugh's presence at the motel gives little indication that they were involved in any of the illegal activities that may have previously occurred there.

See Mendoza, 748 P.2d at 183-84 ("[TJravelers use the interstate highway at all times of the day and night. ..."); State v. Steward, 806 P.2d 213, 216 (Utah Ct.App.1991) (holding no reasonable suspicion where only indicia of criminal activity was truck driving on public road late at night). Criminal history alone is also "insufficient to give rise to the necessary reasonable suspicion" to shift the focus of a traffic stop to an investigation of criminal activity.


See State v. Singleton, 2005 UT App 464, ¶ 9, 128 P.3d 28 ("[AlIthough an individual's presence in an area of expected criminal activity is not enough to support reasonable suspicion, it is a relevant consideration ...."); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("[OIfficers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.").


holding no reasonable suspicion where only indicia of criminal activity was truck driving on public road late at night


"[AlIthough an individual's presence in an area of expected criminal activity is not enough to support reasonable suspicion, it is a relevant consideration ...."


Context: Meloche's confrontation with the O'Neills lacked all the elements required by LMCO SSSS 91.073(A)-(B) and 91.074(D) -- sections of an ordinance that Meloche claims he created -- and was not reasonably calculated to apprise the O'Neills of the allegations against them or of the procedures available to present their objections.

holding that a parking citation provided adequate notice where it was "reasonably calculated to inform the vehicle owners of the allegations against them and the procedures available to obtain a hearing to contest the allegations"

See United States v. Baker, 807 F.2d 1315, 1323-24 (6th Cir.1986) (holding that notice was not constitutionally adequate where the clear-cut statutory procedures for notification were not followed); cf. Herrada v. City of Detroit, 275 F.3d 553, 557 (6th Cir.2001) (holding that a parking citation provided adequate notice where it was “reasonably calculated to inform the vehicle owners of the allegations against them and the procedures available to obtain a hearing to contest the allegations”).