Context: This conclusion is supported by several cases in which it has been held that when, as here, there is an evidentiary basis to separate the two, a determination that the defendant was insane during a later crime does not foreclose a contrary finding as to a previous one -- even one which occurred a very short time before.

insanity finding in second robbery no collateral estoppel as to robbery three hours earlier "although it is highly improbable that defendant was not suffering from the same incapacity."

See State v. Sanders, 229 So.2d 288 (Fla. 1st DCA 1969) (collateral estoppel inapplicable because of indication that defendant’s “mind snapped” during hour between two murders; compare Rawls, J., dissenting on ground that medical testimony as to two homicides “not capable of being separated,” 229 So.2d at 299); People v. Kernanen, 178 Colo. 234, 497 P.2d 8 (1972) (insanity finding in second robbery no collateral estoppel as to robbery three hours earlier “although it is highly improbable that defendant was not suffering from the same incapacity.”); see also Gray v. State, 23 Md.App. 700, 329 A.2d 751 (1974) (insanity as to November 20th murder not conclusive as to homicides on October 16th or December 11th).


Context: . Although the MCCA provides for a hearing by parties challenging an eligibility determination, the Sellers did not ask for a hearing. This fact, however, is not fatal to their SS 1983 claim.

"plaintiffs pursuing civil rights claims under 42 U.S.C. SS 1983 need not exhaust administrative remedies before filing suit in court"

See Porter v. Nussle, 534 U.S. 516, 523, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ("plaintiffs pursuing civil rights claims under 42 U.S.C. § 1983 need not exhaust administrative remedies before filing suit in court”); see also Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 521-22, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990)(holding the Medicaid Act permits enforcement under § 1983 notwithstanding inclusion of alternative state administrative procedures).

holding the Medicaid Act permits enforcement under SS 1983 notwithstanding inclusion of alternative state administrative procedures


Context: I am aware that a number of district courts have dismissed SS 1132(a)(3) claims as duplicative of SS 1132(a)(1)(B) claims on Rule 12(b)(6) motions. However, for the reasons stated above, I believe that courts are better advised to permit the parties to develop the record before addressing the issue of whether either or both claims are viable.

See, e.g. Gieger, 213 F.Supp.2d at 818 (stating that plaintiffs had alleged facts supporting claims under both sections and that question of which claim should proceed could not be resolved solely by reference to the face of the complaint); Schultz, 127 F.Supp.2d at 451 (stating that where plaintiff alleged facts supporting both § 1132(a)(1)(B) and § 1132(a)(3) claims, court should wait until record was developed before determining which claims were viable); see also Edmond v. Unum Life Ins. Co. of Am., No. 1:03-CV-1316-CC, 2004 WL 1406098, at *3, 2004 U.S. Dist. LEXIS 11861, at *8 (N.D.Ga. Jan. 16, 2004) (stating that at the pleading stage, plaintiff may simultaneously assert alternate claims for recovery of benefits under § 1132(a)(1)(B) and for breach of fiduciary duty under § 1132(a)(3)). In addition, the cases cited previously in which circuit courts rejected § 1132(a)(3) claims as du-plicative, Tolson, Wilkins, Wald and For-syth, all involved decisions on summary judgment motions rather than motions to dismiss. Thus, I will deny Standard’s motion to dismiss plaintiffs § 1132(a)(3) claim.

stating that at the pleading stage, plaintiff may simultaneously assert alternate claims for recovery of benefits under SS 1132(a)(1)(B) and for breach of fiduciary duty under SS 1132(a)(3


stating that where plaintiff alleged facts supporting both SS 1132(a


Context: Courts of appeals have followed the Supreme Court's lead in assuming jurisdiction and ruling on the merits against the party invoking jurisdiction.

court assumes jurisdiction arguendo and holds that plaintiff's damages claim is time barred

See, e.g., Edwards v. Carter, 580 F.2d 1055, 1056-57 (D.C.Cir.), cert. denied, 436 U.S. 907, 98 S.Ct. 2240, 56 L.Ed.2d 406 (1978), discussed infra; Adams v. Vance, 570 F.2d 950 (D.C.Cir. 1978) (per curiam), discussed infra; Ripon Society v. National Republican Party, 525 F.2d 567, 576 n. 26 & 578 n. 28 (D.C. Cir.1975) (assuming, without deciding, jurisdiction), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976); Kaiser v. Armstrong World Industries, Inc., 872 F.2d 512, 514 (1st Cir.1989) (court assumes jurisdiction arguendo and holds that plaintiff’s damages claim is time barred); Federal Deposit Insurance Corp. v. Caledonia Investment Corp., 862 F.2d 378, 381 (1st Cir.1988) (“[s]ince we affirm on the merits, however, we need not decide the jurisdictional issue because the result is the same”); Switlik v. Hardwicke Co., 651 F.2d 852 (3d Cir.), cert. denied, 454 U.S. 1064, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981), discussed infra; Mitchell v. West Feliciana Parish School Board, 507 F.2d 662, 666-67 (5th Cir.1975), discussed infra; Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 389 n. 1 (5th Cir. 1976), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977) (consolidated cases in which court avoided challenge to jurisdiction as to one case because other cases were clearly within court’s jurisdiction); Forster v. County of Santa Barbara, 896 F.2d 1146 (9th Cir.1990) (ignoring jurisdictional question because of factual dispute, unresolved at district court level, over whether appellant filed timely notice of appeal); Wolder v. United States, 807 F.2d 1506, 1507 (9th Cir.1987) (per curiam) (“where the jurisdictional question is complex and the appeal is clearly without merit,” court will avoid jurisdictional question and rule on merits); Lehner v. United States, 685 F.2d 1187 (9th Cir.1982) (court avoids question of whether jurisdiction exists over claims for money damages, because jurisdiction over equitable claims was clear, and merits would not be affected), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983).

characterizing as "jurisdictional" the question of whether a note in issue was a security under section 10(b

Cf. Friedman v. Beame, 558 F.2d 1107, 1110 n. 3 (2d Cir. 1977) (assuming standing in order to reach the merits); Franklin Savings Bank of New York v. Levy, 551 F.2d 521, 528 (2d Cir.1977) (characterizing as “jurisdictional” the question of whether a note in issue was a security under section 10(b) of the Securities and Exchange Act of 1934, and avoiding the question to reach the “merits”).


"[s]ince we affirm on the merits, however, we need not decide the jurisdictional issue because the result is the same"


consolidated cases in which court avoided challenge to jurisdiction as to one case because other cases were clearly within court's jurisdiction


ignoring jurisdictional question because of factual dispute, unresolved at district court level, over whether appellant filed timely notice of appeal


"where the jurisdictional question is complex and the appeal is clearly without merit," court will avoid jurisdictional question and rule on merits


court avoids question of whether jurisdiction exists over claims for money damages, because jurisdiction over equitable claims was clear, and merits would not be affected


Context: The District Court considered the facts before it through the lens of the injunction's original purpose. And it concluded that the land transfer would frustrate that purpose.

the transfer would "keep the Latin cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation"

See 364 F. Supp. 2d, at 1182 (the transfer would “keep the Latin cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation”); see also 527 F. 3d, at 783 (finding that “[n]othing in the present posture of the case alters . . . earlier conclusions” regarding what a reasonable observer would perceive).

finding that "[n]othing in the present posture of the case alters . . . earlier conclusions" regarding what a reasonable observer would perceive


Context: He too cites to numerous cases -- but also none by the Third Circuit -- that have confronted this exact issue and have concluded that state failure-to-warn claims are not preempted by the FDCA and its attendant regulations. See, e.g., Hurley v. Lederle Labs.

noting "the great majority of United States district courts which have addressed this issue have ruled against preemption" and Citing seventeen previous decisions to that effect

Div. of Am. Cyanamid Co., 863 F.2d 1173 (5th Cir.1988) (noting “the great majority of United States district courts which have addressed this issue have ruled against preemption” and Citing seventeen previous decisions to that effect); Laisure-Radke, 2006 WL 901657 at *3 (involving the anti-depressant Prozac); McNellis, Civ. No. 05-1286, 14 (involving the antidepressant Zoloft); Witczak, 377 F.Supp.2d at 729 (involving Zoloft); Zikis, Civ. No. 04-8104, 8 (involving Zoloft); Cartwright, 369 F.Supp.2d at 887 (involving Zoloft); In re Paxil Litig., [docket # ], 2002 WL 31375497, *1 (C.D.Cal,2002) (involving the anti-depressant Paxil).

See also Osburn v. Anchor Labs., Inc., 825 F.2d 908, 912-13 (5th Cir.1987) (involving FDA regulations for veterinary drugs, which are very similar, if not virtually identical to the regulations regarding drugs for humans); Caraker v. Sandoz Pharm. Corp., 172 F.Supp.2d 1018, 1032-36 (S.D.Ill.2001) (manufacturer’s common law duty under Illinois law to warn individuals of postpartum lactation-control drug’s dangers was not preempted by federal law).


manufacturer's common law duty under Illinois law to warn individuals of postpartum lactation-control drug's dangers was not preempted by federal law


Context: The government responds, inter alia, that the defense of laches may not be invoked against it in this context.

"[LJaches is not available against the federal government when it undertakes to enforce a public right or protect the public interest."

See United States v. Angell, 292 F.3d 333, 338 (2d Cir.2002) (“[LJaches is not available against the federal government when it undertakes to enforce a public right or protect the public interest.”); see also Costello v. United States., 365 U.S. 265, 281-82, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) (noting that “[i]t has consistently been held in the lower courts that delay which might support a defense of laches in ordinary equitable proceedings between private litigants will not bar a denaturalization proceeding brought by the Government,” but reserving the question).

noting that "[i]t has consistently been held in the lower courts that delay which might support a defense of laches in ordinary equitable proceedings between private litigants will not bar a denaturalization proceeding brought by the Government," but reserving the question


Context: In contrast, we have permitted recovery of prejudgment interest in cases where the element of uncertainty was greatly reduced.

See Amert, supra, citing Barton Masonry, Inc. v. Varilek, 375 N.W.2d 200 (S.D.1985) (home improvements calculated from invoices); Dougherty v. Beckman, 347 N.W.2d 587 (S.D.1984) (construction cost of townhouse with an agreed price plus undisputed costs of extras); Beka, supra (contract specified amount of and price of ore to be delivered, less undisputed evidence of delivery cost); see also Northwestern Engineering Co. v. Thunderbolt Enterprises, 301 N.W.2d 421 (S.D.1981) (receivables for construction work performed pursuant to contract, including addition of amount retained, deduction for payments made, and offset for other work).


Context: An examination of the case law on issues of juror misconduct demonstrates that the court has a duty to fully investigate allegations of juror misconduct before ruling on a motion for a mistrial, and that failure to conduct a voir dire examination of the jurors before resolving the issue of prejudice is an abuse of the trial judge's discretion. Generally, in cases where the trial judge or the parties conducted a voir dire examination of the juror or jurors in question, the appellate courts have upheld the trial court's decision on the issue of prejudice to the defendant.

overruling the trial judge's determination about prejudice, despite a voir dire of the jurors, because "[ajlthough the jurors may have honestly thought that they could disregard the information in the articles, in our judgment, any doubts the jurors may have had, reasonable or otherwise, would have been resolved against appellant,--even if only subconsciously--as a result of the information contained in the articles"

E.g., Grandison, 305 Md. at 726-27, 506 A.2d at 618-19; Eades v. State, 75 Md.App. 411, 423-24, 541 A.2d 1001, 1008 (1988); Summers, 152 Md.App. at 377, 831 A.2d at 1142; Ezenwa v. State, 82 Md.App. 489, 518, 572 A.2d 1101, 1114-15 (1990); Allen, 89 Md.App. at 47-48, 597 A.2d at 500; Tejeda, 481 F.3d at 52; United States v. Peterson, 385 F.3d 127 (2d Cir.2004); United States v. Ramos, 71 F.3d 1150 (5th Cir.1995); Sears, 663 F.2d at 899-900; United States v. Puckett, 692 F.2d 663, 669-70 (10th Cir.1982); see also Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86 (1982) (noting that voir dire and protective instructions are “the safeguards of juror impartiality” when a juror is placed in a “potentially compromising situation”); but see Wright, 131 Md.App. at 271, 748 A.2d at 1065 (overruling the trial judge’s determination about prejudice, despite a voir dire of the jurors, because “[ajlthough the jurors may have honestly thought that they could disregard the information in the articles, in our judgment, any doubts the jurors may have had, reasonable or otherwise, would have been resolved against appellant,—even if only subconsciously—as a result of the information contained in the articles”).

noting that voir dire and protective instructions are "the safeguards of juror impartiality" when a juror is placed in a "potentially compromising situation"


Context: The question was whether, in reviewing a COA application to see if an appealable issue exists, we should consider issues that were raised in the district court, but omitted from the COA application. We concluded in Beatty "that the other grounds for relief alleged in [petitioner's] section 2255 motion have been abandoned for lack of inclusion in the pa pers filed in this Court."

observing that this Court can "expand a petitioner's COA when appropriate"

See, e.g., Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir.2002) (holding that petitioner’s claim, asserted in a subsequent brief, was not waived due to omission from the COA application); cf. Green v. Mazzucca, 377 F.3d 182, 183 (2d Cir.2004) (per curiam) (observing that this Court can “expand a petitioner’s COA when appropriate”).

holding that petitioner's claim, asserted in a subsequent brief, was not waived due to omission from the COA application


Context: E.g. And, we take note that admissibility of all evidence, particularly scientific evidence being used in a criminal proceeding, must be "clearly established."

on cross-examination of defendant's diminished capacity expert witness, prosecutor's questions incorporating rapist profile traits, not disagreed with by the expert, was proper cross-examination and not substantive proffer of rapist profile methodology

Contrast State v. Clowney, 299 N.J.Super. 1, 19-20, 690 A.2d 612 (App.Div.), certif. denied, 151 N.J. 77, 697 A.2d 549 (1997) (on cross-examination of defendant’s diminished capacity expert witness, prosecutor’s questions incorporating rapist profile traits, not disagreed with by the expert, was proper cross-examination and not substantive proffer of rapist profile methodology).

"[t]he need for a high degree of scientific acceptance, and particularly reliability, is vital when a criminal case is involved where the individual's freedom or, in fact, his life may be at stake."

State v. Haskins, 131 N.J. 643, 649, 622 A.2d 867 (1993); State v. Cary, 99 N.J.Super. 323, 333, 239 A.2d 680 (Law Div.1968), aff'd, 56 N.J. 16, 264 A.2d 209 (3970) (“[t]he need for a high degree of scientific acceptance, and particularly reliability, is vital when a criminal case is involved where the individual’s freedom or, in fact, his life may be at stake.”). See State v. Fortin, 318 N.J.Super. 577, 609, 724 A.2d 818 (App.Div.1999) (in murder trial, linkage-analysis methodology of identifying defendant as the murderer based upon a comparison of one other crime committed by him not scientifically reliable).


Context: 16. Instead, when an employee who is eligible for FMLA leave notifies his or her employer of the need to take leave for a qualifying reason, the FMLA places the risk of ignorance on the employer.

See Stoops v. One Call Comm., Inc., 141 F.3d 309, 312 (7th Cir.1998) (employee need not mention, and may be ignorant of, the FMLA, yet be protected as long as enough information is given to put employer on notice that FMLA-qualifying leave is needed); Price, 117 F.3d at 1025-26 (employee’s request for paid sick leave put employer on notice that leave was possibly FMLA-protected); see also Viereck v. City of Gloucester, 961 F.Supp. 703, 707 (D.N.J. 1997) (employee who told employer she was hospitalized and would be off work for some time put employer on notice of a serious health condition).


employee's request for paid sick leave put employer on notice that leave was possibly FMLA-protected


Context: A habeas petition is considered pending during one full round of state review, which in California includes petitions filed in Superior Court, the Court of Appeal, and the Supreme Court.

"[I]f a state allows petitioners to file second or subsequent petitions for post-conviction relief, federal courts should not undermine the state's decision by refusing to toll the one-year period of limitation of SS 2244(d

See King v. Roe, 340 F.3d 821, 823 (9th Cir.2003) (per curiam) (recognizing that a habeas petitioner may be entitled to tolling during a second round of petitions, but holding that the statute is not tolled between rounds); Dils v. Small, 260 F.3d 984, 985-86 (9th Cir.2001) (noting that petitioner was entitled to tolling during first, second, and third rounds of state habeas petitions but not between rounds); see also Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.1998) (“[I]f a state allows petitioners to file second or subsequent petitions for post-conviction relief, federal courts should not undermine the state’s decision by refusing to toll the one-year period of limitation of § 2244(d)(1) where a second or subsequent petition is pending in the state court system.”).


noting that petitioner was entitled to tolling during first, second, and third rounds of state habeas petitions but not between rounds


Context: However, the New York custody order under which Dorchester County DSS assumed custody is not in the record on appeal and, thus, we are not apprised of its terms. In any event, while Judge Biggs's order is the law of the case, the mother was required to argue that fact before the trial court as an issue of res judicata, which she has not done.

a successor judge has no "discretion" to "reweigh the evidence where the trial judge has made findings of fact supported by evidence in the record"

Carolina Baking Co. v. Geilfuss, 169 S.C. 348, 168 S.E. 849 (1933) (while circuit court judge had no authority to change or modify another circuit court judge’s order, the second order is res judicata as to those who sought, consented to or acquiesced in it); see also, Charleston County DSS, 317 S.C. at 291, 454 S.E.2d at 312 (a successor judge has no “discretion” to “reweigh the evidence where the trial judge has made findings of fact supported by evidence in the record”)!

while circuit court judge had no authority to change or modify another circuit court judge's order, the second order is res judicata as to those who sought, consented to or acquiesced in it


Context: We have not directly addressed this issue before. But, to date, four other circuits -- the First, Seventh, Eighth, and Eleventh Circuits -- have extended Engquist beyond the context of government employment.

refusing to extend Engquist to a claim challenging the state's exercise of "its regulatory and licensing power"

See Caesars Mass. Mgmt. Co. v. Crosby, 778 F.3d 327, 336-37 (1st Cir.2015) (applying Engquist to preclude four corporate plaintiffs from asserting an equal protection claim arising out of a decision by the Massachusetts Gaming Commission finding them unsuitable as proposed operators of a casino); Srail v. Village of Lisle, 588 F.3d 940, 944-45 (7th Cir.2009) (extending Engquist to preclude equal protection claim filed by residents of an incorporated subdivision claiming that the village in which they resided violated the Equal Protection Clause by refusing to supply water to subdivisions and schools attended by their children at adequate firefighting pressure and volume); Flowers v. City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir.2009) (“In light of Engquist, ... we conclude that while a police officer’s investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim.”); United States v. Moore, 543 F.3d 891, 901 (7th Cir.2008) (extending Engquist to preclude class-of-one claims challenging prosecutorial decisions); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir.2008) (“We have little trouble applying the reasoning in Engquist ... to the circumstances in this case involving a government-contractor relationship.”); but see Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 142-43 (2d Cir.2010) (refusing to extend Engquist to a claim challenging the state’s exercise of “its regulatory and licensing power”); Hanes v. Zurick, 578 F.3d 491, 495-96 (7th Cir.2009) (refusing to extend Engquist to bar class-of-one claim alleging that defendant police officers repeatedly arrested plaintiff without cause).


refusing to extend Engquist to bar class-of-one claim alleging that defendant police officers repeatedly arrested plaintiff without cause


extending Engquist to preclude equal protection claim filed by residents of an incorporated subdivision claiming that the village in which they resided violated the Equal Protection Clause by refusing to supply water to subdivisions and schools attended by their children at adequate firefighting pressure and volume


"In light of Engquist, ... we conclude that while a police officer's investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim."


"We have little trouble applying the reasoning in Engquist ... to the circumstances in this case involving a government-contractor relationship."


Context: Turning more specifically to the issue before the Court, on a motion for judg ment on the pleadings, as with motions to dismiss pursuant to Rule 12(b), the Court is not strictly limited to the facts addressed in the pleadings; the Court may take judicial notice of additional facts where appropriate.

"On a motion to dismiss, we may take judicial notice of matters of public record outside the pleadings."

MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (“On a motion to dismiss, we may take judicial notice of matters of public record outside the pleadings.”) (citations omitted); Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979) (on defendant’s motion to dismiss, the Court will consider factual allegations of complaint and matters of general public record); see, e.g., Huntt v. Government of the Virgin Islands, 339 F.2d 309, 310 (3d Cir.1964) (taking judicial notice of certain facts on a Rule 12(c) motion).


on defendant's motion to dismiss, the Court will consider factual allegations of complaint and matters of general public record


Context: Furthermore, we find that the topic of workplace tobacco usage is unlike those significant core entrepreneurial topics that are more naturally considered to be inherently managerial in nature such as decisions regarding the programs of the employer, standards of service, overall budget, use of technologies, organizational structure, and selection and direction of employees. See 43 P.S. SS 1101.702. Thus, we conclude that collective bargaining over the policy regarding tobacco usage does not unduly infringe upon the employer's inherent managerial decision making. Therefore, in these circumstances, the Borough's ban on tobacco products was not a managerial prerogative, and, thus, was subject to mandatory collective bargaining.

concluding mission to educate public about dangers of smoking was not compelling need that rendered ban on smoking in workplace non-bargainable under Federal Service Labor-Management Relations Act, 5 U.S.C. SS 7101 et seq.

See Crawford County, 659 A.2d at 1081-82 (finding ban on smoking in jail to be a mandatory subject of bargaining and rejecting the argument that policy concerns relating to health and second hand smoke and possible fire hazard rendered the topic a managerial prerogative); Commonwealth of Pennsylvania, 459 A.2d at 455 (determining workplace smoking was “at the center of those subjects properly described as ‘conditions of employment’ and to be entirely unrelated to those entrepreneurial or managerial judgments fundamental to the basic direction of the enterprise”); see also Dep’t of Health and Human Serv. v. FLRA, 920 F.2d 45, 47-8 (D.C.Cir.1990) (concluding mission to educate public about dangers of smoking was not compelling need that rendered ban on smoking in workplace non-bargainable under Federal Service Labor-Management Relations Act, 5 U.S.C. § 7101 et seq.).


determining workplace smoking was "at the center of those subjects properly described as 'conditions of employment' and to be entirely unrelated to those entrepreneurial or managerial judgments fundamental to the basic direction of the enterprise"


Context: Fourth, and finally, if the order of payment is not forthcoming, the equity court may find a non-paying party in contempt, upon proper petition thereof. Such a continuing review of a divorced couple's relative rights and duties under the divorce decree is consistent with the powers and jurisdiction of an equity court.

"The General Assembly was unambiguously endowing the equity court sitting in divorce ... with the general powers normally exercised by that court in other matters."

See FL § 1-201 and § 1-203 (formerly CJ § 3-603); Winston v. Winston, 290 Md. 641, 648-53, 431 A.2d 1330 (1981) (“The General Assembly was unambiguously endowing the equity court sitting in divorce ... with the general powers normally exercised by that court in other matters.”); see also Brewster v. Brewster, 207 Md. 193, 199, 114 A.2d 53 (1955) (“And it is well settled that the jurisdiction of an equity court, once acquired, continues until all matters in litigation are finally disposed of.”).

"And it is well settled that the jurisdiction of an equity court, once acquired, continues until all matters in litigation are finally disposed of."


Context: Respondents contend that under Rhude parties can never contractually agree to be personally liable for ad valorem taxes. We disagree. First, we note that by undertaking an analysis of the parties' lease agreement, the Rhude court implicitly recognized that a contract can create personal liability to pay ad valorem taxes.

acknowledging that the state's argument would be tenable if the court ignored certain contractual language

See id. at 20, 123 N.W.2d at 199 (acknowledging that the state’s argument would be tenable if the court ignored certain contractual language); see also State v. Barrett & Zimmerman, 228 Minn. 96, 99, 36 N.W.2d 590, 593 (1949) (recognizing that an owner of property could be personally liable to one who voluntarily pays ad valorem taxes if the parties executed a valid contract or agreement). If a contract could never create personal liability, the Rhude court’s analysis of the lease agreement would be superfluous.


Context: The appellant raises a related error that the Court must address so that it will not be repeated by the Board on remand. It is well settled that the Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court's opinion or that would require the Court to issue an advisory opinion. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has recognized the need to address additional arguments, after the court determines that remand is necessary, in order to provide guidance to the lower tribunal.

See Xerox Corp. v. 3Com Corp., 458 F.3d 1310, 1314-1315 (Fed.Cir.2006) (discussing a prior decision in which the court addressed additional arguments for the express purpose of providing guidance to the district court on remand); see also Taylor v. McKeithen, 407 U.S. 191, 194 n. 4, 92 S.Ct. 1980, 32 L.Ed.2d 648 (1972) (stating that courts of appeal have wide latitude in deciding how to write an opinion); accord Bernklau v. Principi, 291 F.3d 795, 801 (Fed.Cir.2002).


Context: The relevant facts regarding the basis for and means to challenge the HomeWorks charge were neither obscured, nor inaccessible.

rejecting plaintiffs claim that the voluntary payment doctrine was inapplicable because "the facts were not obscured nor were they inaccessible as plaintiff claims" and in fact the relevant information was available "from [plaintiffs] own client"

Goldstein Oil Co. v. Cook Cty., 156 Ill.App.3d 180, 108 Ill.Dec. 842, 509 N.E.2d 538, 542 (1987) (rejecting plaintiffs claim that the voluntary payment doctrine was inapplicable because “the facts were not obscured nor were they inaccessible as plaintiff claims” and in fact the relevant information was available “from [plaintiffs] own client”); see also Randazzo, 262 F.3d at 667 (explaining that the voluntary payment doctrine “holds that a person who voluntarily pays another with full 'knowledge of the facts will not be entitled to restitution”). As the district court noted, the charge by Adaptive provided the name of the charge as Home-Works Plus — the name of the product discussed in the telemarketing phone call— and provided a telephone number next to the charge for customers to call. Spivey, 660 F.Supp.2d at 951.

explaining that the voluntary payment doctrine "holds that a person who voluntarily pays another with full 'knowledge of the facts will not be entitled to restitution"


Context: This claim is barred from federal habeas review due to the imposition of an independent and adequate state procedural bar.

attorney error in filing state habeas appeal late "cannot be constitutionally ineffective"

See Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546 (Court holding that there is no constitutional right to counsel in state post-conviction proceedings); see also Ogan, 297 F.3d 349, 357 (5th Cir.2002) (attorney error in filing state habeas appeal late “cannot be constitutionally ineffective”); see also Lewis v. Casey, 518 U.S. 343, 377, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (economic parity not required by Fourteenth Amendment and no right to counsel in state post-conviction proceedings).


economic parity not required by Fourteenth Amendment and no right to counsel in state post-conviction proceedings


Context: The district court followed this Court's three-step sentencing process by (1) calculating the applicable Guidelines range; (2) ruling on all departure motions; and (3) exercising the court's discretion by considering all relevant 18 U.S.C. SS 3553(a) factors. The District Court then imposed a substantively reasonable sentence well below the Guidelines range.

"A sentence that falls within the recommended Guidelines range, while not presumptively reasonable, is less likely to be unreasonable than a sentence outside the range."

See United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc) (explaining that a procedurally sound sentence will be affirmed “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided”); see also Lessner, 498 F.3d at 204 (“A sentence that falls within the recommended Guidelines range, while not presumptively reasonable, is less likely to be unreasonable than a sentence outside the range.”)- Any appeal of the District Court’s sentence would be frivolous for an additional reason: Pursuant to the Plea Agreement, Tucker agreed not to appeal his sentence if it “f[ell] within or below the Guidelines range that resultfed] from the agreed total Guidelines offense level of 42.” Because Tucker’s sentence of 264 months is well below the relevant Guidelines range, Tucker’s Plea Agreement bars him from challenging the sentence.

explaining that a procedurally sound sentence will be affirmed "unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided"


Context: There is no indication the plaintiffs seek disqualification as a litigation tactic or to harass the Cotters.

"Where, as here, it is opposing counsel who seeks disqualification, we must 'be alert that the Canons of Ethics are not brandished for tactical advantage' "

See Steinert, 73 Mass.App.Ct. at 288, quoting Serody, 19 Mass.App.Ct. at 414 (“Where, as here, it is opposing counsel who seeks disqualification, we must ‘be alert that the Canons of Ethics are not brandished for tactical advantage’ ”); see also Gorovitz v. Planning Bd. of Nantucket 394 Mass. 246, 250 n.7 (1985) (“Court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics”).

"Court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics"


Context: Substantial evidence also supports the Board's finding that the Union's information request did not seek confidential information, did not constitute harassment, and was not overbroad, unduly burdensome, or sought in bad faith. Moreover, because an employer's statutory duty to provide requested relevant information is not limited to "information relevant to grievable disputes," Endo's objections to the underlying grievance's merits do not excuse its noncompliance.

See N.L.R.B. v. Safeway Stores, Inc., 622 F.2d 425, 430 (9th Cir. 1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981) (declining to add a grievability requirement to federal labor law); see also N.L.R.B. v. Acme Indus. Co., 385 U.S. 432, 436-38, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967) (rejecting the argument that a grievance’s merits limit an employer’s statutory duty to disclose requested relevant information).

rejecting the argument that a grievance's merits limit an employer's statutory duty to disclose requested relevant information


Context: See PROLACTO's Mem. Supp. Mot. Reconsid., ECF No. 144-1, at 15. But PROLACTO fails to demonstrate where in the summary judgment briefing it specifically argued that this should be the relevant market under the famous mark doctrine. Instead, the Court finds that PROLACTO is attempting to take a second bite at the apple by proposing, for the first time, a new test for determining the relevant consumer market under the famous mark doctrine.

See Judicial Watch, 466 F.Supp.2d at 123 (discouraging reconsideration when a party merely seeks a second bite at the apple); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 n. 4 (D.D.C.2011) (motion for reconsideration is not “a vehicle for presenting theories or arguments that could have been advanced earlier”).

motion for reconsideration is not "a vehicle for presenting theories or arguments that could have been advanced earlier"


Context: Therefore, "the mere fact that [the debtor] can claim an exemption does not necessarily mean that [the debtor] is entitled to it." Id. This conclusion is supported by other cases where bankruptcy courts have allowed a motion to amend the debtor's schedules to include an asset, but subsequently denied the debtor's claimed exemption.

after allowing motion to amend schedules to claim exemption in personal injury settlement, court sustained trustee's objection to debtor's claim of exemption, finding debtor had acted in bad faith when he failed to disclose personal injury claim as an asset

See, e.g., Yonikus, 996 F.2d at 866; see also St. Angelo, 189 B.R. at 28 (after allowing motion to amend schedules to claim exemption in personal injury settlement, court sustained trustee’s objection to debtor’s claim of exemption, finding debtor had acted in bad faith when he failed to disclose personal injury claim as an asset); cf. Snyder, 279 B.R. at 6 (although court found that creditor’s objection to debtor’s motion to amend schedules on prejudice grounds was properly raised, the court allowed the motion to amend but preserved the prejudice defense as one the creditor could assert in opposition to the motion to avoid lien).

although court found that creditor's objection to debtor's motion to amend schedules on prejudice grounds was properly raised, the court allowed the motion to amend but preserved the prejudice defense as one the creditor could assert in opposition to the motion to avoid lien


Context: Many of the cases Defendants cite for support acknowledge the concept of secondary meaning.

See Damn I’m Good, 514 F.Supp. at 1360 (“stating that the doctrine of aesthetic functionality has no applicability in situations where a potential buyer is motivated by the aesthetic features of the design rather than the source of the product”); see also Meadowcraft, Inc. v. B.I. Indus., Inc., 226 U.S.P.Q. 244 (N.D.Ala.1985) (stating that the dogwood floral design at issue constituted an aesthetic benefit to consumers rather than indicator of source); Deere & Co. v. Farmhand, Inc., 560 F.Supp. 85 (S.D.Iowa 1982) (“Some designs adopted for the purpose of identification are not wholly useless, but perform some utilitarian function.

"stating that the doctrine of aesthetic functionality has no applicability in situations where a potential buyer is motivated by the aesthetic features of the design rather than the source of the product"


Context: Moreover, courts have applied the requirement where the debtor has either vacated or was not using all of the leasehold premises during the post-petition, pre-rejection period.

"Even though the Debtor-in-possession was never in physical possession of any of its 100 plus shopping center locations, those landlords who filed motions compelling payment of rent and other charges under SS 365(d

See In re Compuadd Corp., 166 B.R. 862, 866 (Bankr.W.D.Tex.1994) (“Even though the Debtor-in-possession was never in physical possession of any of its 100 plus shopping center locations, those landlords who filed motions compelling payment of rent and other charges under § 365(d)(3) are entitled an order requiring it to pay the rent and other charges under the lease which came due and owing during the sixty-day period following the petition date, save and except those few situations in which the landlord sought a lesser period of time of rent”); In re Coastal Dry Dock, supra (debtor was using only ten percent of the leased space); In re Klein Sleep Products, Inc., 78 F.3d 18, 30, ftn. 7 (2d Cir.1996) (“In either event, of course, the landlord is entitled to recover as an administrative expense the rent due while the debtor and the bankruptcy court debate whether to assume the lease. 11 U.S.C. 365(d)(3)”).

adopted majority view that "the plain meaning of the provision 'notwithstanding section 503(b

See also In re Child World, Inc., 161 B.R. 571, 576 (S.D.N.Y.1993); In re Pacific-Atlantic Trading Co., 27 F.3d 401, 405 (9th Cir.1994) (“We observe, however, that section 365(d)(3) expresses the intent of Congress to secure for lessors the full amount of rent due during the 60-day period while the trustee determines to accept or reject the lease, regardless of any benefit to the estate”); Paul Harris Stores, Inc. v. Mabel L. Salter Realty Trust (In re Paul Harris Stores), 148 B.R. 307, 314 (S.D.Ind.1992) (lessor need not show postpetition rent is actual and necessary for preserving estate); In re Telesphere Communications, Inc., 148 B.R. 525, 531 (Bankr.N.D.Ill.1992) (“Pursuant to the plain language of Section 365(d)(3), the trustee or debtor in possession has a duty, prior to assumption or rejection of a lease of nonresidential real property, to make timely payment of the full rent due, from any available funds”); In re Tobago Bay Trading Co., 142 B.R. 528, 533 (Bankr.N.D.Ga.1991) (adopted majority view that “the plain meaning of the provision ‘notwithstanding section 503(b)(1) of this title’ obviates the requirement that administrative expense status be proven”) (citations omitted).


"In either event, of course, the landlord is entitled to recover as an administrative expense the rent due while the debtor and the bankruptcy court debate whether to assume the lease. 11 U.S.C. 365(d


Context: Our holding encourages an inefficient system as the Butchers may also be able to re-urge this issue on final appeal.

See GJP, Inc. v. Ghosh, 251 S.W.3d 854, 866-67 (Tex.App.-Austin 2008, no pet.) (holding that appellate jurisdiction to review special appearance rulings was not limited solely to interlocutory appeal authorized by section 51.014(a)(7) of the Civil Practice and Remedies Code); Canyon (Australia) Pty., Ltd. v. Maersk Contractors, Pty., Ltd., No. 08-00-00248-CV, 2002 WL 997738, at *4 (Tex.App.-El Paso May 16, 2002, pet. denied) (not designated for publication) (concluding that interlocutory appeal was not “mandatory” and trial court’s special appearance grant could be reviewed on appeal from final judgment); but see Matis v. Golden, 228 S.W.3d 301, 305 (Tex.App.-Waco 2007, no pet.) (concluding that challenge to order denying special appearance, raised for the first time on appeal from final judgment, was untimely because parties failed to bring an interlocutory appeal).


Context: In construing a Florida statute providing for the disqualification of a trial judge based on, among other grounds, the fact that the judge is a material witness, the Florida Supreme Court held that a "material witness" is "a witness who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify." From Wingate, it follows that where the trial judge is not a material witness under this definition, there is no error in the trial court's failure to recuse. Courts in other jurisdictions have adopted this view.

See also Mosley v. State, 145 Ga.App. 651, 244 S.E.2d 610 (1978) (where trial judge transported juror to hospital, the juror was available to testify as to the incident and the trial judge was not a necessary witness); State v. O’Neal, 501 So.2d 920 (La.App.), cert. denied, 505 So.2d 1139 (La.1987) (where trial judge received a letter from a co-defendant which the co-defendant, while testifying as a defense witness, admitted writing, the trial judge did not become a material witness).

"Where the evidence concerning the transactions in issue may be obtained from witnesses other than the trial judge, then the trial judge is not such a material witness as to require a disqualification."

Bresnahan v. Luby, 160 Colo. 455, 418 P.2d 171, 173 (1966) (“Where the evidence concerning the transactions in issue may be obtained from witnesses other than the trial judge, then the trial judge is not such a material witness as to require a disqualification.”) (citing Wingate v. Mach, supra); Brown v. Bahl, 111 Pa.Super. 598, 170 A. 346, 348 (1934) (“[Wjhere other witnesses were available [to testify] as to the facts that [the trial judge] observed, there is no ethical or legal reason to disqualify [the judge] simply because of his knowledge.”).


where trial judge received a letter from a co-defendant which the co-defendant, while testifying as a defense witness, admitted writing, the trial judge did not become a material witness


Cf. Coleman v. State, — Mont. -, 633 P.2d 624 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (where the defendant in a post-conviction proceeding failed to demonstrate that the trial judge was the source of evidence otherwise unobtainable, the judge was not required to recuse himself).


"[Wjhere other witnesses were available [to testify] as to the facts that [the trial judge] observed, there is no ethical or legal reason to disqualify [the judge] simply because of his knowledge."


Context: She further testified that Clay only conducted drug sales from the cocaine stored in the closet and that Clay left the closet "[u]nloeked most [of] the time[]" when Clay and she were in the apartment. R. 85 at 123. The firearm was situated next to the cocaine and was strategically located on the same shelf so it was quickly and easily accessible.

"[T]he gun's location under the mattress in the bedroom consti tuted a strategic location: despite the bedroom's second-floor location, ... the house was small enough so that someone on the first floor could retrieve the gun within ten to fifteen seconds."

See United States v. Ham, 628 F.3d 801, 804, 809 (6th Cir.2011) (finding that since the loaded gun was on top of an armoire situated just outside the closet where the drugs were found, it was strategically located so that it was quickly and easily available for use); United States v. Swafford, 385 F.3d 1026, 1027-29 (6th Cir.2004) (finding a nexus between the contraband and a loaded pistol within arm’s reach of the defendant when he was arrested in the house even though the drugs for sale were located in makeshift garage behind the house); see also Brown, 732 F.3d at 576-77 (“[T]he gun’s location under the mattress in the bedroom consti tuted a strategic location: despite the bedroom’s second-floor location, ... the house was small enough so that someone on the first floor could retrieve the gun within ten to fifteen seconds.”).


finding a nexus between the contraband and a loaded pistol within arm's reach of the defendant when he was arrested in the house even though the drugs for sale were located in makeshift garage behind the house


Context: Combined with its detailed instructions on the law governing conspiracies, and on substantive RICO violations, the district court's explanatory and limiting instructions to the jury are more than sufficient to guard against the possibility of prejudice to the defendants.

See Hanley, 190 F.3d at 1027-28 (assessing similar instructions as adequate to cure any risk of prejudice); cf. Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 90 L.Ed. 1557 (1943) (noting that an appropriate instruction to avert spillover prejudice “in cases where related but separate conspiracies are tried together” would be “that the jury should take care to consider the evidence relating to each conspiracy separately from that relating to each other conspiracy charged”).

noting that an appropriate instruction to avert spillover prejudice "in cases where related but separate conspiracies are tried together" would be "that the jury should take care to consider the evidence relating to each conspiracy separately from that relating to each other conspiracy charged"


Context: A bankruptcy court's determination of foreign law is a conclusion of law and is therefore subject to de novo review.

See In re Qimonda AG Bankr. Litig., 433 B.R. 547, 565 n. 28 (E.D.Va.2010) (stating that foreign law determinations by bankruptcy courts are treated as questions of law requiring de novo review); see also Fed. R. Bankr.P. 9017 (stating that Federal Rule of Civil Procedure 44.1 applies in bankruptcy proceedings); Fed.R.Civ.P. 44.1 (stating that a court’s determination of foreign law “must be treated as a ruling on a question of law”). When determining foreign law, a court “may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” Fed.R.Civ.P. 44.1; see also Faggionato v. Lerner, 500 F.Supp.2d 237, 244 (S.D.N.Y.2007) (“In acting under Rule 44.1, a court may reject even uncontradict-ed expert testimony and reach its own decisions on the basis of independent examination of foreign legal authorities.”).

"In acting under Rule 44.1, a court may reject even uncontradict-ed expert testimony and reach its own decisions on the basis of independent examination of foreign legal authorities."


Context: First, Fenton's statement to Detective Salsedo does not mention Mason at all. In fact, because its content never came into evidence, as far as the jury was concerned, it mentioned no one at all. For all the jury knew, Fenton confessed to his own involvement in the shootings and was arrested. Second, as Gray itself notes, the facts that would have allowed the jury to infer that Fenton's statement implicated Mason came through other, properly admitted evidence, particularly through Cole's testimony of what Mason told her.

codefendant's statement redacted to exclude defendant's name and incriminating only in light of other evidence

Gray, 523 U.S. at 195, 118 S.Ct. 1151 (“Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially.”); see also United States v. Sherlock, 962 F.2d 1349, 1360-61 (9th Cir.1992) (as amended) (codefendant’s statement redacted to exclude defendant’s name and incriminating only in light of other evidence).

"Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially."


Context: Relation back is not allowed here: TUFTA's SS 24.010 is a statute of repose and is immune to procedural tolling. In re Morgan Stanley Mortg.

"Because of the substantive nature of statutes of repose, courts have treated the effect of the period expiring to be jurisdictional."

Pass-Through Certificates Litig., 23 F.Supp.3d 203, 208 (S.D.N.Y.2014) (“[T]he Federal Rules[ ] could not alter the limited nature of the substantive right created by a statute of repose becarise the statute authorizing the procedural rules'subordinates them to substantive rights.”); see also Meyer v. Argent Mortgage Co., LLC (In re Meyer), 379 B.R. 529, 540-41 (Bankr.E.D.Pa.2007) (“Here, the application of Rule 15(c)’s relation back provision to add a defendant would resurrect jurisdiction over an extinguished claim____ Just so, this Court lacks subject matter jurisdiction ... now that the three year rescission period has expired.”); Wenke v. Gehl Co., 2004 WI 103, ¶ 57, 274 Wis.2d 220, 261, 682 N.W.2d 405, 425 (“Because of the substantive nature of statutes of repose, courts have treated the effect of the period expiring to be jurisdictional.”); Litzler v. Cooper (In re Margaux Tex. Ventures, Inc.), No. 13-03221, 2014 Bankr.LEXIS 2542, at *53 (Bankr.N.D.Tex.

"[T]he Federal Rules[ ] could not alter the limited nature of the substantive right created by a statute of repose becarise the statute authorizing the procedural rules'subordinates them to substantive rights."


Context: See G. Unlike drug certificates, docket sheets are not prepared for an upcoming case and are not testimonial since the authors are not witnesses against the criminal defendant.

autopsy reports prepared by "public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions" are inadmissible testimonial hearsay

Contrast Commonwealth v. Nardi, 452 Mass. 379, 393 (2008), quoting from Commonwealth v. Slavski, 245 Mass. 405, 417 (1923) (autopsy reports prepared by “public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions” are inadmissible testimonial hearsay).

admission of court records and record of Registry of Motor Vehicles records did not violate the defendant' s Sixth Amendment right of confrontation

L. c. 233, § 78, as well as pursuant to G. L. c. 233, § 76”); Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904-905 (2010) (admission of court records and record of Registry of Motor Vehicles records did not violate the defendant’ s Sixth Amendment right of confrontation). See also Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) (no difference between Registry of Motor Vehicles records and court records).


no difference between Registry of Motor Vehicles records and court records


Context: We reject the plaintiffs' argument that section 95.11(7) tolls the statute of limitations under these facts. Further, because we find the Title IX claims relate back to the original Complaint, the pre-suit notice gave the school board sufficient notice of the newly-alleged claim.

See Magee v. City of Jacksonville, 87 So.2d 589, 591-92 (Fla.1956) (explaining that pre-suit notice is designed to make the government entity aware of the claims alleged); see also City of Miami v. Cisneros, 662 So.2d 1272, 1274 (Fla. 3d DCA 1995) (using the relation back analysis to determine if the plaintiff complied with the pre-suit notice requirements).


Context: The cited cases may be in error if they intend to conclude from the quoted language of SS 3-118(a) that a draft drawn on a drawer may be treated only as a note. Section 3-118(a) arose from SS 17(5) of the Negotiable Instruments Law. Section 17(5) provided that "[wjhere the instrument is so ambiguous that there is doubt whether it is a bill or a note, the holder may treat it as either at his election." The provision was enacted for the benefit of the holder to permit the holder to resort to those provisions of the Negotiable Instruments Law most advantageous to his position.

treating cashier's check as note for purposes of that case

See Taylor v. Equitable Trust Co., 269 Md. 149, 156, 304 A.2d 838 (1973) (treating cashier’s check as note for purposes of that case); see also Santos v. First Nat’l Bk. of N.J., 186 N.J.Super. 52, 451 A.2d 401, 409-410 & n. 22 (1982) (stating that "[o]ne solution [to the problem of § 3-118] is to treat cashier’s checks as notes for some purposes and as other instruments, such as checks, for other purposes”).

stating that "[o]ne solution [to the problem of SS 3-118] is to treat cashier's checks as notes for some purposes and as other instruments, such as checks, for other purposes"


Context: The question of when a debt arises under the bankruptcy code is governed by federal law.

See In re Jensen, 995 F.2d at 930 n. 5 (“ ‘The determination of when a claim arises for purposes of bankruptcy law should be a matter of federal bankruptcy law____’ ”); Corman v. Morgan (In re Morgan), 197 B.R. 892, 896 (N.D.Cal.1996) (finding that determination of when a claim arises under the bankruptcy code should be governed by federal law), aff'd, 131 F.3d 147 (9th Cir.1997); Cohen v. North Park Parkside Community Ass’n (In re Cohen), 122 B.R. 755, 757 (Bankr.S.D.Cal.1991) (“However, federal bankruptcy law, rather than California state law, governs when a debt arises for purposes of determining dischargeability.”); see also Employees’ Retirement Sys. v. Osborne (In re THC), 686 F.2d 799, 803-04 (9th Cir.1982) (applying federal law to determine when parties had obligations under indemnification agreement).

" 'The determination of when a claim arises for purposes of bankruptcy law should be a matter of federal bankruptcy law____' "


finding that determination of when a claim arises under the bankruptcy code should be governed by federal law


"However, federal bankruptcy law, rather than California state law, governs when a debt arises for purposes of determining dischargeability."


See In re Jensen, 995 F.2d at 930 n. 5 (“ ‘The determination of when a claim arises for purposes of bankruptcy law should be a matter of federal bankruptcy law.... ”); Corman v. Morgan (In re Morgan), 197 B.R. 892, 896 (N.D.Cal.1996) (finding that determination of when a claim arises under the bankruptcy code should be governed by federal law), aff'd, 131 F.3d 147 (9th Cir.1997); Cohen, v. North Park Parkside Community Ass’n (In re Cohen), 122 B.R. 755, 757 (Bankr.S.D.Cal.1991) (“However, federal bankruptcy law, rather than California state law, governs when a debt arises for purposes of determining dischargeability.”); see also Employees’ Retirement Sys. v. Osborne (In re THC), 686 F.2d 799, 803-04 (9th Cir.1982) (applying federal law to determine when parties had obligations under indemnification agreement).

" 'The determination of when a claim arises for purposes of bankruptcy law should be a matter of federal bankruptcy law.... "


Context: However, the only courts to specifically address who bears the burden of proof on the applicability of the section 1322(b)(2) exception, including the only circuit court to address the issue, have each held the burden of proof lies with the creditor.

Creditor had burden of proof on issue of whether the creditor was entitled to the protections of the "hanging paragraph".

Cf. In re Cross, 376 B.R. 641 (Bankr.S.D.Ohio 2007) (Creditor had burden of proof on issue of whether the creditor was entitled to the protections of the “hanging paragraph”.); In re Finnegan, 358 B.R. 644.

Debtor seeking to confirm a chapter 13 plan has the burden of proof in valuing a vehicle under 11 U.S.C. SS 506(a

But cf. In re Fletcher, 2007 WL 1804931 (Bankr.S.D.Fla.2007) (Debtor seeking to confirm a chapter 13 plan has the burden of proof in valuing a vehicle under 11 U.S.C. § 506(a), including the burden of proving section 506(a) is applicable notwithstanding the “hanging paragraph”).


Context: First, the defendant used the evidence relating to the autopsy findings and Nields's testimony in particular to help build his defense. Specifically, on cross-examination, the defendant elicited testimony from Nields about his observations that there were no visible injuries to the victim's genitals or anus. The defendant then used this testimony to support his claim that the evidence was insufficient to prove the intercourse between the victim and defendant was nonconsensual, and defense counsel reiterated the point in his closing argument.

"There can be no substantial likelihood of a miscarriage of justice where the defendant fails to object to the admission of testimonial hearsay and then relies on that erroneously admitted hearsay to challenge the prosecution's theory of the case"

See Commonwealth v. McCowen, 458 Mass. 461, 482 (2010) (“There can be no substantial likelihood of a miscarriage of justice where the defendant fails to object to the admission of testimonial hearsay and then relies on that erroneously admitted hearsay to challenge the prosecution’s theory of the case”).

no substantial likelihood of miscarriage of justice where autopsy findings were admitted without objection and defense expert "made use of and referenced those findings in his testimony"

See also Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008) (no substantial likelihood of miscarriage of justice where autopsy findings were admitted without objection and defense expert “made use of and referenced those findings in his testimony”).


Context: f 48. That should have been the end of our opinion. Traditionally, when the presenting questions resolve the matter, we declare our treatment of the case complete at that point.

See Black v. City of Milwaukee, 2016 WI 47, ¶ 39 n.24, 369 Wis. 2d 272, 882 N.W.2d 333, cert. denied sub nom. Milwaukee Police Ass'n v. City of Milwaukee, 137 S. Ct. 538 (2016) ("We do not address these issues because they are not necessary to resolve this case"); see also State v. Cain, 2012 WI 68, ¶ 37 n.11, 342 Wis. 2d 1, 816 N.W.2d 177 ("[A]n appellate court should decide cases on the narrowest possible grounds." (quoting Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶ 48, 326 Wis. 2d 300, 786 N.W.2d 15)); Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule, when our resolution of one issue disposes of a case, we will not address additional issues.").


Context: It makes no difference that the IRS submitted a proof of claim in which it asserted a $10,000 secured claim, relying on the valuations in Debtor's schedules.

See also Bisch, 159 B.R. at 549 (IRS could rely on federal tax lien for satisfaction of underlying tax debt despite the fact that the IRS had filed an unsecured proof of claim).

See Brawders, 503 F.3d at 867-68 (liens pass through bankruptcy unaffected even if a secured creditor incorrectly files an unsecured claim that should have been secured).


Context: Kleiner's first opinion -- that defendants could have accommodated plaintiffs disability without significant impact, but instead retaliated against plaintiff by moving her to a less desirable position (see Kleiner Report at 10) -- includes two legal conclusions based on certain facts in the record and therefore impermissibly invades the jury's province to apply the applicable law to the facts of the case and reach ultimate legal conclusions. Rather, because Kleiner's opinion does not proffer any specialized knowledge, and invokes legal standards (#ie., that defendants could have accommodated plaintiffs disability without significant impact, and that defendants retaliated against plaintiff), his opinion would "not aid the jury in making a decision, but rather attempts to substitute [his] judgment for the jury's."

holding that the district court should have excluded expert testimony in an excessive force case where the expert testified that defendant's conduct was "not justified [or warranted] under the circumstances" and "totally improper," noting that the expert's opinions "merely [told] the jury what result to reach"

See United States v. Duncan, 42 F.3d 97, 102 (2d Cir.1994) (“When this occurs, the expert acts outside of his limited role of providing the groundwork in the form of an opinion to enable the jury to make its own informed determination.”); see also Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir.1992) (holding that the district court should have excluded expert testimony in an excessive force case where the expert testified that defendant’s conduct was “not justified [or warranted] under the circumstances” and “totally improper,” noting that the expert’s opinions “merely [told] the jury what result to reach”).

"When this occurs, the expert acts outside of his limited role of providing the groundwork in the form of an opinion to enable the jury to make its own informed determination."


Context: Accordingly, during that time, Brooks was unable to complete and file his complaint. Once he was returned to his original facility on January 8, 2007, he acted diligently by filing his complaint just nine days later on January 17, 2007.

prisoner's pro se civil rights complaint is filed when delivered to prison officials for mailing

See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (petitioner diligent where he filed for out of time appeal within three days of learning state habeas petition had been denied and filed federal habeas petition within one month of denial of out of time appeal), reh’g granted in part on other grounds, 223 F.3d 797 (5th Cir.2000); see also Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir.1995) (prisoner’s pro se civil rights complaint is filed when delivered to prison officials for mailing).


Context: However, this tort should not be used to circumvent the established and carefully balanced framework of constitutional and state libel law. In the context of public figures and defamation claims, the Supreme Court has held that a public figure cannot recover for intentional infliction of emotional distress by reason of an offending publication without first proving the elements of a defamation claim.

public figure must demonstrate that the offending publication contains a false statement of fact which was made with "actual malice" before recovering for intentional infliction of emotional distress based on the publication

See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (public figure must demonstrate that the offending publication contains a false statement of fact which was made with “actual malice” before recovering for intentional infliction of emotional distress based on the publication); see also Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) (intentional infliction of emotional distress claim stemming from publication of photograph dismissed after invasion of privacy claim based on same publication dismissed).


Context: Yet, case law has recognized an indigency exception from financial responsibility provisions in applications to use public fora. In Collin v. Smith and Eastern Conn. Citizens Action Group, the would-be permittees showed that either they could not afford or could not obtain the liability insurance required as a condition of use. Upon such a showing, the courts concluded that the requirement was unconstitutional as applied, while declining to rule that insurance requirements were unconstitutional per se.

"we do not need to determine now that no insurance require ment could be imposed in any circumstances, which would be a close question, in our view"

Collin v. Smith, 578 F.2d at 1208 (“we do not need to determine now that no insurance require ment could be imposed in any circumstances, which would be a close question, in our view”); Eastern Conn. Citizens Action Group, 723 F.2d at 1057 (“Nor do we suggest that DOT’s fee and insurance requirements would not be valid when reasonably applied.”); see also Invisible Empire Knights of the Ku Klux Klan v. City of West Haven, 600 F.Supp. at 1435 (finding bond requirement unconstitutional as it applies to those unable to obtain a bond); Collin v. O’Malley, 452 F.Supp. 577, 579 (N.D.Ill.1978) (noting that plaintiff, as well as other “persons, groups or organizations espousing controversial political or social views and ideas,” cannot obtain this level of coverage in the insurance marketplace).


noting that plaintiff, as well as other "persons, groups or organizations espousing controversial political or social views and ideas," cannot obtain this level of coverage in the insurance marketplace


"Nor do we suggest that DOT's fee and insurance requirements would not be valid when reasonably applied."


Context: 25. Nor is the upgrade claim false by necessary implication. Reasonable consumers could read the upgrade claim to be making comparative statements about Gatorade, but they could also read the upgrade claim to be comparing Powerade ION4 to the old Powerade.

"if the language ... is susceptible to more than one reasonable interpretation, the advertisement cannot be literally false"

See, e.g., Time Warner Cable, Inc., 497 F.3d at 158 (“if the language ... is susceptible to more than one reasonable interpretation, the advertisement cannot be literally false”); see also Scotts Co. v. United Indus. Corp, 315 F.3d 264, 275 (4th Cir.2002) (rejecting literal falsity argument because the advertisement “can reasonably be understood as conveying different messages”).

rejecting literal falsity argument because the advertisement "can reasonably be understood as conveying different messages"


Context: Street is one application of the general, long-standing principle that the potential for jury misuse of evidence can often be curbed by a limiting instruction. Indeed, whenever the Supreme Court has permitted a jury to consider evidence that has the potential to be misused, e.g., to be considered in a way that would violate the defendant's constitutional rights, it has required that a proper jury instruction be given to avoid the misuse.

condoning the admission of erroneously admitted eyewitness identification evidence when the jury was instructed not to consider it, regardless of the dissent's observation that such evidence "has a powerful impact on juries"

See, e.g., Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (holding that statements elicited from a defendant in violation of his Miranda rights could be introduced to impeach that defendant’s credibility when the jury was instructed that the statements were not to be considered as evidence of his guilt); Spencer v. Texas, 385 U.S. 554, 559-61, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (holding that evidence of a defendant’s prior criminal convictions could be introduced for the purpose of sentence enhancement if the jury was instructed that the evidence could not be used for the purposes of determining guilt); Walder v. United States, 347 U.S. 62, 64, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (holding that the admission of unlawfully seized evidence of a crime was admissible if the jury was instructed that the evidence could be considered only in assessing a defendant’s credibility and not for determining guilt); cf. Watkins v. Sowders, 449 U.S. 341, 347, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (condoning the admission of erroneously admitted eyewitness identification evidence when the jury was instructed not to consider it, regardless of the dissent’s observation that such evidence “has a powerful impact on juries”).

holding that statements elicited from a defendant in violation of his Miranda rights could be introduced to impeach that defendant's credibility when the jury was instructed that the statements were not to be considered as evidence of his guilt


holding that evidence of a defendant's prior criminal convictions could be introduced for the purpose of sentence enhancement if the jury was instructed that the evidence could not be used for the purposes of determining guilt


holding that the admission of unlawfully seized evidence of a crime was admissible if the jury was instructed that the evidence could be considered only in assessing a defendant's credibility and not for determining guilt


Context: We generally only accept a noncompliant brief if it does not prejudice the opposing party. Prejudice does not exist, however, when the disputed issues are obvious and the opposing party has the opportunity to address all relevant issues in the case.

allowing a pro se appellant to proceed where the opponent could not claim that "it was not aware of the issues in this appeal or that it was hampered in its ability to respond"

Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (allowing a technically noncompliant pro se appeal to go forward when there was only one issue on appeal); see also Fed. Sav. & Loan Ins. Co. v. Haralson, 813 F.2d 370, 373 n. 3 (11th Cir.1987) (allowing a pro se appellant to proceed where the opponent could not claim that “it was not aware of the issues in this appeal or that it was hampered in its ability to respond”).


Context: After considering the three approaches as to what constitutes a "personal injury tort claim," this Court concludes that the middle ground is the correct approach. Using this approach, the Court finds that the Plaintiffs' defamation claims constitute personal injury tort claims within the meaning of Section 157(b)(5).

See Control Center, L.L.C. v. Lauer, 288 B.R. 269, 279, 286 (M.D.Fla.2002) (holding that a defamation claim is a personal injury tort claim); Hansen, 164 B.R. at 486 (holding that a defamation claim is a personal injury tort claim); Smith, 389 B.R. at 908 (holding that a libel claim is a personal injury tort claim); Passialis, 292 B.R. at 352 (holding that a slander claim is a personal injury tort claim).

But see Mitan v. Davis (In re Davis), 334 B.R. 874, 878 n. 2 (Bankr.W.D.Ky.2005) (holding that a libel claim is not a personal injury tort claim).


holding that a libel claim is a personal injury tort claim


holding that a slander claim is a personal injury tort claim


Context: In particular, the court has subjected jury instructions plagued by constitutional error to harmless-error analysis.

Clark ] supra, 478 U.S. [570] at 581-582, 106 S.Ct. [3101] at 3107-3108 [92 L.Ed.2d 460 (1986)] (jury instruction containing an erroneous rebuttable presumption subject to harmless-error analysis); but see Sullivan v. Louisiana, 508 U.S. 275, -, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993) (erroneous burden of proof instruction not subject to harmless-error analysis).

See, e.g., Yates v. Evatt, 500 U.S. 391, 402, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (taint of an unconstitutional burden-shifting jury instruction subject to harmless-error analysis); Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (per curiam) (jury instruction containing an erroneous mandatory presumption subject to harmless-error analysis); Pope v. Illinois, 481 U.S. 497, 502-04, 107 S.Ct. 1918, 1921-23, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of an offense subject to harmless-error analysis); Rose [v.


jury instruction misstating an element of an offense subject to harmless-error analysis


jury instruction containing an erroneous rebuttable presumption subject to harmless-error analysis


Context: A reasonable jury could infer from this evidence that the defendant was aware that by igniting the gasoline he would light not only himself on fire, but other people and things. Further, by his failure to take action to put out the fire, or to sound an alarm, the jury reasonably could have inferred that the defendant intended that the fire bum the apartment.

error where instruction failed to make clear that either setting of fire or "failure to extinguish or report it had to be intentional and not merely negligent"

Cf. Commonwealth v. Glenn, 23 Mass. App. Ct. 440, 444 (1987) (error where instruction failed to make clear that either setting of fire or “failure to extinguish or report it had to be intentional and not merely negligent”).

See Commonwealth v. Cavedon, 301 Mass. 307, 314-315 (1938) (no evidence that defendants made any effort to extinguish fire; this and fact that they failed to give any alarm might have been found by jury to be indicative of guilt); Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933) (defendant, with knowledge that there had been fire in house, left without notifying authorities); Commonwealth v. Cali, 247 Mass. 20, 24 (1923) (notwithstanding defendant’s claim that fire’s origin was accidental, jury could find after reviewing all circumstances either that he set it or that after fire was under way he purposely refrained from any attempt to extinguish it).


notwithstanding defendant's claim that fire's origin was accidental, jury could find after reviewing all circumstances either that he set it or that after fire was under way he purposely refrained from any attempt to extinguish it


Context: The record is devoid of any evidence of the amount of benefits Wife might expect to receive at age sixty-five. Because the family court must have sufficient evidence upon which to base a determination of a person's earning potential for purposes of awarding alimony, the family court was not presented with sufficient evidence to prospectively consider the amount of benefits Wife reasonably anticipates receiving at age sixty-five in awarding alimony and, thus, did not err in refusing to engage in such speculation.

reversing the family court's alimony award because it was based on an unsupported finding of the husband's earning capacity

See Sexton v. Sexton, 308 S.C. 37, 42, 416 S.E.2d 649, 653 (Ct.App.1992) (reversing the family court’s alimony award because it was based on an unsupported finding of the husband’s earning capacity), rev’d on other grounds, 310 S.C. 501, 427 S.E.2d 665 (1993); see also Nelson v. Nelson, 651 So.2d 1252 (Fla.Dist.Ct.App.1995) (“As a general rule, trial courts may not consider future or anticipated events in setting current alimony and child support amounts due to the lack of evidentiary basis or the uncertainty surrounding such future events.”); cf. Cox v. Cox, 882 P.2d 909 (Alaska 1994) (affirming the trial court’s refusal to consider future social security benefits due to their “speculative nature”).

"As a general rule, trial courts may not consider future or anticipated events in setting current alimony and child support amounts due to the lack of evidentiary basis or the uncertainty surrounding such future events."


affirming the trial court's refusal to consider future social security benefits due to their "speculative nature"


Context: Subsequently, the court clerk asked every juror: "As to the weighing, do you unanimously agree that the aggravating factor proven beyond a reasonable doubt by the state of Connecticut outweighs the mitigating factor or factors found to exist, yes or no?" Every juror responded "yes," signifying that the jury had intended to mark "yes," on the initial verdict form in responding to the question of whether the jury unanimously had agreed that the aggravating factor outweighed the mitigating factor or factors. Furthermore, during an evidentiary hearing before Damiani, J., regarding the propriety of the jury's contact with the trial court after the initial verdict was recorded, all of the jurors testified that when they entered the courtroom to deliver their first verdict, their intended result was that the defendant receive the death penalty. Thus, the record clearly indicates that the jury actually found that the aggravating factor outweighed the mitigating factor or factors. Accordingly, the trial court's finding that the initial verdict form contained a scrivener's error and, therefore, was amenable to correction to indicate the jury's actual intent, was not clearly erroneous.

See, e.g., State v. Farmer, 158 N.C. App. 699, 705, 582 S.E.2d 352 (2003) (trial court properly gave jury second verdict form to correct clerical error in first verdict form that resulted in incorrect verdict); cf. Martin v. State, 732 So. 2d 847, 854 (Miss. 1998) (evidentiary rule prohibiting juror from testifying as to any matter or statement occurring during course of jury deliberations upon inquiry into validity of verdict “simply would not apply to a situation [in which] a jury reports a verdict that is not the actual verdict voted and agreed upon”).

evidentiary rule prohibiting juror from testifying as to any matter or statement occurring during course of jury deliberations upon inquiry into validity of verdict "simply would not apply to a situation [in which] a jury reports a verdict that is not the actual verdict voted and agreed upon"


Context: When examining these circumstances, we must refrain from "engaging in a 'divide-and-conquer analysis' that examines the factors supporting reasonable suspicion 'in isolation from each other.'" Thus, in light of the rapidly developing and potentially dangerous nature of the situation, it was reasonable under the circumstances for the officers to detain Chambers and Collins briefly and inquire as to whether they were armed.

upholding stop and frisk of a suspect encountered near the. scene of a reported burglary in light of the officer's perception that "burglary suspects are often armed" and "safety required a pat-down"

See, e.g., United States v. Vickers, 540 F.3d 356, 362 (5th Cir.2008) (upholding stop and frisk of a suspect encountered near the. scene of a reported burglary in light of the officer’s perception that “burglary suspects are often armed” and “safety required a pat-down”); cf. United States v. Sokolow, 490 U.S. 1, 11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (In the Fourth Amendment context, courts should avoid making “rule[s that] would unduly hamper the police’s ability to make swift, on-the-spot decisions.”).

In the Fourth Amendment context, courts should avoid making "rule[s that] would unduly hamper the police's ability to make swift, on-the-spot decisions."


Context: Reference to a defendant's invocation of his right to silence and his right to counsel implicates the "integrity of the grand jury proceedings," Commonwealth v. Freeman, supra, and justifies further inquiry. There is no doubt that Waterfield's testimony regarding Mathews's silence and his request for counsel was improper.

holding that, in context of criminal trial, "defendant's right to remain silent cannot be compromised by prosecutorial comments that cast aspersions on its exercise"

Cf. Commonwealth v. Teixera, 396 Mass. 746, 752 (1986) (holding that, in context of criminal trial, “defendant’s right to remain silent cannot be compromised by prosecutorial comments that cast aspersions on its exercise”).

noting "strong disapproval of [testimony] informing a grand jury that a suspect elected to exercise his right to remain silent"

See Commonwealth v. Callagy, 33 Mass. App. Ct. 85, 88-89 (1992) (noting “strong disapproval of [testimony] informing a grand jury that a suspect elected to exercise his right to remain silent”).


Context: As an initial matter, Mr. Pettigrew does not contest that his first two statements were voluntary, albeit made in violation of Miranda. Further, he no longer argues that his third statement was the product of a custodial interrogation. Accordingly, it is undisputed that if Mr. Pettigrew's third statement was the only statement he made, it would be admissible because it was volunteered and not made in response to any question posed by Officer Williams.

explaining that "[t]he fundamental import of the privilege [against compelled self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warning's and counsel, but whether he can be interrogated"

See Miranda, 384 U.S. at 478, 86 S.Ct. 1602 (explaining that “[t]he fundamental import of the privilege [against compelled self-incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warning's and counsel, but whether he can be interrogated”); see also United States v. Abdulla, 294 F.3d 830, 835 (7th Cir.2002) (volunteered statements made while in custody but not in response to questions posed by the police are not subject to the Miranda exclusionary rule); Medeiros v. Shimoda, 889 F.2d 819, 823-25 (9th Cir.1989) (same).


Context: Other courts agree that shareholders who receive notice of a proposed settlement may object regardless of whether they could institute or maintain the action themselves.

treating an objector responding to a trial court's notice of proposed settlement like "a defendant who is summoned by process into court and after an adverse ruling has the right to appeal," and holding dismissal of objector's intervention was "not decisive"

Cohen v. Young, 127 F.2d 721, 724 (6th Cir.1942) (treating an objector responding to a trial court’s notice of proposed settlement like “a defendant who is summoned by process into court and after an adverse ruling has the right to appeal,” and holding dismissal of objector’s intervention was “not decisive”); see also Kaplan, 192 F.3d at 66 (holding that appellant who properly filed an objection in accordance with the notice he received from the trial court had standing to appeal); Rosenbaum v. MacAllister, 64 F.3d 1439, 1443 n. 2 (10th Cir.1995) (“To merely object to the settlement of a derivative action, however, the objector apparently need only own stock in the corporation at the time of the settlement hearing, and appear at the settlement hearing to raise his or her objections.”); Saylor v. Bastedo, 78 F.R.D. 150, 152-53 (S.D.N.Y.1978) (holding non-contemporaneous shareholder’s status is that of an objector). Also, as discussed in Part II below, most courts hold that an objector does not need to intervene to challenge the settlement of a derivative suit, so there is no reason an objector should have to meet the test for intervention.


"To merely object to the settlement of a derivative action, however, the objector apparently need only own stock in the corporation at the time of the settlement hearing, and appear at the settlement hearing to raise his or her objections."


"Requiring intervention prior to the settlement fairness hearing creates more work for all involved with no corresponding benefit."

See, e.g., City of San Benito, 109 S.W.3d at 755 (“Requiring intervention prior to the settlement fairness hearing creates more work for all involved with no corresponding benefit.”).


Context: When balancing the competing interests of a parent and the State, we must also consider the risk of error created by the challenged procedure, namely, Brown's absence from the termination hearing. However, this statutory provision does not create a constitutional right for Brown to be physically present at the termination hearing.

See E.E., 853 N.E.2d at 1044 (stating that parent does not have a constitutional right to be present at a termination hearing); see also J.T., 740 N.E.2d at 1264 (stating incarcerated parent has no absolute right to be physically present at the termination hearing).


Context: . Some courts, noting that it could be difficult to "prove a negative" -- that is, to prove reliance on facts that were not disclosed-- have focused their inquiry on whether the concealed information was material, that is, whether it would have affected decision-making had it been disclosed, a standard plainly met here.

See Titan Grp. v. Faggen, 513 F.2d 234, 239 (2d Cir.1975) (holding, in securities law context, that "[i]n cases involving nondisclosure of material facts ... materiality rather than reliance ... becomes the decisive element of causation.”); see also Apte v. Japra (In re Apte), 96 F.3d 1319, 1323-24 (9th Cir.1996) (applying principle of Titan and other cases to bankruptcy context, holding that a finding of materiality sufficed for the reliance element, and citing other cases so holding). Courts have explicitly held that "the nondisclosure of a material fact in the face of a duty to disclose ... establishes] the requisite reliance” under § 523(a)(2)(A). Apte, 96 F.3d at 1323; see Starr v. Reynolds (In re Reynolds), 193 B.R. 195, 203 (D.N.J.1996) (so holding); Bankcard Centr., Inc. v. Gonzales (In re Gonzales), Adv.

holding, in securities law context, that "[i]n cases involving nondisclosure of material facts ... materiality rather than reliance ... becomes the decisive element of causation."


Context: In order to determine whether a genuine issue exists under the second factor of the rescue doctrine test, we must consider all circumstances surrounding the initial and subsequent collisions, as well as factors that could have affected the parties' states of mind during the rescue.

court looks to "the facts alleged ... together with the reasonable inferences deducible from those facts" to determine reasonableness of belief

See Bell, 619 A.2d at 370 (court looks to “the facts alleged ... together with the reasonable inferences deducible from those facts” to determine reasonableness of belief); see also Truitt v. Hays, 33 Pa. D. & C.2d 453, 463 (Ct.Com.Pl.Pa.1963) (court states that “[a] rescuer is not to be charged with errors of judgment that result from the excitement and confusion of the moment”).

court states that "[a] rescuer is not to be charged with errors of judgment that result from the excitement and confusion of the moment"


Context: Moreover, in determining probable cause, the circumstances must be viewed from the vantage point of a prudent, reasonable, cautious police officer guided by his training and experience. While a single surreptitious "commercial transaction" may not give rise to probable cause, and while flight alone does not give rise to probable cause, the totality of those circumstances surely does, especially when the flight following a transaction consistent with an illicit drug sale, is unprovoked by any actions of the police other than their "mere presence."

"deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea"

See Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) (“deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea”) (citations omitted); Commonwealth v. Collins, 440 Pa. 368, 371, 269 A.2d 882, 884 (1970) (flight may indicate “consciousness of guilt”); see also, Commonwealth v. Pegram, 450 Pa. 590, 593-594, 301 A.2d 695, 697 (1973) (flight plus other factors indicating that the person flee ing has something to hide may constitute probable cause to arrest) (citations omitted); Commonwealth v. Frank, 407 Pa.Super. 500, 507, 595 A.2d 1258, 1262 (1991) (flight coupled with additional facts that point to the suspect’s guilt may give rise to probable cause to arrest). Certainly, these were not the actions of an innocent individual and those actions gave rise to probable cause which supported the officers’s arrest and search of appellant. See Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973) (probable cause existed where police officer observed three commercial transactions on the street involving unidentified items).


flight coupled with additional facts that point to the suspect's guilt may give rise to probable cause to arrest


probable cause existed where police officer observed three commercial transactions on the street involving unidentified items


Context: Rather, materiality under Harrington requires that the evidence in question will materially alter the result on retrial. In many cases, there will be little or no practical difference. But the Harrington test is clearly framed in terms of what will happen on retrial rather than what happened at the original trial.

"[T]he evidence must indicate that a new trial would probably result in acquittal."

See Harrington, 410 F.3d at 601 (“[T]he evidence must indicate that a new trial would probably result in acquittal.”); see also Krasny, 607 F.2d at 844 (“Yet, we have always required a showing that the new evidence would ‘probably’ result in an acquittal upon a new trial.”); id. at 845 n. 3 (explaining that materiality and probability “are really two means of measuring the same thing”).

"Yet, we have always required a showing that the new evidence would 'probably' result in an acquittal upon a new trial."


Context: She noted that the letter makes no reference to the basis or source of the threat and concluded that "[i]t could as easily be ... due to a love dispute." This not only constitutes further conjecture, but, as another court has observed, persecutors are hardly "given adequate notice that our government expects them to sign their names and reveal their individual identities when they deliver threatening messages."

Aguilera-Cota, 914 F.2d at 1380 (noting they are also unlikely to provide affidavits attesting to acts of persecution); see also Ladha v. INS, 215 F.3d 889, 905 n. 17 (9th Cir.2000) (excluding documents simply because they are “self-serving” is not a sound practice).

excluding documents simply because they are "self-serving" is not a sound practice


Context: To determine the contours of the relevant claim, we need to establish which of Frazier's petitions -- his Rule 32 petition presented to the Alabama courts or his habeas petition, along with the expanded record, presented to the district court -- we must review. In short, we review the former and may not consider the latter.

"[W]e look only to the allegations in [petitioner's] Rule 32 petition and whether those allegations sufficiently state a claim for ineffective assistance of counsel."

Cullen v. Pinholster, 563 U.S. —, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (“We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”); see also Powell, 602 F.3d at 1273 (“[W]e look only to the allegations in [petitioner’s] Rule 32 petition and whether those allegations sufficiently state a claim for ineffective assistance of counsel.”). Our review is therefore limited to the claims presented to and the record developed by the Alabama courts in Frazier’s Rule 32 proceedings.

"We now hold that review under SS 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."


Context: However, Officer Gustin did not testify or otherwise indicate that he believed the vehicle was stolen, or that at the time when he checked the VINs, he had any reason to suspect drugs were in the vehicle. No circumstances existed which suggested to Officer Gustin that the vehicle was stolen or that the Castners had committed any crime.

See Guzman, 864 F.2d at 1519-20 (no objective circumstances suggested defendant had committed any crime more serious than failure to wear seat belt); cf. United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (when driver of rented vehicle was not listed as authorized driver, continued detention was justified); State v. Marshall, 791 P.2d 880, 883-84 (Utah App.) (...), cert. denied, 800 P.2d 1105 (Utah 1990).


Context: The Traylor holding mirrors Florida Rule of Criminal Procedure 3.111(d)(5), which provides that "[i]f a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel." Thus, both Traylor and Rule 3.111(d)(5) indicate that a defendant may change his mind about self-representation at the beginning of any crucial stage of a criminal prosecution.

See Stinnett v. State, 576 So.2d 927, 928-29 (Fla. 5th DCA 1991) (observing that a trial court incorrectly advised a defendant in stating that if the defendant elected self-representation at a suppression hearing, he could not change his mind and be represented at trial); Cf. Horton v. Dugger, 895 F.2d 714, 716 (11th Cir.1990) (indicating that, under federal law, “[t]he functional right of a defendant to withdraw his request to represent himself and reassert the right to counsel at any time immediately before, or perhaps even during trial, is, absent deliberate manipulation, virtually assured”).

indicating that, under federal law, "[t]he functional right of a defendant to withdraw his request to represent himself and reassert the right to counsel at any time immediately before, or perhaps even during trial, is, absent deliberate manipulation, virtually assured"


Context: Although all four instances can be described as impolite, none changes Adam's "wealth" or "career prospects." And although they might be characterized as "humiliating" or "degrading," Adam's allegations fail to rise to the level that the Seventh Circuit has held is necessary to demonstrate a "significant negative alteration in the workplace."

holding that scolding an em ployee for absence by introducing the employee by saying, "This is Amy, you probably haven't met her yet because she is never here," may have been "offensive" to the employee, but was merely a "petty slight" that "does not amount to a materially adverse action"

See Breneisen v. Motorola, Inc., 512 F.3d 972, 982 (7th Cir. 2008) (holding that scolding an em ployee for absence by introducing the employee by saying, “This is Amy, you probably haven’t met her yet because she is never here,” may have been “offensive” to the employee, but was merely a “petty slight” that “does not amount to a materially adverse action”); Rhodes v. Ill. DOT, 359 F.3d 498, 505 (7th Cir. 2004) (job reassignment, being marked absent in a manner inconsistent with company policy, being assigned uncomfortable and inconvenient tasks “constitute mere temporary inconveniences and do not rise to the level of an adverse employment action”); Bell v. E.P.A., 232 F.3d 546, 554-55 (7th Cir. 2000) (“demeaning assignments, verbal abuse, surveillance, diminished responsibilities, refusal to cooperate on job assignments, and placements in situations designed to result in failure” even in the aggregate, “do not rise to the level of actionable retaliation”); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th Cir. 1998) (“ostracism by fellow workers... .is not an adverse employment action where the plaintiff did not allege that the ostracism resulted in a reduced salary, benefits, seniority, or responsibilities” (citing Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998))); see also Somoza v. Univ. of Denver, 513 F.3d 1206, 1214-15 (10th Cir. 2008) (isolated incidents of co-worker incivility at a meeting, including eye-rolling, laughing at plaintiffs opinions, and commenting behind his back, were not materially adverse).


job reassignment, being marked absent in a manner inconsistent with company policy, being assigned uncomfortable and inconvenient tasks "constitute mere temporary inconveniences and do not rise to the level of an adverse employment action"


"demeaning assignments, verbal abuse, surveillance, diminished responsibilities, refusal to cooperate on job assignments, and placements in situations designed to result in failure" even in the aggregate, "do not rise to the level of actionable retaliation"


Context: In her opening brief, White fails to challenge the district court's dismissal of her action, and thus she has waived any such challenge.

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

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.... ”).

"We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.... "


Context: When an employment agreement contains a noncompete covenant, the restriction survives the termination of the agreement if the agreement contains express language demonstrating that the parties intended its survival. Brenner v. Barco Chems.

Div., Inc., 209 So.2d 277, 278 (Fla. 3d DCA 1968) (holding that non-compete provisions survived the expiration of an employment agreement where (1) the contract expressly provided that the provisions would continue to apply if the employee continued working; and (2) the noncompete clause expressly stated it would continue to be in effect after the expiration or termination of employment). Where the parties expressly provide that the employee’s rights and obligations outlast the expiration of the “term,” the contract does not expire and enforcement of the noncompete provisions is warranted. Id. at 278; see also Century 21 Real Estate of S. Fla., Inc. v. Braun & May Realty, Inc., 706 So.2d 878, 879 (Fla. 3d DCA 1997) (approving Brenner, holding that agreement did not lapse where its terms provided for its post-term survival); cf. Gray v. Prime Mgmt. Group, Inc., 912 So.2d 711, 713 (Fla. 4th DCA 2005) (where a written employment agreement expires and the employee continues at-will via an oral agreement, a noncompete provision in the original written contract “cannot always be enforced”).


where a written employment agreement expires and the employee continues at-will via an oral agreement, a noncompete provision in the original written contract "cannot always be enforced"