Context: The district court properly dismissed the action with prejudice because Smith's second amended complaint did not state a claim for deliberate indifference and'Smith failed to correct the defects.

explaining that to establish a supervisor's liability under section 1983, an inmate must demonstrate that the official "participated in or directed the violations, or knew of the violations and failed to act to prevent them."

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (explaining that to establish a supervisor’s liability under section 1983, an inmate must demonstrate that the official “participated in or directed the violations, or knew of the violations and failed to act to prevent them.”); see also DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 n. 3 (9th Cir.1987) (“a district court’s discretion over amendments is especially broad where the court has already given a plaintiff one or more opportunities to amend his complaint”) (internal quotations omitted).

"a district court's discretion over amendments is especially broad where the court has already given a plaintiff one or more opportunities to amend his complaint"


Context: The undisputed evidence shows that, at most, the water on which Hartman slipped remained on the floor for ten minutes. Regardless of when restaurant employees last inspected the restroom, this limited period of time was "insufficient asa matter of law to hold that [Clark] should have discovered and removed the liquid prior to [Hartman's] fall."

"In cases involving grocery stores, parking lots, and restaurants, we have found that 15 or 20 minutes was a legally insufficient amount of time for a proprietor to discover a foreign substance on the floor."

All American Quality Foods, 340 Ga. App. at 396 (inspection-related evidence irrelevant where evidence showed that hazardous substance was on grocery store floor only six or seven minutes); see also Gleaton v. APAC-Georgia, 228 Ga.App. 52, 55 (2) (491 SE2d 138) (1997) (“In cases involving grocery stores, parking lots, and restaurants, we have found that 15 or 20 minutes was a legally insufficient amount of time for a proprietor to discover a foreign substance on the floor.”); Mazur v. Food Giant, 183 Ga.App. 453, 454 (1) (359 SE2d 178) (1987) (“Where it appears a foreign object had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.”) (citation and punctuation omitted).


"Where it appears a foreign object had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it."


Context: The Seventh Amendment to the Constitution of the United States does not apply to a State civil trial. However, the court's analysis of Title VII claims under the Seventh Amendment is similar to our analysis under art. 15.

Seventh Amendment guarantees the right to a jury trial in suits alleging fair housing violations under 42 U.S.C. SS 3612

See also Curtis v. Loether, 415 U.S. 189 (1974) (Seventh Amendment guarantees the right to a jury trial in suits alleging fair housing violations under 42 U.S.C. § 3612). Because the result we reach is consistent with the result reached in Federal courts, the right to a jury trial is not affected by the forum selected.

"A party seeking com pensatory and punitive damages or other legal relief under 42 U.S.C. SS 1981 has a right to a jury trial"

See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert, denied, 469 U.S. 886 (1984) (“A party seeking com pensatory and punitive damages or other legal relief under 42 U.S.C. § 1981 has a right to a jury trial”).


Context: "Knowledge of facts, and not knowledge of the legal significance of those facts, controls the time of accrual." Johnson v. Long Beach Mortg. Thus, when one cause of action accrues, the limitations period begins to run for all possible dependent or intertwined causes of action, and if one claim is barred by the statute of limitations, then dependent or intertwined claims are also barred.

noting that the plaintiff did not challenge the trial court's ruling that because his defamation claim was time-barred, the other intertwined claims were also time-barred

Morton v. Nat’l Med. Enterprs., Inc., 725 A.2d 462, 471 (D.C.1999) (concluding that fraud claims were completely dependent upon and intertwined with plaintiffs’ malpractice claims, and therefore accrued when the malpractice claims accrued); Saunders v. Nemati, 580 A.2d 660, 662 (D.C.1990) (discussing cases where the dependent emotional distress claim accrued when the cause of action accrued for the underlying tort); see also Mullin, 785 A.2d at 298 n. 3 (noting that the plaintiff did not challenge the trial court’s ruling that because his defamation claim was time-barred, the other intertwined claims were also time-barred).

concluding that fraud claims were completely dependent upon and intertwined with plaintiffs' malpractice claims, and therefore accrued when the malpractice claims accrued


discussing cases where the dependent emotional distress claim accrued when the cause of action accrued for the underlying tort


Context: In the instant case, this grossly irresponsible policy allowed a young patron inexperienced with the effects of hard liquor to consume a large quantity of Jack Daniels bourbon, leave the club, and venture onto Virginia highways. Patterson's reckless driving on the morning, of December 20, 1981, which culminated in the tragic accident, was a direct, predictable result of the Army's failure to abide by Virginia law and its own drinking regulations.

See Vance v. United States, 355 F.Supp. 756 (D.Alaska 1973) (United States could be held liable under common law to intoxicated patron of Air Force NCO Club for injuries sustained by that patron after an agent of the United States negligently served alcohol to him); see also Deeds v. United States, 306 F.Supp. 348 (D.Montana 1969) (United States held liable under common law to third party for negligently serving alcohol to a minor serviceman in an Air Force NCO Club where the serviceman, after leaving the club, injured the third party in a drunken driving incident).


Context: We have generally eschewed the relevance or significance of the actual state of mind of the executing officer. In recent cases we have been emphatic and consistent in our adherence to the proposition that probable cause must be demonstrated by reference to objective circumstances -- what an informed, trained and reasonably experienced police officer under all of the circumstances would have understood in terms of whether there is probable cause.

"if the validity of a search can be sustained independently on objective grounds demonstrating reasonableness, the existence of other defects that do not derogate from the overall objective reasonableness of the search or impugn the integrity of the judicial process should not be relied upon to invalidate the search."

See State v. Bruzzese, 94 N.J. 210 (1983) (police officer’s search and seizure would be considered reasonable only if it conformed to objectively reasonable police standards); see also State v. Guerra, 93 N.J. 146, 152 (1983) (“if the validity of a search can be sustained independently on objective grounds demonstrating reasonableness, the existence of other defects that do not derogate from the overall objective reasonableness of the search or impugn the integrity of the judicial process should not be relied upon to invalidate the search.”) (emphasis added); State v. Ercolano, 79 N.J. 25, 71 (1979) (dissenting opinion).

police officer's search and seizure would be considered reasonable only if it conformed to objectively reasonable police standards


Context: Defendants finally argue that a class action is unnecessary to achieve Plaintiffs' requested relief, which at its heart seeks modification of barriers throughout GGNRA. They contend that any modifications ordered by the Court for the benefit of Plaintiffs would necessarily inure to the benefit of the proposed class without the expense of a class action.

denying class certification in part because "all putative class members would benefit from an injunction issued on behalf of a single plaintiff' so "class vehicle is not necessary to obtain the relief sought"

See James v. Ball, 613 F.2d 180, 186 (9th Cir.1979) (upholding denial of class certification without discussion of Rule 23 requirements because the relief sought would produce the same result as class-wide relief); see also Sokol, 1999 U.S. Dist. LEXIS 20215, *17 (denying class certification in part because “all putative class members would benefit from an injunction issued on behalf of a single plaintiff’ so “class vehicle is not necessary to obtain the relief sought”).


Context: The case law has not always been specific as to which subsection of SS 1692g is the source of this implied "overshadowing" prohibition.

"[W]e have held repeatedly that a debt collector violates SS 1692g(a

See, e.g., Miller, 943 F.2d at 485 (holding that a debt collector’s violation of the “overshadowing” rule was a circumvention of “§ 1692g”); Talbott v. GC Servs. Ltd. P’ship, 53 F.Supp.2d 846, 852 (W.D.Va.1999) (discussing “overshadowing in violation of § 1692g”); Creighton v. Emporia Credit Serv., Inc., 981 F.Supp. 411, 415-16 (E.D.Va.1997) (analyzing an “overshadowing” claim and consistently referring only to “§ 1692g”). Several courts have discussed the “overshadowing” prohibition in the context of subsection (a)’s requirement that the validation notice be provided. See, e.g., Nat’l Fin. Servs., 98 F.3d at 139; Morgan v. Credit Adjustment Bd., Inc., 999 F.Supp. 803, 806-07 (E.D.Va. 1998); cf. Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir.2008) (“[W]e have held repeatedly that a debt collector violates § 1692g(a), even if the collector includes an accurate validation notice, if that notice is overshadowed or contradicted by other language in communications to the debtor.” (citing pre-2006 case law)).

holding that a debt collector's violation of the "overshadowing" rule was a circumvention of "SS 1692g"


analyzing an "overshadowing" claim and consistently referring only to "SS 1692g"


Context: Under the Federal Rules of Civil Procedure, the parties must be afforded adequate time for general discovery before being required to respond to a motion for summary judgment.

"[Sjummary judgment is proper 'only after the nonmovant has had adequate time for discovery.' " (quoting In re TMJ Litigation, 113 F.3d 1484, 1490 (8th Cir.1997

Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir.1999) (“[Sjummary judgment is proper ‘only after the nonmovant has had adequate time for discovery.’ ” (quoting In re TMJ Litigation, 113 F.3d 1484, 1490 (8th Cir.1997))); see also Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins. Co., 958 F.2d 836, 837-39 (8th Cir.1992) (“Summary judgment is inappropriate until Providers has had an adequate opportunity to conduct discovery.”).

"Summary judgment is inappropriate until Providers has had an adequate opportunity to conduct discovery."


Context: The plaintiffs challenge is not the first attack on provisions or implementations of the Act.

See Ben Oehrleins v. Hennepin County, 115 F.3d 1372 (8th Cir.1997) (affirming finding that enactment pursuant to §§ 115A.80-.893 was in violation of the Commerce Clause); Waste Systems Corp. v. County of Martin, Minn., 985 F.2d 1381, 1388-89 (8th Cir.1993) (affirming finding of violation of the Constitution); National Solid Waste Management Ass’n v. Williams, 877 F.Supp. 1367, 1379-80 (D.Minn.1995) (finding § 115A.47 violative of the Commerce Clause); see also C & A Carbone, Inc. v. Town of Clarkstown, NY, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (determining that a flow control ordinance violated the Commerce Clause).

affirming finding that enactment pursuant to SSSS 115A.80-.893 was in violation of the Commerce Clause


Context: . In this regard, I also draw guidance from the cautionary observations of other courts in instances in which legislative bodies have not specified the treatment intended to be given exceptions.

criticizing the intermediate appellate court for "la[ying] too much emphasis on the grammatical construction of the [a]ct rather than upon the essential elements of the offense denounced"

See, e.g., State v. McLemore, 782 S.W.2d 127, 129 (Mo.Ct.App.1989) ("There is no certain principle ... to use to determine when a qualification of the scope of the proscribed conduct should be viewed as a matter of excuse or justification as distinguished from a basic element of the crime[;][c]ourts have continuously wrestled with this problem and consistently have been pinned to the mat.”); id. at 130 (“Reliance on the positioning of the exception or proviso to determine whether it defines an element of the crime gives preeminence to what may be an accident of drafting, rather than an analysis of the exception or proviso and its relevance to the culpability of the accused.”); Hall v. State, 291 Ala. 397, 281 So.2d 662, 664 (1973) (criticizing the intermediate appellate court for “la[ying] too much emphasis on the grammatical construction of the [a]ct rather than upon the essential elements of the offense denounced”); People v. Devinny, 227 N.Y. 397, 125 N.E. 543, 544 (1919) ("Attempts to ... distinguish between exceptions and provisos have resulted in many technicalities and in much subtlety[;][t]he two classes of provisos — exceptions and provisos — frequently come close togetherf.]”); People v. Franzoni, 75 Misc.2d 246, 347 N.Y.S.2d 910, 914 (1973) (“The rule requiring pleading and proof by the People of negative exceptions in a criminal statute has been described in an exhaustive annotation as presenting 'one of the most frequent problems in criminal procedure, yet often one of the most baffling.' " (citation omitted)); cf. Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365 (characterizing the distinction between sentencing factors and elements as "constitutionally novel and elusive”).

characterizing the distinction between sentencing factors and elements as "constitutionally novel and elusive"


Context: Thus, "the standard for recusal followed by most Supreme Court justices who had previously served as United States Attorney General was whether their involvement in a case involved more than a mere pro forma relationship." This standard has also been followed by state judges sitting in other jurisdictions.

"It is presumed that a judge is qualified and unbiased [and [t]he defendant alleging [otherwise] has a substantial burden to show the grounds therefor."

See, e.g., People v. Delongchamps, 103 Mich.App. 151, 302 N.W.2d 626 (1981) (a judge, formerly a prosecutor, was deemed qualified because he did not personally participate in the prior proceeding and because Canon 3(C) requires disqualification only if a judge “cannot impartially hear a case”); Payne v. State, 48 Ala.App. 401, 265 So.2d 185 (1972), cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (holding a prosecutorial office, as distinguished from actually working on a “concrete piece of litigation,” does not in and of itself disqualify an individual who subsequently becomes a judge); see also Zitter, Prior Representation or Activity as Prosecuting as Disqualifying Judge From Sitting or Acting in Criminal Case, 16 A.L.R. 4th 550, 554 (1982) (Some courts have concluded that a judge, who had been a district attorney or an attorney general in a mere supervisory or administrative capacity at the time that a defendant was prosecuted for an offense, should not be disqualified; these courts often rationalize that disqualification on mere technical grounds “would hamper the smooth operation of the judicial administration.”); W. BLACKSTONE, COMMENTARIES 361 (19_) (“[T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”); Williams v. State, 383 So.2d 547 (1979) (“It is presumed that a judge is qualified and unbiased [and [t]he defendant alleging [otherwise] has a substantial burden to show the grounds therefor.”), aff'd, 383 So.2d 564 (1980), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293.

a judge, formerly a prosecutor, was deemed qualified because he did not personally participate in the prior proceeding and because Canon 3(C) requires disqualification only if a judge "cannot impartially hear a case"


holding a prosecutorial office, as distinguished from actually working on a "concrete piece of litigation," does not in and of itself disqualify an individual who subsequently becomes a judge


Context: The agents' decision to stop Snowden was therefore largely due to the coincidence of what turned out to be Snowden's exceptionally poor.timing. Regardless of how the facts unfolded, they are still sufficient to have given rise to a reasonable suspicion.

See United States v. Askew, 403 F.3d 496, 499 (7th Cir.2005) (holding that reasonable suspicion existed where suspect described location of his vehicle over phone to undercover officer); but see Johnson, 383 F.3d at 543-44 (holding that arresting officer lacked reasonable suspicion for Terry stop given lack of connection between only vehicle on road at 4:30 a.m. in a known drug area and information about illegal activity in same area).


Context: Further, the rule that a claim must be fairly presented in state court is applied particularly rigorously to claims involving procedural due process violations.

Kurzawa v. Jordan, 146 F.3d 435, 443 (7th Cir.1998) (indicating that leeway afforded habeas petitioners in reformulating due process arguments on collateral review is more limited than in other constitutional contexts); see also Riggins, 50 F.3d at 493 (stating that habeas petitioner claiming state trial court denied him due process must say so not only in federal court but in state court).


Context: Although Defendants STASCO and Shell Oil cannot interpose the Statute of Frauds as a defense to Plaintiffs tor-tious interference with contract claim, the fact that the contract in question is unenforceable -- and thus voidable -- against Mo-tiva nonetheless changes the analysis of Plaintiffs claim against STASCO and Shell Oil. As noted by the New York Court of Appeals in Guard-Life, a claim of tortious interference with a voidable contract -- as opposed to an enforceable contract -- # should be treated the same as a tortious interference with business relations claim.

noting that because the agreement at issue was voidable, "there is no liability for interference with such an agreement absent employment of wrongful means, unlawful restraint of trade, or lack of competitive motive" (citing Guard-Life

See 428 N.Y.S.2d 628, 406 N.E.2d at 449 (“[W]e are persuaded that interference with performance of voidable contracts should be treated the same as interference with contracts terminable at will for purposes of imposing liability in tort, and that both fall in the same category with interference with prospective contractual relations.”); see also Cent. Sports Army Club v. Arena Assocs., Inc., 952 F.Supp. 181, 190 (S.D.N.Y.1997) (noting that because the agreement at issue was voidable, “there is no liability for interference with such an agreement absent employment of wrongful means, unlawful restraint of trade, or lack of competitive motive” (citing Guard-Life)); Taub v. Amana Imports, Inc., 140 A.D.2d 687, 528 N.Y.S.2d 884, 885 (1988) (“[T]he existence of a valid, enforceable contract is a necessary predicate for a cause of action sounding in intentional interference with performance of a contract. However, recovery may nonetheless be had where, although the contract on which the plaintiff relies is voidable, the defendant has induced a party not to abide by its terms by means of fraud or other misconduct” (citing Guard-Life ) (internal citations omitted)); see also John Danforth, Note, Tortious Interference with Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity, 81 Colum. L.Rev. 1491, 1504 (1981) (“Similarly, the Guard-Life majority reasoned, unenforceable contracts contain no legal guarantee of future performance, and so should only be allowed limited tort protection.

"[W]e are persuaded that interference with performance of voidable contracts should be treated the same as interference with contracts terminable at will for purposes of imposing liability in tort, and that both fall in the same category with interference with prospective contractual relations."


"[T]he existence of a valid, enforceable contract is a necessary predicate for a cause of action sounding in intentional interference with performance of a contract. However, recovery may nonetheless be had where, although the contract on which the plaintiff relies is voidable, the defendant has induced a party not to abide by its terms by means of fraud or other misconduct" (citing Guard-Life


Context: We acknowledge that it is neither practically possible nor legally required that the original trial judge make this determination in every case. However, having the original trial judge make the determination as soon as possible after a judgment has become final in the trial court is certainly preferable.

See Penn, 670 S.W.2d at 429 (stating that because petition filed while case was between trial and appeal can easily provide for an early hearing before the court that just heard the case); cf. State v. Moats, 906 S.W.2d 431, 435 (Tenn.1995) (discussing comparable problems associated with a trial judge making a thirteenth juror determination upon remand from an appellate court long after the trial was concluded).


Context: [P 22] The defendant's right to be present and to speak when his sentence is imposed is constitutionally based.

"One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial."

Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356, reh’g denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”); United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir.1991); United States v. Huff, 512 F.2d 66, 71 (5th Cir.1975) (“The sentencing is, of course, a critical stage of the proceedings against the accused, at which he is constitutionally entitled to be present and represented by counsel.”) (citing Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)); cf. United States v. Turner, 532 F.Supp. 913, 915-16 (N.D.Cal.1982) (not even defendant can waive requirement of presence at sentencing).


Context: The instant action was instituted 27 days after the state action. Although defendants argue that the state action has proceeded far into the discovery stage, discovery has just begun and defendants have not yet replied to interrogatories propounded to him. (Dkt. # 8 at 11). While the Court notes that Leaver's deposition has been conducted in the state proceeding, one deposition can hardly be the "substantial progress" envisioned by the courts when applying this factor.

See, e.g., Nakash, 882 F.2d 1411 (recognizing that sub stantial progress had been made where a state court action had been pending for almost five years and over 100 depositions had been conducted); see also American Int'l, 843 F.2d at 1258 (holding that substantial progress had been made where the state court judge had decided seven motions).


Context: This limitations period begins to run when the alleged discriminatory acts occur, not when a plaintiff allegedly feels their effects. The discriminatory act for the purposes of limitations is the notice to the employee of an adverse employment decision, not the later execution of that decision.

See Chardon, 454 U.S. at 8-9, 102 S.Ct. at 29-30 (for limitations purposes, the discriminatory act is the decision to terminate, not the termination itself); see also Ricks, 449 U.S. at 258-59, 101 S.Ct. at 504-05 (decision not to offer tenure was the discriminatory act and termination the effect of that decision).


Context: There, the court found that the defendant's statements, "in which the defendant sought to deflect attention from himself, and perhaps establish an alibi" and his "failure to inquire about his wife[] were appropriate matters for comment and exploration."

misleading prearrest statements "may be properly admitted as evidence of consciousness of guilt where there is other evidence tending to prove the falsity of the statements"

Id. at 773. See Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 568 (2000) (misleading prearrest statements “may be properly admitted as evidence of consciousness of guilt where there is other evidence tending to prove the falsity of the statements”) (citation omitted).

See also Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990), cert. denied, 501 U.S. 1221 (1991) (not improper to comment on omission in post-Miranda statement where defendant did not testify at trial).


Context: That is, both the general scheme and the exemption apply equally to religious and secular groups alike. As a result, the statutory exception is neutral and generally applicable because the exception is granted to any organization, religious or secular, that meets the defined category.

"In the present case, [the scheme] is facially neutral, making no reference to religious practice."

See Ungar, 363 Fed.Appx. at 56 (“In the present case, [the scheme] is facially neutral, making no reference to religious practice.”); see also Konikov v. Orange Cnty., 410 F.3d 1317, 1326 (11th Cir.2005) (holding that a law that “treats religious and nonreligious organizations differently offends the principles of the Free Exercise Clause because it is not neutral or generally applicable.”).

holding that a law that "treats religious and nonreligious organizations differently offends the principles of the Free Exercise Clause because it is not neutral or generally applicable."


Context: To the contrary, a contract, if it is supported by consideration, may confer rights and obligations on one party that it does not confer on the other. The U.S. Court of Appeals for the Third Circuit has specifically affirmed that principle in the context of arbitration agreements.

"[PJarties to an arbitration agreement need not equally bind each other with respect to an arbitration agreement if they have provided each other with consideration beyond the.promise to arbitrate."

Harris v. Green Tree Fin. Corp., 183 F.3d 173, 180 (3d Cir.1999) (“[PJarties to an arbitration agreement need not equally bind each other with respect to an arbitration agreement if they have provided each other with consideration beyond the.promise to arbitrate.”). Florida courts, too, have ruled that a valid agreement to arbitrate does not require complete mutuality of rights and obligations.

"one party's agreement to submit a dispute to arbitration is sufficient consideration to support the other party's agreement to do the same because of the mutuality of obligations that the agreement creates"

See Rocky Creek, 19 So.3d at 1109 (“one party’s agreement to submit a dispute to arbitration is sufficient consideration to support the other party’s agreement to do the same because of the mutuality of obligations that the agreement creates”).


Context: Public officials have been convicted for being influenced in the performance of their duties in return for bribes paid to third parties.

Payments made to a business controlled by a Congressman's wife in exchange for official action constituted bribery.

See United States v. Jefferson, 674 F.3d 332, 341-42 (4th Cir.2012) (Payments made to a business controlled by a Congressman’s wife in exchange for official action constituted bribery.); United States v. Siegelman, 640 F.3d 1159, 1165— 66 (11th Cir.2011) (Governor was guilty of federal funds bribery and honest services fraud after exchanging a seat on a state board for a donation to a foundation campaigning for a ballot initiative to establish a lottery to fund education.); cf. United States v. Spano, 421 F.3d 599, 603 (7th Cir.2005) (“A participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants ... the public. is deprived of its servants’ honest services no matter who receives the proceeds.”) (internal citations omitted).

"A participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants ... the public. is deprived of its servants' honest services no matter who receives the proceeds."


Governor was guilty of federal funds bribery and honest services fraud after exchanging a seat on a state board for a donation to a foundation campaigning for a ballot initiative to establish a lottery to fund education.


Context: In raising a securities claim under these provisions, a claimant must plead an actionable misstatement with particularity under Rule 9(b). Where allegations concern an omission, the complaint must also plead facts indicating a duty to disclose. The claimant, however, need not plead, nor even prove for that matter, scienter to state a claim for violations of SSSS 12(F) and 12(G).

"[S]cienter is not an essential element to an action under the Illinois Blue Sky laws."

Foster v. Alex, 213 Ill.App.3d 1001, 157 Ill.Dec. 778, 572 N.E.2d 1242, 1245 (1991) (holding that “scienter need not be pled nor proved in a civil case brought under sections 12(F) and 12(G) of the Illinois Securities Act”); see Schwitters v. Tomlinson, 1996 WL 54240, at *3 (N.D.Ill. Feb. 9, 1996) (“[S]cienter is not an essential element to an action under the Illinois Blue Sky laws.”).

holding that "scienter need not be pled nor proved in a civil case brought under sections 12(F) and 12(G) of the Illinois Securities Act"


holding that scienter is an essential element of a claim alleged under SS 12(1) of the Illinois Security Law

But see People v. Whitlow, 89 Ill.2d 322, 60 Ill.Dec. 587, 433 N.E.2d 629, 634 (1982) (holding that scienter is an essential element of a claim alleged under § 12(1) of the Illinois Security Law).


Context: Here, the Court will not stay any claim that has exclusive federal jurisdiction (or any claim based on federal law), and rather, if the Colorado River balancing test mandates, will stay claims based on state law, and subject to concurrent jurisdiction. Claims subject to concurrent jurisdiction are precisely the type contemplated by Colorado River.

The "Colorado River doctrine ... applies to claims under the concurrent jurisdiction of the federal and state courts".

See also Minucci, 868 F.2d at 1115 (The “Colorado River doctrine ... applies to claims under the concurrent jurisdiction of the federal and state courts”.)

stating that Colorado River "is invoked when both the federal and state courts have concurrent jurisdiction over particular claims "

Turf Paradise, 670 F.2d at 821 (stating that Colorado River “is invoked when both the federal and state courts have concurrent jurisdiction over particular claims ”) (emphasis added).


Context: This Court "retains the discretion to seek supplemental submissions from the parties if it decides that more information is necessary to determine whether petitioners, in fact, have standing."

Am. Library Ass’n v. FCC, 401 F.3d 489, 494 (D.C.Cir.2005); see, e.g., Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C.Cir.2006) (“[W]e raised the issue of standing at oral argument and requested supplemental briefing.”); Action on Smoking & Health v. Dep’t of Labor, 100 F.3d 991, 992 (D.C.Cir.1996) (petitioner “furnished post-argument affidavits at our request”); see also Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 469 F.3d 129, 132 (D.C.Cir.2006) (supplemental briefing sought where agency first challenged standing after panel opinion issued).

"[W]e raised the issue of standing at oral argument and requested supplemental briefing."


Context: We have sometimes allowed a defendant to preserve a district court error as long as one of his codefendants objected below.

holding that objection to instructions by codefendant's counsel is sufficient to preserve any error

See United States v. White, 589 F.2d 1283, 1290 (5th Cir.1979) (holding that objection to instructions by codefendant’s counsel is sufficient to preserve any error); Love, 472 F.2d at 496 (holding that the failure of one codefendant’s counsel “to move to suppress the evidence or to object to its introduction should be excused because such a motion or objection would have been a useless formality” given fact that other codefendant’s counsel had made motion to suppress); see also United States v. Pardo, 636 F.2d 535, 541 (D.C.Cir.1980) (“We recognize that in certain situations, it may be redundant and inefficient to require each defendant in a joint trial to stand up individually and make every objection to preserve each error for appeal.”); Cassity, 631 F.2d at 466 (“Under these circumstances, we hold the remaining appellants did not waive their fourth amendment objections by neglecting to perform the useless and purely formal act of joining Cassity in moving to suppress.”); United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971) (ruling that objection to instructions by codefendant’s counsel preserves any error); cf. United States v. Alvarez, 584 F.2d 694, 697 (5th Cir.1978) (ruling that since “[t]he trial court had already ruled adversely to defendant’s contention ... there was no need for the defense to make the assuredly futile gesture of repeating its objection”); Lefkowitz, 284 F.2d at 313 n. 1 (ruling that “[w]e do not regard the failure of Dryja’s counsel to except as barring Dryja from seeking reversal for error in the charge; Lefkowitz’s exception called the matter to the judge’s attention and further exception would have been fruitless”).

"We recognize that in certain situations, it may be redundant and inefficient to require each defendant in a joint trial to stand up individually and make every objection to preserve each error for appeal."


"Under these circumstances, we hold the remaining appellants did not waive their fourth amendment objections by neglecting to perform the useless and purely formal act of joining Cassity in moving to suppress."


ruling that objection to instructions by codefendant's counsel preserves any error


ruling that since "[t]he trial court had already ruled adversely to defendant's contention ... there was no need for the defense to make the assuredly futile gesture of repeating its objection"


holding that the failure of one codefendant's counsel "to move to suppress the evidence or to object to its introduction should be excused because such a motion or objection would have been a useless formality" given fact that other codefendant's counsel had made motion to suppress


Context: Most of the courts which have examined double jeopardy challenges to habitual offender proceedings analyze the question similarly.

"Under Bullington, then, double jeopardy attaches to sentencing proceedings if the process of determining the defendant's punishment was similar to the process of determining guilt."

See Durosko v. Lewis, 882 F.2d 357, 359 (9th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1930, 109 L.Ed.2d 294 (1990); Nelson v. Lockhart, 828 F.2d 446 (8th Cir.1987), reversed on other grounds, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (“Under Bullington, then, double jeopardy attaches to sentencing proceedings if the process of determining the defendant’s punishment was similar to the process of determining guilt.”); Briggs v. Procunier, 764 F.2d 368 (5th Cir.1985); Bullard v. Estelle, 665 F.2d 1347, 1359 (5th Cir.1982), vacated on other grounds, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983) (“Implicity, (sic) [after Bullington ] enhancement proceedings such as this Texas proceeding, where there are findings of fact similar to the findings in the guilt phase of the trial, are ... within the penumbra [of the double jeopardy clause].”).

Contra Denton v. Duckworth, 873 F.2d 144, 148 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989) (finding that double jeopardy does not attach to habitual offender proceedings); Baker v. Duckworth, 752 F.2d 302 (7th Cir.1985), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985); Linam v. Griffin, 685 F.2d 369 (10th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983) (same).


"Implicity, (sic) [after Bullington ] enhancement proceedings such as this Texas proceeding, where there are findings of fact similar to the findings in the guilt phase of the trial, are ... within the penumbra [of the double jeopardy clause]."


Context: Commercial interest does not warrant disclosure of otherwise private information, such as a name and address list, under FOIA.

Minnis, 737 F.2d at 787 (commercial interest of owner of lodge on scenic river did not outweigh privacy interests of applicants for permits to travel on the river where lodge owner sought names and addresses of permit applicants under FOIA); see also Wine Hobby U.S.A., Inc. v. United States Internal Revenue Service, 502 F.2d 133, 137 (3rd Cir.1974) (request by distributor of amateur wine-making equipment to obtain names and addresses of all persons who registered with the United States Bureau of Alcohol, Tobacco and Firearms for a permit to produce wine for household use was for a commercial purpose and not subject to disclosure under FOIA).


Context: . As Kamara's claim fails under the pre-IIRIRA abuse of discretion standard, the Court need not reach the government's alternative exhaustion argument for Kamara's failure to appeal his bond determination to the BIA. Several courts, including two in this district, have rejected similar arguments.

"The only exhaustion requirement of the [INA] applies to 'orders of deportation or of exclusion' and not to conditions imposed on bonds prior to such order.''

No. 95-11218-RGS, slip op. at 6, 1996 WL 622475, at *3 (D.Mass. January 24, 1996) ("|T]he statutory scheme of the immigration act does not require exhaustion for suits challenging pre-deportation detention.”) (citations omitted); cf. National Ctr. for Immigrants' Rights, Inc. v. Immigration and Naturalization Serv., 791 F.2d 1351, 1354 (9th Cir.1986), rev'd on other grounds, 481 U.S. 1009, 107 S.Ct. 1881, 95 L.Ed.2d 489 (1987) ("The only exhaustion requirement of the [INA] applies to 'orders of deportation or of exclusion’ and not to conditions imposed on bonds prior to such order.’’).

holding exhaustion of administrative remedies requirement inapplicable to pre-deportation order bond determinations and that federal court thus retained jurisdiction for review of bond decision despite petitioner's failure to appeal the decision to the BIA

See Montero v. Cobb, 937 F.Supp. 88, 91-92 (D.Mass.1996) (holding exhaustion of administrative remedies requirement inapplicable to pre-deportation order bond determinations and that federal court thus retained jurisdiction for review of bond decision despite petitioner’s failure to appeal the decision to the BIA); Moskalev v. District Director, Immigration and Naturalization Serv., Civ.A.


"|T]he statutory scheme of the immigration act does not require exhaustion for suits challenging pre-deportation detention."


Context: But Koon admits that he does not know what additives Burlington used in 1975 or 1976, when McKee picked up Burlington's waste, and he has no idea what amount of additive was added. Under these circumstances, Koon's opinion suggests a mere possibility, not a probability, that any cooking water additives used by Burlington contained heavy metals and it cannot serve as the significantly probative evidence that is necessary to withstand a motion for summary judgment.

"[TJhere must be evidence beyond a witness effectively saying 'anything's possible', because such evidence is not sufficient to support a finding."

See Sakaria, 8 F.3d at 172-73 (summary judgment should be granted where expert opinion suggests merely a possibility, as opposed to a probability, “precisely to guard against raw speculation by the fact-finder.”); see also, Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481, 1498 (N.D.Ind.1994) (“[TJhere must be evidence beyond a witness effectively saying ‘anything’s possible’, because such evidence is not sufficient to support a finding.”). As a result, Textron’s claim rests ultimately on the test results from 1974, but absent evidence indicating those results are typical, they are not significantly probative.

summary judgment should be granted where expert opinion suggests merely a possibility, as opposed to a probability, "precisely to guard against raw speculation by the fact-finder."


Context: Second, by requiring effluent limitations, which are developed according to ELGs and NSPSs, as a part of a strategy to eliminate the discharge of pollutants and restore and maintain the integrity of the Nation's waters, 33 U.S.C. SS 1251(a), Congress has expressed its view that developing ELGs and NSPSs reduces the risk of the pollution causing the members' injury. Where Congress has expressed the need for specific regulations relating to the environment, that expression supports an inference that there is a causal connection between the lack of those regulations and adverse environmental effects.

"[A]s Congress passed the Act partly to provide redress to employers from unfair competition, the suggestion that effective enforcement of the Act will not have this effect directly contravenes the congressional judgment underlying the Act."

See Nat’l Wildlife Fed’n, 839 F.2d at 708; see also Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981, 984-85 (9th Cir.1994) (noting that plaintiffs could meet the redressability requirement because Congress had already determined the relief they sought was the appropriate means of achieving desired water quality where other methods had faded); cf. Int’l Ladies Garment Workers’ Union v. Donovan, 722 F.2d 795, 811-12 (D.C.Cir.1983) (“[A]s Congress passed the Act partly to provide redress to employers from unfair competition, the suggestion that effective enforcement of the Act will not have this effect directly contravenes the congressional judgment underlying the Act.”).


Context: "The ultimate issue is whether ... reasonable officials in the defendants' position at the relevant time could have believed that, in light of what was in the decided case law, that their conduct would be lawful." Id. Accepting the allegations in the complaint as true and drawing all inferences in the Browns' favor, a reasonable BCCYS employee could not have believed that a post-deprivation hearing conducted seven weeks after the removal of a child from his parents' home complied with due process.

See, e.g., Miller, 174 F.3d at 372 n. 4 (explaining that initiating child custody proceedings by ex parte order is generally constitutional if a prompt post-deprivation hearing is held, and noting Pennsylvania’s 72 hour requirement); see also Patterson, 141 F.Supp.2d at 540-42 (rejecting qualified immunity defense where defendants failed to provide plaintiffs with a prompt and adequate judicial hearing within 72 hours of taking child into protective custody).

explaining that initiating child custody proceedings by ex parte order is generally constitutional if a prompt post-deprivation hearing is held, and noting Pennsylvania's 72 hour requirement


Context: Plaintiffs further argue that RLUIPA's substantial burden provision has a jurisdictional limitation, providing that it can only be applied when the government action affects interstate commerce, is imposed in a pro gram that receives federal funding, or in a circumstance where individualized assessments of the property are involved. (Pis.'

"By limiting RLUIPA's scope to cases that present one of these jurisdictional nexuses, Congress alternatively grounded RLUI-PA, depending on the facts of a particular case, in the Spending Clause, the Commerce Clause, and SS 5 of the Fourteenth Amendment."

Opp’n 58 (citing 42 U.S.C. § 2000cc(a)(2)).) The substantial burden provision is thus grounded as a proper. exercise of Congress’s power under the Spending Clause, Commerce Clause, and § 5 of the Fourteenth Amendment, see WDS II, 504 F.3d at 354 (“[T]he Supreme Court has made plain [that] the satisfaction of [ ] a jurisdictional element ... is sufficient to validate the exercise of congressional power because an interstate commerce nexus must be demonstrated in each case for the statute in question to operate.”); see also Fortress Bible, 734 F.Supp.2d at 509 (“By limiting RLUIPA’s scope to cases that present one of these jurisdictional nexuses, Congress alternatively grounded RLUI-PA, depending on the facts of a particular case, in the Spending Clause, the Commerce Clause, and § 5 of the Fourteenth Amendment.”).

"[T]he Supreme Court has made plain [that] the satisfaction of [ ] a jurisdictional element ... is sufficient to validate the exercise of congressional power because an interstate commerce nexus must be demonstrated in each case for the statute in question to operate."


Context: This determination informs the consideration of the forum non conveniens inquiry. In addition to private and public interest factors, such as Karim receiving medical treatment in the United States, evidence and testimony being easily accessible in this forum, and counsel for both parties being based in this forum, the fact that United States limitation law applies also weighs against dismissal.

holding that the doctrine of forum non conve-niens did not compel dismissal of related actions for limitation of vessel owners' liability

See, e.g., Argonaut P’ship, 1997 WL 45521, at *15 (stating that “courts have denied forum non conveniens motions where a related action, requiring much of the same evidence, was pending also in the jurisdiction and could not be dismissed”); Maritima Aragua, 823 F.Supp. at 147 (denying a motion to dismiss on the basis of forum non conveniens and stating that the “crucial factor in the case at bar [was] the presence of the Limitation Proceeding brought by the [shipowners]”); id. at 150-51; see also Am. President Lines, 890 F.Supp. at 318 (holding that the doctrine of forum non conve-niens did not compel dismissal of related actions for limitation of vessel owners’ liability); Geophysical Serv., 590 F.Supp. at 1357, 1361 (finding the Canadian limitation act applicable and dismissing the action on the basis of forum non conveniens).

stating that "courts have denied forum non conveniens motions where a related action, requiring much of the same evidence, was pending also in the jurisdiction and could not be dismissed"


finding the Canadian limitation act applicable and dismissing the action on the basis of forum non conveniens


denying a motion to dismiss on the basis of forum non conveniens and stating that the "crucial factor in the case at bar [was] the presence of the Limitation Proceeding brought by the [shipowners]"


Context: . As stated above, Georgia courts have consistently held that, under a quantum meruit theory, a plaintiff must show that the services had value to the recipient.

"Proof of 'the reasonable value of services rendered to and accepted by a defendant is an element essential to recovery on a quantum meruit basis.' "

See Watson, 226 Ga.App. at 28, 485 S.E.2d 563 (“Under O.C.G.A. § 9-2-7, this Code section provides an action for quantum meruit where services were rendered and materials were furnished, and which were accepted by and valuable to the recipient .... ”); see also Diegert v. Cedarbrook Homes, Inc., 267 Ga.App. 264, 265, 599 S.E.2d 211 (2004) (“Proof of 'the reasonable value of services rendered to and accepted by a defendant is an element essential to recovery on a quantum meruit basis.' ") (emphasis added) (citation omitted).

"Under O.C.G.A. SS 9-2-7, this Code section provides an action for quantum meruit where services were rendered and materials were furnished, and which were accepted by and valuable to the recipient .... "


Context: Northrop Corp., Northrop Elecs. Even though it is an Article I tribunal, this Court applies justiciability principles of Article III, including mootness.

See, e.g., Schooling v. United States, 63 Fed.Cl. 204, 209 (2004) (dismissing case for lack of subject matter jurisdiction because claims asserted in the complaint were moot); CW Gov’t Travel, Inc. v. United States, 46 Fed.Cl. 554, 558 (2000) (citing Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed.Cir.1996)) (granting motion to dismiss for mootness); see also Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003) (“The Court of Federal Claims, though an Article I court ... applies the same standing requirements enforced by other federal courts created under Article HI.”)).

"The Court of Federal Claims, though an Article I court ... applies the same standing requirements enforced by other federal courts created under Article HI."


Context: Hewlett's malicious prosecution claim likewise fails because prosecutors are immune from a civil suit for damages under section 1983 for initiating a prosecution and presenting the State's case.

decision to initiate a prosecution is at the core of a prosecutor's judicial role

See also Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir.1992) (decision to initiate a prosecution is at the core of a prosecutor’s judicial role).

prosecutors are absolutely immune from civil liability for activities "intimately associated with the judicial phase of the criminal process"

See Bartle, 871 F.2d at 343 (prosecutors are absolutely immune from civil liability for activities “intimately associated with the judicial phase of the criminal process”) (quoting Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).


Context: First, Littlewind testified that Rayone told him that "she had something to tell me ... and [that] cops were going to be involved." Robertson theorizes that this testimony improperly "vouched" for Rayone's testimony that F.S. said, "He raped me," and that it bolstered F.S.'s credibility by suggesting that Robertson had sexually assaulted F.S. As an initial matter, we doubt that this statement was hearsay.

concluding that statements "offered to show the reason for police action, rather than to prove the truth of the matter asserted" are not hearsay

See Londondio, 420 F.3d at 788-89 (concluding that statements “offered to show the reason for police action, rather than to prove the truth of the matter asserted” are not hearsay); see also United States v. Running Horse, 175 F.3d 635, 638 (8th Cir.1999) (“Preliminary information concerning the origin of an investigation, admitted only for that purpose, is not hearsay.”).

"Preliminary information concerning the origin of an investigation, admitted only for that purpose, is not hearsay."


Context: Most significantly, Rashid's application asserts that he was subjected to persecution due to his purported efforts to convert poor Muslims to the Christian and Hindu religions. However, at his asylum hearing Rashid testified that as a member of the Awami League, he assisted poor Christian and Hindu children with their subsistence needs, which led to his persecution.

"An inconsistency goes to the heart of a claim if it concerns events central to petitioner's version of why he was persecuted and fled."

See Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir.2011) (holding that “Material alterations in the applicant’s account of persecution are sufficient to support an adverse credibility finding”) (citation omitted); see also Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006) (“An inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled.”) (citation omitted).

holding that "Material alterations in the applicant's account of persecution are sufficient to support an adverse credibility finding"


Context: In addition, facilitation of an offense is expressly included as a lesser-included offense under part (c) of the test. We therefore conclude that, under either part (a) or part (c) of the lesser-included offense definition adopted above, facilitation was a lesser-included offense of the charged offense in this case.

"We must conclude that virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense."

Compare Commonwealth v. Day, 983 S.W.2d 505, 509 n. 2 (Ky.1999) (“Generally, criminal facilitation is a lesser included offense when the defendant is charged with being an accomplice to an offense, not the principal offender.”); Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky.1995); see also State v. Lewis, 919 S.W.2d 62, 67 (Tenn.Crim.App.1995) (“We must conclude that virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense.”), overruled on other grounds State v. Williams, 977 S.W.2d 101, 106 n. 7 (Tenn.1998).

"Generally, criminal facilitation is a lesser included offense when the defendant is charged with being an accomplice to an offense, not the principal offender."


Context: We conclude that the application of the litigation privilege to a cause of action for abuse of process does not eliminate that cause of action. The litigation privilege, by definition, is limited to actions taken during a judicial proceeding and which are related to the judicial proceeding. Levin, 639 So.2d at 608. Therefore, a claimant may still pursue a claim for an abuse of process when the claim is based on actions taken outside of a judicial proceeding or on actions that are taken during a judicial proceeding but which are unrelated to the judicial proceeding.

See Olson v. Johnson, 961 So.2d 356 (Fla. 2d DCA 2007) (holding that the litigation privilege did not preclude a malicious prosecution claim where the accusatorial statements that led to the plaintiffs arrest were made before the charges against him were filed and were not made during, and were unrelated to, the judicial proceeding); see also Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.2d 1266 (Fla. 4th DCA 2006) (holding that the litigation privilege did not prohibit the plaintiffs false imprisonment claim because the confinement did not occur during the course of the judicial proceedings nor in an effort to prosecute or defend the lawsuit).


Context: Viewing the allegations in the light most favorable to the plaintiffs, we nevertheless hold that Trooper Titus's alleged conduct did not amount to gross negligence as a matter of law. The plaintiffs' allegations that Trooper Titus drove at high speeds on a road congested with traffic in an attempt to apprehend a suspected intoxicated driver do not indicate that he acted with wanton or reckless disregard for the safety of others. Although the complaint states that Trooper Titus did not "immediately" activate his emergency equipment and violated police procedures, these somewhat vague allegations do not support the conclusion that he acted with gross negligence.

See also, Nast v. Lockett, supra, 312 Md. at 367, 539 A.2d at 1125 (as a matter of law, evidence was insufficient to show that the defendant, who was driving under the influence of alcohol, was grossly negligent in the operation of her automobile).

See Breck v. Cortez, 141 Ill.App.3d 351, 353-354, 359-361, 95 Ill.Dec. 615, 616-17, 620-21, 490 N.E.2d 88, 89-90, 93-94 (1986) (conduct of police officers did not amount to willful or wanton negligence, as a matter of law, where they pursued a vehicle observed driving recklessly without its headlights on at about 9 p.m., where the chase took place over eight miles on an interstate highway and a two-lane road, where the roads were wet but traffic was light to medium, and where the officers were driving substantially over the speed limit); Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988) (police officers did not act with conscious or reckless disregard for others when they pursued a car driving erratically at about 1 a.m. over eighteen miles at speeds of up to 100 miles per hour).


police officers did not act with conscious or reckless disregard for others when they pursued a car driving erratically at about 1 a.m. over eighteen miles at speeds of up to 100 miles per hour


Context: Moreover, AT & T is not entitled to relief under the URAA or the Ohio relocation assistance statute, as Plaintiff has been merely required to shift its telecommunications cable within the boundaries of the easement.

See Consumers Power Co., 615 F.2d at 1149-50 (explaining that a utility forced to shift its pipes due to federally funded sewage projects was not a displaced person entitled to compensation under the URAA, having lost no right, because it was able to maintain its pipes in the same ground in which they had previously been maintained); cf. Weir, 465 N.E.2d at 1343, 1347 (asserting that the utility was a displaced person and entitled to compensation, as it was required to move an underground pipeline to an entirely new location when the state acquired, to build an interstate highway, the land through which the utility had an easement).


Context: We must identify the relevant forum before we can classify it. Because Bryant seeks access only to the advertising section of each CEN, we treat the advertising section -- not the whole CEN, which the Government suggests -- as the relevant forum.

"In cases in which limited access is sought," we "take[] a more tailored approach to ascertaining the perimeters of a forum"

Id. at 801, 105 S.Ct. 3439 (“In cases in which limited access is sought,” we “take[] a more tailored approach to ascertaining the perimeters of a forum”); see Lehman v. City of Shaker Heights, 418 U.S. 298, 300-04, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (plurality) (advertising spaces on city buses, where plaintiff wanted to run political ads, were relevant fora); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (where plaintiff wanted to distribute mail to school teachers, school’s internal mail system was relevant forum).

where plaintiff wanted to distribute mail to school teachers, school's internal mail system was relevant forum


Context: Often in First Amendment retaliation cases, the government is claimed to have retaliated against the plaintiff for her own speech; but the First Amendment may also be violated where the speech that invoked the government's retaliatory response was not made by the plaintiff herself, but rather by a person in a close relationship with the plaintiff, and the government retaliated against the plaintiff for her perceived association with the other person and that person's speech.

"We have little difficulty concluding that if [plaintiffs allegations that the defendant terminated his employment in retaliation for his fiancee's filing of a charge with the EEOC] are true, then [the defendant's] firing of [plaintiff] violated Title VII."

See, e.g., Adler v. Pataki, 185 F.3d 35, 45 (2d Cir.1999) (holding that “retaliatory discharge based solely on [protected speech] by one’s spouse is actionable under the First Amendment”); Talley v. Brentwood Union Free Sch. Dist., 2009 WL 1797627, at *6 (E.D.N.Y. June 24, 2009) (Hurley, J.) (citing Adler to uphold claim of retaliation against a daughter for her father’s speech); Cain v. Tigard-Tualatin Sch. Dist. 23J, 262 F.Supp.2d 1120, 1127 (D.Or.2003) (Haggerty, C.J.) (upholding claim that defendant’s retaliatory “conduct was motivated by [plaintiffs] association with his parents’ speech”); Agostino v. Simpson, 2008 WL 4906140, at *5 (S.D.N.Y. Nov. 17, 2008) (Seibel, J.) (claim “alleging that Defendants took adverse action against Plaintiff in retaliation for [his father’s] First Amendment activities”); Serena H. v. Kovarie, 209 F.Supp.2d 453, 458 (E.D.Pa.2002) (Brody, J.) (upholding “First Amendment claim [that] [the plaintiff] was retaliated against based upon her mother’s exercise of free speech”); cf. Thompson v. N. Am. Stainless, LP, — U.S.-, 131 S.Ct. 863, 867, 178 L.Ed.2d 694 (2011) (“We have little difficulty concluding that if [plaintiffs allegations that the defendant terminated his employment in retaliation for his fiancée’s filing of a charge with the EEOC] are true, then [the defendant’s] firing of [plaintiff] violated Title VII.”).

holding that "retaliatory discharge based solely on [protected speech] by one's spouse is actionable under the First Amendment"


upholding claim that defendant's retaliatory "conduct was motivated by [plaintiffs] association with his parents' speech"


upholding "First Amendment claim [that] [the plaintiff] was retaliated against based upon her mother's exercise of free speech"


Context: Nor is "an official's mere presence when promises are made [sufficient to] establish that he or she possessed actual knowledge that such promises were in fact made." Because the ratifying party must manifest her knowing acceptance of the specific contract at issue, ratification cannot be inferred from a plaintiffs prior dealings with the same government agency.

"[P]laintiff has to have evidence of something more than the possibility that [the ratifying official] may have known about the prior [dealings]."

See Henke, 43 Fed.Cl. at 27-28 (“[P]laintiff has to have evidence of something more than the possibility that [the ratifying official] may have known about the prior [dealings].”).

"[A] 'plaintiffs prior experience with the [agency] is not sufficient as proof [of ratification] with respect to the contract at issue.' "

Doe v. United States, 48 Fed.Cl. 495, 504 (2000) (“[A] ‘plaintiffs prior experience with the [agency] is not sufficient as proof [of ratification] with respect to the contract at issue.’ ”) (quoting Henke, 43 Fed.Cl. at 27). This is especially the case where, as here, the ratifying official did not participate in plaintiffs prior dealings with the agency.


Context: To the extent that Miner alleges that the Town is liable for any intentional infliction of emotional distress by Deegan, see Am.Compl. at 13, P 82, such a claim is precluded by Conn.Gen.Stat. SS 52-557n, which provides, that "a political subdivision of the state shall not be liable for damages to person or property caused by ... [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct ..." Under Connecticut law, the term "willfulness" is synonymous with "intentional."

"While [courts] have attempted to draw definitional [distinctions] between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing."

Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14, 717 A.2d 202 (1998) (“While [courts] have attempted to draw definitional [distinctions] between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.”), quoting Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988); see also Elliott v. City of Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (legal concepts of wanton, reckless, willful, intentional and malicious conduct indistinguishable); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) (“A willful act is one done intentionally or with reckless disregard of the consequences of one’s conduct.”).


"A willful act is one done intentionally or with reckless disregard of the consequences of one's conduct."


Context: In any event, even had the tip contained information regarding defendant's future plans to visit the Royal Buffet, this lone detail pales in comparison to the predictive information provided by the confidential informants in the cases cited by the state.

concluding that anonymous tip was "sufficiently detailed, and thereafter corroborated, to warrant an experienced detective to become reasonably suspicious of [the defendant's] behavior" where "[t]he tip provided details of where [the defendant] lived, the type of vehicle he would be driving, and the itinerary and alleged purpose of his travel to and from Providence"

See, e.g., Draper, 358 U.S. at 309-10, 79 S.Ct. 329 (tip — given by an informant who was a paid employee of the Bureau of Narcotics and had provided reliable information in the past — indicated that the defendant had gone to Chicago the day before and would return to Denver by train either the next day or the day after, accurately described the precise clothing the defendant would be wearing and the tan zipper bag that he would be carrying, and correctly stated that the defendant “habitually” walked very quickly); United States v. Miller, 925 F.2d 695, 697 (4th Cir.1991) (Powell, J.) (informant’s tip indicated that the defendant — a picture of whom the informant identified — would be traveling by bus and arriving on one of two days later that week; informant also accurately described the precise clothing that the defendant would be wearing and a tote bag that she would be carrying); cf. Keohane, 814 A.2d at 330 (concluding that anonymous tip was “sufficiently detailed, and thereafter corroborated, to warrant an experienced detective to become reasonably suspicious of [the defendant’s] behavior” where “[t]he tip provided details of where [the defendant] lived, the type of vehicle he would be driving, and the itinerary and alleged purpose of his travel to and from Providence”).

tip -- given by an informant who was a paid employee of the Bureau of Narcotics and had provided reliable information in the past -- indicated that the defendant had gone to Chicago the day before and would return to Denver by train either the next day or the day after, accurately described the precise clothing the defendant would be wearing and the tan zipper bag that he would be carrying, and correctly stated that the defendant "habitually" walked very quickly


Context: With respect to Defendant's conflict of interest argument, the Court finds that Defendant has not identified an actual conflict of interest and has failed to explain how simultaneous representation in Makaeff and the present matter might undermine Cohen's ability or counsel's ability to adequately represent the class.

finding disqualification premature in part because defendants had only raised "speculative concerns about conflicts of interest between the superior court plaintiffs and the federal Plaintiffs"

See Keilholtz v. Lennox Hearth Prods., 268 F.R.D. 330, 338 (N.D.Cal. 2010) (finding no evidence that the plaintiffs in multiple classes had antagonistic interests and that defendants appeared to be able to satisfy a judgment in both cases); see also Sandoval v. Ali, No. C-13-03230(EDL), 34 F.Supp.3d 1031, 1046-47, 2014 WL 1311776 at *10 (N.D.Cal.2014) (finding disqualification premature in part because defendants had only raised “speculative concerns about conflicts of interest between the superior court plaintiffs and the federal Plaintiffs”).


Context: As the court's colloquy with counsel at oral argument made quite clear, the Policy challenged here was constructed to prevent one thing: seasonal holiday displays of a religious character. The absence of an explicit list of permissible subjects upon which discourse is permissible in this nonpublie forum does not mean that there is no "otherwise includible subject" for discussion in the forum.

holding that a policy generally encouraging the moral character and development of youth by permitting on school premises the Boy Scouts and Girl Scouts, but not permitting a religious youth organization, violates the First Amendment's prohibition of viewpoint discrimination

See also Good News/Good Sports Club, 28 F.3d at 1506-07 (holding that a policy generally encouraging the moral character and development of youth by permitting on school premises the Boy Scouts and Girl Scouts, but not permitting a religious youth organization, violates the First Amendment’s prohibition of viewpoint discrimination); Searcey v. Crim, 815 F.2d 1389 (11th Cir.1987) (holding that the exclusion of “peace activists” from “career days” when military recruiters were permitted access was viewpoint-based administration); cf. AIDS Action Comm, of Mass., Inc. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 11-12 (1st Cir.1994) (finding viewpoint discrimination in application of transit authority policy that prohibited the display of AIDS advertisements but allowed the display of sexually explicit movie advertisements).


holding that the exclusion of "peace activists" from "career days" when military recruiters were permitted access was viewpoint-based administration


Context: The MSPB has also recognized that an agency may not base employment actions on conduct that satisfies the conditions of the FMLA but not the agency's more-restrictive standards.

Cf. George v. Associated Stationers, 932 F.Supp. 1012 (N.D.Ohio 1996)(FMLA leave may not be considered as basis for employment action even if company acts pursuant to uniformly applied policy).

overturning an agency's suspension of employee for failure to comply with agency's leave-request policy

In Gross v. Department of Justice, 77 M.S.P.R. 83 (1997), the Board explained that “an agency may not apply a more restrictive leave policy than that provided under the FMLA, and it may not deny an employee leave under the FMLA for failure to follow the agency’s leave procedures.” 77 M.S.P.R. at 87 (overturning an agency’s suspension of employee for failure to comply with agency’s leave-request policy).


Context: Having so concluded, we must now turn our attention to whether the warrant's issuance in violation of the nighttime search requirements necessitates suppression of the evidence seized, namely the drugs and other items found in defendant's purse. We recognize that mere ministerial and technical errors in the preparation or execution of search warrants will not, without more, invalidate the warrant.

violation of "knock-and-announce" rule did not require suppression when no one was at home at the time of the search to respond to the knock

See, e.g., State v. Buck, 756 P.2d 700, 702-03 (Utah 1988) (violation of “knock-and-announce” rule did not require suppression when no one was at home at the time of the search to respond to the knock).

Cf. State v. Kirn, 70 Haw. 206, 767 P.2d 1238, 1239-40 (1989) (suppression may be appropriate for violation of constitution, statute, or administrative regulation).


Context: As an initial matter, there is no explicit requirement in the substantial continuity test for successor liability that an entity must be a "purchaser of assets" to be a successor. However, the Court recognizes that whether a transfer of assets occurred may be relevant to the find ing of substantial continuity when balancing the equities in a particular case or legal context. ERISA appears to be such a legal context.

"Title VII cases do consider the existence of a merger or transfer of assets, and we believe that in some cases consideration of the existence of a merger or transfer of assets is appropriate."

See Einhorn, 632 F.3d at 99 (holding that “a purchaser of assets may be liable for a seller’s delinquent ERISA fund contributions to vindicate important federal statutory policy where the buyer had notice of the liability prior to the sale and there exists sufficient evidence of continuity of operations between the buyer and seller” (emphasis added)); see also Cobb, 452 F.3d at 556 (“Title VII cases do consider the existence of a merger or transfer of assets, and we believe that in some cases consideration of the existence of a merger or transfer of assets is appropriate.”) (citation omitted); Korlin v. Chartwell Health Care, Inc., 128 F.Supp.2d 609, 614 (E.D.Mo.2001) (declining to impose successor liability under Title VII on the facts presented without a merger or transfer of assets because the court concluded that, if the cost of liability was not reflected in any purchase price, imposition of successor liability would not be equitable). Accordingly, the Court will consider the nature of the transaction as it relates to the MacMillan factors and the balance of the equities.

holding that "a purchaser of assets may be liable for a seller's delinquent ERISA fund contributions to vindicate important federal statutory policy where the buyer had notice of the liability prior to the sale and there exists sufficient evidence of continuity of operations between the buyer and seller" (emphasis added


declining to impose successor liability under Title VII on the facts presented without a merger or transfer of assets because the court concluded that, if the cost of liability was not reflected in any purchase price, imposition of successor liability would not be equitable


Context: See Fed. R.Civ.P. 72(a). A party failing to appeal a magistrate judge's order in a nondispositive matter to the district court may not raise an objection to it on appeal to a circuit court.

"Because the record indicates that Appellants failed to file objections to [magistrate judge's] order within ten days, any such objection was likely waived."

See Stemler v. City of Florence, 126 F.3d 856, 866 n. 9 (6th Cir.1997) (failure to challenge magistrate judge's discovery order to district court constitutes waiver of claim on appeal); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1173-74 (9th Cir.1996) (pro se litigant forfeited right to appellate review of magistrate judge's nondispositive order by not ap pealing that order to the district court); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir.1993) ("[Wlhen ... a litigant could have tested a magistrate's ruling by bringing it before the district judge, but failed to do so within the allotted ten-day period, he cannot later leapfrog the trial court and appeal the ruling directly to the court of appeals.”); see also ICA Const. Corp. v. Reich, 60 F.3d 1495, 1499 n. 10 (11th Cir.1995) ("Because the record indicates that Appellants failed to file objections to [magistrate judge's] order within ten days, any such objection was likely waived.”).


pro se litigant forfeited right to appellate review of magistrate judge's nondispositive order by not ap pealing that order to the district court


"[Wlhen ... a litigant could have tested a magistrate's ruling by bringing it before the district judge, but failed to do so within the allotted ten-day period, he cannot later leapfrog the trial court and appeal the ruling directly to the court of appeals."


Context: . The majority suggests that this statement merely establishes that back pay often is awarded together with reinstatement. The Title VII cases do not see it this way, for they type back pay as relief more akin to reinstatement than to damages. Additionally, several courts have characterized back pay as specific relief.

"EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay"

But see General Tel. Co. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 1704, 64 L.Ed.2d 319 (1980) ("EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay”).

"an equitable action for specific relief -- which may include an order providing for the reinstatement of an employee with backpay"

See Bowen, 487 U.S. at 893, 108 S.Ct. at 2731-32 ("an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with backpay”); Franks v. Bowman Transp. Co., 424 U.S. 747, 751, 96 S.Ct. 1251, 1258, 47 L.Ed.2d 444 (1976) ("the District Court declined, however, to grant the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay”); Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918, 922 (11th Cir. 1990) (“[t]he EEOC’s complaint sought specific relief for Riddle in the form of backpay and promotion”); Ward v. Arkansas State Police, 653 F.2d 346, 348 (8th Cir.1981) (”[t]he consent decree ... established guidelines for back pay and other specific relief”); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1118 (8th Cir.1977) (“the settlement ... gave no specific relief such as back pay”); United States v. N.L. Indus., Inc., 479 F.2d 354, 378 (8th Cir.1973) (”[t]he Government requests specific relief for individual applicants, including backpay differentials”); City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748, 753 (1991) (the "complaint sought specific relief in the form of promotion and back pay”); Eureka Teacher’s Ass'n v. Board of Educ., 202 Cal.App.3d 469, 247 Cal.Rptr. 790, 794 (1988) ("‘Back pay clearly is specific monetary relief incidental to the requested orders that appellant be hired and that respondents be enjoined from discriminating against him.’”) (quoting Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 193 Cal.Rptr. 760, 765 (1983)).


"the District Court declined, however, to grant the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay"


"[t]he EEOC's complaint sought specific relief for Riddle in the form of backpay and promotion"


"[t]he consent decree ... established guidelines for back pay and other specific relief"


"the settlement ... gave no specific relief such as back pay"


"[t]he Government requests specific relief for individual applicants, including backpay differentials"


the "complaint sought specific relief in the form of promotion and back pay"


"'Back pay clearly is specific monetary relief incidental to the requested orders that appellant be hired and that respondents be enjoined from discriminating against him.'"


Context: Other bankruptcy courts have specifically rejected claimed exemptions under that state's trustee process statute in a bankruptcy proceeding.

See In re Damast, 136 B.R. 11 (Bankr.D.N.H.1991) (noting that such exemptions are only applicable in the context of trustee process); see also In re Kingsbury, 124 B.R. 146 (Bankr.D.Me.1991) (stating that a bankruptcy debtor could not use such a statute to expand his exemptions during a bankruptcy proceeding) overruled on unrelated grounds by Taylor v. Freeland & Kronz et al., 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992).


Context: The administrator alleged in his complaint that Toma had converted Meszaros's property after he had helped move her to Ohio and further converted the property of her Ohio estate following her death. See Winters Natl.

"The title to personal property of a deceased person passes to his personal representative, his executor or administrator, pending the settlement of the estate * * *. "

Bank & Trust Co. v. Riffe (1965), 2 Ohio St.2d 72, 31 O.O.2d 56, 206 N.E.2d 212, paragraph one of the syllabus (“The title to personal property of a deceased person passes to his personal representative, his executor or administrator, pending the settlement of the estate * * *. ”); see, also, Herbruck v. LaJolla Capital (Sept. 27, 2000), Summit App. No. 19586, unreported, 2000 WL 1420282 (nonresident defendant’s actions met requirements of R.C. 2307.382[A][6], where he allegedly committed tortious acts, including conversion, outside Ohio while knowing that stock involved was of an Ohio corporation).

nonresident defendant's actions met requirements of R.C. 2307.382[A][6], where he allegedly committed tortious acts, including conversion, outside Ohio while knowing that stock involved was of an Ohio corporation


Context: In this case, the district court's credibility findings regarding Trooper Wade's testimony considerably color the "reasonable articulable suspicion" inquiry.

noting that an officer's credibility must be scrutinized particularly where a pretextual stop is at issue

See United States v. Hill, 195 F.3d 258, 265-67 (6th Cir.1999) (noting that an officer’s credibility must be scrutinized particularly where a pretextual stop is at issue); see also United States v. Akram, 165 F.3d 452, 457-60 (6th Cir.1999) (Guy, J., dissenting) (“The courts have given the police this extraordinary power to make pretextual stops and searches of vehicles, but it is also the responsibility of the courts to make sure the testimony of police officers is given the same critical scrutiny given to a defendant’s testimony.”); United States v. Johnson, 63 F.3d 242, 247 (3d Cir.1995) (“[I]n evaluating the constitutionality of a traffic stop, a court is free to examine ... the officer’s credibility.”); cf. Wong Sun v. United States, 371 U.S. 471, 481-82, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (stating that probable cause determinations shall be made by a neutral magistrate to “insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause”).

"The courts have given the police this extraordinary power to make pretextual stops and searches of vehicles, but it is also the responsibility of the courts to make sure the testimony of police officers is given the same critical scrutiny given to a defendant's testimony."


"[I]n evaluating the constitutionality of a traffic stop, a court is free to examine ... the officer's credibility."


stating that probable cause determinations shall be made by a neutral magistrate to "insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause"


Context: Local 702 prevailed on the merits in both. Mr. Smart's claim, therefore, fails as a matter of law on that element. We need not reach the question of whether the suits were pursued without probable cause -- the only element that might involve interpretation of the CBA.

Owen v. Carpenters’ Disk Council, 161 F.3d 767, 773 (4th Cir.1998) (noting that a district court may pretermit the preemption question when the action is clearly without merit); Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1263 (4th Cir.1989) (same); Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir.1989).

observing that the question of whether employer's action in prosecuting employee was malicious involved evaluation of whether motive was improper, which, in turn, required interpretation of the collective bargaining agreement

Cf. Foy v. Giant Food, Inc., 298 F.3d 284, 290-91 (4th Cir.2002) (observing that the question of whether employer’s action in prosecuting employee was malicious involved evaluation of whether motive was improper, which, in turn, required interpretation of the collective bargaining agreement).


Context: These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment. Thus, the Padilla Court's unwillingness to apply the direct/eollateral distinction in the Sixth Amendment context does not demonstrate the Court's intention to do away with that distinction entirely in the Fifth Amendment context.

noting that in Padilla the Court "had no occasion to consider the scope of a district court's obligation" under due process or Rule 11, or "the continued viability of the distinction between direct and collateral consequences in the due process context"

See United States v. Delgado-Ramos, 635 F.3d 1237, 1240 (9th Cir.2011) (noting that in Padilla the Court “had no occasion to consider the scope of a district court’s obligation” under due process or Rule 11, or “the continued viability of the distinction between direct and collateral consequences in the due process context”); see also United States v. Nicholson, 676 F.3d 376, 381 n. 3 (4th Cir.2012) (noting that the Court in Padilla did not address district courts’ Rule 11 obligations).

noting that the Court in Padilla did not address district courts' Rule 11 obligations


Context: The district court did not clearly err in ruling that the photo identification array was not unduly suggestive. A darker hue or different colored background does not "in [itself] create an impermissible suggestion that the defendant is the offender."

denying challenge to pretrial identification where defendant's "picture was placed in the center of the array, was darker than the rest, and was the only one in which the eyes were closed."

United States v. Burdeau, 168 F.3d 352, 358 (9th Cir.1999) (denying challenge to pretrial identification where defendant’s “picture was placed in the center of the array, was darker than the rest, and was the only one in which the eyes were closed.”); see also United States v. Mathis, 264 F.3d 321, 333 (3d Cir.2001) (holding that “slightly darker” background of defendant’s picture “did not significantly contribute to the array’s unnecessary suggestiveness”).

holding that "slightly darker" background of defendant's picture "did not significantly contribute to the array's unnecessary suggestiveness"


Context: Furthermore, the court may consider any added meaning that certain conduct might suggest to experienced officers in the field, trained in the observation of criminal activity." Based on the totality of facts discovered by Deputy Sheriff Brown during this consensual encounter, I conclude the officer had a reasonable articulable suspicion to continue detaining the defendants for a reasonable period of time to investigate the circumstances and determine if the defendants were engaged in criminal activity.

holding presence of a masking odor in vehicle, passenger's nervous behavior, passenger's inability to recall the name of his purport ed daughter-in-law, and vast divergence between passenger's and driver's statements regarding travel accommodations to California justified further detention of the vehicle for investigation of whether a crime was being committed

United States v. Foley, 206 F.3d 802, 805 (8th Cir.2000)(holding presence of a masking odor in vehicle, passenger’s nervous behavior, passenger’s inability to recall the name of his purport ed daughter-in-law, and vast divergence between passenger’s and driver’s statements regarding travel accommodations to California justified further detention of the vehicle for investigation of whether a crime was being committed).

holding inconsistent information on travel plans "casts suspicion and doubt on the nature and legitimacy" of defendants' activity

See also, Jones, 269 F.3d at 928 (holding inconsistent information on travel plans “casts suspicion and doubt on the nature and legitimacy” of defendants’ activity); United States v. Pulliam, 265 F.3d 736, 740 (8th Cir.2001)(inconsistencies in information regarding the trip and the relationship between the driver and passenger justified further detention of the driver while the officer continued to investigate).


inconsistencies in information regarding the trip and the relationship between the driver and passenger justified further detention of the driver while the officer continued to investigate


Context: To the extent that the majority opinion can be construed to suggest that counsel's investigation into some aspects of potential mitigation eliminated the need to thoroughly investigate all reasonably available avenues of mitigation--including such things as life-history mitigation and a mental health evaluation (for which the court had already allocated funds, which went unused)--I note that such a proposition is at odds with the holdings of this Court as well as those of the United States Supreme Court.

See Commonwealth v. Malloy, 579 Pa. 425, 460, 856 A.2d 767, 788 (2004) (explaining that “ ‘strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments supported the limitations on investigation’ ”) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)); Wiggins, 539 U.S. at 525, 123 S.Ct. at 2537 (describing counsel’s obligation to discover all reasonably available mitigating evidence); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000) (explaining that counsel has a duty to thoroughly investigate a defendant’s báckground); see also Commonwealth v. Hughes, 581 Pa. 274, 361 n. 56, 865 A.2d 761, 813 n. 56 (2004) (clarifying that the standards outlined in Wiggins and Williams are applicable on collateral review notwithstanding that the underlying trial may have occurred before those cases were decided).

explaining that " 'strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments supported the limitations on investigation' "


describing counsel's obligation to discover all reasonably available mitigating evidence


explaining that counsel has a duty to thoroughly investigate a defendant's background


Context: Had the alcohol offenses not been dismissed, we would have no hesitation in concluding, beyond a reasonable doubt, that this 28-year-old airman engaged in conduct prejudicial to good order and discipline or discrediting to the service when he plied underage females with alcohol on base, particularly as a prelude to seducing one of them, even though the trial judge did not specifically instruct on that element when defining the assimilated alcohol offenses.

But see United States v. Williams, 17 M.J. 207, 216 (C.M.A.1984) (implies Article 134 clause one or two lesser-included offense only available when instructed upon).

Cf. United States v. Mayo, 12 M.J. 286 (C.M.A.1982) (flawed specification prosecuted as violation of U.S.Code supported conviction of included offense of conduct prejudicial to good order and discipline).


Context: Such protection is essential to the efficacy of the mission of our military penal institutions. All USDB cadre, including cooks, while performing their USDB duties which include providing for the custody, control, and discipline of USDB inmates, should benefit from this protection.

holding that "the district court did not err in instructing the jury that the duties of a federal prison employee, even a food service worker, extend to 'safekeeping, protection and discipline.' "

See United States v. Green, 927 F.2d 1005, 1008 (7th Cir.1991) (holding that “the district court did not err in instructing the jury that the duties of a federal prison employee, even a food service worker, exténd to ‘safekeeping, protection and discipline.’ ”); but see United States v. Walker, 202 F.3d 181, 190 (3d Cir.2000) (holding that a cook supervisor was not a “corrections officer” for purposes of the sentence enhancing provisions under the U.S. Sentencing Guidelines Manual, § 3A1.2(b)).

holding that a cook supervisor was not a "corrections officer" for purposes of the sentence enhancing provisions under the U.S. Sentencing Guidelines Manual, SS 3A1.2(b


Context: The State did not raise the issue of Sonsel's character and the justification theory of self-defense does not inquire into, as an essential element, the character of the victim. Thus, specific instances of Sonsel's conduct were not admissible to prove character.

in prosecution for murder, it is not admissible to show victim's character by isolated acts

See Tex.Penal Code Ann. § 9.31 (Vernon 1974) (self-defense); Hatley v. State, 533 S.W.2d 27, 29 (Tex.Crim.App.1976) (in prosecution for murder, it is not admissible to show victim’s character by isolated acts); see also Purtell v. State, 761 S.W.2d 360 (Tex.Crim.App.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989) (murder victim’s character was not essential element of capital murder or defense). This point of error is overruled.

murder victim's character was not essential element of capital murder or defense


Context: Other circuits have rejected "bare corporate receipt" as sufficient proof of access, requiring plaintiffs to introduce some evidence that it was "reasonably possible that the paths of the infringer and the infringed work crossed."

requiring a "close relationship" for the corporate receipt doctrine to apply

Towler v. Sayles, 76 F.3d 579, 583 (4th Cir.1996) (requiring a “close relationship” for the corporate receipt doctrine to apply); see also Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d Cir.2003) (“[B]are corporate receipt ..., without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.”); Moore, 972 F.2d at 942 (a “bare possibility” of access is not enough; rather, a plaintiff must show that the defendant had a “reasonable possibility” of viewing his work).

"[B]are corporate receipt ..., without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access."


Context: And the Sixth Circuit was not alone. Other courts of appeals that considered this issue before Davis also limited the good-faith exception to binding appellate precedent.

expressing concern that an extension of the good-faith exception to subsequently overruled case law might be "an implicit invitation to officers in the field to engage in the tasks -- better left to the judiciary and members of the bar more generally -- of legal research and analysis"

See Davis, 598 F.3d at 1266; United States v. McCane, 573 F.3d 1037, 1045 n. 6 (10th Cir.2009) (applying the good-faith exception because “the Tenth Circuit jurisprudence supporting the search was settled”); United States v. Jackson, 825 F.2d 853, 866 (5th Cir.1987) (holding that the exclusionary rule “should not be applied to searches which relied on Fifth Circuit law” that was subsequently overturned); cf. United States v. Real Prop. Located at 15324 Cnty. Highway E., 332 F.3d 1070, 1075-76 (7th Cir.2003) (expressing concern that an extension of the good-faith exception to subsequently overruled case law might be “an implicit invitation to officers in the field to engage in the tasks — better left to the judiciary and members of the bar more generally — of legal research and analysis”).

applying the good-faith exception because "the Tenth Circuit jurisprudence supporting the search was settled"


Context: While not the holding of the case, such language strongly implies that a passing reference to a party's death in a document that was not filed for the purpose of notifying the litigants of the death is not sufficient to start the ninety-day time period set forth in rule 1.260(a)(1). Federal courts hold similarly.

concluding that statement made in passing during a deposition regarding a defendant's death is not a suggestion of death and explaining that "[w]hen the consequences to the client of a slightly delayed reaction may be severe and the burden of providing formal notice is slight, insistence on the observance of procedural ritual is justified"

See, e.g., Grandbouche v. Lovell, 913 F.2d 835, 836-37 (10th Cir. 1990) (holding that the ninety-day time period under the federal rule “is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party’s death” and that “[m]ere reference to a party’s death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution”); United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1034-35 (10th Cir. 1974) (rejecting argument that formal suggestion of death was unnecessary in order to start the ninety-day time period for filing a motion to substitute); cf. Dolgow v. Anderson, 45 F.R.D. 470, 471 (E.D.N.Y. 1968) (concluding that statement made in passing during a deposition regarding a defendant’s death is not a suggestion of death and explaining that “[w]hen the consequences to the client of a slightly delayed reaction may be severe and the burden of providing formal notice is slight, insistence on the observance of procedural ritual is justified”).

holding that the ninety-day time period under the federal rule "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death" and that "[m]ere reference to a party's death in court proceedings or pleadings is not sufficient to trigger the limitations period for filing a motion for substitution"


rejecting argument that formal suggestion of death was unnecessary in order to start the ninety-day time period for filing a motion to substitute


Context: However, a party may not raise arguments for the first time in a Rule 28(j) letter. Cramer did not seek permission to file a supplemental brief properly raising the Blakely issue.

"[B]ecause [defendant] did not ask to file a brief raising a proper Blakely challenge, we do not consider the matter further."

See United States v. Lindsey, 389 F.3d 1334, 1336 n. 1 (10th Cir.2004) (refusing to address Blakely issue raised only in Rule 28(j) letter); see also United States v. Maldonado-Ramires, 384 F.3d 1228, 1230 n. 1 (10th Cir.2004) ("[B]ecause [defendant] did not ask to file a brief raising a proper Blakely challenge, we do not consider the matter further.”).


Context: Generally, an agency's interpretation of its own ambiguous regulation is "controlling" unless "plainly erroneous or inconsistent with the regulation." This deference is inappropriate, however, where the interpretation is a novel litigating position "wholly unsupported by regulations, rulings, or administrative practice."

stating that a "post hoc rationalization" that does not represent the "agency's fair and considered judgment on the matter in question" is not entitled to deference

Brown v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (explaining that “[d]eference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate”); see also Auer, 519 U.S. at 462, 117 S.Ct. 905 (stating that a “post hoc rationalization” that does not represent the “agency’s fair and considered judgment on the matter in question” is not entitled to deference); Belt, 444 F.3d at 415.

explaining that "[d]eference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate"