Context: In a factually similar case, our court "observe[d] that defendant's attorney could have been more careful by personally inspecting the [expert's] report before sending it out, on balance, thjs [first] factor weighs in favor of finding the work product protection was not waived." Applying these factors, our court's case law counsels against finding a waiver when a party must sift through a large expert report in a short amount of time and only produces a small number of documents inadvertently.

holding defendant had taken reasonable precautions to prevent inadvertent disclosure because defendant's attorney and an experienced legal assistant each reviewed thousands of documents before production

See id. (finding evidence of reasonable precautionary measures when defense counsel had seven days’ notice, produced more than 1,000 documents, and inadvertently produced just one document during three and half years of litigation); see also Wallace, 179 F.R.D. at 314 (holding defendant had taken reasonable precautions to prevent inadvertent disclosure because defendant’s attorney and an experienced legal assistant each reviewed thousands of documents before production); but see Am. Cas. Co. v. Healthcare Indem., Inc., No. 00-2301-DJW, 2002 WL 1156273, at *1 (D. Kan. Apr. 19, 2002) (finding precautionary measures inadequate when the producing party had 17 days to produce the documents compared to the seven-day window in Zapata and inadvertently produced more than one privileged document).


Context: The Court accepted that explanation of legislative intent, purpose and effect, understanding that SS 19.05(a)(2) connotes recklessness per se.

specific intent to kill not element of SS 19.05 offense

Guerrero v. State, 605 S.W.2d 262, at 264 (Tex.Cr.App.1980) (legislature determined conduct proscribed by § 19.05(a)(2) is “equivalent of ‘recklessly1 causing death of another” under § 19.05(a)(1)); Ex parte Ross, 522 S.W.2d 214, at 218 (Tex.Cr.App. 1975) (involuntary manslaughter committed in either of two ways: recklessly causing death of another or by accident or mistake causing death by reason of intoxication while operating a motor vehicle); see Lewis v. State, 529 S.W.2d 550, at 552 (Tex.Cr.App.1975) (specific intent to kill not element of § 19.05 offense); Hardie v. State, 588 S.W.2d 936, at 938 (Tex.Cr.App.1979) (unnecessary allegation of “knowingly and intentionally5’ is surplusage properly excluded from jury charge); Daniel v. State, 577 S.W.2d 231, at 233 (Tex.Cr.App.1979) (“mistake” and “accident” mean “unintentional”); Thomason v. State, 388 S.W.2d 700, at 702 (Tex.Cr.App.1964) (as used in statute “mistake” and “accident” mean “unintentional”); Johnson v. State, 153 Tex.Cr.R. 59, 216 S.W.2d 573, at 578 (1948) (terms used in sense ordinarily understood and mean “unintentional”).


unnecessary allegation of "knowingly and intentionally5' is surplusage properly excluded from jury charge


Context: In adopting a test that permits a plaintiff to make a prima facie showing by reference to either similarly situated individuals or a markedly hostile treatment, the Court does not suggest that merely receiving poor customer service will rise to the level of a civil rights violation.

Callwood, 98 F.Supp.2d at 706 (stating that the trivialities and frustrations of life must not be made the fodder for federal civil rights claims simply because service was lacking); see Bobbitt v. Rage, Inc., 19 F.Supp.2d 512, 519 (W.D.N.C.1998) (stating that, while poor service is regrettable and frustrating, it is a phenomenon familiar to all who eat at restaurants); Robertson v. Burger King, 848 F.Supp. 78, 81 (E.D.La.1994) (stating that while frustrating and all too common, mere fact of slow service does not rise to the level of a civil rights violation).


stating that while frustrating and all too common, mere fact of slow service does not rise to the level of a civil rights violation


Context: To determine whether restitution owed to private victims is still for the benefit of the Government, an analysis of whether restitution is fundamentally penal or compensatory is helpful but not dispositive. Courts have often considered restitution fundamentally penal.

"[R]estitution orders issued pursuant to the VWPA are predominantly compensatory."

But see United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir.1996) (“[R]estitution orders issued pursuant to the VWPA are predominantly compensatory.”).

See United States v. Edwards, 162 F.3d 87, 91 (3d Cir.1998); United States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1808, 143 L.Ed.2d 1011 (1999); United States v. Savoie, 985 F.2d 612, 619 (1st Cir.1993); United States v. Vetter, 895 F.2d 456, 459 (8th Cir.1990); see also United States v. Bruchey, 810 F.2d 456, 460-461 (4th Cir.1987) (concluding that VWPA is fundamentally penal in nature but that nevertheless a civil settlement can absolve the defendant of a need to pay restitution).


Context: Swenson's key complaint relates to the arbitrator's ex parte contact with the expert, and the arbitrator's subsequent failure to accurately disclose the substance of his discussions with the expert. Although the arbitrator should not have contacted the expert ex parte, Swenson has failed to demonstrate any resulting prejudice.

award vacated in part because the "ex parte receipt of evidence bearing on this matter constituted ... prejudice] to Totem's rights"

See Employers Ins. v. Nat’l Union, 933 F.2d 1481 (9th Cir.1991) (vacatur inappropriate where party failed to show prejudice from ex parte contacts); cf. Totem Marine Tug & Barge, Inc. v. N. Am. Towing, Inc., 607 F.2d 649, 653 (5th Cir.1979) (award vacated in part because the “ex parte receipt of evidence bearing on this matter constituted ... prejudice] to Totem’s rights”).


Context: Despite section 451.250, Finan alleges that, "[u]nder Missouri law, property owned by husband and wife [is] presumed to be marital." Finan's Amended Petition at 1. Although Finan cites to no authority, it appears that this statement is based on Missouri Revised Statute section 452.330, which governs property division upon dissolution of marriage. See Mo-.Rev.Stat. SSSS 452.330.2 and 452.330.3 (defining "marital property" for purposes of chapter 452 only and providing that "[a]ll property acquired by either spouse subsequent to marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property"). The Eighth Circuit, however, has held that "[d]ivorce law does not govern a spouse's claimed interest in forfeited property."

collecting cases that "have rejected state divorce law as the basis for a spouse's claim to a legal right, title or interest in forfeited property"

United States v. Cochenour, 441 F.3d 599, 600-01 (8th Cir.2006) (affirming the district court’s finding that the petitioner had “no legal interest in the forfeited property” because “[t]he Missouri statute relied upon by [the petitioner] specifically limits its applicability to dissolution of marriage”); see also Totaro, 345 F.3d at 997-98 (collecting cases that “have rejected state divorce law as the basis for a spouse’s claim to a legal right, title or interest in forfeited property”).

affirming the district court's finding that the petitioner had "no legal interest in the forfeited property" because "[t]he Missouri statute relied upon by [the petitioner] specifically limits its applicability to dissolution of marriage"


Context: Having reviewed the parties' prenuptial agreement, we are satisfied that it does not abrogate Ms. Shaffer's right to support. The agreement does not provide that there has been a full and fair disclosure to both parties of the marital property rights waived.

See Cooper v. Oakes, 427 Pa. Super. 430, 629 A.2d 944 (1993) (full and fair disclosure includes disclosure of marital property rights waived); Simeone v. Simeone, 380 Pa. Super. 37, 551 A.2d 219 (1988), aff’d, 525 Pa. 392, 581 A.2d 162 (1990); cf. Hamilton v. Hamilton, 404 Pa. Super. 533, 591 A.2d 720 (1991) (prenuptial agreement upheld where wife specifically waived right to spousal support).


Context: I reject Respondents' contention that Dr. Saylor was not properly qualified as an expert. While I acknowledge testimony of an expert -witness who possesses knowledge of Indian culture may be helpful, it is not required by section 1912(f). Moreover, where the basis for termination of parental rights is unrelated to Indian culture, the need for expert testimony possessing a familiarity with such culture becomes less crucial.

See Marcia V v. State, 201 P.3d 496, 504 (Alaska 2009) (stating “when the basis for termination is unrelated to Native culture and society and when any lack of familiarity with culture mores will not influence the termination decision or implicate cultural bias in the termination proceeding, the qualifications of an expert testifying under § 1912(f) need not include familiarity with Native culture”); see also Bureau of Indian Affairs (“BIA”) Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67594 (1979) (indicating expert testimony by someone that has knowledge of tribal cultural and childrearing practices may be valuable to a court, but is not required).

stating "when the basis for termination is unrelated to Native culture and society and when any lack of familiarity with culture mores will not influence the termination decision or implicate cultural bias in the termination proceeding, the qualifications of an expert testifying under SS 1912(f


Context: Neither this court, nor the Supreme Judicial Court, has had occasion to consider whether an injury resulting from an object thrown from a moving vehicle arises from the ownership, maintenance, or use of that vehicle. In other contexts, however, the court has stated that in order for coverage to exist there must be a causal connection between the injury and the use of the automobile.

See Sabatinelli v. Travelers Ins. Co., 369 Mass. 674, 677 (1976) (denying coverage where the insured, while sitting in his automobile, intentionally shot the plaintiff); Rischitelli v. Safety Ins. Co., 423 Mass. 703, 706 (1996) (finding no causal connection “when a battery [was] committed following the collision of two motor vehicles”).

sexual assault of a passenger on a school bus by the bus driver held to have arisen out of the "ownership, maintenance or use" of the bus

See also Roe v. Lawn, 34 Mass. App. Ct. 726, 729-730 (1993), S.C., 418 Mass. 66 (1994) (sexual assault of a passenger on a school bus by the bus driver held to have arisen out of the “ownership, maintenance or use” of the bus).


finding no causal connection "when a battery [was] committed following the collision of two motor vehicles"


Context: Finally, we note that while we have found no case in which a federal court has directly addressed the question of the appealability of a statute of limitations decision under the collateral order doctrine, there are scores of cases in which the courts have operated under an assumption that these appeals are interlocutory, including a number in this circuit.

interlocutory appeal from denial of summary judgment motion based on statute of limitations under 28 U.S.C. SS 1292(b

See, e.g., Juzwin v. Asbestos Corp., 900 F.2d 686 (3d Cir.) (interlocutory appeal from denial of summary judgment motion based on statute of limitations under 28 U.S.C. § 1292(b)), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 204 (1990); Hopkins v. Kelsey-Hayes, Inc., 628 F.2d 801 (3d Cir.1980) (same), vacated on other grounds, 455 U.S. 404, 102 S.Ct. 1137, 71 L.Ed.2d 250 (1982); Galvan v. Hess Oil Virgin Islands Corp., 549 F.2d 281 (3d Cir.1977) (same); see also Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir.1991) (stating, in connection with a hypothetical on the law of the case doctrine, that “[t]he denial [of the motion to dismiss on the grounds that the statute of limitations had expired] is an interlocutory order and therefore not appealable at the'time made”).

stating, in connection with a hypothetical on the law of the case doctrine, that "[t]he denial [of the motion to dismiss on the grounds that the statute of limitations had expired] is an interlocutory order and therefore not appealable at the'time made"


Context: Because plaintiff knew about her 1996 performance appraisal score in early 1997, when it was issued to her , any discrimination claim Burnett had would ae-crue at that time.

"the proper focus [in an employment discrimination case] is on the time of the discriminatory act, not the point at which the consequences of the act become painful"

See, e.g., Harris v. City of New York, 186 F.3d 243, 247-249 (2d Cir.1999) (discrimination claims accrue when plaintiff knew or had reason to know of the injury serving as the basis for the claim); Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.1994); see also Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (“the proper focus [in an employment discrimination case] is on the time of the discriminatory act, not the point at which the consequences of the act become painful”); O’Malley v. GTE Serv. Corp., 758 F.2d 818, 820 (2d Cir.1985) (“the timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision ... ”).


"the timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision ... "


Context: Bowling's second claim is that he was forced to use peremptory challenges to strike three other jurors who should have been disqualified for cause, and that he could have used these peremptories to exclude Livingston. The Supreme Court has made it clear that this is not a constitutional injury.

noting that there is no violation if the defendant "elects to cure [the] error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat"

See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (“So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.”); see also United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (noting that there is no violation if the defendant “elects to cure [the] error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat”).

"So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated."


Context: Although defendants' analysis of this question begins with the factors to be considered under Fed.R.Civ.P. 19(b), the court's analysis properly begins with the question of whether or not the trustees are "necessary" parties under Fed.R.Civ.P. 19(a) to a claim of set-off of assets belonging to the plaintiffs against Morken's overdrafts at the bank.

Gwartz, 23 F.3d at 1428 (court must first determine whether party is “necessary” under 19(a) before turning to 19(b) analysis); Rochester Methodist Hosp., 728 F.2d at 1016-17 (Rule 19(b) must be read in conjunction with Rule 19(a) analysis); see also Boulevard Bank, 15 F.3d at 1422-23 (in 12(b)(7) analysis, court begins with Rule 19(a), and only if those requirements are met, does court consider Rule 19(b)); Keweenaw Bay Indian Community, 11 F.3d at 1346-47 (analysis under Rule 12(b)(7) begins with Rule 19(a)); Bank One Texas, 968 F.2d at 100 (if absent party is not necessary under 19(a), they cannot be indispensable under 19(b), and Rule 12(b)(7) motion must fail); Moore, 901 F.2d at 1447 (Rule 19(a) provides the “threshold” analysis to indispensability); McLaughlin, 847 F.2d at 621 (Only if party is necessary under rule 19(a) does court proceed to next step in 12(b)(7) analysis considering question of indispensability under 19(b)).

court must first determine whether party is "necessary" under 19(a) before turning to 19(b) analysis


if absent party is not necessary under 19(a), they cannot be indispensable under 19(b), and Rule 12(b)(7) motion must fail


Only if party is necessary under rule 19(a) does court proceed to next step in 12(b)(7) analysis considering question of indispensability under 19(b


Rule 19(b) must be read in conjunction with Rule 19(a) analysis


Context: In addition, a disabled plaintiff ceases to be otherwise qualified for a position when she or he engages in misconduct in violation of a workplace policy of the employer or poses a direct threat to the health or safety of others which cannot be eliminated by a reasonable accommodation.

"[w]here the record demonstrates that an employee poses a significant risk to the health and safety of others which cannot be eliminated by reasonable accommodation, summary judgment in favor of the employer is appropriate"

See 42 U.S.C. § 12113(b) (“an individual shall not pose a direct threat to the health or safety of other individuals in the workplace”); Adams v. Rochester Gen. Hosp., 977 F.Supp. 226, 233-34 (W.D.N.Y.1997) (“[w]here the record demonstrates that an employee poses a significant risk to the health and safety of others which cannot be eliminated by reasonable accommodation, summary judgment in favor of the employer is appropriate”); Altman v. New York City Health and Hosp. Corp., 903 F.Supp. 503 (S.-D.N.Y.1995) (conduct demonstrated to be a manifestation of plaintiffs disability which may implicate public safety concerns should be considered when determining whether plaintiff is otherwise qualified), aff'd, 100 F.3d 1054 (2d Cir. 1996); see also Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir.1998) (affirming summary judgment for employer where plaintiff was terminated for violation of policy on workplace violence); Palmer v. Circuit Court of Cook County, Illinois, 117 F.3d 351, 352 (7th Cir.1997) (affirming summary judgment for employer where plaintiff threatened to kill another employee, -because ADA “does not- require an employer to retain a potentially violent employee”), cert. denied, — U.S.-, 118 S.Ct. 893, 139 L.Ed.2d 879 (1998); Amego, Inc., 110 F.3d at 144 (where essential job functions “necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others”); Crawford v. Runyon, 79 F.3d 743, 744 (8th Cir.1996) (affirming judgment against employee who threatened to hurt or kill his supervisor); Hardy v. Sears, Roebuck and Co., No. 4:95-CV-


affirming summary judgment for employer where plaintiff threatened to kill another employee, -because ADA "does not- require an employer to retain a potentially violent employee"


where essential job functions "necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others"


affirming judgment against employee who threatened to hurt or kill his supervisor


conduct demonstrated to be a manifestation of plaintiffs disability which may implicate public safety concerns should be considered when determining whether plaintiff is otherwise qualified


Context: When a defendant raises an entrapment defense, the government may demonstrate predisposition through evidence that the defendant committed similar crimes in the past.

"It is clear that the government is permitted broad latitude under Rule 404(b

See United States v. Tanner, 61 F.3d 231, 238 (4th Cir.1995) (“[The defendant] demonstrated his predisposition to [distribute a drug] over and over again, through his pattern of illegal sales of various drugs over many years.”); see also United States v. Abulhawa, 833 F.2d 1006 (4th Cir.1987) (unpublished table decision) (“It is clear that the government is permitted broad latitude under Rule 404(b) to introduce evidence of relevant prior acts once a defendant has raised a claim of entrapment thereby putting into issue his predisposition to commit the crimes with which he is charged.”). As the Second Circuit explained, “this past conduct should be ‘near enough in kind to support an inference that his purpose included offenses of the sort charged;’ although it is not necessary that the past conduct be precisely the same as that for which the defendant is being prosecuted.”

"[The defendant] demonstrated his predisposition to [distribute a drug] over and over again, through his pattern of illegal sales of various drugs over many years."


Context: This is especially true in Florida where it is improper for courts to look beyond the face of a conviction to determine whether the conviction is for a crime involving dishonesty. Page, 449 So.2d at 816. Instead, the dishonesty must appear on the face of the conviction, such that an element of the crime reflects dishonesty.

Cf. United States v. Yang, 887 F.Supp. 95, 96 (S.D.N.Y.1995)(holding that a conviction under a New York state statute for failure to file tax returns requires proof of a specific intent to evade taxes, and as such, can be used for impeachment purposes consistently with the Third Circuit holding in Cree); Commonwealth v. Vitale, 445 Pa.Super. 43, 664 A.2d 999, 1003-04 (1995)(holding that a witness may be impeached with evidence of a conviction under 26 U.S.C. § 7201 because that crime requires an attempt to evade or defeat a tax, which implies cheating or defrauding the government, and, as such, involves dishonesty); but see United States v. Lundy, 416 F.Supp.2d 325 (E.D.Pa.2005)(failing to mention Cree and stating that the Third Circuit has upheld the use of convictions for failure to file tax returns for impeachment, but nevertheless prohibiting the introduction of such evidence).


holding that a witness may be impeached with evidence of a conviction under 26 U.S.C. SS 7201 because that crime requires an attempt to evade or defeat a tax, which implies cheating or defrauding the government, and, as such, involves dishonesty


Context: As a threshold matter, Hazelbaker may well have waived the second-lease argument by her apparent failure to raise it to the bankruptcy court, despite having known of it since well before the inception of the proceedings.

See Lane v. Sullivan (In re Lane), 991 F.2d 105, 107 (4th Cir.1993) (noting that failure to raise an issue before bankruptcy court waives it on appeal); see also Ginther v. Ginther Trusts (In re Ginther Trusts), 238 F.3d 686, 689 (5th Cir.2001) (per curiam) (declining to review good faith where plaintiff had not challenged it before the bankruptcy court); Gilchrist v. Westcott (In re Gilchrist), 891 F.2d 559, 561 (5th Cir.1990) (same).


Context: This question, in turn, depends on whether Dole is subject to jurisdiction in California, whether venue is appropriate in the Central District, and whether Dole is amenable to service of process in California. See Jewelmasters, Inc. v. May Dept. The United States Supreme Court has held that it is not enough to satisfy the "might have been brought requirement" that the defendant waives or consents to jurisdiction in the proposed transferee court.

interpreting "might have been brought" to refer only to time when action was brought, not the time of the transfer

See id.; see also Harris v. Garner, 216 F.3d 970., 973 (11th Cir.2000) (interpreting “might have been brought” to refer only to time when action was brought, not the time of the transfer).

holding that, under 28 U.S.C. SS 1404(a), "might have been brought" requirement was not satisfied by defendant's consent to jurisdiction

See Hoffman v. Blaski, 363 U.S. 335, 344, 80 S.Ct. 1084, 1090, 4 L.Ed.2d 1254 (1960) (holding that, under 28 U.S.C. § 1404(a), “might have been brought” requirement was not satisfied by defendant’s consent to jurisdiction). Instead, the plaintiff must have had the right to bring the action in the district where the movant seeks to have the case transferred at the time the complaint was filed.


Context: We agree that a state agency's failure to follow its own ordinances and regulations may constitute a deprivation of property without due process.

county ordinance requiring two weeks notice prior to the termination of non-probationary sheriff's deputies creates a property interest protectable under the fourteenth amendment

See Wilson v. Robinson, 668 F.2d 380, 382-383 (8th Cir.1981) (county ordinance requiring two weeks notice prior to the termination of non-probationary sheriff’s deputies creates a property interest protectable under the fourteenth amendment).

state procedural protections cited as alternative source of the "property interest" held by "non-tenured" teachers in Mississippi

Cf. McDonald v. Mims, 577 F.2d 951, 952 (5th Cir.1978) (state procedural protections cited as alternative source of the “property interest” held by “non-tenured” teachers in Mississippi). In this case, however, we find that the defendants’ alleged minor deviations from the regulations at issue, as a matter of law, do not amount to a constitutional deprivation.


Context: Taking the collective entity doctrine to its logical ends, it is of no Fifth Amendment consequence that the agent may be ordered to produce documents of the collective entity which may contain information that incriminates the agent personally. Likewise, the size of the entity has no effect on the agent's consequence to assert a Fifth Amendment privilege.

Bellis, 417 U.S. at 100, 94 S.Ct. 2179 (“It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be.”); see also Bellis, 417 U.S. at 94-95, 94 S.Ct. 2179 (declining to allow partner in three-person law firm to resist production of firm documents); Amato v. United States, 450 F.3d 46, 53 (1st Cir.2006) (rejecting claim of Fifth Amendment privilege by the sole officer and employee of a corporation).

"It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be."


rejecting claim of Fifth Amendment privilege by the sole officer and employee of a corporation


Context: Moreover, as long as PSIs are not publicly released, press coverage of sentencings will necessarily be incomplete, and the public will learn only part of the reason for a given sentence. This lack of information may lead to public confusion and misunderstandings, as when the public knows the facts of the crime and hears the victim-impact statement, but never learns the mitigating factors reported in the PSI.

See Densmore, 160 Vt. at 137, 624 A.2d at 1142 (public access to sentencing information “contributes to public understanding of the criminal justice system” and gives public “full understanding of the sentence or assurance that justice has been done”); cf. Schlette, 842 F.2d at 1580 (increased disclosure of PSIs, rather than restricting free flow of information, in fact had positive impact on PSIs and brought greater objectivity to sentencing process).

public access to sentencing information "contributes to public understanding of the criminal justice system" and gives public "full understanding of the sentence or assurance that justice has been done"


Context: "Numerous courts, including the United States Court of Appeals for the Eleventh Circuit, have held that a creditor's inability to collect from a bankrupt debt- or cannot extinguish the liability of third parties, such as insurance companies, who may be secondarily obligated for the debts of the bankrupt debtor.

stating that the ' "fresh start policy" [of the Bankruptcy Code] is not intended to provide a method by which an insurer can escape its obligations based simply on the financial misfortunes of the insured'

See In re Jet Florida Systems, Inc., 883 F.2d 970, 975 (11th Cir.1989)(stating that the ‘ “fresh start policy” [of the Bankruptcy Code] is not intended to provide a method by which an insurer can escape its obligations based simply on the financial misfortunes of the insured’).

stating that 'the discharge in bankruptcy, along with the coextensive permanent injunction and fresh start, are exclusive to the debtor and do not otherwise affect the enforcement of any underlying debt, or any nondebtor liability thereon 'Xemphasis in original

See also Jason Pharmaceuticals, Inc., 224 B.R. 315, 321 (Bankr.D.Md.1998) (stating that ‘the discharge in bankruptcy, along with the coextensive permanent injunction and fresh start, are exclusive to the debtor and do not otherwise affect the enforcement of any underlying debt, or any nondebtor liability thereon ’Xemphasis in original); In re Bracy, 449 F.Supp. 70, 71 (D.Mont.1978)(holding that ‘if an insurance company is as a matter of state law liable to a plaintiff in the personal injury action, subsequent discharge of the assured in bankruptcy does not alter the obligation of the insurance company’ and further finding that ‘it is the policy of the law to discharge the bankrupt but not to release from liabilities those who are liable with him’).”


holding that 'if an insurance company is as a matter of state law liable to a plaintiff in the personal injury action, subsequent discharge of the assured in bankruptcy does not alter the obligation of the insurance company' and further finding that 'it is the policy of the law to discharge the bankrupt but not to release from liabilities those who are liable with him'


Context: Second, consider why that error could affect a decision to impose death. . If the error causes harm, it is because a jury has given special weight to its finding of (or the evidence that shows) the invalid "aggravating factor." The jury might do so because the judge or prosecutor led it to believe that state law attaches particular importance to that factor: Indeed, why else would the State call that factor an "aggravator" and/or permit it to render a defendant death eligible?

recognizing that statutory label "arguably might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given"

See Zant v. Stephens, 462 U. S. 862, 888 (1983) (recognizing that statutory label “arguably might have caused the jury to give somewhat greater weight to respondent’s prior criminal record than it otherwise would have given”); see also ante, at 226 (Stevens, J., dissenting) (noting that jury may consider the aggravating label “a legislative imprimatur on a decision to impose death and therefore give greater weight to its improper heinousness finding . . . ”); Clemons v. Mississippi, 494 U. S. 738, 753, 755 (1990) (noting that the prosecutor “repeatedly emphasized and argued the ‘especially heinous’ factor during the sentencing hearing” and remanding for the Mississippi Supreme Court to conduct harmless-error review).

noting that the prosecutor "repeatedly emphasized and argued the 'especially heinous' factor during the sentencing hearing" and remanding for the Mississippi Supreme Court to conduct harmless-error review


Context: Intermediate scrutiny queries whether a statute is substantially related to an important governmental interest.

"To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."

See Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”); see also Lehr v. Robertson, 463 U.S. 248, 265-66, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (“The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.... when there is no substantial relation between the disparity and an important state purpose”) (internal citations omitted); Adkins v. Rumsfeld, 464 F.3d 456, 468 (4th Cir. 2006) (for facially neutral gender-based classifications we demand “at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”); cf. Skoien, 614 F.3d at 642.

"The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.... when there is no substantial relation between the disparity and an important state purpose"


for facially neutral gender-based classifications we demand "at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."


Context: . Although we conclude infra that Marcantel is entitled to qualified immunity because he relied on Tarver's statements, that reliance does not make an otherwise unconstitutional arrest lawful.

See Whiteley v. Warden, 401 U.S. 560, 568-69, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (holding that “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest’’); see also Rogers v. Powell, 120 F.3d 446, 455-56 (3d Cir.1997) (holding that arrest was unsupported by probable cause but granting qualified immunity to defendants who made the arrest in reliance on communications with other officers).

holding that "an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest''


Context: A claim of legal error in a discovery decision generally does not fall within our mandamus authority. The Commonwealth has not, for example, set forth a claim that the District Court acted entirely without jurisdiction.

"Because the issue involves the court's authority to act ex parte at all and not whether discretion was or was not properly exercised, we believe mandamus is the only 'adequate' means of testing the issue."

See In re Sch. Asbestos Litig., 921 F.2d 1310, 1314 (3d Cir.2000) (“Courts traditionally have employed writs to restrain jurisdictional excesses, particularly when a lower court has acted without authority to do so.”); see also In re Pruett, 133 F.3d 275, 280 (4th Cir.1997) (“Because the issue involves the court’s authority to act ex parte at all and not whether discretion was or was not properly exercised, we believe mandamus is the only ‘adequate’ means of testing the issue.”).

"Courts traditionally have employed writs to restrain jurisdictional excesses, particularly when a lower court has acted without authority to do so."


Context: Because the Court is granting the Defendants' Motion for Judgment on the Pleadings as to Count One, declaratory relief, there was no contract of insurance in place at the time of the accident and therefore the remaining Counts Two and Three of Plaintiffs' complaint fail as a matter of law. There can be no breach of a contract where no contract exists. Likewise, where no- contract exists, there can be no claim for bad faith.

"we reiterate the well-settled principle that a contract must exist before there can be a breach of the covenants of good faith and fair dealing implied in every contract"

Id. at 198, 33 P.3d 530 (“we reiterate the well-settled principle that a contract must exist before there can be a breach of the covenants of good faith and fair dealing implied in every contract”); see also Manterola v. Farmers Ins. Exchange, 200 Ariz. 572, 579, 30 P.3d 639 (Ct. App. 2001) (“a bad faith claim based solely on a carrier’s denial of coverage will fail on the merits if a final determination of noncoverage ultimately is made”).

"a bad faith claim based solely on a carrier's denial of coverage will fail on the merits if a final determination of noncoverage ultimately is made"


Context: Our own precedent answers the question in the negative and requires us to affirm Kaigler's convictions. Other district courts of appeal have ruled similarly.

But see Taylor v. State, 740 So.2d 89, 91-92 (Fla. 1st DCA 1999) (reversing convictions for resisting with violence and. battery of a law enforcement officer because the evidence was insufficient to support a finding that the officer was engaged in a lawful duty at the time of the alleged offenses).

holding that an officer's noncompliance with the strip search statute was not a defense to resisting an officer with violence

See, e.g., Perry v. State, 846 So.2d 684, 589 (Fla. 4th DCA 2003) (holding that an officer’s noncompliance with the strip search statute was not a defense to resisting an officer with violence), review granted, 894 So.2d 971 (Fla.2005); Tillman v. State, 807 So.2d 106, 110 (Fla. 5th DCA) (holding that “while the state must prove that the alleged victim was a law enforcement officer who was engaged in the lawful execution or performance of a legal duty, the technical illegality of that action does not justify resisting with violence or battering the officer”), review granted, 835 So.2d 271 (Fla.2002).


holding that "while the state must prove that the alleged victim was a law enforcement officer who was engaged in the lawful execution or performance of a legal duty, the technical illegality of that action does not justify resisting with violence or battering the officer"


Context: While the contract remains in effect, the performing party cannot recover more than the contract price by bringing a quantum meruit action for unjust enrichment. Even if the defendant's gain exceeds the price plaintiff bargained for, the plaintiff is obviously precluded from adjusting the contract price by the mere expedient of recharacterizing his claim.

"[I]t is impermissible ... to seek damages in an action sounding in quasi[-] contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties."

See id. at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (“[I]t is impermissible ... to seek damages in an action sounding in quasi[-] contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties.”); cf. Henry Loheac, P.C. v. Children’s Comer Learning Ctr., 51 A.D.3d 476, 857 N.Y.S.2d 143, 144 (1st Dep’t 2008) (plaintiff could recover under quantum meruit /unjust enrichment theory if it could show that it had performed work outside the scope of the original contract).


Context: . Banco argued to the Panel that it should not make a decision on prejudgment security without giving the parties an opportunity to engage in discovery and present their evidence at a hearing. See Banco's Statement of Position at 5-8. Notably, however, Banco has not argued here that the Panel's decision to deny this request deprived it of "fundamental fairness," a valid basis for vacatur of an arbitration award.

holding that arbitrators denied defendant "fundamental fairness" by issuing an interim order requiring the posting of prejudgment security based on "the parties' Statements of Position, as well as oral argument from counsel" but without "even a threshold review of the underlying dispute or its merits in relation to either party's case" and without permitting "discovery of files central and dispositive to the dispute before it"

See British Ins. Co. of Cayman, 93 F.Supp.2d at 517-19 (holding that arbitrators did not violate "fundamental fairness” by ordering prejudgment security based on the parties' "many long and forceful submissions,” although there was no oral argument and no hearing on the merits of the underlying claims or substantive defenses); Atlas Assurance Co. of Am., 1991 WL 4741, at *2-*3 (holding that arbitration panel did not violate "fundamental fairness” when it issued an interim award directing a defendant to post pre-judgment security after holding an “Organizational Meeting” at which it "received, considered and discussed the parties' statements of issues and heard verbal statements by the parties' representatives”); but see Home Indemnity Co., 1997 WL 773712, at *2-*5 (holding that arbitrators denied defendant “fundamental fairness” by issuing an interim order requiring the posting of prejudgment security based on "the parties’ Statements of Position, as well as oral argument from counsel” but without "even a threshold review of the underlying dispute or its merits in relation to either party’s case” and without permitting "discovery of files central and dispositive to the dispute before it”).

holding that arbitrators did not violate "fundamental fairness" by ordering prejudgment security based on the parties' "many long and forceful submissions," although there was no oral argument and no hearing on the merits of the underlying claims or substantive defenses


holding that arbitration panel did not violate "fundamental fairness" when it issued an interim award directing a defendant to post pre-judgment security after holding an "Organizational Meeting" at which it "received, considered and discussed the parties' statements of issues and heard verbal statements by the parties' representatives"


Context: In other instances, the statements have been made to medical professionals at centers specializing in sexual assault or to physicians otherwise specializing in sexual abuse.

child victim's statements to a social worker whose duties included interviewing chil dren brought to the hospital for physical or sexual abuse were non-testimonial where the parent brought the victim to hospital, law enforcement did not request or participate in the interview, and the social worker's primary purpose was to assess victim's safety and need for medical treatment

See People v. Vigil, 127 P.3d 916, 922-24 (Colo. 2006) (child victim’s statements about sexual assault to physician who performed the sexual assault kit were nontestimonial; although physician was member of child protection team, law enforcement officer was not present during examination and objectively reasonable person in position of declarant would have believed that statements were for medical purpose rather than use at later trial); People v. Garland, 286 Mich. App. 1, 10-11, 777 N.W.2d 732 (2009) (adult victim’s statements to nurse at center for sexual assault survivors were nontestimonial, despite nurse’s collection of evidence, because primary purpose of patient history and examination after sexual assault is for diagnosis and treatment; “although the nurse does collect evidence during the course of the examination after taking a patient’s history and the nurse is required to report the sexual assault and turn over the evidence to law enforcement officials, the nurse is not involved in the police officer’s interview of the victim after the examination and is not personally involved in the officer’s investigation of die crime”); State v. Krasky, 736 N.W.2d 636, 641-42 (Minn. 2007) (videotaped statements of child victim to nurse at Midwest Children’s Resource Center regarding prior sexual abuse were nontestimonial because primary purpose of the statements was to assess and protect child’s health and welfare); State v. Scacchetti, 690 N.W.2d 393, 396 (Minn. App. 2005) (admission of 3-year-old victim’s statements to physician specializing in diagnosing sexual abuse did not violate defendant’s confrontation rights because circumstances did not suggest victim believed statements would be available for use at later trial and physician was not working on behalf of investigating officers or government officials; purpose of exam was diagnosis and treatment); State v. Stahl, 111 Ohio St. 3d 186, 198-99, 855 N.E.2d 834 (2006) (statement identifying rapist by deceased victim to nurse specializing in treatment of sexual assault victims was nontestimonial because although law enforcement officer who transported victim to the hospital was present during the examination, statement was made to nurse in the ordinary course of medical examination and not elicited by law enforcement interrogation; while specialized unit gathers evidence for future prosecution, primary purpose is to render medical treatment; and since victim had already given statement to officer, objective witness would believe statement to nurse was for medical treatment purpose); State v. Castilla, 131 Wash. App. 7, 87 P.3d 1211, at *13 (2004) (unpublished part of opinion only online) (statements made by victim to sexual assault nurse regarding rape were nontestimonial because not elicited by government official and were not given with an eye toward trial); see also Seely v. State, 373 Ark. 141, 154-56, 282 S.W.3d 778 (2008) (child victim’s statements to a social worker whose duties included interviewing chil dren brought to the hospital for physical or sexual abuse were non-testimonial where the parent brought the victim to hospital, law enforcement did not request or participate in the interview, and the social worker’s primary purpose was to assess victim’s safety and need for medical treatment).

videotaped statements of child victim to nurse at Midwest Children's Resource Center regarding prior sexual abuse were nontestimonial because primary purpose of the statements was to assess and protect child's health and welfare


Context: Mere possession of a firearm by one who, like the petitioner, routinely carried a gun (Tr. 209) is not, however, evidence of prior calculation and design.

"That defendant had a gun with him at the Carter residence is not, by itself, evidence of prior calculation and design, given the testimony offered by defendant's girlfriend that he 'sort of frequently carried a weapon."

State v. Johnson, No. 97APA03-315,1998 WL 226441, at *6 (Ohio App. May 5, 1998) (“That defendant had a gun with him at the Carter residence is not, by itself, evidence of prior calculation and design, given the testimony offered by defendant’s girlfriend that he ‘sort of frequently carried a weapon.”); see also State v. Williams, No. 1-85-2, 1986 WL 5907, at *2 (Ohio App. May 19,1986)(“The fact that appellant possessed a gun on the day of the shooting when the witness had never before known the appellant to carry a gun, could have been interpreted by the jury as evidence that appellant had acted purposely with prior calculation and design”).

"The fact that appellant possessed a gun on the day of the shooting when the witness had never before known the appellant to carry a gun, could have been interpreted by the jury as evidence that appellant had acted purposely with prior calculation and design"


Context: The district court properly dismissed Wolinski's action because Wolinski failed to allege facts sufficient to state any plausible claims.

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (elements of a claim under 42 U.S.C. § 1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (prisoners have no liberty interest under the Due Process Clause of the Fourteenth Amendment in a transfer).


Context: See FAR 52.243-4(a)-(d). As a result, contractors are not entitled to compensation for excusable delays not caused by the government.

requiring that the contractor "demonstrate! ] a government-imposed delay, i.e., a compensable delay" to recover damages

See, e.g., Sauer Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed.Cir.2000) (requiring that the contractor “demonstrate! ] a government-imposed delay, i.e., a compensable delay” to recover damages); cf. Luria Bros. & Co., Inc. v. United States, 177 Ct.Cl. 676, 369 F.2d 701, 714 (1966) (recognizing that the contractor may recover costs when loss of productivity results from the government’s actions).

recognizing that the contractor may recover costs when loss of productivity results from the government's actions


Context: Much of the check-cashing evidence -- specifically, Hill's and Anderson's testimony explaining how the check fraud scheme evolved into a plan to rob Acme-- was properly admitted under Rule 404(b). Given the strength of the ease against Foster, we believe the relatively modest quantity of evidence provided by the victim had no meaningful effect on the jury's verdict on the bank robbery and firearm charges.

finding no reversible error where portion of testimony inadmissible under Rule 403 was "cumulative" and "not so prejudicial relative to the extremely strong evidence of [the defendant's] guilt"

See, e.g., United States v. Robinson, 8 F.3d 398, 411 (7th Cir.1993) (explaining that “a non-constitutional error is harmless if ... it did not substantially affect the jury’s decision”); see also Tanner., 628 F.3d at 903 (finding no reversible error where portion of testimony inadmissible under Rule 403 was “cumulative” and “not so prejudicial relative to the extremely strong evidence of [the defendant’s] guilt”).

explaining that "a non-constitutional error is harmless if ... it did not substantially affect the jury's decision"


Context: The Legislature used the word "cause" in the assault-fear provision, but chose the word "infliction" for the assault-harm provision. Dorn argues that "inflict" is a stricter standard than "cause" and requires direct, not just proximate or "substantial factor," causation.

explaining that a defendant may rebut substantial causation by establishing that "intervening conduct [was] the sole cause of the end result"

See State v. Gatson, 801 N.W.2d 134, 146 (Minn. 2011) (explaining that under a homicide statute in which the word “cause” is used, the State need only prove that the defendant’s acts were a “ ‘substantial causal factor’ leading to the death”) (quoting State v. Olson, 435 N.W.2d 530, 534 (Minn. 1989)); see also Olson, 435 N.W.2d at 534 (explaining that a defendant may rebut substantial causation by establishing that “intervening conduct [was] the sole cause of the end result”).

explaining that under a homicide statute in which the word "cause" is used, the State need only prove that the defendant's acts were a " 'substantial causal factor' leading to the death"


Context: Had the Court, as Arce argues, intended to retain the traditional Hewitt analysis for challenges to nondisciplinary segregation, it seems it would have expressly said so. Notably, the Court did expressly limit the breadth of Sandin's holding but made no mention of its purported limitation to inmate challenges against prison disciplinary measures.

"Sandin may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation." (emphasis added

See Sandin, 515 U.S. at 487 n. 11,115 S.Ct. at 2302 n. 11 (confirming that “[p]risoners ... retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause”); see Cody, 895 F.Supp. at 441 (“[I]t seems ... that if the Supreme Court intended to limit the impact of Sandin to disciplinary cases, it could easily have done so, but it did not.”); cf. Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995) (“Sandin may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation.” (emphasis added)).

confirming that "[p]risoners ... retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause"


"[I]t seems ... that if the Supreme Court intended to limit the impact of Sandin to disciplinary cases, it could easily have done so, but it did not."


Context: Instead, the agreement gives plaintiff -- at his discretion -- an affirmative opportunity to purchase defendants' property, at an agreed-upon price, if the loan is not repaid within the required period. In other words, the text of the agreement does not in any way pledge a conveyance of an interest in the land as security for the debt.

contract language requiring the satisfaction of a debt prior to conveyance of the promisor's interest in the property, where nothing in the contract disclosed the promisor's intent to make his estate in the lands security for his debt and obligation, did not create an equitable lien on the property

See Potter v. Schlesser Co., Inc., 335 Or 209, 213, 63 P3d 1172 (2003) (“According to its dictionary definition, a lien’ denotes a ‘charge upon real or personal property for the satisfaction of some debt or duty ordinarily arising by operation of law’ or ‘a right in one to control or to hold and retain or enforce a charge against the property of another until some claim of the former is paid or satisfied[.]’ ” (quoting Webster’s Third New Int’l Dictionary 1306 (unabridged ed 1993) (alteration in Potter))); cf. Western States Finance Co. v. Ruff, 108 Or 442, 215 P 501, on reh’g, 216 P 1020 (1923) (contract language requiring the satisfaction of a debt prior to conveyance of the promisor’s interest in the property, where nothing in the contract disclosed the promisor’s intent to make his estate in the lands security for his debt and obligation, did not create an equitable lien on the property).

"According to its dictionary definition, a lien' denotes a 'charge upon real or personal property for the satisfaction of some debt or duty ordinarily arising by operation of law' or 'a right in one to control or to hold and retain or enforce a charge against the property of another until some claim of the former is paid or satisfied[.]' " (quoting Webster's Third New Int'l Dictionary 1306 (unabridged ed 1993


Context: Our court has yet to analyze the concept of reasonable foreseeability in a FELA action, though we consistently have declined to infer negligence when a plaintiff fails to produce any evidence suggesting that the employer played even the slightest role in bringing about the injury.

McGinn, 102 F.3d at 301 (crew member tripped over his own suitcase in a darkened engine cab); Lisek v. Norfolk & Western Ry. Co., 30 F.3d 823, 832-34 (7th Cir.1994) (worker fell and injured his knee while attempting to align the drawbar on a rail car); Deutsch v. Burlington Northern R.R. Co., 983 F.2d 741, 744 (7th Cir.1992) (railroad brakeman slipped on a ladder after adjusting the handbrake on top of a rail car); see also Reardon, 26 F.3d at 53-54 (under Learned Hand’s formula for negligence, an injury is not “foreseeable” if the costs of precautions prohibitively exceed the expected costs of a likely accident).

under Learned Hand's formula for negligence, an injury is not "foreseeable" if the costs of precautions prohibitively exceed the expected costs of a likely accident


worker fell and injured his knee while attempting to align the drawbar on a rail car


railroad brakeman slipped on a ladder after adjusting the handbrake on top of a rail car


Context: It has also shown that it knows how to distinguish between classes of employers and employees based on an express, statutorily defined relationship, or lack thereof, between the relevant employment and the employer's Minnesota business activities. See City of Brainerd v. Brainerd Invs.

P’ship, 827 N.W.2d 752, 756 (Minn.2013) (inclusion of language in one statute may demonstrate opposite intent in other statutes wherein legislature could have, but did not, include same language); cf. State v. Wenthe, No. A12-0263, 2015 WL 3875366, at *9 (Minn. June 24, 2015) (it is inappropriate to assume that legislature intended scope of statute to be coextensive with other statutes that contain different language).


Context: [The Block-burger test] is not a constitutional test in and of itself. Rather, it is simply a means of evaluating legislative intent."). As long as the state court has concluded that the legislature intended cumulative punishment, this court is bound by that conclusion.

'We accept, as we must, the Ohio Supreme Court's determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved here."

Banner, 886 F.2d at 782 (“Contrary to [the petitioner’s] assertion, then, we may not use the Blockburger test — a rule of statutory construction for federal statutes — to independently evaluate the scope of the Tennessee statute here, the Tennessee Court of Criminal Appeals and Supreme Court having already held that the legislature intended cumulative punishment.”); see also Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (‘We accept, as we must, the Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved here.”); of.

"Contrary to [the petitioner's] assertion, then, we may not use the Blockburger test -- a rule of statutory construction for federal statutes -- to independently evaluate the scope of the Tennessee statute here, the Tennessee Court of Criminal Appeals and Supreme Court having already held that the legislature intended cumulative punishment."


Context: . To the extent that the complaint could be construed as alleging breach-of-warranty and breach-of-contract claims, the Gunns do not assert that the trial court committed any error in entering the summary judgment on those claims; therefore, those claims are considered waived.

"When an appellant fails to argue an issue in its [initial] brief, that issue is waived."

Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its [initial] brief, that issue is waived.”). The Gunns do belatedly assert in their reply brief that the trial court erred in entering a summary judgment on any claim based on the Alabama Extended Manufacturer's Liability Doctrine, but we cannot consider that argument.

''Ordinarily, we do not consider issues raised for the first time in a reply brief."

See McGough v. G & A, Inc., 999 So.2d 898, 905 n. 3 (Ala.Civ.App.2007) (''Ordinarily, we do not consider issues raised for the first time in a reply brief.”).


Context: Furthermore, if damages awards received on account of personal injury were not income, there would be no need for the exclusion laid out in SS 104(a)(2), which exempts from income taxation any damages received on account of personal physical injuries or physical sickness.

holding that money received in compensation for emotional injuries is taxable income pursuant to SS 61(a

See also Murphy v. I.R.S., 493 F.3d 170, 180 (D.C.Cir.2007) (holding that money received in compensation for emotional injuries is taxable income pursuant to § 61(a) because the 1996 amendments to § 104(a)(2) would make little sense if § 61(a) did not include compensation for personal injuries).

rejecting the argument "that personal injury awards are [generally] not treated as income under the Internal Revenue Code" and noting that "in each of these instances [where personal injury awards are excluded from SS 61(a

See Luk-hard v. Reed, 481 U.S. 368, 376, 107 S.Ct. 1807, 95 L.Ed.2d 328 (1987) (rejecting the argument “that personal injury awards are [generally] not treated as income under the Internal Revenue Code” and noting that “in each of these instances [where personal injury awards are excluded from § 61(a) ] there is an express provision that personal injury awards are not to be treated as income — which causes them not only to fail to support the proposition that the term ‘income’ automatically excludes personal injury awards, but to support the opposite proposition that absent express exclusion it embraces them”).


Context: An excessive-force claim shares with an unreasonable-seizure claim the requirement that a Fourth Amendment seizure occurred. But unlike the former count, in which Plaintiff must .show that the seizure was itself unjustified, here she must prove that the force used to carry out that seizure was objectively unreasonable.

In deeiding whether force used to carry out a seizure was excessive, the Court must determine ''whether [the defendant's] actions were objectively reasonable."

See Graham, 490 U.S. at 395, 109 S.Ct. 1865 (“[A]ll claims that law enforcement officers have used excessive force — deadly or nothin the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard ____”); see also Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (In deeiding whether force used to carry out a seizure was excessive, the Court must determine ‘‘whether [the defendant’s] actions were objectively reasonable.”).

"[A]ll claims that law enforcement officers have used excessive force -- deadly or nothin the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard ____"


Context: An investor in a commodities account who establishes that he or she relied solely on the investment advice of a promoter satisfies the "solely from the efforts of others" requirement. In addition, courts have held that schemes similar to appellant's constituted a sale of "investment contracts" and thus securities.

holding schemes in which promoters retain essential managerial control over essential managerial functions of enterprise and where investors' realization of profits is inextricably tied to success of a promotional pyramid scheme constituted security

See Koscot, 497 F.2d at 485 (holding schemes in which promoters retain essential managerial control over essential managerial functions of enterprise and where investors’ realization of profits is inextricably tied to success of a promotional pyramid scheme constituted security); see also Securities & Exchange Comm’n v. Unique Financial Concepts, Inc., 196 F.3d 1195, 1201 (11th Cir.1999) (holding investment program tied to success of appellant’s “Ponzi” scheme was investment contract); Securities & Exchange Comm’n v. Infinity Group Co., 212 F.3d 180, 189 (3rd Cir.2000) (holding defendant sold investment contracts when it substituted new investors’ money for real investment return on old investors’ funds).

holding investment program tied to success of appellant's "Ponzi" scheme was investment contract


holding defendant sold investment contracts when it substituted new investors' money for real investment return on old investors' funds


Context: We further note that there is no civil remedy for perjury.

"[i]t has long been established that there is an absolute privilege for statements made in judicial proceedings"

See DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991) (“[w]hile no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness’ statements”); see also Petyan v. Ellis, 200 Conn. 243, 245, 510 A.2d 1337 (1986) (“[i]t has long been established that there is an absolute privilege for statements made in judicial proceedings”).

"[w]hile no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness' statements"


Context: Our goal when interpreting a contractual provision is to determine the inten tion of the parties. "The intention of the parties is to be gathered from the whole instrument, and if this cannot be discovered, but there exists an ambiguity, then such construction must prevail as is most strong against the covenanter [sic], for he [or she] might have expressed himself [or herself] more clearly."

"Since one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he [or she] is dealing, doubts arising from ambiguity of language are resolved in favor of the latter."

Coney v. Dowsett, 3 Haw. 685, 686 (1876) (internal quotation marks and citations omitted); see Gushiken v. Shell Oil Co., 35 Haw. 402, 416 (1940) (“Since one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he [or she] is dealing, doubts arising from ambiguity of language are resolved in favor of the latter.”) (internal quotation marks and citation omitted); see also Brazelton v. Jackson Drug Co., Inc., 796 P.2d 808, 810 (Wyo.1990) (any doubts concerning meaning of lease are resolved against party drafting it).


Context: Thus, Harline has failed to raise a genuine issue of material fact that Vlahos proximately caused the denial of Harline's bankruptcy discharge. Harline's sole claim in these proceedings is that Vlahos' initial failure to list assets that Harline disclosed to the firm caused Harline's denial of discharge. However, "[d]emonstrating material issues of fact with respect to defendants' negligence is not sufficient to preclude summary judgment if there is no evidence that establishes a direct causal connection between that alleged negligence and the injury."

holding that bankruptcy court ruling that debtor's first attorney did not commit malpractice by failing to inform debtor of deadline precluded same claim in state court against different attorneys

See Lane v. Sullivan, 900 F.2d 1247, 1250-51 & n. 5 (8th Cir.) (holding that earlier judgment that plaintiffs understood a stock transfer precluded malpractice claim against attorney for misrepresenting or failing to represent true nature of transfer), cert. denied, 498 U.S. 847, 111 S.Ct. 134, 112 L.Ed.2d 101 (1990); Falconer v. Meehan, 804 F.2d 72, 75-76 (7th Cir.1986) (bankruptcy court finding that attorney advised client of contents of dissolution agreement precluded relitigation of issue in malpractice action); see also Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 866 P.2d 889, 895-96 (Ct.App.1993) (holding that bankruptcy court ruling that debtor’s first attorney did not commit malpractice by failing to inform debtor of deadline precluded same claim in state court against different attorneys).


bankruptcy court finding that attorney advised client of contents of dissolution agreement precluded relitigation of issue in malpractice action


Context: Our decisions reflect these principles from Farmer and the criminal-law concept of recklessness that Farmer adopted.

"True subjective recklessness requires knowledge both of the general risk, and also that the conduct is inappropriate in light of that risk"

In Parrish ex rel. Lee v. Cleveland, 372 F.3d 294 (4th Cir. 2004), we noted that, under the deliberate indifference standard, the prison official must have both “subjectively recognized a substantial risk of harm” and “subjectively recognized that his actions were ‘inappropriate in light of that risk.’ ” Id. at 303 (emphasis added) (quoting Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997) (“True subjective recklessness requires knowledge both of the general risk, and also that the conduct is inappropriate in light of that risk”)); see also Cox, 828 F.3d at 236 (“[I]n addition to subjectively recognizing that substantial risk, the prison official must also subjectively be aware that ‘his actions were inappropriate in light -of that risk’ ”).

"[I]n addition to subjectively recognizing that substantial risk, the prison official must also subjectively be aware that 'his actions were inappropriate in light -of that risk' "


Context: Significantly, and as explicitly set forth in the statute itself, the personnel policy exception is not applicable in those situations where the governmental defendant owes an independent legal duty to the injured party. Likewise, our Supreme Court has held that "the discretionary function exception [under K.S.A. 75-6104(e)] is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow."

holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State's duty of reasonable care

Barrett v. U.S.D. No. 259, 272 Kan. 250, 263, 32 P.3d 1156 (2001); see Nero v. Kansas State University, 253 Kan. 567, 585, 861 P.2d 768 (1993) (“If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable.”); see also Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984) (holding that discretionary immunity does not apply where plaintiff alleged facts that, if true, constituted a breach of State’s duty of reasonable care).

"If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable."


Context: Probable cause for a warrantless arrest "exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed." "To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable officer, amount to' probable cause."

Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (holding that probable cause existed to arrest for a seatbelt violation under state law), quoted with approval in Joyce v. Commonwealth, 56 Va.App. 646, 658, 696 S.E.2d 237, 243 (2010) (holding that probable cause existed to arrest for trespassing under state law); see Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 1604, 170 L.Ed.2d 559 (2008) (holding that probable cause existed to arrest for driving on a suspended license under state law).


holding that probable cause existed to arrest for trespassing under state law


Context: There is, finally, the question whether counsel is entitled to notice before the follow-up examinations take place, or only thereafter but before trial. I agree with my colleagues that, as in criminal prosecutions, a respondent is not entitled under the Ervin Act to have counsel present during a prehearing psychiatric examination conducted for purposes of developing the Commission report.

In re Holmes, 422 A.2d 969, 972-73 (D.C.1980) (respondent in civil commitment proceeding not entitled to assistance of counsel at psychiatric examination by Commission psychiatrists before hearing); cf. White v. United States, 451 A.2d 848, 854 (D.C.1982) (defendant “has no Sixth Amendment right to the presence of counsel at a pretrial psychiatric examination”).

defendant "has no Sixth Amendment right to the presence of counsel at a pretrial psychiatric examination"


Context: This evidence is of limited value for two reasons. First, Ms. Simpson provides no information that would allow the Court to determine whether the Program Management Division employs African-Americans at rates significantly below their number in the applicant pool or general population.

"For instance, if a female plaintiff claims sex discrimination, evidence that the defendant employs women at rates far below their numbers in the applicant pool and the general population may well help her case."

See Holcomb v. Powell, 433 F.3d at 901 (plaintiff “proffers no statistics or other data describing the demographic composition of ODEO or FDIC as a whole.”); see also Aka v. Wash. Hosp. Ctr., 156 F.3d at 1295 n. 11 (“For instance, if a female plaintiff claims sex discrimination, evidence that the defendant employs women at rates far below their numbers in the applicant pool and the general population may well help her case.”).

plaintiff "proffers no statistics or other data describing the demographic composition of ODEO or FDIC as a whole."


Context: When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the veteran's service or by evidence that a presumption period applied. A service-connection claim generally must be accompanied by evidence that establishes that the claimant currently has the claimed disability.

implicitly rejecting appellant's contention that Babideau and Brammer, both supra, and Caluza, infra, be overruled

See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present disabilityf,] there can be no valid claim”); Babideau v. Derwinski, 2 Vet.App. 141, 144 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1331-32 (1997) (implicitly rejecting appellant’s contention that Babideau and Brammer, both supra, and Caluza, infra, be overruled).

absent "proof of a present disabilityf,] there can be no valid claim"


Context: . This requirement of certitude should not be confused with the government's burden of proof, which, it is well settled, requires that inevitable discovery be established by a preponderance of the evidence.

"If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence ratio nale has so little basis that the evidence should be received." (emphasis added

See Nix, 467 U.S. at 444, 104 S.Ct. 2501 ("If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence ratio nale has so little basis that the evidence should be received.” (emphasis added)); see also United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) ("The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation.”).

"The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation."


Context: We think the judge was warranted in finding that there was probable cause to enter the Tee Pee without a warrant, to arrest Johnson and then to arrest the other five men, including Clinkscales, and later to search Clinkscales at the police station.

Commonwealth v. Andrews, 358 Mass. 721, 723-724 (1971), and cases cited (entry of apartment and warrantless arrest based on probable cause).

Contrast Commonwealth v. Dirring, 354 Mass. 523, 531 (1968) (arrest on sole basis that defendant accompanied suspected bank robber).


Context: Defendants contend that the above claim for damages is inconsistent with proof of actual loss as required in legal malpractice actions.

holding that an essential element of a claim of legal malpractice pursued under either a contract or trespass theory is "proof of actual loss rather than breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm"

See Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56, 57 (1984) (stating that an essential element of a claim of legal malpractice, whether the action is denominated assumpsit or trespass, is proof of actual loss); see also Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027, 1030 (1998) (holding that an essential element of a claim of legal malpractice pursued under either a contract or trespass theory is “proof of actual loss rather than breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm”).


Context: Aplt's Verified Motion for Issuance of a COA at 12 (quotation marks and citation omitted). But this statement alone falls short of establishing, as Mr. Galvan must, a reasonable probability that the ultimate result would have been different.

See Zedner, 547 U.S. at 499, 126 S.Ct. 1976 (where charges are dismissed without prejudice, the government can seek and obtain a new indictment); see also Rushin, 642 F.3d at 1310 n. 12 (collecting cases holding that a defendant could not show prejudice based on counsel’s failure to seek dismissal under the STA where an indictment would have been dismissed without prejudice); Id. at 1312 (Holmes, J., concurring) (“[Movant] must show that the government would have been precluded from refiling the charges, either because the dismissal would have been with prejudice or because the applicable statute-of-limitations period would have elapsed.” (citation omitted)).

collecting cases holding that a defendant could not show prejudice based on counsel's failure to seek dismissal under the STA where an indictment would have been dismissed without prejudice


Context: However, under certain circumstances, restitution of fees by attorneys has been required.

after judgment set aside, plaintiffs entitlement to restitution pursuant to stipulation signed by defendant's attorney meant that attorney must return fees he had retained from that money

See In re Marriage of Mason, 48 Wash.App. 688, 740 P.2d 356 (1987) (because the attorney for the prevailing party was on notice of an appeal, aware of possible reversal, and therefore not a bona fide purchaser, restitution of fees was ordered); see also Brown v. Howard, 86 Cal.App. 532, 261 P. 732 (1927) (after judgment set aside, plaintiffs entitlement to restitution pursuant to stipulation signed by defendant’s attorney meant that attorney must return fees he had retained from that money); Champion International Corp. v. McChesney, 239 Mont. 287, 779 P.2d 527 (1989) (since attorney in workers’ compensation proceeding was aware that claimant could be required to reimburse employer for overpayment and his fees were based solely on benefits received by claimant, the attorney was required to repay the employer); Bruns v. Mattocks, 6 N.J.Super. 174, 70 A.2d 780 (1950) (restitution entered against attorney who was aware that return of taxed costs paid under compulsion would be expeeted in the event of a reversal on appeal); Trans-america.


since attorney in workers' compensation proceeding was aware that claimant could be required to reimburse employer for overpayment and his fees were based solely on benefits received by claimant, the attorney was required to repay the employer


restitution entered against attorney who was aware that return of taxed costs paid under compulsion would be expeeted in the event of a reversal on appeal


Context: The Court is unable to find that Goldberg has purposefully availed himself of the laws and privileges of Virginia. Additionally, this single phone call is insufficient to establish in personam jurisdiction over Goldberg.

"the phone calls, the one business trip, and the catalog publication... do not confer jurisdiction"

See Turnbull, 61 Va. Cir. at 383 (“occasionally doing employment related work in his home in Virginia and two phone calls to Virginia are not sufficient contacts to establish in personam jurisdiction over the Defendants.”); see also Eastern Tech. Enters., Inc. v. Wilson & Hayes, Inc., 46 Va. Cir. 558, 562 (1997) (“the phone calls, the one business trip, and the catalog publication... do not confer jurisdiction”).

"occasionally doing employment related work in his home in Virginia and two phone calls to Virginia are not sufficient contacts to establish in personam jurisdiction over the Defendants."


Context: Tex.R. Civ. P. 274. Therefore, the objection and any complaint based thereon are waived.

See Wilgus v. Bond, 780 S.W.2d 670 (Tex.1987) (complaint waived as to unobjected-to charge question allowing award of elements of damages unrecoverable under the legal theory at trial); Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex.1988) (complaint waived as to unobjected-to charge question allowing award of attorney’s fees for matters for which attorney’s fees are not allowed at law) (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex.1985); Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex.1985)); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.App.-Houston [14th Dist.] 1995, no writ) (failure to object to omissions from the charge is a waiver of the complaint which estops a party from complaining on appeal about the omissions); see also Green Intern., Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997) (complaint on appeal is waived when a damages question on attorney’s fees which fails to segregate the fees among various claims, some of which do not allow for recovery of the fees, is submitted without objection, and the evidence is sufficient to support the award); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Manufacturing, Inc., 42 S.W.3d 149, 156-57 (Tex.App.-Amarillo 2000, no pet.) (Reversal is required when a damages question incorporates a legally-incorrect measure of damages only if there was a Rule 274 objection made) (citing Crown Life Insur.

complaint on appeal is waived when a damages question on attorney's fees which fails to segregate the fees among various claims, some of which do not allow for recovery of the fees, is submitted without objection, and the evidence is sufficient to support the award


Reversal is required when a damages question incorporates a legally-incorrect measure of damages only if there was a Rule 274 objection made


Context: We find there is substantial evidence in the record to support the ALJ's determinations regarding Sarna's ability as of December 31, 1994, to perform past relevant work.

evidence of claimant's later disability can be relevant to elucidate earlier condition

See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir.2001) (holding the ALJ may discredit complaints of claimant where inconsistencies appear in record); see also Pyland, 149 F.3d at 876-77 (evidence of claimant’s later disability can be relevant to elucidate earlier condition); 20 C.F.R. § 404.1508 (1999) (mental impairment must be established by medical evidence, not only by claimant’s statement of symptoms).


Context: Def.'s Mot. at 13. Accordingly, the court turns directly to the dispositive question: whether the plaintiff produced sufficient evidence for a reasonable factfinder to conclude that the defendant's asserted non-retaliatory reason was not the actual reason and that the employer intentionally retaliated against the employee. At a minimum, the plaintiff must offer some evidence of a causal relationship between his involvement in protected activity and his nonselection.

See Cooke v. Rosenker, 601 F.Supp.2d 64, 79 (D.D.C.2009) (holding that the plaintiff failed to raise an issue of fact regarding her retaliation claim because she failed to offer any evidence of a causal relationship between her involvement in protected activity and the adverse employment action); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (observing that the strength of the plaintiffs prima case is relevant to the analysis of the defendant’s proffered non-discriminatory justification).

observing that the strength of the plaintiffs prima case is relevant to the analysis of the defendant's proffered non-discriminatory justification


Context: But the Supreme Court rejected Paccar on the precise point for which Kassa cites it. See K.P.

"The fair--use defense contemplates and tolerates 'some possibility of consumer confusion.'-"

See also Hensley, 579 F.3d at 612 (“The fair--use defense contemplates and tolerates ’some possibility of consumer confusion.’-”) (quoting K.P.

rejecting Paccar and holding that "fair use can - occur along with some degree of [consumer] confusion"

Permanent, 543 U.S. at 116, 123-124, 125 S.Ct. 542 (rejecting Paccar and holding that “fair use can - occur along with some degree of [consumer] confusion”)’.


Context: The Defendants argue the security officers are independent contractors, not employees, and are not subject to this Court's jurisdiction. Therefore, the Defendants will not be able to implead them if this case remains in Florida and Defendants will face certain prejudice if they are forced to litigate this case here.

explaining that courts "look to the various theories of recovery in order to determine whether the joinder of [a] potential third-party is in fact crucial to the defendant's case"

See, e.g., Sun Trust, 184 F.Supp.2d at 1264 (explaining that courts “look to the various theories of recovery in order to determine whether the joinder of [a] potential third-party is in fact crucial to the defendant’s case”); cf. Ward, 2005 WL 2456191, at *3 n. 4 (“Even assuming that there are third parties that need to be joined[,] the defendants have not established that it would be unduly burdensome to pursue a separate indemnification action against any such third parties in the Bahamas.”).

"Even assuming that there are third parties that need to be joined[,] the defendants have not established that it would be unduly burdensome to pursue a separate indemnification action against any such third parties in the Bahamas."


Context: Finally, the defendant contends that it should not be required to turn over confidential settlement agreements reached in other cases involving sexual harassment. FCA argues that the strong congressional policy favoring settlement weighs in favor of keeping such documents protected, so long as the information is available through other means.

See Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 554-55 (ED.Cal.1990) (denying motion to compel production of documents containing information about confidential settlement discussions); Bottaro v. Hatton Assocs., 96 F.R.D. 158,160 (E.D.N.Y.1982) (denying motion to compel production of settlement agreement); see also Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 888 F.Supp. 1427, 1441 (N.D.Ill.1995) (“And while there is simply no legitimate public interest to be served by disclosing settlement agreements, the parties to the agreement are likely to have a compelling interest in keeping the settlement amount confidential.”) (quotations omitted).

"And while there is simply no legitimate public interest to be served by disclosing settlement agreements, the parties to the agreement are likely to have a compelling interest in keeping the settlement amount confidential."


Context: It establishes rules on which management may plan with a large degree of confidence; and while the test undoubtedly leaves areas of uncertainty between relocation decisions that are clearly within the exclusive prerogatives of management and those that are equally clearly subject to negotiation, these will in time be narrowed through future adjudications. We therefore conclude that the standard adopted by the Board was a reasonable policy choice and that its decision to proceed by adjudication, not rulemaking, was also within its discretion.

affirming that an agency may "choose to make new policy through either rulemaking or adjudication"

See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1772, 40 L.Ed.2d 134 (1974) (upholding a decision to proceed by adjudication where the relevant facts “vary widely depending on the company or industry”); see also Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.1992) (affirming that an agency may “choose to make new policy through either rulemaking or adjudication”).

upholding a decision to proceed by adjudication where the relevant facts "vary widely depending on the company or industry"


Context: . We observe that the question whether an address is a party's dwelling place or usual place of abode is extremely fact-sensitive.

"What is or is not a party's dwelling house or usual place of abode within the context of T.R. 4.1 is a question that turns on the particular facts of the case."

See, e.g., Doyle v. Barnett, 658 N.E.2d 107, 109 (Ind.Ct.App.1995) ("What is or is not a party’s dwelling house or usual place of abode within the context of T.R. 4.1 is a question that turns on the particular facts of the case.”); Poteet v. Bethke, 507 N.E.2d 652, 654 (Ind.Ct.App.1987) (concluding that address to which summons and complaint was delivered was not defendant’s dwelling house or usual place of abode where defendant had permanently left address approximately ten months before service, and therefore service was defective); Mills v. Coil, 647 N.E.2d 679, 680-81 (Ind.Ct.App.1995) (concluding that service to defendant’s mother’s home did not comply with Trial Rule 4.1, where defendant had moved out of mother’s home three months earlier with no intention of returning, and stating, "Service upon a defendant’s former residence is insufficient to confer personal jurisdiction.”), trans. denied; but cf. Grecco v. Campbell, 179 Ind.App. 530, 533-34, 386 N.E.2d 960, 962 (1979) (concluding that address to which summons and complaint were delivered was defendant's dwelling house or usual place of abode for purposes of Trial Rule 4.1 where defendant had temporarily gone to stay with relatives at time of service); Doyle v. Barnett, 658 N.E.2d 107, 109 (Ind.Ct.App.1995) (concluding that evidence supported finding that defendant's father's address was defendant’s usual place of abode, where defendant received all his mail at father's address, listed father’s address on accident report, defendant's insurance company maintained defendant’s address as that of his father, and address listed on defendant’s driver's license was that of his father both at time service was attempted and at time defendant sought to set aside default judgment), trans. denied (1996).


concluding that evidence supported finding that defendant's father's address was defendant's usual place of abode, where defendant received all his mail at father's address, listed father's address on accident report, defendant's insurance company maintained defendant's address as that of his father, and address listed on defendant's driver's license was that of his father both at time service was attempted and at time defendant sought to set aside default judgment


concluding that address to which summons and complaint was delivered was not defendant's dwelling house or usual place of abode where defendant had permanently left address approximately ten months before service, and therefore service was defective


concluding that service to defendant's mother's home did not comply with Trial Rule 4.1, where defendant had moved out of mother's home three months earlier with no intention of returning, and stating, "Service upon a defendant's former residence is insufficient to confer personal jurisdiction."


Context: Although that regulation is not dispositive of the issue before us, it offers a significant insight into the Attorney General's view that the relevant documents remain confidential. In our view, the Attorney General's regulatory expression of the importance of confidentiality weighs very heavily, but not conclusively, in the balancing process.

stating that although not determinative under common-law balancing test, "amendment [to the Righh-to-Know Law that restricted public access regarding public records to receipt of only printed copies 'of records] is a factor to be considered"

See Shuttleworth, supra, 258 N.J.Super. at 594, 610 A.2d 903 (stating that Executive Branch “regulation by itself cannot control the common-law disposition,” although “a legitimate need for confidentiality and the policy behind [such a] regulation can be considered as a factor in determining the common-law balance”); see also Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 49, 660 A.2d 1163 (1995) (stating that although not determinative under common-law balancing test, “amendment [to the Righh-to-Know Law that restricted public access regarding public records to receipt of only printed copies 'of records] is a factor to be considered”); cf. South Jersey Publishing, supra, 124 N.J. at 489, 591 A.2d 921 (noting that Right-to-Know Law “did not curtail or affect the common-law right to inspect and examine public records”); Irval, supra, 61 N.J. at 373, 294 A.2d 425 (observing that Right-to-Know Law “was not intended to diminish or in any way curtail the common law right of examination. That right remains unaffected by this legislation.”).

stating that Executive Branch "regulation by itself cannot control the common-law disposition," although "a legitimate need for confidentiality and the policy behind [such a] regulation can be considered as a factor in determining the common-law balance"


noting that Right-to-Know Law "did not curtail or affect the common-law right to inspect and examine public records"


observing that Right-to-Know Law "was not intended to diminish or in any way curtail the common law right of examination. That right remains unaffected by this legislation."


Context: We note, .but place no reliance upon, the Sixth Circuit's reasoning that section 1915(g) does not prevent frequent filer prisoner indigents from proceeding IFP in state court.

The PLRA "does not affect an inmate's ability to-seek relief in state court or through state grievance procedures."

See Wilson, 148 F.3d at 604-05; see also Hampton, 106 F.3d at 1284 (The PLRA "does not affect an inmate’s ability to-seek relief in state court or through state grievance procedures.”).

"Although inmates can also bring SS 1983 claims in state court, plaintiffs have an important interest in access to federal courts for vindication of their federal constitutional rights."

But cf. Lyon v. Krol, 940 F.Supp. 1433, 1437 (S.D.Iowa 1996) (“Although inmates can also bring § 1983 claims in state court, plaintiffs have an important interest in access to federal courts for vindication of their federal constitutional rights.”), appeal dismissed and remanded, 127 F.3d 763 (8th Cir.1997).


Context: . To the extent the Bar argues in the Bar Motion and Bar Reply that "Don't settle for less than you deserve" is not protected under the First Amendment because it does not provide "accurate factual information that can be objectively verifiable [sic]," see Bar Reply at 8; Bar Motion at 14, the Bar abandoned this argument at the Hearing and acknowledged that "Don't settle for less than you deserve" is entitled to the First Amendment protections afforded commercial speech. Regardless, the Court finds that the Bar's prior position to the contrary is without merit.

explaining that "the government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories ... may be regulated if the government satisfies" the three remaining Central Hudson prongs

See Went For It, Inc., 515 U.S. at 623-24, 115 S.Ct. 2371 (explaining that "the government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories ... may be regulated if the government satisfies” the three remaining Central Hudson prongs); Edenfield, 507 U.S. at 767, 113 S.Ct. 1792 (“[E]ven a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.”); see also Alexander v. Cahill, 598 F.3d 79, 89 (2d Cir.2010) cert. denied - U.S. -, 131 S.Ct. 820, 178 L.Ed.2d 576 (2010); Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 96-97 (2d Cir.1998) ("Though the label communicates no information beyond the source of the product, we think that minimal information, conveyed in the context of a proposal of a commercial transaction, suffices to invoke the protections for commercial speech, articulated in Central Hudson.").


"[E]ven a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment."


Context: f34 While NASD Rules do not create a private cause of action, courts have looked to the Rules to define the scope of a common law duty such as negligent supervision.

NYSE and NASD Rules are "excellent tools" to assess reasonableness of broker's conduct

Craighead v. E.F. Hutton & Co., 899 F.2d 485, 493 (6th Cir. 1990) (“We agree with the district court that NYSE [(New York Stock Exchange)] Rule 405 does not imply a private right of action cognizable in federal court.”); As You Sow, 584 F. Supp. 2d at 1048-49 (“violations of NASD rules alone do not give rise to actionable claims,” but NASD Rule 3040 and other NASD Rules “assist Tennessee and other courts in defining the extent of a legal duty at common law”); McGraw v. Wachovia Sec., LLC, 756 F. Supp. 2d 1053, 1075 (N.D. Iowa 2010) (recognizing duty based on NASD Rules); Colbert & Winstead, PC 401(K) Plan v. AIG Fin. Advisors, Inc., No. 3:07-1117, 2008 WL 2704367, at *10, 2008 U.S. Dist. LEXIS 53179, at *27 (M.D. Tenn. July 8, 2008) (court order) (“the NASD may define the scope of a duty of a broker dealer”); cf. Miley v. Oppenheimer & Co., 637 F.2d 318, 333 (5th Cir. 1981) (NYSE and NASD Rules are “excellent tools” to assess reasonableness of broker’s conduct); Piper, Jaffray & Hopwood Inc. v. Ladin, 399 F. Supp. 292, 299 (S.D. Iowa 1975) (concluding NASD and NYSE rules are “admissible as evidence of negligence”); Mihara v. Dean Witter & Co., 619 F.2d 814, 824 (9th Cir. 1980) (NASD and NYSE rules “reflect the standard to which all brokers are held”).

"We agree with the district court that NYSE [(New York Stock Exchange)] Rule 405 does not imply a private right of action cognizable in federal court."


concluding NASD and NYSE rules are "admissible as evidence of negligence"


NASD and NYSE rules "reflect the standard to which all brokers are held"


"violations of NASD rules alone do not give rise to actionable claims," but NASD Rule 3040 and other NASD Rules "assist Tennessee and other courts in defining the extent of a legal duty at common law"


Context: With respect to the HAC instruction, this Court has found that a constitutionally vague HAC instruction may be found harmless where the facts of the murder support finding the aggravator beyond a reasonable doubt.

See Doyle v. Singletary, 655 So.2d 1120, 1121 (Fla.1995) (explaining that error concerning constitutionally vague HAC instruction was sub ject to harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986)); Johnston v. Singletary, 640 So.2d 1102, 1104-05 (Fla.1994) (explaining that the “jury would have found Johnston’s brutal stabbing and strangulation of the eighty-four-year-old victim, who undoubtedly suffered great terror and pain before she died, heinous, atrocious, or cruel, even with the limiting instruction”); but see Hitchcock v. State, 614 So.2d 483, 484 (Fla.1993) (vacating sentence based on unconstitutional HAC instructional error without conducting a harmless error analysis, on facts similar to those in the instant case).

explaining that the "jury would have found Johnston's brutal stabbing and strangulation of the eighty-four-year-old victim, who undoubtedly suffered great terror and pain before she died, heinous, atrocious, or cruel, even with the limiting instruction"