Context: The District Court concluded that, "[t]o the extent that [the plaintiff] alleges that the [t]own is liable for any intentional infliction of emotional distress by [the town employee] . . . such a claim is precluded by [General Statutes] SS 52-557n, which provides, that'a political subdivision of the state shall not be liable for damages to person or property caused by . . . [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . .' [General Statutes] SS 52-557n (a) (2) (A) .... Under Connecticut law, the term 'wilfulness' is synonymous with 'intentional.'

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

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


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


Context: First, the "palpable defect" standard is novel, vague, and inconsistent with the language and purpose of Rule 59. The standard for remittitur is the same in wrongful death and personal injury cases.

suggesting no difference between personal injury and wrongful death cases concerning the trial court's consideration of a motion for new trial based on insufficient damages

See, e.g., Alires v. S. Pac. Co., 100 Ariz. 6, 14, 409 P.2d 714 (1966) (holding that the trial court “did not exceed its judicial discretion in finding that the damages ordered by the jury were excessive” and ordering remittitur in a wrongful death action); cf. Begay v. City of Tucson, 148 Ariz. 505, 507, 715 P.2d 758, 760 (1986) (suggesting no difference between personal injury and wrongful death cases concerning the trial court’s consideration of a motion for new trial based on insufficient damages).

holding that the trial court "did not exceed its judicial discretion in finding that the damages ordered by the jury were excessive" and ordering remittitur in a wrongful death action


Context: ' CIMTs involve conduct that is "inherently base, vile, or depraved" and which is done with a criminal intent.

"To involve moral turpitude, a crime requires two essential elements:, a culpable mental state and reprehensible conduct."

See Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir. 2009) (“In a series of published decisions, the BIA has set forth its general understanding that a ‘crime involving moral turpitude’ involves ‘conduct that shocks the public conscience as being inherently base,' vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.’ ”) (quoting In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (B.I.A.1992)); Partyka, 417 F.3d at 414 (“[T]he hallmark of moral turpitude is a reprehensible act committed with an appreciable level of consciousness or deliberation.”); see also, Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (“To involve moral turpitude, a crime requires two essential elements:, a culpable mental state and reprehensible conduct.”) (quoting In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013)).

"[T]he hallmark of moral turpitude is a reprehensible act committed with an appreciable level of consciousness or deliberation."


Context: Our conclusion that the applicable statute of limitations is the three-year limitations period in section 26-10-25 comports with decisions interpreting and applying South Dakota law.

See Stratmeyer, 567 N.W.2d at 223 (“It is obvious from a plain reading of SDCL 26-10-25 and 26-10-29 that the Legislature intended SDCL 26-10-25 to apply to all acts of intentional childhood sexual abuse conduct.”); see also Pecoraro I, 340 F.3d at 561 n. 1 (stating the applicable statute of limitations for a victim alleging childhood sexual abuse is the three-year limitations period found in section 26-10-25); DeLonga v. Diocese of Sioux Falls, 329 F.Supp.2d 1092, 1104 (D.S.D.2004) (applying section 26-10-25 to victim’s allegation she suffered childhood sexual abuse by a priest). In Pecoraro’s earlier Nebraska case (Pecoraro I), Pecoraro expressly alleged discovery “on or about January, 2001,” and “[b]ecause [Pecoraro] was a minor at the time of these abuses, the applicable statute of limitations of South Dakota, SDCL 26-10-25, allows [Pecoraro] three years from the time of discovery in which to file this suit.”

"It is obvious from a plain reading of SDCL 26-10-25 and 26-10-29 that the Legislature intended SDCL 26-10-25 to apply to all acts of intentional childhood sexual abuse conduct."


applying section 26-10-25 to victim's allegation she suffered childhood sexual abuse by a priest


Context: P 7 While we find no Oklahoma cases on point,other states addressing the issue have recognized that, considering parents' fundamental rights to the care, custody and control of their children, protection of children from harm constitutes the sine qua non compelling state interest in testing grandparental visitation statutes. On the other hand, other states have recognized that protection of a child's best interests constitutes a sufficiently compelling state interest to uphold grandparental visitation statutes.

"[p]rotecting the best interest of the child is unquestionably a proper exercise of the police power"

Sibley v. Sheppard, 54 N.Y.2d 320, 445 N.Y.S.2d 420, 429 N.E.2d 1049 (1981) (“[p]rotecting the best interest of the child is unquestionably a proper exercise of the police power”); Herndon v. Tuhey, 857 S.W.2d 203 (Mo.1993) (statute granting grandparental visitation premised on best interests of child and proscribing visitation if visitation would endanger the child physically, mentally, or emotionally, held constitutional); King v. King, 828 S.W.2d 630 (Ky.1992) (strengthening of familial ties and preservation of family/generational contact held of compelling state interest.)

Contra, Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993) (best interest of child not a compelling state interest, and grandparental visitation under statute without requirement of harm to child held unconstitutional). ■


statute granting grandparental visitation premised on best interests of child and proscribing visitation if visitation would endanger the child physically, mentally, or emotionally, held constitutional


strengthening of familial ties and preservation of family/generational contact held of compelling state interest.


Context: . The correct standard of proof in cases such as this where consent follows an illegal detention, arrest, seizure, search or other police misconduct is clear and convincing evidence.

State v. Fuksman, 468 So.2d 1067, 1072 (Fla. 3d DCA 1985) (special concurrence, Pearson, Daniel S., J.); see DuBoise v. State, 12 F.L.W. 107 (Fla. Feb. 27,1987) (clear and convincing standard is used to prove defendant’s consent wets voluntarily given after an illegal arrest); Alvarez v. State, 515 So.2d 286 (Fla. 4th DCA 1987) (no valid consent is established unless state can show, by clear and convincing evidence, an unequivocal break in the chain of illegality between the prior unlawful detention and the purported consent); cf. State v. Blan, 489 So.2d 865 (Fla. 1st DCA 1986) (absent antecedent police misconduct, consent to search need only be shown by preponderance of the evidence).


Context: Although Wife disclosed some of Husband's emails to Cooke and BJR, who allegedly used the emails to obtain additional information about Husband's affair, the SCA does not punish such conduct. Accordingly, the circuit court did not err by granting summary judgment to Wife, Cooke, and BJR.

See Fischer, 207 F.Supp.2d at 926 (granting summary judgment to defendants who did not access plaintiffs email accounts); Cardinal Health, 582 F.Supp.2d at 977-79 (same); see also Freeman v. DirecTV, Inc., 457 F.3d 1001 (9th Cir.2006) (holding that civil liability under section 2707 does not extend to those who aid, abet, or conspire with a person or entity engaging in a violation of section 2702); Doe v. GTE Corp., 347 F.3d 655 (7th Cir.2003) (holding that an ISP was not liable under sections 2511 and 2520 of the ECPA for aiding and abetting defendants who intercepted and disclosed oral communications).


holding that an ISP was not liable under sections 2511 and 2520 of the ECPA for aiding and abetting defendants who intercepted and disclosed oral communications


Context: The order was entered in Suffolk County Supreme Court upon plaintiffs' application to Justice Robert A. Lifson on May 17, 2000, as part of an order to show cause for a preliminary injunction. The TRO apparently contained no provision specifying its date of expiration, although the rule under New York state law is that a temporary restraining order expires with the hearing on the application for a preliminary injunction, which is to be conducted "at the earliest possible time" after entry of the TRO.

noting that "by its very nature" a TRO expires upon issuance of a preliminary injunction

CPLR § 6313; Stubbart v. Monroe County, 58 A.D.2d 25, 29, 395 N.Y.S.2d 307, 309-10 (4th Dep’t 1977), app. denied, 42 N.Y.2d 808, 398 N.Y.S.2d 1031, 368 N.E.2d 47 (1977) (noting that “by its very nature” a TRO expires upon issuance of a preliminary injunction); see also Honeywell, Inc. v. Technical Building Services, Inc., 103 A.D.2d 433, 435 n., 480 N.Y.S.2d 627, 629 n. (3d Dep’t 1984) (observing that “an undertaking is discretionary where a temporary restraining order is granted ... since such order should only last for a brief period of time”) (citing Siegel, New York Practice § 330 at 403); People v. Asiatic Petroleum Corp., 45 A.D.2d 835, 836, 357 N.Y.S.2d 542, 544 (1st Dep’t 1974) (holding that a TRO is vacated “upon the disposition of the motion for the preliminary injunction”); . Sommerset Group, Inc. v. Town of Lewiston, 115 Misc.2d 398, 400, 454 N.Y.S.2d 220, 222 (N.Y.Supp.1982) (declining to find defendant in contempt for violating terms of a TRO granted two and a half years earlier because such a period “is clearly not within the ‘earliest possible’ time requirement of CPLR § 6313(a)”). A hearing on the application for the preliminary injunction was scheduled before Justice Lifson for May 22, 2000, but that hearing never took place, because on the same day the action was removed to this Court.

observing that "an undertaking is discretionary where a temporary restraining order is granted ... since such order should only last for a brief period of time"


holding that a TRO is vacated "upon the disposition of the motion for the preliminary injunction"


declining to find defendant in contempt for violating terms of a TRO granted two and a half years earlier because such a period "is clearly not within the 'earliest possible' time requirement of CPLR SS 6313(a


Context: Under plain error review, we may vacate special conditions of supervised release only if the record reveals no basis for the conditions. If the record reveals a basis, there is no reasonable probability that but for the error the defendant's sentence would be different and thus the proceeding's fairness was not impacted.

concluding district court's failure to make requisite findings before imposing special condition affected defendant's substantial rights and undermined fairness, integrity, or reputation of proceedings because, but for failure, to address requirements, district court probably wouldn't have imposed special condition

See United States v. Kieffer, 681 F.3d 1143, 1172 (10th Cir.2012) (holding that when a district court fails to provide reasons for imposing special conditions and the defendant fails to object, we review for plain error); see also Bums, 775 F.3d at 1224-25 (concluding district court’s failure to make requisite findings before imposing special condition affected defendant’s substantial rights and undermined fairness, integrity, or reputation of proceedings because, but for failure, to address requirements, district court probably wouldn’t have imposed special condition).


Context: Moreover, a criminal defendant's statutory and constitutional rights to be present are personal to him or her; they generally cannot be waived through counsel, unless the defendant and counsel have previously discussed the matter and agreed upon the waiver.

waiver ineffective when counsel purported to waive defendant's right without discussion

Compare State v. Lopez, 271 Kan. 119, 132, 22 P.3d 1040 (2001) (waiver ineffective when counsel purported to waive defendant’s right without discussion), with State v. Sandstrom, 225 Kan. 717, 722, 595 P.2d 324 (waiver effective when undisputed that defendant, through counsel, waived right to be present at hearings), cert. denied 444 U.S. 942 (1979).

"While an attorney may malee representations to the court which bind the client, defense counsel can only waive the rights of clients as long as those rights are not inherently personal, fundamental rights."

See also State v. Larraco, 32 Kan. App. 2d 996, 1001, 93 P.3d 725 (2004) (“While an attorney may malee representations to the court which bind the client, defense counsel can only waive the rights of clients as long as those rights are not inherently personal, fundamental rights.”).


Context: The fact that the government loses the underlying litigation is not dispositive of the determination that its position had no reasonable basis in law and fact. Rather, that fact remains a factor for the Court's consideration.

finding that government's position was substantially justified even though its "position may not have been correct."

See Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541; Gibbs v. U.S., No. 96-685, 1998 WL 226773 at *2 (D.N.J. Jan. 14, 1998); Bowles v. U.S., 947 F.2d 91, 94 (4th Cir.1991); Phillips v. Comm’r of Internal Revenue, 851 F.2d 1492, 1499 (D.C.Cir.1988); Snyder v. U.S., 25 F.Supp.2d 777, 780 (E.D.Mich.1998) (finding that government’s position was substantially justified even though its “position may not have been correct.”); But see J&J Cab Service, 1998 WL 264736 at *3 (stating that government’s loss at summary judgment stage “does reveal something regarding the merits of the government’s position.”).

stating that government's loss at summary judgment stage "does reveal something regarding the merits of the government's position."


Context: Clavel-Ramirez alleges past harm and fears future extortion and harm by gang members in El Salvador if returned. Substantial evidence supports the IJ's conclusion that Clavel-Ramirez failed to establish a reasonable possibility of future persecution in El Salvador on account of a protected ground.

"A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is 'because of one of the five [protected grounds]."

See Barajas-Romero v. Lynch, 846 F.3d 351, (9th Cir. 2017) (“A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is ‘because of one of the five [protected grounds].”); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (to demonstrate membership in a particular group, “[t]he applicant must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”) (citation and internal quotation marks omitted).

to demonstrate membership in a particular group, "[t]he applicant must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question."


Context: In any event, at a minimum, Detective Kanehl is entitled to qualified immunity.

stating that in the context of a qualified immunity defense, the defending officer need only show "arguable" probable cause

See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000) (stating that in the context of a qualified immunity defense, the defending officer need only show “arguable” probable cause); see also Boyd, 336 F.3d at 76 (stating that “[a]rguable” probable cause exists “if police officers of reasonable competence could disagree as to whether there was probable cause”).

stating that "[a]rguable" probable cause exists "if police officers of reasonable competence could disagree as to whether there was probable cause"


Context: Fed.R.Evid. 807. Although no such express residual exception exists under New York law, New York courts have recently recognized a constitutionally-based exception to the hearsay prohibition for certain evidence offered by defendants in criminal cases.

"[a] defendant's constitutional right to present evidence that is exculpatory ... may require the admission of evidence that would ordinarily be inadmissible"

See People v. Robinson, 89 N.Y.2d 648, 657 N.Y.S.2d 575, 579, 679 N.E.2d 1055 (1997) (allowing defendant, on constitutional principles, to introduce grand jury testimony of unavail able witness, even though such testimony did not fall within recognized hearsay exception); People v. James, 242 A.D.2d 389, 661 N.Y.S.2d 273 (2d Dep’t 1997) (same); People v. Esteves, 152 A.D.2d 406, 549 N.Y.S.2d 30, 35 (2d Dep’t 1989) (recognizing that the United States Constitution may require courts to admit exculpatory hearsay statements that do not fall within any recognized hearsay exception); see also People v. Seeley, 186 Misc.2d 715, 720 N.Y.S.2d 315, 317 (2000) (“[a] defendant’s constitutional right to present evidence that is exculpatory ... may require the admission of evidence that would ordinarily be inadmissible”).


recognizing that the United States Constitution may require courts to admit exculpatory hearsay statements that do not fall within any recognized hearsay exception


Context: Thus, the students have not cited, and we have not found, a single North Carolina case permitting unrelated third party victims of a patient to sue the patient's health care providers for medical malpractice, or even suggesting that such claims are possible. Instead, North Car olina courts have emphasized the policy reasons counseling rejection of such suits; " 'doctors- should owe their duty to their patient and not to anyone else' so as not to compromise this primary duty."

Russell v. Adams, 125 N.C.App. 637, 482 S.E.2d 30, 33 (N.C.Ct.App.1997) (rejecting a third party claim of harm based on the care provided by a medical provider to a patient) (citations omitted); see also Childers v. Frye, 201 N.C. 42, 158 S.E. 744, 746 (N.C.1931) (holding that doctors do not have to accept patients); Nash v. Royster, 189 N.C. 408, 127 S.E. 356, 359 (N.C.1925) (holding that doctors may limit the extent of their responsibility to patients by narrowing the scope of the doctor-patient relationship).


Context: Although plaintiffs IQ test results from both Dr. Taylor and Dr. Cash and the application of section 12.05 were addressed during the administrative hearings, the ALJ never explicitly addressed those issues in his decision. The ALJ's silent disregard of the verbal IQ obtained by Dr. Cash was error.

reversing and remanding for consideration of whether the claimant met section 12.05 where the claimant's IQs "obtained during psychological testing by two clinical psychologists ranged from a high of 76 to a low of 69, thereby satisfying the first prong of section 12.05(C

See Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir.1995) (stating that an examining physician’s opinion can be rejected only for specific and legitimate reasons based on substantial evidence in the record, and “[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician”); cf. Fanning v. Bowen, 827 F.2d 631, 633-634 (9th Cir.1987) (reversing and remanding for consideration of whether the claimant met section 12.05 where the claimant’s IQs “obtained during psychological testing by two clinical psychologists ranged from a high of 76 to a low of 69, thereby satisfying the first prong of section 12.05(C)”) (footnote omitted); Williams v. Sullivan, 970 F.2d 1178, 1184 (3d Cir.1992) (stating that “a valid verbal scale IQ test administered by a qualified professional using the WAIS may be sufficient to establish” mental retardation under the first prong of section 12.05C).

stating that an examining physician's opinion can be rejected only for specific and legitimate reasons based on substantial evidence in the record, and "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician"


stating that "a valid verbal scale IQ test administered by a qualified professional using the WAIS may be sufficient to establish" mental retardation under the first prong of section 12.05C


Context: Summers contends that the district court erred by denying his request for a mitigating role adjustment pursuant to U.S.S.G SS 3B1.2 because the district court misinterpreted and misapplied the sentencing guidelines. We conclude that the district court, not having the benefit of our decision in Rojas-Millan, erroneously limited the scope of its evaluation of Summers' role in the offense, and accordingly vacate the sentence and remand for resentencing.

concluding that the district court must determine whether defendant's role and culpability in larger context of his offense were sufficiently minor or minimal compared to other participants

Rojas-Millan, 234 F.3d at 473-474 (concluding that defendant’s culpability should be evaluated relative to all participants in a criminal scheme); see also United States v. Demers, 13 F.3d 1381, 1386 (9th Cir.1994) (concluding that the district court must determine whether defendant’s role and culpability in larger context of his offense were sufficiently minor or minimal compared to other participants).

concluding that defendant's culpability should be evaluated relative to all participants in a criminal scheme


Context: Moreover, any such "invalidity" was cured by the searching officers' good-faith reliance on the warrant containing the clerical error.

applying good-faith exception where warrant was "defective because of clerical error" of omission of list of items to be seized, finding "nothing to be gained by laying fault for this apparent clerical error at [IRS agent's] feet"

See United States v. Russell, 960 F.2d 421, 423-24 (5th Cir.1992) (applying good-faith exception where warrant was “defective because of clerical error” of omission of list of items to be seized, finding “nothing to be gained by laying fault for this apparent clerical error at [IRS agent’s] feet”); United States v. Curry, 911 F.2d 72, 77-78 (8th Cir.1990) (applying good-faith exception to uphold search conducted pursuant to warrant which lacked address of premises to be searched); Bonner, 808 F.2d at 867 (“Even assuming that the search warrant was invalid due to the omission of the address, the evidence was properly admitted under the good faith exception to the warrant requirement.”); see also United States v. Smith, 63 F.3d 766, 769 (8th Cir.1995) (noting, in ruling that failure of magistrate judge to sign jurat on warrant affidavit did not negate probable cause for warrant, that the exclusionary rule does not apply “to clerical mistakes by judges”). Thus, Mr. Portlock’s argument that the missing date on the fourteenth warrant renders it invalid is not persuasive.

noting, in ruling that failure of magistrate judge to sign jurat on warrant affidavit did not negate probable cause for warrant, that the exclusionary rule does not apply "to clerical mistakes by judges"


applying good-faith exception to uphold search conducted pursuant to warrant which lacked address of premises to be searched


"Even assuming that the search warrant was invalid due to the omission of the address, the evidence was properly admitted under the good faith exception to the warrant requirement."


Context: In sum, because the District Court's referral order does not necessarily bring an end to the federal litigation, it is not a final order for purposes of section 1291.

recognizing that although the foreign action would resolve a central issue in the federal case, because "termination of the [foreign] case [would] not necessarily end the [federal] litigation," the district court's stay order was not final

See Rickman Bros., 953 F.2d at 1443 (noting that, unlike the typical primary jurisdiction case, abstention orders are final because they end the federal courts’ role in the litigation); see also In re Kozeny, 236 F.3d 615, 619 (10th Cir.2000) (recognizing that although the foreign action would resolve a central issue in the federal case, because “termination of the [foreign] case [would] not necessarily end the [federal] litigation,” the district court’s stay order was not final).

noting that, unlike the typical primary jurisdiction case, abstention orders are final because they end the federal courts' role in the litigation


Context: The First, Seventh, and Tenth Circuits also appear to disapprove of the wholesale adoption of the McDonnell Douglas formulation in jury instructions.

"[T]he district court was correct in using the [McDonnell Douglas ] framework in the instructions to the jury" because "[i]t is a straightforward way of explaining how to consider whether there is intentional discrimination"

See Loeb v. Textron, Inc., 600 F.2d 1003, 1016-18 (1st Cir.1979) (explaining that, while the phrase "prima facie case” and other "legal jargon” need not be read to the jury, whether jury instructions should include "the four elements of the McDonnell Douglas-type prima facie case (properly tailored to the circumstances) and that the employer's reason is a pre-text” will depend upon the evidence presented); disapproved of on other grounds by Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill, 126 n. 19, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (“Once the judge finds that the plaintiff has made the minimum necessary demonstration (the 'prima facie case’) and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question-the only question the jury need answer-is whether the plaintiff is a victim of intentional discrimination”); Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990) ("The McDonnell Douglas inferences ... are of little relevance to the juiy.”); but see Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (1st Cir.l987)("[T]he district court was correct in using the [McDonnell Douglas ] framework in the instructions to the jury” because “[i]t is a straightforward way of explaining how to consider whether there is intentional discrimination”); abrogated on other grounds by Iacobucci v. Boulter, 193 F.3d 14, 27 (1st Cir.1999); Lynch v. Belden & Co., Inc., 882 F.2d 262, 269 (7th Cir.1989)("[I]t was proper for the district court to instruct the jury as to the McDonnell Douglas/Burdine formula for evaluating indirect evidence....

explaining that, while the phrase "prima facie case" and other "legal jargon" need not be read to the jury, whether jury instructions should include "the four elements of the McDonnell Douglas-type prima facie case (properly tailored to the circumstances


"Once the judge finds that the plaintiff has made the minimum necessary demonstration (the 'prima facie case'


"The McDonnell Douglas inferences ... are of little relevance to the juiy."


Context: Under Schedler's view, aggrieved parties could sue the state agencies, the DCFS and the DHH, but not the Secretary of State. But the NVRA's centralization of responsibility counsels against such buck passing. Furthermore, similar to providing for a private cause of action, see NVRA SS 11, requiring states to assign enforcement power to a single person increases the likelihood of NVRA compliance.

Missouri and its Secretary of State "may not delegate the responsibility to conduct a general program to a local official and thereby avoid responsibility if such a program is not reasonably conducted."

See Harkless, 545 F.3d at 452 (expressing concern that the state could escape responsibility for NVRA violations if the chief elections officer lacked enforcement power); see also Missouri, 535 F.3d at 850 (Missouri and its Secretary of State “may not delegate the responsibility to conduct a general program to a local official and thereby avoid responsibility if such a program is not reasonably conducted.”).


Context: Rather, we hold the uniform rule is ... that of 'good moral character.'"). Courts have also endorsed using federal, instead of state, standards to interpret federal laws regulating immigration.

See Wilson v. INS, 43 F.3d 211, 214-15 (5th Cir.1995) (acknowledging the general rule that federal law governs the application of congressional enactments in the absence of a directive to the contrary); Ye v. INS, 214 F.3d 1128, 1132-33 (9th Cir.2000) (using a federal common law definition of "burglary” to determine if petitioner had been convicted of a deportable offense); Kahn v. INS, 36 F.3d 1412, 1415 (9th Cir.1994) (interpreting the term “family ties” as a factor to be considered in granting discretionary relief from deportation, and holding “the Board must apply a flexible, uniform standard that reflects the federal policies underlying § 212(c) [of the INA].”); Moon Ho Kim v. INS, 514 F.2d 179, 181 (D.C.Cir.1975) (interpreting "adultery” for the purpose of eligibility for voluntary departure, and holding that "the appropriate approach is the application of a uniform federal standard.”).

using state law to define "adultery" in the absence of a federal definition, and suggesting that "[arguably, Congress intended to defer to the state in which an alien chooses to live for the precise definition ... for it is that particular community which has the greatest interest in its residents' moral character."

But see Brea-Garcia v. INS, 531 F.2d 693, 696-97 (3rd Cir.1976) (using state law to define "adultery” in the absence of a federal definition, and suggesting that “[arguably, Congress intended to defer to the state in which an alien chooses to live for the precise definition ... for it is that particular community which has the greatest interest in its residents’ moral character.”).


using a federal common law definition of "burglary" to determine if petitioner had been convicted of a deportable offense


interpreting the term "family ties" as a factor to be considered in granting discretionary relief from deportation, and holding "the Board must apply a flexible, uniform standard that reflects the federal policies underlying SS 212(c


interpreting "adultery" for the purpose of eligibility for voluntary departure, and holding that "the appropriate approach is the application of a uniform federal standard."


Context: The officer testified that (1) the gun was recovered in a different condition than when it was being pointed at him; and (2) when it was pointed at him, the slide was open less than a quarter of an inch. Thus, the officer's observations would support a conclusion that the gun had been jammed in two different positions. Further, because an opening of the slide an eighth of an inch (or less) falls within the "less than quarter of an inch" opening observed by the officer, we conclude that the court's use of the exhibit did not exceed the scope and purview of the evidence before it.

no prohibition on "a searching examination of physical evidence under conditions disclosed by the evidence in the case"

See State v. Thompson, 164 Mont. 415, 524 P.2d 1115, 1120 (1974)(no prohibition on “a searching examination of physical evidence under conditions disclosed by the evidence in the case”); see also State v. Ashworth, 231 Kan. 623, 647 P.2d 1281, 1287 (1982)(“[a]n experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses”).

"[a]n experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses"


Context: . We find no fault per se with the court's imposition of a deadline for Hemphill to decide whether to accept the plea offer.

indicating that giving the defendant "a relatively short time to decide" whether to accept a plea agreement was not coercive

See United States v. Ellis, 547 F.2d 863, 868 (5th Cir.1977) (affirming district court’s strict adherence to plea bargaining deadline as part of district court’s control and management of its docket); see also United States v. Cannady, 283 F.3d 641, 645 (4th Cir.2002) (indicating that giving the defendant "a relatively short time to decide” whether to accept a plea agreement was not coercive).

affirming district court's strict adherence to plea bargaining deadline as part of district court's control and management of its docket


Context: A parent's broad general policy statements regarding employment matters are not enough to satisfy this prong. To satisfy the control prong, a parent must control the day-to-day employment decisions of the subsidiary."

"although a court must consider each of the factors [in the integrated enterprise test], the critical inquiry requires an examination of which entity made the final decisions regarding employment matters."

Inc., 3 F.3d 1357, 1363 (10th Cir.1993)); Cellini v. Harcourt Brace & Co., 51 F.Supp.2d 1028, 1034 (S.D.Cal.1999) (“although a court must consider each of the factors [in the integrated enterprise test], the critical inquiry requires an examination of which entity made the final decisions regarding employment matters.”); cf. Singh v. 7-Eleven, Inc., 2007 WL 715488 *7 (N.D.Cal.2007) (“California courts have consistently recognized that the principle test for determining employment relationships is the right of control over the manner or means of accomplishing the result desired.”).

"California courts have consistently recognized that the principle test for determining employment relationships is the right of control over the manner or means of accomplishing the result desired."


Context: The undisputed evidence in this case reveals that neither Arbaney, Lakey, nor Couch was similarly situated to Ramon. Ramon was younger and not as close to being eligible for retirement as were Arbaney and Lakey, and there is no evidence that Continental uncovered any wrongdoing by Couch. These differences between Ramon's situation and that of her comparators justified the differential treatment, and Ramon cannot demonstrate that she was "similarly situated" to them. See Wyvill v. United Cos. Life Ins..

Co., 212 F.3d 296, 305 (5th Cir.2000) (affirming summary judgment where “the striking differences between the two men’s situations more than account for the different treatment they received”); see also Nelson v. Gen. Elec. Co., 2 Fed. Appx. 425 (6th Cir.2001) (unpublished) (holding that younger employee not similarly situated to older employee who committed similar infraction and was allowed to remain on job for a few extra months and obtain retirement eligibility); Thomas v. Hilts, No. 224690, 2002 WL 234757, at *4 (MichApp. Feb.15, 2002) (unpublished) (holding that plaintiff who was not of retirement age and comparator who was of retirement age were not similarly situated where comparator was allowed to voluntarily retire while plaintiff was terminated).

affirming summary judgment where "the striking differences between the two men's situations more than account for the different treatment they received"


Context: Here, the police presented a clear show of authority when they approached Lowe. The only issue is whether (and when) Lowe submitted to that authority.

explaining that a seizure is effected when a suspect evinces submission to a "show of authority"

See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (explaining that a seizure is effected when a suspect evinces submission to a “show of authority”). Remaining in place in response to an officer’s show of authority can alone be sufficient for submission.

"But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away."

See Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003) (concluding seizure occurred when individual remained in his vehicle yet refused to comply with an officer’s orders to roll down the window); see also Brend- lin v. California, 551 U.S. 249, 262, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.”); United States v. Johnson, 620 F.3d 685, 691 (6th Cir.2010) (“It would be an unnatural reading of the case law to hold that a defendant who is ordered to stop is not seized until he stops and complies with a subsequent order to raise his hands.” (emphasis in original)).


"It would be an unnatural reading of the case law to hold that a defendant who is ordered to stop is not seized until he stops and complies with a subsequent order to raise his hands." (emphasis in original


concluding seizure occurred when individual remained in his vehicle yet refused to comply with an officer's orders to roll down the window


Context: Hence, consistent with our discussion above, we interpret the document's explicit, and broad, power to create "rules" governing "conditions of eligibility" as carrying with it a similarly broad implied power to interpret those rules. And, the existence of such a delegated power seems to be what Firestone had in mind when it called for "evidence" of a grant of discretionary authority to determine eligibility for benefits.

holding that plan language giving plan administrator power to determine "which Employees are eligible to participate in the Plan" and "pro-vid[ing] all parties dealing with the Plan an interpretation of Plan provisions on request" indicates deferential standard of review of trustee eligibility decisions

Firestone, 489 U.S. at 111, 109 S.Ct. at 954; cf. Curtis v. Noel, 877 F.2d 159, 161 (1st Cir.1989) (holding that plan language giving plan administrator power to determine “which Employees are eligible to participate in the Plan” and “pro-vid[ing] all parties dealing with the Plan an interpretation of Plan provisions on request” indicates deferential standard of review of trustee eligibility decisions); Jett v. Blue Cross & Blue Shield of Alabama, Inc., 890 F.2d 1137, 1138-39 (11th Cir.1989) (same for plan language giving “Claims Administrator” power to make “final and conclusive” determinations “in the administration of the [plan],” so long as such determinations are “reasonable”); but cf. Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust, 901 F.2d 1369, 1371 (7th Cir.1990) (explaining that circuit courts appear split over the degree of plan language specificity required to trigger deferential review of trustee determinations).


same for plan language giving "Claims Administrator" power to make "final and conclusive" determinations "in the administration of the [plan]," so long as such determinations are "reasonable"


Context: We agree that wife's future anticipated interest in the German "social security" benefits was an economic circumstance that could be considered in the equitable division of the marital estate.

because no evidence was presented concerning the present value of wife's anticipated social security retirement benefits, court declined to address whether such benefits may be considered as an economic circumstance

See In re Marriage of Jones, 812 P.2d 1152 (Colo.1991) (although spouse’s expectancy interest in a trust was not property, it should be considered as an economic circumstance under § 14-10-113(l)(c) in determining a just division of marital property); In re Marriage of Simon, 856 P.2d 47 (Colo.App.1993)(receipt of social security disability benefits may be considered as an economic circumstance in the division of property); cf. In re Marriage of James, 950 P.2d 624 (Colo.App.1997)(because no evidence was presented concerning the present value of wife’s anticipated social security retirement benefits, court declined to address whether such benefits may be considered as an economic circumstance); see also In re Marriage of Boyer, 538 N.W.2d 293 (Iowa 1995); In re Marriage of Knipp, 15 Kan. App.2d 494, 809 P.2d 562 (1991); Pongonis v. Pongonis, 606 A.2d 1055 (Me.1992); Elliott v. Elliott, 274 N.W.2d 75 (Minn.1978); Hogan v. Hogan, 796 S.W.2d 400 (Mo.App.1990).

although spouse's expectancy interest in a trust was not property, it should be considered as an economic circumstance under SS 14-10-113(l


receipt of social security disability benefits may be considered as an economic circumstance in the division of property


Context: The Supreme Court has routinely recognized that because disclosure requirements occasion a lesser burden on speech, it is constitutionally permissible to require disclosure for a wider variety of speech than mere electioneering. Citizens United only confirmed the breadth of Congress' power in this regard.

holding that state "express advocacy" definition without an "electioneering communication" limitation was not vague

See Citizens United, 130 S.Ct. at 915 (“Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election”); see also Doe v. Reed, — U.S. -, 130 S.Ct. 2811, 2819-22, 177 L.Ed.2d 493 (2010) (upholding disclosure requirement for petition signatories); Natn’l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir.2011) (holding that state “express advocacy” definition without an “electioneering communication” limitation was not vague).

"Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election"


Context: As a court of appeals, we have "an inherent discretionary power to transfer the proceeding to another circuit in the interest of justice and sound judicial administration."

Eastern Air Lines, Inc. v. CAB, 354 F.2d 507, 510 (D.C.Cir.1965); see also Natural Resources Defense Council, Inc. v. EPA, 465 F.2d 492, 495-96 (1st Cir.1972) (courts of appeals may transfer petitions for review of agency decisions); Pearce v. Director, Office of Workers’ Compensation Programs, 603 F.2d 763, 771 n. 3 (9th Cir.1979) (listing cases in eight circuits holding that courts of appeals have inherent power to transfer cases); cf. Dantes v. Western Found. Corp., 614 F.2d 299, 301, 301 n. 1 (1st Cir.1980) (court does not have power to transfer if it does not have subject matter jurisdiction).


listing cases in eight circuits holding that courts of appeals have inherent power to transfer cases


Context: Additionally, they maintain the award of interest at the rate of one percent per day was grossly disproportionate to the amount of the principal, making it punitive in nature, and violative of the United States Constitution and the public policy of this state. Appellants present these arguments for the very first time on appeal. As a result, they were not ruled upon by the circuit court, and are not preserved for our review.

See Hubbard v. Rowe, 192 S.C. 12, 5 S.E.2d 187 (1939) (stating the questions presented for appellate review must first have been fairly and properly raised in the circuit court and passed upon by that court); see also State v. Powers, 331 S.C. 37, 501 S.E.2d 116 (1998) (finding constitutional arguments are no exception to the rule, and if not raised to the trial court are deemed waived on appeal).


Context: The district court properly granted summary judgment on Taylor's discrimination claims because Taylor failed to raise a genuine dispute of material fact as to whether defendants' legitimate, nondiscriminatory reasons for their adverse employment actions, including the failure to provide a salary increase and a bonus, were pretextual.

noting that use of the term "boy" will "not always be evidence of racial animus"

See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006) (noting that use of the term “boy” will “not always be evidence of racial animus”); Vasquez, 349 F.3d at 640-42 & n. 5 (listing elements of a discrimination claim under Title VII and explaining that circumstantial evidence of pretext must be specific and substantial); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir.1996) (an ambiguous comment that is not tied directly to an alleged adverse employment action is “weak evidence and not enough to create an inference of [race] discrimination”); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir.1990) (“ ‘stray' remarks are insufficient to establish discrimination”); see also Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir.2004) (“Analysis of an employment discrimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case.”).

"Analysis of an employment discrimination claim under SS 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case."


listing elements of a discrimination claim under Title VII and explaining that circumstantial evidence of pretext must be specific and substantial


an ambiguous comment that is not tied directly to an alleged adverse employment action is "weak evidence and not enough to create an inference of [race] discrimination"


Context: The propriety of the warrantless "entry" and arrest is a separate question. (Italics ours.)

Seattle v. Altschuler, 53 Wn. App. 317, 319, 766 P.2d 518 (1989) (hot pursuit or fleeing suspect did not constitute exigent circumstances justifying warrantless entry into home to make an arrest for traffic violation); see also Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); State v. Machado, 54 Wn. App. 771, 775 P.2d 997 (1989) (warrantless entry into apartment to arrest robbery suspect justified by exigent circumstances), review denied, 114 Wn.2d 1009 (1990); see generally Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 506 (1988).


Context: Furthermore, where a third party is not covered by the insurance policy, it cannot argue based on the certificate of insurance that the insurer is estopped from denying coverage.

noting that the only exception to this rule is when the insurer's actions caused the third party to rely to its detriment on coverage

American Ref-Fuel Co., 671 N.Y.S.2d at 96 (noting that “the doctrine of estoppel may not be invoked to create coverage where none exists under the policy”); see First Financial, 2000 WL 1013945 at *6 (noting that the only exception to this rule is when the insurer’s actions caused the third party to rely to its detriment on coverage).

noting that "the doctrine of estoppel may not be invoked to create coverage where none exists under the policy"


Context: Compliance with procedures merely tends to ensure the intrusion is limited to carrying out the government's caretaking function. This does not mean that inventory searches are always unreasonable when standard procedures are not followed, however.

failure of police to complete inventory of arrestee's belongings as policy provided after finding drugs in arrestee's suitcase did not render inventory search unreasonable where police changed plans and decided to transfer arrestee to federal authorities

See United States v. Woolbright, 831 F.2d 1390, 1394 (8th Cir.1987) (failure of police to complete inventory of arrestee’s belongings as policy provided after finding drugs in arrestee’s suitcase did not render inventory search unreasonable where police changed plans and decided to transfer arrestee to federal authorities); United States v. Trullo, 790 F.2d 205, 206 (1st Cir.1986); see also Whren v. United States, 517 U.S. 806, 816, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (although adherence to procedures shows lack of pretext, deviation from procedures does not prove pretext).


Context: Section 530 of the Revenue Act of 1978 (" SS 530") provides for the termination of tax liability if "for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period"; "all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period are filed on a basis consistent with the taxpayer's treatment of such individual as not being an employee"; and the employer had a "reasonable basis for not treating such individual as an employee." Pub.L.

noting, in the Fourth Amendment context, that "[t]he question of whether a belief is reasonable is one we review de novo, since the reasonableness test is objective, not subjective"

Id. at 2885. Whether Peno Trucking can satisfy the “reasonable basis” requirement of § 530 is a question of law that we review de novo. See Spicer Accounting v. United States, 918 F.2d 90, 94 (9th Cir.1990) (applying de novo review to whether the appellant had a “reasonable basis” for not treating the individuals in question as employees); cf. United States v. Talley, 275 F.3d 560, 563 (6th Cir.2001) (noting, in the Fourth Amendment context, that “[t]he question of whether a belief is reasonable is one we review de novo, since the reasonableness test is objective, not subjective”).

applying de novo review to whether the appellant had a "reasonable basis" for not treating the individuals in question as employees


Context: . Minnesota courts have likewise turned to the IAD when interpreting the UMDDA.

We "look for guidance from the UMDDA's counterpart, the Interstate Agreement on Detainers (IAD)"

See Wilson, 632 N.W.2d at 230 (We "look for guidance from the UMDDA’s counterpart, the Interstate Agreement on Detainers (IAD)”); see also State v. Kurz, 685 N.W.2d 447, 450 (Minn.App.2004) (using the IAD for guidance when interpreting an issue under the UMD-DA), review denied (Minn. Oct. 27, 2004).


Context: Although a lender does not violate the implied covenant of good faith and fair dealing merely by exercising express contractual rights, Massachusetts courts have left open the possibility that in certain circumstances lenders may violate the implied covenant by the manner with which they exercise express contractual rights.

"We, therefore, need not consider whether good faith is a necessary element of the setting of the terms of a demand for payment when dealing with a demand note...."

See Miller, 614 N.E.2d at 672 (“We, therefore, need not consider whether good faith is a necessary element of the setting of the terms of a demand for payment when dealing with a demand note....”); cf. Shawmut Bank v. Flynn, 1993 WL 818771, *3 (Mass.Super.) (noting, but not addressing, argument that “Miller only establishes the irrelevancy of Shawmut’s good or bad faith and motivation in its decision to demand payment on the loan, but that Miller does not immunize the plaintiffs conduct in demanding or collecting payment”).

noting, but not addressing, argument that "Miller only establishes the irrelevancy of Shawmut's good or bad faith and motivation in its decision to demand payment on the loan, but that Miller does not immunize the plaintiffs conduct in demanding or collecting payment"


Context: Stopping Rivera at the "baggage screening checkpoint" and preventing him from leaving the airport also constituted a seizure of his person within the meaning of the Fourth Amendment.

"The Fourth Amendment applies to seizures of the person, including brief investigatory stops."

United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981) (“The Fourth Amendment applies to seizures of the person, including brief investigatory stops.”); see Edmond, 531 U.S. at 40 (“It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.”); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (“[A] Fourth Amendment ‘seizure’ occurs when a vehicle is stopped at a checkpoint.”); United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995) (Fourth Amendment seizure occurred while defendant questioned by law enforcement at baggage claim area).

"It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment."


"[A] Fourth Amendment 'seizure' occurs when a vehicle is stopped at a checkpoint."


Fourth Amendment seizure occurred while defendant questioned by law enforcement at baggage claim area


Context: Other Washington decisions have employed a more complete analysis to uphold the same statute on the ground that threats themselves are nonprotected speech.

See State v. Young, 83 Wn.2d 937, 941-42, 523 P.2d 934 (1974) (holding that RCW 9.61.160 does not prohibit advocating use of force but, rather, prohibits threats); State v. Brown, 50 Wn. App. 405, 411, 748 P.2d 276 (1988) (holding that bomb threat statute is not overbroad because it can be narrowly interpreted to prohibit only nonprotected threats); see also Knowles, 91 Wn. App. at 373-74 (analyzing overbreadth of RCW 9A.72.160 (intimidating a judge) by considering whether speech was nonprotected “true threat”).

analyzing overbreadth of RCW 9A.72.160 (intimidating a judge) by considering whether speech was nonprotected "true threat"


holding that bomb threat statute is not overbroad because it can be narrowly interpreted to prohibit only nonprotected threats


Context: Despite the foregoing, however, DeShaney also included language indicating that its holding did not necessarily apply to all circumstances. The Court acknowledged that if the state takes a person into custody and holds that person involuntarily, the Constitution imposes a duty to assume responsibility for the person's care and well-being.

Id. at 199-200, 109 S.Ct. at 1005-1006 (citing Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458-2459, 73 L.Ed.2d 28 (1982) (“When a person is institutionalized — and wholly dependent on the State[,] ... a duty to provide certain services and care does exist.”)); see also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that government has obligation to provide for health needs of incarcerated prisoners).

"When a person is institutionalized -- and wholly dependent on the State[,] ... a duty to provide certain services and care does exist."


Context: (iv)Finally, in upholding the presidential-candidate financing system, Buckley instructed that courts should avoid reasoning based on speculation and should, instead, require tangible evidence of the "practical effects" of the public financing system.

upholding the system in part because "[a]ny risk of harm to minority interests is speculative due to [a general] lack of knowledge of the practical effects of public financing"

See id. at 101, 96 S.Ct. 612 (upholding the system in part because “[a]ny risk of harm to minority interests is speculative due to [a general] lack of knowledge of the practical effects of public financing”); see also id. at 97 n. 131, 96 S.Ct. 612 (declining to “rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties” (emphasis added)).

declining to "rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties" (emphasis added


Context: Even if the jury's punitive damages award could not withstand due process review, if only "proportionality" and "reprehensibility" were considered, the jury's award does withstand due process scrutiny when "deterrence" is considered. The jury's punitive damages award is appropriate to deter a company of the size and with the financial resources of ASARCO from similar conduct in the future, particularly in a case in which there is evidence that ASARCO is a serial violator of antidiscrimination laws.

considering, in a constitutional excessiveness analysis, whether a small award would be "sufficient to deter other [defendants] from engaging in similar conduct in the future"

See Mendez, 540 F.3d at 1122 (considering, in a constitutional excessiveness analysis, whether a small award would be “sufficient to deter other [defendants] from engaging in similar conduct in the future”); see also Bains, 405 F.3d at 775 (post-BMW case considering, in an excessiveness analysis, whether a jury could properly have concluded that the defendant failed to remedy or address the effects of discrimination, so that punitive damages were necessary to prevent such discrimination from occurring in the future).


Context: Since the jury chosen was not sworn, jeopardy had not yet attached.

See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (concluding that, for purposes of the Fifth Amendment, jeopardy attaches when the jury is sworn); see also Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App.1992) (concluding that for purposes of the federal constitution and the state constitution, jeopardy attaches at the time the jury is sworn). Because jeopardy had not attached at the time the trial judge dismissed the jury, appellant is left to claim harm through a denial of due process for purposes of his federal constitution claim and denial of due course of law for purposes of his state constitutional claim.


Context: Seitz's] rights." The Supreme Court has held that qualified immunity attaches not only when the police officer acted reasonably and thus did not violate an established constitutional right, but also when he reasonably believed that his conduct did not violate that right.

Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1967) (“The relevant question ... is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the officer’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.”); see also Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (holding that a military police officer was entitled to qualified immunity from an excessive force suit when he objectively reasonably believed that he used reasonable force).

"The relevant question ... is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the officer's warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed."


Context: Such a rule is not inconsistent with our prior decisions, which have never expressly addressed the question, but point in the same general direction.

See Toussaint v. McCarthy, 801 F.2d 1080, 1102-03 (9th Cir.1986) (habeas not exclusive remedy where prisoners seek only to be moved from one location to another within a prison), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 682 (9th Cir.1984) (federal court may not rule on prisoner’s section 1983 claim where “[although he does not specifically request release, the finding of such declaratory relief in his favor would show that release was required”); Clutchette v. Procunier, 497 F.2d 809, 812-14 (9th Cir.1974) (prisoner may bring section 1983 action to challenge disciplinary procedures having only “speculative and incidental effect” on length of sentence without first exhausting state remedies), modified, 510 F.2d 613 (9th Cir.1975), rev’d on different grounds sub nom. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).

See also Bergen v. Spaulding, 881 F.2d 719, 720, 722 (9th Cir.1989) (permitting section 1983 suit for deprivation of good-time credits to proceed where plaintiff no longer serving prison sentence).


federal court may not rule on prisoner's section 1983 claim where "[although he does not specifically request release, the finding of such declaratory relief in his favor would show that release was required"


prisoner may bring section 1983 action to challenge disciplinary procedures having only "speculative and incidental effect" on length of sentence without first exhausting state remedies


Context: Although Ruth is not named as a party in the suit, contestants point to Ruth's presence and gifts of a bible and wheelchair to Estha from Ruth and Cook shortly before the execution of the will and codicil as evidence of some influence. As to Schreiner, contestants allege that the visits from the college development officer beginning in 1994 constituted an undue influence over Estha who was 98 years old at the tune, lonely, isolated, and plagued with physical infirmities.

See Green, 840 S.W.2d at 122 (recognizing that factors such as physical and mental condition of the maker of the instrument at the time of its execution, including age, any weakness or infirmity are probative evidence of undue influence); but see Garza, 390 S.W.2d at 47 (acknowledging that in the absence of facts showing a weak mind, no evidence existed that the seventy-seven year old testator succumbed to undue influence).


Context: The plain language of section 669.4 limits waiver of Iowa's sovereign immunity to lawsuits brought in Iowa state courts. It is important to note that the Supreme Court recognized in Feeney that a state can create a limited waiver of this immunity by consenting to be sued in its own state courts without waiving its Eleventh Amendment immunity from suit in federal courts.

"States have real and vital interests in preferring their own forum [over a federal forum] in suits brought against them, interests that ought not to be disregarded based upon a waiver [of immunity in the state forum]"

Feeney, 495 U.S. at 306, 110 S.Ct. 1868 (“A State does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts,” quoting Florida Dep’t of Health and Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981)); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 473-74, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (noting that state does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immu nity in state court); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 9, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (noting that Court has consistently held that state’s waiver of sovereign immunity in state courts is not waiver of Eleventh Amendment immunity in federal courts); In re Secretary of Dep’t of Crime Control and Public Safety, 7 F.3d 1140, 1147 (4th Cir.1993) (quoting Feeney, 495 U.S. at 305-06, 110 S.Ct. 1868), cert. denied sub nom. Barfield v. Secretary, North Carolina Dep’t of Crime Control, 511 U.S. 1109, 114 S.Ct. 2106, 128 L.Ed.2d 667 (1994); Harrison v. Hickel, 6 F.3d 1347, 1354 (9th Cir.1993) (quoting Feeney, 495 U.S. at 305-06, 110 S.Ct. 1868); Kroll v. Board of Trustees of Univ. of Ill., 934 F.2d 904, 910 (7th Cir.) (same), cert. denied, 502 U.S. 941, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991); Riggle v. California, 577 F.2d 579, 585 (9th Cir.1978) (“A state may waive immunity from suit in its own courts without thereby waiving its Eleventh Amendment immunity from suit in federal courts.”); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2036, 138 L.Ed.2d 438 (1997) (“States have real and vital interests in preferring their own forum [over a federal forum] in suits brought against them, interests that ought not to be disregarded based upon a waiver [of immunity in the state forum]”).


noting that Court has consistently held that state's waiver of sovereign immunity in state courts is not waiver of Eleventh Amendment immunity in federal courts


"A state may waive immunity from suit in its own courts without thereby waiving its Eleventh Amendment immunity from suit in federal courts."


Feeney, 495 U.S. at 306, 110 S.Ct. 1868 (“A State does not waive its Eleventh Amendment immunity by consenting to suit only in its own courts,” quoting Florida Dep’t of Health and Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981)); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 473-74, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (noting that state does not waive Eleventh Amendment immunity in federal courts merely by waiving sovereign immunity in state court); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 9, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (noting that Court has consistently held that state’s waiver of sovereign immunity in state courts is not waiver of Eleventh Amendment immunity in federal courts); In re Secretary of Dep’t of Crime Control and Public Safety, 7 F.3d 1140, 1147 (4th Cir.1993) (quoting Feeney, 495 U.S. at 305-06, 110 S.Ct. 1868), cert. denied sub nom. Barfield v. Secretary, North Carolina Dep’t of Crime Control, 511 U.S. 1109, 114 S.Ct. 2106, 128 L.Ed.2d 667 (1994); Harrison v. Hickel, 6 F.3d 1347, 1354 (9th Cir.1993) (quoting Feeney, 495 U.S. at 305-06, 110 S.Ct. 1868); Kroll v. Board of Trustees of Univ. of Ill., 934 F.2d 904, 910 (7th Cir.) (same), cert. denied, 502 U.S. 941, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991); Riggle v. California, 577 F.2d 579, 585 (9th Cir.1978) (“A state may waive immunity from suit in its own courts without thereby waiving its Eleventh Amend ment immunity from suit in federal courts.”); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2036, 138 L.Ed.2d 438 (1997) (“States have real and vital interests in preferring their own forum [over a federal forum] in suits brought against them, interests that ought not to be disregarded based upon a waiver [of immunity in the state forum]”).


"A state may waive immunity from suit in its own courts without thereby waiving its Eleventh Amend ment immunity from suit in federal courts."


Context: The amount disbursed therefore might not reach the stated maximum. When the school issues the loan, it is unknown whether the student will use all, some, or none of the available credit.

holding that a construction contract was not an open-end credit plan because it "had a specific price set out in its original form, which was only amended once"

See Peterson, 584 N.W.2d at 663 (finding no fixed debt when attorney did not agree to provide representation for a specific fee and instead charged an hourly rate); cf. Brozek, 535 N.W.2d at 398 (holding that a construction contract was not an open-end credit plan because it “had a specific price set out in its original form, which was only amended once”).


Context: We hereby affirm the trial court's denial of Kenneth Louis Dessaure's successive motion for postconviction relief.

determining that defendant who validly waived penalty phase jury was not entitled to relief under Hurst because a defendant "cannot subvert the right to jury factfind-ing by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence"

See Mullens v. State, 197 So.3d 16, 40 (Fla. 2016) (determining that defendant who validly waived penalty phase jury was not entitled to relief under Hurst because a defendant “cannot subvert the right to jury factfind-ing by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence”), cert. denied, - U.S. -, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017); see also Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016) (relying on Mullens to conclude that a claim for Hurst relief after defendant waived penalty phase jury was equally precluded in the postconviction context).


Context: In light of the fact that Manager is the prospective purchaser of MCLP's general partnership interest, the Court finds that Manager is not disinterested and holds an interest adverse to the estate.

affirming denial of compensation for counsel's conflicts of interest which included representation of both debtor and purchaser of property of debtor's estate in the same transaction

See In re CF Holding Corp., 164 B.R. 799 (Bankr.D.Conn.1994) (special financial advisor and bankruptcy consultant was no longer disinterested and held an interest adverse to estate when managing partner of financial advisor subscribed to stock in entity which was seeking to purchase majority interest in debtor); see also Rome v. Braunstein, 19 F.3d 54, 61-62 (1st Cir.1994) (affirming denial of compensation for counsel’s conflicts of interest which included representation of both debtor and purchaser of property of debtor’s estate in the same transaction); In re Watson Seafood & Poultry Co., 40 B.R. 436, 442 (Bankr.E.D.N.C.1984) (attorney’s representation of debtor and purchaser of property of the estate represented conflict of interest); c.f.


attorney's representation of debtor and purchaser of property of the estate represented conflict of interest


Context: Federal courts have heretofore operated by assuming the applicability of a habeas remedy in a case such as this without detaned analysis of the specific foundation for that remedy. The Sixth Circuit has issued a number of unpublished opinions citing Preiser as authority for the proposition that SS 2254 provides the remedy for a prisoner claiming that a violation of due process in a prison disciplinary proceeding has deprived him of sentence or good-time credits.

following Preiser and holding that petitioner fafied to exhaust state remedies before filing petition under SS 2254

Cf. Branham v. Koehler, No. 89-1709, 1989 WL 136116 (6th Cir. Nov.13, 1989) (following Preiser and holding that petitioner fafied to exhaust state remedies before filing petition under § 2254). These cases, whde not binding because unpublished, nevertheless indicate that the Sixth Circuit considers this matter resolved in light of Preiser,

applying Preiser and holding Tennessee prisoner's challenge to early release date extension must be .made under SS 2254

Carney v. Sundquist, No. 96-5320, 1997 WL 135619 (6th Cir. Mar.24, 1997) (perfunctorily applying Heck and Preiser to sentence credit claim); Barnes v. Lewis, No. 93-5698, 1993 WL 515483 (6th Cir. Dec. 10, 1993) (following Preiser); Pettigrew v. Bass, No. 92-5373, 1992 WL 245916 (6th Cir. Sept.29, 1992) (applying Preiser and holding Tennessee prisoner’s challenge to early release date extension must be .made under § 2254); Privett v. Pellegrin, No. 85-5049, 1986 WL 16899 (6th Cir. Apr. 17, 1986) (interpreting Preiser as holding that habeas petition seeking restoration of sentence-credits is governed by § 2254 exhaustion requirement).


interpreting Preiser as holding that habeas petition seeking restoration of sentence-credits is governed by SS 2254 exhaustion requirement


Context: Thus, Katzenmoyer attempts to avoid the policy's exclusion of coverage for bodily injury arising out of accidents occurring "away from the insured premises." This strategy for avoiding the impact of the policy's exclusion of coverage for accidents occurring away from the residence premises has been rejected by other courts.

holding that "the all-terrain vehicle being operated by Michael Pirrung was on an 'insured location' at the time of his fatal accident"

See Federal Kemper Ins. Co. v. Derr, 386 Pa.Super. 382, 391-92, 563 A.2d 118, 123 (Pa.Super. 1989); Uguccioni v. United States Fidelity and Guaranty Co., 408 Pa.Super. 511, 514, 597 A.2d 149, 150 (Pa.Super.1991) (holding that "the all-terrain vehicle being operated by Michael Pirrung was on an ‘insured location’ at the time of his fatal accident”); see also Farm Family Mutual Ins. Co. v. Whelpley, 54 Mass. App.Ct. 743, 746, 767 N.E.2d 1101, 1104 (2002); DeWitt v. Nationwide Mutual Fire Ins. Co., 109 Ohio App.3d 716, 720, 672 N.E.2d 1104, 1107 (1996) ("stating that [cjourts have held that the location of the accident rather than the location of the negligence that caused the accident is dispositive on the applicability of the exclusion clause”); Allstate Ins. Co. v. Shofner, 573 So.2d 47, 50 (Fla.Dist. Ct.App.1990).

"stating that [cjourts have held that the location of the accident rather than the location of the negligence that caused the accident is dispositive on the applicability of the exclusion clause"


Context: Detective Caffey's testimony regarding the Blood street gang--in particular, his opinion that the Appellants' conduct was consistent with that of Blood gang members--was highly probative of the conspiracy charge in Count One of the indictment. The essence of the conspiracy charge was that the Appellants were all members of the same street gang, and, as such, evidence of the Appellants' membership in or affiliation with the Blood gang tended to make the prosecution's theory of the case more likely.

stating that gang-affiliation testimony is admissible in cases where conspiracy is charged "to prove the existence of a conspiracy and to show the basis of the relationship between the defendants] and witnesses who participated" in the wrongful activity

See United States v. Ross, 33 F.3d 1507, 1525 & n. 31 (11th Cir.1994) (uncharged acts of gang violence admissible as intertwined with, and probative of, conspiracy charge); United States v. Harrell, 737 F.2d 971, 978 (11th Cir. 1984) (gang evidence important in understanding existence, motives, and object of drug-trafficking conspiracy and means through which it was conducted); see also United States v. Archuleta, 737 F.3d 1287, 1294 (10th Cir.2013) (stating that gang-affiliation testimony is admissible in cases where conspiracy is charged “to prove the existence of a conspiracy and to show the basis of the relationship between the defendants] and witnesses who participated” in the wrongful activity).


gang evidence important in understanding existence, motives, and object of drug-trafficking conspiracy and means through which it was conducted


Context: Even assuming, without deciding, that Mr. Sommer is qualified to testify as an expert on piloting and accident reconstruction, including engine failure analysis, the Court must still find that the process he used in forming his expert opinion is suffi ciently reliable under Daubert and its progeny.

holding that "[rjulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology"

See Quiet Tech. DC-8, Inc., 326 F.3d at 1342 (stating that “one may be considered an expert but still offer unreliable testimony”); cf. McCorvey, 298 F.3d at 1257 (holding that “[rjulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert’s methodology”).

stating that "one may be considered an expert but still offer unreliable testimony"


Context: P 7 Law enforcement officers have wide latitude to approach people and engage them in consensual conversation.

See I.N.S. v. Delgado, 466 U.S. 210, 216, 218, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (holding law enforcement request for identification not tantamount to seizure; finding no constitutional violation when law enforcement conduct “consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present”); see also Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County., 542 U.S. 177, 188-89, 124 S.Ct. 2451,159 L.Ed.2d 292 (2004) (upholding state law requiring disclosure of identity to officers); Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (explaining no seizure occurs when police ask to examine identification).

See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (holding officers do not violate Fourth Amendment by approaching citizen in public place and asking permission to question). They are also free to request identification.


Context: Here, before the revelation of Dookhan's misconduct, the petitioners and the Commonwealth entered into plea agreements that both parties considered to be mutually advantageous and fair. The petitioners agreed to waive various constitutional rights associated with proceeding to trial, and to relieve the Commonwealth of its burden of proving the petitioners' guilt beyond a reasonable doubt.

"In a criminal case, due process requires that the Commonwealth prove the defendant's guilt beyond a reasonable doubt"

See also Commonwealth v. Russell, 470 Mass. 464, 468 (2015) (“In a criminal case, due process requires that the Commonwealth prove the defendant’s guilt beyond a reasonable doubt”).

guilty plea constitutes waiver of three constitutional rights: right to jury trial, right to confront one's accusers, and privilege against self-incrimination

See Commonwealth v. Lopez, 447 Mass. 625, 628 (2006) (guilty plea constitutes waiver of three constitutional rights: right to jury trial, right to confront one’s accusers, and privilege against self-incrimination).


Context: M.B.M. The magistrate properly granted summary judgment on this claim.

summary judgment was inappropriate where employer withheld discharged employee's paycheck even after employee successfully passed lie detector test

See Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380, 382-83 (1988) (employer’s conduct allegedly designed to force suspected “whistle blower” to resign was insufficient to support jury verdict for outrage); cf. Counce, 268 Ark. at 281, 596 S.W.2d at 688 (summary judgment was inappropriate where employer withheld discharged employee’s paycheck even after employee successfully passed lie detector test).

employer's conduct allegedly designed to force suspected "whistle blower" to resign was insufficient to support jury verdict for outrage


Context: To state a due process claim, a plaintiff must allege a deprivation of a property or liberty interest protected by the Fifth Amendment. In the immigration context, we have repeatedly concluded that where an alien seeks discretionary relief, there is no such constitutionally protected liberty or property interest.

rejecting due process claim involving Secretary of State's revocation of consular non-immigrant visa because revocation does not result in immediate deportation and deportation proceedings have "significant procedural safeguards"

See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir.2008) (involving denial of motion to reopen removal proceedings so alien could apply for adjustment of status); Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1223-24 (11th Cir.2003) (involving waiver of ex-cludability); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir.2006) (involving denial of continuance of removal proceedings); Tefel v. Reno, 180 F.3d 1286, 1299-1302 (11th Cir.1999) (involving denial of applications for suspension of deportation); see also Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 211-12 (5th Cir. Unit B 1981) (rejecting due process claim involving Secretary of State’s revocation of consular non-immigrant visa because revocation does not result in immediate deportation and deportation proceedings have “significant procedural safeguards”).


Context: Bryan also complains that Lent removed Bryan's flight jacket from his work space. Such an action is trivial and cannot support a hostile work environment claim.

noting that Title VII does not protect against the "ordinary tribulations of the workplace"

See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting that Title VII does not protect against the “ordinary tribulations of the workplace”); see also Burlington Northern, 126 S.Ct. at 2407 (“An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”).

"An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience."


Context: While it is this Court's view that the statute is not ambiguous, the Court can understand why some question as to the meaning of the 5 V.I.C. SS 3734 exists.

See Keenan v. Price, 68 Idaho 423, 439, 195 P.2d 662 (1948) (noting that a title may be resorted to as an aid to construction); 2A Sutherland Statutory Construction § 47:3 (7th ed.) (“Titles have a communicative function.

"It is a fundamental principle of statutory construction that the court must give effect, if possible, to every provision of a statute so that no part will be left inoperative, superfluous, void, or insignificant"

Specifically, reading 5 V.I.C. § 3734 as a purely procedural requirement that does not authorize the expungement of misdemeanor convictions, has the following implications on the statute as a whole: (1) 5 V.I.C. § 3734 is partially duplicative of the section immediately following it, 5 V.I.C. § 3735; (2) the language in 5 V.I.C. § 3734 “under this section,” (emphasis added) is meaningless because 5 V.I.C. § 3734, absent the title, would provide no' circumstances under which a person could seek expungement under that particular section, see Abramson 765 F. Supp. at 261 (“It is a fundamental principle of statutory construction that the court must give effect, if possible, to every provision of a statute so that no part will be left inoperative, superfluous, void, or insignificant”); (3) 5 V.I.C. § 3739 states that the “Superior Court may order the disclosure of the expunged conviction records .... ” (emphasis added), which is contradictory because the statute does not authorize expungement of convictions; and (4) ■ although titles of a statute are not considered law under 1 V.I.C. § 45, they may be an indication of legislative intent when a statute is otherwise ambiguous.


Context: First, Berry's undisputed awareness of the allegedly dangerous condition is fatal to the proximate-cause element of his failure-to-warn claim. The facts show that Berry had the knowledge he claims E-Z Trench should have provided, and it actually led him to use the bungee cord.

"plaintiff must show that adequate warning would have altered conduct"

See Austin, 361 F.3d at 868-870 (finding proximate cause had not been shown where decedent raised aluminum mast under power lines despite warning labels and safety training advising against doing so) (citing Wolf v. Stanley Works, 757 So.2d 316, 323 (Miss.Ct.App.2000) (proximate cause not shown where “there was no evidence that desired warning would have had any causative impact,” citing Wyeth Labs., Inc. v. Fortenberry, 530 So.2d 688, 691 (Miss.1988))); see also Little, 37 F.3d at 1076 (“plaintiff must show that adequate warning would have altered conduct”).


Context: Although the agents testified that they did not have time to comply with Miranda, the Court is skeptical that over the course of more than two hours the agents had no time to advise Defendant of his fundamental rights. In short, the agents' failure to give Faulkingham a Miranda warning was negligent, at best. Moreover, considering the nature of the interrogation, the complete lack of any protective device, along with Defendant's impending heroin withdrawal, it is difficult to conclude that Defendant's cooperation was truly the product of his free choice.

explaining that "only confessions procured by coercive official tactics [along with evidence derived from such confessions] should be excluded" and that " '[f]ree choice' is no longer a touchstone"

But see United States v. Byram, 145 F.3d 405, 407 (1st Cir.1998) (explaining that “only confessions procured by coercive official tactics [along with evidence derived from such confessions] should be excluded” and that “ ‘[f]ree choice’ is no longer a touchstone”).

explaining that "[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."

See Miranda, 384 U.S. at 458, 86 S.Ct. 1602 (explaining that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”).


Context: In both cases, "[t]he DOE and SRO effectively cast the Parent's argument as an objection that the CSE did not adopt her opinion, rather than one related to her meaningful participation."

finding procedural violation of the IDEA where the Department failed to "g[i]ve due consideration" to the parents view that the student required a more restrictive ratio than was recommended by the DOE

E.H., 164 F.Supp.3d at 552; see also S.Y., 210 F.Supp.3d, at 573, 2016 WL 5806859, at *9 (finding procedural violation of the IDEA where the Department failed to “g[i]ve due consideration” to the parents view that the student required a more restrictive ratio than was recommended by the DOE).

and to refer J.G.'s case to the CBST if so

Id. at 552. While it is true that “[m]ere parental disagreement with a school district’s IEP and placement recommendation does not amount to a denial of meaningful participation,” A.P., 2015 WL 4597545, at *8, the CSE still has a procedural obligation to consider whether a student requires a more restrictive ratio than is available through public schools (and to refer J.G.’s case to the CBST if so). “If the CSE refused to consider a more restrictive ratio than its public offerings were able to provide, that would amount to predetermination of [J.G.’s] education program regardless of what [J.G.] needed or what [her] Parent contributed to the process.”


Context: We lack authority to modify the judgment in defendants' favor, however, because they have not filed a cross appeal and thus cannot enlarge their rights in this court. But the fact that the district court's rationale would have logically dictated a judgment more favorable to defendants does not preclude defendants from relying on that rationale to support the judgment they did receive.

See United States v. Neal, 93 F.3d 219, 224 (6th Cir.1996) (noting that a cross appeal is unnecessary so long as the appellee does not seek to modify the judgment in its favor); see also Conover v. Lein, 87 F.3d 905, 908-09 (7th Cir.1996) (affirming dismissal without prejudice after concluding that the dismissal should have been with prejudice); Arvie v. Broussard, 42 F.3d 249, 250-51 (5th Cir.1994) (same).


Context: P 14. Thus, in a sufficiency of the evidence review under Randall II and Wilinski, we give deference to the trial court's determination of credibility and evaluation of the evidence and draw on its reasoning and adopt the trial court's reasonable inferences. If there are multiple reasonable inferences, we will adopt the inference that the trial court adopts.

See Randall II, 222 Wis. 2d at 60 ("we will affirm, if there is any credible evidence, or reasonable inference therefrom, upon which the [fact-finder] could have based its decision"); see also Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971) ("[I]f more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted.").


Context: [Plaintiff] must produce some independent evidence showing that the company's motives are not believable."). Moreover, plaintiffs 1999 performance review, in which defendant rated him as meeting its expectations, occurred three weeks before he was terminated.

performance review that occurred ten months before "bad attitude" termination decision was not enough to show pretext

See Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15, 19 (7th Cir.1987) (extremely good review two months before firing relevant to showing pretext), overruled on other grounds; cf. Roberts, 172 F.3d at 452 (performance review that occurred ten months before “bad attitude” termination decision was not enough to show pretext).


Context: The amended VRPA no longer allows an individual to sue for statutory damages, and expands, to a significant degree, the circumstances in which a seller can disclose consumer information. The new law also imposes additional requirements on a seller regarding the notice it must give to customers whose data the seller intends to disclose for marketing purposes.

"The extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored." (emphasis in original

See, e.g., Frank W. Lynch & Co., 624 N.W.2d at 183 (finding that an amendment which permits the recovery of a penalty in addition to damages for an employment dispute is not remedial because retroactive application would “change significantly the substance of the parties’ agreement and unsettle their expectations”); Dale Baker Oldsmobile, Inc. v. Fiat Motors of N. Am., Inc., 794 F.3d 213, 219 (6th Cir.1986) (explaining that remedial statutes are those that only “involve procedural rights'or indicate the procedures for effecting a remedy”); see also Landgraf, 511 U.S. at 283-84, 114 S.Ct. 1483 (“The extent of a party’s liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored.” (emphasis in original)). Accordingly, the amendment to the VRPA does not apply to Plaintiffs’ claims, and the Court will assess the sufficiency of those claims under the law as it was when Plaintiffs’ claims accrued.

finding that an amendment which permits the recovery of a penalty in addition to damages for an employment dispute is not remedial because retroactive application would "change significantly the substance of the parties' agreement and unsettle their expectations"


explaining that remedial statutes are those that only "involve procedural rights'or indicate the procedures for effecting a remedy"


Context: Because the Eleventh Circuit has not decided the issue, the Undersigned's task is to predict how the Eleventh Circuit would rule if presented with the identical issue of successor liability. Chao v. Concrete Mgt.

concluding that the Eleventh Circuit would "likely follow" a line of authority

Cf. United States v. Stickle, 355 F.Supp.2d 1317, 1328 (S.D.Fla.2004) (concluding that the Eleventh Circuit would "likely follow” a line of authority).

Res., L.L.C., No. 08-2501-JWL, 2009 WL 564381, at *3 (D.Kan. Mar. 5, 2009) (predicting that the Tenth Circuit Court of Appeals would conclude that successor liability exists under the FLSA).


Context: The district court declined to investigate the purported statement any further because it incorrectly determined that any such testimony would be barred under Rule 606(b). Given the risk that the jury's discussion of a prior conviction may prejudice the defendant in a case where fraudulent intent is a key ingredient, we believe it is appropriate to remand to the district court to hold an evidentiary hearing.

See United States v. Bag nariol, 665 F.2d 877, 885 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982) (noting that where trial court learns of possible juror misconduct, it must hold evidentiary hearing to determine precise nature of extraneous information); United States v. Rhodes, 556 F.2d 599, 602 (1st Cir.1977) (stating that denial of motion for new trial without any investigation of exposure to extraneous materials was insufficient response to serious matters raised in affidavit); cf. United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988) (stating district court properly conducted extensive hearing to determine effect of extraneous material on jury deliberations); see also, 3 Weinstein’s Evidence, ¶606[05], at 606-52 (when sufficient showing is made of type of misconduct which is not on its face barred by Rule 606(b), further inquiry is warranted).


stating that denial of motion for new trial without any investigation of exposure to extraneous materials was insufficient response to serious matters raised in affidavit


Context: Accordingly, with regard to the AAA, courts refuse to enforce "vague" or "amorphous" provisions, or to create additional requirements not mentioned in the statute but merely "consistent with [its] purpose."

Aristotle P. v. Johnson, 721 F.Supp. 1002, 1012 (N.D.Ill.1989) (no right to placement in the most family-like setting, “reasonable efforts to reunify families,” or “meaningful sibling visitation”); see also B.H., 715 F.Supp. at 1401 (no enforceable right to placement in the most family-like setting or reasonable efforts to help child remain in home); but see Artist M. v. Johnson, 726 F.Supp. 690, 695 (N.D.Ill.1989) (implied private right of action with respect to “rea sonable” preventive and reunification services; “the use of the word ‘reasonable’ in a statutory provision does not render the requirement too vague or ambiguous to be enforced”).

no right to placement in the most family-like setting, "reasonable efforts to reunify families," or "meaningful sibling visitation"


Context: Finally, plaintiffs have not cited, and the Court has not found, any cases decided after Filarsky in which a prosecutor was denied absolute immunity based on his or her status as a private attorney. By contrast, several cases have extended immunity to private attorneys serving prosecutorial roles.

See Redlich v. Leen, No. 16-CIV-20001, 2016 WL 3670575, at *5 (S.D. Fla. May 20, 2016) (private attorney entitled to absolute immunity in “hired role as a prosecutor on behalf of the City of Coral Gables in the traffic court proceeding”); Shimota v. Wegner, No. 15-1590, 2016 WL 1254240, at *14 (D. Minn. Mar. 29, 2016) (citing Filarsky and holding that private attorney entitled to absolute immunity for claims related to wrongful prosecution); Higdon v. Law Firm of Lautzenheiser Myers & Holdman, No. 1:06-CV-14TS, 2006 WL 897441, at *1 (N.D. Ind. Mar. 31, 2006) (private attorneys acting as city prosecutors entitled to absolute immunity); see also pre-Filarsky cases Ernst v. Child & Youth Servs. of Chester Cty., 108 F.3d 486, 503 (3d Cir. 1997) (granting immunity to private attorney representing child welfare agency in dependency hearings); SBT Holdings, LLC v. Town of Westminster, 541 F.Supp.2d 405, 414-15 (D. Mass.), rev’d on other grounds, 547 F.3d 28 (1st Cir. 2008) (rejecting claim that “contract law firm” and its attorney are not entitled to absolute immunity); Niebur v. Town of Cicero, 212 F.Supp.2d 790, 824 (N.D. Ill. 2002) (“Private attorneys may have prose-cutorial immunity in the proper circumstances.”); Hollowell v. Gravett, 703 F.Supp. 761, 764 (E.D. Ark. 1988) (absolute immunity for private attorney hired to prosecute administrative dismissal proceeding against officers of the sheriffs department).

private attorney entitled to absolute immunity in "hired role as a prosecutor on behalf of the City of Coral Gables in the traffic court proceeding"


rejecting claim that "contract law firm" and its attorney are not entitled to absolute immunity


"Private attorneys may have prose-cutorial immunity in the proper circumstances."


absolute immunity for private attorney hired to prosecute administrative dismissal proceeding against officers of the sheriffs department


private attorneys acting as city prosecutors entitled to absolute immunity


Context: By contrast, here Plaintiff does not challenge any regulation or policy. Rather, she simply challenges Defendant's refusal to comply with the EEOC's order granting her relief. That order, however, addresses a "mere personal action" and provides merely injunctive relief that is "collateral to ... a money judgment."

cases for non-monetary relief are allowed to proceed when "they involve challenges to the facial validity of military regulations and [are] not tied to discrete personnel matters."

Wilkins, 279 F.3d at 786-87 (explaining the distinction between non-monetary claims subject to the Feres doctrine from the “[b]road-based declaratory and injunctive relief regarding Navy policies affecting the structure of the military chaplaincy” challenged by Wilkins); see also Watson v. Arkansas Nat. Guard, 886 F.2d at 1008-1010; Crawford v. Texas Army Nat. Guard, 794 F.2d at 1036 (cases for non-monetary relief are allowed to proceed when “they involve challenges to the facial validity of military regulations and [are] not tied to discrete personnel matters.”)

explaining the distinction between non-monetary claims subject to the Feres doctrine from the "[b]road-based declaratory and injunctive relief regarding Navy policies affecting the structure of the military chaplaincy" challenged by Wilkins