Context: In this case, the Younts have raised a timely objection to the facial defect in Cottrell's notice of removal, and therefore this action must be remanded to state court. See P.P.

"The plaintiff has a right to remand if the defendant did not take the right steps when removing ... and ... a removed matter must be remanded .if there are any defects in the removal procedure."

Cf. Maori v. M & M Contractors, Inc., 897 F.Supp. 381, 384 (N.D.Ind.1995) (“The plaintiff has a right to remand if the defendant did not take the right steps when removing ... and ... a removed matter must be remanded .if there are any defects in the removal procedure.”); Ortiz v. General Motors Acceptance Corp., 583 F.Supp. 526, 529 (N.D.Ill.1984) (“A defendant seeking removal must strictly comply with all the statutory requirements, and where there is doubt as to whether the requirements have been satisfied, the case should be remanded.”) (citation omitted).

remand was required because the removal petition failed to allege that other defendant had not been served in state court: "Although this action was removable, the procedure used to effect removal was defective and plaintiff did not waive the defect."

Farmers’ Elevator Co., 395 F.2d at 548 (remand was required because the removal petition failed to allege that other defendant had not been served in state court: “Although this action was removable, the procedure used to effect removal was defective and plaintiff did not waive the defect.”); Production Stamping Corp. v. Maryland Cas. Co., 829 F.Supp. 1074, 1076 (E.D.Wis.1993) (the statutory requirement that the desire of all defendants to join in a removal petition be expressed to the court within thirty days after receipt by a defendant of a copy of an initial pleading containing a removable claim is not jurisdictional and may be waived; however, “the time limitation is mandatory and must be strictly construed.”); Ryals v. Marco Island Partners, 685 F.Supp. 683, 686 (N.D.Ill.1988) (removal was improvident where the removal petition failed to explain why fewer than all defendants sought removal); Fellhauer, 673 F.Supp. at 1449-50 (a removing defendant’s failure to obtain the consent of all defendants to removal was a substantive defect in removal to which a timely objection was raised, requiring remand); Hardesty v. General Foods Corp., 608 F.Supp. 992, 993 (N.D.Ill.1985) (where, on the last day permitted for removal, only two of four co-defendants filed a petition for removal, and there was no affirmative explanation as to the absence of the other co-defendants in the petition, the removal petition was defective and the case required remand).


"A defendant seeking removal must strictly comply with all the statutory requirements, and where there is doubt as to whether the requirements have been satisfied, the case should be remanded."


removal was improvident where the removal petition failed to explain why fewer than all defendants sought removal


a removing defendant's failure to obtain the consent of all defendants to removal was a substantive defect in removal to which a timely objection was raised, requiring remand


where, on the last day permitted for removal, only two of four co-defendants filed a petition for removal, and there was no affirmative explanation as to the absence of the other co-defendants in the petition, the removal petition was defective and the case required remand


Context: The rights established under Miranda are triggered only when an individual is in custody and under interrogation. In determining whether an individual is in custody, a necessary inquiry is whether, given the circumstances surrounding a police encounter, "a reasonable person [would] have felt he or she was not at liberty to terminate the [encounter] and leave."

[Consideration of ... "inherently subjective and individualized factors is impermissible."

Moore v. United States, 927 A.2d 1040, 1059 (D.C. 2007) (citation omitted); Morales v. United States, 866 A.2d 67, 73 (D.C.2005) ([Consideration of ... “inherently subjective and individualized factors is impermissible.”). However, “this inquiry, though necessary, is not sufficient.”

noting that "a free-to-leave inquiry reveals only whether the person questioned was seized" and is not disposi-tive as to whether the person was in custody for Miranda purposes

California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (citation and internal quotation marks omitted); In re J.H., 928 A.2d 643, 648 (D.C.2007) (per curiam); see also United States v. Newton, 369 F.3d 659, 672 (2d Cir.2004) (noting that “a free-to-leave inquiry reveals only whether the person questioned was seized” and is not disposi-tive as to whether the person was in custody for Miranda purposes).


Context: Father's argument that he did later pay some child support through the tax intercept is similarly to no avail, as that payment was both involuntary and subsequent to the statutory period. In addition, he may not rely upon his incarceration as an excuse for failing to contribute any money toward Child's support.

noting that the substantially reduced wages received by an incarcerated parent does not excuse his or her obligation to make monetary contributions toward the child's support

M.L.K., 804 S.W.2d at 402 (noting that the substantially reduced wages received by an incarcerated parent does not excuse his or her obligation to make monetary contributions toward the child’s support); see In re L.N.D., 219 S.W.3d 820, 828 (Mo.App.2007) (though incarcerated, father was not relieved of his obligation to make a minimal financial contribution for child’s support); In re S.J.G., 871 S.W.2d 638, 642 (Mo.App.1994) (even a parent who lacks the ability to fully support a child still has a duty to make minimal support contributions for that child).

though incarcerated, father was not relieved of his obligation to make a minimal financial contribution for child's support


even a parent who lacks the ability to fully support a child still has a duty to make minimal support contributions for that child


Context: But as in Gomez, this argument relies on a propensity inference: that Stacy's history of involvement with methamphetamine manufacturing makes it more likely that he intended to use the pseudoephedrine pills he collected in 2010 through 2012 to make methamphetamine. For that reason, we are persuaded that the court erred by admitting the evidence of Stacy's prior involvement with methamphetamine.

See United States v. Chapman, 765 F.3d 720, 726-27 (7th Cir.2014) (concluding that admission of prior drug conviction to prove intent to distribute was error); United States v. Lee, 724 F.3d 968, 980 (7th Cir.2013) (same); Miller, 673 F.3d at 699-700 (same); see also Gomez, 763 F.3d at 862-63 (rejecting government’s argument as relying on the theory of “[o]nce a drug dealer, always a drug dealer”).

rejecting government's argument as relying on the theory of "[o]nce a drug dealer, always a drug dealer"


Context: Missouri law prohibits as one of several "unlawful uses of weapons" the knowing "[e]xhibit[ion], in the presence of one or more persons, [of] any weapon readily capable of lethal use in an angry or threatening manner." # Mo.Rev.Stat. SS 570.030.1(4). Violation of this provision constitutes a class D felony punishable by up to four years -in prison.

looking to state supreme court decisions to determine whether defendant had committed a "felony offense" under USSG SS 2K2.1(b

See Littrell, 557 F.3d at 617-18 (looking to state supreme court decisions to determine whether defendant had committed a “felony offense” under USSG § 2K2.1(b)(6)(B)); see also Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (acknowledging that federal courts applying sentencing enhancements under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), are “bound by” state-court interpretations of state criminal statutes).

acknowledging that federal courts applying sentencing enhancements under the Armed Career Criminal Act, 18 U.S.C. SS 924(e)(1), are "bound by" state-court interpretations of state criminal statutes


Context: Moreover, several bankruptcy courts have ordered total disgorgement in like circumstances.

failure to research PACER system for prior filings violated SS 707(b

In re Alessandro, 2010 WL 3522255, at *4-5 (failure to research PACER system for prior filings violated § 707(b)(4)); In re Gutierrez, 356 B.R. at 506 (violations of §§ 527-28); cf. In re DeSantis, 395 B.R. at 169-70 (disgorgement of all or a substantial portion of fees would likely follow a withdrawal based upon attorney’s belief that she cannot or should not represent a debtor in a reaffirmation decision).

disgorgement of all or a substantial portion of fees would likely follow a withdrawal based upon attorney's belief that she cannot or should not represent a debtor in a reaffirmation decision


Context: Moreover, "this duty arises at the point in time when litigation is reasonably anticipated whether the organization is the initiator or the target of litigation." The Sedona Conference, The Sedona Conference Commentary on Legal Holds: The Trigger and the Process 3 (public cmt. ed. Aug.2007), available at http://www.thesedonaconference.org/ eontent/miscFiles/LegaLholds.pdf ("Legal Holds"). However, a future litigant is not required to make such a request, "and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information" if the adverse party knows or should know of impending litigation.

stating that "defendants each had a duty to preserve the data beginning no later than those dates" on which plaintiff served the complaint on each defendant

See Nucor Corp. v. Bell, 251 F.R.D. 191, 197 (D.S.C. 2008) (stating that “defendants each had a duty to preserve the data beginning no later than those dates” on which plaintiff served the complaint on each defendant); see also Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D.Colo. 2007) (“In most cases, the duty to preserve evidence is triggered by the filing of a lawsuit.”); Krumwiede, 2006 WL 1308629, at *8 (“The filing of a complaint may alert a party that certain information is relevant and likely to be sought in discovery.”).

"In most cases, the duty to preserve evidence is triggered by the filing of a lawsuit."


"The filing of a complaint may alert a party that certain information is relevant and likely to be sought in discovery."


Context: It would distort the plain meaning of this language to limit the application of the SS 1105a(a)(3) bar to convictions for aggravated felonies following the enactment of the ADAA. Further, it is well settled that Congress has the authority to make past criminal activity a new ground for deportation.

See id. at 32, citing Lehman v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien convicted of crimes involving moral turpitude in 1936 found deportable under Immigration and Nationality Act of 1952); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien with 1923 narcotics convictions found deportable under 1952 Act); cf. Harisiades v. Shaughnessy, 342 U.S. 580, 593-96, 72 S.Ct. 512, 520-22, 96 L.Ed. 586 (1952) (upholding retroactive application of 1940 statute that made deportable aliens who had joined the communist party at any time after entering the United States).


alien with 1923 narcotics convictions found deportable under 1952 Act


Context: Thus, Abele Tractor contractually waived the right to the remedy of rescission under New York law. Absent fraud, this contractual provision prevents rescission of the Agreement.

See Keywell Corp. v. Weinstein, 33 F.3d 159, 165 (2d Cir.1994); In re Hale Desk Co., 97 F.2d 372, 373 (2d Cir.1938); Teleflex Inc. v. Collins & Aikman Prod., Co., 961 F.Supp. 368, 371-73 (D.Conn.1996)(following New York law); Schine v. Schine, 254 F.Supp. 986, 988 (S.D.N.Y.)(waiver of fraud claim contrary to New York public policy but waiver of other causes of action permitted), appeal dismissed, 367 F.2d 685 (2d Cir.1966); see also McCready v. Lindenborn, 172 N.Y. 400, 409, 65 N.E. 208 (1902)(measure of damages set forth in contract is exclusive remedy); Thomson-Houston Elec. Co. v. Durant Land Imp. Co., 144 N.Y. 34, 48, 39 N.E. 7 (1894)(party held to limit of recovery set forth in contract). Accordingly, the Agreement stands and all of its provisions apply.


party held to limit of recovery set forth in contract


Context: The district court properly determined that Camacho failed to produce any evidence creating an issue of fact pertaining to the alleged violation of his Eighth Amendment rights.

See Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (holding that prisoner must show prison officials were deliberately indifferent to prison conditions to establish an Eighth Amendment violation); see also Jacobson, 50 F.3d at 1496 (affirming dismissal as a valid grant of summary judgment where district court considered matters outside the pleadings and plaintiffs were given an opportunity to brief the issues and submit evidence in support of their position).


Context: The Supreme Court has held that the right to present a defense has its sources in the Due Process Clauses of the Fifth and Fourteenth Amendments and the Confrontation and Compulsory Process Clauses of the Sixth Amendment. The right to present a defense, however, is not absolute.

noting that the Taylor court "rejected the defendant's argument that, under the Compulsory Process Clause of the Sixth Amendment, preclusion is never a permissible sanction for a discovery violation"

See Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”); see also Michigan v. Lucas, 500 U.S. 145, 152, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (noting that the Taylor court “rejected the defendant’s argument that, under the Compulsory Process Clause of the Sixth Amendment, preclusion is never a permissible sanction for a discovery violation”) (emphasis and quotation marks omitted).

"The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."


Context: Certainly, evidence of actual use is relevant to that inquiry, and may even be dispositive. A finding that the defendant used the firearm for unlawful purposes would disqualify him or her altogether. We observe, however, without deciding the question, that there is authority that such evidence of lawful, non-sporting use may not necessarily preclude a defendant from establishing, in the totality of the circumstances, that he possessed a firearm solely for lawful sporting purposes.

"The sale of a single weapon does not inevitably prevent a person from being a collector under SS 2K2.1(b

See, e.g., Collins, 313 F.3d at 1256 (holding that two isolated uses of a firearm as collateral to secure vehicle repairs need not preclude eligibility if defendant otherwise demonstrated possession solely for lawful sporting purposes); cf. United States v. Miller, 547 F.3d 718, 720 (7th Cir.2008) (“The sale of a single weapon does not inevitably prevent a person from being a collector under § 2K2.1(b)(2).”). In addition, evidence that a defendant had used a firearm for lawful sporting purposes would support his claim that he possessed it solely for lawful sporting purposes.


Context: Our holding does not preclude this court from limiting the scope of the issues for which we remand, and thus limiting the district court's consideration to evidence and arguments relevant to those issues.

holding that, where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendant's first appeal, the district court did not err in declining to consider other issues raised by the defendant on remand

See, e.g., United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994) (per curiam) (holding that, where it was clear that the court of appeals had limited the issues on resentencing to the one issue raised in the defendant’s first appeal, the district court did not err in declining to consider other issues raised by the defendant on remand); see also Caterino, 29 F.3d at 1394 (holding that the district court’s discretion to consider any issue relevant to sentencing may be limited by the express or implied limits in the remand mandate).

holding that the district court's discretion to consider any issue relevant to sentencing may be limited by the express or implied limits in the remand mandate


Context: . These courts, as did the district court here, have referred to a voluntary resignation as a "waiver" of procedural rights to which the employee would otherwise be entitled under the due process clause.

"[H]aving voluntarily resigned, plaintiff cannot now claim he was denied procedural protections that he waived."

See Morrell, 638 F.Supp. at 168 (“[H]aving voluntarily resigned, plaintiff cannot now claim he was denied procedural protections that he waived.”); Schoepf, 606 F.Supp. at 390 ("[P]laintiff’s resignation was voluntary and, thus, any due process rights to which he otherwise would have been entitled are waived."); see also Dusanek, 677 F.2d at 543 ("[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the [employee] has simply refused to avail himself of them.”).

"[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the [employee] has simply refused to avail himself of them."


"[P]laintiff's resignation was voluntary and, thus, any due process rights to which he otherwise would have been entitled are waived."


Context: These arguments apply with equal force in the present case because Murphy's decision to file a federal court complaint before exhausting his administrative remedies threatens to undermine the hearing process established by the police department for the adjudication of disciplinary complaints.

Younger abstention does not apply if administrative proceedings have been completed and the agency's ruling has not been appealed

See O’Neill v. City of Philadelphia, 32 F.3d 785, 791 (3d Cir.1994) (.Younger abstention applies to final administrative rulings that have not been appealed to state court); Alleghany Corp. v. Pomeroy, 898 F.2d 1314, 1317-18 (8th Cir.1990) (same); but cf. Norfolk & Western Ry. v. Pub. Util. Comm’n of Ohio, 926 F.2d 567, 572-73 (6th Cir.1991) (Younger abstention does not apply if administrative proceedings have been completed and the agency’s ruling has not been appealed); Thomas v. Texas State Bd. of Med. Exam’rs, 807 F.2d 453, 456 (5th Cir.1987) (same).


Context: Even where a court accepts uncontradicted evidence that a person has medical problems, the court need not necessarily conclude that the person is incapable of earning income.

upholding finding that husband was capable of supporting himself where judge "accepted the uncontradicted evidence about the state of the [husband's] health, but found, contrary to his assertion, that the state of his health was not interfering with his ability to work"

See Karmand v. Karmand, 145 Md.App. 317, 333-34, 802 A.2d 1106 (2002) (upholding finding that husband was capable of supporting himself where judge “accepted the uncontradicted evidence about the state of the [husband’s] health, but found, contrary to his assertion, that the state of his health was not interfering with his ability to work”); Long, 129 Md.App. at 581, 743 A.2d 281 (holding that trial court did not err in finding that wife was “at least somewhat capable of supporting herself,” where evidence of wife’s depression and other “mental health problems was uncontested” but where other evidence showed that these conditions “did not totally bind her to the family home” and that wife had been financially successful in the past); see also Hiltz v. Hiltz, 213 Md.App. 317, 344-46, 73 A.3d 1199 (2013) (holding that trial court was not required to conclude that wife was disabled for alimony purposes, where she testified about her disability and offered documentation of her Social Security disability benefits, but where she produced no medical testimony and where other evidence indicated that she was otherwise active and did not “stay in bed all day as she claim[ed]”).

holding that trial court was not required to conclude that wife was disabled for alimony purposes, where she testified about her disability and offered documentation of her Social Security disability benefits, but where she produced no medical testimony and where other evidence indicated that she was otherwise active and did not "stay in bed all day as she claim[ed]"


holding that trial court did not err in finding that wife was "at least somewhat capable of supporting herself," where evidence of wife's depression and other "mental health problems was uncontested" but where other evidence showed that these conditions "did not totally bind her to the family home" and that wife had been financially successful in the past


Context: P. 25.2(b)(3). Moreover, it is the inclusion of these statements which vests us with jurisdiction over the appeal. Should they be omitted, we are restricted to considering only those points averring jurisdictional defects or impugning the voluntariness of the initial plea.

Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996) (involving the predecessor to the current rule of appellate procedure); see Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App.1996) (holding that the rule also applies to those attempting to perfect an appeal after their community supervision is revoked and they are adjudicated guilty).


Context: For all the Court knows from Mr. Rossi's affidavit, the information contained in it is based upon rank speculation and fourth-hand hearsay. While Mr. Rossi's counsel contended at oral argument that in opposing summary judgment, Mr. Rossi had no burden to show that the information contained in his affidavit would be admissible at trial, Mr. Rossi's counsel is plainly wrong.

"Rule 56(e)'s requirement ... means that an affidavit's hearsay assertion that would not be admis sible at trial if testified to by the affiant is insufficient to create a genuine issue for trial."

See Patterson, 375 F.3d at 219 (“Rule 56(e)’s requirement ... means that an affidavit’s hearsay assertion that would not be admis sible at trial if testified to by the affiant is insufficient to create a genuine issue for trial.”); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.Bd 155, 160 (2d Cir.1999) (holding that hearsay statement “did not constitute competent evidence” and thus could not be considered in opposition to motion for summary judgment).

See also Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir.1997) (bald assertions not based on personal knowledge were properly ignored by district court in granting summary judgment).


Context: The State of Florida petitions this Court for the issuance of a writ of certiorari quashing the trial court's order denying the State's motion to place the Respondent, Aaron Maldonado, into custody. Because the trial court has not rendered a written order, we dismiss this petition for lack of certiorari jurisdiction.

See Burns v. State, 906 So.2d 351, 351 (Fla. 3d DCA 2005) (“[S]ince the trial court has not rendered an order regarding the defendant’s bond, and in fact has not modified the defendant’s pretrial release, we conclude that the certiorari jurisdiction of this court has not been invoked.”); see also Owens v. State, 579 So.2d 311, 312 (Fla. 1st DCA 1991) (district court of appeal did not have jurisdiction absent signed, written order by trial court and transcript could not substitute for written order); Fla. Citrus Comm’n v. Griffin, 249 So.2d 42, 43 (Fla. 2d DCA 1971) (even if order on appeal was dictated into the record, but the trial judge did not render a written order, the appeal must be dismissed for lack of jurisdiction).

"[S]ince the trial court has not rendered an order regarding the defendant's bond, and in fact has not modified the defendant's pretrial release, we conclude that the certiorari jurisdiction of this court has not been invoked."


even if order on appeal was dictated into the record, but the trial judge did not render a written order, the appeal must be dismissed for lack of jurisdiction


Context: Some courts have found survivorship benefits are not a property interest.

"the majority opinion, in refusing to hold that the death benefits are community property, ignores the rule of community property law that spouses share in property earned during marriage"

But see Lack, 584 S.W.2d at 900 ("the majority opinion, in refusing to hold that the death benefits are community property, ignores the rule of community property law that spouses share in property earned during marriage”) (Robertson, J., dissenting).

because of statutory scheme, ex-wife not entitled to pro-rata share of firefighter's statutory death benefit even though pro-rata share would otherwise be community property, citing Lack

Lack, 584 S.W.2d at 899. Accord Duckett v. Board of Trustees, City of Houston Firemen’s Relief & Retirement Fund, 832 S.W.2d 438, 442 (Tex. Ct. App. 1992) (because of statutory scheme, ex-wife not entitled to pro-rata share of firefighter’s statutory death benefit even though pro-rata share would otherwise be community property, citing Lack).


Context: Since the general standards to be employed in discussing Eighth Amendment issues are well understood, I see no reason to repeat them at length here. Turning to the specific issue at hand, it appears to this Court that the Eighth Amendment requires no more than that prison officials provide inmates with a diet which is nutritionally adequate for the maintenance of normal health.

"The Constitution requires that prisoners be provided 'reasonably adequate food'____ The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant does not amount to a constitutional deprivation."

See also Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985) (“The Constitution requires that prisoners be provided ‘reasonably adequate food’____ The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant does not amount to a constitutional deprivation.”); Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Jones v. Diamond, 636 F.2d 1364, 1378 (5th Cir. 1981); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977) (“A well-balanced meal, containing sufficient nutritional value to preserve health, is all that is required.”). Where food is prepared and served in a sanitary manner and is nutritionally adequate to maintain normal health, the fact that it is unappetizing will not, standing alone, state a constitutional claim.

"deliberate and unnecessary withholding of food essential to normal health can violate the Eighth Amendment"

Cunningham v. Jones, 567 F.2d 653, 656, 660 (6th Cir.1977) (“deliberate and unnecessary withholding of food essential to normal health can violate the Eighth Amendment”).


"A well-balanced meal, containing sufficient nutritional value to preserve health, is all that is required."


Context: We agree, however, with the state that the lack of such an instruction was harmless under the circumstances because the defendant was acquitted of all charges other than kidnapping and unlawful restraint, thus indicating that the jury believed only the victim's allegations with respect to the defendant's moving her forcibly from the apartment building's vestibule to another area outside and then back inside and up to Sears' apartment, where the defendant then confined her temporarily. Put differently, the jury's verdict, which indicated the jury's disbelief of the victim's allegations of assault; see footnote 7 of this opinion; is a conclusive finding that there was no separate crime underlying the kidnapping charge.

trial court properly declined to instruct on incidental rule because, after granting of directed verdict on underlying assault charge, "no one suggested that any underlying lesser or co-equal offense could be found to have been committed, and there was no evidence of any such offense"

See State v. Hampton, supra, 293 Conn. 463 (concluding that defendant’s failure to receive Salamon instruction was harmless beyond reasonable doubt, even though he had been charged with both kidnapping and sexual assault, because “the defendant and [his accomplice] had kidnapped the victim and had driven around . . . with her for well over three hours before the defendant’s alleged commission of any other crimes commenced”); see also People v. Robbins, supra, 131 Mich. App. 433 (trial court properly declined to instruct on incidental rule because, after granting of directed verdict on underlying assault charge, “no one suggested that any underlying lesser or co-equal offense could be found to have been committed, and there was no evidence of any such offense”); People v. Gonzalez, 80 N.Y.2d 146, 148, 153, 603 N.E.2d 938, 589 N.Y.S.2d 833 (1993) (concluding that second degree kidnapping conviction arising from “a lengthy odyssey on the streets of Brooklyn,” prior to alleged sexual assault, should not have been merged with acquittal for attempted sexual assault because “[t]he abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted,” and because “[t]he restraint was not a minimal intrusion necessary and integral to another crime . . . [or] simultaneous and inseparable from another crime,” but, rather, “was a crime in itself’); People v. Cruz, 296 App. Div. 2d 22, 26-27, 745 N.Y.S.2d 528 (merger doctrine inapplicable when “there is sufficient evidence of restraint but insufficient evidence of the other charged crime”), appeal denied, 99 N.Y.2d 534, 782 N.E.2d 572, 752 N.Y.S.2d 594 (2002); State v. French, supra, 139 Vt. 321 (incidental rule inapplicable when defendant acquitted of sexual assault because “the kidnapping, if proven in every element, can stand on its own”); Walker v. Commonwealth, supra, 47 Va. App. 122, 124 (rejecting defendant’s claim that he was entitled to reversal of abduction conviction on ground that “detention should be ignored because it was incidental to the claimed robbery” when defendant was acquitted of robbery charge, thereby rendering incidental rule inapplicable).

concluding that defendant's failure to receive Salamon instruction was harmless beyond reasonable doubt, even though he had been charged with both kidnapping and sexual assault, because "the defendant and [his accomplice] had kidnapped the victim and had driven around . . . with her for well over three hours before the defendant's alleged commission of any other crimes commenced"


concluding that second degree kidnapping conviction arising from "a lengthy odyssey on the streets of Brooklyn," prior to alleged sexual assault, should not have been merged with acquittal for attempted sexual assault because "[t]he abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted," and because "[t]he restraint was not a minimal intrusion necessary and integral to another crime . . . [or] simultaneous and inseparable from another crime," but, rather, "was a crime in itself'


merger doctrine inapplicable when "there is sufficient evidence of restraint but insufficient evidence of the other charged crime"


incidental rule inapplicable when defendant acquitted of sexual assault because "the kidnapping, if proven in every element, can stand on its own"


rejecting defendant's claim that he was entitled to reversal of abduction conviction on ground that "detention should be ignored because it was incidental to the claimed robbery" when defendant was acquitted of robbery charge, thereby rendering incidental rule inapplicable


Context: This Court evaluates "whether the allegations of a complaint contain sufficient indicia of reliability to satisfy Rule 9(b) on a case-by-case basis."

"Allegations of date, time or place satisfy the Rule 9(b

See Clausen, 290 F.3d at 1312 & n. 21 (listing some of the types of information that might help a plaintiff plead the submission of a claim with particularity but cautioning that Rule 9(b) “does not mandate all of this information for any of the alleged claims”); see also Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1512 (11th Cir.1988) (“Allegations of date, time or place satisfy the Rule 9(b) requirement that the circumstances of the alleged fraud must be pleaded with particularity, but alternative means are also available to satisfy the rule.”).


Context: Considering QRS's new theories at this point would effectively amend the Complaint after the close of discovery and initiation of summary judgment proceedings. Accordingly, this Court finds that QRS's amended Complaint did not provide IPC with fair notice and will not consider QRS's new theories.

"[W]hen a party raises a claim in materials filed in opposition to a motion for summary judgment, the district court should treat the filing as a request to amend the pleadings and should consider whether the evidence presented creates a triable issue of material fact."

See id. at 968-969; id. at 969 (holding that the district court did not err in finding that the plaintiff failed to provide adequate notice of new allegations where the plaintiffs complaint gave the defendants “no notice of the specific factual allegations presented for the first time in [the plaintiffs] opposition to summary judgment”); Tollis, Inc. v. County of San Diego, 505 F.3d 935, 943 (9th Cir.2007) (finding that the district court properly granted the defendant’s motion for summary judgment where the plaintiff failed to raise a claim in its complaint); Rothman v. Dist. Dir. of IRS, 483 F.2d 1079, 1081 (9th Cir.1973) (finding that the trial court was correct in refusing to consider an issue that was never raised until the plaintiff filed his brief in support of his motion for summary judgment); but see United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1524 (9th Cir.1995) (“[W]hen a party raises a claim in materials filed in opposition to a motion for summary judgment, the district court should treat the filing as a request to amend the pleadings and should consider whether the evidence presented creates a triable issue of material fact.”), vacated on other grounds, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997); Apache Survival Coalition v. United States, 21 F.3d 895, 910-11 (9th Cir.1994) (same).

finding that the district court properly granted the defendant's motion for summary judgment where the plaintiff failed to raise a claim in its complaint


finding that the trial court was correct in refusing to consider an issue that was never raised until the plaintiff filed his brief in support of his motion for summary judgment


Context: I believe that the effective preclusion of a party's right to 'exercise his or her challenges for cause or peremptory challenges, in the absence of effective measures to cure such defect, is ordinarily reversible error.

"[T]he denial or impairment of a defendant's right of peremptory challenge in a criminal case is reversible error not requiring a showing of prejudice."

See State v. Carvalho, 79 Hawai'i 165, 174, 880 P.2d 217, 226 (App.1994) (“[T]he denial or impairment of a defendant’s right of peremptory challenge in a criminal case is reversible error not requiring a showing of prejudice.”), cert. granted, 77 Hawai'i 373, 884 P.2d 1149 (1994), cert. dismissed, 78 Hawai'i 474, 896 P.2d 930 (1995); Leslie v. Allen-Bradley Co., 203 Mich.App. 490, 513 N.W.2d 179, 181 (1994) (in case where tidal judge limited plaintiffs number of peremptory challenges, in violation of statute, reversing because “a party need not demonstrate prejudice arising from a claim of defective jury selection, since the requirement would impose an impossible burden” (citation omitted)); cf. Babcock v. Northwest Mem’l Hosp., 767 S.W.2d 705, 709 (Tex.1989) (in medical malpractice case where trial court initially excluded any discussion of tort reform, and where juror during voir dire volunteered in front of venire his familiarity with advertisements regarding the need for tort reform, holding that trial court abused its discretion by prohibiting questions regarding such reforms because the result was that the plaintiffs “were denied the opportunity to intelligently exercise challenges”); Fluharty v. Wimbush, 172 W.Va. 134, 304 S.E.2d 39, 41-42 (1983) (“It is ... reversible error for a trial judge ... to ... limit the questioning of potential jurors as to infringe upon litigant’s ability to determine whether the jurors are free from interest, bias[,] or prejudice, or to effectively hinder the exercise of peremptory challenges.”

in medical malpractice case where trial court initially excluded any discussion of tort reform, and where juror during voir dire volunteered in front of venire his familiarity with advertisements regarding the need for tort reform, holding that trial court abused its discretion by prohibiting questions regarding such reforms because the result was that the plaintiffs "were denied the opportunity to intelligently exercise challenges"


Context: As a transaction for the sale of goods, CFCU correctly contends the SCUCC applied to the sale of the vehicle. However, in my view, CFCU's cause of action does not arise from a breach of the sales contract under the SCUCC; rather, it is a debt collection action on the security interest, not arising under the SCUCC.

See BancOhio Nat’l Bank v. Freeland, 13 Ohio App.3d 245, 468 N.E.2d 941, 944 (1984) (finding an action based on the note secured by a vehicle was not governed by Article 2 where the financer was not the seller of the vehicle); see also Gray v. Suttell & Assocs., 123 F.Supp.3d 1283, 1289-90 (E.D. Wash. 2015) (distinguishing between a hybrid agreement, which constituted both a contract for sale and a secured transaction and was subject to Article 2, and a financing agreement separate from the sale of goods, which was not subject to Article 2); S.C. Code Ann. § 36-1-201(35) (Supp. 2015) (“ ‘Security interest’ means an interest in personal property or fixtures, which secures payment or performance of an obligation.”).


Context: The distinction that appellees draw between the "constitutional nexus" and the "unitary business principle" is relevant where there is some question as to whether any part of a unitary business has a sufficient nexus with the taxing state. But where, as here, a parent company undoubtedly has a requisite nexus, the only question is whether the subsidiary partakes in the parent's unitary business; if so, it inherits the parent's nexus, and the tests are effectively merged.

"Where, as here, there is no dispute that the [parent] taxpayer has done some business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax____To answer that question, we have developed the unitary business principle."

MeadWestvaco, 553 U.S. at 25, 128 S.Ct. 1498 ("Where, as here, there is no dispute that the [parent] taxpayer has done some business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax____To answer that question, we have developed the unitary business principle.”); see SYL, 375 Md. at 104, 825 A.2d 399 (in a parent-subsidiary case, the "three key elements necessary for constitutional nexus” are that the parent is engaged in business in Maryland, the parent is unitary with the subsidiary, and the apportionment formula is fair).

in a parent-subsidiary case, the "three key elements necessary for constitutional nexus" are that the parent is engaged in business in Maryland, the parent is unitary with the subsidiary, and the apportionment formula is fair


Context: Section 192(a) prohibits "unfair, unjustly discriminatory, or deceptive" practices or devices. Section 192(b) prohibits "undue or unreasonable" preferences, advantages, or disadvantages. Neither section contains language limiting its application to only those acts or devices, which have an adverse effect on competition, such as "restraining commerce." Under well-settled principles, courts must refrain from reading additional terms, such as those that would require an adverse effect on competition, into these sections.

holding that if the text evinces "a plain, nonabsurd meaning" then the court should not "read an absent word into the statute"

See Lamie, 540 U.S. at 538, 124 S.Ct. 1023 (holding that if the text evinces “a plain, nonabsurd meaning” then the court should not “read an absent word into the statute”); see also Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) (holding that courts “ordinarily” should “resist reading words or elements into a statute that do not appear on its face”).

holding that courts "ordinarily" should "resist reading words or elements into a statute that do not appear on its face"


Context: As articulated in the written Plan document, the Committee has the sole discretionary authority to administer the Plan as outlined in the written Plan document. For example, pursuant to the written Plan document, the Committee has the sole discretionary authority to adopt rules and procedures necessary to effectuate the efficient administration of the Plan. Second, the written Plan document bestows the Committee with the discretion to determine which employees are eligible for coverage under the policy and also to dictate the benefits an employee could obtain.

indicating that a plan qualifies as an ERISA plan where the employer has a need to create an administrative system in order to determine the employee's eligibility for and level of benefits

See Kulinski, 21 F.3d at 257 (indicating that a plan qualifies as an ERISA plan where the employer has a need to create an administrative system in order to determine the employee’s eligibility for and level of benefits); see also Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1083 (1st Cir.1990) (considering, inter alia, employer’s role in devising eligibility requirements when determining if benefit plan was governed by ERISA). In addition, under the terms of the written Plan document in this case, the Committee is responsible for paying premiums or other charges due on account of any Plan benefits and paying benefits on behalf of the employees.

considering, inter alia, employer's role in devising eligibility requirements when determining if benefit plan was governed by ERISA


Context: . Indeed, the Board rejected Mr. Washington's statement because it was, in the Board's view, uncorroborated and because he was not competent as a layperson to render a medical opinion, not because he lacked credibility. Contrary to the Board's assertions, there is no requirement that Mr. Washington's statement be corroborated, and service connection may be shown through lay evidence.

holding that "VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence" and that lay evidence may serve to place evidence in equipoise

See Rowell v. Principi, 4 Vet.App. 9, 19 (1993) (Board must explain why lay evidence alone is insufficient to establish entitlement to benefits; holding lay evidence alone may be sufficient to establish benefits); Smith v. Derwinski, 2 Vet.App. 147, 148 (1992) (holding that "VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence” and that lay evidence may serve to place evidence in equipoise); Cartright v. Derwinski, 2 Vet.App. 24, 25-26 (1991) (Board cannot ignore appellant’s testimony simply because appellant is an interested party; lay evidence alone may be sufficient to establish benefits); see also Layno, 6 Vet.App. at 469 (lay testimony regarding observations of symptoms “may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence”).

lay testimony regarding observations of symptoms "may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence"


Context: Similarly, directors called, were called, or came into the office daily "regarding business matters of the company." Owens's testimony, however, does not reasonably suggest that SDC's directors performed traditional employee duties -- maintaining records, preparing financial statements, and managing the office.

finding that a director did perform traditional employee duties when he was chosen from people in senior management positions, oversaw the firm's legal affairs, and was responsible for keeping corporate records

See Kern v. City of Rochester, 93 F.3d 38, 47 (2d Cir.1996) (“There is no indication that any of the non-officer board members performed any traditional employee duties, such as maintaining records or managing the office.”), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997); Equal Employment Opportunity Comm’n v. First Catholic Slovak Ladies Ass’n, 694 F.2d 1068, 1070 (6th Cir.1982) (listing the traditional employee duties as maintaining records, preparing financial statements, and managing the office), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983); Dake v. Mutual of Omaha Ins. Co., 600 F.Supp. 63, 64 (N.D.Ohio 1984) (same); cf. Johnson & Higgins, Inc., 91 F.3d at 1539 (finding that a director did perform traditional employee duties when he was chosen from people in senior management positions, oversaw the firm’s legal affairs, and was responsible for keeping corporate records).

"There is no indication that any of the non-officer board members performed any traditional employee duties, such as maintaining records or managing the office."


listing the traditional employee duties as maintaining records, preparing financial statements, and managing the office


Context: Affording proper deference to the issuing magistrate judge's determination, we conclude the search warrant affidavit asserted sufficient facts to establish probable cause that evidence of criminal activity would be found in defendant's residence. Given the evidence in the affidavit that (1) the defendant's property and residence bordered the marijuana patch, (2) the defendant was identified as the individual in the field cultivating and caring for the patch, and (3) the final harvesting of the field had been completed immediately pri- or to the search warrant application, the issuing magistrate judge reasonably could have inferred that the defendant had recently harvested a large quantity of marijuana plants and that the most likely place to store these plants and the implements used in the harvesting would be at his residence adjacent to the patch.

"It is reasonable to assume that certain types of evidence would be kept at a defendant's residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence."

See United States v. Reyes, 798 F.2d 380, 382 (10th Cir.1986) (“It is reasonable to assume that certain types of evidence would be kept at a defendant’s residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence.”); see also Rowland, 145 F.3d at 1205 (holding that issuing judge “may draw reasonable inferences from the material presented in the warrant application.”).

holding that issuing judge "may draw reasonable inferences from the material presented in the warrant application."


Context: Analysis of the substantially limiting effect of a breathing impairment focuses on the severity and the frequency of the impairment.

See Muller v. Costello, 187 F.3d 298, 313-14 (2nd Cir.1999) (finding plaintiffs breathing problems due to secondhand smoke exposure at work not substantially limited because plaintiff engaged in substantial physical activity outside work without breathing problems); Zirpel v. Toshiba Am. Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir.1997) (finding plaintiffs panic attacks, although they hampered breathing did not substantially limit breathing because the attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (finding plaintiffs breathing not substantially limited because “[s]everal instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing”); see also White v. Honda of America Mfg., Inc., 241 F.Supp.2d 852 (S.D.Ohio 2003) (finding plaintiffs breathing not substantially limited because plaintiff only had difficulty breathing when exposed to certain irritants and that exposure resulted only in brief symptoms); Minnix v. City of Chillicothe, No. 98-4285, 2000 WL 191828, at *2 (6th Cir. Feb.10, 2000) (finding plaintiffs breathing not substantially limited as there was no medical evidence that plaintiffs breathing problems were “severe, long term, or permanent”); Ventura v. City of Independence, No. 95-3582, 1997 WL 94688, at *2 (6th Cir. Mar.4, 1997) (finding plaintiffs breathing not substantially limited where plaintiffs asthma caused him difficulty but did not prevent him from engaging in activities such as walking or playing baseball).


finding plaintiffs breathing not substantially limited as there was no medical evidence that plaintiffs breathing problems were "severe, long term, or permanent"


finding plaintiffs breathing not substantially limited where plaintiffs asthma caused him difficulty but did not prevent him from engaging in activities such as walking or playing baseball


finding plaintiffs panic attacks, although they hampered breathing did not substantially limit breathing because the attacks were infrequent and very manageable


finding plaintiffs breathing not substantially limited because "[s]everal instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing"


Context: We believe that the circumstances here are analogous to those in Wright. In essence, Hay's appeal, although largely fact-based, presents the legal question of whether Hay's conduct violated clearly established law of which a reasonable official would have known. We therefore believe it appropriate to decide this appeal.

whether defendants' actions violated plaintiffs' clearly established constitutional rights is "essentially a legal question"

See also Johnson-El v. Schoemehl, 878 F.2d 1043, 1047 (8th Cir.1989) (appellate review includes prima facie legal and factual issues); Walker v. Schaeffer, 854 F.2d 138, 141 (6th Cir.1988) (whether defendants’ actions violated plaintiffs’ clearly established constitutional rights is “essentially a legal question”).

"To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff's claim for relief"

Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816 (“To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief”).


Context: 15 Errors in an affidavit do not require suppression when the magistrate has a substantial basis to determine that the erroneous facts are merely typographical errors and the facts otherwise support a determination of probable cause.

See, e.g., State v. Valle-Flores, 2005 UT App 290, ¶¶ 2-5, 117 P.3d 1069 (holding that a warrant to search 626 Pueblo Street was supported by probable cause despite the supporting affidavit's reference to both 624 Pueblo Street and 626 Pueblo Street); State v. Wallace, 2002 UT App 295, ¶¶ 24-26, 55 P.3d 1147 (holding that a warrant to obtain a blood sample was valid despite a reference to a urine sample in the addendum to the affidavit because the "minor inconsistency" did "not seriously undermine the information underlying the probable cause determination"); United States v. Snyder, 471 Fed.Appx. 884, 885 (11th Cir.2012) (per curiam) (holding that an affidavit that gave directions to 1924 Queen City Avenue and included a description of the numberplate and building at that location provided sufficient probable cause to validate a search warrant despite also containing a single reference to 1942 Queen City Avenue); United States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996) (declining to invalidate a warrant based on an affidavit in which a serivener's error changed a username from "Reddel" (ending with a numeral) to "REDDEL" because the Federal Bureau of Investigation was otherwise "clear that they were searching" for the former); see also State v. Rosario, 238 Conn. 380, 680 A.2d 237, 240-41 (1996) (concluding that an affidavit's misstatement of the year did not undermine probable cause where other information in the affidavit indicated the correct year); State v. White, 368 So.2d 1000, 1002 (La.1979) (same); State v. Marquardt, 48 Or.App. 515, 603 P.2d 1198, 1199 (1979) (same); 2 Wayne R. LaFave, Search and Seisure § 8.7), at 496 (5th ed. 2012) ("[Rleference to a year other than the current year will not invalidate the warrant if the circumstances fairly indicate that the intended reference was to the current year.").


But see Stroud v. Commonwealth, 295 Ky. 694, 175 S.W.2d 368, 369 (1948) (holding that an affidavit did not provide probable cause sufficient to validate a warrant where the affidavit stated an incorrect date uncontra-dicted by any other specific fact in the affidavit); Greenstreet v. State, 392 Md. 652, 898 A.2d 961, 973-74 (2006) (same).


holding that a warrant to obtain a blood sample was valid despite a reference to a urine sample in the addendum to the affidavit because the "minor inconsistency" did "not seriously undermine the information underlying the probable cause determination"


holding that an affidavit that gave directions to 1924 Queen City Avenue and included a description of the numberplate and building at that location provided sufficient probable cause to validate a search warrant despite also containing a single reference to 1942 Queen City Avenue


declining to invalidate a warrant based on an affidavit in which a serivener's error changed a username from "Reddel" (ending with a numeral) to "REDDEL" because the Federal Bureau of Investigation was otherwise "clear that they were searching" for the former


Context: Defense counsel's request for a downward variance constituted a clear violation of that agreement. Swisshelm thus received the benefit of the plea agreement -- the government's forbearance from seeking an above-Guidelines sentence -- but deprived the government of its corresponding bargained-for benefit -- Swisshelm's forbearance from seeking a below-Guidelines sentence.

"By fashioning a sentence below the applicable Sentencing Guidelines based on the ... violation of ... the plea agreement, the district court denied the Government the benefit of its bargain."

See Bowe, 257 F.3d at 345 (“By fashioning a sentence below the applicable Sentencing Guidelines based on the ... violation of ... the plea agreement, the district court denied the Government the benefit of its bargain.”); Alexander, 869 F.2d at 95 (reasoning that although the Supreme Court’s holding in Santobello was partly based on defendant’s constitutional rights, “it also relies on the fundamental principle that one party cannot be held to a bargain that the other party has breached”).

"Because these [constitutional] concerns do not abound when the defendant breach-' es an agreement, the reasoning in these cases [in which the government breached] is inapposite"

Contra Bradstreet, 207 F.3d at 80 n.3 (“Because these [constitutional] concerns do not abound when the defendant breach-' es an agreement, the reasoning in these cases [in which the government breached] is inapposite”). Swisshelm argues that the breach was only technical and not material because it did not affect the district court’s judgment, but on this record we conclude that the breach was material, prejudicial, and not harmless.


reasoning that although the Supreme Court's holding in Santobello was partly based on defendant's constitutional rights, "it also relies on the fundamental principle that one party cannot be held to a bargain that the other party has breached"


Context: Appellant's failure to raise these claims on direct appeal did not prevent him from doing so in the instant 3.850 motion.

See Debose v. State, 580 So.2d 638, 640 (Fla. 5th DCA 1991) (although contention that defendant did not qualify as a habitual offender could have been raised on direct appeal, defendant could raise this claim in a subsequent 3.850 proceeding, because the rule expressly provides that a motion to vacate a sentence which exceeds the limits provided by law may be filed at any time).

See also Ospina v. State, 579 So.2d 810, 811 (Fla. 5th DCA 1991) (a challenge to an illegal sentence may be brought at any time).


Context: In this case, no analysis of the circumstances surrounding the issuance and acquisition of the certificate was used to substantiate the conclusion that the time lapse was unreasonable as a matter of law. We conclude that the district court should have examined such circumstances as the nature of the instrument, trade usage and custom, the use of the certificate as collateral for an obligation of somewhat indefinite duration, statements made by Candy or INA to plain tiff about the certificate, the fact that the instrument bore interest only until October 1976, and INA's retention of the document as late as June 1978 with no apparent concern for whether interest accrued.

"maturity" of certificate of deposit relates only to the question of interest

See Jennings v. Imperial Bank, 87 Cal.App.3d 896, 152 Cal.Rptr. 15 (1978) (“maturity” of certificate of deposit relates only to the question of interest); Easley, 138 Tenn. at 371, 198 S.W. at 67; §§ 1-204(2), 3-503(2); Annot., 10 A.L.R.3d 1199 (1966); see also National Mechanics Bank v. Schmelz National Bank, 136 Va. 33, 116 S.E. 380, 382 (1923) (certified check held pending performance of contract and negotiated immediately after performance was not negotiated an unreasonable length of time after issue).


Context: Courts of Appeals have generally distinguished between the general pointing or waving about of a weapon, which amounts to "brandishing," and the pointing of a weapon at a specific victim or group of victims to force them to comply with the robber's demands. In essence, "brandishing" constitutes an implicit threat that force might be used, while a weapon is "otherwise used" when the threat becomes more explicit.

gun was "otherwise used" to force victims to move, despite lack of evidence regarding physical contact with victims or use of verbal threats

See United States v. Gilkey, 118 F.3d 702, 705-06 (10th Cir.1997) (gun was “otherwise used” to force victims to move, despite lack of evidence regarding physical contact with victims or use of verbal threats); United States v. Elkins, 16 F.3d 952 (8th Cir.1994) (knife was “otherwise used” to force victim to move); United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991) (knife was “otherwise used” when intentionally held to victim’s throat as robber made verbal threats); United States v. Burton, 126 F.3d 666, 669 (5th Cir.1997) (gun was “otherwise used” when pointed at victims during bank robbery to ensure their compliance).

pointing firearms at customers during bank robbery, ordering them to floor, and threatening to kill them if they did not comply amounted to "brandishing"

But see United States v. Matthews, 20 F.3d 538 (2d Cir.1994) (pointing firearms at customers during bank robbery, ordering them to floor, and threatening to kill them if they did not comply amounted to “brandishing”).


knife was "otherwise used" when intentionally held to victim's throat as robber made verbal threats


gun was "otherwise used" when pointed at victims during bank robbery to ensure their compliance


Context: The statements that the Rieger Note-holders characterize as "statements of existing fact", Rieger Noteholders Consolidated Response to Motion to Dismiss at 19 -- that "Livent remains a viable company financially and is operationally and creatively very strong," and "[t]he company now has greater potential than ever before" -- are statements "about the state of a company whose truth or falsity [are] discernible only after [they are] made [and] necessarily refer[] only to future performance."

state-ments that company "is poised to become," "has the inside track," and that its "revenue and earnings potential is clearly huge" are forward looking

Harris v. Ivax Corp., 182 F.3d 799, 805 (11th Cir.1999)(statements that “fundamental business and its underlying strategies remain intact” and “IVAK is certainly well positioned” are forward looking); see also Fellman v. Electro Optical Sys. Corp., No. 98 Civ. 6403, 2000 WL 489713, *4 (S.D.N.Y. Apr.25, 2000)(state-ments that company “is poised to become,” “has the inside track,” and that its “revenue and earnings potential is clearly huge” are forward looking).

statements that "fundamental business and its underlying strategies remain intact" and "IVAK is certainly well positioned" are forward looking


Context: See, e.g., Michigan Chemical Corp. v. Am. Home Assur. Additionally, this construction avoids the necessity of disregarding the first paragraph of the definition that refers to "... multiple, ... sporadic or related acts of sexual abuse or molestation," which the Court has found plainly covers both related and unrelated acts.

See City of Homestead v. Johnson, 760 So.2d 80, 83 (Fla.2000) (stating that pursuant to Florida contract law “any ambiguity in the terms should be resolved in favor up upholding the purpose of the agreement and giving effect to every term in the agreement”); See also Sugar Cane Growers Coop, of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999) (holding that contracts should be interpreted to give effect to all provisions); Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963) (stating that “[a]ll the various provisions of a contract must be so construed, if it can reasonably be done, as to give effect to each”). Accordingly, the Court finds that the deemer clauses and the definition of “sexual abuse occurrence” address unrelated issues and therefore, all of Gordon’s acts of sexual abuse or molestation of A.N. and J.J., related or not, comprise one “sexual abuse occurrence” within the meaning of the TIG policy.

stating that pursuant to Florida contract law "any ambiguity in the terms should be resolved in favor up upholding the purpose of the agreement and giving effect to every term in the agreement"


stating that "[a]ll the various provisions of a contract must be so construed, if it can reasonably be done, as to give effect to each"


Context: . We note that several federal appellate courts have assumed that Batson has applicability to racial or ethnic groups other than black Americans.

Cf. Roman v. Abrams, 822 F.2d 214, 227 (2d Cir.1987) (under the Sixth Amendment, whites are a cognizable group for Batson analysis), petition for cert. filed, (U.S. Dec. 12, 1987) (No. 87-6031).

See e.g., United States v. Alcantar, 832 F.2d 1175, 1180 (9th Cir.1987) (applying Batson to a challenge that Hispanic-Americans were improperly excluded from jury service); United States v. Chalan, 812 F.2d 1302, 1313-14 (10th Cir.1987) (applying Batson to a challenge that Native Americans were improperly excluded from jury service).


applying Batson to a challenge that Native Americans were improperly excluded from jury service


Context: In this instance, analysis under two of three Lopez categories (one and three) is appropriate. Lopez category two does not apply because section 9(a)(1) of the ESA is not a regulation of the instrumentalities of interstate commerce or of persons or things in interstate commerce.

rejecting notion that endangered species of fly found only in California was "thing in interstate commerce," in action challenging constitutionality of "taking" provision of ESA

National Ass’n of Home Builders, 130 F.3d at 1046 (rejecting notion that endangered species of fly found only in California was “thing in interstate commerce,” in action challenging constitutionality of “taking” provision of ESA). Although Edwards species are captured, shipped to and traded among various museums and zoos, this is not sufficient to make the them instrumentalities or things in interstate commerce.

See also Lopez, 514 U.S. at 559, 115 S.Ct. 1624 (rejecting application of Lopez prong two to Gun-Free School Zones Act, despite the fact that the regulated guns likely traveled through interstate commerce).


Context: While we are convinced that a utility board's right to substantive, municipal immunity is a question of whether "(1) the entity is created directly by the [municipality], so as to constitute a department or administrative arm of the [municipality], or (2) the entity is administered by individuals who are controlled by public officials and responsible to such officials or [who are controlled by and responsible to] the general public," C. Keating and J. Perkowitz-Solheim, McQuillin's Law of Municipal Corporations SS 53.05b (3d ed,, 1984 & 1991 Cum.Supp.), we do not find it necessary to address this issue in this case. Because Hilliard sued the Utility Board for negligence not involving a negligent inspection, he has effectively circumvented any available substantive immunity.

asserting that SS 11-47-190 allows suits against a municipality only for negligence of an agent, employee, or officer acting within the line and scope of his duty, or for the municipality's failure to remedy a defect in its streets, alleyways, or buildings after notice of such defect or a reasonable time for such notice to be imputed

See, Hillis v. City of Huntsville, 274 Ala. 663, 151 So.2d 240 (1963) (asserting that § 11-47-190 allows suits against a municipality only for negligence of an agent, employee, or officer acting within the line and scope of his duty, or for the municipality's failure to remedy a defect in its streets, alleyways, or buildings after notice of such defect or a reasonable time for such notice to be imputed); see also, Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975) (largely abrogating substantive, municipal immunity, and declaring § 11-47-190, Ala.Code 1975, to be the policy of this state regarding municipal immunity); and Rich v. City of Mobile, 410 So.2d 385 (Ala.1982) (declaring that negligent inspections are not covered by the negligence exception to municipal immunity stated in § 11-47-190), and Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991) (following Rich in holding that the City enjoyed substantive immunity for an alleged negligent inspection).

largely abrogating substantive, municipal immunity, and declaring SS 11-47-190, Ala.Code 1975, to be the policy of this state regarding municipal immunity


Context: (Dkt. No. 345, Ex. 1 at APP00007; Dkt. No. 349, Ex. 42 at APP00963.). The parties do not insinuate that the language set forth above is ambiguous. Therefore, because the provision is not ambiguous, the Court will employ the plain meaning of its terms.

reasoning that exclusionary language is unambiguous and both phrases -- "profit or advantage" and "legally entitled" -- have been applied by courts without explanation or difficulty

See Am. States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir.1998) (when exclusion is susceptible to one interpreta tion, courts employ the exclusion as written); see also National Union Fire Ins. Co. of Pittsburgh, PA v. U.S. Bank, Nat. Ass’n, 4:07-CV-1958, 2008 WL 2405975, *1 (S.D.Tex. June 11, 2008) (reasoning that exclusionary language is unambiguous and both phrases — “profit or advantage” and “legally entitled” — have been applied by courts without explanation or difficulty).


Context: Most courts construing IIRIRA have held that SS 1252(g) completely divests a district court of statutory jurisdiction to review decisions by the Attorney General arising out of deportation proceedings.

"IIRIRA now undisputably deprives both district courts and courts of appeals of jurisdiction to decide the instant action [arising from the 'decision or action' of the Attorney General to execute a removal order]."

See, e.g., Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C.Cir.1997), (“IIRIRA now undisputably deprives both district courts and courts of appeals of jurisdiction to decide the instant action [arising from the ‘decision or action’ of the Attorney General to execute a removal order].”), petition for cert. filed, 66 U.S.L.W. 3264 (1997) (No. 97-52); Safarian v. Reno, 968 F.Supp. at 1105 (“Generally, § 1252 has been held to divest the district court completely of all jurisdiction to review alien’s claims.”) (citing cases); Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997) (“IIR[IR]A abolishes even review under § 2241, leaving only the constitutional writ, unaided by statute.”), cert. denied sub nom. Katsoulis v. INS, — U.S. —, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997).

holding that IIRIRA does not remove statutory habeas jurisdiction because it does not contain express language repealing SS 2241 and because to do so would violate the separation of powers doctrine

But see Mojica v. Reno, 970 F.Supp. 130, 157 (E.D.N.Y.1997) (holding that IIRIRA does not remove statutory habeas jurisdiction because it does not contain express language repealing § 2241 and because to do so would violate the separation of powers doctrine); Ozoanya v. Reno, 968 F.Supp. 1, 6-7 (D.D.C.1997) (“[T]he vague and uncertain language of Section 306(a)(2) of the IIRIRA (“except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear ...”) does not eliminate the recognized jurisdiction of the district courts under 28 U.S.C. § 2241 to hear habeas corpus claims of any person in custody, including deportable aliens.”).


"Generally, SS 1252 has been held to divest the district court completely of all jurisdiction to review alien's claims."


"IIR[IR]A abolishes even review under SS 2241, leaving only the constitutional writ, unaided by statute."


Context: Accordingly, because the Board erred by failing to provide Mrs. Reliford with the opportunity to waive substitution and prejudiced her by failing to adjudicate her accrued-benefits claim against the proper factual background, the Board decision on appeal will be set aside and remanded for adjudication of Mrs. Reliford's claim based on the file as it existed at the time of her husband's death.

holding the Board must either obtain a waiver or determine whether a claimant will be prejudiced by the Board's adjudication of a question or issue in an appeal not otherwise decided by the RO, otherwise it must remand for the RO to decide' the question in the first instance

See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where, inter alia, “the Board has incorrectly applied the law”); see also Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (holding the Board must either obtain a waiver or determine whether a claimant will be prejudiced by the Board’s adjudication of a question or issue in an appeal not otherwise decided by the RO, otherwise it must remand for the RO to decide' the question in the first instance); cf. Beverly v. Nicholson, 19 Vet.App. 394, 405-06 (2005) (holding that the “existence of our jurisdiction turns on whether the claim was reasonably raised to the Board” and remanding for determination of whether the claim was reasonably raised, when there was an evi-dentiary factual basis therefor).

holding that remand is the appropriate remedy where, inter alia, "the Board has incorrectly applied the law"


holding that the "existence of our jurisdiction turns on whether the claim was reasonably raised to the Board" and remanding for determination of whether the claim was reasonably raised, when there was an evi-dentiary factual basis therefor


Context: In order to qualify as third-party beneficiaries to a government contract, the parties must show that the United States waived its defense of sovereign immunity. The court's Tucker Act jurisdiction extends only to plaintiffs in privity of contract with the Government.

holding that "for the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States"

Chancellor Manor, 331 F.3d at 899 (holding that “for the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States”); see Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed.Cir.1994) (holding that “[a]bsent privity between [plaintiffs] and the government, there is no ease”).

holding that "[a]bsent privity between [plaintiffs] and the government, there is no ease"


Context: Most--though not all--jurisdictions that have adopted statutes based upon the Model Penal Code provision, consistent with the Code's commentary, construe these statutes to exclude punishment for mere flight.

stating that leading police on a chase in Arizona was not resisting arrest under "a common sense application of the ordinary meaning of the statutory language"

See, e.g., Womack, 847 P.2d at 611-13 (stating that leading police on a chase in Arizona was not resisting arrest under “a common sense application of the ordinary meaning of the statutory language”); see also Howard v. State, 101 P.3d 1054, 1058 (Alaska Ct.App.2004) (holding that fleeing from officers and hiding in the woods did not constitute resisting arrest); State v. Crane, 46 Or.App. 547, 612 P.2d 735, 738-39 (1980) (reiterating that “[o]nly the use or the threatened use of violence or physical force which creates a substantial risk of physical injury is prohibited; neither flight to avoid arrest nor passive resistance have been made crimes”); In re Woodford, 420 Pa.Super. 179, 616 A.2d 641, 644 (1992) (holding that “it is equally well-established that a suspect’s mere flight to escape arrest does not violate” the resisting arrest statute).


holding that "it is equally well-established that a suspect's mere flight to escape arrest does not violate" the resisting arrest statute


holding that a fleeing suspect created a "substantial risk of bodily injury" to officers when he ran from officers and scaled a fence abutting the precipice of a canal in dim light

But see Commonwealth v. Montoya, 457 Mass. 102, 928 N.E.2d 317, 320 (2010) (holding that a fleeing suspect created a “substantial risk of bodily injury” to officers when he ran from officers and scaled a fence abutting the precipice of a canal in dim light).


Context: Because counsel has provided sufficient detail for the time spent, this court can determine the reasonableness of the fee request in much the same way we analyze and evaluate requests for time spent on appeal when counsel requests payment under the Criminal Justice Act (CJA), 18 U.S.C. SS 3006A. Both the EAJA and the CJA application requests incorporate the requirement that the time be reasonably expended. In addition, plaintiff has attached to her brief all the actual documents produced as the result of counsel's labors.

See Weakley v. Bowen, 803 F.2d 575, 579-80 (10th Cir.1986) (appellate court awards EAJA fees for 11.25 hours in district court and 56 hours on appeal as reasonable amounts); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir.1986) (awarding attorney fees for four hours of post-trial work, rather than remanding matter to district court); cf. Cooper v. United States R.R. Ret. Bd., 24 F.3d 1414, 1417-18 (D.C.Cir.1994) (evaluating reasonableness of fees sought in EAJA application submitted to circuit court).


awarding attorney fees for four hours of post-trial work, rather than remanding matter to district court


Context: Whether a law falls within the City's police powers does not depend on the lawmakers' subjective intent or the parsing of their proffered or true motives. Rather, the test is whether the law bears a reasonable relationship to the health, safety or welfare of the community, which waste disposal plainly does.

invalidating a town law requiring certain applicants for building permits to pay fees that go toward capital improvements to and expansions of state and local transportation infrastructure, noting that the relationship between the law and the presumed purpose of promoting public safety was "tenuous" and that the law was instead "aimed at raising revenues"

See Good Humor Corp., 49 N.E.2d at 155-56 (holding that the “[t]he statement of the purpose of the [law in question] in the committee report is not conclusive” and reiterating that the question is whether the law is “reasonably calculated” to achieve a legitimate police power purpose); cf. Albany Area Builders Ass’n, 534 N.Y.S.2d at 794 (invalidating a town law requiring certain applicants for building permits to pay fees that go toward capital improvements to and expansions of state and local transportation infrastructure, noting that the relationship between the law and the presumed purpose of promoting public safety was “tenuous” and that the law was instead “aimed at raising revenues”).

holding that the "[t]he statement of the purpose of the [law in question] in the committee report is not conclusive" and reiterating that the question is whether the law is "reasonably calculated" to achieve a legitimate police power purpose


Context: A preliminary injunction is not warranted unless the trial court finds that the moving party has demonstrated each of the Rathke factors.

"sinee all the necessary criteria were not established, entry of the preliminary injunction ... was error"

Rathke v. MacFarlane, supra, 648 P.2d at 654 (“If each criterion cannot be met, injunctive relief is not available.”); see also Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789, 796 (Colo.App.2001)(“sinee all the necessary criteria were not established, entry of the preliminary injunction ... was error”).

"If each criterion cannot be met, injunctive relief is not available."


Context: This is not to say that the statutory cap is completely irrelevant to the constitutionality analysis, at least in light of the decision of the Ninth Circuit Court of Appeals in Zhang. That decision suggests that Title VII's statutory cap substitutes for a comparable civil penalty, the third BMW factor, as a yardstick of constitutionality of a punitive damages award in discrimination cases.

See Zhang, 339 F.3d at 1045 (using Title VII’s statutory cap as a comparator in a § 1981 discrimination case, because there was no civil penalty for discrimination claims, and the statutory cap represented a legislative judgment similar to a civil penalty); see also Abner, 513 F.3d at 164 (holding that the combination of the statutory cap and a high threshold for culpability for punitive damages in a Title VII case confined a punitive damages award within the cap to a level tolerated by due process).

using Title VII's statutory cap as a comparator in a SS 1981 discrimination case, because there was no civil penalty for discrimination claims, and the statutory cap represented a legislative judgment similar to a civil penalty


Context: (Doe. 87 at 5 n.2; Doc. 73.) See Int'l Union, United Auto., Aerospace and Agr.

"injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf'

Implement Workers of Am. v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986) (“injury to an organization’s members will satisfy Article III and allow that organization to litigate in federal court on their behalf’); Hunt v. Washington State Apple Adver.

organizational standing, in comparison to representational standing by an organization, turns on "whether the organization itself has suffered an injury in fact"

Comm’n, 432 U.S. 333, 342, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (“an. association may have standing solely a? the representative of its members”); Colwell v. Dept. of Health and Human Servs., 558 F.3d 1112, 1121 (9th Cir.2009); cf. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1101 (9th Cir.2004) (organizational standing, in comparison to representational standing by an organization, turns on “whether the organization itself has suffered an injury in fact”) (emphasis added).


"an. association may have standing solely a? the representative of its members"


Context: Most state courts that have decided this question have applied a similar rule under their presentence credit statutes.

even though defendant was incarcerated in another state on unrelated charges, he is entitled to credit for time served in that state from the date that Michigan authorities placed a "hold" on him

But see People v. Ranson, 153 Mich. App. 157, 161, 395 N.W.2d 271, 273 (1986) (even though defendant was incarcerated in another state on unrelated charges, he is entitled to credit for time served in that state from the date that Michigan authorities placed a “hold” on him).

where defendant was in custody of other states on charges brought in those states, "holds" placed by Arizona were irrelevant under sentence credit statute because defendant was never able to satisfy conditions of release imposed by other states

See State v. Horrisberger, 133 Ariz. 569, 570, 653 P.2d 26, 27 (Ct. App. 1982) (where defendant was in custody of other states on charges brought in those states, “holds” placed by Arizona were irrelevant under sentence credit statute because defendant was never able to satisfy conditions of release imposed by other states); State v. Akbar, 419 N.W.2d 648, 650 (Minn. Ct. App. 1988) (sentence credit is not allowed for time spent in out-of-state incarceration unless such incarceration is solely in connection with the Minne sota offense) (citing State v. Brown, 348 N.W.2d 743, 748 (Minn. 1984)); Keffer v. Reid, 100 A.D.2d 549, 550, 473 N.Y.S.2d 479, 480 (1984) (where defendant seeks sentence credit for jail time spent in another jurisdiction, he must demonstrate that the custody resulted solely from a New York detainer); and Commonwealth v. Bortner, 230 Pa. Super, 64, 67, 326 A.2d 622, 623 (1974) (if defendant is detained in another state solely by reason of Pennsylvania charge and not by reason of separate charges in the other state, then he is entitled to presentence credit).


sentence credit is not allowed for time spent in out-of-state incarceration unless such incarceration is solely in connection with the Minne sota offense


where defendant seeks sentence credit for jail time spent in another jurisdiction, he must demonstrate that the custody resulted solely from a New York detainer


if defendant is detained in another state solely by reason of Pennsylvania charge and not by reason of separate charges in the other state, then he is entitled to presentence credit


Context: Despite the broad nature of this example, the Court finds Whitfield also has not met her burden of proving she is substantially limited in the major life activity of work. While the record contains evidence of Whitfield's medical limitations, there exists nothing connecting those limitations to ability to perform other jobs in the community. The general statement in the Interpretive Guidelines about back injuries, in isolation, cannot boost Whitfield over the summary judgment hurdle.

Cf. McKay v. Toyota Motor Mfg., 110 F.3d 369 (6th Cir.1997) (holding plaintiff with carpal tunnel syndrome who could not perform heavy lifting failed to meet burden of establishing substantial limitation in major life activity of work); Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir.1994) (same, where plaintiff was restricted in lifting and standing); Corrigan v. Perry, 961 F.Supp. 132 (E.D.Va.1997) (same, where plaintiff suffered lifting restrictions); but see Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir.1996) (finding an issue of fact existed as to disability of employee who injured shoulder, in light of the back injury example in the Interpretive Guidelines).


Context: As its primary basis for upward departure, the district court relied on USSG SS 5K2.14, which states that "if national secu rity, public health, or safety was significantly endangered, the Court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense." That requires a court to look at the offense committed and the dangerousness of the defendant at the time of the crime, not the future dangerousness of the defendant.

reviewing upward departure under SS 5K2.14 for endangering human life while manufacturing a controlled substance

See, e.g., United States v. Jennings, 83 F.3d 145 (6th Cir.1996) (reviewing upward departure under § 5K2.14 for endangering human life while manufacturing a controlled substance); United States v. McDowell, 902 F.2d 451 (6th Cir.1990) (same, for creating a threat to public safety by running a crack house); but see United States v. Joan, 883 F.2d 491 (6th Cir.1989) (affirming § 5K2.14 upward departure for recidivist defendant whom judge found “would continue to pose a serious threat to the safety of whatever community he is in”).

affirming SS 5K2.14 upward departure for recidivist defendant whom judge found "would continue to pose a serious threat to the safety of whatever community he is in"


same, for creating a threat to public safety by running a crack house


Context: The issue of waiver is generally one of fact for the jury, in particular where acts and conduct are relied upon as the basis for the waiver.

Continental Casualty Co., 258 Iowa at 661, 140 N.W.2d at 130; Williams v. Stroh Plumbing & Electric, Inc., 250 Iowa 599, 602, 94 N.W.2d 750, 753 (1959) (question of fact whether failure to respond to monthly billing statements constituted waiver of right to offset claim against account billed); see Iowa Grain v. Farmers Grain and Feed Co., 293 N.W.2d 22, 25 (Iowa 1980) (fact issue whether commodity account holder’s response to margin calls waived prior breach by broker); Pond v. Anderson, 241 Iowa 1038, 1041, 1044, 44 N.W.2d 372, 374, 376 (1950) (jury question whether disputed phone conversations constituted waiver); cf. Travelers Indemnity Co. v. Fields, 317 N.W.2d at 186 (fact issue where evidence raises question of voluntariness of act purported to constitute waiver).

fact issue whether commodity account holder's response to margin calls waived prior breach by broker


fact issue where evidence raises question of voluntariness of act purported to constitute waiver


Context: Perhaps for that reason, in recent years courts in other jurisdictions have held that, even prior to the filing of a motion for class certification, an offer of judgment for the full amount of the putative representative's individual claim does not automatically moot the class claims.

E.g., Pitts v. Terrible Herbst, Inc. 653 F.3d 1081 (9th Cir.2011); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir.2011); Weiss v. Regal Collections, 385 F.3d 337 (3d Cir.2004); Jackson v. Southern Auto Finance, 988 So.2d 721 (Fla.Ct.App. 2008); cf. Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir.2008) (offer of judgment to representative plaintiff does not moot proposed “collective action” under federal Fair Labor Standards Act); but see Barber v. American Airlines, Inc., 241 Ill.2d 450, 350 Ill.Dec. 535, 948 N.E.2d 1042, 1046 (2011) (tender of individual relief to prospective class representative prior to filing of motion for class certification required dismissal of complaint).

offer of judgment to representative plaintiff does not moot proposed "collective action" under federal Fair Labor Standards Act


Context: . Our experience is consistent with that of the First, Fifth and Seventh Circuits.

See Audette v. Isaksen Fishing Corp., 789 F.2d 956, 958 (1st Cir.1986) (quoting Shepherd)', United States v. Shepherd, 576 F.2d 719, 724-25 (7th Cir.1978) ("Experience teaches, however, that, the likelihood of ... a change of mind [during polling] is remote.”); Martin v. United States, 182 F.2d 225, 227 (5th Cir.1950) ("The right of a defendant to poll the jury is of course recognized and long established, but from a practical standpoint, experience of the years has shown that its benefit to a defendant in effecting a change or modification of the jury’s verdict is substantially nonexistent.”); see also Rice I, 757 P.2d at 910 (although there was a possibility Rice's presence would have caused a juror to change his vote, it wasn't "reasonably probable").

"Experience teaches, however, that, the likelihood of ... a change of mind [during polling] is remote."


"The right of a defendant to poll the jury is of course recognized and long established, but from a practical standpoint, experience of the years has shown that its benefit to a defendant in effecting a change or modification of the jury's verdict is substantially nonexistent."


Context: The prior art need not present the invention in a positive light, so long as all claims are explicitly or inherently contained in the publication.

"The law of anticipation does not require that the reference 'teach' what the subject patent teaches."

See Celeritas, 150 F.3d at 1361 (“A reference is no less anticipatory if, after disclosing the invention, the reference then disparages it .... the question of whether a reference ‘teaches away’ from the invention is inapplicable to an anticipation analysis.”); see also Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 (Fed.Cir.1983), overruled on other grounds, SRI Intern, v. Matsushita Elec. Corp., 775 F.2d 1107 (Fed.Cir.1985) (“The law of anticipation does not require that the reference ‘teach’ what the subject patent teaches.”); Merck & Co. v. Mylan Pharm., Inc., 19 F.Supp.2d 334, 345-46 (E.D.Pa.1998); see generally Lance L. Barry, Teaching A Way Is Not Teaching Away, 79 J. Pat. & Trade. Off. Soc’y 867, 869 (1997) (a reference teaches away when “it suggests that the line of development flowing from the reference’s disclosure is unlikely to be productive of the result sought by the applicant.”).

"A reference is no less anticipatory if, after disclosing the invention, the reference then disparages it .... the question of whether a reference 'teaches away' from the invention is inapplicable to an anticipation analysis."


Context: A judge's state of mind cannot be explored by a litigant, as can a prospective juror's attitudes at voir dire. Therefore, in applying the former standard of "affirmative showing of prejudice," this court has required an actual statement by the challenged judge demonstrating bias.

judge's statement that his general impression 12 years before trial was that prosecutors thought defendant was guilty does not establish bias where judge could no longer remember facts of case

See Yeager, 399 N.W.2d at 652 (litigant failed to show prejudice by not demonstrating challenged judge made a derogatory remark); cf. Nachtsheim v. Wartnick, 411 N.W.2d 882, 890-91 (Minn.App.1987) (judge’s statement that his general impression 12 years before trial was that prosecutors thought defendant was guilty does not establish bias where judge could no longer remember facts of case), pet. for rev. denied (Minn. Oct. 28, 1987).


Context: Reading the record as whole, we hold that substantial evidence amply supports the IJ's adverse credibility finding, and we affirm the denial of relief on that basis.

See Wu Biao Chen v. INS, 344 F.3d 272, 276 (2d Cir.2003) (per curiam) (affirming the denial of asylum and withholding of removal where petitioner had failed to overcome an adverse credibility finding); see also Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir.2004) (noting that an adverse credibility finding dooms an asylum claim).


Context: . Although the parties' briefing focuses on the contours of deliberate indifference, the court notes that an actionable Eighth Amendment violation also involves an objective inquiry, namely the seriousness of the inmate's medical need.

McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992) ("A determination of 'deliberate indifference’ involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant’s response to that need.”), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997); see also Clement, 298 F.3d at 904 (discussing both the objective and subjective elements of an Eighth Amendment claim).

"A determination of 'deliberate indifference' involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need."


Context: .Other courts have held that a state conviction that has been vacated because of the constitutional invalidity of a plea should not be counted for purposes of the Guidelines.

vacating denial of SS 2255 petition and remanding for resentenc-ing where state conviction that was set aside after federal sentencing based upon constitutional invalidity of guilty plea was "expunged" and should not have been included in calculating criminal history points

See, e.g., United States v. Mobley, 96 Fed.Appx. 127, 129 (4th Cir.2004) (vacating denial of § 2255 petition and remanding for resentenc-ing where state conviction that was set aside after federal sentencing based upon constitutional invalidity of guilty plea was "expunged” and should not have been included in calculating criminal history points); LaValle, 175 F.3d at 1108 (holding that court should have granted § 2255 petition where state conviction used to enhance federal sentence was vacated based on invalidity of plea); United States v. Lopez, No. Crim. 03-302, 2004 WL 2414843, at *2 (D.Minn. Oct 18, 2004) (finding it impermissible to count state conviction for federal sentencing purposes where guilty plea was withdrawn based on invalidity of plea, finding of guilt was withdrawn, and charge was dismissed).

affirming allowance of SS 2255 motion after defendant successfully attacked prior state conviction used to enhance federal sentence

See also Walker, 198 F.3d at 813-14 (affirming allowance of § 2255 motion after defendant successfully attacked prior state conviction used to enhance federal sentence); Candelaria, 247 F.Supp.2d at 134 (granting § 2255 motion after state conviction, which served as a predicate offense for USSG § 4B1.1 purposes, had been vacated).


granting SS 2255 motion after state conviction, which served as a predicate offense for USSG SS 4B1.1 purposes, had been vacated


holding that court should have granted SS 2255 petition where state conviction used to enhance federal sentence was vacated based on invalidity of plea


finding it impermissible to count state conviction for federal sentencing purposes where guilty plea was withdrawn based on invalidity of plea, finding of guilt was withdrawn, and charge was dismissed


Context: Moreover, the view of this court has long been that Zinermon is best viewed as a case where the state statutory scheme conferred so much discretion on state officials so as to authorize the state officials' actions in deprivation of procedural rights.

in Zinermon "the procedure was itself authorized by state law"

See Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir.1998) (in Zinermon “the procedure was itself authorized by state law”); see also Mard v. Town of Amherst, 350 F.3d 184, 194 n. 4 (1st Cir.2003) (same); O’Neill v. Baker, 210 F.3d 41, 50 (1st Cir.2000) (“In Herwins, we viewed Zinermon as a case in which state law did authorize the procedure followed (albeit unconstitutionally), so that the act of the officials could not be described as ‘random and unauthorized’ .... ”).

"In Herwins, we viewed Zinermon as a case in which state law did authorize the procedure followed (albeit unconstitutionally


Context: The statute itself is silent on the type of proof required. It certainly does not require either a "spoken understanding" or any other direct evidence of a violation. In the absence of explicit statutory direction, it has long been established that circumstantial evidence is competent to establish the elements of a crime, including intent.

"It is too well settled to require citation of authorities that any material fact may be proved by circumstantial evidence, as well as by direct evidence."

See Moorman v. State, 157 Fla. 267, 25 So.2d 563, 564 (1946) (“It is too well settled to require citation of authorities that any material fact may be proved by circumstantial evidence, as well as by direct evidence.”); see also State v. Waters, 436 So.2d 66, 71 (Fla.1983) (“The element of intent, being a state of mind, often can only be proved by circumstantial evidence.”), cited in Gerren, 604 So.2d at 520. Moreover, Florida courts have regularly reviewed bribery and unlawful compensation cases for the legal sufficiency of the circumstantial evidence to support the charges, without requiring direct evidence.

"The element of intent, being a state of mind, often can only be proved by circumstantial evidence."


Context: In determining whether a private citizen acted as a government agent, we consider "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private actor's purpose was to assist law enforcement efforts rather than to further his own ends." As part of our inquiry, we also consider whether the government "openly encouraged or cooperated in the search."

affirming denial of a motion to suppress in part because nothing evidenced that the government openly encouraged or cooperated in the private citizen's search

See United States v. Ford, 765 F.2d 1088, 1090 (11th Cir.1985) (affirming denial of a motion to suppress in part because nothing evidenced that the government openly encouraged or cooperated in the private citizen’s search); see also United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.1996) (noting that the “knowledge and acquiescence” criteria “encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action.”).

noting that the "knowledge and acquiescence" criteria "encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action."