Context: To the extent the Plaintiff continues to seek to pursue this claim, the Court finds that there are no facts alleged or evidence put forth that supports a claim of gender discrimination as a result of the claimed retaliatory actions taken by the County Defendants, including Geier. In any event, the Second Circuit has explained, albeit in the racial discrimination context, that no such cause of action exists.

"[ajlthough claims of retaliation are commonly brought under the First Amendment ... and may also be brought under Title VII ... we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination."

Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996) (“[ajlthough claims of retaliation are commonly brought under the First Amendment ... and may also be brought under Title VII ... we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination.”); see also Ratliff v. DeKalb County, 62 F.3d 338, 340-41 (11th Cir.1995) (finding no established right under the equal protection clause to be free from retaliation for complaints of gender discrimination); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.1989) (“[R]ight to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause.”); Lange v. Town of Monroe, 213 F.Supp.2d 411, 419 (S.D.N.Y.2002) (“defendants’ alleged retaliation in response to plaintiffs sexual harassment complaints is not cognizable as an equal protection violation.”).


"[R]ight to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause."


"defendants' alleged retaliation in response to plaintiffs sexual harassment complaints is not cognizable as an equal protection violation."


Context: Leave to amend will not be granted. "Though leave to amend should be freely given in the interest of justice, Fed.R.Civ.P. 15(a), the motion is committed to the district court's sound discretion." "The court may deny leave to amend, among other reasons, on the basis of the futility of the amendment."

Id. (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (other reasons include undue delay, bad faith or dilatory motive, and undue prejudice to opposing party); Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir.1989)); see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000) (“ ‘Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted.”). “An amendment is futile if the amended complaint cannot withstand a motion to dismiss.” Id. at 954; see also Shane, 213 F.3d at 115 (“In assessing ‘futility,’ the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).

" 'Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted."


"In assessing 'futility,' the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6


Context: Had the court questioned Juror One regarding her ability to remain impartial, I might agree. In any event, our precedents require a meaningful opportunity to prove actual bias in an evidentiary hearing.

holding that the district court "should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a #hearing with all interested parties permitted to participate"

See Corrado, 227 F.3d at 536 (holding that “district court abused its discretion by failing to conduct an adequate evidentiary hearing into the allegations of extraneous influences on the jury pursuant to the holding in Remmer ” and remanding for a hearing at which the defendant “should be accorded the opportunity to question the jurors individually and under Qath”); Herndon, 156 F.3d at 637 (holding that “the district court must provide the defendant a meaningful opportunity to prove [juror bias]”); United States v. Walker, 1 F.3d 423, 431 (6th Cir.1993) (“By denying the reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias----”); see also Remmer, 347 U.S. at 230, 74 S.Ct. 450 (holding that the district court “should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a ■hearing with all interested parties permitted to participate”).

holding that "district court abused its discretion by failing to conduct an adequate evidentiary hearing into the allegations of extraneous influences on the jury pursuant to the holding in Remmer " and remanding for a hearing at which the defendant "should be accorded the opportunity to question the jurors individually and under Qath"


holding that "the district court must provide the defendant a meaningful opportunity to prove [juror bias]"


"By denying the reasonable request to inquire into the jurors' states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias----"


Context: However, a defendant's due process rights are not violated by a good-faith "battle of the experts." That Pandeli's experts disagreed with Dr. Bayless's diagnosis merely goes to the weight and credibility of Dr. Bayless's opinion, matters reserved for the fact-finder's consideration and determination.

finding that disputed facts in the ease "were either not relied upon by [the expert] in reaching his opinion, or were immaterial to his opinion, or were legitimately contested facts and evidence ... that supported [the expert's] version," and that the trial court properly left it to the jury to assign weight to that testimony

See State v. Romero, 239 Ariz. 6, 12 ¶ 27, 365 P.3d 358, 364 (2016) (“[W]e have recognized that a trial court’s admission of disputed expert testimony leaves to the fact-finder the role of assessing its weight and credibility.”); see also State v. Lajeunesse, 27 Ariz.App. 363, 368, 555 P.2d 120, 125 (1976) (finding that disputed facts in the ease “were either not relied upon by [the expert] in reaching his opinion, or were immaterial to his opinion, or were legitimately contested facts and evidence ... that supported [the expert’s] version,” and that the trial court properly left it to the jury to assign weight to that testimony).

"[W]e have recognized that a trial court's admission of disputed expert testimony leaves to the fact-finder the role of assessing its weight and credibility."


Context: Because Dawson produced no evidence that Samu, Adams and Estep participated or acquiesced in the alleged deprivation of his constitutional rights or inadequately trained or supervised the officers who allegedly did (Bowker and Johnson), the district court did not err in granting summary judgment to these defendants.

"supervisor liability [under SS 1983] requires allegations of personal direction or of actual knowledge and acquiescence"

See McKee, 703 F.2d at 483 (“defendant Heggy is liable to [plaintiff] only if Mr. Heggy participated or acquiesced in [plaintiff]’s deprivation or if he inadequately trained or supervised the officers who did”); see also Woodward v. City of Worland, 977 F.2d 1892, 1400 (10th Cir.1992) (“supervisor liability [under § 1983] requires allegations of personal direction or of actual knowledge and acquiescence”) (quotations omitted).

"defendant Heggy is liable to [plaintiff] only if Mr. Heggy participated or acquiesced in [plaintiff]'s deprivation or if he inadequately trained or supervised the officers who did"


Context: If subsection (10)(b) is read in isolation, it is rendered ambiguous and ineffective because it does not confer a right of redemption nor does it contain any of the essential terms for exercising that right i.e., fair value. Such an absurd reading was not intended and should be avoided by courts when construing a statute. "[Statutes must be con strued as to avoid an unreasonable or absurd result."

"A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage."

Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1032 (Fla. 4th DCA 2000) (noting that “provisions of an act are to be read as consistent with one another”), rev. dismissed, 790 So.2d 1101 (Fla.2001) (citing City of Boca Raton v. Gidman, 440 So.2d 1277, 1281 (Fla.1983)); Pavolini v. Bird, 769 So.2d 410 (Fla. 5th DCA 2000), rev. denied, 790 So.2d 1102 (Fla.2001); Meeks ex rel. Estate of Meeks v. Florida Power & Light Co., 816 So.2d 1125, 1131-33 (Fla. 5th DCA 2002); see also Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir.2002) (citations omitted); United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991) (“A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.”).

noting that "provisions of an act are to be read as consistent with one another"


Context: Second, they argue it is excessive compared to other cases where the plaintiff suffered emotional distress of a magnitude comparable to Wulf s.

See, e.g., Wren v. Spurlock, 798 F.2d 1313 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987) (plaintiff received damages totaling $113,000, a portion of which represented lost income, where her distress was so severe she was unable to work.); see also Spence v. Bd. of Educ., 806 F.2d 1198, 1200-01 (3d Cir.1986) (no recovery for emotional distress where plaintiff testified she was “depressed and humiliated” by retaliatory transfer); Ramsey, 772 F.2d at 1313-14 (and cases cited therein).

no recovery for emotional distress where plaintiff testified she was "depressed and humiliated" by retaliatory transfer


Context: The fact that one of Benson's (suspended) terms of imprisonment was later found to have been imposed in violation of the Double Jeopardy Clause does not mean that the district court did not have subject-matter jurisdiction over his trial.

"[I]f a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction [not in the clear absence thereof] and would be immune."

See Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 357, 20 L.Ed. 646 (1871) (“[The] erroneous manner in which [the court’s] jurisdiction was exercised, however it may have affected the validity of the act, did not ... render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever.”) cited in Stump, 435 U.S. at 359, 98 S.Ct. 1099; cf. id. at 352, 98 S.Ct. 1099 (“[I]f a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction [not in the clear absence thereof] and would be immune.”); United States v. Lawuary, 211 F.3d 372, 380 (7th Cir.2000) (Easterbrook, J., concurring) (stating that laws affecting the maximum length of sentences “are unrelated to subject-matter jurisdiction.”)

"[The] erroneous manner in which [the court's] jurisdiction was exercised, however it may have affected the validity of the act, did not ... render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever."


stating that laws affecting the maximum length of sentences "are unrelated to subject-matter jurisdiction."


Context: It followed a hearing at which the trial court heard evidence on whether to extend the injunctive relief sought by Morgan. See generally OCGA SS 9-11-65 (b) (setting forth procedure by which court conducts hearing to determine whether either to dissolve previously-entered ex parte temporary restraining order or to grant interlocutory injunction). As such, the order's function and substance was to deny Morgan interlocutory injunctive relief pending the litigation of the various claims raised in his complaint and amended complaint.

See Hughey v. Gwinnett County, 278 Ga. 740, 741 (1) (609 SE2d 324) (2004) (when determining whether order is directly appeal-able, we consider its function and substance rather than its nomenclature).

See Ga. Power Co. v. Hunt, 266 Ga. 331 (1) (466 SE2d 846) (1996) (where trial court’s decision effectively denied party’s request for interlocutory injunctive relief, it was the equivalent to a refusal to grant an interlocutory injunction application and was therefore directly appealable under OCGA § 5-6-34 (a) (4)); Spell v. Blalock, 243 Ga. 459, 460-461 (1) (254 SE2d 842) (1979) (trial court’s ruling on whether to continue a restraining order was directly appealable under predecessor to OCGA § 5-6-34 as an exception to the doctrine of finality of judgment); Nat. Hills Exchange v. Thompson, 319 Ga. App. 777-778 (736 SE2d 480) (2013) (trial court’s order extending temporary restraining order in effect granted directly appealable preliminary injunction); see also Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998) (order granting temporary restraining order is directly appealable where it is entered after a lengthy adversary hearing and effectively grants the plaintiff all of the relief sought).


where trial court's decision effectively denied party's request for interlocutory injunctive relief, it was the equivalent to a refusal to grant an interlocutory injunction application and was therefore directly appealable under OCGA SS 5-6-34 (a


trial court's ruling on whether to continue a restraining order was directly appealable under predecessor to OCGA SS 5-6-34 as an exception to the doctrine of finality of judgment


trial court's order extending temporary restraining order in effect granted directly appealable preliminary injunction


Context: Several other circuits have concluded that the Constitution does not require a presumption of bias in situations where jurors have been potentially prejudiced.

Britz v. Thieret, 940 F.2d 226, 232 (7th Cir.1991) (no per se bias when six jurors had heard news accounts reporting defendant’s prior conviction for the same crime and all twelve jurors had admitted some familiarity with the case); United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984) (no per se bias when five jurors reported receiving threatening phone calls during the trial), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985); United States v. Billups, 692 F.2d 320, 325 (4th Cir.1982) (no per se bias when juror concealed information during voir dire about her son’s affiliation with a labor union), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 93 (1983); Rogers v. McMullen, 673 F.2d 1185, 1190 (11th Cir.1982) (no per se bias when seventeen-year-old juror misstated her age during voir dire), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983); contra Government of Virgin Islands v. Parrott, 551 F.2d 553, 554 (3d Cir.1977) (no showing of actual bias required when three jurors had been on a prior jury convicting the same defendant of a similar crime).

no per se bias when six jurors had heard news accounts reporting defendant's prior conviction for the same crime and all twelve jurors had admitted some familiarity with the case


no per se bias when five jurors reported receiving threatening phone calls during the trial


no per se bias when juror concealed information during voir dire about her son's affiliation with a labor union


no per se bias when seventeen-year-old juror misstated her age during voir dire


Context: In this case, the Kays argue that the language is clear, but they further contend that the Partnership's tax sheltering purpose informs the partnership provisions and unequivocally establishes the Note partners' personal liability for calls related to the Notes. The Kays are correct in their assertion that, in order to qualify for a pass-through deduction at the time that the Partnership was formed, the relevant tax laws required a limited partner to be "at risk", i.e., the limited partner had to assume personal and ultimate liability for certain debts.

finding that taxpayers, subchapter S shareholders, as mere guarantors of debt to corporation, were not "at risk," and therefore not entitled to deductions

See Pritchett v. Commissioner, 827 F.2d 644, 646^47 (9th Cir.1987) (finding that limited partner’s obligation to make additional capital contributions under the partnership agreement satisfied the “at risk” requirement of I.R.C. § 465); Gefen v. Commissioner, 87 T.C. 1471, 1499-1502, 1986 WL 22070 (1986) (same, both under I.R.C. § 465 and under § 752); cf. Goatcher v. United States, 944 F.2d 747, 750 (10th Cir.1991) (finding that taxpayers, subchapter S shareholders, as mere guarantors of debt to corporation, were not “at risk,” and therefore not entitled to deductions).

finding that limited partner's obligation to make additional capital contributions under the partnership agreement satisfied the "at risk" requirement of I.R.C. SS 465


same, both under I.R.C. SS 465 and under SS 752


Context: As a matter of law, we note that it is unclear whether the LRRA forbids only intended targeting of RRGs, or whether it also prohibits legislation with an unintended disparate impact. The Supreme Court has indicated that the application of disparate impact theory to a given statute's anti-discrimination provisions is a troublesome question, requiring careful assessment of congressional purpose.

See, e.g., Alexander v. Choate, 469 U.S. 287, 292-99, 105 S.Ct. 712, 715-19, 83 L.Ed.2d 661 (1985)(considering whether to apply disparate impact theory to § 504 of the Rehabilitation Act); cf. Washington v. Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976)(finding of discrimination under Equal Protection Clause generally requires showing of invidious intent).

considering whether to apply disparate impact theory to SS 504 of the Rehabilitation Act


Context: In light of the court's conclusion that plaintiffs showed a likelihood of success on the merits of their claim pursuant to the RFRA, the court will refrain from addressing plaintiffs' claims pursuant to the Free Exercise Clause.

Hagans v. Lavine, 415 U.S. 528, 546 n. 12, 547, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (acknowledging the “ordinary rule that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available”); see Tyndale House, 904 F.Supp.2d at 113 n. 7 (where the court found that the plaintiffs had made a showing of likelihood of success on the merits under the RFRA, as well as strong showings with respect to the other preliminary injunction requirements, it only addressed the merits of the RFRA claim).

acknowledging the "ordinary rule that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available"


Context: Second, the trial court compounded its error by resentencing Thompson in reliance upon the transcript from the August 26, 2016, hearing at which both Thompson and his counsel were absent.

"[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error."

See Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010) (“[W]here a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.”); see also Frison v. State, 76 So.3d 1103, 1104 (Fla. 5th DCA 2011) (stating that full panoply of due process considerations apply at resen-tencing, including appointment of counsel); Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008) (“[T]he defendant has the right to be present and have assistance of counsel at the new sentencing hearing.”).


"[T]he defendant has the right to be present and have assistance of counsel at the new sentencing hearing."


Context: Also, just as in Mastrobuono, the parties here entered into an agreement in which, without the choice-of-law provision, the FAA rule would apply. Finally, also as in Mastrobuono, the clause does not unequivocally suggest an intent to displace the default federal standard.

drawing the same conclusion about the choice-of-law clause in that case based on Mastrobuono's language

See id. at 62, 115 S.Ct. 1212 (“At most, the choice-of-law provision introduces an ambiguity into an arbitration agreement that would otherwise allow punitive damages awards.”); see also Roadway Package Sys., 257 F.3d at 294-95 (drawing the same conclusion about the choice-of-law clause in that case based on Mastrobuono’s language).

"At most, the choice-of-law provision introduces an ambiguity into an arbitration agreement that would otherwise allow punitive damages awards."


Context: 1 36 Given the dynamic nature of the state law-making process, we assume, absent a contrary indication, that the legislature intends its statutes to work in tandem with our case law, and we reconcile the common law with statutory law whenever possible.

See Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 532 ("We presume the Legislature is aware of our case law. ..."); see also Bishop, 2002 UT 36, ¶ 10, 48 P.3d 218 ("[The common law must necessarily give way" to statutory law only when the two are "in conflict" or when the legislature intended to preempt the common law.).


Context: Although the government argues that the "frisk" did not begin until Officer Harvey patted down the outside of Johnson's clothing, it has provided no authority to support its position, and I have found scant support. Furthermore, our prior cases suggest that the frisk began, at the latest, when Officer Harvey manipulated Johnson's body to effectuate the frisk.

See Jackson v. United States, 805 A.2d 979, 987 (D.C.2002) (“[B]y the time [appellant] was asked to turn around (apparently in preparation for a frisk), and the officer touched [appellant’s] jacket, the police crossed the critical line between consent and coercion.” (citation and internal quotation marks omitted)); Powell v. United States, 649 A.2d 1082, 1087 (D.C.1994) (opinion of Sullivan, J.) (finding that factors that manifested themselves after the suspect was ordered to assume the position and after the decision to frisk had been made should not have been included in the reasonable suspicion determination); id. at 1090 (Farrell, J., concurring) (considering only facts known to the officers before “ordering [appellant] to place his hands on the car and patting him down”); see also United States v. Christian, 187 F.3d 663, 670 (D.C.Cir.1999) (“[W]e assess a Terry search from the standpoint of the moment of the stop ... not from the subsequent period in which the officer begins to take protective measures.”).

"[W]e assess a Terry search from the standpoint of the moment of the stop ... not from the subsequent period in which the officer begins to take protective measures."


Context: As discussed above, making false or misleading statements about medical devices is prohibited by federal law. This means that Schouest's state law fraud claims based on false off-label promotion would, if proven, also amount to a violation of federal law, and thus such claims could survive preemption.

See Houston, 957 F.Supp.2d at 1179-80 (holding that state fraud-based claims "are parallel or `genuinely equivalent' to federal law"); cf. In re Epogen & Aranesp Off-Label Marketing & Sales Practices Litig., 590 F.Supp.2d 1282, 1292 (C.D.Cal.2008) (observing in fraud case based on drug manufacturer's alleged misrepresentations that "insofar as Plaintiffs can identify specific representations by Defendants that are literally false, misleading, or contain material omissions, the claims are actionable" under California law).


Context: See Tex.Crim. Nevertheless, where a trial judge imposes an "invalid" condition, "the proper remedy is to reform the judgment of conviction by deleting the condition."

holding trial court lacked authority to impose electronic monitoring condition, and deleting the provision as a condition of applicant's deferred adjudication probation

Ex parte Pena, 789 S.W.2d 50, 51 (Tex.Crim.App.1987) (deleting condition where trial judge was without lawful authority to impose jail time as condition of probation); see also Ex parte Gingell, 842 S.W.2d 284, 285 (Tex.Crim.App.1992) (holding trial court lacked authority to impose electronic monitoring condition, and deleting the provision as a condition of applicant’s deferred adjudication probation); Milligan v. State, 465 S.W.2d 157, 158-59 (Tex.Crim.App.1971) (holding that trial judge was not authorized to impose jail time as condition of probation, and deleting the 90 day jail penalty).


holding that trial judge was not authorized to impose jail time as condition of probation, and deleting the 90 day jail penalty


Context: "A primary purpose of ERISA is to ensure the integrity and primacy of the written plans ... [so that] the plain language of an ERISA plan should be given its literal and natural meaning." Against this plain legislative purpose, if the ERISA plan expressly provides that its members are obligated to reimburse the plan for "the value of services provided, arranged, or paid for," we do not think it can be considered "unfair" to require plan members to abide by the agreement.

" 'Enrichment is not "unjust" where it is allowed by the express terms of the ... plan.' "

See Ryan, 78 F.3d at 127 (" 'Enrichment is not "unjust” where it is allowed by the express terms of the ... plan.' ") (citation omitted); cf. Pierce v. Christmas Tree Shops, Inc., 429 Mass. 91, 706 N.E.2d 633, 636 n. 5 (Mass.1999) (rejecting same argument, under Massachusetts law); cf. also Health Cost Controls, 139 F.3d at 1072 (noting that defendant "has not identified to this Court that application of a set-off under a[n] equitable common fund doctrine would advance any explicit statutory purpose of ERISA”).

noting that defendant "has not identified to this Court that application of a set-off under a[n] equitable common fund doctrine would advance any explicit statutory purpose of ERISA"


Context: The Court will not require either of these measures. In camera review is not required where the Court is satisfied that the agency has adequately supported their exemption claims.

In re DOJ, 999 F.2d at 1311 (error to require agency to provide Vaughn index detailing documents withheld when the basis for exemption was law enforcement purposes); see also Barney, 618 F.2d at 1273-74 (holding that no Vaughn index would be required since the record clearly demonstrated that the FOIA requestor was subject to an ongoing law enforcement investigation).


Context: What "fairly concrete" means is not clear. However, the district court clearly did not define "property" in general, or "indirect economic benefit" in particular, only in terms of legal or equitable rights or ownership interest.

Compare 148 B.R. at 891 (bankruptcy court arguably limited “property” to legal or equitable rights and things subject to ownership) with id. at 893-94 (value requires transfer of economic benefit to debtor’s estate); cf. In re Newman, 183 B.R. at 247 (noting that tithing does not give debtors enforceable property right, contract right or equitable right to attend or partake in services offered by church).

bankruptcy court arguably limited "property" to legal or equitable rights and things subject to ownership


Context: Service in this fashion is expressly authorized by Bankruptcy Rule 7004(b)(9). Hammer initiated these proceedings by filing his petition, and it was his responsibility to apprise the bankruptcy court of his forwarding address.

See Pena, 770 F.2d at 815 (affirming default judgment where defendant foreign corporation failed to provide correct address to state licensing authority); see also In re Muzquiz, 122 B.R. 56, 59 (Bkrtcy.S.D.Tex.1990) (holding service not defective where debtor had failed to notify court of his new address).


Context: Even so, I do not believe that a simple statement that the court would have imposed the same sentence is sufficient, at least where the imposed sentence exceeds what would have been the Guidelines range absent the procedural error. The district court's explanation fails to distinguish its reasons for a within-Guidelines sentence from those for an above-Guidelines sentence, and thus fails to provide the necessary certainty to know it would have imposed the same sentence.

"Indeed, it is hard for us to imagine a case where it would be procedurally reasonable for a district court to announce that the same sentence would apply even if. correct guidelines calculations are so substantially different, without cogent explanation."

See United States v. Zabielski, 711 F.3d 381, 389 (3d Cir.2013) (“Though probative of harmless error, [a statement that the court would have imposed the same sentence] will not always suffice to show that an error in calculating the Guidelines range is harmless; indeed, a district court still must explain its reasons for imposing the sentence under either Guidelines range.”); United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009) (Guidelines error harmless because district court’s alternative sentence provided “detailed explanation of the basis for the parallel result”); see also United States v. Peña-Hermosillo, 522 F.3d 1108, 1117 (10th cir.2008) (“Indeed, it is hard for us to imagine a case where it would be procedurally reasonable for a district court to announce that the same sentence would apply even if. correct guidelines calculations are so substantially different, without cogent explanation.”).

Guidelines error harmless because district court's alternative sentence provided "detailed explanation of the basis for the parallel result"


Context: . Reading Brown-Forman's proscription against the "direct regulation" of "interstate" commerce in context, it is clear that the Court had in its sights the regulation of extraterrito rial conduct.

examining whether the challenged statute "regulates commerce in other States"

See Brown-Forman, 476 U.S. at 579-84, 106 S.Ct. 2080 (examining whether the challenged statute "regulates commerce in other States”); see also Healy, 491 U.S. at 332, 109 S.Ct. 2491 (explaining that BrownForman "reaffirm[ed] and elaborated] on our established view that a state law that has the ‘practical effect' of regulating commerce occurring wholly outside that State’s borders is invalid under the Commerce Clause”); 1 Tribe § 6-8, at 1074 (equating "extraterritorial state regulations” with "laws which directly regulate out-of-state commerce”).

explaining that BrownForman "reaffirm[ed] and elaborated] on our established view that a state law that has the 'practical effect' of regulating commerce occurring wholly outside that State's borders is invalid under the Commerce Clause"


Context: As stated above, the putative spouse doctrine protects "innocent parties who believe they were validly married." "[A] proper assertion of putative spouse status must rest on facts that would cause a reasonable person to harbor a good faith belief in the existence of a lawful California marriage."

"[A] finding of whether a party's belief was genuinely held in good faith will be informed, in part, by whether that party was aware of facts that were inconsistent -with a rational belief in the validity or lawfulness of a marriage."

Welch v. State, 83 Cal. App. 4th 1374, 1378, 100 Cal.Rptr.2d 430 (2000) (emphasis in original); In re Marriage of Vryonis, 202 Cal. App. 3d 712, 722-23, 248 Cal.Rptr. 807 (1988) (“the requisite belief is in a lawful marriage, that is to say, a marriage which complies with statutory requirements”) (emphasis in original); see also, Ceja, 56 Cal. 4th at 1126, 158 Cal.Rptr.3d 21, 302 P.3d 211 (“[A] finding of whether a party’s belief was genuinely held in good faith will be informed, in part, by whether that party was aware of facts that were inconsistent -with a rational belief in the validity or lawfulness of a marriage.”). In evaluating a party’s state of mind, courts consider “whether efforts were made to create a valid marriage and whether the party was ignorant of the infirmity rendering the marriage void or voidable.” Id. at 1121, 158 Cal.Rptr.3d 21, 302 P.3d 211 (citations omitted).

"the requisite belief is in a lawful marriage, that is to say, a marriage which complies with statutory requirements"


Context: Put simply, the argument is wrong and has been consistently rejected by numerous courts, including this one. But while not dispositive of the inquiry, the fact that Plaintiffs classified themselves as independent contractors on their tax returns and took business deductions certainly weighs in favor of independent contractor status, as does the fact that drivers did not receive any benefits from Defendants.

"That Mr. Kalloo received a 1099 form does not outweigh the other, more substantial aspects of his relationship with defendants."

See, e.g., Velu, 666 F.Supp.2d at 307 (npting that the defendant’s limited provision of benefits weighed in favor of independent contractor status for purposes of the FLSA); Sellers, 2014 WL 104682, at *8 (“Plaintiff received 1099 forms ... and defendants did not withhold payroll or other employment-related taxes or issue W-2 forms to plaintiff. Plaintiff[’]s tax treatment by defendants signifies that he was in fact an independent contractor.”); cf. Kalloo v. Unlimited Mech Co. of N.Y., 977 F.Supp.2d 187, 202 (E.D.N.Y.2013) (“That Mr. Kalloo received a 1099 form does not outweigh the other, more substantial aspects of his relationship with defendants.”).

npting that the defendant's limited provision of benefits weighed in favor of independent contractor status for purposes of the FLSA


"Plaintiff received 1099 forms ... and defendants did not withhold payroll or other employment-related taxes or issue W-2 forms to plaintiff. Plaintiff[']s tax treatment by defendants signifies that he was in fact an independent contractor."


Context: 1110 In order for the DeCostros to have stood in loco parentis to W.C.K. they must have assumed parental status through some legally cognizable means, predicated on Mother's consent to an adoptive placement. Clearly, the DeCost-ros do not stand in loco parentis to W.C.K. because Mother never intended to permanently place W.C.K. with either Kiefer or the DeCostros.

See also In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995, 998 (1992) (stating that the most significant factor in determining whether individuals stand in loco parentis to a child for purposes of section 2512 is whether the party with legal custody intended to permanently place the child with the individuals).

stating that individuals were prospective adoptive parents because the natural mother's intent was for the individuals to adopt her child

See Silfies v. Webster, 713 A.2d 639, 643 (Pa.Super.1998) (stating that individuals were prospective adoptive parents because the natural mother’s intent was for the individuals to adopt her child).


Context: The district court properly granted summary judgment for defendants. Klein-hammer failed to raise a genuine issue of material fact as to whether or not defendants had notice that he intended to pursue his claims and whether or not his conduct was reasonable during the applicable period.

See Fink v. Shedler, 192 F.3d 911, 916 (9th Cir.1999) (“Under California law, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1) defendant must have had timely notice of the claim; (2) defendant must not be prejudiced by being required to defend the otherwise barred claim; and (3) plaintiffs conduct must have been reasonable and in good faith.”) (citation and internal quotation marks omitted); see also Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.1993) (the burden to plead facts which would give rise to equitable tolling falls upon the plaintiff); Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 374 (9th Cir.1998) (on summary judgment plaintiff bears burden of presenting evidence to support complaint’s allegations).

"Under California law, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1


on summary judgment plaintiff bears burden of presenting evidence to support complaint's allegations


Context: Defendants have not, however, asserted any legal grounds to prevent disclosure of joint defense agreements to the court. To the extent that joint defense agreements simply set forth the existence of attorney-client relationships--implied or otherwise--between various attorneys and defendants, the contents of such agreements do not fall within the attorney-client privilege.

expressing doubt that "either the existence or the terms of a [joint defense agreement] are privileged"

United States v. Bauer, 132 F.3d 504, 508-09 (9th Cir.1997) (attorney-client privilege does not cover the identity of an attorney’s client); see also Hsia, 81 F.Supp.2d at 11 n. 3 (expressing doubt that “either the existence or the terms of a [joint defense agreement] are privileged”).

attorney-client privilege does not cover the identity of an attorney's client


Context: The majority of circuit courts that have considered the relationship between Hudson and Bell have limited Hudson to cell searches and have held, either explicitly or implicitly, that Hudson did not disturb Bell's Fourth Amendment approach to analyzing the constitutionality of strip searches conducted in custodial settings.

holding that inmates' Fourth Amendment protection from unreasonable strip searches survives Hudson

See Elliott v. Lynn, 38 F.3d 188, 191 n. 3 (5th Cir.1994) (holding that inmates’ Fourth Amendment protection from unreasonable strip searches survives Hudson); Watsy v. Ames, No. 87-1660, 1988 WL 24978, at *2 (6th Cir.1988) (ruling Hudson inapplicable in a strip search case because it “dealt with the search of a cell as opposed to the search of an individual”); Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir.1992) (stating that “prison inmates retain protected privacy rights in their bodies, although these rights do not extend to their surroundings” and citing Hudson and Bell); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) (holding that incarcerated prisoners have Fourth Amendment-protected privacy interests after Hudson and despite Hudson’s broad language); Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (holding that even after Hudson, “the prisoner’s privacy interest in the integrity of his own person is still preserved under [Bell]”); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (“While we acknowledge the clear teaching of the Supreme Court’s holding in Hudson with respect to prison spaces, we believe that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy.”); see also Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir.1987) (limiting the Hudson holding to prison cells and assessing whether plaintiff prisoner had a reasonable expectation of privacy with regard to her person entitling her to Fourth Amendment protection); Bonitz v. Fair, 804 F.2d 164, 170 & n. 6 (1st Cir.1986), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124 (1st Cir.1988) (applying Bell’s Fourth Amendment analysis to a strip search but denying plaintiffs cell search claim under Hudson); Nicholas v. Goord, 430 F.3d 652, 675-76 (2d Cir.2005) (recognizing the distinction between Hudson which denied the availability of Fourth Amendment rights as applied to cell searches and Bell which held that the strip searches after contact visits in that case did not violate the Fourth Amendment).


applying Bell's Fourth Amendment analysis to a strip search but denying plaintiffs cell search claim under Hudson


recognizing the distinction between Hudson which denied the availability of Fourth Amendment rights as applied to cell searches and Bell which held that the strip searches after contact visits in that case did not violate the Fourth Amendment


holding that Hudson overruled Bell's assumption and abrogated convicted prisoners' Fourth Amendment rights

But see Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir.1995) (holding that Hudson overruled Bell’s assumption and abrogated convicted prisoners’ Fourth Amendment rights); Jones v. Murray, 962 F.2d 302, 306 (4th Cir.1992) (erroneously attributing to Bell the holding that “persons lawfully arrested on probable cause and detained lose a right of privacy from routine searches of the cavities of their bodies”).


erroneously attributing to Bell the holding that "persons lawfully arrested on probable cause and detained lose a right of privacy from routine searches of the cavities of their bodies"


ruling Hudson inapplicable in a strip search case because it "dealt with the search of a cell as opposed to the search of an individual"


stating that "prison inmates retain protected privacy rights in their bodies, although these rights do not extend to their surroundings" and citing Hudson and Bell


holding that incarcerated prisoners have Fourth Amendment-protected privacy interests after Hudson and despite Hudson's broad language


holding that even after Hudson, "the prisoner's privacy interest in the integrity of his own person is still preserved under [Bell]"


"While we acknowledge the clear teaching of the Supreme Court's holding in Hudson with respect to prison spaces, we believe that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy."


Context: Of course, Bituminous cannot establish subject matter jurisdiction by citing to either SS 1331 or SS 1332 alone. Bituminous must also plead a cause of action to establish subject matter jurisdiction.

See, e.g., Bush v. State Indus., Inc., 599 F.2d 780, 784-85 (6th Cir.1979) (right or immunity created by the Constitution or laws of the United States must be an essential element of the plaintiffs cause of action to bring a case within § 1331); see also Jones v. City of Carlisle, 3 F.3d 945, 950-51 (6th Cir.1993) (noting that a plaintiff must plead a cause of action to satisfy the requirements of diversity jurisdiction).

right or immunity created by the Constitution or laws of the United States must be an essential element of the plaintiffs cause of action to bring a case within SS 1331


Context: Indeed, the district court noted the vigor with which defense counsel requested a jury trial and the timeliness of plaintiffs' counsel's exception to the court's ruling. Plaintiffs were not required to walk out of the courtroom rather than to proceed with the bench trial in order to preserve their right to claim on appeal that they had been denied the jury trial that had been demanded.

See, e.g., Palmer v. United States, 652 F.2d 893, 896 (9th Cir.1981) (“[A] party’s acquiescence to the district court’s maintenance of a bench trial, without more, is insufficient to establish a withdrawal of a jury demand.”); see also DeGioia v. United States Lines Co., 304 F.2d 421, 424 n. 1 (2d Cir.1962) (failure to raise jury demand issue explicitly in subsequent proceedings does not constitute waiver); EEOC v. Corry Jamestown Corp., 719 F.2d 1219, 1225 (3d Cir.1983) (failure to seek mandamus or interlocutory appeal of court’s striking of jury demand does not constitute waiver).

"[A] party's acquiescence to the district court's maintenance of a bench trial, without more, is insufficient to establish a withdrawal of a jury demand."


failure to seek mandamus or interlocutory appeal of court's striking of jury demand does not constitute waiver


Context: Other cases have looked to the plaintiffs behavior, relationship with the alleged harasses and history with the company to conclude the plaintiff could not prove the conduct was unwelcome. See, e.g., Scusa v. Nestle U.S.A.

addressing qn evidentiary dispute and noting that, although a preexisting relationship by no means nullifies otherwise actionable harassment, "the existence of a current or former social relationship between the harasser and the harassee can shed light on such relevant questions as whether the complained-of conduct was unwelcome"

Co., 181 F.3d 958, 962, 966 (8th Cir. 1999) (deciding there was insufficient proof where the plaintiff'“engaged in behavior similar to that which she claimed was unwelcome and offensive,” despite timely complaints and journal entries indicating certain behaviors were unwelcome); Souther, 523 Fed.Appx. at 355 (concluding the conduct was not unwelcome based, in part, on the plaintiffs conduct, the fact she continued to return to the company for work, and her almost thirty-year relationship with the alleged harasser including consensual sex during some of that time); see also Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739, 746-47 (7th Cir. 2007) (addressing qn evidentiary dispute and noting that, although a preexisting relationship by no means nullifies otherwise actionable harassment, “the existence of a current or former social relationship between the harasser and the harassee can shed light on such relevant questions as whether the complained-of conduct was unwelcome”).

deciding there was insufficient proof where the plaintiff'"engaged in behavior similar to that which she claimed was unwelcome and offensive," despite timely complaints and journal entries indicating certain behaviors were unwelcome


concluding the conduct was not unwelcome based, in part, on the plaintiffs conduct, the fact she continued to return to the company for work, and her almost thirty-year relationship with the alleged harasser including consensual sex during some of that time


Context: The District claims that the relief Plaintiffs request would essentially reinstate Sections II and III of the Settlement Order.' This, the District contends, would deprive it of the sunset provisions that it had negotiated in Section II and substitute for a foregone appeal with respect to Section III.

"If we were to enforce this consent decree against Local 40 twelve years after its expiration, we would be depriving the union of the benefit of its bargain."

See EEOC v. Local 40, 76 F.3d 76, 81 (2d Cir.1996) (“If we were to enforce this consent decree against Local 40 twelve years after its expiration, we would be depriving the union of the benefit of its bargain.”); cf. Twelve John Does, 841 F.2d at 1141 (“Indeed, it is a commonplace that Rule 60(b)(6) may not be used as a substitute for an appeal not taken.”).

"Indeed, it is a commonplace that Rule 60(b)(6) may not be used as a substitute for an appeal not taken."


Context: A review of other Massachusetts cases relied upon by the court reveals that a mere statement that a "controlled buy" occurred has never been enough to save an affidavit that otherwise fails to show the informant's veracity.

where the affidavit in the record stated that police "checked [informant's person before controlled buy] for any controlled substances, contraband, and monies," furnished informant with money to make purchase, and recorded serial numbers of those bills

See Commonwealth v. Luna, 410 Mass. 131 (1991) (where the affidavit in the record stated that police “checked [informant’s person before controlled buy] for any controlled substances, contraband, and monies,” furnished informant with money to make purchase, and recorded serial numbers of those bills); Commonwealth v. Tshudy, 34 Mass. App. Ct. 955, 956 (1993) (affidavit stated that police had searched informant before the controlled buy and found no drugs on his person, and that police gave informant money to make purchase); Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 838 (1989) (affidavit stated that police had searched informant before the controlled buy and found no narcotics or money on informant’s person, provided informant with money to make purchase, and observed informant enter and leave defendant’s apartment).

affidavit "fully described the 'controlled buy,' " stating that police searched informant before and after buy and found no contraband on his person, gave informant a sum of United States currency to make purchase, and observed informant enter and exit building

See also United States v. Garcia, 983 F.2d 1160, 1166-1167 (1st Cir. 1993) (affidavit “fully described the ‘controlled buy,’ ” stating that police searched informant before and after buy and found no contraband on his person, gave informant a sum of United States currency to make purchase, and observed informant enter and exit building).


affidavit stated that police had searched informant before the controlled buy and found no drugs on his person, and that police gave informant money to make purchase


affidavit stated that police had searched informant before the controlled buy and found no narcotics or money on informant's person, provided informant with money to make purchase, and observed informant enter and leave defendant's apartment


Context: In contrast to his current arguments about the district court's questions, Flying By made only a single objection to them at trial. Timely objections are important so that any error or misunderstanding can be clarified at the trial.

United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993) (issue is preserved for appeal through timely objection and clearly stated grounds for the objection so that trial court can prevent or correct the error); see also United States v. Filker, 972 F.2d 240, 242 (8th Cir.1992) (“This court will not reverse a district court on an issue that is raised for the first time unless a gross miscarriage of justice would otherwise result.”).

"This court will not reverse a district court on an issue that is raised for the first time unless a gross miscarriage of justice would otherwise result."


Context: Plaintiffs' sole basis for arguing that Connecticut law should govern is that Pfizer performed research and development with respect to Trovan and planned the Nigerian experiment in Connecticut. (Transcript of Oral Argument, dated Oct. 21, 2005, at 17-21.) However, this sole contact with Connecticut is insufficient to defeat the Nigerian interest in applying its own laws.

holding that under lex loci delecti, Georgia law applies because "plaintiffs live[d] in Georgia, the gun in question was kept in Georgia, and the injury occurred in Georgia, even though the defendant's principal place of business was Southport, Connecticut", and the "handgun in question was manufactured by the defendant in Connecticut"

See Feldt v. Sturm, Ruger & Co., 721 F.Supp. 403, 404-05 (D.Conn.1989) (holding that under lex loci delecti, Georgia law applies because “plaintiffs live[d] in Georgia, the gun in question was kept in Georgia, and the injury occurred in Georgia, even though the defendant’s principal place of business was Southport, Connecticut”, and the “handgun in question was manufactured by the defendant in Connecticut”); see also N. Tankers Ltd., 934 F.Supp. at 39-40 (“[Application of New York law here would be neither irrational nor arbitrary,” or “produce an arbitrary or irrational result” because “[t]he place of the injury ... is New York,” and “alleged damages ... were incurred in New York.”); Icelandic Coast, 722 F.Supp. at 948.

"[Application of New York law here would be neither irrational nor arbitrary," or "produce an arbitrary or irrational result" because "[t]he place of the injury ... is New York," and "alleged damages ... were incurred in New York."


Context: The record demonstrates that none -- let alone, as required, all -- of the legal prerequisites for the order now under review granting Florida Rule of Civil Procedure 1.540(b) relief from a default final judgment duly entered against appellees has been satisfied.

finding that a five week delay in seeking relief from default judgment was "entirely inexcusable"

See Lazcar Int'l Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007) (“For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.”), review denied, 969 So.2d 1011 (Fla.2007); Geer v. Jacobsen, 880 So.2d 717, 721 (Fla. 2d DCA 2004) (A meritorious defense “must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense.”); Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300 (Fla. 2d DCA 2004) (finding that a seven-week delay in seeking relief from default judgment was unreasonable); Herrick v. Se. Bank, 512 So.2d 1029 (Fla. 3d DCA 1987) (holding that excusable neglect cannot arise from negligence of counsel); see also Fischer v. Barnett Bank of S. Fla., 511 So.2d 1087 (Fla. 3d DCA 1987) (finding that a five week delay in seeking relief from default judgment was “entirely inexcusable”).

"For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1


A meritorious defense "must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense."


finding that a seven-week delay in seeking relief from default judgment was unreasonable


holding that excusable neglect cannot arise from negligence of counsel


Context: "When the district court has affirmed the bankruptcy court's findings ... we will apply the clearly erroneous doctrine with particular rigor." Additionally, when we examine the facts adduced at trial, generally we will not disturb a bankruptcy court's credibility determinations.

requiring a reviewing court to "give due regard" to a bankruptcy court's credibility judgments

See In re Englander, 95 F.3d 1028, 1030 (11th Cir.1996) (requiring a reviewing court to “give due regard” to a bankruptcy court’s credibility judgments); see also United States v. Peters, 403 F.3d 1263, 1270 (11th Cir.2005) (recognizing that “[assessing witness credibility is uniquely the function of the trier of fact”). Here, to the extent the appellants dispute the relevant facts, they rely exclusively on evidence drawn from their own testimony, which the bankruptcy judge expressly disbelieved.

recognizing that "[assessing witness credibility is uniquely the function of the trier of fact"


Context: "[A]cts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts." Moreover, even assuming that the funds HIH received from CCADV are properly characterized as "state funds," the Supreme Court has repeatedly made clear that government funding of a private entity, no matter how extensive, is insufficient in and of itself to establish state action.

See Rendell-Baker, 457 U.S. at 840, 102 S.Ct. 2764 (a private school receiving 90% of its operating budget from public funds was not deemed a state actor); see also Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 73 L.Ed.2d 534 (no state action even though state paid the medical expenses of more than 90% of the patients and subsidized the operating and capital costs of the nursing homes).


Context: This limited contact with a single District customer -- unrelated to the plaintiffs or their claims -- does not support the district court's exercise of general jurisdiction.

"isolated and sporadic contacts unrelated to the claims in the instant case" insufficient to establish general jurisdiction

See El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 675 (D.C.Cir.1996) (“isolated and sporadic contacts unrelated to the claims in the instant case” insufficient to establish general jurisdiction); cf. Pacas v. Showell Farms, Inc., 83 F.3d 415, 1996 WL 192058, at *2 (4th Cir.1996) (unpublished) (“sales to a single customer ... does not constitute the requisite minimum contacts necessary to satisfy ‘fair play and substantial justice’ and to establish general jurisdiction for a suit not related to the sale of that product”); Atlantigas, 290 F.Supp.2d at 53 (exercising general jurisdiction over foreign corporation with only three District customers would “stretch the concept of general jurisdiction beyond what either the [long-arm] statute or due process permits”).

"sales to a single customer ... does not constitute the requisite minimum contacts necessary to satisfy 'fair play and substantial justice' and to establish general jurisdiction for a suit not related to the sale of that product"


exercising general jurisdiction over foreign corporation with only three District customers would "stretch the concept of general jurisdiction beyond what either the [long-arm] statute or due process permits"


Context: We must next consider whether Micklus' pro se complaint states a cause of action for damages arising out of the constitution. The Supreme Court has implied a cause of action directly under the constitution and permitted the remedy of damages in two cases.

See also, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Bivens remedy available directly under eighth amendment even though the allegations could support a Federal Tort Claims Act suit).

for violation of fifth amendment's due process clause and its equal protection assurance

Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (for violation of fifth amendment’s due process clause and its equal protection assurance); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (for violation of fourth amendment rights).


Context: A state court's decision whether to recognize and enforce an employer's cause of action for reimbursement, which is ere- ated by statute in another state, is an issue of conflict of laws rather than subject matter jurisdiction.

applying Alaska law to govern attorney-client fee agreement pertaining to an Alaska worker's compensation action

See Hoffman v. Henderson, 355 N.W.2d 322, 324 (Minn.Ct.App.), pet. for review denied, (Minn. Dec. 20, 1984), cert. denied, — U.S. -, 105 S.Ct. 2326, 85 L.Ed.2d 844 (1985) (applying Alaska law to govern attorney-client fee agreement pertaining to an Alaska worker’s compensation action); Shelby Mutual Insurance Co. v. Girard Steel Supply Co., 224 F.Supp. 690, 695 (D.Minn.1963) (declining to enforce in Minnesota a Wisconsin employer’s right to reimbursement under Wisconsin law); cf. Barry v. Baker Electric Cooperative, Inc., 354 N.W.2d 666, 668-73 (N.D.1984) (holding North Dakota law, which precludes a negligent employer from being liable for contribution, applicable as against Minnesota law, which permits limited contribution liability, even thought the injure employee received benefits under the Minnesota worker’s compensation act).

holding North Dakota law, which precludes a negligent employer from being liable for contribution, applicable as against Minnesota law, which permits limited contribution liability, even thought the injure employee received benefits under the Minnesota worker's compensation act


declining to enforce in Minnesota a Wisconsin employer's right to reimbursement under Wisconsin law


Context: An agency is, of course, entitled to "substantial deference" in its "interpretation of its own regulations." Carus does not quarrel with this principle but nonetheless argues deference to the EPA's interpretation of SS 2.4.1.1 is not appropriate because (Carus nakedly asserts) that interpretation is simply a "litigation position."

But see Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997) (agency interpretation of regulation first appearing in legal brief not categorically unworthy of deference).

court owes no "deference to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question"

See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 474, 102 L.Ed.2d 493 (1988) (court owes no “deference to an agency counsel’s interpretation of a statute where the agency itself has articulated no position on the question”).


Context: Congress did not define "member" when it enacted IGRA, nor would federally imposed criteria be consonant with federal Indian policy. The great weight of authority holds that tribes have exclusive authority to determine membership issues.

"[t]he Courts have consistently recognized that in the absence of express legislation by Congress to the contrary, a tribe has complete authority to determine all questions of its own membership as a political entity"

See Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir.1957), cert. denied, 357 U.S. 924, 78 S.Ct. 1374, 2 L.Ed.2d 1376 (1958) (“[t]he Courts have consistently recognized that in the absence of express legislation by Congress to the contrary, a tribe has complete authority to determine all questions of its own membership as a political entity”); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 1684 n. 32, 56 L.Ed.2d 106 (1978) (holding that federal courts lacked jurisdiction to determine whether a tribe’s membership requirements violated ICRA, and noting that “a tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community”).

holding that federal courts lacked jurisdiction to determine whether a tribe's membership requirements violated ICRA, and noting that "a tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community"


Context: In fact, this terminology is generally employed interchangeably, often within the same opinion." And the Alaska courts have stated that "a plaintiff is entitled to the reasonable value of the services rendered to the defendant" "[kinder. the doctrine of quantum meruit" only "when a valid contract does not exist...."

noting that "plaintiffs may generally recover in quantum meruit for services rendered" only "[w]hen parties to a contract dispute do not have a valid contract"

Romero v. Cox, 166 P.3d 4, 9 (Alaska 2007) (internal quotation marks omitted); see also Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 419 (Alaska 2001) (noting that “plaintiffs may generally recover in quantum meruit for services rendered” only “[w]hen parties to a contract dispute do not have a valid contract”); Mitford v. de Lasala, 666 P.2d 1000, 1006 n. 1 (Alaska 1983) (“It is well settled that proof of an express contract covering the services in question precludes relief in quantum meru-it.”); cf. Nicdao, 839 F.Supp.2d at 1071 (discussing the requirements for showing unjust enrichment under Alaska law, and stating that “[generally, a[p]laintiff may not rely on a theory of implied contract where a valid, express contract governs” (second alteration in original) (internal quotation marks omitted)); Soules v. Ramstack, 95 P.3d 933, 940 (Alaska 2004) (“Enforcement of a valid contract does not constitute unjust enrichment.”).

"Enforcement of a valid contract does not constitute unjust enrichment."


"It is well settled that proof of an express contract covering the services in question precludes relief in quantum meru-it."


Context: Based on this procedural history, the court cannot conclude that the plaintiffs claims are barred by the statute of limitations. The statute of limitations was tolled during the time that the plaintiffs request to proceed in forma pauperis and his motion for reconsideration were pending.

noting that the defendant conceded that "the lodging of a request to proceed IFP tolls the limitations period until the court rules on the plaintiffs request"

Baker v. Henderson, 150 F.Supp.2d 17, 19 (D.D.C.2001) (noting that the defendant conceded that “the lodging of a request to proceed IFP tolls the limitations period until the court rules on the plaintiffs request”); see also Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 & 1053 n. 2 (D.C.Cir.1988) (tolling the statute of limitations while the plaintiffs motion to alter judgment of dismissal was pending); Barnes v. United States, 2004 WL 2203456, at *5 & n. 7 (D.Kan. Sept.27, 2004) (stating that “numerous courts have held in various contexts that submission of a complaint for filing without the required filing fee or IFP application constitutes ‘filing’ for purposes of the statute of limitations”), rev’d on other grounds, Barnes v. United States, 137 Fed.Appx. 184, (10th Cir.2005).


stating that "numerous courts have held in various contexts that submission of a complaint for filing without the required filing fee or IFP application constitutes 'filing' for purposes of the statute of limitations"


Context: Further, Appellants were in a position at the time the goods were delivered to the Debtor to more adequately protect their interests by retaining and perfecting a purchase money security interest in the goods sold and notifying the secured creditors of their security interest. They chose not to do so and therefore, lost the right to prevent the commingling and use of then-products so that it is now impossible to determine whose inventory remains in the Debtor's possession.

"the UCC presents the seller the possibility of complete protection through a different medium [rather than the reclamation process], the purchase money security interest."

See Steinberg’s, 226 B.R. at 11 (“reclaiming seller could always have availed itself of greater protection by procuring a purchase money security interest on the subject goods”); see also Wathen’s Elevators, Inc., 32 B.R. at 923 (“the UCC presents the seller the possibility of complete protection through a different medium [rather than the reclamation process], the purchase money security interest.”); U.S. Billiards Co., Inc. v. Greenberger (In re Bensar Co., Inc.), 36 B.R. 699, 704 (Bankr.S.D.Ohio 1984); U.C.C. §§ 9-107, 9-312(3).

"reclaiming seller could always have availed itself of greater protection by procuring a purchase money security interest on the subject goods"


Context: . In Edgar, a plurality of the Supreme Court suggested that the boundary is similar to the familiar line demarcating the jurisdiction of a state's courts. However, the Court has subsequently cast considerable doubt on this suggestion.

"[I]f the presence of an interest that might support state jurisdiction ... dissolved the constitutional objection to extraterritorial regulation, there wouldn't be much left of Healy and its cognates."

See Quill Corp. v. North Dakota, 504 U.S. 298, 305-313, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (discussing differing scope of and concerns animating the Due Process and Commerce Clauses); cf. Midwest Title, 593 F.3d at 668 ("[I]f the presence of an interest that might support state jurisdiction ... dissolved the constitutional objection to extraterritorial regulation, there wouldn't be much left of Healy and its cognates.”); Carolina Trucks, 492 F.3d at 491 ("If a state could leverage contacts within its borders to control a company's conduct elsewhere without being held to regulate extraterritorially, this would be the national market’s undoing.”).


"If a state could leverage contacts within its borders to control a company's conduct elsewhere without being held to regulate extraterritorially, this would be the national market's undoing."


Context: Rather, the FMIA merely notes the consequences of adulterated meat on the meat industry. 21 U.S.C. SS 602 (stating that adulterated meat products "result in sundry losses to ... processors of meat"). Based on the plain language of the statute, as Defendant correctly argues, the purpose of the FMIA is to protect the "health and welfare of consumers." Id. Therefore Plaintiff, as a matter of law, is not the intended direct beneficiary of Defendant's inspection duties under the FMIA.

finding that "the FSIS conducts inspections to ensure that the poultry sold to the public is sanitary, not to benefit chicken-processing plants or their owners" and therefore concluding that the government could not be liable under Section 323's Good Samaritan rule

See Barnes v. United States, 448 F.3d 1065, 1067 (8th Cir.2006) (finding that “the FSIS conducts inspections to ensure that the poultry sold to the public is sanitary, not to benefit chicken-processing plants or their owners” and therefore concluding that the government could not be liable under Section 323’s Good Samaritan rule); cf. Patentas v. United States, 687 F.2d 707, 716 (3d Cir.1982) (finding that the Ports and Waterways Safety Act created inspection duties only to the public generally and therefore concluding that Section 323 was inapplicable).


Context: However, Plaintiff alleges that the eavesdropping violation occurred "[i]n between the demonstrations" and while Plaintiff and his colleagues were "video reeoi'd[ing] the Circus' treatment of animals over the [loading dock] wall" near the back of the San Jose arena. There is no allegation that Plaintiff, by "lean[ing] in close to the ear of Mark Ennis" after having "looked around to visually ensure no one" else was listening, id. P 48, was addressing anyone other than Ennis, let alone members of the public at a public meeting, rally, or assembly of some sort.

characterizing "a large, public celebration held outdoors in a public park, featuring, in the course of a political campaign, a public official as the principal speaker" as a "public meeting" or "public gathering"

See ACLU of Ill. v. Alvarez, 679 F.3d 583, 609 (7th Cir.2012) (Posner, J., dissenting) (explaining that the term “public gathering,” as used in section 632(c), “connotes a public meeting of some sort”); cf. In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142, 151, 153 (1970) (characterizing “a large, public celebration held outdoors in a public park, featuring, in the course of a political campaign, a public official as the principal speaker” as a “public meeting” or “public gathering”).

explaining that the term "public gathering," as used in section 632(c


Context: After de novo review, we find no legal error in the district court's conclusion that, based on the facts admitted by Hunt, the SS 2K2.1(b)(5) enhancement applied.

rejecting Booker constitutional challenge to district court's imposition of U.S.S.G. SS 2B3.1(b

See United States v. Cover, 199 F.3d 1270, 1274 (11th Cir.2000) ("In sentencing guidelines cases, we review for clear error a district court’s factual findings and review de novo the district court’s application of law to those facts.”); see also United States v. Petho, 409 F.3d 1277, 1279-80 n. 1 (11th Cir.2005) (rejecting Booker constitutional challenge to district court's imposition of U.S.S.G. § 2B3.1(b)(2)(F) enhancement for making a threat of death in the course of robbery of a financial institution; defendant admitted underlying facts and "[t]he determinations that the bank was a financial institution and that the note constituted a threat of death were not factual findings, but legal conclusions properly made by the court”).

"In sentencing guidelines cases, we review for clear error a district court's factual findings and review de novo the district court's application of law to those facts."


Context: In Lindh v. Murphy, which concerned the retroactive effect of AEDPA's provision heightening the standards for the availability of habeas relief in noncapital cases, the Supreme Court elaborated further on the initial step of the Landgraf analysis. Finding that silence as to temporal reach in one provision of the statute implied prospectivity where Congress had expressly provided for retroactivity to pending cases in another provision, the Lindh Court established negative implication as one of the "normal rules of statutory construction" to be used by the courts in determining a statute's temporal reach.

describing Lindh as having added a "new step" to the Landgraf analysis

See also Mayers, 175 F.3d at 1302 {“Lindh expands the tools available to courts to determine congressional intent”); Sandoval, 166 F.3d at 240 (“the Lindh Court made clear that the rule of negative implication is part of the normal rules of statutory construction”); cf. Mathews v. Kidder Peabody & Co., 161 F.3d 156 (3d Cir.1998) (describing Lindh as having added a “new step” to the Landgraf analysis).

"the Lindh Court made clear that the rule of negative implication is part of the normal rules of statutory construction"


Context: The buyer, however, testified at sentencing that Mendoza had arranged the drug deal and had sold drugs to her on several previous occasions. Mendoza offered no evidence to rebut this witness's testimony, which the district court found credible.

See United States v. Castaneda, 221 F.3d 1058, 1059 (8th Cir.2000) (per curiam) (district court did not clearly err in determining defendant was not fully truthful and in thus denying safety-valve relief, because defendant did not introduce any evidence to support his position); cf. United States v. Quintana, 340 F.3d 700, 703 (8th Cir.2003) (where district court directly observed defendant and other witnesses testify, finding no clear error in court’s assessment of their truthfulness).

where district court directly observed defendant and other witnesses testify, finding no clear error in court's assessment of their truthfulness


Context: In fact, he said that if a person had even a "moderate limitation" adhering to a schedule or concentrating or understanding or handling instructions, then she would be precluded from work (Id.). The ALJ's failure to address this issue in her opinion raises a red flag that, at a minimum, needs to be acknowledged on remand and then lowered if the Commissioner continues to deny Title II benefits for the relevant period.

holding that the ALJ did not consider the vocational expert's testimony on cross-examination and failed to articulate a basis for rejecting this evidence, which was a basis for remand

See Sayles v. Barnhart, No. 00 C 7200, 2001 WL 1568850, at *9 (N.D.Ill., Dec. 7, 2001)(finding that “the fundamental problem with the ALJ’s determination is that both in the body of her ruling and in her findings, she addressed the vocational expert’s opinion in response to only one of the hypotheticals ... and disregarded the others”); see also Connor v. Shalala, 900 F.Supp. 994, 1003-04 (N.D.Ill.1995) (holding that the ALJ did not consider the vocational expert’s testimony on cross-examination and failed to articulate a basis for rejecting this evidence, which was a basis for remand).

finding that "the fundamental problem with the ALJ's determination is that both in the body of her ruling and in her findings, she addressed the vocational expert's opinion in response to only one of the hypotheticals ... and disregarded the others"


Context: Remand for the requisite findings is not appropriate here because the wife failed to bring forth any evidence to support such findings.

reversing attorney's fee award where it was entered without notice to the husband and without the husband first having an opportunity to review and rebut the reasonableness of the amount claimed

See Davis v. Davis, 613 So.2d 147 (Fla. 1st DCA 1993) (holding that while remand is appropriate where the record may contain substantial competent evidence to support findings as to the Rowe factors, reversal is required where the record is devoid of any evidence to support the award of attorney’s fees); Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986) (holding that because the wife failed to present any evidence as to the legal services performed in the trial court, the wife was not entitled to a second hearing to establish attorney’s fees); see also Broyles v. Broyles, 573 So.2d 357 (Fla. 5th DCA 1990) (reversing attorney’s fee award where it was entered without notice to the husband and without the husband first having an opportunity to review and rebut the reasonableness of the amount claimed), review dismissed, 584 So.2d 997 (Fla.1991).

holding that while remand is appropriate where the record may contain substantial competent evidence to support findings as to the Rowe factors, reversal is required where the record is devoid of any evidence to support the award of attorney's fees


holding that because the wife failed to present any evidence as to the legal services performed in the trial court, the wife was not entitled to a second hearing to establish attorney's fees


Context: Illinois courts distinguish bailments from conditional sales, which create only an ordinary debtor-creditor relationship.

bailment exists when goods are "disposed of in some particular manner as directed or agreed upon for [the owner's] benefit"

See Chickering v. Bastress, 130 Ill. 206, 22 N.E. 542, 543 (1889) (“[W]hen the identical thing is to be restored in the same or an altered form, the contract is one of bailment ... but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, or the money value ... it is a sale.”); see also People v. Moses, 375 Ill. 336, 31 N.E.2d 585, 587 (1940) (bailment exists when goods are “disposed of in some particular manner as directed or agreed upon for [the owner’s] benefit”).

"[W]hen the identical thing is to be restored in the same or an altered form, the contract is one of bailment ... but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, or the money value ... it is a sale."


Context: Plainly, under Godfrey, the instruction at issue in this case, providing for a depravity-of-mind aggravating circumstance, was unconstitutionally vague.

See Valerio v. Crawford, 306 F.3d 742, 747 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 994, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003) (holding the same Nevada aggravating circumstance unconstitutionally vague, under Godfrey); Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991) (same); see also McKenna v. McDaniel, 65 F.3d 1483, 1487-90 (9th Cir. 1995) (holding a similar Nevada aggravating circumstance unconstitutionally vague, under Godfrey).


Context: Harvest States argues that collateral estoppel can be based on a dismissal for want of jurisdiction. While we have never addressed this specific issue, we believe that Harvest States' argument has merit. This court has held that an order that is not technically a "judgment" can still give rise to issue preclusion if it is an appealable final judgment for purposes of Appellate Rule 202.

See Calhoun v. Greening, 636 P.2d 69, 72-73 & n. 4 (Alaska 1981) (because denial of Civil Rule 60(b) motion is appealable under Appellate Rule 202, it will be treated as final judgment for res judicata purposes); see also City of Fairbanks v. Electric Distrib. Sys., 413 P.2d 165, 168 (Alaska 1966) (an order dismissing a complaint for lack of jurisdiction over an indispensable party is an appealable order under the predecessor to Appellate Rule 202).


Context: The Daphne plaintiffs argue that the 1999 Act violates SS 95, Ala. Const.1901, because, they say, the Legislature changed a rule of decision "midstream" in order to affect the outcome of Dispute I. Section 95 provides that "[a]fter suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." See United Cos.

Lending Corp. v. Autrey, 723 So.2d 617 (Ala.1998) (the Legislature cannot change the law to lessen a plaintiffs recovery once the plaintiff files an action); see also Kemp v. Britt, 410 So.2d 31 (Ala.1982) (the Legislature may not change the law to lessen a state employee’s benefits after the employee has sued to collect those benefits).

the Legislature may not change the law to lessen a state employee's benefits after the employee has sued to collect those benefits


Context: The crucial question is whether the 1968 Act was either intended to render, or had the effect of rendering the National Guard more federal in character to the point where technician supervisory personnel and the adjutant general can no longer be considered as acting under color of state law when participating in personnel decisions resulting in the discharge of ANG technicians. This question has been considered by the Fifth and Sixth Circuits, both of which have held that the 1968 Act was not designed to federalize the National Guard, and that Guard officials may be sued under section 1983.

See also Schultz v. Wellman, 717 F.2d 301 (6th Cir.1983) (following Rowe); Bollen v. National Guard Bureau, 449 F.Supp. 343, 349 (W.D.Pa.1978) (following Lasher without discussing the 1968 Act); Syrek v. Pennsylvania Air National Guard, 371 F.Supp. 1349 (W.D.Pa.1974) (following Lasher after explicitly finding that the 1968 Act did not federalize the Guard), rev ’d on other grounds, 537 F.2d 66 (3d Cir.1976); contra Vargas v. Char don, 405 F.Supp. 1348, 1351 (D.P.R.1975) (holding adjutant general not liable under section 1983 without discussing the 1968 Act).


Context: Having determined that Section 362(k)(l)'s award of attorneys' fees apply to prosecuting damages actions, we have no trouble concluding that defending that judgment on appeal is also within the statute's fee-shifting authorization. This Court has held many times that fee-shifting statutes--which Section 362(k) undoubtedly is--entitle parties not only to fees in the court of first instance, but also to appellate fees incurred in defending the judgment.

noting that fee-shifting statutes treat "a case as an inclusive whole, rather than as atomized line-items"

See In re Rosenberg, 779 F.3d at 1265; Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d 1242, 1245 (11th Cir. 2003) (holding that “an attorney may recover fees for time spent litigating the award of a [11 U.S.C. § ] 1988 fee”); Finch v. City of Vernon, 877 F.2d 1497, 1508 (11th Cir. 1989) (holding that a plaintiff who prevailed on a 42 U.S.C. § 1983 claim was “entitled to an award of attorney’s fees incurred [on] appeal”); see also Comm’r, INS v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (noting that fee-shifting statutes treat “a case as an inclusive whole, rather than as atomized line-items”).

holding that "an attorney may recover fees for time spent litigating the award of a [11 U.S.C. SS ] 1988 fee"


holding that a plaintiff who prevailed on a 42 U.S.C. SS 1983 claim was "entitled to an award of attorney's fees incurred [on] appeal"


Context: As indicated in Part II.A.2. above, the " 'rational basis' " element means there must be a "clinically demonstrable presence of [the toxic substance] in the plaintiffs body, or some indication of [toxin]induced disease, i.e., some physical manifestation of [toxic] contamination."

finding that, as to claims of cancerphobia resulting from exposure to toxic emissions from landfill, trial court erred in excluding evidence as to plaintiffs' need for medical monitoring and in not submitting that issue to the jury

Abusio, 238 A.D.2d at 455, 656 N.Y.S.2d at 372 (upholding dismissal of claims for future cost of medical monitoring for cancer “[b]ecause the appellants failed to show a ‘rational basis’ for their fear of developing the disease”); see, e.g., Allen v. General Electric Co., 32 A.D.3d 1163, 1164-65, 821 N.Y.S.2d 692, 693-95 (4th Dep’t 2006) (“Allen”) (overturning a judgment that dismissed medical monitoring claims by plaintiffs who “were exposed to the toxins but exhibit no present illness or injury as a result of that exposure”); Dangler, 241 A.D.2d at 294, 672 N.Y.S.2d at 190 (finding that, as to claims of cancerphobia resulting from exposure to toxic emissions from landfill, trial court erred in excluding evidence as to plaintiffs’ need for medical monitoring and in not submitting that issue to the jury); Gerardi v. Nuclear Utility Services, Inc., 149 Misc.2d 657, 657-59, 566 N.Y.S.2d 1002, 1003-04 (Sup.Ct.West.

upholding dismissal of claims for future cost of medical monitoring for cancer "[b]ecause the appellants failed to show a 'rational basis' for their fear of developing the disease"


Context: Incarceration alone does not necessarily preclude a person from acting in a parental role.

See In re Welfare of Staat, 287 Minn. 501, 507, 178 N.W.2d 709, 713 (1970) (stating that termination is unwarranted for incarcerated parent who maintains parenting role while in prison); see also M.D.O., 462 N.W.2d at 378-79 (affirming district court’s denial of termination for mother incarcerated for murdering child, based on mother’s continued relationship with child at issue and amenability to services while incarcerated).

affirming district court's denial of termination for mother incarcerated for murdering child, based on mother's continued relationship with child at issue and amenability to services while incarcerated


Context: To support his argument, plaintiff relies upon Arizona authority that seems to lend direct support to his position. Significantly, however, the decisions upon which plaintiff relies all were issued prior to Jepson, and none address any of the factors the Jepson court found central to review of decisions granting or denying Rule 60(c) relief.

affirming trial court's refusal to set aside dismissal of case despite failure of plaintiff to receive Rule V(e

But see Ursel v. Pizzo, 126 Ariz. 316, 614 P.2d 858 (App.1980) (affirming trial court’s refusal to set aside dismissal of case despite failure of plaintiff to receive Rule V(e) notice).

trial court's Rule 60(c) order setting aside a Rule V(d

See McKinley v. Town of Fredonia, 140 Ariz. 189, 680 P.2d 1250 (App.1984) (trial court abused its discretion in denying plaintiffs motion to reinstate a case dismissed for lack of prosecution without evidence that the plaintiff received notice of pending dismissal; decision focuses on whether mailing presumes receipt without considering evidence of diligence); Black v. Greer, 17 Ariz.App. 383, 498 P.2d 225 (1972) (trial court’s Rule 60(c) order setting aside a Rule V(d) dismissal for lack of prosecution due to lack of notice not an abuse of discretion; no discussion of Jepson factors); Thunderbird Farms v. Hernandez, 11 Ariz.App. 383, 464 P.2d 829 (1970) (trial court’s Rule 60(c) order setting aside a dismissal and reinstating the cause on the inactive calendar not an abuse of discretion due to lack of notice of impending dismissal or a secretarial mistake; no discussion of Jepson factors).


Context: In addition, courts have consistently treated the failure to promote as a discrete act; one that is more in the nature of an isolated employment decision than a persistent pattern.

"Demotion, failure to promote, and termination have all been deemed discrete acts

Pauling v. Secretary of the Interior, 960 F.Supp. 793, 801-02 (S.D.N.Y.1997) (“Demotion, failure to promote, and termination have all been deemed discrete acts); Samuel v. Merrill Lynch Pierce Fenner & Smith, 771 F.Supp. 47, 49 (S.D.N.Y.1991) (“As decided by several courts in this Circuit, a number of incidents of failure to promote cannot, as a matter of law, constitute a ‘series of related acts.’ ”); see also Lightfoot, 110 F.3d at 907 (finding that alleged demotions and denials of pay-grade increases were completed acts not continuing in nature); but see Williams v. Chase Manhattan Bank, N.A., 728 F.Supp. 1004, 1007 (S.D.N.Y.1990) (stating that “since [plaintiff] alleges a series of related discriminatory events including several denials of the same promotion, her complaint is deemed one of continuing violations”).


stating that "since [plaintiff] alleges a series of related discriminatory events including several denials of the same promotion, her complaint is deemed one of continuing violations"


"As decided by several courts in this Circuit, a number of incidents of failure to promote cannot, as a matter of law, constitute a 'series of related acts.' "


Context: I can think of no more critical a stage in criminal proceedings than the admission of inculpatory evidence against a defendant. Several of our sister circuits agree.

"It is difficult to perceive a more critical stage of a trial than the taking of evidence on the defendant's guilt."

See, e.g., United States v. Hamilton, 391 F.3d 1066, 1070-71 (9th Cir. 2004) (finding that “the portions of the consolidated proceedings in which evidence relating to [the defendant’s] case” was presented constituted a critical stage, and the absence of defense counsel at such a stage resulted in structural error); Olden v. United States, 224 F.3d 561, 568 (6th Cir. 2000) (“When the government presents evidence probative of a defendant’s culpability in criminal activity, or evidence that further implicates a defendant in criminal conduct, that portion of a criminal trial is sufficiently critical to the ultimate question of guilt to trigger the protections of Cronic.”); Burdine v. Johnson, 262 F.3d 336, 347 (5th Cir. 2001) (en banc) (“[T]he presentation of evidence against a defendant is a critical stage of a criminal proceeding.”); see also Green v. Arn, 809 F.2d 1257, 1263 (6th Cir.) (“It is difficult to perceive a more critical stage of a trial than the taking of evidence on the defendant’s guilt.”), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987) (mem.), reinstated, 839 F.2d 300 (6th Cir. 1988); United States v. Russell, 205 F.3d 768, 771-72 (5th Cir. 2000).

finding that "the portions of the consolidated proceedings in which evidence relating to [the defendant's] case" was presented constituted a critical stage, and the absence of defense counsel at such a stage resulted in structural error


"When the government presents evidence probative of a defendant's culpability in criminal activity, or evidence that further implicates a defendant in criminal conduct, that portion of a criminal trial is sufficiently critical to the ultimate question of guilt to trigger the protections of Cronic."


Context: Closely intertwined with the not-a-stranger principle is the fundamental precept that a nonparty to a contractual relationship who nevertheless has a sufficiently direct economic stake in that relationship has a right to protect its own economic interest.

applying the principle under California law that "the tort of interference with prospective economic advantage was not intended broadly to limit individuals or commercial entities in choosing their commercial relationships, whether their motives in doing so might be -- unless those motives are independently unlawful"

See Marin Tug, 271 F.3d at 832 (applying the principle under California law that “the tort of interference with prospective economic advantage was not intended broadly to limit individuals or commercial entities in choosing their commercial relationships, whether their motives in doing so might be — unless those motives are independently unlawful”); see also A-Mark Coin v. Gen’l Mills, Inc., 148 Cal.App.3d 312, 324, 195 Cal.Rptr. 859 (1983) (stating that “in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may ... enter into secret negotiations behind the plaintiffs back, refuse to deal with him ... or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability”).

stating that "in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may ... enter into secret negotiations behind the plaintiffs back, refuse to deal with him ... or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability"


Context: Among other things, the district court properly deferred to the credibility determination of the judge who had observed Emmett's in-court testimony. In addition, the fact that the recantation itself appeared to have been coached supports the court's finding that Christenot sought to influence Emmett's testimony.

See United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988) (“Only when the hearsay is so inadequately supported that the ‘factual basis for believing [it is] almost nil’ can it be argued that the evidence should not have been considered” in sentencing); see also United States v. Berry, 258 F.3d 971, 975 (9th Cir.2001) (holding that an appellate court may review the entire record to determine whether hearsay statements are sufficiently reliable).

"Only when the hearsay is so inadequately supported that the 'factual basis for believing [it is] almost nil' can it be argued that the evidence should not have been considered" in sentencing


Context: Because the species of Fourth Amendment violation alleged in this case arises by way of analogy to the common law tort of malicious prosecution, courts historically have looked to the common law for guidance as to the constituent elements of the claim.

"In order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must establish the elements of the common law tort as it has developed over time."

See also Hilfirty v. Shipman, 91 F.3d 573, 579 (3rd Cir.1996) (“In order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must establish the elements of the common law tort as it has developed over time.”).

"Where an arrest is made after the filing of an information and the arrest is the basis of a Fourth Amendment section 1983 claim, we think the tort of malicious prosecution is the most analogous tort to the section 1983 claim."

See Whiting, 85 F.3d at 585 n. 7 (“Where an arrest is made after the filing of an information and the arrest is the basis of a Fourth Amendment section 1983 claim, we think the tort of malicious prosecution is the most analogous tort to the section 1983 claim.”).


Context: Based on the foregoing, we view the two causes of action addressed by the circuit court in the instant case as equitable in nature. Therefore, this court may review the circuit court's factual findings in accordance with its own view of the preponderance of the evidence. Nonetheless, we defer to the circuit court's determinations of witness credibility.

"[T]his broad scope does not relieve the appellant of his burden to show that the trial court erred in its findings."

See Laughon, 360 S.C. at 524-25, 602 S.E.2d at 111 (“However, this broad scope of review does not require this court to disregard the findings at trial or ignore the fact that the [circuit court] was in a better position to assess the credibility of the witnesses.”); see also Ballard, 399 S.C. at 593, 733 S.E.2d at 109 (“[T]his broad scope does not relieve the appellant of his burden to show that the trial court erred in its findings.”).

"However, this broad scope of review does not require this court to disregard the findings at trial or ignore the fact that the [circuit court] was in a better position to assess the credibility of the witnesses."


Context: Thus, on appeal, the government argues that Stout waived his right to dispute alleged errors in his presen-tence report. Because Rule 32 contemplates that a defendant will inform the district court of any error in the presentence report prior to, or at, the sentencing hearing, Stout may have waived his right to dispute the probation office's estimate of his offense severity rating.

"There is no question that the defendant can waive the requirements of Rule 32(c

See Brown, 870 F.2d at 1361 (The defendant "was required to object at the sentencing hearing if the presentence report contained any inaccuracies.”); see also United States v. Atehortua, 875 F.2d 149, 151 (7th Cir.1989) (The defendant "has not found any case excusing failure to raise an objection to the presentence report in a timely fashion; neither have we.”); Martorana v. United States, 873 F.2d 283, 284 (11th Cir.1989) (“There is no question that the defendant can waive the requirements of Rule 32(c)(3)(D).”).

The defendant "was required to object at the sentencing hearing if the presentence report contained any inaccuracies."


Context: With regard to the defendant's second claim involving whether or not Dr. Kathryn Edminston is allowed to express her opinion about the risks associated with breast cancer in terms of statistical rates of recurrence over her lifetime, it should be noted that discussions of life expectancy, survival rate and treatment options are not usually considered to be outside the realm of a doctor's expertise.

See also Commonwealth v. Rice, 441 Mass. 291 (holding that generally qualified experts do not require a sub-specialty in order to testify to things within their expertise).

issues of diagnosis, prognosis and causation are matters considered within the normal scope of the patient's care and treatment

Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995) (issues of diagnosis, prognosis and causation are matters considered within the normal scope of the patient’s care and treatment); LaMere v. NY State Office for the Aging, 223 F.R.D. 85, 90 (treating physician can express “an opinion as to the cause of any medical condition present in a patient, the diagnosis, the prognosis and the extent of the disability”) (citing Zanowic v. Ashcroft, 2002 U.S. Dist. LEXIS 3857, 2002 WL 373229, at *3); Cella v. United States, 825 F.Sup. 1383, 1395-96 (N.D.Ind. 1991); Owens-Corning Fiberglas v. Watson, 243 Va. 128, 139-40 (1992).


Context: This Court is inclined to agree. In Clement v. CDC, the Ninth Circuit held that a CDC policy which prohibited inmates from receiving internet generated materials was unconstitutional. That the District Court decision in Clement issued after Defendants' alleged conduct does not change the fact that Plaintiff suffered a constitutional violation.

applying holding on constitutional rights retroactively to "all cases on direct review"

See U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 739, 160 L.Ed.2d 621 (2005) (applying holding on constitutional rights retroactively to “all cases on direct review”); see also Griffith v. Kentucky, 479 U.S., 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“A new rule for conduct of criminal prosecution is applied retroactively to all cases... pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”).

"A new rule for conduct of criminal prosecution is applied retroactively to all cases... pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"