Context: However, "[i]t is hornbook law that the waiver [of the privilege] is limited to the particular proceeding in which the witness appears." The majority rule preserves a witness's right to assert the privilege in subsequent, distinct stages of a single proceeding.

See United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied, 439 U.S. 1005 (1978); United States v. Johnson, 488 F.2d 1206, 1210 (1st Cir. 1973) (noting that testimony before grand jury or other “preliminary and separate proceeding” does not waive right to assert privilege at trial) (quotation omitted); 1 McCormick on Evidence, supra § 140, at 528; cf. State v. Lavallee, 119 N.H. 207, 210, 400 A.2d 480, 482 (1979) (finding that witness could assert privilege to avoid testifying at trial on matters she addressed during probable cause hearing, despite her prior admission to court that she had perjured herself during probable cause hearing).

noting that testimony before grand jury or other "preliminary and separate proceeding" does not waive right to assert privilege at trial


Context: If a probationer is sentenced to an illegal term of probation that exceeds the statutory maximum due to the failure to credit him with prior probation served, and is serving the illegal portion of that term when an affidavit of violation is filed, the affidavit should be dismissed because the trial court's jurisdiction over the probation expired when the maximum probationary term had been served.

See Fellman v. State, 673 So.2d 155 (Fla. 5th DCA 1996) (reversing denial of rule 3.850 motion on facts essentially same as the instant case).

See also Jackson v. State, 654 So.2d 234, 236 (Fla. 4th DCA 1995) (reversing order revoking community control because revocation occurred while appellant was serving illegal portion of illegal sentence).


Context: Since both experts disfavor use of the rule of thumb, we must determine whether the statistics they have presented are reliable and determinative of whether or not the Commission Plan provides sufficient districts with effective electoral opportunities for African-Americans.

applying "flexible, fact-intensive test," including a "practical evaluation of the past and present reality" and a "functional view of the political process"

See Ketchum, 740 F.2d at 1414-15 (stating that district courts have discretion “to determine what an appropriate corrective should be based upon analysis of election data, if such data can yield a meaningful and persuasive result”); see also Gingles, 478 U.S. at 45-46, 106 S.Ct. 2752 (applying “flexible, fact-intensive test,” including a “practical evaluation of the past and present reality” and a “functional view of the political process”).

stating that district courts have discretion "to determine what an appropriate corrective should be based upon analysis of election data, if such data can yield a meaningful and persuasive result"


Context: Under the Blum test, even heavily-regulated private entities generally are held not to be state actors.

"[T]he fact that a business entity is subject to 'extensive and detailed' state regulation does not convert that organization's actions into those of the state."

Desiderio, 191 F.3d, at 206 (“[T]he fact that a business entity is subject to ‘extensive and detailed’ state regulation does not convert that organization’s actions into those of the state.”); see also Jackson, 419 U.S. at 350, 95 S.Ct. 449 (holding that extensively regulated public utilities are not state actors).


Context: Rather, we find that the district judge's evaluation of this ease supported employing physical restraints to further an essential state interest. Notably, the district judge identified this interest on the record at both the March 27, 2012, status conference and the jury-selection proceeding, explaining that the measures were put into place for security purposes.

See Deck, 544 U.S. at 628, 125 S.Ct. at 2012 (stating that an essential state interest may include ensuring physical security, preventing escape, or maintaining courtroom decorum); see also Mayes, 158 F.3d at 1225 (“Courtroom security is a competing interest that may, at times, ‘outweigh[] a defendant’s right to stand trial before the jury untainted by physical reminders of his status as an accused.’” (alteration in original) (quoting Allen, 728 F.2d at 1413)). Given that this case involved violent gang-related charges against multiple defendants, threats against the prosecutors and witnesses that were never proven to be unfounded or untrue, and many trial attendees strongly siding with either the Appellants or the witnesses testifying against them, the district court had a legitimate interest in ensuring the physical security of counsel, witnesses, spectators, and all others who would be present at trial.

"Courtroom security is a competing interest that may, at times, 'outweigh[] a defendant's right to stand trial before the jury untainted by physical reminders of his status as an accused.'" (alteration in original


Context: Whether a debtor may reopen a closed bankruptcy ease when the prejudice to a creditor is cured has been handled on a case by case basis.

See In re Parker, 64 B.R. 402, 404 (Bankr.M.D.Fla.1986) (debtor may reopen case as long as creditor is reimbursed for expenses incurred to enforce liens); Noble v. Yingling, 37 B.R. 647, 651 (D.C.Del. 1984) (same); but see In re Bianucci 4 F.3d at 528 (court refused to reopen case when case had been closed for two years and creditor had incurred expenses to revive its judgment) (citations omitted); Hawkins v. Landmark Fin. Co., 727 F.2d 324 (4th Cir.1984) (court refused to reopen case as eight months had elapsed since it was closed and creditor incurred court costs and attorney fees in commencing foreclosure).


court refused to reopen case as eight months had elapsed since it was closed and creditor incurred court costs and attorney fees in commencing foreclosure


Context: P79 If, conversely, the direct liability claims against the cab company are dismissed and those claims are permitted to "collapse into" the claims against the driver, then it appeal's that the jury would effectively weigh only Ferrer's fault, on the one hand, and the driver's fault, on the other.

noting that in the context of imputed or vicarious liability, "negligence of two or more tortfeasors is treated as a unit, so that so far as the comparative negligence doctrine is concerned it is the same as if only one defendant is involved"

See Watson v. Reg'l Transp. Dist., 762 P.2d 133, 139-40 (Colo. 1988) (noting that the doctrine of vicarious liability stems from considerations other than the defendant’s individual fault and thus rejecting a rule of imputed comparative negligence); Kussman v. City & Cty. of Denver, 706 P.2d 776, 784 (Colo. 1985) (Neighbors, J., concurring) (“[T]he negligence of persons in an imputed negligence relationship' ought to be treated as a unit, whether they are plaintiffs or defendants, for purposes of comparative negligence.”); see also Laubach v. Morgan, 588 P.2d 1071, 1074 n.13 (Okla. 1978) (noting that in the context of imputed or vicarious liability, “negligence of two or more tortfeasors is treated as a unit, so that so far as the comparative negligence doctrine is concerned it is the same as if only one defendant is involved”). In this scenario (i.e., .the direct liability claims against the cab company are dismissed and those claims are permitted to “collapse into” the claims against driver), if the jury finds the parties equally at fault, then it would apportion fifty percent fault to Ferrer and fifty percent fault to the driver, which would prevent Ferrer from recovering anything.

noting that the doctrine of vicarious liability stems from considerations other than the defendant's individual fault and thus rejecting a rule of imputed comparative negligence


Context: This does not mean, however, that the HCT Release has no force and effect if the Mitchells characterize an inherent risk of snowmobiling as a negligence claim. It will be for a jury to decide whether the collision occurred because of the inherent risks of snowmobiling or whether it was caused by negligence, including Ms. Mitchell's negligence, that could and should have been avoided.

"[P]roximate cause is a question of fact for the finder of fact to determine."

See Wells v. Vill. of Orleans, Inc., 132 Vt. 216, 315 A.2d 463, 467 (1974) (“[P]roximate cause is a question of fact for the finder of fact to determine.”); see also Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 771 (1994) (ruling that what constitutes an “obvious or necessary risk” of a sport covered by Vermont’s sports injury statute, is a question of fact to be decided by a jury); Nelson v. Snowridge, Inc., 818 F.Supp. 80, 83 (D.Vt.1993) (“The question of what dangers are obvious and necessary and therefore inhere in a sport is generally one for a jury to decide.”).

ruling that what constitutes an "obvious or necessary risk" of a sport covered by Vermont's sports injury statute, is a question of fact to be decided by a jury


"The question of what dangers are obvious and necessary and therefore inhere in a sport is generally one for a jury to decide."


Context: Contrary to appellant's assertions, there is no requirement that an affidavit in support of an arrest warrant supply the probable cause. That some of the information reflected in the affidavits may have been based on hearsay statements given to officers during their investigation does not render the affidavits invalid.

rejecting claim that arrest warrant was illegal because supporting affidavit contained inaccurate and incomplete information where evidence did "not suggest an intentional or reckless falsehood on the part of the affiant and was not necessary to a finding of probable cause"

See Jones v. United States, 362 U. S. 257, 271 (80 SCt 725, 4 LE2d 697) (1960) (fact that affidavit submitted in support of search warrant relied on hearsay was not alone sufficient to render affidavit invalid), overruled on other grounds, United States v. Salvucci, 448 U. S. 83 (100 SCt 2547, 65 LE2d 619) (1980); Strauss v. Stynchcombe, 224 Ga. 859, 864-865 (165 SE2d 302) (1968) (finding it well settled that probable cause to arrest may be established by hearsay evidence); see also Jones v. State, 287 Ga. 770, 773 (7) (700 SE2d 350) (2010) (rejecting claim that arrest warrant was illegal because supporting affidavit contained inaccurate and incomplete information where evidence did “not suggest an intentional or reckless falsehood on the part of the affiant and was not necessary to a finding of probable cause”).


Context: See McAllister, 29 F.3d at 118A-85 ("[W]hile interpreting federal statutes is a question of federal law, Congress can make the meaning of a statute dependent on state law."). The decisions in Dickerson and Bustamante still stand for the proposition that, absent legislative indication to the contrary, the meaning of "conviction" for purposes of a federal statutory scheme is to be determined under prevailing federal law.

"[Dickerson ] still stands for the general proposition that federal law governs the application of Congressional statutes in the absence of a plain language to the contrary."

See Yanez-Popp v. INS, 998 F.2d 231, 236 (4th Cir.1993) (“[Dickerson ] still stands for the general proposition that federal law governs the application of Congressional statutes in the absence of a plain language to the contrary.”); cf. McAllister, 29 F.3d at 1185 (treating Dickerson as still authoritative, outside context of gun laws, for principle that guilty plea plus probation equals conviction under federal law).


Context: Therefore, Harris contends, the case must be remanded for the district court to make this Rule 403 determination. We disagree. Under the circumstances, the interest in judicial economy, combined with the fact that this is not a close question, lead us to conduct the Rule 403 balancing.

"[W]e have viewed the evidence ... with our own eyes, and can judge the likely prejudice resulting from it as well as the trial judge."

See US v. Schiff, 612 F.2d 73, 80 (2d Cir.1979) (“[W]e have viewed the evidence ... with our own eyes, and can judge the likely prejudice resulting from it as well as the trial judge.”); cf. US v. Sriyuth, 98 F.3d 739, 748 n. 15 (3d Cir.1996) (“[W]e must make this determination in the first instance as the district court record is devoid of any references to a Rule 403 analysis.”).

"[W]e must make this determination in the first instance as the district court record is devoid of any references to a Rule 403 analysis."


Context: Concerns as to whether a proposed plan is abusive of the bankruptcy process can be addressed through the good faith requirement of SS 1129(a)(3). Kenneth N. Klee, Adjusting Chapter 11: Fine Tuning the Plan Process (hereafter "Adjusting Chapter 11 ") 69 Am. Bankr. L.J. 551, 562-63 (Fall, 1995); Markell, Clueless, 11 Bankr.Dev. J. 38; Rusch, Gerrymandering, 63 U. Colo. L.Rev. at 204. Furthermore, before a plan can be crammed down, the proponent must demonstrate that the plan does not unfairly discriminate against and is fair and equita ble to any class that rejects it.

stating that "whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code"

See ZRM-Oklahoma, 156 B.R. at 71 (observing that concerns expressed by Greystone III and its progeny are adequately addressed through other provisions of the Code such as §§ 1129(a)(3), 1129(a)(7) & 1129(b)); see also Klee, Adjusting Chapter 11, 69 Am.Bankr.L.J. at 562; Markel, Clueless, 11 Bankr.Dev. J. at 43; Rusch, Gerrymandering, 63 U. Colo. L.Rev. at 200-01. Furthermore, we must presume that Congress carefully crafted the provisions of § 1129 with an eye toward ensuring that the reorganization process does not impose inequitable results upon the parties in involved. Cf. Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) (stating that “whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confínes of the Bankruptcy Code”).

observing that concerns expressed by Greystone III and its progeny are adequately addressed through other provisions of the Code such as SSSS 1129(a


Context: In the absence of any physical evidence to determine the medical effects of the accident on Mr. Parra, his list of illnesses is too long to attribute causation to the accident. To support her case for benefits, it is the plaintiffs burden to establish that the accident caused her husband's death, or at least was an external event that set in motion a series of events that resulted in his death.

defining "accidental death" as caused by some event or occurrence unforeseen and external to the deceased that is the proximate or sole cause of death

See Ells, 20 Cal.2d at 304, 125 P.2d 457 (holding that the burden is on the plaintiff); see Brooks, 27 Cal.2d at 309-10, 163 P.2d 689 (finding a preexisting illness is no bar to recovery if it sets in motion a chain of events resulting in death); see also Khatchatrian v. Continental Casualty Co., 198 F.Supp.2d 1157, 1162 (C.D.Cal.2002) (defining “accidental death” as caused by some event or occurrence unforeseen and external to the deceased that is the proximate or sole cause of death). Plaintiff does not present the Court with enough evidence to satisfy her burden.


Context: Once we conclude (as we must here) that the employer's asserted reason for the decision involves legislative activity protected by the Speech or Debate Clause, I believe (unlike the majority opinion) that the case must come to an end. I do not see how a plaintiff employee such as Howard can attempt to prove either that she in fact adequately performed her legislative activities or that her performance of legislative activities was not the actual reason for the employment action without forcing the employer to produce evidence that she did not adequately perform her legislative activities and that her poor performance of legislative activities was the actual reason for the employment action. But the Speech or Debate Clause protects the defendant from being forced to produce such evidence of legislative activities.

permissive inference violated Speech or Debate Clause where it "virtually compelled] Swindall to justify his legislative actions"

See United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C.Cir.1995) (distinguishing voluntary production of protected evidence from production that “is necessary”); see also United States v. Swindall, 971 F.2d 1531, 1546 (11th Cir.1992) (permissive inference violated Speech or Debate Clause where it “virtually compelled] Swindall to justify his legislative actions”).

distinguishing voluntary production of protected evidence from production that "is necessary"


Context: The district court did not abuse its discretion when it found that the Commission could not prove its case as pleaded. As the Supreme Court explained in Christiansburg, a prevailing defendant in a Title VII action may be awarded attorney fees if the plaintiffs claim was "frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so." A party alleging a disparate-impact theory must allege a specific employment practice in the complaint.

See Johnson, 30 F.3d at 48; see also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 642 (3d Cir.1993) (requiring plaintiff to plead specific employment practice in complaint); Kulkarni v. City Univ. of N.Y., No. 01 CIV. 10628(DLC), 2002 WL 1315596, at *2 (S.D.N.Y. June 14, 2002) (“Swierkiewicz does not, however, relieve plaintiff of the obligation to identify in his pleadings a specific employment practice that is the cause of the disparate impact.”); cf. Seasonwein v. First Montauk Sec. Corp., 189 Fed.Appx. 106, 111 (3d Cir.2006) (requiring in an ADEA case that the plaintiffs plead a specific employment practice to be challenged when alleging a disparate-impact claim).

"Swierkiewicz does not, however, relieve plaintiff of the obligation to identify in his pleadings a specific employment practice that is the cause of the disparate impact."


Context: . Plaintiff's argument regarding an alleged waiver of defendants' right to bring this motion is unavailing. Essentially, plaintiff urges this Court to consider defense counsel's representation to the Court during a pre-trial conference, that he would not bring this motion as a stumbling block to his right to bring the motion at all. Clearly, this Court cannot prevent a party from making a motion that it is entitled to bring under the Federal Rules of Civil Procedure.

"Although we have recognized that it is within the judge's discretion to hold a pre-motion conference for the purpose of persuading a party not to file a perceived meritless motion, we have made it clear that the judge may not require that the court's permission be secured at such a conference before a party may file the motion."

See Eisemann v. Greene, 204 F.3d 393, 397 (2d Cir.2000) ("Although we have recognized that it is within the judge's discretion to hold a pre-motion conference for the purpose of persuading a party not to file a perceived meritless motion, we have made it clear that the judge may not require that the court’s permission be secured at such a conference before a party may file the motion.”) (internal quotations omitted); see also Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.1987) (“Absent extraordinary circumstances, ... a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure.”).

"Absent extraordinary circumstances, ... a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure."


Context: Plaintiff argues that the core function of the IRGC is commercial, and therefore it is merely an agency or instrumentality of the state and is subject to punitive damages. In previous actions, this Court has repeatedly declined to award punitive damages against the IRGC finding that, under Roeder, the IRGC is governmental rather than a commercial entity.

See Heiser, 466 F.Supp.2d at 270-71 (concluding that there was insufficient evidence to determine that the IRGC is commercial); Blais, 459 F.Supp.2d at 60-61 (same); Prevatt v. Islamic Republic of Iran, 421 F.Supp.2d 152, 162 (D.D.C.2006) (Lam-berth, J.) (finding no evidence that the IRGC’s functions are commercial rather than governmental); Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1, 32-33 (D.D.C.2005) (Kollar-Kotelly, J.) (declining to award punitive damages but acknowledging that the IRGC “appears to be a true ‘instrumentality’ of the dominant party of the state, used by the government and its officials in largely ‘illegal,’ paramilitary, and sub rosa activities”); Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 116 (D.D.C.2005) (Bates, J.) (recognizing that “the IRGC does not easily fit into Roeder’s dichotomy” but determining that the IRGC is more like an “armed force” than a commercial agency or instrumentality of the state); Welch v. Islamic Republic of Iran, Civ. A. No. 01-863, 2004 WL 2216534, *5 (D.D.C. Sept. 27, 2004) (Kay, Mag. J.) (finding that the IRGC’s core functions were analogous to those of MOIS); but see Bayani v. Islamic Republic of Iran, 530 F.Supp.2d 40, 46 (D.D.C.2007) (Kennedy, J.) (awarding punitive damages against the IRGC in the amount of $400 million).


finding no evidence that the IRGC's functions are commercial rather than governmental


declining to award punitive damages but acknowledging that the IRGC "appears to be a true 'instrumentality' of the dominant party of the state, used by the government and its officials in largely 'illegal,' paramilitary, and sub rosa activities"


recognizing that "the IRGC does not easily fit into Roeder's dichotomy" but determining that the IRGC is more like an "armed force" than a commercial agency or instrumentality of the state


Context: The two defense experts essentially testified that the most logical theory was that Mansur stood as he was shot, with his right arm out of the way, as if he were reaching for something, but they agreed this was not the only theory that could explain the forensic evidence. Dr. MacDonell would have agreed that the defense theory was the most, maybe only, logical outcome, but that one "can't be a certain of a theory like that," because "anything is possible," The difference between Dr. MacDonell's opinion and the other experts' opinions was negligible.

See United States v. Gonzalez, 62 M.J. 303, 307 (C.A.A.F.2006) (noting that the overlapping nature of the evidence undercuts an argument that the failure to disclose pursuant to Brady was prejudicial); see also United States v. Agurs, 427 U.S. 97, 114, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (noting that the alleged Brady material did not contradict any evidence already admitted and was similar to other evidence in the record in holding that there was no Brady violation).


Context: The district court properly granted summary judgment because the complaint, filed more than eleven years after St. Amand's claims accrued, was barred by the applicable one-year statute of limitations, and St. Amand failed to establish circumstances warranting equitable tolling.

See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.2004) (for § 1983 actions, “courts apply the forum state’s statute of limitations for personal injury actions, along with the forum state’s law regarding tolling”); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137 n. 2 (9th Cir.2002) (California personal injury statute of limitations is applicable to ADA and Rehabilitation Act claims); Cal.Civ.Proc.Code § 340(c) (2000) (personal injury claims subject to one-year statute of limitations); cf. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (equitable tolling is unavailable in most cases and is appropriate only if there are extraordinary circumstances beyond a plaintiffs control making it impossible to timely file).

for SS 1983 actions, "courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling"


California personal injury statute of limitations is applicable to ADA and Rehabilitation Act claims


Context: All three individuals timely filed their own administrative charges, and in this lawsuit are pressing claims brought in those charges. It follows that Dancy, Shumaker, and Russell may not rely on McQueen's charge or any of its claims, including the disparate impact claim, in an effort to satisfy the exhaustion requirement.

"allowing an individual who has previously filed a charge to abandon that charge and piggyback onto the charge of another individual would too often frustrate the EEOC's statutorily-mandated efforts to resolve an individual charge through informal conciliation"

See Holowecki, 440 F.3d at 564-65 (“allowing an individual who has previously filed a charge to abandon that charge and piggyback onto the charge of another individual would too often frustrate the EEOC’s statutorily-mandated efforts to resolve an individual charge through informal conciliation”); Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 558 (11th Cir.1997) (“such a plaintiff should be required to rely upon his or her own ... charge, and cannot reasonably rely upon [an]other claimant’s charge”); Anderson v. Unisys Corp., 47 F.3d 302, 309 (8th Cir.1995) (“once they file separate administrative charges, they cannot rely any further on the other claimant’s actions and must timely file suit after receiving their right-to-sue letters”); Flemming, 2004 WL 2314962, at *2 (single-filing rule “implies that a plaintiff who does receive a right-to-sue letter may not enjoy the benefit of piggy-backing”); see also Campbell v. Nat’l R.R. Passenger Corp., 163 F.Supp.2d 19, 25 (D.D.C.2001) (“The single-file rule allows an individual plaintiff, who has not filed an EEOC charge, to satisfy the administrative exhaustion requirements under Title VII by relying on a charge filed by another plaintiff.”).

"The single-file rule allows an individual plaintiff, who has not filed an EEOC charge, to satisfy the administrative exhaustion requirements under Title VII by relying on a charge filed by another plaintiff."


"such a plaintiff should be required to rely upon his or her own ... charge, and cannot reasonably rely upon [an]other claimant's charge"


"once they file separate administrative charges, they cannot rely any further on the other claimant's actions and must timely file suit after receiving their right-to-sue letters"


single-filing rule "implies that a plaintiff who does receive a right-to-sue letter may not enjoy the benefit of piggy-backing"


Context: For these reasons, the in camera evidence showed that the informant, as an eyewitness to the purchase, could potentially give testimony necessary to a fair determination of appellant's guilt or innocence, specifically, appellant's entrapment defense. See Tex.R.

holding trial court erred in not holding in camera hearing when defendant showed that he needed to know, for possible entrapment defense, whether informant was certain individual who had been in appellant's apartment on given day

Evid. 508(c)(2); Anderson, 817 S.W.2d at 72 (holding defendant met initial burden under rule 508(c)(2) because showed informant was eyewitness to crime); cf. Bodin, 807 S.W.2d at 318-19 (holding trial court erred in not holding in camera hearing when defendant showed that he needed to know, for possible entrapment defense, whether informant was certain individual who had been in appellant’s apartment on given day).


Context: This statement is plainly insufficient to show substantial prejudice. Defendant offered no specific explanation as to what his testimony would have been in the case involving J.G., nor did he explain why he could not give this testimony at a joint trial.

"[A] particularized showing must be made concerning the testimony the defendant wishes to give and his reasons for remaining silent on the joined counts, so that the court can make an independent evaluation of whether the defendant will be prejudiced to an extent that outweighs the interest favoring joinder."

See id. (basing conclusion on similar reasoning); Baker, 401 F.2d at 977 (“[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.”); see also United States v. Jamar, 561 F.2d 1103, 1108 n.9 (4th Cir. 1977) (“[A] particularized showing must be made concerning the testimony the defendant wishes to give and his reasons for remaining silent on the joined counts, so that the court can make an independent evaluation of whether the defendant will be prejudiced to an extent that outweighs the interest favoring joinder.”).

"[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other."


Context: We doubt that Mills's sentence was imposed in a procedurally unreasonable manner.

"The sentencing judge should set forth [reasoning] enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority."

See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (“The sentencing judge should set forth [reasoning] enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.”); see also United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir.2007) (stating that although “[n]on-frivolous arguments fór a non-Guidelines sentence” may require some discussion, “we do not insist that the district court address every argument the defendant has made or discuss every § 3553(a) factor individually”).

stating that although "[n]on-frivolous arguments for a non-Guidelines sentence" may require some discussion, "we do not insist that the district court address every argument the defendant has made or discuss every SS 3553(a


Context: . Although the Armstrong and Bass Courts focused on similarly situated as part of the discriminatory effect analysis, evidence of differential treatment is also probative of discriminatory intent.

See United States v. Smith, 231 F.3d 800, 809 (11th Cir.2000) ("recognizing] that the nature of the two prongs of a selective prosecution showing are such that they -will often overlap to some extent”); cf. Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir.2013) (indicating that, in a civil case where discrimination is alleged, preferential treatment of a similarly situated person can be evidence of discriminatory intent).

"recognizing] that the nature of the two prongs of a selective prosecution showing are such that they -will often overlap to some extent"


Context: A statement in the WPEA's legislative history suggests that at least' some of its provisions could apply retroactively to cover appeals pending on or after the Act's effective date. That statement, however, is insufficient, standing alone, to override the unequivocal statutory language and demonstrate a "clear intent" that the WPEA apply retroactively to provide the board with jurisdiction over agency removal actions occurring long before its enactment.

"The language of the statute at issue in- this case is clear and unambiguous, and absent extraordinary circumstances our inquiry must end here."

Landgraf, 511 U.S. at 272-73, 114 S.Ct. 1483 (“Requiring clear intent assures that Congress itself has affirmatively considered the potential unfair ness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.”); see also Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1192 (Fed.Cir.2004) (“If the statute is unambiguous, our inquiry is at an end; we must enforce the congressional intent embodied in that plain wording.”); Norfolk Dredging Co., Inc. v. United States, 375 F.3d 1106, 1110 (Fed. Cir.2004) (“The language of the statute at issue in- this case is clear and unambiguous, and absent extraordinary circumstances our inquiry must end here.”).

"Requiring clear intent assures that Congress itself has affirmatively considered the potential unfair ness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits."


Context: Although the prosecutor did improperly vouch for government witnesses by mentioning during rebuttal argument that the border patrol agents were "sworn to uphold the law," the district court immediately sustained the defense attorney's objection, and instructed the jury to disregard the comment, rendering any error harmless. The district court did not abuse its discretion in denying Alcantara's request for a curative instruction, as the district court properly held that the jury had been fully instructed concerning the credibility of government witnesses, and its prompt instruction to disregard the isolated comment sufficiently remedied any error.

holding that the district court's swift response instructing the jury to disregard the improper comment "prevented ... [the] improper comment from materially affecting the verdict"

See United States v. Dorsey, 677 F.3d 944, 955 (9th Cir.2012) (holding that the district court’s swift response instructing the jury to disregard the improper comment “prevented ... [the] improper comment from materially affecting the verdict”) (citation omitted); see also United States v. Washington, 462 F.3d 1124, 1136 (9th Cir.2006) (“A judge’s prompt corrective action in response to improper comments usually is sufficient to cure any problems arising from such improper comments....”) (citations omitted).

"A judge's prompt corrective action in response to improper comments usually is sufficient to cure any problems arising from such improper comments...."


Context: The plaintiff has pled that Caremark is a "fiduciary" because "it exercises authority and control over Plan assets and when negotiating and/or collecting rebates, discounts, interest, fees, and other pricing mechanisms with or forms of compensation from entities dealing with the Plans." (Docket No. 44 P 21.) The plaintiff has also pled that "Caremark is an ERISA fiduciary in its relationship to the Plans because Caremark exercises discretionary authority and control over the administration and management of the Plans."

Id. at ¶ 22. Because plaintiffs have alleged that Caremark, Inc. has wide discretion to administer and manage benefits under the Plan, the court finds that it has adequately pled Caremark Inc.’s status as a fiduciary to survive a motion to dismiss. See Hill, 409 F.3d at 717 (finding that, because plaintiffs alleged in their complaint that the defendant had discretion to grant or deny plaintiffs’ claims, plaintiffs had adequately pled ERISA fiduciary status to survive a motion to dismiss); see also Mulder v. PCS Health Sys., Inc., Civ. No. 98-1003(WGB), at 16 (D.N.J. Aug. 31, 1999) (concluding, in a factually similar case, that “[hjowever skeptical the Court may be of the existence of evidentiary support for this allegation, it is sufficient to establish PCS’s fiduciary status for the purpose of this motion to dismiss.”). But see Chicago Dist. Council of Carpenters Welfare Fund v. Caremark Rx, Inc., No. 04 C 5868, 2005 WL 991897, at *8 (N.D.Ill. April 14, 2005) (concluding, on a motion to dismiss in a factually similar case, that defendant pharmacy benefit managers were not ERISA fiduciaries); Bickley, 361 F.Supp.2d at 1334 (same).

finding that, because plaintiffs alleged in their complaint that the defendant had discretion to grant or deny plaintiffs' claims, plaintiffs had adequately pled ERISA fiduciary status to survive a motion to dismiss


Context: Further, even assuming that there is some mandate requiring, generally, that waist chains be used for inmates such as Ashley, C. Warren is incorrect in arguing that the misapplication of the waist chain in this instance would open the BOP up to FTCA liability. The Court considers the application of restraints to be a delicate policy-balancing act involving considerations of the individual prisoner and the specific circumstances requiring the prisoner's restraint, similar to the discretionary decisions the BOP must make when designating inmates to particular facilities and placing inmates in cells with other inmates.

"[I]f a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same polices which led to the promulgation of the regulations."

See also United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 (“[I]f a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same polices which led to the promulgation of the regulations.”).

"Rather, when the relevant law leaves room for officials to exercise policy-oriented discretion in a particu lar area, that discretion will be protected even with regard to what may seem to be details of implementation."

See Lopez v. United States, 376 F.3d 1055, at 1060-61 (10th Cir. 2004) (“Rather, when the relevant law leaves room for officials to exercise policy-oriented discretion in a particu lar area, that discretion will be protected even with regard to what may seem to be details of implementation.”)(emphasis added).


"Deciding how to classify prisoners and choosing the institution in which to place them are part and parcel of the inherently policy-laden endeavor of maintaining order and preserving security within our nation's prisons."

Cf. Cohen v. United States, 151 F.3d at 1344 (“Deciding how to classify prisoners and choosing the institution in which to place them are part and parcel of the inherently policy-laden endeavor of maintaining order and preserving security within our nation’s prisons.”).


Context: Permitting material not required by the constitution or statutes arguably opens "the process to misleading information and even to mudslinging and partisan tactics." See also Columbia River Salmon & Tuna Pack.

See, e.g., Boyd v. Jordan, 1 Cal.2d 468, 472, 35 P.2d 533, 534 (1934) (short title made no reference whatsoever to a tax, even though the sole purpose of the measure was to raise revenue for government); Columbia River, 232 Or. at 232, 375 P.2d at 72 (ballot title invited voters to restrict commercial fishing for steelhead, when in fact the measure would ban all fishing on the Columbia River).

Ass’n v. Appling, 232 Or. 230, 233, 375 P.2d 71, 72 (1962) (encouraging petitioners to masquerade under misleading captions opens the initiative process to abuse). We agree, therefore, with the many cases Miller cited that criticize the use of short titles containing either untrue representations designed to defraud potential signatories, or highly inflammatory language calculated to incite partisan rage.


ballot title invited voters to restrict commercial fishing for steelhead, when in fact the measure would ban all fishing on the Columbia River


Context: The Court notes that an appellant who feels that the deferral of a decision in his claim was not appropriate or has delayed a final decision unreasonably is not without recourse. The appropriate action would be to file a petition with the Court challenging the Secretary's delay.

Cf. DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006) (noting that a claimant may file a petition if Secretary refuses to process a pending claim); but see Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (cautioning that a petition for extraordinary relief may only be granted where: (1) The petitioner lacks adequate alternative means to attain the desired relief; (2) the petitioner demonstrates a clear and indisputable right to the writ; and (3) the Court is convinced that the issuance of the writ is warranted).


Context: To the extent that Dorman bases its defamation claim on statements made by Dayco that assert or imply only that Dorman's products are inferior, it has failed to state a cause of action. Allegations that another company's products are inferior are "par for the course" in business and are "the most innocuous kind of puffing," generally not capable of misleading the public.

"[F]alse statements simply indicating that plaintiffs business goods were of inferior quality ... do not accuse plaintiff of dishonesty, lack of integrity or incompetence nor even imply any reprehensible personal characteristic, and are therefore not defamatory."

U.S. Healthcare, Inc., 898 F.2d at 925 (statement by Blue Cross-Blue Shield asserting that personal choice insurance was “Better than HMO” not actionable as defamation claim by U.S. Healthcare, a leading provider of HMOs); See also Polygram Records, Inc. v. Superior Court, 170 Cal.App.3d 543, 550, 216 Cal.Rptr. 252 (Cal.CtApp.1985) (“[F]alse statements simply indicating that plaintiffs business goods were of inferior quality ... do not accuse plaintiff of dishonesty, lack of integrity or incompetence nor even imply any reprehensible personal characteristic, and are therefore not defamatory.”).

statement by Blue Cross-Blue Shield asserting that personal choice insurance was "Better than HMO" not actionable as defamation claim by U.S. Healthcare, a leading provider of HMOs


Context: Finally, the close proximity in both time and location between the crime and the Show-up here helped ensure its reliability. The fact that the Show-up took place approximately four blocks away from the crime, and within thirty to forty-five minutes of the event, mitigated any potential prejudice that might have resulted from Farmian viewing Valtin in police custody.

"Such promptness of identification is recognized to be a powerful sign of its trustworthiness, for it suggests that the identification was based on a fresh mental picture of the criminal's features."

See, e.g., Johnson v. Gilmore, 940 F.2d 665, 1991 WL 155984, at *4 (7th Cir. Aug.15, 1991) (unpublished table decision) (show-up occurring twelve to eighteen minutes after crime is close enough in proximity to “significantly diminish[ ] the concern of misidentification due to fading memory”); Zelker, 455 F.2d at 716 (holding show-up to be reasonable because “[w]hen the two suspects were brought to [be seen by the identifier], only 30 minutes had elapsed since [the identifier had] reported the crime.”); see also Willin v. Ajello, 496 F.Supp. 804, 809 (D.Conn.1980) (“Such promptness of identification is recognized to be a powerful sign of its trustworthiness, for it suggests that the identification was based on a fresh mental picture of the criminal’s features.”).

holding show-up to be reasonable because "[w]hen the two suspects were brought to [be seen by the identifier], only 30 minutes had elapsed since [the identifier had] reported the crime."


Context: Surely, the concept cannot place on the allegedly aggrieved party the burden of demonstrating that the trier of fact would certainly have come to a different conclusion had the evidence been before it. We have also said that the exclusion of particular evidence would not require a new trial where, analyzing the facts, it was most unlikely that the jury would have been affected by the error (if indeed there had been any error).

the erroneous exclusion of evidence requires a new trial "unless it can be seen that, even if it had been admitted and believed, still the verdict" would have been the same

Drake v. Goodman, 386 Mass. 88, 94 (1982). See Daley v. American Printing Co., 150 Mass. 77, 81 (1889) (the erroneous exclusion of evidence requires a new trial “unless it can be seen that, even if it had been admitted and believed, still the verdict” would have been the same).

party showing error in exclusion of evidence must also show "reasonable probability of harm"

But see Bendett v. Bendett, 315 Mass. 59, 65 (1943) (party showing error in exclusion of evidence must also show “reasonable probability of harm”).


Context: . The parties agree that, in his capacity as a law enforcement officer, Boone is a public official for purposes of this defamation action.

See McClain v. Arnold, 275 S.C. 282, 270 S.E.2d 124 (1980) (joining the majority of jurisdictions in holding that a police officer is a public official for defamation actions, thereby requiring the plaintiff's proof of actual malice); see also Botchie v. O’Dowd, 315 S.C. 126, 432 S.E.2d 458 (1993) (applying actual malice standard to deputy sheriff's defamation action); Gause v. Doe, 317 S.C. 39, 451 S.E.2d 408 (Ct.App.1994) (public officials such as police officers must establish actual malice).


Context: The Second Circuit, prior to Daubert, departed from a strict application of the Frye general acceptance test, though, as in Dau- bert, acceptance of the proffered evidence in the scientific community has been a considered factor.

noting that defendant's argument that Rea and Bortnovsky must be revisited in light of Daubert was tenuous, as the Second Circuit found in Williams that a determination of admissibility of scientific evidence should be made under the Federal Rules

See United States v. Lech, 895 F.Supp. 582, 585 (S.D.N.Y.1995) (noting that defendant’s argument that Rea and Bortnovsky must be revisited in light of Daubert was tenuous, as the Second Circuit found in Williams that a determination of admissibility of scientific evidence should be made under the Federal Rules).

United States v. Bortnovsky, 879 F.2d 30, 35 (2d Cir.1989); United States v. Rea, 958 F.2d 1206, 1224 (2d Cir.1992) (referring to absence of demonstrated reliability and relevance of polygraph evidence in record, as later mandated to be considered in Daubert). Therefore, defendants argue that under the standard later enunciated in Daubert, the Second Circuit has already found polygraph evidence inadmissible under Rule 702.


Context: . This court's child custody cases manifest a tension between older decisions that apply a "fitness" test and more recent ones that focus instead on the "best interests of the child."

Compare Johnson v. Lloyd, 211 A.2d 764, 765 (D.C. 1965) ("The established rule in this jurisdiction is that one who would withhold a child from its natural parent has the burden of proving that the natural parent is unfit to have custody and that the child’s welfare compels awarding custody to the nonparent.”) with In re K.A., 484 A.2d 992, 997 & n. 2 (D.C.1984) (applying "best interests of the child” test to termination of parental rights where natural father refused to consent but never had had custody of child); see also Shelton, 526 A.2d at 580 n. 3 (recognizing the two lines of child custody cases but declining to resolve conflict).

"The established rule in this jurisdiction is that one who would withhold a child from its natural parent has the burden of proving that the natural parent is unfit to have custody and that the child's welfare compels awarding custody to the nonparent."


Context: But the fact that a contract may be substantively or proce durally unconscionable as violative of public policy does not automatically shoehorn a party's conduct in entering into the contract with a consumer into the DTPA's definition of "unconscionable action or course of action." See Tex. Bus. & Com. Code Ann. SS 17.45(5) (defining "unconscionable action or course of action" as meaning "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree"). Case law uniformly holds to the contrary; the unconscionable-act-or-course-of-action element of a DTPA section 17.50 unconseionability claim requires proof of each consumer's knowledge, ability, experience, or capacity. Id. SS 17.50. A DTPA section 17.50(a)(3) unconseionability claim requires a consumer (here the Keys and each class member) to show that the defendant's acts (the acts of LSRC) took advantage of the consumer's lack of knowledge and that .the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated.

holding that even under the UCC--as opposed to the DTPA here--court is to make a "highly fact-specific inquiry into the circumstances of the bargain, such as the commercial atmosphere in which the agreement was made, the alternatives available to the parties at the time and their ability to bargain, any illegality or public policy concerns, and the agreement's oppressive or shocking nature" when determining unconseionability

See, e.g., Ryan, 477 S.W.3d at 913-14 (reversing class certification of DTPA unconseionability claim because “determining whether Hicks’[s] actions were unconscionable requires evaluation of each member’s individual circumstances”); Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 105-06 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (affirming denial of class certification of DTPA unconseionability claini because individualized inquiry into each buyer’s circumstances is required to answer the question “whether the charging of a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations is an unconscionable ... act”); Peltier Enter., Inc. v. Hilton, 51 S.W.3d 616, 623-24 (Tex. App.—Tyler 2000, pet. denied) (reversing class certification of DTPA unconscionability claim because “[t]here must be a showing of what the consumer could have or would have done if he had known about the information ... there would need to be some showing of each customer’s ‘knowledge, ability, experience, or capacity”’); see also Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (holding that even under the UCC—as opposed to the DTPA here—court is to make a “highly fact-specific inquiry into the circumstances of the bargain, such as the commercial atmosphere in which the agreement was made, the alternatives available to the parties at the time and their ability to bargain, any illegality or public policy concerns, and the agreement’s oppressive or shocking nature” when determining unconseionability).

reversing class certification of DTPA unconseionability claim because "determining whether Hicks'[s] actions were unconscionable requires evaluation of each member's individual circumstances"


Context: The Supreme Court has not held that a state or federal trial court's denial of a motion to sever can, in itself, violate the Constitution.

See Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (discussing joinder and severance in the context of Rules 8 and 14 of the Federal Rules of Criminal Procedure); United States v. Lane, 474 U.S. 438, 446 & n. 8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (discussing misjoinder under Rule 8 of the Federal Rules of Criminal Procedure); see also Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir.2010) (holding that neither Zafiro nor Lane established a constitutional standard binding on the states); Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir.2012) (reiterating the holding in Collins and holding that “[n]either decision is ‘clearly established Federal law’ sufficient to support a habeas challenge under § 2254”).


reiterating the holding in Collins and holding that "[n]either decision is 'clearly established Federal law' sufficient to support a habeas challenge under SS 2254"


discussing misjoinder under Rule 8 of the Federal Rules of Criminal Procedure


Context: Because Oncor's failure to turn off an existing energized electrical transformer was not contemporaneous with Murillo's injury, it is insufficient to create liability for general negligence. Without evidence of contemporaneous conduct, Murillo's claim against Oncor is "a nonfeasance theory, based on [Oncor's] failure to take measures to .make the property safe," and not an activity "based on affirmative, contemporaneous conduct by [Oncor] that caused the injury."

See, e.g., Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 748 (Tex.1973) (holding that premises owner had no duty to warn electrical subcontractor of potential for electric shock from condition which subcontractor was hired to repair); Shell Oil Co. v. Songer, 710 S.W.2d 615, 620-21 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (concluding that Shell did not have legal duty to protect electrician-contractor by de-energizing electrical system while under repair); Corpus v. K-J Oil Co., 720 S.W.2d 672, 674 (Tex.App.-Austin 1986, writ ref'd n.r.e.) (concluding that premises occupier was not liable for crew-member’s injury when rig boom made contact with overhead electric power line; power line was reasonably apparent condition and did not give rise to duty to warn); Allen v. Tex. Elec. Serv. Co., 350 S.W.2d 866, 868-69 (Tex.Civ.App.-Fort Worth 1961, writ ref'd n.r.e) (affirming take-nothing judgment on grounds that electric service company had no right of control and owed no duty to warn electrical worker hired to repair power lines injured when he came into contact with energized line); see also Le Vonas v. Acme Paper Bd. Co., 184 Md. 16, 40 A.2d 43, 47 (1944) (holding that company that retained independent contractor to hoist steel beams to roof had no duty to warn contractor’s employees who sustained injuries when beam made contact with live wires hanging near cable used to hoist beams), cited with approval in Allen, 350 S.W.2d at 869.

holding that company that retained independent contractor to hoist steel beams to roof had no duty to warn contractor's employees who sustained injuries when beam made contact with live wires hanging near cable used to hoist beams


Context: . An example of a civil proceeding involving a related criminal proceeding is a forfeiture of an appearance bond in a criminal proceeding.

Cf. State v. Torres, 2004 OK 12, 87 P.3d 572 (forfeiture of an appearance bond for a felony defendant appealed to the Supreme Court).

Dunn v. State, 1917 OK 269, 166 P. 193 (Appeal from order overruling motion to vacate a judgment of forfeiture upon appearance bond is civil and not criminal case, and lies to Supreme Court.); Hargrove v. State, ex rel. Dennis, 1964 OK CR 105, 396 P.2d 675, 676 (appearance bond forfeiture proceeding is a civil case, not a criminal case).


appearance bond forfeiture proceeding is a civil case, not a criminal case


Context: From the evidence presented, we conclude that the jury could infer that, had the styrofoam loads been enclosed with mesh wrapping or lifted on a platform with guardrails, the incident would have more likely than not been prevented.

finding an expert's opinions would not be helpful to the jury, as the conclusions simply told the jury how to view the facts and involved matters within the average juror's common knowledge

Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 388 (Miss.2001) (“The general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to the jury.”); see also K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 361 (Tex.2000) (finding an expert’s opinions would not be helpful to the jury, as the conclusions simply told the jury how to view the facts and involved matters within the average juror’s common knowledge).

finding that company rules and common sense made it the appellant's duty to see that a pistol was loaded properly, and the jury could have found that the appellant's negligence was the sole proximate cause of an accident

See Ry. Express Agency, Inc. v. Cox, 179 F.2d 593, 595 (5th Cir.1950) (finding that company rules and common sense made it the appellant’s duty to see that a pistol was loaded properly, and the jury could have found that the appellant’s negligence was the sole proximate cause of an accident). We agree with the trial judge that this case involved the basic common sense of an average layperson and, therefore, West’s failure to present expert testimony on causation was not detrimental to his negligence claim.


"The general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to the jury."


Context: Moreover, because the language of article VIII is plain, it is improper to explore its legislative history, as the dissent would have us do. "The rule which should be applied is that laws, and especially foundational laws such as our Constitution, should be interpreted and applied according to the plain import of their language as it would be understood by persons of ordinary intelligence and experience."

"Where statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent."

State v. Phillips, 540 P.2d 936, 938 (Utah 1975), disavowed on other grounds, State v. Taylor, 664 P.2d 439, 448 n. 4 (Utah 1983); see also University of Utah v. Board of Examiners, 4 Utah 2d 408, 428, 295 P.2d 348, 361 (1956) (holding that if constitutional provision is clear, “then extraneous or contemporaneous construction may not be resorted to”); Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 944 (Utah 1993) (Stewart, J., dissenting) (stating that because this court is sworn to uphold language of constitution, we must enforce plain and unambiguous language contained therein); cf. Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989) (“Where statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent.”).

holding that if constitutional provision is clear, "then extraneous or contemporaneous construction may not be resorted to"


Context: Perhaps Dosa viewed the bribery of even sympathetic colonels as something one takes for granted as a prison escapee in Togo. Perhaps he was worried about declaring on a government form that he had been involved in bribing an official. We will never know. I do not believe, however, that the IJ's inferences that the bribery never took place, and that Dosa's credibility was undermined by his claim that it did, were so self-evident that the IJ was warranted in relying on them without any explanation.

"If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot."

See Lam v. Ashcroft, 112 Fed.Appx. 477, 479 (6th Cir.2004) (unpublished) (“Courts have diminished the significance of omissions when an applicant testifies at a hearing about something that is left out of his initial application because of the limited space available on the application forms.”) (citing Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003)); Secaida-Rosales, 331 F.3d at 308 (“If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot.”); see also Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994) (IJ must offer a “specific, cogent reason for any stated disbelief.”).

IJ must offer a "specific, cogent reason for any stated disbelief."


Context: First, the notice requirement is only three days. Second, a university is less able than a city or other entity with police powers to deal with a significant disruption on short notice.

"[a] college has a right to preserve the campus for its intended purpose and to protect college students from the pressures of solicitation"

Mote, 321 F.Supp.2d at 681 (“a University’s resources are limited and the University has an interest in reserving those resources for University community members”); see also Glover v. Cole, 762 F.2d 1197, 1203 (4th Cir.1985) (“[a] college has a right to preserve the campus for its intended purpose and to protect college students from the pressures of solicitation”). In light of the modest nature of the requirement and what the district court described as the University’s reduced capacity to address “the exigencies of determining what, if any, security, crowd control, additional insurance, etc., will be required for a particular event,” we conclude that the advance notice requirement is sufficiently narrowly tailored, and thus permissible.

"a University's resources are limited and the University has an interest in reserving those resources for University community members"


Context: For example, nothing in the statute provides that an ALJ may convene a jury. Under New York law, a party is entitled to have a jury trial on a breach of contract claim for damages. See Motor Vehicle Mfrs.

"[A]ll cases afforded a jury trial under the common law prior to 1777 ... come within the present constitutional guarantee [of a jury trial] in article I, SS 2 [of the New York Constitution]."

Ass’n of the U.S. v. State, 75 N.Y.2d 175, 181, 551 N.Y.S.2d 470, 550 N.E.2d 919 (1990) (“[A]ll cases afforded a jury trial under the common law prior to 1777 ... come within the present constitutional guarantee [of a jury trial] in article I, § 2 [of the New York Constitution].”); see also Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U.S. 442, 459, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977) (“[S]uits for damages for breach of contract ... were suits at common law with the issues of the making of the contract and its breach to be decided by a jury.”). In addition, 42 U.S.C. § 405(b)(1) expressly provides for the admission of evidence that would not be admissible in a court proceeding in “any hearing before the Commissioner” (emphasis added).

"[S]uits for damages for breach of contract ... were suits at common law with the issues of the making of the contract and its breach to be decided by a jury."


Context: All the actions enumerated in La. C.C. art. 3494 originate from contractual relationships. For that reason, the courts have uniformly rejected attempts to circumvent that article's three-year prescriptive period by categorizing the entire action as sounding in breach of contract. Starns [v.

Emmons, 538 So.2d 275, 277 (La.1989) ], supra (rejecting such an attempt to avoid the three-year period for actions to recover rent under La. C.C. art. 3494(2)); see also Dear v. Mabile, 93-1188 (La.App. 1 Cir. 5/20/94), 637 So.2d 745 (applying reasoning in Starns, supra, to reject argument three-year period in La. C.C. art. 3494(4) for suits on open account should not apply since a contract theory was also asserted).


Context: . Attorneys fees and legal expenses incurred in other proceedings which are proximately caused by a RICO defendant's wrongful conduct may be cognizable injuries under RICO.

See Burger v. Kuimelis, 325 F.Supp.2d 1026, 1035 (N.D.Cal.2004) (plaintiff may be entitled to recover legal fees incurred in other proceedings as a result of a RICO defendant's wrongful conduct); Hondeen v. Lemaire, 112 F.3d 1339, 1354 (8th Cir.1997) (prior legal expense qualifies as injury to business or property); but see Evans v. City of Chicago, 434 F.3d 916, 931-32 (7th Cir.2006) (attorneys fees incurred in defending against false arrest not considered an injury to business or property under RICO); Kelley v. Watts, 2007 WL 3232080 **2, 3 (E.D.Ark.2007) (same).


prior legal expense qualifies as injury to business or property


Context: Dismissal of Hinkley's inadequate bedding claim was proper as to defendants Warner, Franks, Sinclair, and Knight because Hinkley failed to allege facts sufficient to show that these defendants knew that the prison's single-mat policy presented an excessive risk of harm to Hinkley's health and disregarded that risk.

the causation analysis under SS 1983 is "individualized and focus[es] on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation"

See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health or safety[.]”); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.2011) (a supervisor is liable under § 1983 only if he is personally involved in the constitutional deprivation or there is a “sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation” (citation and internal quotation marks omitted)); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (the causation analysis under § 1983 is “individualized and focus[es] on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation”).

"[A] prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health or safety[.]"


Context: It must be noted that this issue has been previously decided by the Court of Appeals for the Third Circuit, which held that "Apprendi does not apply to [an] increase in [the maximum] sentence under the Sentencing Guidelines."

"[W]hen ... decisions [of the court of appeals] are obviously undermined by more recent opinions of the Supreme Court, the district court has an obligation to recognize the former as overruled."

See Blakely, - U.S. at -, 124 S.Ct. at 2547 n. 1, 2549-50 (O’Connor, J., dissenting) (concluding that majority's reasoning dictates application to federal sentencing proceedings under the Guidelines and citing DeSumma, 272 F.3d at- 181, as an opinion to the contrary); see also Ameline, 376 F.3d at 978; Booker, 375 F.3d at 513; Leach, 325 F.Supp.2d at 560-61; Croxford, 324 F.Supp.2d at 1260-61; cf. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 319-20 (M.D.Pa.2004) (”[W]hen ... decisions [of the court of appeals] are obviously undermined by more recent opinions of the Supreme Court, the district court has an obligation to recognize the former as overruled.”).


Context: On appeal, the California Supreme Court majority accepted the term "systematic exclusion" as "an acceptable shorthand phrase for denoting [Batson/]Wheeler error."

"The term [systematic exclusion] is not apposite in the Wheeler context, for a single discriminatory exclusion may violate a defendant's right to a representative jury." (emphasis added

See Batson, 476 U.S. at 95-96, 106 S.Ct. 1712 (“For evidentiary requirements to dictate that several must suffer discrimination before one could object, would be inconsistent with the promise of equal protection to all.” (internal quotation and citation omitted)); Sims v. Brown, 425 F.3d 560, 574 (9th Cir.2005), amended 430 F.3d 1220 (“[T]he trial court’s ruling that it was necessary to show a ‘systematic exclusion’ of prospective jurors was incorrect, as the Constitution forbids striking a single juror for a discriminatory purpose[.]”); United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir.1990) (“Although showing a pattern of systematic exclusion is one way of giving rise to an inference of discrimination, it is not the only way.”); see also People v. Fuentes, 54 Cal.3d 707, 286 Cal. Rptr. 792, 818 P.2d 75, 80 n. 4 (1991) (“The term [systematic exclusion] is not apposite in the Wheeler context, for a single discriminatory exclusion may violate a defendant’s right to a representative jury.” (emphasis added)).

"[T]he trial court's ruling that it was necessary to show a 'systematic exclusion' of prospective jurors was incorrect, as the Constitution forbids striking a single juror for a discriminatory purpose[.]"


"Although showing a pattern of systematic exclusion is one way of giving rise to an inference of discrimination, it is not the only way."


Context: As the Perkins Court discussed, however, when the police use a ruse to gain entry to an abode, the nature of the ruse informs the analysis of whether the police exceeded the scope of the consent that was given. There, we explained that, because the police had obtained consent to enter the defendant's hotel room only for the purpose of "talking" to him about a noise complaint (which was made up), the scope of the consent did not extend to production of identification or to a visual inspection of the hotel room and bathroom.

when police obtained consent to enter defendant's trailer by using a ruse that they were investigating potential identity theft by others, they exceeded the scope of the consent by searching defendant's computer for child pornography

See also United States v. Parson, 599 F.Supp.2d 592, 609-10 (W.D.Pa.2009) (when police obtained consent to enter defendant’s trailer by using a ruse that they were investigating potential identity theft by others, they exceeded the scope of the consent by searching defendant’s computer for child pornography); but see State v. Nedergard, 51 Wash.App. 304, 753 P.2d 526, 529 (1988) (when defendant consented to police, masquerading as potential homebuyers, “look[ing] around,” police did not exceed the scope of the consent by searching basement of home).

when defendant consented to police, masquerading as potential homebuyers, "look[ing] around," police did not exceed the scope of the consent by searching basement of home


Context: Fortuities in the government's subsequent decisionmaking process have no effect on the objective truth or falsity of the claimant's asserted entitlement, and should thus have no effect on the claimant's potential liability under the Act. This reading of the Act is consistent with this court's analysis of analogous provisions in the criminal False Claims Act and related statutes.

holding, in the context of the criminal False Claims Act, that "[t]o prove Falsity, the government only had to prove that the statement was known to be untrue at the time [the defendant] made it"

See United States v. Milton, 602 F.2d 231, 233 (9th Cir.1979) (holding, in the context of the criminal False Claims Act, that “[t]o prove Falsity, the government only had to prove that the statement was known to be untrue at the time [the defendant] made it”) (emphasis added); see also United States v. Leahy, 82 F.3d 624, 633 n. 11 (5th Cir.1996) (holding that the defendant contractor violated 18 U.S.C. § 286 — a companion statute to the criminal FCA — because his claims were false when submitted, even though the false claims were ultimately irrelevant to the total amount paid by the government to the contractor).

holding that the defendant contractor violated 18 U.S.C. SS 286 -- a companion statute to the criminal FCA -- because his claims were false when submitted, even though the false claims were ultimately irrelevant to the total amount paid by the government to the contractor


Context: Furthermore, he makes conclusory statements without supporting authority. Therefore, we decline to address these issues on the merits.

"[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review."

Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct.App.2008) (“An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.”); see also Glasscock, Inc. v. U.S. Fidelity & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct.App.2001) (“[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review.”).

"An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority."


Context: When a court remands under sentence six of 42 U.S.C. section 405(g), the court retains jurisdiction and thus the ability to award EAJA compensation for post-remand administrative work. By contrast, when a court remands under sentence four of 42 U.S.C. section 405(g), ordinarily the court will not retain jurisdiction to permit EAJA fees for post-remand administrative work.

See Shalala v. Schaefer, 509 U.S. at 299-300 & n. 4, 113 S.Ct. 2625 (explaining that a sentence four remand terminates a civil action); but see Flores v. Shalala, 49 F.3d 562, 571 (9th Cir.1995) (where district court erroneously retained jurisdiction after sentence four remand without objection, the claimant was deemed eligible for EAJA fees for post-remand administrative work).


Context: In our view, the fact that equitable tolling is barred under section 2501 does not mean that class action statutory tolling also is barred. The two concepts are different. Equitable tolling is a principle that permits courts to modify a statutory time limit and "extend equitable relief' when appropriate.

a "traditional equitable tolling principle" should not be applied to a statutory limitations period when "the equities do not weigh in favor of modifying statutory requirements"

See Irwin, 498 U.S. at 96, 111 S.Ct. 453 (describing the range of instances in which courts have applied the equitable tolling doctrine); see also, Hallstrom v. Tillamook County, 493 U.S. 20, 27, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (a “traditional equitable tolling principle” should not be applied to a statutory limitations period when “the equities do not weigh in favor of modifying statutory requirements”).


Context: However, in cases where the object is not inherently dangerous and has a non-violent, commonplace use, the government must prove that the actor actually used the object in a dangerous manner. This is an objective test, and has nothing to do with the actor's subjective intent to use the weapon dangerously.

rejecting appellant's argument that "unless one is possessed with the specific intent to use an object offensively, it is not a dangerous weapon."

See, e.g., Powell v. United States, 485 A.2d 596, 601 (D.C.1984) (rejecting appellant’s argument that “unless one is possessed with the specific intent to use an object offensively, it is not a dangerous weapon.”); Williamson, 445 A.2d at 977 (rejecting appellant’s argument that “where the weapon is not dangerous ‘per se,’ this court should require the government to prove a specific intent to cause physical injury to the victim, or an attempted battery.”); see also Commonwealth v. Connolly, 49 Mass.App.Ct. 424, 730 N.E.2d 318, 319 (2000) (“The dangerousness of an object that is not inherently dangerous turns on the manner in which it is used (objective test), not the intention of the actor when using it (subjective test).”).

"The dangerousness of an object that is not inherently dangerous turns on the manner in which it is used (objective test), not the intention of the actor when using it (subjective test)."


rejecting appellant's argument that "where the weapon is not dangerous 'per se,' this court should require the government to prove a specific intent to cause physical injury to the victim, or an attempted battery."


Context: The continuing viability of both the "general test" and "general rule" evidenced by these Texas Supreme Court cases forces us to decide which measure of standing should apply to the named plaintiffs. The supreme court has used the "general test" for standing mostly (if not exclusively) in the context of declaratory judgment actions.

applying "general test" to city councilman who claimed that mayor usurped his authority

See Todd, 53 S.W.3d at 305 (applying “general test” to city councilman who claimed that mayor usurped his authority); Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex.1998) (applying “general test” to city that claimed statute impermissibly delegated legislative authority); Nootsie, 925 S.W.2d at 661-62 (applying “general test” to appraisal district that challenged the constitutionality of a statute it was charged with enforcing); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995) (applying “general test” to challenge regarding the constitutionality of statute); Tex. Ass’n of Bus., 852 S.W.2d at 444 (applying “general test” to plaintiff association challenging a statute’s constitutionality); see also Barshop v. Medina County Underground Water Conservation Disk, 925 S.W.2d 618, 626 (Tex.1996) (following Garcia’s analysis on plaintiffs challenge to constitutionality of statute).

following Garcia's analysis on plaintiffs challenge to constitutionality of statute


applying "general test" to city that claimed statute impermissibly delegated legislative authority


applying "general test" to appraisal district that challenged the constitutionality of a statute it was charged with enforcing


applying "general test" to challenge regarding the constitutionality of statute


applying "general test" to plaintiff association challenging a statute's constitutionality


Context: The courts of appeals that have dealt with the issue, however, have allowed the district courts a reasonable period after the 120 days to decide a timely filed motion.

But see United States v. Williams, 573 F.2d 527 (8th Cir. 1978) (district court had power to reduce sentence 167 days after sentencing where motion was timely filed); United States v. Janiec, 505 F.2d 983 (3d Cir. 1974) (district court has jurisdiction to reduce sentence imposed in September 1972 in July 1973 where motion was timely filed), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d 427 (1975).

"as long as the district judge acts with reasonable speed after the timely motion is filed, the time limit should be flexible enough to give him an opportunity to hear and consider new evidence regarding the appropriateness of the sentence"

United States v. Mendoza, 581 F.2d 89, 90 (5th Cir. 1978) (en banc) (emphasis added) (“if a motion to reduce sentence is properly filed within the 120 days required by the statute, the district court retains jurisdiction for a reasonable time after the expiration of 120 days in those rare circumstances in which it is unable to decide the motion within the 120 day period”); United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir. 1975) (emphasis added) (“district judge . . . retains jurisdiction to act upon a timely motion after the expiration of the 120 day period for such reasonable time as, under the circumstances, is required for its consideration and disposition’’); United States v. United States District Court, 509 F.2d 1352, 1356 (9th Cir.) (“as long as the district judge acts with reasonable speed after the timely motion is filed, the time limit should be flexible enough to give him an opportunity to hear and consider new evidence regarding the appropriateness of the sentence”), cert. denied, 421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975).


district court has jurisdiction to reduce sentence imposed in September 1972 in July 1973 where motion was timely filed


Context: The Ninth Circuit has also instructed district courts to - consider the lodestar cross-check as one factor in assessing the reasonableness of a fee request.

encouraging "comparison between the lodestar amount and a reasonable percentage award"

See Vizcaino, 290 F.3d at 1050 (recognizing “the lodestar may provide a useful perspective on the reasonableness of a given percentage award”); see also In re Bluetooth, 654 F.3d at 943 (encouraging “comparison between the lodestar amount and a reasonable percentage award”).

recognizing "the lodestar may provide a useful perspective on the reasonableness of a given percentage award"


Context: Although plaintiff allege[d] that, because of the schedule revisions, he was forced to come in two hours early for his shift, 'a mere inconvenience' is not sufficiently adverse to sustain a prima facie case.") (citation omitted). More significantly, plaintiff cannot refute the defendant's legitimate reason for his transfer, namely, that the defendant complied with plaintiffs request that he not work under Mr. Wallace's supervision.

holding that plaintiff established a prima facie claim of retaliation because the defendant's failure to transfer her out of her abusive working environment could be viewed as an "adverse personnel action" and there was a causal link between the filing of plaintiffs complaint and the defendant's failure to transfer her

See Lofton v. Roskens, 743 F.Supp. 6, 10 (D.D.C.1990), aff'd, 950 F.2d 797 (D.C.Cir.1991) (holding that plaintiff failed to establish that her transfer to another department was retaliatory as opposed to her employer’s attempt to “diffuse a personality conflict.”); cf. Villines v. United Brotherhood of Carpenters & Joiners of America, AFL-CIO, 999 F.Supp. 97, 106 (D.D.C.1998) (holding that plaintiff established a prima facie claim of retaliation because the defendant’s failure to transfer her out of her abusive working environment could be viewed as an “adverse personnel action” and there was a causal link between the filing of plaintiffs complaint and the defendant’s failure to transfer her).

holding that plaintiff failed to establish that her transfer to another department was retaliatory as opposed to her employer's attempt to "diffuse a personality conflict."


Context: More importantly, I question whether the Commonwealth can rely on a felon's purported incapacity to vote responsibly as the "non-punitive rationale" for Article 120 given that neither the ability to vote responsibly nor respect for the existing law remain "reasonable ground[s] of eligibility for voting." Rather, the idea that a particular group may be disqualified from voting based on a lack of respect for existing criminal law now constitutes a form of viewpoint discrimination that has been expressly rejected.

" 'Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible."

See, e.g., Romer, 517 U.S. at 634, 116 S.Ct. 1620 (see parenthetical, supra, n. 43); Dunn v. Blumstein, 405 U.S. 330, 354-56, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (rejecting durational residency requirements that rested on claims about the desirability of ensuring that citizens understood, and shared, community values before they were permitted to vote); see also Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (“ ‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”).


Context: However, the issues were available to Interiano's post-conviction counsel as evidenced from Interiano's own original pro se Rule 29.15 motion, in which he alleged that he had not been able to communicate with his trial attorney or understand and participate in the trial court proceedings. Thus, it was his post-conviction counsel's failure to raise these available claims and pursue them in the state court post-conviction proceedings, not a deficiency by his trial counsel, that resulted in the procedural default.

"In order for deficient trial work to constitute the kind of 'cause' that would excuse a procedural bar ... petitioner [also] must have independently presented this ineffective assistance claim to the state court for adjudication."

See Osborne, 411 F.3d at 919-20 (finding no cause to excuse the procedural default of a claim of ineffective assistance of trial counsel where the claim was presented in the petitioner’s Rule 29.15 motion but was not pursued on appeal); see also Carrier, 477 U.S. at 489, 106 S.Ct. 2639 (“The principle of comity that underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, ... whether an ineffective assistance claim is asserted as cause for a procedural default or denominated as an independent ground for habeas relief.” (internal citations and marks omitted)); Clemons v. Luebbers, 381 F.3d 744, 752 (8th Cir.2004) (“In order for deficient trial work to constitute the kind of ‘cause’ that would excuse a procedural bar ... petitioner [also] must have independently presented this ineffective assistance claim to the state court for adjudication.”), cert. denied, — U.S. —, 126 S.Ct. 41, 163 L.Ed.2d 75 (2005).

finding no cause to excuse the procedural default of a claim of ineffective assistance of trial counsel where the claim was presented in the petitioner's Rule 29.15 motion but was not pursued on appeal


Context: The Sixth Circuit Court of Appeals has approved of multipliers in other areas.

proper for district court to consider 2.0 multiplier in SS 1983 prisoner litigation

See Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991) (proper for district court to consider 2.0 multiplier in § 1983 prisoner litigation); Fite v. First Tennessee Prod. Credit Ass’n., 861 F.2d 884 (6th Cir.1988) (affirming multiplier of 1.75 in age discrimination case for contingent nature of the case).

See also King v. Palmer, 906 F.2d 762, 767 (D.C.Cir.1990) (reversing grant of 1.5 multiplier and awarding 2.0 multiplier in contingency Title VII case); Rode v. Dellarciprete, 892 F.2d 1177, 1184 (3rd Cir.1990) (contingency multiplier is appropriate in some cases); Fadhl v. City of San Francisco, 859 F.2d 649, 650 (9th Cir.1988) (affirming multiplier of 2 in Title VII contingency case).


affirming multiplier of 1.75 in age discrimination case for contingent nature of the case


Context: Based on our assessment of the parties' submissions,, the applicable case law, and the record on appeal, we conclude that petitioner's claims are without merit. , In the affidavit and brief he submitted to the BIA, petitioner, who was duly represented by new counsel on appeal, failed to comply with any of the Lozada requirements, and the explanation he now offers for that failure -- namely, that he believed he was precluded from filing a disciplinary complaint against his original attorney because he had earlier signed a statement indicating his "satisfaction] with the services provided" -- was never presented to the BIA. Nor does petitioner's explanation here address in any way his failure to comply with the remaining Lozada requirements, which are likewise essential to establishing a full administrative record before the BIA.

emphasizing that "[w]here essential information is lacking, it is impossible to evaluate the substance of such claim" and that "the potential for abuse is apparent where no mechanism exists for allowing former counsel, whose integrity or competence is being, impugned, to present his version of events if he so chooses, thereby discouraging baseless allegations"

See Lozada, 19 I. & N. Dec. at 639 (emphasizing that “[w]here essential information is lacking, it is impossible to evaluate the substance of such claim” and that “the potential for abuse is apparent where no mechanism exists for allowing former counsel, whose integrity or competence is being, impugned, to present his version of events if he so chooses, thereby discouraging baseless allegations”); see also Twum v. INS, 411 F.3d 54, 59 (2d Cir.2005) (stating that “[w]e have upheld the application of [the Loza-da ] requirements to screen ineffective assistance claims wfere appropriate” because “these requirements serve to deter meritless claims and to provide a basis for determining whether counsel’s assistance was in fact ineffective”). .

stating that "[w]e have upheld the application of [the Loza-da ] requirements to screen ineffective assistance claims wfere appropriate" because "these requirements serve to deter meritless claims and to provide a basis for determining whether counsel's assistance was in fact ineffective"


Context: [A]n individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation" while acting in the employer's interest.

holding that a company exercising "substantial control of the terms and conditions of the work" of the employees is an employer under the FLSA

Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.1984) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir.1983)); see also Falk v. Bren nan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (holding that a company exercising “substantial control of the terms and conditions of the work” of the employees is an employer under the FLSA).

discussing individual liability under the FLSA's analogous definition of an "employer"

Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir.1987) (discussing individual liability under the FLSA’s analogous definition of an “employer”). As the Fifth Circuit explained in interpreting the FLSA’s analogous employer provision, an individual supervisor has adequate authority over the complaining employee when the supervisor “independently exercise[s] control over the work situation.”


Context: In this case, the Retirement System does have the "power and privileges of a corporation," S.C.Code Ann. SSSS 9-1-20, 9-11-20, including the powers to "sue and be sued," to "make contracts," and to buy and sell property, id. SS 33-3-102. But, contrary to the plaintiffs' argument, the designation of an entity as a corporation with the power to sue and be sued is not conclusive in establishing its autonomy.

"It is unnecessary for us to consider the effect of the general grant of power to sue or be sued ... -- this suit, in effect, is against the state and must be so treated"

See Oberg, 745 F.3d at 139 (finding that the autonomy factor “cut both ways,” even though the entity had the “power to enter into contracts, sue and be sued, and purchase and sell property in its own name”); see also State Highway Comm’n v. Utah Const. Co., 278 U.S. 194, 199, 49 S.Ct. 104, 73 L.Ed. 262 (1929) (“It is unnecessary for us to consider the effect of the general grant of power to sue or be sued ... — this suit, in effect, is against the state and must be so treated”).

finding that the autonomy factor "cut both ways," even though the entity had the "power to enter into contracts, sue and be sued, and purchase and sell property in its own name"


Context: B. The Basis For Determinations Although I disagree with giving any deference to the BIA's or the INS's conclusions about whether a particular crime is one necessarily involving moral turpitude, I agree with the majority that in determining whether the crime of which the alien has been convicted falls within one of the grounds for deportation under SS 241(a)(2)(A), both the court and the BIA look only at the definition of the crime under state law, and not at the underlying facts and circumstances of the alien's particular offense. Thus, in addition to the state-law definition of the crime charged, both the BIA and the reviewing court look only at the record of conviction, which includes the crime as described in the indictment or information, the plea, the verdict or judgment, and the sentence, but not any evidence offered in the case or other facts or circumstances involved.

court looked at "facts of the present case, where petitioner has acknowledged his false statements and the statements made to defraud the United States Government," to find that "the convie-tions may be considered as involving moral turpitude for purposes of denying voluntary departure."

Cabral, 15 F.3d at 196 & n. 6; United States v. Chu Kong Yin, 935 F.2d 990, 1003 (9th Cir.1991) (BIA and reviewing court are limited to the record of conviction and may not look behind the record to the facts of the individual case); Alleyne v. U.S. INS, 879 F.2d 1177, 1185 (3d Cir.1989) (same); but see Kabongo v. INS, 837 F.2d 753, 758 (6th Cir.) (court looked at “facts of the present case, where petitioner has acknowledged his false statements and the statements made to defraud the United States Government,” to find that “the convie-tions may be considered as involving moral turpitude for purposes of denying voluntary departure.”), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964) (“record of conviction” includes “the indictment or information, plea, verdict or judgment and sentence”); Matter of Ghunaim, 15 I. & N.Dec. 269, 270 (BIA1975) (record of conviction includes “charge or indictment, the plea, the judgment or verdict, and the sentence,” citing United States ex rel. Teper v. Miller, 87 F.Supp. 285, 287 (S.D.N.Y.1949)).


"record of conviction" includes "the indictment or information, plea, verdict or judgment and sentence"


Context: School officials violate the Equal Protection Clause when they punish a student more severely for his conduct than other students because of the student's race.

Buchanan, 99 F.3d at 1360 (stating in context of an Equal Protection claim alleging difference in discipline based on race that “[t]he Equal Protection Clause requires public institutions to ‘treat similarly situated individuals in a similar manner.’ ” (quoting Gutzwiller, 860 F.2d at 1328)); see also Billings v. Madison Metro. Sch. Dist., 259 F.3d 807, 812-15 (7th Cir.2001) (discussing the suspect nature of racial classifications in the school context); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir.2000) (stating in the context of plaintiffs § 1983 claim of disparate punishment on the basis of gender that “[t]o succeed on a § 1983 equal protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional.”).

stating in context of an Equal Protection claim alleging difference in discipline based on race that "[t]he Equal Protection Clause requires public institutions to 'treat similarly situated individuals in a similar manner.' " (quoting Gutzwiller, 860 F.2d at 1328


stating in the context of plaintiffs SS 1983 claim of disparate punishment on the basis of gender that "[t]o succeed on a SS 1983 equal protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner and that the discrimination was intentional."


Context: The first factor concerns the composition of the photographic array itself. In this regard, courts have analyzed whether the photographs used were selected or displayed in such a manner as to emphasize or highlight the individual whom the police believe is the suspect.

at first step in two-pronged test, court "consider^] whether the photo [graphic] array included, as far as was practicable, a reasonable number of persons similar in appearance to the suspect"

See, e.g., State v. Williams, supra, 203 Conn. 176 (multiple photographs of same individual in same or subsequent photographic arrays possibly suggestive “when, in the context of the entire array, the recurrence unnecessarily emphasizes the defendant’s photograph”); State v. Fullwood, supra, 193 Conn. 247 (to be unnecessarily suggestive, variations in array photographs must highlight defendant to point that it affects witness’ selection); State v. Gold, 180 Conn. 619, 656, 431 A.2d 501 (“[when] afeature is placed on the defendant’s photograph in order to make the picture conform to the witness’ description of the criminal he or she had seen, the identification proceeding has been held to have been rendered highly suggestive”), cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); see also United States v. DeCologero, supra, 530 F.3d 62 (at first step in two-pronged test, court “consider^] whether the photo [graphic] array included, as far as was practicable, a reasonable number of persons similar in appearance to the suspect”); United States v. Rattler, 475 F.3d 408, 413 (D.C. Cir. 2007) (court must “examine the suggestivity of irregularities between the subjects in the array”).

multiple photographs of same individual in same or subsequent photographic arrays possibly suggestive "when, in the context of the entire array, the recurrence unnecessarily emphasizes the defendant's photograph"


court must "examine the suggestivity of irregularities between the subjects in the array"


to be unnecessarily suggestive, variations in array photographs must highlight defendant to point that it affects witness' selection


"[when] afeature is placed on the defendant's photograph in order to make the picture conform to the witness' description of the criminal he or she had seen, the identification proceeding has been held to have been rendered highly suggestive"


Context: However, the plaintiff does not refer to anything in the record supporting her contention as required by Fed.RXiv.Pro. 56 and D.Kan. Rule 56.1 and, therefore, the fact is deemed uncontroverted.

Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir.l995)(holding that in order to withstand summary judgment, the non-movant must identify a genuine issue of material fact by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein and that a court need not search the record to find uncited evidence which controverts a material fact); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) ("Judges are not like pigs, hunting for truffles buried in briefs.")


Context: However, effects of the Act have been declared in violation of the ex post facto clause contained in the Indiana Constitution, as applied to persons who had committed their crimes prior to the imposition of any registration requirement.

defendant's conviction for failing to register as a sex offender was reversed because the registration statute, as applied to him, added punishment beyond that which could have been imposed when he committed his crime

See Wallace v. State, 905 N.E.2d 371, 384 (Ind.2009) (defendant’s conviction for failing to register as a sex offender was reversed because the registration statute, as applied to him, added punishment beyond that which could have been imposed when he committed his crime), reh’g denied; see also State v. Pollard, 908 N.E.2d 1145, 1154 (Ind.2009) (trial court properly dismissed charge that Pollard violated the residency restriction provision of the Sex Offender Registration Act when he had served his sentence before the Act was enacted and application to him would add punishment beyond that possible when his crime was committed).


Context: The contract provided in part that if the purchaser failed to obtain financing, "[purchaser shall not be entitled to a refund of its earnest money deposit." But where a contract is held unenforceable, the contract's "provision concerning forfeiture of the funds is also unenforceable."

"without a binding contract there can be no breach, ergo no damages for a breach"

O’Dell v. Pine Ridge Investments, LLC, 293 Ga. App. 696, 700 (667 SE2d 912) (2008); see Gateway Family &c. v. H.O.P.E. Foundation Ministries, 244 Ga. App. 286, 288 (2) (535 SE2d 286) (2000) (buyer entitled to return of earnest money where property description in sales contract inadequate); see also Woodall v. Williams, 176 Ga. 343, 347 (167 SE 886) (1933) (“without a binding contract there can be no breach, ergo no damages for a breach”). As we have held in Division 1 that the real estate sales contract was unenforceable, the provision concerning the earnest money is also unenforceable.