Context: As to the specific figures to which McCall asserts he is entitled, he provides this court with no support for them in the record. In short, McCall summarily asserts he is entitled to these amounts without showing why the circuit court's calculation of damages was erroneous or how McCall's figures are supported by the evidence.

See Weaver v. Recreation Dist., 328 S.C. 83, 88, 492 S.E.2d 79, 82 (1997); Ehlke v. Nemec Constr. Co., 298 S.C. 477, 481, 381 S.E.2d 508, 510 (Ct.App.1989) (noting an appealed order comes to the appellate court with a presumption of correctness and the burden is on appellant to demonstrate reversible error); See also Harris v. Campbell, 293 S.C. 85, 87, 358 S.E.2d 719, 720 (Ct.App.1987) (noting our court is “obliged to reverse when error is called to our attention, but we are not in the business of figuring out on our own whether error exists”).

noting our court is "obliged to reverse when error is called to our attention, but we are not in the business of figuring out on our own whether error exists"


Context: When the motion was filed, Nattah's claims against Secretary Gates had been dismissed with prejudice. This Court agrees with the approach that "[w]hen a plaintiffs first amended complaint asserts claims against defendants who have been dismissed from the suit," courts have "discretion in denying amendment as to those defendants."

Johnson v. Dist. of Columbia, 244 F.R.D. 1, 4 (D.D.C.2007) (Lamberth, J.); see Bancoult v. McNamara, 214 F.R.D. 5, 8-9 (D.D.C.2003) (granting motion to amend complaint “as a matter of course” as to defendants against whom claims remained pending, but denying the motion as futile as to dismissed defendant); see also Cassell v. Michaux, 240 F.2d 406, 408 (D.C.Cir.1956) (holding that the district court had discretion where plaintiff sought to amend a count that had been dismissed with prejudice).

granting motion to amend complaint "as a matter of course" as to defendants against whom claims remained pending, but denying the motion as futile as to dismissed defendant


Context: In sum, under our decisions in Brickwood, Former Employees of Motorola, and Vaughn, in order to demonstrate that it is a "prevailing party," an EAJA applicant must show that it obtained an enforceable judgment on the merits or a court-ordered consent decree that materially altered the legal relationship between the parties, or the equivalent of either of those. This approach is consistent with the approach taken by the majority of the circuits that have considered the issue.

"Buckhannon ... makes it clear that a party prevails only if it receives either an enforceable judgment on the merits or a consent decree."

But see Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir.2003) (“Buckhannon ... makes it clear that a party prevails only if it receives either an enforceable judgment on the merits or a consent decree.”).

holding that an order characterized as a stipulated settlement conferred prevailing party status because it used mandatory language, bore the judge's signature, and was judicially enforceable

See, e.g., Roberson v. Giuliani, 346 F.3d 75, 81 (2d Cir.2003) (“We therefore join the majority of courts to have considered the issue since Buckhannon in concluding that judicial action other than a judgment on the merits or a consent decree can support an award of attorney’s fees, so long as such action carries with it sufficient judicial imprimatur.” (footnote and citation omitted)); Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 165 (3d Cir.2002) (holding that an order characterized as a stipulated settlement conferred prevailing party status because it used mandatory language, bore the judge’s signature, and was judicially enforceable); Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir.2002) (“We doubt that the Supreme Court’s guidance in Buckhannon was intended to be interpreted so restrictively as to require that the words ‘consent decree’ be used explicitly.”); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir.2003) (“[S]ome settlement agreements, even though not explicitly labeled as a ‘consent decree’ may confer ‘prevailing party’ status, if they are sufficiently analogous to a consent decree.”); Am. Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir.2002) (“[T]he essential test established by [Buckhannon] requires the plaintiff to achieve a ‘judicially sanctioned change in the legal relationship of the par ties.’ ” (citation omitted)); Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 458-59 (D.C.Cir.2002) (implying that a stipulated order of dismissal could confer prevailing party status if it carried sufficient judicial imprimatur to materially change the legal relationship of the parties).


"We doubt that the Supreme Court's guidance in Buckhannon was intended to be interpreted so restrictively as to require that the words 'consent decree' be used explicitly."


"[S]ome settlement agreements, even though not explicitly labeled as a 'consent decree' may confer 'prevailing party' status, if they are sufficiently analogous to a consent decree."


implying that a stipulated order of dismissal could confer prevailing party status if it carried sufficient judicial imprimatur to materially change the legal relationship of the parties


Context: Again, the court has considerable doubt that the evidence presented at trial will show anything but that Land O' Lakes acted in a reasonable fashion either to assist Corcoran or to protect its own reasonable financial interests. However, the court concludes that on the present record, the question is one for the jury.

Cf., e.g., Snow, 128 F.3d at 1205 (requiring particular deference to the non-movant on summary judgment in discrimination cases, because such cases are based on inferences from circumstantial evidence of discriminatory motive); Webb, 94 F.3d at 486 (same); Wooten, 58 F.3d at 385 (same).

See Quick, 90 F.3d at 1376-77 (on a motion for summary judgment, the court must determine whether there are genuine issues for trial); Johnson, 906 F.2d at 1237. In particular, the question of a defendant’s motive, as it can be inferred from circumstantial evidence, seems to the court to be a matter particularly appropriaté for jury determination.


Context: The state argues for a more expansive interpretation of the statute, asserting that the costs of attending the trial resulted from the crime because the expenses would not have been incurred "but for" Palubicki's commission of the crime.

ruling that restitution is appropriate when a victim would not have incurred expense "but for" the unlawful activity

See In re Welfare of D.D.G., 532 N.W.2d 279, 282-83 (Minn.App.1995) (ruling that because a reward offer would not have occurred “but for” the defendant’s bomb threat, the school district was entitled to restitution); see also State v. DeGrote, No. A03-908, 2004 WL 556946, at *3 (Minn. App. Mar.23, 2004) (ruling that restitution is appropriate when a victim would not have incurred expense “but for” the unlawful activity).

ruling that because a reward offer would not have occurred "but for" the defendant's bomb threat, the school district was entitled to restitution


Context: In disparate pay cases, if a plaintiff cannot show her job responsibilities are substantially the same as the comparators, she cannot establish a prima facie case by comparing her compensation to that of the comparators.

See, e.g., Johnson v. TCB Const. Co., 334 Fed.Appx. 666, 670-(5th Cir.2009) (plaintiff’s attempt to compare his job to an operator’s for disparate pay purposes failed because plaintiffs work and that of the operators was not substantially the same job); see also Jackson v. Honeywell Int’l, Inc., 601 Fed.Appx. 280, 285 (5th Cir.2015) (plaintiff failed to establish a prima facie case of racially motivated disparate pay, because the two white comparator employees were hired at different times, held different positions, apd worked under different supervisors, and there was no evidence that the plaintiff and these white employees had similar job duties, disciplinary histories, or levels of experience). Simply put, “[e]mployees who hold different job positions are not similarly situated.”

plaintiff's attempt to compare his job to an operator's for disparate pay purposes failed because plaintiffs work and that of the operators was not substantially the same job


Context: In light of the district court judge's extensive curative instructions, the strength of the evidence of Scott's guilt on the offenses for which he was convicted, and the jury's independence in rejecting five of the alleged predicate acts, we conclude that Scott was not prejudiced by any improper conduct on the judge's part, either individually or in the aggregate.

holding that the trial judge's misconduct at trial did not prejudice the defendant in light of the court's curative instructions

See United States v. Morgan, 376 F.3d 1002, 1009 (9th Cir.2004) (holding that the trial judge’s misconduct at trial did not prejudice the defendant in light of the court’s curative instructions); see also United States v. McDonald, 576 F.2d 1350, 1358 (9th Cir.1978) (noting that while charges of judicial misconduct are not “dismissed lightly,” and although a few of the judge’s remarks were “sharp, even sarcastic,” they did not warrant a new trial).

noting that while charges of judicial misconduct are not "dismissed lightly," and although a few of the judge's remarks were "sharp, even sarcastic," they did not warrant a new trial


Context: Based on this language in the Indian General Allotment Act, courts have determined that "the protections of the Nonin-tercourse Act do not apply to land which has been rendered freely alienable by Congress, held by private parties, and subsequently acquired by an Indian tribe."

holding that "once Congress removes restraints on alienation of [Indian] land, the protections of the Nonintercourse Act no longer apply"

Cass Cnty., 643 N.W.2d at 696; see also Lummi Indian Tribe v. Whatcom Cnty., Wash., 5 F.3d 1355, 1359 (9th Cir.1993) (holding that “once Congress removes restraints on alienation of [Indian] land, the protections of the Nonintercourse Act no longer apply”); Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D.Mass.1982); Bay Mills Indian Cmty. v. State, 244 Mich.App. 739, 626 N.W.2d 169, 174 (2001); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 130 Wash.2d 862, 929 P.2d 379, 387 (1996); cf. City of Sher- rill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197, 202-03, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005) (holding that the Oneida tribe could not “unilaterally revive its ancient sovereignty” over land “through open-market purchases from current titleholders” even though the land had previously been reservation land).

holding that the Oneida tribe could not "unilaterally revive its ancient sovereignty" over land "through open-market purchases from current titleholders" even though the land had previously been reservation land


Context: At first blush, "[o]ffers made by buyers to owners would appear to be [competent] to show the value was at least equal to the offers." The former Fifth Circuit has so held in a host of condemnation cases in which a landowner sought to introduce evidence of an unaccepted offer.

See Smith, 355 F.2d at 811-14 (holding to that effect with respect to unexercised options to purchase land, which the court likened to unaccepted offers); cf. Atlantic Coast Line R. Co., 132 F.2d at 963 (affirming exclusion of expert opinions, apparently based largely upon asking price not accepted).


Context: Substantial evidence supports the agency's dispositive conclusion that Perez Herrera failed to establish the government of Mexico was or would be unwilling or unable to control her alleged persecutor.

See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005) (considering country reports and petitioner’s specific case in determining petitioner failed to establish the government was unable or unwilling to control persecutors); see also Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir.2005) (record did not compel finding government unwilling or unable to control private persecutors where police took reports and investigated complaints, though unable to solve crimes).

considering country reports and petitioner's specific case in determining petitioner failed to establish the government was unable or unwilling to control persecutors


Context: P18 By contrast, the Court has held that sentencing rules that do not "prohibit the imposition of [a particular sentence] on a particular class of persons" are not substantive.

concluding that the substantive rule exception "has no application" to a new rule prohibiting the imposition of capital punishment by a jury that has been led to believe that the ultimate decision to impose the death penalty rests elsewhere

See also Sawyer v. Smith, 497 U.S. 227, 242, 110 S. Ct. 2822, 2831 (1990) (concluding that the substantive rule exception “has no application” to a new rule prohibiting the imposition of capital punishment by a jury that has been led to believe that the ultimate decision to impose the death penalty rests elsewhere).

Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1263-64 (1990) (concluding that a prohibition against instructing a death penalty jury to avoid sympathy when determining punishment is not a substantive rule).


Context: We do not suggest that a stipulation cannot be used to meet the requirements of West Virginia Code SS 49-6-2(c). Clearly, a stipulation is a valid means of establishing the parties' assent to the averments contained within an abuse or neglect petition.

finding that "[i]n a stipulation dated June 19, 1994, the mother admitted to both prenatal and postnatal drug abuse that impaired her ability to provide for her child"

See T.C., 172 W.Va. at 52, 303 S.E.2d at 690 n. 5 (noting use of stipulation to make showing of abuse and neglect); see also In re D.R., 673 A.2d 1259, 1270 (D.C.Ct.App.1996) (finding that “[i]n a stipulation dated June 19, 1994, the mother admitted to both prenatal and postnatal drug abuse that impaired her ability to provide for her child”); In re Shollenberger, No. 1995CA00135, 1996 WL 363538, slip op. at 1 (Ohio Ct.App.


Context: Judge Grady ordered IH to make its files available to the PBGC because IH was unwilling to bear the expense of searching for the documents that PBGC wanted. IH apparently did not raise the problem of searching through its files to identify privileged matters, a task it claims to have undertaken previously in any event.

See also Transamerica, 573 F.2d at 649-50, 652 (privilege claims preserved where disclosure problems were brought to trial judge’s attention); cf. Maryville Academy v. Loeb Rhoades & Co., 559 F.Supp. 7 (N.D.Ill.1982) (compliance with SEC subpoena resulted in waiver); Teachers Insurance and Annuity Ass’n v. Shamrock Broadcasting Co., 521 F.Supp. 638 (S.D.N.Y.1981) (disclosure pursuant to SEC subpoena without objection would result in waiver unless confidentiality was expressly reserved, e.g., by stipulation or protective order).

privilege claims preserved where disclosure problems were brought to trial judge's attention


Context: In other words, whatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from NSI's services that make the domain names operational Internet addresses. Therefore, we conclude that "a domain name registration is the product of a contract for services between the registrar and registrant."

analyzing garnishment of services and concluding that automobile insurer's duty to defend is not gamishable

Dorer, 60 F. Supp.2d at 561. A contract for services is not “a liability” as that term is used in § 8.01-511 and hence is not subject to garnishment. See Sykes v. Beal, 392 F. Supp. 1089, 1094-95 (D. Conn. 1975) (analyzing garnishment of services and concluding that automobile insurer’s duty to defend is not gamishable); cf. J. Maury Dove Co., Inc. v. New River Coal Co., 150 Va. 796, 827, 143 S.E. 317, 327 (1928) (where “contract contains mutual obligations and liabilities, or involve[s] a relation of personal confidence,” one party cannot assign it without consent of other party); McGuire v. Brown, Guardian, 114 Va. 235, 242, 76 S.E. 295, 297 (1912) (holding contract for personal services is not assignable).

where "contract contains mutual obligations and liabilities, or involve[s] a relation of personal confidence," one party cannot assign it without consent of other party


Context: We reject this argument. The Court relied upon and reaffirmed Lehman's rationale in Perry and subsequent eases, and there is no suggestion in the Court's jurisprudence that the advertising panels are properly classified as designated fora.

rejecting the same argument presented by appellants in this case and noting that "the Supreme Court has repeatedly reaffirmed a broader reading of Lehman, often specifically citing to the plurality opinion"

See, e.g., Perry, 460 U.S. at 47, 103 S.Ct. 948 (relying on restriction upheld in Lehman to support the proposition that selective access does not transform government property into a public forum); ISKCON, 505 U.S. at 678, 112 S.Ct. 2701 (Lehman reflects forum-based analysis and supports proposition that lower level of scrutiny applies when government acts as a proprietor); Cornelius, 473 U.S. at 803-04, 806, 808-09, 105 S.Ct. 3439 (relying on Lehman to support, inter alia, propositions that “[n]ot every instrumentality used for communication ... is a traditional public forum or a public forum by designation,” and that a • speaker may be excluded from a nonpublic forum if he wishes to address a topic not within the purpose of the forum); United States v. Kokinda, 497 U.S. 720, 725-26, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion) (extensively quoting from Lehman and noting the lower level of scrutiny applied to the ban on political advertising); id. at 737, 110 S.Ct. 3115 (relying on Lehman as stating the Court’s “usual test for reasonableness” in a nonpublic forum); R.A.V. v. St. Paul, 505 U.S. 377, 390 n. 6, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (Lehman supports conclusion that there is “room” for “reasonable and viewpoint-neutral content-based discrimination in nonpublic forums”); see also Lebron v. National R.R. Passenger Corp., 69 F.3d 650, 657 n. 3 (2d Cir.1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1675, 134 L.Ed.2d 778 (1996) (rejecting the same argument presented by appellants in this case and noting that “the Supreme Court has repeatedly reaffirmed a broader reading of Lehman, often specifically citing to the plurality opinion”).


Lehman reflects forum-based analysis and supports proposition that lower level of scrutiny applies when government acts as a proprietor


relying on Lehman to support, inter alia, propositions that "[n]ot every instrumentality used for communication ... is a traditional public forum or a public forum by designation," and that a * speaker may be excluded from a nonpublic forum if he wishes to address a topic not within the purpose of the forum


relying on Lehman as stating the Court's "usual test for reasonableness" in a nonpublic forum


Lehman supports conclusion that there is "room" for "reasonable and viewpoint-neutral content-based discrimination in nonpublic forums"


Context: Given this evidence and Natural Heritage's role as an advocacy organization, there is no evidence that defendants' concern for the vitality of the heronry was a pretext. As compared to plaintiff's contentions -- that defendants were motivated by Mr. Baker's dated and somewhat elusive opposition to unrealized legislation and by Mr. Baker's suit against Dr. Parsons, threatened after defendants had already expressed opposition to the proposed pier -- defendants' explanation "seems both the most logical inference and one that is wholly consistent with the alleged [delays and] irregularities" in defendants' review process.

holding that the plaintiffs First Amendment retaliation claim regarding a waste disposal permit "failfed] for lack of evidence that whatever shortcomings and irregularities occurred were in retaliation for [his] personal political views"

Custodio, 964 F.2d at 39, 43 (holding that the plaintiffs First Amendment retaliation claim regarding a waste disposal permit “failfed] for lack of evidence that whatever shortcomings and irregularities occurred were in retaliation for [his] personal political views”); see also Cloutier, 714 F.2d at 1192 (“It is difficult to infer that defendants were motivated by dislike of plaintiffs’ exercise of free speech rather than simply by disapproval of the proposed [pier].”); cf. Pilgrim, 118 F.3d at 871 (“The only inference that can be drawn ... is that for whatever reason [plaintiff] received different treatment, it was as likely due to a clash of personalities as [racial discrimination].”).

"It is difficult to infer that defendants were motivated by dislike of plaintiffs' exercise of free speech rather than simply by disapproval of the proposed [pier]."


"The only inference that can be drawn ... is that for whatever reason [plaintiff] received different treatment, it was as likely due to a clash of personalities as [racial discrimination]."


Context: Plaintiffs first attempted to obtain relief from the Federal Energy Regulatory Commission ("FERC") or the United States Court of Appeals for the Ninth Circuit. These efforts were unsuccessful.

"We conclude that FERC does not have refund authority over wholesale electric energy sales made by governmental entities and non-public utilities."

See Bonneville Power Admin. v. FERC, 422 F.3d 908, 911 (9th Cir. 2005) (“Bonneville ”) (“We conclude that FERC does not have refund authority over wholesale electric energy sales made by governmental entities and non-public utilities.”), cert. denied, 552 U.S. 1076, 128 S.Ct. 804,169 L.Ed.2d 606 (2007); see also City of Redding v. FERC, 693 F.3d 828, 841 (9th Cir. 2012) (“FERC clearly acknowledged that it did not have authority to order refunds from the nonpublic utilities and explained that it was establishing just and reasonable rates in order to determine the appropriate refund amount for public entities[.]”).

"FERC clearly acknowledged that it did not have authority to order refunds from the nonpublic utilities and explained that it was establishing just and reasonable rates in order to determine the appropriate refund amount for public entities[.]"


Context: The government's entire case consists of four pieces of circumstantial evidence: (1) a hat with multiple DNA matches worn by Bonner was also worn by one of the robbers; (2) Bonner's wallet, discovered in the alleged getaway car; (3) phone records showing calls from Bonner's cell phone to Ms. Edmonds and Mr. Ruth the night after the robbery; and (4) a separate phone record showing a call from a nearby gas station to Ms. Edmonds. While it is possible to convict a defendant solely on circumstantial evidence, in cases where the identity of the perpetrator is in dispute, usually there is some specific "identity" evidence or uncontroverted physical evidence that links the defendant to the scene of the crime.

See, e.g., United States v. Warren, 593 F.3d 540, 547 (7th Cir.2010) (defendant was found in possession of stolen money); United States v. Kittrell, 269 Fed.Appx. 338, 342 (4th Cir.2008) (evidence included fingerprints, an in-court identification, and handwriting expert when DNA evidence was inconclusive); Foster, 507 F.3d at 245 (evidence of identity included evidence of past attempts to kill victim, letters instructing defendant to kill victim, and a taped conversation in which defendant was confronted about murdering victim and did not deny it); cf. United States v. Hinton, 366 Fed.Appx. 481, 484 (4th Cir.2010) (relying on eyewitness evidence to show that there was sufficient evidence to implicate defendant).


evidence of identity included evidence of past attempts to kill victim, letters instructing defendant to kill victim, and a taped conversation in which defendant was confronted about murdering victim and did not deny it


Context: This is so because it was incorporated into the pleadings by reference -- the complaint specifically mentioned it as the Plan under which the Van Nattas' claims arose against Sara Lee. See Deerbrook Pavilion, L.L.

stating that "[o]n a motion to dismiss, a court must primarily consider the allegations contained in the complaint, although matters of public and administrative record referenced in the complaint may also be taken into account"

C. v. Shalala, 235 F.3d 1100, 1101 (8lh Cir.2000) (stating that "[o]n a motion to dismiss, a court must primarily consider the allegations contained in the complaint, although matters of public and administrative record referenced in the complaint may also be taken into account”); Venture Assocs.

Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993) (indicating that "[djocu-ments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [its] claim”); see also Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1063 n. 2 (8th Cir.2005) (examining a press release even though it was not expressly part of the pleadings because it was incorporated by reference into the pleadings).


indicating that "[djocu-ments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [its] claim"


Context: . Father also argues the juvenile court was hostile to ICWA and Father's rights as an American Indian. After considering Father's argument we conclude it is without merit.

See State v. Mathews, 13 Utah 2d 391, 375 P.2d 392, 394 (Utah 1962) (rejecting claim of bias and concluding trial court acted within "considerable latitude permitted in dealing with counsel to expedite trial"); see also State v. Carter, 776 P.2d 886, 888 (Utah 1989) (stating it is an "established principle generally applicable to all civil and criminal cases ... that this Court need not analyze and address in writing each and every argument, issue, or claim raised").


Context: Of those calls, 13 were minimized. I am satisfied that the government's efforts at minimization in these categories were reasonable.

See Scott v. United States, 436 U.S. at 140, 98 S.Ct. at 1724 (percentage of nonperti-nent calls was relatively high yet their interception was reasonable); see also United States v. Quintana, 508 F.2d at 873 (list of cases finding minimization reasonable even though there was an uninterrupted interception of all calls); see e.g. United States v. James, 494 F.2d at 1018.


Context: Legal Aid is correct, as far as it goes, that the Second Circuit expressly has ruled that Legal Aid is not a state actor.

holding that although Legal Aid provides services for indigent criminal defendants which governmental agencies otherwise might have to assume, it is a private institution "in no manner under State or City supervision or control"

Lefcourt v. Legal Aid Soc., 445 F.2d 1150, 1157 (2d Cir.1971) (holding that although Legal Aid provides services for indigent criminal defendants which governmental agencies otherwise might have to assume, it is a private institution “in no manner under State or City supervision or control”); Housand v. Heiman, 594 F.2d 923, 924-25 (2d Cir.1979) (public defenders and court-appointed defense attorneys do not “act under color of law”); see also Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (“[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”).

"[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."


public defenders and court-appointed defense attorneys do not "act under color of law"


Context: On January 28, 2013, Shabazz filed a motion for release pending appeal and on February 20, 2013, he filed objections to the presentence report. Because only two months have passed since Shabazz filed his objections to the presentence report and three months since the filing of his motion for release pending appeal, the delay "does not yet rise to the level of a denial of due process."

denying a mandamus petition where the district court had not ruled on petitioner's motion in four months

Madden, 102 F.3d at 79 (denying a mandamus petition where the district court had not ruled on petitioner’s motion in four months).

five month delay between guilty plea and sentence was not "unreasonable" within the meaning of Fed.R.Crim.P. 32(a

See also United States v. Campisi, 583 F.2d 692 (3d Cir.1978) (five month delay between guilty plea and sentence was not "unreasonable” within the meaning of Fed.R.Crim.P. 32(a)).


Context: We turn to White's claim challenging the constitutionality of Utah's prohibition against polygamy. Assuming, for purposes of argument, that White has standing to bring the claim, we conclude it is foreclosed by Supreme Court and Tenth Circuit precedent.

"Statutes making bigamy a crime surely cut into an individual's freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision."

See Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed. 244 (1878) (affirming criminal conviction of a Mormon for practicing polygamy and rejecting the argument that prohibition of polygamy violated the right to free exercise of religion); Potter v. Murray City, 760 F.2d 1065, 1068-69 (10th Cir.1985) (concluding Utah was justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (“Statutes making bigamy a crime surely cut into an individual’s freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision.”).


concluding Utah was justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship


Context: First, the government bears the initial burden of showing "an offer of permanent resident status, citizenship, or some other type of permanent resettlement" such that the firm resettlement bar applies and the burden shifts to the alien to rebut it.

See, e.g., Sall, 437 F.3d at 233-34 (noting that the IJ misstated the burden of proof by putting it on the applicant before the government established a prima facie case of firm resettlement); Diallo, 381 F.3d at 693 (holding that after the government meets its initial burden of demonstrating firm resettlement, the asylum-seeker may rebut the presumption by presenting evidence to the contrary or show that he falls within one of the two exceptions in § 208.15(a) and (b)); Salazar, 359 F.3d at 50-51 (noting that the government bears the initial burden of showing firm resettlement); Abdille, 242 F.3d at 491 (holding that “[u]n-der the regulations, the INS bears the initial burden of producing evidence that indicates that the firm resettlement bar applies, and, should the INS satisfy this threshold burden of production, both the burden of production and the risk of non-persuasion then shift to the applicant to demonstrate, by a preponderance of the evidence, that he or she had not firmly resettled in another country”); Mussie, 172 F.3d at 332 (holding that “[o]nce the INS met its burden of introducing some evidence indicating that[petitioner] had been ‘firmly resettled’ in Germany, [the petitioner] bore the burden of demonstrating, by a preponderance of the evidence, that she had not been resettled”); see also Abdalla, 43 F.3d at 1399 (holding that once the government presents some evidence indicating that asylum is unavailable on the grounds of firm resettlement, the petitioner bears the burden of proving that such ground does not apply).


holding that after the government meets its initial burden of demonstrating firm resettlement, the asylum-seeker may rebut the presumption by presenting evidence to the contrary or show that he falls within one of the two exceptions in SS 208.15(a


noting that the government bears the initial burden of showing firm resettlement


holding that "[u]n-der the regulations, the INS bears the initial burden of producing evidence that indicates that the firm resettlement bar applies, and, should the INS satisfy this threshold burden of production, both the burden of production and the risk of non-persuasion then shift to the applicant to demonstrate, by a preponderance of the evidence, that he or she had not firmly resettled in another country"


holding that "[o]nce the INS met its burden of introducing some evidence indicating that[petitioner] had been 'firmly resettled' in Germany, [the petitioner] bore the burden of demonstrating, by a preponderance of the evidence, that she had not been resettled"


Context: Here, after the traffic stop, DiGrazia detected the odor of alcohol coming from Blanks's person, and one of the field sobriety tests (the horizontal gaze nystagmus test) and the portable breath test both indicated that Blanks was under the influence of alcohol. Also, as already explained, probable cause may rest on the collective knowledge of the investigating officers as long as there is some degree of communication between them. Thus, the facts that Blanks was swerving, unable to maintain his lane, and speeding may also be considered. We therefore conclude that the totality of the above circumstances provided DiGrazia with sufficient probable cause to arrest Blanks for driving under the influence of alcohol to the degree that he was less safe.

defendant's speeding, bloodshot eyes, odor of alcohol and failing the HGN test gave officer probable cause to arrest defendant for DUI

See Harkleroad v. State, 317 Ga. App. 509, 512 (1) (c) (732 SE2d 278) (2012) (defendant’s speeding, bloodshot eyes, odor of alcohol and failing the HGN test gave officer probable cause to arrest defendant for DUI); see also Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (“the results of the field sobriety tests constitute [ ] admissible evidence of probable cause to support [an] arrest”); compare Bostic v. State, 332 Ga. App. 604, 605 (774 SE2d 175) (2015) (driver’s admission that he had consumed one beer, his watery eyes, and a positive alco-sensor test, together with the fact that no erratic driving was observed, without more, did not constitute probable cause to arrest for DUI).

"the results of the field sobriety tests constitute [ ] admissible evidence of probable cause to support [an] arrest"


driver's admission that he had consumed one beer, his watery eyes, and a positive alco-sensor test, together with the fact that no erratic driving was observed, without more, did not constitute probable cause to arrest for DUI


Context: Under the clearly-erroneous standard, "[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it." We may affirm the district court's denial of a resentencing motion on any basis supported by the record.

appellate court may affirm district court's ruling on section 3582(c

See United States v. Taylor, 627 F.3d 674, 676 (7th Cir.2010) (appellate court may affirm district court’s ruling on section 3582(c)(2) motion “on any ground supported in the record”); United States v. Green, 595 F.3d 432, 436 (2d Cir.2010) (same); see also Jones v. Bernanke, 557 F.3d 670, 676 (D.C.Cir.2009) (“[W]e may affirm a judgment on any ground the record supports.... ”).

"[W]e may affirm a judgment on any ground the record supports.... "


Context: Rein, Croces, and Driscoll's prior bankruptcy actions were litigated to a final judgment on the merits. Their settlement agreements, reaffirming the pre-petition debts, were approved by the respective bankruptcy courts and included as part of the final judgments issued in Rein, Croces, and Driscoll's Chapter 7 proceedings. A judicially approved settlement agreement is considered a final judgment on the merits.

In re Dominelli, 820 F.2d 313, 316-17 (9th Cir.1987) (holding that the settlement and dismissal of the trustee’s usury claim against lienholder operates as res judicata to bar appellant from raising an usury claim on behalf of the estate against the same lienholder); see Hoxworth v. Blinder, 74 F.3d 205, 208 (10th Cir.1996); see also In re Medomak Canning, 922 F.2d 895, 900 (1st Cir.1990); In re Klasinski, 215 B.R. 181, 183 (Bankr.C.D.Ill.1997) (judgment order approving settlement that included a stipulation of nondischargeability given preclusive effect even though the order did not contain a specific finding of nondisehargeability). We therefore proceed to examine whether the final prong of the claim preclusion analysis is satisfied with regard to Rein, Croces, and Driscoll.

holding that the settlement and dismissal of the trustee's usury claim against lienholder operates as res judicata to bar appellant from raising an usury claim on behalf of the estate against the same lienholder


Context: Based on the sealed letter that the Government has submitted, this premise appears to be inaccurate. (See Sealed Ltr.) Moreover, even if there were press reports suggesting the identity of the cooperating witness, and even if those reports prove to be accurate, see Senior Aide Implicating Bin Laden in Terrorism, N.Y. Times (Dec. 3, 1998), http://nytimes.com/1998/12/03/world/senioraide-implicating-bin-laden-interrorism.html (citing unnamed sources to identify prosecution's cooperating witness in ongoing terrorism investigation, but the sources' information proved inaccurate), that is not the functional equivalent of officially acknowledging the cooperating witness, let alone the information that the witness has provided.

under FOIA, the government may be deemed to have waived its right to keep certain information confidential "only where the government has officially disclosed the information the requester seeks" (emphasis added

See Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.Cir.1983) (“[E]ven if a fact — such as the existence of ... [a secret] liaison — is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security.”); cf. Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009) (noting that under the Freedom of Information Act (“FOIA”), “the law will not infer official disclosure of information classified by the CIA from ... widespread discussion of a classified matter”); Halpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999) (under FOIA, the government may be deemed to have waived its right to keep certain information confidential “only where the government has officially disclosed the information the requester seeks” (emphasis added)).

"[E]ven if a fact -- such as the existence of ... [a secret] liaison -- is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security."


Context: Here, the government did not engage in affirmative misconduct. While its failure to notify Wright that his case had been transferred to the DOJ -- or provide him with documentation evidencing that transfer -- represents a material omission, it does not rise to the level of affirmative misconduct.

finding that "the risk of assessing the scope of a government agent's authority is squarely on the private party"

See In re: Dutch Masters Meats, Inc., 182 B.R. 405, 411 (Bankr. M.D.Pa.1995) (finding that an IRS agent’s failure to warn a company that he did not have authority to bind the Service did not represent affirmative misconduct); see also Jordan v. U.S., 77 Fed.Cl. 565, 569 (Fed.Cl.2007) (finding that “the risk of assessing the scope of a government agent’s authority is squarely on the private party”).

finding that an IRS agent's failure to warn a company that he did not have authority to bind the Service did not represent affirmative misconduct


Context: This court has reduced convictions of murder in the first degree predicated on felony-murder only where the evidence suggested that the felony intended by the defendant would not suffice for felony-murder in the first degree.

evidence that defendant distracted victim while codefendant sought to remove money from victim's pocket, with killing occurring suddenly when victim realized what defendants were doing, suggested that defendant intended "to steal surreptitiously, not by violence as in a robbery," thus making conviction of felony-murder in first degree contrary to weight of evidence

See Commonwealth v. Williams, 364 Mass. 145, 146, 151-152 (1973) (evidence that defendant distracted victim while codefendant sought to remove money from victim’s pocket, with killing occurring suddenly when victim realized what defendants were doing, suggested that defendant intended “to steal surreptitiously, not by violence as in a robbery,” thus making conviction of felony-murder in first degree contrary to weight of evidence); Commonwealth v. Rego, 360 Mass. 385, 394-396 (1971) (evidence suggested breaking and entering to steal money from vending machines after hours when factory building would likely be vacant; murder of security guard occurring during that breaking and entering would be only murder in second degree; reduction of verdict of murder in first degree appropriate, especially where judge failed to give jury option of felony-murder in second degree).

See also Commonwealth v. White, 353 Mass. 409, 424-425 (1967), cert. denied, 391 U.S. 968 (1968) (reducing verdict where theories of felony-murder in both first and second degrees submitted to jury without defining elements of predicate felonies for either degree of murder). This court’s power under G.


Context: Here, we find the grant of summary judgment to Johns Beach on the basis of a lack of proximate cause was inappropriate. The facts of the case warrant further development to determine what duty, if any, Johns Beach owed to Mr. Corbett.

See Dorman v. Allstate Ins. Co., 332 S.C. 176, 504 S.E.2d 127 (Ct.App.1998) (further development of facts necessary to clarify application of statute); Hurst v. Sandy, 329 S.C. 471, 494 S.E.2d 847 (Ct.App.1997) (issue of fact as to duty of defendant to plaintiff); cf. Rice v. School Dist. of Fairfield, 317 S.C. 87, 452 S.E.2d 352 (Ct.App.1994) (summary judgment appropriate because further development of facts could not create a duty on part of defendant).


issue of fact as to duty of defendant to plaintiff


Context: We have concluded # that sovereign immunity bars Machete's- UDJA claims seeking to invalidate the Commission's denial of the Program grant, and there is no other right to judicial review of the Commission's decision. Machete's section 2001.038 claim for declaratory judgment is therefore moot.

See Bacon, 411 S.W.3d at 181 (“Further, absent a right of judicial review from the THC proceedings or other claim to challenge them that is within the district court’s jurisdiction, Bacon’s section 2001.038 claim for .declaratory relief is moot.”); Creedmoor-Maha Water Supply, 307 S.W.3d at 526 n. 16 (agency’s final, unappealable order rendered section 2001.038 rule challenge moot); see also Texas Logos, 241 S.W.3d at 123-24 (because relief provided under section 2001.038 does not extend to invalidating agency decision, but only rules by which proceedings were conducted, challenge to validity of those rules would amount to mere abstract, advisory opinion).

"Further, absent a right of judicial review from the THC proceedings or other claim to challenge them that is within the district court's jurisdiction, Bacon's section 2001.038 claim for .declaratory relief is moot."


agency's final, unappealable order rendered section 2001.038 rule challenge moot


Context: The useful product cases have no applicability where, as here, the sale of a useful product necessarily and immediately results in the leakage of hazardous substances. In that circumstance, the leaked portions of the hazardous substances are never used for their intended purpose.

rejecting application of the useful product doctrine where "waste is generated and disposed of contemporaneously with the process" (emphasis added

See Zands v. Nelson, 779 F.Supp. 1254, 1262 (S.D.Cal.1991) (stating that “gasoline is no longer a useful product after it leaks into, and contaminates, the soil”); see also Aceto, 872 F.2d at 1381 (rejecting application of the useful product doctrine where “waste is generated and disposed of contemporaneously with the process” (emphasis added)).

stating that "gasoline is no longer a useful product after it leaks into, and contaminates, the soil"


Context: . We stress that the issue before this court is strictly contractual in nature: whether the shareholders are individually liable under the terms of the insurance policy. Our decision today has no bearing on the propriety of the portion of Minn. Stat. SS 319A.10 which states: "[N]o person is personally liable in tort for any act not personally participated in."

upholding professional corporation statute that limited incorporated attorneys' liability because the statute's requirement of mandatory liability insurance would protect clients and members of the public

But see In re R.I. Bar Ass’n, 106 R.I. 752, 263 A.2d 692, 697 (1970) (upholding professional corporation statute that limited incorporated attorneys' liability because the statute’s requirement of mandatory liability insurance would protect clients and members of the public).

invalidating the applicability of the state professional corporation statute to attorneys as a violation of the separation of powers because "the influence of the statute upon the professional corporation cannot extend to the regulation of the law practice so as to impose a limitation of liability for the acts of malpractice or obligations incurred because of a breach of duty to a client"

See First Bank & Trust Co. v. Zagoria, 250 Ga. 844, 302 S.E.2d 674, 675 (1983) (invalidating the applicability of the state professional corporation statute to attorneys as a violation of the separation of powers because "the influence of the statute upon the professional corporation cannot extend to the regulation of the law practice so as to impose a limitation of liability for the acts of malpractice or obligations incurred because of a breach of duty to a client”); Petition of Bar Ass’n of Haw., 55 Haw. 121, 516 P.2d 1267, 1268 (1973) (overturning by rule portion of the state professional corporation act "which would limit the liability of incorporated attorneys for the malpractice of their associates”).


overturning by rule portion of the state professional corporation act "which would limit the liability of incorporated attorneys for the malpractice of their associates"


Context: The majority concludes that "[t]he error here was a sentencing error, as nothing was wrong with Lewis's indictment or trial." But the same could have been said in Vazquez: The instructions to the jury were sufficient to support a conviction and sentence for a lesser-included offense that did not require proof of drug quantity, and the sentencing court erred by imposing a sentence greater than that reflected in the instructions. Indeed, we characterized the sequence of events in Vazquez as a combined "trial and sentencing error" despite there being nothing incorrect about instructing the jury and securing a conviction on a lesser-included offense, as opposed to the aggravated crime charged in the indictment.

See Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989) (Rule 31(c) of the Federal Rules of Criminal Procedure “suggests that a lesser included offense instruction is available in equal measure to the defense and to the prosecution”); Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (“[T]he defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”); see also United States v. Petersen, 622 F.3d 196, 207 (3d Cir.2010) (affirming conviction for lesser-included offense under plain-error review where jury was instructed only as to aggravated offense).

Rule 31(c) of the Federal Rules of Criminal Procedure "suggests that a lesser included offense instruction is available in equal measure to the defense and to the prosecution"


"[T]he defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater."


Context: Plaintiff himself construed those responses as such, as indicated in his 1999 letter to the president of the University. The fact that he held out hope that the president would intercede on his behalf does not change the accrual date for the statute of limitations because that date is measured by the standard of when a person, with the exercise of reasonable diligence, should have known of his injury.

"Under federal law, the limitations period begins to run when a plaintiff knew or should have known of the injury that forms the basis of his claim."

See Stewart, 2006 WL 626921, at *4 (statute of limitations under the ADA accrues “when the plaintiff knew or had reason to know of the injury serving as the basis for his claim.”); see also Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir.2007) (“Under federal law, the limitations period begins to run when a plaintiff knew or should have known of the injury that forms the basis of his claim.”); Soignier, 92 F.3d at 551 (holding that under the ADA “discovery of the original act of discrimination, not future confirmation of the injury or determination that the injury is unlawful, is when the statute of limitations begins to run”) (emphasis in original).

statute of limitations under the ADA accrues "when the plaintiff knew or had reason to know of the injury serving as the basis for his claim."


holding that under the ADA "discovery of the original act of discrimination, not future confirmation of the injury or determination that the injury is unlawful, is when the statute of limitations begins to run"


Context: P15 Thus, Troxel instructs that when a grandparent petitions for contact with a grandchild, a court must first inquire whether the child's parent is fit; that is, the court must determine whether the parent "adequately cares for his or her children."

See Evans v. McTaggart (Alaska 2004), 88 P.3d 1078 (holding that requiring a petitioner to establish by clear and convincing evidence that visitation is in the best interests of the child would provide effective protection for a parent’s choice, except where the choice is plainly contrary to a child’s best interests); cf. In re Custody & Parental Rights of P.M., 1998 MT 264, ¶ 12, 291 Mont. 297, ¶ 12, 967 P.2d 792, ¶ 12 (a party seeking termination of parental rights must demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied).

holding that requiring a petitioner to establish by clear and convincing evidence that visitation is in the best interests of the child would provide effective protection for a parent's choice, except where the choice is plainly contrary to a child's best interests


Context: Mere evidence that defendants knew of plaintiffs protected speech is not sufficient to show retaliatory motivation.

"Umbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him."

Keyser, 265 F.3d at 751 (mere evidence that defendant knew of plaintiffs’ charges did not create a triable issue as to whether his decision to reassign them was motivated by the charges); see also Umbehr, 518 U.S. at 685, 116 S.Ct. 2342 (“Umbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him.”).

mere evidence that defendant knew of plaintiffs' charges did not create a triable issue as to whether his decision to reassign them was motivated by the charges


Context: California's FEHA and Title VII both prohibit employment discrimination based on race. See CAL.

See Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 n. 2 (9th Cir.1997) (“[T]he test for determining whether there is discrimination under Title VII applies to FEHA claims as well.”) (citation omitted); see also Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219 (9th Cir.1998) (noting that because FEHA mirrors federal law under Title VII, federal case law is instructive).

"[T]he test for determining whether there is discrimination under Title VII applies to FEHA claims as well."


Context: "[T]he timely filing of a notice of appeal is a jurisdictional requirement." An untimely appeal must be dismissed for lack of jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling.

"Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the 'unique circumstances' doctrine is illegitimate."

Bowles, 127 S.Ct. at 2366 (“Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.”); see International Rectifier Corp. v. IXYS Corp., 515 F.3d 1353, 1357-58 (Fed.Cir.2008) (“In Bowles, the Supreme Court emphasized the jurisdictional nature of notices of appeal and held that the jurisdictional rules lack equitable exceptions.”).

"In Bowles, the Supreme Court emphasized the jurisdictional nature of notices of appeal and held that the jurisdictional rules lack equitable exceptions."


Context: Had the trial court precluded this testimony, the jury would have been required to assess the victim's credibility with an incomplete account of relevant evidence relating to her credibility. In these circumstances, the trial court did not abuse its discretion in allowing the state to present the challenged testimony on redirect examination.

See, e.g., Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008) (recognizing that the opening the door concept is based on considerations of fairness and the truth seeking function of a trial and may be employed when redirect examination serves to reveal the whole story of a transaction only partly explained in cross examination); see also Williamson v. State, 681 So.2d 688 (Fla.1996) (holding that section 90.403, Florida Statutes, did not preclude testimony that a critical state witness knew that the defendant had previously murdered a child, when the credibility of the witness was at issue due to his failure initially to fully cooperate with law enforcement officers investigating the crime for which the defendant was on trial).


Context: The reason for the durational difference matters. Here, no evidence exists that the difference resulted from any determination that relied on ALJ status to impose a longer furlough, let alone a determination aimed at or causing an impairment of decision-making independence.

"Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome."

See Brennan, 787 F.2d at 1563 (agency actions “based on reasons which interfere with the quasi-judicial functions” of ALJs cannot stand); cf. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (“Whatever the employer’s decision-making process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.”).

agency actions "based on reasons which interfere with the quasi-judicial functions" of ALJs cannot stand


Context: As a result, even though the plaintiffs and defendants are "head-to-head" or direct competitors over in Russia, they do not compete at all, whether directly or indirectly, in the United States. Without a commercial presence, the court cannot conclude that the plaintiffs have asserted a legitimate commercial interest to protect or have suffered a tangible competitive harm within the meaning of the Lanham Act.

See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1112 (2d Cir.1997) (recognizing that the litigant “d[id] not currently sell a ... product that compete[d] with [his opponent’s] products,” regardless of whether that par ty was acting lawfully or unlawfully); see also Stanfield v. Osborne Indus., Inc., 52 F.3d 867, 873 (10th Cir.1995) (noting that the plaintiff was not then, nor had ever been, in competition with the defendants at any level).

recognizing that the litigant "d[id] not currently sell a ... product that compete[d] with [his opponent's] products," regardless of whether that par ty was acting lawfully or unlawfully


Context: As was the case in Henning, we are here presented with an "express indication" of a state legislature's "special interest in providing litigants" with full compensation for reasonable sums expended in pursuit of an Oil Spill Act claim.

"Congress has no power to declare substantive rules of common law applicable in a State ..-.."

Chevalier, 953 F.2d at 886. Because “the measure of damages is a matter of state substantive law,” Barbier, 948 F.2d at 122, it would do violence to the principles enunciated in Erie to disregard Oregon law in favor of § 1821(b). See Erie, 304 U.S. at 78, 58 S.Ct. 817 (“Congress has no power to declare substantive rules of common law applicable in a State ..-..”); see also Freeman, 865 F.2d at 1348(“It would turn things topsy-turvy to saddle [Oil Spill Act] claimants — no matter how galling their deprivations or how vindicatory the outcome of their suits — with whopping fees for the services of expert witnesses.”).

"It would turn things topsy-turvy to saddle [Oil Spill Act] claimants -- no matter how galling their deprivations or how vindicatory the outcome of their suits -- with whopping fees for the services of expert witnesses."


Context: . Other courts have recognized the existence of a determinable easement, or an easement subject to a condition subsequent. Although this Court has never recognized a defeasible easement, we have held an easement no longer used for its stated purposes has been abandoned and therefore extinguished.

See Immanuel Baptist Church v. Barnes, 274 S.C. 125, 264 S.E.2d 142 (1980) (owner of easement may relinquish that easement by express or implied abandonment).

See also Saluda Motor Lines v. Crouch, 300 S.C. 43, 386 S.E.2d 290 (Ct.App.1989)(where railroad ceased to use its right-of-way for railroad purposes, it abandons right-of-way).


Context: The statutory language, however, focuses on a veteran's incarceration for a felony conviction in any facility and does not distinguish between government-operated prisons and privately operated prisons. The statute's failure to distinguish between the two types of prisons indicates that incarceration in a privately owned and operated prison under contract with the state is tantamount to incarceration in a state penal institution.

"[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumen-talities of the State .... "

See Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (“[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumen-talities of the State .... ”); see also Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996) (stating that employees of the Corrections Corporation of America perform a “traditionally state function” by operating a prison); Giron v. Corr. Corp. of Am., 14 F.Supp.2d 1245, 1249 (D.N.M. 1998) (holding that a Corrections Corporation of America prison guard acted under color of state law for purposes of § 1983 suit because “[t]he function of incarcerating people, whether done publicly or privately, is the exclusive prerogative of the state.”).

stating that employees of the Corrections Corporation of America perform a "traditionally state function" by operating a prison


holding that a Corrections Corporation of America prison guard acted under color of state law for purposes of SS 1983 suit because "[t]he function of incarcerating people, whether done publicly or privately, is the exclusive prerogative of the state."


Context: Devine argues that the guns were not connected to the cocaine sales to the undercover officer to which he pled guilty, which did not occur at his home. The storing and cutting of drugs, however, is conduct relevant to drug distribution, and the district court did not err in concluding that weighing and cutting cocaine at home comprised part of Devine's drug dealing, even if not directly linked to the cocaine sold to the undercover agent.

See Smith, 215 F.3d at 240-41 (holding that the government had established that the presence of weapons was reasonably foreseeable to the defendant during his drug dealing where officers discovered handguns in residence where defendant kept cocaine base and drug paraphernalia); see also United States v. Sweet, 25 F.3d 160, 163 (2d Cir. 1994) (holding enhancement applicable where the record supported conclusion that drugs were stored and cut in the same location as the guns, even though a search of the location yielded no drugs).


Context: She kept it solvent, tallying receipts, monitoring cash flow, and passing along relevant records to an accountant. When considered in light of the tavern's gross receipts during the relevant period -- more than $75,000 in 2000 and nearly $84,000 in 2001 -- it was not unreasonable for the ALJ to conclude that Froncheck's contributions were clearly worth more than the threshold amounts. We have upheld the denial of benefits to self-employed applicants with similar management roles.

See Brewer v. Chater, 103 F.3d 1384, 1391 (7th Cir.1997) (upholding determination that part-time, self-employed owner of tax preparation and dry-cleaning businesses was engaged in substantial gainful activity), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562 (7th Cir.1999); Callaghan v. Shalala, 992 F.2d 692, 695-96 (7th Cir.1993) (upholding determination that self-employed owner of upholstery business engaged in substantial gainful activity by administering the company part-time); see also Johnson v. Sullivan, 929 F.2d 596, 598 (11th Cir.1991) (upholding determination that supervisory activities of self-employed land surveyor were substantial and gainful).


upholding determination that self-employed owner of upholstery business engaged in substantial gainful activity by administering the company part-time


Context: Within the context of a different legal issue, our Supreme Court declined to impose a duty on law enforcement officials to consent to defense interviews.

finding certain provisions of the Alaska Victims' Right Act of 1991, Alaska Stat. SSSS 12.61.100 to -.150, were unconstitutional because they interfered with criminal defense investigations without adequate justification

See also State v. Murtagh, 169 P.3d 602, 608 (Alaska 2007) (finding certain provisions of the Alaska Victims’ Right Act of 1991, Alaska Stat. §§ 12.61.100 to -.150, were unconstitutional because they interfered with criminal defense investigations without adequate justification).

holding that medical examiner's order to toxicologist not to speak with accused, his counsel or experts, violated defendant's constitutional rights

Cf. Coppolino v. Helpern, 266 F.Supp. 930, 935-36 (S.D.N.Y.1967) (holding that medical examiner’s order to toxicologist not to speak with accused, his counsel or experts, violated defendant’s constitutional rights); but see Fenenbock, supra, 681 F.3d at 970-71, 974 (finding no violation of constitutional rights when an agency unrelated to the prosecution, acting in the interest of a witness who was a minor, denied pretrial access to eight defendants).


finding no violation of constitutional rights when an agency unrelated to the prosecution, acting in the interest of a witness who was a minor, denied pretrial access to eight defendants


Context: This Court has been reluctant to look to legislative history to divine the Legislature's meaning, and rightly so when the statute's words clearly convey legislative intent.

See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 356 (Tex.2009) (looking to legislative history to determine meaning of term that lent itself to two equally plausible interpretations); see also Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 149 (Tex.2010) (looking to legislative record to determine public interest Legislature sought to serve in enacting Chapter 149 of the Civil Practice and Remedies Code).


Context: The United States has committed to the development of nuclear energy, yet to-date it lacks a permanent solution for one consequence of that commitment--the generation of spent nuclear fuel, which "poses a dangerous, long-term health and environmental risk." This case is not the first, nor even the second, time that concerned parties have petitioned this Court to address the spent-nuclear-waste problem.

remanding the NRC's decision to expand "on-site capacity for the storage of spent nuclear fuel assemblies" in light of "[t]he complex and vexing question of the disposal of nuclear wastes"

See, e.g., Minnesota v. NRC, 602 F.2d 412, 413, 418-19 (D.C. Cir. 1979) (remanding the NRC’s decision to expand “on-site capacity for the storage of spent nuclear fuel assemblies” in light of “[t]he complex and vexing question of the disposal of nuclear wastes”); New York I, 681 F.3d at 483 (vacating the NRC’s rule governing the temporary storage of spent nuclear fuel); see also In re Aiken Cnty., 645 F.3d 428, 430 (D.C. Cir. 2011) (considering a challenge to the Department of Energy’s attempt to withdraw its application for a permanent repository for spent nuclear fuel); Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1277 (D.C. Cir. 1996) (requiring the Department of Energy to fulfill its contractual obligations to dispose of spent nuclear fuel generated by operators of civilian nuclear power plants).

considering a challenge to the Department of Energy's attempt to withdraw its application for a permanent repository for spent nuclear fuel


requiring the Department of Energy to fulfill its contractual obligations to dispose of spent nuclear fuel generated by operators of civilian nuclear power plants


vacating the NRC's rule governing the temporary storage of spent nuclear fuel


Context: However, whether a court has subject matter jurisdiction over a third-party or in this case, a fourth-party cause of action, is distinct from an assessment of the propriety and merits of an impleader action.

See, e.g., Telecom International, 1999 WL 777954, at *4 (stating that “Rule 14(a) ... provides only the procedural mechanism for impleader; the substantive merit of the action depends on the federal or state theory of contribution, indemnity, or any other theory found in the third-party complaint”) (citation omitted); Van-Tulco, 866 F.Supp. at 686 (analyzing the propriety of a third-party action separately from the issue of subject matter jurisdiction over the third-party action); see also Providers Fidelity Life Ins. Co. v. Tidewater Group, Inc. (In re Tidewater Group, Inc.), 63 B.R. 670, 674 (Bankr.N.D.Ga. 1986) (stating that “whether or not [a party] was a proper party to implead has nothing to do with whether subject matter jurisdiction exists”).

stating that "whether or not [a party] was a proper party to implead has nothing to do with whether subject matter jurisdiction exists"


Context: We review de novo the legal question of whether the 2001 and 2008 rules amending the Board's patient copy rule violate HIPAA and its related regulations.

See Transponder Corp., 681 P.2d at 503 (in reviewing an agency action, courts shall determine all legal questions, interpret the statutory and constitutional provisions involved, and shall apply such interpretation to the facts duly found or established). Moreover, because the Board is charged with administering and enforcing state public health laws and not federal health laws, we need not defer to the Board's HIPAA interpretations.

Cf. Meridian Ranch Metropolitan Dist., 240 P.3d at 387, 2009 WL 3765490 (court generally defers to statute's interpretation by agency charged with its enforcement).


Context: . In any event, Corning likely makes out a prima facie case because viewing the facts in the light most favorable to him, (1) he engaged in protected activity when he requested an accommodation including to not work out of the storage shed; (2) he suffered an adverse employment action when LodgeNet terminated him; and (3) given that there were only two days between the request and his termination, Corning shows that the adverse action was causally related to the protected conduct.

"[A] plaintiff satisfies [the causal connection] element if he provides sufficient evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this awareness and the adverse employment action."

See Farley, 197 F.3d at 1337 ("[A] plaintiff satisfies [the causal connection] element if he provides sufficient evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this awareness and the adverse employment action.”); Reis, 442 F.Supp.2d at 1254 (same); but see Jenks, 829 F.Supp.2d at 1254 ("Close temporal proximity between the protected conduct and the adverse employment action is generally sufficient circumstantial evidence to create a genuine issue of material fact as to the causal connection, however this alone may not be sufficient to establish pretext.”).

"Close temporal proximity between the protected conduct and the adverse employment action is generally sufficient circumstantial evidence to create a genuine issue of material fact as to the causal connection, however this alone may not be sufficient to establish pretext."


Context: The class of beneficiaries rarely seems to be a contested issue when determining whether an informal ERISA plan exists.

See, e.g., Deibler, 973 F.2d at 210 (finding a regular plan for retiring union officers); Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 547 (6th Cir. 1989) (noting that the class of beneficiaries was terminated non-union salaried employees); see also Shaver, 670 F.3d at 479 (observing that if plan existed, it would include “legacy employees”); Williams v. WCI Steel Co., 170 F.3d 598, 603 (6th Cir. 1999) (ruling that although-informal plan did not exist, the class of beneficiaries was clear).

observing that if plan existed, it would include "legacy employees"


ruling that although-informal plan did not exist, the class of beneficiaries was clear


Context: T61 Other courts have' recognized what the interests of justice compel in similar circumstances.

But see Hooper v. State, 150 Idaho 497, 248 P.3d 748, 751 (2011) (holding that the trial court could not award a refund of restitution where the defendant's payments had gone to the state's Industrial Commission over which the court lacked personal jurisdiction),

See United States v. Hayes, 385 F.3d 1226, 1229-30 (Oth Cir.2004) (holding that, where the defendant's conviction was reversed on collateral review, the government must return amounts paid as special - assessments and costs, though it need not reimburse for restitution disbursed after the conviction became final); Telink Inc. v. United States, 24 F.3d 42, 47 (9th Cir.1994) ("If [the defendants] prevail in setting aside their convictions, the wrongly paid fines would be automatically refunded, without requiring a civil action. ..."); United States v. Lewis, 478 F.2d 835, 836 (5th Cir.1973) ("Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines."); United States v. Beckner, 16 F.Supp.2d 677, 679 (M.D.La.1998) ("[This court has jurisdiction to carry out its obligation to completely vacate all aspects of the erroneous judgement [sic] issued by it.... In this criminal case the final judgment is that Beckner owed restitution to no one.... The government must reimburse Beck-ner...."); United States v. Venneri, 782 F.Supp. 1091, 1092-95. (describing previous order requiring government to refund a defendant's fine paid for violating an unconstitutional statute and ordering third-party restitution recipient to repay defendant); Cooper v. Gordon, 389 So.2d 318, 319 (Fla.Dist.Ct.App.1980) (holding lower court had inherent power to restore defendant to status quo ante for wrongly paid fine, restitution, and probation costs); : Commonwealth v. McKee, 38 A.3d 879, 881 (Pa.Super.Ct.2012) (finding trial court had jurisdiction to consider defendant's refund petition after his convictions were overturned on direct appeal).


"If [the defendants] prevail in setting aside their convictions, the wrongly paid fines would be automatically refunded, without requiring a civil action. ..."


"Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines."


"[This court has jurisdiction to carry out its obligation to completely vacate all aspects of the erroneous judgement [sic] issued by it.... In this criminal case the final judgment is that Beckner owed restitution to no one.... The government must reimburse Beck-ner...."


describing previous order requiring government to refund a defendant's fine paid for violating an unconstitutional statute and ordering third-party restitution recipient to repay defendant


holding lower court had inherent power to restore defendant to status quo ante for wrongly paid fine, restitution, and probation costs


finding trial court had jurisdiction to consider defendant's refund petition after his convictions were overturned on direct appeal


Context: Second, it was plainly reasonable for defendants to place plaintiff on TB hold, in light of the fact that the condition of his immune system was such that defendants could not place complete confidence in the negative results of his TB test results.

DOCS's placement of plaintiff on TB hold was reasonable where DOCS was "unable to determine the extent to which Plaintiff pose[d] a risk of contagion"

See Word, 230 F.Supp.2d at 512 (DOCS’s placement of plaintiff on TB hold was reasonable where DOCS was “unable to determine the extent to which Plaintiff pose[d] a risk of contagion”); cf. Reynolds v. Goord, 103 F.Supp.2d 316, 337-38 (S.D.N.Y.2000) (finding it irrational to place on TB hold inmate who refused to submit to PPD testing on religious grounds, where other diagnostic tools to which plaintiff did submit, such as a chest x-ray, sputum testing, and physical examination, indicated that plaintiff was negative for TB).


Context: However, Veith failed to preserve this issue for appeal by not offering proper objection during closing. "The rule is that the objection to argument of counsel must be made at the time of the improper argument, remark, or other misconduct."

Janklow, 2005 SD 25, ¶ 47, 693 N.W.2d at 701. When a party deprives the trial court an opportunity to rule on the issue by failing to object to argument at the time the objectionable comments are made, he waives his right to argue the issue on appeal. Id. ¶ 47, 693 N.W.2d at 701 (quoting State v. Boston, 2003 SD 71, ¶ 26, 665 N.W.2d 100, 109 (citing State v. Corey, 2001 SD 53, ¶ 9, 624 N.W.2d 841, 844); City of Sioux Falls v. Kelley, 513 N.W.2d 97, 110 (S.D.1994) (citations omitted) (holding that plaintiffs failure to object to the improper comments of defendant during closing arguments resulted in waiver of plaintiffs right to argue the issue on appeal because the trial court was not given an opportunity to rule on the issue); see Anderson, 441 N.W.2d at 677 (S.D.1989) (holding that plaintiffs failure to request a mistrial due to defense counsel’s improper statements during closing argument foreclosed his opportunity to argue it on appeal); State v. Handy, 450 N.W.2d 434, 435 (S.D.1990) (holding that defendant did not preserve his challenge to alleged prosecutorial misconduct where he did not timely object)); Arbach v. Gruba, 89 S.D. 322, 232 N.W.2d 842 (1975); see also Till, 281 N.W.2d 276; Carlson, 392 N.W.2d 89; Triple U Enterprises, Inc., 388 N.W.2d 525; John Deere Company, 306 N.W.2d 231; Matter of A.I., 289 N.W.2d 247 (S.D.1980).


Context: See Brown v. General Servs. As a result, Title VII preempts any constitutional cause of action that a court might find under the First or Fifth Amendments for discrimination in federal employment.

See Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2406, 76 L.Ed.2d 648 (1983) (refusing to find a cause of action under the First Amendment for a disciplined federal employee because of the remedies available from the Civil Service Commission); see also Petrini v. Howard, 918 F.2d 1482, 1483-1484 (10th Cir.1990) (applying Bush to First Amendment claim of teachers for the Bureau of Indian Affairs).


Context: Instead, it was reminded over and over again that if Gravley's version of events was really true he certainly would have come forward earlier. In the face of such misconduct, we simply cannot conclude the conviction was attained through a fair judicial process.

"[W]here, as here, the evidence of guilt is at best conflicting, egregious prosecutorial misconduct of this kind rises to the level of a constitutional deprivation, denying the defendant a fundamentally fair trial."

See Martin v. Parker, 11 F.3d 613, 617 (6th Cir.1993) (“[W]here, as here, the evidence of guilt is at best conflicting, egregious prosecutorial misconduct of this kind rises to the level of a constitutional deprivation, denying the defendant a fundamentally fair trial.”); see also United States v. Payne, 2 F.3d 706, 712 (6th Cir.1993); Sims v. Livesay, 970 F.2d 1575, 1581 (6th Cir.1992) (“This is not a case where the evidence of the Gravley’s guilt was so massive or multilayered as to render harmless defense counsel’s errors.”).

"This is not a case where the evidence of the Gravley's guilt was so massive or multilayered as to render harmless defense counsel's errors."


Context: Similarly, we have found covenants not to compete that restrict an employee from working in any capacity for an employer's competitor or from working within portions of the business with which the employee was never associated to be unreasonable because such restrictions extend beyond the seope of the employer's legitimate interest.

See, e.g., Sharvelle, 836 N.E.2d at 437-438 (holding that covenant's prohibition on the employee-doctor from practicing "health care of every nature and kind" was unreasonable where the doctor had been employed to practice in the specialty of ophthalmology); Pathfinder, 795 N.E.2d at 1114 (holding that covenant's provision that a radio dise jockey would "not engage in activities" at certain radio stations listed in the covenant was over-broad because it would have prevented the employee from being employed in any capacity by any radio station listed in the covenant and "extended far beyond" the former employer's legitimate interest in the employee as an on-air personality); Burk v. Heritage Food Serv. Equip., Inc., 737 N.E.2d 803, 812 (Ind.Ct.App.2000) (holding that the covenant's clause prohibiting the employee from being "employed . with any corporation ... which competes with, or otherwise engages in any business of the [employer]" was overbroad because it prohibited the employee from working for a competitor in any capacity); Frederick v. Prof'l Bldg. Maint. Indus. Inc., 168 Ind.App. 647, 650, 344 N.E.2d 299, 302 (1976) (holding that a covenant not to compete that restrained the employee, who worked at the management level of a cleaning and maintenance business and had gained the advantage of personal acquaintance with the employer's customers, from acting not only as a proprietor but also as an employee in furnishing janitorial services was unreasonable and beyond the seope of the employer's legitimate interest of protecting its good will).

But see Unger, 771 N.E.2d at 1245 (holding that the noncompetition clause, which restricted the employee, who was the president of a company offering annuity and brokerage services, from "participating in any 'business competitive with the business of [his former employer,]'" who provided financial services, was reasonably limited in the type of activity it prohibited because the employee "was therefore free to seek employment with any business that did not provide financial services").


holding that covenant's provision that a radio dise jockey would "not engage in activities" at certain radio stations listed in the covenant was over-broad because it would have prevented the employee from being employed in any capacity by any radio station listed in the covenant and "extended far beyond" the former employer's legitimate interest in the employee as an on-air personality


holding that the covenant's clause prohibiting the employee from being "employed . with any corporation ... which competes with, or otherwise engages in any business of the [employer]" was overbroad because it prohibited the employee from working for a competitor in any capacity


holding that a covenant not to compete that restrained the employee, who worked at the management level of a cleaning and maintenance business and had gained the advantage of personal acquaintance with the employer's customers, from acting not only as a proprietor but also as an employee in furnishing janitorial services was unreasonable and beyond the seope of the employer's legitimate interest of protecting its good will


Context: In particular, the district court directed that the shackles and tasers be worn under the Appellants' clothing, the counsel tables skirted, and the shackles taped to the Appellants' legs, to prevent the jury from seeing or hearing the restraints. In doing so, the district court employed the least restrictive and least prejudicial means of restraint available, thus fulfilling the procedural prerequisites to utilizing this type of security measure.

finding that the lower court erred in requiring shackling of the defendant, in part because the court failed to explain "why, if shackles were necessary, [it] chose not to provide for shackles that the jury could not see"

See Mayes, 158 F.3d at 1226 (“[W]e find no abuse of discretion in the district court’s decision that shackling was appropriate during the course of the appellants’ trial and that leg irons were the least restrictive method of effective restraint.”); cf. Deck, 544 U.S. at 634-35, 125 S.Ct. at 2015 (finding that the lower court erred in requiring shackling of the defendant, in part because the court failed to explain “why, if shackles were necessary, [it] chose not to provide for shackles that the jury could not see”).

"[W]e find no abuse of discretion in the district court's decision that shackling was appropriate during the course of the appellants' trial and that leg irons were the least restrictive method of effective restraint."


Context: Vargas's argument is flawed, however, because there is no evidence that he ever tried to comply with the plan. Because Vargas did not even minimally attempt to comply with the plan, there is no "performance" from which he could be excused. This court has previously found that an employee's intentional refusal to perform a task, as opposed to negligent forgetfulness, supports the commissioner's representative's decision that an employee committed misconduct.

stating a refusal to unload a truck was "a deliberate act of insubordination" constituting employment misconduct

Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn.App.1987) (finding employee misconduct when employee deliberately chose to disobey her employer’s instructions because she believed the order was “stupid”); see also Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn.App.1984) (stating a refusal to unload a truck was “a deliberate act of insubordination” constituting employment misconduct).

finding employee misconduct when employee deliberately chose to disobey her employer's instructions because she believed the order was "stupid"


Context: Hallways are "easily accessible to tenants, visitors, solicitors, workmen and other members of the public."

See e.g., United States v. Nohara, 3 F.3d 1239, 1241 (9th Cir.1993) (finding no reasonable expectation of privacy in the hallways of a high security, high rise apartment complex); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir.1991) (noting that “the area outside one’s door lacks anything like the privacy of the area inside”, and holding that “a tenant has no reasonable expectation of privacy in the common areas of an apartment building.”); United States v. Holland, 755 F.2d 253, 255 (2d Cir.1985) (holding that “common halls and lobbies of multi-tenant buildings are not within an individual tenant’s zone of privacy even though they are guarded by locked doors.”); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (finding no reasonable expectation of privacy in the hallways of an apartment building notwithstanding locks on the doors to the entryways of the apartment complex); United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976) (finding no reasonable expectation of privacy in well traveled common areas of a condominium or apartment complex); but see United States v. Carriger, 541 F.2d 545 (6th Cir.1976) (finding reasonable expectation of privacy in common areas of apartment building where entryway into apartment building was locked); see also United States v. Heath, 259 F.3d 522, 533— 34 (6th Cir.2001) (same).


noting that "the area outside one's door lacks anything like the privacy of the area inside", and holding that "a tenant has no reasonable expectation of privacy in the common areas of an apartment building."


holding that "common halls and lobbies of multi-tenant buildings are not within an individual tenant's zone of privacy even though they are guarded by locked doors."


finding no reasonable expectation of privacy in the hallways of an apartment building notwithstanding locks on the doors to the entryways of the apartment complex


finding no reasonable expectation of privacy in well traveled common areas of a condominium or apartment complex


Context: Salvador Garcia's lack-of-notice argument fails because even if the govern ment provided insufficient notice of its intent to introduce the cocaine evidence, Salvador Garcia failed to satisfy his burden of demonstrating the requisite prejudice.

"It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial."

See Mares, 402 F.3d at 520; United States v. Duffaut, 314 F.3d 203, 209 (5th Cir.2002) (“To demonstrate plain error, an appellant must show clear or obvious error that affects his substantial rights .... ” (emphasis added)); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.”); Puckett v. United States, 129 S.Ct. 1423, 1433, 173 L.Ed.2d 266 (2009) (“Eliminating the third plain-error prong through semantics makes a nullity of Olano’s instruction that a defendant normally ‘must make a specific showing of prejudice’ in order to obtain relief.”).

"To demonstrate plain error, an appellant must show clear or obvious error that affects his substantial rights .... " (emphasis added


"Eliminating the third plain-error prong through semantics makes a nullity of Olano's instruction that a defendant normally 'must make a specific showing of prejudice' in order to obtain relief."


Context: Rule 16-606 is quite clear; it requires that all attorney trust accounts be designated in one of three manners. Ellison did not comply with this Rule, whether by ignorance or willful intent.

"every attorney is deemed to know the Rules of Professional Conduct and is charged with the knowledge of how to operate and maintain a trust account"

Attorney Grievance Comm’n v. Blum, 373 Md. 275, 300, 818 A.2d 219, 234 (2003) (“the hearing judge was correct when he concluded that Blum violated Maryland Rule[ ] 16-606 ... when he named his attorney trust account ‘Bruce David Blum Law Firm “IOLTA” ’ ”); see Attorney Grievance Comm’n v. Bernstein, 363 Md. 208, 228, 768 A.2d 607, 618 (2001) (“every attorney is deemed to know the Rules of Professional Conduct and is charged with the knowledge of how to operate and maintain a trust account”).

"the hearing judge was correct when he concluded that Blum violated Maryland Rule[ ] 16-606 ... when he named his attorney trust account 'Bruce David Blum Law Firm "IOLTA" ' "


Context: However, when questioned by the ALJ, Ms. Knight admitted that she could carry a ten-pound sack of potatoes around a ten-foot by four-foot area once every half hour. Under these circumstances, we cannot say the ALJ erred in discounting Ms. Knight's testimony.

stating that, court will not upset ALJ's credibility determinations on appeal unless they are "patently wrong" because the ALJ "is in the best position to observe witnesses"

See Herron, 19 F.3d at 335 (stating that, court will not upset ALJ’s credibility determinations on appeal unless they are “patently wrong” because the ALJ “is in the best position to observe witnesses”); see also Luna, 22 F.3d at 690 (same); Edwards v. Sullivan, 985 F.2d 384, 338 (7th Cir.1993) (“[D]eterminations of credibility often involve intangible and unarticulable elements which impress the ALJ, that, unfortunately leave no trace that can be discerned in this or any other transcript.”) (quotations and citations omitted).

"[D]eterminations of credibility often involve intangible and unarticulable elements which impress the ALJ, that, unfortunately leave no trace that can be discerned in this or any other transcript."


Context: Trademark standards do not traverse international borders. "The concept of territoriality is basic to trademark law; trademark rights exist in each country solely according to that country's statutory scheme."

"[W]hen trade-mark rights within the United States are being litigated in an American court, the decisions of foreign courts concerning the respective trademark rights of the parties are irrelevant and inadmissible."

Fuji Photo, 754 F.2d at 599 (finding it “error to admit evidence of the parties’ foreign trademark practices”); see also E. Remy Martin & Co. v. Shaw-Ross Int’l Imports, Inc., 756 F.2d 1525, 1531 (11th Cir.1985) (district court erred in considering status of parties’ marks in France; “Our concern must be the business and goodwill attached to United States trademarks, not French trademark rights under French law.”) (quotation omitted); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir.1956) (“[W]hen trade-mark rights within the United States are being litigated in an American court, the decisions of foreign courts concerning the respective trademark rights of the parties are irrelevant and inadmissible.”).

finding it "error to admit evidence of the parties' foreign trademark practices"


Context: Although (accepting Petitioner's testimony as true) Punjabi police came to his house shortly before he left the country in 1999, they did not harm or threaten Petitioner in any way; he merely speculated vaguely about--but did not know--the reason for their single, uneventful visit. Additionally, the State Department Country Reports for 1996 through 2000 show that the situation of Sikhs, even in the Punjab province, had improved considerably.

See Molinctr-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002) (stating that such reports are relevant even in the face-of a presumption of future persecution); see also Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999 (9th Cir.2003) (finding a country report relevant to determining the reasonableness of internal relocation).


Context: Considering all of the evidence in the light most favorable to plaintiffs -- as we must -- we cannot say that a reasonable juror would have been "compelled" to conclude that plaintiffs made a net profit on their franchises.

stating that judgment as a matter of law is warranted "only if, viewing the evidence in the light most favorable to the non-moving party, a reasonable juror would be compelled to find in favor of the moving party"

See Tuccio v. Marconi 589 F.3d 538, 540 (2d Cir.2009) (stating that judgment as a matter of law is warranted “only if, viewing the evidence in the light most favorable to the non-moving party, a reasonable juror would be compelled to find in favor of the moving party”); see also Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 496 (2d Cir.1995) (“[W]hen reviewing the sufficiency of the damages evidence, we are guided by the principle that if a plaintiff has shown it more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty.”).

"[W]hen reviewing the sufficiency of the damages evidence, we are guided by the principle that if a plaintiff has shown it more likely than not that it has suffered damages, the amount of damages need only be proved with reasonable certainty."


Context: Several other courts have agreed that there are limits to the actions which the discretionary function exception was designed to shield. As the Second Circuit explained, the Supreme Court's "rejection [in Gaubert ] of any simplistic reliance on the dichotomy between planning-level actions and operation-level actions" did not abolish the requirement that policy considerations "remain the touchstone for determining whether the discretionary function exception applies."

Andrulonis v. United States, 952 F.2d 652, 654 (2nd Cir.1991) (held that the negligent omission of a warning of unsafe laboratory conditions unnecessarily placing the lives of workers at risk could not have been grounded in a policy scheme), cert. denied, 505 U.S. 1204, 112 S.Ct. 2992, 120 L.Ed.2d 869 (1992).

See also Myers v. United States, 17 F.3d 890 (6th Cir.1994) (held that the discretionary function did not shield the Mine Safety and Health Administration from an action by survivors of a mine explosion because the safety inspectors were not authorized to conduct their inspections on the basis of social, economic or political policy); Routh v. United States, 941 F.2d 853 (9th Cir.1991) (failure to require specific safety equipment was not subject to discretionary function exception).


failure to require specific safety equipment was not subject to discretionary function exception


Context: Finally, because the issue will recur on remand, we also address whether the trial court is entitled to award attorney fees and expenses for time specifically expended on the frivolous claims that occurred during the course of the original suit filed by Trotter that was voluntarily dismissed. We conclude that the trial court is authorized to do so on remand. Trotter refiled his suit approximately two months after it was voluntarily dismissed, raising the same allegations and seeking the same types of damages. Since Trotter properly renewed his suit, the deadline for Summerour to file a fees motion under OCGA SS 9-15-14 for time expended on the voluntarily dismissed suit did not begin to run until the "final disposition" of the renewed suit.

if suit is voluntarily dismissed, 45-day time limit set forth in OCGA SS 9-15-14 (e

Meister v. Brock, 268 Ga. App. 849, 849-850 (1) (602 SE2d 867) (2004) (if suit is voluntarily dismissed, 45-day time limit set forth in OCGA § 9-15-14 (e) does not begin to run until a second dismissal, or if the case is not renewed, until expiration of the original statute of limitation period or six months after the discontinuance or dismissal, whichever is later). As such, we conclude that as part of his request for sanctions timely filed after final disposition of the renewed suit, Summerour was entitled to seek fees and expenses incurred in defending against the frivolous claims during the course of the original suit.

upholding fees award in second suit under OCGA SS 9-15-14 that included fees and expenses incurred during original suit that was later voluntarily dismissed, even though original suit was filed before the effective date of the fees statute

See also Moore v. Harris, 201 Ga. App. 248, 250 (2) (410 SE2d 804) (1991) (upholding fees award in second suit under OCGA § 9-15-14 that included fees and expenses incurred during original suit that was later voluntarily dismissed, even though original suit was filed before the effective date of the fees statute).