Context: Matthys's estoppel argument is unpersuasive for a number of reasons. To begin, Matthys has not identified any case, post-Dormeyer, in which the Seventh Circuit has found equitable estoppel to be applicable in an FMLA interference case; and only a few District Courts in the Circuit have applied estoppel as to FMLA eligibility, an element which is not an issue here.

See also Peters v. Gilead Scis., Inc., 533 F.3d 594, 599-600 (7th Cir.2008) (Seventh Circuit reversed a lower court decision that had found equitable estoppel to be applicable to negate an FMLA eligibility defense, concluding that it was not necessary for the lower court to apply equitable estoppel wherein a state law promissory estoppel or contract claim might have otherwise been applicable).

See Niese, 2001 WL 290382 at *8 (noting that, although the Seventh Circuit had previously discussed potential applicability of estoppel to an FMLA claim, the Circuit had never actually applied it to any particular case).


Context: . In the district court, Defendants argued that there were eight ambiguities in the contract that rendered summary judgment inappropriate. On appeal, Defendants raise (and so we address) only three purported ambiguities.

noting the "long-standing rule in this circuit" that issues not raised in initial briefs on appeal are waived

See United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir.2004) (noting the "long-standing rule in this circuit” that issues not raised in initial briefs on appeal are waived); see also United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.2006) (stating that if a party fails to provide arguments on the merits of an issue and makes only passing reference to the issue in its briefs, the argument is waived), cert. denied, - U.S. -, 127 S.Ct. 2446, 167 L.Ed.2d 1132 (2007).


Context: Had there been no dissent, it is unlikely scholars would have launched into the esoteric debate over which powers of Congress can be delegated and which cannot. It is the dissent that interjected the idea that the majority's discussion of constitutional problems turns on a "metaphysical distinction" between taxes and fees.

"According to the dissent our opinion implies that the Secretary has unlimited authority to deny meritorious claims____ It hardly needs saying that our opinion carries no such implication."

See, e.g., Bowen v. Yuckert, — U.S. -, 107 S.Ct. 2287, 2294 n. 6, 96 L.Ed.2d 119 (1987) (“According to the dissent our opinion implies that the Secretary has unlimited authority to deny meritorious claims____ It hardly needs saying that our opinion carries no such implication.”).

New England Power, 415 U.S. at 352, 94 S.Ct. at 1155 (Marshall, J., concurring) (incorporated by reference as dissent to National Cable, 415 U.S. at 344, 94 S.Ct. at 1150). While a lower court is not free to depart from a holding of the Supreme Court and will pay close attention even to dicta therein, we know of no principle that requires us to accept the characterization of the majority’s holding put forth in a dissent. In some instances the majority may choose to add comments to answer specifically a mischaracterization of its ruling.


Context: Requiring a reasonable basis for higher nonresident rates accords with the overwhelming majority of cases from other jurisdictions.

"[A]l-though not obligated to serve non-residents in the absence of a contractual relationship, a municipality is prohibited from discriminating unreasonably in rates or manner of service when it elects to serve non-residents."

See Jung v. City of Phoenix, 160 Ariz. 38, 770 P.2d 342 (1989); Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287 (1957) (interpreting statute requiring reasonable rates); Hansen v. City of San Buenaventura, 42 Cal.3d 1172, 233 Cal.Rptr. 22, 729 P.2d 186 (1986); Barr v. First Taxing Dist., 151 Conn. 53, 192 A.2d 872 (1963); Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976); Cooper v. Tampa Elec. Co., 154 Fla. 410, 17 So.2d 785 (1944); Inland Real Estate Corp. v. Village of Palatine, 146 Ill.App.3d 92, 99 Ill.Dec. 906, 496 N.E.2d 998 (1986); Usher v. City of Pittsburg, 196 Kan. 86, 410 P.2d 419 (1966); Louisville & Jefferson County Metro. Sewer Dist. v. Joseph E. Seagram & Sons, Inc., 307 Ky. 413, 211 S.W.2d 122 (1948); City of Hagerstown v. Public Serv. Comm’n, 217 Md. 101, 141 A.2d 699 (1958) (based on statute requiring PSC to fix reasonable rate for service to nonresidents); County of Oakland v. City of Detroit, 81 Mich.App. 308, 265 N.W.2d 130 (1978); Borough of Ambridge v. Pennsylvania Pub. Util. Comm’n, 137 Pa.Super. 50, 8 A.2d 429 (1939) (interpreting statute requiring reasonable rates); Town of Terrell Hills v. City of San Antonio, 318 S.W.2d 85 (Tex.Civ.App.1958); Handy v. City of Rutland, 156 Vt. 397, 598 A.2d 114 (1990); Faxe v. City of Grandview, 48 Wash.2d 342, 294 P.2d 402 (1956) (holding that state constitution required reasonable nonresident rates); cf. Mayor & Council of Dover v. Delmarva Enterprises, Inc., 301 A.2d 276 (Del.1973); Schroeder v. City of Grayville, 166 Ill.App.3d 814, 117 Ill.Dec. 681, 683, 520 N.E.2d 1032, 1034 (1988) (“[A]l-though not obligated to serve non-residents in the absence of a contractual relationship, a municipality is prohibited from discriminating unreasonably in rates or manner of service when it elects to serve non-residents.”); Mayor & City Council of Cumberland v. Powles, 255 Md. 574, 258 A.2d 410 (1969).


Context: * Indeed, the Fourth Circuit has declined to adopt an analysis, as some circuit courts have, which focuses on whether the government must look to the content of the speaker's message.

"[T]he mere assertion of a content-neutral purpose [is not] enough to save a law which, on its face, discriminates based on content."

See Clatterbuck, 708 F.3d at 556; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“[T]he mere assertion of a content-neutral purpose [is not] enough to save a law which, on its face, discriminates based on content.”). While Defendants articulate the correct standard which emphasizes the purpose behind the regulation’s adoption, (ECF No. 17-1 at 6-7), Defendants have not presented any evidence of the legislature’s intent in adopting § 16-17-446’s ban on political robocalls.

"In our view ... such an approach imputes a censorial purpose to every content distinction, and thereby applies the highest judicial scrutiny to laws that do not always imperil the preeminent First Amendment values that such scrutiny serves to safeguard."

See Brown v. Town of Cary, 706 F.3d at 302 (“In our view ... such an approach imputes a censorial purpose to every content distinction, and thereby applies the highest judicial scrutiny to laws that do not always imperil the preeminent First Amendment values that such scrutiny serves to safeguard.”). However, the court understands the Fourth Circuit’s guidance to indicate that a law, which distinguishes on the basis of content, will be classified as content-based unless the state can show that the law was adopted without a censorial purpose.


Context: Supporting our conclusion is the fact that the only other circuits to have considered vagueness challenges to SS 2320 have similarly rejected such arguments.

determining that the phrase "at the time of the manufacture or production," as used in the authorized-use exception to SS 2320, is not unconstitutionally vague

See United States v. McEvoy, 820 F.2d 1170, 1172-73 (11th Cir.1987) (holding that § 2320, as a whole, is not unconstitutionally vague); see also United States v. Bohai Trading Co., 45 F.3d 577, 580 (1st Cir.1995) (determining that the phrase “at the time of the manufacture or production,” as used in the authorized-use exception to § 2320, is not unconstitutionally vague); United States v. Gantos, 817 F.2d 41, 44 (8th Cir.1987) (‘We have considered Gantos’ argumentf] that § 2320 is unconstitutional ... and find [it] to be without merit.”).

holding that SS 2320, as a whole, is not unconstitutionally vague


'We have considered Gantos' argumentf] that SS 2320 is unconstitutional ... and find [it] to be without merit."


Context: Here, as in Kincaid, the plaintiff's proof was insufficient in law and fact to overcome the ballistic reports, the witness's statements, and the police testimony.

See Koger v. Mutual of Omaha Ins. Co., 152 W.Va. 274, 163 S.E.2d 672 (1968) (beneficiary under policy covering death resulting from accidental bodily injury could not recover under evidence that immediately previous to shooting, insured had suggested playing Russian Roulette and had taken certain steps conforming to that design and died as a result of gunshot wound in the head); see also Thompson v. Prudential Ins. Co. of America, 84 Ga.App. 214, 66 S.E.2d 119 (1951) (Russian Roulette death no less intentional than had gun been fully loaded and cannot be result of accident, but rather it should be presumed that the participant intended that he should be killed or injured should fate stop cartridge in spinning cylinder in the firing position).


Context: Whether "regarded as" plaintiffs are entitled to reasonable accommodation under the ADA is an issue of first impression for this circuit. Some circuits have considered the issue and concluded that "regarded as" plaintiffs are not entitled to reasonable accommodations under the ADA.

allowing "regarded as" plaintiff to proceed, concluding that whether plaintiff could have performed his job with reasonable accommodation was an issue for the jury

But see Katz v. City Metal Co., Inc., 87 F.3d 26, 33 (1st Cir.1996) (allowing “regarded as” plaintiff to proceed, concluding that whether plaintiff could have performed his job with reasonable accommodation was an issue for the jury) ; Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151, 163 (E.D.N.Y.2002) (recognizing that the Second Circuit Court of Appeals has yet to decide the issue but concluding that employers have a duty to accommodate in “regarded as” cases).

holding that "regarded as" disabled plaintiffs are not entitled to reasonable accommodation

See Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir.1999) (holding that “regarded as” disabled plaintiffs are not entitled to reasonable accommodation); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir.1999) (same); Newberry v. E. Texas State Univ., 161 F.3d 276, 280 (5th Cir.1998) (same); Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 n. 12 (3d Cir.1998) (en banc) (declining to rule on this issue but noting that the argument that employers are not required to provide reasonable accommodation for perceived disabilities has “considerable force”).


recognizing that the Second Circuit Court of Appeals has yet to decide the issue but concluding that employers have a duty to accommodate in "regarded as" cases


declining to rule on this issue but noting that the argument that employers are not required to provide reasonable accommodation for perceived disabilities has "considerable force"


Context: If the court finds the contract language is ambiguous, it must weigh extrinsic evidence to determine the parties' intent, and, therefore, the matter is inappropriate to resolve on summary judgment.

When a contract is "ambiguous, necessitating a review of extrinsic evidence to determine the parties' intent," summary judgment is not appropriate "if material facts are genuinely in dispute."

See Beta Sys., Inc. v. United States, 838 F.2d at 1183 (“To the extent that the contract terms are ambiguous, requiring weighing of external evidence, the matter is not amenable to summary resolution.”); see also Mata v. United States, 114 Fed.Cl. at 746; Marquardt Co. v. United States, 101 Fed.Cl. at 268; Tecom, Inc. v. United States, 66 Fed.Cl. 736, 743 (2005) (When a contract is “ambiguous, necessitating a review of extrinsic evidence to determine the parties’ intent,” summary judgment is not appropriate “if material facts are genuinely in dispute.”).

"To the extent that the contract terms are ambiguous, requiring weighing of external evidence, the matter is not amenable to summary resolution."


Context: Local 90 claims that the use of American flags at the construction sites was a "grass roots effort" that was unauthorized by the Union. Plaintiffs contend the use of the American flags was at least ratified by the Union, as Local 90 did not take any steps to correct the illegal actions of its members while the actions became the subject of an unfair labor practice filed with the NLRB.

See BE & K Constr. Co. v. N.L.R.B., 23 F.3d 1459, 1466-67 (8th Cir.1994) (defining ratification as the affir-mance by a person of a prior act that did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him) (citations omitted); see also Nat’l Cash Register Co. v. N.L.R.B., 466 F.2d 945 (6th Cir.1972) (finding the union liable for the unlawful picketing of its members, and deeming it significant that the union made no effort to disavow either the union hall statements of its agents or the picket line incidents).


Context: The district court properly dismissed the action because Torres had access to court-appointed counsel.

See United States v. Wilson, 690 F.2d 1267, 1271-72 (9th Cir.1982) (the offer of court-appointed counsel satisfies the Fifth Amendment obligation to provide meaningful access to the courts, even where detainee is denied pretrial access to a law library); see also Lewis v. Casey, 518 U.S. 343, 350-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (prisoners have no per se right to a law library).


Context: Finding that arbitrability is facially established, the Rule 12(b)(6) standard applies.

stating that even if a "[cjomplaint does not explicitly refer to or cite [a document] ... the critical [issue] is whether the claims in the complaint are 'based' on an extrinsic document and not merely whether the extrinsic document was explicitly cited"

See Guidotti, 716 F.3d at 776 (stating, under the Rule 12(b)(6) standard, “[w]e consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents”) (citation omitted); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (stating that even if a “[cjomplaint does not explicitly refer to or cite [a document] ... the critical [issue] is whether the claims in the complaint are ‘based’ on an extrinsic document and not merely whether the extrinsic document was explicitly cited”); Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.

stating, under the Rule 12(b)(6) standard, "[w]e consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents"


Context: It can scarcely be argued that the Government builds streets, which are ordinarily traditional public fora, for the primary purpose of fostering First Amendment activities. At least, the Supreme Court does not think it can be.

"Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated,."

See Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939) (“Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated,.”) (emphasis added); see also Wolin, 392 F.2d at 89 (acknowledging that Port Authority bus terminal is “designed for precisely the purpose of transit,” but nevertheless finding it to be a public forum).

acknowledging that Port Authority bus terminal is "designed for precisely the purpose of transit," but nevertheless finding it to be a public forum


Context: Even if we had some hesitation about the correctness of our holding in this case (which we do not), we would be inclined to opt for a liberal approach to the statute of limitations because of the remedial nature of the wrongful death statute.

"We have repeatedly recognized that because the wrongful death act alleviates the harshness of the common law, it is to be given a liberal construction to achieve its beneficent purposes."

See, e.g., Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681, 686 (2001) (“We have repeatedly recognized that because the wrongful death act alleviates the harshness of the common law, it is to be given a liberal construction to achieve its beneficent purposes.”); see also Hanebuth, 694 P.2d at 147 (observing that “[it] is profoundly unfair to deprive a litigant of his right to bring a lawsuit before he has had any reasonable opportunity to do so”).

observing that "[it] is profoundly unfair to deprive a litigant of his right to bring a lawsuit before he has had any reasonable opportunity to do so"


Context: From the record, we conclude that the timing of the stop in this context does not raise suspicion. Uribe's vehicle was not, for example, exiting a scene following gunfire via the only available street, nor was Uribe acting suspiciously in an area known for criminal activity.

finding reasonable suspicion based on an early-morning detention in an area known for criminal activity, information from an armed private security officer and a police dispatcher that the defendants were suspected of having a weapon in their vehicle, and a report from the security guard about the defendants' suspicious behavior prior to the detention

See United States v. Brewer, 561 F.3d 676, 678 (7th Cir.2009) (finding the timing of a stop suspicious because it “reinforced the suspicion [that the vehicle was connected to reported gunfire] since few people are on the road at 2:30 a.m. and ... there was no other traffic” leaving the apartment complex immediately after the gunfire); see also United States v. McHugh, 639 F.3d 1250, 1257-58 (10th Cir.2011) (finding reasonable suspicion based on an early-morning detention in an area known for criminal activity, information from an armed private security officer and a police dispatcher that the defendants were suspected of having a weapon in their vehicle, and a report from the security guard about the defendants’ suspicious behavior prior to the detention); United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (finding reasonable suspicion when officers observed the defendant appearing to engage in a hand-to-hand drug transaction in a known drug area at 1:00 a.m.).

finding the timing of a stop suspicious because it "reinforced the suspicion [that the vehicle was connected to reported gunfire] since few people are on the road at 2:30 a.m. and ... there was no other traffic" leaving the apartment complex immediately after the gunfire


finding reasonable suspicion when officers observed the defendant appearing to engage in a hand-to-hand drug transaction in a known drug area at 1:00 a.m.


Context: Both the federal and Commonwealth cases involve only Commonwealth law, but this factor does not necessarily counsel in favor of dismissal. Although the presence of a federal law issue "must always be a major consideration weighing against surrender [of jurisdiction]," Moses H. See also Arkwright-Boston Mfrs.

"garden variety" federal diversity case applying well-settled state law principles

Cf. Giardina v. Fontana, 733 F.2d 1047, 1051 (2d Cir.1984) (“garden variety” federal diversity case applying well-settled state law principles).

case raises "serious questions of state law, which include whether a party may recover in tort for a purely economic loss, absent physical injury ... and the construction of state and municipal building, safety, and fire codes"

Mutual v. City of New York, 762 F.2d 205, 211 (2d Cir.1985) (case raises “serious questions of state law, which include whether a party may recover in tort for a purely economic loss, absent physical injury ... and the construction of state and municipal building, safety, and fire codes”).


Context: . Certain statements contained in Plaintiffs' 56.1 Statement also lack citations to any evidence in violation of Local Rule 56.1(d) and Federal Rule of Civil Procedure 56(c).

finding statements "lackfing] citations to admissible evidence" to violate these rules

See Baity v. Kralik, 51 F.Supp.3d 414, 417-19 (S.D.N.Y.2014) (finding statements "lackfing] citations to admissible evidence” to violate these rules); id. at 421 (disregarding facts "not supported by citations to admissible evidence in the record”); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir.2001) (explaining that where there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party’s Rule 56.1 statement, those assertions may be disregarded).

explaining that where there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party's Rule 56.1 statement, those assertions may be disregarded


Context: . The United States Court of Appeals for the Ninth Circuit has recognized that "language dif-Acuities may impair the ability of a person in custody to waive [their Miranda rights] in a free and aware manner."

holding that accused's waiver of Miranda rights was unknowing and unintelligent where accused spoke broken English, had a deficient understanding of the English language and knew nothing about the American criminal justice system

See also U.S. v. Short, 790 F.2d 464, 469 (6th Cir.1986) (holding that accused’s waiver of Miranda rights was unknowing and unintelligent where accused spoke broken English, had a deficient understanding of the English language and knew nothing about the American criminal justice system).

But see U.S. v. Bautista-Avila, 6 F.3d 1360, 1365-66 (9th Cir.1993) (concluding that an accused who received Miranda warnings in Spanish and who then stated that he understood those rights knowingly and intelligently waived them).


Context: The presentence report reflects that the instant offenses are the first for which Brown was charged as an adult. See App. at 64. And although Brown has a lengthy history of juvenile adjudications, the only violent offense appears to be a 2009 battery incident.

recognizing that the significance of a criminal history in sentencing "varies based on the gravity, nature and number of prior offenses as they relate to the current offense"

See, e.g., Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999) (recognizing that the significance of a criminal history in sentencing “varies based on the gravity, nature and number of prior offenses as they relate to the current offense”).

See also Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004) (concluding that history of four alcohol-related misdemeanors did not support aggravation of sentence for Class B felony child molesting even though alcohol was involved in the instant offense).


Cf. Vasquez v. State, 762 N.E.2d 92, 97 (Ind.2001) (affirming enhanced sentence for murder where criminal history reflected an escalation of violence).


Context: Primarily, landlord relies upon the fact that Articles 12 and 21 of the lease specifically establish tenant's liability for its negligence or that of its agents or employees. Although this is the general undertaking of the lease, the parties established different rules for fire damage. As a matter of contract construction, the specific controls the general.

"a special provision will be held to override a general provision. . . where the two cannot stand together"

Parkhurst v. Gibson, 573 A.2d 454, 458 (N.H. 1990) (“generally accepted interpretive rule is that a general, preliminary clause should not ordinarily take precedence over specific provisions of a contract”) (citing 4 S. Williston, A Treatise on the Law of Contracts § 619 (3d ed. 1961)); cf. Jackson v. Rogers, 120 Vt. 138, 141, 134 A.2d 620, 622 (1957) (“a special provision will be held to override a general provision. . . where the two cannot stand together”).

"generally accepted interpretive rule is that a general, preliminary clause should not ordinarily take precedence over specific provisions of a contract"


Context: . We note that our analysis in this case accords with the reasoning of the majority of circuits that have considered this precise issue on collateral attack.

finding that counsel's failure to raise methamphetamine-type issue at sentencing satisfied prejudice prong of Strickland, and ordering the vacation of sentence if the government, on remand to the district court, could not establish that the substance was in fact D-methamphetamine

See United States v. McMullen, 98 F.3d 1155, 1157-58 (9th Cir.1996) (holding that petitioner, who did not raise the methamphetamine-type issue at sentencing or on direct appeal, was barred from raising that issue for the first time in § 2255 motion, and that petitioner did not satisfy either the performance prong or prejudice prong of ineffective assistance of counsel standard), cert. denied, - U.S. -, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997); United States v. Apfel, 97 F.3d 1074, 1077 (8th Cir.1996) (finding that petitioner “ha[d] not met his heavy burden of showing a reasonable probability that his sentence would have been different if his counsel had required the government to prove that the offense involved d-methamphetamine’'); United States v. Acklen, 97 F.3d 750, 751 (5th Cir.1996) (holding that defendant failed to establish prejudice from counsel's failure to argue at sentencing that drug involved was L-methamphetamine and not D-methamphetamine), cert. denied, - U.S. -, 117 S.Ct. 1017, 136 L.Ed.2d 893 (1997); but see United States v. Glover, 97 F.3d 1345, 1350 (10th Cir.1996) (finding that counsel’s failure to raise methamphetamine-type issue at sentencing satisfied prejudice prong of Strickland, and ordering the vacation of sentence if the government, on remand to the district court, could not establish that the substance was in fact D-methamphetamine).

holding that petitioner, who did not raise the methamphetamine-type issue at sentencing or on direct appeal, was barred from raising that issue for the first time in SS 2255 motion, and that petitioner did not satisfy either the performance prong or prejudice prong of ineffective assistance of counsel standard


finding that petitioner "ha[d] not met his heavy burden of showing a reasonable probability that his sentence would have been different if his counsel had required the government to prove that the offense involved d-methamphetamine''


holding that defendant failed to establish prejudice from counsel's failure to argue at sentencing that drug involved was L-methamphetamine and not D-methamphetamine


Context: Certain courts have used this dichotomy in stressing that, because Congress failed to address the retroactive impact of the Act's amendments to 28 U.S.C. SSSS 2254 and 2255, no legislative intent can be discerned and the courts should proceed to the second stage of Landgraf analysis wherein retroactivity is predicated upon considerations of basic fairness and settled legal rights.

holding that the first stage of Landgraf analysis is conclusive, and that only the Act's habeas amendments for death penalty cases may be applied retrospectively

Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996); see also Hunter v. United States, 101 F.3d 1565, 1570 (11th Cir.1996) (en banc) ("The fairest inference from the variety of applicability provisions throughout the [Act] is that Congress was quite capable of and willing to express its intent about prospective or retrospective application when it had such an intent.”); but see Jeffries v. Wood, 114 F.3d 1484, 1494-97 (9th Cir.1997) (en banc) (holding that the first stage of Landgraf analysis is conclusive, and that only the Act’s habeas amendments for death penalty cases may be applied retrospectively).

"The fairest inference from the variety of applicability provisions throughout the [Act] is that Congress was quite capable of and willing to express its intent about prospective or retrospective application when it had such an intent."


Context: Lastly, this Court is not persuaded by Plaintiffs assertion that this testimony must be excluded under Rule 403 because a jury might improperly assume that Skinner is an expert and that her conclusion that the questioned writing belongs to Plaintiff is correct. (R. 26, Pl.'s Reply Br. at 6.) A proper limiting instruction to the jury, upon the request of counsel, will sufficiently limit any such potential prejudice.

a jury is presumed to have followed the district court's instructions

Cf. United States v. Kreiser, 15 F.3d 635, 641 (7th Cir.1994) (a jury is presumed to have followed the district court’s instructions).

finding that the district court's limiting instruction dispelled any potential prejudice against the plaintiff

See Berry v. Deloney, 28 F.3d 604, 608 (7th Cir.1994) (finding that the district court’s limiting instruction dispelled any potential prejudice against the plaintiff).


Context: See also H.R.Rep. No. 102-367 at 4 (same). Consequently, the ATS "should remain intact."

"It is well settled ... that repeals by implication are not favored."

See also Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) ("It is well settled ... that repeals by implication are not favored.”).

finding that the plaintiff could bring a claim for extrajudicial killing under both the TVPA and ATCA because "the enactment of the TVPA did not diminish the scope of the ATCA in any way"

See Saravia, 348 F.Supp.2d at 1145 (finding that the plaintiff could bring a claim for extrajudicial killing under both the TVPA and ATCA because "the enactment of the TVPA did not diminish the scope of the ATCA in any way”); Wiwa, 2002 WL 319887 at *4 (finding that "the TVPA did not preempt torture and summary execution claims under the ATCA”).


finding that "the TVPA did not preempt torture and summary execution claims under the ATCA"


Context: Moreover, Berry's use of the scale was a blatant attempt to quantify reasonable doubt, a practice which has met with strong disapproval in federal courts.

United States v. Anglada, 524 F.2d 296, 300 (2d Cir.1975) (while not reversible error, “characterization of the standard as quantitative rather than qualitative ... might better have been omitted”); United States v. Clay, 476 F.2d 1211, 1213-15 (9th Cir.1973) (disapproving of any reference to balancing test in reasonable doubt instruction).

jury instruction encouraging jury to "balance" the evidence and acquit if the evidence was "as equally consistent with innocence" as with guilt, improperly suggested a preponderance of the evidence standard

Cf. United States v. Link, 202 F.2d 592, 594 (3d Cir.1953) (jury instruction encouraging jury to “balance” the evidence and acquit if the evidence was “as equally consistent with innocence” as with guilt, improperly suggested a preponderance of the evidence standard).


Context: Moreover, the notice of claim requirement under New York County Law SS 52(1) does not apply to claims brought against the defendants as there is a clear distinction between claims brought against municipal defendants and claims brought against county defendants.

"employment discrimination claims [brought] against municipal as opposed to county defendants are exempt from the notice of claim requirement"

See Keating v. Gaffney, 182 F.Supp.2d 278, 290-291 (E.D.N.Y.2001) (“employment discrimination claims [brought] against municipal as opposed to county defendants are exempt from the notice of claim requirement”); see also Pustilnik v. Hynes, No. 99 Civ. 4087, 2000 WL 914629, at * 7 (E.D.N.Y. June 27, 2000) (describing distinction between claims brought against municipal defendants and claims against county defendants).


Context: The Commonwealth now argues that we must reverse the District Court because in 2003 Lincoln waived the issue he intends to raise in his reinstated appeal. The Commonwealth's shifting positions cause us to consider whether to impose an equitable bar (called judicial estoppel) on its new argument.

court of appeals abused its discretion by ignoring state's waiver of statute of limitations defense under Anti-terrorism and Effective Death Penalty Act of 1996

See Nara v. Frank, 488 F.3d 187, 194 (3d Cir.2007) (applying forfeiture rule in habeas case due in part to the Commonwealth’s manner of handling the matter); Whaley v. Belleque, 520 F.3d 997, 1002 (9th Cir.2008) (judicially es-topping Oregon from taking inconsistent positions in state and federal courts with respect to habeas petitioner’s procedural default); cf. Wood v. Milyard, — U.S. -, 132 S.Ct. 1826, 1834-36, 182 L.Ed.2d 733 (2012) (court of appeals abused its discretion by ignoring state’s waiver of statute of limitations defense under Anti-terrorism ánd Effective Death Penalty Act of 1996).

applying forfeiture rule in habeas case due in part to the Commonwealth's manner of handling the matter


judicially es-topping Oregon from taking inconsistent positions in state and federal courts with respect to habeas petitioner's procedural default


Context: We find that these arguments lack merit. The Supreme Court has held that officers may "detain an occupant of the place to be searched" and may use "reasonable force to effectuate the detention."

Cf. Williams v. Kaufman County, 352 F.3d 994, 1007 (5th Cir.2003) (holding that detaining club patrons in handcuffs for three hours after subjecting them to strip searches and warrant checks was unlawful).

Muehler v. Mena, 544 U.S. 93, 98-99, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (holding that a two-hour detention in handcuffs of a person present at an address being searched for weapons related to gang activity was reasonable).


Context: Even though Mahabir included the Superior Court's order denying her motion for reconsideration in the notice of appeal, because she fails to make any arguments concerning this motion in her appellate brief, and we ultimately resolve this appeal based on a de novo review of the underlying order that was the subject of the motion for reconsideration, we do not address the Superior Court's denial of that motion.

"We do not address the order denying [the] motion for reconsideration, as our decision as to the first order renders that issue moot."

In re L.O.F., 62 V.I. 655, 659 n.5 (V.I. 2015); Judi’s of St. Croix Car Rental v. Weston, 49 V.I. 396, 407-08 (V.I. 2008) (declining to address arguments regarding the denial of a motion to reconsider after reversing the underlying order); see also Air Products & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 548 (6th Cir. 2007) (“We do not address the order denying [the] motion for reconsideration, as our decision as to the first order renders that issue moot.”).


Context: Numerous criminal provisions, interpreted to authorize the imposition of penalties on individuals who create "disturbances" or engage in similar activity, have been overturned by the courts as unconstitutionally vague.

"disturbance of the peace" violation encompassing "any act . . . which by causing consternation and alarm, disturbs the peace and quiet of the community"

(E.g., Ashton v. Kentucky (1966) 384 U.S. 195, 198 [16 L.Ed.2d 469, 471, 86 S.Ct. 1407] (common law crime of criminal libel, defined by trial court as including “any writing calculated to create disturbances of the peace”); Cox v. Louisiana, supra, 379 U.S. 536, 551-552 [13 L.Ed.2d 471, 482-483, 85 S.Ct. 453] (“breach of peace” offense defined as “to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet”); Edwards v. South Carolina, supra, 372 U.S. 229, 234-236 [9 L.Ed.2d 697, 701-702, 83 S.Ct. 680] (“breach of peace” defined as “a violation of public order, a disturbance of the public tranquility . . .”); Cantwell v. Connecticut (1940) 310 U.S. 296, 308 [84 L.Ed. 1213, 1220, 60 S.Ct. 900, 128 A.L.R. 1352] (“breach of the peace” statute covering “acts and words”); Landry v. Daley (N.D. Ill. 1968) 280 F.Supp. 968, 969 (“disorderly conduct” ordinance proscribing, inter alia, “mak[ing], aid[ing], countenancing], or assisting] in making any . . . disturbance”); cf. People v. Huss (1966) 241 Cal.App.2d 361, 365 [51 Cal.Rptr. 56] (“disturbance of the peace” violation encompassing “any act . . . which by causing consternation and alarm, disturbs the peace and quiet of the community”).)

"breach of peace" offense defined as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet"


"breach of peace" defined as "a violation of public order, a disturbance of the public tranquility . . ."


"disorderly conduct" ordinance proscribing, inter alia, "mak[ing], aid[ing], countenancing], or assisting] in making any . . . disturbance"


Context: Moreover, the Congress chose to allow the Secretary to regulate transportation hazards in underground coal mines on a mine-by-mine basis; it did not require that such regulation be subject to formal preenforcement review or notice-and-comment. Compare 30 U.S.C. SS 811(a), (d) (providing for notice-and-comment rule-making and pre-enforcement judicial review of mandatory health or safety standards issued pursuant to Title I) with id. SS 874(b) (authorizing Secretary to impose additional "safeguards" in her discretion). As Wolf Run did in this case, an operator can seek meaningful review of a safeguard notice issued pursuant to section 314(b) in the citation proceeding.

Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (1985) (review of operator’s challenge to ventilation plan “may be obtained by the operator’s refusal to adopt the disputed provision, thus triggering litigation before the Commission” pursuant to section 109, 30 U.S.C. § 820); see also Zeigler Coal, 536 F.2d at 406-07 (operator may obtain review of proposed ventilation plan in citation proceeding after failing to adopt proposed plan).

review of operator's challenge to ventilation plan "may be obtained by the operator's refusal to adopt the disputed provision, thus triggering litigation before the Commission" pursuant to section 109, 30 U.S.C. SS 820


Context: At common law, where the charge was not for a completed offense, but for an attempt to commit it, only intention would suffice and mere recklessness was not enough. See Robinson, Element Analysis, 35 Stan.L.Rev. at 749-50. The relevant case law from other jurisdictions makes it clear that recklessness and negligence are incompatible with desire or intention. It is impossible to conceive of an attempt where a crime by definition may be committed recklessly or negligently but not intentionally.

"there is no logical or legal inconsistency involved in the recognition of attempted reckless manslaughter as a crime"

But see People v. Thomas, 729 P.2d 972 (Colo.1986) (en banc) (“there is no logical or legal inconsistency involved in the recognition of attempted reckless manslaughter as a crime”).

See, e.g., Stennet v. State, 564 So.2d 95 (Ala.Crim.App.1990) (no such offense as attempted manslaughter because recklessness required for manslaughter); People v. Hernandez, 44 Colo.App. 161, 614 P.2d 900, 901 (1980) (offense of “attempted criminally negligent homicide” does not exist); State v. Hemmer, 3 Neb.App. 769, 531 N.W.2d 559, 564 (1995) (no such crime as attempted reckless assault); State v. Smith, 21 Or.App. 270, 534 P.2d 1180, 1183 (1975) (no such crime as attempted reckless murder); State v. Vigil, 842 P.2d 843, 848 (Utah 1992) (crime of attempted depraved indifferent homicide does not exist); see also Hull v. State, 553 S.W.2d 90, 94 (Tenn.Crim.App.1977) (no such crime as attempted involuntary manslaughter; “no such crime as would require proof that one intended a result that accidentally occurred”).


Context: The Government's efforts to identify a sufficient connection are unpersuasive. And indeed our Court (albeit in non-prece-dential opinions), disconnects adverse credibility from China's family planning policy.

reversing Board's denial of a motion to reopen, based on adverse credibility finding, in light of a new translation of a sterilization certificate and an affidavit by Dr. Aird

See, e.g., Cai v. Ashcroft, 63 Fed. Appx. 625 (3d Cir.2003) (remanding to the Board for reconsideration of a denial of asylum based on China’s family planning policy where the petitioner, whom the IJ found lacked credibility, had two children at the time of filing and four at the time of her motion for reconsideration); cf. Lin v. INS, 78 Fed.Appx. 784 (2d Cir.2003) (reversing Board’s denial of a motion to reopen, based on adverse credibility finding, in light of a new translation of a sterilization certificate and an affidavit by Dr. Aird).

remanding to the Board for reconsideration of a denial of asylum based on China's family planning policy where the petitioner, whom the IJ found lacked credibility, had two children at the time of filing and four at the time of her motion for reconsideration


Context: As an arm of the State, CVCC is immune from claims brought by Pittman pursuant to 42 U.S.C. SS 1981 and 42 U.S.C. SS 1983. CVCC's immunity stems from the State's Eleventh Amendment immunity. A plaintiff is precluded from directly suing a State in federal court on these claims.

holding that SS 1983 does not override a State's Eleventh Amendment immunity

See Quern v. Jordan, 440 U.S. 332, 350, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)(holding that § 1983 does not override a State’s Eleventh Amendment immunity); see also Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999)(recognizing that claims against a State under § 1981 are barred by the Eleventh Amendment).

recognizing that claims against a State under SS 1981 are barred by the Eleventh Amendment


Context: We decline to decide this case on the mere possibility that the Board can and will assume that authority and then will exercise it in defendant's case.

challenge to expired agency rule dismissed as moot even though agency could readopt the rule at " 'any time it chooses' "

See Hay v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (challenge to expired agency rule dismissed as moot even though agency could readopt the rule at “ ‘any time it chooses’ ”).

See also Brumnett v. PSRB, supra, 315 Or at 406-07 (challenge to PSRB order keeping petitioner confined in Oregon State Hospital moot after petitioner released from supervision even though state might later attempt to assess costs for his care during the time petitioner claimed he was wrongfully hospitalized); State ex rel Van Hoomissen v. Burke, 236 Or 366, 368, 388 P2d 467 (1964) (mandamus proceeding that prosecutor brought to force judge to impose five-year sentence on defendant rather than two-year probation dismissed as moot after defendant violated terms of probation and judge imposed five-year sentence).


mandamus proceeding that prosecutor brought to force judge to impose five-year sentence on defendant rather than two-year probation dismissed as moot after defendant violated terms of probation and judge imposed five-year sentence


Context: "[T]he Good Samaritan rule does not impose liability for merely negligent failure to confer a benefit, but only for negligently making matters worse."

Rodrigue v. United States, 968 F.2d 1430, 1434 (1st Cir.1992) (rejecting a claim that the Air Force violated the Good Samaritan Rule when it negligently waited four hours to send a helicopter to rescue a drowning swimmer because there was no evidence that the negligence worsened his position, but suggesting that such a claim would fly if there was evidence that the Air Force had assured other would-be rescuers of an imminent rescue); see DeVane, 306 F.2d at 186 (holding that the worsening test was met where a fateful error of a Coast Guard message center lulled a would-be rescuer into believing a fishing vessel was safe).


Context: . Although the government's brief does not acknowledge a difference between the terms "intent" and "motive," its arguments are inapplicable to the motive exception under Rule 404(b). We have long held that evidence of motive requires more than a general propensity to commit a type of crime but rather a motive to commit the crime charged against the particular victim.

See United States v. Brown, 880 F.2d 1012, 1015 (9th Cir.1989) (finding evidence of "thrill from creating violence” to be inadmissible as motive evidence for murder charge); cf. United States v. Bradshaw, 690 F.2d 704, 708-09 (9th Cir.1982) (finding evidence of prior sexual acts between victim and defendant to be admissible as motive evidence for kidnapping).

finding evidence of "thrill from creating violence" to be inadmissible as motive evidence for murder charge


Context: To make out a prima facie case of racial discrimination under the indirect method of proof, plaintiffs must (among other things) identify an adverse employment action.

noting that courts have talked about materiality in different ways but noting that to qualify as a change to "terms, conditions, or privileges" of employment within Title VII's meaning requires an impact on plaintiffs job "in a real and demonstrable way"

Griffin v. Potter, 356 F.3d 824, 829 (7th Cir.2004); see also Davis v. Town of Lake Park, 245 F.3d 1232, 1238-39 (11th Cir.2001) (noting that courts have talked about materiality in different ways but noting that to qualify as a change to “terms, conditions, or privileges” of employment within Title VII’s meaning requires an impact on plaintiffs job “in a real and demonstrable way”).

burden-shifting analysis generally works the same under Title VII and SS 1981

McGowan v. Deere & Co., 581 F.3d 575, 578 (7th Cir.2009) (burden-shifting analysis generally works the same under Title VII and § 1981). To qualify as adverse means materially adverse, “not merely an inconvenience or a change in job responsibilities.”


Context: Because Vasquez-Rivera's failure to demonstrate continuous physical presence is dispositive, we need not reach his contentions regarding the IJ's hardship determination.

"[cjancellation of removal ... is based on statutory predicates that must first be met"

See 8 U.S.C. § 1229b(b)(l); Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir.2003) (“[cjancellation of removal ... is based on statutory predicates that must first be met”); cf. Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.2002) (holding that where requirements for relief “are conjunctive, failure to meet any one of them is fatal”). We lack jurisdiction to review the agency’s discretionary determination that Vasquez-Rivera did not merit voluntary departure.

holding that where requirements for relief "are conjunctive, failure to meet any one of them is fatal"


Context: The Ninth Circuit has nevertheless recognized that prisoners do retain limited rights to bodily privacy under the Fourth Amendment.

"The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration."

Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988) (“We recognize that incarcerated prisoners retain a limited right to bodily privacy.”); see also Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.1997) (“Notwithstanding the language in Hudson, our circuit has held that the Fourth Amendment right of people to be secure against unreasonable searches and seizures extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context,”) (internal quotations omitted) (citing Michenfelder)-, Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir.1993) (en banc) (“The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration.”) (citing Michenfelder).

"We recognize that incarcerated prisoners retain a limited right to bodily privacy."


Context: Accordingly, a departure under Section 4A1.3 that is premised upon the similarity between Hewitt's past criminal conduct and his current offense, if invoked in tandem with the criminal livelihood enhancement of Section 4B1.3, would doubly punish defendant for the common nature of his criminal acts, and do so in furtherance of nearly identical sentencing principles. Such sentencing practices involving "double counting" are inappropriate and, in all likelihood, are unlawful.

noting hypothetical instance of impermissible "double counting" to add points to criminal history calculus

See U.S. v. Cervantes, 878 F.2d 50, 55 n. 3 (2d Cir.1989) (noting hypothetical instance of impermissible “double counting” to add points to criminal history calculus); cf. Alessi v. Quinlan, 711 F.2d 497, 500 & n. 3 (2d Cir.1983) (noting, without considering validity of, several Connecticut district courts holding that due process is violated by Parole Commission decisions that “confine a prisoner beyond the applicable guideline for the same reason used to select the prisoner’s guideline in the first place”).

noting, without considering validity of, several Connecticut district courts holding that due process is violated by Parole Commission decisions that "confine a prisoner beyond the applicable guideline for the same reason used to select the prisoner's guideline in the first place"


Context: Nothing in the Code, however, provides that an adjudicatory hearing may not go forward if the child's parent, guardian, or legal custodian declines to attend the hearing. Thus, so long as a child's legal custodian is afforded his right to notice of all delinquency proceedings, he may waive his right to be present and to be heard at those proceedings.

husband in a divorce proceeding waived his right to be present and to be heard at trial where he "was properly informed and had actual knowledge of the trial date, but... chose not to participate"

See also Cormier v. Cormier, 280 Ga. 693, 694 (1) (631 SE2d 663) (2006) (husband in a divorce proceeding waived his right to be present and to be heard at trial where he “was properly informed and had actual knowledge of the trial date, but... chose not to participate”); In the Interest of A. G. I., 246 Ga. App. 85, 86 (1) (539 SE2d 584) (2000) (despite the fact that the mother was a party to the proceeding to terminate her parental rights, she could nevertheless “waive the right to be present during trial proceedings by voluntarily absenting herself from the court”) (footnote omitted).

"[l]ike most other rights, the right to be present may be waived or forfeited by a party"

See Kesterson v. Jarrett, 291 Ga. 380, 385 (2) (b) (728 SE2d 557) (2012) (“[l]ike most other rights, the right to be present may be waived or forfeited by a party”); In the Interest of I. W., 304 Ga. App. 225, 227 (1) (695 SE2d 739) (2010) (father could not assert error based on fact that juvenile court proceeded with a deprivation hearing despite the father’s absence; the father “knew of the impending hearing and was afforded an opportunity to present his evidence and objections, but he chose not to participate” and thereby waived his right to be heard). A waiver of such rights occurs where, as here, a legal guardian who has received notice of a delinquency hearing elects not to appear at that proceeding.


despite the fact that the mother was a party to the proceeding to terminate her parental rights, she could nevertheless "waive the right to be present during trial proceedings by voluntarily absenting herself from the court"


Context: In this case, Rivas claims that the defendants detained her for longer than they had authority to. Allegations of detention without authority can support a claim of violation of constitutional rights.

"We nonetheless wish to note that aliens arrested for status offenses are not without protection from excessively long detentions."

Armstrong v. Squadrito, 152 F.3d 564, 578 (7th Cir.1998) (“In a consti tutional sense, how much more basic could it get — jails cannot confine people without authority to do so.”); cf. United States v. Tejada, 255 F.3d 1, 4 (1st Cir.2001) (“We nonetheless wish to note that aliens arrested for status offenses are not without protection from excessively long detentions.”).

"In a consti tutional sense, how much more basic could it get -- jails cannot confine people without authority to do so."


Context: The Thompsons further argue that the receiver had no standing to pursue expansion of the receivership because it was not a party to the lawsuits. A receiver is generally not considered a "party" to a lawsuit. The role of a receiver is to act as a fiduciary representing the court and all parties in interest, and the purpose and scope of a receivership is defined by court order.

stating that "a receiver's powers are defined by the orders of the court and include authority as may reasonably or necessarily be implied for such orders"

Shadewald v. White, 74 Minn. 208, 208, 77 N.W. 42, 42 (1898) (stating that “a receiver occupies a fiduciary relation, and is trustee for all parties interested in the property [entrusted to his charge by the court”); see also In re Telesports Prod., Inc., 476 N.W.2d 798, 800 (Minn.App.1991) (“A receiver is a representative of the court.”); Hancock-Nelson Mercantile v. Weisman, 340 N.W.2d 866, 869 (Minn.App.1983) (stating that “a receiver’s powers are defined by the orders of the court and include authority as may reasonably or necessarily be implied for such orders”).

stating that "a receiver occupies a fiduciary relation, and is trustee for all parties interested in the property [entrusted to his charge by the court"


Context: (See Doc. No. 48 Ex. E.) The total value of those items, however, was only $71,643.27 (id), a calculation the Martins subsequently reaffirmed in their answers to State Farm's interrogatories. (Doc. No. 55 Ex. A.) The Court will not permit them to now rely on self-serving, contradictory Affidavits in an attempt to justify jurisdiction.

"In determining the amount in controversy ..., answers to interrogatories serve as the equivalent of affidavits to either support or defeat diversity jurisdiction."

See Frevert v. Ford Motor Co., 614 F.3d 466, 474 (8th Cir.2010) (affidavit contradicting prior response to interrogatories is “self-serving” and need not be considered); One-Point, 486 F.3d at 349 (“[T]he existence of the required amount in controversy ... must ... be supported by competent proof.”) (emphasis added); see also Larkin, 41 F.3d at 389 (“In determining the amount in controversy ..., answers to interrogatories serve as the equivalent of affidavits to either support or defeat diversity jurisdiction.”).

affidavit contradicting prior response to interrogatories is "self-serving" and need not be considered


"[T]he existence of the required amount in controversy ... must ... be supported by competent proof."


Context: .Appellant did not introduce any evidence at trial. Specifically, he did not produce any evidence to suggest that Davi-la's assailant fired inadvertently or intended a result other than Davila's death. We determine, on this record, that there is no evidence that would permit a jury rationally to find that Davila's assailant had the intent to commit robbery but not the intent to kill Davila.

"Intent to kill may be inferred from the use of a deadly weapon in a deadly manner"

See Threadgill, 146 S.W.3d at 665 (trial court did not abuse its discretion in concluding that there was no evidence that would permit a jury rationally to find that appellant did not intend to kill his victim where the evidence showed that defendant ran up to a car, leaned in, and fired two shots, the second of which was into the backseat where the victim was seated); cf. Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993) (“Intent to kill may be inferred from the use of a deadly weapon in a deadly manner”).


Context: Parol evidence such as that described above, however, cannot be considered in the face of an unambiguous, written guaranty agreement.

"The cases are legion that a complete and unambiguous instrument cannot be varied or. contradicted by reliance upon inconsistent parol statements."

See Rizk v. Jones, 148 Ga.App. 473, 251 S.E.2d 360, 361 (1978) (“The cases are legion that a complete and unambiguous instrument cannot be varied or. contradicted by reliance upon inconsistent parol statements.”) (internal quotation marks and citations omitted), aff'd, 243 Ga. 545, 255 S.E.2d 19 (1979); Health Serv. Ctrs. v. Boddy, 257 Ga. 378, 359 S.E.2d 659, 661 (1987) (“Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to the find the intention of the parties.”); American Viking Contractors, Inc. v. Scribner Equip. Co., 745 F.2d 1365, 1371 (11th Cir.1984) (applying Georgia law); see also In re Stratford of Texas, Inc., 635 F.2d 365, 368 (5th Cir.1981) (“Ordinarily, we should glean the contract’s meaning without resorting to extrinsic evidence in accordance with the principle that the language of an agreement, unless ambiguous, best represents the intention of the parties.”).

"Ordinarily, we should glean the contract's meaning without resorting to extrinsic evidence in accordance with the principle that the language of an agreement, unless ambiguous, best represents the intention of the parties."


"Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to the find the intention of the parties."


Context: Even assuming that Heck does not bar Victory's revocation claims, dismissal was nonetheless proper. Victory has not alleged that he was denied any constitutional or federal right at his revocation proceedings.

"[Pjarole board officials, like judges, are entitled to absolute immunity from suit for damages when they serve a quasi-adjudicative function in deciding whether to ... revoke parole."

See Montero v. Travis, 171 F.3d 757, 761 (2d Cir.1999) (“[Pjarole board officials, like judges, are entitled to absolute immunity from suit for damages when they serve a quasi-adjudicative function in deciding whether to ... revoke parole.”); see also Walker v. Bates, 23 F.3d 652, 658 (2d Cir.1994) (explaining that absolute immunity often bars due process damages claims by individuals serving invalidated sentences).


Context: Very few courts in the Virgin Islands have applied Section 3. Before Banks, a few District Court cases have applied Section 3.

Mendez v. Hovensa, L.L.C., 49 V.I. 826, 834 (D.V.I. 2008) (Section 3 applicable where Plaintiffs were unable to prove that water was defective); see also Bodley v. Foster Wheeler Energy Corp., 2011 U.S. Dist. LEXIS 45006, at *9 (D.V.I. Apr. 26, 2011) (citing Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 124 (3d Cir. 1984) (acknowledging that plaintiff, through the use of circumstantial evidence, may establish the defect “by showing an unexplained occurrence and eliminating all reasonable explanations for the occurrence other than the existence of a defect”)).

acknowledging that plaintiff, through the use of circumstantial evidence, may establish the defect "by showing an unexplained occurrence and eliminating all reasonable explanations for the occurrence other than the existence of a defect"


Context: Third, the district court did not err in denying appellant's request to represent himself, finding that such requests were delaying tactics.

noting that if the "request [to proceed pro se] is part of a pattern of dilatory activity, the court has the discretion to deny the continuance and require the defendant to proceed to trial on the scheduled date either with the counsel designated or pro se"

See United States v. Flewitt, 874 F.2d 669, 675 (9th Cir.1989) (noting that if the “request [to proceed pro se] is part of a pattern of dilatory activity, the court has the discretion to deny the continuance and require the defendant to proceed to trial on the scheduled date either with the counsel designated or pro se”); see also Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990) (holding the request to represent oneself to be untimely because it was made only after a motion for substitute counsel and new trial was denied).


Context: Defendants are warranted in their concern that providing ready access to fire, hot rocks, and an enclosed area inaccessible to outside view would compromise the safety and security of the Treatment Center.

See Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir. 2008) (DOC prohibition on sweat lodge was in furtherance of compelling government interest); see also Ventura v. Felts, 2008 WL 5412264 at *4 (N.D.Tex. 2008) (denying prisoner request for sweat lodge based on legitimate penological interests in maintaining security and safety).


Context: According to Defendants, Dr. Liu's employment agreement constitutes an "automatic" assignment that, upon conception, immediately assigned his inventions to the University of Washington with no further required action on his part.

holding that the contractual language "employee assigns [his inventions]" has the effect of "expressly granting] rights with no further action needed on the part of the employee[ ]"

See Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1253 (Fed.Cir.2000) (holding agreement stating inventions' “shall belong,” and that employee “hereby conveys, transfers and assigns” to its employer, constitutes an automatic assignment); see also SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1326 (Fed.Cir.2010) (holding that the contractual language “employee assigns [his inventions]” has the effect of “expressly granting] rights with no further action needed on the part of the employee[ ]”). '

holding agreement stating inventions' "shall belong," and that employee "hereby conveys, transfers and assigns" to its employer, constitutes an automatic assignment


Context: If the City was required to install additional amenities under such circumstances, it would be required to install those amenities at virtually every City bus stop in an attempt to prevent all crime at those locations. This is not what the law requires.

Gipson, 214 Ariz. at 143 n. 1, ¶ 9, 150 P.3d at 230 n. 1; cf. Martinez, 189 Ariz. at 212, 941 P.2d at 224 (holding summary judgment was inappropriate because defendant knew of gang incursions involving drugs and other criminal acts and could have taken reasonable precautions against harm).

Martinez, 189 Ariz. at 210-11, 941 P.2d at 222-23 (stating premises owner must only do what is reasonable and is not an insurer of safety). Under the circumstances of this case, where there was no evidence that prior crimes had occurred at the Bus Stop, a reasonable jury could not find that the City breached the duty of care it owed Tiana because it did not install a $10,000 shelter and lighting at the Bus Stop.


Context: Insofar as OLA claims that re-zoning to reduce the density of residential development constituted an impermissible "taking" without compensation, we agree with Judge Goettel that as an applicant for subdivision and site plan approval, OLA had no cognizable vested interest in the existing zoning of its property.

wide discretion in planning board to reject site plan on the basis of the planning board's assessment of the plan's effect on public health, safety and general welfare prevented expectation of success from rising to the level of a property right meriting protection under the Fifth and Fourteenth Amendments

Dean Tarry, 826 F.2d at 213 (wide discretion in planning board to reject site plan on the basis of the planning board’s assessment of the plan’s effect on public health, safety and general welfare prevented expectation of success from rising to the level of a property right meriting protection under the Fifth and Fourteenth Amendments).

"Under New York law ... a landowner has no vested interest in the existing classification of his property."

See also RRI Realty, 870 F.2d at 919 (where Village officials have wide discretion to deny housing application, there can be no certainty or very strong likelihood that Village officials, absent alleged due process violation, would have approved the permit; therefore, the applicant did not have an entitlement sufficient to invoke the protection of the due process clause); Ellentuck v. Klein, 570 F.2d 414, 429 (2d Cir.1978) (“Under New York law ... a landowner has no vested interest in the existing classification of his property.”).


Context: Third, the taxpayer must pay the IRS the entire tax liability alleged to be due, plus any penalties and interest.

See Flora v. United States, 362 U.S. 145, 154, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (a taxpayer must pay the full amount of income tax deficiency assessed before challenging its correctness in a refund forum); see also Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (“The full payment requirement of [26 U.S.C. § ] 1346(a)(1) and Flora applies equally to tax refund suits brought in the Court of Federal Claims[.]”).

"The full payment requirement of [26 U.S.C. SS ] 1346(a


Context: The court concludes that, even when all inferences are drawn in Roberts's favor, his allegations fail to raise a fact issue as to whether the reasons articulated by Willow for its actions are mere pretexts for race discrimination.

plaintiff alleging retaliation must prove that "but for" his complaints of discrimination, he would not have been discharged

See Thornton v. Neiman Marcus, 850 F.Supp. 538, 544 (N.D.Tex.1994) (to avoid summary judgment, the plaintiff must offer more than the subjective belief of himself and others that he was a victim of discrimination); see also Ray v. Tandem Computers, Inc., 63 F.3d 429, 436 (5th Cir.1995) (plaintiff alleging retaliation must prove that “but for” his complaints of discrimination, he would not have been discharged); Jack v. Texaco Research Center, 743 F.2d 1129, 1131(5th Cir.1984) (same).


Context: Although defendant may have smoked marijuana 3 days prior to his arrest, McDonald testified that he did not see defendant consume any alcohol or drugs after they left Tucson. In addition, the FBI agents observed no indication that defendant was under the influence of drugs or alcohol. We concur with the trial court that alcohol and drug use did not leave defendant incapable of voluntarily consenting to the search.

"[T]he mere fact that one has taken drugs, or is intoxicated, or mentally agitated, does not render consent involuntary____ In each case, '[t]he question is one of mental awareness so that the act of consent was the consensual act of one who knew what he was doing and had a reasonable appreciation of the nature and significance of his actions.' "

See United States v. Rambo, 789 F.2d 1289, 1297 (8th Cir.1986) (“[T]he mere fact that one has taken drugs, or is intoxicated, or mentally agitated, does not render consent involuntary____ In each case, ‘[t]he question is one of mental awareness so that the act of consent was the consensual act of one who knew what he was doing and had a reasonable appreciation of the nature and significance of his actions.’ ”), quoting United States v. Elrod, 441 F.2d 353, 355 (5th Cir.1971); see also United States v. Gay, 774 F.2d 368, 376-77 (10th Cir.1985) (suspect who “staggered and swayed” under intoxication was still capable of giving consent to search glove box).

suspect who "staggered and swayed" under intoxication was still capable of giving consent to search glove box


Context: We now hold that a bankruptcy court may impose sanctions pursuant to SS 362(h), under the standard set out in Crysen/Montenay, only for violating a stay as to debtors who are natural persons. For other debtors, contempt proceedings are the proper means of compensation and punishment for willful violations of the automatic stay.

allowing imposition of costs, including reasonable attorney's fees under civil contempt powers for acts which bankruptcy judge found were done with "knowledge" of automatic stay and "deliberate[ ]" disregard of bankruptcy rules regarding requirements for relief

Investors v. Camelia Builders, Inc., 550 F.2d 47, 51, 57 (2d Cir.1976) (allowing imposition of costs, including reasonable attorney’s fees under civil contempt powers for acts which bankruptcy judge found were done with “knowledge” of automatic stay and “deliberate[ ]” disregard of bankruptcy rules regarding requirements for relief), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Drywall Tapers, Local 1974 v. Local 530, 889 F.2d 389, 394-95 (2d Cir.1989) (knowledge of violation and terms of injunction required to hold party in civil contempt), cert. denied, — U.S. -, 110 S.Ct. 1478, 108 L.Ed.2d 615 (1990); see also In re First RepublicBank Corp., 113 B.R. at 279 (recognizing power of bankruptcy court under § 105 of the code and Bankruptcy Rule 9020 to impose contempt sanctions for violations of automatic stay); In re Brilliant Glass, Inc., 99 B.R. at 18 (finding contempt an appropriate remedy for violation of the automatic stay where § 362(h) by its words only benefits individual debtors).

recognizing power of bankruptcy court under SS 105 of the code and Bankruptcy Rule 9020 to impose contempt sanctions for violations of automatic stay


finding contempt an appropriate remedy for violation of the automatic stay where SS 362(h


knowledge of violation and terms of injunction required to hold party in civil contempt


Context: Opinions under Rule 701 that render a determination as to whether a defendant's conduct falls within a legal standard are not permitted because they are not helpful to the jury.

concluding that a lay witness's letter stating that the witness believed defendant's actions did not fall within statutory definition of crimi nal sexual conduct was inadmissible under Minn. R. Evid. 701

See State v. Post, 512 N.W.2d 99, 102 (Minn.1994) (stating that a witness would not be allowed to offer an opinion as to whether or not a defendant acted in self-defense); see also State v. Larson, 389 N.W.2d 872, 876 (Minn.1986) (concluding that a lay witness’s letter stating that the witness believed defendant’s actions did not fall within statutory definition of crimi nal sexual conduct was inadmissible under Minn. R. Evid. 701); Pierson v. Edstrom, 281 Minn. 102, 106, 160 N.W.2d 563, 565 (1968) (concluding that police officer’s opinion regarding fault in an accident was an improper invasion of jury’s province and that the officer’s opinion testimony regarding speed was improper because the officer did not witness the accident).


concluding that police officer's opinion regarding fault in an accident was an improper invasion of jury's province and that the officer's opinion testimony regarding speed was improper because the officer did not witness the accident


Context: Elizabeth Jester, Esq. represented all seven plaintiffs at their IDEA hearings and charged the same hourly rate and costs for each plaintiff. (Pl.'s Opp'n to Def.'s Mot. to Dismiss and Sever ("Pl.'s Opp'n") at 2-3.) Additionally, the plaintiffs allege that the District of Columbia applied a common billing practice to reduce the fees it paid for all plaintiffs' claims at issue. (Id. at 4.) This claim finds support in the District of Columbia's admission that it capped all of the plaintiffs' claims under a Congressionally-imposed fee cap of $4,000. (Def.'s Reply at 3.) That the District ostensibly applied a common policy to reduce all of the plaintiffs' fee requests provides a sufficient basis for concluding that there is a logical relationship between the plaintiffs' fee requests, such that they satisfy the first prong of Rule 20(a).

noting the absence of a "policy similarly affecting each plaintiffs case"

See Disparte, 223 F.R.D. at 16 (finding the first prong of Rule 20(a) satisfied in the context of an employment discrimination claim where plaintiffs alleged that they were subject to a common policy of the defendant); cf. Battle, 2009 WL 6496484, at *2 (noting the absence of a “policy similarly affecting each plaintiffs case”).


Context: Courts have routinely held that equity requires the burdens of the Act be placed on the school district and not on the parents.

burden on district to question whether student's misconduct is due to handicap because parents lack expertise to develop an appropriate IEP for their child

See McKenzie v. Smith, 771 F.2d 1527, 1531 (D.C.Cir.1985) (where district sought to change child’s IEP, it had the burden of proving that the proposed placement complied with the requirements of the Act); Grymes v. Madden, 672 F.2d 321, 322 (3d Cir.1982) (affirming district court’s decision that the district had “failed to sustain its burden of proof that an appropriate public program existed”); Cf. S-1 v. Turlington, 635 F.2d 342, 348-49 (5th Cir.) (burden on district to question whether student’s misconduct is due to handicap because parents lack expertise to develop an appropriate IEP for their child), cert. denied 454 U.S. 1030, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981), abrogated on other grounds by Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

where district sought to change child's IEP, it had the burden of proving that the proposed placement complied with the requirements of the Act


affirming district court's decision that the district had "failed to sustain its burden of proof that an appropriate public program existed"


Context: While we review a district court's decision to seal or unseal documents, or to issue or refuse to issue a protective order, for abuse of discretion, we review de novo any errors of law upon which the court relied in exercising its discretion.

"A district court by definition abuses its discretion when it makes an error of law."

See, e.g., United States v. Mejia, 448 F.3d 436, 456-57 (D.C.Cir.2006) (reviewing issuance of protective order de novo rather than for abuse of discretion because court applied incorrect legal standard); United States v. El-Sayegh, 131 F.3d 158, 160 (D.C.Cir.1997) (reviewing decision to unseal guilty plea de novo rather than for abuse of discretion because court’s decision was premised on legal error); see also Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”). Here, the district court’s explanations indicate de novo review is appropriate.


reviewing decision to unseal guilty plea de novo rather than for abuse of discretion because court's decision was premised on legal error


Context: The economic loss rule is a doctrine that limits the recovery of purely economic damages in an action for negligence. LAN/STV v. Martin K.

"In actions for unintentional torts, the common law has long restricted recovery of purely economic damages unaccompanied by injury to the plaintiff or his property!.]"

Eby Constr. Co., 435 S.W.3d 234, 235 (Tex.2014) (“In actions for unintentional torts, the common law has long restricted recovery of purely economic damages unaccompanied by injury to the plaintiff or his property!.]”); see also Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 415 (Tex.2011) (“[Pferties may be barred from recovering in negligence or strict liability for purely economic losses.”).

"[Pferties may be barred from recovering in negligence or strict liability for purely economic losses."


Context: Courts must be wary of exaggerating what are properly recognized as contemptible improprieties into grandiose visions of injustice. The temptation to entertain such visions is especially great in cases that pit lonely criminal defendants against the police and prosecutorial powers of their state governments. The danger in succumbing to such temptation is that rules designed to secure the integrity of the legal process can gradually take the form of escape valves whose only notable effect is to provide safe haven for indisputably guilty persons.

holding that even the admission of a coerced confession may be harmless error and noting that " 'the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence' "

Cf Fulminante, 111 S.Ct. at 1264 (holding that even the admission of a coerced confession may be harmless error and noting that “ ‘the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence’ ”) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)); see also Robinson v. Borg, 918 F.2d 1387, 1394 (9th Cir.1990) (Trott, J., dissenting) (warning against the dangers of expansive judicial applications of the Miranda rules and urging the judiciary “to monitor carefully the costs of these rules as they are applied to the cases that come before us”).

warning against the dangers of expansive judicial applications of the Miranda rules and urging the judiciary "to monitor carefully the costs of these rules as they are applied to the cases that come before us"


Context: It appears that Hershberger did not make this first argument before the circuit court and has therefore forfeited it.

See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997) ("The general rule is that issues not presented to the circuit court will not be considered for the first time on appeal."); State v. Rogers, 196 Wis. 2d 817, 829, 539 N.W.2d 897 (Ct. App. 1995) ("[T]he appellant [must] articulate each of its theories to the trial court to preserve its right to' appeal."); see also State v. Huebner, 2000 WI 59, ¶ 11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (noting that the rule requiring issue preservation, previously referred to as the "waiver rule" is more precisely labeled the "forfeiture rule").


"[T]he appellant [must] articulate each of its theories to the trial court to preserve its right to' appeal."


Context: As illustrated by section 5111(d), which defines "award" for the purpose of that section only, the definition of "award" may refer to different types of awards, such as "an original or reopened award" or "an increased award." 38 U.S.C. SS 5111(d); see also, e.g., 38 U.S.C. SS 1117(h)(2)(A) (specifying "the original award of compensation or service connection" (emphasis added)). Thus, the plain meaning of the term "award" in sections 5112(b)(9) and (10) is ambiguous and does not, standing alone, reveal congressional intent.

holding that the plain meaning of the term "the cost" referred to in section 1722A(a)(2) of title 38, U.S.Code, was ambiguous

See Heino, 683 F.3d at 1378 (holding that the plain meaning of the term “the cost” referred to in section 1722A(a)(2) of title 38, U.S.Code, was ambiguous); see also Fountain v. Shinseki, 27 Vet.App. 258, 268 (2015) (holding that the phrase “[o]r~ ganic diseases of the nervous system,” contained in 38 U.S.C. § 1101(3) was ambiguous because the statute did not define the phrase).

holding that the phrase "[o]r~ ganic diseases of the nervous system," contained in 38 U.S.C. SS 1101(3) was ambiguous because the statute did not define the phrase


Context: The government continues by underscoring the following facts: (1) that there was evidence that the Cadillac was defendant's only car, (2) that the registration listed one of the two residences that were searched, (3) that the car was present during multiple controlled buys, and (4) that a confidential source advised law enforcement that the car's presence at the properties "meant that Christian was available to sell heroin." (Doc. No. 12 at 56-57.) While these facts support a finding that the vehicle played a meaningful role in the drug activity, they do not support probable cause to believe that drugs would be inside the car.

distinguishing cases where there was "no information or evidence that suggested the vehicles in question contained contraband"

See, e.g., Mack v. City of Abilene, 461 F.3d 547, 553 (5th Cir.2006) (warrantless automobile search invalid because officers had no probable cause to believe contraband would be found in the vehicle, even though informant gave police probable cause to believe that there was contraband in. defendant’s other vehicle and apartment); United States v. Infante-Ruiz, 13 F.3d 498, 502 (1st Cir.1994) (warrantless automobile search invalid because officers had no particular information indicating defendant was transporting drugs or. weapons at the time of the stop); see also Smith, 510 F.3d at 649 (distinguishing cases where there was “no information or evidence that suggested the vehicles in question contained contraband”).

warrantless automobile search invalid because officers had no probable cause to believe contraband would be found in the vehicle, even though informant gave police probable cause to believe that there was contraband in. defendant's other vehicle and apartment


warrantless automobile search invalid because officers had no particular information indicating defendant was transporting drugs or. weapons at the time of the stop


Context: The witness in Moffett, like the witnesses in the instant case, admitted making the prior statement but insisted that the contents were untrue. Moffett, 456 So.2d at 717. The Court in Moffett explained that where a nonparty witness admitted making the prior out-of-court statements, the statements where reduced to written form, should never be introduced into evidence.

Id.; see Davis v. State, 431 So.2d 468, 473 (Miss.1983) (recognizing that evidence of extra judicial statements by nonparty witness was admissable only to impeach); Sims v. State, 313 So.2d 388, 391 (Miss.1975) (finding that witness who denied that defendant made incriminating statements could be impeached by showing that witness told third party that defendant made such statement; however, such statement was found to be admissible only for impeachment purposes); see also Murphy v. State, 336 So.2d 213, 216-17 (Miss.1976), cert. denied, 429 U.S. 1076, 97 S.Ct. 819, 50 L.Ed.2d 795 (1977) (defendant entitled to instruction that prior inconsistent statement was not to be used as proof of guilt).


Context: In fact, as plaintiffs' affidavits make clear, none of the plaintiffs ever attempted to file a grievance or asked that a grievance be filed and pursued. Under these circumstances, the court cannot conclude that plaintiffs are excused from first exhausting their remedies under the collective bargaining agreement, i.e., from filing and pursuing grievances, as a prerequisite to seeking judicial relief.

See Janik v. Buhrke Tech Int'l, 1997 WL 285763, Slip op. at 5 (N.D.Ill. May 22, 1997) (fact that union representative stated. to employee that union could do nothing did not establish that any attempt by employee to file grievance would have been futile); cf. Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969) (exhaustion not required where employees complained to representatives of union and called upon union to process grievance on her behalf yet union representatives refused and treated plaintiff-employees with condescension); Woodward Iron Co. v. Ware, 261 F.2d 138 (5th Cir.1958) (two employees excused from exhaustion where one filed grievance which union voted not to pursue). Accordingly, with the exception of plaintiffs’ fraud claim, the court must dismiss each of plaintiffs’ claims against GM without prejudice for their failure to exhaust.


two employees excused from exhaustion where one filed grievance which union voted not to pursue


Context: Therefore, the Agreement remains as originally signed, unmodified. "As a matter of elementary contract law, [a party] cannot unilaterally modify the existing agreement."

"If a party, knowing of an alteration that discharges his duty, .. manifests a willingness to remain subject to the original contract or to forgive the alteration, the original contract is revived"

Popovich v. McDonald’s Corp., 189 F.Supp.2d 772, 779 (N.D.Ill.2002); see also Perez, 253 F.3d at 1284 n. 2 (refusing to consider employer’s unilateral offer to use less expensive private arbitration since such offer was rejected by employee, leaving agreement as originally signed); Flyer Printing Company, Inc. v. Hill, 805 So.2d 829, 833 (Fla.App. 2 Dist.2001) (refusing to remake parties’ contract when employee rejected employer’s offer to pay all costs of arbitration, contrary to agreement’s language); cf. Restatement (Second) of Contracts § 287(2) (“If a party, knowing of an alteration that discharges his duty, .. manifests a willingness to remain subject to the original contract or to forgive the alteration, the original contract is revived”). “Principles of justice and fair play ... lead to the conclusion that one party cannot alter post litem mo-tam terms of an agreement so that a case is dismissed.” In re Managed Care Litigation, 132 F.Supp.2d 989, 1001 (S.D.Fla.2000).

refusing to consider employer's unilateral offer to use less expensive private arbitration since such offer was rejected by employee, leaving agreement as originally signed


refusing to remake parties' contract when employee rejected employer's offer to pay all costs of arbitration, contrary to agreement's language


Context: Further, while father may be inconvenienced financially by the order to pay the amount due for the child's past support, we are unable to conclude that an undue hardship or substantial injustice is created merely by enforcing his properly calculated obligation to support his child.

See In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App.1990) (deviation from the guideline amount of support is not justified by hardship resulting solely from application of the guideline, absent other unusual or unique financial circumstances); see also In re Marriage of Cargill, 843 P.2d 1335 (Colo.1993) (financial inconvenience caused by a reinstatement of maintenance does not amount to prejudice).


Context: Under the facts alleged in this case, Secretary Detzner is an appropriate defendant for a Section 5 enforcement action because his office adopted and is responsible for administrating the Database Matching Program.

See Bone Shirt, 200 F.Supp.2d at 1156 (holding that “[ujnder the plain meaning of the Voting Rights Act, the State of South Dakota is an entity that must secure preclearance from the Attorney General or bring a declaratory judgment action” for review of a law passed by the state legislature that impacts voting in covered counties); see also Haith v. Martin, 618 F.Supp. 410 (D.N.C.1985) (enforcement action brought against governor, attorney general, secretary of state, and board of elections); Clayton v. North Carolina Bd. of Elections, 317 F.Supp. 915, 919 (E.D.N.C.1970) (enjoining, in covered counties, an unprecleared state law in a partially covered state in a case filed against state actors).

holding that "[ujnder the plain meaning of the Voting Rights Act, the State of South Dakota is an entity that must secure preclearance from the Attorney General or bring a declaratory judgment action" for review of a law passed by the state legislature that impacts voting in covered counties


enjoining, in covered counties, an unprecleared state law in a partially covered state in a case filed against state actors


Context: With the increased prominence of jet airplanes, noise and vibrations have replaced physical encumbrance as the primary complaint of claimants seeking compensation.

See Branning, 654 F.2d at 101 (noting that “[t]he real source of interference with plaintiffs’ use of their property in Lacey was not the altitude of the flights, but the noise”); see also Highland Park, Inc. v. United States, 142 Ct.Cl. 269, 161 F.Supp. 597, 600 (1958) (noting that prior to the introduction of jet airplanes, propeller-driven airplanes operating at the same altitudes were not such a nuisance). With sufficiently egregious factual showings, our predecessor court ordered compensation for the effects produced by jet aircraft, despite the claimant’s inability to allege any flights under 500 feet.

noting that "[t]he real source of interference with plaintiffs' use of their property in Lacey was not the altitude of the flights, but the noise"


Context: Our second major point of disagreement with the district court is its holding that the various statutes under which this action is brought require a showing that the Patels' actions, in conjunction with McLean's, succeeded in ac tually establishing a going business of supplying third parties with sexual opportunities.

"It is enough [for SS 1591 liability] that [the defendant] 'recruited' the victims ... to engage in commercial sex acts even though they did not actually do so."

Although § 1589 requires that labor or services be provided or obtained, the other provisions noted here do not. See § 1590(a) (prohibiting the “knowing[ ] ... harborpng] ... [of] any person for labor or services,” which is most obviously read as requiring only intent to produce the result described); § 1594(a), (b), and (c) (prohibiting attempt and conspiracy to violate §§ 1589, 1590, or 1591); United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014) (“It is enough [for § 1591 liability] that [the defendant] ‘recruited’ the victims ... to engage in commercial sex acts even though they did not actually do so.”); United States v. Jungers, 702 F.3d 1066, 1073 (8th Cir. 2013) (“In many, if not all cases, the commercial sex act is still in the future at the time the purchaser ... [is] in violation of § 1591.”); United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (“The knowledge required of the defendant [for § 1591 liability] is such that if things go as he has planned, force, fraud or coercion will be employed to cause his victim to engage in a commercial sex transaction.”); see also United States v. Roy, 630 Fed.Appx. 169, 170-71 (4th Cir. 2015) (adopting the approach in Todd, 627 F.3d at 334, while reviewing a conspiracy to violate § 1591 conviction).

adopting the approach in Todd, 627 F.3d at 334, while reviewing a conspiracy to violate SS 1591 conviction


"In many, if not all cases, the commercial sex act is still in the future at the time the purchaser ... [is] in violation of SS 1591."


"The knowledge required of the defendant [for SS 1591 liability] is such that if things go as he has planned, force, fraud or coercion will be employed to cause his victim to engage in a commercial sex transaction."


Context: The district court determined that Grigsby failed to state a First Amendment claim because he only alleged isolated instances of delay and possible interference with his mail. However, at this early stage of the proceedings, Grigsby's allegations, liberally construed, present a First Amendment claim based on defendants' alleged failure to send a letter and delay in delivering a priority mail package.

stating that prisoners have "a First Amendment right to send and receive mail"

See Witherow v. Paff 52 F.3d 264, 265 (9th Cir.1995) (per curiam) (stating that prisoners have “a First Amendment right to send and receive mail”); cf. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir.1999) (concluding that temporary delay in delivery of mail did not violate First Amendment where prison officials had come forward with a legitimate penological reason for the delay); see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc) (regarding leave to amend). In addition, we instruct the district court on remand to address Grigsby’s claim based on the alleged confiscation of stamps.


Context: We also note that Mr. Floore is service connected for diabetes with a 20% disability rating, yet, other than mentioning that his peripheral neuropathy is diabetes related, the Board did not discuss the effects of diabetes, if any, occupational or otherwise. Neither party included a medical examination report addressing diabetes in the ROP and it may be that there are no occupational effects from diabetes, but an assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities to facilitate judicial review of that assessment.

Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"

See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”); see also Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993) (“[T]he central inquiry in determining whether a veteran is entitled to TDIU is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”).

"[T]he central inquiry in determining whether a veteran is entitled to TDIU is whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."


Context: Regarding the second prong, IEP disputes are reasonably likely to recur between the same parties--the school district and the parent(s)--because a new IEP evaluation occurs at least annually.

See Bd. of Educ. v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (noting that “deficiencies in the IEP were capable of repetition as to the parties before it yet evading review”); see also Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 31 (1st Cir.2001) (stating dispute over the sendees due to a disabled child pursuant to IDEA is a controversy likely to recur as the school district proposes new IEPs); Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H., 14 F.3d 1398, 1403 (9th Cir.1994) (concluding that parents’ and school district’s opposing views regarding proper educational placement of disabled child is a continuing conflict that will arise frequently); Daniel R.R., 874 F.2d at 1041 (“Given the parties’ irreconcilable views on the issue, [the educational placement] will be an issue every time [the school district] prepares a new placement or IEP -”).

noting that "deficiencies in the IEP were capable of repetition as to the parties before it yet evading review"


concluding that parents' and school district's opposing views regarding proper educational placement of disabled child is a continuing conflict that will arise frequently


"Given the parties' irreconcilable views on the issue, [the educational placement] will be an issue every time [the school district] prepares a new placement or IEP -"


Context: Cordua argues that even if "churrascos" is generic as to "churrasco restaurants" (also known as "churrascari-as"), it is not generic as to all restaurant services. But a term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a whole. Thus, the term "pizzeria" would be generic for restaurant services, even though the public understands the term to refer to a particular sub-group or type of restaurant rather than to all restaurants.

affirming the TTAB's determination that BUNDT is generic "for a type of ring cake"

See, e.g., Northland Aluminum, 777 F.2d at 1561 (affirming the TTAB’s determination that BUNDT is generic “for a type of ring cake”); In re Analog Devices, Inc., 6 U.S.P.Q.2d 1808, 1810, 1988 WL 252496, at *3 (TTAB 1988) (“There is no logical reason to treat differently a term that is generic of a category or class of products where some but not all of the goods identified in an application fall within that category.”), aff'd, 871 F.2d 1097 (Fed.Cir.1989) (unpublished); see also Otokoyama Co., Ltd. v. Wine of Japan Imp., Inc., 175 F.3d 266, 271 (2d Cir.1999) (“Generic words for sub-classifications or varieties of a good are [ ] ineligible for trademark protection.”).

"Generic words for sub-classifications or varieties of a good are [ ] ineligible for trademark protection."


"There is no logical reason to treat differently a term that is generic of a category or class of products where some but not all of the goods identified in an application fall within that category."


Context: From all of the above, I conclude that Crawford's statements to law enforcement officials were not preceded by any illegal search or personal seizure or by a violation of Miranda. I conclude also that the conduct of the officers was, as required by Latta, demonstrably reasonable under the "totality of the circumstances."

Knights, 534 U.S. at 118, 122 S.Ct. 587; Latta, 521 F.2d at 250(A parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties); see 8289 also Rise v. Oregon, 59 F.3d 1556 (9th Cir.1995) (Oregon statute requiring felons convicted of murder or specific sexual offenses to submit blood sample for DNA bank is reasonable and therefore does not violate the Fourth Amendment); Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997) (convicted sex offenders have no right of privacy preventing the state from requiring them to register as such and be subject to community notification of their residences).


convicted sex offenders have no right of privacy preventing the state from requiring them to register as such and be subject to community notification of their residences


Context: More significantly, the immigration statute is phrased so as to bar review of the agency's determination of SAW status in an individual action -- an event comparable to EPA's selection of a removal or remedial action, which is the focus of the CERCLA bar. Neither statute mentions the availability of review of a constitutional challenge to the statute itself (as here) or to the agency's execution of the statute (as in McNary). Insofar as the Immigration and Nationality Act compares to CERCLA, we think that the holding in McNary supports our conclusion here.

See also Johnson v. Robinson, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974) (holding that similar jurisdictional bar precluded review only of administration of statute, not of challenge to statute itself); cf. Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975) (holding that more expansive language barred all challenges related to statute).


Context: Defendants point to no charge proffered by them on economic purpose. In any event, Defendants' contention ignores well-established precedent holding that lack of economic motive does not constitute a defense to Hobbs Act crimes.

See United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975) (“there is no exception to the Hobbs Act” permitting extortion “for a religious purpose”); see also United States v. Anderson, 716 F.2d 446 (7th Cir.1983) (upholding Hobbs Act conviction of antiabortion activists for threatening doctor to induce him to cease performing abortions).

"there is no exception to the Hobbs Act" permitting extortion "for a religious purpose"