Context: The majority claims that "the trial court did not err in not explicitly deciding the disputed issue of what standard is appropriate," majority op. at 1265, for a facial constitutional challenge to a statute regulating the right to abortion because "[t]he trial court's finding that the Mandatory Delay Law imposes a significant restriction on all women's fundamental right of privacy, by its plain terms, is sufficient to support an injunction barring the application of the law in its entirety." Majority op. at 1264. But the trial court's temporary injunction order will be searched in vain for any finding that the Mandatory Delay law imposes a "significant restriction" on the right to abortion. Regardless, the majority fails to acknowledge that--as a matter of Florida law--the no-set-of-circumstances test standard applies to Petitioners' facial constitutional challenge.

"A facial challenge to a statute is more difficult than an 'as applied' challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid."

See, e.g., Abdool v. Bondi, 141 So.3d 529, 538 (Fla. 2014) (“For a statute to be held facially unconstitutional, the challenger must demonstrate that no set of circumstances exists in which the statute can be constitutionally applied.”); Florida Dept. of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla. 2005) (“[A] determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid.”); see also Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004) (“A facial challenge to a statute is more difficult than an ‘as applied’ challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid.”). Based on the record here, there is no basis for concluding that Petitioners have established a likelihood that they will prevail in meeting their heavy burden to maintain a successful facial challenge in this case.

"For a statute to be held facially unconstitutional, the challenger must demonstrate that no set of circumstances exists in which the statute can be constitutionally applied."


"[A] determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid."


Context: Finally, to the extent the Court considers these legal determinations "close calls," the law regarding whether remand provides guidance to courts considering "close-calls." That is, where there is any doubt, the court should resolve the matter in favor of the plaintiff and for remand.

Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir.1999) (finding that all questions as to removal must be resolved in the favor of the plaintiff and state court jurisdiction); see also Branch v. Coca-Cola Bottling Co., 83 F.Supp.2d 631, 632 n. 3, 635 (D.S.C.2000) (finding presumption in favor of remand where issue is close). For these reasons and relying on the McCormick opinion from this District, the plaintiffs motion for remand is hereby GRANTED.


Context: It may well be that no curative instruction could have overcome the impact of the witness' statements. However, we are confident that the one given here was completely ineffectual.

See State v. Manfredi, 118 R.I. 144, 149, 372 A.2d 975, 977 (1977) (holding that reversible error was committed when the Court could not determine that the instruction given by the trial justice was sufficient to remove the taint of the statement and such doubt was to be resolved in favor of the defendant); see also State v. Costa, 111 R.I. 602, 609-10, 306 A.2d 36,40 (1973) (stating that “there remains for the appellate court the question of whether such instructions were adequate to have disabused the jury’s mind of the prejudicial effect of the objectionable evidence”).

stating that "there remains for the appellate court the question of whether such instructions were adequate to have disabused the jury's mind of the prejudicial effect of the objectionable evidence"


Context: Although a trial justice is required to give a limiting instruction when admitting evidence of prior bad acts under one of the exceptions to Rule 404(b), it is not required that the instruction be given immediately after the pertinent testimony.

"The trial justice always should take it upon himself or herself to offer a limiting instruction when admitting evidence of other sex acts."

State v. Cardoza, 649 A.2d 745, 748 (R.I. 1994) (“[TJhere is no requirement that this instruction be given immediately after the testimony has been given.”); see also State v. Brown, 626 A.2d 228, 234 n. 2 (R.I.1993) (“The trial justice always should take it upon himself or herself to offer a limiting instruction when admitting evidence of other sex acts.”); Jalette, 119 R.I. at 627, 382 A.2d at 533-34. When a defendant fails to object to the introduction of the evidence at trial, the trial justice’s failure to issue a sua sponte cautionary instruction constitutes reversible error only if a defendant does not attempt to utilize the uncharged incidents to his or her advantage.

"[TJhere is no requirement that this instruction be given immediately after the testimony has been given."


Context: Moreover, even greater lenience is due to domestic relations orders which were drafted prior to the REA.

See Metropolitan Life v. Marsh, 119 F.3d 415, 422 (6th Cir.1997) (“As the divorce decree was written before the REA amended ERISA in 1984, we should not demand literal compliance where Congress’ intent has been to give effect to domestic relations orders where it is clear what the decree intended.”); Cummings by Techmeier v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 388-89 (7th Cir.1986), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 703 (1986); see also Layton v. TDS Healthcare Sys. Corp., No. C-93-1827-MHP, 1994 WL 224352, at *5 (N.D.Cal. May 17, 1994) (noting practice of finding QDRO despite absence of technical requirements for DROs entered before enactment of REA).

"As the divorce decree was written before the REA amended ERISA in 1984, we should not demand literal compliance where Congress' intent has been to give effect to domestic relations orders where it is clear what the decree intended."


Context: It has been held that in a jury trial jeopardy attaches when the jury is impaneled and sworn. However, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.

See also United States v. Kehoe, 516 F.2d 78, 86 (5th Cir.1975) (holding that a defendant who delays, for reasons of trial tactics, filing a motion attacking an indictment until after the jury is sworn and some evidence has been heard is not entitled to prevent a retrial on the basis of the Double Jeopardy Clause).

See Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 433 (1973) (holding that the granting of a mistrial due to a defect in the wording of the indictment did not prevent retrial even though the mistrial was declared after the jury was impaneled and sworn and over the objection of defendant). In United States v. Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79 (1978), the court held that a defendant who, after the introduction of evidence, deliberately chooses to seek termination of the proceedings against him by a motion to dismiss, unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the State is permitted to appeal and seek reversal of the dismissal.


Context: We have found no cases, and Jones points to none, requiring prison regulations to be written and publicized in order to meet constitutional requirements. Rather, the constitutionality of a prison regulation, whether written, unwritten, publicized or unpublicized, is governed by Turner. Indeed, we and other circuits have applied Turner to unwritten prison policies and other prison actions.

See Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir.1990) ("Although Turner addresses prison rules and regulations, we see no reason why the Turner principle should not apply to other prison actions, such as the transfer here."); see also Victoria W. v. Larpenter, 369 F.3d 475, 479, 483-86 (5th Cir.2004) (applying Turner to unwritten prison policy requiring inmates who wish to obtain an elective medical procedure to obtain a court order); Shimer v. Washington, 100 F.3d 506, 508-10 (7th Cir.1996) (applying Turner to unwritten policy prohibiting prison employees from writing Prison Review Board directly); Cornwell v. Dahlberg, 963 F.2d 912, 917 (6th Cir.1992) (noting Turner "has been applied to unwritten prison policies as well as prison regulations”); c.f.


applying Turner to unwritten policy prohibiting prison employees from writing Prison Review Board directly


noting Turner "has been applied to unwritten prison policies as well as prison regulations"


Context: We conclude that the facts pleaded are insufficient to make out such a claim. None of Scott's allegations with respect to the DOC defendants include assertions that affirmative actions taken by these defendants after Earley violated her rights; they refer only to the DOC defendants' failure to act. And Scott has not pleaded facts giving rise to a clearly established affirmative legal obligation on the part of the DOC defendants to take any of the actions that Scott alleges they failed to take. A claim for failure to act is cognizable only in the presence of a corresponding duty to have acted.

"As a general rule, a government official is not liable for failing to prevent another from violating a person's constitutional rights, unless the official is charged with an affirmative duty to act."

See, e.g., Benzman v. Whitman, 523 F.3d 119, 132 (2d Cir.2008) (finding no violation of law where Environmental Protection Agency allegedly failed to consider certain factors pertaining to air quality after the 9/11 attacks because “there is no allegation of any failure to carry out a mandatory duty to take a discrete action required by the [National Contingency Plan]”); cf. Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir.1988) (“As a general rule, a government official is not liable for failing to prevent another from violating a person’s constitutional rights, unless the official is charged with an affirmative duty to act.”). In the absence of such an allegation, this claim must fail.

finding no violation of law where Environmental Protection Agency allegedly failed to consider certain factors pertaining to air quality after the 9/11 attacks because "there is no allegation of any failure to carry out a mandatory duty to take a discrete action required by the [National Contingency Plan]"


Context: The court's position is confused because the plain-error rule does not actually have a different purpose than the common-law forfeiture doctrine. We have repeatedly recognized that the purpose and effect of the plain-error rule, like the common-law forfeiture doctrine, is to encourage contemporaneous objections.

recognizing that the plain-error rule is tied directly to the contemporaneous-objection requirement as it "sets forth the consequences" for failing to object and promotes "judicial efficiency"

See, e.g., Pearson, 775 N.W.2d at 161 (“The plain error doctrine encourages defendants to object while in the trial court so that any errors can be corrected before their full impact is realized.”); Ramey, 721 N.W.2d at 298-99; see also Puckett, 556 U.S. at 184-36, 129 S.Ct. 1423 (recognizing that the plain-error rule is tied directly to the contemporaneous-objection requirement as it “sets forth the consequences” for failing to object and promotes “judicial efficiency”).

"The plain error doctrine encourages defendants to object while in the trial court so that any errors can be corrected before their full impact is realized."


Context: For example, the Pierces never indicated that they were preparing to repair the property or to demolish it on their own and that they needed additional time to do so. Indeed, the record suggests that the Pierces were financially unable either to repair or demolish the property. In light of the adequacy of notice and the lack of any response, we see no due process violation in this ex parte proceeding.

no due process violation where property owner had actual notice of municipality's intent

See Traylor v. City of Amarillo, 492 F.2d 1156, 1159 (5th Cir.1974) (where procedural fairness has been accorded the property owner, the Due Process Clause does not require “that a judicial determination precede the demolition of property found to be a nuisance.”); cf. Hroch v. City of Omaha, 4 F.3d 693, 696 (8th Cir.1993) (no due process violation where property owner had actual notice of municipality’s intent).

where procedural fairness has been accorded the property owner, the Due Process Clause does not require "that a judicial determination precede the demolition of property found to be a nuisance."


Context: The dates of a public official's term of office are adjudicative facts within the meaning of this rule.

See Larsen v. Archdiocese of Denver, 631 P.2d 1163, 1164 (Colo.App. 1981) (court may take judicial notice of term of public office); cf. Lovato v. Johnson, 617 P.2d 1203, 1204 (Colo.1980) (court properly took judicial notice that Utah judge was a "magistrate" under Utah law); People ex rel. Flanders v. Neary, 113 Colo. 12, 16, 154 P.2d 48, 50 (1944) (supreme court took judicial notice of district attorney's term of office).


supreme court took judicial notice of district attorney's term of office


Context: In addition, we note that the statute has been amended on numerous occasions subsequent to our Supreme Court's 1926 pronouncement in Murphy. In each of these subsequent enactments, the underlying language of the time limitation has not been significantly changed or clarified. We may presume, therefore, that the action of the General Assembly in re-enacting the statute, including the clause in question, after the decision of the Supreme Court in Murphy, was done with knowledge of and in the light of that decision.

See Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959) (action of legislature in amending statute regulating braking systems presumed to have been enacted in light of judicial decisions); see also Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 279, 610 A.2d 584 (1992) (“the legislature is presumed to be aware of judicial interpretations of a statute”). As such, the fact that the General Assembly failed to repudiate Murphy in its subsequent amendments to § 31-301 bolsters our conclusion that in addition to being binding precedent, Murphy's interpretation of the statute remains accurate.

"the legislature is presumed to be aware of judicial interpretations of a statute"


Context: . This case is distinguishable from cases where the alien filed a motion to reopen during the seven-month window, but explicitly requested a stay of the voluntary departure period pending adjudication of the motion indicating that the alien had no intention to relinquish the voluntary departure agreement.

See Blackman v. Att'y Gen., 414 Fed.Appx. 415 (3d Cir.2011) (holding BIA did not err in determining request for stay of voluntary departure is not an implicit request for a withdrawal of voluntary departure); see also Ramirez-Mena v. Holder, 324 Fed.Appx. 434 (5th Cir.2009) (holding the BIA did not err in denying alien's motion to stay voluntary departure period pending determination on the motion to reopen); Rojo-Resendiz v. Mukasey, 297 Fed.Appx. 292 (5th Cir.2008) (same).


Context: Plaintiff fails to provide any evidence, beyond her conclusory suppositions, that part-time positions existed in February 1993 or May 1993, the times when she was placed on medical leave.

See Howell v. Michelin Tire Corp., 860 F.Supp. 1488 (M.D.Ala.1994) (reasonable accommodation does not require that employer create a light-duty position or new permanent position for disabled employee); see also Reigel v. Kaiser Found. Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994) (ADA does not require employer to make fundamental or substantial modifications in its operations to assure every disabled individual the benefit of employment); compare Tuck v. HCA Health Services of Tenn., 842 F.Supp. 988, 993-94 (M.D.Tenn.1992), aff'd, 7 F.3d 465 (1993) (employer hospital failed to reasonably accommodate when did not offer nurse opportunity for reduced shifts being advertised).


employer hospital failed to reasonably accommodate when did not offer nurse opportunity for reduced shifts being advertised


Context: .The conclusion that a court cannot dismiss a habeas petition sua sponte based on an unpleaded affirmative defense except as a matter of preliminary review is consistent with the Supreme Court's holding that a "court of appeals is not 'required' to raise the issue of procedural default sua sponte."

Trest v. Cain, 522 U.S. 87, 89, 90-91, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (refusing to consider the broader question of whether a court of appeals may raise a procedural default sua sponte); see also Fisher, 169 F.3d at 301 ("We conclude, however, that even if we do have discretion in some circumstances to apply the procedural bar where the state has waived the defense in the district court, we will not exercise such discretion in this case.").


Context: We reject plaintiff's contention that she is entitled to damages for her criminal trials, conviction, incarceration, and the resulting aggravation of her Rape Trauma Syndrome. The intervening acts of the prosecutor, grand jury, judge and jury -- assuming that these court officials acted without malice that caused them to abuse their powers -- each break the chain of causation unless plaintiff can show that these intervening acts were the result of deception or undue pressure by the defendant policemen.

See Smiddy v. Varney, 803 F.2d 1469 (9th Cir.1986); Duncan v. Nelson, 466 F.2d 939 (7th Cir.1972); see also Hand v. Gary, 838 F.2d 1420 (5th Cir.1988) (in section 1983 action based on false arrest, grand jury or other independent intermediary breaks chain of causation unless defendant policemen mislead intermediary); Scanlon v. Flynn, 465 F.Supp. 32 (S.D.N.Y.1978) (stating that under New York law, damages for false arrest are measured only to time of arraignment or indictment because, after such an evaluation, subsequent detention is attributed to independent, supervening determination of probable cause, not to earlier improper arrest); cf. Jones v. City of Chicago, 856 F.2d 985 (7th Cir.1988) (decision of prosecutor to charge or grand jury to indict does not shield police officer who deliberately supplied misleading information).


stating that under New York law, damages for false arrest are measured only to time of arraignment or indictment because, after such an evaluation, subsequent detention is attributed to independent, supervening determination of probable cause, not to earlier improper arrest


Context: Defendants contend that they were not subpoenaed or directed by a court to furnish the information sought by the Roberts plaintiffs in their discovery requests. They also submit that the Indictment is overbroad, charging them not only with concealing and destroying documents requested by the Roberts plaintiffs, but also with concealing and destroying documents likely to be requested by them. But the law is clear that neither a subpoena nor a court order directing the production of documents must be issued or served as a prerequisite to a SS 1503 prosecution, and that the concealment and destruction of documents likely to be sought by subpoena is actionable under the statute.

See, e.g., Ruggiero, 934 F.2d at 450 (destroying documents in anticipation of a subpoena can constitute obstruction); Gravely, 840 F.2d at 1160 (under § 1503, documents destroyed do not have to be under subpoena; it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation); see also Wilder, 143 F. at 442 (inducing witness not under subpoena not to testify was actionable as an obstruction under the statute: “In the absence of a federal statute of the scope of this clause, a party to a pending civil suit in federal court, so long as process for persons intended to be used as witnesses by his adversary had not been issued, could legally induce all such persons to conceal themselves or otherwise evade service of process. But that such acts, if successful, would impede and obstruct the administration of justice, is quite apparent”).

inducing witness not under subpoena not to testify was actionable as an obstruction under the statute: "In the absence of a federal statute of the scope of this clause, a party to a pending civil suit in federal court, so long as process for persons intended to be used as witnesses by his adversary had not been issued, could legally induce all such persons to conceal themselves or otherwise evade service of process. But that such acts, if successful, would impede and obstruct the administration of justice, is quite apparent"


Context: Pl.'s Dep. 228:15-21. Given the lack of corroboration of the alleged oral precondition, as well as the plaintiffs own testimony, at both his deposition and in his affidavit, acknowledging that, as a manager, he was no longer subject to union protection, the plaintiffs recollection of an oral precondition, without more, is insufficient to create a genuine issue of material fact on which a reasonable jury could conclude that the plaintiffs at-will employment was specially conditioned for him to receive the graduated warnings prior to termination to which union members were entitled.

observing that when a "declaration is self-serving and uncorroborated," it is "of little value at the summary judgment stage"

See Burley, 801 F.3d at 298-99, 2015 WL 5474078, at *6 (finding that plaintiffs observations, without more, were insufficient to defeat summary judgment for employer); see also Turner v. Shinseki, 824 F.Supp.2d 99, 118 (D.D.C.2011) (“[W]hen considering a summary judgment motion ‘the Court need not rely on any conclu-sory allegations unsupported by factual [evidence].’ ”) (quoting Harris v. Wack-enhut Servs., Inc., 648 F.Supp.2d 53, 58 (D.D.C.2009)) (latter alteration in the original); Gen. Elec. Co. v. Jackson, 595 F.Supp.2d 8, 36 (D.D.C.2009) (observing that when a “declaration is self-serving and uncorroborated,” it is “of little value at the summary judgment stage”); Fields v. Office of Johnson, 520 F.Supp.2d 101, 105 (D.D.C.2007) (“Self-serving testimony does not create genuine issues of material fact, especially where that very testimony suggests that corroborating evidence should be readily available.”); Clampitt v. Am. Univ., 957 A.2d 23, 37 (D.C.2008) (finding plaintiff could not “avoid summary judgment” with claimed oral agreement regarding term of employment since “the inferences she asked the court to draw had to be based on more than speculation” and “[s]he was not entitled to avoid summary judgment by merely asserting that the jury might, and legally could, disbelieve the defendants” since “ ‘the mere possibility of disbelief is not enough to avoid summary judgment.


"Self-serving testimony does not create genuine issues of material fact, especially where that very testimony suggests that corroborating evidence should be readily available."


Context: As is readily apparent from the analysis quoted above, the Wilder Court made perfectly clear that in concluding that "there can be little doubt that healthcare providers are the intended beneficiaries of the Boren Amendment," it was relying on the language in the Boren Amendment requiring a state plan to provide for "payment of the hospital services, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan."

"Wilder concluded that institutional providers were intended beneficiaries of the Boren Amendment because the Amendment concerned their reimbursement."

See Ark. Med. Soc’y, Inc. v. Reynolds, 6 F.3d 519, 526 (8th Cir.1993) (“Wilder concluded that institutional providers were intended beneficiaries of the Boren Amendment because the Amendment concerned their reimbursement.”); see also Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 925 (5th Cir.2000) (“[T]he [Wilder] Court concluded that there was little doubt that the providers were the intended beneficiaries of the Boren Amendment because it established a system for reimbursement of providers and was phrased in terms bene-fitting health care providers, in that it required a state plan to provide for their payment.”) (internal quotations and alterations omitted); Visiting Nurse Ass’n of N. Shore, Inc. v. Bullen, 93 F.3d 997, 1004 (1st Cir.1996) (“The Wilder Court ... observed that the statute ‘is phrased in terms benefitting health care providers,’ and ... then proceeded to illustrate how the plain language of the Boren Amendment ‘establishes a system for reimbursement of providers.’ ”) (emphasis omitted).

"The Wilder Court ... observed that the statute 'is phrased in terms benefitting health care providers,' and ... then proceeded to illustrate how the plain language of the Boren Amendment 'establishes a system for reimbursement of providers.' "


Context: These cardholders have no other realistic source of information regarding this litigation. Thus, in light of the cardholders' dependence on defendants for their future credit needs and information, this Court finds that Chase's and Citibank's actions are potentially coercive and improper.

"[A] finding of potential coercion is warranted here," because "the potential class members depend upon the defendant for information, supplies, and credit."

See Ralph Oldsmobile, 2001 WL 1035132, at *4 (“[A] finding of potential coercion is warranted here,” because “the potential class members depend upon the defendant for information, supplies, and credit.”); see also Kleiner, 751 F.2d at 1203 (“Unsupervised, unilateral communications with the plaintiff class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided presentation of the facts, without opportunity for rebuttal.”); Hampton Hardware, 156 F.R.D. at 633 (noting that because the defendant and potential class members were involved in an on-going business relationship, there was a potential for coercion).

"Unsupervised, unilateral communications with the plaintiff class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided presentation of the facts, without opportunity for rebuttal."


noting that because the defendant and potential class members were involved in an on-going business relationship, there was a potential for coercion


Context: We do so, however, because Fulwood is entitled to qualified immunity for each of the claims in Redmond's complaint. Accordingly, we need not and do not reach the question of whether Fulwood is entitled to absolute immunity for actions taken during his tenure as Chairman of .the United States Parole Commission.

"Because we conclude that the [Parole Commission] defendants are entitled to qualified immunity, we do not address the issue of absolute immunity."

See Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C. Cir. 2012) (“Because we conclude that the [Parole Commission] defendants are entitled to qualified immunity, we do not address the issue of absolute immunity.”); see also Radtke v. Caschetta, 822 F.3d 571, 573 n.2 (D.C. Cir. 2016) (“[W]e are free to affirm the lower court on alternative grounds.”) (citing RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043, 1045 n.2 (D.C. Cir. 2012)).

"[W]e are free to affirm the lower court on alternative grounds."


Context: Under this rule, an expert may express an opinion based on inadmissible hearsay evidence so long as that evidence is of the type reasonably relied on by experts in the particular field. Here, Blum's report and, especially, the supporting documents are the kind of evidence on which a forensic chemist reasonably relies in forming an opinion on the composition of a particular substance.

under rule 703, "[i]t is quite reasonable for a chemist to review another chemist's analysis when forming an opinion as to the veracity of the latter's test results"

See Reardon v. Manson, 806 F.2d 39, 42 (2d Cir.1986) (upholding admission of drug composition testimony by supervising toxicologist who based his opinion on results of tests, including chromatography and spectrophotometry, performed by subordinates), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987); see also United States v. Posey, 647 F.2d 1048, 1051 (10th Cir.1981) (under rule 703, “[i]t is quite reasonable for a chemist to review another chemist’s analysis when forming an opinion as to the veracity of the latter’s test results”).


Context: Kearney does not point to any evidence sufficient to create a genuine factual question as to whether the defendants' explanation is a pretext for discrimination. That some of the candidates had blemishes on their redore! of that Kearney feels that the selection process should have produced a different result does not show the falsity of the proffered nondiscriminatory reason for the promotion decisions.

"The employer need not prove that the person promoted had superior objective qualifications, or that it made the wisest choice, but only that the reasons for the decision were nondiscriminatory."

See Davis v. State Univ. of N.Y., 802 F.2d 638, 641 (2d Cir.1986) (“The employer need not prove that the person promoted had superior objective qualifications, or that it made the wisest choice, but only that the reasons for the decision were nondiscriminatory.”); see also Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir.2001) (stating that a material factual issue can be created only in a situation not present here — where “the plaintiffs credentials [are] so superior to the credentials of the person selected for the job that ‘no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.’ ”).

stating that a material factual issue can be created only in a situation not present here -- where "the plaintiffs credentials [are] so superior to the credentials of the person selected for the job that 'no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.' "


Context: The Appellants raised this argument in the context of their general contention that they were entitled to summary judgment based on official immunity.

"Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task."

See Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994) (“The doctrine of official immunity... provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.”) (citations omitted); see also Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010) (“Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.”) (citations omitted); Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 482 (2) (614 SE2d 761) (2005) (“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”) (citation and punctuation omitted).

"The doctrine of official immunity... provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority."


"A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty."


Context: Based upon the foregoing, we reverse the final judgment as to the trial court's $20,000 valuation of the tools and remand the case for further proceedings as to this issue.

holding that the trial court erred in valuing the wife's jewelry at $10,000 and distributing that amount to her as part of her share of marital assets where the only testimony as to the value of the jewelry came from the husband and concluding that the husband's "unsupported opinion as to the value of the jewelry that was not definitively described is not sufficient to warrant the distribution of that amount to the wife"

See Lassett v. Lassett, 768 So.2d 472, 474 (Fla. 2d DCA 2000) (holding that the trial court erred in valuing the wife’s jewelry at $10,000 and distributing that amount to her as part of her share of marital assets where the only testimony as to the value of the jewelry came from the husband and concluding that the husband’s “unsupported opinion as to the value of the jewelry that was not definitively described is not sufficient to warrant the distribution of that amount to the wife”); see also Justice v. Justice, 80 So.3d 405, 407-10 (Fla. 1st DCA 2012) (noting that the former wife’s financial affidavit reflected that the parties owned $10,000 worth of jewelry and that she testified regarding “each piece of jewelry and its value” and “each piece of furniture and household item,” holding that the trial court erred in failing to distribute the parties’ furniture and jewelry, and explaining that because the parties presented evidence as to the identity and value of the furniture and jewelry “it seems there is sufficient evidence for the trial court to make this determination”).

noting that the former wife's financial affidavit reflected that the parties owned $10,000 worth of jewelry and that she testified regarding "each piece of jewelry and its value" and "each piece of furniture and household item," holding that the trial court erred in failing to distribute the parties' furniture and jewelry, and explaining that because the parties presented evidence as to the identity and value of the furniture and jewelry "it seems there is sufficient evidence for the trial court to make this determination"


rejecting the husband's argument that the assignment of $10,000 worth of furniture and furnishings was unsupported by competent evidence where the wife introduced photographs of the furniture and her financial affidavit valued the furniture at $10,000

Cf. Noone v. Noone, 727 So.2d 972, 974-75 (Fla. 5th DCA 1998) (rejecting the husband’s argument that the assignment of $10,000 worth of furniture and furnishings was unsupported by competent evidence where the wife introduced photographs of the furniture and her financial affidavit valued the furniture at $10,000).


Context: CDN may eventually be entitled to a return of excess or unclaimed funds. See Six Mex.

Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1308 (9th Cir.1990) (“Reversion to the defendant may be appropriate when deterrence is not a goal of the statute or is not required by the circumstances.”); cf. Williams v. MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir.1997) (per curiam) (assuming that when absent class members do not have a calculable interest in unclaimed money, the balance of a fund is returned to defendants). The district court, however, has entered an order providing that it will await the running of the statute of limitations on the filing of individual suits against CDN before calculating any distribution of excess and unclaimed funds.

"Reversion to the defendant may be appropriate when deterrence is not a goal of the statute or is not required by the circumstances."


Context: The prosecution, noting in its brief that the instruction was "perhaps ill-advised" and may have been "overstated," virtually concedes that the district court's instruction was erroneous. The prosecution does not dispute that although ignorance of the law is generally not a defense, there are important exceptions.

ignorance of the law may be an excuse where legislation criminalizes "wholly passive" conduct by a person who is "unaware of any wrongdoing"

See, e.g., Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (conviction under statute prohibiting food stamp fraud requires proof that the accused knew his use was unauthorized); Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (conviction for failing to register as a felon requires proof of knowledge of obligation to register); cf. United States v. Holland, 810 F.2d 1215, 1222-23 (D.C.Cir.) (ignorance of the law may be an excuse where legislation criminalizes “wholly passive” conduct by a person who is “unaware of any wrongdoing”), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987).


conviction for failing to register as a felon requires proof of knowledge of obligation to register


Context: "Showup identification procedures that occurred within temporal and geographic proximity to the crime have generally not been found to be unduly suggestive."

Warren, 2008 WL 4960454, at *23 (holding that a show-up identification that occurred less than ninety minutes after the commission of the crime and within one mile of the crime scene was not unnecessarily suggestive because of its close temporal and geographic proximity to the crime); see also Bautista, 23 F.3d at 730 (affirming admission of on-scene show-up identification finding that “[t]he fact that the suspects were handcuffed, in the custody of law enforcement officers, and illuminated by flashlights also did not render the pretrial identification procedure unnecessarily suggestive”); Charlemagne v. Goord, 05-CV-9890, 2008 WL 2971768, at *15 (S.D.N.Y.

affirming admission of on-scene show-up identification finding that "[t]he fact that the suspects were handcuffed, in the custody of law enforcement officers, and illuminated by flashlights also did not render the pretrial identification procedure unnecessarily suggestive"


Context: Although this contention may be correct, it misses the point. Shore does not seek to hold the federal agencies vicariously liable for the torts of the independent contractors; rather, it imputes primary negligence to the federal agencies in the selection of the contractor, a viable theory under the Act.

See Logue v. United States, supra, 412 U.S. at 532-33, 93 S.Ct. at 2222 (government not liable for negligence of employees of independent contractors, but remand to determine if federal employee was negligent); cf. Aretz v. United States, 604 F.2d 417, 428-30 (5th Cir.1979) (employment of independent contractor does not insulate government from liability for its own employees’ acts of negligence that occur in connection with the work of the independent contractor).

employment of independent contractor does not insulate government from liability for its own employees' acts of negligence that occur in connection with the work of the independent contractor


Context: P 19. Fortier makes it clear that, under Vermont law, a jury may find a self-service store liable in a slip-and-fall case based on the store's failure to take reasonable steps to address a foreseeable hazard -- even if the plaintiff is unable to demonstrate precisely how long the dangerous condition existed.

"it would be unjust to saddle the plaintiff with the burden of isolating the precise failure"

See 128 Vt. 393-95, 264 A.2d at 799-800. This point is made explicit in Wollerman, 221 A.2d at 515 (“it would be unjust to saddle the plaintiff with the burden of isolating the precise failure”), the case we relied upon in Fortier, and in many decisions from other states.

evidence of store's failure to inspect premises within reasonable period of time is sufficient to allow jury to infer that dangerous condition was present long enough for store to have opportunity to discover and remedy condition

See, e.g., Cobb, 661 P.2d at 76 (notwithstanding plaintiff’s inability to show defendant’s actual or constructive knowledge of hazardous condition caused by grapes on floor, jury could infer that store failed to take reasonable steps to address known hazard); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983) (even in absence of evidence showing store’s actual or constructive knowledge of spilled substance, jury could find store liable based on evidence tending to show store’s failure to take reasonable steps to protect customers from known hazard posed by self-service grape display); cf. Ortega v. Kmart Corp., 36 P.3d 11, 13-14 (Cal. 2001) (evidence of store’s failure to inspect premises within reasonable period of time is sufficient to allow jury to infer that dangerous condition was present long enough for store to have opportunity to discover and remedy condition); Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846, 848 (Me. 1995) (plaintiff need not prove that store had notice of specific condition giving rise to plaintiffs injury as long as plaintiff can establish that store was aware of recurrence of hazardous condition on premises). Of course, as we explain below, plaintiff retains the ultimate burden of proving that defendant was negligent in failing to respond adequately to a foreseeable hazard; however, that burden does not necessarily entail proving how long the hazardous condition existed.


plaintiff need not prove that store had notice of specific condition giving rise to plaintiffs injury as long as plaintiff can establish that store was aware of recurrence of hazardous condition on premises


notwithstanding plaintiff's inability to show defendant's actual or constructive knowledge of hazardous condition caused by grapes on floor, jury could infer that store failed to take reasonable steps to address known hazard


even in absence of evidence showing store's actual or constructive knowledge of spilled substance, jury could find store liable based on evidence tending to show store's failure to take reasonable steps to protect customers from known hazard posed by self-service grape display


Context: See generally Utah R. Civ. P. 11. On August 26, 1991, the trial court granted the Kurzets' partial summary judgment motion, dismissing Bailey-Alien's mechanics' lien cause of action. Bailey-Alien then filed a Motion for Reconsideration of the Order Dismissing the Mechanie[s'] Lien Claim, which the court later denied. Bailey-Alien did not seek appellate review of the trial court's denial of their reconsideration motion.

See Ross v. Schackel, 920 P.2d 1159, 1161 (Utah 1996) (reviewing appellate court jurisdiction over appeal from denial of motion to reconsider); cf. Arnica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct.App.1989) (“If Schettler believed the trial court erred in denying his first motion to set aside the default judgment, the appropriate remedy was by direct appeal_”).

"If Schettler believed the trial court erred in denying his first motion to set aside the default judgment, the appropriate remedy was by direct appeal_"


Context: As for whether the breach must be material to the transaction, we need not address this argument because the case at hand satisfied any such requirement. The very reason bribes were paid to the adjusters was to obtain favorable results in settlements. The insurance companies, acting as reasonable entities, were bound to have considered the fact that their employees had a financial interest in settling cases to be important information with respect to those settlements.

holding, in a case involving falsified insurance claims, that "the government needed to prove only that [defendant] employed a deceptive scheme intending to prevent the insurer from determining for itself a fair value of recovery"

See United States v. Dinome, 86 F.3d 277, 280 (2d Cir.1996) (affirming jury instruction charging that a representation was material if “a reasonable person might have considered [it] important in making a decision”); see also United States v. Rodolitz, 786 F.2d 77, 80-81 (2d Cir.1986) (holding, in a case involving falsified insurance claims, that “the government needed to prove only that [defendant] employed a deceptive scheme intending to prevent the insurer from determining for itself a fair value of recovery”).

affirming jury instruction charging that a representation was material if "a reasonable person might have considered [it] important in making a decision"


Context: This is the test urged upon us by Parks, and endorsed by a panel of the Eighth Circuit. Under the "alternative avenues" test, a title of an expressive work will not be protected from a false advertising claim if there are sufficient alternative means for an artist to convey his or her idea.

See Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397, 402 (8th Cir.1987) (creator of parody tee-shirts not protected by First Amendment because he could still produce parody editorials in books, magazines, or film); Am. Dairy Queen Corp. v. New Line Prods., Inc., 35 F.Supp.2d 727, 734 (D.Minn.1998) (no First Amendment protection for an infringing movie title because there were other titles the producers could use); cf. Anheuser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769, 776 (8th Cir.1994) (First Amendment protection not available to parodist because the confusing trademark use was “wholly unnecessary” to the parodist’s stated purpose).

First Amendment protection not available to parodist because the confusing trademark use was "wholly unnecessary" to the parodist's stated purpose


no First Amendment protection for an infringing movie title because there were other titles the producers could use


Context: The federal government's immunity from state and local taxation is based upon the Supremacy Clause, U.S. Const. Art. VI, el. 2, and is therefore absolute.

noting that the Supreme Court has adopted a broad reading of "the Supremacy Clause, viewing all state taxes on federal entities as insults to national sovereignty and impermissible burdens on federal operations"

See United States v. Delaware, 958 F.2d 555, 558 (3d Cir.1992) (noting that the Supreme Court has adopted a broad reading of “the Supremacy Clause, viewing all state taxes on federal entities as insults to national sovereignty and impermissible burdens on federal operations”); see also United States v. New Mexico, 455 U.S. 720, 733, 102 S.Ct. 1373, 71 L.Ed.2d 580 (1982) (noting that “the Court has never questioned the propriety of absolute federal immunity from state taxation”); United States v. City of Columbia, 914 F.2d 151, 153 (8th Cir.1990) (“Unlike the states’ immunity from federal taxation, which is somewhat limited, the United States’ immunity from state taxation is a ‘blanket immunity.’ ”) (citation omitted).

noting that "the Court has never questioned the propriety of absolute federal immunity from state taxation"


"Unlike the states' immunity from federal taxation, which is somewhat limited, the United States' immunity from state taxation is a 'blanket immunity.' "


Context: The extent to which the benefits administrator must exercise discretion in the discharge of his duties is likewise a significant factor in determining a question of ERISA preemption because it is indicative of the complexity of the benefit program.

"The determination of what constitutes an ERISA plan thus turns most often on the degree of an employer's discretion in administering the plan."

See O’Connor, 251 F.3d at 267 (“The determination of what constitutes an ERISA plan thus turns most often on the degree of an employer’s discretion in administering the plan.”); Bogue, 976 F.2d at 1323 (ruling that a plan requiring “case-by-case, discretionary application” of the terms required an administrative scheme, and thus brought the benefits plan within the scope of ERISA even though the term of the employer’s obligation to pay was short and the number of participants was small); see also Rodowicz, 192 F.3d at 171; Belanger, 71 F.3d at 455 (holding benefit program that entailed a “purely mechanical determination of eligibility” and did not require any discretionary judgment on the part of the administrator was not an ERISA plan).

holding benefit program that entailed a "purely mechanical determination of eligibility" and did not require any discretionary judgment on the part of the administrator was not an ERISA plan


ruling that a plan requiring "case-by-case, discretionary application" of the terms required an administrative scheme, and thus brought the benefits plan within the scope of ERISA even though the term of the employer's obligation to pay was short and the number of participants was small


Context: Such a threat is considered especially substantial when the administrative agency "ha[s] not disavowed enforcement if [the plaintiffs] make similar statements in the future." Moreover, the threat need not stem from a criminal action: "[A]dminis-trative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review."

noting that the threat of administrative proceedings was "a substantial one" but declining to "decide whether that threat standing alone gives rise to an Article III injury"

SBA List, 134 S.Ct. at 2345 (noting that the threat of administrative proceedings was “a substantial one” but declining to “decide whether that threat standing alone gives rise to an Article III injury”); see also Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 625-26 n. 1, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (“If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not.”).

"If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not."


Context: Many courts have used the rationale of Lockett to uphold prosecutorial comment on the lack of evidence supporting a defendant's theory of the case when the defendant does not testify.

prosecutor's remarks that government's evidence was uncontra-dicted reversible error where only defendant could have testified to contrary

But see Raper v. Mintzes, 706 F.2d 161, 166 (6th Cir.1983) (prosecutor’s remarks that government’s evidence was uncontra-dicted reversible error where only defendant could have testified to contrary). Other decisions have upheld the propriety of such remarks under similar reasoning.

prosecutor's comments not improper if invited by defense counsel's argument

See United States v. Burnett, 890 F.2d 1233, 1241-42 (D.C.Cir.1989) (prosecutor’s comments not improper if invited by defense counsel’s argument); United States v. Percy, 765 F.2d 1199, 1204 (4th Cir.1985) (prosecutor’s characterization of state’s evidence as “unrefuted and unrebutted” not error); Bontempo v. Fenton, 692 F.2d 954, 958-59 (3d Cir.1982) (prosecutor’s comments on absence of facts in record supporting defendant’s theory not violative), cert. denied, 460 U.S. 1055, 103 S.Ct. 1506, 75 L.Ed.2d 935 (1983); Butler v. Rose, 686 F.2d 1163, 1171-72 (6th Cir.1982) (prosecutorial commentary not error where defense counsel told jury he expected defendant to give exculpatory testimony).


prosecutor's characterization of state's evidence as "unrefuted and unrebutted" not error


prosecutor's comments on absence of facts in record supporting defendant's theory not violative


prosecutorial commentary not error where defense counsel told jury he expected defendant to give exculpatory testimony


Context: Because of the imminent threat of a serious conflict, disqualification would have been appropriate here even before any proceedings began.

granting motion to disqualify in virtually identical case because of "high potential for conflicting loyalties"

See Shadid v. Jackson, 521 F.Supp. 87, 88-90 (E.D.Tex.1981) (granting motion to disqualify in virtually identical case because of “high potential for conflicting loyalties”).

disqualification appropriate when conflict will taint a trial by affecting attorney's presentation of a case

Cf. Armstrong v. McAlpin, 625 F.2d 433, 444-46 (2d Cir.1980) (en banc) (disqualification appropriate when conflict will taint a trial by affecting attorney’s presentation of a case), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981).


Context: Having dismissed Plaintiffs' complaint, the district court acted within its discretion in granting Defendants' application for attorneys' fees. The district court properly concluded that Plaintiffs' claims were objectively unreasonable, "as the profound dissimilarity between their works and Heroes was indeed 'obvious.' " Given this conclusion, the district court did not abuse its discretion granting Defendants' application for attorneys' fees.

approving of the district court's consideration of a party's "objective unreasonableness" when exercising discretion in award-' ing attorneys' fees under the Copyright Act

See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (approving of the district court’s consideration of a party’s “objective unreasonableness” when exercising discretion in award-' ing attorneys’ fees under the Copyright Act); see also Matthew Bender & Co. v. West Publ'g Co., 240 F.3d 116, 121 (2d Cir.2001) (“Subsequent to FogeHy, several other circuits have accorded the objective reasonableness factor substantial weight in determinations whether to award attorneys’ fees”).

"Subsequent to FogeHy, several other circuits have accorded the objective reasonableness factor substantial weight in determinations whether to award attorneys' fees"


Context: . When pendant jurisdiction extends to joined state-law claims, federal courts still retain discretion not to exercise it. For example, when state claims substantially predominate the federal court may decline to hear those claims.

Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130 ("if it appears that the state issues substantially predominate ... the state claims may be ... left for resolution to state tribunals”); see § 1367(c)(2). Moreover, if the claim on which federal jurisdiction was founded has been dismissed, the court may, in its discretion, dismiss the state law claims as well. Gibbs, 383 U.S. at 726, 86 S.Ct. 1130 ("if the federal claims are dismissed before trial ... the state claims should be dismissed as well."); see § 1367(c)(3). Thus, if pendant jurisdiction here had extended to plaintiff’s remaining state claims, and if no other independent basis for jurisdiction was found, then remand of the claims would have been appropriate, particularly in light of the efficiencies to be gained by returning this action to state court where the other individual actions against Stepan have been consolidated for the purposes of discovery. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).

"if it appears that the state issues substantially predominate ... the state claims may be ... left for resolution to state tribunals"


Context: Even if the phrase were ambiguous, both Jones and the government agree that they intended Jones to be sentenced to the lowest number in the applicable Guideline range. In light of the evidence of the parties' intent before the district court at the sentence hearing, the court clearly erred when it imposed a sentence contrary to that unified intent.

noting that we look to the parties' intent in construing an ambiguous plea agreement

See Copeland, 381 F.3d at 1105-06 (noting that we look to the parties’ intent in construing an ambiguous plea agreement); United States v. Yesil, 991 F.2d 1527, 1532-33 (11th Cir.1992) (reversing where the district court failed to follow the terms of the plea agreement); see also United States v. Vallejo, 463 Fed.Appx. 849, 852 (11th Cir.2012) (noting that, if a plea agreement was ambiguous, it would be error for a court to impose a sentence contrary to the intent of the parties to the agreement because the defendant “would not have reasonably understood ... that the Court was going to override the terms of the plea agreement it had already accepted”).

noting that, if a plea agreement was ambiguous, it would be error for a court to impose a sentence contrary to the intent of the parties to the agreement because the defendant "would not have reasonably understood ... that the Court was going to override the terms of the plea agreement it had already accepted"


reversing where the district court failed to follow the terms of the plea agreement


Context: We agree with defendant that, on the record here, the court committed plain error in imposing attorney fees in the absence of evidence that defendant "is or may be able" to pay them.

See State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) (the burden is on the state to prove that a defendant is or may be able to pay costs, and it is plain error to impose such costs in the absence of evidence of ability to pay); see also State v. Brown, 272 Or App 321, 355 P3d 129 (2015) (concluding that the trial court committed plain error under similar circumstances).


Context: Turner cited Bell with approval and did not at any point suggest that Bell's approach to Fourth Amendment claims should no longer be controlling law. This Court will not disregard controlling Supreme Court precedent that has not been specifically overruled by subsequent Supreme Court cases.

holding that Turner did not "cast doubt on" the Court's previous holding that strict scrutiny applies to racial classifications in prisons

See Powell, 541 F.3d at 1302 (declining to apply the Turner test to custodial strip searches on this ground); cf. Johnson v. California, 543 U.S. 499, 509-10, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (holding that Turner did not “cast doubt on” the Court’s previous holding that strict scrutiny applies to racial classifications in prisons). Like the many courts that have addressed the constitutionality of custodial strip searches, this Court is guided by Bell and its progeny-


Context: Both before and after Kovacevich, we have issued several opinions saying that we must address the sovereign-immunity issue first.

"We must therefore address the jurisdictional [Eleventh Amendment] question that clearly exists, even though it was not addressed by the court below."

See, e.g., Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir.2002) (“We must therefore address the jurisdictional [Eleventh Amendment] question that clearly exists, even though it was not addressed by the court below.”); Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler, 304 F.3d 616, 618 (6th Cir.2002) (stating that “jurisdictional issues,” including an Eleventh Amendment defense, must “be addressed prior to reaching the merits”); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir.2002) (“As a threshold matter, we must determine whether the Treasurer and the Administrator are entitled to Eleventh Amendment immunity.”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 570 (6th Cir. 2000) (“We first address Defendants’ Eleventh Amendment immunity defense because this defense raises a question of federal jurisdiction.”); Wells v. Brown, 891 F.2d 591, 592-93 (6th Cir.1989) (“We are required to decide [the Eleventh Amendment] issue before we decide the merits.”); Childs v. Koosed, No. 90-3449, 1991 WL 33133, at *4 (6th Cir. Mar.13, 1991) (“In view of the District Court’s disposition of the claims on eleventh amendment grounds, the District Court was without jurisdiction to make the alternative ruling on the merits.”); see also Haas v. Quest Recovery Servs., Inc., 338 F.Supp.2d 797, 799 (N.D.Ohio 2004) (“Although Ohio couches its Eleventh Amendment argument as an alternative basis for dismissal, the Court addresses jurisdictional arguments first.”).

"Although Ohio couches its Eleventh Amendment argument as an alternative basis for dismissal, the Court addresses jurisdictional arguments first."


stating that "jurisdictional issues," including an Eleventh Amendment defense, must "be addressed prior to reaching the merits"


"As a threshold matter, we must determine whether the Treasurer and the Administrator are entitled to Eleventh Amendment immunity."


"We first address Defendants' Eleventh Amendment immunity defense because this defense raises a question of federal jurisdiction."


"We are required to decide [the Eleventh Amendment] issue before we decide the merits."


"In view of the District Court's disposition of the claims on eleventh amendment grounds, the District Court was without jurisdiction to make the alternative ruling on the merits."


Context: Finally, he admonished the jury to find the defendant guilty of those crimes. The remark, "the community enforces the law, you represent the community, you decide," was not improper in this context.

reasoning even if the district court failed to sustain an objection to the single improper use of a word, defendants' substantial rights would not have been so affected as to deprive them of a fair trial

See United States v. Lopez, 414 F.3d 954, 960 (8th Cir.2005) (reasoning even if the district court failed to sustain an objection to the single improper use of a word, defendants’ substantial rights would not have been so affected as to deprive them of a fair trial).

finding a plea to the jury to be the conscience of the community is not impermissible unless it is calculated to inflame, and an appeal to the jury to be the "public's last shield" did not "exceed permissible bounds of advocacy"

United States v. Lewis, 547 F.2d 1030, 1036-37 (8th Cir.1976) (finding a plea to the jury to be the conscience of the community is not impermissible unless it is calculated to inflame, and an appeal to the jury to be the “public’s last shield” did not “exceed permissible bounds of advocacy”). This single remark by the prosecutor did not prejudice Levering’s right to a fair trial.


Context: As to the plaintiffs' retention argument, an employer replaces an employee by hiring or reassigning someone "to perform the plaintiffs duties." In considering the charge that the defendant reassigned younger employees to perform the plaintiffs' duties, "the relevant inquiry concerns the functions which the terminated employee[s] performed in [their] 'position[s]' and what happened to those functions after the termination."

employee "not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work"

Shenker v. Lockheed Sanders Inc., 919 F.Supp. 55, 60 (D.Mass.1996). Accordingly, the plaintiffs must demonstrate “that younger employees, who prior to the reduction in force were not performing the primary functions of the plaintiff[s’] job[s], had these functions transferred to them.” Id.; see LeBlanc, 6 F.3d at 846 (employee “not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work”); see also Hindman v. Transkrit Corp., 145 F.3d 986, 992 (8th Cir.1998) (ADEA plaintiff “effectively replaced by many individuals adopting his duties may still be able to establish that he was the object of impermissible discrimination related to his age”).

ADEA plaintiff "effectively replaced by many individuals adopting his duties may still be able to establish that he was the object of impermissible discrimination related to his age"


Context: Appellees merely stated they did not make misrepresentations to Hoagland in Texas regarding the business transaction made the basis of the captioned case. We conclude these statements are unsupported factual and legal conclusions.

holding nonresident's statement that he had committed no torts in Texas was properly excluded as conclusory

See Ennis, 164 S.W.3d at 703-04 (affirming trial court’s exclusion of nonresident’s statements that he did not have a substantial connection with Texas, plaintiffs’ claims did not result from and were not related to any of affiant’s activities in Texas, affiant did not have any continuing or systematic contacts with Texas, and affiant did not commit any tort in Texas); see also Wright, 137 S.W.3d at 250 n. 8 (holding nonresident’s statement that he had committed no torts in Texas was properly excluded as conclusory).

affirming trial court's exclusion of nonresident's statements that he did not have a substantial connection with Texas, plaintiffs' claims did not result from and were not related to any of affiant's activities in Texas, affiant did not have any continuing or systematic contacts with Texas, and affiant did not commit any tort in Texas


Context: Here, the defendant was charged with scheduled violations, yet the State sought to have him sentenced to jail on the basis it had proved he committed nonscheduled simple misdemeanors. Because the defendant had no notice he was being charged with the greater offenses, he clearly did not have constitutionally sufficient notice of the charges against him.

holding procedural due process requires that "[t]he charge must be known before the proceedings commence"

See In re Matter of Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968) (holding procedural due process requires that “[t]he charge must be known before the proceedings commence”); State v. Hibler, 5 S.W.3d 147, 150 (Mo.1999) (“Due process requires that a defendant may not be convicted of an offense not charged in the information or indictment.”); cf. State v. Dellinger, 79 S.W.3d 458, 467 (Tenn.2002) (finding no due process violation when defendant given pretrial notice of prosecution’s intent to seek enhanced sentence and of factual basis for enhancement).

finding no due process violation when defendant given pretrial notice of prosecution's intent to seek enhanced sentence and of factual basis for enhancement


"Due process requires that a defendant may not be convicted of an offense not charged in the information or indictment."


Context: Given the unusually intrusive nature of computer searches, confirmation of the validity of third-party consent is worth the additional time and effort even during the pressures of arrest and investigation.

where "property to be searched is a computer hard drive, the particularity requirement [for search warrants] assumes even greater importance" because the "potential for privacy violations ... is enormous"

See United States v. Ganias, 824 F.3d 199, 231 (2d Cir. 2016) (Chin, J., dissenting) (“Virtually the entirety of a person’s life may be captured as [computer] data.”); United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009) (“[C]omputers are capable of storing immense amounts of information and often contain a great deal of private information.”); cf. United States v. Galpin, 720 F.3d 436, 446-47 (2d Cir. 2013) (where “property to be searched is a computer hard drive, the particularity requirement [for search warrants] assumes even greater importance” because the “potential for privacy violations ... is enormous”).

"[C]omputers are capable of storing immense amounts of information and often contain a great deal of private information."


Context: Oregon appellate courts have not previously considered the issue youth now raises -- i.e., whether the award of restitution in a juvenile delinquency proceeding is "civil" or "penal" in nature. In the adult criminal context, though, the Supreme Court has held restitution to be a sentencing device, not a "quasi-civil recovery device."

See State v. Dillon, 292 Or 172, 180, 637 P2d 602 (1981) (analyzing the penal nature of ORS 137.103 to 137.109 (1977)); see also State v. Hart, 299 Or 128, 138-39, 699 P2d 1113 (1985) (analyzing whether the same restitution statutes entitled the defendant to a jury trial).


Context: (Ex. A to Horbatiuk Aff. at LINA 1242.) Plaintiff did not receive the ACF until discovery, despite earlier requests for his entire claim file, and defendant has not attempted to show that the ACF complied with the amendment rule.

holding in the alternative that the ACF was unenforceable because it was "neither attached to nor endorsed on the policy"

See Francis, 2011 WL 4102143, at *4 (holding in the alternative that the ACF was unenforceable because it was "neither attached to nor endorsed on the policy”); see also Heim v. Life Ins. Co. of N. Am., No Civ.A. 10-1567, 2010 WL 5300537, at *2 (E.D.Pa. Dec. 22, 2010) (finding ACF not a plan document where it was not attached to the policy or part of the claim file plaintiff was provided).


Context: The McFadden Court, which dealt with the federal Analogue Act, interpreted the scienter mandate as to controlled-substance analogues as meaning that the government must show that the defendant either knew that the substance was a controlled-substance analogue regardless of his .knowledge of its identity, or knew that it satisfied the specific statutory prerequisites making it a controlled substance analogue. Those prerequisites include a substantially similar chemical structure to that of a scheduled controlled substance.

Id.; see also Hoffman Estates, 455 U.S. at 499 & n.14, 102 S.Ct. at 1193 & n.14 (reciting that the Supreme Court “has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that- his conduct is proscribed,” and citing cases); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331-32, 96 L.Ed. 367 (1952) (indicating that a “knowingly” mens rea requirement “does much to destroy any force in the argument” that enforcement of the regulation in question would violate due process on vagueness grounds); United States v. Novak, 841 F.3d 721, 728-29 (7th Cir. 2016) (summarizing the McFadden scienter analysis, including the mandate that the government prove the accused knew the chemical structure was substantially similar to that of a scheduled controlled substance); cf. Tiplick v. State, 43 N.E.3d 1259, 1265 (Ind. 2015) (relying on an express scienter requirement in rejecting a vagueness challenge to a counterfeit-controlled-substance statute).

reciting that the Supreme Court "has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that- his conduct is proscribed," and citing cases


indicating that a "knowingly" mens rea requirement "does much to destroy any force in the argument" that enforcement of the regulation in question would violate due process on vagueness grounds


summarizing the McFadden scienter analysis, including the mandate that the government prove the accused knew the chemical structure was substantially similar to that of a scheduled controlled substance


Context: The degree of authority granted to Puerto Rico to regulate its local affairs is very different from Congress's exclusive powers over the District of Columbia, the other territory excluded by SS 101(52) from authorizing its municipalities under SS 109(c)(2) of the Bankruptcy Code.

"If the government of Puerto Rico were nothing other than the alter ego or imme diate servant of the federal government, then the dormant Commerce Clause doctrine would have no pertinence, for a doctrine designed to safeguard federal authority against usurpation has no role when the federal government itself is effectively the actor."

See Trailer Marine Transp. Corp., 977 F.2d at 8 (“If the government of Puerto Rico were nothing other than the alter ego or imme diate servant of the federal government, then the dormant Commerce Clause doctrine would have no pertinence, for a doctrine designed to safeguard federal authority against usurpation has no role when the federal government itself is effectively the actor.”); cf. Palmore v. United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973) (“Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes.”); Berman v. Parker, 348 U.S. 26, 31, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (“The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs.”).

"Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes."


"The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs."


Context: In order to create a valid contract, the parties must come to a "meeting of the minds."

See McHan, 101 F.3d at 1034 (holding that defendant must demonstrate meeting of the minds in order to establish existence of immunity agreement); United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983) (holding that cooperation agreement defendant entered into with the government did not include defendant’s testifying at trial where there was no meeting of the minds as to that point); cf. United States v. Barnes, 83 F.3d 934, 938 (7th Cir.) (“When the government proposes a plea agreement, when the defendant accepts it and when the district court enforces it, there must be a meeting of minds on all of its essential terms.”), cert. denied, 117 S.Ct. 156, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996); United States v. Robison, 924 F.2d 612, 613 (6th Cir.1991) (holding that there can be no plea agreement without a meeting of the minds).

"When the government proposes a plea agreement, when the defendant accepts it and when the district court enforces it, there must be a meeting of minds on all of its essential terms."


holding that there can be no plea agreement without a meeting of the minds


holding that cooperation agreement defendant entered into with the government did not include defendant's testifying at trial where there was no meeting of the minds as to that point


Context: This is because any reliance on post-1995 amended portions of chapter 51 did not inordinately burden the Bairs' property "apart from the law, rule, regulation, or ordinance being amended." SS 70.001(12). Rather, the reliance on those amended portions of chapter 51 was part of the City's overall decision to require compliance with the 50 percent Rule, a rule that was enacted prior to May 11, 1995. Because the City established that there was no genuine issue of. material fact regarding whether section 70.001(12) applied, the burden shifted to the Bairs to prove that there was- a genuine issue of material fact regarding whether the application of any newly amended sections of chapter 51 imposed an inordinate burden on their real property.

noting that plaintiff who brought Bert Harris Act claim had burden of proving that town's actions constituted inordinate burden on plaintiffs vested right to use its property

See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (explaining that once a movant for summary judgment has met its burden of proving that no genuine issue of material fact exists, the burden shifts to the nonmovant to prove that such an issue does exist); Pelz v. City of Clearwater, 568 So.2d 949, 951 (Fla. 2d DCA 1990) (citing DeMesme v. Stephenson, 498 So.2d 673, 675 (Fla. 1st DCA 1986), for the same proposition); see also Town of Ponce Inlet v. Pacetta, LLC, 120 So.3d 27, 29 (Fla. 5th DCA 2013) (noting that plaintiff who brought Bert Harris Act claim had burden of proving that town’s actions constituted inordinate burden on plaintiffs vested right to use its property).


Context: The decision to admit or exclude opinion testimony generally involves the routine exercise of discretion by the trial court under, among other rules, ER 401, 403, 701, 702 and 704. These rules govern evidentiary questions that do not necessarily implicate constitutional rights.

See State v. Trader, 54 Wn. App. 479, 484, 774 P.2d 522 (contention that admission of polygraph evidence violated defendant's "right to a fair trial" insufficient to invoke RAP 2.5(a)(3)), review denied, 113 Wn.2d 1027 (1989); see also Wilber, 55 Wn. App. at 299 (erroneous admission of expert testimony under ER 702 is not of constitutional magnitude); State v. Chase, 59 Wn. App. 501, 508, 799 P.2d 272 (1990) (errors under ER 403 are not of constitutional magnitude and cannot be raised under RAP 2.5(a)).


errors under ER 403 are not of constitutional magnitude and cannot be raised under RAP 2.5(a


Context: Specifically, Shanks alleges that Defendants' ban on motorcycles infringes upon his fundamental rights of interstate and intrastate travel. The Supreme Court has long recognized a fundamental right to interstate travel.

stating that "[t]his Court long ago recognized that ... our constitutional concepts of personal liberty ... require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement."

See Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1328-29, 22 L.Ed.2d 600 (1969) (stating that “[t]his Court long ago recognized that ... our constitutional concepts of personal liberty ... require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”); see also United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 1177, 16 L.Ed.2d 239 (1966) (stating that “the constitutional right to travel from one state to another ... occupies a position fundamental to the concept of our Federal Union.”).

stating that "the constitutional right to travel from one state to another ... occupies a position fundamental to the concept of our Federal Union."


Context: Courts in the Sixth Circuit have also declined to apply the first-to-file rule when a declaratory judgment action is filed before a coercive action involving the same parties and issues.

"A plaintiff, even one who files first, does not have a right to bring a declaratory judgment action in the forum of his choosing."

AmSouth Bank, 386 F.3d at 791 (“In any case, the first-to-file rule is not a strict rule and more often than not gives way in the context of a coercive action filed subsequent to a declaratory action.”); see also Zide, 16 Fed. Appx. at 437 (“A plaintiff, even one who files first, does not have a right to bring a declaratory judgment action in the forum of his choosing.”); UAW v. Dana Corp., 1999 WL 33237054 at *6 (N.D.Ohio 1999) (“Cases construing the interplay between declaratory judgment actions and suits based on the merits of underlying substantive claims create, in practical effect, a presumption that a first filed declaratory judgment action should be dismissed or stayed in favor of the substantive suit”).

"In any case, the first-to-file rule is not a strict rule and more often than not gives way in the context of a coercive action filed subsequent to a declaratory action."


"Cases construing the interplay between declaratory judgment actions and suits based on the merits of underlying substantive claims create, in practical effect, a presumption that a first filed declaratory judgment action should be dismissed or stayed in favor of the substantive suit"


Context: For purposes of determining a spouse's ability to pay, and for purposes of calculating an appropriate amount of periodic alimony, the trial court should ordinarily use the spouse's net income as the starting point for these evaluations.

evaluating the responding spouse's ability to pay based on the responding spouse's net income

See Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990) (evaluating the responding spouse’s ability to pay based on the responding spouse’s net income); see also J.D.A. v. A.B.A., 142 So.3d 603, 614 (Ala.Civ.App.2013) (“Because ... the trial court implicitly relied ... on the wife’s erroneous estimation of the husband’s net monthly income, we reverse the periodic-alimony award and remand the cause to the circuit court to reconsider the alimony award.”); Kiel v. Kiel, 51 So.3d 1058, 1068 (Ala.Civ.App.2010) (using the responding spouse’s net income as the basis for evaluating the financial impact that the alimony payment would have); Wheeles v. Wheeles, 770 So.2d 635, 637 (Ala.Civ.App.2000) (reversing the trial court’s judgment that required the husband to pay $1,150 in alimony because the judgment “eripple[d] him financially,” leaving him with $80 per month after his living expenses and court-ordered financial obligations, including periodic alimony, were deducted from “[h]is net income”); and Rubert v. Rubert, 709 So.2d 1283, 1285 (Ala.Civ.App.1998) (holding that the trial court exceeded its discretion because its judgment created financial obligations for the husband that, after deducting the wife’s periodic-alimony award from the husband’s net income, exceeded his remaining income).

"Because ... the trial court implicitly relied ... on the wife's erroneous estimation of the husband's net monthly income, we reverse the periodic-alimony award and remand the cause to the circuit court to reconsider the alimony award."


using the responding spouse's net income as the basis for evaluating the financial impact that the alimony payment would have


reversing the trial court's judgment that required the husband to pay $1,150 in alimony because the judgment "eripple[d] him financially," leaving him with $80 per month after his living expenses and court-ordered financial obligations, including periodic alimony, were deducted from "[h]is net income"


holding that the trial court exceeded its discretion because its judgment created financial obligations for the husband that, after deducting the wife's periodic-alimony award from the husband's net income, exceeded his remaining income


Context: We conclude that they were not. Instead, we find that, as in Hyder, the assignments at issue specifically provide for the allocation of post-production costs based on the manner in which the royalty is taken--in-kind or in cash. In particular, the plain language of the assignments unambiguously provides that, when the royalty is taken in cash and the minerals are sold at an arm's-length sale, as here, the royalty is based on the "amount realized" by Burlington from the sale, and is therefore free of post-production costs.

" 'Proceeds' or 'amount realized' clauses require measurement of the royalty based on the amount the lessee in fact receives under its sales contract for the gas."

See Hyder, 483 S.W.3d at 873 (noting, with respect to the 25% gas royalty owed to the Hyders, that “the price-received basis for payment in the lease is sufficient in itself to excuse the lessors from bearing post[-]production costs,” and that such a clause is often referred to as a “proceeds lease”); see also Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 699 (Tex. 2008) (“ ‘Proceeds’ or ‘amount realized’ clauses require measurement of the royalty based on the amount the lessee in fact receives under its sales contract for the gas.”); Occidental Permian Ltd. v. Helen Jones Found., 333 S.W.3d 392, 399 (Tex. App.—Amarillo 2011, pet. denied) (“ ‘Amount realized’ means the proceeds received from the sale of gas or oil.”).

noting, with respect to the 25% gas royalty owed to the Hyders, that "the price-received basis for payment in the lease is sufficient in itself to excuse the lessors from bearing post[-]production costs," and that such a clause is often referred to as a "proceeds lease"


Context: In November 2005, the case law from this Court and the Supreme Court was ambiguous concerning whether asking demonstrators to remove such signs would be an impermissible infringement of their First Amendment rights. For example, there was no clear holding concerning whether such restrictions might be deemed content-based or content-neutral, a sometimes difficult and thorny question.

See Turner Broad. Sys. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“Deciding whether a particular regulation is content based or content neutral is not always a simple task.”); see also Ovadal v. City of Madison, Wis., 469 F.3d 625, 630 (7th Cir.2006) (noting the fine distinction between a restriction to alleviate traffic concerns that is content-neutral if due to the distracting presence of pro testers with such signs, but content-based if the message was what angered and distracted drivers).

"Deciding whether a particular regulation is content based or content neutral is not always a simple task."


Context: Furthermore, the plaintiffs cannot connect any of their losses to E & Y on a materialization of the risk theory, whether those losses purportedly arose out of the 6/30/99 AOL Opinion or out of any other allegedly false audit opinions. In each of the cases in which the Second Circuit has employed a materialization of the risk analysis, it has considered a particular risk that was allegedly concealed by the defendant's actions and which then materialized to cause a market loss.

See Lattanzio, 476 F.3d at 157-58 (risk of impending bankruptcy was not concealed by audit opinion); Lentell, 396 F.3d at 177 (risk of stock volatility was not concealed by “buy” and “accumulate” recommendations); Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 343 F.3d 189, 197-98 (2d Cir.2003) (risk of defendants’ “dumping” their own shares of company stock was concealed by failure to reveal previous “pump and dump” schemes by the defendants); Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 97-98 (2d Cir.2001) (risk of liquidity crisis was concealed by edited background report omitting important negative events in executive’s financial and business history); see also In re Initial Public Offering Sec. Litig. (“In re IPO II”), 399 F.Supp.2d 298, 308-09 (S.D.N.Y.2005) (risk that a complicated scheme misled the public as to the true value of securities failed to materialize to cause the plaintiffs’ losses).

risk that a complicated scheme misled the public as to the true value of securities failed to materialize to cause the plaintiffs' losses


risk of stock volatility was not concealed by "buy" and "accumulate" recommendations


risk of defendants' "dumping" their own shares of company stock was concealed by failure to reveal previous "pump and dump" schemes by the defendants


risk of liquidity crisis was concealed by edited background report omitting important negative events in executive's financial and business history


Context: However, on the present record, it is not clear from Shaw's and Gimbel's attested contentions that the information in Documents Nos. 16 and 32 exclusively contain deliberative communications. Although an evidentiary inference to this effect could arguably be made on the existing record, given the facts that the Department identified Document No. 16 as a "briefing memorandum" of summarized information; Gimbel's relatively lengthy affidavit states that Document No. 32 includes an attachment and concerns a "draft public notice" and "draft report;" and the Department conducted environmental analysis of Perki-omen Creek's water quality, it is equally plausible that Documents Nos. 16 and 32 contain qualitative or statistical data that can be severed from the deliberative portions of those documents.

"Where the evidence of record equally supports two inconsistent inferences, it proves neither."

See Commonwealth v. Borrin, 12 A.3d 466, 475 (Pa.Super.2011) (en banc), aff'd 622 Pa. 422, 80 A.3d 1219 (2013) (“Where the evidence of record equally supports two inconsistent inferences, it proves neither.”).

concluding that the predecisional deliberation exception was not established where the agency failed to "submit sufficient proof to show that all communications with any other government officials are 'deliberative' than factual in nature."

See also Carey, 61 A.3d at 379-80 (concluding that the predecisional deliberation exception was not established where the agency failed to “submit sufficient proof to show that all communications with any other government officials are ‘deliberative’ than factual in nature.”). Therefore, we vacate the OOR’s determination, in part, and, in light of the ambiguous nature of the current record and Requester’s previous request for in camera review, we remand to the OOR for in camera review to determine whether Documents Nos. 16 and 32 contain severable information that is purely factual.


Context: Some courts use the term "deficit spending" to describe debtors who are living beyond their means and suggest that substantial abuse is indicated anytime a debtor exhibits "deficit spending." These courts reason that substantial abuse exists anytime a debtor's expenses exceed income on the statement of income and expenses, for two reasons: (1) a debtor should live within means by spending only that earned each month and (2) because one cannot spend more than earnings, "deficit spending" indicates that the debtor is misrepresenting the financial picture to the court.

See In re Wray, 136 B.R. 122 (Bankr.W.D.Pa.1992) (substantial abuse indicated where the debtors, in their statement of income and expenses, described monthly expenses which exceeded their net monthly income by $1,364); In re Cook, 110 B.R. 544 (Bankr.N.D.Okl.1990) (substantial abuse indicated where the debtors’ statement of income and expenses showed more monthly expenses than monthly income); In re Roth, 108 B.R. 78 (Bankr.W.D.Pa.1989) (substantial abuse indicted where the debtors had spent substantially more than they earned during the two years preceding bankruptcy); In re Hudson, 64 B.R. 73 (Bankr.N.D.Ohio 1986) (substantial abuse indicated where the expense figures on the debtor’s statement of income and expenses exceeded the income figures, indicating "deficit spending”).

But see In re Tefertiller, 104 B.R. 513 (Bankr.N.D.Ga.1989) (substantial abuse not indicated where the debtors monthly expenses exceeded their monthly income).


substantial abuse indicated where the debtors' statement of income and expenses showed more monthly expenses than monthly income


substantial abuse indicted where the debtors had spent substantially more than they earned during the two years preceding bankruptcy


substantial abuse indicated where the expense figures on the debtor's statement of income and expenses exceeded the income figures, indicating "deficit spending"


Context: Because disbarment is the most severe sanction, however, it must be established by clear and convincing evidence that the misappropriation of client funds was knowing, and not merely negligent.

See People v. Galindo, 884 P.2d 1109, 1112 (Colo.1994) (lawyer suspended rather than disbarred where it was not established that respondent’s conversion of funds was knowing or intentional); see also In re Barlow, 140 N.J. 191, 657 A.2d 1197, 1200 (1995) (to disbar lawyer for misappropriation of client funds, supreme court must be able to conclude by clear and convincing evidence that misappropriation was knowing).

lawyer suspended rather than disbarred where it was not established that respondent's conversion of funds was knowing or intentional


Context: Under the first prong of the Teli-gent test, a movant seeking to modify a protective order must establish "improvidence in the grant of the order or some extraordinary circumstance or compelling need."

affirming denial of motion to modify protective order on the" basis that movant "had not shown a compelling need or extraordinary circumstances necessary to modify the protective order"

Teligent, 640 F.3d at 59 (quoting SEC v. TheStreet.com, 273 F.3d 222, 229 (2d Cir.2001)); see Iridium India Telecom Ltd. v. Motorola, Inc., 165 Fed.Appx. 878, 880 (2d Cir.2005) (affirming denial of motion to modify protective order on the” basis that movant “had not shown a compelling need or extraordinary circumstances necessary to modify the protective order”); Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir.1979) (holding that a protective order granted pursuant to Federal Rule of Civil Procedure 26(c) should not be modified “absent a showing of improvidence” in the grant of the order “or some extraordinary circumstance or compelling need”); see also Dandong, 2012 WL 4793870, at *5 (“When courts in [the Second Circuit] determine that a party has relied on a protective order, it is very difficult for movants to modify that order.”); TheStreet.com, 273 F.3d at 229 (noting the “strong presumption against the modification of a protective order”).

noting the "strong presumption against the modification of a protective order"


holding that a protective order granted pursuant to Federal Rule of Civil Procedure 26(c


Context: Based on this statement, one might assume that plaintiff was a citizen of California prior to his incarceration, in which ease complete diversity still exists. However, in light of the fact that there is a presumption against diversity jurisdiction and the burden is upon the one asserting it to affirmatively sustain it, the Court is not satisfied that diversity jurisdiction exists based solely on the inference that plaintiffs citizenship for diversity purposes prior to incarceration was California.

"We start with the presumption against diversity jurisdiction, and the burden is and always has been upon the one asserting it to affirmatively sustain it."

Bradbury v. Dennis, 310 F.2d 73, 74 (10th Cir.1962) (“We start with the presumption against diversity jurisdiction, and the burden is and always has been upon the one asserting it to affirmatively sustain it.”), cert. denied, 372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d 733 (1963); see also Weiszmann v. Kirkland and Ellis, 732 F.Supp. 1540, 1547 (D.Colo.1990) (J. Babcock) (stating that since federal courts are of limited jurisdiction, there is a presumption against existence of diversity jurisdiction); Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir.1972) (stating that the basis for federal court jurisdiction must be clearly evident on the face of the complaint).


stating that the basis for federal court jurisdiction must be clearly evident on the face of the complaint


Context: Despite the fact that the Moransais court explicitly limited its holding to the claim of professional negligence, courts interpreting Florida's economic loss doctrine since Moransais appear to disagree over whether the economic loss doctrine bars breach of fiduciary duty claims after Mor-ansais.

See Excess Risk, 208 F.Supp.2d at 1316 (economic loss rule barred breach of fiduciary duty claim because party had not alleged facts independent from the contract); Medalie v. FSC Sec. Corp., 87 F.Supp.2d 1295 (S.D.Fla.2000)(economic loss rule barred plaintiffs breach of fiduciary duty claims); Hilliard v. Black, 125 F.Supp.2d 1071 (N.D.Fla.2000)(economic loss rule does not bar claim of breach of fiduciary duty where breach of fiduciary duty claim was independent of breach of contract claim); but see Performance Paint Yacht Refinishing, Inc. v. Haines, 190 F.R.D. 699, 701 (S.D.Fla.1999)(reject-ing argument that economic loss doctrine barred breach of fiduciary duty claim even though breach of fiduciary duty claim may be dependent on breach of contract claim); Invo Fla. Inc. v. Somerset Venturer, Inc., 751 So.2d 1263, 1267-68 (Fla. 3d DCA 2000)(eeonomic loss rule does not bar claim of breach of fiduciary duty because breach of fiduciary duty is a well-established tort claim); First Equity Corp. of Florida, Inc. v. Watkins, 1999 WL 542639, *1 (Fla. 3d DCA, July 28,1999)(“We think the Moran-sais opinion makes it quite clear that the economic loss rule has not abolished the cause of action for breach of fiduciary duty, even [if] there is an underlying oral or written contract,”)(quoted in Crowell, 87 F.Supp.2d 1287).


eeonomic loss rule does not bar claim of breach of fiduciary duty because breach of fiduciary duty is a well-established tort claim


economic loss rule barred plaintiffs breach of fiduciary duty claims


economic loss rule does not bar claim of breach of fiduciary duty where breach of fiduciary duty claim was independent of breach of contract claim


Context: The asserted collusive agreement or relationship between Koch's counsel and the sheriff, if it existed, would surely entitle Koch to relief. However, Koch has at best set forth conclusory allegations of such a collusive agreement or relationship. Aside from Koch's deduction from the asserted instances of errors by his counsel at trial, the totality of which we concluded above failed to establish a valid ineffective assistance claim, Koch does not suggest any basis whatever to support his allegations of counsel conflict. Although pro se habeas petitions must be construed liberally, "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue."

Woods, 870 F.2d at 288 n. 3; see Ross v. Estelle, 694 F.2d 1008, 1011—12 & n. 2 (5th Cir.1983) (refusing to hold evidentiary hearing based on petitioner’s bare assertions of ineffective assistance); cf. Russell, 892 F.2d at 1213-14 (concluding that petitioner failed to allege facts of actual conflict of interest warranting habeas relief and, therefore, refusing to remand for evidentiary hearing on that claim).

refusing to hold evidentiary hearing based on petitioner's bare assertions of ineffective assistance