Context: It appears to us from the record in this case that the Court of Federal Claims erred in finding that it had no jurisdiction to entertain arguments that were not directly based on a money-mandating statute. Claimants in the Court of Federal Claims may argue issues based on violations of the Constitution or of a statute or regulation to support their claims for monetary relief under money-mandating statutes.

Holley, 124 F.3d at 1467 (holding that the Court of Federal Claims had jurisdiction to decide an alleged due process violation related to his claim for damages under a money-mandating statute); see also Trek Leasing, Inc. v. United States, 62 Fed.Cl. 673, 677-78 (2004) (holding that the Court of Federal Claims had pendant jurisdiction over a state law contract claim that was part of the same case as a claim over which the Court of Federal Claims had jurisdiction pursuant to 28 U.S.C. § 1498(b)).

holding that the Court of Federal Claims had pendant jurisdiction over a state law contract claim that was part of the same case as a claim over which the Court of Federal Claims had jurisdiction pursuant to 28 U.S.C. SS 1498(b


Context: Here, Plaintiff was questioned on two separate occasions concerning whether he would testify in his former coworkers employment discrimination lawsuit. Plaintiff responded, apparently on both occasions, that he would "tell the truth" if subpoenaed. While Plaintiffs statements in December 2007 do not satisfy the causal connection requirement, as Plaintiffs shift change did not occur until November 2009, Plaintiffs statement in August 2009 does suffice to show a causal link.

finding that "a time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes"

See, e.g., Evans v. City of Houston, 246 F.3d 344, 355 (5th Cir.2001) (finding that “a time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes”) (internal citations omitted); see also Weeks v. NationsBank, N.A., 2000 WL 341257, at *3 (N.D.Tex. Mar. 30, 2000) (citing Garrett v. Constar Inc., 1999 WL 354239, at *5 (N.D.Tex. May 25, 1999)); Stroud v. BMC Software, Inc., — Fed. Appx. -, 2008 WL 2325639 (5th Cir. June 6, 2008) (finding that a three-week lapse between protected activity and adverse employment action was sufficient to show a causal link); Richard v. Cingular Wireless LLC, 233 Fed.Appx. 334, 338 (5th Cir.2007) (concluding that two-and-one-half months is short enough to support an inference of a causal link).


concluding that two-and-one-half months is short enough to support an inference of a causal link


Context: Section 1983 does not provide relief for all constitutional injuries only for those injuries caused by persons who are state actors or acting "under color" of state law. The ".under color" of law requirement of SS 1983 has been viewed in the same manner as the "state action" requirement of the Fourteenth Amendment.

United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966) (In § 1983 claims, as in Fourteenth Amendment claims, the question is whether the infringement of rights is attributable to the state); See also Lugar v. Edmondson Oil Company, 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 483 (1982) (state action and under color of law are obviously related even if not completely identical).

In SS 1983 claims, as in Fourteenth Amendment claims, the question is whether the infringement of rights is attributable to the state


Context: Moreover, if a petition sufficiently alleges a claim pursuant to Section 853(n), the burden of demonstrating a petitioner's ownership of or right, title, or interest in property included in a preliminary order of forfeiture is "ultimately on the petitioner to prove ... by a preponderance of the evidence," rather than on the government.

"The petitioner bears the burden of proving his right, title, or interest under SS 853(n

Pacheco, 393 F.3d at 351; United States v. Nava, 404 F.3d 1119, 1125 (9th Cir.2005) (“The petitioner bears the burden of proving his right, title, or interest under § 853(n)(6).”). Thus, had their petition survived the government’s motion, the Watts Petitioners would have the burden of establishing by a preponderance of the evidence that they have a superior interest in the Subject Funds pursuant to Section 853(n), which they cannot do.

"An ancillary proceeding is evidently the only avenue for a post-indictment third-party claim to forfeited property ...."

See De Almeida, 459 F.3d at 381 (“An ancillary proceeding is evidently the only avenue for a post-indictment third-party claim to forfeited property ....”) (emphasis in original); see also 21 U.S.C. § 853(k)(1) (“[N]o party claiming an interest in property subject to forfeiture ... may intervene in a trial or appeal of a criminal case involving the forfeiture of such property....”).


Context: The court finds no compelling reason to exercise its supplemental jurisdiction and determines in the interest of comity and federalism that plaintiffs remaining state law claims be heard in state court.

See Boone v. Carlsbad Bancorp., Inc., 972 F.2d 1545, 1559 (10th Cir.1992) (district court did not abuse its discretion in declining to exercise supplemental jurisdiction over pendant state law claims where it dismissed federal securities and RICO claims before trial); Urban v. King, 834 F.Supp. 1328, 1334 (D.Kan.1993) (court granted summary judgment on plaintiffs federal claims and declined to exercise jurisdiction over state law claims); Dow v. Terramara, Inc., 835 F.Supp. 1299 (D.Kan.1993) (same); Smith v. Walsh, 833 F.Supp. 844, 853 (W.D.Okla.1993) (same); Taliaferro v. Voth, 774 F.Supp. 1326, 1333 (D.Kan.1991) (same); see also Bonger v. American Water Works, 789 F.Supp. 1102, 1107-08 (D.Colo. 1992) (court declined to exercise jurisdiction over state statutory claim where it granted summary judgment in favor of defendant on plaintiffs Title VII claim).


court granted summary judgment on plaintiffs federal claims and declined to exercise jurisdiction over state law claims


Context: This inadmissible evidence from Dr. Stuemky, Dr. Tremaine, and Ms. Amlin magnified the impact of these errors on the members in a case where the panel requested clarifying instructions from the judge and deliberated on findings for almost six hours. Each evidentiary error was significant, and together they denied Appellant a fair trial.

See Birdsall, 47 M.J. at 410 (plain error for expert to act as human lie detector); United States v. Garza, 608 F.2d 659, 664-66 (5th Cir.1979)(it was plain error for the prosecutor to “testify” as an expert witness and opine in closing argument as to the guilt or innocence of the accused); but see United States v. Waldman, 310 F.3d 1074, 1078 (8th Cir.2002)(where there was substantial evidence of guilt, no plain error for expert to opine that accused “had an intent to kill a policeman”).

where there was substantial evidence of guilt, no plain error for expert to opine that accused "had an intent to kill a policeman"


it was plain error for the prosecutor to "testify" as an expert witness and opine in closing argument as to the guilt or innocence of the accused


Context: Further, Plaintiffs dissatisfaction with Harley I, that is, what he perceives to be a dramatic undercutting of ERISA's protection of defined benefit plans from fiduciary breach, is insufficient to survive summary judgment. The Eighth Circuit Court of Appeals noted that its standing "decision does not insulate a fiduciary who invests the assets of an overfunded defined benefit plan from liability to the plan for breach of the duty to invest prudently."

"[29 U.S.C. SS 1132(a)] itself demonstrates Congress' care in delineating the universe of plaintiffs who may bring certain civil actions."

Harley I, 284 F.3d at 908 n. 5. Even though most fiduciaries who breach their statutory obligations to overfunded defined benefit plans are effectively immunized from liability, the Secretary of Labor and plan fiduciaries can seek redress for a breach of a fiduciary duty that is owed to an overfunded defined benefit plan, that is, they have standing to sue under 29 U.S.C. § 1132(a)(2). Id.; see also McBride v. PLM Int'l, Inc., 179 F.3d 737, 742 (9th Cir.1999) (stating that 29 U.S.C. § 1132(a)(2) only allows a civil action to be brought by a participant, a beneficiary, a fiduciary or the Secretary of Labor); Tex. Life, Accident, Health & Hosp. Serv. Ins. Guar. Ass’n v. Gaylord Entm’t Co., 105 F.3d 210, 214 (5th Cir.1997) (stating that only the Secretary of Labor, participants, beneficiaries or fiduciaries of plans may bring suit under 29 U.S.C. § 1109); cf. Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 247, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) (“[29 U.S.C. § 1132(a)] itself demonstrates Congress’ care in delineating the universe of plaintiffs who may bring certain civil actions.”).

stating that only the Secretary of Labor, participants, beneficiaries or fiduciaries of plans may bring suit under 29 U.S.C. SS 1109


Context: Neisler does not gain any ground by seeking relief under Title III of the ADA, a theory that he specifically mentions for the first time on appeal. That title prohibits discrimination by places of public accommodation; it does not cover claims of employment discrimination.

concluding that "Title I specifically, comprehensively, and exclusively addresses disability discrimination in employment"

See 42 U.S.C. § 12182(a); Menkowitz v. Pottstown Mem’l Med. Center, 154 F.3d 113, 118-19 (3d Cir.1998) (“[I]t is evident that Congress sought to regulate disability discrimination in the area of employment exclusively through Title I, notwithstanding the broad language of Title III.”); see also Brumfield, 735 F.3d at 628 (concluding that “Title I specifically, comprehensively, and exclusively addresses disability discrimination in employment”). Moreover, because Title III permits only injunctive relief for a person in Neisler’s position, and he now works in another prison job, any claim seeking an accommodation related to the stockman position would be moot. See Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342 (8th Cir.2006).

"[I]t is evident that Congress sought to regulate disability discrimination in the area of employment exclusively through Title I, notwithstanding the broad language of Title III."


Context: Because the limitation on remedies found in the Circuit City arbitration agreement significantly undermines Title VII's remedial purpose of making victims of discrimination whole and its deterrent purposes of forcing employers to eliminate and prevent discriminatory practices in the workplace, we hold that the provision at issue in this case was not enforceable.

holding that "federal statutory claims are arbitrable only when arbitration can serve the same remedial and deterrent functions as litigation, and an agreement that limits the remedies available cannot adequately serve those functions"

See Paladino, 134 F.3d at 1062 (noting that the arbitrability of discrimination “claims rests on the assumption that the arbitration clause permits relief equivalent to court remedies”) (emphasis added); Trumbull v. Century Mktg. Corp., 12 F.Supp.2d 683, 688 (N.D.Ohio 1998) (holding that an arbitration clause was unenforceable because it prohibited an award of punitive damages, which was available to the plaintiff under Title VII); cf. Perez, 253 F.3d at 1286 (holding that “federal statutory claims are arbitrable only when arbitration can serve the same remedial and deterrent functions as litigation, and an agreement that limits the remedies available cannot adequately serve those functions”).

noting that the arbitrability of discrimination "claims rests on the assumption that the arbitration clause permits relief equivalent to court remedies"


holding that an arbitration clause was unenforceable because it prohibited an award of punitive damages, which was available to the plaintiff under Title VII


Context: Dismissal of Chaudry's claims against defendant Whispering Ridge Homeowners Association was proper because federal courts are required to abstain from interfering with pending state court proceedings.

See Gilbertson v. Albright, 381 F.3d 965, 975 (9th Cir.2004) (listing the requirements for Younger abstention and explaining- that the doctrine applies to actions for equitable relief); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (states have an important interest in enforcing the orders and judgments of their courts).


Context: P 16. The third factor is the actor's good faith. We have stated that the good-faith factor "is relevant only to the question of whether the converter intended to exercise dominion over the property."

See Beall Transp. Equip. Co., 64 P.3d at 1197 (reaffirming that good faith may be considered as factor in determining whether alleged tortfeasor is liable for conversion); see also Trickey, 933 P.2d at 536 (citing intent and good faith as relevant factors in determining whether conversion occurred); Kendall/Hunt Publ’g Co. v. Rowe, 424 N.W.2d 235, 247 (Iowa 1988) (applying good-faith factor).

"Specific intent to convert, that is, knowledge that the property is owned by another, is not required for liability in tort."

O’Brien, 160 Vt. at 300, 629 A.2d at 329. That comment, however, was part of a discussion rejecting good faith as a complete defense to liability. Id. at 299, 629 A.2d at 329 (“Specific intent to convert, that is, knowledge that the property is owned by another, is not required for liability in tort.”). Other jurisdictions applying the Restatement factors have rejected good faith as a defense to a conversion claim but considered it as a factor in determining whether a defendant so seriously interfered with another’s property that the defendant may justly be required to pay the full value of the property.


Context: This rule requires that a party alleging bias or prejudice must first file an affidavit in the trial court.

See Ebbert v. Ebbert, 744 P.2d 1019, 1023 (Utah App.1987) (affidavits regarding bias or prejudice not admitted before the trial court will not be considered on appeal); see also Haslam v. Morrison, 113 Utah 14, 190 P.2d 520, 523 (1948) (the issue of bias or prejudice is a matter to be determined by the trial court “in the first instance,” subject to appellate review); Utah Code of Judicial Conduct, Cannon 3(C)(1) (providing examples of potential grounds for disqualification).

the issue of bias or prejudice is a matter to be determined by the trial court "in the first instance," subject to appellate review


Context: However, it is clear that the district court here had constitutional jurisdiction under Article III of the Constitution to adjudicate this criminal case.

noting that purported defense counsel's "memorandum blithely ignored 18 U.S.C. SS 3231 which explicitly vests federal district courts with jurisdiction over 'all offenses against the laws of the United States' "

See Bond v. United States, 564 U.S. 211, 217, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (reversing the Third Circuit’s holding that a criminal defendant lacked standing to raise a Tenth Amendment challenge to a federal statute because any rights under the Tenth Amendment accrued not to the defendant but to the states, and holding that the defendant-appellant’s “challenge to her conviction and sentence ‘satisfies the case- or-controversy requirement, because the incarceration .., constitutes a concrete injury, caused by the conviction and redress-able by invalidation of the conviction.’” (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998))). And it is equally patent that the court possessed statutory jurisdiction under 18 U.S.C. § 3231. See, e.g., United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (noting that purported defense counsel’s “memorandum blithely ignored 18 U.S.C. § 3231 which explicitly vests federal district courts with jurisdiction over ‘all offenses against the laws of the United States’ ”); United States v. Tony, 637 F.3d 1153, 1158 (10th Cir. 2011) (“The district court had jurisdiction. 18 U.S.C. § 3231.”); cf. United States v. DeVaughn, 694 F.3d 1141, 1146, 1153 (10th Cir. 2012) (rejecting the view that “a charging document’s failure to state an offense affects a federal court’s jurisdiction,” and noting that “[a] claim that a criminal statute is unconstitutional [as applied to the defendant] does not implicate a court’s subject matter jurisdiction”).

rejecting the view that "a charging document's failure to state an offense affects a federal court's jurisdiction," and noting that "[a] claim that a criminal statute is unconstitutional [as applied to the defendant] does not implicate a court's subject matter jurisdiction"


Context: In this case it is thus not necessary to decide whether case studies, clinical experience, inductive reasoning and anecdotal evidence can be combined to form a proper foundation for an' opinion on causation, because, regardless, the information these sources provided did not adequately support Dr. Maltsberger's opinion.

issue was not general reasonableness of expert's methodology, but reasonableness of using this approach to draw particular conclusion

See also Kumho Tire, 526 U.S. at 158-54, 119 S.Ct. 1167 (issue was not general reasonableness of expert’s methodology, but reasonableness of using this approach to draw particular conclusion); Heller, 167 F.3d at. 159 (expert conclusion must “fit” or reliably flow from the data and methodology).

See Joiner, 522 U.S. at 144, 118 S.Ct. 512 (issue was not whether expert opinion could be supported by animal studies, but whether expert opinion could be sufficiently supported by animal studies that were substantially dissimilar to the facts).


Context: Hammons cites the State's failure to produce expert or lay testimony concerning the bat's deadliness as fatal to its case in chief. As we have previously noted, expert testimony is no longer a prerequisite to a deadliness finding.

See also Denham, 574 S.W.2d at 132 (whether opinion evidence is required to prove a knife is a deadly weapon depends on the evidence in each case) (Davis, J., concurring in part and dissenting in part).

See id. (one who observes and receives wound from butcher knife is capable of testifying that the knife is a deadly weapon causing death or serious bodily injury); Jackson, 668 S.W.2d at 724-25 (analysis of club as deadly weapon made by comparison to cases involving knives).


Context: Even assuming that appellant's request was ambiguous, it was the magistrate's duty to clarify that request and ascertain appellant's true desires.

Castillo v. State, 742 S.W.2d 1, 4-5 (Tex.Crim.App.1987) (after pulling out business card and showing it to detective, appellant was taken back to judge who questioned accused about desire to make a statement); Russell v. State, 727 S.W.2d 573 (Tex.Crim.App.1987) (when accused’s desires are related in equivocal manner, interrogating officers not required to cease interview but must ask specific questions aimed at discovering accused’s true desire).

Sixth Amendment principles impute the State's knowledge from one state actor to another.

See and compare, Michigan v. Jackson, 106 S.Ct. at 1410 (Sixth Amendment principles impute the State’s knowledge from one state actor to another.). Otherwise, the right to appointed counsel prior to or during custodial interrogation is rendered meaningless.


when accused's desires are related in equivocal manner, interrogating officers not required to cease interview but must ask specific questions aimed at discovering accused's true desire


Context: Soto argues that a hard 50 sentencing error is not subject to harmless error review because tire court applied a preponderance of the evidence standard when considering tire existence of aggravated circumstances, and the findings of fact were never found beyond a reasonable doubt, as Alleyne requires.

See State v. Spain, 263 Kan. 708, 714, 953 P.2d 1004 (1998) (concluding that although K.S.A. 21-4635(c) specifies no particular standard of proof, statute implicitly requires judge to apply preponderance of evidence standard when finding aggravating circumstances); see also State v. Nelson, 291 Kan. 475, 487-88, 243 P.3d 343 (2010) (clarifying standard of proof for finding aggravating circumstances is preponderance of evidence rather than beyond reasonable doubt).


Context: In cases where a defendant has complained about a definition that was given, although we have spoken of "this circuit's rule against elaborating on the meaning of 'reasonable doubt' ..." And although we have sometimes found error in such situations, we have not reversed on this ground alone.

declaring as "frivolous" claim that it was error to give pattern jury instruction "approved" in Moss after request by jury

See United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985) (holding the unsolicited giving of the following definition to be harmless error: “proof of such a convincing character that you would be willing to rely upon it without hesitation in your most important affairs of your own” [sic]); Murphy v. Holland, 776 F.2d 470, 475-78 (4th Cir.1985) (finding harmless error in unsolicited definition), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986); Love, 767 F.2d at 1060 (finding no plain error in unsolicited instruction); but see United States v. Russell, 971 F.2d 1098, 1108 (4th Cir.1992) (declaring as “frivolous” claim that it was error to give pattern jury instruction “approved” in Moss after request by jury), cert. denied, — U.S. -, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993).

holding the unsolicited giving of the following definition to be harmless error: "proof of such a convincing character that you would be willing to rely upon it without hesitation in your most important affairs of your own" [sic]


Context: The Financial Institutions call Lead Plaintiff's interpretation of O'Hagan a "gross misreading," leading to a result that is contrary to the Fifth Circuit's ruling in this action. O'Hagan involved an appeal of a criminal conviction for insider trading, not imposition of civil liability in a private action under SS 10(b). The Supreme Court did not address the reliance element at all because, unlike in a private cause of action, it does not apply to criminal cases.

See, e.g., U.S. v. Haddy, 134 F.3d 542, 549 (3d Cir.1998) (holding that reliance is not an element of the crime of stock manipulation), cert. denied, 525 U.S. 827, 119 S.Ct. 75, 142 L.Ed.2d 59 (1998); see also S.E.C. v. Tambone, 550 F.3d 106, 129-30 (1st Cir.2008) (and cases cited therein) (unlike in a private action, reliance, economic loss, and loss causation are not elements that must be proven in an SEC enforcement action).


Context: Since waiver can be found by implication, it is wholly reasonable to take into consideration such factors as status, that is, the sophistication and other defining and relevant characteristics.

"the determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)(“the determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”); see AT & T V, 307 F.3d at 1380 (sophisticated contractor AT & T waived right to complain about fixed-price term of contract because it never sought price adjustment clause during negotiation phase).


Context: Based on the foregoing, it is arguable the directed verdict issue is not preserved as defense counsel did not specifically renew his directed verdict motion at the conclusion of the evidence. Rather, he made only a general reference to renewing his "previous objections," a statement he made earlier which did not include his directed verdict motion.

holding, under former Circuit Court Rule 76, the denial of the defendant's directed verdict motion was not preserved for appeal where he failed to renew the motion after presenting evidence

See State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (finding defense counsel’s statement at the end of all the evidence that he was making the “standard motions” did not preserve the issue of directed verdict for appeal); State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (noting a general or nonspecific objection presents no issue for appellate review); see also State v. Parler, 217 S.C. 24, 59 S.E.2d 489 (1950) (holding, under former Circuit Court Rule 76, the denial of the defendant’s directed verdict motion was not preserved for appeal where he failed to renew the motion after presenting evidence); Note to Rule 19, SCRCrimP (stating the rule “is substantially the substance of Circuit Court Rule 76”); State v. Adams, 332 S.C. 139, 144, 504 S.E.2d 124, 126-27 (Ct.App.1998) (finding appellant’s directed verdict motion was not preserved where the argument raised on appeal was not presented to the trial court, and “[m]oreover, the record does not reflect that Adams renewed the motion at the close of his case”) (citing, inter alia, State v. Parler, 217 S.C. 24, 59 S.E.2d 489 (1950) and the Note to Rule 19, SCRCrimP); State v. Harry, 321 S.C. 273, 277, 468 S.E.2d 76, 79 (Ct.App.1996) (“A motion for a directed verdict made at the close of the [state’s] case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence.”) (alteration in original) (citation omitted).

finding defense counsel's statement at the end of all the evidence that he was making the "standard motions" did not preserve the issue of directed verdict for appeal


"A motion for a directed verdict made at the close of the [state's] case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence."


noting a general or nonspecific objection presents no issue for appellate review


Context: Under the law, however, Colony Square had an affirmative duty to monitor Prudential's compliance with the lease.

Georgia's "discovery rule" for the accrual of a tort cause of action inapplicable to a claim for breach of contract

See Limoli v. First Ga. Bank, 147 Ga.App. 755, 757, 250 S.E.2d 155, 157 (1978) (“a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action”); see also Owen v. Mobley Construction Co., 171 Ga.App. 462, 320 S.E.2d 225 (1984) (Georgia’s “discovery rule” for the accrual of a tort cause of action inapplicable to a claim for breach of contract). Colony Square has presented no evidence of either its due diligence or of Prudential’s concealment.

"a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action"


Context: In O'Hagan, an attorney who traded on client secrets had a fiduciary duty to inform his firm that he was trading on the basis of the confidential information. Even in Zandford, which dealt principally with the statutory requirement that a deceptive device be used "in connection with" the purchase or sale of a security, the defendant's fraud consisted of not telling his brokerage client -- to whom he owed a fiduciary duty -- that he was stealing assets from the account.

"[Defendant's brokerage clients] were injured as investors through [defendant's] deceptions, which deprived them of any compensation for the sale of their valuable securities."

See 535 U.S. at 822, 122 S.Ct. 1899 (“[Defendant’s brokerage clients] were injured as investors through [defendant’s] deceptions, which deprived them of any compensation for the sale of their valuable securities.”); see also id. at 823, 122 S.Ct. 1899 (“[A]ny distinction between omissions and misrepresentations is illusory in the context of a broker who has a fiduciary duty to her clients.”).

"[A]ny distinction between omissions and misrepresentations is illusory in the context of a broker who has a fiduciary duty to her clients."


Context: In the motion judge's view, there were "many reasons" that could explain the "nervousness" of some of the defendants and the "conflicting statements" at 3 a.m. on the shoulder of the Turnpike. Indeed, it is a sad fact that not all persons feel comfortable in the presence of the police.

recognizing "[t]hat some city residents may not feel entirely comfortable in the presence of some, if not all, police is regrettable but true"

State v. Tucker, 136 N.J. 158, 169, 642 A.2d 401 (1994) (recognizing “[t]hat some city residents may not feel entirely comfortable in the presence of some, if not all, police is regrettable but true”); State v. Kuhn, 213 N.J.Super. 275, 282, 517 A.2d 162 (App.Div.1986) (“[N]ot wish[ing] to be in the proximity of police, [is] not a commendable, but also not an unlawful attitude.”); see also Carty, 170 N.J. at 648, 790 A.2d 903 (“[A]ppearance of nervousness is not sufficient grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop.”).

"[A]ppearance of nervousness is not sufficient grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop."


"[N]ot wish[ing] to be in the proximity of police, [is] not a commendable, but also not an unlawful attitude."


Context: P41 A municipal corporation may act with the express and implied powers the legislature grants.

Sundquist, 140 Wn.2d at 410 (while acting in a proprietary capacity, the municipal corporation is implicitly allowed to make contracts and “ ‘to engage in any undertaking which is necessary to render the system efficient and beneficial to the public’ ”) (quoting Hite, 112 Wn.2d at 460); see also HTK Mgmt., L.L.C. v. Seattle Popular Monorail Auth., 155 Wn.2d 612, 624, 627, 121 P.3d 1166 (2005) (where the legislature granted a municipal corporation the right to condemn private property, the court inferred from the authorizing statute that the municipal corporation had the implicit power to reasonably carry out its condemnation procedures).

while acting in a proprietary capacity, the municipal corporation is implicitly allowed to make contracts and " 'to engage in any undertaking which is necessary to render the system efficient and beneficial to the public' "


Context: We review a case where the defendant preserved his Fanfan challenge in district court under the Rule 52(a) harmless error standard.

See Mares, 402 F.3d at 520 n. 9 (“[I]f ... the issue presented in Fanfan is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure.”); cf. Martinez-Lugo, 411 F.3d at 600-01 (applying plain error review where Fanfan issue not preserved in district court).

"[I]f ... the issue presented in Fanfan is preserved in the district court by an objection, we will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a


Context: Moreover, "[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." (Punctuation omitted.)

"OCGA SS 9-11-15 is liberally construed in favor of allowing amendments."

Morris v. Chewning, 201 Ga. App. 658, 659 (411 SE2d 891) (1991); see also Deering, supra, 282 Ga. at 163 (“OCGA § 9-11-15 is liberally construed in favor of allowing amendments.”) (citation omitted).

"Under OCGA SS 9-11-15, an amendment to a complaint may raise a new cause of action[.]"

OCGA § 9-11-15 (c); see Deering v. Keever, 282 Ga. 161, 163 (646 SE2d 262) (2007) (“Under OCGA § 9-11-15, an amendment to a complaint may raise a new cause of action[.]”) (citation and punctuation omitted).


Context: Although Rule 215.2(b) states that a trial court may impose discovery sanctions only "after notice and hearing," the Texas Supreme Court has expressly held that a "hearing" does not necessarily contemplate a personal appearance before the court or an oral presentation' to the court.

Cire, 134 S.W.3d at 843-44 (observing that nothing in the rule indicates that a trial court must hold an oral or evidentiary hearing before imposing discovery sanctions); see also Tidrow, 189 S.W.3d at 413 (oral hearing not required prior to imposition of discovery sanctions).


Context: Instead, "[a] partially prevailing plaintiff should be compensated for the legal expenses he would have borne if his suit had been confined to the ground on which he prevailed plus related grounds within the meaning of Hensley." Ibid. This determination depends on how much time should have been expended on litigating the successful claim.

upholding attorneys' fee award even though plaintiffs did not prevail on all claims asserted in the suit because "[t]he claims on which the plaintiffs did not ultimately prevail were all related to the claims on which they did prevail," and hence "the plaintiffs won their case"

See also Wallace v. Mulholland, 957 F.2d 333, 339 (7th Cir.1992) (upholding attorneys’ fee award even though plaintiffs did not prevail on all claims asserted in the suit because “[t]he claims on which the plaintiffs did not ultimately prevail were all related to the claims on which they did prevail,” and hence “the plaintiffs won their case”); accord Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1278-81 (7th Cir.1983); but see Bethune Plaza, Inc. v. Lumpkin, 755 F.Supp. 223 (N.D.Ill.1991) (because plaintiffs suit was two-thirds successful, the court reduced plaintiffs fee by a corresponding percentage).


Context: The intentional and willful nature of defendant's actions precludes a finding that he acted in good faith. See Biondi v. Beekman Hill House Apt.

indemnity under SS 145 is subject to the general public policy against indemnifying a party for his intentional wrongdoing

Corp., supra, 94 N.Y.2d at 667, 709 N.Y.S.2d 861, 731 N.E.2d at 581 (“Because the underlying ... judgment establishes that [defendant’s] acts were committed in bad faith, [defendant] is not entitled to indemnification and cannot relitigate the good faith versus bad faith issue here see also In re Landmark Land Co., 76 F.3d 553, 565 (4th Cir.1996)(“An agent who has intentionally participated in illegal activity or wrongful conduct against third persons cannot be said to have acted in good faith, even if the conduct benefits the corporation.”); McLean v. Alexander, 449 F.Supp. 1251 (D.Del.1978)(indemnity under § 145 is subject to the general public policy against indemnifying a party for his intentional wrongdoing), rev’d on other grounds, 599 F.2d 1190 (3d Cir.1979); cf. People v. Kazmierski, 25 P.3d 1207, 1214 (Colo.2001)(“False statements, either intentionally or recklessly made, are the antithesis of-good faith.”); Golden Press, Inc. v. Rylands, 124 Colo. 122, 235 P.2d 592 (1951)(“willful and intentional” actions are distinct from those taken in good faith).

"False statements, either intentionally or recklessly made, are the antithesis of-good faith."


"willful and intentional" actions are distinct from those taken in good faith


Context: But the jury could have found that Eastwood's fans would think him (1) a hypocrite for giving the Enquirer an "exclusive interview" about his private life (plus access to an "exclusive" baby picture), and/or (2) essentially washed up as a movie star if he was courting publicity in a sensationalist tabloid. This would have been sufficiently damaging to Eastwood's reputation to support an award of this magnitude.

jury was entitled to award singer Tom Waits $75,000 in compensatory damages because it "could have inferred from the evidence that the [defendant's] commercial [featuring an imitation of Waits' voice] created a public impression that Waits was a hypocrite for endorsing Doritos."

See Waits v. Frito-Lay, 978 F.2d 1093, 1104 (9th Cir.1992) (jury was entitled to award singer Tom Waits $75,000 in compensatory damages because it “could have inferred from the evidence that the [defendant’s] commercial [featuring an imitation of Waits’ voice] created a public impression that Waits was a hypocrite for endorsing Doritos.”); cf. Carol Burnett v. National Enquirer, 144 Cal.App.3d 991, 1016, 193 Cal.Rptr. 206 (Cal.Ct.App.1983) (evidence of plaintiffs public image and Enquirer ’s wide readership supported award of $60,000 in damages for injury to reputation).

evidence of plaintiffs public image and Enquirer 's wide readership supported award of $60,000 in damages for injury to reputation


Context: A defendant is an armed career criminal when he violates 18 U.S.C. SS 922(g)(1) and has three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. SS 924(e)(1). Because a Massachusetts conviction for larceny from the person constitutes a violent felony for purposes of the ACCA, we reject this argument.

See United States v. Rodriguez, 659 F.3d 117, 118-20 (1st Cir.2011) (holding Massachusetts conviction for larceny from the person constitutes violent felony under the residual clause of the ACCA); United States v. DeJesus, 984 F.2d 21, 25 (1st Cir.1993) (larceny from the person as defined under Massachusetts law constitutes a crime of violence); see also United States v. Jarmon, 596 F.3d 228, 230-33 (4th Cir.2010) (holding that North Carolina crime of larceny from the person was a crime of violence under the residual clause of the career offender guideline).


larceny from the person as defined under Massachusetts law constitutes a crime of violence


Context: Nor could plaintiffs' conduct in the terminal be reasonably viewed as an escalation of events that would then have given rise to probable cause.

"The propriety of an officer's actions after an initial stop depends on ... how events unfold."

See United States v. Romain, 393 F.3d 63, 71 (1st Cir.2004) (“The propriety of an officer’s actions after an initial stop depends on ... how events unfold.”); cf. Hooper, 935 F.2d at 494-95 (noting that investigation conducted pursuant to a valid Terry stop had yielded probable cause to arrest). The Court fails to grasp the significance of Farag telling Smith that because he spoke Arabic he had been asked by the Bureau of Prisons to translate tapes, and that guns had been pointed at him as a police officer — both logical consequences of his past and present employments.


Context: Second, the Ninth Circuit's dismissal for failure to plead a viable cause of action is a decision on the merits under that circuit's (and every other circuit's) law.

"[A] dismissal for failure to state a claim under Rule 12(b

Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir.2002) (“[A] dismissal for failure to state a claim under Rule 12(b)(6) is a ‘judgment on the merits’ to which res judicata applies.”); see also Hagans v. Lavine, 415 U.S. 528, 542, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (“[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits.”); Restatement (Second) of Judgments § 19 cmt. d (1982). Furthermore, the issues decided within that decision, even though it was not submitted for publication, are clearly collaterally binding. 9th Cir. R. 36-3 (“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.”).

"[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits."


Context: The academic literature has also largely criticized the revenue rule as having little application when the foreign sovereign is the plaintiff in a case. See William J. Kovatch, Jr., Recognizing Foreign Tax Judgments: An Argument for the Revocation of the Revenue Rule, 22 Hous. J. Int'l L. 265 (2000) (stating that Justice Hand's rationale that the review of foreign tax laws might cause the foreign nation "embarrassment" is outdated rationale when foreign government is plaintiff). To reiterate, this Court is less concerned about "embarrassing" Ecuador and is more concerned with encroaching on Legislative and Executive functions. Even Judge Ga-raufis conceded in his initial European Community opinion that separation of powers remains a legitimate basis for invoking the rule.

"abstention under the revenue rule is never warranted in the absence of genuine separation of powers concerns."

See European Cmty. I, 150 F.Supp.2d at 477 (“abstention under the revenue rule is never warranted in the absence of genuine separation of powers concerns.”); see also European Cmty. II, 186 F.Supp.2d at 235 (“the concerns underlying the current version of the revenue rule are satisfied where the proper coordinate branch adequately confers its blessings on jurisdiction.”).

"the concerns underlying the current version of the revenue rule are satisfied where the proper coordinate branch adequately confers its blessings on jurisdiction."


Context: Ill-gotten sums of cash, especially in this relatively small amount, are easily transportable. Given the evidence concerning the existence of various bank accounts, it is more reasonable to infer that an extortionist would seek to disperse or spend his booty in an attempt to hide it.

Cf. United States v. Van Ert, 350 F.Supp. 1339, 1340 (E.D.Wisc.1972) (it was not reasonable to infer that moveable, personal property would be present 55 days after last seen at place to be searched); but cf. United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985) (probable cause to believe that defendant would have all or some of the $228,241 proceeds of a bank robbery in his residence two months after robbery).


Context: The HCADRO is the successor to an agency known as the Health Claims Arbitration Office ("HCAO"). A handful of reported decisions of this Court considered whether the HCAO was a state court for removal purposes, although they ultimately did not resolve the issue.

declining to resolve contention that "the Maryland Health Claims Arbitration Office is not a 'state court' for purposes of removal," because removal was improper on other grounds

See Chaghervand v. CareFirst, 909 F.Supp. 304, 308 (D.Md.1995) (declining to resolve contention that “the Maryland Health Claims Arbitration Office is not a ‘state court’ for purposes of removal,” because removal was improper on other grounds); Whitcomb v. Potomac Physicians, P.A., 832 F.Supp. 1011, 1012-13 (D.Md.1993) (same); see also Jackson v. Roseman, 878 F.Supp. 820 (D.Md.1995) (remanding to HCAO based on improper removal on other grounds, without considering whether HCAO was a state court for removal purposes).


Context: The district court properly granted summary judgment on Holmes's retaliation claim because Holmes failed to raise a genuine dispute of material fact as to whether defendant Smith took an adverse action against Holmes because of his protected conduct.

"[M]ere speculation that defendants acted out of retaliation is not sufficient."

See Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (setting forth elements of a retaliation claim in the prison context); see also Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“[M]ere speculation that defendants acted out of retaliation is not sufficient.”).


Context: Plistorically, the Court also viewed the exclusionary rule as preserving the integrity of the judicial process by banishing evidence secured only because government agents violated the Constitution.

"To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action."

Elkins, 364 U.S. at 222-23; Weeks, 232 U.S. at 394 (“To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”)- The twin objectives of deterring unconstitutional searches and preserving judicial integrity made the exclusionary rule an essential remedy for Fourth Amendment violations.

recognizing that Court precedent has "implied that the exclusionary rule is a necessary corollary of the Fourth Amendment"

See Mapp, 367 U.S. at 657; Weeks, 232 U.S. at 393; cf. Leon, 468 U.S. at 905-06 (recognizing that Court precedent has “implied that the exclusionary rule is a necessary corollary of the Fourth Amendment”).


Context: Like the statute at issue in Ransom, section 76-5-401 offends no deeply-rooted and fundamental tradition of due process. Children have historically received special protection from sexual contact with adults.

See Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952) (recognizing that statutory rape has historically not required mens rea regarding element of vie-tim's age); see also Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499 (1997) (stating that "[p]rior to 1964, it was the universally accepted rule in the United States that a defendant's mistaken belief as to the age of a victim was not a defense to a charge of statutory rape").


Context: The legislative deprivation of [plaintiffs'] right to exclude, without more, constitutes a taking." Pls.' Cross-Mot. 30. The physical taking issue turns on the court's interpretation of the requirements arising under the WARA and is an issue of law that can be adjudicated on a motion for summary judgment.

"The underlying issue, one of statutory ... construction, is a question of law_"

See Billings v. United States, 322 F.3d 1328, 1332 (Fed.Cir.2003) (“The underlying issue, one of statutory ... construction, is a question of law_”); Santa Fe Pac. R.R. Co., 294 F.3d at 1340 (recognizing, in a takings case, that “[i]ssues of statutory interpretation and other matters of law may be decided on motion for summary judgment”); see also Palmyra Pac. Seafoods, L.L.C., 561 F.3d at 1361 (“[Cjontract rights can be the subject of a takings action.” (citing Lynch, 292 U.S. at 579, 54 S.Ct. 840)).

"[Cjontract rights can be the subject of a takings action." (citing Lynch, 292 U.S. at 579, 54 S.Ct. 840


recognizing, in a takings case, that "[i]ssues of statutory interpretation and other matters of law may be decided on motion for summary judgment"


Context: As the Tax Court observed in this case, although tax laws designed to raise revenue and simultaneously discourage lawful conduct, such as early withdrawal of retirement savings, must be understood as serving to deter, such taxes generally are not viewed as implicating the Excessive Fines Clause.

See Kitt v. United States, 277 F.3d 1330, 1336 (Fed.Cir.2002) (concluding that additional tax for early withdrawal of funds in an IRA does not implicate the Excessive Fines Clause because early withdrawal is not proscribed); see also Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 782, 114 S.Ct. 1937, 1947, 128 L.Ed.2d 767, 780 (1994) (concluding that Montana's tax on illegal possession of marijuana imposed punishment within the meaning of the Double Jeopardy Clause and distinguishing taxes that have the dual purpose of raising revenue and discouraging undesirable but lawful conduct and taxes designed solely to raise revenue).


See Kitt v. United States, 277 F.3d 1330, 1336 (Fed.Cir.2002) (concluding that additional tax for early withdrawal of funds in an IRA does not implicate the Excessive Fines Clause because early withdrawal is not proscribed); see also Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 782, 114 S.Ct. 1937, 1947, 128 L.Ed.2d 767, 780 (1994) (concluding that Montana’s tax on illegal possession of marijuana imposed punishment within the meaning of the Double Jeopardy Clause and distinguishing taxes that have the dual purpose of raising revenue and discouraging undesirable but lawful conduct and taxes designed solely to raise revenue).


Context: In citing those decisions, Tabor focuses only on the words uttered. He fails to note that in many of those cases, the offending words were used in heated face-to-face confrontations where the speaker showered police officers with abuse.

defendant called the arresting officer a "son of a bitch," "mother fucker," "pig," "motherfucking pig" and a "bastard."

Bolden v. State, 148 Ga.App. 315, 251 S.E.2d 165, 167 (1978) (defendant called the arresting officer a “son of a bitch,” “mother fucker,” “pig,” “motherfucking pig” and a “bastard.”); Evans v. State, 188 Ga.App. 347, 373 S.E.2d 52, 53-54 (1988) (defendant called the officer a “goddamned liar” and told the officers at the scene to “fuck off.”); Person v. State, 206 Ga.App. 324, 425 S.E.2d 371, 371 (1992) (defendant “continually kept getting up in [the officer’s] face and cussing him,” including saying he was “not going to any goddamn jail” and “not wearing any mother-fucking handcuffs.”) (alterations omitted); see also Anderson v. State, 231 Ga.App. 807, 499 S.E.2d 717, 720 (1998) (upholding a conviction under the current disorderly conduct statute when an individual called an officer a “no-good son of a bitch” and threatened to “kick [his] ass.”).

upholding a conviction under the current disorderly conduct statute when an individual called an officer a "no-good son of a bitch" and threatened to "kick [his] ass."


defendant called the officer a "goddamned liar" and told the officers at the scene to "fuck off."


defendant "continually kept getting up in [the officer's] face and cussing him," including saying he was "not going to any goddamn jail" and "not wearing any mother-fucking handcuffs."


Context: A majority of the circuits that have addressed the issue have concluded that the FCIA should apply only to judgments entered after the effective date.

holding that the FCIA does not apply to a September 1981 judgment against the United States for interest accruing after the act's effective date

See Brooks v. United States, 757 F.2d 734, 741-43 (5th Cir.1985) (holding that the FCIA does not apply to a September 1981 judgment against the United States for interest accruing after the act’s effective date); Litton Sys. v. American Tel. & Tel. Co., 746 F.2d 168, 174-76 (2d Cir.1984) (holding that the FCIA does not apply to a June 1981 judgment against a private party for interest accruing either after the judgment or after the effective date); Merit Ins. Co. v. Leatherby Ins. Co., 728 F.2d 943, 944 (7th Cir.1984) (per curiam) (rejecting without discussion the argument that the FCIA should apply to a November 1981 judgment for interest accruing after the judgment); see also Elias v. Ford Motor Co., 734 F.2d 463, 467 (1st Cir.1984) (applying the state rate under former § 1961 to an April 1982 judgment when the parties agreed that the state rate should be applied); United States v. Dollar Rent A Car Sys., 712 F.2d 938, 940 n. 5 (4th Cir.1983) (observing that “[tjhere is no indication that the statute was intended to have retroactive effect,” but noting that the parties had not raised the issue); United States ex rel. Billows Elec. Supply Co. v. E.J.T. Constr. Co., 557 F.Supp. 514, 516-17 (E.D.Pa.1983) (holding that the FCIA does not apply to a July 1981 judgment against a private party for inter est accruing after the judgment), aff'd mem., 729 F.2d 1450 (3d Cir.1984); Peterson v. Crown Fin. Corp., 553 F.Supp. 114, 116-17 n. 4 (E.D.Pa.1982) (same holding for a July 1979 judgment).

applying the state rate under former SS 1961 to an April 1982 judgment when the parties agreed that the state rate should be applied


observing that "[tjhere is no indication that the statute was intended to have retroactive effect," but noting that the parties had not raised the issue


holding that the FCIA does not apply to a July 1981 judgment against a private party for inter est accruing after the judgment


holding that the FCIA does not apply to a June 1981 judgment against a private party for interest accruing either after the judgment or after the effective date


rejecting without discussion the argument that the FCIA should apply to a November 1981 judgment for interest accruing after the judgment


Context: Plaintiff has not shown sufficient evidence that could lead a reasonable jury to conclude that Defendants agreed to "act in concert to inflict an unconstitutional injury," and thus cannot hold Fire District Defendants liable under a theory of conspiracy liability.

finding allegations that a communications took place insufficient to show conspiracy, noting that "the non-moving party may not rely on conclusory allegations or unsubstantiated speculation"

See Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998) (finding allegations that a communications took place insufficient to show conspiracy, noting that “the non-moving party may not rely on conclusory allegations or unsubstantiated speculation”) (citations omitted); see also Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.2011) (upholding dismissal of complaint that contained only “conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights” noting it “fail[ed] to plausibly allege the existence of a conspiracy among the defendants”); Carrillos v. Inc. Vill. of Hempstead, 87 F.Supp.3d 357, 371, 2015 WL 728244, at *6 (E.D.N.Y. Feb. 20, 2015) (“[T]he summoning of police officers or the provision of information to police officers, even if that information is false or results in the officers taking affirmative action, is not sufficient to constitute joint action with state actors for purposes of Section 1983.” (citing Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir.1999))).

upholding dismissal of complaint that contained only "conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights" noting it "fail[ed] to plausibly allege the existence of a conspiracy among the defendants"


Context: The first and often the last step in any effort to interpret a piece of legislation is to examine the language of the statute.

the Commission must "determine the question of its jurisdiction ... by giving [the statutes] what is known as a 'practical construction' "

See Collier v. Collier, 702 N.E.2d 351, 354 (Ind.1998); Indiana Dep’t of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872 (1994) (“nothing may be read into a statute which is not within the manifest intention of the legislature” as ascertained from “the plain and obvious meaning” of the words of the statute); see also In re Northwestern Indiana Tel. Co., 201 Ind. 667, 676, 171 N.E. 65, 68 (1930) (the Commission must “determine the question of its jurisdiction ... by giving [the statutes] what is known as a ‘practical construction’ ”).

"nothing may be read into a statute which is not within the manifest intention of the legislature" as ascertained from "the plain and obvious meaning" of the words of the statute


Context: We cannot say, on the record presented to us, that either of these statements show extrinsic influence on Juror Hart or any other juror. Porter's Affidavit does not allege that Hart was influenced by these external communications, and neither William nor Chantal offer any other evidence to show that juror Hart was influenced in any way.

recognizing, that "failure to hold a hearing constitutes ah abuse of discretion only where there is evidence that the jury was subjected to influence by outside sources."

See United States v. Watchmaker, 761 F.2d 1459, 1465 (11th Cir.1985) (recognizing, that “failure to hold a hearing constitutes ah abuse of discretion only where there is evidence that the jury was subjected to influence by outside sources.”).

recognizing that trial court is obligated to conduct evidentiary hearing only when defendant makes "a colorable showing of extrinsic influence.... "

Cf. United States v. Barshov, 733 F.2d 842, 851 (11th Cir.1984) (recognizing that trial court is obligated to conduct evidentiary hearing only when defendant makes “a colorable showing of extrinsic influence.... ”).


Context: It failed to remind the jury that racially discriminatory motivation is a critical element of a section 1981 case. If a jury consults an external source and treats that source as complete, omissions in the information contained therein can be just as prejudicial as an affirmative misstatement.

in medical malpractice action, prejudicial error occurred when district court read jury a misleading dictionary definition of "differentiated" in response to its question regarding the meaning of "poorly differentiated tumor"

See, e.g., Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir.1987) (the Ninth Circuit found prejudicial error when a juror consulted a dictionary and considered an incomplete definition of “malice”); cf. Harold v. Corunn, 846 F.2d 1148, 1150-51 (8th Cir.1988) (in medical malpractice action, prejudicial error occurred when district court read jury a misleading dictionary definition of “differentiated” in response to its question regarding the meaning of “poorly differentiated tumor”).

the Ninth Circuit found prejudicial error when a juror consulted a dictionary and considered an incomplete definition of "malice"


Context: A petitioner must satisfy both prongs to obtain relief, but the Supreme Court has stated that "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one. ..."

"If it is easier to dispose of an effectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."

Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an effectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); see also Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997) (declining to address the first prong of Strickland on the ground that the defendant could not satisfy the prejudice prong); Rodriguez v. Portuondo, No. 01-CV-0547, 2006 WL 2168314, at *7 n. 13 (S.D.N.Y. Aug. 1, 2006).


Context: Joint Appx 290-91. It balanced those considerations against the fact that we vacated two out of the three Rule 11 violations it originally relied on, and the fact that StreetEasy devoted less than one third of its submissions to the affirmed Rule 11 violation. Under these circumstances, it cannot be said that the district court's decision to award one-third of the original amount was not within the range of permissible decisions.

See Eastway Constr. Corp., 821 F.2d at 128 (recognizing district court’s wide range of discretion in setting amount of Rule 11 sanctions); see also Caisse Nationale de Credit Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d 259, 266 (2d Cir. 1994) (recognizing court discretion in determining reasonable fee under Rule 11).

recognizing district court's wide range of discretion in setting amount of Rule 11 sanctions


Context: . One thing unusual about the procedural posture of this case is that dispositive motions were filed early (before this Court could schedule any hearing or briefing on class certification) and that the request for certification was then made (in addition to the Complaint) in Plaintiff's Cross-Motion for Summary Judgment, before the filing of the certification motion. While certification in this posture is not the most desired practice under Rule 23, for the reasons explained above, the Court determines that this is the proper instance to address and decide the certification issues as well as the dispositive motions.

See, e.g., Larionoff v. United States, 533 F.2d 1167, 1183 (D.C.Cir.1976) (approving simultaneous entry of judgment and class certification); Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir.1975) (stating that "in some cases the final certification need not be made until the moment the merits are decided”); see also Gurule v. Wilson, 635 F.2d 782, 788-90 (10th Cir.1980) (allowing post-judgment class certification under Rule 23(b)(2)); Marshall v. Kirkland, 602 F.2d 1282, 1301 (8th Cir.l979)(same); Johnson v. Mathews, 539 F.2d 1111, 1125 n. 23 (8th Cir. 1976) (same); Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir.1977) (affirming post-judgment certification where there was a lack of prejudice).

stating that "in some cases the final certification need not be made until the moment the merits are decided"


Context: "If an average person off the street does not possess the skill, then the skill is considered special for the purposes of applying the enhancement." A special skill requires neither licensing nor formal education.

hold-ing that "[although printing does not require licensing or formal education, it is a unique technical skill that clearly requires special training"

United States v. Foster, 155 F.3d 1329, 1332 (11th Cir. 1998)(hold-ing that “[although printing does not require licensing or formal education, it is a unique technical skill that clearly requires special training”); see also United States v. Malgoza, 2 F.3d 1107, 1111 (11th Cir. 1993) (holding that “[although not every instance of radio operation requires skills not possessed by members of the general public, it is possible to develop expertise in that field that rises to the level of a-special skill”).

holding that "[although not every instance of radio operation requires skills not possessed by members of the general public, it is possible to develop expertise in that field that rises to the level of a-special skill"


Context: As an initial matter, the incongruent social security matter had no relevance whatsoever to the disability-discrimination claim or to finding a reasonable accommodation for Lavalle.

court noted that' in certain cases, "inquiry] into workers' immigration status ... allow[s] [employers] to raise implicitly the threat' of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices"

See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1074 (9th Cir. 2004) (discovery of immigration status denied because employer “had the opportunity to examine [that status] upon hiring and that [status was] irrelevant to the question of liability”). A reasonable jury could thus consider Ortiz’s suspicions (formed around December 2011) that Lavalle had provided false documentation to the Hotel, his suspicion that she was “most likely”, using a false social security number, and his plan to present that information at the ADU hearing to arrive at the reasonable inference that the matter was being raised for the first time in that' setting to imply that the Hotel could use the information to inflict some adverse action—as was ultimately done in Contreras, 103 F.Supp.2d at 1185; see also Rivera, 364 F.3d at 1065 (court noted that' in certain cases, “inquiry] into workers’ immigration status ... allow[s] [employers] to raise implicitly the threat' of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices”).

discovery of immigration status denied because employer "had the opportunity to examine [that status] upon hiring and that [status was] irrelevant to the question of liability"


Context: Given these circumstances, there is no reasonable probability that trial counsel's failure to object to the admission of the sentencing sheets had any impact on the jury's verdict.

admission of prior conviction to impeach witness was harmless, where witness "made an unsolicited reference to his 'rap sheet' " during his testimony and thus there was "other evidence before the jury of [the witness's] criminal record"

See also Hoffler v. State, 292 Ga. 537, 540 (2) (739 SE2d 362) (2013) (admission of prior conviction to impeach witness was harmless, where witness “made an unsolicited reference to his ‘rap sheet’ ” during his testimony and thus there was “other evidence before the jury of [the witness’s] criminal record”); Harris v. State, 279 Ga. 522, 527 (5) (615 SE2d 532) (2005) (admission of defendant’s prior convictions was harmless in light of defendant’s admissions during his testimony before the State brought up his convictions).

trial counsel's failure to object to admission on cross-examination of sentencing sheets as part of prior convictions was not prejudicial, where defendant already admitted to the prior convictions on direct examination

See Daniel v. State, 292 Ga. App. 560, 563-564 (4) (a) (665 SE2d 696) (2008) (trial counsel’s failure to object to admission on cross-examination of sentencing sheets as part of prior convictions was not prejudicial, where defendant already admitted to the prior convictions on direct examination).


admission of defendant's prior convictions was harmless in light of defendant's admissions during his testimony before the State brought up his convictions


Context: Under this rule, a corporation is not permitted to appear pro se. Numerous cases have considered and affirmed this principle.

dismissing a corporation's appeal because the notice of appeal was not signed by an attorney

See, e.g., Plimpton v. Cooper, 141 F.Supp.2d 573, 575 (W.D.N.C.2001) (dismissing claims brought pro se on behalf of a corporation based on lack of licensed counsel), aff'd, 21 Fed.Appx. 159 (4th Cir.2001); Carrico v. Village of Sugar Mountain, 114 F.Supp.2d 422, 424 (W.D.N.C.2000) (holding that a corporate plaintiffs claims must be dismissed on the ground of failure of any attorney to appear for the corporation), aff'd, 13 Fed.Appx. 79 (4th Cir.2001); Microsoft Corp. v. Computer Serv. & Repair, Inc., 312 F.Supp.2d 779, 782 (E.D.N.C.2004) (striking a corporation’s pleadings where they were signed by the corporation’s president but not by an attorney); Gilley v. Shoffher, 345 F.Supp.2d 563, 566 (M.D.N.C.2004); see also Battle v. Kadosh, Inc., 238 F.3d 410 (unpublished), 2000 WL 1793066 (4th Cir.2000) (dismissing a corporation’s appeal because the notice of appeal was not signed by an attorney).


holding that a corporate plaintiffs claims must be dismissed on the ground of failure of any attorney to appear for the corporation


striking a corporation's pleadings where they were signed by the corporation's president but not by an attorney


Context: The district court here looked behind the RICO conviction and considered the underlying predicate offenses in determining whether Scott's offense qualified as a crime of violence. It was proper for the court to do so. Application Note 2 to U.S.S.G. SS 4B1.2 requires that the focus of the inquiry in making a "crime of violence" determination be on the conduct for which Scott was convicted.

See United States v. Winter, 22 F.3d 15, 19 (1st Cir.1994) (RICO conviction will qualify as career offender predicate offense if the activities encompassed pose a serious potential risk of violence); see also United States v. Juvenile Male, 118 F.3d 1344, 1350 (9th Cir.1997) (RICO conspiracy to commit Hobbs Act robberies is a crime of violence under Juvenile Delinquency Act).


Context: But established precedents, not disputed by Oakar, make it clear that SS 1001 embraces false statements made to anybody on earth if the maker "knew or should have known that the information was to be submitted to a government agency." And liability has been based on false statements to state agencies.

finding no liability for false statements in support of unemployment claims, made to state agency whose administrative costs were federally supported, where federal monitor lacked power to modify payments on account of state's excess payments

See United States v. Davis, 8 F.3d 923 (2d Cir.1993) (false statements submitted by federal prisoner to authorities of state prison in which he was held under contract); United States v. Wright, 988 F.2d 1036 (10th Cir.1993) (false statements to a state environmental agency with primary enforcement responsibility for federal water quality standards); United States v. Suggs, 755 F.2d 1538 (11th Cir.1985) (false statement to state labor department in connection with federally funded program); but cf. United States v. Facchini, 874 F.2d 638, 642-43 (9th Cir.1989) (en banc) (finding no liability for false statements in support of unemployment claims, made to state agency whose administrative costs were federally supported, where federal monitor lacked power to modify payments on account of state’s excess payments).


false statements to a state environmental agency with primary enforcement responsibility for federal water quality standards


false statement to state labor department in connection with federally funded program


Context: We affirmed the dismissal of the complaint because we found that the plaintiffs had failed to allege sufficiently that the private defendants had acted under color of state law because the conduct of the private defendants in obtaining the relevant court orders could not be attributed to the state so as to satisfy the first part of the under-color-of-law test.

holding that "[t]he involvement of the police in executing the court-ordered search, without more, does not convert [the private defendants'] abuse of state law into conduct attributable to the state for purposes of SS 1983 liability," and "[b]ecause [Yanaki and Moss] allege nothing more than 'private misuse' of state laws, their compliant fails to satisfy the first part of the color of law test"

See Yanaki, 415 F.3d at 1209-10 (holding that “[t]he involvement of the police in executing the court-ordered search, without more, does not convert [the private defendants’] abuse of state law into conduct attributable to the state for purposes of § 1983 liability,” and “[b]ecause [Yanaki and Moss] allege nothing more than ‘private misuse’ of state laws, their compliant fails to satisfy the first part of the color of law test”); see also id. at 1211 (Holloway, J., dissenting) (“I disagree with the Majority’s conclusion that Plaintiffs failed to sufficiently allege concerted action between the private Defendants and the police in order to support a finding that the Defendants were acting ‘under color of state law.’ ”); Yanaki v. Iomed, Inc., 319 F.Supp.2d 1261, 1265 (D.Utah 2004) (“Plaintiffs allege that [the private] Defendants’ use of state discovery rules to obtain an order from a state court judge permitting the search of their home and the seizure of Yanaki’s property satisfies the first part of the test for fair attribution [to the state for purposes of satisfying the requirement that the deprivation occur under color of state law].”).

"Plaintiffs allege that [the private] Defendants' use of state discovery rules to obtain an order from a state court judge permitting the search of their home and the seizure of Yanaki's property satisfies the first part of the test for fair attribution [to the state for purposes of satisfying the requirement that the deprivation occur under color of state law]."


Context: The "physical injury or impact" rule, however formulated, is a minority rule. Moreover, among those jurisdictions still adhering to the rule, a majority appear to require physical contact to the plaintiff--mere physical manifestations of emotional injury alone are not sufficient.

"there must have been actual bodily contact with plaintiff as a result of defendant's conduct for a claim for emotional distress to lie"

See Gottshall, — U.S. at -, 114 S.Ct. at 2406 (“Most jurisdictions have abandoned this test, but at least five States continue to adhere to it;” citing OBGYN Assocs. of Albany v. Littleton, 259 Ga. 663, 665, 386 S.E.2d 146 (1989) (“there must have been actual bodily contact with plaintiff as a result of defendant’s conduct for a claim for emotional distress to lie”); Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind.1991) (“damages for mental distress or emotional trauma may be recovered only when the distress is accompanied by and results from a physical injury caused by an impact to the person seeking recovery”); Deutsch v. Shein, 597 S.W.2d 141, 146 (Ky.1980) (“it is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of, the physical contact or injury sustained”); Hammond v. Central Lane Communications Ctr., 312 Or. 17, 23, 816 P.2d 593 (1991) (no liability for emotional injury absent accompanying actual or threatened physical harm); but see Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988) (defining “physical impact” as actual physical injury resulting from the emotional distress, beyond generalized physi cal symptoms such as headaches and insomnia)).

defining "physical impact" as actual physical injury resulting from the emotional distress, beyond generalized physi cal symptoms such as headaches and insomnia


"damages for mental distress or emotional trauma may be recovered only when the distress is accompanied by and results from a physical injury caused by an impact to the person seeking recovery"


"it is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of, the physical contact or injury sustained"


no liability for emotional injury absent accompanying actual or threatened physical harm


Context: This is a logical conclusion because words or phrases should be given consistent meaning when used in related regulations unless the regulation specifically provides otherwise. Further, by adopting this interpretation and allowing personal letters to be censored only when one of the listed criteria is met, the requirements in Martinez will be satisfied. First, the regulation furthers the important governmental objectives of prison security and order and is unrelated to the suppression of speech; second, the regulation is narrowly tailored to meet that governmental objective.

See also Hopkins v. Collins, 411 F.Supp. 831 (D.Md.1975) (regulations which lacked specificity and were not narrowly tailored found unconstitutional), affd in part and rev’d in part on other grounds, 548 F.2d 503 (4th Cir.1977); Taylor v. Perini, 455 F.Supp. 1241, 1244-45 (N.D.Ohio 1978) (court order for adopting the specific criteria involved here).

See, e.g., Martinez, 416 U.S. at 413, 414 n. 14, 94 S.Ct. at 1811, 1812 n. 14 (discussing examples of justifiable censorship and quoting from Policy Statement 7300.1A of the Federal Bureau of Prisons); Gaines v. Lane, 790 F.2d 1299, 1304-05 (7th Cir.1986) (upholding regulations which were “well-tailored to minimize their intrusiveness” and which provided prison officials with adequate guidance); Meadows v. Hopkins, 713 F.2d 206, 211 (6th Cir.1983) (upholding regulations under Martinez).


upholding regulations which were "well-tailored to minimize their intrusiveness" and which provided prison officials with adequate guidance


Context: As to the merits, we are troubled by the lack of evidence in the record regarding the authority of M.P.H. Holdings to initiate the supplemental proceedings. A plain reading of section 33-15-102(a) requires a foreign corporation to have a certificate of authority prior to initiating any action in this state.

"Where the statute's language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning."

See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (“Where the statute’s language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning.”); see also Chet Adams Co. v. James F. Pedersen Co., 307 S.C. 33, 37, 413 S.E.2d 827, 829 (1992) (holding the failure of a foreign corporation to obtain a certificate of authority prior to bringing an action to recover monies owed on an account affected the corporation’s capacity to sue but did not affect the court’s subject matter jurisdiction).

holding the failure of a foreign corporation to obtain a certificate of authority prior to bringing an action to recover monies owed on an account affected the corporation's capacity to sue but did not affect the court's subject matter jurisdiction


Context: Idaho Criminal Rule 7(e) authorizes the court to allow amendment of an information at any time before the prosecution rests "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." The rule's reference to prejudice to substantial rights means prejudice to the defendant's ability to defend against the charge.

holding defendant not prejudiced by allowing the State to amend its indictment because he had "more than adequate time to prepare his defense"

See State v. Severson, 147 Idaho 694, 709-10, 215 P.3d 414, 429-30 (2009) (holding defendant not prejudiced by allowing the State to amend its indictment because he had “more than adequate time to prepare his defense”).

holding that reversal for late disclosure of a State's witness requires trial prejudice, and defendant's claim that he turned down an attractive plea offer because he thought the State could not prove its case without the witness does not demonstrate prejudice

Cf. State v. Allen, 145 Idaho 183, 185-86, 177 P.3d 397, 399-400 (Ct.App.2008) (holding that reversal for late disclosure of a State’s witness requires trial prejudice, and defendant’s claim that he turned down an attractive plea offer because he thought the State could not prove its case without the witness does not demonstrate prejudice).


Context: Marizzaldi did not define "without cause." Because the trial court had not conducted an inquiry into the cause of the absence, we vacated the judgment of sentence and remanded.

finding that the appellant's absence was voluntary where he ignored directions printed on his court papers and reported to the wrong location

See Commonwealth v. Akinsanmi, 55 A.3d 539, 541 (Pa. Super. 2012) (finding that the appellant’s absence was voluntary where she was attending a research conference instead of court.and did not request a continuance); see also Commonwealth v. Dixon, 66 A.3d 794, 797-98 (Pa.Super. 2013) (finding that the appellant’s absence was voluntary where he ignored directions printed on his court papers and reported to the wrong location).

See Marizzaldi, 814 A.2d at 253 (finding that the appellant may have shown good cause where, through no fault of his own, he missed a bus to court). Subsequent cases have further defined this term.


finding that the appellant's absence was voluntary where she was attending a research conference instead of court.and did not request a continuance


Context: The principle behind the Cuevas-Gaspar imputation rule is to avoid separating children from their permanent resident parents with whom they have resided for a significant period of time in the United States.

holding, in the primary case on which Cuevas-Gaspar relied, imputation of a parent's residency status to a child may be justified where deportation would "sever[] the bonds between parents and their children who had resided legally in the United States for the better part of their lives...."

See Cuevas-Gaspar, 430 F.3d at 1024 (“[W]e are instructed ... that our immigration statutes and regulations are replete with provisions ‘giving a high priority to the relation between permanent resident parents and their children.’ ”); see also Lepe-Guitron v. INS, 16 F.3d 1021, 1025 (9th Cir.1994) (holding, in the primary case on which Cuevas-Gaspar relied, imputation of a parent’s residency status to a child may be justified where deportation would “sever[] the bonds between parents and their children who had resided legally in the United States for the better part of their lives....”).

"[W]e are instructed ... that our immigration statutes and regulations are replete with provisions 'giving a high priority to the relation between permanent resident parents and their children.' "


Context: It is because of this significant role of notice in "claims-made" policies that numerous courts have held that excusing a delay in notice beyond the policy period should not be done, because to do so would alter a basic term of the insurance contract which expresses the parties' agreement.

But see Sherlock v. Perry, 605 F.Supp. 1001 (E.D.Mich.1985) (if notice is given within reasonable time, and insurer suffers no prejudice by the delay, coverage under claims-made policy exists under Michigan law).

City of Harrisburg, supra (claims made coverage exists under Pennsylvania law only when claim is timely reported); Zuck-erman, supra (extension of notice period in claims-made policy constitutes an unbar-gained-for expansion of coverage, gratis, resulting in substantially broader risk to insurer); Civic Associates, Inc. v. Security Insurance Co., 749 F.Supp. 1076 (D.Kan. 1990) (allowing notice beyond the policy period would alter a basic term of the contract).


Context: While employment "deprivations less harsh than dismissals" may give rise to a constitutional claim, the claimed adverse employment action must nonetheless relate to a significant aspect of the employment relationship. In addition to dismissal, adverse employment actions include "demotion, refusal to hire, refusal to promote, and reprimand."

Kaluczky v. City of White Plains, 57 F.3d 202 (2d Cir.l995)(citing Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52, McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994)); see Acevedo v. City of New York, No. 93 Civ. 3817(RPP), 1995 WL 104113, *3 (S.D.N.Y. Mar.7, 1995)(adverse employment actions include a negative change in employment status such as discharge, suspension, or demotion or disciplinary actions such as reprimand); cf. Bieluch v. Sullivan, 999 F.2d 666, 669 (2d Cir.1993) (transfer to town fifteen miles from home allowed to constitute retaliation in support of First Amendment claim).


Context: In fact, "unforeseeable" post-reorganization CERCLA claims have been allowed by some courts, either because CERCLA was not in effect at the time of reorganization (obviating any finding of a legal relationship between the claimant and debtor from which even a cognizable contingent bankruptcy claim might arise), or because under particular factual circumstances neither the debtor nor claimant could have reasonably contemplated the existence of an actual or contingent bankruptcy claim.

EPA's bar date extended to file claims for CERCLA response costs fairly within the contemplation of the parties at time of debtor's bankruptcy

Cf. In re Nat’l Gypsum Co., 139 B.R. at 412 (EPA’s bar date extended to file claims for CERCLA response costs fairly within the contemplation of the parties at time of debtor’s bankruptcy).

In re Penn Cent. Transp. Co., 944 F.2d 164, 167-68 (3d Cir.1991), (cleanup claims allowed where CERCLA enacted after consummation date) cert. denied, — U.S. — , 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992); Sylvester Bros. Dev. Co., 133 B.R. at 653 (when governmental agency has not had actual knowledge of the potential claim in time to file claim in bankruptcy proceeding, potential CERCLA liability not' discharged).


Context: Petitioners Alan Freeman and Carol Heise have served as Fleenor's attorneys since 1994. The petitioner-attorneys are familiar with both the facts and the procedural history regarding Fleenor's legal actions.

recognizing that prisoner's former attorney had a significant relationship with the prisoner for purposes of next friend standing because attorney had acted on behalf of the prisoner in prior legal proceedings

See In re Cockrum, 867 F.Supp. 494, 495 (E.D.Texas 1994) (recognizing that prisoner’s former attorney had a significant relationship with the prisoner for purposes of next friend standing because attorney had acted on behalf of the prisoner in prior legal proceedings); but cf. Davis v. Austin, 492 F.Supp. 273, 275 (N.D.Ga.1980) (finding that neither ordained minister nor cousin of prisoner had standing to bring an action as next friend of the prisoner because of their lack of contact with the prisoner).


Context: Statements which "intimate that an investigation has focussed on a specific individual easily could induce a reasonable person to believe that failure to cooperate would only lead to formal detention." Thus, a seizure occurred when officer had defendant's ticket and "took [the defendant] aside and informed him that he was suspected of carrying narcotics."

United States v. Hanson, 801 F.2d 757, 761 (5th Cir.1986); United States v. Nunley, 873 F.2d 182, 184-85 (8th Cir. 1989) (consensual airport conversation became detention when officer told traveller that officers were there to stop flow of drugs through airport); United States v. Sadosky, 732 F.2d 1388, 1392 (8th Cir.1983) cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984); but see United States v. Morgan, 725 F.2d 56, 57 (7th Cir.1984) (statement that person under suspicion may not be enough to constitute seizure).


Context: In those cases, we require plaintiffs to make a showing in addition to the normal prima facie case because the employer's reason for discharging the plaintiff is not "otherwise unexplained." The reduction-in-force is an objective, legitimate explanation of the employer's action which the plaintiff does not call into question by establishing a prima facie case under the regular standards.

no adverse inference can be drawn in reduction-in-force case if we apply normal prima facie standards because the employer's action is readily explained by employer's economic hardship or downturn in business

See Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1270 (8th Cir.) (no adverse inference can be drawn in reduction-in-force case if we apply normal prima facie standards because the employer’s action is readily explained by employer’s economic hardship or downturn in business), cert. denied, 484 U.S. 855, 108 S.Ct. 161, 98 L.Ed.2d 116 (1987); see also Barnes, 896 F.2d at 1465 (in reduction-in-force ease proving the normal elements of the prima facie case is not enough because no evidence presented under such test that the workforce reductions were not the reason for the adverse employment actions).


Context: With respect to Part TV, I would caution against deciding this case on the rationale utilized in the majority court opinion. "While the opinion correctly states that the individual's possession of the firearm in question need not be actually unlawful, it overlooks the fact that the defendant must have had knowledge or reason to believe that the individual to whom the firearm was transferred had certain prior convictions or is under a criminal justice sentence.

holding that the government failed to prove the defendant's actions fell under the unlawful possession prong "[bjecause the Government failed to present any evidence that [the defendant] knew that his conduct would result in a firearm being transferred to" an individual falling under the narrow guidelines' definition of an individual in unlawful possession

See United States v. Asante, 782 F.3d 639, 643-44 (11th Cir.2015) (holding that the government failed to prove the defendant’s actions fell under the unlawful possession prong “[bjecause the Government failed to present any evidence that [the defendant] knew that his conduct would result in a firearm being transferred to” an individual falling under the narrow guidelines’ definition of an individual in unlawful possession); United States v. Howard, 539 Fed.Appx. 904, 908 (10th Cir.2013) (holding that the defendant’s actions fell under the unlawful possession prong where the defendant transferred at least one firearm to a known felon); United States v. Richardson, 427 Fed.Appx. 522, 523-24 (7th Cir.2011) (holding that the district court erred because it applied the enhancement without taking into account whether the defendant knew or should have known possession would be unlawful); United States v. Green, 405 Fed.Appx. 860, 862 (5th Cir.2010) (vacating the sentence in light of the government’s concession that there was no evidence that the individuals receiving the firearms “had a relevant criminal conviction or [were] under a criminal justice sentence at the time of the offense”).

holding that both the unlawful possession and unlawful use prongs were met and noting that the firearm transferred to the individual "was not registered, making [the individual's] possession of it necessarily unlawful"

But see United States v. Pepper, 747 F.3d 520, 525 (8th Cir.2014) (holding that both the unlawful possession and unlawful use prongs were met and noting that the firearm transferred to the individual “was not registered, making [the individual’s] possession of it necessarily unlawful”).


holding that the defendant's actions fell under the unlawful possession prong where the defendant transferred at least one firearm to a known felon


holding that the district court erred because it applied the enhancement without taking into account whether the defendant knew or should have known possession would be unlawful


vacating the sentence in light of the government's concession that there was no evidence that the individuals receiving the firearms "had a relevant criminal conviction or [were] under a criminal justice sentence at the time of the offense"


Context: In section A of that report, the party listed by name over seventy contributors to the party, together with the amount given by each. Thus, it seems that if one wanted to know what individuals or corporations enabled the Republican Party to make a substantial contribution to Candidate X, one could readily find out. Finally, the Court has some doubt whether the anti-corruption rationale used to justify limits on contributions by individuals is of equivalent relevance in the context of political party contributions.

"[A]n independent expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seems less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor."

See Russell, 146 F.3d at 571 (“There is ... less of a danger of quid pro quo corruption, such as the sort that one might presume from large contributions given directly to candidates, when a contribution is given to a PAC that does not itself wield legislative power.”); cf. Colorado Republican Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 617, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (“[A]n independent expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seems less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor.”).

"There is ... less of a danger of quid pro quo corruption, such as the sort that one might presume from large contributions given directly to candidates, when a contribution is given to a PAC that does not itself wield legislative power."


Context: Juveniles enjoy the privilege against self-incrimination guaranteed to adults by the Fifth and Fourteenth Amendments to the United States Constitution.

distinguishing Perry as applying only when the defendant's testimo ny was required by a statutory presumption

Simmons v. United States, 390 U.S. 377, 393-94, 88 S.Ct. 967, 975-77, 19 L.Ed.2d 1247 (1968); United States v. Perry, 788 F.2d 100, 115-16 (3d Cir.1986) (availability of judicial grant of use immunity with respect to defendant’s testimony in rebutting the presumption of dangerousness sufficient to avoid violation of Fifth Amendment); cf. United States v. Ingraham, 832 F.2d 229, 237-38 (1st Cir.1987) (distinguishing Perry as applying only when the defendant’s testimo ny was required by a statutory presumption).

availability of judicial grant of use immunity with respect to defendant's testimony in rebutting the presumption of dangerousness sufficient to avoid violation of Fifth Amendment


Context: As we have stated, in order to be a "meaningful offer" of UIM coverage, an offer must "intelligibly advise the insured of the nature of' UIM coverage.

concluding that "no [meaningful] offer was made" when UIM form was presented to and signed by spouse' of named insured who was not authorized to reject UIM coverage

Wannamaker, 354 S.E.2d at 556; see Estate of Hancock, 545 S.E.2d at 848 (concluding that “no [meaningful] offer was made” when UIM form was presented to and signed by spouse' of named insured who was not authorized to reject UIM coverage); see also McDonald v. S.C. Farm Bureau Ins. Co., 336 S.C. 120, 518 S.E.2d 624, 626 (S.C.Ct.App.1999) (noting “legislature’s intent that all named insured be offered UIM coverage”).

noting "legislature's intent that all named insured be offered UIM coverage"


Context: It cannot be disputed that this action by the Commission "fixed a legal relationship" between Delmarva and the municipalities. It is equally clear that the action of the Commission in reversing the AU on the discrimination issue "aggrieved" the municipalities within the meaning of SS 313(b). We therefore conclude that, had the municipalities petitioned in this court for review of Opinion 185-A within 60 days of its issuance, we would have had jurisdiction to review the opinion as a final order by the Commission.

See Papago Tribal Utility Authority, 628 F.2d at 239 (describing an order establishing just and reasonable rates as “[t]he quintessential reviewable order.”); see also Cities of Bethany, et al. v. FERC, 727 F.2d 1131 (D.C.Cir.1984) (reviewing merits of Commission order establishing just and reasonable rates where wholesale customers of the utilities complained that the rates were based on an unfairly discriminatory demand allocation methodology).

describing an order establishing just and reasonable rates as "[t]he quintessential reviewable order."


Context: This Court agrees that Minera Yanaco-cha's contacts with the IFC in the District are not "continuous and systematic" as required by due process.

See, e.g., Fan-del, 345 F.2d at 89 (“Washington presents many business organizations with special needs for a continuous and ponderable physical presence there, ... and that the purpose of Congress was not to make that presence in every case a base for the assertion of personal jurisdiction.”); see also In re Ski Train Fire in Kaprun, Austria on November 11, 2000, No. 1428 (SAS), 01 Civ. 7342, 2003 WL 1807148, at *4 (S.D.N.Y. Apr.4, 2003) (holding that a foreign defendant was not present in New York for the purposes of jurisdiction simply because it engaged in financing transactions there) (citing Clarke v. Fonix Corp., No. 98 Civ. 6116 (RPP), 1999 WL 105031, at *5 (S.D.N.Y. Mar.1, 1999) (reasoning that “[r]aising financing is not a form of ‘doing business’ for the purpose of

"Washington presents many business organizations with special needs for a continuous and ponderable physical presence there, ... and that the purpose of Congress was not to make that presence in every case a base for the assertion of personal jurisdiction."


Context: Other courts have forced plaintiffs to pay attorney fees under 42 U.S.C.A. SS 1988 precisely because they brought un reasonable, frivolous, meritless, or vexatious claims that they should have known were barred by the Tax Injunction Act.

affirming award of attorney fees under 42 U.S.C.A. SS 1988 even though the underlying action was barred by the Tax Injunction Act, noting that Werch was a "similar case"

See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982) (“Clearly, Werch should have known that his claim for injunctive relief would be dismissed for lack of subject matter jurisdiction [due to the Tax Injunction Act], Under these circumstances, Werch’s claim for injunctive relief was meritless.”); cf. Hutcherson v. Board of Supervisors, 742 F.2d 142, 146 & n. 4 (4th Cir.1984) (affirming award of attorney fees under 42 U.S.C.A. § 1988 even though the underlying action was barred by the Tax Injunction Act, noting that Werch was a “similar case”).

"Clearly, Werch should have known that his claim for injunctive relief would be dismissed for lack of subject matter jurisdiction [due to the Tax Injunction Act], Under these circumstances, Werch's claim for injunctive relief was meritless."


Context: In part, this concern over proper or genuine identity is borne out in the close attention courts have given to cases of forgery. They consistently have defined those activities which involved misrepresentation of identity as within the scope of SS 2314. For example, the use of a fictitious name as drawer of a check on a company account has given rise to a "forgery" under the statute when coupled with fraudulent intent.

See also United States v. Huntley, 535 F.2d 1400 (5 Cir.1976) (en banc), cert. denied, 430 U.S. 929 (1977) (use of name other than that of actual person involved in transaction is ground for conviction); United States v. Metcalf, 388 F.2d 440 (4 Cir.1968) (check on individual account opened in fictitious name).

an otherwise valid security, but with a forged endorsement is not a "falsely made security"

Cf. United States v. Tyson, 690 F.2d 9 (1 Cir.1982) (an otherwise valid security, but with a forged endorsement is not a “falsely made security”).


Context: We agree with the Langleys, however, that their complaint can be liberally construed to encompass all three of these asserted allegations of negligence. First, the most obvious cause of action stems from Shannon's alleged negligence for failure to diagnose the kitten as rabid at the first office visit. Second, the disputed facts indicate that Shannon may have been negligent because she recognized the danger that the kitten may have been exposed to the rabies virus and needed to be either euthanized or quarantined, but failed to communicate the same to the Langleys.

See McNew v. Decatur Veterinary Hosp., 85 Ga. App. 54 (68 SE2d 221) (1951) (recognizing that failing to warn the caretaker of the dangerous condition of a potentially rabid animal and give proper confinement instructions can constitute negligence).

Oliver v. Sutton, 246 Ga. App. 436, 438-439 (540 SE2d 645) (2000) (holding that knowing but failing to communicate a correct diagnosis may constitute a separate act of negligence). Third, the disputed facts indicate that Shannon may have negligently “failed to warn” the Langleys of the risk associated with caring for a potentially rabid animal.