Context: An expert could do this by having his reanalysis published in a peer-reviewed journal or by pointing to methodological flaws in the published study and explaining how she corrected them. However, an expert cannot simply, without any explanation for rejecting a published, peer-reviewed analysis, conduct his own "reanalysis" solely for the purposes of litigation and testify that the data support a conclusion opposite that of the studies' authors in a peer-reviewed publication.

"A scientific study not subject to peer review has little probative value."

Div. of Richardson-Merrell, Inc., 646 F.Supp. 856, 865 (D.Mass.1986) (“Even if this Court were to find the methodology of Dr. Swan’s re-analysis credible, this Court still could not accept result-oriented reanalysis of epidemiological studies ..., such as that performed here by Dr. Swan, as reliable data upon which to base an opinion on causation.”), aff'd, 830 F.2d 1190 (1st Cir.1987); see also Smith v. Ortho Pharm. Corp., 770 F.Supp. 1561, 1579 (N.D.Ga.1991) (“A scientific study not subject to peer review has little probative value.”).

rejecting testimony of "the plaintiffs epidemiology expert ... [who] tried to refute the validity of the published epidemiological data through her own unpublished reanalysis"

See Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1162-63 (D.C.Cir.1990) (rejecting testimony of “the plaintiffs epidemiology expert ... [who] tried to refute the validity of the published epidemiological data through her own unpublished reanalysis”); Lynch v. Merrell-Nat’l Labs.


"Even if this Court were to find the methodology of Dr. Swan's re-analysis credible, this Court still could not accept result-oriented reanalysis of epidemiological studies ..., such as that performed here by Dr. Swan, as reliable data upon which to base an opinion on causation."


Context: We reverse and remand the final judgment in this case for reconsideration of the parties' equitable distribution of assets. We decline to address the issues raised by appellee (specifically the propriety of the trial court's orders on alimony and attorney's fees) because correcting the valuation of the assets and liabilities and their allocation between the parties will also require the trial court to re-examine those issues to avoid an inequitable diminution of each party's share of the equitable distribution.

stating that attorney's fees in a dissolution of marriage action should be awarded based on .need and ability to pay, and noting that "[i]t is appropriate for a court to award attorney's fees to avoid an inequitable diminution of the spouse's share of the equitable distribution"

See Roth v. Cortina, 59 So.3d 163, 165 (Fla. 3d DCA 2011) (“As this court and Florida Statute section 61.075(9) make clear, a ‘trial court is first to do the equitable distribution of assets, and once the assets have been equitably distributed, make a determination whether alimony should be awarded.’” (alteration in original) (quoting Acker v. Acker, 821 So.2d 1088, 1092 (Fla. 3d DCA 2002))); see also Conlan v. Conlan, 43 So.3d 931, 933-34 (Fla. 4th DCA 2010) (stating that attorney’s fees in a dissolution of marriage action should be awarded based on .need and ability to pay, and noting that “[i]t is appropriate for a court to award attorney’s fees to avoid an inequitable diminution of the spouse’s share of the equitable distribution”).

"As this court and Florida Statute section 61.075(9) make clear, a 'trial court is first to do the equitable distribution of assets, and once the assets have been equitably distributed, make a determination whether alimony should be awarded.'" (alteration in original


Context: Upon careful review, we conclude that the district court did not abuse its discretion in imposing a sentence at the bottom of Reynard's applicable advisory Guidelines range, as there is no indication that the district court overlooked or misapplied a relevant section 3553(a) factor, gave significant weight to an improper or irrelevant factor, or committed a clear error of judgment in weighing appropriate factors.

appellate role is limited to determining substantive reasonableness of specific sentence where advisory Guidelines range was determined in accordance with SS 2G2.2

See United States v. Stults, 575 F.3d 834, 849 (8th Cir.2009) (absent reversible procedural error, appellate court reviews reasonableness of district court’s sentence for abuse of discretion); United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir.2005) (defining ways in which abuse of discretion may occur); see also United States v. Shuler, 598 F.3d 444, 448 (8th Cir.2010) (appellate role is limited to determining substantive reasonableness of specific sentence where advisory Guidelines range was determined in accordance with § 2G2.2); United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (appellate presumption of reasonableness may be applied to within-Guidelines-range sentence).

absent reversible procedural error, appellate court reviews reasonableness of district court's sentence for abuse of discretion


appellate presumption of reasonableness may be applied to within-Guidelines-range sentence


Context: See, e.g., Guardians Ass'n of N.Y. City Police Dep't, Inc. 'v. When the employment position involves public safety, we accord greater latitude to the employer's showing of job-relatedness and business necessity.

finding sufficient support for an employer's truck-driving experience requirements, noting that "[a]n industry with the primary function of managing the safety of large numbers of passengers must be allowed more latitude in structuring the requirements which could [a]ffect the performance of a primary business objective"

Chrisner, 645 F.2d at 1262-63 (finding sufficient support for an employer’s truck-driving experience requirements, noting that “[a]n industry with the primary function of managing the safety of large numbers of passengers must be allowed more latitude in structuring the requirements which could [a]ffect the performance of a primary business objective”); see also Spurlock v. United Airlines, Inc., 475 F.2d 216, 219 (10th Cir.1972) (“[W]hen the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related.”).

"[W]hen the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related."


Context: The trial court concluded that Safety's failure to respond to Cinergy's letters that it sent prior to the filing of the lawsuit equated to a denial of Cinergy's claims, and thus, a waiver of Safety's right to arbitrate. However, "[mJere silence or inaction on the part of an insurer is not sufficient to constitute an express waiver." While we do not approve of Safety's failure to acknowledge Cinergy's letters, given the facts of this case, including the fact that Safety had issued excess umbrella policies that would not be implicated until after the primary and umbrella policies, we cannot conclude that Safety's silence equated to an express denial of coverage. Therefore, we must conclude that the trial court erred by concluding that Safety waived its right to arbitrate by failing to respond to Cinergy's letters.

See, eg., Protective Ins., 428 N.E.2d at 661 (noting that "the failure of [the insurance company] to respond to the demand to defend letter is not evidence that [the insurance company] intended to waive its right to deny coverage"); see also MPACT, 802 N.E.2d at 910 (holding that the issue of waiver requires an analysis of the specific facts in each case).


Context: Although McWatters does not support the view that the prior kidnapping was relevant, I recognize that the prior kidnapping may be relevant under the case law relied upon by the trial court below in allowing the evidence.

holding that evidence that the defendant had "stalked, threatened, and assaulted" the victim, his ex-girlfriend, was evidence as to the nature of the defendant's relationship with the victim and that it was relevant to establish motive

See Spencer v. State, 645 So.2d 377 (Fla.1994) (holding that evidence of two prior incidents of violence by the defendant toward his wife in the months before the murder were relevant to premeditation where defendant claimed that it was a “heat of passion” killing); King v. State, 436 So.2d 50 (Fla.1983) (holding that evidence that twenty-three days before the murder, defendant had beaten the victim, with whom he was living, to the point that she became unconscious was “proper as evidence of premeditation”); see also Dennis v. State, 817 So.2d 741, 761 (Fla.2002) (holding that evidence that the defendant had “stalked, threatened, and assaulted” the victim, his ex-girlfriend, was evidence as to the nature of the defendant’s relationship with the victim and that it was relevant to establish motive).

holding that evidence of two prior incidents of violence by the defendant toward his wife in the months before the murder were relevant to premeditation where defendant claimed that it was a "heat of passion" killing


holding that evidence that twenty-three days before the murder, defendant had beaten the victim, with whom he was living, to the point that she became unconscious was "proper as evidence of premeditation"


Context: To constitute constitutionally ineffective assistance under Strickland, the defendant must show his counsel's performance was both deficient and prejudiced the defense. Watson's argument fails the first prong of Strickland because counsel does not perform deficiently by declining to pursue a losing argument.

"[F]ailure to renew a non-meritorious motion renders a lawyer's performance efficient, not deficient."

See, e.g., United States v. Kelly, 552 F.3d 824, 831 (D.C.Cir.2009) (ineffective assistance claim “plainly fails inasmuch as his counsel was not obliged to raise a meritless defense”); see also United States v. Carr, 373 F.3d 1350, 1354 (D.C.Cir.2004) (“[F]ailure to renew a non-meritorious motion renders a lawyer’s performance efficient, not deficient.”).

ineffective assistance claim "plainly fails inasmuch as his counsel was not obliged to raise a meritless defense"


Context: Absent a challenge by an adversary party, on the present record and the facts found here, we discern no basis for concluding that the testator did not make the bequest with full knowledge and intent. See G.

See also Lynde v. Vose, 326 Mass. 621, 623 (1951) (improper to appoint guardian ad litem to represent interests of deceased person).

discussing judge's statutory authority to order notice and appoint a guardian ad litem in certain circumstances

L. c. 206, § 24; Matter of the Trusts Under the Will of Crabtree, 440 Mass. at 190-194 & n.30 (discussing judge’s statutory authority to order notice and appoint a guardian ad litem in certain circumstances).


Context: "If action is taken for a fraudulent purpose or to carry out a fraudulent purpose or to carry out a fraudulent scheme, the action is void and of no force or effect." Richard A. Lord, Williston On Contracts Sec. 69.4 (4th Ed.2003). A release may be set aside if it was obtained fraudulently.

Stanley v. Holms, 293 Mont. 343, 975 P.2d 1242 (1999) (recognizing the invalidity of releases under fraudulent conditions but granting a motion for summary judgment because party had not set forth sufficient indicia of fraud); Riggs et al. v. Gillespie, 241 F. 311 (4th Cir.1917) (finding a release invalid as it was obtained by a “fraud in equity”); see also Ladenburg Thalmann & Co., Inc. v. Imaging Diagnostic Systems, Inc., 176 F.Supp.2d 199 (S.D.N.Y.2001) (acknowledging that a release is a voidable contract when a party is fraudulently induced to execute a release). If a release is obtained by fraud, it is unenforceable under Montana law.


finding a release invalid as it was obtained by a "fraud in equity"


Context: The district court did not consider whether defendants would be prejudiced if plaintiffs were granted leave to amend, and we see no basis for a finding of prejudice. Plaintiffs simply seek to add specificity to scienter allegations in a situation where defendants are aware of the circumstances giving rise to the action.

Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) (noting that merely adding specificity to allegations generally does not cause prejudice to the opposing party); Laber, 438 F.3d at 427; see also Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.1980) (“Because defendant was from the outset made fully aware of the events giving rise to the action, an allowance of the amendment could not in any way prejudice the preparation of defendant’s case.”).

"Because defendant was from the outset made fully aware of the events giving rise to the action, an allowance of the amendment could not in any way prejudice the preparation of defendant's case."


Context: The IJ correctly determined that RosasLeon's 2004 conviction for violating Cal.Penal Code SS 273.5 is an aggravated felony crime of violence under 8 U.S.C. SS 1101(a)(43)(F), where he was sentenced to a term of imprisonment of one year.

a conviction under Cal.Penal Code SS 273.5 is categorically a crime of violence under 18 U.S.C. SS 16(a

See Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir.2010) (a conviction under Cal.Penal Code § 273.5 is categorically a crime of violence under 18 U.S.C. § 16(a)); see also Renteria-Morales v. Mukasey, 551 F.3d 1076, 1083 (9th Cir. 2008) (“[W]e do not use the categorical and modified categorical approach to determine whether a petitioner has met any sentencing requirement specified in § 1101(a)(43).”). The IJ therefore did not err in concluding that Rosas-Leon was statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).

"[W]e do not use the categorical and modified categorical approach to determine whether a petitioner has met any sentencing requirement specified in SS 1101(a)(43)."


Context: As defendant points out, the IAD recognizes the detrimental effects of pending charges.

See § 24-60-501, art. I, C.R.S.2001 (untried charges and detainers "produce uncertainties which obstruct programs of prisoner treatment and rehabilitation"); People v. Higinbotham, 712 P.2d 993, 997 (Colo.1986)(the primary purpose of the IAD is "to provide a mechanism for prisoners to insist upon speedy and final disposition of untried charges that are the subjects of detainers so that prison rehabilitation programs initiated for the prisoners' benefit will not be disrupted or precluded by the existence of these untried charges"); see also United States v. Kurt, 945 F.2d 248 (9th Cir.1991)(IAD procedures prevent prosecutorial abuses of the power of detainer that potentially allow a defendant to languish in the separate jurisdiction under the constant, but uncertain threat of further prosecution).


Context: Additionally, we conclude that Bratcher's probation conditions 21 and 23 are neither overbroad or vague and that they are reasonably related to attaining the goals of rehabilitation and protecting the public Indeed, our Court has explained that because "child molesters molest children to whom they have access[,]" conditions of probation that "reduce the potential for access to children are reasonable." Condition 21 simply requires him to acquire the approval of his probation officer, and condition 23 specifically applies to websites "frequented by children." Accordingly, we conclude that the trial court did not abuse its discretion by imposing probation conditions 21 and 28.

See, eg., Patton, 990 N.E.2d at 515-16 (upholding sex offender's probation condition that prohibited him from accessing websites frequented by children); McVey, 863 N.E.2d at 450 (holding that the defendant/child molester's probation condition-which restricted his internet access unless he had prior approval of his probation officer-was reasonably related to his reintegration into the community and to protecting the public); Smith, 779 N.E.2d at 118 (holding that the trial court did not err by restricting the defendant/child molester's gaccess to computers and online computer services).

See also Harris v. State, 836 N.E.2d 267, 275 (Ind.Ct.App.2005) (holding that a parole condition, which restricted a parolee's access to the internet unless he had prior approval of his parole officer, was reasonably related to reintegrating the parolee into his community and protecting the general public and did not violate parolee's First Amendment rights).


holding that the defendant/child molester's probation condition-which restricted his internet access unless he had prior approval of his probation officer-was reasonably related to his reintegration into the community and to protecting the public


holding that the trial court did not err by restricting the defendant/child molester's gaccess to computers and online computer services


Context: Petitioner raised grounds one and two of the Petition on direct appeal, and the court of appeal rejected them on the merits. (Lodged Docs. K, B.) Subsequently, the California Supreme Court denied Petitioner's petition for review without comment or citation to authority. (Lodged Doc. D.) The Court therefore "looks through" the state supreme court's silent denial to the last reasoned decision, the court of appeal decision on direct review, as the basis for the state court's judgment as to ground one.

when state supreme court denies discretionary review of decision on direct appeal, that decision is relevant state-court decision for pui'poses of AEDPA's standard of review

See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (holding that California Supreme Court, by silently denying petition for review, presumably did not intend to change court of appeal’s analysis); see also Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (when state supreme court denies discretionary review of decision on direct appeal, that decision is relevant state-court decision for pui'poses of AEDPA’s standard of review).

holding that California Supreme Court, by silently denying petition for review, presumably did not intend to change court of appeal's analysis


Context: See Mathews' Dep. at 78, 83-84, 87-88, 96, 123-127. Mathews' violation of Giant's policy indicates that his performance was not satisfactory.

holding that employee's performance was unsatisfactory in part because he was tardy on a regular basis

See Blair v. Colonnas Shipyard Inc., 52 F.Supp.2d 687, 694 (E.D.Va.1999), aff'd mem., 203 F.3d 819 (4th Cir.2000) (“Accordingly, since [employee] violated policies that the [employer] considered ‘very important,’ he did not perform his job satisfactorily and cannot establish a prima facie case of race discrimination.”); see also Farasat v. Pauli-kas, 32 F.Supp.2d 249, 255 (D.Md.1998), aff'd mem., 166 F.3d 1208 (4th Cir.1998) (holding that employee’s performance was unsatisfactory in part because he was tardy on a regular basis).

"Accordingly, since [employee] violated policies that the [employer] considered 'very important,' he did not perform his job satisfactorily and cannot establish a prima facie case of race discrimination."


Context: According ly, further discovery is not necessary for the Court to construe the Agreement. Mfrs.

Hanover Trust Co. v. Jayhawk Assocs., 766 F.Supp. 124, 127 (S.D.N.Y.1991) (application for further discovery denied when the contract is unambiguous); Kashfi v. Phibro-Salomon, Inc., 628 F.Supp. 727, 736 (S.D.N.Y.1986) (further discovery is “pointless” where the contract is unambiguous); see, e.g., Young v. Liberty Mut. Ins. Co. No. 96 Civ. 1189, 1999 WL 301688 at *5 (D.Conn. Feb. 16, 1999) (discovery granted when extrinsic evidence was necessary to interpret contract language); Nuclear Fuel Servs., Inc. v. N.Y. State Energy Research & Dev. Auth., No 87 Civ. 1160, 1989 WL 132027 at *4 (W.D.N.Y. Nov. 1, 1989) (no discovery warranted when the contractual language is clear and unambiguous).


no discovery warranted when the contractual language is clear and unambiguous


Context: The Secretary argues Woodruff does not have a disability in the technical sense of 42 U.S.C. SS 12102(2). But as noted above, this argument appeared first in the Secretary's Reply to Woodruffs Opposition, at which point Woodruff had no opportunity to develop the record in response. Therefore, we shall not consider the argument here.

"The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the dis cretion of the courts of appeals, to be exercised on the facts of individual cases."

See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the dis cretion of the courts of appeals, to be exercised on the facts of individual cases.”); Sadlowski v. United Steelworkers of Am., 645 F.2d 1114, 1120 (D.C.Cir.1981) (“Typically when summary judgments are upheld on grounds different from those relied on by the district court, the other grounds were urged at trial.”), rev’d on other grounds, 457 U.S. 102, 102 S.Ct. 2339, 72 L.Ed.2d 707 (1982); cf. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1537 (D.C.Cir.1984) (en banc) (refusing to order summary judgment prior to discovery, as it would be “clearly unjust for the appellate court to direct the issuance of summary judgment” unless the issue “was clearly framed by the proceedings below so that the parties had a legitimate chance to submit all relevant materials and argue their implications”), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985).

refusing to order summary judgment prior to discovery, as it would be "clearly unjust for the appellate court to direct the issuance of summary judgment" unless the issue "was clearly framed by the proceedings below so that the parties had a legitimate chance to submit all relevant materials and argue their implications"


Context: It is also true that the Vermont Supreme Court has recently evidenced upon several occasions its readiness to reexamine in the light of modern conditions and new legal developments some of the legal maxims and shibboleths of the past.

O’Brien v. Comstock Foods, Inc., 125 Vt. 158, 212 A.2d 69 (1965) (privity of contract not essential for action of negligence against food processor) ; Forcier v. Grand Union Stores, Inc., 264 A.2d 796 (Vt.1970) (duty of business invitor to discover foreseeable debris); Rothberg v. Olenik, 262 A.2d 461 (Vt.1970) (builder responsible for breach of warranty to ultimate buyer); Thompson v. Green Mountain Power Corp., 120 Vt. 478, 144 A.2d 786 (1958) (in hen blasting case damage without physical impact actionable, i. e., recovery for shock permissible); but see Baldwin v. State, 125 Vt. 317, 215 A.2d 492 (1965) (married woman does not have independent cause of action for loss of consortium).


in hen blasting case damage without physical impact actionable, i. e., recovery for shock permissible


Context: Several courts have declined to treat different firms as a single entity, holding them jointly and severally liable for one another's acts, simply because they shared an associational name and/or collaborated on certain aspects of the relevant transaction.

dismissing complaint against Price Water-house entities outside the United States after rejecting argument that all Price Wa-terhouse affiliates worldwide were "in fact one entity, and acted as agents of one another"

See In re AM Int’l, Inc. Sec. Litig., 606 F.Supp. 600, 607 (S.D.N.Y.1985) (dismissing complaint against Price Water-house entities outside the United States after rejecting argument that all Price Wa-terhouse affiliates worldwide were “in fact one entity, and acted as agents of one another”); Reingold v. Deloitte, Haskins & Sells, 599 F.Supp. 1241, 1249, 1254 n. 10 (S.D.N.Y.1984) (holding that existence of DH & S International, “an organization composed of a large number of affiliated accounting firms,” did not prove DH & S was “a single worldwide entity” even though some brochures described DH & S (U.S.) as “a single cohesive worldwide organization”).

noting in dicta that defendant was not a legal entity, but "an associational name used by a group of affiliated advertising agencies which are incorporated in different countries"

Cf. Noonan v. Winston Co., 902 F.Supp. 298, 300 n. 6 (D.Mass.1995) (noting in dicta that defendant was not a legal entity, but “an associational name used by a group of affiliated advertising agencies which are incorporated in different countries”); Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 660, 662 (S.D.N.Y.1997) (finding, in evaluation of personal jurisdiction, that “public relations materials suggesting] that Klynveld is a global firm or an international network of member firms” do not justify a finding of a partnership or agency between Klyn-veld and Peat Marwick US).


finding, in evaluation of personal jurisdiction, that "public relations materials suggesting] that Klynveld is a global firm or an international network of member firms" do not justify a finding of a partnership or agency between Klyn-veld and Peat Marwick US


holding that existence of DH & S International, "an organization composed of a large number of affiliated accounting firms," did not prove DH & S was "a single worldwide entity" even though some brochures described DH & S (U.S.


Context: P12 Contrary to defendant's contention, subsections (1)(b) and (1)(c) punish different conduct. As relevant here, to be found guilty based on threats or intimidation under subsection (1)(b), the defendant (or the principal, if the defendant is guilty as a complicitor) must knowingly threaten or intimidate the victim with a deadly weapon. SS 18-4-302(1)(b). As relevant here, to be found guilty under subsection (1)(c), the defendant (or the principal, if the defendant is guilty as a com-plicitor) need not use a deadly weapon to threaten or intimidate the victim. SS 18-4-302(1)(c). Because the two subsections pro-seribe different means by which a victim may be robbed through the use of threats or intimidation, they do not contain identical statutory elements, and therefore do not punish identical conduct.

See Campbell v. People, 73 P.3d 11, 14 (Colo.2003) (comparing statutory elements to determine whether two statutes proseribe identical conduct); see also People v. Loomis, 857 P.2d 478, 480 (Colo.App.1992) (discussing similar distinetion between elements of first degree and second degree burglary).


Context: Furthermore, the Court notes that, even if the Yahoo Search Warrants were defective under these provisions of the SCA, the SCA is a statute, not a constitutional rule requiring heightened protection.

"some violations of Rule 41 can lead to the suppression of evidence regardless of whether the search was reasonable under the Fourth Amendment."

See United States v. Donovan, 429 U.S. 413, 432 n. 22, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (“The availability of a suppression remedy for ... statutory, as opposed to constitutional violations ... turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.”); United States v. Guzman, 879 F.Supp.2d 312, 322 (E.D.N.Y.2012) (finding that violations of the Juvenile Delinquency Act’s (JDA) statutory parental notification requirement did not require a per se suppression remedy); United States v. Clenney, 631 F.3d 658, 667 (4th Cir.2011) (“[i]n the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text”); United States v. Abdi, 463 F.3d 547, 556 (6th Cir.2006) (“Although exclusion is the proper remedy for some violations of the Fourth Amendment, there is no exclusionary rule generally applicable to statutory violations.”); but see United States v. Pulliam, 748 F.3d 967, 973 (10th Cir.2014) (“some violations of Rule 41 can lead to the suppression of evidence regardless of whether the search was reasonable under the Fourth Amendment.”).

"The availability of a suppression remedy for ... statutory, as opposed to constitutional violations ... turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights."


"[i]n the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text"


"Although exclusion is the proper remedy for some violations of the Fourth Amendment, there is no exclusionary rule generally applicable to statutory violations."


Context: Remand to the Commissioner is the appropriate disposition where, as here, the ALJ incorrectly applied the law and failed to adequately develop the medical record.

"When there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence."

See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996) (“When there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence.”) (citation omitted) (alteration in original); see also Rosa, 168 F.3d at 83 (remanding to the Commissioner for further development of the evidence where the ALJ “failed to fulfill her duty in [claimant’s] case in several respects.”) (internal quotations omitted) (alteration in original); Devora, 205 F.Supp.2d at 173 (“Where the ALJ has failed to develop the administrative record, remand for a new hearing is appropriate.”); Welch v. Chater, 923 F.Supp. 17, 20 (W.D.N.Y.1996) (remanding to the Commissioner for further evidentia-ry proceedings where ALJ failed to sufficiently develop the record regarding claimant’s ability to handle the mental demands of past work).

remanding to the Commissioner for further development of the evidence where the ALJ "failed to fulfill her duty in [claimant's] case in several respects."


"Where the ALJ has failed to develop the administrative record, remand for a new hearing is appropriate."


remanding to the Commissioner for further evidentia-ry proceedings where ALJ failed to sufficiently develop the record regarding claimant's ability to handle the mental demands of past work


Context: Reply Brief of Appellant at 3. Miles' testimony was introduced on the fifth day of a six-day trial. The trial judge was in the best position to evaluate its probative value in the context of all the evidence presented.

"It would be awkward to refuse evidence bearing on an. element of the crime because, through hindsight, we are able to say that it proved unnecessary in the end."

See United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981) (admission not an abuse of discretion where “[t]he evidence concerning intent and motive was not so great as to make the evidence of similar crimes cumulative”); see also Havelock v. United States, 427 F.2d 987, 990-91 (10th Cir.) (“It would be awkward to refuse evidence bearing on an. element of the crime because, through hindsight, we are able to say that it proved unnecessary in the end.”), cert. denied, 400 U.S. 946, 91 S.Ct. 252, 27 L.Ed.2d 251 (1970).

admission not an abuse of discretion where "[t]he evidence concerning intent and motive was not so great as to make the evidence of similar crimes cumulative"


Context: However, the burden is upon the appellant to furnish sufficient evidence to the trial court and to designate a record sufficient to present her points to the appellate court to establish the claimed error.

See Beaty v. Beaty, 167 Mich. App. 553, 557, 423 N.W.2d 262 (1988) (a husband’s non-contributory pension does not have to be divided in the absence of any showing by the wife as to its present value); Miller v. Miller, 83 Mich. App. 672, 675, 269 N.W.2d 264, 266 (1978) (party seeking to include pension interest in marital estate for purposes of distribution in divorce proceedings bears burden of proving reasonably ascertainable value, and if burden is not met, interest should not be considered as asset subject to distribution); but see, In re Marriage of Steinke v. Steinke, 126 Wis. at 383 (trial court must evaluate and include the pension interest in the property division whether or not the parties present evidence on its value).

a husband's non-contributory pension does not have to be divided in the absence of any showing by the wife as to its present value


party seeking to include pension interest in marital estate for purposes of distribution in divorce proceedings bears burden of proving reasonably ascertainable value, and if burden is not met, interest should not be considered as asset subject to distribution


Context: In addressing the Court's ability to enter a final judgment on Count III of the Plaintiffs Complaint, the Plaintiff takes the position that her fraud/intentional misrepresentation claim must be resolved in the claims allowance process because these misrepresentations induced her to enter into the 2004 and 2005 Forbearance Agreements, upon which the Defendants' rely as a defense to the Plaintiffs allegations. A forbearance agreement is unenforceable if it is induced by fraud or bad faith.

holding "forbearance to sue is a good consideration for a promise founded thereon" and "[i]t is only essential that the claim be asserted in good faith."

See Cook v. Cook, 299 S.W.2d 261, 264 (Ky.1957) (holding “forbearance to sue is a good consideration for a promise founded thereon” and “[i]t is only essential that the claim be asserted in good faith.”); see also Ruckel v. Baston, 252 S.W.2d 432 (Ky.1952) (holding forbearance to prosecute a doubtful claim asserted in good faith will constitute adequate consideration).


Context: The Chambers Court explicitly recognized courts' inherent power to "assess attorney's fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." The Chambers Court also held that the presence of statutes specifically authorizing certain sanctions in certain cases does not eliminate a court's power to impose sanctions under its inherent authority.

"An equity court has the unquestioned power to award attorney's fees against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order."

See 111 S.Ct. at 2134 (“We discern no basis for holding that the sanctioning scheme of the statute and the rules displaces the inherent power to impose sanctions for the bad-faith conduct described above.”); see also Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S.Ct. 2565, 2573 n. 14, 57 L.Ed.2d 522 (1978) (“An equity court has the unquestioned power to award attorney’s fees against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order.”); United States v. Williams, 894 F.2d 215, 217 (7th Cir.1990) (court’s inherent authority authorizes sanction on attorney in criminal case); In re Cordova Gonzalez, 726 F.2d 16, 20 (1st Cir.) (same), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984); In re Sutter, 543 F.2d 1030, 1037 (2d Cir.1976) (same).

"We discern no basis for holding that the sanctioning scheme of the statute and the rules displaces the inherent power to impose sanctions for the bad-faith conduct described above."


court's inherent authority authorizes sanction on attorney in criminal case


Context: In order to obtain credit for MBT from Virginia corporations, Aboud submitted false information to Dun & Bradstreet, and she faxed credit applications to ePlus and Intelligent Decisions, Inc. in Virginia. Because ePlus's claims involve credit fraud, these acts alone are sufficient to justify the court's exercise of jurisdiction over Aboud.

"[Contacts related to the cause of action must create a 'substantial connection' to the forum state."

See English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir.1990) (“[A] single act by a nonresident which amounts to transacting business in Virginia and gives rise to a cause of action may be sufficient to confer jurisdiction upon [Virginia] courts.”) (internal quotes omitted) (second alteration in original); see also ESAB Group, Inc., 126 F.3d at 625 (“[Contacts related to the cause of action must create a ‘substantial connection’ to the forum state.”) (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)).

"[A] single act by a nonresident which amounts to transacting business in Virginia and gives rise to a cause of action may be sufficient to confer jurisdiction upon [Virginia] courts."


Context: Thus, the issue of initial removal by a defendant other than the first-served defendant was simply not before the court in McKinney. Therefore, the McKinney court's expression in Footnote 3 regarding the application of SS 1446 in the circumstance where the first-served defendant had not timely filed a notice of removal was gratuitous and unrelated to the issue then before the court. Footnote 3 is classic judicial dictum: "an opinion by a court ... that is not essential to the decision," Black's Law Dictionary 485 (8th ed.2004) and therefore not binding on later panels in this circuit.

commenting on "the need to distinguish an opinion's holding from its dicta"

Pasquantino, 336 F.3d at 329 (“dicta ... cannot serve as a source of binding authority in American jurisprudence”); see also U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 463, n. 11, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (commenting on “the need to distinguish an opinion’s holding from its dicta”).

"dicta ... cannot serve as a source of binding authority in American jurisprudence"


Context: See The Trademark Act of 1946 (LanhamAct), 15 U.S.C. SS1127 (2000). As a consequence, the majority of courts look to whether the franchisor exercised control over the day-to-day operations of the franchisee or controlled through the franchise agreement the instrumentality which caused the harm.

restaurant franchisor not vicariously liable for franchisee's negligent supervision of employees where the franchisor had no control or right of control over the daily hiring and supervision of the franchisee's employees

See Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d 328, 338-40 (Wis. 2004) (restaurant franchisor not vicariously liable for franchisee’s negligent supervision of employees where the franchisor had no control or right of control over the daily hiring and supervision of the franchisee’s employees); see also Evans v. McDonald’s Corp., 936 F.2d 1087, 1090 (10th Cir. 1991) (franchisor not liable as an employer under Title VII even though it provided the manner of the franchise’s operations, frequent inspections, and training for employees, it did not have control over employment relations); Wendy Hong Wu v. Dunkin’ Donuts, Inc., 105 F.Sup.2d 83, 87-94 (E.D.N.Y. 2000) (franchisor not vicariously liable for franchisee’s security deficiencies because the franchise agreement did not give the franchisor “considerable control . . . over the specific instrumentality at issue”); Viches v. MLT, Inc., 127 F.Sup.2d 828, 832 (E.D.Mich. 2000) (hotel franchisor not vicariously liable for franchisee’s negligent use of pesticides where the franchise agreement only ensured “uniformity and standardization ... of services”); Jones v. Filer, Inc., 43 F.Sup.2d 1052, 1056-58 (W.D.Ark. 1999) (franchisor not vicariously liable for franchisee or its employees even though franchise agreement addressed training programs, advertising, hours of the franchisee’s operation, and decor; franchisor did not exercise control over hiring, firing, and supervising of employees); Hatcher v. 7-Eleven and Southland Corp., 956 F.Sup. 387, 392 (E.D.N.Y. 1997) (franchisor not franchisee’s employer under Title VII even though it provided an administrative payroll service, checks, unemployment benefits, workers’ compensation insurance, payroll insurance, and social security contribution, because franchisor did not hire, fire, or supervise the franchisee’s employees); Perry v. Burger King, Corp., 924 F.Sup. 548, 554 (S.D.N.Y. 1996) (restaurant franchisor could not be held vicariously liable for race discrimination by franchisee because the franchise agreement did not allow the franchisor control over employment issues); Vandemark v. McDonald’s Corp., 904 A.2d 627, 636 (N.H. 2006) (restaurant franchisor not vicariously liable for attack on franchisee’s employee because the franchisor established uniformity and standardization of products and services and did not exercise control over security operations); Pizza K., Inc. v. Santagata, 547 S.E.2d 405, 406-07 (Ga.Ct.App. 2001) (pizza franchisor not vicariously liable for franchisee delivery driver’s accident because franchisor did not supervise the day-to-day activities of the franchisee’s employees); Little v. Howard Johnson Co., 455 N.W.2d 390, 393-94 (Mich.Ct.App. 1990) (restaurant franchisor not vicariously liable for injuries of franchisee patron who slipped on ice because franchise agreement provided for “uniformity and standardization of products,” and did not give the franchisor control over daily operations).

franchisor not liable as an employer under Title VII even though it provided the manner of the franchise's operations, frequent inspections, and training for employees, it did not have control over employment relations


restaurant franchisor not vicariously liable for attack on franchisee's employee because the franchisor established uniformity and standardization of products and services and did not exercise control over security operations


pizza franchisor not vicariously liable for franchisee delivery driver's accident because franchisor did not supervise the day-to-day activities of the franchisee's employees


restaurant franchisor not vicariously liable for injuries of franchisee patron who slipped on ice because franchise agreement provided for "uniformity and standardization of products," and did not give the franchisor control over daily operations


Context: We think that the nuanced, case-specific approach of Williams is consistent with the strictures of Rufo and with the equitable nature of relief from a decree under Rule 60(b)(5).

noting that Rule 60(b)(5) permits relief from a court order when '"it is no longer equitable that the judgment should have prospective application' "

See Rufo, 502 U.S. at 383, 112 S.Ct. at 760 (noting that Rule 60(b)(5) permits relief from a court order when ‘“it is no longer equitable that the judgment should have prospective application’ ”).

"the decision as to whether to modify or dissolve [a structural decree] is at bottom an exercise of equitable power" that calls for a "deferential standard of review"

See also Mackin, 969 F.2d at 1278 (“the decision as to whether to modify or dissolve [a structural decree] is at bottom an exercise of equitable power” that calls for a “deferential standard of review”).


Context: In the contempt order itself, for example, the bankruptcy court found that Hicks had intentionally violated the December 7, 1983 order. Such a finding is not required for a civil contempt.

"In civil contempt proceedings ... the failure to comply with the court decree need not be itnentional."

NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1183 (D.C.Cir.1981) ("In civil contempt proceedings ... the failure to comply with the court decree need not be itnentional.”). Additionally, while the contempt proceedings in this case were instituted by the court, civil contempt proceedings normally "should be instituted by the parties aggrieved." 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2960, at 587 (1973); see also WMATA v. Amalgamated Transit Union, National Capital Local Division 689, 531 F.2d 617, 622 (D.C.Cir.1976) ("In the civil contempt setting, the court has no independent interest in vindicating its authority should its order be violated.”).

"In the civil contempt setting, the court has no independent interest in vindicating its authority should its order be violated."


Context: By its own terms, Rule 615(2) "does not authorize" the sequestration of a corporate representative. Therefore, the exclusion of a corporate representative from a deposition is governed by Rule 26(c)(5), and the party seeking to exclude a corporate representative at a deposition must show good cause for his exclusion.

"The extent of the court's authority to determine those present was enlarged by the 1970 revision of the Rules of Discovery____ In view of the revision, it is clear that the court has the power to exclude even a party, although such an exclusion should be ordered rarely indeed"

See also Galella v. Onassis, 487 F.2d 986, 997 (2nd Cir.1973) (“The extent of the court’s authority to determine those present was enlarged by the 1970 revision of the Rules of Discovery____ In view of the revision, it is clear that the court has the power to exclude even a party, although such an exclusion should be ordered rarely indeed”); 10 Fed.Proc., L.Ed., § 26:166 at 407 (1985) (Under Rule 26(c)(5), the court has the power to exclude even a party). If a deponent does not fall within one of Rule 615’s three exceptions to sequestration, then Rule 615’s mandatory rule of sequestration applies.

Sequestration of an expert witness or a "person whose presence is shown by a party to be essential to the presentation of the party's cause" is not authorized by Rule -615(3

See Skid-more v. Northwest Eng’g Co., 90 F.R.D. 75, 76 (S.D.Fla.1981) (Sequestration of an expert witness or a “person whose presence is shown by a party to be essential to the presentation of the party’s cause” is not authorized by Rule -615(3), but such a person may be excluded from a deposition pursuant to Rule 26(c)(5) for good cause shown).


Context: . Relators argue, however, that because the restraining orders targeted only persons identified with the "pro-life" movement, the orders were, in context, aimed at the "pro-life" message, and are thus not "content-neutral." This argument has been explicitly rejected in a number of the cases cited above.

court order applying only to pro-life protesters not "content-based" because "only those persons [were] proven [to] have created ... a threat of violence and intimidation"

See McMonagle, 939 F.2d at 63 (court order applying only to pro-life protesters not "content-based” because “only those persons [were] proven [to] have created ... a threat of violence and intimidation"); Terry, 886 F.2d at 1363-64; Hirsh, 401 S.E.2d at 533; Project Jericho, 556 N.E.2d at 162; Bering, 111 P.2d at 926; cf. Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir.1989) (ordinance prohibiting use of hand-held amplifiers within 150 feet of medical facilities was not content-based restriction of pro-life demonstrators’ speech where language of ordinance said nothing about content of amplified speech); but cf. Thomason v. Jemigan, 770 F.Supp. 1195, 1199-1203 (E.D.Mich.1991) (city’s vacation of cul de sac to abortion clinic in order to permit clinic to invoke trespass laws over areas not "content neutral" where pro-life protesters were sole source of traffic problems that precipitated city’s action).

ordinance prohibiting use of hand-held amplifiers within 150 feet of medical facilities was not content-based restriction of pro-life demonstrators' speech where language of ordinance said nothing about content of amplified speech


city's vacation of cul de sac to abortion clinic in order to permit clinic to invoke trespass laws over areas not "content neutral" where pro-life protesters were sole source of traffic problems that precipitated city's action


Context: Taylor's significant threat to others was clearly exhibited by his willingness to engage in noncompliant behavior, such as consuming alcohol, and mailing threatening letters to various individuals and law enforcement.

See United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir.1990) (“[A] finding of ‘substantial risk’ under section 4246 may be based on any activity that evinces a genuine possibility of future harm to persons or property.”); see also United States v. Williams, 299 F.3d 673, 677-78 (8th Cir.2002) (finding of substantial risk supported by evidence of delusions and refusal to participate in mental health assessment); United States v. Ecker, 30 F.3d 966, 970 (8th Cir.1994) (finding actual violent conduct, threatening letters, history of drug abuse, weapons possession, and failure to take prescribed medication supported finding of probable dangerousness).

"[A] finding of 'substantial risk' under section 4246 may be based on any activity that evinces a genuine possibility of future harm to persons or property."


finding actual violent conduct, threatening letters, history of drug abuse, weapons possession, and failure to take prescribed medication supported finding of probable dangerousness


Context: Given the specific language in the controlling opinions, it is not surprising that an overwhelming majority of federal Circuit Courts, including our Third Circuit Court of Appeals, have held that Marion/Lovasco requires proof that the government acted intentionally or in bad faith to cause delay.

But see Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990) (applying general due process test, rather than more specific test promulgated in Marion and Lovasco); Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (noting that Fourth and Ninth Circuits employ “more lenient” standard); United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir.2001) (first prong of test requires actual prejudice and second prong requires showing that delay, when balanced against prosecution’s reasons for it, offends “fundamental conceptions of justice which lie at the base of our civil and political institutions”); United States v. Doe, 149 F.3d 945, 948 (9th Cir.1998) (same).

defendant must "show that the government had improperly delayed his prosecution in order to gain a tactical advantage"

See United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.1987) (“intent by the prosecution to gain a tactical advantage”); United States v. Hoo, 825 F.2d 667, 671 (2nd Cir.1987) (defendant must “show that the government had improperly delayed his prosecution in order to gain a tactical advantage”); United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987) (defendant bears burden of proving that “the government intentionally delayed bringing the indictment in order to gain some advantage” over defendant); United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir.1996) (delay “intentionally undertaken by the government for the purpose of gaining some tactical advantage ... or for some other impermissible, bad faith purpose”); United States v. Rogers, 118 F.3d 466, 476 (6th Cir.1997) (defendant must prove delay was “device by the government to gain a tactical advantage”); United States v. Sowa, 34 F.3d 447, 450-52 (7th Cir.1994) (due process “only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith”; government bears burden to provide reasons for delay); United States v. Benshop, 138 F.3d 1229, 1232-33 (8th Cir.1998) (“Absent a showing that the government acted intentionally to harass or to gain a tactical advantage, no due process violation may be found”); United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir.1997) (defendant must prove that “government delayed purposefully in order to gain a tactical advantage”); United States v. Foxman, 87 F.3d 1220, 1223 (11th Cir. 1996) (delay must be “product of a deliberate act by the government designed to gain a tactical advantage”).


noting that Fourth and Ninth Circuits employ "more lenient" standard


first prong of test requires actual prejudice and second prong requires showing that delay, when balanced against prosecution's reasons for it, offends "fundamental conceptions of justice which lie at the base of our civil and political institutions"


defendant bears burden of proving that "the government intentionally delayed bringing the indictment in order to gain some advantage" over defendant


delay "intentionally undertaken by the government for the purpose of gaining some tactical advantage ... or for some other impermissible, bad faith purpose"


defendant must prove delay was "device by the government to gain a tactical advantage"


"Absent a showing that the government acted intentionally to harass or to gain a tactical advantage, no due process violation may be found"


defendant must prove that "government delayed purposefully in order to gain a tactical advantage"


delay must be "product of a deliberate act by the government designed to gain a tactical advantage"


Context: Here, the Plaintiff was terminated by the Defendants three weeks after the filing of the Complaint in this case. This close temporal proximity between the Plaintiffs protected activity and the adverse employment action is sufficient evidence such that a reasonable juror could conclude that the adverse employment action would not have occurred but for his engagement in pro tected activity.

See Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir.2007) (“This Court typically [has] found the causal connection element [is] satisfied only where the adverse employment action occurred within a matter of months, or less, of the protected activity”); see also Herrera v. Churchill McGee, LLC, 545 Fed.Appx. 499, 501 (6th Cir.2013) (holding that a temporal proximity of one month between the plaintiffs protected activity and adverse employment action was sufficient to establish a causal connection); Shefferly v. Health Alliance Plan of Mich., 94 Fed.Appx. 275, 285 (6th Cir.2004) (“[T]he passage of less than three weeks between [the employer’s] receipt of the charges and the adverse actions gives rise to an inference of discrimination”); DiCarlo v. Potter, 358 F.3d 408, 421-22 (6th Cir.2004) (holding that the passage of only twenty-one days between the plaintiffs filing of an EEOC charge and his termination gave rise to an inference of a causal connection between the two events sufficient to establish a prima facie case of retaliation); but see Philbrick v. Holder, 583 Fed.Appx. 478, 490 (6th Cir.2014) (holding that five weeks between protected activity and adverse employment action insufficient to establish a causal connection).

"This Court typically [has] found the causal connection element [is] satisfied only where the adverse employment action occurred within a matter of months, or less, of the protected activity"


"[T]he passage of less than three weeks between [the employer's] receipt of the charges and the adverse actions gives rise to an inference of discrimination"


holding that the passage of only twenty-one days between the plaintiffs filing of an EEOC charge and his termination gave rise to an inference of a causal connection between the two events sufficient to establish a prima facie case of retaliation


holding that five weeks between protected activity and adverse employment action insufficient to establish a causal connection


Context: . Although this case was brought and granted as a petition for prohibition, upon review we believe that the more appropriate mechanism for addressing the issues raised in the writ is through mandamus.

See Carr v. Lambert, 179 W.Va. 277, 278, n. 1, 367 S.E.2d 225, 226 n. 1 (1988) (viewing case brought as a writ of prohibition as one in mandamus); see also State ex rel. Ranger Fuel Corp. v. Lilly, 165 W.Va. 98, 100, 267 S.E.2d 435, 436 (1980) (transforming petitioner's request for a writ of mandamus into a writ of prohibition); accord State ex rel. Conley v. Hill, 199 W.Va. 686, 687, n. 1, 487 S.E.2d 344, 345 n. 1 (1997).


Context: . The briefs filed by the parties also discuss whether CREW has "prudential'' standing to challenge the FEC's action. The Court need not address this issue because Akins suggests that Congress intended to authorize standing to the full limits of Article III when it enacted FECA.

using identical analyses for the "zone of interests" component of prudential standing and the "injury in fact" component of Article III standing, and stating that "[hjistory associates the word 'aggrieved' with a congressional intent to cast the standing net broadly -- beyond the common-law interests and substantive statutory rights upon which 'prudential' standing traditionally rested."

See 524 U.S. at 19-21, 118 S.Ct. 1777 (using identical analyses for the "zone of interests" component of prudential standing and the “injury in fact" component of Article III standing, and stating that "[hjistory associates the word 'aggrieved' with a congressional intent to cast the standing net broadly — beyond the common-law interests and substantive statutory rights upon which ‘prudential’ standing traditionally rested.”) (citations omitted); cf. Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990) (finding that the court need not address "prudential” standing because Congress intended to authorize standing to the full extent of Article III when it passed the Fair Housing Act).

finding that the court need not address "prudential" standing because Congress intended to authorize standing to the full extent of Article III when it passed the Fair Housing Act


Context: Both as a matter of law and by examining the relevant facts here, it is clear that there was a potential conflict of interest at the outset of the City Attorney's Office and Christensen, Miller's representation of the City and Bugar and Hotard. Under the California Rule, a potential conflict of interest giving rise to the obligation to obtain informed written consent exists whenever an attorney represents more than one client in the same lawsuit.

"[Ijnformed consent is required before an attorney can jointly represent clients in the same matter."

See Jaeger, 213 B.R. at 584 (“California rules always require the informed written consent of each client before an attorney may jointly represent two or more clients in the same lawsuit.”); see also Zador, 31 Cal.App.4th at 1295, 37 Cal.Rptr.2d at 759 (“[Ijnformed consent is required before an attorney can jointly represent clients in the same matter.”)

"California rules always require the informed written consent of each client before an attorney may jointly represent two or more clients in the same lawsuit."


Context: Because the judge ruled on Austin's claim for recovery under the Dealer's Act, the majority believed it was unnecessary for him to file a Rule 59(e) motion.

"An aggrieved party who is confident his issues and arguments were sufficiently raised to and ruled on by the trial court may wish to simply file and serve a timely notice of appeal."

See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 25 n. 5, 602 S.E.2d 772, 781 n. 5 (2004) ("An aggrieved party who is confident his issues and arguments were sufficiently raised to and ruled on by the trial court may wish to simply file and serve a timely notice of appeal.”); cf. id. at 24 n. 4, 602 S.E.2d at 780 n. 4 ("If the losing party has raised an issue in the lower court, but the court fails to rule upon it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review.”).

"If the losing party has raised an issue in the lower court, but the court fails to rule upon it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review."


Context: We agree with the State that the mere theoretical availability of partial verdicts does not necessitate a further inquiry by the trial court where, for example, no party has requested a partial verdict be taken or the jury does not indicate that it has reached one.

determining that no manifest necessity to declare a mistrial without a defendant's consent exists without the trial judge inquiring whether the jury reached a partial verdict

But see State v. Castrillo, 90 N.M. 608, 566 P.2d 1146, 1151-52 (1977), overruled on other grounds, State v. Wardlow, 95 N.M. 585, 624 P.2d 527 (1981) (determining that no manifest necessity to declare a mistrial without a defendant’s consent exists without the trial judge inquiring whether the jury reached a partial verdict).

noting that "the absence of such an explanation [by the trial court regarding the jury's right to return a partial verdict] did not deny the appellants any protected right in a case such as this where the jury neither attempted to return a partial verdict nor even asked if it could do so"

See, e.g., United States v. DiLapi, 651 F.2d 140, 147 (2d Cir.1981) (noting that “the absence of such an explanation [by the trial court regarding the jury’s right to return a partial verdict] did not deny the appellants any protected right in a case such as this where the jury neither attempted to return a partial verdict nor even asked if it could do so”); United States v. MacQueen, 596 F.2d 76, 82 (2d Cir.1979) (declining to adopt “a per se rule that a mistrial is improperly declared whenever the trial judge fails to specifically inquire as to the possibility of a partial verdict”); Whiteaker v. State, 808 P.2d 270, 277 (Alaska Ct.App.1991) (declining “to place a burden on the trial judge to sua sponte inquire further or perform a special poll of jurors who deliberate on cases involving lesser included offenses”); Speaks v. United States, 617 A.2d 942, 952 (D.C.1992) (noting that imposing a sua sponte obligation on a trial judge to inquire regarding partial verdicts where not requested by defense counsel or indicated by the jury “threatens to disrupt the fine line which a trial judge must tread with respect to partial verdicts”).


declining to adopt "a per se rule that a mistrial is improperly declared whenever the trial judge fails to specifically inquire as to the possibility of a partial verdict"


declining "to place a burden on the trial judge to sua sponte inquire further or perform a special poll of jurors who deliberate on cases involving lesser included offenses"


noting that imposing a sua sponte obligation on a trial judge to inquire regarding partial verdicts where not requested by defense counsel or indicated by the jury "threatens to disrupt the fine line which a trial judge must tread with respect to partial verdicts"


Context: The statements at issue in the present case are also non-testimonial for purposes of the Sixth Amendment Confrontation Clause because they were not "procured for the primary purpose of creating an out-of-court substitute for trial testimony."

"[MJedical reports created for treatment purposes ... would not be testimonial under our decision today."

Michigan v. Bryant, 562 U.S. 344, 392, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011) (emphasis added); see id., (“In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”); see also White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992) (“[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.”); cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312, n. 2, 129 S.Ct. 2527, 2533, 174 L.Ed.2d 314 (2009) (“[MJedical reports created for treatment purposes ... would not be testimonial under our decision today.”) (citations omitted); Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 2692-93, 171 L.Ed.2d 488 (2008) (“[S]ince only testimonial statements are excluded by the Confrontation Clause[,] [statements to | nfriends and neighbors about abuse and intimidation [by women in abusive relationships], and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules[.]”); Bryant, 562 U.S. at 390, 131 S.Ct. at 1174 (Scalia, J., dissenting) (“Today’s opinion [a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence] adopts ... the discredited logic of- White [ ] ... [when it] announces that in future cases it will look to ‘standard rules of hearsay, designed to identify some statements as reliable,’ when deciding whether a statement is testimonial.”). Although the state has evidently not produced any proof of the victim’s demise, unavailability of the declarant is not a prerequisite for introducing the statements as a matter of either the hearsay exception in La. C.E. art. 803(4), or the Confrontation Clause of the Sixth Amendment.

"[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony."


"[S]ince only testimonial statements are excluded by the Confrontation Clause[,] [statements to | nfriends and neighbors about abuse and intimidation [by women in abusive relationships], and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules[.]"


"Today's opinion [a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence] adopts ... the discredited logic of- White [ ] ... [when it] announces that in future cases it will look to 'standard rules of hearsay, designed to identify some statements as reliable,' when deciding whether a statement is testimonial."


Context: Hospice has not alleged any conduct on the part of Blue Cross which relates to the administration of the plan, to the processing of any covered claim, or which impinges on any employee's ERISA rights.

See Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1243-44 (11th Cir.1989) (tort claim which had no effect on the administration of an employee benefit plan not preempted); Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1404 (9th Cir.1988) (“ERISA preempts only those state law claims that arise out of the administration of a covered plan”); but see St. Mary Medical Center v. Cristiano, 724 F.Supp. 732, 739 (C.D.Cal.1989) (state common law claims for misrepresentation preempted by ERISA where misrepresentation is related to entitlements under employee health benefit plan).


"ERISA preempts only those state law claims that arise out of the administration of a covered plan"


Context: Once James' term of enlistment ended, he no longer was entitled to pay under 37 U.S.C. SS 204, because he was no longer a service member.

"The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it."

See Testan, 424 U.S. at 402, 96 S.Ct. 948 (“The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.”); see also Dodson v. United States, 988 F.2d 1199, 1208 (Fed.Cir.1993) (“[A]n enlisted serviceman who has been improperly discharged is entitled to recover pay and allowances only to the date on which his term of enlistment would otherwise have expired had he not been so discharged.”). Thus, James could not have relied on § 204 as a money-mandating statute supporting Tucker Act jurisdiction in the Court of Federal Claims.

"[A]n enlisted serviceman who has been improperly discharged is entitled to recover pay and allowances only to the date on which his term of enlistment would otherwise have expired had he not been so discharged."


Context: Defendants argue that Actavis is "limited to reverse payment settlements in which the branded company pays cash to the generic company." Reply 5 (emphasis in original). Two district courts have granted motions to dismiss in post-Actavis cases on the grounds that the non-monetary settlement terms are not "payments."

"Actavis should be applied only to cash settlements, or to their very close analogues."

See In re Loestrin, 2014 WL 4368924, at *10 (“Actavis should be applied only to cash settlements, or to their very close analogues.”); see also In re Lamictal, 2014 WL 282755, at *9 (granting motion to dismiss antitrust claims because a reverse payment must be monetary). These cases are not persuasive because both turn on the court’s concern that the value of “a non-cash settlement, particularly one that is multifaceted and complex (like the arrangement here), is almost impossible to measure.” Id. at *9.


Context: Plaintiff alleges that defendants breached their fiduciary duty when they engaged in actions that deprived plaintiff and other union members of their benefits under the Health Plan. In order to state a claim under ERISA, plaintiff must allege some injury-in-fact.

plaintiff must show an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent."

Bendaoud v. Hodgson, 578 F.Supp.2d 257, 263 (D.Mass.2008) (noting that an ERISA plan participant asserting rights “on behalf of the plan” must assert an injury suffered); see, e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plaintiff must show an “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.”) Here, plaintiff alleges that co-defendants have deprived plaintiff of his “property and benefits” and asks this Court to grant relief so that plaintiff may “obtain the redress of his rights.”

noting that an ERISA plan participant asserting rights "on behalf of the plan" must assert an injury suffered


Context: As previously discussed, Orwat has succeeded in establishing for summary judgment purposes only an Eighth Amendment violation against Padula. His claims against the remaining Defendants under the MCRA fail because Orwat has not established that those Defendants deprived him of any rights.

inmate's MCRA claim actionable where inmate had sufficiently alleged a First Amendment violation when he claimed that defendant filed false disciplinary report in retaliation for inmate's filing grievance

Cf. Shabazz v. Cole, 69 F.Supp.2d 177, 202 (D.Mass., 1999) (inmate’s MCRA claim actionable where inmate had sufficiently alleged a First Amendment violation when he claimed that defendant filed false disciplinary report in retaliation for inmate’s filing grievance); Murphy v. Cruz, 52 Mass.App.Ct. 314, 753 N.E.2d 150 (2001) (inmate held to have sufficiently alleged a claim for exercise of First Amendment rights as basis for MCRA claim).

See, e.g., Columbus v. Biggio, 76 F.Supp.2d 43, 54 (D.Mass.1999); Jiles v. Dep’t of Correction, 55 Mass.App.Ct. 658, 664, 774 N.E.2d 150, 156 (2002) (MCRA claim fails where inmate fails to establish constitutional violation).


inmate held to have sufficiently alleged a claim for exercise of First Amendment rights as basis for MCRA claim


Context: Although it is true that the analytical processes for determining qualifying crimes under the ACCA and SS 212(a)(2)(A)(i)(I) of the INA are similar, the mere fact that a statute is not categorically a violent felony does not preclude it from categorically qualifying as a CIMT. By definition, the category of crimes that qualify as a CIMT is considerably broader than that covered by the ACCA. Indeed, the CIMT category of crimes contains myriad offenses that involve no physical-injury element and therefore could not qualify under the ACCA.

concluding that "maliciously and wantonly injuring] and destroying] certain personal property of another" by, in that case, killing another man's hogs, was a CIMT

See, e.g., Sema, 20 I. & N. Dec. 579, 585 n. 10 (BIA 1992) (noting that knowledge coupled with intent to harm property can constitute a CIMT); cf. M — , 3 I. & N. Dec. 272, 273 (BIA 1948) (concluding that “maliciously and wantonly injuring] and destroying] certain personal property of another” by, in that case, killing another man’s hogs, was a CIMT). Accordingly, the possibility that the Washington statute could punish wanton or willful conduct that creates a risk only to property is not alone enough to bring a non-CIMT offense within the statutory terms.

See, e.g., Serra-to-Soto, 570 F.3d at 690, 692 (concluding that fraudulent use of a Social Security number is a CIMT). Moreover, unlike the ACCA, that an offense involves risk only to property is not dispositive to the categorical analysis as applied under the INA.


noting that knowledge coupled with intent to harm property can constitute a CIMT


Context: We have held that an evidentiary hearing is required "when the defendant alleges sufficient facts which, if proven, would justify relief." In light of the record as a whole, however, it is clear that any error in failing to hold a hearing was harmless.

trial court's refusal to allow defendant to conduct voir dire of allegedly tainted witness, although erroneous, was harmless error where entire record demonstrated ample additional evidence of guilt

See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also United States v. Parker, supra, 722 F.2d at 183 (error harmless where examination of entire record reveals that lack of error would not have changed verdict); United States v. Lane, 693 F.2d 385, 390 (5th Cir.1982) (to conclude error harmless beyond reasonable doubt, appellate court must examine entire record); accord United States v. Williams, 616 F.2d 759, 761 (5th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980); cf. United States v. Marder, supra, 474 F.2d at 1197 (trial court’s refusal to allow defendant to conduct voir dire of allegedly tainted witness, although erroneous, was harmless error where entire record demonstrated ample additional evidence of guilt).


to conclude error harmless beyond reasonable doubt, appellate court must examine entire record


Context: . The Court also found motive to be relevant to Plaintiffs' facial challenges, which Defendants do not contest at this'stage of the litigation.

See Tartikov, 915 F.Supp.2d at 611-14; see also Santa Fe Independent Sch. Distr. v. Doe, 530 U.S. 290, 317, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (noting that it is proper for courts to examine the purpose of a law when facially challenged); Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 (2d Cir.2002) (same); cf. Gray v. City of Valley Park, Mo., No. 07-CV-881, 2008 WL 294294, at *19 n. 26 (E.D.Mo. Jan. 31, 2008) (noting that a facial challenge may be based on the theory that an ordinance was "passed with discriminatory intent”); Nev. Fair Hous. Ctr., Inc. v. Clark County, 565 F.Supp.2d 1178, 1187 (D.Nev.2008) (noting that while "legislative motive is irrelevant to a facial challenge ... evidence of some intent to disadvantage a class of people makes the determination of the basis for the overt disparate treatment much easier”).

noting that a facial challenge may be based on the theory that an ordinance was "passed with discriminatory intent"


noting that while "legislative motive is irrelevant to a facial challenge ... evidence of some intent to disadvantage a class of people makes the determination of the basis for the overt disparate treatment much easier"


Context: When the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in "objective terms, sufficiently serious," to support an Eighth Amendment claim. In a case like this, however, where the prisoner is receiving appropriate on-going treatment for his condition, but, instead brings a narrower denial of medical care claim based on a temporary delay or interruption in treatment, the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner.

in evaluating an Eighth Amendment claim, courts should consider "if the alleged wrongdoing was objectively 'harmful enough' to establish a constitutional violation"

See Estelle, 429 U.S. at 106, 97 S.Ct. 285 (“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”); Montgomery, 294 F.3d at 499 (to establish an Eighth Amendment claim based on the denial of medical care, “[f]irst, [the] plaintiff must make an ‘objective’ showing that the deprivation was ‘sufficiently serious,’ or that the result of defendant’s denial was sufficiently serious”) (emphasis added); cf. Hudson, 503 U.S. at 8, 112 S.Ct. 995 (in evaluating an Eighth Amendment claim, courts should consider “if the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation”).

"In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."


to establish an Eighth Amendment claim based on the denial of medical care, "[f]irst, [the] plaintiff must make an 'objective' showing that the deprivation was 'sufficiently serious,' or that the result of defendant's denial was sufficiently serious"


Context: The State had dismissed the 1990 charge because Dr. Wall's body had not been found and because Ms. Chaney could not be located. Although the police attempted to find Dr. Wall's body in 1986, 1988 and 1990, they were unable to do so until 1995, when Mr. Gamble, who was facing federal drug charges, decided to cooperate with authorities. Thus, the delay was caused by the State's legitimate desire to present a stronger case.

recognizing that uncertainty as to strength of prosecutor's case is legitimate reason for delay in obtaining indictment

See Pino, 708 F.2d at 528-29 (recognizing that uncertainty as to strength of prosecutor’s case is legitimate reason for delay in obtaining indictment); see also Lovasco, 431 U.S. at 795 (deciding prosecutor abides by fairness standards by refusing to seek indictment until he is satisfied he should prosecute and will be able to establish guilt); United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.1987) (holding in case where key witness cooperated only after his arrest, that “even though the prosecution has probable cause, it is under no duty to initiate criminal proceedings until it is satisfied that it can establish guilt beyond a reasonable doubt”).


holding in case where key witness cooperated only after his arrest, that "even though the prosecution has probable cause, it is under no duty to initiate criminal proceedings until it is satisfied that it can establish guilt beyond a reasonable doubt"


Context: A district court need not tolerate defiance of reasonable orders.

"Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice."

See DeSisto College, Inc. v. Line, 888 F.2d 755, 763-64 (11th Cir.1989) (finding district court did not abuse its discretion in sanctioning counsel under Fed.R.Civ.P. 11 because counsel failed to follow court’s explicit instructions to amend the complaint); In re McDonald, 819 F.2d 1020, 1024 (11th Cir.1987) (finding no abuse of discretion in court’s ruling of criminal contempt where attorney refused to follow district court’s orders and rulings); see also Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”).

finding no abuse of discretion in court's ruling of criminal contempt where attorney refused to follow district court's orders and rulings


Context: Nor did they present in their opposition to the dismissal motion any developed argumentation as to how additional discovery might advance their cause. Consequently, they forfeited the point.

See United States v. Slade, 980 F.2d 27, 30 (1st Cir.1992) (“It is a bedrock rule that when a party has not presented an argument to the district court, she may not unveil it in the court of appeals.”); see also Sunview Condo. Ass’n v. Flexel Int’l, Ltd., 116 F.3d 962, 964 (1st Cir.1997) (holding that plaintiffs who fail to preserve their rights below cannot appeal on the ground that they were denied jurisdictional discovery).

"It is a bedrock rule that when a party has not presented an argument to the district court, she may not unveil it in the court of appeals."


Context: This court has previously reconsidered its decisions when presented with compelling new evidence.

See Cirami, 563 F.2d at 33-35 (new “extraordinary” evidence of attorney negligence supported reconsideration); Fernandez, 506 F.2d at 1204 (reconsidered holding because new evidence conclusively contradicted government’s previous representation); but see United States v. Adegbite, 877 F.2d 174, 179 (2d Cir.1989) (declining to reconsider a previous Miranda holding based on new evidence concerning officer motivation in questioning suspect).

reconsidered holding because new evidence conclusively contradicted government's previous representation


Context: The district court properly dismissed Bonilla's claims against defendants in their individual capacities because Bonilla did not exhaust prison grievance procedures concerning those claims.

excusing prisoner's failure to exhaust where prisoner is prevented from doing so

See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (exhaustion is mandatory and must be done in a timely manner consistent with prison policies); cf. Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir.2010) (excusing prisoner’s failure to exhaust where prisoner is prevented from doing so).


Context: The Appellate Division found this series of claims to be unpreserved, and, in any event, meritless.

"Defendant's contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review."

See People v. Mercado, 91 N.Y.2d 960, 962-63, 672 N.Y.S.2d 842, 695 N.E.2d 711 (1998) (“Defendant’s contention on appeal concerning a claimed failure of the trial court to make certain inquiries is unpreserved for our review.”).

noting that "[cjounsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict with out conducting a hearing as to juror number 6," and finding "no basis to conclude that the verdict was less than unanimous"

People v. Mercado, 230 A.D.2d 488, 659 N.Y.S.2d 453, 454-55 (App.Div.1997) (noting that “[cjounsel did not request further relief, rendering unpreserved the appellate claim that the court erred in accepting the verdict with out conducting a hearing as to juror number 6,” and finding “no basis to conclude that the verdict was less than unanimous”) The Court of Appeals affirmed, expressly on the ground that the claim was procedurally barred.


Context: The FTC Act is designed to protect consumers from economic injuries. Restitution may be measured by the "the' full amount lost by consumers rather than limiting damages to a defendant's profits."

Stefanchik, 559 F.3d at 931 (affirming restitution of over $17 million for the full amount of consumer loss); see also FTC v. Febre, 128 F.3d 530, 536 (7th Cir.1997) (affirming restitution for more than $16 million against company and officer as consumer loss under section 13(b)).


Context: It rests its argument upon the similarity between compensatory damages awarded to a tort victim and compensatory damages awarded the petitioners for emotional harm suffered as a result of unlawful discrimination. While the nature of relief sought may be determinative of the right to a jury trial when parties dispute whether a claim is equitable or legal in nature, no such dispute exists here.

whether declaratory judgment action is legal or equitable "commonly considered to depend upon the nature of the claim or issue presented"

But see Employers Assurance Co., 96 N.H. at 298 (whether declaratory judgment action is legal or equitable “commonly considered to depend upon the nature of the claim or issue presented”).

See Lakeman v. LaFrance, 102 N.H. 300, 304 (1959) (parties disputed whether defendant entitled to jury trial to resolve statute of limitations issue); Smith v. Manchester Management Corp., 117 N.H. 361, 362 (1977) (parties disputed whether defendant entitled to jury trial to resolve mismanagement of partnership affairs issue subsumed within equitable claim).


parties disputed whether defendant entitled to jury trial to resolve mismanagement of partnership affairs issue subsumed within equitable claim


Context: In the present case, in addition to being charged with driving under the influence, defendant has been charged not only with failing to drive within his lane of traffic and with failing to drive on the right half of the roadway, but also with careless driving. At a minimum, with respect to this latter offense, the degree of erratic driving observed by Officer Strohl reasonably raised an inference that this provision of the Vehicle Code was being violated, sufficient to justify a stop and an investigation by the officer to determine the cause of the erratic driving.

finding that officer's observations of defendant weaving four or five times over approximately two miles provided officer with probable cause to believe the driver was in violation of this section of the Vehicle Code

Commonwealth v. Barkley, 234 Pa. Super. 503, 341 A.2d 192 (1975) (finding that officer’s observations of defendant weaving four or five times over approximately two miles provided officer with probable cause to believe the driver was in violation of this section of the Vehicle Code); cf. Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995) (finding with respect to some offenses, section 3361 of the Vehicle Code (driving at an unsafe speed) being one, that because further investigation following a stop could not lead to the discovery of further evidence in support of this violation, the evidence preceding the stop must be sufficient, in and of itself, to support the violation).


Context: Moreover, this conclusion is consistent with our jurisprudence interpreting Rule 222 wherein our appellate courts have found that a decision under this rule does not preempt an award of attorney's fees to which one is otherwise entitled, i.e., statutorily authorized.

recognizing, in a partition action, that whether Respondents were entitled to appellate attorney's fees pursuant to section 15-61-110 was a determination for the circuit court

See Taylor v. Medenica, 332 S.C. 324, 504 S.E.2d 590 (1998) (awarding Respondents a $1,000 attorneys’ fee and $81.66 for costs as allowed by Rule 222 and holding that Respondents could seek additional attorneys’ fees in the circuit court under the UTPA, which provides for reasonable attorneys’ fees and costs); Muller v. Myrtle Beach Golf & Yacht Club, 313 S.C. 412, 416, 438 S.E.2d 248, 250 (1993) (finding Appellant waived right to recover appellate costs and fees under Rule 222 as he failed to file an itemized statement of costs prior to the Court’s issuance of the remittitur, but holding that Appellant could seek appellate costs in the circuit court based on his statutory right under section 29-5-10 (authorizing costs incurred for the enforcement of a mechanic’s lien) as “Rule 222 does not preempt an award of attorney’s fees to which one is otherwise entitled” (citation omitted)); McDowell v. S.C. Dep’t of Soc. Servs., 304 S.C. 539, 543, 405 S.E.2d 830, 833 (1991) (holding that an award of attorney’s fees under Supreme Court Rule 38 (precursor to Rule 222) did not “preempt an award of attorney’s fees to which one is otherwise entitled” and, thus, Appellant could seek an award of attorney’s fees pursuant to section 15-77-300, which permits an award of fees for a party prevailing in an action against a state agency); see also Parker v. Shecut, 359 S.C. 143, 597 S.E.2d 793 (2004) (recognizing, in a partition action, that whether Respondents were entitled to appellate attorney’s fees pursuant to section 15-61-110 was a determination for the circuit court).

awarding Respondents a $1,000 attorneys' fee and $81.66 for costs as allowed by Rule 222 and holding that Respondents could seek additional attorneys' fees in the circuit court under the UTPA, which provides for reasonable attorneys' fees and costs


finding Appellant waived right to recover appellate costs and fees under Rule 222 as he failed to file an itemized statement of costs prior to the Court's issuance of the remittitur, but holding that Appellant could seek appellate costs in the circuit court based on his statutory right under section 29-5-10 (authorizing costs incurred for the enforcement of a mechanic's lien


holding that an award of attorney's fees under Supreme Court Rule 38 (precursor to Rule 222


Context: The district court here found and the testimonial evidence adduced at trial shows that Robinson entered the store displaying a weapon, ordered everyone to get on the floor, demanded money from the store's owner, and discharged his weapon in a struggle with the store's owner. The district court's determination that Robinson was not a minor participant therefore was not clearly erroneous.

See United States v. Pinkney, 15 F.3d 825, 826 (9th Cir.1994) (stating that a defendant who participated in a robbery by driving a robber to the scene, storing stolen goods and dispersing checks was not entitled to the minor participant role reduction); cf. United States v. Rojas-Millan, 234 F.3d 464, 472 (9th Cir.2000) (holding that minor participant determination must be made relative to all participants in the criminal scheme for which the defendant is charged).


Context: We add that our holding today is compatible with those of circuits that have addressed the issue.

where resolution of prisoner's claim for money damages would involve a determination of validity of state court conviction presently before state supreme court, Section 1983 action should be stayed during its pendency

See Hadley v. Werner, 753 F.2d 514, 516 (6th Cir.1985) (per curiam) (although inmate’s civil rights complaint sought damages rather than release, a necessary portion, of his claim challenged the validity of his conviction and consequent confinement; dismissal of action proper and inmate directed to pursue relief in habeas corpus proceeding); Ybarra v. Reno Thundrebird Mobile Home Village, 723 F.2d 675, 682 (9th Cir.1984) (summary judgment proper as to prisoner’s action for declaratory relief where basis of claim is a challenge to the constitutionality of conviction; “initial and exclusive” remedy lies in habeas corpus); Alexander v. Ware, 714 F.2d 416, 419 (5th Cir.1983) (if a prisoner challenges a “ ‘single allegedly defective [disciplinary] hearing,’ ” he attacks, in essence the fact and duration of his custody; whatever relief is sought for an isolated incident, the prisoner must resort to habeas corpus and exhaust state remedies); Todd v. Baskerville, 712 F.2d 70, 73 (4th Cir.1983) (prisoner’s Section 1983 action, seeking damages and restoration of good time, would be dismissed for failure to exhaust since “core” of the claim was the duration of sentence and any claim of damages was ancillary to and dependent on its favorable resolution); Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir.1981) (the propriety of a prisoner’s Section 1983 action is not determined solely on the basis of relief sought; rather, if upon examination the basis of the claim directly draws into question the validity of the fact or length of confinement, the exclusive remedy is habeas corpus); see also Parkhurst v. State of Wyoming, 641 F.2d 775, 777 (10th Cir.1981) (per curiam) (where resolution of prisoner’s claim for money damages would involve a determination of validity of state court conviction presently before state supreme court, Section 1983 action should be stayed during its pendency), (footnotes omitted).

prisoner's Section 1983 action, seeking damages and restoration of good time, would be dismissed for failure to exhaust since "core" of the claim was the duration of sentence and any claim of damages was ancillary to and dependent on its favorable resolution


Context: Moreover, Petitioners' argument, that we look to Virginia's law in determining whether wages were withheld improperly and, if so, the proper remedy, would lead nonetheless to an outcome unfavorable to Petitioners: the assertedly implied term of SS 40.1-29 is essentially one of remedies, but under the choice of law principle lex fori, we look to the law of the forum in determining the remedy available to a plaintiff in a contract-related action, not lex loci contractus.

Eastwood v. Kennedy, 44 Md. 563, 567-68 (1876); see Mike Smith Pontiac, GMC, Inc. v. Mercedes-Benz of North America, Inc., 356 Md. 542, 741 A.2d 462 (1999) (applying the rate of post-judgment interest of the lex fon (Maryland) instead of that of the judgment-rendering state); see also Traylor v. Grafton, 273 Md. 649, 668-69, 332 A.2d 651, 664 (1975) (noting that the answer to the question of whether the subject clause should be construed to provide for the payment of liquidated damages was the same under both the lex fori and the lex loci contractus ).


Context: But this argument presumes the very conclusion that is at issue in this case--namely, that the NYPD can prohibit unrecognized groups, including the LOA, from marching in parades in uniform and behind their organization banners. The danger of a prior restraint, as opposed to ex post disciplinary action, is precisely that making predictions ex ante as to what restrictions on speech will ultimately be found permissible is hazardous and may chill protected speech.

"[U]nlike an adverse action taken in response to actual speech, [an ex ante restriction] chills potential speech before it happens."

See, e.g., NTEU, 513 U.S. at 481, 115 S.Ct. 1003 (O’Connor, J., concurring in the judgment in part and dissenting in part) (“[E]x ante rules, in contrast to ex post punishments, carry risks of overinclu-siveness and underinclusiveness.”); id. at 468, 115 S.Ct. 1003 (majority opinion) (“[U]nlike an adverse action taken in response to actual speech, [an ex ante restriction] chills potential speech before it happens.”); see also New York Magazine, 136 F.3d at 131 (“We consider prior restraints to be particularly abhorrent to the First Amendment in part because they vest in government agencies the power to determine important constitutional questions properly vested in the judiciary.”).

"We consider prior restraints to be particularly abhorrent to the First Amendment in part because they vest in government agencies the power to determine important constitutional questions properly vested in the judiciary."


Context: It is probable that vacating Alaimalo's convictions for importation of methamphetamine will not reduce the length of his confinement; vacating these convictions, however, removes the possibility that he will be subject to their adverse collateral consequences.

"[A] separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored."

See Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (“[A] separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored.”) (emphasis in original); Spencer v. Kemna, 523 U.S. 1, 12, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (presuming significant collateral consequences in the context of criminal convictions); United States v. Kincaid, 898 F.2d 110, 112 (9th Cir.1990).

"Coram nobis must be kept available as a post-conviction remedy to prevent 'manifest injustice' even where the removal of a prior conviction will have little present effect on the petitioner."

Cf. Holloway v. United States, 393 F.2d 731, 732 (9th Cir.1968) (“Coram nobis must be kept available as a post-conviction remedy to prevent ‘manifest injustice’ even where the removal of a prior conviction will have little present effect on the petitioner.”).


presuming significant collateral consequences in the context of criminal convictions


"Coram nobis must be kept available as a postconviction remedy to prevent 'manifest injustice' even where the removal of a prior conviction will have little present effect on the petitioner."

Cf. Holloway v. United States, 393 F.2d 731, 732 (9th Cir.1968) (“Coram nobis must be kept available as a postconviction remedy to prevent ‘manifest injustice’ even where the removal of a prior conviction will have little present effect on the petitioner.”).


Context: "Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof -- whether the questioner be a pollster, a salesman, or an officer of the law."

affirming lawfulness of officers' entry into front room of defendant's home where "the purpose of the entry was to engage in the conversation the agents had been seeking" and defendant knew of such purpose and consented to entry

See Manni v. United States, 391 F.2d 922, 923 (1st Cir.), cert. denied, 393 U.S. 873 (1968) (affirming lawfulness of officers’ entry into front room of defendant’s home where “the purpose of the entry was to engage in the conversation the agents had been seeking” and defendant knew of such purpose and consented to entry); Akron v. Harris, 93 Ohio App. 3d 378, 382 (1994) (third party may consent to entry but not to search); State v. Chapman, 97 Ohio App. 3d 687, 690 (1994) (“that where the intent of the officers was not to conduct a search, but only to question a resident, the consent of a third party to enter the house should not be held to the same standard as the consent of a third party to a warrant-less search of the house”); Commonwealth v. Netting, 315 Pa. Super. 236, 240-241 (1983) (evidence not suppressed where guest admitted police to apartment, police were not attempting to secure permission to search apartment but rather were responding to complaint to determine occupants’ well-being, and search was conducted with defendant’s consent).

defendant's eight year old daughter could consent to police entry, though not search

Davis v. United States, 327 F.2d 301, 303-304 (9th Cir. 1964) (defendant’s eight year old daughter could consent to police entry, though not search).


third party may consent to entry but not to search


"that where the intent of the officers was not to conduct a search, but only to question a resident, the consent of a third party to enter the house should not be held to the same standard as the consent of a third party to a warrant-less search of the house"