Context: It is difficult, on summary judgment, to draw a conclusive inference from this history. On the one hand, USAID's termination of the Project may have been a hasty overreaction to a violation of a relatively minor provision; on the other hand, USAID's attempts to continue the Project with a change of personnel might simply mean that USAID decided that its first priority would be to salvage some of the work to reform the Russian economy, and then deal with its miscreant grantee later.

the question of what constitutes an FCA claim turns on what defendant did, "not on how the government chooses to process the claim," because the "gravamen of these cases is that the focus is on the conduct of the defendant"

See Harrison, 352 F.3d at 915-17 (rejecting argument that, because government continued to fund contractor after discovering false claims, their falsity cannot have been material); Rule Indus., 878 F.2d at 537 (finding defendant liable under FCA for violating Buy America Act certification even though government kept and was satisfied with product supplied); cf. United States v. Krizek, 111 F.3d 934, 939 (D.C.Cir.1997) (the question of what constitutes an FCA claim turns on what defendant did, “not on how the government chooses to process the claim,” because the “gravamen of these cases is that the focus is on the conduct of the defendant”).


finding defendant liable under FCA for violating Buy America Act certification even though government kept and was satisfied with product supplied


Context: Under Illinois law, a plaintiff cannot recover for unjust enrichment when there is a specific contract that governs the relationship between the parties. See Omnicare, Inc. v. UnitedHealth Grp.

affirming grant of summary judgment on an unjust enrichment claim because under Illinois law "when two parties' relationship is governed by contract, they may not bring a claim of unjust enrichment unless the claim falls outside the contract"

Inc., 629 F.3d 697, 723 (7th Cir.2011) (applying Illinois law and upholding grant of summary judgment on an unjust enrichment claim where a specific contract governed the parties relationship); see also National Production Workers Union Ins. Trust v. Cigna Corp., 665 F.3d 897, 905 (7th Cir.2011) (affirming grant of summary judgment on an unjust enrichment claim because under Illinois law “when two parties’ relationship is governed by contract, they may not bring a claim of unjust enrichment unless the claim falls outside the contract”);' see also Stevens v. Interactive Fin. Advisors, Inc., No. 11 C 2223, 2015 WL 791384, at *16-17 (N.D.Ill.


Context: Plaintiffs request that the court reconsider the business relationships that existed between the various parties and find that in light of these business relationships, the constructive ordering doctrine "should be applied through the entire communications path of the traffic, not just isolated segments of the path." As the court explained in the summary judgment order, because plaintiffs seek to recover access charges owed pursuant to their tariffs, the relevant question is whether plaintiffs provided each defendant with access services pursuant to their tariffs.

See Advamtel LLC v. AT & T Corp., 118 F.Supp.2d 680, 683 (E.D.Va.2000) (explaining that to recover for amounts charged pursuant to their tariffs, plaintiffs must show that they operated under a valid tariff and that they provided services to the customer pursuant to that tariff); see also American Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 552 (2d Cir.1996) (setting out terms of relevant tariff in determining whether defendant was obligated to pay charges under the tariff).


Context: P 34. To fall under the specific, individual hazard exception, the hazard must, as the name of the exception indicates, be a specific rather than a general danger. In addition, the specific danger must pose the risk of an imminent collision.

Hightower, 70 P.3d at 847 n.21 (citation omitted) (agreeing with courts that "have narrowly construed 'specific, individual hazard' as an 'avoidance of an imminent collision with a specific person or object'"). In keeping with the specificity requirement, a specific, individual hazard is something that is unique and could not have been taken into account by the Secretary when promulgating uniform, national standards.

See Myers, 52 P.3d at 1027; Armstrong, 844 F. Supp. at 1152-53 (determining that a grade crossing without an automatic gate or flashing lights in an area of heavy traffic was not a specific, individual hazard in part because the Secretary took those conditions into consideration).


Context: The fact that Newsom was the only person in the SUV where the gun was found underneath his seat supports the conclusion that Newsom had the power to exercise dominion and control over the firearm. But the defendant's mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession.

finding insufficient evidence of possession where two guns were found in a waste basket near Beverly, despite the fact that one of the guns carried Beverly's fingerprint

See United States v. Blue, 957 F.2d 106, 108 (4th Cir.1992) (reversing upon a finding of insufficient evidence of possession where a gun was found under the passenger seat in which Blue was riding, despite an officer’s testimony that he saw Blue’s shoulder dip as if he was concealing something under the seat); see also United States v. Beverly, 750 F.2d 34, 37 (6th Cir.1984) (finding insufficient evidence of possession where two guns were found in a waste basket near Beverly, despite the fact that one of the guns carried Beverly’s fingerprint).

reversing upon a finding of insufficient evidence of possession where a gun was found under the passenger seat in which Blue was riding, despite an officer's testimony that he saw Blue's shoulder dip as if he was concealing something under the seat


Context: Second, the defendant argues the trial court erred by admitting the blood test results because the law enforcement officer did not have probable cause to believe the defendant was under the influence of alcoholic beverages before requiring the defendant to submit to the blood draw as required by section 316.1933(l)(a). As the record reflects that the law enforcement officer did not require the defendant to submit to the blood test, but rather the law enforcement officer obtained the blood sample after the defendant voluntarily consented to the blood draw, we find that this argument lacks merit.

noting that "blood test results obtained by actual consent, independent of the implied consent statute [section 316.1932], are admissible"

See State v. Geiss, 70 So.3d 642, 648 (Fla. 5th DCA 2011) (noting that “blood test results obtained by actual consent, independent of the implied consent statute [section 316.1932], are admissible”); see also State v. Murray, 51 So.3d 593, 595-96 (Fla. 5th DCA 2011); Kujawa v. State, 405 So.2d 251, 252 (Fla. 3d DCA 1981) (holding that the implied consent statutes are irrelevant when the defendant gives actual consent to a blood or breath test).


Context: That testimony was corroborated by the testimony and affidavit of Lieberman, who indicated that Mr. Gonzalez retained his services and that he never met or spoke with Olga Gonzalez during his period of representation. An attorney is not authorized to represent any person without the consent of that person or someone with authority to represent that person. Olga Gonzalez not only never consented to Lieberman's representation, but was never even aware of it. We will not presume that Mr. Gonzalez had the authority to act as Olga's agent in obtaining representation for her.

See Gentry v. Hill, 57 N.C.App. 151, 290 S.E.2d 777 (Ct.App.1982) (no presumption arises from mere fact of marriage that one spouse is acting as the agent of another, and an attorney acting on behalf of the husband was not authorized to permit entry of summary judgment against the wife); see also Petty v. Field, 97 A.D.2d 538, 467 N.Y.S.2d 898 (App.Div.1983) (where ex-wife entered into agreement with attorney to secure recovery of insurance proceeds, the attorney was not authorized to represent the ex-husband), appeal dismissed, 61 N.Y.2d 902, 462 N.E.2d 1201, 474 N.Y.S.2d 483 (1984); NRK Management Corp. v. Donahue, 109 Misc.2d 601, 440 N.Y.S.2d 524 (Civ.Ct.1981) (daughter’s attorney was not authorized to represent the daughter’s mother and the mother’s husband in moving to dismiss). Since Lieberman was without authority to act on behalf of Olga Gonzalez, his appearance cannot be deemed a waiver of any objection to the defective service.


daughter's attorney was not authorized to represent the daughter's mother and the mother's husband in moving to dismiss


Context: Plaintiffs next objection, found in section "B," is that the Magistrate Judge mischaracterized Plaintiffs argument that, were the Court to refuse to recognize jurisdiction, such a holding "would be a violation of due process."

"The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation ... "

See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 95 L.Ed. 702 (1951) (“The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation ... ”); see also Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).

"Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."


Context: The court can determine class members' consent through class-wide proof.

denying motion to strike class claims as immature because discovery would reveal whether proposed class members' claims are susceptible to generalized proof

See Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 299 (N.D.Ill.2014) (denying motion to strike class claims as immature because discovery would reveal whether proposed class members’ claims are susceptible to generalized proof); cf. Gene & Gene L.L.C. v. Bio-Pay, L.L.C., 541 F.3d 318, 329 (5th Cir.2008) (reversing the trial court’s class certification because the defendant had “culled fax numbers from a variety of sources over a period of time, such that class-wide proof of consent [wa]s not possible”).

reversing the trial court's class certification because the defendant had "culled fax numbers from a variety of sources over a period of time, such that class-wide proof of consent [wa]s not possible"


Context: There is scant authority construing the forced-sale prohibition contained in article XI, apart from a handful of cases involving liens against public building projects.

See, e.g., Atascosa County v. Angus, 83 Tex. 202, 18 S.W. 563, 563 (1892) (holding that builder’s hen is not enforceable against public buildings and grounds except as expressly permitted by statute); City of LaPorte v. Taylor, 836 S.W.2d 829, 831-32 (TexApp.-Houston [1st Dist.] 1992, no writ) (noting that legislature has provided limited statutory remedy supplanting materialman’s lien in construction contract for public-works project, consistent with Texas Constitution’s express exemption of public property from forced sale); see also Quincy Lee Co. v. Lodal & Bain Eng’rs, Inc., 602 S.W.2d 262, 264 (Tex. 1980) (construction contract with entity created under article XVI, section 59 of Texas Constitution will in no event give rise to lien).

holding that builder's hen is not enforceable against public buildings and grounds except as expressly permitted by statute


Context: The defense did not offer the evidence under the first or second exceptions. We hold that the evidence did not qualify under the third exception because it was not relevant.

reputation and opinion evidence about victim's past sexual behavior "are not relevant indicators" of consent

See United States v. Sanchez, 44 MJ 174, 179-80 (1996) (alleged victim’s sexual life-style irrelevant to issue oí consent, without a showing that the sexual conduct is “so particularly unusual and distinctive as to verify the defendant’s version”); see also United States v. Greaves, 40 MJ 432 (CMA 1994), quoting United States v. Duncan, 855 F.2d 1528, 1533 (11th Cir.1988) (reputation and opinion evidence about victim’s past sexual behavior “are not relevant indicators” of consent). Accordingly, we hold that the military judge did not err in excluding SSgt W’s testimony about SrA B’s sexual orientation.

alleged victim's sexual life-style irrelevant to issue oi consent, without a showing that the sexual conduct is "so particularly unusual and distinctive as to verify the defendant's version"


Context: [P 13.] Several jurisdictions, under statutes awarding costs of "investigation or prosecution," have held that costs of prosecution include extradition costs.

Maupin, 801 P.2d at 487; State v. Balsam, 130 Ariz. 452, 636 P.2d 1234, 1235 (Ct.App.1981) (sum expended to send a deputy sheriff to Ohio, where defendant was arrested, and bring him back to Arizona for prosecution was a prosecution cost); Skillman v. State, 696 So.2d 1341, 1342 (Fla.Dist.Ct.App.1997); People v. Lemons, 824 P.2d 56 (Colo.Ct.App.1991) (extradition cost to bring defendant to answer charges was a cost of prosecution and improperly designated as restitution to the police department which did not fall into “victim” category); Comm’wlth v. Coder, 490 Pa. 194, 415 A.2d 406, 409 (1980) (statute providing for recoupment from defendant of prosecution costs interpreted as encompassing cost of extradition); Ex parte Williams, 71 S.D. 95, 21 N.W.2d 593, 593 (1946) (where defendant was charged in Nebraska, arrested in South Dakota and extradited to Nebraska, noting the Nebraska court required him to “pay the costs of the criminal prosecution including the costs of the first extradition.”).

Cf. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 673 (1998) (cost of extraditing a defendant after he escaped from custody and fled the jurisdiction were not costs of prosecution, and were properly chargeable to him as restitution owed to the Department of Corrections, the victim of his crime of escape).


extradition cost to bring defendant to answer charges was a cost of prosecution and improperly designated as restitution to the police department which did not fall into "victim" category


statute providing for recoupment from defendant of prosecution costs interpreted as encompassing cost of extradition


where defendant was charged in Nebraska, arrested in South Dakota and extradited to Nebraska, noting the Nebraska court required him to "pay the costs of the criminal prosecution including the costs of the first extradition."


Context: Addressing the gravamen-of-the-offense factor in Ervin, the State asserts that the focus of the indecency with a child statute is the prohibited conduct, which shows that the Legislature intended for the State to be able to punish a criminal defendant multiple times. To support its argument, the State cites three related cases.

See Gonzales, 304 S.W.3d at 848 (“[I]f the focus of the offense is the conduct — that is, the offense is a ‘nature of conduct’ crime— then different types of conduct are considered to be different offenses.”); Pizzo v. State, 235 S.W.3d 711, 717 (Tex.Crim.App.2007) (holding in a jury-unanimity case that indecency with a child by contact is a conduct-oriented offense); see also Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999) (holding in a multiple-punishment case that aggravated sexual assault focuses on prohibited conduct).

"[I]f the focus of the offense is the conduct -- that is, the offense is a 'nature of conduct' crime-- then different types of conduct are considered to be different offenses."


holding in a jury-unanimity case that indecency with a child by contact is a conduct-oriented offense


Context: Respondent also raises several policy arguments in support of the district court's interpretation. Because the plain language of the collateral-source statute encompasses UIM payments made prior to the verdict, we have no occasion to look beyond the text of the statute.

noting that "the question of a potential windfall to the plaintiff' in a situation where the collateral-source statute does not apply is for the legislature to decide

See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (“[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”), review denied (Minn. Dec. 18, 1987); cf. Do, 779 N.W.2d at 860 (noting that “the question of a potential windfall to the plaintiff’ in a situation where the collateral-source statute does not apply is for the legislature to decide). If the legislature had intended to advance those policies by excluding pre-verdict UIM payments from the definition of collateral sources, it could have expressly so provided.

See Wynkoop, 574 N.W.2d at 425 (recognizing that courts may look beyond the statutory text to determine legislative intent only when the statute is ambiguous). It is the role of the legislature, not this court, to properly effectuate the policy concerns respondent references.


"[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court."


Context: Lippitt did not need to seek help from prison officials he alleges were corrupt to preserve his duress defense.

See United States v. Contento-Pachon, 728 F.2d 691, 694 (9th Cir.1984) (defendant not required to seek help from arguably corrupt police to preserve duress defense); see also United States v. Riffe, 28 F.3d 565, 570 (6th Cir.1994) abrogated on other grounds, Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2487, 165 L.Ed.2d 299 (2006) (defendant not required to seek help from arguably corrupt prison guards to preserve duress defense).


Context: . The Supreme Court has not addressed whether the risk of not being the prevailing party in a SS 1983 case and, therefore, not being entitled to an award of attorneys' fees may ever justify an upward adjustment.

ordering case set for reargument on whether attorneys' fees chargeable to a losing defendant under the Clean Water Act and comparable statutes may be enhanced based on risk of loss

Pennsylvania, 106 S.Ct. at 3100 (ordering case set for reargument on whether attorneys’ fees chargeable to a losing defendant under the Clean Water Act and comparable statutes may be enhanced based on risk of loss); Blum, 465 U.S. at 901 n. 17, 104 S.Ct. at 1550 n. 17. But see Blum, at 903, 104 S.Ct. at 1551, (Brennan, J., concurring) ("It is clear ... that Congress authorized district courts to award upward adjustments to compensate for the contingent nature of success, and thus for the risk of nonpayment in a particular case”).

district court may take contingent nature of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. SS 2412

See also LaDuke v. Nelson, 762 F.2d 1318, 1333 (9th Cir.1985) (district court may take contingent nature of attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412), amended, 796 F.2d 309 (9th Cir.1986).


"It is clear ... that Congress authorized district courts to award upward adjustments to compensate for the contingent nature of success, and thus for the risk of nonpayment in a particular case"


Context: The Court held that these searches were exempted, in part because "an operator of a junkyard engaging in vehicle dismantling has a reduced expectation of privacy in this 'closely regulated' business." Moreover, although Burger upheld the regulatory scheme against a Fourth Amendment challenge, the Court explicitly stated that both the inspections and the overall scheme were, as the majority itself recognizes, "properly administrative."

"The case also presents the question whether an otherwise proper administrative inspection is unconstitutional ...."

See Burger, 482 U.S. at 717, 107 S.Ct. 2636 ("So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself.”) (emphasis added); see also id. at 693, 107 S.Ct. 2636 ("The case also presents the question whether an otherwise proper administrative inspection is unconstitutional ....”); id. at 716, 107 S.Ct. 2636 ("The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect.”) (emphases added).

"So long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself."


"The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect."


Context: A showing of probable cause requires "proof of facts and circumstances that would convince a reasonable, honest individual that the suspected person is guilty of a criminal offense." A grand jury indictment is affirmative evidence of probable cause.

See Rose v. Bartle, 871 F.2d 331, 353 (3d Cir.1989) (noting that under both common law and section 1983 claims for malicious prosecution, a grand jury indictment constitutes prima facie evidence of probable cause which may be rebutted by evidence that it was procured by corrupt means); see also Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (noting that a grand jury indictment satisfies the Fourth Amendment’s requirement that an arrest warrant must be based on probable cause).

noting that a grand jury indictment satisfies the Fourth Amendment's requirement that an arrest warrant must be based on probable cause


Context: Schmitt's attorney submitted an itemized bill. It appears most, if not all, of the charges were made in pursuit of a change of venue. On remand, the district court should consider this billing request, as well as time spent on taking this appeal, in awarding Schmitt attorney fees and costs.

See Bankers Trust, 326 N.W.2d at 278 (remanding to the district court for an evidentiary hearing to determine award of appellate attorney fees); see also In re Estate of Bockwoldt, 814 N.W.2d 215, 233 (Iowa 2012) (remanding to allow the district court to evaluate the amount of attorney fees that should be awarded).


Context: P 9 There was no question then, and there is no question today, that the answer to the first question is "yes." Legislators alone are charged with the exercise of the essential powers inherent in the very concept of the legislative branch -- the power to vote on proposed laws.

See Tite v. State Tax Comm’n, 89 Utah 404, 413, 57 P.2d 734, 738 (1936) (finding that only legislature has authority to pass laws fixing tax penalties); see also Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378, 381 (1970) (“ ‘Legislative power ... is the authority to make laws.’ ” (quoting In re Opinion of Justices, 302 Mass. 605, 19 N.E.2d 807 (1939))).

" 'Legislative power ... is the authority to make laws.' " (quoting In re Opinion of Justices, 302 Mass. 605, 19 N.E.2d 807 (1939


Context: Indeed, the court in Jones Motor discouraged courts from allowing "a party sensing an adverse court decision a second chance in another forum."

holding that plaintiffs' "suddenly discovered affection for arbitration" came too late when the claim was made after the action was dismissed with prejudice for failure to prosecute

Jones Motor, 671 F.2d at 43; see also Morales Rivera, 418 F.2d at 726 (holding that plaintiffs’ “suddenly discovered affection for arbitration” came too late when the claim was made after the action was dismissed with prejudice for failure to prosecute). Moreover, “[ajrbitration clauses were not meant to be another weapon in the arsenal for imposing delay and costs in the dispute resolution process.”

See, e.g., Jones Motor, 671 F.2d at 44 (finding waiver where the parties had engaged in considerable discovery, and cross-motions for summary judgment had been filed and decided before the defendant moved to compel arbitration); Menorah Ins., 72 F.3d at 221 (finding waiver where defendant refused original request for arbitration and litigation had been proceeding for over a year); cf. Morales Rivera, 418 F.2d at 726 (denying plaintiffs motion to vacate dismissal and compel arbitration where case had been dismissed with prejudice for plaintiffs failure to prosecute); Reid Burton Constr., Inc., 614 F.2d at 701 (finding that defendants were properly denied the right to arbitrate where both parties had prepared for trial, the defendants had denied they were subject to the bargaining agreement providing for arbitration, and the defendants did not indicate desire to arbitrate until trial was underway).


finding that defendants were properly denied the right to arbitrate where both parties had prepared for trial, the defendants had denied they were subject to the bargaining agreement providing for arbitration, and the defendants did not indicate desire to arbitrate until trial was underway


finding waiver where the parties had engaged in considerable discovery, and cross-motions for summary judgment had been filed and decided before the defendant moved to compel arbitration


finding waiver where defendant refused original request for arbitration and litigation had been proceeding for over a year


Context: Another tactic is to characterize a case as involving equitable claims rather than damages, or artfully pleading, in bad faith, an amount of damages less than the $50,000.00 minimum jurisdictional amount.

remand should have been granted where complaint did not allege injuries "facially likely" to exceed $50,000.00

See e.g., Marcel v. Pool Company, 5 F.3d 81 (5th Cir.1993) (remand properly denied where complaint “facially apparent” that damages could easily exceed $50,000.00); cf. Asociación Nacional de Pescadores v. Dow Química, 988 F.2d 559 (5th Cir.1993) (remand should have been granted where complaint did not allege injuries “facially likely” to exceed $50,000.00).

remand properly denied where complaint "facially apparent" that damages could easily exceed $50,000.00


Context: That is not to say that non-discriminatory laws insulating a group of primarily local companies from competition do not have a negative impact on interstate commerce. Such laws, though, are best reviewed under the undue burden test, and are not subject to strict scrutiny.

See also Town of Southold, 477 F.3d at 49-50 (a local law that does not give an advantage to local companies over out-of-state competitors is reviewed under the undue burden test).

nondiscriminatory local laws "which treat instate private business interests exactly the same as out-of-state ones, do not 'discriminate against interstate commerce' " and are subject to the undue burden test

See United Haulers, 127 S.Ct. at 1797 (nondiscriminatory local laws “which treat instate private business interests exactly the same as out-of-state ones, do not ‘discriminate against interstate commerce’ ” and are subject to the undue burden test).


Context: Dunbar is distinguishable because in that case there was no evidence that the plaintiff was not qualified to continue holding her position. Because plaintiff has failed to present any evidence from which a reasonable fact finder could conclude that he was qualified to continue serving as police chief when Hale was removed from office on October 1, 2004, plaintiff has failed to establish a prima facie element of a Title VII retaliation claim.

"a plaintiff challenging his termination or demotion can ordinarily establish a pri-ma facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action" and noting that "[b]y this we mean that plaintiff had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit for the position for which he was hired"

See also Bienkowski, 851 F.2d at 1506 & n. 3 (“a plaintiff challenging his termination or demotion can ordinarily establish a pri-ma facie case of age discrimination by showing that he continued to possess the necessary qualifications for his job at the time of the adverse action” and noting that “[b]y this we mean that plaintiff had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit for the position for which he was hired”); Bynum, 41 F.Supp.2d at 653 (holding that plaintiffs decertification by the Army that rendered him unqualified to continue serving as a JROTC teacher precluded him from establishing prima facie case of discrimination).

See Holtzclaw, 255 F.3d at 260 (qualification a prima facie element of an ADEA retaliation claim); Hernandez v. Crawford Building Material Co., 321 F.3d 528, 531 & n. 1 (5th Cir.), cert. denied, 540 U.S. 817, 124 S.Ct. 82, 157 L.Ed.2d 34 (2003) (retaliation claims are analyzed the same under Title VII and the ADEA).


holding that plaintiffs decertification by the Army that rendered him unqualified to continue serving as a JROTC teacher precluded him from establishing prima facie case of discrimination


retaliation claims are analyzed the same under Title VII and the ADEA


Context: App., Vol. 3, at 313. We agree with the magistrate judge's conclusion that this provider's form supports, and does not contradict, the ALJ's RFC finding. Thus, we find no reversible error in the ALJ's failure to discuss this opinion.

"[A]n ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity."

See Mays, 739 F.3d at 578-79 (“[A]n ALJ’s failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ’s assessment of residual functional capacity.”); see also Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.2004) (“When the ALJ does not need to reject or weigh evidence unfavorably in order to determine a claimant’s RFC, the need for express analysis is weakened.”). For the same reason, we conclude the ALJ’s failure to discuss the assessments of two state agency psychologists, Drs.

"When the ALJ does not need to reject or weigh evidence unfavorably in order to determine a claimant's RFC, the need for express analysis is weakened."


Context: Moreover, "the statutory exemptions established by SS 1108 are defenses which must be proven by the defendant."

vacating district court judgment that dismissed cause of action because the plaintiff failed to plead facts that showed he was not exempted by SS 1108

Braden, 588 F.3d at 601 (vacating district court judgment that dismissed cause of action because the plaintiff failed to plead facts that showed he was not exempted by § 1108); see also Allen v. GreatBanc Trust Co., 835 F.3d 670, 676 (7th Cir. 2016) (“We now hold squarely that the section 408 exemptions are affirmative defenses for pleading purposes, and so the plaintiff has no duty to negate any or all of them.”); Fish v. GreatBanc Trust Co., 749 F.3d 671, 685 (7th Cir. 2014) (“[T]he burden of proof is on a defendant to show that a transaction that is otherwise prohibited under § 1106 qualifies for an exemption under § 1108.”); Lowen, 829 F.2d at 1215 (“[Because the fiduciary has a virtual monopoly of information concerning the transaction in question, it is in the best position to demonstrate the absence of self-dealing. Placing the burden of proof on the fiduciary [to establish that the transaction in question fell under an exemption] is thus justified.”).

"We now hold squarely that the section 408 exemptions are affirmative defenses for pleading purposes, and so the plaintiff has no duty to negate any or all of them."


"[T]he burden of proof is on a defendant to show that a transaction that is otherwise prohibited under SS 1106 qualifies for an exemption under SS 1108."


"[Because the fiduciary has a virtual monopoly of information concerning the transaction in question, it is in the best position to demonstrate the absence of self-dealing. Placing the burden of proof on the fiduciary [to establish that the transaction in question fell under an exemption] is thus justified."


Context: Thus, taken as a whole, the record evidence shows that the plaintiffs primary duty was to make sales. See Olivo v. GMAC Mortg.

Corp., 374 F.Supp.2d 545, 550 (E.D.Mich.2004) (in determining whether an employee is an outside salesperson, “[c]ourts have considered whether the employee: (1) must solicit new business; (2) receives sales training; (3) was hired and denominated as a salesman; (4) was paid on a . commission basis; (5) was required to meet minimum production standards; and (6) was subject to direct or constant supervision”); see also FLSA2006-11, DOL Opinion Letter from Alfred B. Robinson, Jr., Acting Administrator, 2006 WL 1094597, (Mar. 31, 2006) (noting that MLOs who sell mortgage loan packages fulfill the sales requirement of the outside sales exemption); see also WH-115, DOL Opinion Letter from Robert D. Moran, Administrator, 1971 WL 33052, (Jan. 15, 1971) (“[A]n employee who actually obtains an application for ... a loan would be engaged in exempt type work; the consideration ... being the ... interest paid for the amount loaned”).

in determining whether an employee is an outside salesperson, "[c]ourts have considered whether the employee: (1


Context: . At the outset, the Court finds that, to the extent Plaintiff is seeking relief for the harassing phone calls at home and for "stalking" behavior outside the workplace, summary judgment in favor of the employer is warranted. Under the particular facts of this case, the Court knows of no obligation upon the employer to monitor the activities of its employees outside of the workplace. Indeed, the clear intent of Title VII is to combat discrimination in the workplace.

See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (holding that Title VII was designed to assure equality of employment opportunities); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982) (recognizing that “an employer violates Title VII simply by creating or condoning an environment at the workplace which significantly and adversely affects an employee.”) (emphasis added).

See also Fred v. Wackenhut Corp., 860 F.Supp. 1401, 1408 (D.Neb.1994) (holding that sex-related statements by a co-worker made to the plaintiff while she was at home and on suspension from work did not amount to improper conduct at the workplace and, therefore, did not constitute actionable sexual harassment), aff'd, 53 F.3d 335 (8th Cir.), cert. denied, 516 U.S. 870, 116 S.Ct. 190, 133 L.Bd.2d 126 (1995).


recognizing that "an employer violates Title VII simply by creating or condoning an environment at the workplace which significantly and adversely affects an employee."


Context: . Although the 2012 district court did not expressly rely on the Revised PSR in calculating the drug quantity, we may affirm that court's quantity finding "on any ground supported in the record." The fact that the original sentencing court likewise did not adopt the Revised PSR is not problematic either.

"If a defendant fails to specifically object to a fact in the PSR, the fact is deemed admitted by the defendant...."

See United States v. Duncan, 639 F.3d 764, 768 (7th Cir.2011) (resentencing court entitled to rely on PSR that defendant failed to object to at original sentencing despite fact that original sentencing court did not adopt PSR); see also United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir.2009) ("If a defendant fails to specifically object to a fact in the PSR, the fact is deemed admitted by the defendant....”); United States v. Valentine, 694 F.3d 665, 670 (6th Cir.2012) (resentencing court may examine “the trial transcript, the sentencing hearing transcript, and the portions of the presentence report that the defendant admitted to or the sentencing court adopted” (emphasis added)).


resentencing court may examine "the trial transcript, the sentencing hearing transcript, and the portions of the presentence report that the defendant admitted to or the sentencing court adopted" (emphasis added


Context: The provision mentions a specific, discrete beneficiary group within the statutory text -- the FQHCs. It is "phrased in terms of the persons benefitted."

finding rights-creating language in provision, 42 U.S.C. SS 1396r-6, stating that "each State plan approved under this subchapter must provide that each family which was receiving [AFDC] in at least 3 of the'6 months immediately preceding the month in which such family becomes ineligible for such aid ..., remain eligible for assistance under the plan ... during the immediately succeeding 6-month period"

See Gonzaga, 536 U.S. at 279, 287, 122 S.Ct. 2268 (language stating that “[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records” was not rights-creating because the “focus is two steps removed from the interests of individual students and parents”); see also Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir.2004) (finding rights-creating language in provision, 42 U.S.C. § 1396r-6, stating that “each State plan approved under this subchapter must provide that each family which was receiving [AFDC] in at least 3 of the'6 months immediately preceding the month in which such family becomes ineligible for such aid ..., remain eligible for assistance under the plan ... during the immediately succeeding 6-month period”).

language stating that "[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records" was not rights-creating because the "focus is two steps removed from the interests of individual students and parents"


Context: Farah contends the Supreme Court did not intend for DeLanney to preclude a fraud cause of action simply because the plaintiff seeks to recover expectancy damages.

See Matthews v. AmWest Sav. Ass’n, 825 S.W.2d 552, 554 (Tex.App.-Beaumont 1992, writ denied) (attempt to recover benefit of the bargain does not transform a fraud into a breach of contract); but see Airborne Freight Corp. v. C.R. Lee Enter., Inc., 847 S.W.2d 289, 296 n. 4 (Tex.App.-El Paso 1992, writ denied) (disapproving statement in Matthews that, because fraud is a quasi-contractual action, law does not preclude recovery of expectancy damages). ' Regardless of the damages sought, we conclude Farah’s fraud and negligent misrepresentation causes of action in the underlying suit were based upon the breach of a promise and therefore contractual in nature. See Crim Truck & Tractor v. Navistar Int’l, 823 S.W.2d 591, 597 (Tex.1992) (law imposes duty to refrain from fraudulently inducing a person to enter a contract, but the failure to perform the terms of a contract is a breach of contract); Airborne Freight, 847 S.W.2d at 294, 298 (negli gent misrepresentation consists of misrepresentation of existing fact rather than promise of future conduct).


Context: . In the context of federal obstruction of justice crimes, courts have defined the specific intent element broadly.

indicating that the intent to take a wrongful act that will have the "natural and probable consequence" of obstructing justice is an "evil intent" to obstruct justice

See Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 37 L.Ed. 419 (1893) (indicating that the intent to take a wrongful act that will have the "natural and probable consequence” of obstructing justice is an “evil intent” to obstruct justice); see also United States v. Hopper, 177 F.3d 824, 830-31 (9th Cir.1999) (indicating that the elements of an obstruction-of-justice offense under 18 U.S.C. § 1505 are satisfied where the defendants had acted to prevent collection of their tax debt, and knew that “the natural and probable effect” of their actions would be to interfere with IRS proceedings (internal quotation marks omitted)); United States v. Gallimore, 491 F.3d 871, 876 (8th Cir.2007) (holding that the only intent necessary to convict a defendant under 18 U.S.C. § 1513(b) for retaliating against a witness, victim, or informant "was an intent to retaliate” (internal quotation marks omitted)).

holding that the only intent necessary to convict a defendant under 18 U.S.C. SS 1513(b


Context: In this way Bradshaw effectively granted the Bank the power, in the case of HBP's default, to prefer other creditors over the government. While we agree with the district judge that when the Bank iroze HBP's accounts Bradshaw lacked the power to pay the taxes absent the Bank's approval, this lack of power was the direct result of the Agreement which Bradshaw had negotiated and entered into on behalf of HBP. At the time the Agreement was executed in May 1985, it is clear that Bradshaw was a responsible person under SS 6672. Bradshaw could not cease to be a responsible person simply by ceding to the Bank the right to exert financial control over HBP.

"the fact that a bank exercises significant control over payments to creditors does not necessarily absolve the corporate officer of liability under SS 6672"

See Rykoff v. United States, 40 F.3d 305, 308 (9th Cir.1994) (“the fact that a bank exercises significant control over payments to creditors does not necessarily absolve the corporate officer of liability under § 6672”); cf. Gustin v. United States, 876 F.2d 485, 491-92 (5th Cir.1989) (“[o]ne does not cease to be a responsible person merely by delegating that responsibility to others”); Charlton, 2 F.3d at 240 (“[t]he delegation of disbursal authority does not relieve the delegator of liability”).

"[o]ne does not cease to be a responsible person merely by delegating that responsibility to others"


"[t]he delegation of disbursal authority does not relieve the delegator of liability"


Context: Because the Court found that the VRS faced no immediate harm due to uncertainty about the status of that agency's legal representation; because temporary injunctions should be granted only in emergency circumstances; and because injunctions should only be entered against high elected officials with great circumspection, the Court found issuance of the requested temporary injunction inap propriate. With the assurance of Mr. McFarlane that the Governor could obtain counsel by the date of the expedited hearing and that the obtained counsel would be ready to proceed by that date, the Court declined to issue the temporary injunction.

"A mandatory injunction will not be granted upon a preliminary hearing except in cases of strong and imperious necessity, where the right to the injunction is clear."

See, Virginia Ry. v. Eckols, 117 Va. 182, 184, 83 S.E. 1082, 1083 (1915) (“A mandatory injunction will not be granted upon a preliminary hearing except in cases of strong and imperious necessity, where the right to the injunction is clear.”); see also Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991) (in a case arising in West Virginia, the court affirms the circuit’s adoption of a hardship-balancing test for preliminary injunctions, involving not only the likelihood of success and the public interest, but looking primarily to the likelihood of harm to parties with or without the requested injunction).

in a case arising in West Virginia, the court affirms the circuit's adoption of a hardship-balancing test for preliminary injunctions, involving not only the likelihood of success and the public interest, but looking primarily to the likelihood of harm to parties with or without the requested injunction


Context: The comprehensiveness of the regulatory scheme also weighs in favor of a strong federal interest.

Bracket balancing weighed against preemption where federal and tribal governments did not "exercise comprehensive regulatory control" over on-reservation oil and gas production

Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1192 (9th Cir.2008) (“Federal interests are greatest when the government's regulation of a given sphere is ‘comprehensive and pervasive.’ ”) (internal citation omitted); Bracket, 448 U.S. at 148, 100 S.Ct. 2578 (state tax was preempted where “the federal regulatory scheme [was] so pervasive as to preclude the additional burdens sought to be imposed.”); cf. Cotton Petroleum, 490 U.S. at 177, 109 S.Ct. 1698 (Bracket balancing weighed against preemption where federal and tribal governments did not “exercise comprehensive regulatory control” over on-reservation oil and gas production).

"Federal interests are greatest when the government's regulation of a given sphere is 'comprehensive and pervasive.' "


state tax was preempted where "the federal regulatory scheme [was] so pervasive as to preclude the additional burdens sought to be imposed."


Context: It is clear from these facts that the class action plaintiff voluntarily abandoned or withdrew his claims against DaimlerChrys-ler. Pennsylvania appellate courts have concluded that such a voluntary dismissal or abandonment of a civil claim could support a cause of action under the Dragonetti Act.

See, e.g., Bannar v. Miller, 701 A.2d 242, 247-48 (Pa.Super.1997) (finding that a last-minute voluntary dismissal in the face of imminent defeat constituted a favorable termination for the purposes of a Dragonetti claim); Shaffer, 473 A.2d at 1020-21 (finding favorable termination where plaintiffs counsel knew that the persons on whose behalf he filed a caveat to contest the probate of the decedent’s will had no standing and subsequently agreed voluntarily to the dismissal of those claims); see also Sports Int’l Ltd. v. Obermayer, Rebmann, Maxwell & Hippel, No. 95-1331, 1996 WL 50632, at * 3 (E.D.Pa. Feb.l, 1996) (noting instances where Pennsylvania appellate courts had concluded that a voluntary dismissal or settlement of a civil action could support a Dragonetti claim).


finding favorable termination where plaintiffs counsel knew that the persons on whose behalf he filed a caveat to contest the probate of the decedent's will had no standing and subsequently agreed voluntarily to the dismissal of those claims


Context: However, a canine sniff "may impact the determination of whether a search is reasonable if the use of the dog causes a delay." Id. There is no clear-cut rule for determining a reasonably allowable delay pursuant to a traffic stop.

See United States v. Garrett, 139 Fed.Appx. 720, 723 (7th Cir. 2005) (stating that if a dog alerted within five to ten minutes of the initial stop, that would likely be a reasonable amount of time, while fifteen or nineteen might be unreasonable); but see United States v. Richardson, 700 F.Supp.2d 1040, 1045, 1047-48 (N.D. Ind. 2010) (holding that a two-minute delay beyond the conclusion of a traffic stop, which itself lasted twelve to thirteen minutes, was not unreasonable).


Context: To my knowledge, no court has found the Act unconstitutional.

rejecting the defendant's argument that the statute is overly broad and vague because all courts which have considered the issue have rejected this argument

See, e.g., United States v. Parness, 503 F.2d 430, 440-42 (2d Cir.1974) (rejecting defendant’s claim that “pattern” as used in § 1962(b) is unconstitutionally vague); United States v. Hawes, 529 F.2d 472, 478-79 (5th Cir.1976) (“[W]e hold that ‘any person’ of average intelligence, on a clear reading of that statute, together with relevant definitional provisions, could not help but realize that they would be criminally liable for participating in ‘any enterprise,’ including their own, ‘through a pattern of racketeering activity ....’”) (quoting 18 U.S.C.A. § 1962(c)); United States v. Cappetto, 502 F.2d 1351, 1357-58 (7th Cir.1974) (finding defendant’s argument that § 1964 is unconstitutionally vague without merit because “[t]he kinds of activity to which the injunction may be addressed are described with sufficient particularity in ... substantive provisions” of the Act); United States v. Campanale, 518 F.2d 352, 364 (9th Cir.1975) (“Any ambiguity is cured by 18 U.S.C. § 1961, which defines ‘racketeering activity’ with reference to specific offenses, ‘pattern of racketeering activity’ with reference to a definite number of acts of ‘racketeering activity’ within specified time periods, and ‘enterprise’ and ‘person’ with standard language of established meaning.”); see also United States v. Grande, 620 F.2d 1026, 1038 n. 4 (4th Cir.1980) (rejecting the defendant’s argument that the statute is overly broad and vague because all courts which have considered the issue have rejected this argument).

rejecting defendant's claim that "pattern" as used in SS 1962(b


finding defendant's argument that SS 1964 is unconstitutionally vague without merit because "[t]he kinds of activity to which the injunction may be addressed are described with sufficient particularity in ... substantive provisions" of the Act


"Any ambiguity is cured by 18 U.S.C. SS 1961, which defines 'racketeering activity' with reference to specific offenses, 'pattern of racketeering activity' with reference to a definite number of acts of 'racketeering activity' within specified time periods, and 'enterprise' and 'person' with standard language of established meaning."


Context: Dighera indicated he understood that he would have certain defenses which he would waive upon entering his guilty plea. He failed to raise the double jeopardy issue in his motion to withdraw his guilty plea.

"defendant cannot raise points on appeal which were not presented to the- trial court"

See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993) (“defendant cannot raise points on appeal which were not presented to the- trial court”); see also State v. Solomon, 257 Kan. 212, 220-22, 891 P.2d 407 (1995) (Kansas Supreme Court refused to consider voluntariness of plea where defendant failed to raise that argument in his motion to withdraw his plea before the trial court).


Context: Patrolman Bowler testified that Robertson drove up to the main gate of the Dam Neck Base, territory over which the United States Government exercises jurisdiction. That uncontradicted testimony provides a sufficient basis for prosecuting under the Assimilative Crimes Act.

"Although defendants are correct in pointing out that the District Judge declined to take judicial notice that the [Blue Ridge] Parkway was so located this court may, and does, take judicial notice of commonly known facts, especially where there is testimony, as here, to the effect that the illegalities took place on the Parkway."

See United States v. Lavender, 602 F.2d 639, 641 (4th Cir.1979) (“Although defendants are correct in pointing out that the District Judge declined to take judicial notice that the [Blue Ridge] Parkway was so located this court may, and does, take judicial notice of commonly known facts, especially where there is testimony, as here, to the effect that the illegalities took place on the Parkway.”); cf. United States v. Johnson, 726 F.2d 1018 (4th Cir.1984) (magistrate could take judicial notice of distances involved in alleged transportation of explosive devices because “geographical information is especially appropriate for judicial notice”) (citing Lavender).

magistrate could take judicial notice of distances involved in alleged transportation of explosive devices because "geographical information is especially appropriate for judicial notice"


Context: The Second Circuit has held that Section 1981 claims brought pursuant to Section 1983 are analyzed under the same standard as Title VII claims.

"Both Mr. Ruiz's Title VII Claims and his claims for race and national origin discrimination under Sections 1981 and 1983 are analyzed under the burden-shifting framework set forth in McDonnell Douglas ..."

Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (“Both Mr. Ruiz’s Title VII Claims and his claims for race and national origin discrimination under Sections 1981 and 1983 are analyzed under the burden-shifting framework set forth in McDonnell Douglas ...”); see also Vargas v. Morgan Stanley, 438 Fed.Appx. 7, 9 n. 1 (2d Cir. 2011) (citing Ruiz); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (“[T]he factors justifying summary judgment dismissing Patterson’s Title VII claim against the municipal defendants for termination of his employment equally support the summary dismissal of his claims for termination brought under 42 U.S.C. §§ 1981 and 1983”).

"[T]he factors justifying summary judgment dismissing Patterson's Title VII claim against the municipal defendants for termination of his employment equally support the summary dismissal of his claims for termination brought under 42 U.S.C. SSSS 1981 and 1983"


Context: Thus, we agree with the trial court that, when considering the article as a whole, it could not reasonably be interpreted as stating false statements with a defamatory meaning of and concerning Boone.

holding newspaper's article reporting that police officer had stated he and others planned to kill the city mayor was not capable of an innocent construction so as to be nonactionable, whether read alone or in the context of the entire article, the court rejecting the defendants' assertion that the remainder of the article gave it a different, innocent meaning, and finding "[t]he entire focus of the article is the threat by a police officer on the life of the mayor" and noting the headline announced "policeman threatened mayor"

See, e.g., Early v. Toledo Blade, 130 Ohio App.3d 302, 720 N.E.2d 107 (1998) (stating the trial court must read the statements at issue in the context of the entire article to determine whether a reader would interpret them as defamatory and finding a police officer plaintiff had failed to establish a newspaper article regarding police brutality and misconduct was personally defamatory); cf. Sweeney v. Sengstacke Enters., Inc., 180 Ill.App.3d 1044, 129 Ill.Dec. 773, 536 N.E.2d 823, 826 (1989) (holding newspaper’s article reporting that police officer had stated he and others planned to kill the city mayor was not capable of an innocent construction so as to be nonactionable, whether read alone or in the context of the entire article, the court rejecting the defendants’ assertion that the remainder of the article gave it a different, innocent meaning, and finding “[t]he entire focus of the article is the threat by a police officer on the life of the mayor” and noting the headline announced “policeman threatened mayor”).


Context: The legislature's purpose in amending the law was to fund the collection of samples and the maintenance and operation of DNA databases, which, the legislature had repeatedly found, were important tools in criminal investigations in excluding individuals who are the subject of investigations or prosecutions, in detecting recidivist acts, and in identifying missing persons and unidentified human remains.

Id. at 251; Commonwealth v. Derk, 895 A.2d 622, 627 (Pa. Super. Ct. 2006) (Pennsylvania legislature did not intend to punish when it enacted law requiring certain defendants to submit DNA sample and pay mandatory fee of $250 because the intent of the law was "to promote public safety and more effective law enforcement"); see also Mueller v. Raemisch, 740 F.3d 1128, 1135 (7th Cir. 2014) ($100 annual registration fee imposed on sex offenders convicted in Wisconsin did not violate prohibition against ex post facto laws because the fee was intended to compensate the state for the expense of maintaining the sex offender registry).


Context: See Fed. R.Evid. 403. The Advisory Committee Note to Fed.R.Evid. 403 explains that unfair prejudice is an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."

See Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (holding that the Advisory Committee Notes are a helpful guide for interpreting the Federal Rules of Evidence); see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (holding that “unfair prejudice” in the criminal context refers to the capacity of relevant evidence to lure the factfinder into declaring guilt on grounds different than the offense charged).

holding that "unfair prejudice" in the criminal context refers to the capacity of relevant evidence to lure the factfinder into declaring guilt on grounds different than the offense charged


Context: In fact, "[t]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case."

"[T]here is no per se rule to determine when a prior bad act is 'too old' to be admissible."

United States v. Shumway, 112 F.3d 1413, 1421 (10th Cir.1997) (alteration in original) (quoting United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.1988)) (internal quotation marks omitted); see Rodriguez, 215 F.3d at 120 (“[T]here is no per se rule to determine when a prior bad act is ‘too old’ to be admissible.”); see also Cherry, 433 F.3d at 702 n. 4 (“[W]e review the facts and circumstances of each case to determine whether a prior act is stale.”); cf. United States v. Mares, 441 F.3d 1152, 1159 (10th Cir.2006) (“Our cases make clear that the degree to which factors such as temporal distance and geographical proximity are important to a determination of the probative value of similar acts will necessarily depend on the unique facts of each case’s proffered evidence.”).

"[W]e review the facts and circumstances of each case to determine whether a prior act is stale."


"Our cases make clear that the degree to which factors such as temporal distance and geographical proximity are important to a determination of the probative value of similar acts will necessarily depend on the unique facts of each case's proffered evidence."


Context: Courts outside Washington State that have considered the question have concluded not only that a request for attorney's fees should be viewed as a request for affirmative relief, but also that a request for attorney's fees waives an objection to in personam jurisdiction.

approving view that a pleading was an appearance because it requested attorney's fees

See Mid-City Inv. Co. v. Young, 238 So.2d 780, 784 (La.Ct.App.1970) (approving view that a pleading was an appearance because it requested attorney’s fees).

"By asking for attorney's fees, the defendant did affirmatively invoke the jurisdiction of the court, and therefore ... made a general appearance, and subjected himself to the jurisdiction of the court...."

Associate Discount Corp. v. Haviland, 218 So.2d 59, 61-62 (La.Ct.App.1969) (“By asking for attorney’s fees, the defendant did affirmatively invoke the jurisdiction of the court, and therefore ... made a general appearance, and subjected himself to the jurisdiction of the court....”); Forbess v. George Morgan Pontiac Co., 135 So.2d 594, 598 (La.Ct.App.1961) (holding that request for attorney’s fees (and damages to attached property) in a motion to dissolve a writ of attachment — said to be “totally unnecessary to the inquiry of the jurisdiction” — “constituted a submission by defendant to the exercise of jurisdiction over it personally by the court”); In re Marriage of Adler, 271 Ill.App.3d 469, 208 Ill.Dec. 31, 34, 648 N.E.2d 953, 956 (1995); Johnson v. Johnson, 233 Kan. 198, 662 P.2d 1178, 1182 (1983) (holding that a Texas court had personal jurisdiction over a Kansas resident who, after objecting to the Texas court’s jurisdiction, filed a motion for attorney’s fees).


holding that request for attorney's fees (and damages to attached property


holding that a Texas court had personal jurisdiction over a Kansas resident who, after objecting to the Texas court's jurisdiction, filed a motion for attorney's fees


Context: However, each condition has independent significance. When any one of the four elements of Rule 9011 is violated, the court must impose sanctions.

"where the court finds a violation of Rule 9011, the court must apply a sanction.... The court's discretion lies not in its conclusion to sanction but in its determination of what sanction to apply."

Stuebben v. Gioioso (In re Gioioso), 979 F.2d 956, 960-61 (3d Cir.1992) (“where the court finds a violation of Rule 9011, the court must apply a sanction.... The court’s discretion lies not in its conclusion to sanction but in its determination of what sanction to apply.”) (citing Cinema Svs.

"An attorney who signs the paper [in violation of Rule 9011] 'shall' be penalized by 'an appropriate sanction.' "

Corp. v. Edbee Corp., 774 F.2d 584 (3d Cir.1985); Thomas v. Capital Security Svs., Inc., 836 F.2d 866, 877 (5th Cir.1988); Wise v. Pea Ridge School District No. 109, 675 F.Supp. 1524 (W.D.Ark.1987), aff'd, 855 F.2d 560 (8th Cir.1988); In re Powers, 135 B.R. 980, 998 (Bankr.C.D.Cal.1991)); accord Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 599 (9th Cir.1988); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 392, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990) (“An attorney who signs the paper [in violation of Rule 9011] ‘shall’ be penalized by ‘an appropriate sanction.’ ”).


Context: Other circuits have expressed concern that an attenuated connection between a private defendant and the state risks federalizing large areas of state tort law. The Third Circuit warned that not requiring state action would create a federal cause of action "whenever a white man strikes a black in a barroom brawl."

pre-Phillip case following Mahone because "[extending the 'equal benefit' clause to private conduct would have the effect of federalizing all racially-motivated state-law torts that im plicate 'the security of persons and property' "

See also Chapman, 319 F.3d at 842 (Suh-rheinrich, J., dissenting) (“Under the majority’s interpretation, the equal benefit clause conceivably can be applied to every garden-variety state tort law claim where the parties are of different races.”); Spencer v. Casavilla, 839 F.Supp. 1014, 1019 (S.D.N.Y.1993) (pre-Phillip case following Mahone because “[extending the ‘equal benefit’ clause to private conduct would have the effect of federalizing all racially-motivated state-law torts that im plicate ‘the security of persons and property’ ”), affirmed in part and appeal dismissed in part, 44 F.3d 74 (2d Cir.1994).

Mahone v. Waddle, 564 F.2d 1018, 1029 (3rd Cir.1977) (in dicta suggesting that the equal benefit clause requires state action).


Context: Instead, the facts in this case resemble those in State v. Riemer and Kenedy Memorial Foundation v. Mauro, cases in which takings claims survived a plea to the jurisdiction.

holding that inverse condemnation claim survived jurisdictional plea where foundation alleged that state mineral leases encroached on foundation's property

See State v. Riemer, 94 S.W.3d 103, 109 (Tex.App.-Amarillo 2002, no pet.) (holding that allegations that State’s lease and actions that resulted in taking of oil and gas were sufficient to state claim for inverse condemnation); see also Kenedy Mem’l Found., 921 S.W.2d at 282 (holding that inverse condemnation claim survived jurisdictional plea where foundation alleged that state mineral leases encroached on foundation’s property).

holding that allegations that State's lease and actions that resulted in taking of oil and gas were sufficient to state claim for inverse condemnation


Context: Courts generally look at a number of factors in making this determination. In Hener, the court considered the time when each group began their labors, the duration of each groups' tangible salvaging activity, the comparative skill and quality of the competing groups, the salvors' investments in capital and labor, and the likelihood of success of each of the parties.

relying extensively on the MDM Salvage factors, and considering plaintiffs "near-term ability to salvage the wreck," his historical research, his capital investments into the salvage operation, and his still and video photography of the site

Id.; see also ANDREA DORIA, 836 F.Supp. at 1107 (relying extensively on the MDM Salvage factors, and considering plaintiffs “near-term ability to salvage the wreck,” his historical research, his capital investments into the salvage operation, and his still and video photography of the site); BROTHER JONATHAN, 883 F.Supp. at 1363 (requiring the salvor in possession to describe its archaeological preservation activities when applying for an extension of time of its exclusive salvage rights); 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 16-7, at 346 (2d ed. 1994) (submitting that the law of salvage, state and federal statutes, and international conventions “should be interpreted as requiring both a salvor and a finder of historic shipwreck to use proper archaeological techniques to preserve the scientific, historic, and archaeological integrity and provenance of the wreck”); cf. Columbus-America Discovery Group, 974 F.2d at 468 (emphasizing that “the degree to which salvors worked to proteet the historical and archaeological value of the wreck and items salved” is an important consideration in granting a salvage award).

emphasizing that "the degree to which salvors worked to proteet the historical and archaeological value of the wreck and items salved" is an important consideration in granting a salvage award


requiring the salvor in possession to describe its archaeological preservation activities when applying for an extension of time of its exclusive salvage rights


Context: This continuing duty of district courts to consult the Guidelines is statutory. Although the Court in Booker excised the mandatory aspects of the Guidelines in 18 U.S.C. SSSS 3553(b)(1) and 3742(e), it left the remainder of the Sentencing Reform Act intact to "function[] independently."

"The appropriate guidelines range, though now calculated under an advisory system, remains the critical starting point for the imposition of a sentence under SS 3553(a

Id. at 764. This means that 18 U.S.C. § 3553(a) is still operative, and requires district courts to take the applicable Guidelines range into consideration when sentencing, along with other sentencing factors enumerated by Congress. See Booker, 125 S.Ct. at 764-65(‘Without the ‘mandatory’ provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals.” (citing § 3553(a))); Ameline, 409 F.3d at 1085-86(addressing district court’s procedural error in calculating defendant’s base offense level because “the base offense level ... remains the starting point for determining the applicable guideline range for an offense” even in the discretionary Guidelines system); see also United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005) (“The appropriate guidelines range, though now calculated under an advisory system, remains the critical starting point for the imposition of a sentence under § 3553(a).”); United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.2005) (“This consultation requirement [in § 3553(a) that survives Booker], at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the Guidelines. ...

'Without the 'mandatory' provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals." (citing SS 3553(a


addressing district court's procedural error in calculating defendant's base offense level because "the base offense level ... remains the starting point for determining the applicable guideline range for an offense" even in the discretionary Guidelines system


Context: This is not an either-or proposition. The fact that some states, like Ohio, delegate the administration of public assistance programs to counties or municipalities should not mean that those states are free of all statutory obligations.

"It would be plainly unreasonable to permit a mandatorily designated State agency to shed its NVRA responsibilities because it has chosen to delegate the rendering of its services to local municipal agencies."

See New York, 255 F.Supp.2d at 79 (“It would be plainly unreasonable to permit a mandatorily designated State agency to shed its NVRA responsibilities because it has chosen to delegate the rendering of its services to local municipal agencies.”); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 286 (2d Cir.2003) (holding that New York could not avoid its obligations under the Rehabilitation Act by delegating authority to localities to deliver federally funded services).


Context: With regard to this aspect of her testimony, there is "simply too great an analytical gap between the data and the opinion proffered." Untested hypotheses, even if plausible, are insufficient to satisfy Rule 702.

explaining that a "working hypothesis" is not "admissible scientific knowledge"

Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1202 (11th Cir.2002) (“The courtroom is not the place for scientific guesswork, even of the inspired sort.”); see Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670 (6th Cir.2010) (explaining that a “working hypothesis” is not “admissible scientific knowledge”).

"The courtroom is not the place for scientific guesswork, even of the inspired sort."


Context: We begin our analysis with Rod-man's claim that the court erred by not invalidating the 2007 Will in its entirety since Turpin "neither read nor did anyone read to him, the portions of the will which made Aristide Jude a beneficiary" and "was not aware that Aristide Jude was listed as a beneficiary in his will." There is language in a number of probate cases that appears to support appellant's argument that the entire 2007 Will should be invalidated because Turpin did not know the will's entire contents.

"Knowledge of its contents is, of course, essential to the validity of every will."

See, e.g., Ingersoll Trust, 950 A.2d at 697 n. 18 (citing Estate of Herbert, 90 Hawai'i 443, 979 P.2d 39, 51-52 (1999), for the proposition that “[ajlthough there is a strong presumption that an able-bodied testator or testatrix knew the contents of his or her will, a will may be denied probate if he or she was ignorant of its contents”); Griffith v. Diffenderffer, 50 Md. 466, 486 (Md.1879) (“Knowledge of its contents is, of course, essential to the validity of every will.”); Estate of Gillespie, 183 Ariz. 282, 903 P.2d 590, 592 (1995) (en banc) (“Where the testator lacks knowledge as to the entire contents of the will or is misled as to the nature of the instrument as a whole,” however, “then it is undoubtedly correct that the instrument is inoperative.” (internal citations omitted) (citing 1 Page on the Law of Wills § 5.8, at 176-77 (1960))); see also Estate of Mendoza, 76 Nev. 396, 356 P.2d 13, 16 (1960) (“It needs no citation of authority to support the universally recognized rule that it is essential to the validity of a will that the testator know and understand the contents thereof.”).

"It needs no citation of authority to support the universally recognized rule that it is essential to the validity of a will that the testator know and understand the contents thereof."


Context: Since the statute is derogatory of the traditional powers of the Court to administer a class action, it should be construed strictly and consistent with its plain meaning. The Order sought to be appealed is not prohibited by the statute, and must therefore be within the Court's discretion to make. No evidence of an abuse of discretion is cited. In any case, this type of discretionary decision is generally inappropriate for appellate review.

"Ordinarily a district court should refuse to certify matters... that lie within its discretion."

See Herold v. Braun, 671 F.Supp. 936, 937-38 (E.D.N.Y.1987) (“Ordinarily a district court should refuse to certify matters... that lie within its discretion.”) (citations omitted); see also Atlantic City Elec. Co. v. A.B. Chance Co., 313 F.2d 431, 434 (2d Cir.1963) (per curiam) (“[T]o permit appellate review of this kind of discretionary discovery order, merely an intermediate step in these complex eases, would thwart rather than effectuate the purpose of 1292(b) to ‘materially advance the ultimate termination of the litigation.’ ”) In Koehler our Court of Appeals observed that:

"[T]o permit appellate review of this kind of discretionary discovery order, merely an intermediate step in these complex eases, would thwart rather than effectuate the purpose of 1292(b


Context: Unfortunately, many employees have to put up with some amount of rude, arrogant or even boorish behavior at work and endure criticism from their bosses. The Seventh Circuit has held that being addressed in a loud and unprofessional tone during one or two meetings does not satisfy the requirement that the offensive conduct be severe and pervasive.

noting that "relatively isolated instances of non-severe misconduct will not support a hostile work environment claims" and holding that a supervisor's conduct, though "inappropriate and unprofessional," was not "so serious or pervasive that it created a hostile work environment within the meaning of Title VII"

See e.g., Atanus v. Perry, 520 F.3d 662, 676 (7th Cir.2008) (citing Moser v. Indiana Dep’t of Corr., 406 F.3d 895, 903 (7th Cir.2005)); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533, 537 (7th Cir.1993) (noting that “relatively isolated instances of non-severe misconduct will not support a hostile work environment claims” and holding that a supervisor’s conduct, though “inappropriate and unprofessional,” was not “so serious or pervasive that it created a hostile work environment within the meaning of Title VII”); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)(remarking that Title VII is not a code of “general civility”).

remarking that Title VII is not a code of "general civility"


Context: Rather, the two issues are distinct: Statements obtained in violation of Miranda may be inadmissible, but they are not necessarily involuntary. That is, although the prosecution cannot use such statements in its casein-chief, the statements may nevertheless be admissible for impeachment purposes.

See Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) ("The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."); see also Fare v. Michael C., 442 U.S. 707, 717-18, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) ("Any statements obtained during custodial interrogation conducted in violation of [Miranda] may not be admitted against the accused, at least during the State's case in chief." (emphasis added)).


Context: In this case, Sears was indicted for kidnapping Ms. Wilbur and inflicting bodily injury upon her by striking her with brass knuckles, and stabbing her to death with a knife. There is no basis for Sears' contention that the stabbing could not constitute part of the bodily injury in the kidnapping charge. As a matter of law, bodily injury does not have to be inflicted at the same moment as the initial abduction.

Potts, 261 Ga. at 720 (victim seized in one county and bodily injury inflicted in another). See also Pryor, 238 Ga. at 701-702; cf. Diamond v. State, 267 Ga. 249, 250 (477 SE2d 562) (1996) (holding that defendant was still in the commission of a burglary, despite its technical completion, when she caused the death of three persons during a police chase that began at the scene of the burglary).


Context: . Defendants argue that plaintiff's allegation of breach of duty amounts to a negligence claim that is insufficient under CUTPA. (Dkt. #45, at 9-10). Connecticut case law admittedly is unclear as to whether negligence is sufficient to constitute a CUTPA violation on its own.

See Haynes v. Yale-New Haven Hosp., 243 Conn. 17, 34, 699 A.2d 964 (1997)("we do not decide whether negligence alone is sufficient to support a CUTPA claim"); see also Williams Ford, at 590 & n. 25, 657 A.2d 212 (the court declined to decide whether negligence of the defendant alone, unaccompanied by contributory negligence of plaintiff, will establish a CUTPA violation).


Context: Plaintiff Rosemarie Howell also refers to Brian Howell as her husband in an e-mail, which was included in the filings submitted to the court, asking for Brian Howell's pension information. This court has held that a spouse is considered immediate family when considering the ability of a pro se litigant to represent the spouse.

defining "immediate family members" as a person's parents, spouse, children, and siblings

See Kogan v. United States, 107 Fed.Cl. 707, 708-09 (2012) (referring to an order granting defendant’s wife, who is not an attorney, the ability to represent defendant pursuant to RCFC 83.1(a)(3)); see also Black’s Law Dictionary 720 (10th ed. 2014) (defining immediate family as including a person’s spouse); Chief War Eagle Family Ass’n & Treaty of 1837 & 1917 Reinstatement v. United States, 81 Fed.Cl. 234, 234 (2007) (defining “immediate family members” as a person’s parents, spouse, children, and siblings) (citing Black’s Law Dictionary 638 (8th ed. 2004)).

referring to an order granting defendant's wife, who is not an attorney, the ability to represent defendant pursuant to RCFC 83.1(a)(3


Context: To the extent that the majority appears to believe that someone who testifies in an otherwise protected hearing is, ipso facto, immunized from the consequences of any self-incriminating admissions made during his testimony, I disagree. There is a clear and legally recognized distinction between the mere act of testifying on one hand and, on the other hand, making admissions while testifying that provide independent grounds for discipline.

noting in a First Amendment retaliation case: "Of course ... wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline."

See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188-91 (11th Cir.1997) (concluding that an employee who testified in a protected Title VII case and admitted sexual harassment could be fired and that in “virtually every” such case the employer would be entitled to summary judgment, absent direct evidence of retaliation or pretext); cf. Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2381 n. 5, 189 L.Ed.2d 312 (2014) (noting in a First Amendment retaliation case: “Of course ... wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline.”).

concluding that an employee who testified in a protected Title VII case and admitted sexual harassment could be fired and that in "virtually every" such case the employer would be entitled to summary judgment, absent direct evidence of retaliation or pretext


Context: For two years, he had not had the capacity to handle a product his company was marketing. When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be "too little, too late."

finding that plaintiffs presentation of therapist's letter requesting leave of absence after plaintiff threatened supervisor with violence was "untimely" as well as unreasonable

Reed, 244 F.3d at 262 n. 9; see also Rose v. Laskey, 110 Fed. Appx. 136, 138 (1st Cir.2004) (per curiam) (finding that plaintiffs presentation of therapist’s letter requesting leave of absence after plaintiff threatened supervisor with violence was “untimely” as well as unreasonable); Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir.1999) (finding accommodation request untimely when employee made request only after committing two rule violations that “she knew would mandate her discharge”); Soileau v. Guilford of Me., Inc., 105 F.3d 12, 17 n. 4 (1st Cir.1997) (noting, in context of ADA retaliation claim, the “danger” of “permit[ting] an employee already on notice of performance problems to seek shelter in a belated claim of disability”); cf. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 465 (4th Cir.2012) (rejecting medical student’s claim that school failed to reasonably accommodate his mental illness, in part because student did not allege that his behavioral problems were “manifestations of a disability” until after disciplinary board had recommended his dismissal); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 796 & n. 3 (1st Cir.1992) (rejecting medical student’s claim that school failed to reasonably accommodate his learning disability, in part because student never requested alternative testing method until he had failed exam three times and faced expulsion).

rejecting medical student's claim that school failed to reasonably accommodate his mental illness, in part because student did not allege that his behavioral problems were "manifestations of a disability" until after disciplinary board had recommended his dismissal


rejecting medical student's claim that school failed to reasonably accommodate his learning disability, in part because student never requested alternative testing method until he had failed exam three times and faced expulsion


finding accommodation request untimely when employee made request only after committing two rule violations that "she knew would mandate her discharge"


noting, in context of ADA retaliation claim, the "danger" of "permit[ting] an employee already on notice of performance problems to seek shelter in a belated claim of disability"


Context: In fact, a probable cause determination to support his arrest had already been made by a neutral, detached magistrate, though the dispatcher gave Officer Poulter incorrect information. Because there was probable cause to arrest Schwarz, Officer Poulter's pat-down search was a valid search incident to the arrest.

See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (a search incident to an arrest is a well-settled exception to the warrant requirement); see also United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 441 (1973) (“Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed.”).

"Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed."


Context: No. 103-158, at 33 (1993) (noting that USERRA "would restructure, clarify, and improve " the VRRA (emphasis added)). Among other improvements, if an employer engaged in willful discrimination, USERRA permitted a plaintiff to seek liquidated damages, a form of relief unavailable under the VRRA.

See Maher v. City of Chi., 463 F.Supp.2d 837, 844 (N.D.Ill.2006) (holding that liquidated damages under USERRA are punitive and therefore subject to trial by jury); cf. Calderon v. Witvoet, 999 F.2d 1101, 1109 (7th Cir.1993) (holding that actions seeking liquidated damages under a different statute are “suits at common law” for purposes of the Seventh Amendment’s right to a jury trial); Troy v. City of Hampton, 756 F.2d 1000, 1003 (4th Cir.1985) (holding that claims under the VRRA are equitable and a plaintiff is not entitled to a jury trial).

holding that actions seeking liquidated damages under a different statute are "suits at common law" for purposes of the Seventh Amendment's right to a jury trial


holding that claims under the VRRA are equitable and a plaintiff is not entitled to a jury trial


Context: Second, this testimony was in response to the questions asked on cross-examination as to why Lieutenant Weston did not perform a gunshot residue test on everyone at the crime scene. Lieutenant Weston's testimony was offered to explain this part of his investigation.

Cf. German v. State, 325 S.C. 25, 27-28, 478 S.E.2d 687, 688-89 (1996) (holding testimony of undercover drug agent regarding tips that defendant was selling drugs and description of defendant were inadmissible hearsay given the statements specifically referred to defendant). Because this testimony did not constitute hearsay, the trial court did not abuse its discretion in admitting it.

finding officers' statements explaining why they began their surveillance of defendant's apartment were not hearsay

See State v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 893-94 (1994) (finding officers’ statements explaining why they began their surveillance of defendant’s apartment were not hearsay); State v. Thompson, 352 S.C. 552, 558, 575 S.E.2d 77, 81 (Ct.App.2003) (“ ‘[A]n out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.’ ” (quoting Brown, 317 S.C. at 63, 451 S.E.2d at 894)). Furthermore, Lieutenant Weston did not testify to any specific statements that identified Weaver.


" '[A]n out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.' " (quoting Brown, 317 S.C. at 63, 451 S.E.2d at 894


Context: Taken as a whole, the instructions and jury forms were not misleading.

See Garcia, 102 Ariz. at 471, 433 P.2d at 21 (finding no prejudicial error in the submission of the jury forms because the jury received correct instructions); cf. State v. Neal, 26 Ariz.App. 423, 425, 549 P.2d 203, 205 (1976) (although the trial court violated the criminal rule requiring it to confer with the parties and inform them of the form of verdict it intends to use, no prejudicial error occurred because the jury received correct instructions).


Context: This assertion is further supported by the fact that according to published opinions a Virginia court has never dismissed a claim of negligent hiring because of preclusion by a respondeat superior claim. In fact, Virginia courts have allowed both of these claims to go forward in the same action.

discussing trial court's entry of summary judgment on claims of liability under respondeat superior and claims of negligence under negligent hiring and retention

See Davis v. Merrill, 133 Va. 69, 112 S.E. 628 (1922) (allowing theories of respondeat superior and negligent training to go to a jury verdict); See also Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 539 S.E.2d 426 (2000) (discussing trial court’s entry of summary judgment on claims of liability under respondeat superior and claims of negligence under negligent hiring and retention).


Context: In such circumstances the appropriate step is to remand the case for further proceedings (including an evidentiary hearing, if necessary) so that the district court can determine the merits of Newell's claims in the first instance.

See Rice v. Bowen, 264 F.3d 698, 702 (7th Cir.2001) (“Because the district court’s conclusion with respect to timeliness had the effect of cutting off further development of the record and issues there ... the proper step is to remand the case to that court for further proceedings.”); see also Lockett, 571 F.2d at 314 (finding due process violation where state made witnesses unavailable to testify and remanding for district court to determine whether their unavailability was prejudicial to defendant). We note that § 2254(e)(2), which circumscribes a federal court’s ability to hold an evidentiary hearing if the petitioner has “failed” to develop the factual record in state court, does not apply here because Newell’s claims went undeveloped through no fault of his own.

"Because the district court's conclusion with respect to timeliness had the effect of cutting off further development of the record and issues there ... the proper step is to remand the case to that court for further proceedings."


Context: Here, on the other hand, nothing in the specifications distinguishes the claimed "member" from prior art based on its shape or number of components. And the specifications do not even imply that "all embodiments" of the claimed exercise machine must use a single-component, straight-bar member or else tout the advantages of using that particular structure. In short, Life Fitness cannot use the intrinsic evidence's silence to narrow the ordinary meaning of an unambiguous claim term.

"[M]ere inferences drawn from the description of an embodiment of the invention cannot serve to limit claim terms."

See, e.g., Johnson Worldwide, 175 F.3d at 992, 50 USPQ2d at 1612 (“[M]ere inferences drawn from the description of an embodiment of the invention cannot serve to limit claim terms.”); Kegel, 127 F.3d at 1427, 44 USPQ2d at 1127 (‘Without an express intent to impart a novel meaning to a claim term, the term takes on its ordinary meaning.”); see also Wang Labs., 197 F.3d at 1384, 53 USPQ2d at 1165-66 (limiting term “frame” to the character-based system in the specification when (among other things) the prosecution history distinguished the claimed invention from prior art based on that system).

limiting term "frame" to the character-based system in the specification when (among other things


'Without an express intent to impart a novel meaning to a claim term, the term takes on its ordinary meaning."


Context: As I have analyzed his statement of financial condition, he has funds available to him that he can use to discharge his restitution obligations. Furthermore, "ERISA's anti-alienation clause does not apply to pension funds that have already been distributed to the beneficiary."

Jackson, 229 F.3d at 1225. Pension funds, once distributed, are subject to restitution orders and are not protected by ERISA. Robbins v. DeBuono, 218 F.3d 197, 203 (2d Cir.2000) (“this statutory scheme protects benefits only while they are held by the plan administrator and not after they reach the hands of the beneficiary”); Kalani, 2003 WL 21222546, *2, 2003 U.S. Dist. Lexis 8762, at *3-*5 (restitution order valid, since the schedule of required payments — lump sum of $60,000 plus 10% of gross monthly earnings — did not specify source of funds to be paid in restitution, or direct liquidation of specific assets, and because defendant had other potential sources of payment); cf. Lampien, 89 F.3d at 1322 (restitution order vacated because it required sale of a single specific asset).

"this statutory scheme protects benefits only while they are held by the plan administrator and not after they reach the hands of the beneficiary"


restitution order valid, since the schedule of required payments -- lump sum of $60,000 plus 10% of gross monthly earnings -- did not specify source of funds to be paid in restitution, or direct liquidation of specific assets, and because defendant had other potential sources of payment


Context: The express assertion of the right to remain silent has been analyzed somewhat differently from silence itself, at least in the context of prearrest, pre-Miranda silence.

"[i]n general impeachment of a defendant with the fact of his [pre-Miranda,] pre-arrest silence should be approached with caution, and, whenever it is undertaken, it should be prefaced by a proper demonstration that it was 'natural' to expect the defendant to speak in the circumstances"

See Commonwealth v. Sazama, 339 Mass. at 157-159; Commonwealth v. Burke, 339 Mass. at 532-533; Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982) (“[i]n general impeachment of a defendant with the fact of his [pre-Miranda,] pre-arrest silence should be approached with caution, and, whenever it is undertaken, it should be prefaced by a proper demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances”); Commonwealth v. Thompson, 431 Mass. 108, 116-117, cert. denied, 531 U.S. 864 (2000).

See also Jenkins v. Anderson, 447 U.S. 231 (1980) (impeachment of defendant with prearrest, pre-Miranda silence not found to violate Federal Constitution).


Context: Evidence was presented at trial that Teems assumed the risks of car surfing as implied by her conduct. When a person voluntarily undertakes an obviously dangerous activity, that person can be said to have assumed the risks necessarily attendant to that activity.

"[A] person cannot undertake to do what obviously is a dangerous thing. . . without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery."

See Roberts v. Carter, 214 Ga. App. 540, 541 (448 SE2d 239) (1994) (“[A] person cannot undertake to do what obviously is a dangerous thing. . . without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery.”) (citations and punctuation omitted).

See also Stone v. Cook, 190 Ga. App. 11, 13-14 (1) (378 SE2d 142) (1989) (jury question existed over whether employee assumed the risk of injury when he rode on the fender of a moving tractor driven by his employer).


Context: Second, Muhammad had no legal basis to compel the Government to produce Agent Gandolfo's original interview notes that were subsequently incorporated into the FBI 302. A defendant is not entitled to an agent's notes if the agent's report contains all that was in the original notes.

holding that the government did not violate the Jenks Act by failing to produce an agent's handwritten notes, which were discarded after being typed into a summary

See United States v. Batchelder, 581 F.2d 626, 635 (7th Cir.1978) (holding that the government did not violate the Jenks Act by failing to produce an agent’s handwritten notes, which were discarded after being typed into a summary), rev’d on other grounds, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); see also United States v. Balistrieri, 779 F.2d 1191, 1221 (7th Cir.1985) (holding that the government’s failure to produce original 302’s did not violate the Confrontation Clause); United States v. Bastanipour, 697 F.2d 170, 174-75 (7th Cir.1982) (holding that the defendant’s right of confrontation was not abridged where an agent discarded a handwritten draft of a report after the report had been typed).

holding that the government's failure to produce original 302's did not violate the Confrontation Clause


holding that the defendant's right of confrontation was not abridged where an agent discarded a handwritten draft of a report after the report had been typed


Context: It is the disputed portion of the premises which could not be searched in the absence of "joint access or control for most purposes" over them by Ms. Bakker. Mr. Kelley's privacy interest in his bedroom is not diminished by the fact that Ms. Bakker had access to other areas of the apartment; similarly, the police may not search a bedroom merely because other areas of the apartment may lawfully be searched. Precedent makes clear that Ms. Bakker could validly consent to a warrant-less search of Mr. Kelley's bedroom only if she had "joint access and control for most purposes" over the bedroom itself.

holding consent invalid when a housemate had unlimited access to the common areas of the apartment but only limited access to her housemate's bedroom

See Cunningham, 352 F.2d at 4-5 (noting that the validity of consent is analyzed according to the particular area to be searched and the extent of the housemate’s access to that particular area); see also Heisman, 503 F.2d at 1288 (holding consent invalid when a housemate had unlimited access to the common areas of the apartment but only limited access to her housemate’s bedroom).

noting that the validity of consent is analyzed according to the particular area to be searched and the extent of the housemate's access to that particular area


Context: Here, for the purposes of the jurisdictional inquiry, the tort "occurred" on navigable waters because the negligence "took effect" while the Burkes' vessel was docked at a port on navigable waters, even though the negligent act itself -- the installation of the davit -- took place elsewhere.

"[T]he locality test is met despite the fact that the allegedly defective ... repair of the boat occurred on land."

See Mink v. Genmar Industries, Inc., 29 F.3d 1543, 1546 (11th Cir.1994) (pleasure boat’s alleged design defect “could not have manifested itself, and the injury could not have occurred until the vessel was actually operated as a vessel in navigation. Thus, logically, the tort is a maritime tort.”); see also Bodnar v. Hi-Lex Corp., 919 F.Supp. 1234, 1238 (N.D.Ind.1996) (“[T]he locality test is met despite the fact that the allegedly defective ... repair of the boat occurred on land.”).

pleasure boat's alleged design defect "could not have manifested itself, and the injury could not have occurred until the vessel was actually operated as a vessel in navigation. Thus, logically, the tort is a maritime tort."


Context: In Cohen v. Chicago Title Insurance Co., plaintiff alleged that when she refinanced her home she was charged the initial, basic rate for title insurance, rather than the lower refinance rate, three years after she first purchased title insurance for that home. Judge Sanchez reasoned that "[t]he Legislature knows how to make a remedy exclusive," but, by using the word "may," the Act '"signaled [a] discretionary rather than [a] mandatory act."

Id. at *2, 2006 U.S. Dist. Lexis 36689 at *9; see Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427, 430 (Pa.Super.Ct.1986) (holding that UIPA does not give Commission exclusive power to adjudicate deceptive act claims); see also Highmark, Inc., v. UPMC Health Plan, Inc., 276 F.3d 160, 168 (3d Cir.2001) (stating that Legislature had not added exclusivity language since the ruling in Pekular).


Context: Even if Lash's testimony were admissible, her conclusion was unsupported: Lash conceded at deposition that she did not purport to opine on the cause of Harriman's injuries. The district court was thus free to disregard that aspect of her testimony.

"A nisi prius court need not give weight to opinion evidence that is unsupported by an adequate foundation."

See, e.g., Johnson v. Gordon, 409 F.3d 12, 25-26 (1st Cir.2005) (“A nisi prius court need not give weight to opinion evidence that is unsupported by an adequate foundation.”); see also Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 583 (1st Cir.1994) (recognizing that “tenuous assertions strung together by strands of speculation and surmise” cannot defeat summary judgment).

recognizing that "tenuous assertions strung together by strands of speculation and surmise" cannot defeat summary judgment