Context: Numerous Maryland appellate cases are consistent with Pennwalt, and have recognized that a claim accrues when the plaintiff knows or should know of the harm and its probable cause.

stating, in a legal malpractice case, that "before an action is said to have accrued, a plaintiff must have notice of the nature and cause of his or her injury"

See, e.g., Frederick Rd. Ltd. P’ship, 360 Md. at 96, 756 A.2d 963 (stating, in a legal malpractice case, that “before an action is said to have accrued, a plaintiff must have notice of the nature and cause of his or her injury”) (emphasis added); United Parcel Service, Inc., 336 Md. at 579, 650 A.2d 226 (quoting Hecht, and recognizing that a claim accrues when the plaintiff “ ‘knows or should know of the injury, its probable cause, and ... [the defendant’s] wrongdoing.... ’ ”); Owens-Illinois v. Armstrong, 326 Md. 107, 120-21, 604 A.2d 47 (1992) (recognizing that a cause of action accrues when a reasonably diligent plaintiff ascertains the nature and cause of his injury); Trimper v. Porter-Hayden, 305 Md. 31, 52, 501 A.2d 446 (1985) (recognizing, in a latent disease case, that an injured person’s cause of action accrues “either 1) when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury, or 2) at death, whichever first occurs”) (emphasis added); Harig v. Johns-Manville Products Corp., 284 Md. 70, 83, 394 A.2d 299 (1978) (concluding that, “in situations involving the latent development of disease, a plaintiffs cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence, should have ascertained, the nature and cause of his injury”) (emphasis added); Benjamin, 162 Md.App. at 197, 873 A.2d 463 (suggesting that Trimper “indicates that the knowledge that a reasonable investigation would disclose is probably not sufficient if it would only show injury”); Young v. Medlantic Laboratory P’ship, 125 Md.App. 299, 305-06, 312, 725 A.2d 572 (recognizing that, “[u]nder the discovery rule, a cause of action accrues (thereby triggering the limitations period) when the patient discovers, or should have discovered, that he or she has a cause of action”) and concluding “that the trial court erred in deciding, as a matter of law, that appellant’s claim was barred by the statute of limitations,” because “reasonable minds could differ over whether appellant should have further investigated into the matter sooner or more completely; whether she failed to exercise the degree of diligence that a reasonable person in her circumstance would have exercised; or whether any reasonable exercise of diligence under the circumstances would have led to an earlier discovery of appellee’s breach of duty”), cert. denied, 354 Md. 572, 731 A.2d 970 (1999); see also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (concluding, under the Federal Tort Claims Act, that the plaintiff’s negli gence claim accrued when plaintiff knew of both the existence of the harm its cause).

concluding, under the Federal Tort Claims Act, that the plaintiff's negli gence claim accrued when plaintiff knew of both the existence of the harm its cause


recognizing that a cause of action accrues when a reasonably diligent plaintiff ascertains the nature and cause of his injury


recognizing, in a latent disease case, that an injured person's cause of action accrues "either 1


concluding that, "in situations involving the latent development of disease, a plaintiffs cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence, should have ascertained, the nature and cause of his injury"


suggesting that Trimper "indicates that the knowledge that a reasonable investigation would disclose is probably not sufficient if it would only show injury"


recognizing that, "[u]nder the discovery rule, a cause of action accrues (thereby triggering the limitations period


Context: Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation.

an employee's private disposition, via arbitration, of a claim against an employer does not diminish the federal government's ability to pursue judicial relief independently

Cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir.2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement).

See United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (non-mutual issue preclusion does not apply to suits involving the United States).


employee's failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement


Context: A support order issued pendente lite in a New Jersey divorce proceeding does not survive the death of the payee.

"The termination of the suit rendered the order for maintenance therein prospectively inoperative, so that no installments accrued thereon after such termination."

Wilson v. Wilson, 14 N.J. Misc. 33, 181 A. 257, 260 (1935) (“The termination of the suit rendered the order for maintenance therein prospectively inoperative, so that no installments accrued thereon after such termination.”).

"The right to alimony, if it exists, is a purely personal right, at least prior to decree or determination.... It follows that by her death pending suit the cause of action abates and (in the absence of statutory provision -- and none such exists

See also Sutphen v. Sutphen, 103 N.J. Eq. 203, 142 A. 817, 817 (N.J.Ch.1928) (“The right to alimony, if it exists, is a purely personal right, at least prior to decree or determination.... It follows that by her death pending suit the cause of action abates and (in the absence of statutory provision — and none such exists), cannot be revived by or in favor of her personal representative or legatee.”) overruled in part by Williams v. Williams, 59 N.J. 229, 281 A.2d 273, 275 (1971).


Context: According to the appellants, when the district court granted the forum non conveniens motion, the parties "had exchanged written discovery responses and documents, and were in the midst of supplementing such responses and preparing for depositions." Appellants' Reply Br. at 23. This Court, and others, have upheld forum non conveniens dismissals in cases where more discovery had been conducted.

"[W]e hold today that whenever discovery in a case has proceeded substantially so that the parties already have invested much of the time and resources they will expend before trial, the presumption against dismissal on the grounds of forum non conveniens greatly increases."

Id. at 1520; see also Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 614 (3d Cir.1991) (“[W]e hold today that whenever discovery in a case has proceeded substantially so that the parties already have invested much of the time and resources they will expend before trial, the presumption against dismissal on the grounds of forum non conveniens greatly increases.”); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984) (“That trial preparation had progressed nearly to the point of trial certainly was a relevant factor when the district court considered whether trial of the case in Arizona would have been more easy, expeditious and inexpensive than trial in the Philippines.”) (quotation marks omitted, emphasis added); cf. Mercier v. Sheraton Int'l, Inc. 981 F.2d 1345, 1357 (1st Cir.1992) (merits activity “never approached the level which was held to preclude dismissal in Lony or to weigh against dismissal Gates”).

merits activity "never approached the level which was held to preclude dismissal in Lony or to weigh against dismissal Gates"


Context: Because Metz did not assert in either his initial or reconsideration petition before the Board, that his separation was involuntary because he had received ineffective assistance of counsel, we conclude that he waived his ability to challenge the Board's decision based on the voluntariness of his separation.

affirming Court of Federal Claims' determination that Murakami, who had failed to raise an argument before the Board, was precluded from raising that issue for the first time before the Court of Federal Claims

See Murakami v. United States, 398 F.3d 1342, 1354 (Fed.Cir.2005) (affirming Court of Federal Claims’ determination that Murakami, who had failed to raise an argument before the Board, was precluded from raising that issue for the first time before the Court of Federal Claims); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”); see also Sw. Bell Tel. Co. v. Pub. Util. Comm’n, 208 F.3d 475, 487 (5th Cir.2000) (“The failure to raise an issue at the administrative level waives the right to appellate review of that issue.”).

"The failure to raise an issue at the administrative level waives the right to appellate review of that issue."


"Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice."


Context: These arguments have been rejected by the Tennessee Supreme Court.

See State v. Cribbs, 967 S.W.2d 773, 796 (Tenn.1998); State v. Hall, 968 S.W.2d 679, 718 (Tenn. 1997); State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.1994) (cases rejecting attack based upon requirement of unanimity of life-sentence verdict).

See also Cribbs, 967 S.W.2d at 796; Brimmer, 876 S.W.2d at 87 (cases rejecting claim that jury should be informed of effect of non-unanimous verdict).


See also State v. Smith, 893 S.W.2d 908, 926 (Tenn.1994); State v. Nichols, 877 S.W.2d 722, 735 (Tenn.1994) (cases rejecting attack upon requirement of unanimity of finding that aggravating circumstances do not outweigh mitigating circumstances).


Context: In fact, it appears to be an inadvertent misstatement. The cases that Kelley cited all hold that, although the trustee need not file a formal avoidance action, the trustee must actually recover the property.

noting that the property probably has to be recovered for SS 522(g) to apply but ruling that it applied anyway because neither party brought it up

Russell v. Kuhnel (In re Kuhnel), 495 F.3d 1177, 1181 (10th Cir. 2007) (“[A] trustee need not initiate formal adversary proceedings to recover property under § 522(g), so long as the trustee has taken some action resulting in the recon-veyance of the property to the estate.”); Glass v. Hitt (In re Glass), 60 F.3d 565, 568-69 (9th Cir. 1995) (same); In re Hicks, 342 B.R. 596, 599-601 (Bankr. W.D. Mo.2006) (same); In re Ulrich, 203 B.R. 691, 693 (Bankr. C.D. Ill. 1997) (same); cf. In re Trevino, 96 B.R. 608, 612 (Bankr. E.D.N.C. 1989) (noting that the property probably has to be recovered for § 522(g) to apply but ruling that it applied anyway because neither party brought it up).

"[A] trustee need not initiate formal adversary proceedings to recover property under SS 522(g), so long as the trustee has taken some action resulting in the recon-veyance of the property to the estate."


Context: A second doctrine for authenticating a videotape is under the "silent witness" theory. This theory applies when no person can verify, by personal observation, that the videotape actually represents what occurred.

See Fisher v. State, 7 Ark.App. 1, 643 S.W.2d 571 (Ark.Ct.App.1982) (videotape of defendant removing groceries through rear door of store while store personnel were absent was held admissible).

photos taken at an automatic teller were admissible under the "silent witness" theory since foundational requirement was satisfied circumstantially by evidence which establishes the reliability of the process or system which produces the photograph

See also United States v. Howell, 16 M.J. 1003 (A.C.M.R.1983) (photos taken at an automatic teller were admissible under the “silent witness” theory since foundational requirement was satisfied circumstantially by evidence which establishes the reliability of the process or system which produces the photograph); United States v. Taylor, 530 F.2d 639 (5th Cir.1976), cert. denied, 429 U.S. 845, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976) (videotape was admissible after a government witness talked about operation of camera even though no witness actually verified the transactions observed within the tape); State v. Bunting, 187 N.J.Super. 506, 455 A.2d 531 (N.J.Super.Ct.App.Div.1983) (testimony regarding installation, activation and view of the camera, use and security of the camera, the testing and removal of film, and testimony as to the chain of custody of film was sufficient foundation to admit film which was taken during commission of the crime).


videotape was admissible after a government witness talked about operation of camera even though no witness actually verified the transactions observed within the tape


testimony regarding installation, activation and view of the camera, use and security of the camera, the testing and removal of film, and testimony as to the chain of custody of film was sufficient foundation to admit film which was taken during commission of the crime


Context: Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.

"The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest."

See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of public interest”); Demarest v. Athol/ Orange Cmty. Television, Inc., 188 F.Supp.2d 82, 94-95 (D.Mass.2002) (finding it “highly probable” that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, “[ajt base, plaintiffs had a constitutionally protected right to record matters of public interest”); Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 638 (D.Minn.1972) (holding that police interference with television newsman’s filming of crime scene and seizure of video camera constituted unlawful prior restraint under First Amendment); cf. Schnell v. City of Chi, 407 F.2d 1084, 1085 (7th Cir.1969) (reversing dismissal for failure to state a claim of suit claiming police interference with news reporters]’] and photographers’ “constitutional right to gather and report news, and to photograph news events” under the First Amendment (internal quotation mark omitted)), overruled on other grounds by City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Connell v. Town of Hudson, 733 F.Supp. 465, 471-72 (D.N.H.1990) (denying qualified immunity from First Amendment claim to police chief who prevented freelance photographer from taking pictures of car accident).


recognizing a "First Amendment right to film matters of public interest"


finding it "highly probable" that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, "[ajt base, plaintiffs had a constitutionally protected right to record matters of public interest"


holding that police interference with television newsman's filming of crime scene and seizure of video camera constituted unlawful prior restraint under First Amendment


Context: Even where an expert does not directly compare the behavior of the complainant to that typical of sexually abused children, the expert's testimony may be inadmissible where a reasonable jury would think the expert was implicitly vouching for the credibility of the complainant.

expert's testimony based on hypothetical questions that mirrored underlying facts of case was "tantamount to an endorsement of the credibility of the complaining child witness"

See also Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 583-584 (1995) (expert’s testimony based on hypothetical questions that mirrored underlying facts of case was “tantamount to an endorsement of the credibility of the complaining child witness”).

"little doubt" that expert's comments regarding credibility of "most" sexual assault victims would be taken by jury as expert's endorsement of complainant's credibility

See Montanino, 409 Mass. at 504 (“little doubt” that expert’s comments regarding credibility of “most” sexual assault victims would be taken by jury as expert’s endorsement of complainant’s credibility); Ianello, 401 Mass. at 202 (“While the proposed testimony fell short of rendering an opinion on the credibility of the specific child before the court, we see little difference in the final result”; expert’s opinion “ultimately would have been applied [by the jury] to the child alleging sexual abuse”).


Context: Finally, the plaintiffs seek only declaratory relief in this action. The Supreme Court has explicitly recognized that when declaratory relief is sought, mootness should not preclude review of a statute that will be enforced in the future against the complainants.

See also McCorkle, 416 U.S. 115, 94 S.Ct. 1694 (declaring the injunction moot, but ruling on the demand for declaratory judgment).

But see Stotts, 104 S.Ct. 2578 (declaring injunctive relief justiciable and apparently abandoning distinction between injunctive and declaratory relief as to mootness). “There is a tendency in declaratory judgment cases to construe the mootness doctrine more narrowly.”


Context: Paralegal fees are allowed under the EAJA, when the paralegal performs nonlegal work that a lawyer would have had to perform personally, but for the paralegal. PI.

Mem. at 10 (citing Jean v. Nelson, 868 F.2d 769, 778 (11th Cir. 1988) (holding that paralegal fees may be recovered at a market rate, but only to the extent that a paralegal performs work that would normally be done by an attorney), aff'd sub nom, Comm’r, I.N.S. v. Jean, 496 U.S. 164, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (affirming the judgment of the United States Court of Appeals for the Eleventh Circuit); see also WHR Grp., Inc. v. United States, 121 Fed.Cl. 673, 679 (2015) (determining that plaintiff could recover paralegal fees at the cost of $146 per hour).


affirming the judgment of the United States Court of Appeals for the Eleventh Circuit


Context: Although this Court has not specifically declared the modus operandi of drug trafficking as an appropriate or reliable field for expert opinion, several courts of appeal have consistently admitted such testimony.

ruling that expert testimony about "tools of the trade" of drug traffickers, including "beepers," was properly admitted

See United States v. Gil, 58 F.3d 1414, 1421-22 (9th Cir.1995) (ruling expert testimony regarding how drug-traffickers employ telephone pagers and public telephones to avoid detection by police was properly admitted); United States v. Ta- pia-Ortiz, 23 F.3d 738, 741 (2d Cir.1994) (affirming the admission of expert testimony of how drug traffickers employed telephone pagers “in order to avoid detection”); see also United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.1994) (ruling that expert testimony about “tools of the trade” of drug traffickers, including “beepers,” was properly admitted); United States v. Solis, 923 F.2d 548, 549-51 (7th Cir.1991) (concluding that expert testimony that the use of “beepers” by drug traffickers permit them to be anonymous and mobile was properly admitted).


concluding that expert testimony that the use of "beepers" by drug traffickers permit them to be anonymous and mobile was properly admitted


affirming the admission of expert testimony of how drug traffickers employed telephone pagers "in order to avoid detection"


Context: It must therefore be determined whether a reasonable officer could have believed that the circumstances established the necessary probable cause for Roe's arrest.

Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987) (qualified immunity is warranted if officers of reasonable competence could disagree on whether the probable cause test was met); see Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (“The relevant, disposi-tive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful ... ”).

"The relevant, disposi-tive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful ... "


Context: As the district court pointed out, there was the testimony of several people at trial and there was physical evidence to tie Jackson to the crime. The jury was properly given the task of weighing all the evidence and reaching a verdict. Furthermore, past Arkansas cases do not clearly indicate that the accomplice testimony in this case was insufficiently corroborated so as to preclude the trial court judge from submitting this case to the jury.

But see Olles v. State, 260 Ark. 571, 542 S.W.2d 755, 758 (1976) (holding possession alone cannot sufficiently corroborate the testimony of an accomplice when the stolen property was not sufficiently identified at trial), overruled on other grounds by White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204, 206 (1974) (holding recovery of stolen guns from trunk of accused’s car was insufficient corroboration of testimony of accomplice who lived with accused and used his car).

See, e.g., Johnson v. State, 6 Ark.App. 78, 638 S.W.2d 686, 690 (1982) (holding proof of possession of stolen goods is sufficient evidence to sustain conviction for theft); Paladino v. State, 2 Ark.App. 234, 619 S.W.2d 693, 695 (1981) (same).


holding recovery of stolen guns from trunk of accused's car was insufficient corroboration of testimony of accomplice who lived with accused and used his car


Context: And, it is only where, for procedural or other reasons, the state courts deprive the plaintiff of such an opportunity that Younger does not apply. But, that party, already engaged in a state proceeding, cannot ordinarily obtain a hearing in federal court on its federal claim simply because it believes the state will reject the claim on the merits.

" '[W]e must assume that [the state court] would properly determine the merits of any federal issue properly presented to it.' "

See Ahrensfeld, 528 F.2d at 198 (“ ‘[W]e must assume that [the state court] would properly determine the merits of any federal issue properly presented to it.’ ”) (quoting Cousins v. Wigoda, 463 F.2d 603, 607 (7th Cir.1972)); cf. Gibson v. Berryhill, 411 U.S. 564, 575-79, 93 S.Ct. 1689, 1696-98, 36 L.Ed.2d 488 (1973) (Younger abstention not appropriate where plaintiffs proved state administrative board was biased by pecuniary interest and prejudgment).


Context: Historically, an alleged murder weapon has constituted relevant evidence, even when the connection between the weapon and the crime is extremely thin.

photograph of defendant holding gun "relevant to establish his possession of a gun resembling the possible murder weapon on the night of [the victim's] murder"

State v. Cooper, 252 Kan. 340, 348, 845 P.2d 631 (1993); see Francis, 282 Kan. at 136 (lack of positive identification of alleged murder weapon went to weight not admissibility); see also State v. Scott-Herring, 284 Kan. 172, 176-77, 159 P.3d 1028 (2007) (photograph of defendant holding gun “relevant to establish his possession of a gun resembling the possible murder weapon on the night of [the victim’s] murder”).


Context: The Court is persuaded that the Bankruptcy Court was correct in drawing this conclusion. First, NOVA was found to be legally required to reimburse the Customers, and therefore "there was no consideration to support the purported assignment."

finding a purported assignment to be invalid for lack of consideration because the bank was already hable "by virtue of nonbankruptcy law prior to the execution of' the assignments

In re Mid-Am., 145 B.R. at 972 (finding a purported assignment to be invalid for lack of consideration because the bank was already hable “by virtue of nonbankruptcy law prior to the execution of’ the assignments); see also In re Mel-Hart, 156 B.R. at 607 (“There can be no assignment from employees to [claiming company] because there was no consideration to support the purported assignment.”).

"There can be no assignment from employees to [claiming company] because there was no consideration to support the purported assignment."


Context: Moreover, we note that Maxwell took the stand to corroborate Jenkins's impeachment testimony that Lavoris Smith had made a prior statement inconsistent with her testimony.

"[rjeversible prejudice results from the attorney's testimony when the attorney actively participates in the criminal prosecution"

See also State v. Washington, 229 Kan. 47, 61, 622 P.2d 986, 996 (1981) (“[rjeversible prejudice results from the attorney’s testimony when the attorney actively participates in the criminal prosecution”), modified on other ground, State v. Hayes, 239 Kan. 443, 720 P.2d 1049 (1986).

reversal warranted because of the prejudicial effect of the prosecuting attorney's active prosecution of the case while serving as the prosecution's principal witness to the only real factual issue

Compare State v. Miller, 391 So.2d 1159, 1161-64 (La.1980) (in finding harmless the assistant district attorney’s resumption of his role as co-prosecutor after having testified, the court considered, among other factors, that he was an impeachment witness), with Wal drop v. State, 424 So.2d at 1346, 1351 (reversal warranted where the prosecutor was the prosecution’s principal witness, testifying as to the defendant’s confession and written statement, the latter of which, the court noted, intensified and magnified the oral statement, leaving no doubt of the defendant’s guilt); State v. Hayes, 473 S.W.2d 688 (Mo.1971) (reversal warranted because of the prejudicial effect of the prosecuting attorney’s active prosecution of the case while serving as the prosecution’s principal witness to the only real factual issue).


Context: FAA air traffic controllers' duties include giving "all the information and warnings specified in [their] manuals, and in certain situations [they] must give warnings beyond the manuals."

holding that FAA controllers' failure to provide "accurate and timely information" about foggy weather conditions when an airplane pilot approached the landing strip caused the spatial disorientation of the pilot, which was the type of harm the controllers should have expected

See Worthington v. United States, 21 F.3d 399, 406-07 (11th Cir.1994) (holding that FAA controllers’ failure to provide “accurate and timely information” about foggy weather conditions when an airplane pilot approached the landing strip caused the spatial disorientation of the pilot, which was the type of harm the controllers should have expected); see also Ingham, 373 F.2d at 234 (“The issue ... is not whether the government had a duty to [report weather condition] information, but rather what was the scope of that duty.”).

"The issue ... is not whether the government had a duty to [report weather condition] information, but rather what was the scope of that duty."


Context: Moreover, Adkins has offered circumstantial evidence to support her claim that she was fired because of her disability -- that PRMC terminated her, knowing she was at the time restricted to light duty, and simultaneously ignored its responsibility to reasonably accommodate her. Considering the record in the light most favorable to Adkins, we conclude that a factfinder may infer that she was terminated because of her disability.

"Whether there has been a waiver of a contractual right involves a matter of intent that ordinarily turns on the factual circumstances of each case."

See also Pullman-Standard, 456 U.S. at 288, 102 S.Ct. 1781 (“Treating issues of intent as factual matters for the trier of fact is commonplace.”); cf. Questar Homes of Avalon, LLC v. Pillar Constr., Inc., 388 Md. 675, 687, 882 A.2d 288 (2005) (“Whether there has been a waiver of a contractual right involves a matter of intent that ordinarily turns on the factual circumstances of each case.”).

"Treating issues of intent as factual matters for the trier of fact is commonplace."


Context: [2] The district court did not abuse its discretion by declining to hold an evidentiary hearing.

reviewing the denial of a merits hearing under 28 U.S.C. SS 2255 for abuse of discretion

See Chang v. United States, 250 F.3d 79, 82 (2d Cir.2001) (reviewing the denial of a merits hearing under 28 U.S.C. § 2255 for abuse of discretion); see also Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir.2010) (remanding to the district court to consider a petitioner’s equitable tolling claim and noting that “[t]he decision as to whether an evidentia-ry hearing is warranted is ... consigned to the district court”).

remanding to the district court to consider a petitioner's equitable tolling claim and noting that "[t]he decision as to whether an evidentia-ry hearing is warranted is ... consigned to the district court"


Context: Many jurisdictions have found that running an NCIC cheek, in addition to a driver's license check, is within the scope of a traffic stop and is permissible so long as it does not unreasonably extend the time of the stop.

See McRae, supra, 81 F.3d at 1535-36 n. 6 (explaining that during traffic stop, officer may access NCIC records to determine quickly existence of outstanding warrants); State v. Lopez, 873 P.2d 1127, 1133 (Utah 1994) (holding warrant check lawful if detention not extended beyond time necessary to request license and registration and issue citation); see also People v. McGaughran, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207, 211 (1979) (explaining that warrant check lawful where it does not prolong traffic stop beyond time necessary to investigate original reason for detention); People v. Smith, 926 P.2d 186, 189 (Colo.Ct.App.1996) (finding that police may check for outstanding warrants, provided that duration of detention is not unreasonably extended); State v. Smith, 73 Or.App. 287, 698 P.2d 973, 976 (1985) (finding five-minute warrant check during stop lawful but warning that check may become unreasonable if inordinately long); Petty v. State, 696 S.W.2d 635, 638-39 (Tex.Ct.App.1985) (upholding stop where warrant check did not last more than a few minutes).


finding that police may check for outstanding warrants, provided that duration of detention is not unreasonably extended


finding five-minute warrant check during stop lawful but warning that check may become unreasonable if inordinately long


upholding stop where warrant check did not last more than a few minutes


holding warrant check lawful if detention not extended beyond time necessary to request license and registration and issue citation


Context: Appellant likewise presented no argument or evidence, either in the trial court or on appeal, regarding the racial composition of the entire venire, such that we- can consider whether the State used a disproportionate number of its strikes to challenge African-Americans relative to the number of African-Americans on the veni-re. Appellant also did not rebut the State's observations on the record concerning Prospective Juror No. 36's courtroom demeanor.

"[A] prospective juror's demeanor may be 'considered proved on the record' if the prosecutor recites his observation of that demeanor for the record and defense counsel fails to 'rebut the observation.' "

See Nieto v. State, 365 S.W.3d 673, 680 (Tex. Crim.App.2012) (“We have held that the demeanor of a potential juror is a valid reason to exercise a peremptory strike.”); see also Blackman, 414 S.W.3d at 767 (“[A] prospective juror’s demeanor may be ‘considered proved on the record’ if the prosecutor recites his observation of that demeanor for the record and defense counsel fails to ‘rebut the observation.’ ”).

"We have held that the demeanor of a potential juror is a valid reason to exercise a peremptory strike."


Context: Nor can Nevada complain that its lack of representation on the Conference Committee created a defect in the political process. The membership of the Conference Committee was established pursuant to Article I, section 5, clause 2, which, in pertinent part, states that "Each House may determine the Rules of its Proceedings."

Cf. Davids v. Akers, 549 F.2d 120, 123-25 (9th Cir.1977) (membership on state legislative committees is not a justiciable controversy).

committee membership is a power allocated to each House of Congress pursuant to Art. I, SS 5, cl. 2

U.S. Const, art. I, § 5, cl. 2; see Vander Jagt v. O’Neill, 699 F.2d 1166, 1172 (D.C.Cir.1982) (committee membership is a power allocated to each House of Congress pursuant to Art. I, § 5, cl. 2), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983). To the extent that Nevada contends it should have had a representative on the committee, that issue is not justiciable.


Context: Young's marked lane violation for admittedly "weaving" on the highway provided probable cause to stop him for violating the traffic laws. Further, Trooper Kane had ample reasonable suspicion, based on surveillance by fellow officers observing what they believed to be consistent with drug trafficking and collection of drug proceeds, to stop the truck and investigate.

"fellow officer rule" provides that "knowledge may be imputed from DEA agents to the state police who actually effectuated the stop"

See United States v. Kimball, 25 F.3d 1, 6 (1st Cir.1994)(agents may stop a moving automobile to investigate their reasonable suspicion that the occupants were engaged in criminal activity); see also United States v. Capelton, 350 F.3d 231, 240 (1st Cir.2003) (“fellow officer rule” provides that “knowledge may be imputed from DEA agents to the state police who actually effectuated the stop”).


Context: Because the Court has found no violation of Plaintiffs Eighth Amendment rights, the Court need not reach any issues regarding qualified immunity.

"[The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all.]"

See County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“[The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all.]”); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

"If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."


Context: As discussed above, the Texas Legislature has not established a statutory scheme for the presentation and determination of an issue of mental retardation in a capital murder trial. However, in the meantime, this Court has formulated temporary judicial guidelines in addressing Atkins claims.

See Schriro, 546 U.S. at 7, 126 S.Ct. 7 (holding that the Ninth Circuit erred in commanding Arizona courts to conduct a jury trial to resolve mental-retardation claim); see also Briseno, 135 S.W.3d at 9 (holding that Atkins does not require a jury determination of mental retardation in a post-conviction proceeding).


Context: In some cases, the transformative nature of a work overshadows and outweighs its commercial purpose. This is particularly true in the realm of parody, as "a parody's aim is, by nature, to transform an earlier work."

recognizing that "parody has an obvious claim to transformative value"

See also, Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (recognizing that “parody has an obvious claim to transformative value”).

Suntrust Bank, 268 F.3d at 1269. (holding that the transformative nature of The Wind Done Gone, a parody of Gone With the Wind, outweighed its commercial purpose).


Context: With respect to Gluba's first assertion, we have stated that "[i]t is well settled that legislative classifications based upon age are not suspect classifications" for equal protection purposes. Similarly, courts have not subjected classifications based on disability to heightened scrutiny.

See Tennessee v. Lane, 541 U.S. 509, 522, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (“[Classifications based on disability violate [equal protection] if they lack a rational relationship to a legitimate governmental purpose.”); see also Kolton, 645 N.W.2d at 411 (applying rational basis review to a classification based on disability when neither party argued for heightened scrutiny).

"[Classifications based on disability violate [equal protection] if they lack a rational relationship to a legitimate governmental purpose."


Context: The BIA concluded that Diaz-Jaimes was ineligible to adjust his status because his conviction under Oregon Revised Statute SS 163.415 was a crime involving moral turpitude. Subsequent to the BIA's order, we held that a conviction under a similar California state statute did not categorically constitute a crime involving moral turpitude.

See Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir.2007) (engaging in intercourse with a minor is not categorically a crime involving moral turpitude); see also Galeana-Mendoza, 465 F.3d at 1061 (crimes against protected classes do not necessarily involve moral turpitude if they do not result in injury).


Context: The Full Faith and Credit Clause of the United States Constitution requires the courts of one state give "such force and effect to a foreign judgment as the judgment would receive in its own state." However, "[t]he Full Faith and Credit Clause does not prevent the litigation of personal jurisdiction in an action to enforce a foreign judgment" if the party did not make a general appearance in the foreign jurisdiction.

"Only a defendant who 'remains aloof by not making an appearance and has a default judgment entered against him may contest the issue of personal jurisdiction in a later proceeding."

Taylor, 326 S.C. at 532-33, 484 S.E.2d at 596-97 (“Only a defendant who ‘remains aloof by not making an appearance and has a default judgment entered against him may contest the issue of personal jurisdiction in a later proceeding.”); see Alladin Plastics, Inc. v. Wintenna, Inc., 301 S.C. 90, 92, 390 S.E.2d 370, 371 (Ct.App.1990) (“[A] court is bound to enforce the judgment of a court in another state only if the court in the other state had jurisdiction to render the judgment.”); see also Taylor, 326 S.C. at 533, 484 S.E.2d at 597 (“ ‘A defendant who appears [in the foreign jurisdiction] to litigate the merits without properly preserving an objection to personal jurisdiction waives the right to raise the objection in the initial proceeding and is bound by the resulting judgment.’ ” (quoting Charles A. Wright, Arthur R. Miller, Edward H.

"[A] court is bound to enforce the judgment of a court in another state only if the court in the other state had jurisdiction to render the judgment."


Context: Plaintiffs have failed, though, to explain how the training that was conducted was deficient or offered evidence that "the need for more or different training [was] so obvious that a violation of [plaintiffs'] constitutional right to bodily integrity was likely to result from not providing it."

"Specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior."

Schneider, 717 F.3d at 773-74 (internal quotations omitted); see Barney, 143 F.3d at 1308 (“Specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior.”); cf. Bryson, 627 F.3d at 789 (“We are not persuaded, however, that it was highly predictable or plainly obvious that a forensic chemist would decide to falsify test reports and conceal evidence if she received only nine months of on-the-job training and was not supervised by an individual with a background in forensic science.”).

"We are not persuaded, however, that it was highly predictable or plainly obvious that a forensic chemist would decide to falsify test reports and conceal evidence if she received only nine months of on-the-job training and was not supervised by an individual with a background in forensic science."


Context: Counsel's failure to follow Dr. Winig's advice to investigate Heishman's mental condition constitutes deficient performance unless it can be justified as a reasonable tactical decision.

finding penalty-phase ineffective assistance of counsel where counsel waited 10 months to follow the recommendation of two mental health experts for further neuropsychological testing, because "when testing requested by expert witnesses is not performed, ... a capital defendant has not received effective penalty phase assistance of counsel"

See Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir.1995) (“[W]here counsel is on notice that his client may be mentally impaired, counsel’s failure to investigate his client’s mental condition as a mitigating factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient performance.”); see also Bean v. Calderon, 163 F.3d 1073, 1078-80 (9th Cir.1998) (finding penalty-phase ineffective assistance of counsel where counsel waited 10 months to follow the recommendation of two mental health experts for further neuropsychological testing, because “when testing requested by expert witnesses is not performed, ... a capital defendant has not received effective penalty phase assistance of counsel”); cf. Hendricks, 70 F.3d at 1037 (rejecting a guilt-phase ineffective assistance of counsel claim where counsel followed a psychiatrist’s advice to obtain additional psychological evaluation).

"[W]here counsel is on notice that his client may be mentally impaired, counsel's failure to investigate his client's mental condition as a mitigating factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient performance."


rejecting a guilt-phase ineffective assistance of counsel claim where counsel followed a psychiatrist's advice to obtain additional psychological evaluation


Context: Thus, this claim is also inextricably intertwined with the CBA; the Court must apply or interpret provisions of the CBA to determine whether Defendants acted improperly, without privilege and maliciously.

tortious-interference claim preempted where assessment of union's actions could only be done by interpreting CBAs, which may have allowed some of union's conduct

See Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1340 (11th Cir.2004) (determining whether employer’s pre-termination statements were “improper” and “without privilege” required consideration of CBA; consequently, claim for tortious interference with business relations was preempted by LMRA); Pilkington v. United Airlines, 112 F.3d 1532, 1540 (11th Cir.1997) (tortious-interference claim preempted where assessment of union’s actions could only be done by interpreting CBAs, which may have allowed some of union’s conduct); see also Atwater, 626 F.3d at 1180 (negligence claim preempted because duties underlying claim arose directly from CBA).


Context: At trial, Tolan testified he actually spent $7,236 on medical insurance and medical expenses during the period from his discharge to trial. Tolan further indicated the cost of replacing the life insurance benefits previously provided by Levi exceeded $12,000, but Tolan admitted he had not spent that amount on life insurance. The courts have differed on whether an employee should recover for lost insurance benefits when that employee did not obtain substitute coverage or incur any previously covered expenses.

in unfair representation case, plaintiff can recover only amounts spent for substitute insurance coverage or for medical expenses previously covered under employer's insurance plan

Cf. Galindo v. Stoody Co., 793 F.2d 1502, 1517 & n. 15 (9th Cir.1986) (in unfair representation case, plaintiff can recover only amounts spent for substitute insurance coverage or for medical expenses previously covered under employer’s insurance plan).

Compare Fariss v. Lynchburg Foundry, 769 F.2d 958, 964-66 (4th Cir.1985) (plaintiff, the wife of a deceased employee, can recover life insurance premiums that employer would have paid even though employee failed to obtain substitute coverage); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1185-86 (6th Cir.1983) (employee entitled to receive lost health insurance benefits); Foster v. Excelsior Springs City Hosp. & Convalescent Center, 631 F.Supp. 174, 174-75 (W.D.Mo.1986) (plaintiff, the wife of a deceased employee, can recover proceeds of life insurance policy even though employee obtained no substitute coverage); Jacobson v. Pitman-Moore, Inc., 582 F.Supp. 169, 179 (D.Minn. 1984) (employee can recover lost insurance benefits even though no substitute coverage obtained) with Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir.1986) (employee can recover only those amounts expended for substitute coverage or for medical expenses previously covered under employer’s insurance plan), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987), overruled on other grounds, Coston v. Plitt Theatres, Inc., 860 F.2d 834, 835-36 (7th Cir.1988); McKelvy v. Metal Container Corp., 674 F.Supp. 827, 832 (M.D.Fla.1987) (same), aff'd in part on other grounds and vacated in part on other grounds, 854 F.2d 448 (11th Cir.1988).


plaintiff, the wife of a deceased employee, can recover proceeds of life insurance policy even though employee obtained no substitute coverage


employee can recover lost insurance benefits even though no substitute coverage obtained


Context: The Act sets forth a statutory scheme for the licensing of security guards and grants them the power to arrest and detain persons on the premises they have been hired to protect. S.C.Code Ann. SS 40-17-130 (Law.Co-op.1986). If Crooks had arrested plaintiff on Colonial Life's premises in exercise of rights granted him under SS 40-17-130 of the Act, he clearly would have been acting under the color of state law.

See, e.g., Thompson v. McCoy, 425 F.Supp. 407 (D.S.C.1976) (security guard found to have acted under color of state law when he allegedly arrested and assaulted the plaintiff on premises he was hired to protect); see also State v. Brant, 278 S.C. 188, 293 S.E.2d 703 (1982) (“According to this provision [§ 40-17-130], a security guard licensed by SLED stands in the shoes of the sheriff for purposes of arrest while he is on the property is is hired to protect.” (emphasis added)).

"According to this provision [SS 40-17-130], a security guard licensed by SLED stands in the shoes of the sheriff for purposes of arrest while he is on the property is is hired to protect." (emphasis added


Context: Therefore, the Court declines to address any such argument. However, the Court notes that "Courts ... have repeatedly upheld the constitutionality of the misbranding provisions [other than 352(c) ] of the FDCA in the face of vagueness challenges ..."

United States v. Caronia, 576 F.Supp.2d 385, 402 n. 13 (E.D.N.Y.2008), vacated and remanded on other grounds, 703 F.3d 149 (2d Cir.2012) (vacating conviction of FDCA misbranding provisions on other grounds); United States v. Gen. Nutrition, Inc., 638 F.Supp. 556, 564 (W.D.N.Y.1986) (“The [FDCA] on numerous occasions has been upheld against vagueness challenges ... this Court is unaware of any case holding any provision of the Act void for vagueness in any circumstance.”); see United States v. Sullivan, 332 U.S. 689, 695, 68 S.Ct. 331, 335, 92 L.Ed. 297 (1948) (finding no ambiguity in the misbranding language of the Act and accordingly upholding the provision requiring adequate directions for use and adequate warning against use); United States v. Article of Drug Labeled "White Quadrisect”, 484 F.2d 748, 751 (7th Cir.1973) (finding that the phrase “current good manufacturing practice,” as used in the FDCA, relating to adulterated drugs and devices, was not unconstitutionally vague); United States v. 2600 State Drugs, Inc., 235 F.2d 913 (7th Cir.1956) (upheld the FDCA against the defendants’ vagueness challenge, specifically holding that the “provisions of th[e] Act are sufficiently definite to support a criminal charge for the violation of the Act.”); United States v. Forester, 346 F.2d 685, 686 (4th Cir.1965) (per cüriam)(citing 2600 State Drugs, Inc. and affirming a judgment denying a motion to dismiss an information based on unconstitutional vagueness of Section 503(b)(1)(B)); Travia, 180 F.Supp.2d at 122-23 (rejecting the defendant’s void for vagueness challenge to the FDCA and holding that “Congress has provided sufficient notice through these provisions; they are not so vague or standardless that the ordinary public is left uncertain as to what is prohibited”); United States v. Reece, No. CRIM. 12-00146(EEF)(PJH), 2013 WL 5234124, at *7-8 (W.D.La.

"The [FDCA] on numerous occasions has been upheld against vagueness challenges ... this Court is unaware of any case holding any provision of the Act void for vagueness in any circumstance."


finding that the phrase "current good manufacturing practice," as used in the FDCA, relating to adulterated drugs and devices, was not unconstitutionally vague


upheld the FDCA against the defendants' vagueness challenge, specifically holding that the "provisions of th[e] Act are sufficiently definite to support a criminal charge for the violation of the Act."


Context: That reading of DeSouza's holding is incorrect. The Court of Appeals held that the trial court did not err in proceeding with the defendant's retrial during the pendency of his appeal from the denial of a plea in bar that was found to be frivolous. See id. at 202-203. The court noted in passing that the defendant's "sentence was not imposed until after the remittitur [from the plea appeal] was filed below," id. at 203, hut the court did not hold that the supersedeas from the notice of appeal precluded the trial court from sentencing the defendant. Where a defendant files a notice of appeal challenging the denial of a plea in bar that the trial court finds to he frivolous or dilatory, the defendant may be retried, convicted, and sentenced despite the pendency of the defendant's appeal.

deciding a challenge to the denial of a plea in bar that the trial court found to be frivolous in an appeal from the defendant's convictions and sentence

See also Baker v. State, 263 Ga. App. 462, 463-466 (588 SE2d 288) (2003) (deciding a challenge to the denial of a plea in bar that the trial court found to be frivolous in an appeal from the defendant’s convictions and sentence).

See Strickland v. State, 258 Ga. 764, 766, n. 1 (373 SE2d 736) (1988) (suggesting that a merits appeal from a conviction and sentence and an appeal from the earlier denial of a plea in bar could be decided together if the General Assembly required an application to appeal the denial of a plea in bar, which could not happen if the plea in bar appeal prevented the trial court from entering an appealable final judgment sentencing the defendant).


Context: Here, we find no conflict between Pennsylvania and New Jersey law: both rely on the Restatement (Second) of Torts and require similar elements for defamation. Accordingly, we need not resolve the conflict-of-law issue, and may "refer interchangeably" to Pennsylvania and New Jersey law when reviewing Kerrigan's defamation claim.

applying both states' laws where there was a false conflict

Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir.1994) (applying both states’ laws where there was a false conflict); see also Lambert v. Kysar, 983 F.2d 1110, 1114-15 (1st Cir.1993) (“We need not resolve the [conflict-of-law] issue ... as the outcome is the same under the substantive law of either jurisdiction.”).

"We need not resolve the [conflict-of-law] issue ... as the outcome is the same under the substantive law of either jurisdiction."


Context: Here, Lumbermens is an Illinois corporation, not a Pennsylvania corporation. Thus, Pennsylvania has no contact with the dispute between Air Products and Lumbermens relevant to its interest in protecting manufacturers from extraordinary liability.

Rosen v. Tesoro Petroleum Corp., 399 Pa.Super. 226, 582 A.2d 27, 30-31 (1990) (Pennsylvania has no interest in applying a defendant-protective malicious prosecution rule to Texas defendants); Turcotte v. Ford Motor Co., 494 F.2d 173, 178 (1st Cir.1974) (Massachusetts has little interest in shielding a foreign corporation from liability under a statute limiting wrongful death recovery); see Waschel v. King Tour & Travel Srvcs., Inc., 43 Pa D & C 4th 52, 56-57, 1999 WL 1539022 (Pa. Com. Pl. Oct 29, 1999) (Pennsylvania has no interest in applying its rules of the road to conduct occurring on New Jersey roads even though injured plaintiff was a Pennsylvania domiciliary).


Massachusetts has little interest in shielding a foreign corporation from liability under a statute limiting wrongful death recovery


Context: Sebasky also argues the evidence from M.B. was not clear and convincing. However, the identity of the perpetrator was not at issue and the defense did not attempt to rebut M.B.'s testimony.

upholding the trial court's admission of other crime evidence despite some uncertainty in the witnesses' identification of the defendant

Cf. State v. Coleman, 373 N.W.2d 777, 781-82 (Minn.1985) (upholding the trial court’s admission of other crime evidence despite some uncertainty in the witnesses’ identification of the defendant).

stating Spreigl evidence was proven by clear and convincing evidence because the defendant's identity was not in doubt and the victim testified about the incident

See State v. Moorman, 505 N.W.2d 593, 602 (Minn.1993) (stating Spreigl evidence was proven by clear and convincing evidence because the defendant’s identity was not in doubt and the victim testified about the incident); State v. Raidner, 411 N.W.2d 490, 497 (Minn.1987) (finding Spreigl incidents were proven by clear and convincing evidence because there was eyewitness testimony, no rebuttal, and the identity of the participants was not in doubt). Sebasky’s current assertions that M.B. may have had some unspecified reasons for fabricating the incidents fails to show by itself that the evidence was not clear and convincing.


finding Spreigl incidents were proven by clear and convincing evidence because there was eyewitness testimony, no rebuttal, and the identity of the participants was not in doubt


Context: Given the material differences between this case and Brown, and the strong circumstantial evidence that Davis served as a lookout and/or helped plan the carjacking, I see no basis to grant Davis habeas relief in light of the AEDPA deference that we are obligated to apply. The key reason for granting habeas relief in Brown was that the evidence there was deemed too speculative for a jury to find Brown guilty beyond a reasonable doubt. The present case, on the other hand, is distinguishable because the additional facts supporting the jury's verdict push it well beyond an "objectively unreasonable" outcome that would entitle Davis to habeas relief.

explaining that a state court's decision must be "objectively unreasonable" to merit habeas relief

See Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (explaining that a state court’s decision must be “objectively unreasonable” to merit habeas relief); see also White v. Steele, 602 F.3d 707, 709-11 (6th Cir.2009) (distinguishing Brown and denying relief on an aiding-and-abetting, sufficiency-of-the-evidence argument).


Context: However, these post-complaint affidavits -- swearing to such facts as they exist at the date of the affidavit -- have no bearing on the standing analysis. Rather, they should be reserved for an argument of mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

"As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint."

(TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("The confusion is understandable, given this Court's repeated statements that the doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).)” (citations omitted); see also, Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.2005) ("As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint.”) (citations omitted); see also, Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir.2011) ("[Standing is determined at the time the action is brought, and we generally look to when the complaint was first filed, not to subsequent events.”) (citations omitted).


"[Standing is determined at the time the action is brought, and we generally look to when the complaint was first filed, not to subsequent events."


Context: Accordingly, the trial court was not in a position to consider the new sale claim. Likewise, although able appellate counsel did an excellent job arguing the claim on appeal, this theory has not been preserved for consideration by this court.

plaintiffs alternative argument that the loan modification was a separate sale under the MMPA not addressed where complaint only alleged that lender's actions occurred "in connection with the servicing of the ... mortgage"

See also Wivell, 773 F.3d at 899 n. 2 (plaintiffs alternative argument that the loan modification was a separate sale under the MMPA not addressed where complaint only alleged that lender’s actions occurred “in connection with the servicing of the ... mortgage”); Groh v. JPMorgan Chase Bank, N.A., 2015 WL 58461 (W.D.Mo.2015) (dismissal of MMPA claim based on lenders’ failure to timely finalize loan modification agreement was upheld where allegations did not relate to any acts or omissions connected with original loan and amended petition did not allege a separate sale).

plaintiff could not base civil conspiracy claim on two new independent causes of action not pleaded in his petition and only mentioned in his response to defendant's motion for summary judgment

See Hibbs v. Berger, 430 S.W.3d 296, 320-21 (Mo.App.E.D.2014) (plaintiff could not base civil conspiracy claim on two new independent causes of action not pleaded in his petition and only mentioned in his response to defendant’s motion for summary judgment).


dismissal of MMPA claim based on lenders' failure to timely finalize loan modification agreement was upheld where allegations did not relate to any acts or omissions connected with original loan and amended petition did not allege a separate sale


Context: Thus, it is very unlikely that Congress intended for vessel owners to be able to cancel out this legislative decision by relying on the similar in rem protection of the 1851 Limitation Act. Permitting Southern Scrap to invoke the Limitation Act in this case would nullify the effect of the new SSSS 414(b) and 415(c), which we have determined impose unlimited personal liability upon a vessel owner for governmental removal costs, when the owner fails to comply with its obligation to remove its sunken vessel from a navigable waterway.

explaining that Wreck Act claims arise "from statutory authority creating an independent statutory duty on the part of the shipowner" and that to subject such claims to limitation "would thwart the expressed intent of Congress-removal of sunken vessels that are hazards to navigation"

See In re Transporter Marine, Inc., 217 F.3d 335, 338 (5th Cir.2000) (explaining that Wreck Act claims arise “from statutory authority creating an independent statutory duty on the part of the shipowner” and that to subject such claims to limitation “would thwart the expressed intent of Congress-removal of sunken vessels that are hazards to navigation”); cf. Univ. of Texas Med. Branch at Galveston, 557 F.2d at 453 (disallowing application of the Limitation Act there because it “would merely reinstate at another level the limitation on a negligent party’s liability that Wyandotte had removed by authorizing an in personam suit”).

disallowing application of the Limitation Act there because it "would merely reinstate at another level the limitation on a negligent party's liability that Wyandotte had removed by authorizing an in personam suit"


Context: Here, Kluss contends that the error committed is "of constitutional dimensions," and he focuses solely upon Article I, SS 13 of the Idaho Constitution, providing that "No person shall be twice put in jeopardy for the same offense ..." However, as our Supreme Court has often held, even constitutional issues presented for the first time on appeal may not be considered unless fundamental error is shown or the case falls within some other exception to the rule.

constitutional challenge to the statute on included offenses, I.C. SS 19-2132, first raised on appeal was held to be barred by the rule

See, e.g., State v. Fodge, 121 Idaho 192, 824 P.2d 123 (1992) (constitutional challenge to the statute on included offenses, I.C. § 19-2132, first raised on appeal was held to be barred by the rule), citing Sanchez v. Arave, 120 Idaho 321, 815 P.2d 1061 (1991).

the Court considered whether Kenner's privilege against self-incrimination had been violated because the allegation, had it been true, suggested fundamental error

See also State v. Kenner, 121 Idaho 594, 597, 826 P.2d 1306, 1309 (1992) (the Court considered whether Kenner’s privilege against self-incrimination had been violated because the allegation, had it been true, suggested fundamental error).


Context: . This ruling is also consistent with criminal law, wherein a criminal defendant may seek dismissal of the indictment on the grounds that the alleged offense violates a federally-secured treaty hunting and/or fishing right.

See also United States v. Fox, 573 F.3d 1050 (10th Cir.2009) (rejecting government's argument that hunting right was not a right enjoyed by the tribal member but rather a treaty communal right).

addressing defendant's argument that federal statutes violated a treaty-hunting right

See United States v. Dion, 476 U.S. 734, 735-36, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (addressing defendant’s argument that federal statutes violated a treaty-hunting right); United States v. Williams, 898 F.2d 727 (9th Cir.1990) (allowing defendant to challenge state conviction on the grounds that it violated a treaty-hunting right).


allowing defendant to challenge state conviction on the grounds that it violated a treaty-hunting right


Context: First, "federal courts must take cognizance of the valid constitutional claims of prison inmates." Thus, prison inmates possess the right of free speech under the First and Fourteenth Amendments, including the right to receive publications.

"[T]he blanket prohibition against receipt of the publications by any prisoner carries a heavy presumption of unconstitutionality."

Bell v. Wolfish, 441 U.S. 520, 545, 550-51, 99 S.Ct. 1861, 1877-78, 1880-81, 60 L.Ed.2d 447 (1979); Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989); Procunier v. Martinez, 416 U.S. 396, 407-11, 94 S.Ct. 1800, 1808-10, 40 L.Ed.2d 224 (1974); Pepperling v. Crist, 678 F.2d 787, 791 (1982) (“[T]he blanket prohibition against receipt of the publications by any prisoner carries a heavy presumption of unconstitutionality.”); see also Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.1987) (in absence of legitimate penological interests, prisoners retain First Amendment right to receive and read publications).


Context: P 31. The trial judge made a careful determination in the record by going through all of the evidence presented before directing a verdict in favor of Bar-rentine. First- the judge considered the issue of fraud. In order to establish its claim of fraud, the Estate was required to prove, among other things, that Barrentine falsely represented to Tatum that she would marry him.

See also Martin v. Winfield, 455 So.2d 762, 764 (Miss.1984) (elements of fraud must be proven by clear and convincing evidence).

See Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999) (stating that among the elements of fraud are a representation and its falsity).


Context: As to his misearriage-of-justice claim that his appeal waiver was otherwise unlawful, defendant must show that the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Defendant's arguments do not support the miscarriage-of-justice exception because his claims only concern the lawfulness of his sentence; he has not asserted any claim regarding the critical issue of whether his appeal waiver was itself unlawful.

"The relevant question ... is not whether [defendant's] sentence is unlawful ..., but whether ... his appeal waiver itself [is] unenforceable."

See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.), cert. denied, — U.S. -, 126 S.Ct. 550, 163 L.Ed.2d 466 (2005) (“The relevant question ... is not whether [defendant’s] sentence is unlawful ..., but whether ... his appeal waiver itself [is] unenforceable.”); see also Hahn, 359 F.3d at 1326 & n. 12 (discussing knowing and voluntary prong and recognizing “the logical failings of focusing on the result of a proceeding, rather than on the right relinquished, in analyzing whether an appeal is unknowing or involuntary”). Indeed, to hold that alleged errors under the sentencing guidelines render an appeal waiver unlawfiil would nullify the waiver based on the very sort of claim it was intended to waive. Nor has defendant otherwise shown that enforcement of the waiver would seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

discussing knowing and voluntary prong and recognizing "the logical failings of focusing on the result of a proceeding, rather than on the right relinquished, in analyzing whether an appeal is unknowing or involuntary"


Context: The district court properly dismissed Moore's action because Moore failed to allege facts sufficient to state any plausible claim.

access-to-courts claim requires showing that the defendant's conduct caused actual injury to a non-frivolous legal claim

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to state a plausible claim); see also Lewis v. Casey, 618 U.S. 343, 349, 116 S.Ct. 2174, 136 L.Ed.2d 606 (1996) (access-to-courts claim requires showing that the defendant’s conduct caused actual injury to a non-frivolous legal claim); Hudson v. Palmer, 468 U.S. 517, 533, 535, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (holding that deprivation of property does not violate due process if a meaningful post-deprivation remedy is available and explaining that state tort actions are meaningful post-deprivation remedies); see also Idaho Code § 6-901 (Idaho Tort Claims Act) (2016).


holding that deprivation of property does not violate due process if a meaningful post-deprivation remedy is available and explaining that state tort actions are meaningful post-deprivation remedies


Context: Where, as here, the exercise of patients' rights is inextricably bound with the activities of their physicians, so is the provider whose operation is dependent on the existence of that relationship. In this regard, an abortion facility has a " 'direct stake' in the abortion process."

bookseller organizations and booksellers had standing to sue based on alleged infringement of bookbuyers' First Amendment rights

McCormack, 788 F.3d at 1028; Am. Booksellers Ass’n, 484 U.S. at 393, 108 S.Ct. 636 (bookseller organizations and booksellers had standing to sue based on alleged infringement of bookbuyers’ First Amendment rights); see also Eisenstadt v. Baird, 405 U.S. 438, 445, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (distributor of contraceptives who acted as “an advocate of the rights of persons to obtain contraceptives and those desirous of doing so” had third-party standing); Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 536, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (enterprises permitted to litigate against interference with the freedom of patrons or customers). The ability to ‘ advocate for the interests of physicians arid the patients they serve is not severed by the corporate form, nor does its entity status diminish the reasons which endorse third-party representation of women seeking an abortion. See Pennsylvania Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 293 (3rd Cir.2002) (“So long as the association’s members have or will suffer sufficient injury to merit standing and their members possess standing to represent the interests of third-parties, then associations can advance the third-party claims of their' members without suffering injuries themselves.”).

distributor of contraceptives who acted as "an advocate of the rights of persons to obtain contraceptives and those desirous of doing so" had third-party standing


enterprises permitted to litigate against interference with the freedom of patrons or customers


Context: The Act revamped existing proscriptions on "drunken drivers" by reducing the maximum punishment from incarceration in the penitentiary to a fine and confinement in jail, making a felony offense for a second DWI, and creating the offense prescribed by article 802c, ante. Regarding the latter, as the Court has often explained, the legislative purpose was to make elements in former article 42, P.C.1925 (act done by "mistake or accident") applicable to the offense of drunken driving, so that an accused may be charged with certain consequential felony offenses as circumstances demonstrate.

App.1964); Johnson v. State, 153 Tex.Cr.R. 59, 216 S.W.2d 573, at 577 (1948) (Act made specific application to offense of drunk driving the constituent elements of article 42; State may elect to prosecute under such theory rather than for mur der); McCarthy v. State, 153 Tex.Cr.R. 149, 218 S.W.2d 190, at 192 (1949) (negligent homicide statute inadequate to meet changing times and new conditions arising from highway traffic; showing accused engaged in drunken driving is necessary preliminary to, though part of, felony offense actually committed through accident or mistake, including unlawful taking of life); Simmons v. State, 145 Tex.Cr.R. 448, 169 S.W.2d 171 (1943) (one prosecuted under article 802c just as guilty of murder as if one had voluntarily killed victim); see Greiner v. State, 157 Tex.Cr.R. 479, 249 S.W.2d 601 (1952); see also cases decided under Article 42 prior to enactment of article 802c, e.g., Totten v. State, 134 Tex.Cr.R. 62, 113 S.W.2d 194, at 195-196 (1937) (article 42 authorized conviction for homicide committed by accident and mistake while driving intoxicated); Jones v. State, 127 Tex.Cr.R. 227, 75 S.W.2d 683, at 684, 686-688 (1934) (article 42 was general statute prescribing particular state of facts applicable to certain offenses actually committed, including certain lesser degrees of homicide).


article 42 was general statute prescribing particular state of facts applicable to certain offenses actually committed, including certain lesser degrees of homicide


Context: As we have determined, James-way was aware of its WARN notice obligations prior to it terminating any of the plaintiffs, and it was capable of providing WARN notice but failed to do so. Further, while Jamesway claims that, "once [it] filed its chapter 11 petition for purposes of liquidation on October 18, [1995] it was [its] understanding that there were no ongoing obligations to give notice under WARN[,]" (Declaration of Carl Muller P 10), it provides no basis for that understanding or whether this understanding of the liquidating fiduciary exception played any part in Jamesways decision to forego providing WARN notice to employees terminated postpetition. "Good faith requires an honest intent to ascertain the requirements of the statute and to act accordingly."

finding that lower court did not err in finding employer did not act in good faith when it was aware of Act's notice requirements, but "consistently resolved any questionable [notice] issue in its favor."

Aircap, 860 F.Supp. 307, 315-16 (D.S.C.1994); see Dillard, 15 F.3d at 1287-88 (finding that lower court did not err in finding employer did not act in good faith when it was aware of Act’s notice requirements, but “consistently resolved any questionable [notice] issue in its favor.”); Alden, 901 F.Supp. 426, 443 (D.Mass.1995) (finding that employer did not act in good faith when it relied on simplistic legal advise in the face of WARN’s complex statutory requirements); Aircap, 860 F.Supp. 307, (D.S.C.1994) (same); see also Allsteel, Inc., I, 955 F.Supp. 78, 81 (N.D.Ill.1996) (good faith intent to comply with Act requires requisite notice not wait until plant closing or mass layoff is likely but instead employer must give notice when the plant closing or mass layoff is foreseeable). We find that the circumstantial evidence clearly shows that Jamesway was aware of its obligations under the Act yet made no good faith effort to comply with it.


Context: 128 Norris further asserts that Article I, Section 14 of the Utah Constitution, Utah's counterpart to the Fourth Amendment, forbids the "all records" search warrant issued by the magistrate. We decline to address this argument because Norris provides us with no substantive reason for construing Article I, Section 14 of the Utah Constitution, which is nearly identical to the Fourth Amendment, as affording him greater protection than the Fourth Amendment.

See State v: Davis, 972 P.2d 388, 392 (Utah 1998) (refusing to discuss defendant's state constitutional argument because he failed to support it with any substantive analysis that warranted distinct analytical treatment); see also State v. Real Property at 688 E. 640 N., 2000 UT 17, ¶5, 994 P.2d 1254 (deciding only the appellant's federal constitutional claim be cause she failed to support her state constitutional argument with any substantive analysis).


Context: . M & G also alleged that defendants "spoofed" the sender identification information on the faxes it sent by including a number at the top of the fax that was not the number from which the transmission originated (see proposed Amended Complaint PP 9, 11(4)). However, while such conduct is proscribed by 47 U.S.C. SS 227(d)(1) and could conceivably lend support to M & G's claim that defendants were highly involved in the transmission of the faxes to M & G, the TCPA does not provide for a private cause of action for such conduct.

noting that the district dismissed allegations of statutory violations for omitting information required by TCPA, 47 U.S.C. SS 227(d

See Kopff v. Battaglia, 425 F.Supp.2d 76, 91 (D.D.C.2006) (concluding that "Congress plainly opted not to permit a private civil action for violations of the fax-sender identification requirements ... [and that t]he fax identification regulations ... were issued pursuant to subsection (d) of section 227, and thus there is no private right of action under the TCPA for violation”); Cf., Missouri ex rel. Nixon v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir.2003) (noting that the district dismissed allegations of statutory violations for omitting information required by TCPA, 47 U.S.C. § 227(d)).


Context: However, the Fifth Circuit has held that the remedies provisions of the FLSA and the Age Discrimination in Employment Act ("ADEA") must be interpreted consistently.

"Because the remedies available under the ADEA and the FMLA [Family and Medical Leave Act] both track the FLSA, cases interpreting remedies under the statutes should be consistent."

See Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (“Because the remedies available under the ADEA and the FMLA [Family and Medical Leave Act] both track the FLSA, cases interpreting remedies under the statutes should be consistent.”); see also Johnson v. Martin, 473 F.3d 220, 222 (5th Cir.2006) (applying ADEA precedent to the FLSA to determine whether wages earned after termination offset lost wage damages because “[t]he FLSA and ADEA have the same remedies provisions”).

applying ADEA precedent to the FLSA to determine whether wages earned after termination offset lost wage damages because "[t]he FLSA and ADEA have the same remedies provisions"


Context: The Supreme Court's recent clarification of the scope of .the Confrontation Clause also eliminates any need to analyze the admissibility of the tape-recording under the rule established in Bruton v. United States, under which "[a]n accused is deprived of his rights under the Confrontation Clause when the confession of a non-testifying codefendant that implicates the accused is introduced into evidence at their joint trial ... even if the jury is instructed to consider the confession only as evidence against the codefendant." Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements.

See United States v. Pugh, 273 Fed.Appx. 449, 455 (6th Cir.2008) (“[T]he statement at issue ... is nontestimonial in nature, and therefore, does not implicate the Confrontation Clause as analyzed under Bruton or otherwise.”); see also United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir.2009) (holding that Bruton does not apply to nontestimonial co-defendant statements); United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir.2008) (“[Bjecause the statement was not testimonial, its admission does not violate either Crawford [] or Bruton [ ].”). The inapplicability of Bruton and the Confrontation Clause to O’Reilly’s statements also forecloses Johnson’s argument that the tape-recording should have been redacted to eliminate the use of Johnson’s name.

"[T]he statement at issue ... is nontestimonial in nature, and therefore, does not implicate the Confrontation Clause as analyzed under Bruton or otherwise."


"[Bjecause the statement was not testimonial, its admission does not violate either Crawford [] or Bruton [ ]."


Cf. Gray v. Maryland, 523 U.S. 185, 191-92, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (discussing when statements otherwise inadmissible under Bruton may be cured by redaction).


Context: Here, only Pearson's mental state was disputed at trial. The jury had the opportunity to convict Pearson of either aggravated murder, which requires knowing or intentional killing, or simple murder, which in the case of killing a peace officer requires only recklessness. Because the jury chose to convict for aggravated murder, the court's refusal to give an instruction on manslaughter, an offense requiring recklessness, constituted at most harmless error.

reversing conviction for assault with intent to commit serious bodily injury where defendant's request for instruction on lesser included offense of simple assault was refused and jury was thus forced to choose between conviction and acquittal

But see State v. Oldroyd, 685 P.2d 551, 555-56 (Utah 1984) (reversing conviction for assault with intent to commit serious bodily injury where defendant’s request for instruction on lesser included offense of simple assault was refused and jury was thus forced to choose between conviction and acquittal).

See State v. Gotschall, 782 P.2d 459, 464 (Utah 1989) (holding that where jury had opportunity to convict defendant of manslaughter but convicted of greater offense of second degree murder, refusing to give instruction on negligent homicide was, if error, harmless).


Context: The plaintiffs' representative received either a copy of the motion presented at the board meeting or a draft copy of the Notice of Action the day after the decision was rendered and thus was able to discern the reasons for the board's denial. The motion contained the reasons for the denial of the site plan application, and the draft Notice of Action also contained reasons for the board's decision.

See K & P, Inc., 133 N.H. at 290, 575 A.2d at 808 (statute satisfied because plaintiff well aware of primary reasons for denial of plan). Lack of a final version of the reasons for the board’s decision, which was not statutorily required as of the time the decision was rendered, did not divest the plaintiffs of the ability to file their appeal timely.

Cf. DiPietro, 109 N.H. at 176, 246 A.2d at 696 (temporary unavailability of minutes did not relieve plaintiffs of necessity of stating ground for their motion for rehearing).


Context: Noerr-Pennington immunity exists in certain circumstances even if the protected petitioning involved making misrepresentations.

"When the concerted activities occur in a legislative or other non-adjudicatory governmental setting, they are not within the Sherman Act even though they include 'conduct that can be termed unethical,' such as deception and misrepresentation."

Metro Cable Co., 516 F.2d at 228 (“When the concerted activities occur in a legislative or other non-adjudicatory governmental setting, they are not within the Sherman Act even though they include ‘conduct that can be termed unethical,’ such as deception and misrepresentation.”) (citations omitted); see also City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 383-84, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (“In Noerr itself, where the private party ‘deliberately deceived the public and public officials’ in its successful lobbying campaign, we said that ‘deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned.’ ”) (quoting Noerr, 365 U.S. at 145, 81 S.Ct. 523).

"In Noerr itself, where the private party 'deliberately deceived the public and public officials' in its successful lobbying campaign, we said that 'deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned.' "


Context: The United States Constitution reserves to the federal government and to Congress in particular the power to regulate commerce among the states. Although the clause speaks explicitly only of the extensive powers given to Congress, it has been interpreted as having a second purpose of preventing individual states from erecting trade barriers and discriminating against out-of-state products and manufacturers or otherwise burdening the flow of interstate commerce.

"Time and time again this Court has held that, in all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate 'differential treatment of in-state and out-of-state economic interests, that benefits the former and burdens the latter.' "

See also Granholm v. Heald, — U.S. -, 125 S.Ct. 1885, 1895, 161 L.Ed.2d 796 (2005) (“Time and time again this Court has held that, in all but the narrowest circumstances, state laws violate the Commerce Clause if they mandate ‘differential treatment of in-state and out-of-state economic interests, that benefits the former and burdens the latter.’ ”) (quoting Oregon Waste Systems, Inc. v. Dept. of Environmental Quality of Oregon., 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)).

"The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby 'impedfes] free private trade in the national market place.' "

General Motors Corp. v. Tracy, 519 U.S. 278, 287, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (“The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby ‘impedfes] free private trade in the national market place.’ ”) (internal citations omitted).


Context: The Union argues first that the Plaza has been expressly designated by the city as a public park. Assuming this is so, the Union reasons, the Plaza would automatically warrant traditional public forum status.

"Streets, parks and sidewalks are the paradigms of a public, forum .:.."

See, e.g., N.J. Sports, 691 F.2d at 160 (“Streets, parks and sidewalks are the paradigms of a public, forum .:..”); cf. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 814, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (noting that public streets and parks enjoy “a traditional right of access”). We express no opinion on whether a dedicated public park must necessarily qualify as a traditional public forum, without regard to the context of its location and use.

noting that public streets and parks enjoy "a traditional right of access"


Context: The Due Process Clause of the Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law...." U.S. Const. amend. V. The Fifth Amendment Due Process Clause, however, applies "only to actions of the federal government -- not to those of state or local governments."

"[T]he Fifth Amendment applies only to the actions of the federal government, and not to the actions of a municipal government as in the present case."

Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir.2001); see also Morin v. Caire, 77 F.3d 116, 120 (5th Cir.1996)(“[T]he Fifth Amendment applies only to the actions of the federal government, and not to the actions of a municipal government as in the present case.”); cf. Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without ‘due process of law.’ ”).

"The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without 'due process of law.' "


Context: Although the defendant's first motion to dismiss under the IAD could have served to toll the 180-day period, at the time he filed the motion, the 180-day period was already tolled by the continuance of trial from March 10 to September 25, 2006. More significantly, the defendant's filing of his motion to dismiss did not "occasion" the period of delay from September 25 to November 13, 2006.

See Vining v. State, 637 So. 2d 921, 925 (Fla.) (holding that, although the defendant filed a number of motions, because the original trial date never changed as a result of those motions, no delay could be attributed to the motions), cert. denied, 513 U.S. 1022 (1994); Cf. State v. Smith, 686 S.W.2d 543, 548 (Mo. Ct. App. 1985) (holding that “[t]he state did not meet its burden [under the IAD of] establishing] that the defendant’s motions and request[s] [for discovery] delayed the trial” because: (1) “the record disclose[d] no reason why those motions could not have been disposed of within a short time after they were filed”; (2) “[t]here [wa]s no evidence the process of discovery did in fact delay the trial”; and (3) the record failed to suggest “how those pleadings could have resulted in delay”).

holding that "[t]he state did not meet its burden [under the IAD of] establishing] that the defendant's motions and request[s] [for discovery] delayed the trial" because: (1


Context: P34 The County's interest in the strip of land, whether an easement or a determinable fee, cannot exceed the interest granted to it by the documents of conveyance. The Railroad or its successors in interest thus retain either a possessory interest encumbered by a servitude or a possibility of reverter, respectively. A statute which acts to destroy that interest would constitute the taking of a property interest without just compensation.

Cf. Wash. Const. art. I, § 16; see Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831-32, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (concluding that a statutory scheme requiring property owners to make an easement across their property available to the public on a permanent basis constitutes a taking); see also Lawson v. State, 107 Wn.2d 444, 457, 730 P.2d 1308 (1986) (concluding that the plaintiffs held rever-sionary interests in land over which an easement was granted, requiring the payment of just compensation before the land could be acquired by the county).


Context: In light of Ambach, we think that, in September of 1986, it did not violate any clearly established federal constitutional right for an education official to terminate a teacher's employment in conformity with a statute barring aliens from holding teaching positions. While it is at least arguable that the Puerto Rico statute has a somewhat broader reach than its New York counterpart, approved in Ambach, the Court has not hesitated to uphold statutes that barred aliens totally from serving in certain government positions.

holding that a statute prohibiting the Federal Communications Commission from granting commercial radio operators' licenses to aliens did not violate the Fifth Amendment's Due Process Clause

See, e.g., Cabell, 454 U.S. at 441-42, 102 S.Ct. at 741 (deputy probation officers); Foley, 435 U.S. at 299-300, 98 S.Ct. at 1072-73 (state troopers); see also Cervantes v. Guerra, 651 F.2d 974, 981-82 (5th Cir.1981) (holding that a community action agency’s bylaws excluding aliens from service on the board of directors did not deny equal protection); cf. Campos v. FCC, 650 F.2d 890, 893-94 (7th Cir.1981) (holding that a statute prohibiting the Federal Communications Commission from granting commercial radio operators’ licenses to aliens did not violate the Fifth Amendment’s Due Process Clause).

holding that a community action agency's bylaws excluding aliens from service on the board of directors did not deny equal protection


Context: This is not a new rule. "For more than 35 years, this court has declined to entertain appeals when the appellant does not file a required appendix."

court has power to dismiss appeal or affirm judgment due to appellant's disregard of appendix rule by failing to delineate relevant portions of district court record from which appeal was taken

See also Morrison v. Texas Co., 289 F.2d 382, 384 (7th Cir.1961) (court has power to dismiss appeal or affirm judgment due to appellant’s disregard of appendix rule by failing to delineate relevant portions of district court record from which appeal was taken); Potomac Ins. Co. v. Stanley, 281 F.2d 775, 778 (7th Cir.1960) (failure to include in appendix all parts of record and transcript necessary to present any error justifies refusal to consider same).

failure to provide district court's explanation for refusal to award attorneys' fees to taxpayer prevented appellate review of that issue, citing numerous decisions, including Gomez and Mortell

Urso v. United States, 72 F.3d 59, 61 (7th Cir.1995) (failure to provide district court’s explanation for refusal to award attorneys’ fees to taxpayer prevented appellate review of that issue, citing numerous decisions, including Gomez and Mortell).


failure to include in appendix all parts of record and transcript necessary to present any error justifies refusal to consider same


Context: See N.T. Suppression, 12/31/98, at 29. The Commonwealth is not required to do appellant's investigative work for him.

"The Commonwealth does not violate the Brady rule when it fails to turn over evidence readily obtainable by, and known to, the defendant."

See Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 305 (1999) (“The Commonwealth does not violate the Brady rule when it fails to turn over evidence readily obtainable by, and known to, the defendant.”); see also Jones, 668 A.2d at 513 (“Rule 305 is not a tool to be used by the defense to compel the Commonwealth to obtain evidence to which the defense had equal access.”) (quoting Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765, 771 (1984)).

"Rule 305 is not a tool to be used by the defense to compel the Commonwealth to obtain evidence to which the defense had equal access."


Context: Defendant states that it "does not object to [the] ruling or rationale" but rather asserts an "additional rationale for dismissal" of the case. Def.'s' Obj. at 1. Defendant then purports to argue why the "complaint is subject to dismissal for failure to state a claim ....," id. at 3, but it invokes sovereign immunity, see id. at 3-4, which is a jurisdictional basis for dismissal.

"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."

United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”); see Hornbeck Offshore Transp., LLC v. U.S., 569 F.3d 506, 512 (D.C.Cir.2009) (“The extent of the waiver of sovereign immunity under the FTCA is coextensive with the district court’s subject-matter jurisdiction to hear the case.”) (citation omitted).

"The extent of the waiver of sovereign immunity under the FTCA is coextensive with the district court's subject-matter jurisdiction to hear the case."


Context: Applying Iowa law to the allegations of Count II of the counterclaim, we find that Asay was not entitled to an absolute privilege on the basis of the pleadings. In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published. Publication to the news media is not ordinarily sufficiently related to a judicial proceeding to constitute a privileged occasion.

Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977) (statements made at press conference); Bradley v. Hartford Accident & Indemnity Co., 30 Cal.App.3d 818, 106 Cal.Rptr. 718 (1973) (statements made to newspaper and television reporters regarding documents that were filed with the court for the sole purpose of having defamatory statements contained therein disseminated to the media); Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54 (1962) (attorney’s statement to editor of newspaper regarding his criminal client’s defense).

Cf. Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971) cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972) (federal judge delivering allegedly libelous statements to a newspaper editor not immune from liability in state libel action.)


attorney's statement to editor of newspaper regarding his criminal client's defense


Context: We find it unnecessary to resolve the recusal question presented here, however, because recusal error, if any occurred, was harmless. See Liljeberg v. Health Servs.

noting that "there is surely room for harmless error" in the recusal context because "[tjhere need not be a draconian remedy for every violation of SS 455(a)"

Acquisition Corp., 486 U.S. 847, 862, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (noting that “there is surely room for harmless error” in the recusal context because “[tjhere need not be a draconian remedy for every violation of § 455(a)”). Although we apply the harmless-error doctrine with great caution, we are convinced it applies in this case given the inescapable legal conclusion that the parties reached an enforceable oral settlement agreement.

holding that district judge's failure to re-cuse was harmless error where the underlying question was "patently clear" and so there was "no need to vacate the district court's decision and to remand to another district court judge to make the same clear determination"

See Morgan v. Money, No. 99-3251, 210 F.3d 372, 2000 WL 178421, at *2 (6th Cir.2000) (unpublished table decision) (holding that district judge’s failure to re-cuse was harmless error where the underlying question was “patently clear” and so there was “no need to vacate the district court’s decision and to remand to another district court judge to make the same clear determination”).


Context: The district court properly dismissed Brown's "denial of self-defense" claims, retaliation claim based on his complaint of excessive force, and due process claims because Brown failed to allege facts sufficient to state a plausible claim.

"[S]egregated confinement [does] not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest."

See Hebbe, 627 F.3d at 341-42 (although pro se pleadings are liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief); see also Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (“[S]egregated confinement [does] not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.”); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth elements of retaliation claim in prisoner context).