Context: Witnesses are absolutely immune for the testimony they provide in the course of a judicial proceeding or an adjudication before an administrative agency.

Malachowski, 787 F.2d at 712; see also Dory, 25 F.3d at 83 (holding that while witnesses enjoy absolute immunity for their actions in testifying they are not immune for extra-judicial actions such as an alleged conspiracy to present false testimony).

But see Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.1994) (applying absolute immunity not only to allegations of perjury but to claims alleging a conspiracy to present perjured testimony).


Context: We exercise de novo review over a district court's decision to grant full faith and credit to a foreign judgment.

See Barrows v. Barrows, 489 F.2d 661, 662-63 (3d Cir.1974) (conducting a de novo review in determining the enforceability of a foreign judgment); see also Diorinou v. Mezitis, 237 F.3d 133, 139 (2d Cir.2001) (collecting cases and noting that “domestic courts have not clearly articulated the standard of appellate review of the decision whether to enforce [a] foreign judgment, but appear to be applying a de novo standard”).

collecting cases and noting that "domestic courts have not clearly articulated the standard of appellate review of the decision whether to enforce [a] foreign judgment, but appear to be applying a de novo standard"


Context: We do not, at this time, reach the merits of the issues raised by Palmer, because we hold that our jurisdiction over this premature appeal has not yet been established. See Tuck v. United Servs.

recognizing federal court's duty to determine matter of its own jurisdiction sua sponte whenever it becomes apparent that jurisdiction may be lacking

Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988) (recognizing federal court’s duty to determine matter of its own jurisdiction sua sponte whenever it becomes apparent that jurisdiction may be lacking), cert. denied, - U.S. -, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989); see, e.g., In re Watson, 884 F.2d 879, 879-80 (5th Cir.1989) (same principle applied where bankruptcy appellate jurisdiction under 28 U.S.C. § 158(d) is questioned).

same principle applied where bankruptcy appellate jurisdiction under 28 U.S.C. SS 158(d


Context: To "cause" the presentation of false claims under the FCA, some degree of participation in the claims process is required. As defendants acknowledge, actually delegating the submission of claims to one who then files a false claim suffices.

construing earlier version of FCA to reach "any person who knowingly assisted in causing the government to pay claims which were grounded in fraud, without regard to whether that person had direct contractual relations with the government"

Mackby, 261 F.3d at 827 (doctor caused false claims to be submitted to Medicare where he instructed his clinic’s billing service to put false information on Medicare claims); Krizek, 111 F.3d at 943 (defendant liable where he delegated to his wife authority to submit claims on his .behalf and did not review them); see also United States ex rel. Marcus v. Hess, 317 U.S. 537, 544-45, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (construing earlier version of FCA to reach “any person who knowingly assisted in causing the government to pay claims which were grounded in fraud, without regard to whether that person had direct contractual relations with the government”).

doctor caused false claims to be submitted to Medicare where he instructed his clinic's billing service to put false information on Medicare claims


defendant liable where he delegated to his wife authority to submit claims on his .behalf and did not review them


Context: R., Vol. 2, at 11. Based on Officer Holloway's on-the-job experience and training -- including having made "roughly ten to [fifteen] actual arrests" in crimes involving PCP, id. -- he knew immediately upon making contact with the driver that PCP was probably inside the vehicle. At that point, considering the totality of the circumstances, it is beyond peradventure that Officer Holloway had reasonable, articulable suspicion that further criminal conduct was occurring.

noting that "detection of the odor of PCP emanating from [the defendant's] person gave the officers the authority to detain [him] temporarily to determine his identity"

See United States v. Hill, 199 F.3d 1143, 1148 (10th Cir.1999) (“Deputy Justice had[ ] ... reasonable suspicion that criminal activity was occurring based upon the PCP smell emanating from [the defendant’s] bag.”); see also United States v. Foster, 376 F.3d 577, 586 (6th Cir.2004) (noting that “detection of the odor of PCP emanating from [the defendant’s] person gave the officers the authority to detain [him] temporarily to determine his identity”).

"Deputy Justice had[ ] ... reasonable suspicion that criminal activity was occurring based upon the PCP smell emanating from [the defendant's] bag."


Context: Haaf also contends that Pennsylvania recognizes a cause of action for the negligent procurement of criminal proceedings.

upholding a verdict against defendant for negligently causing plaintiff's arrest and subsequent five day incarceration after plaintiff had followed defendant's erroneous instructions regarding local tax laws

See Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (noting that, in order for a plaintiff to prevail in such an action, he/she would have to allege a duty owed, a breach of the duty, and a causal relationship between the negligence and the bringing of criminal proceedings); see also Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194 (1984) (upholding a verdict against defendant for negligently causing plaintiff’s arrest and subsequent five day incarceration after plaintiff had followed defendant’s erroneous instructions regarding local tax laws).


Context: The district court properly granted summary judgment because Wilson failed to raise a genuine dispute of material fact as to whether defendants' actions were not reasonably related to a legitimate correctional goal.

See Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (setting forth relevant factors in determining whether a regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests); see also Beard v. Banks, 548 U.S. 521, 528-30, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (courts should accord prison officials deference when analyzing the constitutional validity of prison regulations).


Context: Accordingly, the Court will not address them. Even if these allegations were included in the complaint, the Court notes that the plaintiff does not allege any harm arising from alleged violations of ERISA reporting procedures and he has not shown any indication that he detrimentally relied or was prejudiced by any violations.

employer's failure to comply with ERISA's reporting procedures excused because no showing of bad faith or active concealment

See Govoni, 732 F.2d at 252 (collecting cases requiring reliance and prejudice to entitle employees to monetary relief for employer’s procedural violations of ERISA); see also Kreutzer v. A.O. Smith Corp., 951 F.2d 739, 743 (7th Cir.1991) (employer’s failure to comply with ERISA’s reporting procedures excused because no showing of bad faith or active concealment).

collecting cases requiring reliance and prejudice to entitle employees to monetary relief for employer's procedural violations of ERISA


Context: 150 Because, under these cireum-stances, the initial aggressor, combat by agreement, and provocation concepts were superfluous and, as such, neither imposed any extra burden on defendant nor interfered with his self-defense theory, there is no reasonable possibility that their inclusion in the instruction contributed to his conviction. Consequently the error was not plain.

See Baca, 852 P.2d at 1307 (inclusion of an unnecessary instruction did not require reversal because it "did not pose any barrier to the jury giving full consideration to the defendant's theory of defense"); see also People v. Manzanares, 942 P.2d 1235, 1241 (Colo.App.1996) (where there was no evidence that the defendant initiated the fight and the prosecutor did not mention the instruction in closing argument, unwarranted initial aggressor instruction was harmless).


Context: The word "which" in the beginning of clauses (ii) and (iii) could be construed to refer either to "substance" in the preface of the definition (favoring a disjunctive reading) or to "chemical structure" in clause (i) (favoring a conjunctive reading). Yet the vast majority of federal courts to confront this issue have adopted the conjunctive reading.

presenting in-depth analysis of the plain meaning and legislative history of SS 802(32

United States v. Hodge, 321 F.3d 429, 433 (3d Cir.2003) (presenting in-depth analysis of the plain meaning and legislative history of § 802(32)(A)); United States v. Klecker, 348 F.3d 69, 71 (4th Cir.2003) (adopting the conjunctive reading); United States v. Washam, 312 F.3d 926, 930 n. 2 (8th Cir.2002) (adopting the conjunctive reading); United States v. McKinney, 79 F.3d 105, 107-08 (8th Cir.1996), vacated on other grounds, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997) (presenting the test in the conjunctive without further elaboration); United States v. Brown, 279 F.Supp.2d at 1240 (S.D.Ala.2003) (adopting the conjunctive reading); United States v. Vickery, 199 F.Supp.2d at 1371 (N.D.Ga.2002) (same); United States v. Clifford, 197 F.Supp.2d at 519-20. (E.D.Va.2002) (same); United States v. Forbes, 806 F.Supp. 232, 235 (D.Colo.1992) (reviewing the Act’s legislative history and asserting that the conjunctive reading is required to prevent absurd results).

See also United States v. Roberts, 363 F.3d 118, 121 (2d Cir.2004) (briefly surveying the relevant precedents and accepting the conjunctive reading), The only arguable exceptions are United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir.2002), in which the Eleventh Circuit expressly declined to decide the issue, and United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990), in which the Fifth Circuit recited the test in the disjunctive without discussion or elaboration.


reviewing the Act's legislative history and asserting that the conjunctive reading is required to prevent absurd results


Context: Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit. Brown v. General Servs.

Title VII "contemplates the invocation of administrative remedies as a condition precedent to litigation" by a federal employee

Admin., 425 U.S. 820, 832, 96 S.Ct. at 1961, 1965, 48 L.Ed.2d 402 (1976) (“Initially, the complainant must seek relief in the agency that has allegedly discriminated against him.”); see also Cooper v. Bell, 628 F.2d 1208, 1211 (9th Cir.1980) (Title VII “contemplates the invocation of administrative remedies as a condition precedent to litigation” by a federal employee) (citing Brown).

"Initially, the complainant must seek relief in the agency that has allegedly discriminated against him."


Context: Based on the current record, it appears that any use of interstate communications was not a regular part of Plaintiffs duties. In addition, this Court must note that the Amended Complaint makes no mention of Plaintiffs alleged "interstate" communications, and Plaintiff has not attached an affidavit or other materials that would support her claim that she regularly spoke to vendors and processed credit card payments.

holding that an employee who used his company's credit card failed to adduce enough evidence to avoid the defendant's Rule 50 motion on his FLSA claims

See Xelo v. Mavros, 2005 WL 2385724, at *4 (E.D.N.Y. Sept. 28, 2005) (holding that a waiter at a local restaurant was not engaged in commerce even though he made bank deposits for defendants); cf. Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1267-68, 2006 WL 1228863, at *3 (11th Cir.2006) (holding that an employee who used his company’s credit card failed to adduce enough evidence to avoid the defendant’s Rule 50 motion on his FLSA claims); Kitchings v. Florida United Methodist Children’s Home, Inc., 393 F.Supp.2d 1282, 1293 (M.D.Fla.2005) (holding that the plaintiffs were not covered by the FLSA by virtue of the plaintiffs’ purchase of items at local stores using their employer’s credit card).


holding that the plaintiffs were not covered by the FLSA by virtue of the plaintiffs' purchase of items at local stores using their employer's credit card


Context: Other Factors None of the other Mendoza-Martinez factors supports a finding that the CT-SORA is punitive in fact. The burdens of registration and ongoing address verification are not the type of affirmative disability or restraint suggestive of a punitive sanction. As Doe pointed out, the Supreme Court has upheld civil sanctions with burdens much more onerous than those at issue here.

Doe, 120 F.3d at 1279 (citing, inter alia, Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding involuntary civil commitment sanction against an Ex Post Facto Clause challenge)); see also Seling v. Young, — U.S. -, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) (rejecting an “as applied” challenge to Washington’s civil commitment statute).

rejecting an "as applied" challenge to Washington's civil commitment statute


Context: In short, there is nothing in the record that shows that this internal investigation materially altered Officer Lewis' employment at all. Nor could Officer Lewis' counsel cite a single case that held that the mere participation in an internal investigation-standing alone-was an adverse employment action. Indeed, case law on this subject holds precisely the opposite.

See, e.g., Peltier v. United States, 388 F.3d 984, 988 (6th Cir.2004) (employee put on paid administrative leave pending the outcome of an internal investigation, who was restored to her position upon the termination of the investigation, suffered no adverse employment action); O’Dell v. Trans World Entm’t Corp., 153 F.Supp.2d 378, 396 (S.D.N.Y.2001) ("[A]n alleged deficiency in an employer’s internal complaint procedure or internal investigation of a sexual harassment complaint'— even if the deficiency is little more than an attempt to strengthen an employer’s defense-is not a retaliatory adverse employment action.”).

an internal investigation is no adverse employment action where employee "suffered no material disadvantage in a term or condition of employment as a result of the investigations" in First Amendment Retaliation context

Cf. Jones v. Fitzgerald, 285 F.3d 705, 715 (8th Cir.2002) (an internal investigation is no adverse employment action where employee “suffered no material disadvantage in a term or condition of employment as a result of the investigations” in First Amendment Retaliation context); Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir.1998) (same); Richards v. State of Connecticut Dep’t of Corr., 349 F.Supp.2d 278, 289-90 (D.Conn.2004) (same).


"[A]n alleged deficiency in an employer's internal complaint procedure or internal investigation of a sexual harassment complaint'-- even if the deficiency is little more than an attempt to strengthen an employer's defense-is not a retaliatory adverse employment action."


Context: Defendant cites several cases in support of its argument that the City is absolutely immune from civil liability in this action. These cases are inapposite, however, since they hold that the city officials are immune, but do not deal with the liability of the municipality itself.

members of municipal council acting in legislative capacity are absolutely immune from damages suits under SS 1983

See, e.g., Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir.1983) (members of municipal council acting in legislative capacity are absolutely immune from damages suits under § 1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir.1982) (city commissioners absolutely immune for legislative acts), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983); Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980) (council members, as individuals, have absolute immunity in passing ordinances); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980) (state and regional legislators have absolute federal common law immunity from liability for damages occasioned by their legislative acts).

But see Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983) (municipal officers are absolutely immune when acting in legislative capacity; municipality itself is liable when agents act pursuant to established policy or custom); Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982) (members of local legislative bodies have complete immunity from suits based on their legislative acts, but no such immunity protects the county); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981) (local legislators, including mayor, are entitled to absolute immunity from suit under § 1983 for conduct in the furtherance of their duties; city itself, however, is not immune), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982).


council members, as individuals, have absolute immunity in passing ordinances


state and regional legislators have absolute federal common law immunity from liability for damages occasioned by their legislative acts


Context: We cannot agree. Jurors are presumed to follow jury instructions but are not presumed to follow the law as recited by counsel during closing argument.

holding that it is presumed that the jury obeyed the trial court's instructions

See Chandler v. State, 581 N.E.2d 1233, 1237 (Ind.1991) (holding that it is presumed that the jury obeyed the trial court’s instructions); Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind.1983) (holding that “[a]ny misstatements of law during closing argument are presumed cured by final instruction”); Barnes v. State, 435 N.E.2d 235, 242 (Ind.1982) (same); see also Gray v. Lynn, 6 F.3d 265, 271 (5th Cir.1993) (rejecting an argument that a Spradlin-like instructional error was harmless because both parties argued during closing that the State was required to prove intent to kill, reasoning that “we cannot conclude that the jurors ignored the court’s erroneous instructions and chose, instead, to apply the law as stated correctly by counsel”). Consequently, this argument must fail.

rejecting an argument that a Spradlin-like instructional error was harmless because both parties argued during closing that the State was required to prove intent to kill, reasoning that "we cannot conclude that the jurors ignored the court's erroneous instructions and chose, instead, to apply the law as stated correctly by counsel"


holding that "[a]ny misstatements of law during closing argument are presumed cured by final instruction"


Context: The Supreme Court has found that some "statutes and regulations ... clearly establish fiduciary obligations of the Government."

finding specific fiduciary duties of timber management in light of a statutory and regulatory'scheme creating obligations on "virtually every aspect of forest management"

Mitchell, 463 U.S. at 226, 103 S.Ct. 2961; id. at 220, 103 S.Ct. 2961 (finding specific fiduciary duties of timber management in light of a statutory and regulatory'scheme creating obligations on “virtually every aspect of forest management”); see also White Mountain Apache Tribe, 537 U.S. at 475, 123 S.Ct. 1126 (finding specific fiduciary duties to maintain and preserve property that is “actually administered]” in trust). But where the relevant statute cannot be fairly read as imposing the specific fiduciary duty alleged to be breached, the Court has refused to impose the obligation on the government.

finding specific fiduciary duties to maintain and preserve property that is "actually administered]" in trust


See Navajo Nation I, 537 U.S. at 507-13, 123 S.Ct. 1079 (finding no specific fiduciary duties to ensure a specific rate of return on coal leases or to proscribe ex parte communications in an administrative appeal process); United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2329-30, 180 L.Ed.2d 187 (201-1) (finding no specific fiduciary duty to disclose, all information related to the administration of Indian trusts); see also Hopi Tribe, 782 F.3d at 668-71 (finding no specific fiduciary duty to ensure adequate water quality on the Hopi reservation).


finding no specific fiduciary duty to disclose, all information related to the administration of Indian trusts


finding no specific fiduciary duty to ensure adequate water quality on the Hopi reservation


Context: Because it is clear'that a petitioner in a New York State habeas proceeding is not entitled to damages, this case is controlled by the analysis in Davidson, which involved the preclusive effect under New York law of a prior Article 78 proceeding for a subsequent SS 1983 claim. In Davidson, we initially found that the plaintiff's ultimately successful claims in the Article 78 proceeding were indistinguishable from his SS 1983 action.

finding that prior state proceeding barred SS 1983 action under res judicata because prior state proceeding was not habeas corpus, but for declaratory relief

See id. at 282; see also Antonsen v. Ward, 943 F.2d 198, 203-04 (2d Cir.1991) (applying analysis as' in Davidson, finding that plaintiff could not have pursued damages for pain and suffering in prior .state court action); Fay v. South Colonie Central School District, 802 F.2d 21, 29-30 (2d Cir.1986) (following Davidson, holding that prior Article 78 proceeding does not bar subsequent federal § 1983 action); Koncelik v. East Hampton, 781 F.Supp. 152, 156 (E.D.N.Y.1991) (following Davidson, finding that res judicata does not apply where initial litigation was Article 78 proceeding); cf. Pasterczyk v. Fair, 819 F.2d 12, 15 (1st Cir.1987) (finding that prior state proceeding barred § 1983 action under res judicata because prior state proceeding was not habeas corpus, but for declaratory relief).


following Davidson, holding that prior Article 78 proceeding does not bar subsequent federal SS 1983 action


following Davidson, finding that res judicata does not apply where initial litigation was Article 78 proceeding


Context: No. 70.) Surely a qui tarn claim is no longer "valid" once it has been dismissed.

finding that relator's voluntary dismissal of his qui tarn suit precluded him from recovering, under "alternate remedy" theory, a portion of the proceeds the government ultimately obtained

See L-3 Commc’ns, 232 F.Supp.3d at 587-89, 2017 WL 464431, at *4-5 (finding that relator’s voluntary dismissal of his qui tarn suit precluded him from recovering, under “alternate remedy” theory, a portion of the proceeds the government ultimately obtained); see also N. Adult Daily Health Care Ctr., 174 F.Supp.3d at 700 (finding relators’ motion for a share of proceeds recovered “premature” because a motion to dismiss the qui tarn action was pending and, thus, relators “may ultimately lack a valid qui tarn claim”).

finding relators' motion for a share of proceeds recovered "premature" because a motion to dismiss the qui tarn action was pending and, thus, relators "may ultimately lack a valid qui tarn claim"


Context: Even assuming arguendo that the arrests did violate the Mansfield Amendment, moreover, suppression of defendants' subsequent statements is nonetheless unwarranted. The Mansfield Amendment is silent as to remedies for its breach, and no court has ever implied a remedy for a defendant alleging its violation.

"There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent."

See United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir.1988) (“Congress has not provided sanctions or penalties by way of relief for persons arrested in contravention of § 2291(c)(1).”), cited in Mejia, 448 F.3d at 444; United States v. Bridgewater, 175 F.Supp.2d 141, 146 (D.P.R.2001) (“The Mansfield Amendment regulates government action prescriptively; it does not provide repercussions for violations of the Amendment.”); see also United States v. Montalvo-Murillo, 495 U.S. 711, 717, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990) (“There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent.”).

"Congress has not provided sanctions or penalties by way of relief for persons arrested in contravention of SS 2291(c


Context: Other jurisdictions similarly have held that the depositing of waste into a landfill triggers an unalterable and injurious process. Although the initial exposure to the contaminants caused by the Borough's depositing of municipal waste was not "an immediate and discrete injury, the fact that it is part of an injurious process is enough for it to constitute 'injury' under the policies."

"The injury and attendant liability became predictable precisely because it was discovered that past occurrences were likely to have set in motion injurious processes for which Keene could be held liable."

Keene Corp., supra, 667 F.2d at 1046 (“The injury and attendant liability became predictable precisely because it was discovered that past occurrences were likely to have set in motion injurious processes for which Keene could be held liable.”).

holding that insured's initial discharge of contaminated rinsewater began "continuous indivisible process resulting in damage"

See also Chemical Leaman, supra, 89 F.3d at 995-96 (holding that insured’s initial discharge of contaminated rinsewater began “continuous indivisible process resulting in damage”); New Castle County, supra, 725 F.Supp. at 812 (holding that “injurious process” was initiated before leachate contamination); DeYoung & Hickman, supra, 17 N. Ky. L.Rev. at 295 (concluding that dumping of waste in landfill is directly analogous to inhalation of asbestos); Aetna Cas. & Surety Co., 28 F.Supp.2d at 454 (recognizing that coverage could be triggered by need to prevent imminent contamination of groundwater).


recognizing that coverage could be triggered by need to prevent imminent contamination of groundwater


Context: The additions to the "constitutional minimum" we referred to in Ferguson arise only when the procedures promised are denied in such a manner that the constitutional minimum is itself denied or an independent constitutional deprivation is effected. For example, if a university promised its faculty that it would provide professors two opportunities to challenge decisions to terminate their employment and a professor who relied on that promise forwent the first opportunity to raise his challenge, the university could not deprive him of the second opportunity without violating due process. This would be the case even though the due process clause itself guarantees the professor only one hearing.

See also Raley v. Ohio, 360 U.S. 423, 437-38, 79 S.Ct. 1257, 1265-67, 3 L.Ed.2d 1344 (1959) (due process precluded conviction of individuals who refused to answer questions asked by a state investigating commission which itself had erroneously provided assurances that the defendants had a privilege under state law to refuse to answer); Cox v. Louisiana, 379 U.S. 559, 569-71, 85 S.Ct. 476, 483-84, 13 L.Ed.2d 487 (1965) (state could not punish individuals for demonstrating “near” a courthouse where police officials had advised the demonstrators that they could meet where they did without violating the statutory pro scription against demonstrations “near” the courthouse).

Compare Villegas v. INS, 745 F.2d 950, 951 (5th Cir.1984) (where INS notice procedure afforded illegal aliens only the minimum requirements of due process, there would be a denial of due process if the INS failed to follow its own procedures).


state could not punish individuals for demonstrating "near" a courthouse where police officials had advised the demonstrators that they could meet where they did without violating the statutory pro scription against demonstrations "near" the courthouse


Context: In several cases decided after Harris and Ring, this court maintained its reliance on McMillan to uphold the constitutionality of the hard 40/50 sentencing scheme, noting that Harris reaffirmed McMillan even after Apprendi.

"We have consistently upheld the constitutionality of the hard 40/hard 50 sentencing scheme in light of both Ring and Apprendi, and we decline Astorga's invitation to reconsider our prior decisions."

See State v. Astorga, 295 Kan. 339, 354, 284 P.3d 279 (2012), (“We have consistently upheld the constitutionality of the hard 40/hard 50 sentencing scheme in light of both Ring and Apprendi, and we decline Astorga’s invitation to reconsider our prior decisions.”), cert. granted, judgment vacated by Astorga v. Kansas, 133 S. Ct. 2877 (2013); State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 (2011) (citing cases); State v Albright, 283 Kan. 418, 423-24, 153 P.3d 497 (2007) (same); see also Johnson, 284 Kan. at 23 (upholding constitutionality of hard 50 scheme after noting McMillan had not been overruled despite several post -Apprendi decisions invalidating judicial factfinding exposing defendants to increased maximum sentences).


Context: On appeal, Relators argue that the email attachment should have been admitted because it was not being offered for the truth of the matter asserted, cf. Fed.R.Evid. 801(c), and because the attachment was admissible under the hearsay exemption for party admissions, see Fed.R.Evid. 801(d)(2)(D). Upon our review of the record, we conclude that Relators did not sufficiently raise these arguments in the district court and, accordingly, have waived them.

See Jimenez v. Daimler-Chrysler Corp., 269 F.3d 439, 453 (4th Cir.2001) (evidence is properly excluded when alternative theory of admissibility is not timely offered); see also Wheatley v. Wicomico Cnty., 390 F.3d 328, 334 (4th Cir.2004) (issues raised for the first time on appeal are generally not considered absent exceptional circumstances).


Context: An alleged failure to warn swimmers of dangerous conditions in a popular swimming area does not implicate any social, economic, or political policy judgments with which the discretionary function exception properly is concerned. The government's alleged omission in this case "simply does not involve the exercise of such judgment."

Berkovitz, 108 S.Ct. at 1964; see Indian Towing, 350 U.S. at 69, 76 S.Ct. at 127; see also Ducey v. United States, 713 F.2d 504, 515 (9th Cir.1983) (“While the government’s decision to encourage recreation at Eldorado Canyon is the exercise of a discretionary function, the government’s duty to warn of or guard against hazards resulting from that decision may nonetheless be actionable”); Smith v. United States, 546 F.2d 872, 876-77 (10th Cir.1976) (government’s failure to warn about hazards of thermal heated pool not discretionary, even though decision to leave some park areas undeveloped and hazardous was discretionary); cf. Davis v. United States, 716 F.2d 418, 423 (7th Cir.1983) (government did not argue its failure to warn of dangerous diving conditions was discretionary).

"While the government's decision to encourage recreation at Eldorado Canyon is the exercise of a discretionary function, the government's duty to warn of or guard against hazards resulting from that decision may nonetheless be actionable"


government's failure to warn about hazards of thermal heated pool not discretionary, even though decision to leave some park areas undeveloped and hazardous was discretionary


Context: The Court cannot agree with defendants that the release of an inconspicuous addendum renders misleading financial and other public statements presumptively consistent with the strictures of Section 10(b) and Rule 10b-5, especially where it is unclear that the contents of the addendum directly address the allegedly misleading information in the statements. To immunize the type of conduct alleged here would be to give companies a license to issue groundless appraisals to investors so long as they include a modest footnote or appendix with a kernel of truth that might enable an analyst or accountant to spot the inconsistencies.

holding that curative press releases containing a "grain of truth" did not prevent deception of the market due to previous misrepresentations

See S.E.C. v. Rana Research, Inc., 8 F.3d 1358, 1362-63 (9th Cir.1993) (holding that curative press releases containing a “grain of truth” did not prevent deception of the market due to previous misrepresentations); cf. Virginia Bankshares, 501 U.S. at 1097, 111 S.Ct. at 2760-61 (stating that “[i]f it would take a financial analyst to spot the tension between the one and the other, whatever is misleading will remain materially so, and liability should follow”); Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1297 (2d Cir.1973) (stating that “it is not sufficient that overtones might have been picked up by the sensitive antennae of investment analysts”); cf. Smallwood v. Pearl Brewing Co., 489 F.2d 579, 603 (5th Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 113 (1974) (noting that “burying the facts, or giving them less than significant emphasis” in a proxy statement can deprive shareholders of “full and honest disclosure”).

stating that "[i]f it would take a financial analyst to spot the tension between the one and the other, whatever is misleading will remain materially so, and liability should follow"


stating that "it is not sufficient that overtones might have been picked up by the sensitive antennae of investment analysts"


noting that "burying the facts, or giving them less than significant emphasis" in a proxy statement can deprive shareholders of "full and honest disclosure"


Context: We recognize that the Dissent is not alone in this confusion. Indeed, in addressing identical language in 21 U.S.C. SS 841(b)(1)(C), some of our sibling circuits have made linguistic references that bespeak mens rea.

expressing "misgivings about interpreting 'results from' in the statute to impose strict liability"

See United States v. Hatfield, 591 F.3d 945, 950 (7th Cir.2010) (expressing "misgivings about interpreting ‘results from’ in the statute to impose strict liability”); see also United States v. Rebmann, 226 F.3d 521, 522, 525 (6th Cir.2000) ("On its face, the statute [i.e., 21 U.S.C. § 841] is, in effect, a strict liability statute with respect to the injury or death of another arising out of the distribution of drugs.”). However, as the Supreme Court has indicated in Burrage, the question before us is one of causation.

"On its face, the statute [i.e., 21 U.S.C. SS 841] is, in effect, a strict liability statute with respect to the injury or death of another arising out of the distribution of drugs."


Context: The Court will use that standard remedy here and find that the interest of justice warrants transfer rather than dismissal so that the Attkissons' claims can be adjudicated on the merits. And although it appears that the Attkissons' non-FTCA claims are properly venued in the District of Columbia, the Court will transfer the entirety of this consolidated case to the Eastern District of Virginia "to ensure that the claims are all heard together in the interest of preserving judicial and party resources."

noting that it is "common in this Circuit" to transfer the entirety of the case when some but not all claims are improperly venued here

See Yuanxing Liu, 2015 WL 9281580, at *3; Coltrane v. Lappin, 885 F.Supp.2d 228, 237 (D.D.C. 2012) (noting that it is “common in this Circuit” to transfer the entirety of the case when some but not all claims are improperly venued here); see also Ashbourne v. Geithner, Nos. 11-2818, 11-3199, 11-3456, 2012 WL 2874012, at *5 (D. Md. July 12, 2012) (transferring the entirety of a consolidated case when venue was improper as to only certain claims to “avoid piecemeal litigation”).

transferring the entirety of a consolidated case when venue was improper as to only certain claims to "avoid piecemeal litigation"


Context: Although Tristan seeks dismissal without specifying whether such dismissal should be with or without prejudice, the other Defendants expressly seek dismissal with prejudice. (Doc. No. 25, at 1; Doc. No. 44, at 10; Doc. No. 58, at 33.) But because this Court dismisses this action for lack of subject-matter jurisdiction, the dismissal must necessarily be without prejudice, although, of course, the current array of parties would preclude any federal district court from exercising diversity jurisdiction.

explaining that dismissal for lack of subject matter jurisdiction is not with prejudice, but the "jurisdictional disposition is conclusive on the jurisdictional question" such that "the plaintiff cannot re-file in federal court"

Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.2004) (explaining that dismissal for lack of subject matter jurisdiction is not with prejudice, but the “jurisdictional disposition is conclusive on the jurisdictional question” such that “the plaintiff cannot re-file in federal court”); see Miller v. Norris, 247 F.3d 736, 739 (8th Cir.2001) (“Although the dismissal was without prejudice, ‘an issue actually decided in a non-merits dismissal is given preclusive effect in a subsequent action between the same parties.’ ” (emphasis in original)).

"Although the dismissal was without prejudice, 'an issue actually decided in a non-merits dismissal is given preclusive effect in a subsequent action between the same parties.' " (emphasis in original


Context: The Sixth Amendment to the Constitution recognizes that defendants in criminal trials have a right to counsel in order to ensure that those trials are fundamentally fair.

asserting that "[a]ll other rights will turn to ashes in the hands of a person who is without effective, professional, and zealous representation when accused of a crime"

See U.S. v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (recognizing that the “accused’s right to be represented by counsel is a fundamental component of our criminal justice system”); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (noting that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him”); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (characterizing criminal defense attorneys as “necessities, not luxuries”); Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (finding that the right to counsel “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty”); see also Rompilla v. Horn, 359 F.3d 310, 310 (3d Cir.2004)(asserting that “[a]ll other rights will turn to ashes in the hands of a person who is without effective, professional, and zealous representation when accused of a crime”)(Nygaard, J.); United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.1975) (stressing the importance of counsel by writing that “[wjhile a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators”); Walter V. Schaefer, Federalism & State Criminal Procedure, 70 Harv. L.Rev. 1, 8 (1956) (noting that “[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have”).

recognizing that the "accused's right to be represented by counsel is a fundamental component of our criminal justice system"


stressing the importance of counsel by writing that "[wjhile a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators"


noting that a criminal defendant "requires the guiding hand of counsel at every step in the proceedings against him"


finding that the right to counsel "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty"


Context: Second, as we also have noted, plaintiffs have failed properly to allege scienter and/or culpability on the part of "Merrill Lynch." Even had we found a properly pled violation of the 1934 Act, we would not automatically impute this violation to "Merrill Lynch" as a controlling entity.

holding that a parent company would, at the very least, have to have been deliberately blind to its subsidiary's fraud in order to have the requisite scienter

See also Chill v. General Elec. Co., 101 F.3d 263, 270 (2d Cir.1996) (holding that a parent company would, at the very least, have to have been deliberately blind to its subsidiary’s fraud in order to have the requisite scienter).

"[T]he law in this circuit is clear that a subsidiary's fraud cannot be automatically imputed to its corporate parent."

See Baesa, 969 F.Supp. at 242 (“[T]he law in this circuit is clear that a subsidiary’s fraud cannot be automatically imputed to its corporate parent.”).


Context: First, this vaguely worded one-paragraph affidavit is not the affidavit of the witness with personal knowledge of the events described in the affidavit; rather, it is the hearsay testimony of Williams's trial counsel about a witness who is Williams's brother and was presumably available to execute an affidavit based upon personal knowledge, not hearsay. At best, this hearsay "evidence" referenced in trial counsel's affidavit might be useful for impeaching the defense's own witness (which carries with it a host of other issues), but it is clearly not substantive evidence warranting a new trial.

See also State v. Gatewood, 965 S.W.2d 852, 859 (Mo.App.W.D.1998) (holding an affidavit containing impeachment evidence is insufficient to support the granting of a new trial).

"[Af-fiant's] testimony is hearsay, useful perhaps for impeach[ment] ..., but not as substantive evidence."

State v. Westcott, 857 S.W.2d 393, 398 (Mo.App.W.D.1993) (“[Af-fiant’s] testimony is hearsay, useful perhaps for impeach[ment] ..., but not as substantive evidence.”).


Context: While that reasoning may have been valid in 1962, subsequent case law makes it increasingly questionable. See Harrington Glen, Inc. v. Mun. Bd. Adj.

Bor. Leonia, et al., 52 N.J. 22, 31-33, 243 A.2d 233 (1968) (zoning boards must review variance applications by owners of undersized, isolated lots based on acknowledged hardship); Gougeon v. Borough of Stone Harbor, 52 N.J. 212, 225-226, 245 A.2d 7 (1968) (denial of hardship variance may amount to unconstitutional restriction on the use of property); Chirichello v. Zoning Board of Adj. Monmouth Beach, 78 N.J. 544, 557, 397 A.2d 646 (1979) (denial of hardship variance could constitute unconstitutional deprivation of property); Commons v. Westwood Zoning Board of Adjustment, 81 N.J. 597, 607, 410 A.2d 1138 (1980) (when variance for a structure on an undersized lot is denied, property may be deemed zoned into inutility, calling for payment of compensation); Nash v. Board of Adjustment of Morris Tp., 96 N.J. 97, 107, 474 A.2d 241 (1984) (to avoid hardship, the fair market value of a property must be computed on the assumption that all necessary variances have been granted); Cf. Davis Enterprises v. Karpf, 105 N.J. 476, 484, 523 A.2d 137 (1987) (neighbor’s offer to purchase non-conforming lot does not vitiate hardship necessitating distinguishing previously developed from vacant land).

neighbor's offer to purchase non-conforming lot does not vitiate hardship necessitating distinguishing previously developed from vacant land


denial of hardship variance may amount to unconstitutional restriction on the use of property


denial of hardship variance could constitute unconstitutional deprivation of property


when variance for a structure on an undersized lot is denied, property may be deemed zoned into inutility, calling for payment of compensation


to avoid hardship, the fair market value of a property must be computed on the assumption that all necessary variances have been granted


Context: First, the statements on the fraud referral to CID represented the opinion of a single revenue agent, which is certainly far from "an institutional commitment."

explaining that view of a single revenue agent is not the same thing as "institutional posture"

See MacKenzie, 111 F.2d at 819 (explaining that view of a single revenue agent is not the same thing as “institutional posture”); see also LaSalle, 437 U.S. at 314, 98 S.Ct. 2357 (describing internal IRS review process that is both “multilayered and thorough”).

describing internal IRS review process that is both "multilayered and thorough"


Context: {19 As further proof of the affidavit's reliability, we note that the eleven individuals interviewed by Barton were intimately acquainted with Norris's alleged modus operan-di.

See Hansen, 782 P.2d at 130 (noting that reliability of information is enhanced if the informant personally observes the crime); see also Gates, 462 U.S. at 284, 108 S.Ct. 2317 (declaring that a "detailed description of the alleged wrongdoing, along with a statement that the event was observed firsthand," increases the reliability of an informant's tip).


Context: The court agrees with Petitioner that in the absence of any post-Clark modifications to the applicable regulations, the Cerda Memorandum provides no legal footing for Respondent; however, the procedure prescribed by the memorandum is consistent with the few cases decided after Clark that have addressed the continued detention of Mariel Cubans.

noting that Zadvydas and Clark "invite doubt as to the constitutionality of the current Cuban Review Plan" under SS 212.12

See Castro-Morales v. Ebbert, 331 Fed.Appx. 191, 192 (3rd Cir.2009) (petitioner initially detained under 8 C.F.R. § 212.12, and detention continued, post-Clark, under 8 C.F.R. § 241.14(f)); Sanchez v. Attorney General, U.S., 146 Fed.Appx. 547, 548 (3rd Cir.2005) (petitioner detained, pre-Clark, pursuant to 8 C.F.R. § 212.12, and released, post-Clark, after a “repatriation review” pursuant to 8 C.F.R. § 241.13 determined “no likelihood of removal and that petitioner is not a special category alien”); see also Armentero v. I.N.S., 412 F.3d 1088, 1089 (9th Cir.2005) (Ferguson, J., concurring) (noting that Zadvydas and Clark “invite doubt as to the constitutionality of the current Cuban Review Plan” under § 212.12). In fact, there are no reported cases in the five-year period since Clark was decided upholding the continued detention of Mariel Cubans under 8 C.F.R. § 212.12. While this is undoubtedly dúe, in part, to the fact that Clark mandated the release of most Mariel Cubans then-remaining in detention, it is also unquestionably true that Clark removed the distinctions among the three categories of aliens identified in 8 U.S.C. § 1231(a)(6), at least insofar as post-removal order detention is concerned. Those distinctions appear to have served the basis for the separate treatment of Mariel Cubans under § 212.12, and that basis is no longer viable.

petitioner initially detained under 8 C.F.R. SS 212.12, and detention continued, post-Clark, under 8 C.F.R. SS 241.14(f


petitioner detained, pre-Clark, pursuant to 8 C.F.R. SS 212.12, and released, post-Clark, after a "repatriation review" pursuant to 8 C.F.R. SS 241.13 determined "no likelihood of removal and that petitioner is not a special category alien"


Context: In sum, we reject Appellants' argument that the guidelines proscribe reliance on uncharged or dismissed conduct in determining whether a departure from the guideline range is warranted and align this circuit with those that have adopted the better reasoned rule to the contrary.

See also United States v. Ruffin, 997 F.2d 343, 345-46 (7th Cir.1993) (explaining that district courts properly may consider conduct from dismissed counts in departing upward for inadequacy of criminal history).

Compare United States v. Baird, 109 F.3d 856, 864-65 (3d Cir.1997) (holding that conduct contained in dismissed counts may be considered by a district court in determining whether to depart from the applicable guideline range); United States v. Ashburn, 38 F.3d 803, 807-08 (5th Cir.1994) (en banc) (same); United States v. Zamarripa, 905 F.2d 337, 341 (10th Cir.1990) (same), disapproved on other grounds, Williams v. United States, 503 U.S. 193, 198, 112 S.Ct. 1112, 1118, 117 L.Ed.2d 341 (1992); and United States v. Kim, 896 F.2d 678, 684 (2d Cir.1990) (same), with United States v. Harris, 70 F.3d 1001, 1002-04 (8th Cir.1995) (holding that conduct from dismissed counts cannot be relied upon as a basis for departure); and United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir.1990) (same).


holding that conduct from dismissed counts cannot be relied upon as a basis for departure


Context: An examination of the rationale behind the EPA's decision, however, indicates that it did not replace the EP toxicity test because that test was invalid; instead, the TCLP test was adopted because it was faster and produced results that classified more -- not fewer -- materials as hazardous waste. The EPA promulgated the TCLP test after Congress directed it to devise a more aggressive test, i.e., one that would detect more hazardous waste.

"Congress intended for EPA to develop a more aggressive leaching medium for the test ...."

See 42 U.S.C. § 6921(g) (directing EPA to make changes to the EP toxicity test “to insure that it accurately predicts the leaching potential of wastes which pose a threat to human health and the environment when mismanaged”); 55 Fed. Reg. 11798, 11800 (Mar. 29, 1990) (“Congress intended for EPA to develop a more aggressive leaching medium for the test ....”); see also Edison Electric Institute v. United States Environmental Protection Agency, 2 F.3d 438, 442 (D.C.Cir.1993) (“The legislative history indicates that Congress believed that EPA’s test was deficient because it was underinclu-sive in identifying hazardous wastes.”).

"The legislative history indicates that Congress believed that EPA's test was deficient because it was underinclu-sive in identifying hazardous wastes."


Context: .The federal government does not have a public duty doctrine, and has in fact disavowed such an approach to assessing its liability under the Federal Tort Claims Act (FTCA).

"The 'public duty' doctrine has no application to an FTCA action"

See United States v. Olson, 546 U.S. 43, 45-46, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (explaining that, although a cause of action for negligence may arise out of state law, FTCA precludes assessment of the federal government's liability according to state-level standards applicable to state or municipal government entities); see also Lumsden v. United States, 555 F.Supp.2d 580, 595 (E.D.N.C.2008) ("The ‘public duty’ doctrine has no application to an FTCA action”).


Context: The district court correctly found that Angel had previously presented the instant claims in another action, Angel v. Balaam, No. CV-N-04-0394-ECR-RAM, which it dismissed for failure to state a claim. Accordingly, the district court properly dismissed this action, because it is barred by res judicata.

See Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984) (action barred by res judicata can be dismissed as frivolous under 28 U.S.C. § 1915); see also Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.2005) (doctrine of res judicata serves to bar a claim where there is an identity of claims, a final judgment on the merits and an identity of parties); Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir.2002) (dismissal for failure to state a claim is a “judgment on the merits” to which res judicata applies).

action barred by res judicata can be dismissed as frivolous under 28 U.S.C. SS 1915


dismissal for failure to state a claim is a "judgment on the merits" to which res judicata applies


Context: Indeed, the gravamen of Barnes's testimony was not that he was incapable of "knowing" conduct, but rather that he had no memory of what occurred. Memory loss alone, however, is not inconsistent with ability to form criminal mens rea.

"It is one thing to say a person acted involuntarily, and quite another to say that the person has no memory of the event."

See, e.g., Vickers v. State, 653 N.E.2d 110 (Ind.Ct.App.1995) (in prosecution for resisting law enforcement, defendant claimed to remember very little of the pursuit due to intoxication); cf. McClain v. State, 678 N.E.2d 104, 107 n. 5 (Ind.1997) (“It is one thing to say a person acted involuntarily, and quite another to say that the person has no memory of the event.”) (citations omitted).


Context: Even taken in the light most favorable to Plaintiff, the summary judgment evidence does not establish a genuine issue of material fact that it was reasonably clear the additional repairs were covered under the Policy and that Defendant did not have a reasonable basis for delaying or denying payment.

for bad faith claim, insured must establish that insurer failed to settle the claim even though it "knew or should have known that it was reasonably clear that the claim was covered."

See Giles, 950 S.W.2d at 54-55 (for bad faith claim, insured must establish that insurer failed to settle the claim even though it “knew or should have known that it was reasonably clear that the claim was covered.”); see also Viles, 788 S.W.2d at 567 (to determine reasonableness of insurer’s decision, court looks to facts insurer had at time it denied claim).

to determine reasonableness of insurer's decision, court looks to facts insurer had at time it denied claim


Context: . AVRS does not qualify for the exemption from liability provided by 17 U.S.C. SS 109(a), which allows the lawful owner of a copy of a copyrighted work to sell the copy. AVRS did not purchase from LANS the copies of the tapes AVRS sold, and the television stations that broadcast the tapes were only licensed to use them and could not authorize AVRS to sell them.

for purposes of 17 U.S.C. SS 109, the defendant video news monitoring service "cannot be considered a newspaper clipping service because it-does not purchase the copy that it sells to its clients"

See 17 U.S.C. § 109(d) (privilege of selling copy does not "extend to any person who has acquired possession of the copy ... from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it”); Duncan, 744 F.2d at 1494 n. 6 (for purposes of 17 U.S.C. § 109, the defendant video news monitoring service "cannot be considered a newspaper clipping service because it-does not purchase the copy that it sells to its clients”); see also United States v. Wise, 550 F.2d 1180, 1190-91 (9th Cir.1977) (for purposes of 17 U.S.C. § 27, predecessor to 17 U.S.C. § 109, theaters granted license to exhibit films did not own the films and so could not lawfully have sold them).

for purposes of 17 U.S.C. SS 27, predecessor to 17 U.S.C. SS 109, theaters granted license to exhibit films did not own the films and so could not lawfully have sold them


Context: Further, as the district court explained, any alleged infirmities in Bobo's testimony about the materials supplied or the amounts due are immaterial in light of the undisputed state court final judgment against Clinecrete. Once Plaintiff Lafarge produced that state court judgment, the burden shifted to the Defendants to produce some evidence from which a jury could conclude that the judgment was incorrect, such as, for example, evidence that Lafarge's materials were not in fact delivered to the construction site or were not actually incorporated into the property.

concluding that owner's cross-examination of materialman's general manager established that the underlying judgment against the subcontractor corporation was incorrect because the account was opened in the name of two individuals rather than the subcontractor corporation

Compare Tri-State Culvert, 189 Ga.App. at 450, 228 S.E.2d at 405-06 (concluding that owner’s cross-examination of materialman’s general manager established that the underlying judgment against the subcontractor corporation was incorrect because the account was opened in the name of two individuals rather than the subcontractor corporation); see also Kelly v. Pierce Roofing Co., 220 Ga.App. 891, 393, 469 S.E.2d 469, 472 (1996) (concluding that, under Tri-State Culvert, ma-terialman’s default judgment operated as an admission of the truth of the allegation that the materialman completed the work and therefore the materialman was enti- tied to summary judgment because the property owner failed “to come forward and point to specific evidence” to defeat summary judgment).

concluding that, under Tri-State Culvert, ma-terialman's default judgment operated as an admission of the truth of the allegation that the materialman completed the work and therefore the materialman was enti- tied to summary judgment because the property owner failed "to come forward and point to specific evidence" to defeat summary judgment


Context: However, there still exists, in cases like this where a defendant is represented by counsel during trial, a rebuttable presumption that this counsel continued to adequately represent the defendant during this critical stage. Even when a defendant can rebut this presumption with evidence that he was deprived of adequate counsel during this critical stage, this deprivation of counsel is subject to a harmless error or prejudice analysis.

See Satterwhite v. Texas, 486 U.S. 249, 257, 108 5.Ct. 1792, 100 L.Ed.2d 284 (1988) (deprivation of right to counsel subject to harmless error analysis when this deprivation did not contaminate “the entire criminal proceeding”); Massingill, 8 S.W.3d at 737 (denial of counsel during 30-day period for filing motion for new trial is not structural error and is, therefore, subject to “harmless beyond reasonable doubt” standard); but cf. Prudhomme, 28 S.W.3d at 120 (suggesting that prejudice should be presumed when a defendant is without counsel during the entire 30-day period for filing motion for new trial, but deciding that, even if prejudice is not presumed, the deprivation of counsel during entire time for filing motion for new trial in that particular case was not harmless beyond reasonable doubt).

deprivation of right to counsel subject to harmless error analysis when this deprivation did not contaminate "the entire criminal proceeding"


denial of counsel during 30-day period for filing motion for new trial is not structural error and is, therefore, subject to "harmless beyond reasonable doubt" standard


Context: Identification of photos of a defendant as mug shots has resulted in reversal of convictions on appeal because they imply a criminal history. On the other hand, reference to identifying photographs as mug shots also has been deemed to be harmless error.

although reference to defendant's mug shots suggested defendant's prior involvement in criminal activity, it was not reversible error because references were "fleeting" and trial court gave a curative instruction

See State v. Porambo, 226 N.J.Super. 416, 425-26, 544 A.2d 870 (App.Div.1988) (although reference to defendant’s mug shots suggested defendant’s prior involvement in criminal activity, it was not reversible error because references were “fleeting” and trial court gave a curative instruction); State v. Miller, 159 N.J.Super. 552, 561-62, 388 A.2d 993 (App.Div.1978); cf. State v. O’Leary, 25 N.J. 104, 115-16,135 A.2d 321 (1957) (police testimony referring to photo of defendant as coming from “our gallery” did not require mistrial).

police testimony referring to photo of defendant as coming from "our gallery" did not require mistrial


Context: Some categories of speech are unprotected by the First Amendment, and the government may permissibly regulate speech that falls within these categories. One such category is "true threats."

Black, supra, 538 U.S. at 359, 123 S.Ct. at 1547-48; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (identifying several types of statements that have "never been thought to raise any Constitutional problem"); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992); Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969); Janousek, supra, 871 P.2d at 1193 (person "has no constitutionally protected right to make threats of violence to a public servant").


Context: Given the brevity of the closure and the nature of Martinez's testimony, the state court's determination that the prosecutor met his burden was not an unreasonable application of Waller. That Martinez had worked in the same area as a uniformed policeman prior to going undercover, putting him at risk regardless of the closure as noted by the trial court, does not undermine his safety concerns to the point of rendering the closure unreasonable.

where closure was brief and testimony was corroborative, "limited likelihood that undercover officer's safety would be prejudiced ... had sufficient weight in the balance"

See Brown v. Artuz, 283 F.3d 492, 501-02 (2d Cir.2002) (despite officer’s dual status as both a non-undercover arresting investigator and an undercover in certain areas, closure did not involve an unreasonable application of Waller); see also Brown, 142 F.3d at 538 (where closure was brief and testimony was corroborative, “limited likelihood that undercover officer’s safety would be prejudiced ... had sufficient weight in the balance”).

despite officer's dual status as both a non-undercover arresting investigator and an undercover in certain areas, closure did not involve an unreasonable application of Waller


Context: The primary purpose of the termination provision is to ensure that' "the other party" to the agreement receives the notice of termination in a timely fashion. Actual notice that is timely achieves that purpose.

finding termination notice valid although party failed to strictly comply with notice provision because that provision did not "itself, confer any benefit upon either party" and was "merely a collateral term intended to enhance the probability that mailed notice will arrive promptly in the proper hands"

Merrill, Merrill on Notice § 603, at 662-63 (1952)) (emphasis added)); see also Univ. Emergency Med. Found., 197 F.3d at 22 (finding termination notice valid although party failed to strictly comply with notice provision because that provision did not “itself, confer any benefit upon either party” and was “merely a collateral term intended to enhance the probability that mailed notice will arrive promptly in the proper hands”).

"[Sjtrict conformity with a contract's written notice provision is not required as long as the counterparty receives substantially the same information through timely actual notice and suffers no prejudice from the non-conformity." (emphasis added

See In re Redondo Constr. Corp., 678 F.3d 115, 123 (1st Cir.2012) (“[Sjtrict conformity with a contract’s written notice provision is not required as long as the counterparty receives substantially the same information through timely actual notice and suffers no prejudice from the non-conformity.” (emphasis added)); Univ. Emergency Med. Found. v. Rapier Investments, Ltd., No. CIV.A. 97549-T, 1998 WL 34100601, at *2 (D.R.I. Oct. 16, 1998) aff'd, 197 F.3d 18 (1st Cir.1999) (“Even where a contract requires a particular method of giving notice, notice given by a different method is effective if it is actually received unless the method by which notice is given is an essential element of the transaction.” (citing 1 Maurice H.


Context: Thus, despite three opportunities to assert procedural default -- before the Indiana Supreme Court, the district court, and this court -- -the State has never done so. The State's silence is significant because by failing to object to Canaan's claim on procedural default grounds, the State has waived (or, more properly, forfeited) this argument.

See Gregory-Bey v. Hanks, 332 F.3d 1036, 1043 (7th Cir.2003) (“As a procedural default is not jurisdictional, any argument that [a habeas petitioner] has defaulted his ... claim can be waived by the government.”); Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir.2000) (finding “waiver of waiver, now a well-established doctrine,” where the State failed to object to a habe-as petitioner’s failure to seek state supreme court review in his direct appeal and post-conviction proceedings); cf. Momient-El v. DeTella, 118 F.3d 535, 540 (7th Cir.1997) (refusing to find waiver of waiver by the State where it presented its procedural default argument for the first time on appeal to this court).

"As a procedural default is not jurisdictional, any argument that [a habeas petitioner] has defaulted his ... claim can be waived by the government."


finding "waiver of waiver, now a well-established doctrine," where the State failed to object to a habe-as petitioner's failure to seek state supreme court review in his direct appeal and post-conviction proceedings


Context: This Court's initial inquiry as to each count of the complaint, therefore, is whether Plaintiff has "alleged the deprivation of a right that either federal law or the Constitution protects." A violation of state law does not, in itself, give rise to a SS 1983 claim.

See, e.g., Robison v. Via, 821 F.2d 913, 922 (2d Cir.1987) (violation of state law neither gives plaintiff a Section 1983 claim nor deprives defendants of the defense of qualified immunity); see also Davis v. Scherer, 468 U.S. 183, 197 & n. 11, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (an official does not lose qualified immunity if her conduct violated clearly established state law where the conduct did not violate clearly established federally protected rights).


Context: Other states in which the right to bear arms is recognized as a "fundamental" right under their state constitutions analyze restrictions on that right under the Robertson "reasonable exercise of ' police power" test.

See Mosby v. Devine, 851 A.2d 1031, 1044-45 (R.I.2004) ("Even in jurisdictions that have declared the right to keep and bear arms to be a fundamental constitutional right, a strict scrutiny analysis has ' been rejected in favor of a reasonableness test - 'the proper question is whether the statute is a reasonable exercise of police power.'" (quoting Cole, 665 N.W.2d at 337)); see also State v. Comeau, 233 Neb. 907, 448 N.W.2d 595, 597 (1989) ("[Clourts have uniformly upheld the police power of the state through its legislature to impose reasonable regulatory control over the state constitutional right to bear arms in order to promote the safety and welfare of its citizens."); Bleiler v. Chief, Dover Police Dep't, 155 N,H. 693, 927 A,2d 1216, 1223 (2007) ("In light of the compelling state interest in protecting the public from the hazards involved with guns, we agree with numerous courts from other jurisdictions that the reasonableness test is the cor- ~ rect test for evaluating a substantive due process challenge to gun control legislation.") (citation omitted). '


Context: We conclude that Williams' Sixth Amendment rights were not violated because the district court enhanced Williams' Guidelines range based on facts found by it under a preponderance of the evidence standard. Because the district court appropriately treated the resultant Guidelines range as merely advisory, and since Williams' sentences on each count were within the statutory maximums authorized by the jury's verdict, we find that the district court fully complied with the Sixth Amendment.

recognizing that its "Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence"

See Booker, 543 U.S. at 232-44, 125 S.Ct. 738 (holding that judge found sentence enhancements mandatorily imposed under the Guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the Sixth Amendment’s guarantee of the right to trial by jury); see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465-66, 168 L.Ed.2d 203 (2007) (recognizing that its “Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence”); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir.2008) (recognizing only that “the Guidelines must be advisory, not that judges may find no facts”), cert. denied, - U.S. -, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009).

holding that judge found sentence enhancements mandatorily imposed under the Guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the Sixth Amendment's guarantee of the right to trial by jury


recognizing only that "the Guidelines must be advisory, not that judges may find no facts"


Context: Because the record is devoid of the underlying facts upon which Roche's California robbery conviction was based, it is impossible to determine how it would be classified in Washington. Therefore, the conviction must be removed from the calculation of Roche's criminal history unless, on remand, the State can establish that it would constitute a class A felony under Washington law.

the State must establish the defendant's criminal history by a preponderance of the evidence

See State v. Cabrera, 73 Wn. App. 165, 169, 868 P.2d 179 (1994) (holding that where the defendant challenges the use of documents purporting to establish the Washington classification of an out-of-state conviction, the State must present additional evidence of the proper classification so as to carry its burden of proving the defendant’s criminal history by a preponderance of the evidence); see also State v. Herzog, 48 Wn. App. 831, 834, 740 P.2d 380 (1987) (the State must establish the defendant’s criminal history by a preponderance of the evidence), aff’d, 112 Wn.2d 419, 771 P.2d 739 (1989); RCW 9.94A.110.

holding that where the defendant challenges the use of documents purporting to establish the Washington classification of an out-of-state conviction, the State must present additional evidence of the proper classification so as to carry its burden of proving the defendant's criminal history by a preponderance of the evidence


Context: When deciding an appeal from a denial of disability benefits, the Court first reviews the Commissioner's decision "to determine whether the Commissioner applied the correct legal standard."

"Failure to apply the correct legal standards is grounds for reversal."

Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); see Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984) (“Failure to apply the correct legal standards is grounds for reversal.”); see also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”).

"Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."


Context: The district court also correctly determined that case law clearly established this constitutional claim.

"[W]e conclude the right of a nonviolent [and non-resistant] arrestee to be free from unnecessary pain knowingly inflicted during an arrest [for disorderly conduct] was clearly established as of November 9, 2000."

See St. John v. Hickey, 411 F.3d 762, 772, 774 (6th Cir. 2005) (“[W]e conclude the right of a nonviolent [and non-resistant] arrestee to be free from unnecessary pain knowingly inflicted during an arrest [for disorderly conduct] was clearly established as of November 9, 2000.”); see also Minchella v. Bauman, 72 Fed.Appx. 405, 408-09 (6th Cir.2003) (denying summary judgment to officers on an excessive-force claim — relating to an arrest in 1999 — because the plaintiffs “crime was not severe,” the plaintiff “posed no threat to the Officers or the community” and the evidence was “inconclusive as to whether [the plaintiff] was ‘slammed’ into the car, and ... as to whether [the plaintiff] physically resisted the arrest”); Davis v. Yovella, No. 95-5415, 1997 WL 159363, at *5-6 (6th Cir. Apr. 2, 1997) (denying qualified immunity to an officer on an excessive-force claim because “the charges against [the plaintiff] ... were not serious,” “there [was] no evidence that [the plaintiff] posed a risk to the officers or anyone present,” “the record show[ed] that he did not resist arrest” and the plaintiff “sought medical attention for pain in his neck and back”).

denying summary judgment to officers on an excessive-force claim -- relating to an arrest in 1999 -- because the plaintiffs "crime was not severe," the plaintiff "posed no threat to the Officers or the community" and the evidence was "inconclusive as to whether [the plaintiff] was 'slammed' into the car, and ... as to whether [the plaintiff] physically resisted the arrest"


Context: The length of delay must be evaluated in the context of litigation activities engaged in during that time.

Cf. Creative Solutions Group, 252 F.3d at 33 (waiver not found when there was no discovery or other activity aside from plaintiffs filing a request for production); Sevinor v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 807 F.2d 16, 19 (1st Cir.1986) (no prejudice despite plaintiffs replying to over 300 interrogatories and twelve comprehensive requests for production of documents); J & S Constr. Co., Inc. v. Travelers Indem. Co., 520 F.2d 809, 809-10 (1st Cir.1975) (thirteen month delay not enough to constitute waiver); but cf. Rankin v. Allstate Ins. Co., 336 F.3d 8, 13 (1st Cir.2003) (finding waiver due to delay in demanding arbitration until after discovery complete and trial date approaching); Restoration Pres. Masonry, 325 F.3d at 61 (waiver found where party opposing arbitration was involved in at least five depositions and thirteen pre-trial conferences); Navieros Inter-Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 316 (1st Cir.1997) (finding waiver where delay lasted from filing of complaint until the eve of trial); Jones Motor, 671 F.2d at 42 (waiver found when party seeking arbitration engaged in deposition-taking, a pre-trial conference, cross-motions for summary judgment, and oral argument).


waiver found where party opposing arbitration was involved in at least five depositions and thirteen pre-trial conferences


finding waiver where delay lasted from filing of complaint until the eve of trial


waiver found when party seeking arbitration engaged in deposition-taking, a pre-trial conference, cross-motions for summary judgment, and oral argument


no prejudice despite plaintiffs replying to over 300 interrogatories and twelve comprehensive requests for production of documents


Context: "[W]hen a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Appellants contend that the following interests that the statute advances are important: (1) regulating the election process, (2) preventing voter confusion, (3) preventing the destabilizing and disorganizing effects of interparty raiding and intraparty feuding, (4) maintaining the order and integrity of primary election processes, (5) protecting party purity, and (6) protecting the right of political parties not to associate with another party's members.

See, e.g., Garza, 924 F.Supp. at 73 (identifying a number of important interests served by section 162.015 in affirming the constitutionality of the “sore loser” provisions of the statute); see also Storer v. Brown, 415 U.S. 724, 726, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (outlining the same interests cited in Garza and noting that the State has a compelling interest in protecting the stability of the political system).

identifying a number of important interests served by section 162.015 in affirming the constitutionality of the "sore loser" provisions of the statute


Context: that at least one of our sister circuits has recently suggested that different constitutional standards may apply to stops based on probable cause.

"We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop."

See United States v. Childs, 277 F.3d 947, 952-54 (7th Cir.2002) (en banc) (noting that the Fourth Amendment allows for a broader range of law enforcement actions where a traffic stop is supported by probable cause); see also Berkemer v. McCarty, 468 U.S. 420, 439 n. 29, 104 S.Ct. 3138, 3150 n. 29, 82 L.Ed.2d 317 (1984) (“We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.”).


Context: The probation officer was not obliged to warn Acantara in advance that his statements at the revocation hearing could be used against him. See Fed. R.Crim.P. 32.1(b)(2)(A) (requiring only that written notice of "the alleged violation" be given). Nor has Acantara explained why his seemingly voluntary statements at the hearing were involuntary or compelled, so as to implicate the Fifth Amendment.

rejecting a claim that Miranda warnings are generally required before a person is subjected to "in-court questioning"

See United States v. Jones, 299 F.3d 103, 110-11 (2d Cir.2002) (concluding that a person charged with a supervised release violation who voluntarily chooses to testify at a revocation hearing cannot later claim that his testimony was compelled); see also United States v. Meléndez, 228 F.3d 19, 22 (1st Cir.2000) (rejecting a claim that Miranda warnings are generally required before a person is subjected to “in-court questioning”).


Context: There is no dispute that a medical examination -- including urinalysis -- constitutes a "search" implicating the Fourth Amendment.

"In today's world, a medical examination that does not include either a blood test or urinalysis would be unusual. Nonetheless, any such medical examination would still implicate the Fourth Amendment."

Yin v. State of Cal., 95 F.3d 864, 870 (9th Cir.1996) (“In today’s world, a medical examination that does not include either a blood test or urinalysis would be unusual. Nonetheless, any such medical examination would still implicate the Fourth Amendment.”); see also Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (explaining that the collection and testing of urine is a search, which “intrudes upon expectations of privacy that society has long recognized as reasonable”). Accordingly, the Court must determine whether the County’s urinalysis mandate “fit[s] within the closely guarded category of constitutionally permissible suspicionless searches.”

explaining that the collection and testing of urine is a search, which "intrudes upon expectations of privacy that society has long recognized as reasonable"


Context: These questions, answers, and guidelines are entitled to consideration in evaluating an overbreadth challenge.

holding that the city's sound-amplification guideline and the city's interpretation of the guideline provided sufficient limiting instructions to render the ordinance's statements ensuring the "best sound" and "appropriate sound quality" immune from an over-breadth challenge

See Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 (“In evaluating [the] facial challenge, we must consider the [association’s] authoritative instructions of the [rule], including its own implementation and interpretation of it.”); see also Ward, 491 U.S. at 794-96, 109 S.Ct. 2746 (holding that the city’s sound-amplification guideline and the city’s interpretation of the guideline provided sufficient limiting instructions to render the ordinance’s statements ensuring the “best sound” and “appropriate sound quality” immune from an over-breadth challenge).

"In evaluating [the] facial challenge, we must consider the [association's] authoritative instructions of the [rule], including its own implementation and interpretation of it."


Context: Because Gutierrez did not demonstrate prejudice before the BIA, the BIA did not abuse its discretion in denying his motion to reopen based on the record before it.

approving reliance on an alien's admission that he had been convicted of a controlled substance offense in denying application for adjustment of status

See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999) (no prejudice where petitioner failed to describe the evidence that his counsel incompetently failed to introduce); see also Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir.2010) (approving reliance on an alien’s admission that he had been convicted of a controlled substance offense in denying application for adjustment of status).


Context: The Court explicitly distinguished between the limited information discovered by use of the beeper -- movements during a discrete journey -- and more comprehensive or sustained monitoring of the sort at issue in this case.

"nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the [container] had ended its automotive journey at rest on respondent's premises in rural Wisconsin"

Id. at 283, 103 S.Ct. 1081 (noting “limited use which the government made of the signals from this particular beeper”); see also id. at 284-85, 103 S.Ct. 1081 (“nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the [container] had ended its automotive journey at rest on respondent’s premises in rural Wisconsin”).

noting "limited use which the government made of the signals from this particular beeper"


Context: Holding a university president hable for creating a hostile learning environment solely because of an unpopular speech would also have serious First Amendment implications.

concluding that "to impose any straitjaeket upon the intellectual leaders in any colleges and universities would imperil the future of our nation"

See Brown v. Trustees of Boston Univ., 891 F.2d 337, 351 (1st Cir.1989) (holding that it was error to permit the speeches of a university president to be admitted as evidence of discriminatory animus because of the “chilling effect that admission of such remarks could have on academic freedom”), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990); cf. Sweezy v. State of N.H., 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957) (concluding that “to impose any straitjaeket upon the intellectual leaders in any colleges and universities would imperil the future of our nation”).

holding that it was error to permit the speeches of a university president to be admitted as evidence of discriminatory animus because of the "chilling effect that admission of such remarks could have on academic freedom"


Context: 112. Notice of a proposed settlement under Rule 23(e) must inform class members (1) of the nature of the pending litigation, (2) of the settlement's general terms, (3) that complete information is available from the court files, and (4) that any class member may appear and be heard at the Fairness Hearing. The nature and extent of Rule 23(e) class notice of a proposed settlement lies squarely within the discretion of the trial judge.

observing that Rule 23(e) commits the form of the notice to the court's discretion

See Zimmer Paper Prods., Inc., 758 F.2d at 90 (observing that Rule 23(e) commits the form of the notice to the court’s discretion); Walsh v. Great Atl. & Pac. Tea Co., 96 F.R.D. 632, 642-43 (D.N.J.) (same) [“Walsh v. Great Atl. & Pac.”], aff'd, 726 F.2d 956, 962 (3d Cir.1983) (same); see also Grunin, 513 F.2d at 120-21 (“[T]he mechanics of the notice process are left to the discretion of the court subject only to the broad reasonableness’ standards imposed by due process.”).

"[T]he mechanics of the notice process are left to the discretion of the court subject only to the broad reasonableness' standards imposed by due process."


Context: While Plaintiff, along with other candidates, may have been invited to initially interview, Plaintiffs subjective belief, articulated in a conclusory fashion, that he was qualified for the position does not establish that he was as qualified as the applicant who was ultimately selected or even as qualified as the top seven applicants.

"[A]n employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact."

See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996) (“[A]n employee’s subjective personal judgments of her competence alone do not raise a genuine issue of material fact.”); Coleman, 232 F.3d at 1285 (same); see also Nichols v. S. Ill. Unwersity-Edwardsville, 510 F.3d 772, 784 (7th Cir.2007) (concluding that the “subjective beliefs” of African-American plaintiffs “that they were as qualified or even more qualified” for a position upgrade than the non-African-Americans the employer selected did not create a genuine dispute as to this issue, and thus the plaintiffs failed to create a prima facie case of race discrimination).

concluding that the "subjective beliefs" of African-American plaintiffs "that they were as qualified or even more qualified" for a position upgrade than the non-African-Americans the employer selected did not create a genuine dispute as to this issue, and thus the plaintiffs failed to create a prima facie case of race discrimination


Context: Finally, some courts have found that the running of a statutory right of redemption is not the kind of "act" that triggers the application of section 362(a). Courts have also recognized that acts that are "ministerial," i.e., that are merely clerical in nature and do not in themselves affect parties' redemption rights, are not "affirmative" acts that trigger the automatic stay.

describing ministerial acts as those which "entail no deliberation, discretion, or judicial involvement"

In re Connors, 497 F.3d 314, 320-21 (3d Cir. 2007) (quoting In re Ziyambe, 200 B.R. 790, 796 (Bankr.D.N.J.1996)) (delivery of deed after foreclosure sale is “ ‘ministerial act, routinely performed, which does not affect the redemption rights of the parties’ ”); In re Carver, 828 F.2d 463, 463-64 (8th Cir.1987) (“routine certification” of non-redemption by clerk of court, where debtor failed to comply with contract for deed within redemption period, was not affirmative act required to complete running of redemption period but was instead ministerial act not stayed by 362(a)); see also Roberts v. C.I.R., 175 F.3d 889, 897 (11th Cir.1999) (describing ministerial acts as those which “entail no deliberation, discretion, or judicial involvement”); Black's Law DICTIONARY 26 (8th ed.2004) (defining “ministerial act” as “[a]n act performed without the independent exercise of discretion or judgment”).

"routine certification" of non-redemption by clerk of court, where debtor failed to comply with contract for deed within redemption period, was not affirmative act required to complete running of redemption period but was instead ministerial act not stayed by 362(a


Context: This is not the only inquiry, though. The Court may also consider the financial burden placed on claimants as a result of the seizure.

See also Jones, 38 F.3d at 323 (pointing out that the nature of the prejudice suffered by a claimant differs in every case).

holding that "prejudice ... can be presumed where [claimants are] deprived of the use of [their] property by the government without justifiable cause for a period of twenty-three months"

See United States v. Sharp, 655 F.Supp. 1348, 1352 (W.D.Mo.1987) (holding that “prejudice ... can be presumed where [claimants are] deprived of the use of [their] property by the government without justifiable cause for a period of twenty-three months”).


Context: The defendant places much emphasis on the fact that she never left the store with the merchandise. However, it is well-recognized in Massachusetts and elsewhere that taking goods beyond a store's premises is not a necessary precondition to a larceny conviction; the element of asportation may be satisfied if the defendant's behavior establishes that he or she removed the goods from the store's control to his or her own.

See, e.g., McRae v. United States, 222 A.2d 848, 849 (D.C. Ct. App. 1966) (defendant briefly concealed pants, then attempted to place them with other merchandise when he noticed that he was being observed); People v. Baker, 365 Ill. 328, 330-332 (1936) (defendant went to rest room and hid merchandise under her coat; when questioned as she emerged, she returned to rest room and abandoned the items).

"It is not indeed necessary that the pocket-book . . . should have been removed from the pocket, if once within the grasp of the thief, to constitute larceny"

Cf. Commonwealth v. Luckis, 99 Mass. 431, 432-433 (1868) (“It is not indeed necessary that the pocket-book . . . should have been removed from the pocket, if once within the grasp of the thief, to constitute larceny”).


Context: We note that this case involves facially neutral conditions having only an incidental impact on defendant's religious freedom. Conditions which are themselves religious directly requiring or prohibiting religious conduct may require analysis under traditional freedom of religion standards.

probation condition requiring that juveniles attend Sunday school and church for one year invalid as a violation of the juveniles' freedom of religion

See State v. Evans, 14 Kan. App. 2d 591, 593, 796 P.2d 178, 180 (1990) (probation condition requiring that defendant attend a specific church and perform one thousand hours of maintenance work at that church invalid where not justified by a compelling state interest); see also Jones v. Commonwealth, 185 Va. 335, 343-45, 38 S.E.2d 444, 448-49 (1946) (probation condition requiring that juveniles attend Sunday school and church for one year invalid as a violation of the juveniles’ freedom of religion).


Context: In other words, while Mr. Roling expressed unhappiness with the amount of the fee assessment, he never alerted E*Trade to the fact that he was disputing its legal right to charge the fees in the first place. In short, he did not assert the fees were in breach of the contract.

stating that, "[hjaving failed to notify the Bank of any breach of the Loan Agreements and having continued to accept the benefits of the agreement in the form of continuing advances from the Bank, RPC is now precluded from asserting any such breaches"

See National Westminster Bank, 130 B.R. at 675 (stating that, “[hjaving failed to notify the Bank of any breach of the Loan Agreements and having continued to accept the benefits of the agreement in the form of continuing advances from the Bank, RPC is now precluded from asserting any such breaches”); cf. Whitney Inv. Co. v. Westview Dev. Co., 273 Cal.App.2d 594, 603, 78 Cal.Rptr. 302 (1969) (noting that, “[wjhile a notice of termination or cancellation of a contract for breach need not be formal and explicit, it should clearly indicate to the defaulting party that the injured party considers the contract terminated”).

noting that, "[wjhile a notice of termination or cancellation of a contract for breach need not be formal and explicit, it should clearly indicate to the defaulting party that the injured party considers the contract terminated"


Context: First, it is within the power of the state to enact the Sexual Solicitation Statute. "The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and [the U.S. Supreme Court has] upheld such a basis for legislation."

"A State has a legitimate interest in forbidding sexual acts committed in public.... "

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (holding that a “public indecency statute furthers a substantial government interest in protecting order and morality”); see, e.g., Arcara, 478 U.S. at 711, 106 S.Ct. 3172 (“A State has a legitimate interest in forbidding sexual acts committed in public.... ”).

holding that a "public indecency statute furthers a substantial government interest in protecting order and morality"


Context: This finding is in accord with previous decisions of Iowa courts upholding judgments in which district courts have accepted guilty pleas to offenses not charged in the original informations.

See e.g., State v. Meyers, 256 Iowa 801, 805, 129 N.W.2d 88, 90-91 (1964) (finding no jurisdictional error where the court accepted a guilty plea to assault with intent to commit rape when the greater crime of incest was charged); State v. Englebrecht, 316 N.W.2d 415, 417 (Iowa App.1981) (finding that defendant had waived any irregularity in the failure to file an amended information and thus trial court properly entered judgment of conviction and sentence on a charge greater than that alleged in the information); cf. State v. Victor, 310 N.W.2d 201, 202 (Iowa 1981) (plea of guilty to willful injury where original information alleged attempted murder).


finding that defendant had waived any irregularity in the failure to file an amended information and thus trial court properly entered judgment of conviction and sentence on a charge greater than that alleged in the information


Context: In some portions of the order, "parenting time" appears to refer to visitation rights while the child is in the physical custody of the other parent, but in other portions of the order, "parenting time" appears to refer to physical custody itself. The custody order must unambiguously set out the custody arrangement and visitation rights of each parent so that it is enforceable in future proceedings, both in the Superior Court and the courts of other uniform act jurisdictions.

a custody order may only be enforced through contempt proceedings when "the order ... is clear and unambiguous" (quoting In re Burke, 50 V.I. 346, 352 (V.I. 2008

In re Custody of N.A.W., 61 V.I. 145, 149 (V.I. 2014) (a custody order may only be enforced through contempt proceedings when “the order ... is clear and unambiguous” (quoting In re Burke, 50 V.I. 346, 352 (V.I. 2008))); see also Niskar v. Niskar, 136 S.W.3d 749, 755 (Tex. App. 2004) (“the trial court abused its discretion by failing to order the appellant’s possession of and access to the child in clear and unambiguous terms” because “the appellant could not successfully enforce this judgment by contempt”); Yates v. Yates, 2008 PA Super 296, 963 A.2d 535, 545 (2008) (remanding a custody order where “the trial court’s incorporation of . . . unidentified terms . . . createfd] unnecessary uncertainty”).

"the trial court abused its discretion by failing to order the appellant's possession of and access to the child in clear and unambiguous terms" because "the appellant could not successfully enforce this judgment by contempt"


remanding a custody order where "the trial court's incorporation of . . . unidentified terms . . . createfd] unnecessary uncertainty"


Context: More to the point, we think that district attorneys and other prosecuting authorities cannot be compelled to participate in a hearing that would test the merits of their case in a civil deprivation proceeding brought by a separate government entity and that is at most tangential to the criminal case. Decisions of other courts, including New York's highest court, strongly suggest that important state policy interests weigh against requiring such participation.

See, e.g., People v. Chipp, 75 N.Y.2d 327, 337-38, 553 N.Y.S.2d 72, 552 N.E.2d 608 (1990) (defendant cannot invoke compulsory process at a pretrial hearing testing the suggestiveness of a lineup, in part because of the risk that the defendant could use such hearings to leverage favorable plea bargains or compromise ongoing investigations); Brown v. Dep’t of Justice, 715 F.2d 662, 667-68 (D.C.Cir.1983) (administrative hearings that precede trial on the criminal charges would “constitute improper interference with the criminal proceedings if they churn over the same evidentiary material”) (quoting Peden v. United States, 512 F.2d 1099, 1103 (Ct.Cl.1975)); see also Brown v. City of New York, 60 N.Y.2d 897, 898, 470 N.Y.S.2d 573, 458 N.E.2d 1250 (1983) (the City of New York and the district attorneys’ offices within it are separate entities).

the City of New York and the district attorneys' offices within it are separate entities


Context: A reliable differential diagnosis generally involves the performance of physical examinations, the taking of medical histories, and the review of clinical tests. While integrating scientific literature into the process might bolster the credibility of an expert's opinion, the absence of scholarly references in an expert report does not invariably exclude an otherwise rehable differential diagnosis.

"[I]f a person were doused with chemical X and immediately thereafter developed symptom Y, the need for published literature showing a correlation between the two may be lessened."

See Cavallo v. Star Enter., 892 F.Supp. 756, 774 (E.D.Va.1995), aff'd in relevant part, 100 F.3d 1150, 1159 (4th Cir.1996) (“[I]f a person were doused with chemical X and immediately thereafter developed symptom Y, the need for published literature showing a correlation between the two may be lessened.”); see also Heller v. Shaw Indus. Inc., 167 F.3d 146, 154 (3d Cir.1999) (concluding that Daubert does not require a physician to “rely on definitive published studies before concluding that exposure to a particular object or chemical was the most likely cause of a plaintiffs illness”).

concluding that Daubert does not require a physician to "rely on definitive published studies before concluding that exposure to a particular object or chemical was the most likely cause of a plaintiffs illness"