Context: P 28 Issues are capable of repetition when they could, or are likely to, reoccur in the future.

finding issue capable of repetition because other students "could" make similar claims in the future

Ofengand, 183 P.3d at 692 (issue capable of repetition because it was “likely” to reoccur); see also Tesmer v. Colo. High Sch. Activities Ass’n, 140 P.3d 249, 262 (Colo. App. 2006) (finding issue capable of repetition because other students “could” make similar claims in the future).

issue capable of repetition because it was "likely" to reoccur


Context: Though the contents of the report were hearsay, neither the admission of this report nor the method in which it was used by the IJ affected the fundamental fairness of Kasa's removal proceeding. Though any hearsay document creates doubts as to its trustworthiness, the report confirms its reliability and trustworthiness by specifying the steps taken in the investigation and clarifying that the purpose of the investigation was never made clear to members of the Albanian government.

concluding that a letter that stated only conclusions of a supposed investigation was inadmissible in a removal proceeding in part because "the complete dearth of information about the investigator or the investigation undermines the ... letter as not only untrustworthy, but also unhelpful."

See Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir.2003) (concluding that a letter that stated only conclusions of a supposed investigation was inadmissible in a removal proceeding in part because “the complete dearth of information about the investigator or the investigation undermines the ... letter as not only untrustworthy, but also unhelpful.”); see also Yongo, 355 F.3d at 32 (emphasizing this factor in Ezeagwu-na in reaching a different conclusion).


Context: We find, however, that, taken together as a whole, Alston's actions after he drove by the patrol car were sufficiently suspicious to provide Hixson with the requisite reasonable and articulable suspicion to stop Alston from walking away from the scene. Hixson's brief detention of Alston was therefore reasonable to allow the officer to confirm or dispel his suspicion and to maintain the status quo during the course of the lawful roadside investigatory stop.

holding that a police officer's brief detention of a passenger who walked away from a lawfully stopped vehicle is warranted to promote the officer's "significant interest in gaining control of and monitoring a potentially hazardous roadside stop in order to conduct his lawful investigation," particularly when "events subsequent to the lawful traffic stop focus suspicion on [the] passenger"

See Hatcher, 14 Va.App. at 491-92, 419 S.E.2d at 259 (holding that a police officer’s brief detention of a passenger who walked away from a lawfully stopped vehicle is warranted to promote the officer’s “significant interest in gaining control of and monitoring a potentially hazardous roadside stop in order to conduct his lawful investigation,” particularly when “events subsequent to the lawful traffic stop focus suspicion on [the] passenger”); see also United States v. Mancillas, 183 F.3d 682, 698 (7th Cir.1999) (finding that a police officer had reasonable suspicion to stop and briefly detain the defendant based, in part, on the defendant’s “quickly” exiting and walking away from his vehicle in a parking lot when the officer, responding to a radio dispatch, arrived at the parking lot and illuminated the defendant’s vehicle with a spotlight).

finding that a police officer had reasonable suspicion to stop and briefly detain the defendant based, in part, on the defendant's "quickly" exiting and walking away from his vehicle in a parking lot when the officer, responding to a radio dispatch, arrived at the parking lot and illuminated the defendant's vehicle with a spotlight


Context: The district court did not clearly abuse its discretion in refusing to order a new trial based on any of the three reasons put forth by defendant. First, defendant knew of the alleged lawsuit settlement pri- or to trial, and Glenn was not the only witness who could have testified regarding that lawsuit; in fact, the settlement was reached without his involvement. Thus, evidence concerning this lawsuit fails the O'Dell test: the settlement was not newly discovered and Glenn's statement was cumulative in light of defendant's access to other evidence of the settlement.

"Where facts alleged in support of [a motion for new trial] ... were known by the defendant at the time of trial, the defendant failed to satisfy the newly discovered evidence requirement of Rule 33."

United States v. Seago, 930 F.2d 482, 489 (6th Cir.1991) (“Where facts alleged in support of [a motion for new trial] ... were known by the defendant at the time of trial, the defendant failed to satisfy the newly discovered evidence requirement of Rule 33.”); United States v. Jones, 712 F.2d 115, 122 (5th Cir.1983) (where defendants have ready access to exculpatory evidence they cannot complain that it was wrongly withheld by the government); cf. O’Dell, 805 F.2d at 641 (noting that “other courts ... have determined that the prosecution is under no duty to produce evidence that is available to a defendant”).

noting that "other courts ... have determined that the prosecution is under no duty to produce evidence that is available to a defendant"


where defendants have ready access to exculpatory evidence they cannot complain that it was wrongly withheld by the government


Context: "The Federal Rules of Civil Procedure do not require a plaintiff to plead legal theories." Accordingly, when a plaintiff does plead legal theories, it can later alter those theories.

plaintiff should have been permitted to proceed on new summary judgment theory that re-characterized already-alleged facts and did not offer "any unfair surprise"

Vidimos, 99 F.3d at 222; see also Whitaker v. Milwaukee County, 772 F.3d 802, 808-09 (7th Cir. 2014) (plaintiff should have been permitted to proceed on new summary judgment theory that re-characterized already-alleged facts and did not offer “any unfair surprise”).

Id. (“[T]here is no burden on the plaintiff to justify altering its original theory.”); CMFG Life Insurance Co. v. RBS Securities, Inc., 799 F.3d 729, 743-44 (7th Cir. 2015) (plaintiff did not inappropriately add new claim during summary judgment briefing when factual basis was alleged in complaint); Rabé v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (noting that, after reversal of dismissal on pleadings, district court would have supplemental jurisdiction over claims not articulated, but implicit, in complaint). As a general rule, district courts should not hold plaintiffs to their earlier legal theories unless the changes unfairly harm the defendant or the case’s development—for example, by making it “more costly or difficult” to defend the case, or by causing unreasonable delay.


noting that, after reversal of dismissal on pleadings, district court would have supplemental jurisdiction over claims not articulated, but implicit, in complaint


Context: What matters, however, is the probative value of such offers. This entails an analysis of the timing and circumstances under which they were made.

finding that offer in compromise filed long after taxpayer learned of tax liability and without his having made any payment on the amount owed "destroyed whatever probative value a prompt offer might have had."

See United States v. Stoehr, 196 F.2d 276, 283 (3d Cir.1952) (finding that offer in compromise filed long after taxpayer learned of tax liability and without his having made any payment on the amount owed “destroyed whatever probative value a prompt offer might have had.”); see also United States v. McGill, 1991 WL 12346 *5 (E.D.Pa.) aff'd in part, rev’d in part 964 F.2d 222 (3d Cir.1992) (excluding as not probative offer made six years after tax delinquencies arose and just prior to defendant taking bench as a judge); see also Bateman v. United States, 212 F.2d 61, 68 (9th Cir.1954) (excluding evidence of tax protests as not probative on question of good faith where government had already commenced its investigation and audit of taxpayer); and see Hayes v. United States, 227 F.2d 540, 543 (10th Cir.1955) (excluding evidence of offer in compromise made 2% years after government brought fraud to tax payer’s attention)


excluding evidence of tax protests as not probative on question of good faith where government had already commenced its investigation and audit of taxpayer


excluding evidence of offer in compromise made 2% years after government brought fraud to tax payer's attention


Context: (R. 214, Pl.'s Facts, Ex. 6.) Such references fail to demonstrate that the subsidiary is an alter ego or "mere instrumentality" of the parent.

noting that the district court properly rejected the plaintiffs' argument that the descriptions of the relationship between the parent and subsidiary as well as the presence of the parent's logo in subsidiary's promotional literature justified piercing the corporate veil

See Esmark, 887 F.2d at 757; Joiner, 966 F.Supp. at 1490 (“the parent owns the subsidiary, it can do anything it wants with its subsidiary — the subsidiary has no choice but to obey”); see also Fletcher, 68 F.3d at 1460 (noting that the district court properly rejected the plaintiffs’ argument that the descriptions of the relationship between the parent and subsidiary as well as the presence of the parent’s logo in subsidiary’s promotional literature justified piercing the corporate veil).

"the parent owns the subsidiary, it can do anything it wants with its subsidiary -- the subsidiary has no choice but to obey"


Context: It would appear that the Supreme Court has also determined that fiduciary duties operate both independently from and in conjunction with ERISA's specifically delineated requirements.

"ERISA's rules concerning reporting, disclosure, and fiduciary responsibility apply to all employee benefit plans."

See Varity Corp., - U.S. at -, 116 S.Ct. at 1074 (“If the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose.”); see also Central States, Southeast and Southwest Areas Pension Fund v. Central Transp., Inc., 472 U.S. 559, 569 n. 9,105 S.Ct. 2833, 2839 n. 9, 86 L.Ed.2d 447 (1985) (“ERISA’s rules concerning reporting, disclosure, and fiduciary responsibility apply to all employee benefit plans.”).

"If the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose."


Context: . There are other public contract cases allowing third-party beneficiary actions.

Holbrook v. Pitt, 643 F.2d 1261, 1273 (7th Cir.1981) (tenants third-party beneficiaries of contract between landlord and Department of Housing and Urban Development [HUD] ); Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.) (prisoner third-party beneficiary of contract between county and Bureau of Prisons), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Dillon v. AFBIC Dev. Corp., 420 F.Supp. 572 (S.D.Ala.1976) (house purchaser third-party beneficiary of federal nondiscrimination agreement with real estate agent), modified, 597 F.2d 556 (5th Cir.1979); Zigas v. Superior Court of State of California, 120 Cal.App.3d 827, 174 Cal.Rptr. 806 (Ct.App.1981) (tenants third-party beneficiaries of contract between landlord and HUD), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 655 (1982); COAC, Inc. v. Kennedy Eng’rs, 67 Cal.App.3d 916, 136 Cal.Rptr. 890 (Ct.App.1977) (construction company third-party beneficiary of contract between water district and engineering company); Western Union Telegraph Co. (telegraph company third-party beneficiary of contract between Washington Mass Transit Authority and construction company); but see Perry v. Housing Auth., 664 F.2d 1210, 1218 (4th Cir.1981) (tenants not intended beneficiaries of agreement between HUD and housing authority); Falzarano v. United States, 607 F.2d 506 (1st Cir.1979) (no third-party beneficiary action based on contract between landlord and HUD); Chaplin v. Consolidated Edison Co., 579 F.Supp. 1470 (S.D.N.Y.1984) (no third-party beneficiary action based on provision of contract with federal government prohibiting discrimination against handicapped); Martinez v. Socoma Companies, 11 Cal.3d 394, 521 P.2d 841, 113 Cal.Rptr. 585 (1974) (unemployed persons only incidental beneficiaries of economic revitalization agreement between private companies and the federal government).


no third-party beneficiary action based on contract between landlord and HUD


no third-party beneficiary action based on provision of contract with federal government prohibiting discrimination against handicapped


unemployed persons only incidental beneficiaries of economic revitalization agreement between private companies and the federal government


prisoner third-party beneficiary of contract between county and Bureau of Prisons


house purchaser third-party beneficiary of federal nondiscrimination agreement with real estate agent


construction company third-party beneficiary of contract between water district and engineering company


Context: Put another way, they perceived his legal advocacy as a manifestation of his political beliefs. The fact that this testimony came amidst a discussion of Javed's political affiliations bolsters that conclusion.

cautioning against "an impoverished view" of what constitutes persecution on account of a political opinion

See Mayorga-Vidal v. Holder, 675 F.3d 9, 18 (1st Cir. 2012) (“Political persecution may be grounded on an imputed political opinion, whether or not the opinion is correctly or incorrectly attributed to the alien.”); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 294 (2d Cir.2007) (cautioning against “an impoverished view” of what constitutes persecution on account of a political opinion).

"Political persecution may be grounded on an imputed political opinion, whether or not the opinion is correctly or incorrectly attributed to the alien."


Context: Although section 456.072(6) contains no severability provision, we must determine whether the constitutionally invalid section, which purports to grant the Board the discretion to develop reapplication rules, is severable from the rest of the statute.

"Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions."

See Dade County v. Keyes, 141 So.2d 819, 821 (Fla. 3d DCA 1962) (“When a portion of a statute or ordinance is declared invalid the remaining portions thereof which are severable ordinarily should be recognized as valid, and it is the duty of the court to preserve their validity whether or not a severability clause was included.”); see also Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999) (“Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.”).

"When a portion of a statute or ordinance is declared invalid the remaining portions thereof which are severable ordinarily should be recognized as valid, and it is the duty of the court to preserve their validity whether or not a severability clause was included."


Context: Wright's waiver does not meet this standard because the record suggests that at the time he entered into the plea agreement, Wright was not aware that he might be ordered to pay a large restitution payment that possibly exceeds the losses to Amy proximately caused by his conduct. Wright's plea agreement referred to the general restitution provisions of 18 U.S.C. SSSS 3663 and 3663A, which both indisputably include proximate causation as a condition of restitution. Additionally, Wright's plea agreement reserved the right to appeal "any punishment in excess of the statutory maximum."

vacating a SS 3663 restitution award for lack of evidence of causation

See United States v. Norris, 217 F.3d 262, 271-72 (5th Cir.2000) (vacating a § 3663 restitution award for lack of evidence of causation); see also United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.1995) (vacating a § 3663 restitution order, despite an appeal waiver, because the order was not limited to losses caused by the defendant and thus exceeded the statutory maximum).

vacating a SS 3663 restitution order, despite an appeal waiver, because the order was not limited to losses caused by the defendant and thus exceeded the statutory maximum


Context: There can be little good faith disagreement that the so-called "notice"-- stating only "[t]his is just for notice purposes as this has been discontinued and there are no allegations" (UF No. 11)-- inadequately complies with the policy's requirements of notice of Wrongful Act(s) Granted, the Summons with Notice alleged breach of contract or fiduciary duty, but provided no information regarding the particular acts which led to the lawsuit being filed, the people who committed the acts and when the underlying acts occurred.

holding notice insufficient because it merely recited the language of the policy's notice provision and provided no information regarding "the types of practices alleged to constitute 'wrongful acts,' the agents, officers, or directors alleged to be involved in wrongdoing, or the time period during which the allegedly wrongful acts took place"

See F.D.I.C. v. Caplan, 838 F.Supp. 1125, 1130 (W.D.La.1993) (holding notice insufficient because it merely recited the language of the policy’s notice provision and provided no information regarding “the types of practices alleged to constitute ‘wrongful acts,’ the agents, officers, or directors alleged to be involved in wrongdoing, or the time period during which the allegedly wrongful acts took place”); see also McCullough v. Fid. and Deposit Co., 2 F.3d 110, 113 (5th Cir.1993) (holding that insured informing insurer that it had received a cease and desist order was insufficient notice because it did not detail the “particular subsidiary involved, the particular agents, officers, or directors involved, the time period during which the events occurred, the identity of potential claimants, and the specific unsound practices made the basis of the order”).

holding that insured informing insurer that it had received a cease and desist order was insufficient notice because it did not detail the "particular subsidiary involved, the particular agents, officers, or directors involved, the time period during which the events occurred, the identity of potential claimants, and the specific unsound practices made the basis of the order"


Context: P 17 Rasul's threatening behavior and refusal to cooperate with multiple attorneys can be nothing less than part of a " 'plo/ to delay trial."

defendant's threats to sue counsel were factors in forfeiture decision

Cf. McLeod, 53 F.3d at 325 (defendant’s threats to sue counsel were factors in forfeiture decision).

noting defendant's conduct fell just short of violence and was intended to force his attorney to withdraw

Carruthers, 35 S.W.3d at 550; see also Bultron, 897 A.2d at 766 (noting defendant’s conduct fell just short of violence and was intended to force his attorney to withdraw). As we have noted, he accused several attorneys of unsatisfactory representation and filed complaints with the state bar.


Context: In the court's view, it does not seem reasonable to impute to plaintiff an interpreta tion of the CWA that clearly was in flux at the time the land in question was purchased.

reaching the same conclusion as to an individual who had purchased property in 1971, stating that "[w]hile the Penn Central analysis anticipates reasonably foreseeable developments, it does not require a property owner to be clairvoyant"

See Walcek, 49 Fed.Cl. at 269 (reaching the same conclusion as to an individual who had purchased property in 1971, stating that “[w]hile the Penn Central analysis anticipates reasonably foreseeable developments, it does not require a property owner to be clairvoyant”); see also Deltona, 657 F.2d at 1191 (suggesting that the events described above had “radically transformed” the regulatory regime, working an “unforeseen change in the law”).

suggesting that the events described above had "radically transformed" the regulatory regime, working an "unforeseen change in the law"


Context: Mistakenly admitted evidence of pri- or crimes or convictions can, in some instances, "imping[e] upon the fundamental fairness of the trial itself." This court, however, as well as other circuits, has found that the improper admission of evidence of prior acts does not rise to the level of constitutional error if the trial judge later instructs the jury to disregard the evidence.

"This Court has held that such instructions to disregard often cure error."

See Scrivner v. Tansy, 68 F.3d 1234, 1239-40 (10th Cir.1995); Warden v. Wyrick, 770 F.2d 112, 116 (8th Cir.1985); McAffee v. Procunier, 761 F.2d 1124, 1127 (5th Cir.1985) (“This Court has held that such instructions to disregard often cure error.”); cf. United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979) (finding guilty verdict fundamentally unfair where the court improperly admitted evidence of prior conviction with no corrective instruction).


Context: Generally, a Miranda/Doyle constitutional argument is defeated by the failure to establish that Miranda warnings have been given, meaning the Doyle protections do not apply.

distinguishing Doyle because record did not establish defendant "received any Miranda warnings during the period in which he remained silent"

See, e.g., Hernandez, 284 Kan. at 88-92 (concluding Doyle violation not. established when prosecutor’s question was unclear regarding whether referring to pre- or post-Miranda silence); Wilkerson, 278 Kan. at 157 (noting record did not establish whether person was in custody or had received Miranda warnings before refusing to talk to investigators); State v. Carter, 30 Kan. App. 2d 1247, 1250-51, 57 P.3d 825 (2002), rev. denied 275 Kan. 966 (2003) (rejecting allegation of a Doyle violation because defendant failed to refer to any portion of the record indicating he had received Miranda warnings); see also Fletcher, 455 U.S. at 605 (distinguishing Doyle because record did not establish defendant “received any Miranda warnings during the period in which he remained silent”); Mattox v. State, 196 Ga. App. 64, 65, 395 S.E.2d 288 (1990) (relying on Fletcher to hold defendant has burden to establish right to remain silent was asserted post-Miranda); Lainhart v. State, 916 N.E.2d 924, 936 (Ind. App. 2009) (same); State v. McGinnis, 70 N.C. App. 421, 423-24, 320 S.E.2d 297 (1984) (same); State v. Cummings, 779 S.W.2d 10, 12 (Mo. App. 1989) (same); Royal v. State, 761 P.2d 497, 500 (Okla. Crim. 1988) (same); 3 LaFave, Criminal Procedure § 9.6(a), p. 497 n.47 (3d ed. 2007) (where a defendant asserts a Doyle violation, the defendant “ordinarily bears the burden of showing that Miranda warnings were given prior to the post-arrest silence used by the State for impeachment purposes”).

concluding Doyle violation not. established when prosecutor's question was unclear regarding whether referring to pre- or post-Miranda silence


relying on Fletcher to hold defendant has burden to establish right to remain silent was asserted post-Miranda


noting record did not establish whether person was in custody or had received Miranda warnings before refusing to talk to investigators


rejecting allegation of a Doyle violation because defendant failed to refer to any portion of the record indicating he had received Miranda warnings


Context: But, the subject matter' -- military pay and benefits -- at issue in Larionoff and Beckering is an exception to the general rule that service agreements are subject to traditional principles of contract law.

"common-law rules governing private contracts have no place in the area of military pay"

Santiago, 425 F.3d at 554 n. 4 (noting that exceptions to the general rule have been carved out for the areas of military pay or benefits due to the “unique nature and characteristics of military service”); see also Bell, 366 U.S. at 401, 81 S.Ct. 1230 (“common-law rules governing private contracts have no place in the area of military pay”).

noting that exceptions to the general rule have been carved out for the areas of military pay or benefits due to the "unique nature and characteristics of military service"


Context: Soto provided the sole and critical eyewitness evidence to support Whitmore's firearm conviction. We are hard-pressed to understand the government's claim that the proposed cross-examination would have "had only marginal evidentiary value," Appellee's Br. at 50, and we cannot ignore the potential impact of such a highly probative attack on Soto's character for truthfulness.

"Since virtually the whole of plaintiffs case was based on "White's testimony," court's decision to "prohibitf ] proper impeachment of plaintiffs key witness" "can only be regarded as material and significant" and "required" "a new trial."

Walker, 412 F.2d at 64 (“Since virtually the whole of plaintiffs case was based on "White’s testimony,” court’s decision to “prohibitf ] proper impeachment of plaintiffs key witness” “can only be regarded as material and significant” and “required” “a new trial.”); see also Cuffie, 80 F.3d at 518 (noting in Brady context “undisclosed impeachment evidence can be immaterial because of its cumulative nature only if the witness was already impeached at trial by the same kind of evidence”).

noting in Brady context "undisclosed impeachment evidence can be immaterial because of its cumulative nature only if the witness was already impeached at trial by the same kind of evidence"


Context: The fact that the force used in the present case emanated from a taser, rather than from a more traditional device, is not dispositive. The use of any "unnecessary, gratuitous, and disproportionate force," whether arising from a gun, a baton, a taser, or other weapon, precludes an officer from receiving qualified immunity if the subject is unarmed and secured.

concluding that use of a taser to "punish or intimidate" a pretrial detainee is not objectively reasonable and is contrary to clearly established law

See Park, 250 F.3d at 852-53 (concluding that an officer’s use of “pepper spray” to subdue an unarmed subject was irresponsible and excessive when the subject was not a threat to the officer or the public, and that the officer was not entitled to qualified immunity); see also Orem v. Rephann, 523 F.3d 442, 449 (4th Cir.2008)(concluding that use of a taser to “punish or intimidate” a pretrial detainee is not objectively reasonable and is contrary to clearly established law).

concluding that an officer's use of "pepper spray" to subdue an unarmed subject was irresponsible and excessive when the subject was not a threat to the officer or the public, and that the officer was not entitled to qualified immunity


Context: The evidence does not explain a notice provision in the contract, but rather seeks to change it. As such, the evidence is barred under Arizona's parol evidence rule.

See also Vecsel Partners, 29 F.3d 637, 1994 WL 315631 * 1 (extrinsic evidence rejected because it is inconsistent with written contract and therefore imper-missibly contradicts or varies terms of contract).

See Apollo Group, 58 F.3d at 482 (extrinsic evidence rejected because it contradicts parties’ final agreement); Thurston v. Citizens Utility Co., 1994 WL 462117 * 7 (D.Ariz., June 30, 1994), aff'd, 91 F.3d 155 (9th Cir.1996) (extrinsic evidence is rejected because it varied or contradicted, rather than explained or elaborated on, the terms of agreement); In re Redpath, 181 B.R. at 980 (parol evidence rejected because it contradicts rather than aids in interpreting, terms of the agreement).


parol evidence rejected because it contradicts rather than aids in interpreting, terms of the agreement


Context: The fundamental question in this regard, then, is not whether the underlying judgment itself put a dollar figure on the relief ordered, but on whether the monetary value of the judgment "can be calculated and secured with relative ease."

"The right to obtain an automatic stay under Rule 62(d) is presumably premised on the fact that money judgments, and therefore the amount of the required bond, are easily calculated"

J. Perez & CIA, Inc. v. United States, 747 F.2d 813, 816 (1st Cir.1984) (Breyer, J., in chambers); see also Miller v. LeSea Broadcasting, Inc., 927 F.Supp. 1148,1151 (E.D.Wis. 1996) (“The right to obtain an automatic stay under Rule 62(d) is presumably premised on the fact that money judgments, and therefore the amount of the required bond, are easily calculated”); cf. In re Tower Automotive, Inc., No. 06-CV-2105 (RWS), 2007 WL 1975447, at *1 (S.D.N.Y. July 6, 2007) (since court’s judgment was a declaratory judgment that determined the scope of insurer’s obligation, and that “awarded no fixed sum of money,” and because “the parties agree[d] that the amount due under the insurance policy [was at that time] unknown[,] Rule 62(d) [wa]is inapplicable”); Omnioffices, Inc. v. Kaidanow, 201 F.Supp.2d 41, 43 (D.D.C.2002) (“when a judgment involves costs that cannot be calculated, it is inequitable to grant a stay and thus to deny the non-moving party assurance that it will not suffer additional harm”).

since court's judgment was a declaratory judgment that determined the scope of insurer's obligation, and that "awarded no fixed sum of money," and because "the parties agree[d] that the amount due under the insurance policy [was at that time] unknown[,] Rule 62(d


"when a judgment involves costs that cannot be calculated, it is inequitable to grant a stay and thus to deny the non-moving party assurance that it will not suffer additional harm"


Context: See generally 1 Reports of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 135-215 (1850) (lengthy debate over whether to abolish grand jury system). The dearth of dialogue on this provision was typical of the constitutional protections governing criminal procedure.

concluding that main catalysts for drafting new constitution were state's financial woes and desire to limit General Assembly's ability to enact special laws dealing with local matters

Price v. State, 622 N.E.2d 954, 962 (Ind.1993) (analyzing history surrounding Article I, Section 9); see also Indiana Gaming Comm'n v. Moseley, 643 N.E.2d 296, 299-300 (Ind.1994) (concluding that main catalysts for drafting new constitution were state’s financial woes and desire to limit General Assembly’s ability to enact special laws dealing with local matters).

See Moran v. State, 644 N.E.2d 536, 539 (Ind.1994) (concluding that state constitutional right to be free from unreasonable searches and seizures was included in Indiana Bill of Rights without much debate); Miller v. State, 517 N.E.2d 64, 68-69 (Ind.1987) (discussing relatively unknown origins of state constitutional right to meet witnesses "face to face”). Indeed, “the Bill of Rights captured only modest attention.”


discussing relatively unknown origins of state constitutional right to meet witnesses "face to face"


Context: The Secretary interprets the EJR statute and regulations as allowing the court only to review the "challenge to the legal validity of Medicare's related party borrowing rule." (Def.'s Reply at 1.) Thus, the court's interpretation of the EJR statute and regulations is in accord with the Secretary's interpretation.

deferring to the Secretary's interpretation of regulations with respect to a jurisdictional issue

See Hinsdale Hosp. Corp. v. Shalala, 50 F.3d 1395, 1399 (7th Cir.1995) (explaining the substantial deference that must be given to the Secretary’s interpretation of the Medicare regulations); Loyola Univ. of Chicago v. Bowen, 905 F.2d 1061, 1066-67 (7th Cir.1990) (same); Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1130 (7th Cir.1988) (explaining that the court should accord less deference to the Secretary’s actions under the Medicare Act’s reimbursement provisions); see also French Hosp. Med. Ctr. v. Shalala, 89 F.3d 1411, 1416 n. 6 (9th Cir.1996) (deferring to the Secretary’s interpretation of regulations with respect to a jurisdictional issue).

explaining the substantial deference that must be given to the Secretary's interpretation of the Medicare regulations


explaining that the court should accord less deference to the Secretary's actions under the Medicare Act's reimbursement provisions


Context: Nor does it cite any authority suggesting rescissory damages are available under the common law without showing proximate cause. Recovery of damages typically requires a showing of proximate cause.

"The requirement of proving loss causation is a general requirement of tort law."

See Valley Nat’l Bank v. Brown, 110 Ariz. 260, 264, 517 P.2d 1256, 1260 (1974) (“Recovery in a tort action is limited to those damages which are the direct and proximate consequence of the defendant’s wrongful acts.”); see also Movitz v. First Nat’l Bank of Chicago, 148 F.3d 760, 763 (7th Cir.1998) (“The requirement of proving loss causation is a general requirement of tort law.”).

"Recovery in a tort action is limited to those damages which are the direct and proximate consequence of the defendant's wrongful acts."


Context: In sum, "[w]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time the action was taken." That is, "[t]he relevant question ... is the objective question whether a reasonable officer could have believed [the conduct at issue] to be lawful, in light of clearly established law and the information the [officer who engaged in the conduct at issue] possessed."

setting forth two-step analysis for resolving government officials' qualified immunity claims

Id. at 636, 107 S.Ct. 3034; see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (setting forth two-step analysis for resolving government officials’ qualified immunity claims); but see Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that two-step Saucier analysis should not be regarded as an inflexible requirement, but that a court may consider the steps as the court deems appropriate in its discretion).


Context: Other than a "recent" acquisition of certain documents relating to the Premises, referred to in the Reply, PBC has failed to provide the court with any indication of its effort to obtain information to posit an objection to the Debtor's discharge prior to July 7, 1997, the last date to file such objections. The majority view is that there can be no cause justifying an extension of time to object to discharge where the party seeking the extension failed to diligently pursue discovery pri- or to expiration of the deadline.

See In re Farhid, 171 B.R. 94, 97 (N.D.Cal.1994) (cause absent where creditor failed to attend section 341 meeting of creditors or request any Rule 2004 examination); In re Mendelsohn, 202 B.R. 831, 832 (Bankr.S.D.N.Y.1996) (no cause where creditor failed to seek a Rule 2004 examination and moved for an extension of time on last day to file objections to discharge); In re Leary, 185 B.R. 405, 406 (Bankr.D.Mass.1995) (cause absent where creditor waited until ten (10) days prior to expiration of the deadline to pursue requested Rule 2004 examinations); In re Dekelata, 149 B.R. 115, 117 (Bankr.E.D.Mich.1993) (no cause where request for Rule 2004 examination was made for the first time 11 days prior to expiration of the deadline); Littell v. Littell (In re Littell), 58 B.R. 937, 938 (Bankr.S.D.Tex.1986) (no cause where creditor failed to conduct discovery and motion for extension of time was filed day before deadline was to expire); see also Santana Olmo v. Quinones Rivera (In re Quinones Rivera), 184 B.R. 178, 183 (D.P.R.1995) (request for extension is inappropriate where movant made “no attempts at discovery, until his motion for extension of the deadline for objecting to discharge... s ”); 9 Collier on Bankruptcy ¶4004.03[2] at 4004-13 (extension inappropriate where “party seeking extension has made no attempts at discovery during all or most of the time available to it.”). But see In re Amezaga, 192 B.R. 37,41 (Bankr.D.P.R.1996) (“This court liberally grants motions for extension of time to object to discharge when the need for discovery is the basis of the request.”).

request for extension is inappropriate where movant made "no attempts at discovery, until his motion for extension of the deadline for objecting to discharge... s "


no cause where creditor failed to seek a Rule 2004 examination and moved for an extension of time on last day to file objections to discharge


no cause where request for Rule 2004 examination was made for the first time 11 days prior to expiration of the deadline


no cause where creditor failed to conduct discovery and motion for extension of time was filed day before deadline was to expire


Context: In the remaining Fifth Circuit opinions this Court has found where the district court had awarded damages for these expenses, the Fifth Circuit did not discuss the issue nor apparently was the issue raised by the parties.

aff'g denial of funeral expenses where no evidence therefor had been offered

See Verdin v. C & B Boat Co., 860 F.2d 150, 157 n. 6, 158 (5th Cir.) (upholding liability for unseaworthiness and Jones Act negligence), reh’g denied mem., 862 F.2d 874 (5th Cir.1988); In re Patton-Tully Transportation Co., 191 F.2d 206, 209 n. 1 (5th Cir.) (same), reh’g denied mem., 800 F.2d 262 (5th Cir.1986); Smith v. Ithaca Corp., 612 F.2d 215, 216 n. 2 (5th Cir.1980) (upholding liability for unseaworthiness and under DOHSA and the Jones Act); Neal v. Saga Shipping Co., 407 F.2d 481, 487 (5th Cir.) (upholding liability for unseaworthiness for death of a Sieracki-longshoreman), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969); see also Weeks v. Alonzo Cothron, Inc., 493 F.2d 538, 544 (5th Cir.1974) (aff’g denial of funeral expenses where no evidence therefor had been offered).


Context: Smith misconstrues the law in arguing that the Supreme Court has refused to limit antitrust remedies to commercial interests. The cases she cites address whether the plaintiffs alleged injuries within the meaning of the Clayton Act; in that context, the Court held that the statute was not limited to redressing injuries to commercial interests.

holding that "injury to business or property" was not limited to commercial interests

See Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330-31, 60 L.Ed.2d 931 (1979) (holding that “injury to business or property” was not limited to commercial interests); Blue Shield of Va. v. McCready, 457 U.S. 465, 473, 102 S.Ct. 2540, 2545, 73 L.Ed.2d 149 (1982) (holding that a subscriber to a health plan who had employed the services of a psychologist alleged a redressable antitrust injury); see also McNulty v. Borden, Inc., 474 F.Supp. 1111, 1115-18 (E.D.Pa.1979) (holding that an employee of an alleged antitrust violator was injured in his business or property). The question which we now face is different; it is whether antitrust laws apply only to the alleged infringer’s commercial activities.


holding that a subscriber to a health plan who had employed the services of a psychologist alleged a redressable antitrust injury


Context: . We note that a defendant charged with violating a condition of supervised release has limited due process rights.

holding that "there is no constitutional right to representation by counsel at a parole revocation"

See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that revocation of parole does not impinge upon "absolute liberty” but only on "the conditional liberty properly dependent on observance of special parole restrictions”); see also United States v. Manuel, 732 F.3d 283, 291 (3d Cir.2013) (holding that "there is no constitutional right to representation by counsel at a parole revocation”).

holding that revocation of parole does not impinge upon "absolute liberty" but only on "the conditional liberty properly dependent on observance of special parole restrictions"


Context: We rested this statement on the premise that a plaintiff may invoke "the 'public interest' in requiring government officials to discharge faithfully their statutory duties under NEPA." We express no opinion on whether the "public interest" rationale remains cognizable in light of subsequent Supreme Court precedent.

rejecting "commutative" theory of standing whereby standing as to one claim would suffice for all claims arising from same nucleus of operative fact

See, e.g., DaimlerChrysler, 547 U.S. at 351-53, 126 S.Ct. 1854 (rejecting “commutative” theory of standing whereby standing as to one claim would suffice for all claims arising from same nucleus of operative fact); see also id. at 353 n. 5,126 S.Ct. 1854 (distinguishing Adams from case at bar but expressing no opinion on its validity); Lewis, 518 U.S. at 358 n. 6, 116 S.Ct. 2174 (where injunction requiring provision of certain services to inmates concerned inadequacies other than those that harmed plaintiffs, noting that “standing is not dispensed in gross. If the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review.”).


where injunction requiring provision of certain services to inmates concerned inadequacies other than those that harmed plaintiffs, noting that "standing is not dispensed in gross. If the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review."


Context: Finally, other state courts have also found their nonparental visitation statutes to be constitutionally infirm.

See Punsly v. Ho, 105 Cal.Rptr.2d 139, 147, 87 Cal.App.4th 1099, 1110 (2001) (Relying on Troxel, the California Court of Appeal concluded that the trial court's application of California's nonparental visitation statute over mother's objections violated mother's fundamental parental rights where the mother was fit and was willing to voluntarily schedule visitation and the trial court applied an erroneous presumption that visitation with the paternal grandparents was in the child's best interest.); Belair v. Drew, 776 So.2d 1105, 1107 (Fla.Dist.Ct.App.2001) (Florida's Fifth District Court of Appeal discussed Troxel and held that Florida's grandparent visitation statute is facially unconstitutional under the privacy rights protected by Florida's Constitution.); Neal v. Lee, 14 P.3d 547 (Okla.2000) (The Oklahoma Supreme Court found that pursuant to Troxel, the award of grandparent visitation in this case under Oklahoma's grandparent visitation statute violated the parents' federal constitutional rights as the parents objected to visitation and the grandmother made no showing of harm.). See also Hertz v. Hertz, 717 N.Y.S.2d 497, 500, 186 Misc.2d 222, 226 (2000) (New York's grandparent visitation statute violated parents' substantive due process rights because it allowed the trial judge to solely determine best interest and accorded parents' decision of children's best interest no presumption of validity); but see Fitzpatrick v. Youngs, 717 N.Y.S.2d 503, 186 Misc.2d 344, 349 (2000) (Discusses Troxel and notes that New York's statute is not as broad as the statute in Troxel. Denies motion to dismiss petition for grandparent visitation.) and Smolen v. Smolen, 713 N.Y.S.2d 903, 185 Misc.2d 828, 835 (2000) (Denying motion to dismiss petition for grandparent visitation prior to evidentiary hearing.).


Denying motion to dismiss petition for grandparent visitation prior to evidentiary hearing.


Florida's Fifth District Court of Appeal discussed Troxel and held that Florida's grandparent visitation statute is facially unconstitutional under the privacy rights protected by Florida's Constitution.


New York's grandparent visitation statute violated parents' substantive due process rights because it allowed the trial judge to solely determine best interest and accorded parents' decision of children's best interest no presumption of validity


Context: . Specifically, I discussed this Court's jurisdictional authority to review plaintiffs' constitutional claims.

finding "preclusion of review for both as applied and facial constitutional challenges only if the evidence of congressional intent to preclude is 'clear and convincing' "

See Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (“[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.’’); see also Elgin v. Dep’t of the Treasury, — U.S. -, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012) ("[A] necessary predicate to the application of Webster's heightened standard [is] a statute that purports to deny any judicial forum for a colorable constitutional claim.” (internal quotation marks omitted)); McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 59 (D.C.Cir.2001) (finding "preclusion of review for both as applied and facial constitutional challenges only if the evidence of congressional intent to preclude is ‘clear and convincing’ ”).

"[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.''


Context: The third and fourth instances of bad faith were predicated on the district court's belief that both David and Samuel Sprafldn had offered testimony that "simply was not credible." We have no doubt that when a party has materially perjured himself, this, standing alone, is sufficient grounds for finding bad faith.

holding that the defendant's '"materially false statements [made] under oath' are, having been critical to the success of his case, alone, enough to support a finding of bad faith"

See Chambers, 501 U.S. at 46, 111 S.Ct. at 2133 (noting that the “inherent power extends to a full range of litigation abuses); see also Perichak, 715 F.2d at 84-85 & n. 9 (3d Cir.1983) (holding that the defendant’s ‘“materially false statements [made] under oath’ are, having been critical to the success of his case, alone, enough to support a finding of bad faith”); Carrión v. Yeshiva University, 535 F.2d 722 (2d Cir.1976) (affirming fee award after a civil rights bench trial where the court found that plaintiffs testimony was an “unmitigated tissue of lies”). However, “[a] factfinder’s decision that one party’s version of the events is more credible than the other party’s is, without more, insufficient to justify an award of attorneys’ fees_” Roth v. Pritikin, 787 F.2d 54, 58 (2d Cir.1986) (discussing fee awards under the Copyright Act); see also Blue, 914 F.2d at 544 (noting that “not every instance in which a district court credits one side’s witnesses over another’s is an occasion for sanctions”).

noting that the "inherent power extends to a full range of litigation abuses


noting that "not every instance in which a district court credits one side's witnesses over another's is an occasion for sanctions"


Context: C.Complete Bar to Recovery of Child Rearing Costs. A third approach, adopted by the majority of jurisdictions, completely bars recovery of child rearing costs.

Cf. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (damages restricted to expenses in excess of the cost of the birth and rearing of a healthy child).

McNeal v. United States, 689 F.2d 1200 (4th Cir.1982) (interpreting Virginia law); White v. United States, 510 F.Supp. 146 (D.Kan.1981) (interpreting Georgia law); Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Fassoulas v. Ramey, — So.2d (Fla.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App.1980); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983) (reversing 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981)), cert. denied, — U.S.-, 104 S.Ct. 149, 78 L.Ed.2d 139 (1984); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Maggard v. McKelvey, 627 S.W.2d 44 (Ky.App.1981); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J. Super. 465, 432 A.2d 556 (1981); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).


Context: {P 12} Finally, Wallace complains that Judge Dezso has failed to schedule hearings and to rule on his motions. But a judge's alleged failure to set a matter for hearing or to promptly rule on a motion is not grounds for disqualification.

an affidavit of disqualification "is not a vehicle to contest matters of substantive or procedural law"

In re Disqualification of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, 826 N.E.2d 304, ¶ 4 (a judge’s action — or inaction — on a motion is within the judge’s sound discretion and is not evidence of bias or prejudice); see also In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit of disqualification “is not a vehicle to contest matters of substantive or procedural law”).

a judge's action -- or inaction -- on a motion is within the judge's sound discretion and is not evidence of bias or prejudice


Context: (Compile 20-23, 26.) Although Fleming claims to have suffered this harassment both at the Woodside Garage and at CPCC, Van Houten's alleged conduct created one hostile work environment because he supervised Fleming throughout both periods.

holding that a hostile work environment continued even after plaintiffs three-year absence because plaintiff "suffered the same kinds of harassment ... under the aegis of some of the same supervisory personnel"

See Cornwell, 23 F.3d at 704 (holding that a hostile work environment continued even after plaintiffs three-year absence because plaintiff “suffered the same kinds of harassment ... under the aegis of some of the same supervisory personnel”); see also Fitzgerald, 251 F.3d at 362-63 (allegations of a “constant stream of unjustified criticisms of [plaintiffs] work described ... a continuity of allegedly unlawful conduct”).

allegations of a "constant stream of unjustified criticisms of [plaintiffs] work described ... a continuity of allegedly unlawful conduct"


Context: Defendants are both members of the New York State Police. (Dkt. 1 at PP2-4). "Claims against state employees in their official capacity are deemed claims against the state itself, and are barred by the Eleventh Amendment."

Coleman v. Beale, 636 F.Supp.2d 207, 212 (W.D.N.Y.2009); see Gianni v. Kopp, No. 1:11-cv-498 (GLS/DRH), 2011 WL 5080195, at *2 (N.D.N.Y. Oct. 26, 2011) (dismissing claims against New York State Troopers in their official capacities).

"This bar exists whether the relief sought is legal or equitable."

See also Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (“This bar exists whether the relief sought is legal or equitable.”).


Context: (Emphasis added.) Thus, if Defendant was incarcerated in California, or any other state, awaiting extradition for this forgery charge, he would be entitled to credit for the time served.

State v. Mahler, 128 Ariz. 429, 430, 626 P.2d 593, 594 (1981) (defendant arrested on fugitive warrant, waived extradition); People v. Hardman, 653 P.2d 763, 764 (Colo.App.1982); State v. Brown, 55 Wash.App. 738, 757, 780 P.2d 880, 890 (1989) (defendants awarded credit for time served awaiting extradition under similar statutes).

See Brant, 72 Haw. at 231-32, 813 P.2d at 855 (lower court credited time defendant served in custody awaiting extradition, issue was not appealed).


Context: Indeed, it is plausible that, from a third-party perspective, Defendant Best's conduct would have appeared to be in the ordinary course of his police business-- taking a private citizen from his official vehicle, while in his official uniform, to his office in MPD headquarters. Accordingly, Plaintiff has plausibly alleged a theory of respondeat superior liability for the District stemming from Defendant Best's 'alleged sexual abuse of the Plaintiff at MPD headquarters.

See Sipper, 821 F.Supp.2d at 398 (denying motion to dismiss on the basis of section 219(2)(d) because there was a fact issue as to whether an executive of a company used the instrumentalities of his position to rape an employee); see also Doe v. Forrest, 176 Vt. 476, 853 A.2d 48, 61 (2004) (“What makes the circumstances of this case virtually unique from a policy perspective is 'the extraordinary power that a law enforcement officer has over a citizen. A number of courts have talked about this power in finding vicarious liability in cases involving sexual assaults by police officers.”).

"What makes the circumstances of this case virtually unique from a policy perspective is 'the extraordinary power that a law enforcement officer has over a citizen. A number of courts have talked about this power in finding vicarious liability in cases involving sexual assaults by police officers."


Context: Doc. 37 at PP 43, 47, 49-53, 76, 80, 83. Taken together, those allegations are sufficient to state an unfair conduct claim under the ICFA.

where complaint alleged "several injuries resulting from defendant's allegedly deceptive representations about HAMP, including wrongful foreclosures, increased fees, costs incurred to avoid foreclosure, loss of opportunities to pursue refinancing or loss mitigation strategies, and emotional distress," plaintiff adequately stated a claim under analogous Massachusetts consumer protection statute

See Windy City, 536 F.3d at 672 (allegation of specific unfair conduct and resulting harm sufficient to state an ICFA unfairness claim); see also Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 353-54 (D.Mass.2011) (where complaint alleged “several injuries resulting from defendant’s allegedly deceptive representations about HAMP, including wrongful foreclosures, increased fees, costs incurred to avoid foreclosure, loss of opportunities to pursue refinancing or loss mitigation strategies, and emotional distress,” plaintiff adequately stated a claim under analogous Massachusetts consumer protection statute).


Context: Based on the fact that Gaumond successfully completed the probationary period, he contends that he has a constitutionally protected interest in continued employment. However, Section 3-01 creates no entitlement to continued employment.

holding that assistant professor's mere presence as a member of the faculty beyond a seven-year probationary period did not demonstrate that she was protected by public university's tenure system

Board of Regents, v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (A person claiming a property inter est in a benefit “must have more than an abstract need or desire for it .... He must ... have a legitimate claim to it.”); see also Gray v. Board of Regents of the University System of Georgia, 150 F.3d 1347, 1350-52 (11th Cir.1998) (holding that assistant professor’s mere presence as a member of the faculty beyond a seven-year probationary period did not demonstrate that she was protected by public university’s tenure system).

A person claiming a property inter est in a benefit "must have more than an abstract need or desire for it .... He must ... have a legitimate claim to it."


Context: Instead of accounting for this contradictory record evidence, the ALJ ignored the opinions of Buck's therapists and Vickers, selectively citing to temporary improvements in Buck's functioning. Given the episodic nature of bipolar disorder, short-lived improvements in functioning are consistent with the diagnosis and cannot, by themselves, constitute substantial evidence to override treating source opinions that Buck was significantly impaired.

"Bipolar disorder is a severe psychiatric illness marked by episodes of mania and depression, impairment of functioning-- both cognitive and behavioral, and is frequently complicated by psychotic symptoms (e.g. delusions, hallucinations, and disorganized thinking

See Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1234 (9th Cir.2011) (concluding that the ALJ erred in “holding] against [claimant] two instances where he was able to function, even though his alleged disability involves attacks of muscle weakness ... that come and go”); see also Agyeman v. I.N.S., 296 F.3d 871, 881 (9th Cir.2002) (“Bipolar disorder is a severe psychiatric illness marked by episodes of mania and depression, impairment of functioning— both cognitive and behavioral, and is frequently complicated by psychotic symptoms (e.g. delusions, hallucinations, and disorganized thinking).”) (emphasis added).

concluding that the ALJ erred in "holding] against [claimant] two instances where he was able to function, even though his alleged disability involves attacks of muscle weakness ... that come and go"


Context: Second, there was ample evidence in the records to support the district-court's finding that Herrera oversaw the preparation, purchase and diversion of large quantities of pseudoephedrine through both JDI and G&H.

holding that, where "the district court was able to estimate drug quantity, there is no reason to depart from 2D1.1."

See United States v. Ponce, 51 F.3d 820, 827 (9th Cir.1995) (affirming a four-point enhancement under U.S.S.G. § 3B1.1 where defendant oversaw procurement and distribution of large quantities of cocaine); see also United States v. Basinger, 60 F.3d 1400, 1410 (9th Cir.1995) (holding that, where “the district court was able to estimate drug quantity, there is no reason to depart from 2D1.1.”).

affirming a four-point enhancement under U.S.S.G. SS 3B1.1 where defendant oversaw procurement and distribution of large quantities of cocaine


Context: Dish Rep. Br. at 22-23. The change in the law merely allows for an offer to sell a patented product to constitute infringement. It says nothing new about whether the use of an infringing product to promote products and services can be advertising injury.

rejecting the relevance of this change in the law "because Intouch's complaint alleges an infringement based on Amazon's use of its patented product, [and therefore the] amendments do not affect the outcome here"

Amazon, 85 P.3d at 977 n. 20 (rejecting the relevance of this change in the law “because Intouch’s complaint alleges an infringement based on Amazon’s use of its patented product, [and therefore the] amendments do not affect the outcome here”); see also Tradesoft Techs., Inc. v. Franklin Mut. Ins. Co., Inc., 329 N.J.Super. 137, 746 A.2d 1078, 1086 (App. Div.2000) (specifically rejecting the argument that the change in the patent laws changed the scope of “advertising injury” coverage).

specifically rejecting the argument that the change in the patent laws changed the scope of "advertising injury" coverage


Context: . We have approved constitutional decisions of the district courts based on different constitutional grounds.

concluding that the defendant's equal protection challenge to determinations made under the sexual offender involuntary commitment statute was properly a due process claim

See State v. Saiez, 489 So.2d 1125, 1126, 1129 (Fla.1986) (agreeing that the subject statute was unconstitutional, but rejecting the district court's reasoning that the statute was overbroad and vague and holding instead that statute violated due process); see also Westerheide v. State, 831 So.2d 93, 110-11 (Fla.2002) (concluding that the defendant’s equal protection challenge to determinations made under the sexual offender involuntary commitment statute was properly a due process claim).


Context: Moreover, there is no indication that the jury made specific findings as to drug quantity. In light of the indictment's ambiguous allegation as to the quantity of cocaine base involved, and because of Apprendi, we conclude that the failure to require specific findings regarding the quantity of cocaine constitutes a "plain or obvious" error.

"[I]n a case ... where the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is enough that an error be "plain at the time of appellate consideration"

See United States v. Garcia-Guizar, 227 F.3d 1125 (9th Cir.2000) (concluding that the judge’s issuance of findings that increased the statutory maximum constituted an obvious error, satisfying the first two prongs of the Olano standard); see also Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (“[I]n a case ... where the law at the time of trial was settled and clearly contrary to the law at the time of appeal-it is enough that an error be “plain at the time of appellate consideration”).

concluding that the judge's issuance of findings that increased the statutory maximum constituted an obvious error, satisfying the first two prongs of the Olano standard


Context: As well, the Plaintiffs assertion that Odom made racial comments every time he visited Brownsville is conclusory and non-specific. Without more, the Plaintiff has not created a genuine issue of material fact as to the severity or pervasiveness of Odom's alleged racially derogatory language.

"[Plaintiff] has alleged that she was subject to derogatory sex-based comments on a daily basis, but without specifies it is difficult to adjudge their severity."

See Fuelling, 284 Fed.Appx. at 259-60 (granting summary judgment on hostile work environment claim where plaintiff alleged that she was referred to with derogatory language “on numerous occasions” but was only able to identify the speaker on one occasion); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 836 (6th Cir.1996) (finding no hostile work environment where only two comments were actually discriminatory); Fasone v. Clinton Twp., No. 97-3267, 1998 WL 165147, at *1 (6th Cir. Apr. 3, 1998) (hostile work environment claim failed where plaintiff alleged “constant harassment” but only identified “a few specific discriminatory comments”); see also Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 501 (6th Cir.2009) (“[Plaintiff] has alleged that she was subject to derogatory sex-based comments on a daily basis, but without specifies it is difficult to adjudge their severity.”).

granting summary judgment on hostile work environment claim where plaintiff alleged that she was referred to with derogatory language "on numerous occasions" but was only able to identify the speaker on one occasion


finding no hostile work environment where only two comments were actually discriminatory


hostile work environment claim failed where plaintiff alleged "constant harassment" but only identified "a few specific discriminatory comments"


Context: Under general maritime law negligent defendants are jointly and severally liable for the plaintiffs damages. The United States and Weeks Marine are both at fault for the allision and Contango's damages, and neither is entitled to shift all blame to the other because each owed independent duties to exercise reasonable care to avoid damaging Contango's pipeline, and each could have prevented the allision through the exercise of reasonable care.

See Combo Maritime, 615 F.3d at 608-09 (discussing the effect of THE LOUISIANA rule on apportionment of liability); cf. Beene v. Terrebonne Wireline Servs., Inc., 990 F.2d 627, 1993 WL 117984, at *2 (5th Cir.1993) (unpublished table decision) (discussing the effect of THE PENNSYLVANIA rule on apportionment of liability); Sheridan Transp. Co. v. United States, 834 F.2d 467, 478 (5th Cir.1987) (same).


Context: This interpretation accords with Washington case law. Where our courts have found a parent to be voluntarily unemployed, the parent has been employable.

See also In re Marriage of Curran, 26 Wn. App. 108, 110-11, 611 P.2d 1350 (1980) (where parent held a position yielding a very low salary given his education and business background, the court could consider loans and gifts in setting child support).

Lambert v. Lambert, supra (where the obligor quit a paying job to pursue his failing business, the court found him to be voluntarily unemployed); Carstens v. Carstens, 10 Wn. App. 964, 965, 521 P.2d 241 (1974) (where the obligor was qualified to be an accountant but chose not to practice his profession and where he depleted his assets due to his alcoholism, the court found the condition to amount to voluntary unemployment).


Context: O'Reilly and Nix-Bey were friends and confidants, as evidenced by testimony from Nix-Bey that even before the two of them became cellmates, they saw each other every day at meals, engaged in numerous social activities together, and worked together on O'Reilly's legal matters. O'Reilly was unaware that he was being recorded and therefore could not have made his statement in order to obtain a benefit from law enforcement.

"Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor."

See Williamson, 512 U.S. at 603, 114 S.Ct. 2431 (“Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.”); see also Franklin, 415 F.3d at 548 (stating that the lack of such self-interested motives bolsters trustworthiness).


Context: . It is possible that some states permit the corporation or its stockholders to assert an alter ego cause of action to pierce the corporate veil, and thus, that a bankruptcy trustee would be able to enforce the claim on behalf of the debtor corporation under Sections 541 and 704.

See In re Western World Funding, Inc., 52 B.R. 743, 783 (Bankr.D.Nev.1985) (although not sole basis of decision, court held that under Nevada alter ego doctrine, the corporation has an equitable interest in assets of the alter ego and thus, the action is one that is property of the estate under Section 541(a)(1)); see also In re Energy Cooperative, Inc., 58 B.R. 132, 134-35 (N.D.Ill.1985) (apparently interpreting alter ego action to pierce the corporate veil as a suit against the principals for mismanagement, misappropriation of assets, or breach of fiduciary duty).


Context: But Alen has furnished no evidence that Phelps "consciously disregarded]" those problems. By alerting a supervisor to the request, Phelps fulfilled his duty under the Eighth Amendment.

guard who is aware of inmate's serious medical issue should alert medical staff

See Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 941 (7th Cir. 2015) (guard who is aware of inmate’s serious medical issue should alert medical staff); Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (public employee is not required to go beyond job requirements to aid prisoner); see also Longoria v. Texas, 473 F.3d 586, 594 (5th Cir. 2006) (officer fulfills duty by referring inmate’s complaint for investigation or taking administrative action).

officer fulfills duty by referring inmate's complaint for investigation or taking administrative action


public employee is not required to go beyond job requirements to aid prisoner


Context: Although no per se duration exists at which a Terry stop ends and an arrest commences, a 20-minute confinement has been held too lengthy to be appropriately characterized as an investigatory deten tion.

overturning a Court of Appeals decision and ruling that a 20-minute detention was reasonable under Terry because the police acted diligently and a suspect's actions contribute to the added delay

Sharpe, 470 U.S. at 686, 105 S.Ct. 1568 (overturning a Court of Appeals decision and ruling that a 20-minute detention was reasonable under Terry because the police acted diligently and a suspect’s actions contribute to the added delay); see also United States v. Perez-Esparza, 609 F.2d 1284, 1287 (9th Cir.1979) (holding that detention for three hours in a checkpoint station required .probable cause).


Context: The Court finds that the Any Willing Provider Statute fails the common sense test because it is not specifically directed towards the insurance industry, but, rather, it expressly applies to entities outside the insurance industry, such as employers and Taft-Hartley trusts.

holding that Virginia's statute was expressly limited to entities within the insurance industry

See La.Rev.Stat.Ann. § 40:2202(3)(a)-(b) (West 1987); Hayden, 843 F.Supp. at 1434 (“[although [the statute at issue there] may have a substantial effect on the insurance industry, the law affects other health care plans and agreements even though they are not a part of an insurance contract”); cf. Stuart Circle, 995 F.2d at 504 (holding that Virginia’s statute was expressly limited to entities within the insurance industry).

"[although [the statute at issue there] may have a substantial effect on the insurance industry, the law affects other health care plans and agreements even though they are not a part of an insurance contract"


Context: P 42 Normally, however, no genuine issue of fact is created by opinions and statements submitted by a party that contradict the party's pleaded allegations.

rejecting the argument that an expert opinion created a genuine issue of material fact, in' part because the "appellant's own admissions contradict her expert's opinion and admit that the standard of care was not breached and that she was not injured"

See Monarrez v. Utah Dep’t of Transp., 2014 UT App 219, ¶ 45, 335 P.3d 913 (noting with approval the principle that “[i]n moving for summary judgment, a party may rely on the doctrine of judicial admission by utilizing allegations in the opposing party’s pleadings to eliminate triable issues of material fact” (citation and internal quotation marks omitted)), aff'd, 2016 UT 10, 368 P.3d 846; Ramos v. Khawli, 181 Ohio App.3d 176, 908 N.E.2d 495, 509 (2009) (rejecting the argument that an expert opinion created a genuine issue of material fact, in' part because the “appellant’s own admissions contradict her expert’s opinion and admit that the standard of care was not breached and that she was not injured”); cf. Brinton v. IHC Hosps., Inc., 973 P.2d 956, 973 (Utah 1998) (concluding that statements in the claimant’s affidavit did not raise a genuine issue of material fact, where the claimant had not adequately explained the contradiction between allegations in his com plaint and - testimony under oath, and the statements in his later-submitted affidavit); Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 11 n.6, 333 P.3d 1266 (rejecting an argument as “contradictory to the allegations contained in the [parties’] complaint,” noting that “[a]n admission of fact in a pleading ... is normally conclusive on the party making it” (second alteration in original) (citation and internal quotation marks omitted)), cert. granted, 343 P.3d 708 (Utah 2016).

concluding that statements in the claimant's affidavit did not raise a genuine issue of material fact, where the claimant had not adequately explained the contradiction between allegations in his com plaint and - testimony under oath, and the statements in his later-submitted affidavit


Context: Our analysis of the enabling statute and of DOH's implementing regulation does no violence to the time-honored dictum that courts should construe a penal statute strictly. Strict construction, however, does not mean that courts should adopt irrational interpretations that would thwart or impede the underlying purpose of the statute.

"with respect to penal statutes this court will not interpret a statute literally when to do so would lead to an absurd or unreasonable result or would impede a clear legislative intent"

State v. Lusi 625 A.2d 1350, 1353 (R.I.1993) (“with respect to penal statutes this court will not interpret a statute literally when to do so would lead to an absurd or unreasonable result or would impede a clear legislative intent”); see also State v. Gonsalves, 476 A.2d 108, 111 (R.I.1984) (“[Ple-na! statutes are to be strictly construed, [but] they should not be interpreted in a manner that would thwart a clear legislative intent. * * * [Thus], we will not attribute to the Legislature a meaningless or absurd result.”).

"[Ple-na! statutes are to be strictly construed, [but] they should not be interpreted in a manner that would thwart a clear legislative intent. * * * [Thus], we will not attribute to the Legislature a meaningless or absurd result."


Context: Some eases have identified circumstances in which a change in decisional law warrants relief under 60(b)(6). For example, when judgment in a federal diversity case is based on an interpretation of state law later determined to be incorrect in light of a subsequent state court decision, the policy of federalism that guides choice of law may require relief from the erroneous judgment.

"The federal courts in which plaintiffs were forced to litigate have given them substantially different treatment than that received in state."

See, e.g., Pierce v. Cook & Co., 518 F.2d 720, 723 (10th Cir.1975) (“The federal courts in which plaintiffs were forced to litigate have given them substantially different treatment than that received in state.”), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976); but see Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749 (5th Cir.1995) (“Our role as an Erie court strengthens, rather than undermines, the proposition that a change in decisional law is insufficient to constitute an extraordinary circumstance.”).

"Our role as an Erie court strengthens, rather than undermines, the proposition that a change in decisional law is insufficient to constitute an extraordinary circumstance."


Context: The SGLIA has been interpreted by the United States Supreme Court to "bestow upon the service member an absolute right to designate the policy beneficiary." Accordingly, due to the operation of the Supremacy Clause of the United States Constitution, state laws interfering with the right to designate the beneficiary under a qualifying policy are federally preempted.

applying the analysis in Ridgway to the Federal Employees' Group Life Insurance Act of 1954 because it is "strikingly similar" to the SGLIA

Id. at 60, 102 S.Ct. 49 (“[T]he controlling provisions of the SGLIA prevail over and displace inconsistent state law.”); see also Hillman v. Maretta, — U.S. -, 133 S.Ct. 1943, 1951-52, 186 L.Ed.2d 43 (2013) (applying the analysis in Ridgway to the Federal Employees’ Group Life Insurance Act of 1954 because it is “strikingly similar” to the SGLIA).

"[T]he controlling provisions of the SGLIA prevail over and displace inconsistent state law."


Context: Plaintiffs challenge these conclusions, noting that there were similar complaints about the Eldridge device. In sum, whether the Eldridge device "embodies" the Tanges device and is superior to it are questions of fact which must be decided by the jury.

See Carbo-Frost, supra, 103 F.2d at 220 (finder of fact must compare and contrast the nature of the different devices); cf. SRI Int’l v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1117 (Fed.Cir.1985) (in infringement action, determination of whether devices operate in substantially different ways and accomplish similar functions is a question of fact and is inappropriately decided on summary judgment).


Context: NDCC 57-24--29 (emphasis added). This statute clearly places the burden upon the * delinquent taxpayer to prove that all owners did not receive proper notice of the impending tax sale.

"The burden ... is upon the plaintiffs to show that the required notice was not given."

See Fish v. France, 71 N.D. 499, 508, 2 N.W.2d 537, 542 (1942) (“The burden ... is upon the plaintiffs to show that the required notice was not given.”); see also Remmich v. Wagner, 77 N.D. 120, 126, 41 N.W.2d 170, 173 (1950) (“[P]rima facie evidence of the certificate must have been overcome before the sale can be set aside.”)- Compare NDCC 57-24-08 (requiring proof of publication of notice of tax sale by affidavit); NDCC 57-27-03 (requiring proof of service of notice of expiration of redemption period).

"[P]rima facie evidence of the certificate must have been overcome before the sale can be set aside."


Context: Section 553.212 does not require overtime for employees in fire protection activities who spend their day in exempt activities related to fire protection.

See Schmidt, 929 F.2d at 990 (“[Dispatching] is clearly related to firefighting, and the 20% limitation simply has no application to this case.”); see also Bond, 939 F.2d 285 (no application of 20% limitation when paramedics are substantially related to fire protection and spend day co-responding with the fire and police departments).

"[Dispatching] is clearly related to firefighting, and the 20% limitation simply has no application to this case."


Context: Because Dr. Goldman's report and curriculum vitae demonstrate his knowledge and experience treating patients in circumstances similar to those that form the basis of the allegations in this claim, the trial court did not abuse its discretion in finding Dr. Goldman qualified.

See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a)(2); Rittger, 332 S.W.3d at 558 (neurologist qualified to provide expert opinion on standard of care or breach thereof by emergency room physician where prospective medical expert had practical knowledge of what is usually and customarily done by practitioners under similar circumstances); see also Barber v. Mercer, 303 S.W.3d 786, 795 (Tex.App.-Fort Worth 2009, no pet.) (holding anesthesiologist qualified to opine on conduct of surgeon in health care liability claim because anesthesiologist’s report tied his education, training, and experience to the specific alleged breach — the positioning and padding of a patient during surgery, not the conduct of the actual operating techniques); Blan, 7 S.W.3d at 746 (condition involved in claim was stroke, therefore, neurologist qualified as expert although defendants were emergency room physician and cardiologist).


Context: This court has held that under certain circumstances, social workers are entitled to absolute immunity.

holding that social workers are not entitled to absolute immunity when deciding whether to open or continue an investigation, or when deciding to enter a parent's name in a central register of abusers, all of which are administrative or investigative by nature rather than prosecutorial

See Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (holding that social workers are entitled to absolute immunity when prosecuting child delinquency petitions); Salyer v. Patrick, 874 F.2d 374, 377-78 (6th Cir.1989) (recognizing the functional orientation of the absolute immunity doctrine and holding that social workers are entitled to absolute immunity when filing child abuse petitions); but see Achterhof v. Selvaggio, 886 F.2d 826, 830 (6th Cir.1989) (holding that social workers are not entitled to absolute immunity when deciding whether to open or continue an investigation, or when deciding to enter a parent’s name in a central register of abusers, all of which are administrative or investigative by nature rather than prosecutorial).


recognizing the functional orientation of the absolute immunity doctrine and holding that social workers are entitled to absolute immunity when filing child abuse petitions


Context: Robinson's reliance upon Eastman is misplaced. First, Judge Vanaskie's order postponing the notification requirement pending further order of the Court operated to delay the Government's obligation to provide notice; it did not entirely relieve the Government of this requirement. Additionally, the Court cannot perceive how Robinson or any of the remaining Defendants would have actually been prejudiced by any delay in receiving notification, where it is undisputed that the defendants received notice through the indictments, and where the Government has made available to the defendants and their counsel the results of the intercepted communications as part of the lengthy pretrial discovery that has transpired in this case.

finding that respondents were not prejudiced by their failure to receive post-intercept notice under either of the district court's inventory orders where the Government made available to all defendants the intercept orders, applications, and related papers and where, in response to pretrial discovery motions, the Government produced transcripts of the intercepted conversations

See Donovan, 429 U.S. at 439 n. 26, 97 S.Ct. 658 (finding that respondents were not prejudiced by their failure to receive post-intercept notice under either of the district court’s inventory orders where the Government made available to all defendants the intercept orders, applications, and related papers and where, in response to pretrial discovery motions, the Government produced transcripts of the intercepted conversations); see also United States v. Davis, 882 F.2d 1334, 1344 & n. 13 (8th Cir.1989) (holding suppression not required where the government mailed the required notice 34 days after the 90-day statutory period because defendant had access to the recorded calls and transcripts and failed to demonstrate actual prejudice).


Context: We begin our analysis by recognizing that while findings that support claims of "misconduct" generally involve repeated acts, under Florida law, "repeated acts in violation of company policy are not necessary to constitute misconduct" within chapter 443.

finding that an employer met its burden of establishing misconduct where an employee admitted kissing a coworker in "clear violation of an express policy" enacted to prevent potential sexual harassment actions against the employer

Ford v. Se. Atl. Corp., 588 So.2d 1039, 1041 (Fla. 1st DCA 1991) (finding that the appellant directly violated company policy when he failed a drug test in violation of the company’s policy that “no employee can be present at work with drugs or alcohol in his system”); see also Sears, Roebuck & Co. v. Unemployment Appeals Comm’n, 463 So.2d 465, 466 (Fla. 2d DCA 1985) (finding that an employer met its burden of establishing misconduct where an employee admitted kissing a coworker in “clear violation of an express policy” enacted to prevent potential sexual harassment actions against the employer); Rosa v. Jefferson’s Stores, Inc., 421 So.2d 818 (Fla. 4th DCA 1982) (affirming denial of unemployment benefits for misconduct where employee allowed her son to use her employee discount card against company policy).

finding that the appellant directly violated company policy when he failed a drug test in violation of the company's policy that "no employee can be present at work with drugs or alcohol in his system"


affirming denial of unemployment benefits for misconduct where employee allowed her son to use her employee discount card against company policy


Context: The ordinary rule of construction of contingent fee contracts is that, in the absence of an express provision which addresses possible appeal, services rendered by an attorney in upholding a judgment on appeal are within the undertaking under the contingent fee contract. The attorney is not entitled to any additional compensation for such appellate representation, even if the reasonable value of all of the services rendered through the successful, final outcome on appeal exceeds the fee calculated under the contingent fee agreement.

See In re Laughlin, 265 F.2d 377 (D.C.Cir.1959); Salinger v. Mason, 194 F. 882, 114 C.C.A. 300 (8th Cir.1912); Tuttle v. Claflin, 88 F. 122, 31 C.C.A. 419 (2d Cir.1898) (contract for services in case pending on appeal in Second Circuit, with fee contingent on reversal, includes services on post-opinion motions and before United States Supreme Court); Jackson v. Campbell, 215 Cal. 103, 8 P.2d 845 (1932); Pocius v. Halvorsen, 30 Ill.2d 73, 195 N.E.2d 137 (1963); Bounougias v. Peters, 49 Ill.App.2d 138, 198 N.E.2d 142 (1964); Knight v. DeMarea, 670 S.W.2d 59 (Mo.App.1984); Quarture v. Allegheny County, 141 Pa.Super. 356, 14 A.2d 575 (1940); Ward v. Richards & Rossano, Inc., 51 Wash.App. 423, 754 P.2d 120 (1988).

agreement to defend against challenge to client's entitlement to property, with increase in fee "contingent upon the result of the trial," construed not to include services as appellee's counsel

But see In re Wise, 172 A.D. 491, 158 N.Y.S. 793 (1916) (agreement to defend against challenge to client’s entitlement to property, with increase in fee “contingent upon the result of the trial,” construed not to include services as appellee’s counsel).


Context: However, under the circumstances of this contested matter, where the Code itself delimits the periods of a debtor's exclusivity generally to 120 days, and 180 days respectively, see 11 U.S.C. SS 1121(b), (c)(3), it would be unfair to demand that the Committees meet a heightened burden.

stating that the bankruptcy court has "the power to vacate a final judgment" and "may exercise this power very liberally."

See In re Durkalec, 21 B.R. 618, 620 (Bankr.E.D.Pa.1982) (stating that the bankruptcy court has “the power to vacate a final judgment” and “may exercise this power very liberally.”).

"Because the preponderance of the evidence standard results in a roughly equal allocation of the risk of. error between litigants, we presume that this standard is applicable in civil actions between private litigants, unless 'particularly important individual interests or rights are at stake.' "

See also Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (“Because the preponderance of the evidence standard results in a roughly equal allocation of the risk of. error between litigants, we presume that this standard is applicable in civil actions between private litigants, unless ‘particularly important individual interests or rights are at stake.’ ”).


Context: As explained above, however, differences in Plaintiffs' disabilities do not prevent commonality because Plaintiffs' alleged harms are similar. Accommodations inquiries are not, as Defendants assert, unsuited to class actions.

finding that plaintiffs with widely different disabilities who were seeking accommodations in California's parole hearings satisfied commonality because of their shared harms

See Davis, 275 F.3d at 868 (finding that plaintiffs with widely different disabilities who were seeking accommodations in California’s parole hearings satisfied commonality because of their shared harms); see also Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 345 (N.D.Cal.2008) (finding an argument concerning a need for “mini-trials” in an ADA case unpersuasive because “[t]he essence of defendants’ argument — that in order to prove the existence of the forest the plaintiffs must individually prove the existence of each tree — is anathema to the very notion of a class action”).

finding an argument concerning a need for "mini-trials" in an ADA case unpersuasive because "[t]he essence of defendants' argument -- that in order to prove the existence of the forest the plaintiffs must individually prove the existence of each tree -- is anathema to the very notion of a class action"


Context: It is specifically noted that, in affirming the result reached by the district court on alternative grounds, this Court has not addressed, and offers no opinion on, the complicated questions of whether a Connecticut probate judge would enjoy absolute immunity for ordering a person to be arrested, as alleged by Collins, or whether a conservator would be immune for requesting such an action by the police.

holding that, while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings, they were not entitled to absolute immunity on a SS 1983 claim that they conspired to present false testimony

See Brookings v. Clunk, 389 F.3d 614 (6th Cir.2004) (holding, by a 2-1 vote, that an Ohio probate judge was entitled to absolute immunity for filing a criminal complaint); see also Tucker v. Outwater, 118 F.3d 930, 932-38 (2d Cir.1997) (discussing the history and application of absolute judicial immunity); cf. San Filippo v. U.S. Trust Co., 737 F.2d 246, 254-55 (2d Cir.1984) (holding that, while a witness and prosecutor were protected by absolute immunity for their participation in judicial proceedings, they were not entitled to absolute immunity on a § 1983 claim that they conspired to present false testimony).


Context: The argument fails because the district court was not required to resolve all aspects of the source of the funds to find that they were drug proceeds for purposes of Guidelines calculations. It needed only to make a preponderance finding that the monies, more likely than not, derived from drug trafficking.

concluding that preponderance finding was satisfied if fact's existence was "more likely than not"

See United States v. Jones, 531 F.3d at 175 (using preponderance standard to determine drug quantity based on currency under Guidelines); see also United States v. Hertular, 562 F.3d 433, 447 (2d Cir.2009) (concluding that preponderance finding was satisfied if fact’s existence was “more likely than not”).


Context: We have affirmed the denial of similar post-trial motions without evidentiary hearings where the court had considered the proffered evidence and found that evidence other than that challenged in the motion sufficiently supported the initial order.

See, e.g., In re D.M., 162 Vt. 33, 36-37, 641 A.2d 774, 776-77 (1994) (upholding denial of V.R.C.E 60(b) motion based on allegation that child had been manipulated into fabricating stories of abuse); cf. West v. West, 139 Vt. 334, 335, 428 A.2d 1116, 1117 (1981) (court should hold hearing where Rule 60 motion neither frivolous nor totally lacking in merit). Whether to hold an evidentiary hearing before deciding a motion to vacate is within the family court’s discretion.


Context: See Second Amended Complaint, P51. With respect to the second element, the Union has alleged that Fucci exercised such control to wrongfully avoid obligations rendered under the arbitration awards and that he did so by dissolving one of the Apollo entities shortly after the final award was issued.

See Directors Guild, 733 F.Supp. at 762 (piercing corporate veil to hold individual hable for award confirmed against corporation under the LMRA); see also Michigan Laborers’ Health Care Fund v. Taddie Const., Inc., 119 F.Supp.2d 698, 703 (E.D.Mich.2000) (use of “the corporate form ... to improperly fail to pay fringe benefits” satisfies the element of “wrong”) (interpreting Michigan law).

use of "the corporate form ... to improperly fail to pay fringe benefits" satisfies the element of "wrong"


Context: The Board correctly concluded that Sandoval's claim was barred. We conclude that no substantial question regarding the outcome of this petition for review exists; therefore, summary affirmance is appropriate. Furthermore, if Sandoval files another document with this court and, upon review, it is determined that the arguments are frivolous, this court will consider the imposition of monetary sanctions.

See In re Solerwitz, 848 F.2d 1573, 1575 (Fed. Cir.1988) (counsel sanctioned for filing and maintaining frivolous appeals in air traffic controller cases that presented legal issues and fact patterns indistinguishable from those presented and decided in the precedents represented by the lead cases); see also Pillay v. Immigration and Naturalization Serv., 45 F.3d 14, 17 (2d Cir.1995) (appellate court has inherent authority to dismiss appeal as frivolous when appeal presents no arguably meritorious issue for consideration); compare Mallard v. United States Dist. Court, 490 U.S. 296, 307-08, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (28 U.S.C. § 1915(d) authorizes federal courts to dismiss frivolous claim filed in forma pauperis, but there is “little doubt they would have power to do so even in the absence of this statutory provision”).


28 U.S.C. SS 1915(d) authorizes federal courts to dismiss frivolous claim filed in forma pauperis, but there is "little doubt they would have power to do so even in the absence of this statutory provision"


Context: Nevertheless, it does not appear that Shelton, as a matter of law, sanctions dismissal at the pleading stage for failure to allege a present ability to tender. Indeed, the procedural posture (decided at the summary judgment stage) and language appearing in that case suggest otherwise. In particular, the Shelton court, in upholding the district court's granting of summary judgment, relied on the particular circumstances and evidence presented and noted the trial judge had specifically determined that the plaintiffs were unable to tender the loan proceeds.

noting the lack of evidence of the borrower's capacity to pay back her loan and holding district court had discretion to demand assurance of the borrower's ability to repay loan proceeds to avoid an unnecessary trial on the merits

See also Yamamoto, 329 F.3d at 1173 (noting the lack of evidence of the borrower’s capacity to pay back her loan and holding district court had discretion to demand assurance of the borrower’s ability to repay loan proceeds to avoid an unnecessary trial on the merits).

explaining "[although the better practice may have been for the trial judge to set terms for rescission by allowing the [plaintiffs] a time certain to tender the net loan proceeds, it was unnecessary under the facts of this ease"

See Shelton, 486 F.3d at 821 (explaining “[although the better practice may have been for the trial judge to set terms for rescission by allowing the [plaintiffs] a time certain to tender the net loan proceeds, it was unnecessary under the facts of this ease”).


Context: Although evidence of pending charges and of misdemeanor convictions is not admissible as bearing on credibility generally, such evidence may be relevant to show a prosecution witness's bias, prejudice, or motivation for testifying. However, cross-examination concerning a pending criminal charge is not probative of bias, motivation, or prejudice unless there is some showing of a nexus between the' pending charge and the witness's testimony.

counsel may not properly propound to a witness questions that can cause a doubt in the jury's mind as to the witness's credibility, when there is no reasonable basis in fact for that interrogation

See People v. King, 179 Colo. 94, 498 P.2d 1142 (1972) (trial court should allow cross-examination where prosecution witness is charged with or threatened with criminal prosecution for other unrelated offenses and witness’s testimony against defendant might be influenced by promise of, hope of, or expectation of immunity or leniency with respect to pending charges); People v. Caldwell, 43 P.3d 663, 670 (Colo.App.2001)(“We fail to discern how another pending ease, not involved in any plea agreement, and the outcome of which was not dependent upon testimony in the instant matter, would be probative of bias, motive, or prejudice. Without such a connection, the witness would not be testifying out of fear or concern of possible jeopardy to the outcome of the pending matter.”); see also People v. Vialpando, 804 P.2d 219 (Colo.App.1990)(counsel may not properly propound to a witness questions that can cause a doubt in the jury’s mind as to the witness’s credibility, when there is no reasonable basis in fact for that interrogation).

trial court should allow cross-examination where prosecution witness is charged with or threatened with criminal prosecution for other unrelated offenses and witness's testimony against defendant might be influenced by promise of, hope of, or expectation of immunity or leniency with respect to pending charges


"We fail to discern how another pending ease, not involved in any plea agreement, and the outcome of which was not dependent upon testimony in the instant matter, would be probative of bias, motive, or prejudice. Without such a connection, the witness would not be testifying out of fear or concern of possible jeopardy to the outcome of the pending matter."


Context: Based on the foregoing analysis, we hold that 8 U.S.C. SS 1252(f)(2) does not apply to motions for injunctive relief pending appeal of habeas corpus decisions. Upon reaching a similar conclusion regarding stays of removal pending petitions for review, Andreiu determined that it was appropriate to apply the traditional standard for interim injunctive relief.

applying traditional standard in alien's appeal from denial of habeas petition challenging extradition

See also Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir.1986) (amended order) (applying traditional standard in alien’s appeal from denial of habeas petition challenging extradition); cf. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (“the general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State’s appeal”).

"the general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State's appeal"