Context: The district court's admission of Officer Nanney's testimony violated Buffington's rights under the Confrontation Clause. Mrs. Buffington's statement was testimonial because she provided Officer Nanney with the information about the blankets and sleeping bag in the context of a police interrogation.

"[Whether defendant] had long guns, shotguns, or rifles in his bedroom was not offered for its truth because the testimony did not bear on [his] alleged possession of the .380 Llama pistol with which he was charged."

United States v. Martin, 897 F.2d 1368, 1371 (6th Cir.1990) [E]ven if an out of court statement is purportedly offered to explain an investigation, it nevertheless may be inadmissible hearsay where it goes ‘to the very heart of the prosecution’s case.’ ”); Cromer, 389 F.3d at 677 (Cl’s statement that defendant’s hangout was a “residence associated with selling drugs” was not merely background evidence because it went to the very heart of the prosecutor’s case against defendant); cf. Gibbs, 506 F.3d at 486-87 (“[Whether defendant] had long guns, shotguns, or rifles in his bedroom was not offered for its truth because the testimony did not bear on [his] alleged possession of the .380 Llama pistol with which he was charged.”).

Crawford, 541 U.S. at 68, 124 S.Ct. 1354; Pugh, 405 F.3d at 399 (statement of identification was testimonial where declarant could reasonably assume that the statement would be used against the suspects in either an investigation or a prosecution). Also, because the statement at issue pertains to the question of whether Buffington possessed the firearms, it goes to the heart of the Government’s case.


Cl's statement that defendant's hangout was a "residence associated with selling drugs" was not merely background evidence because it went to the very heart of the prosecutor's case against defendant


Context: Most relate to the circumstances of the stop of Wiggins' car, which the Court has determined was legal. In any event, none raises any inference of racial animus in the decision to stop, search, forcibly restrain, or arrest Wiggins.

black plaintiff who claimed that white officer was in a good position to see her race from his car, and that officer did not immediately pull her car over when she broke the law, did not sufficiently establish that officer's racial animus motivated the arrest

See Johnson v. Crooks, 826 F.3d 995, 1000 (8th Cir.2003) (black plaintiff who claimed that white officer was in a good position to see her race from his car, and that officer did not immediately pull her car over when she broke the law, did not sufficiently establish that officer’s racial animus motivated the arrest); McKenzie v. City of Milpitas, 738 F.Supp. 1293, 1301 (N.D.Cal.1990) (where the only evidence was that plaintiffs were black and that the police officers “immediately resorted to the use of force in a situation whose objective context did not call for this force,” plaintiffs’ conjecture of racially discriminatory intent could not support their section 1981 claim); cf. Alexis, 67 F.3d at 348 (officer’s statement to black plaintiffs, “You people have no rights. You better shut up your [expletive] mouth before I arrest you too,” gave rise to an inference of racial animus making summary judgment inappropriate).

officer's statement to black plaintiffs, "You people have no rights. You better shut up your [expletive] mouth before I arrest you too," gave rise to an inference of racial animus making summary judgment inappropriate


where the only evidence was that plaintiffs were black and that the police officers "immediately resorted to the use of force in a situation whose objective context did not call for this force," plaintiffs' conjecture of racially discriminatory intent could not support their section 1981 claim


Context: Other courts have sustained complaints that merely refer to the possibility that some law has been violated.

FLSA's anti-retaliation provision protects conduct based on good faith, although mistaken belief that employer's conduct is illegal

See E.E.O.C. v. Romeo Community Sch., 976 F.2d 985, 989 (6th Cir.1992) (plaintiff who told school district that she believed they were “breaking some sort of law” by paying her lower wages than previously paid to male employees had “filed any complaint” under the FLSA); See also Malone v. Signal Processing Tech., 826 F.Supp. 370 (D.Colo.1993) (FLSA’s anti-retaliation provision protects conduct based on good faith, although mistaken belief that employer’s conduct is illegal). However, while a specific law need not be sighted or even known and the claim need not be meritorious, all of the interpretations of the FLSA’s anti-retaliation provision contend that the complaint must contain some sort of allegation of illegality in order to be protected under the Act.

plaintiff who told school district that she believed they were "breaking some sort of law" by paying her lower wages than previously paid to male employees had "filed any complaint" under the FLSA


Context: Though the Texas Supreme Court has impliedly frowned on the Butts/McConnell rule, it has not expressly overruled those cases.

"After a principle, rule or proposition of law has been squarely decided by the [Texas] Supreme Court, ... the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties."

See Guest, 195 S.W.3d at 688-89 (assuming that Butts and McConnell have “survive[d]” and citing several cases espousing a reasonable, but liberal, interpretation of the applicable rules so that the right of appeal is not lost due to overly technical application of rules). We are duty bound to follow the Texas Supreme Court’s authoritative expressions of law. See In re K.S., 76 S.W.3d 36, 49 (Tex.App.Amarillo 2002, no pet.); see also Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964) (“After a principle, rule or proposition of law has been squarely decided by the [Texas] Supreme Court, ... the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.”).

assuming that Butts and McConnell have "survive[d]" and citing several cases espousing a reasonable, but liberal, interpretation of the applicable rules so that the right of appeal is not lost due to overly technical application of rules


Context: . In one area--work on the fee petition--the district court elected not to quantify hours reasonably spent, but assigned a flat dollar figure instead ($5000). The court offered clear, pointed findings to underbrace this determination.

"task of organizing facts or researching and presenting legal precedents has to be more demanding than documenting what a lawyer did and why he or she did it"

MDC IV, supra, at 11. Given the fact that we have regularly encouraged district courts to use lower rates for such drudge work, e.g., Gabriele, 712 F.2d at 1507 ("task of organizing facts or researching and presenting legal precedents has to be more demanding than documenting what a lawyer did and why he or she did it”), we deem this ruling—which equates to allowing approximately 70 hours as time reasonably spent and valuing the time at a rate of roughly $70 per hour—supportable.

See Jacobs, 825 F.2d at 563 (approving $60/hr rate for work on fee petition, as contrasted to $90/hr rate for other work by same attorney); Gabriele, 712 F.2d at 1507 (similar).


Context: The reasonableness of a creditor's reliance, in our view, should be judged in light of the totality of the circumstances. The bankruptcy court may consider, among other things: whether there had been previous business dealings with the debtor that gave rise to a relationship of trust; whether there were any "red flags" that would have alerted an ordinarily prudent lender to the possibility that the representations relied upon were not accurate; and whether even minimal investigation would have revealed the inaccuracy of the debtor's representations.

"[T]he reasonableness of a creditor's reliance will be evaluated according to the particular facts and circumstances present in a given case."

See In re Ledford, 970 F.2d 1556, 1560 (6th Cir.1992) (setting forth circumstances that may be considered in context of section 523(a)(2)(A) reasonableness of reliance determination), cert. denied, — U.S.-, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993); see also In re Mullet, 817 F.2d 677, 679 (10th Cir.1987) (“[T]he reasonableness of a creditor’s reliance will be evaluated according to the particular facts and circumstances present in a given case.”).


Context: In this case, however, describing the variance sentence in mathematical terms is not very helpful because the district court imposed no imprisonment when the advisory guideline range called for 63-78 months' imprisonment. Thus, the variance sentence represents a 100% decrease even though in actual months it is less than the extent of variances that other courts have concluded are reasonable.

See United States v. Collington, 461 F.3d 805, 809 (6th Cir.2006) (affirming as reasonable a variance sentence of 68 months below the advisory guideline range of 188-235 months’ imprisonment); United States v. Hewlett, 453 F.3d 876, 881 (7th Cir.2006) (affirming as reasonable a variance sentence of 240 months’ imprisonment when the advisory guidelines called for life imprisonment); United States v. Krutsinger, 449 F.3d 827, 831 (8th Cir.2006) (affirming as reasonable a variance sentence 79 months below the advisory guideline range of 100-125 months’ imprisonment); cf. Moreland, 437 F.3d at 432 (remanding for imposition of a variance sentence no more than 120 months below the advisory guideline range).

affirming as reasonable a variance sentence of 68 months below the advisory guideline range of 188-235 months' imprisonment


affirming as reasonable a variance sentence of 240 months' imprisonment when the advisory guidelines called for life imprisonment


affirming as reasonable a variance sentence 79 months below the advisory guideline range of 100-125 months' imprisonment


Context: Although Emigrant's denial of Mayers' claim was arbitrary and capricious, and done without a full and fair review, the administrative record is insufficient to determine whether Mayers was terminated "for cause." Only after a more thorough investigation of the allegations raised in Mayers' affidavit will such a determination be possible. The appropriate remedy, however, is not to schedule a trial date but rather is to remand the case to Emigrant's Fiduciary Committee "with instructions to consider additional evidence."

Remand of arbitrary and capricious denial of benefits claim warranted where "additional evidence might produce a reasonable conclusion permitting denial of [plaintiffs] claim."

Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir.1995) (“Because district courts are required to limit their review to the administrative record, it follows that, if upon review a district court concludes that the [plan administrator’s] decision was arbitrary and capricious, it must remand to the [plan administrator] with instructions to consider additional evidence unless no new evidence could produce a reasonable conclusion permitting denial of the claim or remand would otherwise be a ‘useless formality.’ ”); see, e.g., Pepe v. Newspaper & Mail Deliveries’-Publishers’ Pension Fund, 559 F.3d 140, 149 (2d Cir.2009) (Remand of arbitrary and capricious denial of benefits claim warranted where “additional evidence might produce a reasonable conclusion permitting denial of [plaintiffs] claim.”); Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 630 (2d Cir.2008) (“A full and fair review concerns a beneficiary’s procedural rights, for which the typical remedy is remand for further administrative review.”); Magee v. Metro. Life Ins. Co., 07 Civ. 8816, 2009 WL 3682423 at *1 (S.D.N.Y. Oct. 15, 2009) (“MetLife failed to consider much of the evidence.

"Because district courts are required to limit their review to the administrative record, it follows that, if upon review a district court concludes that the [plan administrator's] decision was arbitrary and capricious, it must remand to the [plan administrator] with instructions to consider additional evidence unless no new evidence could produce a reasonable conclusion permitting denial of the claim or remand would otherwise be a 'useless formality.' "


"A full and fair review concerns a beneficiary's procedural rights, for which the typical remedy is remand for further administrative review."


Context: "Rules authorizing discovery ... are a matter of legislative grace."

recognizing "[tjhere is no general constitutional right to discovery in a criminal case"

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); Public Citizen v. Liggett Group, Inc., 858 F.2d at 788 (Seattle Times “focused on the fact that discovery is ‘a matter of legislative grace’ ”); see also Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (recognizing “[tjhere is no general constitutional right to discovery in a criminal case”).

Seattle Times "focused on the fact that discovery is 'a matter of legislative grace' "


Context: Nor does the Remand Redetermination mention that Commerce asked for and received source data for the data in ques tion. In this circumstance, the failure to address the considerable amount of evidence contrary to the Department's finding that the data were not from publicly available sources casts doubt upon the validity of the finding itself.

"The substantiality of evidence must take into account whatever in the record fairly detracts from its weight."

See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”); see also Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed. Cir. 2007) (“Although a reviewing court must take into account contradictory evidence or any evidence in the record that undermines the agency’s finding, the substantial evidence test does not require that there be an absence of evidence detracting from the agency’s conclusion.”) (citing Universal Camera, 340 U.S. at 487-88).

"Although a reviewing court must take into account contradictory evidence or any evidence in the record that undermines the agency's finding, the substantial evidence test does not require that there be an absence of evidence detracting from the agency's conclusion."


Context: . Only four published opinions have read section 1447(c) to authorize an award of fees or costs against plaintiffs. Three involved a removal that was, at the outset, improper, and thus they are not inconsistent with the conclusion we reach today.

See Vaughan, 227 F. 364 (removal based on diversity improper because plaintiff mispled residency in complaint); Duarte v. Donnelley, 266 F.Supp. 380, 384 (D.Haw.1967) (removal improper because amount in controversy was below jurisdictional limit); Barraclough v. ADP Automotive Claims Servs., Inc., 818 F.Supp. 1310 (N.D.Cal.1993) (removal improper because plaintiff's only federal claim was, by her own admission, frivolous).

But see Clark v. Safeway Stores, Inc., 117 F.Supp. 583 (W.D.Mo.1953) (remand forced by plaintiff's subsequent amendment of complaint to join a local defendant).


removal improper because amount in controversy was below jurisdictional limit


removal improper because plaintiff's only federal claim was, by her own admission, frivolous


Context: Since kk Liquormart, the Third, Fourth, Sixth, Seventh, and Eleventh Circuits have concluded that the Court's citation to American Mini Theatres and Barnes requires that alcohol regulations of SOBs be analyzed in light of the First Amendment tests contained therein.

See Ben’s Bar v. Vill. of Somerset, 316 F.3d 702, 712 (7th Cir.2003) (concluding that prohibitions on the sale of alcohol at adult entertainment establishments must be analyzed in light of American Mini Theatres and Barnes); see also 181 South Inc. v. Fischer, 454 F.3d 228, 233 (3d Cir.2006) (agreeing with the Seventh Circuit that prohibitions on the sale of alcohol at adult entertainment establishments must be analyzed in light of American Mini Theatres and Barnes); Odie v. Decatur County, 421 F.3d 386, 399 (6th Cir.2005) (agreeing with the circuit courts that have interpreted kk Liquor- mart’s “reaffirmation of LaRue’s holding to mean that the LaRue regulations would have survived intermediate scrutiny' — -and ... that they would have had to survive such scrutiny to comport with the First Amendment”); Giovani Carandola Ltd. v. Bason, 303 F.3d 507, 513 n. 2 & 519 (4th Cir.2002) (noting the 44 Liquormart Court’s reliance on First Amendment cases and holding that “the result reached in LaRue remains sound not because a state enjoys any special authority when it burdens speech by restricting the sale of alcohol, but rather because the regulation in LaRue complied with the First Amendment”); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 996 (11th Cir.1998) (reaffirming that the Barnes intermediate level of scrutiny, derived from United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), applies to adult entertainment liquor regulations).


agreeing with the circuit courts that have interpreted kk Liquor- mart's "reaffirmation of LaRue's holding to mean that the LaRue regulations would have survived intermediate scrutiny' -- -and ... that they would have had to survive such scrutiny to comport with the First Amendment"


noting the 44 Liquormart Court's reliance on First Amendment cases and holding that "the result reached in LaRue remains sound not because a state enjoys any special authority when it burdens speech by restricting the sale of alcohol, but rather because the regulation in LaRue complied with the First Amendment"


Context: The Supreme Court has also commented on language and the Constitution in other contexts. For example, the Supreme Court has stated that "the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those bom with English on the tongue."

stating that the Constitution protects "those who speak another tongue"

Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding unconstitutional a state law which restricted the teaching of foreign languages); see also Farrington v. Tokushige, 273 U.S. 284, 298, 47 S.Ct. 406, 71 L.Ed. 646 (1927) (stating that the Constitution protects “those who speak another tongue”).


Context: To the extent Plaintiffs are challenging the City ordinances on the ground that they impermissibly distinguish between MFUs and free-standing restaurants, Plaintiffs' challenge fails. First, the City's decision to distinguish MFUs from freestanding restaurants is fully acceptable under the Constitution.

"It is primarily for the State to select the kinds of businesses which shall be the subjects of regulation, and if the business affected is one which may be properly the subject of such legislation, it is no valid objection that similar regulations are not imposed upon other businesses of a different kind."

See, e.g., Lieberman v. Van De Carr, 199 U.S. 552, 563, 26 S.Ct. 144, 50 L.Ed. 305 (1905) (“It is primarily for the State to select the kinds of businesses which shall be the subjects of regulation, and if the business affected is one which may be properly the subject of such legislation, it is no valid objection that similar regulations are not imposed upon other businesses of a different kind.”); see also New Orleans, 427 U.S. at 303, 96 S.Ct. 2513 (“States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.”); Zucht v. King, 260 U.S. 174, 176, 43 S.Ct. 24, 67 L.Ed. 194 (1922) (“[I]n the exercise of the police power reasonable classification may be freely applied and that regulation is not violative of the equal protection clause merely because it is not all-embracing.”).

"States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude."


"[I]n the exercise of the police power reasonable classification may be freely applied and that regulation is not violative of the equal protection clause merely because it is not all-embracing."


Context: The seizure by the arresting officer of the pack of cigarettes, which was in plain view, was a reasonable confiscation of property that was illegal for Thomas to possess at that time and place.

the "plain view" doctrine "permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be"

See Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 815-16, 70 L.Ed.2d 778 (1982) (the “plain view” doctrine “permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be”); State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990) (“The ‘plain view’ doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object.”); cf. Johnson v. Multiple Misc. Items 1-424, 523 N.W.2d 238 (Minn.Ct.App.1994) (defining contraband as property that is illegal for a particular offender to possess, even if possession of such property by another would not be illegal). Thus, the subsequent discovery and seizure of the marijuana was lawful as well.


"The 'plain view' doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object."


Context: This evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that Davis did not justifiably use deadly force to protect himself -- after Cameron already had been shot in the head -- from Cameron's assault. Or the jury simply could have disbelieved Davis's claim of self-defense, given the number of gunshots fired.

See also Thomas v. State, 174 Ga. App. 560 (330 SE2d 777) (1985) (upholding conviction for voluntary manslaughter when appellant hit the victim on the back of the head with a vodka bottle after the victim made a homosexual advance to him, causing appellant to fear a sexual assault).

evidence of multiple gunshots authorized jury to reject defendant's claim of self-defense

See Stanley v. State, 254 Ga. 376 (329 SE2d 500) (1985) (evidence of multiple gunshots authorized jury to reject defendant’s claim of self-defense). The evidence was also sufficient to show beyond a reasonable doubt that Davis was guilty of voluntary manslaughter in that he shot and killed Cameron out of “a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.”


Context: Because there is no constitutional right to a jury trial for claims brought under Minn.Stat. SS 176.82, subd. 1, the next task is to determine whether the statute itself provides a jury trial right. Minnesota courts have recognized that the Legislature has chosen to withhold the right to a jury trial in Minn.Stat. SS 176.82, subd. 1.

See Minn.Stat. § 176.301 (2012) (“When a workers’ compensation issue is present in the district court action, the court may try the action itself without a jury, or refer the matter to the chief administrative law judge for assignment to a compensation judge.” (emphasis added)); see also Breimhorst, 227 Minn. at 434, 35 N.W.2d at 734 (concluding that a remedy provided by the WCA did not include the right a jury trial).

concluding that a jury trial was not required because "section 176.82 has no element of a common law claim which could otherwise support the right to a jury trial"

Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 427 (Minn.App.1992) (concluding that a jury trial was not required because “section 176.82 has no element of a common law claim which could otherwise support the right to a jury trial”), rev. denied (Minn. June 17, 1992).


Context: Finally, even if this court were to find that the effective date of INA SS 242(a)(2)(B) renders it inapplicable to the instant case, this court still lacks the authority to review the District Director's decision to deny an extension of voluntary departure. Prior to the enactment of the IIRIRA, the District Director had the sole authority to grant voluntary departures under the former 8 U.S.C.A. SSSS 1252(b), 1254(e).

recognizing limited jurisdiction of judiciary to review such decisions under 8 C.F.R. SS 244.2 and holding that court lacked authority to review INS's discretionary grant of voluntary departure

See Kaczmarczyk, 933 F.2d at 598 (recognizing limited jurisdiction of judiciary to review such decisions under 8 C.F.R. § 244.2 and holding that court lacked authority to review INS’s discretionary grant of voluntary departure); see also Nocon v. INS, 789 F.2d 1028, 1034 (3rd Cir.1986) (Board of Immigration Appeals has no authority to grant extension because sole authority rests with District Director); Lalani, 105 F.3d at 338 (noting that there is no meaningful standard for reviewing decisions made under 8 C.F.R. § 244.2). But see Castaneda v. INS, 23 F.3d 1576, 1579 (10th Cir.1994) (noting that some courts have recognized that District Director’s refusal to extend voluntary departure is reviewable in District Court pursuant to the general jurisdictional grant set out in 8 U.S.C. § 1329.) (citing Williams v. INS, 795 F.2d 738, 745 (9th Cir.1986)).


Context: Although there is room for reasonable disagreement as to the force of some of these factors in the instant case, the important point, which the majority fails to recognize, is that whatever the impact of the first four factors, retroactive application is appropriate only if the court finds that the first four factors are counterbalanced by the fifth factor -- the statutory interest in applying a new rule. "Unless the burden of imposing the new standard is de minimis, or the newly discovered statutory design compels its retroactive application, the principles which underlie the very notion of an ordered society, in which authoritatively established rules of conduct may fairly be relied upon, must preclude its retroactive effect."

"The statutory interest in applying the new rule despite individual reliance is, of course, the crucial consideration in the context of requiring an agency to apply one of its rules retroactively."

Retail, Wholesale, 366 F.2d at 392. See id. at 390 (“courts have not infrequently declined to enforce administrative orders when in their view the inequity of retroactive application has not been counterbalanced by sufficiently significant statutory interests.”); see also Sierra Club v. EPA, 719 F.2d 436, 468 (D.C.Cir.1983), cert. denied, 468 U.S. 1204, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984) (“The statutory interest in applying the new rule despite individual reliance is, of course, the crucial consideration in the context of requiring an agency to apply one of its rules retroactively.”).

"courts have not infrequently declined to enforce administrative orders when in their view the inequity of retroactive application has not been counterbalanced by sufficiently significant statutory interests."


Context: In the present case, appellant argued at trial that the State was required to produce the cocaine she distributed to Trooper Elzey in order to establish that she had committed the offenses charged. This was not a correct statement of law. The nature of the substance distributed to the trooper could have been proved by other, sufficient evidence.

One 1979 Cadillac Seville v. State, 68 Md.App. 467, 471-2, 513 A.2d 927 (1986) (admission by owner of vehicle that substances found in the vehicle were marijuana and cocaine was sufficient evidence upon which to base forfeiture of the vehicle).

See also Best v. State, 79 Md.App. 241, 255, 556 A.2d 701 (1989) (recognizing that identity of a substance as cocaine may be proved by circumstantial evidence).


Context: Turning to Defendant's challenge to her plea, we first address her undisputed claim that she was not informed that as a result of her plea, she would have a felony conviction, she would have difficulty in obtaining credit, securing employment, obtaining Section 8 housing and federal financial aid, and that her conviction would preclude her from owning a firearm and would subject her future testimony to impeachment. In our view, these consequences of her plea are collateral consequences that' she need not know to enter a valid plea. Defendant cites no case where a court found that knowledge of any of these consequences was necessary for a plea to be knowing. And courts have ruled that defendants do not need to be aware of collateral consequences similar or identical to several of those she names.

See United States v. Nicholson, 676 F.3d 376, 382 (4th Cir.2012) (loss of federal benefits); Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir.2003) (revocation of pilot’s license); United States v. Campusano, 947 F.2d 1, 4-5 (1st Cir.1991) (use in evidence in federal trial of defendant’s guilty plea in state prosecution); United States v. Crowley, 529 F.2d 1066, 1072 (3rd Cir.1976) (defendant would lose civil-service job and conviction was for a felony); see also United States v. Youngs, 687 F.3d 56, 61 (2nd Cir.2012) (possibility of civil commitment after serving criminal sentence is collateral consequence); Steele v. Murphy, 365 F.3d 14, 18 (1st Cir.2004) (possible life commitment as a sexually dangerous person is collateral consequence).

use in evidence in federal trial of defendant's guilty plea in state prosecution


possible life commitment as a sexually dangerous person is collateral consequence


defendant would lose civil-service job and conviction was for a felony


Context: Given the highly deferential AEDPA standard, it is even possible that if Pennsylvania merely had a generic burglary statute that did not differentiate between burglarizing an occupied or unoccupied building, a reasonable application of the "fact of a prior conviction" exception might have permitted the judge to look at facts underlying the prior burglary conviction to determine whether Garrus was convicted of burglarizing an occupied building.

finding that Apprendi allows a sentencing judge to find "not only the mere fact of previous convictions but [certain] other related issues as well"

See, e.g., United States v. Santiago, 268 F.3d 151, 153, 157 (2d Cir.2001) (finding that Apprendi allows a sentencing judge to find “not only the mere fact of previous convictions but [certain] other related issues as well”); cf. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding that under a federal “three strikes” law, the sentencing judge may only find facts that were necessary to the prior conviction).

holding that under a federal "three strikes" law, the sentencing judge may only find facts that were necessary to the prior conviction


Context: Only twice prior to Strickland has a New Jersey court purported to apply a "reasonable competence" standard.

trial counsel departed from "the accepted standard of competence demanded of attorneys in criminal cases"

Id. at 519; see also State v. Marrero, 155 N.J.Super. 567,570 (App.Div.1978) (trial counsel departed from “the accepted standard of competence demanded of attorneys in criminal cases”); cf. State v. Sugar, 84 N.J. 1, 17 (1980) (without applying standard, court notes that counsel must be “reasonably competent”).

without applying standard, court notes that counsel must be "reasonably competent"


Context: We note that this court has not in past cases required the district court to make specific findings regarding every factor of section 3622. We have remanded for findings on section 3622 where the district court made no findings with respect to any of the factors.

interpreting 18 U.S.C. SS 3572, a section similar to section 3622, not to require specific factual findings

See also United States v. Marquez, 941 F.2d 60, 65 (2nd Cir.1991) (interpreting 18 U.S.C. § 3572, a section similar to section 3622, not to require specific factual findings).

interpreting the word "shall" in section 3622 to require specific factual findings to be made for each of the nine factors enumerated in the statute

But see United States v. Harvey, 885 F.2d 181, 182-83 (4th Cir.1989) (interpreting the word “shall” in section 3622 to require specific factual findings to be made for each of the nine factors enumerated in the statute).


Context: The Boyd Family challenges the relevancy of most of the evidence listed above, as Officer Paine did not know of its existence prior to shooting Cammerin, and the only issue in front of the jury was whether Officer Paine's actions were reasonable based on his perspective at the time.

upholding the magistrate judge's evidentiary ruling to exclude evidence that the victim of a police shooting wanted to be killed by the police, on the ground that the evidence was not relevant to the objective reasonableness test, as the events immediately prior to the use of force were undisputed

See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”); see also Palmquist v. Selvik, 111 F.3d 1332, 1341 (7th Cir.1997) (upholding the magistrate judge’s evidentiary ruling to exclude evidence that the victim of a police shooting wanted to be killed by the police, on the ground that the evidence was not relevant to the objective reasonableness test, as the events immediately prior to the use of force were undisputed).

"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."


Context: The government agreed. The court's finding is consistent with the growing list of courts that have reached the same conclusion following Johnson.

holding that the vagueness doctrine does not apply to advisory sentencing guidelines, notwithstanding the government's position that the residual clause of SS 4B1.2(a

No. 3:15-00021, 2015 WL 5895199, at *7 (S.D.W.Va. Oct. 8, 2015) (“This Court holds that enhancing a convicted individual’s sentence under the residual clause of the career offender enhancement, § 4B1.2(a)(2), denies due process of law because the residual clause is unconstitutionally vague.”); and Petrillo v. United States, 147 F.Supp.3d 9, 21, No. 3:08-CV-1204 (JBA), 2015 WL 7574744, at *7 (D.Conn. Nov. 25, 2015) (“Because the Government acknowledges that the Guidelines may be unconstitutionally vague and because the Supreme Court recently held that language identical to § 4B1.2 is unconstitutionally vague, by the Government’s own admission, if [the defendant] were sentenced today, he would not be sentenced as a career offender.”); but see United States v. Matchett, 802 F.3d 1185, 1195 (11th Cir.2015) (holding that the vagueness doctrine does not apply to advisory sentencing guidelines, notwithstanding the government’s position that the residual clause of § 4B1.2(a) was unconstitutionally vague following Johnson).

"The concerns about judicial inconsistency that motivated the Court in Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally vague."

See, e.g., United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir.2015) (“The concerns about judicial inconsistency that motivated the Court in Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally vague.”); United States v. Darden, 605 Fed.Appx. 545, 546 (6th Cir. 2015) (per curiam) (holding a defendant could not receive an enhanced sentenced under the residual clause of § 4B1.2(a)(2) following Johnson); Cornejo-Lopez, 2015 WL 7274060, at *7 (“Just as the iteration of the [residual] clause in 18 U.S.C. § 924(e) is unconstitutionally vague, so too is the residual clause of U.S.S.G. 4B1.2.”); United States v. Litzy, 137 F.Supp.3d 920, 930, CR.


"Just as the iteration of the [residual] clause in 18 U.S.C. SS 924(e


"This Court holds that enhancing a convicted individual's sentence under the residual clause of the career offender enhancement, SS 4B1.2(a)(2), denies due process of law because the residual clause is unconstitutionally vague."


"Because the Government acknowledges that the Guidelines may be unconstitutionally vague and because the Supreme Court recently held that language identical to SS 4B1.2 is unconstitutionally vague, by the Government's own admission, if [the defendant] were sentenced today, he would not be sentenced as a career offender."


Context: Indeed, the Seventh Circuit has recently called into question the practice of reviewing state regulations under the guise of the due process clause. Nonetheless, neither the Seventh Circuit nor the Supreme Court has "completely extinguished" the doctrine of substantive due process.

"A substantive due process claim can be brought in the context of property interests."

See Schroeder, 927 F.2d at 961 (conceding that substantive due process has been “saved from total formlessness without being completely extinguished”); see also Swartz v. Scruton, 964 F.2d 607, 609 (7th Cir.1992) (“A substantive due process claim can be brought in the context of property interests.”).

conceding that substantive due process has been "saved from total formlessness without being completely extinguished"


Context: This conclusion un doubtedly applies to numerous other en- - forcement actions taken by the Bureau for the 18 months of its existence before Richard Cordray was properly confirmed by the Senate in July 2013. But while the Supreme Court understands the practical consequences of invalidating large numbers of agency actions, it has nevertheless done so when the law requires.

holding that because there was no quorum of validly appointed board members, the NLRB "lacked authority" to act," and the enforcement order was therefore "void ab initio "

See Noel Canning v. NLRB, 705 F.3d 490, 493 (D.C.Cir.2013), aff'd 134 S.Ct. 2550 (2014) (holding that because there was no quorum of validly appointed board members, the NLRB “lacked authority" to act,” and the enforcement order was therefore “void ab initio ”); see also New Process Steel, L.P. v. NLRB, 560 U.S. 674, 687-88, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010); id. at 689, 130 S.Ct. 2635 (Kennedy, J., dissenting) (“Under the Court’s holding, the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months in the course of carrying out its responsibility....”).

"Under the Court's holding, the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months in the course of carrying out its responsibility...."


Context: This statutory provision, together with the structurally inclusive nature of workers' compensation insurance, creates a relationship of trust and reliance between injured employees and workers' compensation insurers. I would hold, as have several other courts, that this relationship places a tort-based duty on insurers to deal in good faith with injured employees.

nature of workers' compensation insurance, combined with section of workers' compensation statute requiring that insurance policies contain clause making insurer primarily liable to employee, creates tort duty on part of insurer to deal in good faith with employee

See Savio, 706 P.2d at 1272-74 (nature of workers’ compensation insurance, combined with section of workers’ compensation statute requiring that insurance policies contain clause making insurer primarily liable to employee, creates tort duty on part of insurer to deal in good faith with employee); see also Case v. Toshiba Am. Info. Sys., Inc., 7 F.3d 771, 773 (8th Cir.1993) (recognizing duty to deal in good faith in workers’ compensation setting); Hollman v. Liberty Mut. Ins. Co., 712 F.2d 1259, 1262 (8th Cir.1983) (same); Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So.2d 55, 58 (Miss. 1984) (same); Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888, 894 (1991) (same); Aranda, 748 S.W.2d at 212-13 (same).

recognizing duty to deal in good faith in workers' compensation setting


Context: This is no less than the protection afforded by the Fifth Amendment.

See The Pillsbury Co. v. Conboy, 459 U.S. 248, 254-55, 74 L. Ed. 2d 430, 103 S. Ct. 608 (1983) ("The power to compel testimony is limited by the Fifth Amendment, and . . . any grant of immunity must be coextensive with the privilege."); see also U.S. v. Apfelbaum, 445 U.S. 115, 123, 126, 63 L. Ed. 2d 250, 100 S. Ct. 948 (1980) (While use immunity must be confined to the scope required by the Fifth Amendment, "perjury prosecutions are permissible for false answers to questions following the grant of immunity."). We accordingly hold that the Virgin Islands immunity statute affords protection commensurate with the Fifth Amendment.


Context: In any event, "[i]n general, a jury may change or modify its verdict up to the point the verdict is accepted by the court and the jury is formally discharged." Thus, a trial court has the authority before accepting a verdict and before discharging a jury to send it back to correct a mistake or to clarify an ambiguity in its verdict.

See Burchett v. Commonwealth, 734 S.W.2d 818, 820 (Ky.Ct.App.1987); see also State v. Jefferson, 938 S.W.2d 1, 21-22 (Tenn.Crim.App. 1996)(upon return of incomplete or inaccurate verdict, trial court may provide supplemental instruction and require that the jury retire to consider further its verdict); cf. Reifschneider v. City & County of Denver, 917 P.2d 315, 318 (Colo.App.1995)(“If inconsistencies in a jury’s verdict indicate confusion, it is appropriate for the court to resubmit the verdict to the jury for clarification and, if necessary, to submit supplemental instructions.”).

"If inconsistencies in a jury's verdict indicate confusion, it is appropriate for the court to resubmit the verdict to the jury for clarification and, if necessary, to submit supplemental instructions."


Context: . Morgan styled one of her claims "negligence" rather than "medical malpractice" and argues that this distinction affects whether expert medical testimony is necessary to prove proximate cause. We do not believe it does. The relevant question is whether a lay juror could, without the assistance of expert medical testimony, sort out the evidence of causation, not whether the claim is styled "medical malpractice."

See Fox v. Brigham Young Univ., 2007 UT App 406, ¶ 23, 176 P.3d 446 (requiring expert medical testimony to prove causation in an ordinary negligence case); see also Cunningham v. Riverside Health Sys., Inc., 33 Kan.App.2d 1, 99 P.3d 133, 136 (2004) ("Whether a case is classified as ordinary negligence or medical malpractice is not determinative of whether expert testimony is required.").


Context: If the police had probable cause to seek a warrant at 2:00 a. m., can they be faulted for declining to proceed that soon?

applying the same rule in the context of a car search: "[W]e know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment"

See United States v. Gardner, 553 F.2d 946, 948 (5th Cir. 1977) (“the reasonableness of a search under exigent circumstances is not foreclosed by the failure to obtain a warrant at the earliest practicable moment”), cert. denied, 434 U.S. 1011, 98 S.Ct. 722, 54 L.Ed.2d 753 (1978); United States v. Ferrara, 539 F.2d 799, 802 (1st Cir. 1976) (same); Commonwealth v. Forde, 367 Mass. 798, 802, 329 N.E.2d 717, 720 (1975) (same); cf. Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974) (applying the same rule in the context of a car search: “[W]e know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment”).

court evaluates claim of exigent circumstances from the time the police first "had a right to obtain a warrant"

See United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974) (court evaluates claim of exigent circumstances from the time the police first “had a right to obtain a warrant”). Or, did the police use reasonable judgment in seeking more conclusive evidence than a lost wallet before deciding, at 4:30 a. m., to move against their prime suspect?


"the reasonableness of a search under exigent circumstances is not foreclosed by the failure to obtain a warrant at the earliest practicable moment"


Context: Accordingly, the feasibility exception has not been applied where a defendant merely suggests that an original design is acceptable, or argues about tradeoffs involved in taking precautionary measures. Where, however, a defendant's evidence and arguments are framed in categorical terms, are presented in the form of superlatives, or, more generally, upset the balance of fairness that Rule 407 seeks to maintain, courts have found the exceptions applicable.

allowing admission of evidence of modifications to a rifle's safety mechanism for impeachment, where the manufacturer's representative repeatedly characterized the original mechanism as the safest possible

See, e.g., Wood, 70 F.3d at 1208 (holding that, where the defendant’s expert described the product design using superlatives, namely, the “safest [design] you could possibly put on the machine,” the plaintiff should have been permitted to impeach the expert by inquiring why the safest design possible was modified following the plaintiff’s accident); cf. Muzyka v. Remington Arms Co., 774 F.2d 1309, 1313-14 (5th Cir.1985) (allowing admission of evidence of modifications to a rifle’s safety mechanism for impeachment, where the manufacturer’s representative repeatedly characterized the original mechanism as the safest possible).

holding that, where the defendant's expert described the product design using superlatives, namely, the "safest [design] you could possibly put on the machine," the plaintiff should have been permitted to impeach the expert by inquiring why the safest design possible was modified following the plaintiff's accident


Context: Faber avers -- and Menard does not dispute -- that he was plainly told that he was in no position to bargain: he could either sign the contract as it stood, or be replaced by a younger employee who would cost Menard less, with the added stinger that he was told that Menard would not, or that Larry Menard could not, negotiate terms of individual contracts. Moreover, Me-nard is a large national company, and Fa-ber was but one employee of that company, and even if he was a "managerial" employee, he was in the relatively low position of store manager for a multi-store, multi-state chain, so that Faber was not only at a distinct disadvantage in bargaining power, but was also subject to very different financial pressures than Menard.

noting that the employment agreement for all new employees with a national chain store was "a prerequisite for employment" that the applicants were not permitted to modify

See Gentile, 479 N.W.2d at 609 (considering whether the parties were under any particular financial pressures); see also Circuit City, 279 F.3d at 893 (noting that the employment agreement for all new employees with a national chain store was “a prerequisite for employment” that the applicants were not permitted to modify)


Context: As one example of such a sufficiently distant event, the Court cited a "collapse of the collective-bargaining relationship, as evidenced by decertification of the union." Id.)

Brown, 50 F.3d at 1057 (“If employees wish to seek the protections of the Sherman Act, they may forego unionization or even decertify their unions.”); see also NBA v. Williams, 857 F.Supp. 1069, 1078 (S.D.N.Y.1994) (pre dieting the players can avoid the labor injunction if they disclaim the union as their collective bargaining agent); Powell v. NFL, 764 F.Supp. 1351, 1356-57 (D.Minn.1991) (holding that the ongoing collective bargaining relationship ends, and the nonstatutory labor exemption no longer applies, when the players vote to repudiate the union).

"If employees wish to seek the protections of the Sherman Act, they may forego unionization or even decertify their unions."


holding that the ongoing collective bargaining relationship ends, and the nonstatutory labor exemption no longer applies, when the players vote to repudiate the union


Context: Granting Mr. Reimer the benefit of all favorable inferences from the record, a jury could reasonably conclude that based on the information he possessed at the time and given the task he was performing, the risk of being burned while examining the School District's boiler on March 10, 1998, was neither a reasonably apparent danger nor a reasonably foreseeable incidental risk.

applying Minnesota law and affirming summary judgment where "it is undisputed that Walk placed his hand in the trough knowing that the auger was engaged and knowing that the moving blades posed a substantial risk to him."

Cf. Walk v. Starkey Mach., Inc., 180 F.3d 937, 940 (8th Cir.1999) (applying Minnesota law and affirming summary judgment where “it is undisputed that Walk placed his hand in the trough knowing that the auger was engaged and knowing that the moving blades posed a substantial risk to him.”); Andren, 465 N.W.2d at 105-06 (affirming summary judgment where evidence conclusively demonstrated that plaintiff knew and appreciated the danger of lighting a cigarette in the presence of liquid propane gas and knew and appreciated that there was a liquid propane gas leak in the basement); Armstrong, 284 N.W.2d at 353 (“[A]ny improper operation of the release valve merely increased the risk of a BLEVE; it did not remove the occurrence of a BLEVE from the risks reasonably anticipated by the ... firemen.”).

"In order to assume the risk of a particular act or condition one must know and appreciate the danger itself and not just the facts which constitute it."

See Wegscheider, 289 N.W.2d at 170 (“In order to assume the risk of a particular act or condition one must know and appreciate the danger itself and not just the facts which constitute it.”).


affirming summary judgment where evidence conclusively demonstrated that plaintiff knew and appreciated the danger of lighting a cigarette in the presence of liquid propane gas and knew and appreciated that there was a liquid propane gas leak in the basement


Context: In cases challenging state criminal jury instructions in general, the United States Supreme Court has consistently deferred to the states.

" '[R]eview by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.' "

See Cupp v. Naughten, 414 U.S. 141, 149, 94 S.Ct. 396, 401, 38 L.Ed.2d 368 (1973) (“ ‘[R]eview by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.’ ”) (quoting McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943)).

"The administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern."

See also Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324-25, 90 L.Ed. 1382 (1946) (“The administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern.”).


Context: The Second Circuit has repeatedly held that a general creditor lacks the property interest required by Section 853(n)(2) in order to confer standing to pursue a claim in an ancillary proceeding. See, e.g., DSI Assocs.

holding that a claimant without an interest in a "particular, specific asset" lacks standing to initiate ancillary proceeding

LLC, 496 F.3d at 184 (holding that a claimant without an interest in a “particular, specific asset” lacks standing to initiate ancillary proceeding); Ribadeneira, 105 F.3d at 836-37 (holding that general creditor lacked standing to petition to modify an order of forfeiture); Coluccio, 51 F.3d at 339 (holding that general creditors do not have standing to contest forfeitures); Schwimmer, 968 F.2d at 1581; see also Agnello, 344 F.Supp.2d at 372 (holding that party that did not establish ownership in specific funds was a general creditor that only had a right to payment). Accordingly, the court agrees with the government that Griffin lacks standing to pursue a claim to the funds subject to the preliminary orders of forfeiture. (Gov.


holding that general creditor lacked standing to petition to modify an order of forfeiture


holding that general creditors do not have standing to contest forfeitures


Context: Although an unnamed class member, Kaufmann has standing to appeal, without first intervening.

See Devlin v. Scardelletti 536 U.S. 1, 14, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (holding that unnamed class members who object in a timely manner to approval of a settlement at a fairness hearing may appeal without first intervening); See also Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1307 (3d Cir.1993) (holding that an unnamed plaintiff that did not intervene nonetheless had standing to appeal a class action settlement).


Context: The evidence was clearly sufficient to show that Boyd was a drug dealer and that he distributed crack as charged in the indictment, but it 'did not show that he was engaged in a conspiratorial agreement to violate the drug laws. None of the three women who testified against Boyd indicated that she worked for Boyd or solicited drug sales on his behalf, or otherwise acted in concert with Boyd to achieve a common purpose beyond their desire to purchase drugs from him.

"An agreement to violate narcotics laws may be inferred from 'concert of action.' "

See United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993) (“An agreement to violate narcotics laws may be inferred from ‘concert of action.’ ”); see also United States v. Mitchell, 484 F.3d 762, 769 (5th Cir.2007) (holding that co-conspirators’ concert of action allowed jury to infer an agreement where defendants agreed to purchase crack cocaine together for distribution, agreed to travel together, and agreed to have another co-conspirator conduct the transaction on behalf of all of them). The only motive apparent from the testimony for the women helping Franklin was their hope that Franklin would either share the drugs with them or pay them for their assistance.

holding that co-conspirators' concert of action allowed jury to infer an agreement where defendants agreed to purchase crack cocaine together for distribution, agreed to travel together, and agreed to have another co-conspirator conduct the transaction on behalf of all of them


Context: Corroboration may be established in a variety of ways as illustrated by the cited cases. Thus, to be corroborative, the evidence must be separate and apart from that already given and tend to strengthen or confirm the matter corroborated.

"Corroborative evidence tends to corroborate or to confirm, whereas cumulative evidence merely augments or tends to establish a point already proved by other evidence."

State v. Kennedy, 122 Ariz. 22, 26, 592 P.2d 1288, 1292 (App.1979) (“Corroborative evidence tends to corroborate or to confirm, whereas cumulative evidence merely augments or tends to establish a point already proved by other evidence.”); See also Huff, 609 F.2d at 292 (“The probability that the statement is true ... [is] shown by corroborative evidence.”)

"The probability that the statement is true ... [is] shown by corroborative evidence."


Context: Houseboat has not shown that litigating the case in Florida would so inconvenience it as to deprive it of its day in court, nor has it demonstrated that litigating the case in Florida would harm this forum. Based on the foregoing and absent any evidence of fraud, we conclude that Houseboat knowingly signed the agreement and is thereby bound by the forum selection clause.

"one who signs a contract is presumed to know its contents . . ."

See also Brinson v. Martin, 220 Ga. App. 638, 639 (1) (469 SE2d 537) (1996) (“one who signs a contract is presumed to know its contents . . .”) (citation and punctuation omitted).

See OFC Capital v. Colonial Distrib., 285 Ga. App. 815, 818-819 (648 SE2d 140) (2007) (waivers of personal jurisdiction are expressly permitted in Georgia and do not contravene public policy).


Context: As a result of the general rulemaking authority contained in the Interstate Commerce Act, the Interstate Commerce Commission promulgates regulations which govern leasing by interstate motor carriers. Regulations of the Interstate Commerce Commission governing leases of interstate motor carriers have the same effect as statutory federal law and, therefore, preempt conflicting state law.

See Simmons v. King, 478 F.2d 857 (5th Cir. 1973) (regulations of the Interstate Commerce Commission preempt conflicting state law regarding vicarious liability).

Cf. A., T. & S. F. Ry. v. Scarlett, 300 U.S. 471, 57 S. Ct. 541, 81 L. Ed. 748 (1937) (regulations of the Interstate Commerce Commission promulgated pursuant to the Federal Safety Appliance Act have the same force as federal statutes).


Cf., also, Free v. Bland, 369 U.S. 663, 82 S. Ct. 1089, 8 L. Ed. 2d 180 (1962) (U.S. Treasury regulations specifying ownership of a savings bond are federal law which prevails over conflicting state law on ownership).


Context: It is questionable whether we need to consider the extent of the IRS's compliance -with identifying the taxpayer on its notice in this context. Our hesitation occurs because the Ninth Circuit analysis of IRS lien priority has focused on the reasonable inspection test even when the NFTL uses the taxpayer's correct legal name.

See Kivel, 878 F.2d at 302 (court determined that it need not decide whether the NFTL filed under the taxpayer’s full legal name was valid against a subsequent purchaser, but whether the way the notices were filed complied with 26 U.S.C. § 6323(f)(4), as that was the statute which governed the validity of liens in California); TKB Int’l, 995 F.2d 1460 (tax liens filed in exact name of taxpayer held invalid against subsequent purchaser who acquired property that was subject to fraudulent conveyance and fraudulent nature of transaction was not apparent on face of deed); cf. Walsh v. United States (In re Focht), 243 B.R. 263, 267 (W.D.Pa.1999)(stating that first step in determining whether tax lien was valid was to evaluate whether the Form 668 notice substantially complied with the statutory requirement of identifying the taxpayer).

court determined that it need not decide whether the NFTL filed under the taxpayer's full legal name was valid against a subsequent purchaser, but whether the way the notices were filed complied with 26 U.S.C. SS 6323(f


tax liens filed in exact name of taxpayer held invalid against subsequent purchaser who acquired property that was subject to fraudulent conveyance and fraudulent nature of transaction was not apparent on face of deed


Context: However, where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney's fees will not be awarded absent bad faith or harassment by the losing party.

Coast Trading, 744 F.2d at 693 (refusing to award fees where creditor brought a nondischargeability action); Grove v. Fulwiler (In re Fulwiler), 624 F.2d 908, 910 (9th Cir.1980) (refusing to award fees for creditor’s action under Section 546); see also Johnson v. Righetti (In re Johnson), 756 F.2d 738, 741-42 (9th Cir.1985) (because creditor’s request for relief from the automatic stay pursuant to Section 362(d) was not an “action on the contract,” debtor was not entitled to attorneys’ fees for defense against the request).

because creditor's request for relief from the automatic stay pursuant to Section 362(d


refusing to award fees for creditor's action under Section 546


Context: At common law, an office holder who accepts a second office incompatible with the first automatically vacates the first office. E.g.

Pombo v. Fleming, 32 Haw. 818 (1933) (acceptance of office of chairman and executive officer of Maui Board of Supervisors vacated the office of supervisor); Hollinger v. Kumalae, 25 Haw. 669, 689 (1920) (acceptances of office of supervisor of the City & County of Honolulu automatically vacated the offices of state senator and state representative); accord, Township of Belleville v. Fomarotto, 228 N.J.Super. 412, 549 A.2d 1267 (1988); Hover v. Wolven, 175 Ohio St. 114, 191 N.E.2d 723 (1963); Howard v. Harrington, 114 Me. 443, 96 A. 769 (1916); State v. Goff, 15 R.I. 505, 9 A. 226 (1887).

judge who announced intention to seek office of governor forfeited his office where state constitution then specifically provided "[a]ny justice or judge who shall become a candidate for an elective office shall thereby forfeit his office"

Cf. In re Pioneer Mill Co., Ltd., 53 Haw. 496, 497 P.2d 549 (1972) (judge who announced intention to seek office of governor forfeited his office where state constitution then specifically provided “[a]ny justice or judge who shall become a candidate for an elective office shall thereby forfeit his office”).


acceptances of office of supervisor of the City & County of Honolulu automatically vacated the offices of state senator and state representative


Context: For the reasons discussed in connection with Count 2, when these incidents are viewed in the context of the entire record, they are insufficient to support a reasonable inference that Plaintiffs' termination was motivated by his gender. There is simply no record evidence supporting an inference that similarly-situated others were treated more favorably based on their gender.

See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 366 (3d Cir.2008), order clarified, 543 F.3d 178 (3d Cir.2008) (noting that, for purposes of demonstrating the fourth element of a pri-ma facie employment discrimination case, “[t]he evidence most often used to establish this nexus [between the plaintiffs protected status and the adverse employment action] is that of disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiffs protected class”) (citing cases); see also McClung v. Songer Steel Servs., Inc., 1 F.Supp.3d 443, 451 (W.D.Pa.2014) (noting that the fourth prima facie element of a Title VII claim requires the plaintiff to show that similarly situated persons outside of the plaintiffs protected class were treated more favorably or that other circumstances in the case give rise to an inference of unlawful discrimination) (citing authority), Because Plaintiff has not established a prima facie case of gender discrimination under Title VII or the PHRA, his claims at Counts 7 and 9 are subject to summary judgment on that basis alone.

noting that, for purposes of demonstrating the fourth element of a pri-ma facie employment discrimination case, "[t]he evidence most often used to establish this nexus [between the plaintiffs protected status and the adverse employment action] is that of disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiffs protected class"


Context: Utilizing that standard, this Court has recognized instances in which injured plaintiffs failed to satisfy the burden of proving a business owner's negligence because of a lack of evidence demonstrating how long a dangerous condition existed, or whether the owner knew or should have known of its existence.

See Massart v. Toys R Us, Inc., 708 A.2d 187, 189 (R.I.1998) (per curiam) (Court affirmed judgment in favor of toy store because of lack of evidence showing that employees knew of fallen basketball hoop in aisle before girl was injured); see also Barone, 767 A.2d at 68 (retail store properly granted judgment in slip- and-fall case in which the plaintiff presented no evidence of the nature and extent of the alleged puddle of water at the site of her fall and no proof concerning length of time alleged condition was present); Gleason v. Almac’s, Inc., 103 R.I. 40, 42, 234 A.2d 350, 351 (1967) (trial justice improperly denied judgment in defendant’s favor because there was insufficient evidence that store had notice of roll of film on floor and no testimony about store policy on maintaining a safe condition for customers).


trial justice improperly denied judgment in defendant's favor because there was insufficient evidence that store had notice of roll of film on floor and no testimony about store policy on maintaining a safe condition for customers


Context: We recognize that GMD opposes this result. GMD argues on appeal that certain improper remarks by Anthony's counsel during closing argument necessitate a new trial on damages because the remarks infected the jury's verdict with passion and prejudice.

"It is well settled that mere excessiveness in the amount of an award may be cured by a remittitur, whereas excessiveness which results from jury passion and prejudice may not be so cured. In that case, a new trial is required."

See Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th Cir.1991) (“It is well settled that mere excessiveness in the amount of an award may be cured by a remittitur, whereas excessiveness which results from jury passion and prejudice may not be so cured. In that case, a new trial is required.”), cert. denied, — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992); see also De León López v. Corporación Insular de Seguros, 931 F.2d 116, 125 (1st Cir.1991); Seidman, 923 F.2d at 1140. GMD makes no claim of error, however, and does not assert that the alleged remarks contaminated the jury’s liability findings.

noting that the rule against remittitur in cases of tainted jury verdicts "protects against the potential contamination of a jury's liability findings"

Cf. De León López, 931 F.2d at 125 (noting that the rule against remittitur in cases of tainted jury verdicts “protects against the potential contamination of a jury’s liability findings”) (emphasis added); 11 Wright and Miller, Federal Practice and Procedure, § 2815 (1973) (same); J. Moore, Moore’s Federal Practice, 6A ¶ 59.08[7] (1993) (same).


Context: # Indeed, our precedent makes it crystal clear that conviction of aiding and abetting is tantamount to conviction of the underlying offense.

"[Because] there is no material distinction between an aider and abettor and principals in any jurisdiction of the United States ... aiding and abetting an [offense] is the functional equivalent of personally committing that offense [and] that offense ,... constitutes an aggravated felony."

See Salazar-Luviano v. Mukasey, 551 F.3d 857, 860 n.2 (9th Cir. 2008) (“Salazar’s aiding and abetting conviction is technically a violation of 18 U.S.C. § -2. That Salazar was convicted of aiding and abetting, however, makes him liable as a principal of the underlying offense.”); see also Ortiz-Magana v. Mukasey, 542 F.3d 653, 659 (9th Cir. 2008) (“[Because] there is no material distinction between an aider and abettor and principals in any jurisdiction of the United States ... aiding and abetting an [offense] is the functional equivalent of personally committing that offense [and] that offense ,... constitutes an aggravated felony.”) (emphasis added).

"Salazar's aiding and abetting conviction is technically a violation of 18 U.S.C. SS -2. That Salazar was convicted of aiding and abetting, however, makes him liable as a principal of the underlying offense."


Context: We believe that these errors require resentencing. We concede that where, as here, the district court departs from the sentencing guidelines, an error in applying the guidelines may sometimes prove harmless; for example, the district court might clearly indicate that the applicable guideline sentencing range had nothing to do with the sentence actually imposed.

when a court departs from the guidelines, "[i]t is ... arguable that any computational error in assigning a total offense level [is] harmless"

Cf. United States v. Diaz-Villafane, 874 F.2d 43, 48 n. 4 (1st Cir.1989) (when a court departs from the guidelines, “[i]t is ... arguable that any computational error in assigning a total offense level [is] harmless”) (dicta).

"[W]hether the court incorrectly determined the recommended range is relevant to our review of a [departure for a] ... sentence that exceeds the Guidelines may look reasonable when compared to one recommended range, but unreasonable when compared to another"

But see United States v. Roberson, 872 F.2d 597, 608 (5th Cir.1989) (“[W]hether the court incorrectly determined the recommended range is relevant to our review of a [departure for a] ... sentence that exceeds the Guidelines may look reasonable when compared to one recommended range, but unreasonable when compared to another”). We cannot say the error is harmless here, however, because the court’s decision to impose a 97-month “departure” sentence may well have been influenced by the PSI’s sentencing recommendation, which itself may well have reflected either or both of the mistakes we have just described.


Context: Precedents do not supply a clear answer. The Supreme Court has held that the use of unreasonable force by a public school teacher against a student does not constitute a deprivation of liberty "without due process of law" where the state has provided the student with a post-deprivation tort remedy.

Cf. Parratt v. Taylor, 451 U.S. at 543-44,101 S.Ct. at 1916-17 (negligently caused deprivation of property not without due process of law where post-deprivation remedy available).

noting the state's long-recognized interest in permitting the use of corporal punishment in public schools as a means for maintaining discipline

Ingraham v. Wright, 430 U.S. at 673-83, 97 S.Ct. at 1413-19 (noting the state’s long-recognized interest in permitting the use of corporal punishment in public schools as a means for maintaining discipline).


Context: Trial Tr. 10:5-10. Second, the language under 523(a)(2)(A) "other than a statement respecting the debtor's ... financial condition," should be interpreted narrowly to include formal written accounting documents, and not broad oral or written statements concerning financial wealth.

finding statements made regarding overall health of insider's financial condition could not be excepted from discharge under 523(a)(2)(A

But see In re Urban, 2014 WL 1492717, at *7 (B.A.P. 9th Cir. April 16, 2014) (finding statements made regarding overall health of insider’s financial condition could not be excepted from discharge under 523(a)(2)(A)).

holding "that the phrase 'statement respecting the debtor's ... financial condition' should be narrowly interpreted"

See In re Belice, 461 B.R. 564, 577-78 (B.A.P. 9th Cir.2011) (holding “that the phrase ‘statement respecting the debtor’s ... financial condition’ should be narrowly interpreted”); In re Joelson, 427 F.3d 700, 714 (10th Cir.2005) (adopting a strict interpretation of statements of financial condition).


Context: Counts grouped together pursuant to the sentencing guidelines are interdependent.

"The notion is that, especially in the guidelines era, sentencing on multiple counts is an inherently interrelated, interconnected, and holistic process which requires a court to craft an overall sentence .... "

U.S. v. Rozier, 485 Fed.Appx. 352, 356 (11th Cir.2012) (holding that counts were interdependent where they were grouped together); U.S. v. Miller, 594 F.3d 172, 181-82 (3d Cir.2010) (“[Cjounts that were grouped pursuant to the Sentencing Guidelines at the original sentencing are interdependent.... ”); U.S. v. Bass, 104 Fed.Appx. 997, 999-1000 (5th Cir.2004) (applying the sentencing package doctrine where counts were grouped under the sentencing guidelines); see also Fowler, 749 F.3d at 1014-15 (“The notion is that, especially in the guidelines era, sentencing on multiple counts is an inherently interrelated, interconnected, and holistic process which requires a court to craft an overall sentence .... ”).


"[Cjounts that were grouped pursuant to the Sentencing Guidelines at the original sentencing are interdependent.... "


applying the sentencing package doctrine where counts were grouped under the sentencing guidelines


Context: However, we agree with Nofoa that in relation to the third factor, he was denied the opportunity for meaningful cross-examination because he did not have access to relevant discovery materials that would have assisted in the cross-examination of CW. We have recognized that access to witness statements may be relevant to determine whether the opportunity for cross-examination at a preliminary hearing was sufficient.

"Normally, a cross-examination cannot be full and thorough unless counsel is permitted access to the witness' [sic] previous statements on the matters on which the witness is testifying ...."

See Toledo, 67 Haw. at 22, 675 P.2d at 775 (“Normally, a cross-examination cannot be full and thorough unless counsel is permitted access to the witness’ [sic] previous statements on the matters on which the witness is testifying ....”); see also Torres, 357 Ill.Dec. 18, 962 N.E.2d at 933 (noting defense counsel at the preliminary hearing was “not privy” to certain statements given by the witness to support holding that preliminary hearing testimony was inadmissible at trial). Here, at the preliminary hearing, the only materials in Nofoa’s counsel’s possession were the JDPC and the complaint.

noting defense counsel at the preliminary hearing was "not privy" to certain statements given by the witness to support holding that preliminary hearing testimony was inadmissible at trial


Context: The defendant is correct that, in the employment context, liability for negligent infliction of emotional distress can arise only for conduct in the "termination process," not for behavior that is "part of an ongoing employment relationship."

See Perodeau, 792 A.2d at 762; see Parsons, 243 Conn. at 88, 700 A.2d 655 (“Negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process.”); Absher v. Flexi Int’l Software, Inc., No. 3:02CV171, 2003 WL 2002778, *3, 2003 U.S. Dist. LEXIS 6089, *9 (D.Conn. March 31, 2003) (dismissing negligent infliction claim due to plaintiffs failure to “allege any conduct pertaining to the termination of her employment”); cf. Brunson v. Bayer Corp., 237 F.Supp.2d 192, 208 & n. 19 (D.Conn.2002) (applying Perodeau to dismiss negligent infliction claim against corporate defendant).

"Negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process."


dismissing negligent infliction claim due to plaintiffs failure to "allege any conduct pertaining to the termination of her employment"


Context: The district court imputed knowledge to Tapia-Ortiz based on the statement of Cede-no, his alleged co-conspirator, that Tapia-Ortiz would serve as the buyer in both transactions. Yet even if we assume arguendo that Tapia-Ortiz was involved in an uncharged conspiracy with Cedeno, the Government must show that the actions of Cedeno were in furtherance of the conspiracy and were reasonably foreseeable to Tapia-Ortiz before Tapia-Ortiz can be held responsible for them.

See United States v. Miranda-Ortiz, 926 F.2d 172, 177-78 (2d Cir.) (co-conspirator cannot be sentenced for certain conspiratorial acts unless there is proof that he knew or should have known about the details of those acts or could reasonably foresee that they would occur), cert. denied, — U.S. --, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991); see also United States v. Martinez, 987 F.2d 920, 926 (2d Cir.1993) (conspirator’s reasonable knowledge of relevant conduct is required by statute imposing mandatory minimum sentences for certain drug offenses).

conspirator's reasonable knowledge of relevant conduct is required by statute imposing mandatory minimum sentences for certain drug offenses


Context: Although this change occurred well before Doe submitted his form, Duchesne's first affidavit indicates that at least as late as the EEO investigation of Doe's complaint, FMLA forms were still shared with managers and supervisors such as Tahir. These two statements do not necessarily contradict one another, for it seems perfectly possible that medical leave information continued to be shared with relevant managers and supervisors even after Paul Neff assumed responsibility for tracking and processing the requests. In any event, whatever conflict may exist must be resolved at trial, where Doe will have an opportunity to question Duchesne about his two statements.

See Rogers Corp. v. EPA, 275 F.3d 1096, 1103 (D.C.Cir.2002) (“Summary judgment is inappropriate when contradictory inferences may be drawn from the evidence.”); cf. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 1603-04, 143 L.Ed.2d 966 (1999) (a nonmoving party cannot defeat summary judgment by submitting, without explanation, an affidavit contradicting a prior sworn statement).

"Summary judgment is inappropriate when contradictory inferences may be drawn from the evidence."


Context: The two issues are simply not the same as they involve different principles of law which are subject to the application of different relevant facts. Under the federal maritime choice-of-law test, applicable to Jones Act seafarers in federal district court, a case should not be dismissed on grounds of forum non conveniens if federal maritime law applies to the case, which is determined in part by whether the defendant ship-owner is found to have a base of operations in the United States.

"Even if ... the action is properly maintainable under the Jones Act on the principle adopted in [Rhoditis], the trial court correctly concluded that forum non conveniens is applicable to such an action in the Florida state courts ...."

See Guerra v. Selsdon Mar. Corp., 711 So.2d 1298, 1298 (Fla.Ct.App.1998) (“Even if ... the action is properly maintainable under the Jones Act on the principle adopted in [Rhoditis], the trial court correctly concluded that forum non conveniens is applicable to such an action in the Florida state courts ....”) (internal citations omitted); see also Valdivia v. Prestige Cruises, N.V., 898 So.2d 271, 272 (Fla.Ct.App.2005) (affirming dismissal based on forum non conveniens without consideration of federal maritime choice-of-law standards); Tananta v. Cruise Ships Catering & Servs. Int'l, N.V., 909 So.2d 874, 881-84 (Fla.Ct.App.2004) (en banc) (contrasting federal maritime choice-of-law analysis with Florida’s forum non conveniens doctrine).


contrasting federal maritime choice-of-law analysis with Florida's forum non conveniens doctrine


Context: [29] Based upon the record, we cannot say the trial court abused its discretion in determining that Zamani did not demonstrate good cause as to why his late notice should be accepted and thus in denying his belated, verbal motion to assert an insanity defense.

holding the trial court did not abuse its discretion in denying the defendant's belated motion to assert an insanity defense where the defendant did not make showing of good cause as required by statute

See Ankney, 825 N.E.2d at 970 (holding that the defendant did not demonstrate and our review of the record did not reveal that the defendant made a showing of good cause as to why his late notice should be accepted, and as such the trial court did not abuse its discretion when it denied the defendant’s belated, oral motion to assert an insanity defense) (citing Eveler, 524 N.E.2d at 11 (holding the trial court did not abuse its discretion in denying the defendant’s belated motion to assert an insanity defense where the defendant did not make showing of good cause as required by statute)); see also Dudley v. State, 480 N.E.2d 881, 895 (Ind.1985) (holding that, since trial had begun and the defendant failed to offer evidence rising to the level of good cause showing why the defense was not previously raised, the trial court properly denied the appellant’s motion for psychiatric examination, and noting the trial court had observed that the information learned by the defendant’s counsel was previously available and could not be considered newly discovered).

holding that, since trial had begun and the defendant failed to offer evidence rising to the level of good cause showing why the defense was not previously raised, the trial court properly denied the appellant's motion for psychiatric examination, and noting the trial court had observed that the information learned by the defendant's counsel was previously available and could not be considered newly discovered


Context: These arguments are without merit; petitioner's criminal record satisfies the three tests of Ozkok. First, a finding of guilt was made. Striking the guilty finding did not mean the facts supporting the finding no longer existed; it merely rewarded petitioner for good behavior during probation by technically erasing his conviction for reasons unrelated to its validity on the merits.

Court defined new standard for final "conviction" because old standard placed form over substance, "and aliens who [were] clearly guilty of criminal behavior and whom Congress intended to be considered "convicted" [were] permitted to escape the immigration consequences normally attendant upon a conviction."

Garcia-Gonzales v. INS, 344 F.2d 804, 808 (9th Cir.) (a court’s entering of “probation without judgment” does not void a conviction on the merits but merely “rewards the [alien] for good behavior during probation by releasing certain penalties and disabilities”), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965); cf. Ozkok, 1988 WL 235459,1988 BIA LEXIS at 12 (Court defined new standard for final “conviction” because old standard placed form over substance, “and aliens who [were] clearly guilty of criminal behavior and whom Congress intended to be considered “convicted” [were] permitted to escape the immigration consequences normally attendant upon a conviction.”). Second, just because petitioner’s probation was terminated does not mean some form of punishment was never imposed on him. Regardless of his subsequent termination of probation, it is undisputed that the circuit court did order a “punishment, penalty, or restraint,” e.g. the probation and fine.

a court's entering of "probation without judgment" does not void a conviction on the merits but merely "rewards the [alien] for good behavior during probation by releasing certain penalties and disabilities"


Context: Some of the cases have 'also indicated that a medical monitoring cause of action may be subject to normal tort defenses such as assumption of risk and contributory negligence.

"[a] plaintiff[ smoker]'s claim would, of course, remain subject to all available affirmative defenses, such ' as contributory negligence"

See Donovan, 455 Mass, at 226 n. 11, 914 N.E.2d at 901 n. 11 (“[a] plaintiff[ smoker]’s claim would, of course, remain subject to all available affirmative defenses, such ' as contributory negligence”); Potter, 6 Cal.4th at 974, 25 Cal. Rptr.2d 550, 863 P.2d at 801 (“when a defendant in a [toxic landfill] negligence action demonstrates that a plaintiffs smoking is negligent and that a portion of the plaintiffs fear of cancer is attributable to the smoking, comparative fault principles may be applied to reduce the amount of recovery for emotional distress damages based on such fear”).

in a cancerphobia case involving a toxic landfill, a jury may properly consider the plain tiffs' "voluntary exposure to carcinogens, for example, by smoking"

See also Dangler, 241 A.D.2d at 294, 672 N.Y.S.2d at 191 (in a cancerphobia case involving a toxic landfill, a jury may properly consider the plain tiffs’ “voluntary exposure to carcinogens, for example, by smoking”).


"when a defendant in a [toxic landfill] negligence action demonstrates that a plaintiffs smoking is negligent and that a portion of the plaintiffs fear of cancer is attributable to the smoking, comparative fault principles may be applied to reduce the amount of recovery for emotional distress damages based on such fear"


Context: . Plaintiff's Second Amended Complaint also alleges violations of the fourth and fourteenth amendments to the constitution. However, plaintiff does not press these alleged constitutional violations as independent grounds for relief.

See Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir.1978) (violation of federal constitutional right not a separate ground for relief under Federal Tort Claims Act); cf. Carlson v. Green, 446 U.S. 14, 20, 23, 100 S.Ct. 1468, 1472, 1474, 64 L.Ed.2d 15 (1980) (victim of intentional misconduct by federal officials may bring Federal Tort Claims Act action against United States, as well as Bivens action against officials alleged to have infringed constitutional rights, but only if state in which the misconduct occurred would permit a cause of action for that misconduct).


Context: Finally, Matthys also asserts a claim for retaliatory discharge on account of her filing of an workers' compensation claim. In general, Indiana adheres to the employment-at-will doctrine, whereby an employment contract is terminable at the will of either party.

noting that such claims are called "Frampton" claims in Indiana courts

See also Hudson, 412 F.3d at 785 (noting that such claims are called “Frampton” claims in Indiana courts); Crye, 2008 WL 5111349 at *7.

"employers can generally terminate an employment at any time, for a good reason, bad reason, or no reason at all"

Hudson v. Wal-Mart Stores, 412 F.3d 781, 785 (7th Cir.2005); Crye v. Caterpillar, Inc., 2008 WL 5111349 at *7 (N.D.Ind.2008) (“employers can generally terminate an employment at any time, for a good reason, bad reason, or no reason at all”); Settele v. Walgreens Co., 2007 WL 1970954 at *3 (N.D.Ind.2007). However, the Indiana Supreme Court has carved out an exception to this rule, acknowledging a cause of action for employees discharged in retaliation for filing a workers’ compensation claim.


Context: Otherwise, there would be no reason to apply them. Courts in Utah and other states that have adopted the Uniform Probate Code have supplemented it in several outcome-determinative ways.

See Berneau v. Martino, 2009 UT 87, ¶ 10, 223 P.3d 1128 (allowing the equitable discovery rule to toll the three-year statute of limitations required in the Probate Code); Morgan v. Zions First Nat'l Bank (In re Estate of Pepper), 711 P.2d 261, 263 (Utah 1985) (holding that final closing orders in a probate proceeding can be vacated through a rule 60(b) motion, despite the fact that section 75-3-1001 of the probate code "discharges a personal representative from further claim or demand after a final closing order has been entered"); In re Estate of Butler, 444 So.2d 477, 479 (Fla.Dist.Ct.App.1984) (estopping the first wife of decedent from asserting her inheritance rights as against the decedent's second wife); In re Estate of Peter C., 488 A2d 468, 470 (Me.1985) (holding that the common law rule that a guardian is in a fiduciary relationship to his ward was not abrogated by the adoption of the Uniform Probate Code even though the code does not shoulder guardians with fiduciary responsibilities); In re Estate of Foster, 102 N.M. 707, 699 P.2d 638, 645 (N.M.Ct.App.1985) (applying the equitable rule "authoriz[ing] an award of attorney fees for services rendered which confer a benefit upon the estate"); In re Estate of O'Keefe, 583 N.W.2d 138, 140 (S.D.1998) (holding that the cireuit court had the equitable authority to partially disqualify a beneficiary from inheriting from an estate because of his fraudulent acts); see also In re Estate of Wagley, 760 P.2d 316, 319-20 (Utah 1988) (holding that a claim of quantum meruit was appropriate in a probate case because under section 103, "principles of law and equity supplement the provisions of the [Utah Uniform Probate Code] unless displaced by particular provisions of the Code").


holding that final closing orders in a probate proceeding can be vacated through a rule 60(b) motion, despite the fact that section 75-3-1001 of the probate code "discharges a personal representative from further claim or demand after a final closing order has been entered"


estopping the first wife of decedent from asserting her inheritance rights as against the decedent's second wife


applying the equitable rule "authoriz[ing] an award of attorney fees for services rendered which confer a benefit upon the estate"


holding that the cireuit court had the equitable authority to partially disqualify a beneficiary from inheriting from an estate because of his fraudulent acts


Context: This rationale justifies excluding the Haw-kinses' compensatory damages. It also justifies excluding damages awards which purport both to compensate and to punish--such as the liquidated damages awarded in age discrimination cases.

See Miller, 914 F.2d at 591 (distinguishing between punitive damages which serve no compensatory purpose and liquidated damages which serve both a deterrent and compensatory purpose); Bennett v. United States, 30 Fed.Cl. 396, 401 (1994) (in contrast to exclusively noncompen-satory punitive damages, ADEA liquidated damages have a compensatory purpose and are therefore excludable); Downey v. Commissioner, 100 T.C. 634, 1993 WL 231740 (1993) (ADEA liquidated damages, which serve both to compensate for intangible injuries and to punish, are excludable); cf. Threlkeld, 848 F.2d at 84 (In a defamation suit alleging injury to reputation, “[a]ll income in compensation of that injury is excludable under § 104(a)(2)”).

In a defamation suit alleging injury to reputation, "[a]ll income in compensation of that injury is excludable under SS 104(a


in contrast to exclusively noncompen-satory punitive damages, ADEA liquidated damages have a compensatory purpose and are therefore excludable


ADEA liquidated damages, which serve both to compensate for intangible injuries and to punish, are excludable


Context: Pls.' Mot. to Remand at 6 (stating that "Plaintiffs have filed essentially the same cause of action in both the DC Superior Court as well as the DC Federal Court"); see also Defs.' Opp'n to Pls.' Mot. to Remand, Ex. B. Thus, on at least two prior occasions, the plaintiffs have affirmatively invoked federal jurisdiction over the claims raised in the Superior Court complaint. See Pls.' Mot. to Remand at 3, 6. In so doing, they have waived any right to remand they may have otherwise had based on procedural defects in the removal of this action.

See Koehnen, 89 F.3d at 528 (concluding that the plaintiff waived any procedural defect in connection with removal by moving to file a supplemental complaint in the federal court and participating in oral argument on the motion); Moffit v. Balt. Am. Mortgage, 665 F.Supp.2d 515, 517 (D.Md.2009) (holding that the plaintiffs waived any right to seek remand by filing a second amended complaint in federal court); see also Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998) (noting that “plaintiffs cannot voluntarily invoke, and then disavow, federal jurisdiction”) Accordingly, the court denies the plaintiffs’ motion to remand.

noting that "plaintiffs cannot voluntarily invoke, and then disavow, federal jurisdiction"


holding that the plaintiffs waived any right to seek remand by filing a second amended complaint in federal court


Context: Hurn also maintains that the 1995 conviction was too remote to be relevant and that its unfair prejudice substantially outweighed its probative value. We have held that a district court does not abuse its discretion by admitting thirteen-year-old evidence of prior bad acts where the prior conduct is very similar to the conduct charged.

See United States v. Wimberly, 60 F.3d 281, 285 (7th Cir.1995); see also Macedo, 406 F.3d at 793 (holding that the admission of Rule 404(b) evidence is proper in a drug case where nine years elapse between the prior conduct and the conduct charged).

Cf. United States v. Garcia, 291 F.3d 127, 138-39 (2d Cir.2002) (holding that a district court errs by admitting a twelve-year-old drug conviction to prove intent in a subsequent drug prosecution).


Context: The Supreme Court found that the false imprisonment ends for either tort when the victim is released, or when the victim's imprisonment becomes "pursuant to [legal] process -- when, for example, he is bound over by a magistrate or arraigned on charges." Id. Moreover, several states have found that claims for false arrest and false imprisonment accrue when the false imprisonment ends or when imprisonment becomes pursuant to legal process.

"Under New York law, false arrest and false imprisonment claims accrue on the date of the release from confinement."

See Hoffman v. County of Delaware, 41 F.Supp.2d at 216 (“Under New York law, false arrest and false imprisonment claims accrue on the date of the release from confinement.”), aff'd 205 F.3d 1323 (2d Cir.2000); Adler v. Beverly Hills Hosp., 594 S.W.2d at 154 (“We hold that false imprisonment is a continuing tort and that the cause of action for the entire period of imprisonment accrues when the detention ends.”); Belflower v. Blackshere, 281 P.2d at 425 (holding that a cause of action for illegal arrest and false imprisonment accrued at the time plaintiff was released from his alleged illegal restraint and not when the proceedings by which his arrest occurred terminated).

holding that "Johnson's cause of action for false imprisonment/false arrest accrued when he was bound over for trial in March 2003"

See also Johnson v. Blackwell, 885 N.E.2d 25, 31 (Ind.Ct.App.2008)(holding that “Johnson’s cause of action for false imprisonment/false arrest accrued when he was bound over for trial in March 2003”); Dunn v. Felty, 226 S.W.3d 68, 72 (Ky.2007)(holding that the false imprisonment ended when the plaintiff began being held pursuant to legal process — the date when he was arraigned on the charges).


holding that the false imprisonment ended when the plaintiff began being held pursuant to legal process -- the date when he was arraigned on the charges


"We hold that false imprisonment is a continuing tort and that the cause of action for the entire period of imprisonment accrues when the detention ends."


holding that a cause of action for illegal arrest and false imprisonment accrued at the time plaintiff was released from his alleged illegal restraint and not when the proceedings by which his arrest occurred terminated


Context: (Emphases added.) Because HRCP 12(b) is identical to Rule 12(b) of the Federal Rules of Civil Procedure (FRCP), the federal courts' interpretation of this rule is highly persuasive.

federal courts' interpretations of the FRCP are deemed "highly persuasive in, the reasoning of this court" since the HRCP were patterned after the federal rules

See Harada v. Burns, 50 Haw. 528, 532, 445 P.2d 376, 380 (1968) (federal courts’ interpretations of the FRCP are deemed “highly persuasive in, the reasoning of this court” since the HRCP were patterned after the federal rules); see also Compass Dev., Inc. v. Blevins, 10 Haw.App. 388, 394, 876 P.2d 1335, 1338 (1994) (because HRCP Rule 41(b) is identical to FRCP Rule 41(b), the U.S. Supreme Court’s interpretation of the federal rule is persuasive).

because HRCP Rule 41(b) is identical to FRCP Rule 41(b), the U.S. Supreme Court's interpretation of the federal rule is persuasive


Context: Accordingly, we have no reason to conclude that Villanova's relationship with HSOA was anything other than an ordinary, arm's-length, lender-borrower relationship. In that type of relationship, the duty of good faith and fair dealing does not arise.

See Formosa Plastics Corp. USA, 960 S.W.2d at 52 (the duty of good faith and fair dealing does not arise in ordinary commercial transactions); see also English v. Fischer, 660 S.W.2d 521, 522 (Tex.1983) (rejecting contention that an implied duty of good faith and fair dealing exists in every contract).


Context: We have also recognized that dangers that are obvious to adults may not be fully appreciated by children of Shawn's age.

stating that a 4-year-old child was "incapable of appreciating the risk" that her pajamas could ignite from an electric burner

See Heitman v. Lake City, 225 Minn. 117, 30 N.W.2d 18, 23 (1947) (stating, “[c]hil-dren, through childish inattention, may fail to observe conditions which an adult might reasonably be expected to discover,” in a case involving a 7-year-old child who drowned); see also Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 743 (Minn. 1980) (stating that a 4-year-old child was “incapable of appreciating the risk” that her pajamas could ignite from an electric burner); Doren v. Nw. Baptist Hasp.

stating, "[c]hil-dren, through childish inattention, may fail to observe conditions which an adult might reasonably be expected to discover," in a case involving a 7-year-old child who drowned


Context: The district court properly granted summary judgment on Dennison's access-to-court claim against Ulibarri concerning her alleged refusal to approve his two notices of claims as legal mail because Denni-son failed to raise a triable dispute as to whether his underlying claims were non-frivolous.

a complaint is frivolous where "it lacks an arguable basis either in law or in fact"

See Christopher, 536 U.S. at 416, 122 S.Ct. 2179 (the complaint must describe the underlying.claim “well enough to apply the ‘nonfrivolous test’” and “to show that the ‘arguable’ nature of the underlying claim is more than a hope”); see also Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a complaint is frivolous where “it lacks an arguable basis either in law or in fact”).

the complaint must describe the underlying.claim "well enough to apply the 'nonfrivolous test'" and "to show that the 'arguable' nature of the underlying claim is more than a hope"