Context: We note in conclusion that our decision today aligns us with all but one of the several circuit courts to address this question.

Resort Corp., 140 F.3d 1299 (9th Cir.1998) (requiring “evidence of conduct more egregious than intentional discrimination to support an award of punitive damages in Title VII cases”); but see Luciano v. Olsten Corp., 110 F.3d 210, 219-20 (2d Cir.1997) (finding that no additional evidence is required for punitive liability).

endorsing concept of a higher standard for punitive damages under SS 1981a, and noting that such damages "are awarded as a matter of public policy to punish outrageous conduct by the defendant or to deter similar conduct in the future"

See McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 508 (1st Cir.1996) (endorsing concept of a higher standard for punitive damages under § 1981a, and noting that such damages “are awarded as a matter of public policy to punish outrageous conduct by the defendant or to deter similar conduct in the future”); Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th Cir.1997) (holding that under § 1981a, “[pjunitive damages are an extraordinary remedy, to be reserved for egregious eases,” and “are not an element of recovery in every case involving an intentional tort”) (citation omitted); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1216 (6th Cir.1996) (despite sufficiency of evidence for liability and “duplicitous” actions of defendant’s employees, evidence held insufficient for punitive damages); Emmel v. Coca-Cola Bottling, 95 F.3d 627, 636 (7th Cir.1996) (characterizing standard for punitive damages as a “higher hurdle” than that for proving the underlying discrimination); Karcker v. Emerson Electric Co., 94 F.3d 502, 509 (8th Cir.1996) (although jury could properly infer intentional sex discrimination from inconsistent nature of hiring process and failure to select and train women, it could not find malice or deliberate indifference); Ngo v. Reno Hilton.


holding that under SS 1981a, "[pjunitive damages are an extraordinary remedy, to be reserved for egregious eases," and "are not an element of recovery in every case involving an intentional tort"


despite sufficiency of evidence for liability and "duplicitous" actions of defendant's employees, evidence held insufficient for punitive damages


characterizing standard for punitive damages as a "higher hurdle" than that for proving the underlying discrimination


although jury could properly infer intentional sex discrimination from inconsistent nature of hiring process and failure to select and train women, it could not find malice or deliberate indifference


requiring "evidence of conduct more egregious than intentional discrimination to support an award of punitive damages in Title VII cases"


Context: No objections have been received. I therefore accept and adopt the Magistrate Judge's recommendation.

See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (failure to file timely objections constitutes waiver of objections, and district court review not required); cf. Small, 892 F.2d 15 (Am applies even to pro se litigants where Report contains proper cautionary language).


Context: Requiring disqualification every time a litigant files suit against a judge would allow litigants to improperly "judge shop." Trader's vague and unsupported allegations against the judge do not require the judge's disqualification.

party's displeasure with legal rulings does not form an adequate basis for recusal

In re School Asbestos Litigation, 977 F.2d 764, 778 (3d Cir.1992) (mandamus relief concerning judge’s failure to recuse only warranted where statute “clearly and indisputably” required him to recuse); see also Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir.2000) (party’s displeasure with legal rulings does not form an adequate basis for recusal).

mandamus relief concerning judge's failure to recuse only warranted where statute "clearly and indisputably" required him to recuse


Context: See AR 9398 ("Because of the environmental dynamics and long-term use and strategic nature of fuelbreaks, a maintenance and reburn schedule is necessary to keep fuel loading and canopy closure at required standards. Indefinite maintenance of the fuel breaks to ensure low fuel conditions is essential.") As fuel break maintenance is necessary and foreseeable, the effects of such maintenance must be addressed within the EIS.

"[A]n EIS must cover subsequent phase of development when '[t]he dependency is such that it would be irrational, or at least unwise, to undertake the first phase, if subsequent phases were not also undertaken.' "

See Save the Yaak Committee v. Block, 840 F.2d 714, 720 (9th Cir.1988) (“[A]n EIS must cover subsequent phase of development when ‘[t]he dependency is such that it would be irrational, or at least unwise, to undertake the first phase, if subsequent phases were not also undertaken.’ ”); Blue Mountains, 161 F.3d 1208, 1214-15 (9th Cir.1998) (requiring EIS to consider five related timber sales where actions part of one recovery strategy and were reasonably foreseeable); 40 C.F.R. § 1508.7 (requiring that EIS consider reasonably foreseeable future actions); Cf. Wetlands Action Network v. United States Army Corps, 222 F.3d 1105, 1119 (9th Cir.2000) (holding EIS did not need to consider subsequent phases of project where “impractical” to do so because subsequent phases had not received approval and many planning decisions had not been made).

holding EIS did not need to consider subsequent phases of project where "impractical" to do so because subsequent phases had not received approval and many planning decisions had not been made


requiring EIS to consider five related timber sales where actions part of one recovery strategy and were reasonably foreseeable


Context: We conclude that those arguments are not reviewable as they attempt to raise issues of fact. Specifically, to determine the likelihood of governmental acquiescence to torture (Mr. Ruiz's second argument), and whether the evidence as a whole shows Mr. Ruiz's eligibility for CAT relief (his third argument), we would have to weigh the evidence in this case. The criminal-alien bar prevents that.

holding that the court lacked jurisdiction to review whether alien "established that he will more likely than not be tortured if ... removed"

See Siwe v. Holder, 742 F.3d 603, 613 (5th Cir.2014) (holding that the court lacked jurisdiction to review whether alien “established that he will more likely than not be tortured if ... removed”); Gallimore, 715 F.3d at 690 (observing that factual disputes and determinations regarding CAT claims “are foreclosed by the criminal alien bar”); Green v. Att’y Gen., 694 F.3d 503, 507-08 (3d Cir.2012) (concluding that factual determinations regarding government acquiescence and eligibility for CAT relief are subject to the criminal-alien bar); Saintha v. Mukasey, 516 F.3d 243, 249-50 (4th Cir.2008) (stating that the “likelihood that the [criminal alien] would suffer torture at the government’s consent or acquiescence” presents a factual question beyond review); Boakai v. Gonzales, 447 F.3d 1, 5 (1st Cir.2006) (concluding that the court lacked jurisdiction to consider criminal alien’s “argument that the BIA was wrong in rejecting the CAT claim”); Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir.2005) (holding that the criminal-alien bar applied to alien’s CAT claim that the IJ failed to “correctly consider[ ], interpret ], and weigh[] the evidence”); but see Edu v. Holder, 624 F.3d 1137, 1141-42 (9th Cir.2010) (stating that the criminal-alien bar “does not deprive [a court] of jurisdiction over denials of deferral of removal under the CAT,” and that “jurisdiction extends to both issues of law and issues of fact”).

stating that the criminal-alien bar "does not deprive [a court] of jurisdiction over denials of deferral of removal under the CAT," and that "jurisdiction extends to both issues of law and issues of fact"


observing that factual disputes and determinations regarding CAT claims "are foreclosed by the criminal alien bar"


concluding that factual determinations regarding government acquiescence and eligibility for CAT relief are subject to the criminal-alien bar


stating that the "likelihood that the [criminal alien] would suffer torture at the government's consent or acquiescence" presents a factual question beyond review


concluding that the court lacked jurisdiction to consider criminal alien's "argument that the BIA was wrong in rejecting the CAT claim"


holding that the criminal-alien bar applied to alien's CAT claim that the IJ failed to "correctly consider[ ], interpret ], and weigh[] the evidence"


Context: Only if the record, viewed in that manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." However, summary judgment is inappropriate where there are issues of motive and intent as related to the material facts.

finding that "determinations of motive and intent ... are questions better suited for the jury"

See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)(summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading roles”); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)(finding that “determinations of motive and intent ... are questions better suited for the jury”).

summary judgment is to be issued "sparingly" in litigation "where motive and intent play leading roles"


Context: Missouri law allows a hotel to eject a person if the hotel operator "reasonably believes that the individual is using the premises for an unlawful purpose." The officers' discovery of drug paraphernalia on Inmon's person was sufficient to justify Mr. Bastean's concern that there were illegal drugs in the room and allow him to eject Inmon when the officers arrested him and told Mr. Bastean they were taking Inmon to jail. Under our precedent, once an individual is lawfully ejected from a hotel, the rental period terminates and "control over the hotel room revert[s] to the management."

holding that a hotel occupant who was asked to leave by police officers acting on behalf of hotel management who complained of defendant's disorderly behavior was justifiably ejected under state law and no longer had a reasonable expectation of privacy in the hotel room

United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir.1986) (holding that a hotel occupant who was asked to leave by police officers acting on behalf of hotel management who complained of defendant’s disorderly behavior was justifiably ejected under state law and no longer had a reasonable expectation of privacy in the hotel room); see also Young v. Harrison, 284 F.3d 863, 869 (8th Cir.2002) (holding that defendant “was justifiably evicted from the hotel because his friends created a disturbance” despite absence of any state statute addressing evictions from a hotel, such that “the control over the hotel room reverted to the management and [the defendant] ‘[could] not assert an expectation of being free from police intrusion upon his solitude and privacy in a place from which he has been justifiably expelled’ ” (quoting Rambo, 789 F.2d at 1296)). Thus, at the time the officers forcibly entered the hotel room at Mr. Baste-an’s request, Inmon had no reasonable expectation of privacy in the hotel room, and the subsequent search of the room did not violate his Fourth Amendment rights.

holding that defendant "was justifiably evicted from the hotel because his friends created a disturbance" despite absence of any state statute addressing evictions from a hotel, such that "the control over the hotel room reverted to the management and [the defendant] '[could] not assert an expectation of being free from police intrusion upon his solitude and privacy in a place from which he has been justifiably expelled' " (quoting Rambo, 789 F.2d at 1296


Context: The issue originally arose in TIGLP's involuntary bankruptcy case wherein TAR asserts it purchased all of TIGLP's assets from the Trustee, including all of the Moving Limited Partners' individual rights, interests, or claims under the EPA. In the two opinions discussed above, the B.A.P. indicated, inter alia, that Judge Campbell had not ruled on the Moving Limited Partners' third-party beneficiary status nor whether the Sale Order was free and clear of the Moving Limited Partners' alleged equitable hen.

"[t]he Sale Order does not address nor does it purport to convey to TAR the Limited Partners' personal action to foreclose their alleged equitable hen on the Ballard House project."

See Telluride 1, 364 B.R. at 394-95 (“[t]he Sale Order does not address nor does it purport to convey to TAR the Limited Partners’ personal action to foreclose their alleged equitable hen on the Ballard House project.”); see also Telluride 2, 364 B.R. at 417-18 (“[t]he bankruptcy court clearly did not intend to rule on the viability of the Limited Partners’ asserted third party beneficiary status ... the bankruptcy court stated that it had no intention of ruling or approving the sale of any alleged third party beneficiary nonder-ivative claims.”).

"[t]he bankruptcy court clearly did not intend to rule on the viability of the Limited Partners' asserted third party beneficiary status ... the bankruptcy court stated that it had no intention of ruling or approving the sale of any alleged third party beneficiary nonder-ivative claims."


Context: Petties met with other medical personnel in the following weeks, including a meeting with Dr. Carter on February 14, but Dr. Carter failed to immobilize his ankle then and Petties did not receive any type of immobilization until March 15, nearly two months after his injury. Evidence that a medical provider failed to abide by an established treatment protocol is evidence from which a jury could infer deliberate indifference.

reversing summary judgment where nurse's violation of published health-care requirements was circumstantial evidence that she knew of substantial risk of harm

See Mata v. Saiz, 427 F.3d 745, 757-58 (10th Cir.2005) (reversing summary judgment where nurse’s violation of published health-care requirements was circumstantial evidence that she knew of substantial risk of harm); see also Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542-43 (6th Cir.2008) (affirming denial of qualified immunity for paramedic whose failure to follow established treatment protocols could constitute deliberate indifference).


Context: The only restrictive covenants in the Agreement are the non-disclosure and non-solicitation provisions of the Agreement, which are significantly less restrictive than a non-compete agreement, and this Court declines to treat them as the equivalent of the restraint on trade contemplated by section 16600 in the absence of Defendants being able to point to a case where a court has found that California has a fundamental policy, as defined by Massachusetts choice-of-law rules, against mere non-disclosure or non-solicitation clauses. Second, even if such clauses were included in the ambit of California's fundamental policy as a general matter, that fundamental policy does not extend to contractual clauses that are designed to protect an employer's trade secrets.

Section 16600 "invalidates provisions in employment contracts prohibiting an employee from working for a competitor ... unless the[provisions] are necessary to protect the employer's trade secrets"

Donnelley Corp., 62 Cal.2d 239, 242, 42 Cal.Rptr. 107, 398 P.2d 147 (1965) (Section 16600 “invalidates provisions in employment contracts prohibiting an employee from working for a competitor ... unless the[provisions] are necessary to protect the employer’s trade secrets”)); see also Roll Sys., 1998 WL 1785455, at *2 n. 1 (dis cussing Shipley and the trade secret exception in California policy).


Context: Although plaintiff is not required to include all measurable variables in her statistical analysis, Dr. Madden's analysis is only minimally probative of commonality without these important variables.

upholding district court's finding that the plaintiffs statistics were flawed because they were based on the false assumption that all plaintiffs were equally qualified and equally interested in the promotions at issue

See Sears, 839 F.2d at 334 (upholding district court’s finding that the plaintiffs statistics were flawed because they were based on the false assumption that all plaintiffs were equally qualified and equally interested in the promotions at issue); see also Radue, 219 F.3d at 616-17 (“Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of discrimination”). For this reason, together with the ones we have already discussed, Dr. Madden’s reports do not show commonality in plaintiffs putative class.

"Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of discrimination"


Context: We also find that no conflict arises from the Plan's grant of discretion to Blue Cross to determine whether a procedure is experimental or investigative. Although the SPD contains no such language, we find no conflict between the absence of discretionary language in the SPD and its presence in the Plan. Vesting the plan administrator with discretion in making coverage decisions simply does not conflict with the SPD's silence on the matter.

See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1321 (9th Cir.1995) (holding that even though the summary plan description did not include discretionary language, the grant of discretionary authority in the plan controlled); see also Jensen v. SIPCO, Inc., 38 F.3d 945, 952 (8th Cir.1994) (explaining that the plan will control “when the plan document is specific and the SPD is silent on a particular matter”).

explaining that the plan will control "when the plan document is specific and the SPD is silent on a particular matter"


Context: This decision not to pursue additional information from Dr. Riccardi was error in light of the ALJ's affirmative duty to develop the record and to give proper weight to the opinions of treating physicians.

noting that "an ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record."

See Devora v. Barnhart, 205 F.Supp.2d 164, 172-73 (S.D.N.Y.2002) (“The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant’s treating physician.”); see also Rosa, 168 F.3d at 79 (noting that “an ALJ cannot reject a treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative record.”).

"The duty of the ALJ to develop the record is particularly important when it comes to obtaining information from a claimant's treating physician."


Context: Mental impairment is a mitigating factor and may tend to negate the wilful or intentional nature of an attorney's misconduct. Attorney Griev.

stating that a hearing judge's factual findings with regard to mitigating factors tended to negate any dishonest or fraudulent intent

Comm’n v. Hayes, 367 Md. 504, 789 A.2d 119 (2002) (stating that a hearing judge’s factual findings with regard to mitigating factors tended to negate any dishonest or fraudulent intent); Attorney Griev.

Comm’n v. Sheridan, 357 Md. 1, 29, 741 A.2d 1143, 1158 (1999) (noting that the state of mind at the time the [attorney] violated the [disciplinary] rules is important in the context of mitigation); see State ex rel. Oklahoma Bar Ass’n. v. Southern, 15 P.3d 1, 7 (Oklahoma 2000) (finding no willful or voluntary misconduct in behavior of an attorney with a severe, untreated vitamin B-12 deficiency which impaired his short-term memory and exasperated his depression).


noting that "the state of mind of the attorney at the time of the violation [is] 'important in the context of mitigation' "

Comm’n v. Tomaino, 362 Md. 483, 498, 765 A.2d 653, 661 (2001) (noting that “the state of mind of the attorney at the time of the violation [is] ‘important in the context of mitigation’ ”); Attorney Griev.


noting that the state of mind at the time the [attorney] violated the [disciplinary] rules is important in the context of mitigation


Context: Given the importance of protecting the interests of both parties, courts often have followed an in camera procedure for disclosing the identity of and requesting information from a confidential informant.

affirming district court's rejection of magistrate judge's report and recommendation suggesting disclosure of confidential informant's identity when confidential informant was not involved in drug buy

Cf. United States v. Harris, 223 Fed.Appx. 747, 751-52 (10th Cir.2007) (unpublished) (affirming district court’s rejection of magistrate judge’s report and recommendation suggesting disclosure of confidential informant’s identity when confidential informant was not involved in drug buy).

remanding case to the "district court to hold in camera hearings to determine whether the informant's testimony is relevant and whether disclosure is warranted"

See 3 WeiNStein’s FedeRal Evidenoe § 510.07 (2d ed.2011); see also United States v. Moralez, 908 F.2d 565, 569 (10th Cir.1990) (remanding case to the “district court to hold in camera hearings to determine whether the informant’s testimony is relevant and whether disclosure is warranted”). This procedure preserves the anonymity of the confidential informant while ensuring that the opposing party has access to the testimony of the informant in order to properly vet his or her claims.


Context: Plaintiff unquestionably fails to sufficiently plead causation by "alleging] particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding."

Yusuf, 35 F.3d at 715; Doe v. Columbia Univ., 101 F.Supp.3d 356, 368, 2015 WL 1840402, at * 9 (S.D.N.Y.2015). Sufficient factual allegations include “statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that ... tend to show the influence of gender.” Sahm, 110 F.Supp.3d at 778, 2015 WL 2406065, at *4 (finding plaintiff’s “factual allegations in the Amended Complaint [did] not satisfy any of these traditional means of demonstrating gender bias.”); see, e.g., Sterrett v. Cowan, 85 F.Supp.3d 916, 937 (E.D.Mich. 2015) (refusing to allow plaintiff to amend his Title IX claim where he failed to identify any female student, other than the complainant, who was treated more favorably than he was treated).

finding plaintiff's "factual allegations in the Amended Complaint [did] not satisfy any of these traditional means of demonstrating gender bias."


Context: Therefore, it is not surprising that federal courts have regularly considered the doctrine of derivative jurisdiction as relating to "removal jurisdiction."

"removal jurisdiction is derivative of state court jurisdiction prior to removal"

Palmer, 498 F.3d at 248 (“removal jurisdiction is derivative of state court jurisdiction prior to removal”); In re Miles, 430 F.3d 1083, 1087 (9th Cir.2005) (considering derivative jurisdiction in removal-jurisdiction terms); Hollis v. Florida State Univ., 259 F.3d 1295, 1298 (11th Cir.2001) (same); North Dakota v. Fredericks, 940 F.2d 333, 337 (8th Cir.1991) (same); Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 714 n. 11 (9th Cir.1990) (same); Morda v. Klein, 865 F.2d 782, 784 (6th Cir.1989) (same); W. & S. Life Ins. Co. v. Smith, 859 F.2d 407, 409 n. 4 (6th Cir.1988) (same); Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208, 210 (1st Cir.1987) (same); Sorosky v. Burroughs Corp., 826 F.2d 794, 801 (9th Cir.1987) (same); Leach v. Fed. Crop Ins. Corp., 741 F.2d 200, 201 (8th Cir.1984) (same); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 167-68 (3d Cir.1976) (same); see also In re Dutile, 935 F.2d 61, 63 (5th Cir.1991) (characterizing the doctrine as “a judicial gloss on the removal statutes”); Brandon v. Interfirst Corp., 858 F.2d 266, 269 n. * (5th Cir.1988) (characterizing derivative jurisdiction as a bar to removal rather than a substantive limit on federal authority); Dep’t of Revenue of State of Iowa v. Inv. Fin. Mgt.

characterizing the doctrine as "a judicial gloss on the removal statutes"


characterizing derivative jurisdiction as a bar to removal rather than a substantive limit on federal authority


Context: Immunity from State Taxes. It is undisputed that MSU and other state colleges are immune from state taxes and from municipal and county ordinances.

"Montclair [State University] is exempt from federal and state taxation."

O’Connell v. State, 171 N.J. 484, 795 A.2d 857, 863 (2002) (“Montclair [State University] is exempt from federal and state taxation.”); see also N.J. Educ. Facilities Auth., 592 A.2d at 563 (indicating that New Jersey City University, which is governed by the same statutory scheme as MSU, would be immune from local land-use regulations).


Context: Since Leyva, every state appellate court to consider the pre-waiver and post-waiver distinction, with only one exception, has applied its reasoning or similar rationale.

acknowledging that the holding in Davis is limited to an alleged invocation of the right to counsel in the post-waiver context, but choosing to also apply it in the pre-waiver context where the Supreme Court has "left open the issue"

See State v. Collins, 937 So.2d 86, 93 (Ala.Crim.App.2005) (holding that Davis did not apply where the defendant’s questions regarding a lawyer were asked “before she signed the waiver-of-rights form”); Noyakuk v. State, 127 P.3d 856, 869 (Alaska Ct.App.2006) (“[T]he Davis rule (that interrogating officers need not interrupt their questioning to clarify the suspect’s wishes) applies only to a post-Mmmda-waiver setting.”); Alvarez v. State, 15 So.3d 738, 745 (Fla.Dist.Ct.App.2009) (“[A]n ambiguous waiver must be clarified before initial questioning.”); State v. Holloway, 760 A.2d 223, 228 (Me.2000) (declining to extend Davis “to require an unambiguous invocation of ... the right to an attorney in the absence of a prior waiver”); Freeman v. State, 158 Md. App. 402, 857 A.2d 557, 573 (Md.Ct.Spec.App.2004) (“[A] careful reading of Davis reveals that the Supreme Court’s bright line rule, requiring an unequivocal assertion of the right to counsel, pertains to a situation in which the defendant had previously waived his right and then, during the interrogation, arguably sought to exercise his rights.”); State v. Tuttle, 650 N.W.2d 20, 28 (S.D.2002) (“Davis, in sum, applies to an equivocal postwaiver invocation of rights.”); but see In re Christopher K., 217 Ill.2d 348, 299 Ill.Dec. 213, 841 N.E.2d 945, 964-65 (2005) (acknowledging that the holding in Davis is limited to an alleged invocation of the right to counsel in the post-waiver context, but choosing to also apply it in the pre-waiver context where the Supreme Court has “left open the issue”).

holding that Davis did not apply where the defendant's questions regarding a lawyer were asked "before she signed the waiver-of-rights form"


"[T]he Davis rule (that interrogating officers need not interrupt their questioning to clarify the suspect's wishes


declining to extend Davis "to require an unambiguous invocation of ... the right to an attorney in the absence of a prior waiver"


"[A] careful reading of Davis reveals that the Supreme Court's bright line rule, requiring an unequivocal assertion of the right to counsel, pertains to a situation in which the defendant had previously waived his right and then, during the interrogation, arguably sought to exercise his rights."


"Davis, in sum, applies to an equivocal postwaiver invocation of rights."


Context: Counsel next raises the issue of whether the district court abused its discretion by denying defense counsel an opportunity to impeach a government witness through cross examination on the matter of the witness's use of aliases. Because the court properly determined that the witness's use of the alias was remote in time from the present offense, and because ample evidence was admitted to impeach the witness, we determine that the district court did not abuse its discretion.

holding that a district court's refusal to allow cross examination as to certain prior conduct was not reversible error where the jury had sufficient information to appraise the bias and motives of the witness

United States v. Kallin, 50 F.3d 689, 693 (9th Cir.1995) (stating that a reviewing court can only reverse for abuse of discretion if it has a definite and firm conviction that the district court committed a clear error of judgment in reaching its conclusion, or based its decision on an erroneous conclusion of law); Cf. United States v. Jackson, 882 F.2d 1444, 1446 (9th Cir.1989) (holding that a district court’s refusal to allow cross examination as to certain prior conduct was not reversible error where the jury had sufficient information to appraise the bias and motives of the witness).


Context: Nor is it significant that the family court proceeding was a custody proceeding instead of a support proceeding.

"Courts are in general agreement that obligations in the nature of alimony, maintenance and support may include the duty to pay attorneys' fees incurred by the former spouse in connection with a divorce proceeding, the obtaining and enforcement of alimony and/or support awards, or for custody disputes." (emphasis added

See Peters, 133 B.R. at 295 (“Courts are in general agreement that obligations in the nature of alimony, maintenance and support may include the duty to pay attorneys’ fees incurred by the former spouse in connection with a divorce proceeding, the obtaining and enforcement of alimony and/or support awards, or for custody disputes.” (emphasis added)); see also In re Akamine, 217 B.R. 104, 108 (S.D.N.Y.1998) (“[T]he vast majority of courts have held that awards of fees inextricably intertwined with proceedings affecting the welfare of a child, such as custody or child support litigation, are deemed ‘support’ within the meaning of § 523(a)(5).” (emphasis added)).

"[T]he vast majority of courts have held that awards of fees inextricably intertwined with proceedings affecting the welfare of a child, such as custody or child support litigation, are deemed 'support' within the meaning of SS 523(a


Context: In reaching this conclusion we do not rely exclusively on the fact that the salary adjustments were paid from the Firm's general assets; the Seventh Circuit has made clear this factor is not determinative.

"[I]f an employer has an administrative scheme for paying benefits, it should not be able to evade the requirements of the statute merely by paying those benefits out of general assets."

See, e.g., Diak, 33 F.3d at 813 (“[P]ayment of benefits out of general funds satisfies the requirement of an ascertainable source of funding.”); see also Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 18, 107 5.Ct. 2211, 96 L.Ed.2d 1 (1987) (“[I]f an employer has an administrative scheme for paying benefits, it should not be able to evade the requirements of the statute merely by paying those benefits out of general assets.”).

"[P]ayment of benefits out of general funds satisfies the requirement of an ascertainable source of funding."


Context: The lesson of the predatory pricing case law is that, generally, above-cost prices are not anticompetitive, and although there may be rare cases where above-cost prices are anticompetitive in the long run, it is "beyond the practical ability" of courts to identify those rare cases without creating an impermissibly high risk of deterring legitimate procompetitive behavior (i.e., price-cutting). These principles extend to above-cost discounting or rebate programs, which condition the discounts or rebates on the customer's purchasing of a specified volume or a specified percentage of its requirements from the seller.

"[I]t is no more an act of coercion, collusion, or [other anticompetitive conduct] for [a supplier] ... to offer more money to [a customer] than it is for such [a] supplierf] to offer the lowest ... prices."

See NicSand, 507 F.3d at 451-52 (applying price-cost test to a challenge to up-front payments offered by a supplier to several large retailers on the basis that such payments were “nothing more than ‘price reductions offered to the buyers for the exclusive right to supply a set of stores under multi-year contracts’ ”); Concord Boat, 207 F.3d at 1060-63 (applying price-cost test to volume discounts and market-share discounts offered by a manufacturer); Barry Wright, 724 F.2d at 232 (applying the price-cost test to uphold discounts linked to a requirements contract); see also Race Tires, 614 F.3d at 79 (“[I]t is no more an act of coercion, collusion, or [other anticompetitive conduct] for [a supplier] ... to offer more money to [a customer] than it is for such [a] supplierf] to offer the lowest ... prices.”).

applying price-cost test to a challenge to up-front payments offered by a supplier to several large retailers on the basis that such payments were "nothing more than 'price reductions offered to the buyers for the exclusive right to supply a set of stores under multi-year contracts' "


applying price-cost test to volume discounts and market-share discounts offered by a manufacturer


applying the price-cost test to uphold discounts linked to a requirements contract


Context: As applicable here, that rule indicates that the individual defendants, as sureties, may raise defenses available to B&A in an action seeking to hold the individual defendants liable as sureties. See also Richard A. Lord, 23 Williston on Contracts 61:7 (4th ed 2002) ("The general rule is that the surety is not liable to the creditor unless the principal obligor is liable; thus, the surety may plead the defenses that are available to the principal."). That is so even though a default order was entered against B&A.

See also Becker v. Pieper, 176 Or App 635, 644, 32 P3d 912 (2001) (noting circumstances where a judgment entered in favor of a nondefaulting codefendant would necessarily apply to a defaulting codefendant with the same force and effect); ORCP 67 E(2) (stating in part, that default against less than all parties in an action against parties jointly indebted does not preclude a judgment in the same action in favor of the remaining parties).

concluding that where default is entered against the principal, the facts alleged to be the basis of the obligation have never been subject to real inquiry and judgment is only prima facie evidence against the surety of the principal's obligation

Kliks v. McCaffrey, 221 Or 81, 350 P2d 417 (1960) (concluding that where default is entered against the principal, the facts alleged to be the basis of the obligation have never been subject to real inquiry and judgment is only prima facie evidence against the surety of the principal’s obligation).


Context: In order to obtain permanent injunctive relief in an action under Section 6c of the Act, the Commission must not only establish that a violation of the Act has occurred, but also that there is a reasonable likelihood of future violations. To be sure, while past misconduct does not require the conclusion that there is a likelihood of future misconduct, it is "highly suggestive of the likelihood of future violations."

"the [Securities and Exchange] Commission is entitled to prevail when the inferences flowing from the defendant's prior illegal conduct, viewed in light of the present circumstances, betoken a 'reasonable likelihood' of future transgressions"

Hunt, 591 F.2d at 1220; see also CFTC v. Am. Metals Exch. Corp., 693 F.Supp. 168, 191 (D.N.J.1988) (“The likelihood of future violations may be inferred from past infractions based upon consideration of the totality of the circumstances to determine if the past infraction was an isolated occurrence as opposed to an indication of a systematic and continuous pattern of wrongdoing.”) (Citation omitted); Cf. SEC v. Zale Corp., 650 F.2d 718, 720 (5th Cir.1981) (“the [Securities and Exchange] Commission is entitled to prevail when the inferences flowing from the defendant’s prior illegal conduct, viewed in light of the present circumstances, betoken a ‘reasonable likelihood’ of future transgressions”), cert. denied sub nom., 454 U.S. 1124, 102 S.Ct. 973, 71 L.Ed.2d 111 (1981) (citations omitted); Hunt, 591 F.2d, at 1219-20 (reversing the district court’s denial of injunctive relief, and stating that a court of appeals should not hesitate “to reverse an order denying [injunctive] relief when it is evident that the trial court’s discretion has not been exercised to effectuate the manifest objectives of the specific legislation involved”) (internal quotation marks and citation omitted).

"The likelihood of future violations may be inferred from past infractions based upon consideration of the totality of the circumstances to determine if the past infraction was an isolated occurrence as opposed to an indication of a systematic and continuous pattern of wrongdoing."


Context: "Mere retention" of securities during a period of an alleged violation does not satisfy the requirement that the violation be in connection with the purchase or sale of a security. Pollak v. Eastman Dillon, CCH Fed.See.L.Rep. P94,-987 at 97,412 (S.D.N.Y.1975); In re Hoe & Co., Inc., CCH Fed.See.L.Rep. P 94,553 at 95,923 (S.D.N.Y.1974). The Second Circuit has stated "[bjefore changes in the rights of a security holder can qualify as the 'purchase' of a new security under 10(b) and Rule 10b-5, there must be such significant change in the nature of the investment or in the investment risks as to amount to a new investment."

Abrahamson v. Fles chner, 568 F.2d 862, 868 (2d Cir.1977), cert. denied, 436 U.S. 905, 913, 98 S.Ct. 2236, 2253, 56 L.Ed.2d 403, 414 (1978) (modifications affected by the adoption of a new partnership agreement did not constitute the purchase and sale of new securities); see Rothstein v. Seidman & Seidman, 410 F.Supp. 244, 247 (S.D.N.Y.1976) (agreements permitting loans to remain outstanding did not constitute reinvestments).


Context: The trial court credited the confession, because the defendant's tone, clarity, and detailed recall of the robberies as set forth in the confession supported a finding of lucidity. Because he had a record of sixteen prior arrests, the district court found that Palmer comprehended the significance of a Miranda waiver. The court's finding that Palmer intelligently and knowingly waived his rights had a solid evidentiary basis in his confession statements and Detective Sprankle's testimony and thus was not clearly erroneous..

See United States v. Crooks, 766 F.2d 7, 11 (1st Cir.1985) (determination that statement not coerced, given government denial of threats, has adequate evidentiary support); see also United States v. Melanson, 691 F.2d 579, 588 (1st Cir.1981) (courts should consider the age, experience, education, background, intelligence, and conduct of the defendant).


Context: However, the IJ did not err in declining to credit Hasan's explanation, particularly given that: (1) Hasan, who had volunteered the information that he paid his first wife, failed to mention that he gave his second wife a dowry; (2) the two thousand dollar payment, which included a payment upon divorce, more closely resembled a commercial transaction than did the unconditional gift of gold jewelry that Hasan provided his second wife; and (3) Hasan failed to provide a consistent account regarding where he and his first wife had lived during their relationship, thereby further calling into question its validity.

"[A]n IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the 'totality of the circumstances' established that an asylum applicant is not credible"

See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (explaining that, although an IJ must consider an applicant’s explanations, he need not credit them unless a reasonable fact-finder would be compelled to do so); see also Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ established that an asylum applicant is not credible”) (internal citation omitted) (emphasis in original). Thus, based on Hasan’s admission that he paid his first wife to marry him in an attempt to procure a visa, the agency did not err in finding him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).

explaining that, although an IJ must consider an applicant's explanations, he need not credit them unless a reasonable fact-finder would be compelled to do so


Context: These comments were objected to contemporaneously, and thus, the issue was properly preserved. A comment suggesting a witness gave "uncontra-dicted" or "uncontroverted" evidence is an impermissible comment on appellant's right .to remain silent in those cases where the defendant is the only individual who can contradict the evidence.

holding the State's comment that the only witness gave "uncontradicted and uncontro-verted" testimony establishing appellant's guilt was an impermissible comment on appellant's right to remain silent where appellant was the only individual capable of refuting the witness's testimony

Hill v. State, 980 So.2d 1195 (Fla. 3d DCA 2008) (holding the State’s comment that the only witness gave “uncontradicted and uncontro-verted” testimony establishing appellant’s guilt was an impermissible comment on appellant’s right to remain silent where appellant was the only individual capable of refuting the witness’s testimony); see also Watts v. State, 921 So.2d 722, 724 (Fla. 4th DCA 2006) (same); Smith v. State, 843 So.2d 1010 (Fla. 1st DCA 2003) (holding the State’s comment that “[n]o-body testified he wasn’t the guy” was an impermissible comment on appellant’s right to remain silent in a case in which the only individual who could have contradicted the State’s evidence was the appellant).

holding the State's comment that "[n]o-body testified he wasn't the guy" was an impermissible comment on appellant's right to remain silent in a case in which the only individual who could have contradicted the State's evidence was the appellant


Context: Recognizing that the Buckley framework might control here, the Unions contend that the most stringent level of review under that framework -- one equal to strict scrutiny -- must apply because the VCA "limits the quantity of political speech." Although the Unions are correct that we apply a standard akin to strict scrutiny when reviewing limits on political expenditures, that is not the case with respect to political contributions.

"Although a less stringent standard of review applies to limits on political contributions, we conclude that the standard for expenditure limits operates identically to strict scrutiny review."

Ho- mans, 366 F.3d at 906 (“Although a less stringent standard of review applies to limits on political contributions, we conclude that the standard for expenditure limits operates identically to strict scrutiny review.”); see also McConnell, 540 U.S. at 134, 124 S.Ct. 619; Colo. Republican Fed. Campaign Comm., 533 U.S. at 440 (“Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do.”).

"Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do."


Context: See Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehabilitative Servs., 225 F.Sd 1208, 1211 (11th Cir.2000) (commenting that participating states are "granted broad latitude in defining the scope of covered services as well as many other key characteristics of their [Medicaid] programs"). That same flexibility extends to the EPSDT mandate.

noting that consent decree at issue represented one choice among "various ways that a State could implement the Medicaid Act" to comply with the "general EPSDT statute"

See Katie A., 481 F.3d at 1159 (“While the states must live up to their obligations to provide all EPSDT services, the statute and regulations afford them discretion as to how to do so.”); see also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 439, 124 S.Ct. 899, 904-05, 157 L.Ed.2d 855 (2004) (noting that consent decree at issue represented one choice among “various ways that a State could implement the Medicaid Act” to comply with the “general EPSDT statute”).

"While the states must live up to their obligations to provide all EPSDT services, the statute and regulations afford them discretion as to how to do so."


Context: . This reading of section 5K1.1 does not insulate the government from judicial review where the government has agreed in a plea agreement to file a motion in return for a defendant's assistance. That situation is, of course, wholly distinct.

"We can find no legal basis for requiring the government to make a SS 5K1.1 motion when it did not promise explicitly ... to do so, and no such promise need be implied to make the agreement meaningful."

See United States v. Conner, 930 F.2d 1073, 1075 (4th Cir.1991) (“once the government uses its § 5K1.1 discretion as a bargaining chip in the plea negotiation process, that discretion is circumscribed by the terms of the agreement”); see also United States v. Havener, 905 F.2d 3, 8 (1st Cir.1990) ("We can find no legal basis for requiring the government to make a § 5K1.1 motion when it did not promise explicitly ... to do so, and no such promise need be implied to make the agreement meaningful.”); La Guardia, 902 F.2d at 1016 (" a defendant has the right to reserve his assistance unless the government, by plea agreement, commits to seeking a downward departure”).

"once the government uses its SS 5K1.1 discretion as a bargaining chip in the plea negotiation process, that discretion is circumscribed by the terms of the agreement"


" a defendant has the right to reserve his assistance unless the government, by plea agreement, commits to seeking a downward departure"


Context: The first issued raised by the Vessel Owners as been resolved by the Fifth Circuit in Davis's favor. The Fifth Circuit has expressly held that a concession as to the sufficiency of the surety is not a prerequisite to the court imposing a stay of limitation of liability proceedings.

See In re Two “R” Drilling Co., 943 F.2d 576, 578 (5th Cir.1991) (explaining that plaintiffs properly stipulated that no judgment would be enforced above the valuation of the vessel and freight contained in the complaint); See also, Magnolia Marine Transport, 964 F.2d at 1575 (holding that to be sufficient, stipulations must state than no judgment will be asserted in excess of the value of the limitation fund).


Context: The majority of cases interpreting Title IX, Title VI and section 504 support an expansive reading of the phrase "receiv ing Federal financial assistance." Civil rights statutes such as Title IX generally are entitled to broad interpretation to facilitate their remedial purposes.

See also Cannon, 441 U.S. at 686 n.7, 99 S.Ct. at 1952 n.7 (the scope and purpose of Title IX place it within the civil rights enforcement scheme that Congress has created over the past 110 years).

Reconstruction Civil Rights Statutes to be accorded "a sweep as broad as [their] language."

See, e. g., Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1795, 29 L.Ed.2d 338 (1971) (Reconstruction Civil Rights Statutes to be accorded “a sweep as broad as [their] language.”) (citations omitted); United States v. El Camino Community College District, 454 F.Supp. 825 (C.D.Cal.1978), aff’d, 600 F.2d 1258 (9th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 642 (1980) (Title VI to be construed liberally to effectuate its remedial purpose).


Title VI to be construed liberally to effectuate its remedial purpose


Context: A defendant sued in his official capacity is a different "legal personage" than one sued in his individual, or personal capacity.

"[A] section 1983 suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same."

See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also Myers v. Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1316 n. 2 (10th Cir.1998) (“[A] section 1983 suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.”) (citation and quotation omitted).

"The concept of 'legal personage' is a practical means of identifying the real interests at stake in a lawsuit."

See Karcher v. May, 484 U.S. 72, 78, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (“The concept of ‘legal personage’ is a practical means of identifying the real interests at stake in a lawsuit.”). A suit against government officers in their official capacities is actually a suit against the government entity that employs the officers.


Context: Ogman offers no authority, however, and we are aware of none, that would permit a district court in these circumstances to not consider all offenses to which a defendant pleads guilty when calculating a sentence. Ogman voluntarily pled guilty to both crimes with which he was legitimately charged. Thus, the district court reasonably considered both convictions in calculating his sentence.

"[T]he fact that a charge was used in plea bargaining does not mean that the penalty mandated by statute does not apply."

See United States v. Stanley, 928 F.2d 575, 582 (2d Cir.1991) (“[T]he fact that a charge was used in plea bargaining does not mean that the penalty mandated by statute does not apply.”); see also Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (holding that a prosecutor’s threat to bring more serious charges to induce a plea bargain “no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”).

holding that a prosecutor's threat to bring more serious charges to induce a plea bargain "no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution"


Context: Plaintiffs complain of injury resulting from defendant's capping program as a whole. The capping program, in turn, was furthered by defendant's predicate racketeering acts, Complaint 1124; however, it was more than merely a series of violations of the mail and wire fraud statutes. What injured plaintiffs was not any one particular letter or telephone call, but the underlying scheme as a whole, which enabled defendant to perpetrate an ongoing systematic corporate-survival strategy to violate plaintiffs' hard-earned rights to employee benefits, in violation of ERISA. As such, plaintiff has adequately alleged injury beyond that caused by the predicate acts of mail and wire fraud.

Cf., Bankers Trust Co. v. Rhoades, supra, 741 F.2d at 517 (racketeering related injury stems from the pattern of racketeering activity and not the predicate acts themselves).

See, e.g., Alexander Grant, supra, 742 F.2d at 413 (racketeering related injury alleged as a result of a pattern of mail and wire fraud); Beth Israel Medical Center v. Smith, 576 F.Supp. 1061, 1070 (S.D.N.Y.1983) (plaintiffs’ injuries the result of a “pervasive, ongoing and debilitating” scheme “not confined to specific monetary losses resulting from discrete acts of mail and wire fraud”).


plaintiffs' injuries the result of a "pervasive, ongoing and debilitating" scheme "not confined to specific monetary losses resulting from discrete acts of mail and wire fraud"


Context: However, to fulfill the intent of Congress and to harmonize the application of SS 1930(a)(6) with these sections of the Code, the court believes that the quarterly fees should be considered post-confirmation administrative expenses not specifically addressed in the plan. Consequently, the payment of such expenses should not be. considered a modification of the plan.

See In re CF&I Fabricators, 214 B.R. at 19; In re Munford, Inc., 216 B.R. 913, 916-17; In re Maruko, Inc., 206 B.R. at 228; In re McLean Square Associates, 201 B.R. at 440; see also, United States Trustee v. Gryphon at the Stone Mansion, Inc., 216 B.R. 764 (W.D.Pa.1997) quoting, In re Richardson Service Corp., 210 B.R. at 335 (“A confirmed plan cannot bind the United States as to statutory obligations arising after confirmation.”); but see, In re Salina Speedway, Inc., 210 B.R. at 855-56; In re Hudson Oil Co., 210 B.R. at 385-86 (remanding case to determine whether allowing a post-confirmation fee would modify a substantially consummated plan); In re Burk, 205 B.R. at 796-99.

"A confirmed plan cannot bind the United States as to statutory obligations arising after confirmation."


Context: (Tr. at 37-41, 53-58, 494.) This points up the danger of basing a decision on the claimant's mental condition at a particular point in time, rather than considering the entire record.

"As we have explained before, a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition."

See Punzio, 630 F.3d at 710 (“As we have explained before, a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition.”); see also Farrell, 692 F.3d at 773 (stating that “when a patient ... is only unpredictably able to function in a normal work environment, the resulting intermittent attendance normally precludes the possibility of holding down a steady job”).

stating that "when a patient ... is only unpredictably able to function in a normal work environment, the resulting intermittent attendance normally precludes the possibility of holding down a steady job"


Context: The Indictment charged Mr. Ciocchetti in general terms, indicating that the false statements included the IRS tax returns. This language broadened rather than limited the Indictment, thereby allowing the government to use evidence beyond the IRS tax returns to show the use of false statements without "misle[ading Mr. Ciocchetti] about the nature of the charge[ ]" against him.

"[A]n indictment may be drafted in general terms so long as it apprises the defendant of the nature of the charge against him."

Cruz-Rodriguez, 570 F.3d at 1182 (emphasis added) (quoting Van Tieu, 279 F.3d at 921) (internal quotation marks omitted); see Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (stating that, under an indictment “drawn in general terms,” a conviction might rest on a showing of evidence beyond that which is specifically identified in the indictment); cf. United States v. Rivera, 837 F.2d 906, 929 (10th Cir.1988) (“[A]n indictment may be drafted in general terms so long as it apprises the defendant of the nature of the charge against him.”), vacated on other grounds, 900 F.2d 1462 (10th Cir.1990) (en banc).

stating that, under an indictment "drawn in general terms," a conviction might rest on a showing of evidence beyond that which is specifically identified in the indictment


Context: A magistrate may not entertain a motion for reconsideration under C.R.C.P. 59 or for relief from a judgment under C.R.C.P. 60.

See In re Marriage of Phelps, 74 P.3d 506, 509 (Colo.App.2003) (declaring magistrate's ruling on motion for reconsideration void); In re Marriage of Tonn, 53 P.3d 1185, 1187 (Colo.App.2002) (rules governing magistrates do not authorize any motion respecting a magistrate's order except a motion for review); see also In re Marriage of Marson, 929 P.2d 51, 54 (Colo.App.1996) (where parties have not filed a motion for modification of parenting time, magistrate cannot unilaterally change parenting time order); cf. In re Marriage of McSoud, 131 P.3d 1208, 1221 (Colo.App.2006) (district court could modify its oral findings or orders at any time before issuing a final written order); In re Marriage of Roosa, 89 P.3d 524, 530 (Colo.App.2004) (magistrate had no power to decide motion for reconsideration of magistrate's order; nevertheless, district court could construe motion for reconsideration as motion for district court review, and decide it as such).


district court could modify its oral findings or orders at any time before issuing a final written order


Context: One may certainly question the wisdom of Ms. Lounds's approach in light of our precedent. Specifically, our caselaw indicates that explicitly race-based conduct should not be viewed in isolation in determining whether a workplace environment is sufficiently polluted with racially offensive harassment.

noting as to behavior that is not explicitly gender-based that "if it reasonably could be inferred that the conduct was related to gender or arose out of a context in which admittedly sex and gender-related conduct occurred, then it is for the fact finder to decide whether such an inference should be drawn"

See, e.g., Hernandez, 684 F.3d at 960. Indeed, as we discerned in Chavez, a holistic analysis may actually unearth the racial dimension of conduct that may superficially appear to be race-neutral. 397 F.3d at 833 (“Conduct that appears [race]-neutral in isolation may in fact be [race]-based, but may appear so only when viewed in the context of other [race]-based behavior.”); cf. O’Shea, 185 F.3d at 1097 (noting as to behavior that is not explicitly gender-based that “if it reasonably could be inferred that the conduct was related to gender or arose out of a context in which admittedly sex and gender-related conduct occurred, then it is for the fact finder to decide whether such an inference should be drawn”). We are not, however, in the business of making arguments for the parties.

"Conduct that appears [race]-neutral in isolation may in fact be [race]-based, but may appear so only when viewed in the context of other [race]-based behavior."


Context: . In Winters, the Fifth Circuit combined and considered together the "acting under" and "causal nexus" prongs.

concluding that the "acting under" sub-part was satisfied, but the "causal nexus" requirement was not satisfied

See Watson, 551 U.S. 142, 127 S.Ct. 2301, 168 L.Ed.2d 42 (cigarette manufacturers were not "acting under” direction of federal officer in light of federal laws, rules, and regulations governing labeling requirements on cigarettes); see also Wilde v. Huntington Ingalls, Inc., 616 Fed.Appx. 710, 713 (5th Cir.2015) (concluding that the "acting under” sub-part was satisfied, but the "causal nexus” requirement was not satisfied).

cigarette manufacturers were not "acting under" direction of federal officer in light of federal laws, rules, and regulations governing labeling requirements on cigarettes


Context: P 6 Accordingly, the "appropriate vehicle" for Wilson to have sought review was special action, not appeal.

"The proper vehicle to challenge the denial of a motion to dismiss is not an appeal but a petition for special action."

See Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989) (“[A] petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim.”); see also State v. Meza, 203 Ariz. 50, ¶ 18, 50 P.3d 407, ¶ 18 (App.2002) (“The proper vehicle to challenge the denial of a motion to dismiss is not an appeal but a petition for special action.”); Hovey v. Superior Court, 165 Ariz. 278, 281, 798 P.2d 416, 419 (App. 1990) (“The denial of a motion to dismiss is not an appealable order.”); but cf. State v. Choate, 151 Ariz. 57, 57-58, 725 P.2d 764, 764-65 (App.1986) (when judgment previously had been entered, appellate court had jurisdiction under former § 13-4033(2) of interlocutory appeal of double jeopardy claim because it “is constitutionally mandated”).

"[A] petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim."


"The denial of a motion to dismiss is not an appealable order."


when judgment previously had been entered, appellate court had jurisdiction under former SS 13-4033(2


Context: The privilege is construed narrowly and the party asserting it has the burden of establishing all of its essential elements. On this motion, PBGC argues that IH waived any privilege as to the documents it seeks. Because the court believes that IH's treatment of the communications at issue is inconsistent with any intention to maintain their confidentiality, the PBGC's motion is granted in substantial part.

affirming an order allowing newspapers access to corporation's special litigation committee report where the report was used as evidence in a motion to terminate a shareholder's derivative suit

See, e.g., Lawless, 709 F.2d at 487 (transmission of information for use in preparing a tax return destroys any expectation of confidentiality that might otherwise have existed); Suburban Sew ’N Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254, 258 (N.D.Ill.1981); cf. In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1314 (7th Cir.1984) (affirming an order allowing newspapers access to corporation’s special litigation committee report where the report was used as evidence in a motion to terminate a shareholder’s derivative suit).


Context: The .legality of simply owning, possessing, carrying, or concealing the knives was irrelevant. Thus, the trial court did not err in refusing this instruction.

trial court "should not instruct on abstract legal principles unrelated to the issues in controversy"

See People v. Montoya, 928 P.2d 781, 784 (Colo.App.1996) (trial court “should not instruct on abstract legal principles unrelated to the issues in controversy”); see also People v. Covington, 988 P.2d 657, 663 (Colo.App.1999) (“[ajlthough the instruction was an accurate statement of the law, it was superfluous and should not be given”), rev’d on other grounds, 19 P.3d 15 (Colo.2001).

"[ajlthough the instruction was an accurate statement of the law, it was superfluous and should not be given"


Context: Florida courts have consistently held that family support concerns are not valid reasons for downward departure.

concluding "it would not be good public policy for the legislature to punish those with families to support less than those without families"

See Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (concluding “it would not be good public policy for the legislature to punish those with families to support less than those without families”); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999) (stating “[w]hile we are not unsympathetic to the trial judge’s concern that incarcerating Bray may place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence”); State v. Warren, 629 So.2d 1014, 1015 (Fla. 4th DCA 1993) (listing the fact that the defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure); see also State v. Chapman, 805 So.2d 906, 907-08 (Fla. 2d DCA 2001) (noting the court had previously rejected the defendant’s need to support his child as a reason for a downward departure).

noting the court had previously rejected the defendant's need to support his child as a reason for a downward departure


stating "[w]hile we are not unsympathetic to the trial judge's concern that incarcerating Bray may place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence"


listing the fact that the defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure


Context: A court's determination of whether a mark is suggestive or descriptive is not as clear as one would hope and is not as objective as one would think.

holding that "Entrepreneur" is merely descriptive as the name of a magazine because an "entirely unimaginative, literal-minded person" would understand its meaning

Zobmondo Entm’t, 602 F.3d at 1114; Lahoti, 586 F.3d at 1197. The dictionary definition may be relevant in the analysis of whether a mark is descriptive because it shows how the public may view the mark and what, if any, mental step is needed. Zobmondo Entm’t, 602 F.3d at 1116; see Surgicenters of Am., Inc. v. Med. Dental Surgeries, Co., 601 F.2d 1011, 1015 n.11 (9th Cir. 1979)(“While not determinative, dictionary definitions are relevant and often persuasive in determining how a term is understood by the consuming public ... ”); cf. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1142 (9th Cir. 2002)(holding that “Entrepreneur” is merely descriptive as the name of a magazine because an “entirely unimaginative, literal-minded person” would understand its meaning).

"While not determinative, dictionary definitions are relevant and often persuasive in determining how a term is understood by the consuming public ... "


Context: P 33 The rationale set forth in the special note quoted above is persuasive and provides additional support for our holding that sections 413, 416, and 427 of the Restatement have no application to employees of independent contractors performing the work at issue. The phrase "to others" in these sections does not encompass such employees, but rather, innocent third parties. This is consistent with the analysis in Dayton and with Tenth Circuit case law applying Dayton to this issue.

acknowledging that general law on subject reaches same conclusion as to Restatement SS 427

See Eutsler v. United States, 376 F.2d 634, 636 (10th Cir.1967) (concluding that phrase “to others” as contained in Restatement § 413 does not include employees of independent contractors); see also United States v. Page, 350 F.2d 28 (10th Cir.1965), cert. denied, 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966) (acknowledging that general law on subject reaches same conclusion as to Restatement § 427).

concluding that phrase "to others" as contained in Restatement SS 413 does not include employees of independent contractors


Context: Finally, the State argues that the Transitional Reinsurance-Program runs afoul of the Intergovernmental Tax Immunity Doctrine -- an older creed that once counseled against the federal and 'state governments taxing one another.

"[T]he fear that one government may cripple or obstruct the operations of the other early led to the assumption that there was a reciprocal immunity of the instrumentalities of each from taxation by the. other."

See New York v. United States, 326 U.S. 572, 575, 66 S.Ct. 310, 90 L.Ed. 326 (1946) (“[T]he fear that one government may cripple or obstruct the operations of the other early led to the assumption that there was a reciprocal immunity of the instrumentalities of each from taxation by the. other.”); see also Baker, 485 U.S. at 518 n. 11, 108 S.Ct. 1355 (describing historical sources and contours of the Intergovernmental Tax Immunity Doctrine).


Context: Some of the contents of P-10 (the three-ring binder sent by Brown & Connery to Green) are clearly confidential and not subject to disclosure. The selection process used to assemble P-10, and the grouping of the photographs and documents represent the mental impressions of Plaintiffs counsel and are protected work product. This also was protected work product.

Conforti, 170 N.J.Super. at 73, 405 A.2d 487 (the expert “was privy to confidential documents as well as the mental impressions, opinions and legal theories of counsel”); see Paul, 123 F.R.D. at 280 (noting that the information passed on to the expert did not involve the theories of the party seeking disqualification).

the expert "was privy to confidential documents as well as the mental impressions, opinions and legal theories of counsel"


Context: The instant situation is but one of the complications resulting from the Supreme Court's decision in Kirby. Accordingly, we urge the Alabama Supreme Court to revisit its decision in Kirby, particularly that portion relating to the right to appeal Kirby motions, in light of the fact that a question exists as to whether the grant or denial of Kirby motion is even appealable. We believe that the ultimate decision to resentence a defendant based on the amendment to the HFOA is a decision that is within the discretion of the circuit court and one that should not be subject to appellate review.

See also Prestwood v. State, 915 So.2d 580 (Ala.Crim.App.2005) (severely limits the issues this Court will consider on the appeal from the denial of a motion to reconsider a sentence).

Compare Gilmore v. State, 669 So.2d 239, 239 (Ala.Cr.App.1995) (granting probation is discretionary with the circuit court and not subject to appellate review).


Context: In this context, the legislature's creation of a residency requirement in subsection (4)(d)(4) of section 627.736 must be read narrowly as a pure residency requirement and not a requirement that includes elements of either domicile or citizenship. The legislature did not intend the receipt of PIP benefits and the corollary application of the no-fault threshold to be dependent upon a claimant's right to vote or his domicile or citizenship in Florida. Although this statutorily mandated insurance is not a government program, a more provincial definition would raise other questions of a constitutional dimension.

finding workers' immigration status did not affect entitlement to temporary disability payments

See Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (finding welfare laws conditioning benefits on citizenship and imposing durational residency requirement on aliens violative of equal protection clause); see also Del Taco v. Workers’ Comp. Appeals Bd., 79 Cal.App.4th 1437, 94 Cal.Rptr.2d 825 (2000) (finding workers’ immigration status did not affect entitlement to temporary disability payments); Gene’s Harvesting v. Rodriguez, 421 So.2d 701(Fla. 1st DCA 1982) (holding claimant’s status as illegal alien did not preclude entitlement to benefits for work-related injury).


holding claimant's status as illegal alien did not preclude entitlement to benefits for work-related injury


Context: First, "|j]ust as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State." Second, courts have upheld transfers of inmates to private out-of-state facilities.

"It is a popular myth among prisoners that a state's authority over a prisoner ends at the state's geographical border."

See Evans v. Holm, 114 F.Supp.2d 706, 711 (W.D.Tenn.2000) (“It is a popular myth among prisoners that a state’s authority over a prisoner ends at the state’s geographical border.”); cf. Blango v. Thornburgh, 942 F.2d 1487, 1491 (10th Cir.1991) (District of Columbia did not waive jurisdiction over habeas petitioner by transferring him to federal prison in Kansas). Finally, Mr. Abordo’s reliance on the Full Faith and Credit Clause is misplaced, see Michigan v. Doran, 439 U.S. 282, 287-89, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978) (in criminal matters, concept of full faith and credit is articulated through Extradition Clause, U.S. Const. art. IV, § 2, cl. 2), and in any event, Minnesota was not enforcing Hawaii’s penal judgment.

in criminal matters, concept of full faith and credit is articulated through Extradition Clause, U.S. Const. art. IV, SS 2, cl. 2


Context: Nor does the legislative history suggest that the General Assembly intended to create a new and separate offense. We conclude that the General Assembly did not intend for heat of passion to be an affirmative defense to the offense of first-degree assault.

See People v. Pennese, 830 P.2d 1085, 1088 (Colo.App.1991) (stating that the General Assembly chose not to classify heat of passion as an affirmative defense to first-degree assault); see also People v. Huckleberry, 768 P.2d 1235, 1239 (Colo.1989) (rejecting argument that alibi was an affirmative defense and noting that an alibi defense was not expressly established by statute as an affirmative defense).


Context: Nor is the fact that Dallio ultimately performed competently in conducting his defense necessarily material to determine the validity of a Sixth Amendment waiver under Faretta.

"[The defendant's] technical legal knowledge ... was not relevant to an assessment of his knowing exercise of the right to defend himself."

See Faretta, 422 U.S. at 836, 95 S.Ct. 2525 (“[The defendant’s] technical legal knowledge ... was not relevant to an assessment of his knowing exercise of the right to defend himself.”); see also Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (“[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, • not the competence to represent himself.”).

"[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, * not the competence to represent himself."


Context: Under the circumstances alleged here, it takes more than saber rattling alone to impose quid pro quo liability on an employer; the supervisor must have wielded the authority entrusted to him to subject the victim to adverse job consequences as a result of her refusal to submit to unwelcome sexual advances.

quid pro quo sexual harassment exists when adverse job consequences result from employee's refusal to submit to sexual advances

See Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir.1993) (“If the plaintiff can show that she suffered an economic injury from her supervisor’s actions, the employer becomes strictly liable without any farther showing of why the employer should be responsible for the supervisor’s conduct.”) (quoting Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.1992); Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178, 186 (6th Cir.1992) (“[T]he employee’s refusal to submit to the supervisor’s sexual demands [must have] resulted in a tangible job detriment.”) (quoting Highlander, 805 F.2d at 648); Hicks, 833 F.2d at 1414 (quid pro quo sexual harassment exists when adverse job consequences result from employee’s refusal to submit to sexual advances); Highlander, 805 F.2d at 649 (no cause of action for quid pro quo sexual harassment where “the record [is] totally devoid of any evidence tending to demonstrate that plaintiff was denied a job benefit or suffered a job detriment as a result of her failure to engage in the activity suggested by [defendant]”); but see Nichols v. Frank, 42 F.3d 503, 513 (9th Cir.1994) (“[A] supervisor’s intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment.”).

"[A] supervisor's intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment."


no cause of action for quid pro quo sexual harassment where "the record [is] totally devoid of any evidence tending to demonstrate that plaintiff was denied a job benefit or suffered a job detriment as a result of her failure to engage in the activity suggested by [defendant]"


Context: The statistical evidence thus shows some disparity. A sufficient disparity may constitute a "pattern or practice" of discrimination and may support a finding of intentional discrimination.

proof of pattern or practice of discrimination supports inference that "any particular employment decision during the period in which the discriminatory policy was in force, was made in pursuit of that plan"

See Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598-99 (2d Cir.1986) (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (proof of pattern or practice of discrimination supports inference that “any particular employment decision during the period in which the discriminatory policy was in force, was made in pursuit of that plan”)); Ellis v. Provident Life & Accident Ins. Co., No. 91 Civ. 7074,1995 WL 453333, * 5 (S.D.N.Y. Aug. 1, 1995) (citing Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir.1984); Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir.1981)), aff'd, 107 F.3d 2, 1997 WL 76861 (2d Cir. Feb. 24, 1997); see also Scelsa v. City Univ. of N.Y., 806 F.Supp. 1126,1143 (S.D.N.Y.1992) (“While in a disparate treatment ease, proof of discriminatory intent is required, in some cases it can be inferred from the ‘mere fact of a difference in treatment.’”); Segar v. Smith, 738 F.2d 1249, 1271-72 (D.C.Cir.1984), cert. denied sub. nom. Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); Silver v. City Univ. of N.Y., 767 F.Supp. 494, 498 (S.D.N.Y.), aff'd, 947 F.2d 1021 (2d Cir.1991).

"While in a disparate treatment ease, proof of discriminatory intent is required, in some cases it can be inferred from the 'mere fact of a difference in treatment.'"


Context: According to the opinion, the shortcoming here -- the absence of an adequate basis to award costs -- is the court's and not the candidate's. But, the candidate was the moving party requesting litigation costs and has already had two opportunities to identify the basis for that request.

applicant failed to establish entitlement to counsel fees pursuant to 23 Pa.C.S. SS 4351(a

See Bowser, 807 A.2d at 837 (applicant failed to establish entitlement to counsel fees pursuant to 23 Pa.C.S. § 4351(a); Section 4351(a) states that court "may” assess costs and counsel fees in favor of prevailing party in child support case); cf. Jones v. Muir, 511 Pa. 535, 515 A.2d 855, 859 (1986) (applicant for counsel fees from common fund has burden of proving his/her entitlement to those fees).


Context: Moreover, Angelina's statements to investigating officers in the days following Bryan's death did not waive her privilege against self-incrimination with respect to the later criminal proceeding against Torre or with respect to the instant civil proceeding.

holding that when a witness's previous disclosure is not an actual admission of guilt or incriminating facts, the witness subsequently may assert the privilege and decline to testify as to matters that might incriminate him

See United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.1979) (holding that voluntary testimony before a grand jury did not waive the privilege at trial, because “[i]t is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs”); see also McCarthy v. Arndstein, 262 U.S. 355, 357 — 59, 43 S.Ct. 562, 67 L.Ed. 1023 (1923) (holding that when a witness’s previous disclosure is not an actual admission of guilt or incriminating facts, the witness subsequently may assert the privilege and decline to testify as to matters that might incriminate him).

holding that voluntary testimony before a grand jury did not waive the privilege at trial, because "[i]t is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs"


Context: There is nothing wrong with the abstract legal basis of Resco's theory of standing. It is well settled in the Third Circuit that "express assignments of antitrust claims from a direct purchaser to an indirect purchaser are permissible and do not run afoul of Illinois Brick's standing requirements."

holding that "any assignment of antitrust claims, as a matter of federal common law, must be an express assignment ... [because] an express assignment ... entirely eliminates any problems of split recoveries or duplicative liability."

In re K-Dur Antitrust Litig., 338 F.Supp.2d at 539 (citing Gulf-stream, III Associates, Inc., 995 F.2d at 438-440 (holding that “any assignment of antitrust claims, as a matter of federal common law, must be an express assignment ... [because] an express assignment ... entirely eliminates any problems of split recoveries or duplicative liability.”)); see also In re Wellbutrin Sr Direct Purchaser Antitrust Litig., 70 Fed.R.Serv.3d 664, 2008 WL 1946848 (E.D.Pa.2008) (“this circuit has long recognized that antitrust claims can be assigned.... Indeed, numerous courts have certified litigation classes in which the named plaintiffs were operating under an assignment.”).

"this circuit has long recognized that antitrust claims can be assigned.... Indeed, numerous courts have certified litigation classes in which the named plaintiffs were operating under an assignment."


Context: Consequently, not only was acceptance of the clause a condition of employment, it was a condition of being considered for employment. A prospective employee such as Hernandez thus has no meaningful opportunity to negotiate its terms.

holding that an arbitration agreement was procedurally unconscionable because it "was imposed on employees as a condition of employment and there was no opportunity to negotiate ... "

See Circuit City Stores, 279 F.3d at 893 (holding that an agreement was procedurally unconscionable because “job applicants [were] not permitted to modify the agreement’s terms — they [had to] take the contract or leave it”); see also Armendariz, 24 Cal.4th at 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (holding that an arbitration agreement was procedurally unconscionable because it “was imposed on employees as a condition of employment and there was no opportunity to negotiate ... ”); Abramson v. Juniper Networks, Inc., 115 Cal.App.4th 638, 663, 9 Cal.Rptr.3d 422 (2004) (“We next consider the ‘absence of real negotiation or a meaningful choice on the part of the weaker party.’

holding that an agreement was procedurally unconscionable because "job applicants [were] not permitted to modify the agreement's terms -- they [had to] take the contract or leave it"


Context: Her identification of the defendant should not be discounted simply because she is not a police officer specially trained to observe details. Further, her description of the burglar, although lacking in some details, substantially agreed with the defendant's appearance.

See State v. Heald, 120 N.H. 319, 323, 414 A.2d 1288, 1290 (1980) (holding that the descriptions given by three witnesses were sufficiently accurate, despite the fact that they varied in detail); see also State v. Allard, 123 N.H. 209, 214, 459 A.2d 259, 262, cert. denied, 464 U.S. 933 (1983) (upholding the trial court’s finding that the identification was reliable where “[t]he inconsistency between the defendant’s appearance and the victim’s description of him was limited to the absence of a moustache and a discrepancy in hair length”).

upholding the trial court's finding that the identification was reliable where "[t]he inconsistency between the defendant's appearance and the victim's description of him was limited to the absence of a moustache and a discrepancy in hair length"


stating that the accuracy of the victim's description was diminished by his failure to mention the defendant's moustache, "of which there was strong evidence"

But cf. State v. LeClair, 118 N.H. at 220, 385 A.2d at 834 (stating that the accuracy of the victim’s description was diminished by his failure to mention the defendant’s moustache, “of which there was strong evidence”).


Context: The Trustee has not challenged the validity of the IRA and has made arguments that assume the IRA is a legitimate IRA. See Kartzman Cert. PP 2, 4 & 5. Thus, this Court will treat the funds in question as a valid IRA because there is nothing in the record that suggests that the IRA has not been validly created.

stating "the parties assume, and we have no reason to doubt their assumption, that the taxpayers met all the requirements of section 408(a) [of the Internal Code] and validly created an IRA"

See Orzechowski v. Commissioner, 69 T.C. 750, 756, 1978 WL 3296 (1978) (stating “the parties assume, and we have no reason to doubt their assumption, that the taxpayers met all the requirements of section 408(a) [of the Internal Code] and validly created an IRA”), aff'd, 592 F.2d 677 (2d Cir.1979); cf. Michel v. Commissioner, 58 T.C.M. (CCH) 1019, 1989 WL 154252 (1989) (tax court analyzed whether an IRA was created where the petitioners argued that a valid IRA was never created).


stating "the parties assume, and we have no reason to doubt their assumption, that the taxpayers met all the requirements of section 408(a


Context: Our view that larceny may be proved by evidence that the property owner lacked the mental capacity to consent is in harmony with most of the cases from other jurisdictions where the courts have interpreted similar statutes that do not include lack of consent as an element of the crime.

concluding that capacity of mentally handicapped victim could not be considered under felony theft statute because defendant's actions already covered under specific offense of mistreatment of dependent adult

Cf. State v. Maxon, 32 Kan. App. 2d 67, 79-80 (2003) (concluding that capacity of mentally handicapped victim could not be considered under felony theft statute because defendant’s actions already covered under specific offense of mistreatment of dependent adult).

"even without an express statutory provision . . . mental deficiency on the part of the victim, which is known or should be known to the defendant, can render ineffective the apparent consent by that victim in a prosecution for theft"

See Gainer v. State, 553 So. 2d 673, 679 (Ala. Crim. App. 1989) (“even without an express statutory provision . . . mental deficiency on the part of the victim, which is known or should be known to the defendant, can render ineffective the apparent consent by that victim in a prosecution for theft”); Calonico, 256 Conn, at 153 (holding that mental capacity may be considered on issue of victim’s intent); People v. Cain, 238 Mich. App. 95,128-129 (1999) (affirming larceny conviction because victim lacked mental capacity to consent to taking); Camiola, 225 A.D.2d at 380-381 (holding that jury may consider victim’s mental capacity in determining whether defendant acted with victim’s knowledge and consent).


affirming larceny conviction because victim lacked mental capacity to consent to taking


holding that jury may consider victim's mental capacity in determining whether defendant acted with victim's knowledge and consent


Context: We recognize that an insurance policy may provide contractual, .first-priority, dollar-for-dollar subrogation rights.

limiting intervenor insurer's recovery from third party sued by insured to contractual provisions of insurance policy

See, e.g., Fortis Benefits v. Cantu, 234 S.W.3d 642, 648 (Tex.2007) (holding subrogation clause that granted insurer a right of. recovery against “any and .all” third-party settlements authorized insurer to recoup first-priority, dollar-for-dollar recovery from plaintiffs settlement); Hartnett, 870 S.W.2d at 167, (construing similar policy language similarly); see also Gotham Ins. Co. v. Warren E & P, Inc., 455 S.W.3d 558, 563-64 (Tex.2014) (limiting intervenor insurer’s recovery from third party sued by insured to contractual provisions of insurance policy).

holding subrogation clause that granted insurer a right of. recovery against "any and .all" third-party settlements authorized insurer to recoup first-priority, dollar-for-dollar recovery from plaintiffs settlement


Context: Zuckman also seeks restitution on behalf of himself and the general public for their purchases of Monster Energy drinks. See Compl. at 11; Pl.'s Mot. for Remand at 13. Restitution claims, like claims for statutory damages or attorney fees, generally cannot be aggregated for purposes of satisfying the amount-in-controversy requirement.

"Separate and distinct claims, regardless of whether they share a community of interest or originate in a single transaction or event, may not be aggregated...."

See Snyder, 394 U.S. at 335, 89 S.Ct. 1053 (holding that the “separate and distinct claims of two or more plaintiffs cannot be aggregated” to establish jurisdiction); see also Georgiades v. Martin-Trigona, 729 F.2d 831, 833 (D.C.Cir.1984) (“Separate and distinct claims, regardless of whether they share a community of interest or originate in a single transaction or event, may not be aggregated....”). However, there is an exception to this rule in cases where “two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest,” Snyder, 394 U.S. at 335, 89 S.Ct. 1053, such as when claimants seek disgorgement of money obtained through unlawful trade practices.

holding that the "separate and distinct claims of two or more plaintiffs cannot be aggregated" to establish jurisdiction


Context: Paul H. Existing explanations of the merger doctrine offer little guidance in more selectively describing the underlying felonies that merge."

See Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir.1994)(Right of self defense is not a fundamental constitutional right within the due process clause); see also Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987); Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); United States v. Ransom, 942 F.2d 775 (10th Cir.1991)(Before a defendant may prevail on a claim that a state offense offends due process it must be shown that the legislative practice offends a principle of justice so rooted in traditions and conscience of the people as to be ranked as fundamental). In Montana v. Egelhoff, the court cautioned that not every “rule favorable to criminal defendants establishes a fundamental principle of justice.” 116 S.Ct. at 2021.


Context: The BIA determined that Petitioner's negative factors -- the fraud and misrepresentation contained in Petitioner's application -- outweighed the credible testimony from some of Petitioner's witnesses and the possibility of hardship should Petitioner be removed. The BIA concluded that Petitioner's longstanding history of intentionally misleading the immigration courts was so egregious that they easily outweighed the positive factors. Because the BIA's decision to deny Petitioner's adjustment of status application was discretionary and not based on statutory construction, we do not have jurisdiction to review the BIA's findings.

stating that since Petitioner's "claim relies on contesting ... factual determinations rather than on statutory construction or a constitutional claim, we are without jurisdiction to review the BIA's determination denying her asylum."

Johns v. Holder, 678 F.3d, 404, 406 (6th Cir.2012) (noting that arguments that challenge “the Board’s assessment of the weight and credibility of the evidence [are] matters that the statute commits to the Attorney General’s ‘sole discretion’ ”); see also Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006) (stating that since Petitioner’s “claim relies on contesting ... factual determinations rather than on statutory construction or a constitutional claim, we are without jurisdiction to review the BIA’s determination denying her asylum.”).

noting that arguments that challenge "the Board's assessment of the weight and credibility of the evidence [are] matters that the statute commits to the Attorney General's 'sole discretion' "


Context: The specification undoubtedly enables the invention in the latter form, as it clearly describes how to make and use such strips with Type 2 aluminum, and there is no question that the resulting strips are well-wetted. However, as part of the quid pro quo of the patent bargain, the applicant's specification must enable one of ordinary skill in the art to practice the full scope of the claimed invention.

"Enablement is not precluded by some experimentation, such as routine screening."

Wright, 999 F.2d at 1561. That is not to say that the specification itself must necessarily describe how to make and use every possible variant of the claimed invention, for the artisan’s knowledge of the prior art and routine experimentation can often fill gaps, interpolate between embodiments, and perhaps even extrapolate beyond the disclosed embodiments, depending upon the predictability of the art. See Genentech, Inc. v. Novo Norilsk A/S, 108 F.3d 1361, 1366 (Fed.Cir.1997) (“[A] specification need not disclose what is well known in the art.”); see also Wands, 858 F.2d at 736-37 (“Enablement is not precluded by some experimentation, such as routine screening.”).

"[A] specification need not disclose what is well known in the art."


Context: Both Rule 11 and Rule 26 treat signed papers as certifying that the pleading is not offered for any improper purpose, such as to harass, that the claims and contentions therein have a basis in existing law, and that the contentions have evidentiary support. Thus, actions that violate Rule 11(b) also violate the provisions of Rule 26(g), and sanctions imposed pursuant to either rule are reviewed under identical abuse of discretion standards'.

See, e.g., In re Byrd, Inc., 927 F.2d 1135, 1137 (10th Cir. 1991) (courts apply Rule 11 standards and case law to Rule 26(g)); Apex Oil Co. v. Belcher Co. of New York, Inc., 855 F.2d 1009, 1015 (2d Cir. 1988) (in interpreting and applying Rule 26(g), courts look to case law and standards under Rule 11); Estate of Miles v. Miles, 994 P.2d 1139, 1146 (Mont. 2000) (since Rule 26(g) contains same language as Rule 11 to the effect that pleading or discovery request or objection may not be “interposed for any improper purpose,” same standard of review applies); see also Jerome v. Pardis, 783 P.2d 919, 922-23 (Mont. 1989) (although trial court erred in imposing sanction under Rule 37(b) in the absence of a prior discovery order, sanction would be affirmed under Rule 26(g)).


in interpreting and applying Rule 26(g), courts look to case law and standards under Rule 11


since Rule 26(g) contains same language as Rule 11 to the effect that pleading or discovery request or objection may not be "interposed for any improper purpose," same standard of review applies


Context: Appellant next asserts that the trial court erred in refusing to permit defense counsel to inquire into the circumstances under which Janice Steckel left her employment at the Holiday Inn, when Steckel's credibility was at issue. We disagree. It is well settled that the scope of cross examination is within the sound discretion of the trial court.

Cf. Commonwealth v. Bighum, 452 Pa. 554, 556, 307 A.2d 255, 257 (1973) , and McIntosh v. Pittsburgh Railways Co., 432 Pa. 123, 125, 247 A.2d 467, 468 (1968) (prior convictions used to impeach credibility are limited to crimes involving dishonesty or false statements).

"Evidence of prior misconduct unrelated to the issues at trial is admissible only insofar as it bears directly on the witness' 'character for truth.' "

See Commonwealth v. Gaddy, 468 Pa. 303, 311, 362 A.2d 217, 220 (1976) (“Evidence of prior misconduct unrelated to the issues at trial is admissible only insofar as it bears directly on the witness’ ‘character for truth.’ ”); Commonwealth v. Truitt, 369 Pa. 72, 80, 85 A.2d 425, 429 (1951) (“A witness cannot be contradicted on collateral matters to test credibility^]”); Commonwealth v. McGuire, 302 Pa.Superior Ct. 226, 232, 448 A.2d 609, 612 (1982) (credibility of witness may not be attacked by questions regarding instances of misconduct unrelated to the issue on trial); Herr v. Erb, 163 Pa.Superior Ct. 430, 434-45, 62 A.2d 75, 77-78 (1948) (witness can be contradict ed only on matters germane to issue at trial; no contradiction shall be permitted on collateral matters).


"A witness cannot be contradicted on collateral matters to test credibility^]"


credibility of witness may not be attacked by questions regarding instances of misconduct unrelated to the issue on trial


Context: In Triton Marine, however, we found it unnecessary to conduct a Lauritzen choice-of-law analysis because the contract at issue contained a choice-of-law clause.

holding that the choice of law question was "made easy" by the party's contractual provision agreeing that English law would apply

Triton Marine, 575 F.3d at 415; see also Bominflot, Inc., 465 F.3d at 148 (holding that the choice of law question was “made easy” by the party’s contractual provision agreeing that English law would apply).

"Except as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply."

See Triton Marine, 575 F.3d at 413; see altso Lauritzen, 345 U.S. at 588-89, 73 S.Ct. 921 (“Except as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply.”). Relying on prior Supreme Court and Fourth Circuit case law, we concluded that “absent compelling reasons of public policy, a choice-of-law provision in a maritime contract should be enforced,” and a Lauritzen choice-of-law analysis was unnecessary.


Context: We note that two of the primary cases Polite cites in support of its position dictate that whether the witness repudiates the statement or disavows its accuracy is important, if not critical, to its admittance.

See Pickett v. United States, 822 A.2d 404, 406 (D.C.2003) (stating that the court should adhere to the rule that the witness must confirm the accuracy of the recorded statement, but interpreting this to mean that unless the witness expressly repudiated the statement at trial, the trial judge “may consider all of the circumstances in finding the requisite confirmation, including the demeanor of the witness in court .... ”); see also State v. Alvarado, 89 Wash.App. 548, 949 P.2d 831, 835-36 (1998) (stating that when examining the totality of circumstances, the court should look at four indications of reliability, the first being whether the witness disavows accuracy).

stating that the court should adhere to the rule that the witness must confirm the accuracy of the recorded statement, but interpreting this to mean that unless the witness expressly repudiated the statement at trial, the trial judge "may consider all of the circumstances in finding the requisite confirmation, including the demeanor of the witness in court .... "