Context: The harm Mr. Ilioi experienced as a child -- including being taunted, ridiculed, and beaten by teachers at grade school for being Pentecostal, and having rocks thrown at him by schoolmates -- does not rise to the level of persecution. Persecution is the "infliction of suffering or harm ... in a way regarded as offensive and requires more than just restrictions or threats to life and liberty." Taunts and ridicule do not constitute persecution.

"Verbal taunts, while offensive, fall within the bounds of harassment and discrimination, not persecution."

See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009) (“Verbal taunts, while offensive, fall within the bounds of harassment and discrimination, not persecution.”); see also Sidabutar, 503 F.3d at 1124 (finding that multiple beatings by Muslim classmates, two involving serious injury, and repeated confrontations by people demanding money, all on account of Indonesian alien’s Christian religion did not amount to persecution).

finding that multiple beatings by Muslim classmates, two involving serious injury, and repeated confrontations by people demanding money, all on account of Indonesian alien's Christian religion did not amount to persecution


Context: This case, however, is more akin to the physical trait cases. Tattoos which are openly visible on the body are physical traits, as are voice, appearance, and handwriting.

See United States v. Bay, 762 F.2d 1314, 1815-16 (9th Cir.1984) (holding that a defendant need not take the stand to be able to show the jury the tattoos on his hands which were an openly visible physical characteristic).

Cf. United States v. Williams, 461 F.3d 441, 446-47 (4th Cir.2006) (holding that a demonstration by the defendant that he could not physically wear the fanny pack as alleged by the police is not testimonial evidence).


Context: Because the Defendant has failed to make the requisite statistical showing for any of the allegedly underrepresented groups, the Defendant's Sixth Amendment claim fails and the Court need not address the third prong of the Duren test.

See Shinault, 147 F.3d at 1273 (holding that the defendant failed to make out a prima facie test when he could not satisfy the statistical showing required by the second Duren element and declining to analyze the third element).

But see Haworth, 948 F.Supp. at 986 (stating that even insignificant disparities may rise to the level of a Sixth Amendment violation if the selection process is not neutral).


Context: In this case, the provenance of the wet substance on which Coale slipped remains a total mystery. There is simply no evidence that Metro-North or NHPA put it there. Nor is there such a dearth of alternatives, as there was in Hairston and Corsale, to conclude by way of inference that only Metro-North or NHPA could have been responsible for the spill.

"a possessor will be deemed to have had actual notice if it is affirmatively shoum that an agent or employee of the possessor created the dangerous condition"

See Holbrook v. Norfolk S. Ry. Co., 414 F.3d at 745 (declining to find that defendant had created dangerous condition on grounds that defendant was not “clear cause ” of plaintiffs injuries) (emphasis added); see also Scheerer v. Hardee’s Food Systems, Inc., 92 F.3d 702, 709 (8th Cir.1996) (“a possessor will be deemed to have had actual notice if it is affirmatively shoum that an agent or employee of the possessor created the dangerous condition”) (emphasis added).

declining to find that defendant had created dangerous condition on grounds that defendant was not "clear cause " of plaintiffs injuries


Context: Prior to the issuance of Johnson, we had held that, although a statistical disparity could be sufficient to make a prima facie inference of bias, such a presumption could be dispelled by other relevant circumstances.

'We sometimes consider whether the context in which a defendant made a Batson objection changes the significance of a statistical pattern in the exercise of peremptory challenges."

See Paulino, 371 F.3d at 1091 (‘We sometimes consider whether the context in which a defendant made a Batson objection changes the significance of a statistical pattern in the exercise of peremptory challenges.”); see also Fernandez, 286 F.3d at 1079 (“Under Batson, we must consider ‘all relevant circumstances’ surrounding the challenges.”).

"Under Batson, we must consider 'all relevant circumstances' surrounding the challenges."


Context: The bank draft is affirmative evidence of a conversion in the amount of $60,000, and the record is devoid of any denial by the appellee as to its conversion. Therefore, the $60,000 represents a sum certain, liquidated damage amount.

See Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (4) (481 SE2d 541) (1997) (the term “liquidation” means “an amount certain and fixed, either by act and agreement of the parties, or by operation of law” (emphasis supplied) and that “[t]he word liquidated,’ as used in the statute[,] means settled, acknowledged, or agreed”); see also Ward v. Dollar, 216 Ga. App. 143, 144 (453 SE2d 142) (1995) (wherein the amount of damages in a conversion action was evidenced by several deposit slips and undisputed by a defaulting defendant); West v. Nodvin, 196 Ga. App. 825, 831 (397 SE2d 567) (1990) (wherein the amount of damages averred in the ex delicto claim was identical to damages under the ex contractu claim in the same complaint and undisputed by the defendant).

the term "liquidation" means "an amount certain and fixed, either by act and agreement of the parties, or by operation of law" (emphasis supplied


wherein the amount of damages averred in the ex delicto claim was identical to damages under the ex contractu claim in the same complaint and undisputed by the defendant


Context: Our original decision in this case recognized that "a rule of law which has its origins in the common law and which has not been specifically enacted by the legislature may be modified or abolished by the courts when such revision is mandated by changed conditions." Every jurisdiction that has thus far abolished the tort of alienation of a spouse's affections has done so legislatively. However, the mere fact that the legislatures in these other states abolished the cause of action before the question of abolition was properly presented to the respective courts, does not mean that every state court must wait for the legislature to focus its attention on this subject.

See, e.g., Doe v. Doe,_Mass__, 390 N.E.2d 730, 732-33 (1979) (recognizing that the state courts have the power to abolish the tort of alienation of affections); see also Bearbower v. Merry, 266 N.W.2d 128, 129, 134 (Iowa 1978) (recognizing that the question of abolition of the action for alienation of affections is a matter that can be decided by the state courts, and then holding that the action will continue to exist). In the instant case, the question of abolition of the action has been squarely presented to the courts of this state and, since the action was created judicially, the courts have the power to resolve this question.


Context: We first examine whether we have jurisdiction over this petition. The amended statute applies to petitioner because she filed her petition after the effective date of the amendment.

See Fernandez v. INS, 113 F.3d 1151, 1155 (10th Cir.1997) (provisions of the Antiterrorism and Effective Death Penalty Act of 1996 govern petitions for review pending on the date of enactment). Despite this constraint on judicial review, the Third Circuit has held that when “constitutional rights applicable to aliens may be at stake, judicial review may not be withdrawn by statute.” Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997); cf. Fernandez, 113 F.3d at 1155 (noting the government conceded judicial review was available for “substantial” constitutional errors).

noting the government conceded judicial review was available for "substantial" constitutional errors


Context: As a result, "[i]t is the law of New York that claims for gross negligence are not precluded by waivers of subrogation provisions."

dismissing subrogee's negligence claim due to waiver of subrogation clause but finding that gross negligence claim possible if intentional wrongdoing occurred

See Travelers, 204 F.Supp.2d at 644 (citing Federal Ins. Co. v. Honeywell, Inc., 243 A.D.2d 605, 663 N.Y.S.2d 247, 248 (2d Dep’t 1997) and Gold Connection Discount Jewelers, Inc. v. American Dist. Tel. Co., 212 A.D.2d 577, 622 N.Y.S.2d 740, 741 (2d Dep’t 1995)); Charter Oak, 2002 WL 123506, at *4-5 (dismissing subrogee’s negligence claim due to waiver of subrogation clause but finding that gross negligence claim possible if intentional wrongdoing occurred); see also Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1016 n. 8 (9th Cir.1999) (“Like the exculpatory clauses, [waiver of subrogation clauses] are limitation provisions, which are not effective as to gross negligence or misconduct.”).

"Like the exculpatory clauses, [waiver of subrogation clauses] are limitation provisions, which are not effective as to gross negligence or misconduct."


Context: Black's Law Dictionary 336 (8th ed.2004) (emphasis added). American and English authorities construing the bankruptcy laws also support the proposition that the words "in contemplation of' may be understood to require an intent to abuse the bankruptcy laws.

"To give to these words, contemplation of bankruptcy, a broad scope, and somewhat loose meaning, would not be in furtherance of the general purpose with which they were introduced."

In re Pearce, 21 Vt. 611, 19 F. Cas. 50, 53 (D.Vt.1843) (No. 10873) (concluding that an act was done “in contemplation of bankruptcy” if it was done “in anticipation of breaking or failing in his business, of committing an act of bankruptcy, or of being declared bankrupt at his own instance, on the ground of inability to pay his debts, and intending to defeat the general distribution of effects, which takes place under a proceeding in bankruptcy.”) (emphasis added); Morgan v. Brundrett, 5 Barn. & Ad. 289, 296, 110 Eng. Rep. 798, 801 (K.B.1833) (Parke, J.) (interpreting “in contemplation of bankruptcy” to mean that “the payment or delivery must be with intent to defeat the general distribution of effects which takes place under a commission of bankruptcy.”); Fidgeon v. Sharpe, 5 Taunt. 539, 545-46, 128 Eng. Rep. 800, 802-03 (C.P.1814) (Gibbs, C.J.) (An act made in contemplation of bankruptcy “must be intended in fraud of the bankrupt laws.”); cf. Buckingham v. McLean, 54 U.S. 151, 167, 13 How. 151, 14 L.Ed. 91 (1851) (“To give to these words, contemplation of bankruptcy, a broad scope, and somewhat loose meaning, would not be in furtherance of the general purpose with which they were introduced.”); id. at 169 (relying on English bankruptcy decisions as instructive authority on meaning of the former Bankrupt Act).

concluding that an act was done "in contemplation of bankruptcy" if it was done "in anticipation of breaking or failing in his business, of committing an act of bankruptcy, or of being declared bankrupt at his own instance, on the ground of inability to pay his debts, and intending to defeat the general distribution of effects, which takes place under a proceeding in bankruptcy."


Context: Application of the exclusionary rule is generally reserved for cases in which the conduct of the police was in violation of a person's constitutional rights.

See Whren v. United States, 517 U.S. 806, 815 (1996) (court declined to apply exclusionary rule because police acted reasonably, notwithstanding that stop violated police regulations).

"Generally, evidence seized in violation of the law will be suppressed only if the violation is substantial or rises to the level of a Federal or State constitutional violation"

Cf. Commonwealth v. Grimshaw, 413 Mass. 73, 77 (1992) (“Generally, evidence seized in violation of the law will be suppressed only if the violation is substantial or rises to the level of a Federal or State constitutional violation”).


Context: As an initial matter, the panel correctly determined, unlike other courts, that the "regulated activity" under the ESA is Cave Species takes, not the appellants' planned commercial development of the land.

finding that the reg ulated activity was not the ESA take but rather the "construction of a commercial housing development"

GDF Realty, 326 F.3d at 633-34 (recognizing that “looking beyond the regulated activity ... would ‘effectually obliterate’ the limiting purpose of the Commerce Clause”) (citing Jones and Laughlin Steel, 301 U.S. at 37, 57 S.Ct. 615); Ho, 311 F.3d at 602 (recognizing that the regulated activity at issue was asbestos removal, rather than the plaintiffs commercial enterprise); but see Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C.Cir.2003) (finding that the reg ulated activity was not the ESA take but rather the “construction of a commercial housing development”).

recognizing that "looking beyond the regulated activity ... would 'effectually obliterate' the limiting purpose of the Commerce Clause"


recognizing that the regulated activity at issue was asbestos removal, rather than the plaintiffs commercial enterprise


Context: As an experiment, I directed one of my legal interns, a third-year law student, to conduct appropriate legal research in order to determine whether or not the challenged SS 1983 claims are valid. He needed only seventeen minutes to confirm what every responsible practioner in tMs field already knows: they are not.

holding that state, and its officers sued in their official capacity for damages, are not "persons" suable under SS 1983

See 42 U.S.C. § 1983 (“Every person who, under color of any statute ... of any State or Temtory or the District of Columbia, subjects ... any citizen ... or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....”) (emphasis added); Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 71,109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that state, and its officers sued in their official capacity for damages, are not “persons” suable under § 1983); id. at 70, 109 S.Ct. 2304 (holding that state immunity from suit extends to “governmental entities that are considered arms of the State”); cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 398 n. 1, 91 S.Ct. 1999, 29 L.Ed.2d 619 (Harlan, J., concurring) (observing that plaintiffs had no federal jurisdiction under § 1983 for their suit against federal agents).

observing that plaintiffs had no federal jurisdiction under SS 1983 for their suit against federal agents


holding that state immunity from suit extends to "governmental entities that are considered arms of the State"


Context: Consequently, there is no occasion for us to comment upon them. It is settled in this circuit that, when the district court tentatively denies a pretrial motion in limine, or temporizes on it, the party objecting to the preliminary in limine determination must renew his objection during the trial, and the failure to do so forfeits any objection.

See Griffin, 818 F.2d at 105 (holding that to raise and preserve for review a claim of improperly constructing the Rule 403 balance, a party ordinarily cannot rely on the denial of a motion in limine but must object to the admission of the controversial evidence in the actual trial setting); see also United States v. Holmquist, 36 F.3d 154, 166 (1st Cir.1994) (concluding that when a pretrial motion in limine is granted and the court “clearly invites the adversely affected party to offer the evidence at sidebar for the purpose of reassessing the scope and effect of the order in the setting of the actual trial, the exclusion of evidence pursuant to that order may be challenged on appeal only if the party unsuccessfully attempts to offer such evidence in accordance with the terms specified in the order”).

concluding that when a pretrial motion in limine is granted and the court "clearly invites the adversely affected party to offer the evidence at sidebar for the purpose of reassessing the scope and effect of the order in the setting of the actual trial, the exclusion of evidence pursuant to that order may be challenged on appeal only if the party unsuccessfully attempts to offer such evidence in accordance with the terms specified in the order"


Context: To decide the appropriate analytical framework for examining the validity of Robinson's, waiver, we have examined case law regarding the waiver of constitutional rights and the waiver of statutory rights. Generally, a waiver of a constitutional right must be knowing and voluntary.

waiver of right to counsel's presence during a lineup must be knowing and voluntary

See also United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967) (waiver of right to counsel’s presence during a lineup must be knowing and voluntary); Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966) (waiver of Fifth Amendment rights must be knowing and voluntary).

See, e.g., Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938) (defendant must know of his Sixth Amendment right to counsel in order to validly waive it).


waiver of Fifth Amendment rights must be knowing and voluntary


But see Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973) (a defendant who consents to a search while not in custody validly waives his constitutional rights even if he did not know he had a right to withhold his consent).


Context: . A number of cases argue, to the contrary, that such information would be highly relevant.

See Republic of France v. Moghadam, 617 F.Supp. at 782-784 (considering circumstances of confession in evaluating reliability of statement and its recantation); see also Eain, 641 F.2d at 511 (considering as relevant to probable cause determination conditions under which confessional statement was given); cf. Matter of Manzi, 888 F.2d 204, 206 (1st Cir.1989) (magistrate’s refusal to review translated judicial decision rendered in requesting country which purportedly reversed accused’s conviction of certain offenses in Italy did not violate due process where no evidence was produced that suggested ruling was relevant to extraditee's case, and appellate decision neither named extraditee nor concerned the extradition charges pending against extraditee).


magistrate's refusal to review translated judicial decision rendered in requesting country which purportedly reversed accused's conviction of certain offenses in Italy did not violate due process where no evidence was produced that suggested ruling was relevant to extraditee's case, and appellate decision neither named extraditee nor concerned the extradition charges pending against extraditee


Context: When the Back Pay Act applies, it provides this court with the statutory authority to award attorney fees.

providing "a mechanism by which [a party] can now apply to this court for attorney fees that are authorized by the Back Pay Act" because "Congress wanted a party ... to have an opportunity to apply for fees not only before the agency but also on judicial appeal," and granting the party "20 days within which to submit an attorney fee request under the Back Pay Act"

See Ramos v. Dep’t of Justice, 552 F.3d 1356, 1358, 1362 (Fed.Cir.2009) (providing “a mechanism by which [a party] can now apply to this court for attorney fees that are authorized by the Back Pay Act” because “Congress wanted a party ... to have an opportunity to apply for fees not only before the agency but also on judicial appeal,” and granting the party “20 days within which to submit an attorney fee request under the Back Pay Act”); see also Olsen, 735 F.2d at 563 (“[T]he language of the Back Pay Act ‘is sufficiently broad to include attorney’s fees for services rendered in administrative or judicial appeals____(ellipsis in original) (quoting Hoska v. U.S. Dep’t of the Army, 694 F.2d 270, 273 (D.C.Cir.1982))).

"[T]he language of the Back Pay Act 'is sufficiently broad to include attorney's fees for services rendered in administrative or judicial appeals____(ellipsis in original


Context: Although nothing in the record suggests that Calmes was a motorist and needed his license to leave the location, nonetheless, upon being asked if he was armed, a reasonable person in Calmes's position would not feel free simply to terminate the encounter, leave his license with the police, and walk away.

"A reasonable person when faced with a police officer pulling up to him in a marked vehicle and calling for him to come over to the car would not assume that he can just turn and walk away."

See, e.g., United States v. Crump, 62 F.Supp.2d 560, 564 (D.Conn.1999) (holding that the encounter between an officer and the defendant did not rise to the level of a Terry stop until the defendant gave the officer his license and the officer informed the defendant that he was going to be given a “pat-down”); see also Dowdell v. State, 747 N.E.2d 564, 567 (Ind.Ct.App.2001) (“A reasonable person when faced with a police officer pulling up to him in a marked vehicle and calling for him to come over to the car would not assume that he can just turn and walk away.”), trans. denied.

holding that the encounter between an officer and the defendant did not rise to the level of a Terry stop until the defendant gave the officer his license and the officer informed the defendant that he was going to be given a "pat-down"


Context: The district court properly granted summary judgment for defendant Gray because Vallejo failed to raise a genuine dispute of material fact as to whether Gray was deliberately indifferent to Vallejo's serious medical needs.

explaining that plaintiffs alleging deliberate indifference in SS 1983 actions "must ... demonstrate that the defendants' actions were both an actual and proximate cause of their injuries"

See Toguchi, 391 F.3d at 1057 (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to an inmate’s health); see also Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (explaining that plaintiffs alleging deliberate indifference in § 1983 actions “must ... demonstrate that the defendants’ actions were both an actual and proximate cause of their injuries”).

a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to an inmate's health


Context: The police, in short, were not obliged to take the risk that a person potentially subject to arrest for felony theft had on his person the means -- a weapon -- of preventing his apprehension for a serious crime.

concluding that police reasonably believed a suspect may be armed during a traffic stop for driving with an expired inspection sticker because the suspect "was pacing back and forth" and "failed to produce a driver's license or identification"

See also State v. Cowart, 862 So.2d 225, 231-32 (La.Ct.App.2003) (concluding that police reasonably believed a suspect may be armed during a traffic stop for driving with an expired inspection sticker because the suspect “was pacing back and forth” and “failed to produce a driver’s license or identification”).

finding frisk of driver permissible where police knew the driver was not the owner of an out-of-area car -- he was a male, while the car registrant was a female -- and he had no driver's license, meaning that the officer "had no way to determine the identity of the person with whom he was dealing and whether [the person] was a criminal and might be dangerous."

See United States v. Murphy, 261 F.3d at 743 (finding frisk of driver permissible where police knew the driver was not the owner of an out-of-area car — he was a male, while the car registrant was a female — and he had no driver’s license, meaning that the officer “had no way to determine the identity of the person with whom he was dealing and whether [the person] was a criminal and might be dangerous.”); Powell, 649 A.2d at 1090-91 n. 5 (Farrell, J., concurring) (distinguishing the lead opinion in Powell, where the police had observed only an “ambiguous movement” and nervousness on the part of a person stopped for a traffic violation, from a hypothetical case where the person was suspected of a more serious offense, in that his actions “bespoke someone, for example, engaged in possession of a stolen vehicle”).


distinguishing the lead opinion in Powell, where the police had observed only an "ambiguous movement" and nervousness on the part of a person stopped for a traffic violation, from a hypothetical case where the person was suspected of a more serious offense, in that his actions "bespoke someone, for example, engaged in possession of a stolen vehicle"


Context: Given this basic precept, some courts have concluded that, if the court plans to rely upon facts not described in a presentence report, the defendant must be given prehear-ing notice of those facts and an opportunity to contest them.

See United States v. Jackson, 32 F.3d 1101 (7th Cir.1994); United States v. Morales, 994 F.2d 386, 389 (7th Cir.1993)(“The defendant has a right to know what evidence will be used against him at the sentencing hearing.”); see also People v. Quarles, 182 Colo. 321, 512 P.2d 1240 (1973)(court properly recessed sentencing hearing and ordered investigation when defendant volunteered additional facts at hearing).

"The defendant has a right to know what evidence will be used against him at the sentencing hearing."


Context: Before addressing Appellant's ineffective assistance arguments, we note that this case presents a number of complex issues concerning the applicability of Colorado's procedural bar to these claims. We need not and do not address these issues, however, because the case may be more easily and succinctly affirmed on the merits.

addressing a 28 U.S.C. SS 2255 petition and declining to address the procedural bar issue because the claim would fail on the merits in any event

See Cain v. Redman, 947 F.2d 817, 820 (6th Cir.1991) (“In the present case, it is in the interest of judicial economy for this court to hear this cause in spite of the unresolved issues of exhaustion and procedural default.”); cf. United States v. Wright, 43 F.3d 491, 496 (10th Cir.1994) (addressing a 28 U.S.C. § 2255 petition and declining to address the procedural bar issue because the claim would fail on the merits in any event).

"In the present case, it is in the interest of judicial economy for this court to hear this cause in spite of the unresolved issues of exhaustion and procedural default."


Context: To establish purposeful availment, a plaintiff must show that "(1) it felt the injurious effects of a defendant's tortious act in the forum, and (2) that the defendant's act was calculated to cause injury to the plaintiff there."

"Posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside

Swiss Am Bank, Ltd., 274 F.3d at 632-33; see Sawtelle v. Farrell, 70 F.3d 1381, 1391 (1st Cir. 1995) (if defendant’s contact with jurisdiction was “voluntary” and was of such a nature so as to make state’s exercise of jurisdiction “foreseeable,” plaintiff has established purposeful availment); see also Noonan, 902 F.Sup. at 305 (defamatory “effect” within state by itself is not sufficient to confer jurisdiction over foreign defendant, defendant must also have intended their tortious act to be felt in forum state); Shrader v. Biddinger, 633 F.3d 1235, 1241 (10th Cir. 2011) (“Posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside) . . . [I]n considering what ‘more’ could create personal jurisdiction for such activities, courts look to indications that a defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state”).

if defendant's contact with jurisdiction was "voluntary" and was of such a nature so as to make state's exercise of jurisdiction "foreseeable," plaintiff has established purposeful availment


Context: Thus, while fair use may often be called "an equitable rule of reason," its origins are remarkably utilitarian.

stating that fair use factors should be "weighed together, in light of the purposes of copyright"

Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (stating that fair use factors should be “weighed together, in light of the purposes of copyright”). At the same time, fair use may shield those types of uses that are truly de minimis, having little or no impact on the market for or value of the original work.

"In certain situations, the copyright owner suffers no substantial harm from the use of the work---- Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimis non curat lex."

See Sony, 464 U.S. at 450-51 & n. 34, 104 S.Ct. 774 (1984) (“In certain situations, the copyright owner suffers no substantial harm from the use of the work---- Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimis non curat lex.”) (quoting Latman, Fair Use of Copyrighted Works (1958)).


Context: The defendant next claims that the trial court improperly instructed the jury on the principles of accessory liability pursuant to SS 53a-8. Specifically, he contends that the trial court's inclusion of language pertaining to theories of joint criminal enterprise and conspiracy in its jury instructions was improper because it had allowed the jury to find the defendant guilty as an accessory without finding that he had the intent required for commission of the substantive offense.

See State v. Diaz, 237 Conn. 518, 536, 679 A.2d 902 (1996) (inclusion of common design language in instruction on accessory liability for murder was improper because state is not required to prove specific intent to kill under common design theory); see also State v. Martinez, 278 Conn. 598, 611-19, 900 A.2d 485 (2006) (accessorial liability and conspiracy are distinct theories of criminal liability).


Context: Furthermore, a finding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute.

upholding Maryland's common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order

See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland’s common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts’ state employment discrimination law); Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia’s public policy found in state human relations act); Roberts v. Dudley, 140 Wash.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington’s public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C.App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same).


Context: In this case, respondent's access to a lawyer is the result of the State's decision, not the command of the United States Constitution."). Under Arizona law, a defendant is only entitled to counsel through the disposition of his or her first post-conviction petition.

"Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction] proceedings."

See Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546 (“Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction] proceedings.”); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1990) (“Because [the petitioner] has no constitutional right to counsel in his earlier habeas proceedings, no error by his habeas counsel could constitute a sixth amendment violation or, therefore, cause.... ” (citation omitted)).

"After counsel or the pro per defendant submits the post-conviction petition to the court and the trial court makes its required review and disposition, counsel's obligations are at an end."

State v. Smith, 184 Ariz. 456, 910 P.2d 1, 4 (1996) (“After counsel or the pro per defendant submits the post-conviction petition to the court and the trial court makes its required review and disposition, counsel’s obligations are at an end.”). Because Cook had no constitutional right to counsel at the motion for rehearing stage, any errors by his counsel could not constitute cause to excuse the default.


Context: . Plaintiffs should be mindful that any amended allegations must comply with Twombly's requirements.

"[Twombly'] does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element."

See 127 S.Ct. at 1965 (“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”) (internal citations and footnote omitted); see also Phillips, 515 F.3d at 234 (“[Twombly'] does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”) (internal quotation omitted).

"Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."


Context: The balancing of these factors is a delicate task for a trial judge. However, as with all 404(b) evidence, greater leeway is given when the evidence is proffered on the issue of motive, and there must be a "very strong" showing of prejudice to exclude evidence of a defendant's motive.

See also Nance, supra, 148 N.J. at 389, 689 A.2d 1351 (evidence of prior jealous episodes by defendant toward his former girlfriend held admissible to show his motive in shooting her male friend); State v. Erazo, 126 N.J. 112, 130-31, 594 A.2d 232 (1991) (upholding admission of evidence that defendant had been convicted of prior murder as necessary to support State’s theory that defendant killed victim to prevent her from causing revocation of his parole); State v. Baldwin, 47 N.J. 379, 391, 221 A.2d 199, cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966) (evidence that victim was going to testify against defendant in a robbery trial admissible to show motive for killing the victim); State v. Crumb, 307 N.J.Super. 204, 232-33, 704 A.2d 952 (App.Div.1997), certif. denied, 153 N.J. 215, 708 A.2d 66 (1998) (defendant’s writings showing hatred of African Americans held admissible to show motive for killing of stranger); State v. Engel, 249 N.J.Super. 336, 372-74, 592 A.2d 572 (App.Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991) (prior threats and physical violence admissible to establish motive for murder of former wife); State v. Slocum, 130 N.J.Super. 358, 362-63, 327 A.2d 244 (App.Div.1974) (testimony that victim previously testified against defendant in prior prosecution held admissible to show malice or revenge).

Covell, supra, 157 N.J. at 570, 725 A.2d 675 (holding that in a prosecution for lurking, evidence of a prior act of lewdness by defendant was admissible to establish motive).


upholding admission of evidence that defendant had been convicted of prior murder as necessary to support State's theory that defendant killed victim to prevent her from causing revocation of his parole


evidence that victim was going to testify against defendant in a robbery trial admissible to show motive for killing the victim


defendant's writings showing hatred of African Americans held admissible to show motive for killing of stranger


prior threats and physical violence admissible to establish motive for murder of former wife


testimony that victim previously testified against defendant in prior prosecution held admissible to show malice or revenge


Context: Augustine argues that the trial court erred in not defining "public place" to the jury. Augustine, however, failed to raise this issue at trial, and the trial court's failure to define the term "public place" did not constitute plain error.

"A [trial] court does not commit plain error by failing to define a word when it is a common word which an average juror can understand and which the average juror could have applied to the facts of [the] case without difficulty."

See United States v. McCaleb, 552 F.3d 1053, 1059 (9th Cir. 2009) (“A [trial] court does not commit plain error by failing to define a word when it is a common word which an average juror can understand and which the average juror could have applied to the facts of [the] case without difficulty.”) (quotation marks and citation omitted); see also id. (holding trial court did not err in failing to define “manufacture”); United States v. Garza-Juarez, 992 F.2d 896, 910 (9th Cir. 1993) (holding that failure to define “possession” was not plain error); United States v. Chambers, 918 F.2d 1455, 1460 (9th Cir. 1990) (holding that failure to define “knowingly” was not plain error).

holding that failure to define "possession" was not plain error


holding that failure to define "knowingly" was not plain error


Context: As solely a question of common sense, it is difficult to comprehend how any sexual assault could be committed for a purpose other than that of the individual. Sexual assault is, by its nature, a crime committed for personal reasons.

"The outrageous quality of an employee's [sic] act may well be persuasive in considering whether his motivation was purely personal."

See Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 31 (D.C.1979) (“The outrageous quality of an employee’s [sic] act may well be persuasive in considering whether his motivation was purely personal.”) (citations omitted); Jordan v. Medley, 711 F.2d 211, 215 (D.C.Cir.1983) (an intentional tort by its very nature is “willful and thus more readily suggests personal motivation.”); see also Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.1984) (employer not liable for sexual assault committed by educator against a student because the “assault was in no degree committed to serve the school’s interest but rather appears to have been done solely for the accomplishment of [the employee’s] independent, malicious, mischievous and selfish purposes.”).

employer not liable for sexual assault committed by educator against a student because the "assault was in no degree committed to serve the school's interest but rather appears to have been done solely for the accomplishment of [the employee's] independent, malicious, mischievous and selfish purposes."


an intentional tort by its very nature is "willful and thus more readily suggests personal motivation."


Context: The second reason is more compelling. Feres does not bar suits against the government when the injured plaintiff is a civilian. This remains the case even though the injurer is in the military and military discipline is directly involved.

injured civilian shot by drunken serviceman could sue government under FTCA for navy personnel's negligence in knowingly allowing drunken serviceman to leave navy base with rifle

See e.g. Sheridan v. United States, 487 U.S. 392, 401, 108 S.Ct. 2449, 2455, 101 L.Ed.2d 352 (1988) (injured civilian shot by drunken serviceman could sue government under FTCA for navy personnel’s negligence in knowingly allowing drunken serviceman to leave navy base with rifle); Doggett, 875 F.2d at 689-95 (government may be held liable under the FTCA for injuries sustained by a civilian as a result of Navy’s negligent supervision of drunken personnel); Kohn v. United States, 680 F.2d 922, 926 (2d Cir.1982) (Feres — though it precluded recovery by the estate of a murdered serviceman — did not bar claims by his bereaved parents for the Army’s alleged infliction of emotional distress on them subsequent to their son’s death); but cf. Daberkow v. United States, 581 F.2d 785, 788, (9th Cir.1978) (West German air force pilot killed while conducting joint training mission with U.S. Air Force barred by Feres from suing United States Government for alleged Air Force negligence).


government may be held liable under the FTCA for injuries sustained by a civilian as a result of Navy's negligent supervision of drunken personnel


Feres -- though it precluded recovery by the estate of a murdered serviceman -- did not bar claims by his bereaved parents for the Army's alleged infliction of emotional distress on them subsequent to their son's death


Context: Generally speaking, the right to determine whether a claim will proceed as an admiralty claim (without a jury) or as a common law claim (with a jury) belongs strictly to the plaintiff. That is, if a plaintiff designates his claim as a Rule 9(h) maritime claim, the saving-to-suitors clause does not permit a defendant to trump that designation and demand a jury trial.

"The saving is for the benefit of suitors, plaintiff and defendant, when the plaintiff in a case of concurrent jurisdiction chooses to sue in the common law courts, so giving to himself and the defendant all the advantages which such tribunals can give to suitors in them. It certainly could not have been intended more for the benefit of the defendant than for the plaintiff, which would be the case if he could at his will force the plaintiff into a common law court .... " (emphasis added

See Waring, 46 U.S. at 461 (“The saving is for the benefit of suitors, plaintiff and defendant, when the plaintiff in a case of concurrent jurisdiction chooses to sue in the common law courts, so giving to himself and the defendant all the advantages which such tribunals can give to suitors in them. It certainly could not have been intended more for the benefit of the defendant than for the plaintiff, which would be the case if he could at his will force the plaintiff into a common law court .... ” (emphasis added)); see also Becker v. Tidewater, Inc., 405 F.3d 257, 259 (5th Cir.2005) (concluding that defendant had no right to a jury trial even though parties were diverse because plaintiff elected to proceed in admiralty). While this principle governs simple proceedings — e.g., proceedings where the defendant does not assert any counterclaims or implead third parties — -there is some dispute about its application to more complex cases.


Context: Further, even if it were possible to create and perfect a lien without any action by the county, that lien, attaching to the property postpetition, would still violate the automatic stay.

once automatic stay is in place, "the creation of any lien, regardless of * * * its purpose is barred by SS 362"

In re Bellman Farms, Inc., 86 B.R. 1016, 1020 (Bkrtcy.D.S.D. 1988) (creation and perfection of postpetition liens, which became due and owing by operation of law and without affirmative act by county, nevertheless violated automatic stay); In re Ballentine Bros., Inc., 86 B.R. 198, 200-01 (Bkrtcy.D.Neb.1988) (even though statute provided for creation and perfection of tax lien without any action by county, postpetition lien violated provisions of automatic stay); In re Stack Steel & Supply Co., 28 B.R. 151, 155 (Bkrtcy.W.D.Wash.1983) (“any lien which is claimed by [the county] to have attached after the filing of the Chapter 11 petition is void”) (emphasis in original); see also H. & H. Beverage Distributors v. Department of Revenue, 850 F.2d 165, 170 n. 6 (3d Cir.) (once automatic stay is in place, “the creation of any lien, regardless of * * * its purpose is barred by § 362”), cert. denied, — U.S. -, 109 S.Ct. 560, 102 L.Ed.2d 586 (1988); In re Carlisle Court, Inc., 36 B.R. 209, 214 (Bkrtcy.D.C.1983) (“in its broad application” the automatic stay prevents any “creation of a lien”).


"in its broad application" the automatic stay prevents any "creation of a lien"


even though statute provided for creation and perfection of tax lien without any action by county, postpetition lien violated provisions of automatic stay


"any lien which is claimed by [the county] to have attached after the filing of the Chapter 11 petition is void"


Context: As this Court said in regard to J. Peaceful and French Baguette's motion to dismiss, "[t]hough it is always somewhat burdensome to defend a lawsuit away from home, it is not a burden that violates due process in this instance." Dkt.

No. 16 at 8. See Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (explaining that modern transportation and communications mean it is usually not unfair or too burdensome to require a party to defend itself in a state where it engages in economic activity); see also Bd. of Trustees, Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1037 (7th Cir.2000) (“Easy air transportation, the rapid transmission of documents, and the abundance of law firms with nationwide practices, make it easy these days for cases to be litigated with little extra burden in any of the major metropolitan areas.”).

"Easy air transportation, the rapid transmission of documents, and the abundance of law firms with nationwide practices, make it easy these days for cases to be litigated with little extra burden in any of the major metropolitan areas."


Context: The district court also found that even assuming Visa were a necessary party, it was not indispensable under Rule 19(b). Since we affirm the district court's conclusion that Visa is a not a necessary party, we need not discuss whether the district court properly found that Visa was not an indispensable party.

"A party cannot be indispensable unless it is a 'necessary party' under Rule 19(a)."

See Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir.2000) (“If a party does not qualify as necessary under Rule 19(a), then the court need not decide whether its absence warrants dismissal under Rule 19(b).”); see also Jonesfilm, 299 F.3d at 139 (“A party cannot be indispensable unless it is a ‘necessary party’ under Rule 19(a).”).

"If a party does not qualify as necessary under Rule 19(a


Context: Such service of process was intended to give notice to the Defendants, and was reasonably calculated to reach them. See, Mullane v. Central Hanover Bank & Trust Co., supra; Minnesota Mining & Mfg. Co. v. Kirke-vold, supra at 324. Our conclusion is supported by decisions from the Minnesota Courts, as well as from those of 'foreign jurisdictions.

concluding that the Summons delivered to Cooper's home, and left with his father-in-law, a visitor staying there for ten days, was reasonably calculated to provide notice

Lowenstein & Sons, Inc. v. Austin, 430 F.Supp. 844, 845 (S.D.N.Y.1977) (stating adult daughter, who was home from college overnight, was residing at her parents’ home); Magazine v. Bedoya, 475 So.2d 1035, 1035-36 (Fla.App.1985) (concluding mother-in-law, who was visiting defendant for six weeks, and who told process server that she lived there, was resid ing there); Sangmeister v. McElnea, supra at 676-77 (holding four-month visitor was residing therein); Plushner v. Mills, supra at 446 (concluding that daughter, who was placed in charge of father’s home in his absence, was residing therein); Wichert v. Cardwell, 117 Wash.2d 148, 812 P.2d 858, 860 (1991) (holding daughter, who was watching parents’ home, and staying overnight, met the residing requirement); see also, Pineview Overlook, Inc. v. Cooper, No. C2-95-795, 1995 WL 673008 *2 (Minn.App. Nov. 14, 1995) (concluding that the Summons delivered to Cooper’s home, and left with his father-in-law, a visitor staying there for ten days, was reasonably calculated to provide notice); but see, Cleaves v. Funk, 76 F.2d 828, 829-30 (10th Cir.1935) (requiring permanency of residence); Burtchaell v. Hoffman, 508 So.2d 738, 738-39 (Fla.App.1987) (concluding that girlfriend, who was from another State, and who occasionally visited for few days to a week, was not residing therein); Gamboa v. Jones, 455 So.2d 613, 614 (Fla.App.1984) (holding that a ten-day visitor was not residing therein).

stating adult daughter, who was home from college overnight, was residing at her parents' home


concluding that girlfriend, who was from another State, and who occasionally visited for few days to a week, was not residing therein


concluding mother-in-law, who was visiting defendant for six weeks, and who told process server that she lived there, was resid ing there


holding daughter, who was watching parents' home, and staying overnight, met the residing requirement


Context: As a threshold issue, Plaintiffs have not demonstrated this Court has jurisdiction to review the Federal Defendants' decisions not to investigate or sanction the Community for its membership determinations. An agency's nonenforcement decision is presumptively not subject to judicial review.

Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 531 (8th Cir.1967) (holding that discretionary action of Secretary of the Interior in ratifying and approving amendments to a tribal constitution and by-laws was not subject to judicial review); see also Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 745 (D.S.D. 1992) (explaining that “[n]o authority is cited for the proposition that district courts can review or direct the discretion of the Secre tary in making the decision to approve or disapprove a per capita distribution plan under 25 U.S.C. § 2710(b)(3)(B), and it is the view of the Court that it lacks such power”).

explaining that "[n]o authority is cited for the proposition that district courts can review or direct the discretion of the Secre tary in making the decision to approve or disapprove a per capita distribution plan under 25 U.S.C. SS 2710(b)(3)(B


Context: Proof that appellant participated in the murder as an accessory before the fact would also suffice to establish appellant's guilt. Hence, we cannot say, viewing the applicable legal elements of murder in the abstract, that proof of the referenced conspiracy is "required" in this context to prove the charged murder.

"Even if one offense is committed in [some] cases of the commission of another offense, it is not a necessarily included lesser offense of the other one."

See Coleman, 261 Va. at 200, 539 S.E.2d at 734 (holding that, in the context of a Bloekburger double jeopardy analysis, “proof of the specific intent to kill” is not “required” in a malicious wounding case because Code § 18.2-51 — which requires proof that the accused had “the intent to maim, disfigure, disable, or MU” — uses the disjunctive “or” in its description of the required intent for that offense); cf. Taylor, 11 Va.App. at 653, 400 S.E.2d at 796 (“Even if one offense is committed in [some] cases of the commission of another offense, it is not a necessarily included lesser offense of the other one.”).

holding that, in the context of a Bloekburger double jeopardy analysis, "proof of the specific intent to kill" is not "required" in a malicious wounding case because Code SS 18.2-51 -- which requires proof that the accused had "the intent to maim, disfigure, disable, or MU" -- uses the disjunctive "or" in its description of the required intent for that offense


Context: In Sibley, the private duty nurse was entirely dependent upon the hospital for access to her patients; without the hospital's referral, she had no relationship with any particular patient. Faced with this set of facts, the Sibley court held the interference prohibited under Title VII.

Cf. Pardazi, 838 F.2d at 1156 (applying Sibley where denial of staff privileges to a doctor by a hospital may have interfered with a written contract of employment with a professional corporation).

Sibley, 488 F.2d at 1342; see also Christopher, 936 F.2d at 877 n. 3 (applying Sibley under the same set of facts, except that contract was between a private nurse and the doctors who employed her).


Context: Honor Society membership, he had no property interest in the integrity of the selection process.

Id.; see also Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.1980) (where plaintiff had no property interest in promotion, court need not examine whether state law procedures were followed); Contra Costa Theatre, Inc. v. City of Concord, 511 F.Supp. 87, 89-90 (N.D.Cal.1980) (because plaintiff had no property right to zoning permit, he could not claim a denial of due process resulting from misconduct in the hearing for such permit), aff'd, 686 F.2d 798 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983); Jacobs, Visconsi & Jacobs Co. v. Lawrence, Kan., 715 F.Supp. 1000, 1004-06 (D.Kan.1989) (plaintiff had no property interest in rezoning process where there was no property right to have property rezoned), aff'd, 927 F.2d 1111 (10th Cir.1991).


plaintiff had no property interest in rezoning process where there was no property right to have property rezoned


Context: Plaintiff admits that he can work most jobs that do not require "sport type activities". In fact, plaintiff has worked a variety of jobs since he was fired from Autozone.

See id. at 226-231. Without some evidence that Garrett is precluded from a broad range of jobs, his impairment does not meet the definition of disability under 42 U.S.C. § 12102(2)(A). See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir.1997) (holding that a plaintiff who could not perform some jobs because he wore a pacemaker was nevertheless still capable of performing most jobs in the workforce); See also, Skorup v. Modern Door Corp., 153 F.3d 512, 513-14 (7th Cir.1998) (finding that a plaintiff who suffered from fi-bromyalgia failed to show that she was disabled under the ADA); Zimmerman v. General Motors, 959 F.Supp. 1393 (D.Kan.1997) (finding that a plaintiff who suffered from fibromyalgia was not disabled within the meaning of the ADA); Aquinas v. Federal Express Corp., 940 F.Supp. 73 (S.D.N.Y.1996) (same).


finding that a plaintiff who suffered from fibromyalgia was not disabled within the meaning of the ADA


Context: Although this inquiry may overlap with the separate-products screen under the per se rule, that is not its role here. Because courts applying the rule of reason are free to look at both direct and indirect evidence of efficiencies from a tie, there is no need for a screening device as such; thus the separate-products' inquiry serves merely to classify arrangements as subject to tying law, as opposed to, say, liability for exclusive dealing.

See Times-Picayune, 345 U.S. at 614, 73 S.Ct. 872 (finding a single product and then turning to a general rule of reason analysis under § 1, though not using the term “tying”); Foster v. Md. State Sav. & Loan Ass’n, 590 F.2d 928/931, 933 (D.C.Cir.1978), cited in Jefferson Parish, 466 U.S. at 40, 104 S.Ct. 1551 (O’Connor, J., concurring) (same); see also Chawla v. Shell Oil Co., 75 F.Supp.2d 626, 635, 643-44 (S.D.Tex. 1999) (considering a rule of reason tying claim, after finding a single product under the per se rule); Montgomery County Ass’n of Realtors v. Realty Photo Master Corp., 783 F.Supp. 952, 961 & n. 26 (D.Md.1992), aff'd mem. 993 F.2d 1538 (4th Cir.1993) (same).

finding a single product and then turning to a general rule of reason analysis under SS 1, though not using the term "tying"


Context: In arguing for this principle, they assume that the law of nations necessarily provides the substantive standards for evaluating claims brought under the ATCA in situations where the underlying claims involve human rights abuses. While they may well be right that such a principle is implicit in the ATCA, the federal courts have never definitively resolved this choice-of-law question.

Compare Xuncax, 886 F.Supp. at 180-83 (holding that international law provides substantive law for ATCA cases) with Tel-Oren, 726 F.2d at 777, 781-82 (Edwards, J., concurring) (suggesting that, while international law triggers jurisdiction under ATCA, tort laws of forum state might provide substantive causes of action), and In re Estate of Ferdinand Marcos, 978 F.2d at 503 (9th Cir.1992) (approving district court procedure that based jurisdiction on international law but applied tort law of slate where underlying events occurred); see also Filarti-ga, 630 F.2d at 889 (holding that ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action). Because our decision regarding the forum non conveniens dismissal is based on other grounds, we need not reach this question.


Context: "As a general rule, claims of ineffective assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is apparent on the face of the record, which is rarely the case."

Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006); Bruno v. State, 807 So.2d 55, 63 n. 14 (Fla.2001) (“A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness.”); see, e.g., Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007) (ineffective assistance of counsel apparent on face of record based on failure to request a specific jury instruction).

"A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness."


Context: "Even if there is sufficient 'interjection' into [California] to satisfy the [purposeful availment prong], the degree of interjection is a factor to be weighed in assessing the overall reasonableness of jurisdiction under the [reasonableness prong]."

"There may be circumstances under which the level of purposeful injection into the forum supports a finding of purposeful availment yet still weighs against the reasonableness of jurisdiction ... "

Ziegler, 64 F.3d at 475 (quoting Core-Vent Corp., 11 F.3d at 1488 (brackets original) (quoting Insurance Company of North America v. Marina Salina Cruz, 649 F.2d 1266, 1271 (9th Cir.1981)); see also Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1114-15 (9th Cir.2002) (“There may be circumstances under which the level of purposeful injection into the forum supports a finding of purposeful availment yet still weighs against the reasonableness of jurisdiction ... ”); but see Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir.1991) (“In light of the first prong of purposeful availment, analysis of this first factor in the third prong would be redundant. As we have concluded, albeit narrowly, that appellees purposefully availed themselves of the privilege of conducting activities in California, there is no need to analyze this first factor separately”).

"In light of the first prong of purposeful availment, analysis of this first factor in the third prong would be redundant. As we have concluded, albeit narrowly, that appellees purposefully availed themselves of the privilege of conducting activities in California, there is no need to analyze this first factor separately"


Context: By 1976, Federal constitutional jurisprudence had long recognized that State laws discriminating on the basis of alienage were "inherently suspect and subject to close judicial scrutiny."

"It has long been settled . . . that the term 'person' in th[e] context [of the Fourteenth Amendment to the United States Constitution] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside"

Graham v. Richardson, 403 U.S. 365, 371, 372 (1971) (“It has long been settled . . . that the term ‘person’ in th[e] context [of the Fourteenth Amendment to the United States Constitution] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside”).

"close judicial scrutiny" applicable to New York statute limiting eligibility for competitive class of civil service positions to citizens

See Sugarman v. Dougall, 413 U.S. 634, 642 (1973) (“close judicial scrutiny” applicable to New York statute limiting eligibility for competitive class of civil service positions to citizens).


Context: CATF's failure to obtain an independent appraisal of the equipment prior to sale provides further evidence that the disposition was not commercially reasonable. See U.S.A., Etc. v. Chatlin's Dept.

Store, 506 F.Supp. 108, 112 (E.D.Pa.1980), citing, California Airmotive Corp. v. Jones, 415 F.2d 554 (6th Cir.1969) (setting of evaluation figure without independent appraisal has been held to be sufficient to state claim of commercial unreasonableness); Tranchitella, supra, 249 N.J.Super. at 244, 592 A.2d 284; Spillers, supra, 65 Ill.Dec. at 563, 441 N.E.2d at 878; see also Weaver v. O’Meara Motor Co., 452 P.2d 87, 91-92 (n. 17) (Alaska 1969) (seller overcame presumption of commercial unreasonableness created by failure of notice by having independent appraisals, attempts to locate prospective purchasers in several states, and testimony that sale was to the highest offer available at'time of sale).


Context: Indeed, on multiple occasions, this Court has found an appellate lawyer ineffective for failing to raise or prove that trial counsel was ineffective in his mitigation investigation for the penalty phase of a capital trial.

remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel for failure to raise ineffectiveness of trial counsel during penalty phase where trial counsel "called no witnesses and presented no evidence at Jones' penalty hearing"

See, e.g., Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294, 305 (2008) (finding that appellate counsel failed to “provid[e] essential support for the claim of trial counsel ineffectiveness in the failure to investigate and present available mitigation” where trial counsel had failed to request defendant’s complete medical records or arrange for mental health examination despite trial counsel’s constructive notice of potential relevance of mental-health issues); Commonwealth v. Gorby, 589 Pa. 364, 909 A.2d 775, 792 (2006) (finding appellate counsel ineffective for failing to raise ineffectiveness of trial counsel during penalty phase where trial counsel failed to obtain medical, educational, or social-history records, or consult mental-health professional); Ford, 809 A.2d at 331 (Opinion Announcing the Judgment of the Court) (finding appellate counsel ineffective for failing to raise trial counsel’s ineffectiveness for “present[ing] virtually no evidence of mitigating circumstances”); see also Commonwealth v. (Damon) Jones, 590 Pa.202, 912 A.2d 268, 294-95, 291 (2006) (remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel for failure to raise ineffectiveness of trial counsel during penalty phase where trial counsel “called no witnesses and presented no evidence at Jones’ penalty hearing”); Commonwealth v. Gibson, 596 Pa. 1, 940 A.2d 323 (2005) (per curiam) (remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel based on ineffectiveness of trial counsel in investigation of mitigation evidence).

finding that appellate counsel failed to "provid[e] essential support for the claim of trial counsel ineffectiveness in the failure to investigate and present available mitigation" where trial counsel had failed to request defendant's complete medical records or arrange for mental health examination despite trial counsel's constructive notice of potential relevance of mental-health issues


finding appellate counsel ineffective for failing to raise ineffectiveness of trial counsel during penalty phase where trial counsel failed to obtain medical, educational, or social-history records, or consult mental-health professional


Context: As to the first element, a witness is peculiarly within a party's power to produce if he either: (1) is physically available only to that party; or (2) has such a relationship with one party as to effectively make him unavailable to the opposing party, regardless of actual physical availability. The latter prong is also referred to as "pragmatic unavailability."

finding that the employment by the city of uncalled police officers who witnessed an altercation between officers and the plaintiff, as well as the officers' "strong personal interest in the success of the city's defense of their conduct ..." rendered them pragmatically unavailable to the plaintiff

See United States v. Christ, 513 F.3d 762, 773 (7th Cir.2008); Yumich v. Cotter, 452 F.2d 59, 64 (7th Cir.1971) (finding that the employment by the city of uncalled police officers who witnessed an altercation between officers and the plaintiff, as well as the officers’ “strong personal interest in the success of the city’s defense of their conduct ...” rendered them pragmatically unavailable to the plaintiff); see also Mahone, 537 F.2d at 926-27 (holding that an officer who was involved in the arrest initiating case was pragmatically unavailable to the plaintiff because of his association with the United States in building its case, as well as his “interest in seeing his police work vindicated by a conviction of the defendant”).

holding that an officer who was involved in the arrest initiating case was pragmatically unavailable to the plaintiff because of his association with the United States in building its case, as well as his "interest in seeing his police work vindicated by a conviction of the defendant"


Context: . The Burns Court also suggested that Wiley and Bums could be distinguished on the basis that Wiley involved a merger, which triggered the general state law rule "that in merger situations the surviving corporation is liable for the obligations of the disappearing corporation." In Wiley, the Court had noted that the union's argument -- which may well have influenced its specific holding -- was based on principles of corporate consolidation.

noting that "the way in which a successor obtains the predecessor's assets is generally not determinative" of the successor's labor law obligations

Wiley, 376 U.S. at 547-48, 84 S.Ct. 909 ("The Union relies on § 90 of the N.Y. Stock Corporation Law, ... which provides, among other things, that no 'claim or demand for any cause’ against a constituent corporation shall be extinguished by a consolidation.”). In Howard Johnson, the Court again noted this distinction with approval, Howard Johnson, 417 U.S. at 257, 94 S.Ct. 2236, yet the Court has since downplayed this distinction as determinative of a successor's labor law obligations, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 44 n. 10, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987) (noting that "the way in which a successor obtains the predecessor's assets is generally not determinative” of the successor’s labor law obligations); see also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182 n. 5, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (observing that "[t]he perimeters of the labor-law doctrine of suc-cessorship” are not confined by the bound aries of state corporation law, and that "[t]he refusal to adopt a mode of analysis requiring the Board to distinguish among mergers, consolidations, and purchases of assets” is due to the fact that as long as there is "continuity in the employing industry, the public policies underlying the doctrine- will be served by its broad application”).

observing that "[t]he perimeters of the labor-law doctrine of suc-cessorship" are not confined by the bound aries of state corporation law, and that "[t]he refusal to adopt a mode of analysis requiring the Board to distinguish among mergers, consolidations, and purchases of assets" is due to the fact that as long as there is "continuity in the employing industry, the public policies underlying the doctrine- will be served by its broad application"


Context: After obtaining a search warrant, the officers entered his car and uncovered $1,250,000 worth of cocaine, a digital gram scale, and a gun in Griffin's briefcase. From the totality of the circumstances surrounding the arrest and Griffin's extreme anxiety, the district court, as trier of fact, was entitled to infer that Griffin knew of the cocaine in his vehicle's cargo space.

jury properly inferred from the defendant's nervousness, lies to police, and contradictory actions that defendant knew of the cocaine's presence

See Stribling, 94 F.3d at 324-25 (jury properly inferred from the defendant’s nervousness, lies to police, and contradictory actions that defendant knew of the cocaine’s presence); see also Uriostegui-Estrada, 86 F.3d at 89 (fact finder could reasonably believe that drug smuggler would not entrust cargo worth more than $1 million to a stranger unaware of its value).


Context: In Wickham Const. Co., the Federal Circuit made a distinction between the recovery of interest "on equity capital" and "interest actually paid on funds borrowed because of the government's delay in payments and used on the delayed contract."

allowing the recovery of the "increase of financing costs" caused by a breach of contract

Wickham Const. Co. v. Fischer, 12 F.3d 1574, 1582-83 (Fed.Cir.1994) (citing Gevyn Constr. Corp. v. United States, 827 F.2d 752, 754 (Fed.Cir. 1987) (“[28 U.S.C. §] 2516(a) does not bar an interest award as part of an equitable adjustment under a fixed-price contract if the contractor has actually paid interest because of the government’s delay in payment”)); see also Bluebonnet Sav. Bank, FSB v. United States, 266 F.3d 1348, 1355 (Fed.Cir.2001) (allowing the recovery of the “increase of financing costs” caused by a breach of contract). In an attempt to recover time price differential dollars, Consumers Energy makes two arguments: that it seeks to recover interest on borrowing that it was forced to undertake as a result of DOE’s breach, and/or its request for time price differential dollars could also be characterized as a request to recover Allowance of Funds Used During Construction (“AFUDC”).

"[28 U.S.C. SS] 2516(a) does not bar an interest award as part of an equitable adjustment under a fixed-price contract if the contractor has actually paid interest because of the government's delay in payment"


Context: Further, the room assignment requirement was not de minimis -- it materially and significantly affected the terms and conditions of employment of the housekeepers by increasing the number of rooms they may need to clean on a given day.

See HTH, 2011 WL 2414720, at *6 (holding that the number of rooms that housekeepers must clean is a mandatory subject of bargaining); see also EAD Motors E. Air Devices, Inc., 346 NLRB 1060, 1065 (2006) (“[T]he Board has made clear that in order to constitute a unilateral change that violates the Act, an employer’s action must effect a material, substantial, and significant change in terms or conditions of employment.”); Seattle First Nat’l Bank v. NLRB, 444 F.2d 30, 33 (9th Cir.1971) (“A mere remote, indirect or incidental impact is not sufficient.”).

"[T]he Board has made clear that in order to constitute a unilateral change that violates the Act, an employer's action must effect a material, substantial, and significant change in terms or conditions of employment."


"A mere remote, indirect or incidental impact is not sufficient."


Context: First, our decision holds only that Sheriff Arpaio lacks standing to challenge DACA and DAPA, not that those programs are categorically shielded from suit. Indeed, those programs are currently subject to challenge in a number of other circuits.

holding Mississippi lacked standing to challenge DACA because the state failed to "submit[ ] ... evidence that any DACA eligible immigrants resided in the state" or "produce evidence of costs it would incur if some DACA-approved immigrants came to the state"

See Texas, 787 F.3d at 747-55 (upholding Texas’ standing to challenge DAPA based on the costs of providing drivers licenses to DAPA beneficiaries); Ariz. DREAM Act Coal. v. Brewer, No. 15-15307, 81 F.3d 795, 2015 WL 300376 (9th Cir.2015) (ordering the parties, and inviting the federal government, to file briefs discussing whether DACA violates the separation of powers or the Take Care Clause of the Constitution); cf. Crane v. Johnson, 783 F.3d 244, 252 (5th Cir.2015) (holding Mississippi lacked standing to challenge DACA because the state failed to “submit[ ] ... evidence that any DACA eligible immigrants resided in the state” or “produce evidence of costs it would incur if some DACA-approved immigrants came to the state”).

upholding Texas' standing to challenge DAPA based on the costs of providing drivers licenses to DAPA beneficiaries


ordering the parties, and inviting the federal government, to file briefs discussing whether DACA violates the separation of powers or the Take Care Clause of the Constitution


Context: Construing Lazo's notice of appeal as a motion for a COA, we determine that a COA is not warranted in this case. Fed. R.App.

stating that principles developed in SS 2254 cases apply to cases involving SS 2255 motions

P. 22(b)(2); Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000) (dealing with § 2254 motion and stating that the court of appeals should have treated the notice of appeal as an application for a COA); see also Gay v. United States, 816 F.2d 614, 616 n. 1 (11th Cir.1987) (stating that principles developed in § 2254 cases apply to cases involving § 2255 motions).

dealing with SS 2254 motion and stating that the court of appeals should have treated the notice of appeal as an application for a COA


Context: The district court properly granted summary judgment for defendant Yates because Humphrey failed to establish a genuine dispute of material fact as to whether Yates personally participated in any alleged constitutional violations.

See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (a plaintiff must plead that each defendant violated the Constitution through his own individual actions); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (supervisor is liable for constitutional violations of subordinates only if he “participated in or directed the violations, or knew of the violations and failed to act to prevent them”); see also Toguchi, 391 F.3d at 1058 (prison officials act with deliberate indifference only if they know of and disregard an excessive risk to inmate health).


supervisor is liable for constitutional violations of subordinates only if he "participated in or directed the violations, or knew of the violations and failed to act to prevent them"


Context: Courts are not at liberty to expand the language chosen by Congress, and the omission here is telling. Thus, while Section 2718(c) saves from the OPA's diminution the ability of the United States or state entities to impose requirements relating to oil discharges, it does not save those powers from the effects of the CWA or any other non-identified federal law. Consistent with this conclusion, the Supreme Court in Ouellette held that a savings clause commencing with "nothing in this section" is by its terms limited to preemption caused by that section alone.

See 479 U.S. at 493, 107 S.Ct. at 812 (such a clause “does not purport to preclude preemption of state law by other provisions of the Act”); see also United States v. Locke, 529 U.S. 89, 106, 120 S.Ct. 1135, 1146-47, 146 L.Ed.2d 69 (2000) (Section 2718 does not extend to subjects addressed in other Titles of the OPA or other acts).

such a clause "does not purport to preclude preemption of state law by other provisions of the Act"


Context: . Although Dr. Barakat was Somogy's treating physician for well over three years and, as a rheumatologist, is a specialist in the diagnosis and treatment of rheumatic diseases, including fibromyalgia, the ALJ does not appear lo have considered these important factors in deciding how much weight to accord her opinion.

See 20 C.F.R. §§ 404.1527(d)(2), (5); see also Benecke, 379 F.3d at 594 n. 4 (noting that ”[s]pecialized knowledge may be particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community,” and thus rheumatologists’ opinions were entitled to greater weight than those of other physicians); cf. Elder v. Astrue, 529 F.3d 408, 416 (7th Cir.2008) (ALJ did not err in declining to accord controlling or even substantial weight to opinion of physician who was not a specialist in fibromyalgia).

noting that "[s]pecialized knowledge may be particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community," and thus rheumatologists' opinions were entitled to greater weight than those of other physicians


Context: While it may be, as the Commissioner argues, that the opinions of these non-treating sources could constitute substantial evidence in some cases, there is. no basis for this conclusion here, given the absence of opinions from those in the best position to gauge the Child's progress: the physician who diagnosed the Child and prescribed the medication, and the psychiatrist who met with him consistently from the diagnosis onward. It is the treating sources who are the "most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and [who] may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. SS 404.1527(c)(2). ALJ Shire neither obtained evidence providing this "unique perspective" herself, nor did she advise plaintiff of her right to supplement the record or call the treating doctors as witnesses, as she should have done given her inclination to deny benefits.

vacating and remanding "because the ALJ should have developed a more comprehensive record"

See, e.g., Moran v. Astrue, 569 F.3d 108, 114 (2d Cir.2009) (vacating and remanding “because the ALJ should have developed a more comprehensive record”); see also Blash ex rel. D.A.S. v. Colvin, 2014 WL 1278151, at *5 (E.D.N.Y., March 27, 2014) (“The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law, and while the ALJ’s decision may ultimately be sustained, it cannot be upheld on the record now before me”) (internal quotation marks and citation omitted).

"The responsibility of an ALJ to fully develop the record is a bedrock principle of Social Security law, and while the ALJ's decision may ultimately be sustained, it cannot be upheld on the record now before me"


Context: Defendant is correct in its assertion that the Federal Rules of Civil Procedure no longer allow for service of process by mail unless it is allowed by the state where the district court presiding over the action sits or it is allowed in the state where process was served.

See Langley v. Graham, 322 S.C. 428, 472 S.E.2d 259, 261 (App.1996) (noting that “the new federal rules have abolished service by mail, except to the extent permitted by applicable state practice”); see also, Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir.2000) (noting that delivery under the federal rules means personally served, not merely mailed).

noting that "the new federal rules have abolished service by mail, except to the extent permitted by applicable state practice"


Context: In fact, there is no indication in the record that the jury was charged with an incorrect expression of the law. Since the record does not contain any proposed jury charges and since the record does not reflect that Contractor proffered any proposed charges for the jury, this issue is not preserved.

"The court gave a general charge concerning requests for admissions, which was a correct statement of law. If [defendant] wanted a further charge as to the effect of the amended answers, it was incumbent upon it to specifically proffer such a charge. However, [defendant] failed to proffer an additional charge, either at trial or on appeal."

See Wells v. Halyard, 341 S.C. 234, 533 S.E.2d 341 (Ct.App.2000) (upholding jury charge given by trial judge where record was devoid of appellant’s request for a particular charge or the language of the proposed charge that appellant contended judge refused to give); see also McIntosh, 315 S.C. at 192, 432 S.E.2d at 487 (“The court gave a general charge concerning requests for admissions, which was a correct statement of law. If [defendant] wanted a further charge as to the effect of the amended answers, it was incumbent upon it to specifically proffer such a charge. However, [defendant] failed to proffer an additional charge, either at trial or on appeal.”) (citation omitted).

upholding jury charge given by trial judge where record was devoid of appellant's request for a particular charge or the language of the proposed charge that appellant contended judge refused to give


Context: The record reflects that he was advised of the evidence necessary to substantiate the next-higher disability ratings for each of these claims (see e.g., R. at 226-27, 457-69, 493-500, 503-04, 529-42). Accordingly, even if notice was otherwise inadequate, Mr. Coker was not prejudiced.

See Mayfield v. Nicholson, 19 Vet.App. 103, 121 (2005) (noting that notice errors can be shown to be nonprejudicial and citing several examples where notice error would not be prejudicial), appeal docketed, No. 05-7157 (Fed. Cir. June 14, 2005); see also 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1375 (Fed.Cir. 2004) (Court is required to “take due account of the rule of prejudicial error”); Marciniak v. Brown, 10 Vet.App. 198, 201 (holding that, “[i]n the absence of, demonstrated prejudice,” remand is unnecessary); Barker v. Brown, 9 Vet.App. 476, 481 (same).

Court is required to "take due account of the rule of prejudicial error"


holding that, "[i]n the absence of, demonstrated prejudice," remand is unnecessary


Context: If other evidence existed upon which appellant could sustain this theory, that evidence should have been disclosed in opposition to appellee's motion for summary judgment.

See Roland, supra, 355 Pa.Super. at 500-02, 513 A.2d at 1033-34 (holding that if undisclosed evidence might have affected the disposition of the summary judgment motion, the plaintiffs chose not to disclose the basis of their claim, and they did so at their own risk); Brecher v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990) (holding that summary judgment was not improper merely because there was a possibility that literature not yet produced would support the claim); but see Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989) (holding that summary judgment was improperly granted where record did not disclose that the plaintiff would be unable to produce supporting evidence at trial). For the above reasons, we conclude that the trial court did not err in finding no triable issues of fact as to appellant’s grape theory.


holding that summary judgment was not improper merely because there was a possibility that literature not yet produced would support the claim


Context: The district court did not abuse its discretion by reducing the fees from the amount specified in the fee agreement based on the court's assessment of what was reasonable given the risk and complexity involved in this case.

stating that "[i]f the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is ... in order"

See Gisbrecht v. Barnhart, 535 U.S. 789, 808, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (stating that “[i]f the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is ... in order”); Crawford, 586 F.3d at 1152-53 (explaining that courts should assess the complexity and risk involved in the specific case at issue, rather than social security cases in general, when analyzing the reasonableness of the requested fees); see also Clark v. Astrue, 529 F.3d 1211, 1214 (9th Cir.2008) (“The district court abuses its discretion if it does not apply the correct legal standard or rests its decision on a clearly erroneous finding of fact.”).

"The district court abuses its discretion if it does not apply the correct legal standard or rests its decision on a clearly erroneous finding of fact."


explaining that courts should assess the complexity and risk involved in the specific case at issue, rather than social security cases in general, when analyzing the reasonableness of the requested fees


Context: "when the parties have not provided sufficient legal or factual justification for this Court's jurisdiction, this Court is not obligated to embark on its own expedition beyond the parties' arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction.

'Once a party challenges the trial court's jurisdiction, pursuant to Rule 12(b

Ex parte Ray-El, 911 So.2d 1100, 1104 (Ala.Crim.App.2004) (placing the burden to “ ‘justify the jurisdiction of this court’ ” on the person bringing a habeas petition as a ‘next friend’ (quoting Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990))); cf. Bush v. Laggo Props., L.L.C., 784 So.2d 1063, 1065 (Ala.Civ.App.2000) (‘Once a party challenges the trial court’s jurisdiction, pursuant to Rule 12(b)(1), [Ala.

See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007) (setting forth the plaintiffs burden of demonstrating standing to bring an action, an issue of subject-matter jurisdiction); ...


Context: Officer Sauve knew that fellow officers had discovered cocaine on another passenger, who had identified Chin as the owner. Because Melvin asserted direct personal knowledge of Chin's crime and had himself been caught red-handed, his identification of Chin could be viewed as weightier than a tip from a more distant informant.

an admitted criminal participant has a strong incentive to tell the truth because "should he lie to the police," he "risks disfavor with the prosecution"

See United States v. Gaviria, 805 F.2d 1108, 1115 (2d Cir.1986) (“[A] criminal participant or witness to a crime ‘need not be shown to have been previously reliable before the authorities may rely on his statements.’ ”) (emphasis in original; citations omitted), cert. denied sub nom. Contreras v. United States, 481 U.S. 1031, 107 S.Ct. 1960, 95 L.Ed.2d 531 (1987); see also United States v. Davis, 617 F.2d 677, 693 (D.C.Cir.1979) (an admitted criminal participant has a strong incentive to tell the truth because “should he lie to the police,” he “risks disfavor with the prosecution”), cert. denied sub nom. Gelestino v. United States, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980).

"[A] criminal participant or witness to a crime 'need not be shown to have been previously reliable before the authorities may rely on his statements.' "


Context: O'Donnell and the cab driver who took Lipscomb home each testified without equivocation before the grand jury about the events of August 28. O'Donnell's testimony directly contradicted the statements by Lipscomb. This testimony, along with the physical evidence found on Lipscomb's person and in his apartment, was more than enough for the grand jury to return a true bill, even if Lipscomb's statement had been played with all inculpatory material deleted.

See Tookak v. State, 648 P.2d at 1021 (strength of other evidence before grand jury rendered failure to introduce exculpatory material harmless); see also Giacomazzi v. State, 633 P.2d 218 (Alaska 1981) (if other evidence presented will justify the indictment, use of inadmissible hearsay will not be deemed to vitiate it).


Context: Furthermore, courts have interpreted the language in Rule 15(a) as setting forth a "liberal policy of permitting amendments to ensure the determination of claims on their merits." In furtherance of that principle, this Circuit has acknowledged that, in general, a Rule 15(a) motion should not be evaluated purely on timeliness grounds.

explaining that "delay by itself is not sufficient to deny a motion to amend"

Coe v. Bell, 161 F.3d at 342 (explaining that “delay by itself is not sufficient to deny a motion to amend”); see also United States v. Duffus, 174 F.3d 333, 337 (3d Cir.1999) (explaining that “ordinarily delay alone is not a basis to deny a motion to amend”).

explaining that "ordinarily delay alone is not a basis to deny a motion to amend"


Context: . These safeguards can take the form of prohibiting all expert testimony -- including all "consistent with" testimony -- except for purposes of rehabilitation on rebuttal by requiring the testimony to be narrowly tailored to an identifiable symptom from which the complainant suffers.

"At this time, we choose to limit the admissibility of such testimony to rebuttal after the victim's credibility has first been attacked."

See, e.g., People v. Nelson, 203 Ill.App.3d 1038, 149 Ill.Dec. 161, 561 N.E.2d 439, 444 (1990) ("At this time, we choose to limit the admissibility of such testimony to rebuttal after the victim’s credibility has first been attacked.”); see also People v. Bowker, 203 Cal.App.3d 385, 249 Cal.Rptr. 886, 891 (1988) (requiring that the testimony is “targeted to a specific ‘myth’ or 'misconception' suggested by the evidence”); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391, 399 (1990) (holding that "only those aspects of 'child sexual abuse accommodation syndrome,’ which specifically relate to the particular behaviors which become an issue in the case are admissible”).

requiring that the testimony is "targeted to a specific 'myth' or 'misconception' suggested by the evidence"


holding that "only those aspects of 'child sexual abuse accommodation syndrome,' which specifically relate to the particular behaviors which become an issue in the case are admissible"


Context: A classification that adversely affects a fundamental right or is based on a suspect category is constitutional if it passes strict scrutiny in that the classification is "necessary or narrowly tailored to a compelling governmental purpose." Appellant maintains that the use of marijuana is a form of health care affordable to him, and he claims that he has a fundamental right to affordable health care while at the same time he concedes that affordable health care has not been recognized as a fundamental right.

stating that "federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to allev iate excruciating pain and human suffering"

See Mitchell v. Clayton, 995 F.2d 772, 775-76 (7th Cir.1993) (stating that “most federal courts have held that a patient does not have a constitutional right to obtain a particular type of [medical] treatment”); see also Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir.2007) (stating that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to allev iate excruciating pain and human suffering”).

stating that "most federal courts have held that a patient does not have a constitutional right to obtain a particular type of [medical] treatment"


Context: The facts will only be repeated here where necessary to explain our decision. Under Ohio law, a claim for breach of an implied covenant of good faith must be based on a fiduciary or other special relationship mutually recognized by the parties to the agreement.

Sammarco v. Anthem Ins. Cos., Inc., 131 Ohio App.3d 544, 723 N.E.2d 128, 135-6 ( 1998) (where there is no fiduciary or other such special relationship between the parties to the contract, the imposition of a duty of good faith and fair dealing is not justified and a termination based upon legitimate economic interests, such as to increase profits, will not give rise to a claim of bad faith); see also Tanksley & Assoc. v. Willard Indus., Inc., 961 F.Supp. 203, 207 (S.D.Ohio 1997) (Ohio cases finding implied duty turned on the fact that the relationship was an agency). Here, there was no evidence of such a relationship; CDM was merely Complete and Gerry’s independent contractor.


Context: The only conceivable claim is against Defendant Dr. Ayyaswamy, a psychiatrist who Matthews alleges threatened him when he asked about his criminal case. However, mere threatening language does not amount to a constitutional violation.

See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (stating that not every unpleasant experience a prisoner faces, like verbal abuse or harassment, constitutes cruel and unusual punishment); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.1983) (noting that mere threats and gestures do not amount to constitutional violations); see also Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir.1992) (distinguishing idle threats from threats causing terror of serious injury or imminent death).


noting that mere threats and gestures do not amount to constitutional violations


Context: Section 1367 of Title 28 of the United States Code provides, in pertinent part, that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy .... " 28 U.S.C. SS 1367(a). Pursuant to subsection (c), however, the Court may decline to exercise its supplemental jurisdiction if, among other things, it has dismissed all claims over which it had original jurisdiction. 28 U.S.C. SS 1367(c)(3). In other words, once "the bases for federal subject matter jurisdiction have been extinguished[,] the district court may decline to exercise continuing 'pendent or supplemental jurisdiction over [the] plaintiffs state claims."

"Once a federal court dismisses claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over related state law claims."

Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir.1998) (dismissing without prejudice plaintiffs claims for, inter alia, breach of contract after having entered summary for defendant on plaintiffs First and Fourteenth Amendment claims); see also Taylor v. Meacham, 82 F.3d 1556, 1564 n. 1 (10th Cir.1996) (“Once a federal court dismisses claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over related state law claims.”).


Context: Although the Supreme Court did not specifically address the ADEA in Darden, we find no reason to deviate from the common-law test for purposes of determining employee status under the ADEA.

finding it unnecessary to decide which test to apply in determining whether a claimant is an employee under the ADEA because both the common-law test and the hybrid test focus on the hiring party's control

See Speen v. Crown Clothing Corp., 102 F.3d 625, 631 (1st Cir.1996) (adopting the common-law test “for determining who qualifies as an ‘employee’ under the ADEA” and disregarding decisions to the contrary in other circuits); Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993) (holding that determination of whether someone is an employee under the ADEA must be made “in accordance with common law agency principles”); but see Mangram v. General Motors Corp., 108 F.3d 61, 62 (4th Cir.1997) (applying the hybrid test as adopted in previous eases); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495-96 (11th Cir.1993) (finding it unnecessary to decide which test to apply in determining whether a claimant is an employee under the ADEA because both the common-law test and the hybrid test focus on the hiring party’s control).

adopting the common-law test "for determining who qualifies as an 'employee' under the ADEA" and disregarding decisions to the contrary in other circuits


holding that determination of whether someone is an employee under the ADEA must be made "in accordance with common law agency principles"


Context: Second, we note that there is a strong public policy against "factoring transactions" such as the one entered into between Short and Singer.

"[T]he rules of equity must be so applied as to serve the public interest and the public policy of the state."

See Good v. Good, 79 Idaho 119, 311 P.2d 756, 762 (Idaho 1957) (“[T]he rules of equity must be so applied as to serve the public interest and the public policy of the state.”); see also In re R & P Capital Res., Inc., 2 Misc.3d 220, 772 N.Y.S.2d 461, 462 (N.Y.Sup.Ct.2003) (“[T]hese purchases have not been looked upon favorably by courts or legislatures. In particular, courts have refused to approve factoring transactions where the annuity contract contains a non-assignment clause.”); 144 Cong. Rec. S11499-01, S11500 (1998).

"[T]hese purchases have not been looked upon favorably by courts or legislatures. In particular, courts have refused to approve factoring transactions where the annuity contract contains a non-assignment clause."