Context: Even acknowledging that the Court's decision altered or overruled then-existing precedent on the "clearly erroneous" standard of review of the Board's findings of fact, the law and regulation are well-established with respect to the Board's duty to assign due weight to the evidence and to return an inadequate medical examination.

"Part of the Board's consideration of how much weight to assign is the foundation upon which the medical opinion is based."

See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008) (“Part of the Board’s consideration of how much weight to assign is the foundation upon which the medical opinion is based.”); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board’s duty to return inadequate examination report); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (“When a medical examination report “does not contain sufficient detail,” the adjudicator is required to “return the report as inadequate for evaluation purposes.” ” (quoting 38 C.F.R. § 4.2 (1994))); Ardison v. Brown, 6 Vet.App. 405 (1994) (concluding that an inadequate medical examination frustrates judicial review); see also Bonny v. Principi, 18 Vet.App. 218, 221 (2004) (stating that “in judging reasonableness during the administrative proceedings, the Court looks to the relevant, determinative circumstances, including the state of the law at the time of the Board decision”); Bac-A v. West, 13 Vet.App. 308, 311 (2000) (providing that even prior to the Court’s clarification of the caselaw governing compliance with Board remands, “there was ample regulatory language and case law requiring the Board to assure that its adjudication was undertaken only after the compilation of an adequate record”).

stating that "in judging reasonableness during the administrative proceedings, the Court looks to the relevant, determinative circumstances, including the state of the law at the time of the Board decision"


providing that even prior to the Court's clarification of the caselaw governing compliance with Board remands, "there was ample regulatory language and case law requiring the Board to assure that its adjudication was undertaken only after the compilation of an adequate record"


"When a medical examination report "does not contain sufficient detail," the adjudicator is required to "return the report as inadequate for evaluation purposes." " (quoting 38 C.F.R. SS 4.2 (1994


Context: The Commissioner argued that back pay was taxable income because it was paid on account of a nonper-sonal injury. Although we have rejected that argument here, given that the Commissioner prevailed in the Tax Court on the issue, that Byrne had not yet been decided by this Court, the inconsistency we have found in the Tax Court's approach to this issue, see supra n. 5, and the assumption by many courts that such back pay awards are taxable, see supra note 15 and accompanying text, we think that the Commissioner's position could be deemed as reasonably supported in the case law.

interpreting the phrase "substantially justified" for purposes of the closely related Equal Access to Justice Act to mean justified to a degree that would satisfy a reasonable person

Cf. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (interpreting the phrase “substantially justified” for purposes of the closely related Equal Access to Justice Act to mean justified to a degree that would satisfy a reasonable person).

requiring taxpayer to prove that the government's position was unjustified

See, e.g., Smith v. United States, 850 F.2d 242, 246 (5th Cir.1988) (requiring taxpayer to prove that the government’s position was unjustified); Boatmen’s First Nat’l Bank of Kansas City v. United States, 723 F.Supp. 163, 170 (W.D.Mo.1989); Feldmar v. Commissioner, 56 T.C.M. (CCH) 1414, 1416 (1989) (“In determining whether [the government’s] position was not substantially justified, the question is one of whether [the government’s] position in the litigation was unreasonable.”).


"In determining whether [the government's] position was not substantially justified, the question is one of whether [the government's] position in the litigation was unreasonable."


Context: Rather, CU would be liable for the full amount of Payless's liability as the only insurer. In fact, during oral argument, CU's counsel agreed that if we determined that CU provided primary coverage and USF & G provided excess coverage, then the $200,000 SIR was no longer at issue. If the SIR truly was self-insurance as CU wants to define that term, then the SIR would arguably be primary regardless of what we determined USF & G's coverage to be. CU's concession cements our conclusion that the SIR is nothing more than a deductible contracted between Payless and USF & G. Because the SIR contained in the USF & G policy is not "other insurance" within the meaning of CU's "other insurance" clause, CU's policy provides the only insurance coverage for the first $200,000 of Payless's liability (subject of course to the $10,000 SIR in CU's own policy).

applying Minnesota law and holding that, up to the higher deductible contained in one of two applicable insurance policies, only one insurance policy provided coverage so that its "other insurance" clause was not triggered

See Cargill, Inc., 889 F.2d at 180 (applying Minnesota law and holding that, up to the higher deductible contained in one of two applicable insurance policies, only one insurance policy provided coverage so that its “other insurance” clause was not triggered); cf. Wallace v. TriState Ins. Co. of Minn., 302 N.W.2d 337, 340-41 (Minn.1980) (holding that the excess carrier was liable only for the insured’s deductible, which was not covered by the primary insurer).

holding that the excess carrier was liable only for the insured's deductible, which was not covered by the primary insurer


Context: Indeed, the Government candidly conceded that the officers made a show of authority from the moment they first approached Lowe.

holding that there was no show of authority when two officers repeatedly asked an individual 'Where is your girl's house?", but where "the two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of the officer's voice that might have signaled a clear show of authority"

See United States v. Waterman, 569 F.3d 144, 144-46 (3d Cir.2009) (holding that a show of authority occurred when two uniformed police officers approached a house and commanded that people on the porch show their hands); cf. United States v. Smith, 575 F.3d 308, 314 (3d Cir.2009) (holding that there was no show of authority when two officers repeatedly asked an individual ‘Where is your girl’s house?”, but where “the two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of the officer’s voice that might have signaled a clear show of authority”).


Context: The plaintiff alleges that the incident took place as Miller took her son's file away from her. Viewing the facts in the light most favorable to the plaintiff, the Court finds that the complaint sufficiently alleges a cause of action for excessive force.

finding that head trauma, lacerations and bruising to children which required hospital treatment due to a teacher's choking, punching and deliberate slamming of objects into the children's heads rose to the level of conscience shocking

See Johnson, 239 F.3d at 252 (finding that head trauma, lacerations and bruising to children which required hospital treatment due to a teacher’s choking, punching and deliberate slamming of objects into the children’s heads rose to the level of conscience shocking).

But see Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (finding that bumping, grabbing and elbowing does not reach the level of constitutional dimensions).


Context: Our paramount goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of the agreement. Given that the policy calls for arbitration and that we must enforce the arbitration clause as written, we conclude that the trial court erred by denying Safety's motion to compel arbitration.

See, eg., Lloyds of London, 549 N.E.2d at 70 (noting that when issues exist that fall under the arbitration agreement, "it is better to compel arbitration on those issues and ... leave it up to the trial court to determine how much weight to give the arbitrators' findings"); see also First Federal Sav. Bank of Indiana v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind.1990) (noting that "[the proper posture for the court is to find and enforce the contract as it is written and leave the parties where it finds them").


Context: Several courts, including this one, find that the burden shifts to the debtor to establish that the debt should be discharged under either subparagraph (A) or (B) of Section 523(a)(15).

Hill, 184 B.R. at 753-54; In re Owens, 191 B.R. 669, 672-73 (Bankr.E.D.Ky.1996) (debtor must be successful in assertion of affirmative defenses of (A) or (B)); Slover, 191 B.R. at 891-92 (obligation under Section 523(a)(15) nondischargeable unless debtor can prove one of two things as set forth in (A) or (B)); Taylor, 191 B.R. at 764-65 (burden of coming forward shifts to debtor); In re Florez, 191 B.R. 112, 114 (Bankr.N.D.Ill.1995); Anthony, 190 B.R. at 436; Florio, 187 B.R. at 657 (burden of going forward shifts to the debtor); Silvers, 187 B.R. at 649 (burden of going forward, not burden of proof shifts to the debtor); In re Phillips, 187 B.R. 363, 368-69 (Bankr.M.D.Fla.1995); Carroll, 187 B.R. at 200 (burden of proof shifts to the debtor); see also Becker, 185 B.R. at 569 (burden of proof shifts to the debtor after plaintiff brings the dischargeability action under Section 523(a)(15)); In re Woodworth, 187 B.R. 174 (Bankr.N.D.Ohio 1995) (initially describes the burden of proof as resting on the plaintiff; later states the debtor/defendant “met the requirements” of Section 523(a)(15)(A), suggesting the burden is placed on the debtor).


obligation under Section 523(a)(15) nondischargeable unless debtor can prove one of two things as set forth in (A) or (B


burden of going forward, not burden of proof shifts to the debtor


Context: Maj. Op. at 431. To the extent this blanket statement is intended to condemn all affirmative action plans that adopt a racial parity goal, it is incorrect. Adopting race-conscious employment practices that seek to achieve racial balance is a time-honored, court-approved, appropriate remedial response to discrimination. Affirmative action plans approved by courts have striven to achieve this very result.

describing instances when a court might order an employer "to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the work force"

See, e.g., Weber, 443 U.S. at 197, 99 S.Ct. at 2724 (approving plan that reserves 50 percent of the positions for blacks “until the percentage of black[s] ... in the plant is commensurate with the percentage of blacks in the local labor force”); see also Sheet Metal Workers, 106 S.Ct. at 3036 (describing instances when a court might order an employer “to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the work force”).

approving plan that reserves 50 percent of the positions for blacks "until the percentage of black[s] ... in the plant is commensurate with the percentage of blacks in the local labor force"


Context: Curiously, defendant commissioners do not explain why this court does not have federal question jurisdiction stemming from TDS's assertion of a violation of its federal due process rights coupled with its request for declaratory and injunctive relief. It is well established that a lack of adequate procedures by state officials may implicate federal due process rights.

See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (Eleventh Amendment does not preclude suits against state officials for injunctive relief); see also MCI Telecommunications, 183 F.3d at 563 (“suits against state officials seeking prospective equitable relief for ongoing violations of federal law are not barred by the Eleventh Amendment under the Ex parte Young doctrine”).

"suits against state officials seeking prospective equitable relief for ongoing violations of federal law are not barred by the Eleventh Amendment under the Ex parte Young doctrine"


Context: The Dolan Court also noted that the plaintiff in that case was required to "deed portions of [her] property to the city." Id Despite this language in Dolan, it is unclear whether the Nollan and Dolan standard applies to generally applicable legislative determinations that affect property rights.

acknowledging that courts have come to different conclusions on whether the Nollan and Dolan standard applies to a "legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property"

See Koontz, 133 S.Ct. at 2608 (Kagan, J., dissenting) (questioning whether the majority in Koontz accepts the Dolan distinction between legislative determinations and adjudicative decisions); McClung v. City of Sumner, 548 F.3d 1219, 1225 (9th Cir. 2008) (acknowledging that courts have come to different conclusions on whether the Nollan and Dolan standard applies to a "legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property”), abrogated by Koontz, — U.S. -, 133 S.Ct. 2586; see also Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 640-41 (Tex. 2004) (noting that "a workable distinction can[not] always be drawn between actions denominated adjudicative and legislative”).

noting that "a workable distinction can[not] always be drawn between actions denominated adjudicative and legislative"


Context: Likewise, the medical evidence is devoid of any evidence showing that Claimant's condition has deteriorated or required aggressive medical treatment although Claimant testified otherwise at the hearing. After undergoing a discectomy and internal fixation with spinal reconstruction C5-C6 in July, 2004, Claimant's functional use of her cervical spine had been restored.

Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir.2007) (noting that if impairment can be controlled by treatment, it cannot be considered disabling); see also Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.2004) (“If an impairment can be controlled by treatment or medication, it cannot be considered disabling.”).

"If an impairment can be controlled by treatment or medication, it cannot be considered disabling."


Context: Appel-lees were forced to defend numerous cases in separate jurisdictions simultaneously, and Appellants' absenteeism in the case below left Appellees alone to comply with the district court's pre-trial deadlines. In sum, the court's dismissal was not an abuse of discretion. Lewis v. Sherriff's Dept.

Bossier Parish, 478 Fed.Appx. 809, 816 (5th Cir.2012) (holding that dismissal with prejudice is warranted where case delayed for more than a few months), cert. denied, — U.S. ---, 133 S.Ct. 865, 184 L.Ed.2d 678 (2013), reli’g denied, — U.S. ---, 133 S.Ct. 1627, 185 L.Ed.2d 610 (2013); see also Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607-08 (5th Cir.1998) (maintaining that dismissal with prejudice is not an abuse of discretion where delay, dilatory motive, repeated failure to cure deficiencies, or undue prejudice to the opposing party is present).


Context: These courts require the potential extraditee to establish the following two factors before the Court can grant bail in a foreign extradition case: (1) "special circumstances" exist in their particular case; and (2) they are not a flight risk or a danger to the community. However, at least two courts have had difficulty in applying flight risk as a separate, independent factor from the special circumstances inquiry.

'While this Court recognizes lack of flight risk as the initial threshold Respondents must cross, it is such a prominent aspect of this case that it rises to the level of a special circumstance in and of itself."

See Parretti v. United States, 122 F.3d 758 (9th Cir.1997) (indicating that detention pending an extradition hearing without some indicia of flight risk violates the Due Process Clause), withdrawn and appeal dismissed on other grounds, 143 F.3d 508 (9th Cir.1998) (en banc); see also In re Extradition of Chapman, 459 F.Supp.2d 1024, 1026-27 (D.Haw.2006) (‘While this Court recognizes lack of flight risk as the initial threshold Respondents must cross, it is such a prominent aspect of this case that it rises to the level of a special circumstance in and of itself.”).


Context: Further, the gun had been fired from a position against the victim's clothing. The jury could reasonably have concluded that this evidence showed beyond a reasonable doubt that the defendant committed the murder with deliberate premeditation.

See also Commonwealth v. Stirling, 351 Mass. 68, 75 (1966) (lack of sign of struggle may be considered in regard to deliberately premeditated malice aforethought).

See Commonwealth v. Williams, 422 Mass. 111, 123 (1996) (use of firearm in killing enough to support deliberately premeditated murder); Commonwealth v. Robertson, 408 Mass. 747, 756-757 (1990) (use of firearm supports finding of malice; evidence sufficient to support deliberate premeditation even if killing followed reflection by only few seconds).


Context: Many jurors would no doubt feel threatened or intimidated by such contacts, and excluding evidence that is improperly obtained from jurors effectively deters such contacts and preserves the integrity of our judicial process. For these reasons, we conclude that the court did not abuse its discretion in excluding evidence that was obtained in violation of Local Rule 5.01(d).

stating in slightly different context that "[h]e who makes studied inquiries of jurors ... acts at his peril, ... [and] [i]t is incumbent upon the courts to protect jurors from [such inquiries]."

See Tanner, 483 U.S. at 126, 107 S.Ct. at 2750 (recognizing in dicta that “[t]he juror affidavit submitted in support of the second new trial motion was obtained in clear violation of the District Court’s order and the court’s local rule against juror interviews ...; on this basis alone the District Court would have been acting within its discretion in disregarding the affidavit.”) (emphasis added); Arney v. Helbig, 383 N.W.2d 4, 6 (Minn.Ct.App.1986) (affirming court’s denial- of hearing to plaintiff where his attorney conducted improper juror interview and recognizing state’s policy to decline hearings based on information improperly obtained from jurors); cf. Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir.1948) (stating in slightly different context that “[h]e who makes studied inquiries of jurors ... acts at his peril, ... [and] [i]t is incumbent upon the courts to protect jurors from [such inquiries].”).

affirming court's denial- of hearing to plaintiff where his attorney conducted improper juror interview and recognizing state's policy to decline hearings based on information improperly obtained from jurors


Context: However, our holding that Brigham abrogated Dortch's "particularized suspicion" requirement does not allow police officers to detain an individual indefinitely, fishing for evidence of every conceivable crime that might explain the suspicious facts they articulate as having created their reasonable suspicion. This limitation follows from the fact that both the length of the detention and the scope of the investigation to be conducted which may justify the detention remain subject to a "reasonableness" requirement under Brigham and Supreme Court precedent.

"[W]e consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."

See also Sharpe, 105 S.Ct. at 1575 (“[W]e consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”); Brigham, 382 F.3d at 506 (“Courts ... inquire whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop.”).

"The correct analysis requires district courts to consider the facts and circumstances of each case ... to determine whether the actions taken by the officers, including the length of the detention, were reasonable under the circumstances."

See Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (“We have long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ ” (quoting Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991))); Brigham, 382 F.3d at 507 (“The correct analysis requires district courts to consider the facts and circumstances of each case ... to determine whether the actions taken by the officers, including the length of the detention, were reasonable under the circumstances.”).


"Courts ... inquire whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop."


Context: Second, he had extensive contact with counsel prior to his decision to proceed pro se, including three court-appointed lawyers in this very case. In fact, one had represented him through a jury trial.

explaining that the defendant's "significant contact" with an attorney before trial, even though he never actually retained counsel, was enough to satisfy this factor

See Stanley, 739 F.3d at 647-48 (holding that representation by counsel until the first day of trial “likely exposed [the defndant] to the complexity of his case and the legal process”); cf. Fitzpatrick, 800 F.2d at 1066 (explaining that the defendant’s “significant contact” with an attorney before trial, even though he never actually retained counsel, was enough to satisfy this factor).

holding that representation by counsel until the first day of trial "likely exposed [the defndant] to the complexity of his case and the legal process"


Context: Those allegations focused on the integrity of Petrowski that included improper claims for overtime, improper use of state funds to purchase alcohol, and the inclusion of false information in certain search warrants, as well as improper procedures used in undercover purchases of illicit drugs. The plaintiffs' speech was clearly a matter of public concern.

concluding that law clerk's accusation that judge was "corrupt" and a "son of a bitch" in context that judge acted improperly in several cases constituted speech on matter of public concern

See Schnabel v. Tyler, supra, 230 Conn. 754-55 (concluding that police officer’s allegations of chief of police’s abuse of authority and misconduct constituted matters of public concern); see also Sheppard v. Beerman, 911 F. Sup. 606, 609, 611 (E.D.N.Y. 1995) (concluding that law clerk’s accusation that judge was “corrupt” and a “son of a bitch” in context that judge acted improperly in several cases constituted speech on matter of public concern), vacated on other grounds, 94 F.3d 873 (2d Cir. 1996).

concluding that police officer's allegations of chief of police's abuse of authority and misconduct constituted matters of public concern


Context: Moreover, a finding in this court in favor of plaintiffs would have the effect of rendering the settlement agreement in the underlying probate case meaningless and re-litigating the issues that were originally brought by plaintiffs before the probate court with respect to Darwit's accounting and reimbursement of estate funds. Plaintiffs cannot simply re-title their claims from probate court against Darwit as RICO claims in order to seek relief in a different forum.

RICO claims were barred when they required the court "to construe the trust and define the duties, obligations and responsibilities of [tjrustees"

See Cas-sity v. Pitts, 995 F.2d 1009, 1011-12 (10th Cir.1993) (RICO claims were barred when they required the court “to construe the trust and define the duties, obligations and responsibilities of [tjrustees”); Wozniak v. Corrigan, No. 1:05 CV 2259, 2006 WL 4512815, at *4 (N.D.Ohio May 12, 2006) (“Recasting the language of the [probate] suit as a RICO claim does not alter the landscape of the case which implores the Court to interfere with a state probate proceeding.”); cf. Jones v. Brennan, 465 F.3d 304, 308 (7th Cir.2006) (“It is too facile a litigation.move to recast a claim of maladministration [of an estate] as a denial of due process.”).

"It is too facile a litigation.move to recast a claim of maladministration [of an estate] as a denial of due process."


"Recasting the language of the [probate] suit as a RICO claim does not alter the landscape of the case which implores the Court to interfere with a state probate proceeding."


Context: Also like Preiser, Heck addressed only the limited reach of SS 1983 with regard to prisoner suits. It did not set out any concomitant limitation on habeas jurisdiction or hold that the habeas and SS 1983 causes of action are mutually exclusive.

"[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself."

See also Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122, 158 L.Ed.2d 924 (2004) (“[Cjonstitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of [Preiser’s ] core and may be brought pursuant to § 1983 in the first instance.” (emphasis added)); cf. Bell v. Wolfish, 441 U.S. 520, 527 n. 6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”).

"[Cjonstitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside of [Preiser's ] core and may be brought pursuant to SS 1983 in the first instance." (emphasis added


Context: This is certainly so in the case of an order that broadly precludes evidence, one we would expect to be accompanied by findings -- not present here -- of government misconduct and prejudice to the defendants.

See Schwartz, 857 F.2d. at 659 (noting that the government had not violated any discovery orders or behaved duplicitously); see also United States v. Gonzales, 164 F.3d 1285, 1292 (10th Cir.1999) (holding that “[i]n selecting a proper [discovery] sanction, a court should typically consider (1) the reasons the government delayed producing requested materials, including whether the government acted in bad faith; (2) the extent of prejudice to defendant as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance”).

holding that "[i]n selecting a proper [discovery] sanction, a court should typically consider (1


Context: (Tr. at 185-86, 214-15.) However, the court finds, as it did at trial (Tr. at 170, 172), that Defendant's arguments go to the weight, rather than to the admissibility, of Beasley's testimony.

"Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct." Where the expert testimony "rest[s] upon 'good grounds, based on what is known, it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies."

See Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”); see also Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir.1998) (“Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert’s assessment of the situation is correct.” Where the expert testimony “rest[s] upon ‘good grounds, based on what is known, it should be tested by the adversary process-competing expert testimony and active cross-examination-rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.”).

"Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."


Context: E, CC.) The cited press releases in no manner whatsoever represent Astoria Financial as being directly involved in the lending activities, and all accurately represent the fact that the services are performed by its subsidiaries. These statements are no more probative of dominion or control than publicly consolidated financial statements, and are even less probative than statements affirmatively referring to a subsidiary as a "department" or "unit" of a parent, which has been found, in combination with the other factors present in this case, to be insufficient as a matter of law to justify piercing the corporate veil.

See, e.g., In re Ski Train Fire, 342 F.Supp.2d at 216 (dismissing claims against parent corporation under alter ego theory of liability, where only evidence of control consisted of sole ownership of subsidiary, overlapping directors, consolidated financial statements and reference to the subsidiary as a unit); see also Colcord v. Armstrong World Indus., Inc., No. 84-JM-912, 1985 WL 17481, at *3 (D.Colo. May 13, 1985) (finding corporate veil piercing not warranted as a matter of law, notwithstanding evidence that parent corporation owned 100 percent of subsidiary, had control over policy and large capital expenditures, used consolidated financial statements, and referred to subsidiaries as "units or divisions” in reports and brochures).

finding corporate veil piercing not warranted as a matter of law, notwithstanding evidence that parent corporation owned 100 percent of subsidiary, had control over policy and large capital expenditures, used consolidated financial statements, and referred to subsidiaries as "units or divisions" in reports and brochures


Context: . We also note, as an alternative basis for holding that Abbas is not eligible for withholding of removal, that he failed to demonstrate that he would be subject to persecution by the government or with the government's acquiescence.

petitioner not entitled to withholding of removal because he presented "insufficient evidence to demonstrate that the government would be unwilling or unable to control" the persons threatening harm

See Raza v. Gonzales, 484 F.3d 125, 129 (1st Cir.2007) ("When an asylum claim focuses on non-govemmental conduct, its fate depends on some showing either that the alleged persecutors are aligned with the government or that the government is unwilling or unable to control them.”); see also Khalili v. Holder, 557 F.3d 429, 436 (6th Cir.2009) (petitioner not entitled to withholding of removal because he presented "insufficient evidence to demonstrate that the government would be unwilling or unable to control” the persons threatening harm).

"When an asylum claim focuses on non-govemmental conduct, its fate depends on some showing either that the alleged persecutors are aligned with the government or that the government is unwilling or unable to control them."


Context: The district court properly granted summary judgment because Wilson failed to raise a genuine dispute of material fact as to whether defendant's use of less-lethal force to disarm Wilson and effectuate his arrest violated Wilson's Fourth Amendment rights.

explaining circumstances under which a bean bag gun, which is a " 'less-lethal' weapon," is permissible

See Lal v. California, 746 F.3d 1112, 1115, 1117 (9th Cir. 2014) (setting forth framework for analyzing an excessive force claim under the Fourth Amendment); see also Glenn, 673 F.3d at 871-72 (explaining circumstances under which a bean bag gun, which is a “ ‘less-lethal’ weapon,” is permissible).


Context: Concurrent jurisdiction between the state and federal courts exists where cocaine is involved. This Court has not yet addressed whether prosecuting a case in federal court when the state court has concurrent jurisdiction violates the defendant's due process rights. Several circuits have ruled that where a defendant violates both state and federal laws, either or both can prosecute the defendant.

holding their "due process analysis places the responsibility for the ultimate charging decision" on the state and federal prosecutors

See United States v. Jacobs, 4 F.3d 603, 605 (8th Cir.1993) (prosecuting a federal crime in federal court that could have been prosecuted in state court does not violate a defendant’s due process rights); see also United States v. Langston, 970 F.2d 692, 699 (10th Cir.1992) (holding their “due process analysis places the responsibility for the ultimate charging decision” on the state and federal prosecutors).

prosecuting a federal crime in federal court that could have been prosecuted in state court does not violate a defendant's due process rights


Context: [P20] The search warrant was issued for Utviek's hotel room. The layout of a hotel room may have made it particularly easy for a suspect to destroy evidence, given the probable location of the bathroom.

See Michigan v. Hall, 1999 Mich. App. LEXIS 651, 4 unpublished (holding exigent circumstances existed because bathroom in hotel room was next to hallway door where the narcotics could have been particularly flushed, and the suspected drug was crack-cocaine, which makes it not impossible that drugs were easily disposable); see also Wisconsin v. Henderson, 245 Wis.2d 345, 629 N.W.2d 613, 623 (2001) (holding exigent circumstances demonstrated because officers knew defendant stored drugs in room across from the bathroom, making destruction particularly easy); United States v. Johnson, 267 F.3d 498, 501 (6th Cir.2001) (holding exigent circumstances found because detailed affidavit alleged drug transactions were conducted near the bathroom for quick disposal of the evidence).


holding exigent circumstances found because detailed affidavit alleged drug transactions were conducted near the bathroom for quick disposal of the evidence


Context: As a preliminary matter, the Court notes that this dispute is not governed by Article 2 of the Pennsylvania Uniform Commercial Code, 13 Pa. Cons.Stat.

repairs performed on tractor, which included the replacement of engine parts, constituted a service and not a "sale" under the UCC, as the primary purpose of the contract was to repair the vehicle as opposed to the sale of any component part of the engine

Ann. §§ 2101 et seq. (West 1999) (“UCC”), since the agreement between CFU and ADT does not involve the sale of goods. Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 840 (Pa.Super.Ct.1999) (“ ‘[w]hen the transaction involves predominantly the rendition of services, the fact that tangible, movable goods may be involved in the performance of a contract does not bring the contract under the [Uniform Commercial C]ode.’ ” (quoting Whitmer v. Bell Tel. Co. of Pa., 361 Pa.Super. 282, 522 A.2d 584, 587 (1987) (other citation omitted))); Gee v. Chattahoochee Tractor Sales, Inc., 172 Ga.App. 351, 323 S.E.2d 176, 178 (1984) (repairs performed on tractor, which included the replacement of engine parts, constituted a service and not a “sale” under the UCC, as the primary purpose of the contract was to repair the vehicle as opposed to the sale of any component part of the engine); cf. Lobianco v. Prop. Prot., Inc., 292 Pa.Super. 346, 437 A.2d 417, 419 (1981) (holding that the installation of a burglar alarm system was a sale of goods within the meaning of the UCC, 13 Pa. Cons.Stat. § 2105(a)).

holding that the installation of a burglar alarm system was a sale of goods within the meaning of the UCC, 13 Pa. Cons.Stat. SS 2105(a


Context: To make a successful estoppel claim, Miller must at least show affirmative misconduct on the part of the government. This Miller has failed to do. Without more, Miller's allegation that the consular officer rescheduled an interview to occur after his eighteenth birthday is not sufficient to show affirmative misconduct.

failure of American Consular Officer in Italy to issue passport to alien's mother, which allegedly resulted in alien's birth in Italy, did not constitute affirmative misconduct

See INS v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982) (INS’s 18-month delay in processing alien’s application for permanent residency did not constitute affirmative misconduct); cf. Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961) (failure of American Consular Officer in Italy to issue passport to alien’s mother, which allegedly resulted in alien’s birth in Italy, did not constitute affirmative misconduct).

INS's 18-month delay in processing alien's application for permanent residency did not constitute affirmative misconduct


Context: Notwithstanding the foregoing, the trial court would not have abused its discretion to have decided that the relationship evidence was relevant for the noncharacter conformity purpose of rebutting appellant's various defensive theories including the defensive theory that the victim's death resulted from an accident due to improperly performed CPR efforts to save her life.

appellate court should uphold trial court's decision if it is correct on any theory of law applicable to the case and this principle holds true "even when the trial [court] gives the wrong reason for his decision" and "is especially true with regard to admission of evidence"

See Montgomery, 810 S.W.2d at 387-88 (extraneous offense evidence relevant to noncharacter conformity fact of consequence in the case when it is offered to rebut a defensive theory); see also Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990) (appellate court should uphold trial court’s decision if it is correct on any theory of law applicable to the case and this principle holds true “even when the trial [court] gives the wrong reason for his decision” and “is especially true with regard to admission of evidence”). It too is subject to reasonable debate whether the relationship evidence made these defensive theories less probable.


Context: This assumes, however, that our definition of "conduct" has not changed. With respect to the use of force, this seems to be a safe assumption.

holding that 18 U.S.C. SS 241 and 42 U.S.C. SS 3631 fall within separate exception to R.A.V.

Hayward, 6 F.3d at 1251 (42 U.S.C. § 3631); cf. J.H.H., 22 F.3d at 826 (holding that 18 U.S.C. § 241 and 42 U.S.C. § 3631 fall within separate exception to R.A.V.); but cf. United States v. Lee, 6 F.3d 1297, 1301-02 (8th Cir.1993) (en banc) (Gibson, J., concurring) (as applied to prosecution for cross burning, 18 U.S.C. § 241 does not fall within R.A.V. exception for laws directed at conduct), cert. denied, — U.S.-, 114 S. Ct. 1550, 128 L.Ed.2d 199 (1994).

as applied to prosecution for cross burning, 18 U.S.C. SS 241 does not fall within R.A.V. exception for laws directed at conduct


Context: While the inadvertent, negligent opening of legal mail does not violate the Constitution, the courts have not hesitated to find a violation where the mail has been read or where a policy of opening mail outside inmates' presence has been shown.

summary judgment not appropriate where fact issue as to whether inmate's legal mail was actually read and whether action was retaliatory

See Reneer v. Sewell, 975 F.2d 258 (6th Cir.1992) (summary judgment not appropriate where fact issue as to whether inmate’s legal mail was actually read and whether action was retaliatory); Proudfoot v. Williams, 803 F.Supp. 1048 (E.D.Pa.1992) (officer violated inmate’s right of access to the courts when he opened inmate’s legal mail and appeared to read it.)

prison's practice of opening legal mail outside presence of inmate where envelopes marked and readily identifiable as legal mail violated inmates' rights

See also, Burt v. Carlson, 752 F.Supp. 346 (C.D.Ca.1990) (prison’s practice of opening legal mail outside presence of inmate where envelopes marked and readily identifiable as legal mail violated inmates’ rights).


officer violated inmate's right of access to the courts when he opened inmate's legal mail and appeared to read it.


Context: Our Superior Court has dealt with various cases involving conspiracy and third degree murder.

defendant's conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim-- manifested malice constituted criminal conspiracy to commit third degree murder

See Commonwealth v. Johnson, 719 A.2d 778, 785-86 (Pa.Super.1998) (en banc) (defendant can be charged with conspiracy to commit third degree murder because death was natural and probable consequence of such attack, even if defendant did not personally participate in killing); Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1345 (1994) (if killing is natural and probable consequence of co-conspirator’s conduct, murder is not beyond scope of conspiracy); Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301, 304 (1992) (defendant’s participation in conspiracy supported third degree murder conviction as victim’s death was natural and probable consequence of co-conspirator’s conduct); see also Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176, 1178 (1982) (defendant’s conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim— manifested malice constituted criminal conspiracy to commit third degree murder); but see Commonwealth v. Clinger, 833 A.2d 792, 795-96 (Pa.Super.2003) (because it is impossible for one to intend to commit an unintentional act, it is impossible to commit crime of conspiracy to commit third degree murder).


because it is impossible for one to intend to commit an unintentional act, it is impossible to commit crime of conspiracy to commit third degree murder


if killing is natural and probable consequence of co-conspirator's conduct, murder is not beyond scope of conspiracy


defendant's participation in conspiracy supported third degree murder conviction as victim's death was natural and probable consequence of co-conspirator's conduct


See Commonwealth v. Johnson, 719 A.2d 778, 785-86 (Pa.Super.1998) (en banc) (defendant can be charged with conspiracy to commit third degree murder because death was natural and probable consequence of such attack, even if defendant did not personally participate in killing); Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1345 (1994) (if killing is natural and probable consequence of co-conspirator’s conduct, murder is not beyond scope of conspiracy); Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301, 304 (1992) (defendant’s participation in conspiracy supported third degree murder conviction as victim’s death was natural and probable consequence of co-conspirator’s conduct); see also Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176, 1178 (1982) (defendant’s conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim — manifested malice constituted criminal conspiracy to commit third degree murder); but see Commonwealth v. Clinger, 833 A.2d 792, 795-96 (Pa.Super.2003) (because it is impossible for one to intend to commit an unintentional act, it is impossible to commit crime of conspiracy to commit third degree murder).

defendant's conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim -- manifested malice constituted criminal conspiracy to commit third degree murder


Context: First, the Court finds nothing in the text of the statute or in case law that supports Defendant's interpretation of SS 3344 as requiring a plaintiff pleading economic injury to provide proof of preexisting commercial value and efforts to capitalize on such value in order to survive a motion to dismiss. The plain text of SS 3344 provides simply that "[a]ny person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner ... for purposes of advertising or selling ... without such person's consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof." Consistent with this reading, at least one court has suggested, after surveying California court decisions, that "courts generally presume that the fourth element of the applicable test has been established if there is sufficient evidence to prove the first three elements."

holding that former major-league baseball player "was injured because he was not compensated for the use of his likeness"

See, e.g., Solano v. Playgirl, Inc., 292 F.3d 1078, 1090 (2002) (holding that actor who was featured on the cover of an adult magazine without his consent could assert injury because “the measure of damages available for misappropriation claims includes the economic value of the use of an individual’s name and likeness,” and “[sjection 3344 specifically provides that a plaintiff may recover ‘any profits from the unauthorized use’ in addition to actual damages or the $750 minimum statutory damage amount and punitive damages” (internal citations omitted)); Newcombe v. Adolf Coors Co., 157 F.3d 686, 693 (9th Cir.1998) (holding that former major-league baseball player “was injured because he was not compensated for the use of his likeness”).

presuming that injury was satisfied for purposes of a SS 3344 claim seeking only minimum statutory damages, where plaintiff established use of non-celebrity models' identity, appropriation of their name or likeness to defendant's advantage, and lack of consent

Del Amo v. Baccash, No. CV 07-663-PSG, 2008 WL 4414514, at *6 (C.D.Cal. Sept. 16, 2008) (presuming that injury was satisfied for purposes of a § 3344 claim seeking only minimum statutory damages, where plaintiff established use of non-celebrity models’ identity, appropriation of their name or likeness to defendant’s advantage, and lack of consent). Indeed, in cases involving celebrity plaintiffs, the mere allegation that the plaintiff was not compensated has been deemed sufficient to satisfy the injury prong.


Context: The district court properly dismissed the RICO claim because the plain tiffs did not allege injury to their business or property. See 18 U.S.C. SS 1964(c) (allowing recovery to "[a]ny person injured in his business or property")- The plaintiffs' allegations that Ms. Santamaria suffered personal injury&emdash;i.e., physical symptoms and emotional distress&emdash;are legally insufficient.

"In our view, the ordinary meaning of the phrase 'injured in his business or property* excludes personal injuries, including pecuniary losses therefrom."

See Williams v. Mohawk Ind., 465 F.3d 1277, 1286-87 (11th Cir.2006) (“The terms ‘business or property’ are, of course, words of limitation which preclude [certain forms of] recovery.”) (internal quotation marks and citation omitted); Grogan v. Platt, 835 F.2d 844, 847 (11th Cir.1988) (“In our view, the ordinary meaning of the phrase ‘injured in his business or property* excludes personal injuries, including pecuniary losses therefrom.”).

explaining that the phrase "business or property" in the Clayton Act, 15 U.S.C. SS 15, "retains restrictive significance" and "would ... exclude personal injuries suffered"

See also Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (explaining that the phrase “business or property” in the Clayton Act, 15 U.S.C. § 15, “retains restrictive significance” and “would ... exclude personal injuries suffered”).


Context: . The Explanatory Notes constitute the World Customs Organization's official interpretation of the HTSUS. While not legally binding on the parties, the Notes provide a commentary on the scope of each heading and interpretive rule of the HTSUS and are useful in ascertaining the classification of merchandise under the HTSUS.

"While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting HTS[US] subheadings."

See Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed.Cir.1995) ("While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting HTS[US] subheadings.”); see also Rollerblade, Inc., 112 F.3d at 486 n. 3 (although the Explanatory Notes are not controlling legislative history, "they are nonetheless intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings”).

although the Explanatory Notes are not controlling legislative history, "they are nonetheless intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings"


Context: CarMax has also adduced evidence that Hernandez's job directly involved interstate commerce in that management assistants (1) hire employees who engage in interstate activity; (2) correspond with CarMax's corporate offices in Virginia; and (3) make out-of-state travel arrangements. Courts have concluded that similar employment relationships have a sufficient connection in interstate commerce that they are subject to the FAA.

concluding that an employment contract between CarMax and three former employees -- a painter, service mechanic, and automotive service technician -- involved interstate commerce

See, e.g., Herrera, 2014 WL 3398363, at *2-3 (concluding that an employment contract between CarMax and three former employees — a painter, service mechanic, and automotive service technician — involved interstate commerce); Montes v. San Joaquin Community Hospital, No. 1:13-cv-01722-AWI-JLT, 2014 WL 334912, *5 (E.D.Cal. Jan. 29, 2014) (concluding that an employment contract between plaintiff and a hospital was governed by the FAA because the hospital’s activities were involved interstate commerce); Abdullah v. Duke University Health System, Inc., No. 5:09-CV-8-FL, 2009 WL 1971622, *3 (E.D.N.C. July 8, 2009) (concluding that an employment contract between a hospital and the plaintiff “involve[d] interstate commerce because DUHS treats patients from all over the country and the world, it receives payments from individuals and entities other than North Carolina residents, and its employees travel outside of North Carolina”); Collie v. Wehr Dissolution Corp., 345 F.Supp.2d 555, 561 & n. 2, 3 (M.D.N.C.2004) (concluding that plaintiffs employment contract “involve[d] commerce” and thus was governed by the FAA because his employer, National Hearing Centers, Inc., was a “national corporation! ] involved in interstate commerce,” rejecting a contention that the “employment contract allegedly did not ‘actually involv[e] interstate commerce,” and observing that, although plaintiffs job duties had a limited relationship to interstate commerce, he had engaged interstate commerce when he, inter alia, “corresponded with National Hearing Centers, Inc.’s [out-of-state] office”); see also Allied-Bruce, 513 U.S. at 282, 115 S.Ct. 834 (concluding that a relationship involved interstate commerce where, inter alia, defendant was a national corporation that was engaged in business in multiple states).


concluding that an employment contract between plaintiff and a hospital was governed by the FAA because the hospital's activities were involved interstate commerce


concluding that an employment contract between a hospital and the plaintiff "involve[d] interstate commerce because DUHS treats patients from all over the country and the world, it receives payments from individuals and entities other than North Carolina residents, and its employees travel outside of North Carolina"


concluding that plaintiffs employment contract "involve[d] commerce" and thus was governed by the FAA because his employer, National Hearing Centers, Inc., was a "national corporation! ] involved in interstate commerce," rejecting a contention that the "employment contract allegedly did not 'actually involv[e] interstate commerce," and observing that, although plaintiffs job duties had a limited relationship to interstate commerce, he had engaged interstate commerce when he, inter alia, "corresponded with National Hearing Centers, Inc.'s [out-of-state] office"


Context: In cases that have not been heard on the merits, the determination of whether neglect is excusable takes into account the length and reasons for the delay, the impact on the case and judicial proceedings, and whether the movant requesting relief has acted in good faith. See Burnley v. Bosch Ams.

Corp., 75 Fed.Appx. 329, 333 (6th Cir.2003) (unpublished) (considering the reasons for the delay and the impact on the nonmoving party in determining that the moving party did not meet the test of excusable neglect); see also Jinks v. AlliedSignal, Inc., 250 F.3d 381, 386 (6th Cir.2001) (defining a more lenient standard for excusable neglect in cases of default than in cases when a party neglects to raise a certain argument).


Context: Courts have identified specific liberty interests of inmates upon which a state cannot impinge without due process.

See Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036-1037, 108 L.Ed.2d 178 (1990) (liberty interest in freedom from unwanted administration of medication); Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 2420-21, 96 L.Ed.2d 303 (1987) (liberty interest in parole where state statute makes parole mandatory under enumerated conditions); Hewitt v. Helms, 459 U.S. 460, 470-71, 103 S.Ct. 864, 870-71, 74 L.Ed.2d 675 (1983) (liberty interest in inmate’s right to remain free of administrative restrictive confinement when state statute and regulations create the right with mandatory language and substantive reasons for confinement); Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 2975-2976, 41 L.Ed.2d 935 (1974) (liberty interest in prisoner’s good-time credits); Walker v. Bates, 23 F.3d 652, 655 (1994) (imposition of restrictive confinement for disciplinary reasons implicates a liberty interest); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991) (good time); McKinnon v. Patterson, 568 F.2d 930, 938-39 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978) (disciplinary keeplock); see also Domegan, 859 F.2d at 1063-64 (liberty interest found in rules requiring regular meals, electricity and water for segregation inmates).


liberty interest in inmate's right to remain free of administrative restrictive confinement when state statute and regulations create the right with mandatory language and substantive reasons for confinement


imposition of restrictive confinement for disciplinary reasons implicates a liberty interest


Context: In the right-to-counsel context, the Supreme Court has countenanced clarifying questions only to ascertain whether a suspect's ambiguous or equivocal statement is actually an invocation of his Fifth Amendment right.

holding that "[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance"

See Davis, 512 U.S. at 461, 114 S.Ct. 2350; Miranda, 384 U.S. at 445, 86 S.Ct. 1602 (focusing only on the threshold question of whether the accused “indicate[d] in any manner that he d[id] not wish to be interrogated” when deciding whether police had honored the accused’s Fifth Amendment rights); cf. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (holding that “[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance”).

focusing only on the threshold question of whether the accused "indicate[d] in any manner that he d[id] not wish to be interrogated" when deciding whether police had honored the accused's Fifth Amendment rights


Context: "C. The Board's wrongful termination of Harbert's contracts constitutes a material breach of the contracts that excuses Harbert's future performance, and bars the Board's Counterclaim for completion costs.

'Once a party to a contract repudiates the agreement, the other party is excused from further performance.'

Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732 (Ala.2002) (where contractor prevented subcontractor from performing under subcontract, subcontractor was excused from performance); see also Shirley v. Lin, 548 So.2d 1329, 1334 (Ala.1989) (‘Once a party to a contract repudiates the agreement, the other party is excused from further performance.’); Health Care Mgmt. Corp. v. Rubenstein, 540 So.2d 77, 78 (Ala.Civ.App.1989) (‘Because of the defendant’s material breach of the contract, the plaintiffs future performance of the contract was excused and the plaintiff had an immediate cause of action for that breach.’); Ex parte A.B./Wildwood Ltd. P’ship, 793 So.2d 784, 790 (Ala.2000) (Lyons, J., concurring in the result) (‘Once a party has committed an anticipatory breach, the other party is excused from further performance.’).


'Because of the defendant's material breach of the contract, the plaintiffs future performance of the contract was excused and the plaintiff had an immediate cause of action for that breach.'


Context: Other courts have found such an error to be harmless where there was overwhelming evidence of the defendant's guilt.

Supreme Court of Illinois reversed the defendant's conviction, on a guilty plea of murder, where he was erroneously required to be handcuffed and shackled during his competency hearing stating "[hjowever strong the evidence against an accused may be, ... a fair trial, in all its stages, is a fundamental requirement in a criminal prosecution and when such a requirement is not met, it amounts to a denial of due process of law"

See State ex rel. Cockerham v. Butler, 515 So. 2d 1134 (La. Ct. App. 1987) (error harmless where three victims identified the defendant and the jury saw the defendant in handcuffs for only a short period of time); State v. Johnson, 489 So. 2d 301 (La. Ct. App. 1986) (error was harmless in view of the five eyewitnesses and the substantial proof presented against the defendant); People v. Jacla, 77 Cal. App. 3d 878, 144 Cal. Rptr. 23 (1978) (error was harmless beyond a reasonable doubt although the defendant was shackled throughout the trial); Zygadlo v. State, 341 So. 2d 1053 (Fla. Dist. Ct. App. 1977) (the court stated that although leg shackles were used on the accused during his trial, the record disclosed overwhelming evidence of his guilt); People v. Prado, 67 Cal. App. 3d 267, 136 Cal. Rptr. 521 (1977) (error harmless beyond a reasonable doubt based on the compelling evidence against the defendant); Chandler v. State, 92 Nev. 299, 550 P.2d 159 (1976) (error harmless where the defendant confessed to the murder not only to an FBI agent but also in a letter written to the victim’s wife); People v. Thompson, 23 Cal. App. 2d 339, 72 P.2d 927 (1937) (although the defendant was placed in leg irons throughout the trial evidence of guilt was overwhelming and thus reversal was not warranted); but see Boose, 66 Ill. 2d at 269 (Supreme Court of Illinois reversed the defendant’s conviction, on a guilty plea of murder, where he was erroneously required to be handcuffed and shackled during his competency hearing stating “[hjowever strong the evidence against an accused may be, ... a fair trial, in all its stages, is a fundamental requirement in a criminal prosecution and when such a requirement is not met, it amounts to a denial of due process of law”).


error was harmless in view of the five eyewitnesses and the substantial proof presented against the defendant


error was harmless beyond a reasonable doubt although the defendant was shackled throughout the trial


the court stated that although leg shackles were used on the accused during his trial, the record disclosed overwhelming evidence of his guilt


error harmless beyond a reasonable doubt based on the compelling evidence against the defendant


error harmless where the defendant confessed to the murder not only to an FBI agent but also in a letter written to the victim's wife


although the defendant was placed in leg irons throughout the trial evidence of guilt was overwhelming and thus reversal was not warranted


Context: Here, however, the amended complaint did not charge any new, different, or additional offense not alleged in the original complaint.

deletion of words "or drugs" from the charge of driving a vehicle "while under the influence of intoxicating liquor or drugs" held not to constitute a different offense than alleged in original complaint

People v. Hertz, 196 Colo. 259, 586 P.2d 5 (1978) (deletion of words “or drugs” from the charge of driving a vehicle “while under the influence of intoxicating liquor or drugs” held not to constitute a different offense than alleged in original complaint); see People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979) (complaint charging “driving under the influence of intoxicating liquors or drugs” defective in form only).

complaint charging "driving under the influence of intoxicating liquors or drugs" defective in form only


Context: The USPS urges that this argument is not waivable because it is based on due process and the civil service statutes; thus, if upheld, this argument would render the CBA and the Joint Statement unenforceable on public policy grounds. Our precedent does not support this position, however.

See Dist. 17, 179 F.3d at 140 (finding waiver of First Amendment claim not raised during arbitration); see also AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980, 981-82 (2d Cir.1998) (holding that party waived public policy challenge by failing to raise it during arbitration).


Context: Although defendant argues that the decision to file a claim amounts to a misrepresentation of fact, the completion of that form at most represented plaintiffs assertion that he was legally entitled to workers' compensation benefits. That assertion was not one of fact; rather, it was a conclusion of law based on a factual context.

refusing to apply equitable estoppel when statements by county tax official were, at most, "a conclusion from facts or a conclusion of law"

Coos County, 303 Or at 181; see also Welch, 314 Or at 717 (refusing to apply equitable estoppel when statements by county tax official were, at most, “a conclusion from facts or a conclusion of law”); Bennett, 192 Or at 541 (declining to apply estoppel when statements were “mere expressions of opinion”).

determination of claimant's status as "worker" is conclusion of law, not finding of fact

Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 619, 43 P3d 1106 (2002) (determination of claimant’s status as “worker” is conclusion of law, not finding of fact). That type of representation may not serve as the basis for equitable estoppel.


declining to apply estoppel when statements were "mere expressions of opinion"


Context: The court of appeals held that the confirmation statute "does not detract from the court's authority under AR.S. section 12-341.01(A) to award attorney's fees."

"[Wjhere two statutes deal with the same subject, the more specific statute controls."

See Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982) (“[Wjhere two statutes deal with the same subject, the more specific statute controls.”).

finding that a proceeding to confirm, modify, or vacate an arbitration award is not a "civil action" within the meaning of an attorney's fee statute

Canon III, 177 Ariz. at 443, 868 P.2d at 1026. Assuming, as the court of appeals held, that arbitrations under the Act are contested contract actions for purposes of AR.S. § 12-341.01(A), but see City of Waterbury v. Waterbury Police Union, 176 Conn. 401, 408, 407 A.2d 1013, 1016 (1979) (finding that a proceeding to confirm, modify, or vacate an arbitration award is not a “civil action” within the meaning of an attorney’s fee statute), we find it unnecessary to consider attorney’s fees based on AR.S. § 12-341.01 because we find that fees for the confirmation can be awarded under the Uniform Act itself.


Context: Indeed, courts in this Circuit have found it appropriate to apply the doctrine to bar claims brought by litigants who had previously acted in bad faith in concealing those claims during prior bankruptcy proceedings.

But see Ryan, 81 F.3d at 362-65 (rejecting application of judicial estoppel based on lack of evidence of plaintiffs bad faith in failing to disclose contingent claims in pri- or bankruptcy proceeding).

See, e.g., Krystal, 337 F.3d at 319-25 (applying judicial estoppel to bar debtor plaintiffs claim against defendant creditor for violation of the automatic stay imposed by the Bankruptcy Code because plaintiff knew about the claim during the prior bankruptcy proceeding and had a motive to conceal it in the face of an affirmative duty to disclose); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419-420 (3d Cir.1988) (invoking judicial es-toppel against debtor plaintiff to bar claims for breach of contract, breach of the duty of good faith, and fraudulent misrepresentation against defendant creditor because plaintiff failed to disclose those claims in bankruptcy proceedings despite citing defendant’s improper activities as the catalyst for its bankruptcy filing); In re Okan’s Foods, Inc., 217 B.R. 739, 754-56 (Bankr.E.D.Pa.1998) (barring plaintiffs civil rights claim against defendant because plaintiff represented the contingent claim to the bankruptcy court as having little value and later filed a claim for $750,000, an amount that would have satisfied all of plaintiffs outstanding debts).


invoking judicial es-toppel against debtor plaintiff to bar claims for breach of contract, breach of the duty of good faith, and fraudulent misrepresentation against defendant creditor because plaintiff failed to disclose those claims in bankruptcy proceedings despite citing defendant's improper activities as the catalyst for its bankruptcy filing


barring plaintiffs civil rights claim against defendant because plaintiff represented the contingent claim to the bankruptcy court as having little value and later filed a claim for $750,000, an amount that would have satisfied all of plaintiffs outstanding debts


Context: The definitional framework set forth by the Seventh Circuit in Carey has been adopted to varying degrees by the majority of circuits that have confronted this issue.

"Whether or not the Commission intended only a limited application of the [aberrant behavior] principle, we have no reason to doubt that a district court can give a first offender a prison sentence below the guideline range, as opposed to giving him probation, where the facts justify a finding that his crime truly was a single act of aberrant behavior."

See, e.g., United States v. Duerson, 25 F.3d 376, 380 (6th Cir.1994) (“Whether or not the Commission intended only a limited application of the [aberrant behavior] principle, we have no reason to doubt that a district court can give a first offender a prison sentence below the guideline range, as opposed to giving him probation, where the facts justify a finding that his crime truly was a single act of aberrant behavior.”); United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994) (“Because the Sentencing Commission did not consider single acts of aberrant behavior when formulating the guidelines, we have recognized that a spontaneous and seemingly thoughtless act may be a basis for departure.”); United States v. Williams, 974 F.2d 25, 26 (5th Cir.1992) (“Although the Guidelines do not define ‘aberrant behavior,’ we are most certain that it requires more than an act which is merely a first offense or ‘out of character’ for the defendant ... [as] those considerations are taken into account in calculating the defendant’s criminal history category.”), cert. denied, 507 U.S. 934, 113 S.Ct. 1320, 122 L.Ed.2d 706 (1993) (citation omitted).

expanding Carey to hold that "[t]he totality of circumstances must be viewed to see whether the offense fits within [the defendant's] normal conduct or if it is a complete shock and out of character"

But see United States v. Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994) (expanding Carey to hold that “[t]he totality of circumstances must be viewed to see whether the offense fits within [the defendant’s] normal conduct or if it is a complete shock and out of character”).


"Because the Sentencing Commission did not consider single acts of aberrant behavior when formulating the guidelines, we have recognized that a spontaneous and seemingly thoughtless act may be a basis for departure."


"Although the Guidelines do not define 'aberrant behavior,' we are most certain that it requires more than an act which is merely a first offense or 'out of character' for the defendant ... [as] those considerations are taken into account in calculating the defendant's criminal history category."


Context: While the Eighth Circuit Court of Appeals has not spoken to the issue, other Circuits have found exigent circumstances are a consideration when deciding whether reasonable modifications were in place. "Accommodations that might be expected when time is of no matter become unreasonable to expect when time is of the essence."

ADA did not require police to contact mentally ill suspect's family or mental health professionals during two-hour hostage standoff

Waller v. City of Danville, 556 F.3d 171, 175 (4th Cir.2009) (ADA did not require police to contact mentally ill suspect’s family or mental health professionals during two-hour hostage standoff); see also Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir.2008) (ADA did not require police to obtain an interpreter before arresting deaf persons involved in assault); Bircoll, 480 F.3d at 1086 (ADA did not require police to obtain an interpreter before administering roadside field sobriety tests).


ADA did not require police to obtain an interpreter before administering roadside field sobriety tests


Context: . Moreover, the allegations may state a claim under a substantive due process analysis.

holding that mere neglect for prisoner's safety does not amount to a substantive due process violation, implying that intent to do harm would be an abuse of government power and amount to a substantive due process violation

See Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (holding that mere neglect for prisoner’s safety does not amount to a substantive due process violation, implying that intent to do harm would be an abuse of government power and amount to a substantive due process violation).

See also McGill, 944 F.2d at 347-49 (discussing Davidson and the required mental state of prison officials in prisoner assault cases).


Context: . We have consistently required that any warrantless search, pursuant to either the community caretaker exception or the emergency exception, must be factually unrelated to an intent to search for evidence of illegal activity.

applying the emergency exception and noting that "[n]o evidence in the record suggest[ed] that the [officers'] entry into appellants' house ... was a pretext to search for contraband or illegal activity rather than to look for possible victims and to secure the property," and finding that the officers "act[ed] in good faith under the circumstances and according to their responsibilities as law enforcement officers"

See Reynolds, 9 Va.App. at 438, 388 S.E.2d at 664 (applying the emergency exception and noting that "[n]o evidence in the record suggest[ed] that the [officers’] entry into appellants’ house ... was a pretext to search for contraband or illegal activity rather than to look for possible victims and to secure the property,” and finding that the officers "act[ed] in good faith under the circumstances and according to their responsibilities as law enforcement officers”); see also Williams, 42 Va.App. at 731, 594 S.E.2d at 309 (noting that a search, pursuant to impoundment of a vehicle and corresponding community caretaking functions, "must not be a pretextual surrogate for an improper investigatory motive”); Waters, 20 Va.App. at 290, 456 S.E.2d at 530 (applying the community caretaker exception in the context of a police/pedestrian encounter and stating that "[t]he appropriateness of applying the community caretaker doctrine to a given factual scenario is determined by,” among other things, "whether ... the officer is not investigating criminal conduct under the pretext of exercising his community caretaker function”).

noting that a search, pursuant to impoundment of a vehicle and corresponding community caretaking functions, "must not be a pretextual surrogate for an improper investigatory motive"


applying the community caretaker exception in the context of a police/pedestrian encounter and stating that "[t]he appropriateness of applying the community caretaker doctrine to a given factual scenario is determined by," among other things, "whether ... the officer is not investigating criminal conduct under the pretext of exercising his community caretaker function"


Context: Judge Marrero of this Court has recently upheld the use of ballistics as reliable under Rule 702. The Supreme Court has likewise cited ballistics as a proper subject of expert testimony because it aids the jury in understanding the evidence.

stating that, "[i]n the years since Daubert, numerous cases have confirmed the reliability of ballistics identification," and collecting cases

See United States v. Scheffer, 523 U.S. 303, 312-313 [118 S.Ct. 1261, 140 L.Ed.2d 413] (1998) (“unlike expert witnesses who testify about factual matters outside the juror’s knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth”); see also United States v. Foster, 300 F.Supp.2d 375, 376 n. 1 (D.Md.2004) (stating that, “[i]n the years since Daubert, numerous cases have confirmed the reliability of ballistics identification,” and collecting cases); [United States v. O'Driscoll, No. 4:CR-10-277, 2003 WL 1402040, at *2 (M.D.Pa. Feb.10, 2003)] (“the field of ballistics is a proper subject for expert testimony and meets the requirements of Rule 702.”)....

"unlike expert witnesses who testify about factual matters outside the juror's knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth"


"the field of ballistics is a proper subject for expert testimony and meets the requirements of Rule 702."


Context: In many cases, including the three just cited, the Commonwealth alleges the victim is both the target of the communicated threat and the target of the threatened crime. The Appeals Court has concluded in several cases that a threat may be communicated to an intended target by way of a third-party intermediary, but only where it is shown that the defendant intended the threat to reach the target.

See Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 434 (2004) (although bystander rather than defendant relayed threat to target, evidence showed defendant intended it to be heard by target, or reasonably should have known it would be conveyed to her); Commonwealth v. Meier, 56 Mass. App. Ct. 278, 282 (2002) (defendant inferrably intended that intermediary communicate threat).

Contrast Commonwealth v. Furst, 56 Mass. App. Ct. 283, 284-285 (2002) (evidence of threatening to commit crime insufficient where defendant intended that third-party intermediary assist in murder plans, not that he communicate murder threat to intended victim); Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 524-528 (2002) (no intent to communicate threat where intermediary merely overheard statements not intended for alleged victim).


no intent to communicate threat where intermediary merely overheard statements not intended for alleged victim


Context: Therefore, Fuller controls the disposition of this case. Appellant lacks standing to complain about the seizure of the cocaine because Cox did not obtain the cocaine in violation of appellant's rights.

See Fuller, 829 S.W.2d at 201-02 (one who has not suffered invasion of a legal right does not have standing to bring suit); cf. House v. State, 947 S.W.2d 251, 253 (Tex.Cr.App.1997) (defendant has no standing to complain about prosecutor’s alleged ethical rule violation that does not violate or prejudice the defendant’s rights).

defendant has no standing to complain about prosecutor's alleged ethical rule violation that does not violate or prejudice the defendant's rights


Context: We emphasize, however, that the doctrine of good faith is to be applied in a manner that will "effectuate the reasonable contractual expectations of the parties."

where parties' contract provides for unilateral exercise of discretion, reasonable expectations are met when that discretion is exercised after notice

See Best v. U.S. National Bank, supra, 303 Or at 563 (stating that as the purpose of the good faith doctrine); see also Tolbert v. First National Bank, supra, 312 Or at 493-94 (where parties’ contract provides for unilateral exercise of discretion, reasonable expectations are met when that discretion is exercised after notice); Restatement (Second) of Property § 15.2(2) (1977 & 1993 Supp) (“[a] restraint on alienation without the consent of the landlord of the tenant’s interest in the leased property is valid, but the landlord’s consent * * * cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent” (emphasis added)).


Context: Indication that the treaty drafters likely intended to invoke the broader of these meanings may be found in the accompanying language of the "bad men" clause, which talks not in terms of "reim-bursLingj" the injured person for amounts paid or costs incurred, but rather for the "loss sustained." The latter phrase, which in no way refers to out-of-pocket expenditures, seemingly clashes with the notion that the operative verb -- "reimburse"--ought to be construed in the crabbed fashion defendant argues.

courts should consider the treaty's language in the "context in which the written words are used"

See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (courts should consider the treaty’s language in the “context in which the written words are used”); see also United States v. Cienfuegos, 462 F.3d 1160, 1163-64 (9th Cir.2006) (construing the word “reimburse,” as used in 18 U.S.C. § 3663A, broadly to include future income lost by a decedent based on the surrounding statutory language).

construing the word "reimburse," as used in 18 U.S.C. SS 3663A, broadly to include future income lost by a decedent based on the surrounding statutory language


Context: Extending the time period for avoiding or altering a judgment is inherently antagonistic to the systemic need for finality of judgments, which we have observed with particularity in the probate context.

"The fact that a meritorious claim might thereby be rendered no-nassertible is an unfortunate, occasional by-product of the operation of limitations."

See, e.g., Little, 943 S.W.2d at 417 (“The need for finality of probate proceedings is well-recognized by this and other courts.”); see also Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977) (“The fact that a meritorious claim might thereby be rendered no-nassertible is an unfortunate, occasional by-product of the operation of limitations.”). Bills of review are intrinsically incongruous with finality, and thus, are not lightly granted.

"The need for finality of probate proceedings is well-recognized by this and other courts."


Context: (R. Doc. 580 at 28). Plaintiffs', however, attempt to reconcile these conflicting positions by arguing that although individual plaintiffs will ultimately seek monetary relief, such relief is not being sought on a class-wide basis and thus is incidental to the declaratory judgment and injunctive relief sought. (R. Doc. 580 at 30). However, given that the declaratory judgment and in-junctive relief sought will not provide relief to any member of the class -- whose claims include "physical pain and suffering, mental anguish, emotional distress, disability, economic loss, and loss of life's pleasures" (R. Doc. 94) -- Plaintiffs' claims can only be redressed through individual damage awards, which are not available in a Rule 23(b)(2) class.

"[23(b)(2) ] does not authorize class certification when each class member would be entitled to an individualized award of monetary damages."

See Dukes, 131 S.Ct. at 2557 (“[23(b)(2) ] does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”); see also Allison, 151 F.3d at 415 (“[Ijncidental damage should not require additional hearings to resolve the disparate merits of each individual’s case.”).

"[Ijncidental damage should not require additional hearings to resolve the disparate merits of each individual's case."


Context: Accordingly, whatever might be true in other circumstances as to the appealability upon its entry of an order making a priority determination, the Trust could not have appealed as of right from the August 26, 1999 order until after the entry of the order in Adversary Nos. 99-0231 and 99-0524 concluding the adversary proceedings on January 31, 2000, as the August 26, 1999 order did not conclude Adversary No. 99-0231.

"With limited exceptions, we will not entertain an appeal unless the district court's order ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment."

See In re Professional Ins. Mgmt., 285 F.3d 268, 281 (3d Cir.2002) (“[A] bankruptcy court order ending a separate adversary proceeding is appealable as a final order even though that order does not conclude the entire bankruptcy case.”) (internal quotation marks omitted); In re Durability, Inc., 893 F.2d 264, 266 (10th Cir.1990) (per curiam) (holding that a bankruptcy court’s partial summary judgment order that established the priority of one creditor relative to another but did not completely resolve the particular adversary proceeding was interlocutory in nature, and therefore not directly appeal-able); In re Compton Corp., 889 F.2d 1104, 1106 (Em.App.1989) (“[U]ntil all of the significant elements of a claim are determined in the adversary proceeding between the trustee and the [claimant], the final disposition of the priority issue alone is insufficient for a final order to exist.”); cf. Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir.1996) (“With limited exceptions, we will not entertain an appeal unless the district court’s order ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.”) (internal quotation marks omitted).

"[A] bankruptcy court order ending a separate adversary proceeding is appealable as a final order even though that order does not conclude the entire bankruptcy case."


holding that a bankruptcy court's partial summary judgment order that established the priority of one creditor relative to another but did not completely resolve the particular adversary proceeding was interlocutory in nature, and therefore not directly appeal-able


"[U]ntil all of the significant elements of a claim are determined in the adversary proceeding between the trustee and the [claimant], the final disposition of the priority issue alone is insufficient for a final order to exist."


Context: In light of the double jeopardy violation, the additional $100 special assessment subjects Robertson to multiple punishments for the same offense. We conclude that this additional punishment prejudiced Robertson.

"[T]he $100 statutory special assessment that [the defendant] received for his second conviction is a collateral consequence of his conviction that constitutes actual prejudice."

See United States v. Jones, 403 F.3d 604, 607 (8th Cir.2005) (“[T]he $100 statutory special assessment that [the defendant] received for his second conviction is a collateral consequence of his conviction that constitutes actual prejudice.”); see also Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (“The separate conviction, apart from [a purportedly] concurrent sentence, has potential adverse collateral consequences that may not be ignored.”).

"The separate conviction, apart from [a purportedly] concurrent sentence, has potential adverse collateral consequences that may not be ignored."


Context: More importantly, Farmer simply did not want to sue Dinee-ga, and Dineega was certain that it wanted no part of the suit and informed the court it had absolutely no interest in the litigation. The state may not assert that Dinee-ga's interests are threatened when Dineega has expressly disavowed any interest in the litigation.

the government was not a necessary or indispensable party in a contract dispute where the government's assessment of its own interests indicated it considered the action between the parties a "private dispute" and "meticulously observed a neutral and disinterested posture"

See, e.g., Padgett v. Theus, 484 P.2d 697, 703-05 (Alaska 1971) (interpret ing former Civil Rule 19, the court held that a party is estopped from raising an indispensable party issue where the absent party, “with full knowledge of the scope and potential impact of [the] litigation upon his interests, chose not to intervene as a party”); see also Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1044 (9th Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983) (the government was not a necessary or indispensable party in a contract dispute where the government’s assessment of its own interests indicated it considered the action between the parties a “private dispute” and “meticulously observed a neutral and disinterested posture”).

interpret ing former Civil Rule 19, the court held that a party is estopped from raising an indispensable party issue where the absent party, "with full knowledge of the scope and potential impact of [the] litigation upon his interests, chose not to intervene as a party"


Context: However, contrary to the District's contention, such failure to obtain proper service, although relevant to whether there is personal jurisdiction over a particular party, does not require the dismissal of the action itself for lack of subject matter jurisdiction.

Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96 (1958); see also Samsonite Corp. v. Industrial Commission, 665 P.2d 1037 (Colo.App.1983) (failure to effect service on defendant did not divest appellate court of jurisdiction which attached upon filing of petition for review); cf. MacMillan v. Bruce, 900 P.2d 131 (Colo.App.1995) (court notes that plaintiff could have commenced suit by timely filing complaint without service on defendant).


Context: It is insufficient for the administrative law judge to consider "most" of the Avery factors. All six must be given consideration.

holding that a determination of residual functional capacity "must 'includ[e] a discussion of why reported daily activity restrictions are or are not reasonably consistent with the medical evidence' " [quoting Avery, 797 F.2d at 29]

See Aguiar v. Apfel, 99 F.Supp.2d 130, 137 (D.Mass.2000) (Tauro, J.) (holding that consideration of “most” of Avery factors is insufficient where administrative law judge failed to consider claimant’s daily living activities); see also Rohrberg v. Apfel, 26 F.Supp.2d 303, 308 (D.Mass.1998) (Freedman, J.) (holding that a determination of residual functional capacity “must ‘includ[e] a discussion of why reported daily activity restrictions are or are not reasonably consistent with the medical evidence’ ” [quoting Avery, 797 F.2d at 29]). The Rohrberg court discussed the importance of a thorough examination of a claimant’s description of her daily living activities:

holding that consideration of "most" of Avery factors is insufficient where administrative law judge failed to consider claimant's daily living activities


Context: Nonetheless, if the complaint alleges essentially one cause of action, pendent venue may extend to Counts III and IV. In determining whether a case can be described as a single cause of action, courts examine whether the plaintiff has asserted essentially one wrong, whether the grounds for relief are the same as to the parties and proof, and whether there will be "great commonality as to witnesses and evidence."

Cf. Archuleta, 725 F.Supp. at 606 (refusing to extend pendent venue because, although plaintiffs discrimination claims were based on the conduct of a single supervisor, each claim alleged discriminatory conduct against a different protected class, the evidence to support each discrimination claim would of necessity be different, and the suit included nondiscrimination claims based on administrative law issues).

applying pendent venue in a ease involving both the Anti-Dumping Act of 1916 and federal antitrust law because it would be "senseless ... to bifurcate these two exceedingly complex antitrust cases by dismissing or transferring the antidumping counts while retaining the antitrust counts since the facts underlying both sets of issues are essentially the same"

Beattie, 756 F.2d at 101 (describing the litigation “as a single cause of action with separate grounds for relief’ because the plaintiffs seek damages for “ ‘an essentially single wrong,’ i.e., wrongful death” (footnote omitted)); see, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 402 F.Supp. 262, 328 n. 38 (E.D.Pa.1975) (applying pendent venue in a ease involving both the Anti-Dumping Act of 1916 and federal antitrust law because it would be “senseless ... to bifurcate these two exceedingly complex antitrust cases by dismissing or transferring the antidumping counts while retaining the antitrust counts since the facts underlying both sets of issues are essentially the same”); Laffey v. Northwest Airlines, 321 F.Supp. 1041, 1042 (D.D.C.1971) (extending pendent venue to the plaintiffs Civil Rights Act claim because venue was proper under the Equal Pay Act claim and the two separate causes of action arose out of common allegations of employment discrimination against female flight attendants).


extending pendent venue to the plaintiffs Civil Rights Act claim because venue was proper under the Equal Pay Act claim and the two separate causes of action arose out of common allegations of employment discrimination against female flight attendants


Context: Notably, in all of but one of the cases cited by the majority for the position that a challenge propter affectum provides no ground for plea in abatement, the challenge was filed post indictment.

See Black v. State, 264 Ga. 550 (2) (448 SE2d 357) (1994) (where the defendant filed a motion for new trial alleging a defective indictment, disqualification of a grand juror pursuant to OCGA § 15-12-70 was not viable); Fisher v. State, 93 Ga. 309 (1) (20 SE 329) (1893) (no challenge propter affectum where the defendant “had warning to challenge the juror before the bill was found” but failed to do so); Lascelles, 90 Ga. at 372-375 (discussed supra); Simpson v. State, 100 Ga. App. 726 (1) (112 SE2d 314) (1959) (affirming dismissal of plea in abatement because the defendant failed to make a timely challenge and filed his plea in abatement “some time after the indictment had been returned”); Garnett, 10 Ga. App. at 111 (affirming dismissal of plea in abatement where it was filed before “pleading to the merits”); see also Sallie v. State, 276 Ga. 506 (14) (578 SE2d 444) (2003) (finding any error by the grand jury to be harmless because a trial jury had found the defendant guilty beyond a reasonable doubt).

where the defendant filed a motion for new trial alleging a defective indictment, disqualification of a grand juror pursuant to OCGA SS 15-12-70 was not viable


no challenge propter affectum where the defendant "had warning to challenge the juror before the bill was found" but failed to do so


affirming dismissal of plea in abatement because the defendant failed to make a timely challenge and filed his plea in abatement "some time after the indictment had been returned"


affirming dismissal of plea in abatement where it was filed before "pleading to the merits"


Context: P10 Historically, we have attempted to maintain congruence in our retroactivity analysis with the standards articulated by the United States Supreme Court.

See In re Pers. Restraint of Sauve, 103 Wn.2d 322, 328, 692 P.2d 818 (1985) (holding that the balancing test established by the United States Supreme Court was still appropriate to determine the retroactivity or nonretroactivity of a new decision); In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 324-26, 823 P.2d 492 (1992) (stating that “we have attempted from the outset to stay in step with the federal retroactivity analysis,” and discussing a recent change in the federal retroactivity analysis); In re Pers. Restraint of Benn, 134 Wn.2d 868, 940, 952 P.2d 116 (1998) (citing the federal analysis discussed by this court in St. Pierre as the current retroactivity analysis in Washington State).

Cf. State v. Hanson, 151 Wn.2d 783, 789, 91 P.3d 888 (2004) (stating that St. Pierre sets out the current prospective application analysis in Washington, which is derived from the two United States Supreme Court retroactivity analysis cases cited in St. Pierre).


stating that "we have attempted from the outset to stay in step with the federal retroactivity analysis," and discussing a recent change in the federal retroactivity analysis


Context: Rather, it corrected his sentenced based upon the Supreme Court's interpretation of the law as it existed at the time of his offense, and so the Ex Post Facto Clause is not implicated. Likewise, because the court was merely correcting his sentence to restore the term of supervised release it had initially imposed under the applicable version of 21 U.S.C. SS 841(b), he had no right to be present when the court did so.

See United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (defendant has no right to be present for nondiscretionary correction of sentence); see also United States v. De Los Santos Himitola, 924 F.2d 380, 382-83 (1st Cir.1991) (defendant who committed drug crime before effective date of sentencing reforms had no right to be present when district court restored term of supervised release originally imposed but changed on remand to special parole).


Context: We examine only whether the remand order is color-ably characterized as based on lack of unanimity, not whether lack of unanimity was colorably established. In so doing, we follow our own precedent in Moody as well as that of other circuits.

concluding that colorability exists when "the district judge's ground for dismissal was indeed absence of subject-matter jurisdiction, no matter how great a mistake the judge had made in thinking so," and further observing that "it usually is easier to determine what the district court's ... ground for dismissing a case was than whether it was not merely an erroneous ground but a frivolous one"

See Townsquare Media, Inc. v. Brill, 652 F.3d 767, 775-76 (7th Cir.2011) (concluding that colorability exists when “the district judge’s ground for dismissal was indeed absence of subject-matter jurisdiction, no matter how great a mistake the judge had made in thinking so,” and further observing that “it usually is easier to determine what the district court’s ... ground for dismissing a case was than whether it was not merely an erroneous ground but a frivolous one”); Price v. J & H Marsh & McLennan, Inc., 493 F.3d 55, 61 (2d Cir.2007) (“Regardless of whether the subject matter jurisdiction determination was correct on the merits ... the District Court’s characterization of its remand order as being based on a lack of subject matter jurisdiction was certainly ‘colorable.’ ”); cf. Kircher v. Putnam Funds Trust, 547 U.S. 633, 641, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (noting that “even if it is permissible to look beyond the court’s own label” in order to identify the basis of a remand order, the adequacy of that basis is not reviewable).

noting that "even if it is permissible to look beyond the court's own label" in order to identify the basis of a remand order, the adequacy of that basis is not reviewable


"Regardless of whether the subject matter jurisdiction determination was correct on the merits ... the District Court's characterization of its remand order as being based on a lack of subject matter jurisdiction was certainly 'colorable.' "


Context: P 9 We conclude, then, that Henry's factual allegations in her complaint supporting her claim that Mar had been negligent are evidentiary admissions, albeit that they are disputed and are not, in and of themselves, conclusive evidence of Mar's fault. "The time has passed when allegations in a pleading will be treated as mere fictions, rather than 'as statements of the real issues in the cause and hence as admissions of the parties.'"

reversible error not to admit into evidence party's previous complaint against third party whom plaintiff alleged had been responsible for its injuries

Cf. Dugan v. EMS Helicopters, Inc., 915 F.2d 1428 (10th Cir.1990) (inconsistent allegations in prior pleadings admissible); Redwing Carriers, Inc. v. Stone, 293 Ala. 726, 310 So.2d 206 (1975) (reversible error not to admit into evidence party’s previous complaint against third party whom plaintiff alleged had been responsible for its injuries); State Farm Mut. Auto. Ins. Co. v. Shuman, 175 Ind.App. 186, 370 N.E.2d 941 (1977); McWilliams v. Szymanski 101 Or.App. 617, 792 P.2d 457 (1990); but see Lytle v. Stearns, 250 Kan. 783, 830 P.2d 1197 (1992) (acknowledging split of authority in comparative negligence cases on admissibility of pleadings alleging negligence against defendants who have been dismissed and finding error in admitting statements in prior pleading).