Context: . Because the Rooker-Feldman doctrine is "one of congressional intent ... where Congress has specifically granted jurisdiction to the federal courts, the doctrine does not apply."

concluding Rooker-Feld-man does not apply to disputes arising under Hague Convention because "Congress has expressly granted the federal courts jurisdiction to vindicate rights arising under the Convention."

Mozes v. Mozes, 239 F.3d 1067, 1085 n. 55 (9th Cir.2001) (concluding Rooker-Feld-man does not apply to disputes arising under Hague Convention because "Congress has expressly granted the federal courts jurisdiction to vindicate rights arising under the Convention.”); see also In re Gruntz, 202 F.3d at 1078-79 (Rooker-Feldman does not preclude collateral challenges to state court modification of automatic stay in bankruptcy).


Context: P 11 The most common examples are cases in which a trial court's findings are deemed insufficient to comply with Rule 52(a).

"[W]e feel that if an intelligent disposition is to be made and justice done the judgment must be reversed and the case sent back to the trial court for more specific findings, these to be based upon the evidence already adduced -- or the taking of such additional testimony as may be deemed advisable by the trial court____"

See, e.g., Fritts v. Ericson, 87 Ariz. 227, 234, 349 P.2d 1107, 1111 (1960) (“[W]e feel that if an intelligent disposition is to be made and justice done the judgment must be reversed and the case sent back to the trial court for more specific findings, these to be based upon the evidence already adduced — or the taking of such additional testimony as may be deemed advisable by the trial court____”); Miller v. McAlister, 151 Ariz. 435, 437, 728 P.2d 654, 656 (App.1986) (reversing because the trial court failed to comply with Rule 52(a) and remanding with directions stating that the trial court “is free to formulate its findings and conclusions on the basis of the existing record and transcripts, or it may conduct further hearings or direct counsel to submit proposed findings and conclusions with accompanying legal memoranda and oral argument, if necessary”); see also Miller v. Bd. of Supervisors of Pinal County, 175 Ariz. 296, 300, 855 P.2d 1357, 1361 (1993) (“Where possible, when a trial court in a non-jury ease fails to make or makes insufficient findings of fact and conclusions of law, a reviewing court should remand the case to the trial court for further findings.”).

"Where possible, when a trial court in a non-jury ease fails to make or makes insufficient findings of fact and conclusions of law, a reviewing court should remand the case to the trial court for further findings."


reversing because the trial court failed to comply with Rule 52(a


Context: The issue raised by this case is appropriate for certification. First, since Suklji-an, the New York Court of Appeals has not had an opportunity to address a case like the hypothetical posed by Galindo. Indeed, it appears to remain an open question in New York whether strict products liability can attach to a regular seller of used goods at all, let alone companies like the one envisioned by the Galindo court.

See Stiles, 81 N.Y.2d at 951, 597 N.Y.S.2d at 667, 613 N.E.2d 572 (leaving open question whether used goods dealers may be held strictly liable); but see Gonzalez v. Rutherford Corp., 881 F.Supp. 829, 836-41 (E.D.N.Y.1995) (Raggi, /.) (discussing cases extending strict liability to used goods dealers, including two Appellate Division cases).


Context: In his report and recommendation, Judge Jarvey thoroughly discussed Davis, Bell and O'Neal. Although he acknowledged Davis represents contrary authority, Judge Jarvey noted a majority of courts "hold a conviction under a statute forbidding possession of a firearm by a person convicted of a felony does not violate the [e]x [p]ost [f]acto [c]lause even when the felony for which the defendant was convicted took place before the statute was enacted."

See also United States v. Etheridge, 932 F.2d 318, 321-23 (4th Cir.1991) (assuming no violation of the ex post facto clause regarding the defendant’s conviction under 18 U.S.C. § 922(g)(1)) (concluding no violation of the ex post facto clause when the district court enhanced the defendant’s sentence under 18 U.S.C. § 924(e)(1) because the temporal focus is the date of the present offense, not the date of the prior felony convictions); United States v. Jordan, 870 F.2d 1310, 1314-15 (7th Cir.1989) (discussing 18 U.S.C. § 1202(a)(1), the predecessor to 18 U.S.C. § 922(g), and the enhancement provision added to 18 U.S.C. § 1202(a)(1), the predecessor to 18 U.S.C. § 924) (stating the defendant is being punished because he violated 18 U.S.C. § 1202(a)(1)) (holding n@o violation of ex post facto clause because enhancement provision “increases the punishment for [being a felon in possession of a firearm that traveled in or affected interstate commerce]” and “[i]t does not affect the punishment previously meted out to [the defendant] for the ... [crimes] he committed prior to the effective date of the [statute]”); United States v. Patterson, 820 F.2d 1524, 1527 (9th Cir.1987) (holding no ex post facto violation because enhancement provision was already on the books when the defendant committed the 1985 firearm offense).

holding the use of a 1951 felony conviction as a predicate for a violation of 18 U.S.C. SS 922(g

See United States v. Brady, 26 F.3d 282, 291 (2d Cir.1994) (holding the use of a 1951 felony conviction as a predicate for a violation of 18 U.S.C. § 922(g)(1) did not violate the ex post facto clause because the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted); United States v. Huss, 7 F.3d 1444, 1447 (9th Cir.1993), overruled on other grounds by United States v. Sanchez-Rodriguez, 161 F.3d 556, 563 (9th Cir.1998), (concluding no ex post facto problem because Oregon weapons restriction does not impose punishment for prior crimes, but rather furthers the substantial and legitimate safety interest in preventing the misuse of firearms) (declining to follow Davis or Roehl v. United States, 977 F.2d 375 (7th Cir.1992) and finding persuasive Cases v. United States, 131 F.2d 916 (1st Cir.1942)); Roehl, 977 F.2d at 377-78 (stating 1966 conviction and 1974 conviction could be used as predicates for conviction under 18 U.S.C. § 922(g) and for enhancement under 18 U.S.C. 924(e) because each could be a predicate for criminal liability under Wis. Stat. 941.29, which makes it illegal for a convicted felon to possess a gun) (rejecting the defendant’s ex post facto argument because, if prosecuted for violating Wis. Stat. 941.29, his earlier felony convictions could have been predicates without violating the ex post facto clause); United States v. Matassini, 565 F.2d 1297, 1307 (5th Cir.1978) (interpreting 18 U.S.C. § 1202(a)(1), the predecessor to 18 U.S.C. § 922(g)) (determining Congress intended statutes prohibiting felons from possessing firearms to reach “persons convicted of felonies prior to [the effective date of the statute]”); Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942) (finding, if a statute “is a bona fide regulation of conduct which the legislature has power to regulate, it is not bad as an ex post facto law even though the right to engage in the conduct is made to depend on past behavi-our, even behaviour before the passage of the regulatory act”).


finding, if a statute "is a bona fide regulation of conduct which the legislature has power to regulate, it is not bad as an ex post facto law even though the right to engage in the conduct is made to depend on past behavi-our, even behaviour before the passage of the regulatory act"


Context: Here the trial court properly awarded prejudgment interest from the date of the original verdict.

"interest should be calculated from the date the liability is established by the rendition of the verdict"

See McCormack v. Hankscraft Co., 281 Minn. 571, 161 N.W.2d 523 (1968) (when jury verdict is erroneously overturned by grant of post-trial motion, but later reinstated on appeal, prejudgment interest is awarded from date of original verdict); see also Bastianson v. Forschen, 294 Minn. 406, 408, 202 N.W.2d 667, 668 (1972) (“interest should be calculated from the date the liability is established by the rendition of the verdict”).


Context: Although appellants at all times treated the May 24 "Memorandum and Order" as an appealable order, the "separate document" rule is to be strictly applied as concerns the commencement of the appeal period.

emphasizing that the "separate document" requirement "should always be interpreted 'to prevent loss of the right to appeal, not to facilitate loss' "

See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam) (applying rule 58 mechanically notwithstanding previous aborted appeal by same appellant within appeal period); Fiore, 960 F.2d at 235 (discussing technicality of rule 58); Gregson & Assocs. Architects v. Government of the V.I., 675 F.2d 589, 592-93 (3d Cir.1982) {Indrelunas applied despite both parties’ treatment of memorandum opinion as appealable order); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-90 (4th Cir.1978) (“nor are we free to penalize plaintiffs ... by binding them to their erroneous assertion that judgments” had been entered); see also Fiore, 960 F.2d at 237 (emphasizing that the “separate document” requirement “should always be interpreted ‘to prevent loss of the right to appeal, not to facilitate loss’ ”) (quoting Bankers Trust, 435 U.S. at 386, 98 S.Ct. at 1121); Willhauck v. Halpin, 919 F.2d 788, 792 (1st Cir.1990) (same); 9 Moore’s Federal Practice 1158.02.1[2], at 58-20 to 21. Nevertheless, a notice of appeal deemed premature due to noncompliance with the “separate document” rule does not deprive the appellate court of subject matter jurisdiction, Bankers Trust, 435 U.S. at 384, 385, 98 S.Ct. at 1120; see also Smith, 936 F.2d at 1394 (applying Bankers Trust), and the appeal may proceed in the normal course where the court of appeals determines that the “separate document” requirement was waived by the parties.

"nor are we free to penalize plaintiffs ... by binding them to their erroneous assertion that judgments" had been entered


Context: That evidence included the plaintiffs own testimony, which the trial court credited, that, prior to the defendant's construction of the pillars, no one ever had objected to her use of the right-of-way, and she had never sought permission from anyone to use it. It is well established that evidence that the party claiming a prescriptive use never asked for or was given permission to use the property will support a finding that the use was adverse.

plaintiffs testimony that "she never asked for permission to use" property at issue supported trial court's determination that use was adverse

See, e.g., Gallow-Mure v. Tomchik, 78 Conn. App. 699, 708, 829 A.2d 8 (2003) (“[t]he essence of the determination of whether the claim to the property was made ‘as of right’ is . . . whether the individual claiming the prescriptive easement acknowledged the ownership rights of the landowner in any way”); id., 709 (plaintiffs testimony that she did not need permission to use right-of-way supported trial court’s determination that she “used [it] as if it were her own property, which is the primary indication that the use was not permissive”); see also McManus v. Roggi, 78 Conn. App. 288, 296, 826 A.2d 1275 (2003) (plaintiffs testimony that “she never asked for permission to use” property at issue supported trial court’s determination that use was adverse); Lisiewski v. Seidel, supra, 72 Conn. App. 874 (testimony that “permission [to use driveway] was never granted” supported determination that use was adverse); DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986) (testimony by plaintiffs husband that he used defendant’s driveway “whenever he wanted to and that he never sought permission to use [it]” supported determination of adverse possession).

"[t]he essence of the determination of whether the claim to the property was made 'as of right' is . . . whether the individual claiming the prescriptive easement acknowledged the ownership rights of the landowner in any way"


testimony that "permission [to use driveway] was never granted" supported determination that use was adverse


testimony by plaintiffs husband that he used defendant's driveway "whenever he wanted to and that he never sought permission to use [it]" supported determination of adverse possession


Context: This court previously has stated that the failure to provide notice to all interested parties in a declaratory judgment action deprives the trial court of subject matter jurisdiction of the action. In recent years, however, the court has been willing to remand such cases to allow the defect to be cured, signaling a shift in the court's understanding of the nature of the defect.

See Serrani v. Board of Ethics, 225 Conn. 305, 309 n.5, 622 A.2d 1009 (1993) (“[u]nlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction,” failure to comply with notice requirement can be cured); Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 230, 575 A.2d 693 (1990) (“[t]he conclusion we have reached that the court lacked subject matter jurisdiction to render its declaratory judgment does not require that the action be dismissed upon remand, because the jurisdictional defect can be cured by further proceedings in the trial court”); cf. Gianetti v. Norwalk Hospital, 211 Conn. 51, 56, 557 A.2d 1249 (1989) (because no notice of declaratory judgment action provided to interested persons, reframing questions on appeal to affect only parties).

"[u]nlike other jurisdictional defects implicating the trial court's subject matter jurisdiction," failure to comply with notice requirement can be cured


"[t]he conclusion we have reached that the court lacked subject matter jurisdiction to render its declaratory judgment does not require that the action be dismissed upon remand, because the jurisdictional defect can be cured by further proceedings in the trial court"


Context: No. 92-318, tit. We believe that this evidence is sufficient to support the limited action taken by Congress in its passage of the Equal Pay Act, particularly given the well-documented history of gender discrimination in this Nation, a history that is embodied in the Supreme Court's own jurisprudence.

arguing that it would be difficult "to understand how a statute enacted specifically to combat [gender] discrimination could fall outside the authority granted to Congress by SS 5"

See Virginia, 518 U.S. at 531, 116 S.Ct. 2264 (stating that “skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history”); J.E.B., 511 U.S. at 136, 114 S.Ct. 1419 (stating that “ ‘our Nation has had a long and unfortunate history of sex discrimination.’ ”) (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973)); see also Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.1997) (arguing that it would be difficult “to understand how a statute enacted specifically to combat [gender] discrimination could fall outside the authority granted to Congress by § 5”).

stating that "skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history"


Context: The old federal rule and the present Court of Federal Claims rule are therefore identical. When interpreting the old federal rule, at least one appellate court held that state holidays were legal holidays for purposes of the federal rule.

See, Prudential Oil, 261 F.2d at 627 (allowing a motion to be filed one day after the filing deadline when the deadline fell on a Utah state holiday); cf., Reyes-Cardona v. J.C. Penney Co., Inc., 690 F.2d 1 (5th Cir.1982) (excluding a Puerto Rican state holiday from computation after F.R.C.P. was amended to expressly include state holidays), Ohio Inns, Inc. v. Nye, 542 F.2d 673, 676 (6th Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794 (1977) (excluding a state observance of Martin Luther King, Jr.


Context: An agreement between the defendants to violate the law is an essential element, which must be shown beyond a reasonable doubt.

See also United States v. Butler, 494 F.2d 1246, 1249 (10th Cir.1974) (mere knowledge of or acquiescence in the object of a conspiracy does not make one a coconspirator). In United States v. Nall, 949 F.2d 301, 305-06 (10th Cir.1991), we concluded that the government’s proof that the defendants, a buyer and seller of real estate, left a meeting together to make a deposit at a bank was insufficient to prove a conspiracy existed to circumvent the cash transaction reporting requirements of 31 U.S.C. §§ 5324(a)(3) and 5313(a).

United States v. Davis, 965 F.2d 804, 814 (10th Cir.1992) (holding various actions of state insurance commissioner insufficient evidence of agreement to bribe a public official).


Context: Thus, any further attempts to argue the merits of Rosete are deemed frivolous and an abuse of the judicial process. Furthermore, if Baylon files another document with this court and, upon review, it is determined that the arguments are frivolous, this court will consider the imposition of monetary sanctions.

See In re Solerwitz, 848 F.2d 1573, 1575 (Fed.Cir.1988) (counsel sanctioned for filing and maintaining frivolous appeals in air traffic controller cases that presented legal issues and fact patterns indistinguishable from those presented and decided in the precedents represented by the lead cases); see also Pillay v. Immigration and Naturalization Serv., 45 F.3d 14, 17 (2d Cir.1995) (appellate court has inherent authority to dismiss appeal as frivolous when appeal presents no arguably meritorious issue for consideration).


Context: It was for the court to then apply that percentage to the total damages. Plainly, the jury's finding of zero dollars in damages resulting from Knowlton's death is drastically deficient.

noting that "where the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law"

See Miami-Dade Cnty. v. Merker, 907 So.2d 1213, 1215 (Fla. 3d DCA 2005) (noting that “where the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law”); see also Westminster Cmty. Care Servs., Inc. v. Mikesell, 12 So.3d 838, 842 (Fla. 5th DCA 2009) (holding “the damages award of zero dollars was clearly inadequate in light of the substantial evidence at trial of economic and noneconomic damages” resulting from husband’s wrongful death); Snoozy v. U.S. Gypsum Co., 695 So.2d 767, 768 (Fla. 3d DCA 1997) (holding zero-damages award inadequate because “substantial, undisputed, and un-rebutted testimony” showed that deceased father “had a close relationship with his children, and that [the children] suffered a great loss as a result of their father’s death”).

holding "the damages award of zero dollars was clearly inadequate in light of the substantial evidence at trial of economic and noneconomic damages" resulting from husband's wrongful death


holding zero-damages award inadequate because "substantial, undisputed, and un-rebutted testimony" showed that deceased father "had a close relationship with his children, and that [the children] suffered a great loss as a result of their father's death"


Context: Opp'n to Furse & Covington Mot. to Dismiss at 12-17. Yet the plaintiffs entirely fail to demonstrate how the central holding of Gray -- that government attorneys enjoy absolute immunity from civil suits based on their conduct in initiating and prosecuting child neglect actions -- does not apply to their claims against defendant Furse. Furthermore, even if it were the case that defendant Furse had acted in bad faith and fallen under the "spell" of Carolina Lundebye, such behavior would not vitiate the absolute immunity conferred under Gray and Butz.

holding that prosecutors are absolutely immune from liability for their "knowing or inadvertent" failure to disclose materially exculpatory evidence

See Gray, 243 F.3d at 575 (noting that "[w]here absolute immunity is deemed appropriate, an official is protected from all suits attacking conduct within the scope of the immunity, even if the official is alleged to have acted in bad faith”); cf. Moore v. Valder, 65 F.3d 189, 194 (D.C.Cir.1995) (holding that prosecutors are absolutely immune from liability for their "knowing or inadvertent” failure to disclose materially exculpatory evidence).

noting that "[w]here absolute immunity is deemed appropriate, an official is protected from all suits attacking conduct within the scope of the immunity, even if the official is alleged to have acted in bad faith"


Context: Defendant is also correct that the trial court did not instruct the jury accordingly. However, assuming, without deciding, that the trial court thus committed plain error, we decline to exercise our discretion to correct the error.

instructional error "requires reversal only if the jury instructions given by the trial court, considered as a whole, cause prejudice to the party requesting the instruction"

See Ailes, 312 Or at 382 (stating that an appellate court “must exercise its discretion to consider or not to consider the error”); see also Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (instructional error “requires reversal only if the jury instructions given by the trial court, considered as a whole, cause prejudice to the party requesting the instruction”).

stating that an appellate court "must exercise its discretion to consider or not to consider the error"


Context: We disagree. A jury's understanding of whether testimony is scientific is not based exclusively on whether the expert witness uses scientific-sounding jargon or words that are susceptible to only scientific meanings. Juries are capable of recognizing scientific substance when they hear it.

explaining the scientific principles underlying DRE evidence and noting that "it is clear that DRE draws its authority from scientific principles"

Sampson, 167 Or App at 496-97 (explaining the scientific principles underlying DRE evidence and noting that “it is clear that DRE draws its authority from scientific principles”); see also O'Key, 321 Or at 296-97 (holding that HGN-test evidence is “scientific” because such evidence “purports to draw its convincing force from” the scientific proposition that there is “a causal relationship between consumption of alcohol and the type of nystagmus measured by the HGN test” and that relationship “is not within the realm of common knowledge of the average person”); Branch, 243 Or App at 315 (the jury will perceive distance evidence based on lidar as scientific because lidar uses a scientific principle— the speed of light—to measure distance).

holding that HGN-test evidence is "scientific" because such evidence "purports to draw its convincing force from" the scientific proposition that there is "a causal relationship between consumption of alcohol and the type of nystagmus measured by the HGN test" and that relationship "is not within the realm of common knowledge of the average person"


the jury will perceive distance evidence based on lidar as scientific because lidar uses a scientific principle-- the speed of light--to measure distance


Context: Although the broadest reading of the opinion might suggest a far-reaching cause of action, in fact, its impact has been relatively modest. Appellate Division decisions since LoBiondo I have not interpreted it expansively, but have instead given it limited application.

Baglini v. Lauletta, 338 N.J.Super. 282, 301-03, 768 A.2d 825 (App.Div.) (concluding that effort to silence condo development objectors falls within LoBiondo I), certif. denied, 169 N.J. 607, 782 A.2d 425, appeal dismissed, 169 N.J. 608, 782 A.2d 425 (2001); see Turner v. Wong, 363 N.J.Super. 186, 207-08, 832 A.2d 340 (App.Div.2003) (extending LoBiondo I’s special grievance analysis to malicious prosecution action based on racial discrimination claim).

extending LoBiondo I's special grievance analysis to malicious prosecution action based on racial discrimination claim


Context: "[W]hen crimes involve 'indirect or secondary victims'," or where society at large is the victim, the crime is treated as a "victimless crime" for purposes of the grouping rules.

United States v. Bush, 56 F.3d 536, 538-42 (3d Cir.1995) (affirming separate grouping of firearms offenses based on differences including place, time, nature of guns, and purposes of acts). For such “victimless crimes”, “the grouping decision must be based primarily upon the nature of the interest invaded by each offense.”

finding district court properly did not group two obstruction convictions for acts that arose out of same scheme but occurred two years apart and involved different harms-- one involved interfering with proper sentencing of another defendant, and the other involved attempt to suborn perjury before grand jury

Id. at 538 (quotation and citation omitted); United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir.1991); see Boggi, 74 F.3d at 473-74, 478-79 (district court separated racketeering and substantive counts of unlawful receipt of payments by union official into three groups based on different payors; ruling not challenged on appeal; circuit court approved of abuse of trust enhancements in all three groups but remanded for resentencing on other grounds); United States v. Beard, 960 F.2d 965, 967-69 (11th Cir.1992) (finding district court properly did not group two obstruction convictions for acts that arose out of same scheme but occurred two years apart and involved different harms— one involved interfering with proper sentencing of another defendant, and the other involved attempt to suborn perjury before grand jury).


Context: I would therefore hold that when a lawyer breaches his or her fiduciary duty to the client, the client has an absolute right to terminate the attorney-client relationship. And that right cannot be burdened by any claim from the lawyer for compensation or other damages.

"[Because] the client has the right to terminate the relation of attorney and client at any time[,] ... it follows as a natural consequence that [the client] cannot be compelled to pay damages for exercising that right .... "

See Lawler v. Dunn, 145 Minn. 281, 284, 176 N.W. 989, 990 (1920) (“[Because] the client has the right to terminate the relation of attorney and client at any time[,] ... it follows as a natural consequence that [the client] cannot be compelled to pay damages for exercising that right .... ”); cf. Perl v. St. Paul Fire and Marine Ins. Co., 345 N.W.2d 209, 212 (Minn.1984) (“The law treats a client’s right to an attorney’s loyalty as a kind of ‘absolute’ right in the sense that if the attorney breaches his or her fiduciary duty to the client, the client is deemed injured even if no actual loss results.”); Rice v. Perl, 320 N.W.2d 407, 411 (Minn.1982) (holding that an attorney who breaches a fiduciary duty to a client forfeits his right to compensation without any requirement that the client prove actual harm).

"The law treats a client's right to an attorney's loyalty as a kind of 'absolute' right in the sense that if the attorney breaches his or her fiduciary duty to the client, the client is deemed injured even if no actual loss results."


holding that an attorney who breaches a fiduciary duty to a client forfeits his right to compensation without any requirement that the client prove actual harm


authorizing only partial forfeiture of previously earned fees when there is no bad faith involved, no actual harm to the client and "particularly where there are multiple potential plaintiffs"

But see Gilchrist v. Perl, 387 N.W.2d 412, 417 (Minn.1986) (authorizing only partial forfeiture of previously earned fees when there is no bad faith involved, no actual harm to the client and “particularly where there are multiple potential plaintiffs”).


Context: However, even for the non-overlapping period, all plaintiffs and movants rely on a common pattern in their allegations: that defendants' statements to the investing public misrepresented or omitted to state material facts about the financial status of IMAX. Further, these matters share a common legal question: whether defendants' misrepresentations violated federal securities laws. In other words, the actions are all "securities fraud claims that arise from a common course of conduct. The dates on which the misrepresentations occurred do not change their nature."

noting that "[cjourts which have addressed the issue have held that differing class periods alone will not defeat consolidation or create a conflict"

In re Cendant Corp. Lit., 182 F.R.D. 476, 478 (D.N.J.1998) (noting that “[cjourts which have addressed the issue have held that differing class periods alone will not defeat consolidation or create a conflict”); see also In re Olsten Corp. Sec. Litig., 3 F.Supp.2d. 286, 293 (E.D.N.Y.1998) (consolidating actions alleging violations of section 10(b) and 20(a) under Securities Exchange Act of 1934, despite the fact that one of the four complaints specified a class period which began before and ended during the class period alleged in the other three complaints); Dolan v. Axis Capital Holdings Ltd., Nos. 04 Civ. 8564(RJH) et al., 2005 WL 883008, at *2 (S.D.N.Y. Apr.13, 2005) (finding consolidation of cases with “similar or overlapping claims” under Section 10(b) and 20(a) of the Securities and Exchange Act of 1934, along with Rule 10b-5, appropriate pursuant to Rule 42(a) despite different but “coextensive” class periods).

finding consolidation of cases with "similar or overlapping claims" under Section 10(b) and 20(a) of the Securities and Exchange Act of 1934, along with Rule 10b-5, appropriate pursuant to Rule 42(a) despite different but "coextensive" class periods


Context: Tenant's claim under the Residential Rental Agreements Act is for breach of a warranty based on landlords' failure to keep the premises safe and clean. There is no indication that by enacting the Residential Rental Agreements Act, the Legislature intended to deny tenants the additional protections provided by the Consumer Fraud Act.

See 49 Prospect Street, 547 A.2d at 1141 (reversing trial court, which held specific landlord-tenant statutes precluded claim under general consumer fraud law); see also McGrath v. Mishara, 434 N.E.2d 1215, 1221 (Mass. 1982) (“mere fact that these statutes contain some overlapping prohibitions and remedies does not establish a legislative intent to preclude their concurrent application”).

"mere fact that these statutes contain some overlapping prohibitions and remedies does not establish a legislative intent to preclude their concurrent application"


Context: This court has repeatedly held that a person is not entitled to be notified of her Miranda rights before an interrogation if that person is not "in custody."

See, e.g., United States v. Peete, 919 F.2d 1168, 1176 (6th Cir.1990) (Miranda “only applies to situations involving custodial interrogations”); United States v. Macklin, 900 F.2d 948, 950-951 (6th Cir.1990) (“A person is entitled to receive Miranda warnings only if questioned while in custody.”), cert. denied, — U.S. -, 111 S.Ct. 116, 112 L.Ed.2d 86 (1990); United States v. Knox, 839 F.2d 285, 291-292 (6th Cir.1988) (“ Miranda warnings are required only where there has been such a restriction on a person’s freedom, as to render him in custody.’ ”) (internal quotations omitted) (quoting Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989); see also United States v. Wolak, 923 F.2d 1193,1196 (6th Cir.1991) (warnings not required where person being interrogated was not in custody), cert. denied, — U.S. -, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991).

"A person is entitled to receive Miranda warnings only if questioned while in custody."


Context: The Financing Order follows the same structure as countless other orders and contracts, i.e., a more specific provision follows the more general provision. A court does not violate contract interpretation principles simply because it finds a more detailed provision to control the outcome over a general provision that has panoptic applicability.

See Parkhurst v. Gibson, 133 N.H. 57, 63, 573 A.2d 454 (1990) (noting the accepted interpretive rule that a general, preliminary clause does not take priority over specific provisions of a contract); 11 Richard A. Lord, Williston on Contracts § 32:10 (4th ed. 1999) (“Where general and specific clauses conflict, the specific clause governs the meaning of the contract.”); see also Lawson v. FDIC, 3 F.3d 11, 17 (1st Cir.2003) (noting the rule of contract interpretation that the specific controls the general).

interpreting a stipulation allowing a chapter 11 debtor to retain a portion of one of its businesses and finding the paragraph that generally characterized the business the debtor was to retain did not control because the paragraphs that followed more precisely explained what fit within the general rubric and specified the parties' rights

See New Seabury, 450 F.3d at 36 (interpreting a stipulation allowing a chapter 11 debtor to retain a portion of one of its businesses and finding the paragraph that generally characterized the business the debtor was to retain did not control because the paragraphs that followed more precisely explained what fit within the general rubric and specified the parties’ rights).


noting the accepted interpretive rule that a general, preliminary clause does not take priority over specific provisions of a contract


Context: As articulated in our case law, to determine whether a person's consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his right to refuse to consent to the search.

See Johnson, supra, 68 N.J. at 353-54, 346 A.2d 66 (establishing standard of voluntariness of consent under Article I, Paragraph 7, as knowing and intelligent waiver, which includes knowledge of right to refuse consent); State v. King, 44 N.J. 346, 352-53, 209 A.2d 110 (1965) (setting forth various non-exhaustive factors supporting either voluntary or coerced nature of consent). Free choice remains an indispensable tenet of our law — for example, the choice to submit to interrogation or to consent to a search. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966); Johnson, supra, 68 N.J. at 355, 346 A.2d 66 (Schreiber, J., concurring) (“Consent contemplates the exercise of a choice” and free choice is “effectively safeguarded if the occupant of the premises knows that the search may be refused.”); see also King, supra, 44 N.J. at 353, 209 A.2d 110 (noting that “many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested”).

noting that "many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested"


setting forth various non-exhaustive factors supporting either voluntary or coerced nature of consent


"Consent contemplates the exercise of a choice" and free choice is "effectively safeguarded if the occupant of the premises knows that the search may be refused."


Context: 136 Yet that interpretation is new. For years, divisions of the court of appeals agreed that the statute's "probable cause" requirement implied a lawful stop.

Seq, e.g., Peterson v. Tipton, 833 P.2d 830, 831 (Colo.App.1992) (holding that a police officer may not direct a driver to submit to aleohol testing absent "probable cause" and, by implication, "reasonable suspicion for the initial stop"); see also Baldwin v. Huber, 223 P.3d 150, 152 (Colo.App.2009) (evaluating whether the initial stop was lawful under the reasonable suspicion standard); Wallace v. Dep't of Revenue, 787 P.2d 181, 182-83 (Colo.App.1989) (concluding, under an old statutory scheme, that the initial stop was "justified under the reasonable suspicion standard").


concluding, under an old statutory scheme, that the initial stop was "justified under the reasonable suspicion standard"


Context: Applying the rational basis test to Appellant's due process challenge, I would find the mandated lifetime satellite monitoring and absence of any judicial review related to an assessment of an individual's likelihood of re-offending renders the challenged provision arbitrary. Further, in light of the legislature's predication of the statutory scheme on the substantial purpose of protecting the public from sex offenders who may re-offend, I would find the lack of risk assessment within section 23-3-540(C) not rationally related to such purpose, and thus unconstitutional.

finding an individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by clear and convincing proof

See Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (finding an individual’s liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by clear and convincing proof); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding sexually violent predator commitment statute and emphasizing the role of the review to ensure commitment lasts only so long as it is necessary to protect the public); see also Lyng v. Int’l Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review is “not a toothless one”); Luckabaugh, 351 S.C. at 139-40, 568 S.E.2d at 346 (finding due process ensures that a statute which deprives a person of a liberty interest has “at a minimum, a rational basis, and may not be arbitrary”).

noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review is "not a toothless one"


finding due process ensures that a statute which deprives a person of a liberty interest has "at a minimum, a rational basis, and may not be arbitrary"


upholding sexually violent predator commitment statute and emphasizing the role of the review to ensure commitment lasts only so long as it is necessary to protect the public


Context: In any event, even construing plaintiffs allegations broadly and in his favor, and accepting that his subjective fear of the alleged comments and minimal contact was genuinely felt, the Court finds that the necessary pervasiveness or severity is lacking in this ease.

"simple teasing, offhand. comments, and isolated incidents (unless extremely serious) will not amount to discriminatory- changes in the terms and conditions of employment"

See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (“simple teasing, offhand. comments, and isolated incidents (unless extremely serious) will not amount to discriminatory- changes in the terms and conditions of employment”) (citation and internal quotations omitted); see also Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (9th Cir.2002), cert. denied, 538 U.S. 994, 123 S.Ct. 1789, 155 L.Ed.2d 695 (2003) (collecting cases where the environment. was not sufficiently severe or pervasive, despite the existence of teasing, sexual jokes, inappropriate sexual comments, and repeated instances of unwanted sexual contact).


Context: However, as a result of his acquittal, we simply cannot conclude that there is a reasonable likelihood that he would be subjected to the same conduct.

former inmate's challenge to parole decisions mooted upon his release from supervision

See Weinstein, 423 U.S. at 149, 96 S.Ct. 347 (former inmate’s challenge to parole decisions mooted upon his release from supervision); see also Abdul-Akbar, 4 F.3d at 206 (cautioning against “conjecture” that prisoner could again be incarcerated at maximum security unit and holding prisoner’s release from maximum security unit mooted challenge to law library in maximum security unit).

cautioning against "conjecture" that prisoner could again be incarcerated at maximum security unit and holding prisoner's release from maximum security unit mooted challenge to law library in maximum security unit


Context: First, even if bona fide leases exist between the Movants and the Debtors, they are not leases of nonresidential real property.

agreeing with the debtor that a lease of property used by the debtor to operate a life-care facility was not a- lease of "nonresidential real property," as people resided in the leased property and the fact that the debtor corporation did not reside thereupon was irrelevant

See In re Independence Vill., Inc., 52 B.R. 715, 722 (Bankr.E.D.Mich.1985) (agreeing with the debtor that a lease of property used by the debtor to operate a life-care facility was not a- lease of “nonresidential real property,” as people resided in the leased property and the fact that the debtor corporation did not reside thereupon was irrelevant); see also In re Care Givers, Inc., 113 B.R. 263 (Bankr.N.D.Tex.1989) (holding that leases of real property upon which the debtor operated senior nursing homes were not leases of nonresidential real property); Matter of Terrace Apts., Ltd., 107 B.R. 382, 383 (Bankr.N.D.Ga.1989) (Kahn.


Context: Although the nexus of this action to international and foreign banking provides a sufficient basis for federal jurisdiction under Section 632, the jurisdictional requirement is alternatively satisfied, because this suit "aris[es] ... out of other international or foreign financial operations." Indeed, in this context, the plain meaning of the phrase "other international or foreign financial operations" is international or foreign financial operations other than banking.

Travis, 23 F.Supp. 363 (issuance of securities by corporation constituted foreign financial operations for purposes of Section 632); & Bjorkman, supra at 128 (“[I]t is not merely international or foreign ‘banking’ that triggers jurisdiction under Section 632”); see also Perrin v. United States, 444 U.S. 37, 42,100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) (words in statutes must be given their ordinary, contemporary common meaning).


Context: Counsel argued that after receiving notice of the default judgment in mid-March 2005, Caraballo consulted with him "sometime in April or thereabouts." Counsel further stated that for his own reasons, he waited another "couple of weeks," until May 4, to complete and file the sworn motion. Unsworn argument of counsel is insufficient to satisfy the due diligence element of a motion to vacate a default final judgment.

ruling that the trial court abused its discretion in granting defendant's motion to vacate default judgment "[s]ince the motion seeking relief consisted of merely unsworn to representations of counsel, unsupported by proof showing any excusable neglect, and the only evidence before the court actually refuted these representations"

Polygram Latino U.S. v. Torres, 751 So.2d 90 (Fla. 3d DCA 1999)(ruling that the trial court abused its discretion in granting defendant’s motion to vacate default judgment “[s]ince the motion seeking relief consisted of merely unsworn to representations of counsel, unsupported by proof showing any excusable neglect, and the only evidence before the court actually refuted these representations”); see also Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006)(“[a]s this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation”); State v. Bauman, 425 So.2d 32, 35 n. 3 (Fla. 4th DCA 1982)(“We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court.

"[a]s this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation"


Context: ORS 107.135(l)(a) provides, in part, that a court may "[s]et aside, alter or modify so much of the decree as may provide * * * for the support of a party * * The key phrase in the statute is the present tense verb phrase "may provide." That phrase implies that there must be an existing support obligation at the time that the court exercises its authority to modify. Our case law supports that interpretation of the statutory scheme.

See Wrench and Wrench, 98 Or App 352, 353, 779 P2d 195, rev den, 308 Or 608 (1989) (holding that, “[a]s with a promissory note, when the final payment was made [on a support judgment], the obligation was discharged[,]” and after that date “husband had no obligation that could support a modification”); see also Woita and Woita, 98 Or App 83, 87, 778 P2d 504, rev den, 308 Or 608 (1989) (holding that the trial court was without authority to modify a spousal support obligation when the modification proceeding was initiated ten years after the obligation to pay spousal support under the dissolution judgment had been terminated by order); Park and Park, 43 Or App 367, 602 P2d 1123 (1979), rev den, 288 Or 335 (1980) (holding that the trial court lacked authority to renew spousal support payments pursuant to a motion that was filed after the expiration of time during which spousal support was required to be paid under the original judgment).

holding that, "[a]s with a promissory note, when the final payment was made [on a support judgment], the obligation was discharged[,]" and after that date "husband had no obligation that could support a modification"


holding that the trial court lacked authority to renew spousal support payments pursuant to a motion that was filed after the expiration of time during which spousal support was required to be paid under the original judgment


Context: Appellants contend that the statutes relative to a safe workplace, which they allege DISD violated, implicitly waive DISD's immunity from suit. A so-called "implicit waiver" of sovereign immunity arises when the statute at issue would be meaningless if immunity was not waived thereby.

Lab.Code Ann. § 504.002 (Vernon Supp.2004)] which expressly incorporates anti-retaliation law); Alamo Community College Dist. v. Obayashi Corp., 980 S.W.2d 745, 747-48 (Tex.App.San Antonio 1998, pet. denied) (ch. 130 of Education Code); see also Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (Uniform Declaratory Judgments Act waives immunity from suit in actions brought to construe legislative pronouncements); but see Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 855-56 (Tex.2002) (UDJA does not waive immunity from suit in actions “against state officials seeking to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities”).

UDJA does not waive immunity from suit in actions "against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities"


Context: Finally, with respect to the receipt statute in particular, the Court also notes that those courts to address vagueness challenges to this statute have found that it is not unconstitutionally vague.

analyzing the plain language of the receipt statute and finding that the defendant had "not established that SS 2252A(a

United States v. Watzman, 486 F.3d 1004, 1009 (7th Cir.2007), cert. denied 552 U.S. 1052, 128 S.Ct. 682, 169 L.Ed.2d 533 (2007) (analyzing the plain language of the receipt statute and finding that the defendant had “not established that § 2252A(a)(2) fails either the ‘notice’ or ‘arbitrary enforcement’ tests for unconstitutional vagueness.”); United States v. Powers, No. 07-CR-103A, 2009 WL 2601103, at *3 (W.D.N.Y. Aug. 21, 2009) (finding the reasoning in Watzman persuasive and concluding that receipt statute was not unconstitutionally vague); United States v. Marcus, 193 F.Supp.2d 552, 557-58 (E.D.N.Y.2001) (finding that the receipt statute “clearly apprises indi viduals of the nature of the conduct proscribed”); cf. Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310-12 (11th Cir.2009) (finding that certain provisions of the Fair Credit Reporting Act (“FCRA”) were not unconstitutionally vague on their face because the FCRA “clearly definefd]” the prohibited conduct and did not give law enforcement, courts, or juries the ability to apply the provisions in an arbitrary or discriminatory manner).

finding that certain provisions of the Fair Credit Reporting Act ("FCRA"


analyzing the plain language of the receipt statute and finding that the defendant had "not established that SS 2252A(a)(2) fails either the 'notice' or 'arbitrary enforcement' tests for unconstitutional vagueness."


finding the reasoning in Watzman persuasive and concluding that receipt statute was not unconstitutionally vague


finding that the receipt statute "clearly apprises indi viduals of the nature of the conduct proscribed"


Context: We conclude that the mandatory nature of SS 44-53-370(e)(2)(a)(l) is clear under the plain meaning of the words employed, notwithstanding the fact that the word "mandatory" is only used to describe the sentence for a third and subsequent offense.

finding statute describing possible prison term as "not less than ten years nor more than twenty-five years" prescribes a mandatory minimum sentence of ten years

See State v. Wilson, 315 S.C. 289, 294, 433 S.E.2d 864, 867 (1993) (stating the precise quantity of drugs involved in trafficking in cocaine in violation of § 44-53-370(e)(2), “is pertinent, not to the classification of trafficking, but to the minimum penalty proscribed (sic)”); cf. State v. De La Cruz, 302 S.C. 13, 16, n. 4, 393 S.E.2d 184, 186, n. 4 (1990) (noting Johnson case “dealt with a mandatory minimum sentence”); State v. Johnson, 276 S.C. 444, 446, 279 S.E.2d 606, 607 (1981) (finding statute describing possible prison term as “not less than ten years nor more than twenty-five years” prescribes a mandatory minimum sentence of ten years).

stating the precise quantity of drugs involved in trafficking in cocaine in violation of SS 44-53-370(e)(2), "is pertinent, not to the classification of trafficking, but to the minimum penalty proscribed (sic)"


Context: In determining fraud, courts have adopted a subjective standard and have considered the facts of the particular marriage.

See also Leventhal v. Liberman, 262 N.Y. 209, 186 N.E. 675 (1933) (where husband did not disclose he had tuberculosis and was a narcotics addict).

Wolfe, 19 Ill.Dec. at 311, 378 N.E.2d at 1186 (where husband concealed his prior marital history from Roman Catholic wife); Costello, 282 A.2d 432 (where husband omitted to tell wife of his heroin addiction); Lamberti v. Lamberti, 77 Cal.Rptr. 430, 432, 272 Cal.App.2d 482 (1969) (where husband’s secret intent in marrying was to acquire an advantageous alien status and where he falsely promised to go through a subsequent religious ceremony); Parks v. Parks, 418 S.W.2d 726 (Ky.1967) (where wife falsely represented at time of marriage that she was pregnant); Kober v. Kober, 16 N.Y.2d 191, 211 N.E.2d 817, 264 N.Y.S.2d 364 (1965) (where husband failed to disclose his extreme anti-Semitism to wife); Handley v. Handley, 179 Cal.App.2d 742, 3 Cal.Rptr. 910 (1960) (where wife secretly intended not to live with husband and not to adopt his name); Osborne v. Osborne, 134 A.2d 438 (D.C.1957) (where husband secretly intended not to live with his wife); Rathburn v. Rathburn, 138 Cal.App.2d 568, 292 P.2d 274, 277 (1956) (where wife secretly intended not to consummate the marriage); Vileta v. Vileta, 53 Cal. App.2d 794, 128 P.2d 376, 377 (1942) (where wife did not disclose her infertility); Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474 (1931) (where husband falsely told wife he loved her and did not disclose that real reason for marriage was to avoid deportation).


where husband's secret intent in marrying was to acquire an advantageous alien status and where he falsely promised to go through a subsequent religious ceremony


where wife falsely represented at time of marriage that she was pregnant


where husband failed to disclose his extreme anti-Semitism to wife


where wife secretly intended not to live with husband and not to adopt his name


where husband secretly intended not to live with his wife


where husband falsely told wife he loved her and did not disclose that real reason for marriage was to avoid deportation


Context: Given these holdings, granting the defendant's request for review in this case would place us in the inconsistent position of being able to review the methodology and justifications for the degree of a downward departure, while leaving us unable to review a decision not to depart in the first instance. Thus, should we remand a downward departure decision to the trial court, the sentencing judge could easily resolve the methodology problem by providing for no departure at all -- a decision we would be unable to review, and one that would place a defendant such as Hazel in a worse position than that in which he presently finds himself.

"the extent of a departure, like the decision to depart itself, is essentially discretionary, ... and the statute affords no grounds for the beneficiary of a departure decision to complain that the deviation should have been greater"

See Wright, 895 F.2d at 722 (“It would be illogical to insulate from review a harsher sentence that fell within the guidelines while permitting the court of appeals to order further downward departures from a sentence already less than that provided for by the guidelines.”) (citation omitted); cf. also United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990) (“the extent of a departure, like the decision to depart itself, is essentially discretionary, ... and the statute affords no grounds for the beneficiary of a departure decision to complain that the deviation should have been greater”) (citation omitted) (emphasis in original). Thus, the scope of our review over other sentencing decisions indicates that a narrow interpretation of § 3742 is in order.

"It would be illogical to insulate from review a harsher sentence that fell within the guidelines while permitting the court of appeals to order further downward departures from a sentence already less than that provided for by the guidelines."


Context: . To the extent Nelson also has argued that the court erred in dismissing his action because he was proceeding without counsel, "[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." However, both the Supreme Court and this Court have concluded that a defendant's pro se status in civil litigation generally will not excuse mistakes he makes regarding procedural rules.

See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993) (explaining that the Court "never [had] suggested that procedural rules in ordinary civil litigation shall be interpreted so as to excuse mistakes by those who proceed without counsel,” because "experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law”); see also Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir.1999) (holding that liberal construction of the pleading requirements for pro se litigants does not equate with liberal deadlines).

explaining that the Court "never [had] suggested that procedural rules in ordinary civil litigation shall be interpreted so as to excuse mistakes by those who proceed without counsel," because "experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law"


Context: This Court concludes, further, that the flexible Title VII standards for establishing a hostile work environment claim apply to hostile learning environment claims brought under the federal statutes prohibiting discrimination against persons with disabilities.

Brown, 68 F.3d at 540 (applying Title VII easelaw by analogy to a hostile learning environment claim brought under Title IX); but cf. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1011 n. 11 (5th Cir.1996) (noting that “importing a theory of discrimination from the adult employment context into a situation involving children is highly problematic”), cert. denied, - U.S. -, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996).

noting that "importing a theory of discrimination from the adult employment context into a situation involving children is highly problematic"


Context: The same logic applies to Maul-din's assertions of his rights to not speak and to privacy; he asserts these rights as they relate to his right to worship free of governmental restraint or compulsion. Mauldin is not being singled out for this requirement because of his religious beliefs. Nor is he required to pledge or proclaim support for the requirement or the government.

"The IRS summons requires Sindel only to provide the government with information which his clients have given him voluntarily, not to disseminate publicly a message with which he disagrees. Therefore, the First Amendment protection against compelled speech does not prevent enforcement of the summons."

See United States v. Sindel, 53 F.3d 874, 878 (8th Cir.1995) (“The IRS summons requires Sindel only to provide the government with information which his clients have given him voluntarily, not to disseminate publicly a message with which he disagrees. Therefore, the First Amendment protection against compelled speech does not prevent enforcement of the summons.”).

dicta that having "In God We Trust" on currency does not compel speech because it is not associated with individual and not publicly displayed

Compare Wooley v. Maynard, 430 U.S. 705, 717 n. 15, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (dicta that having “In God We Trust” on currency does not compel speech because it is not associated with individual and not publicly displayed), with Wooley, 430 U.S. at 717, 97 S.Ct. 1428 (New Hampshire cannot compel citizens to display on their cars license plates with “Live Free or Die”) and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (Jehovah’s Witnesses cannot be compelled in school to recite Pledge of Allegiance against their beliefs because “the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind”).' Indeed, it is not clear that supplying a social-security number on an application is considered speech under the Constitution.


Jehovah's Witnesses cannot be compelled in school to recite Pledge of Allegiance against their beliefs because "the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind"


Context: The District Court properly applied the doctrine of judicial immunity to bar the claims against the judges, and properly rejected as time-barred the remaining claims. Our concerns regarding sua sponte dismissals are not at issue here, as Scott filed an amended complaint before the Magistrate Judge issued his report and any further attempt to amend would have been futile.

See Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir.2004) (stating that if a complaint is vulnerable to dismissal, a district court must first permit the plaintiff to file a curative amendment unless the dismissal is justified by bad faith, undue delay, prejudice, or futility); see also Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006) (stating that a district court may sua sponte dismiss a complaint under 28 U.S.C. § 1915 based on an affirmative defense where the defense is obvious from the complaint and no development of the factual record is required).

stating that a district court may sua sponte dismiss a complaint under 28 U.S.C. SS 1915 based on an affirmative defense where the defense is obvious from the complaint and no development of the factual record is required


Context: "[S]omeone who knows he is dealing in drugs" must "proceed at his peril with respect to the proximity of a school." Id. at 230. The same principle applies to the location of a qualifying school. "Although some schools are not clearly recognizable as such from all points within the 1000 foot radius, the dealers bear the burden of ascertaining where schools are located and removing their operations from those areas or face enhanced penalties."

See Commonwealth v. Roucoulet, 413 Mass. 647, 648 (1992) (conviction proper on showing that defendant possessed the drugs within the school zone even if he intended to distribute them outside zone).

Bailey v. State, 603 N.E.2d 1376, 1380 (Ind. App. 1992) (one room in a community center used by school system as an alternative classroom).


Context: Most of these courts, however, also take the view that there are limits on a plan proponent's classification freedom.

Bankruptcy courts have "broad discretion to determine proper classification according to the factual circumstances of each individual case."

See U.S. Truck, 800 F.2d at 586 (Bankruptcy courts have “broad discretion to determine proper classification according to the factual circumstances of each individual case.”); see also Chateaugay, 89 F.3d at 949 (“[T]o warrant having separate classification of similar claims, the debtor must advance a legitimate reason supported by credible proof.”); see also In re Stratford Assocs.

"[T]o warrant having separate classification of similar claims, the debtor must advance a legitimate reason supported by credible proof."


Context: In view of the scope of the defense efforts to establish some support for a mental status defense and to provide mitigating evidence at the penalty phase, it was not unreasonable or unfair for the prosecution to rebut those efforts with the questions to both Dr. Campbell and Dr. Brown about the prognosis for possible improvement in the antisocial personality disorder. The use of Dr. Brown's opinion was within the scope of the examination and its uses that defense counsel could reasonably have anticipated.

See Savino v. Murray, 82 F.3d 593, 604-05 (4th Cir.1996) (Sixth Amendment did not require specific warning that results of psychiatric evaluation requested by defense could be used to show future dangerousness); Woomer v. Aiken, 856 F.2d 677, 682 (4th Cir.1988) (Sixth Amendment did not require specific warning that results of sanity examination could be used to comment on potential future dangerousness; “When defense counsel consented to the sanity evaluation, he obviously anticipated that the evaluation and resulting psychiatric opinions might be beneficial to his client’s case, but he also must have been fully aware that if they were unfavorable they might be used for an adverse objective.”); Schneider v. Lynaugh, 835 F.2d 570, 577-78 (5th Cir.1988) (after defendant offered evidence from counselors of his potential for rehabilitation, prosecution’s rebuttal use of opinion of psychiatrist who examined defendant for competency did not violate Sixth Amendment); Re v. State, 540 A.2d 423, 430 (Del.1988) (after defendant asserted mental status defense, prosecution’s rebuttal use of opinion of psychiatrist who examined defendant for competency did not violate Sixth Amendment); cf. Delguidice v. Singletary, 84 F.3d 1359, 1362-63 (11th Cir.1996) (under Sixth Amendment, notice to counsel that defendant would be examined to determine competency was not sufficient notice to permit State to use examination to address sanity at time of crime).


after defendant offered evidence from counselors of his potential for rehabilitation, prosecution's rebuttal use of opinion of psychiatrist who examined defendant for competency did not violate Sixth Amendment


after defendant asserted mental status defense, prosecution's rebuttal use of opinion of psychiatrist who examined defendant for competency did not violate Sixth Amendment


Context: Third, the dissenters, apparently animated by their disagreement with current New York law, argue at length that the law used to be different. We think the purpose of certification is to ask the New York Court of Appeals that question, rather than to urge them to adopt our own interpretations of state law. We do respectfully point out, however, that New York judges have not necessarily agreed with the dissenters' views.

upholding a trial court's refusal to submit lesser-included offenses to the jury and explaining that evidence of intoxication does not automatically entitle a jury to find that a defendant acted recklessly

See People v. Gonzalez, 554 N.Y.S.2d 506, 508, 160 A.D.2d 502, 504 (1st Dep’t 1990) (citing Gallagher and concluding that “the record clearly establishes that if defendant was guilty of shooting [the victim], he was guilty of an intentional shooting or no other. Thus, the submission of depraved mind murder was improper and the conviction thereon is vacated, and the count dismissed.” (internal citation and quotation omitted)); People ex rel. Parsons v. Walsh, 800 N.Y.S.2d 853, 854, 21 A.D.3d 1169, 1169 (3d Dep’t 2005) (stating that Payne did not declare a retroactive change in the law but, rather, applied existing case law), leave to appeal denied, 6 N.Y.3d 702, 843 N.E.2d 1156, 810 N.Y.S.2d 416 (2005); cf. People v. Butler, 84 N.Y.2d 627, 632-34, 644 N.E.2d 1331, 1335-36, 620 N.Y.S.2d 775, 779-80 (1994) (upholding a trial court’s refusal to submit lesser-included offenses to the jury and explaining that evidence of intoxication does not automatically entitle a jury to find that a defendant acted recklessly).


Context: However, the critical factor about the location of the encounter is its nonpublic nature. "[A] reasonable innocent person who is alone when approached by law enforcement officers is more likely to feel that he or she was the specific object of the officers' inquiry."

But see United States v. Tavolacci, 895 F.2d 1423, 1424-26 (D.C.Cir.1990) (encounter between officers and defendant at door to private train compartment was not a seizure).

Id. at 1531-32. See also Royer, 460 U.S. at 502-03, 103 S.Ct. at 1327-28 (plurality opinion) (removing person from public place to private room where he was alone with officers supported finding that encounter was no longer consensual).


Context: The WCA is one instance in which we have acknowledged that the Legislature abolished the common law and replaced it with a new, adequate, and fundamentally different remedy.

"Section 176.82 is not a codification of the common law."

Abraham, 639 N.W.2d at 353-54; Breimhorst, 227 Minn. at 436, 35 N.W.2d at 735 (“By the weight of authority, it is recognized that compulsory workmen’s compensation acts similar to ours do provide a remedy which is an adequate substitute for the common-law or statutory action for damages for injuries sustained by an employe[e] in his employment.”); see also McDaniel v. United Hardware Distrib. Co., 469 N.W.2d 84, 85 (Minn.1991) (“Section 176.82 is not a codification of the common law.”).

"By the weight of authority, it is recognized that compulsory workmen's compensation acts similar to ours do provide a remedy which is an adequate substitute for the common-law or statutory action for damages for injuries sustained by an employe[e] in his employment."


Context: . Where the two acts diverge, however, courts do not defer to federal law to interpret state law.

See, e.g., Bayada Nurses, Inc., 8 A.3d at 882-83 (holding that federal regulations pertaining to the domestic service exemption to the FLSA did not apply to the analogous but narrower PMWA exemption and that Pennsylvania may interpret its law in a manner more beneficial to employees than federal law); see also Foster v. Kraft Foods Glob., Inc., 285 F.R.D. 343, 345 (W.D. Pa. 2012) (declining to apply the FLSA’s method for calculating overtime payments to the PMWA analysis where the federal method conflicted with the language of the PMWA); Truman v. DeWolff, Boberg & Assocs., Inc., No. 07-01702, 2009 WL 2015126, at *2 (W.D. Pa. July 7, 2009) ("In light of the FLSA's explicit recognition that states may offer greater protections to its employees than the FLSA, we are reluctant to find an unstated foreign-work exemption in the PMWA based solely on the fact that the FLSA contains such an exemption.”); cf. Smiley v. E.I. Dupont De Nemours & Co., 839 F.3d 325, 328-29 n.4 (3d Cir. 2016) (noting that the Pennsylvania Wage Payment and Collection Law and the FLSA have parallel remedies but “material differences” may exist between claims under each law).

declining to apply the FLSA's method for calculating overtime payments to the PMWA analysis where the federal method conflicted with the language of the PMWA


"In light of the FLSA's explicit recognition that states may offer greater protections to its employees than the FLSA, we are reluctant to find an unstated foreign-work exemption in the PMWA based solely on the fact that the FLSA contains such an exemption."


noting that the Pennsylvania Wage Payment and Collection Law and the FLSA have parallel remedies but "material differences" may exist between claims under each law


Context: 8 U.S.T. at 908. We agree with the Ninth Circuit that this "limited waiver" "extends only to enterprises of Iran, not Iran itself" and "extends only to enterprises 'doing business' in the United States."

concluding that art. XI P 4 of the Treaty of Amity waives immunity of enterprises but not of Iran itself

Berkovitz, 735 F.2d at 333; see also Jafari v. Islamic Republic of Iran, 539 F.Supp. 209, 211 (N.D. Ill.1982) (concluding that art. XI ¶ 4 of the Treaty of Amity waives immunity of enterprises but not of Iran itself); Mashayekhi v. Iran, 515 F.Supp. 41, 43 (D.D.C.1981) (finding limited waiver of immunity in Article XI); cf. Gibbons v. Republic of Ireland, 532 F.Supp. 668, 672 (D.D.C.1982) (concluding that virtually identical treaty provision waived immunity of “enterprises” including the sovereign’s instrumentalities but did not waive immunity of the sovereign itself).

concluding that virtually identical treaty provision waived immunity of "enterprises" including the sovereign's instrumentalities but did not waive immunity of the sovereign itself


Context: . Similar fact evidence is evidence of an uncharged crime not linked or related circumstantially to the crime charged.

See Gorham v. State, 454 So.2d 556 (Fla.1984) (distinguishing similar fact evidence, as unrelated bad acts of defendant, from acts that link defendant to victim circumstantially); see also Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959) (using term "similar fact evidence" to describe act unrelated to crime on trial but offered to show identity, intent and plan of design).


Context: The government met the mail- and wire-fraud statutes' intent requirements through proof that K. Kennedy was reckless in his disregard for the truth of the statements that he made to victims to obtain their money.

noting that the government's evidence in a mail-fraud case met the intent requirement because it supported a jury finding that the defendant "deliberately ignored a high probability" that the securities form he submitted contained material false information

See United States v. DeSantis, 134 F.3d 760, 764 (6th Cir.1998) (holding that the prosecution may establish the intent element of mail fraud by proving that the defendant was reckless); see also United States v. Turner, 22 Fed.Appx. 404, 410 (6th Cir.2001) (noting that the government’s evidence in a mail-fraud case met the intent requirement because it supported a jury finding that the defendant “deliberately ignored a high probability” that the securities form he submitted contained material false information).


Context: Alternatively, much of the time after February 18,1998 is excluded for other reasons. For instance, Walter Whitehead filed various pretrial motions on June 9, 1998 which warrants an exclusion of thirty days while these motions are under the advisement of the court.

See U.S. v. Burke, 673 F.Supp. 1574 (N.D.Ga.1986), affirmed 856 F.2d 1492, rehearing denied 867 F.2d 1431, certiorari denied 492 U.S. 908, 109 S.Ct. 3222, 106 L.Ed.2d 571 (Anything which stops the clock for purposes of Speedy Trial Act for one defendant also stops the clock for the same period as to all codefendants).

See also U.S. v. Phillips, 936 F.2d 1252, 1254 (11th Cir.1991) (18 U.S.C. 3161(h)(l)(J) provides a thirty day limit on excludability for motions not requiring a hearing before a court but not to motions necessitating a hearing, such as suppression hearings, for which the entire time from filing to conclusion of hearing is excludable). Accordingly, the time between June 9, 1998 and July 9, 1998 should be excluded (the Court ruled on these pretrial motions on July 14,1998).


Context: As to defendant's assertion that his term of life imprisonment mitigated the risk of future dangerousness, we merely reiterate that "[a] defendant's future dangerousness is not a statutory aggravating factor and must play no part in a jury's deliberations." The State, properly, did not raise future dangerousness as an aggravating factor.

concluding that prosecutor's discussion of non-statutory aggravating factor of future dangerousness was reversible error

See Loftin I, supra, 146 N.J. at 371, 680 A.2d 677 (stating “[fjuture dangerousness is not an aggravating factor in New Jersey, and our statute limits prosecutors to the enumerated aggravating factors”); cf. State v. Rose, 112 N.J. 454, 521, 548 A.2d 1058 (1988) (concluding that prosecutor’s discussion of non-statutory aggravating factor of future dangerousness was reversible error).

stating "[fjuture dangerousness is not an aggravating factor in New Jersey, and our statute limits prosecutors to the enumerated aggravating factors"


Context: Illingsworth was paid on days when he was out due to injury, and he continued to be paid after he stopped working. A reasonable jury could find that the payments to Illingsworth were not made in the usual course of business and thus were not bona fide.

payments not bona fide "if they were intentionally misapplied, as they were here via sham contracts that skirted conflict of interest rules and allowed [a corporation] to receive preferential treatment and other benefits"

Cornier-Ortiz, 361 F.3d at 36 (payments not bona fide “if they were intentionally misapplied, as they were here via sham contracts that skirted conflict of interest rules and allowed [a corporation] to receive preferential treatment and other benefits”); United States v. Grubb, 11 F.3d 426, 431, 434 (4th Cir.1993) (bona fide wages exception inapplicable where employee “performed little work for the Sheriffs office” and did not “perform functions for the Sheriffs office on a regular basis”); cf. United States v. Mills, 140 F.3d 630, 633 (6th Cir.1998) (bona fide wages exception applicable because there was no allegation that employees “did not responsibly fulfill the duties associated with their employment”).

bona fide wages exception applicable because there was no allegation that employees "did not responsibly fulfill the duties associated with their employment"


bona fide wages exception inapplicable where employee "performed little work for the Sheriffs office" and did not "perform functions for the Sheriffs office on a regular basis"


Context: On the other hand, the Husses reside in Mississippi, and Barbara has suffered harm chiefly in that state. On balance, we believe that the "center of gravity" in this case is in Tennessee, and that Mississippi does not have a more significant relationship to the case.

applying Restatement and holding that where patient-physician relationship was based in Maryland, Maryland law applied to D.C. resident's medical malpractice claim

See, e.g., Bledsoe v. Crowley, 849 F.2d 639, 642-43 (D.C.Cir.1988) (applying Restatement and holding that where patient-physician relationship was based in Maryland, Maryland law applied to D.C. resident’s medical malpractice claim); cf. Denman, 131 F.3d at 549 (“Under Mississippi law, the substantive law of the place of injury controls unless another state has a more significant relationship to the occurrence and the parties.”) (citation omitted).

"Under Mississippi law, the substantive law of the place of injury controls unless another state has a more significant relationship to the occurrence and the parties."


Context: A careful reading of our cases reveals that these elements of the statute establish two evidentiary requirements. First, they require proof of a "nexus ... between a particular drug offender and the firearm."

noting possibility of conspiring in or aiding or abetting another's use of a weapon

Long, 905 F.2d at 1577. This connection may be shown vicariously, as when a defendant engages in a conspiracy. See id. at 1577 n. 8 (noting possibility of conspiring in or aiding or abetting another’s use of a weapon); United States v. Powell, 929 F.2d 724, 726-28 (D.C.Cir.1991) (discussing knowledge required for accomplice liability under § 924(c)). Second, they require evidence “that the guns facilitate[d] the predicate offense in some way.”

requiring "evidence from which the jury could reasonably infer that the guns were an integral part of the drug trafficking operation"

See also United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir. 1989) (requiring “evidence from which the jury could reasonably infer that the guns were an integral part of the drug trafficking operation”).


Context: That is not to say that Wolf may not have recourse against Clark Hill directly. An attorney who represents a closely held corporation and a controlling shareholder may also have a fiduciary to the other shareholder(s).

holding that even where no attorney-client relationship exists between a shareholder and the corporate attorney, "this does not necessarily mean that [the law firm] had no fiduciary duty to [the shareholder]," and observing that "[instances in which the corporation attorneys stand in a fiduciary relationship to individual shareholders are obviously more likely to arise where the number of shareholders is small. In such cases it is not really a matter of the courts piercing the corporate entity"

See Fassihi, 107 Mich.App. at 515, 516, 309 N.W.2d at 648, 649 (holding that even where no attorney-client relationship exists between a shareholder and the corporate attorney, “this does not necessarily mean that [the law firm] had no fiduciary duty to [the shareholder],” and observing that “[instances in which the corporation attorneys stand in a fiduciary relationship to individual shareholders are obviously more likely to arise where the number of shareholders is small. In such cases it is not really a matter of the courts piercing the corporate entity”); see also Schaeffer v. Cohen, Rosenthal, Price, Mirkin, Jennings & Berg, P.C., 405 Mass. 506, 541 N.E.2d 997, 1002 (1989) (“Indeed, there is logic in the proposition that, even though counsel for a closely held corporation does not by virtue of that relationship alone have an attorney-client relationship with the individual shareholders, counsel nevertheless owes each shareholder a fiduciary duty.”) (citing Fassihi).

"Indeed, there is logic in the proposition that, even though counsel for a closely held corporation does not by virtue of that relationship alone have an attorney-client relationship with the individual shareholders, counsel nevertheless owes each shareholder a fiduciary duty."


Context: T.M. is considered to have advance notice of any condition that is contemplated by the sentencing guidelines.

"Here, the Magistrate Judge decided to sentence [the defendant] to the maximum possible term of imprisonment. Having made that decision, she could not also sentence him to home detention."

See U.S.S.G. § 5F1.2; U.S.S.G. § 5D1.3(e)(2); see also United States v. Leaphart, 98 F.3d 41, 43 (2d Cir.1996) (“Here, the Magistrate Judge decided to sentence [the defendant] to the maximum possible term of imprisonment. Having made that decision, she could not also sentence him to home detention.”); but cf. United States v. Elkins, 176 F.3d 1016, 1020-21 (7th Cir.1999) (upholding a sentence where the combined prison and community confinement time exceeded the maximum allowable sentence).


Context: When assessing danger to the community, "danger may, at least in some cases, encompass pecuniary or economic harm."

"We ... hold that a defendant's propensity to commit crime generally, even if the resulting harm would not be solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act."

United States v. R.G. Reynolds, 956 F.2d 192, 192 (9th Cir.1992) (denying bail pending appeal to defendant convicted of mail fraud); see United States v. Provenzano, 605 F.2d 85, 95 (3d Cir.1979) (“We ... hold that a defendant’s propensity to commit crime generally, even if the resulting harm would not be solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act.”); United States v. Leonetti, No Crim. 88-003, 1988 WL 61738 at *2 (E.D.Pa. 9 June 1988) (Provenzano “instructed that community danger not only meant a crime of physical violence, but also included the commission of future economic crimes as well.”); United States v. Moss, 522 F.Supp. 1033, 1035 (E.D.Pa.1981) (same), aff'd, 688 F.2d 826 (3d Cir.1982); see also Strong, 775 F.2d 504, 507 (3d Cir.1985).


Provenzano "instructed that community danger not only meant a crime of physical violence, but also included the commission of future economic crimes as well."


Context: We have previously recognized that in forma pauperis plaintiffs "must rely on the district court and the [USMS] to effect service," and should not be penalized for delay in service beyond their control.

"The prisoner may rely on the Marshals Service to serve process, and the Marshals Service's failure to complete service is automatically 'good cause' to extend time for service under Rule 4(m)."

See Robinson, 602 F.3d at 608-09 (citing Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995) (“The prisoner may rely on the Marshals Service to serve process, and the Marshals Service’s failure to complete service is automatically 'good cause’ to extend time for service under Rule 4(m).”)); see also Wright v. First Student, Inc., 710 F.3d 782, 783-84 (8th Cir. 2013) (“[I]f the delay in service was the result of a delay by court staff or the USMS in fulfilling their obligations, [the plaintiffs] complaint should not have been dismissed under Rule 4(m).”).

"[I]f the delay in service was the result of a delay by court staff or the USMS in fulfilling their obligations, [the plaintiffs] complaint should not have been dismissed under Rule 4(m)."


Context: The proffered justification may derive from strongly-held religious or fundamentally traditional beliefs, but still does not provide a legally recognizable rational basis for sustaining a law that actively discriminates against legally married couples. The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages.

"Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages"

See Perry II, 671 F.3d at 1089, 2012 WL 372713, at *23 (holding that “the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality”); see also Perry, 704 F.Supp.2d at 972 (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”); In re Levenson, 587 F.3d at 932 (this governmental interest “is largely irrelevant to the rational basis analysis here because the same-sex couples who seek the benefits are already married.

holding that "the argument that withdrawing the designation of 'marriage' from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality"


Context: By describing the location of the keys which would provide entry into the closet, Milian provided additional evidence of his consent to the search. Appellant argues that this case is distinguishable from cases such as Allison in which the keys are physically presented and more closely analogous to cases in which the defendant gives a qualified or equivocal response and fails to present officials with the keys.

defendant says nothing but permits law enforcement agent to retrieve key from defendant's pocket

See United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979) (defendant expresses willingness but inability to open trunk because of damage to rear of car and absence of trunk key); cf. United States v. Ester, 442 F.Supp. 736, 738 (S.D.N.Y.1977) (defendant says nothing but permits law enforcement agent to retrieve key from defendant’s pocket).


Context: The district court properly dismissed Figueroa's due process claim and medical deliberate indifference claim against all defendants except defendants Grafton, Johnson, and Ryan because Figueroa failed to allege facts sufficient to state any plausible claim for relief.

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally construed, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); see also Toguehi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (setting forth requirements for a deliberate indifference claim and stating that negligence is insufficient to establish a constitutional violation); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (setting forth the elements of a § 1983 claim against a private entity performing a government function).


setting forth the elements of a SS 1983 claim against a private entity performing a government function


Context: Plaintiff's EEOC charge alleged race and- gender discrimination and, in a separate section, specifically discussed her departmental trial under the heading "unfair and ungrounded discipline" as a ground for discriminatory treatment. (See Schowengerdt Decl. Ex. N.) Plaintiff's claims related to subsequent developments in the same disciplinaiy process, including the finding of guilt and the recommendation that Plaintiff be terminated, were therefore properly exhausted because she alleges they occurred "in the same manner and for substantially the same reasons."

Tullo v. City of Mount Vernon, 237 F.Supp.2d 493, 498 (S.D.N.Y.2002) (finding claim related to termination following EEOC charge was properly exhausted); see also Rommage v. MTA Long Island R.R., No. 08-CV-836, 2010 WL 4038754, at *7 (E.D.N.Y. Sept. 30, 2010) (finding claim related to termination following EEOC charge was properly exhausted because EEOC charge included allegations of unfounded discipline and termination claim alleged an equivalent "method of discrimination”).

finding claim related to termination following EEOC charge was properly exhausted because EEOC charge included allegations of unfounded discipline and termination claim alleged an equivalent "method of discrimination"


Context: Applying this test, we conclude that suppression is not required for the district court's authorization of wiretaps beyond the court's territorial jurisdiction.

holding that authorization of a wiretap order beyond the territorial restrictions in 18 U.S.C. SS 2518(3) does not require suppression because the statutory violation would not implicate Congress's core concerns underlying Title III

See Adams v. Lankford, 788 F.2d 1493, 1500 (11th Cir. 1986) (holding that authorization of a wiretap order beyond the territorial restrictions in 18 U.S.C. § 2518(3) does not require suppression because the statutory violation would not implicate Congress’s core concerns underlying Title III).

But see United States v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013) (concluding that territorial jurisdiction is a core concern of Title III).


Context: At the fee determination stage, the district judge must protect the class's interest by acting as a fiduciary for the class.

"[A]n agent must be located to oversee the relationship between the class and its lawyers," and "[traditionally, that agent has been the court."

See Cendant, 264 F.3d at 231 (“[T]he District Court acts as a fiduciary guarding the rights of absent class members^]”); Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 280-81 (7th Cir.2002) (“We and other courts have gone so far as to term the district judge in the settlement phase of a class action suit a fiduciary of the class, who is subject therefore to the high duty of care that the law requires of fiduciaries.”); Report of the Third Circuit Task Force, Court Awarded Attorneys Fees, 108 F.R.D. 237, 251 (1985) (The court “must monitor the disbursement of the' fund and act as a fiduciary for those who are supposed to benefit from it, since typically no one else is available to perform that function.”); cf. Cendant, 264 F.3d at 255 (“[A]n agent must be located to oversee the relationship between the class and its lawyers,” and “[traditionally, that agent has been the court.”).

"[T]he District Court acts as a fiduciary guarding the rights of absent class members^]"


"We and other courts have gone so far as to term the district judge in the settlement phase of a class action suit a fiduciary of the class, who is subject therefore to the high duty of care that the law requires of fiduciaries."


The court "must monitor the disbursement of the' fund and act as a fiduciary for those who are supposed to benefit from it, since typically no one else is available to perform that function."


Context: In fact, Elsen testified in his deposition that there were LMC documents- "under the control of Barry Carroll in a storage facility at his residence." (R. 256, Pl.'s Resp. to Carroll's Mot. to Strike, Elsen Dep. at 56.) "When a party has produced the document in question in response to a subpoena or discovery request, he has implicitly authenticated the document."

admitting evidence where that evidence was found in a criminal raid on a place under a defendant's control and the evidence otherwise appeared to have been belong to the defendant

United States v. Lawrence, 934 F.2d 868, 871-72 (7th Cir.1991); United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir.1997) (admitting evidence where that evidence was found in a criminal raid on a place under a defendant’s control and the evidence otherwise appeared to have been belong to the defendant); see also United States v. Munoz, 16 F.3d 1116, 1121 (11th Cir.1994) (finding that documents may be found authentic where there are discovered in the defen dant’s possession); Brown & Williamson Tobacco Corp. v. Jacobson, 644 F.Supp. 1240, 1253 (N.D.Ill.1986).

finding that documents may be found authentic where there are discovered in the defen dant's possession


Context: Further, .Dunaway's collateral counsel also did not elicit any testimony from any of the other jurors or the alternate juror called at the June 20.04 hearing showing that [W.H.] had disclosed to them any information about the crime scene. None of the individuals called to testify at the June 2004 proceeding indicated [W.H.] ever disclosed any information from visiting the crime scene.

holding that '[bjecause the defendant in this case has failed to show that the experiment [conducted by a juror] resulted in the introduction of facts that might have unlawfully -influenced the verdict rendered, we find that the juror's action does not warrant a new trial'

See Reed v. State, 547 So.2d 596, 598 (Ala.1989) (holding that ‘[bjecause the defendant in this case has failed to show that the experiment [conducted by a juror] resulted in the introduction of facts that might have unlawfully -influenced the verdict rendered, we find that the juror’s action does not warrant a new trial’); see also Reynolds v. City of Birmingham, 723 So.2d 822, 826 (Ala.Crim.App.1998) (finding that juror misconduct did not warrant a new trial because ‘[t]he jurors in the present case all stated that they were basing their decision on the officers’ testimony rather than any statements of allegations coming from the investigating juror’); Ex parte Dawson, 710 So.2d at 476 (holding ‘[bje-cause Dawson failed to show that the juror’s viewing of the crime scene resulted in the introduction of facts that might have unlawfully influenced the jury’s verdict, a new trial is not warranted’).

finding that juror misconduct did not warrant a new trial because '[t]he jurors in the present case all stated that they were basing their decision on the officers' testimony rather than any statements of allegations coming from the investigating juror'


Context: Furthermore, this court has rejected the suggestion that IDEA administrative litigation is categorically less complex than other forms of litigation, and reaffirms that IDEA cases are sufficiently complex to allow application of the Laffey Matrix.

See Jackson, 696 F.Supp.2d at 102 (holding that IDEA administrative proceedings, which require expert testimony regarding whether a student has been denied a FAPE, are sufficiently complex to warrant application of the Laffey Matrix); Nesbit, Civ. No. 01-2429, at 1 (refusing to create an exception to the application of the Laffey Matrix for IDEA litigation); see also Cox, 754 F.Supp.2d at 76 (holding that counsel must have specialized knowledge of the bureaucracy and practices of DCPS to handle IDEA cases).


Context: As an alternative, the continuing course of conduct doctrine has also been applied to toll the statute of limitations. In its modern formulation, we have held that in order "[t]o support a finding of a 'continuing course of conduct' that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the 'act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act."

no continuing duty on defendant's part after completion of roof installation

Fichera v. Mine Hill Corp., supra, 207 Conn. 209-10 (no evidence to support continuing duty on part of defendant after property sold); see, e.g., Connell v. Colwell, supra, 214 Conn. 242 (improper reliance on theory); Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 464 A.2d 18 (1983) (no continuing duty on defendant’s part after completion of roof installation); Prokolkin v. General Motors Corp., supra, 170 Conn. 289 (continuing course of conduct theory inappropriate in strict product liability action); Handler v. Remington Arms Co., supra, 144 Conn. 316 (applying continuing course of conduct doctrine to toll statute of limitations on the basis of continuing duty to warn of defective cartridge by manufacturer); Vilcinskas v. Sears, Roebuck & Co., supra, 144 Conn. 174 (continuing course of conduct inapplicable where act completed by sale of air rifle).


continuing course of conduct theory inappropriate in strict product liability action


applying continuing course of conduct doctrine to toll statute of limitations on the basis of continuing duty to warn of defective cartridge by manufacturer


continuing course of conduct inapplicable where act completed by sale of air rifle


Context: Thus, because the court's findings had not yet been made for purposes of Rule 52(b) when Marie filed her motion for further findings of fact and conclusions of law, it is understandable that the court regarded her motion as moot when it entered its written judgment and denied the motion. In these circumstances, however, the correct response would have been to dismiss the motion as premature and allow Marie to file a proper motion, if she wished to do so, after the judgment was entered.

See Boynton v. Adams, 331 A.2d 370, 373 n. 2 (Me.1975) (affirming the trial court’s denial of a motion for relief from judgment as premature because it was filed before the judgment was entered); cf. Dyar Sales & Mach. Co. v. Mininni, 132 Me. 79, 81, 166 A. 620, 621 (1933) (affirming the denial of a motion for a directed verdict that was prematurely raised before the close of all the trial evidence).

affirming the trial court's denial of a motion for relief from judgment as premature because it was filed before the judgment was entered


Context: The medical evidence is not disputed by the USPS on this appeal, although the USPS argues that Ms. Malloy's disrespectful statements and inadequate performance warrant her removal from service. However, when mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against the employee.

the employee's testimony that "he was under severe emotional distress at the time he committed the acts in question" must be considered in assessing the reasonableness of the penalty

See Hanna v. Dep’t of Army, 42 M.S.P.R. 233, 241 (1989) (the employee’s testimony that “he was under severe emotional distress at the time he committed the acts in question” must be considered in assessing the reasonableness of the penalty); see also Robb v. Dep’t of Def, 77 M.S.P.R. 130, 133 (1997) (“An employee in an AWOL-based adverse action may rely upon medical evidence of illness not previously submitted to the agency as a defense to the action.”).

"An employee in an AWOL-based adverse action may rely upon medical evidence of illness not previously submitted to the agency as a defense to the action."