Context: However, determining the precise point at which a temporary investigative detention has ripened hito a warrantless arrest is no more susceptible to a blight-line rule than is determining when a suspect is "in custody."

observing that there are "difficult line-drawing problems in distinguishing an investigative stop from a defacto arrest" and declining to adopt a "bright line" rule demarcating one from the other

See, e.g., United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (observing that there are “difficult line-drawing problems in distinguishing an investigative stop from a defacto arrest” and declining to adopt a “bright line” rule demarcating one from the other); Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996) (“[t]here is no bright-line rule to determine when an investigatory stop becomes an arrest” (citing United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988))); see also Ah Loo, 94 Hawai'i at 210, 10 P.3d at 731. Nevertheless, it is self-evident that a temporary investigative detention in the absence of sustained and coercive questioning is “noncustodial,” whereas an arrest is “custodial.” See Ah Loo, 94 Hawai'i at 210, 10 P.3d at 731. Accordingly, an arrestee is obviously “in custody” whether or not, in retrospect, the arresting officer had probable cause to effect the arrest in the first place.

observing that an officer's failure to state, "I place you under arrest," does not preclude an arrest from occurring where an officer's action makes it clear to the defendant that he or she is not free to leave and holding that an officer who had probable cause to arrest took custody of the defendant by ordering him to leave a toilet stall, stand up against a wall, and remain subject to his commands

Cf. State v. Delmondo, 54 Haw. 552, 557, 512 P.2d 551, 554 (1973) (observing that an officer’s failure to state, “I place you under arrest,” does not preclude an arrest from occurring where an officer’s action makes it clear to the defendant that he or she is not free to leave and holding that an officer who had probable cause to arrest took custody of the defendant by ordering him to leave a toilet stall, stand up against a wall, and remain subject to his commands); State v. Ortiz, 4 Haw.App. 143, 662 P.2d 517 (“[a]n arrest occurs where the defendant clearly understands that he [or she] is not free to go and no ‘magic words’ such as, T place you under arrest,’ are required” (citations omitted)), affirmed, 67 Haw. 181, 683 P.2d 822 (1984).


Context: The state argues that plaintiff's claims are barred by the doctrine of laches. See New York State's Memo at 8. Although, as discussed above, plaintiff asserts that there are no time-bar defenses to this action, and that application of such a defense would be violative of both the separation of powers doctrine and the Supremacy Clause, this Court has already determined that application of a statute of limitations is proper and bars plaintiff's claims. However, separate and apart from the statute of limitations, this court finds that plaintiff's claims would be additionally barred by both laches and public policy.

See County of Oneida, 470 U.S. at 261-73, 105 S.Ct. at 1265-72 (Stevens, J., dissenting) (wherein Justice Stevens offered a detailed explanation of, and approval to, application of the doctrine of laches to ancient land claims); but see, id. at 244-45, n. 16, 105 S.Ct. at 1256-57, n. 16 (suggesting that application of laches to bar Indian land claims is inappropriate) (citations omitted).


Context: The fact that Summerrain did not personally accept a check from Debtor but instead authorized an employee of Independant Paralegal Associates to do so does not change this conclusion because Summer-rain admits she personally placed the money order, along -with Debtor's filings, in the mail. Moreover, the acts of Independant Paralegal Associates' employees are imputable to the partnership and to Summer-rain, as general partner.

Cf. In re Frontier Airlines, 108 B.R. 274, 276-77 (D.Colo.1989) (misleading advice of court clerk cannot extend jurisdiction deadline for filing notice of appeal); In re Furst, 206 B.R. 979 (10th Cir. BAP 1997) (advising pro se litigant that advice from court clerk is “merely advice and cannot excuse a failure to meet fundamental jurisdictional requirements.”).

See Gomez, 259 B.R. at 384 (finding acts of an employee of corporate petition preparer imputable to corporation); Bank of Denver v. Southeastern Capital Group, Inc., 763 F.Supp. 1552, 1560 (D.Colo.1991) (recognizing “well-established Colorado rule that partners are jointly and severally liable for the wrongs of the partnership.”)- Summer-rain’s argument that she relied on statements of a clerk of the Bankruptcy Court is also misplaced as reliance on statements of court employees cannot justify failure to comply with the clearly written statutory requirements of Section 110.


advising pro se litigant that advice from court clerk is "merely advice and cannot excuse a failure to meet fundamental jurisdictional requirements."


recognizing "well-established Colorado rule that partners are jointly and severally liable for the wrongs of the partnership."


Context: In the final analysis, our right under principles of federalism to stand as the final word on the Iowa Constitution is settled, long-standing, and good law.

"It is fundamental that state courts be left free and unfettered by us in interpreting their state con stitutions."

See Ochoa, 792 N.W.2d at 281-86, 287-91 (rejecting the United States Supreme Court’s interpretation of the Fourth Amendment as permitting warrantless, suspicionless searches of parolees based on parole status alone); Bierkamp v. Rogers, 293 N.W.2d 577, 579 (Iowa 1980) (“The result reached by the United States Supreme Court in construing the federal constitution is persuasive, but not binding upon this court in construing analogous provisions in our state constitution.”); State v. Tonn, 195 Iowa 94, 104-05, 191 N.W. 530, 535-36 (1923) (rejecting the exclusionary rule adopted by the United States Supreme Court for seizures of evidence by federal agents); see also Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920, 924 (1940) (“It is fundamental that state courts be left free and unfettered by us in interpreting their state con stitutions.”)- As more fully elucidated by the concurring opinion, state constitutions have been a crucial font of equality, civil rights, and civil liberties from the incipience of our republic.

rejecting the United States Supreme Court's interpretation of the Fourth Amendment as permitting warrantless, suspicionless searches of parolees based on parole status alone


"The result reached by the United States Supreme Court in construing the federal constitution is persuasive, but not binding upon this court in construing analogous provisions in our state constitution."


rejecting the exclusionary rule adopted by the United States Supreme Court for seizures of evidence by federal agents


Context: The district court properly concluded that Miller failed to exhaust his administrative remedies on his Title VII and RA. claims because he failed'to complete the negotiated grievance procedure..

a federal employee who is a union member and alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a negotiated grievance procedure, but "he cannot pursue both avenues, and his election is irrevocable"

See Vinieratos, 939 F.2d at 767-68 (“Title VII spe cifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit.”); Boyd, 752 F.2d at 418-14 (the same requirement applies to RA claims); see also Vinieratos, 989 F.2d at 768 (a federal employee who is a union member and alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a negotiated grievance procedure, but “he cannot pursue both avenues, and his election is irrevocable”).

"Title VII spe cifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit."


Context: Because the bankruptcy judge in this case neither dismissed the petition nor converted Debtors' petition to a Chapter 7 petition, the district court's order was not final.

denial of confirmation of Chapter 13 plan not "final" order

See Maiorino v. Branford Sav. Bank, 691 F.2d 89, 91 (2d Cir.1982) (denial of confirmation of Chapter 13 plan not “final” order); see also In re Pleasant Woods Assoc. Ltd. Partnership, 2 F.3d 837 (8th Cir.1993) (per curiam) (dismissing appeal from denial of confirmation of Chapter 11 plan); In re MCorp Financial, Inc., 139 B.R. 820 (S.D.Tex.1992) (same).


Context: Here, the Sheriff has raised the failure-to-exhaust claim for the first time in his motion for summary judgment. As a result, the argument has been waived.

See, e.g., Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir.1997); Baker v. Chicago Fire & Burglary Detection, Inc., 489 F.2d 953, 955 (7th Cir.1973); MCI Telecomm. Corp. v. Ameri-Tel, Inc., 852 F.Supp. 659, 666 (N.D.Ill.1994) (affirmative defense raised for first time in response to summary judgment motion was waived); see also Simmons v. Ellena, No. 96 C 6797, 2002 WL 31176161, at *2 (N.D.Ill. Sept. 30, 2002) (defendants waived failure-to-exhaust argument under PLRA by failing to raise it as an affirmative defense).


Context: First, there has been no satisfactory showing that nonpayment was aimed at pressuring QSOR into doing something "in the conduct of any [ongoing] trade or commerce." Mass.Gen.L. ch. Second, although the cases which dot the chapter 93A landscape tend to be fact-specific, even sui gen-eris, we think they are generally supportive of the proposition that a setoff which proved unwarranted could not, in and of itself, be classified as abridging some established concept of mercantile fairness.

Compare, e.g., Stromberg, 456 F.Supp. at 851 (pressure or coercive threat, causally linking use of legal remedy to course of business dealings, required for chapter 93A violation) (dicta); Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 489 N.E.2d 185, 195 (1986) (groundlessness of claim is not an element of abuse of process); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 390 N.E.2d 243, 251 (1979) (breach of contract, standing alone, does not constitute a chapter 93A violation); Cohen v. Hurley, 20 Mass.App. 439, 480 N.E.2d 658, 660 (1985) (no abuse of process where claim frivolous if brought only to defeat opponent in court); see also Broadway Management Services, Ltd. v. Cullinet Software, Inc., 652 F.Supp. 1501, 1504 (D.Mass.1987) (litigating with concurrent intent to burden defendant with cost is not abuse of process without collateral motive or design to coerce); Jones v. Brockton Public Markets, Inc., 369 Mass. 387, 340 N.E.2d 484, 485 (1975) (no cause of action absent use of process for ulterior or illegitimate purpose); cf. Pepsi-Cola, 754 F.2d at 18 (withholding of monies legally owed to achieve some extortionate goal transgresses chapter 93A).


no cause of action absent use of process for ulterior or illegitimate purpose


withholding of monies legally owed to achieve some extortionate goal transgresses chapter 93A


groundlessness of claim is not an element of abuse of process


breach of contract, standing alone, does not constitute a chapter 93A violation


no abuse of process where claim frivolous if brought only to defeat opponent in court


Context: Finally, a portion of the alleged breaching conduct -- defendants' failure to mail payments due under the Agreement to Sea Tow headquarters in New York -- occurred in New York.

finding venue appropriate in New York where "New York City was clearly the contractually designated place where performance by the defendants was due" and the loan agreement at issue "expressly directed payments from and disbursements to [the defendant] to be made [by plaintiff] in New York City bank accounts"

See Concesionaria, 307 F.Supp.2d at 560 (finding venue appropriate in New York where “New York City was clearly the contractually designated place where performance by the defendants was due” and the loan agreement at issue “expressly directed payments from and disbursements to [the defendant] to be made [by plaintiff] in New York City bank accounts”); Saltzman v. La. Auction Exch., Inc., 997 F.Supp. 537, 541 (S.D.N.Y. 1998) (finding venue appropriate in New York where “payment under the terms of [the parties’] agreement was due to plaintiff in New York”); cf. Zumft v. Doney Slate Co., 698 F.Supp. 444, 446 (E.D.N.Y.1988) (finding that the “fact that ... payments were made” to New York under a contract did not, by itself, provide for proper venue in New York).

finding that the "fact that ... payments were made" to New York under a contract did not, by itself, provide for proper venue in New York


finding venue appropriate in New York where "payment under the terms of [the parties'] agreement was due to plaintiff in New York"


Context: In short, Burd's defensive theory was the only issue in the case and the evidence relating to it was hotly disputed in each detail. This leads us to conclude that the second Almanza factor likewise weighs in favor of finding egregious harm.

See Al-manza, 686 S.W.2d at 172 (describing fundamental errors as those which “vitally affect [a] defensive theory”); see also Villarreal, 393 S.W.3d 867, 876 (concluding that state of evidence also weighed in favor of finding egregious harm where primary contested issue at trial was whether Villarreal acted in self-defense and conflicting evidence was presented regarding circumstances surrounding the stabbing).

describing fundamental errors as those which "vitally affect [a] defensive theory"


Context: In many instances, as here, an officer may reasonably conclude, in light of the totality of the circumstances, that illegal drugs discovered in a vehicle in close proximity to a defendant in the vehicle are jointly or constructively possessed by that defendant and the other vehicle occupants.

concluding that there was probable cause to arrest a defendant where, notably, there were "[f]ive plastic glassine baggies of cocaine ... behind the back-seat armrest ... accessible to all three men" riding in the vehicle and "[u]pon questioning, the three men failed to offer any information with respect to the ownei'ship of the cocaine"

See Maryland v. Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (concluding that there was probable cause to arrest a defendant where, notably, there were “[f]ive plastic glassine baggies of cocaine ... behind the back-seat armrest ... accessible to all three men” riding in the vehicle and “[u]pon questioning, the three men failed to offer any information with respect to the ownei’ship of the cocaine”); United, States v. McKissick, 204 F.3d 1282, 1292 (10th Cir.2000) (concluding that the government established “the necessary nexus” between the driver of the jointly occupied vehicle and the narcotics and, more specifically, noting that “[t]he observance of drugs in plain view is a compelling circumstance from which knowledge may be inferred”); cf. United States v. Bowen, 437 F.3d 1009, 1016 (10th Cir.2006) (noting that defendant’s “proximity to the drugs would be insufficient evidence [of possession], when considered in isolation, ... [b]ut when considered with the rest of the evidence presented, his close proximity to the drugs is probative” (emphases added)).

noting that defendant's "proximity to the drugs would be insufficient evidence [of possession], when considered in isolation, ... [b]ut when considered with the rest of the evidence presented, his close proximity to the drugs is probative" (emphases added


concluding that the government established "the necessary nexus" between the driver of the jointly occupied vehicle and the narcotics and, more specifically, noting that "[t]he observance of drugs in plain view is a compelling circumstance from which knowledge may be inferred"


Context: Although the Courts recognize a certain degree of judgment and discretion is required for a government employee to transport an individual as part of his or her job, when the actionable conduct occurs during routine driving situations, the driver is not entitled to sovereign immunity.

holding no immunity to an officer who was transporting an inmate in need of prenatal care because the special security risks inherent in transporting a prisoner did not impact the deputy's operation of the vehicle at the time of the accident

See Fitzgerald v. Perry, 84 Va. Cir. 96, 98 (Roanoke County 2012) (holding no immunity to an officer who was transporting an inmate in need of prenatal care because the special security risks inherent in transporting a prisoner did not impact the deputy’s operation of the vehicle at the time of the accident); see also Ferro v. Shifflett, 72 Va. Cir. 298, 303 (Prince William Co. 2006) (reiterating the principle that, “while every person driving a car must make myriad decisions, in ordinary driving situations, the duty of care is a ministerial obligation” in holding a social worker who was transporting a minor runaway was not entitled to sovereign immunity).

reiterating the principle that, "while every person driving a car must make myriad decisions, in ordinary driving situations, the duty of care is a ministerial obligation" in holding a social worker who was transporting a minor runaway was not entitled to sovereign immunity


Context: The presumptive cap mostly takes away the discretion afforded to the district court in the statute.

concluding that a fee-shifting provision in the Bankruptcy Code does not allow for "[t]ime spent litigating a fee application"

See 42 U.S.C. § 1988(b) (“[T]he court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs... .”). , Congress knows how to set caps on fee applications and has done so in other contexts, yet it did not do so in § 1988. See, e.g., Baker Botts LLP v. ASARCO LLC, — U.S. -, 135 S.Ct. 2158, 2165, 192 L.Ed.2d 208 (2015) (concluding that a fee-shifting provision in the Bankruptcy Code does not allow for “[t]ime spent litigating a fee application”); In re Meese, 907 F.2d 1192, 1203 (D.C. Cir. 1990) (holding that the Independent Counsel Reauthorization Act does not permit fees claimed for the preparation of a fee application); cf. Kaseman v. Dist. of Columbia, 444 F.3d 637, 643 (D.C. Cir. 2006) (holding that fee-cap provision in the Individuals with Disabilities Education Act applies to both merits time before administrative agency and fees for fees time in court). Section 1988 does not contain a similar limitation.


holding that the Independent Counsel Reauthorization Act does not permit fees claimed for the preparation of a fee application


Context: As plaintiffs have chosen to litigate far from their home forums, any inconvenience they would suffer if compelled to litigate in Wisconsin would likely be less than the inconvenience defendants would experience litigating in California, particularly considering the relative size of the parties' businesses. The court therefore concludes that this factor slightly favors transfer.

concluding that the convenience of the parties weighed in favor of transferring a copyright infringement action from the Northern District of Illinois to the Eastern District of Wisconsin, because the plaintiff copyright holder was a large corporation that would not be burdened by litigating in Wisconsin, while the alleged infringer was a "one-man operation" that would face a great burden if forced to litigate in Illinois

See Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 989 (E.D.N.Y.1991) (“[W]here a disparity between the parties exists, such as an individual plaintiff suing a large corporation, the court may also consider the relative means of the parties in determining whether to transfer”); see also Tensor Group, Inc. v. All Press Parts & Equipment, Inc., 966 F.Supp. 727, 728-29 (N.D.Ill.1997) (concluding that the convenience of the parties weighed in favor of transferring a copyright infringement action from the Northern District of Illinois to the Eastern District of Wisconsin, because the plaintiff copyright holder was a large corporation that would not be burdened by litigating in Wisconsin, while the alleged infringer was a “one-man operation” that would face a great burden if forced to litigate in Illinois).

"[W]here a disparity between the parties exists, such as an individual plaintiff suing a large corporation, the court may also consider the relative means of the parties in determining whether to transfer"


Context: Finally, insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner's due process rights.

See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980) (if prison officials know of pervasive risk of harm to prisoner and fail to protect that prisoner, prisoner has a viable section 1983 claim for violation of his constitutional rights), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981).

Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982) (right to personal security protected by substantive due process and not extinguished by imprisonment); Escamilla v. City of Santa Ana, 796 F.2d 266, 269-70 (9th Cir.1986) (police have a duty to protect individuals if there is a “custodial relationship”).


police have a duty to protect individuals if there is a "custodial relationship"


Context: Telegroup responds that claims arising from the purchase or sale of a security under SS 510(b) include claims predicated on post-issuance conduct.

holding that claims alleging that the debtor fraudulently induced the claimants to retain securities they had purchased from the debtor arise from the purchase or sale of those securities, for purposes of SS 510(b

See In re Geneva Steel Co., 260 B.R. 517 (B.A.P. 10th Cir.2001) (holding that claims alleging that the debtor fraudulently induced the claimants to retain securities they had purchased from the debtor arise from the purchase or sale of those securities, for purposes of § 510(b)); In re Granite Partners, L.P., 208 B.R. 332, 333-34 (Bankr.S.D.N.Y.1997) (holding that claims that debtor fraudulently induced claimants to retain debtor’s securities arise from the purchase or sale of those securities); see also In re Lenco, Inc., 116 B.R. 141 (Bankr.E.D.Mo.1990) (holding that claims for ERISA violations arose from the purchase or sale of debtor’s securities).

holding that claims for ERISA violations arose from the purchase or sale of debtor's securities


holding that claims that debtor fraudulently induced claimants to retain debtor's securities arise from the purchase or sale of those securities


Context: I am further troubled by my colleagues' willingness to decide this thorny Fourth Amendment question despite the availability of a much more straightforward (and less controversial) means to the same end.

describing the Court's "usual custom of avoiding decision of constitutional issues *unnecessary to the decision of the case before us"

See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (describing the Court’s “usual custom of avoiding decision of constitutional issues •unnecessary to the decision of the case before us”); Ashwander v. TVA 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“The court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); see also Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 343-44, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (same); United States v. Ajlouny, 629 F.2d 830, 840 (2d Cir.1980) (declining to “adjudicate the [constitutional question of the] lawfulness of the surveillance” at issue in the case because the court did “not believe it would be appropriate to apply the exclusionary rule in this case, even if the surveillance were unlawful and did lead to any trial evidence”), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981).

declining to "adjudicate the [constitutional question of the] lawfulness of the surveillance" at issue in the case because the court did "not believe it would be appropriate to apply the exclusionary rule in this case, even if the surveillance were unlawful and did lead to any trial evidence"


Context: The trial judge's inquiry failed to ask directly whether prospective jurors had been exposed to pretrial publicity; instead, the judge conflated that question with the broader inquiry whether, notwithstanding their presumed exposure to such publicity, they could render a verdict based solely on the evidence adduced at trial. Not only does such questioning confuse the two lines of inquiry, but it allows jurors to assess their own impartiality before the court even has determined the extent of their exposure to the media. Indeed, this latter flaw alone can rise to the level of reversible error in cases where extreme pretrial publicity has inflamed the local community against the defendants.

"The juror is poorly placed to make a determination as to his own impartiality."

See Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888, 81 L.Ed.2d 847 (1984) (“[Ajdverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.”); see also United States v. Davis, 583 F.2d 190, 197 (5th Cir.1978) (“The juror is poorly placed to make a determination as to his own impartiality.”); Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir.1968) (“[Wjhether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror’s own assessment of self-righteousness without something more.”) (emphasis omitted).

"[Ajdverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed."


"[Wjhether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror's own assessment of self-righteousness without something more."


Context: Although the Fourth Circuit has not yet addressed the validity of acts in violation of the automatic stay, it does recognize that the stay is intended to provide debtors significant protection. Additionally, courts within this circuit have adopted the majority position.

"Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect."

See In re Clarkson, 168 B.R. 93, 94 (Bankr.D.S.C. 1994) (“Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect.”) (citation omitted); In re Lampkin, 116 B.R. 450, 453 (Bankr.D.Md.1990) (“This court will adhere to the general rule that violations of the stay are void.”); In re Burns, 112 B.R. 763, 765 (Bankr.E.D.Va. 1990) (“Bankruptcy Courts have generally held that actions taken in violation of the automatic stay are void, and this Court finds no reason to disregard the general rule here.”); but see Blue Ridge Bank v. Boswell (In re Boswell), 206 B.R. 421, 423 (Bankr.W.D.Va.1997) (holding that annulment of the automatic stay can be retroactively applied to validate proceedings that otherwise would be void).


"This court will adhere to the general rule that violations of the stay are void."


"Bankruptcy Courts have generally held that actions taken in violation of the automatic stay are void, and this Court finds no reason to disregard the general rule here."


Context: The argument is made that a challenge to the adequacy of testing may implicate labeling concerns since additional testing might disclose the need for further warnings. The court is unwilling to read the preemption provision so broadly, particularly in light of the presumption against preemption which counsels a narrow construction of preemption provisions such as that at issue here.

Public Health Cigarette Smoking Act of 1969 did not preempt claims that relied solely on defendants' testing or research practices or other actions unrelated to advertising or promotion

See Worm, 5 F.3d at 747 (while claims resting on failure to warn or communicate information about product through labeling are preempted, claims for negligent testing, manufacturing and formulating are not preempted); DerGazarian v. Dow Chem. Co., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt plaintiffs’ claim that defendant failed to use ordinary care in formulation, inspection and testing'of product); Wright v. Dow Chem. Co., 845 F.Supp. 503 (M.D.Tenn.1993) (FIFRA does not preempt non-labeling claims for defective design and failure to properly test and study the pesticides in question); cf. Cipollone, 505 U.S. at-, 112 S.Ct. at 2622 (Public Health Cigarette Smoking Act of 1969 did not preempt claims that relied solely on defendants’ testing or research practices or other actions unrelated to advertising or promotion).


FIFRA does not preempt plaintiffs' claim that defendant failed to use ordinary care in formulation, inspection and testing'of product


FIFRA does not preempt non-labeling claims for defective design and failure to properly test and study the pesticides in question


Context: Such a statement generally arises after the informant has been caught in the act. In this case, however, the confidential informant did not make a statement against his penal interest, as was the case in Read, upon which the state relies.

See Read, 416 A.2d at 686-87, 689 (informant admitted to purchasing marijuana from the address that police later searched pursuant to a search warrant); see also Harris, 403 U.S. at 575-76, 583, 91 S.Ct. 2075 (informant admitted to purchasing illicit whiskey from address controlled by the defendant); United States v. Tyler, 238 F.3d 1036, 1038-39 (8th Cir.2001) (informant identified the defendant as his supplier of drugs); State v. Grossi, 588 A.2d 607, 608 (R.I.1991) (informant implicated himself in a drug-smuggling ring involving the defendant); State v. Germano, 559 A.2d 1031, 1035 (R.I.1989) (informant admitted to purchasing cocaine from the defendant).


informant implicated himself in a drug-smuggling ring involving the defendant


Context: The District Court likewise did not err in dismissing Express' Rule 60 motion. It is well established that Rule 60 is not a proper vehicle for extending the time to file an appeal that has been rendered untimely by the expiration of the thirty-day time window provided by Rule 4(a).

See also Bowles, 551 U.S. at 206-07, 127 S.Ct. 2360 (District Court lacks authority to extend time for appeal beyond constraints of Rule 4(a)).

"[T]he courts of appeals who have addressed this question have uniformly held that the albeit harsh time constraints of Rule 4(a

See West v. Keve, 721 F.2d 91, 96 (3d Cir.1983) (“[T]he courts of appeals who have addressed this question have uniformly held that the albeit harsh time constraints of Rule 4(a) must control and that Rule 60(b) cannot be used as a means of avoiding dismissal for want of a timely appeal.”).


Context: As in the case of the November 25, 1986 statement, there is no evidence that rebuts Buddy's affidavit. We conclude, therefore, that the district court did not err in ruling that suit on any of the claims could not be based on the statements of October 10, 1986.

See Green v. DeCamp, 612 F.2d 368, 372 (8th Cir.1980) (release of state legislative committee report to news reporting and publishing agencies is legitimate legislative activity); see also Consumers Union of United States, Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1350 (D.C.Cir.1975) (rules gov erning press privileges in House and Senate galleries are “an integral part of the legislative machinery” and decisions pursuant thereto are protected), cert. denied, 423 U.S. 1051, 96 S.Ct. 780, 46 L.Ed.2d 640 (1976).

rules gov erning press privileges in House and Senate galleries are "an integral part of the legislative machinery" and decisions pursuant thereto are protected


Context: The district court dismissed Pappas' complaint not because there is no Oklahoma duty to use reasonable care with persons in custody, but because Pappas did not demonstrate that conduct by a private person akin to that alleged in his complaint would constitute a violation of the duty of care under Oklahoma law. Pappas argues the district court failed to identify any Oklahoma state law that would bar his claim, but the court was under no obligation to do so. As the party averring jurisdiction, Pappas -- the FTCA plaintiff -- bears the burden of proof to establish' that ' the court possesses subject-matter jurisdiction based upon analogous Oklahoma private liability.

See Miller v. United States, 710 F.2d 656, 662 (10th Cir.1983) (holding plaintiff bears the burden of proving the district court has subject matter jurisdiction to consider FTCA claim); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (holding the law presumes that a cause lies outside the limited jurisdiction of the federal courts and “the burden of establishing the contrary rests upon the party asserting jurisdiction”).

holding the law presumes that a cause lies outside the limited jurisdiction of the federal courts and "the burden of establishing the contrary rests upon the party asserting jurisdiction"


Context: The court may hold a summary judgment motion in abeyance, even pending an evidentiary hearing. This practice has long been a common one.

affirming district court's judgment after district court held motion for summary judgment in abeyance, conducted an evi-dentiary hearing, and then granted summary judgment

See also United States v. Peery, 862 F.2d 567, 568 (6th Cir.1988) (affirming district court’s judgment after district court held motion for summary judgment in abeyance, conducted an evi-dentiary hearing, and then granted summary judgment).

See, e.g., Davis v. Grimes, 64 F.Supp.3d 268, 270-71 (D.Mass.2014) (holding summary judgment motions in abeyance for possible evidentia-ry hearing); Ohio Valley Envtl. Coal., Inc. v. U.S. Army Corps of Engineers, 883 F.Supp.2d 627, 633 (S.D.W.Va.2012) (holding cross-motions for summary judgment in abeyance, conducting a four-day eviden-tiary hearing, and then disposing of the motions), aff'd, 716 F.3d 119 (4th Cir.2013); Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., No. 09-2518-JAR, 2012 WL 5512340, at *1 (D.Kan. Nov. 14, 2012) (holding evidentiary hearing on defense of judicial estoppel after parties filed cross-motions for summary judgment); Flamand v. Am. Int’l Grp., Inc., 876 F.Supp. 356, 366 (D.P.R.1994) (holding portions of summary judgment motion in abeyance pending an evidentiary hearing); S. Indus. Realty, Inc. v. Noe, 628 F.Supp. 92, 93 (D.P.R.1986) (“[T]he Court held in abeyance its decision on the FDIC’s cross-motion for summary judgment pending an evidentiary hearing on the limited issue of actual knowledge of fraud.”), aff'd, 814 F.2d 1 (1st Cir.1987); Klanseck v. Prudential Ins. Co. of Am., 509 F.Supp. 13, 17 (E.D.Mich.1980) (“[T]he Court has reached the conclusion that the determination of Defendant’s Motion For Summary Judgment requires an evidentiary hearing to adduce evidence in support of the ... defense relied on by defendant.”); Mahaska State Bank v. Weiler (In re Weiler), Adv.


Cf. Wolgast v. Richards, 463 B.R. 445, 452 (E.D.Mich.2012) (holding Federal Rule of Civil Procedure 11 motion in abeyance pending resolution of a bankruptcy proceeding).


holding cross-motions for summary judgment in abeyance, conducting a four-day eviden-tiary hearing, and then disposing of the motions


holding evidentiary hearing on defense of judicial estoppel after parties filed cross-motions for summary judgment


holding portions of summary judgment motion in abeyance pending an evidentiary hearing


"[T]he Court held in abeyance its decision on the FDIC's cross-motion for summary judgment pending an evidentiary hearing on the limited issue of actual knowledge of fraud."


Proc. No. 01-20105, 2003 WL 25932294, at *1 (Bankr.S.D.Iowa May 27, 2003) (con ducting evidentiary hearing on cross-motions for summary judgment in adversary proceeding); Anderson v. Beardsley (In re Beardsley), 118 B.R. 120, 121 (Bankr. M.D.Fla.1990) (“The Court held a final evidentiary hearing on the Motions for Summary Judgment and finds the relevant matters as established at the hearing to be as follows.... ”).


"The Court held a final evidentiary hearing on the Motions for Summary Judgment and finds the relevant matters as established at the hearing to be as follows.... "


Context: This approach was elaborated and applied in district court cases after Hodel. These decisions are consistent with holdings of circuit courts that changes in roads on R.S. 2477 rights of way across federal lands are subject to regulation by the relevant federal land management agencies.

See Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.1994) (holding that “regardless whether the trails in question are public highways under R.S.[ ] 2477, they are nonetheless subject to the Forest Service regulations”); United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988) (holding that proposed improvements to an R.S. 2477 route in a National Preserve is subject to regulation by the National Park Service); see also United States v. Jenks, 22 F.3d 1513, 1518 (10th Cir.1994) (holding that the owner of a patent or common law easement across national forest lands had to apply for a special use permit).

holding that "regardless whether the trails in question are public highways under R.S.[ ] 2477, they are nonetheless subject to the Forest Service regulations"


holding that proposed improvements to an R.S. 2477 route in a National Preserve is subject to regulation by the National Park Service


Context: If either of these two factors are found, "a substantial increase may be appropriate." The offense level involved here, see U.S.S.G. SS 2B1.2 ("Receiving, Transporting, Transferring, Transmitting, or Possessing Stolen Property"), does not reflect the risk of personal injury. That factor, therefore, along with the nature of the determination of "the extent to which death or serious injury was intended or knowingly risked," vests a great deal of discretion in the district court in this case.

pre-Guidelines case, which, in an analogous situation, analyzed whether death resulted from defendant's conduct in terms of cause in fact and proximate cause

See United States v. Melton, 883 F.2d 336 (5th Cir.1989) (30-year departure sentence under § 5K2.1 not excessive for death of kidnapping victim, who panicked and jumped out of kidnapper’s car); United States v. Salazar-Villarreal, 872 F.2d 121, 122 (5th Cir.1989) (upward departure under § 5K2.1 justified on the basis of “reckless flight” of defendant transporting illegal aliens “and the resulting death and injury which [flight] caused”); cf. United States v. Spinney, 795 F.2d 1410, 1415-16 (9th Cir.1986) (pre-Guidelines case, which, in an analogous situation, analyzed whether death resulted from defendant’s conduct in terms of cause in fact and proximate cause).

30-year departure sentence under SS 5K2.1 not excessive for death of kidnapping victim, who panicked and jumped out of kidnapper's car


upward departure under SS 5K2.1 justified on the basis of "reckless flight" of defendant transporting illegal aliens "and the resulting death and injury which [flight] caused"


Context: As we have explained, we can discern no reason on the current record to support counsel's decision not to call Samee and Robinson as witnesses to testify at trial. Nevertheless, because a determination of whether to grant Branch's petition turns on the reasons why his counsel did not call Samee and Robinson to testify and those reasons have not been developed in the record, an evidentiary hearing is required here.

"Of course, overcoming the strategic presumption does not, in itself, entitle Thomas to relief. It merely gives him the opportunity to show that counsel's conduct fell below objective standards of attorney conduct."

See, e.g., Wilson v. Butler, 813 F.2d 664, 672 (5th Cir.1987) (remanding for evi-dentiary hearing because the record did not reflect whether trial counsel made a reasonable strategic decision not to present certain evidence); see also Thomas, 428 F.3d at 501 (“Of course, overcoming the strategic presumption does not, in itself, entitle Thomas to relief. It merely gives him the opportunity to show that counsel’s conduct fell below objective standards of attorney conduct.”).


Context: This Court's precedent clearly prohibits lack of remorse as evidence of an aggravating factor. However, this Court has permitted evidence of lack of remorse to rebut proposed mitigation, such as remorse and rehabilitation.

holding "that lack of remorse is admissible to rebut evidence of remorse or other mitigation such as rehabilitation"

See Singleton v. State, 783 So.2d 970, 978 (Fla.2001) (holding “that lack of remorse is admissible to rebut evidence of remorse or other mitigation such as rehabilitation”); cf. Derrick v. State, 581 So.2d 31, 36 (Fla.1991) (finding that although lack of remorse is permitted to rebut evidence of remorse or rehabilitation, the trial court erred in permitting the State to present evidence of lack of remorse before the defense presented any testimony).


Context: [S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.") (citations and internal quotation marks omitted). Thus, because a traffic violation provides an objective basis for the initial stop of an automobile, the subjective motivations of the police in making a stop do not affect the constitutional analysis.

indicating that an officer's subjective motivations for stopping a car are irrelevant when "there is probable cause to believe that he has committed a traffic violation"

See al-Kidd, 131 S.Ct. at 2082 (“Our unanimous opinion [in Whren, 517 U.S. at 810, 813,116 S.Ct. 1769] held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive.”); Whren, 517 U.S. at 812, 116 S.Ct. 1769 (“Not only have we never held, outside the context of inventory search or administrative inspection ..., that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary.”); Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (“We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”); United States v. Robinson, 414 U.S. 218, 221 n. 1, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (stating that a traffic violation arrest would not be unconstitutional if it were “a mere pretext for a narcotics search”); see also United States v. Grier, 127 Fed.Appx. 712, 715 (5th Cir.2005) (indicating that an officer’s subjective motivations for stopping a car are irrelevant when “there is probable cause to believe that he has committed a traffic violation”).

"Our unanimous opinion [in Whren, 517 U.S. at 810, 813,116 S.Ct. 1769] held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive."


"We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action."


stating that a traffic violation arrest would not be unconstitutional if it were "a mere pretext for a narcotics search"


Context: A regulation serving a protectionist purpose is obviously invalid since a discriminatory purpose is a fortiori illegitimate.

invalidating legislation with legitimate goals since even valid purposes may not be accomplished "by the illegitimate means of isolating [the county] from the national economy"

Id. 437 US. at 626, 98 S.Ct. at 2536; see also Fort Gratiot Landfill v. Michigan Department of Natural Resources, 504 U.S. 353, 359, 112 S.Ct. 2019, 2024, 119 L.Ed.2d 139 (1992) (invalidating legislation with legitimate goals since even valid purposes may not be accomplished “by the illegitimate means of isolating [the county] from the national economy”).

See Philadelphia v. New Jersey, 437 U.S. at 624, 98 S.Ct. at 2535 (characterizing a statute with a protectionist purpose as virtually per se invalid). More benign purposes, however, do not immunize the statute from the challenge since “the evil of protectionism can reside in legislative means as well as legislative ends.”


Context: Moreover, I believe that this suspicion reasonably warranted the three-minute time intrusion imposed on appellant while Officer Beauchamp investigated further by conducting an open-air canine search of the exterior of the rental car. Therefore, I would hold that appellant's continued detention did not cross the sometimes fine Fourth Amendment line between law enforcement officers' possession of articu-lable facts justifying continuation of a traffic stop detention for further investir gation and law enforcement officers' continuation of a traffic stop detention in a "fishing expedition" effort to obtain articu-lable facts or probable cause.

holding that officers' third pat-down search of appellant almost thir ty-five minutes into traffic stop violated Fourth Amendment

Compare Davis, 947 S.W.2d at 245 (recognizing that officers’ continued detention of appellant because he did not look like someone on a business trip was not based on articulable facts giving rise to reasonable suspicion of criminal activity); see also Dortch, 199 F.3d at 200-01 (holding that officers’ third pat-down search of appellant almost thir ty-five minutes into traffic stop violated Fourth Amendment).

recognizing that officers' continued detention of appellant because he did not look like someone on a business trip was not based on articulable facts giving rise to reasonable suspicion of criminal activity


Context: Wahl cannot use a request for evidentiary hearing to overcome deficiencies in his pleadings. An evidentiary hearing on a motion to set aside a default judgment is not a matter of right, but requires first that- the- motion meet the pleading requirements of Rule 74.05(c).

See id. at 26; Boatmen’s First Nat’l Bank v. Krider, 802 S.W.2d 531, 532 (Mo.App.W.D.1991) (defaulting party entitled to a hearing where she filed an affidavit, a proposed answer with her motion to set aside, and requested an evidentiary hearing); but see, McClelland v. Progressive Cas. Ins. Co., 790 S.W.2d 490, 493-94 (Mo.App.S.D.1990) (no evidentiary hearing necessary because inclusion of an unverified police report with motion, while sufficient to raise inference that loss was caused by arson, it was insufficient to support alleged meritorious defense that the arson was caused by insured).


Context: Unlike in the cases cited by USCIRF, GhoriAhmad is not suing on these documents, or basing her claim on any rules or agreements set forth therein. See Prince George's Hasp.

rejecting the district courts "virtually exclusive reliance on the contract language as indicative of appellant's employment status" and requiring review of "all of the circumstances surrounding Spirides' work relationship" in addition to the contract language

See Spirides, 613 F.2d at 833 (rejecting the district courts "virtually exclusive reliance on the contract language as indicative of appellant’s employment status” and requiring review of "all of the circumstances surrounding Spirides' work relationship” in addition to the contract language).

permitting consideration of contractual documents that were "central to [plaintiff's] claims"

Ctr. v. Advantage Health Plan, Inc., 865 F.Supp.2d 47, 51 (D.D.C.2012) (permitting consideration of contractual documents that were "central to [plaintiff’s] claims”); In re APA Assessment Fee Litig., 862 F.Supp.2d 1, 8 (D.D.C.2012) (reviewing membership bylaws where "plaintiffs’ claim revolve[d] around whether payment of [a] special assessment was required for membership”); Strumsky v. Washington Post Co., 842 F.Supp.2d 215, 218 (D.D.C.2012) reconsideration denied, 922 F.Supp.2d 96 (D.D.C.2013) (reviewing benefit plan documents where "plaintiff’s entire complaint centers on the retirement benefits that he contends he is entitled to receive”). The Court also notes that even valid, integrated contractual agreements do not conclusively answer the employee/independent contractor question — as Spirides itself held.


reviewing membership bylaws where "plaintiffs' claim revolve[d] around whether payment of [a] special assessment was required for membership"


reviewing benefit plan documents where "plaintiff's entire complaint centers on the retirement benefits that he contends he is entitled to receive"


Context: Moreover, the district court concluded that none of the statutory amendments eliminated the nonuniform provisions of the KC-PMC, possibly giving rise to an exception to home rule authority. We agree and note that Subsection (c)(4) of the Home Rule Amendment specifically states that a charter ordinance "may be repealed or amended only by charter ordinance or by enactments of the legislature applicable to all cities."

Compare Bigs, 271 Kan. at 460 (otherwise disapproved by State ex rel. Kline v. Board of Comm’rs of Unified Gov’t of Wyandotte Co./KC, 277 Kan. 516, 85 P.3d 1237 (2004) (legislative amendment of statute at issue operated to repeal charter ordinance where amendment eliminated nonuniform provisions); see also Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 680, 8 P.3d 701 (2000) (noting legislature amended Local Retailers’ Sales Tax Act uniformly applicable after Court of Appeals decision in Home Builders, 22 Kan. App. 2d 649). We recognized in Kline, that “[s]ince the adoption of Article 12, § 5 of the Kansas Constitution, the State can preempt a city’s authority only by making the provisions of [an act] uniformly applicable to all cities.”

noting legislature amended Local Retailers' Sales Tax Act uniformly applicable after Court of Appeals decision in Home Builders, 22 Kan. App. 2d 649


Context: The plain language of the immunity provision indicates that its purpose is to grant persons who comment about a judicial officer absolute protection from civil or criminal liability, even .when criticism leveled against a judge is a false statement of fact that damages the judge's reputation. Thus, the provision would set forth a new common law defamation standard when the subject of a critical comment is a judicial officer.

See Keohane v. Stewart, 882 P.2d 1293, 1299 (Colo.1994) (the First Amendment does not confer absolute immunity upon those who criticize a judicial officer on a matter of public concern); see also In re Proposed Petition “Petition Procedures”, 900 P.2d 104, 109 (Colo.1995) (proposed initiative contained multiple subjects which both altered the procedures for filing petitions and created substantive “fundamental rights” unrelated to these procedural changes).

proposed initiative contained multiple subjects which both altered the procedures for filing petitions and created substantive "fundamental rights" unrelated to these procedural changes


Context: To the extent that Wade attempts to challenge summary judgment on his claims for supervisory SS 1983 liability and negligence, Wade waived the right to appeal these issues by failing to file timely objections to the magistrate judge's findings and recommendation regarding summary judgment.

See Martinez v. Ylst, 951 F.2d 1153, 1156 & n. 4 (9th Cir.1991) (failure to object to determinations reviewed de novo is a factor to be weighed in favor of finding waiver on appeal); cf. also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980) (appellant who failed to object to magistrate judge’s findings and did not raise the issue until reply waived the issue on appeal).

appellant who failed to object to magistrate judge's findings and did not raise the issue until reply waived the issue on appeal


Context: It follows a fortiori from United Haulers that Kentucky must prevail. In United Haulers, we explained that a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors.

"Laws favoring local government ... may be directed toward any number of legitimate goals unrelated to protectionism"

See id., at 343,127 S.Ct., at 1796 (“Laws favoring local government ... may be directed toward any number of legitimate goals unrelated to protectionism”); see also id., at 344, 127 S.Ct., at 1796 (noting that “[w]e should be particularly hesitant to interfere ... under the guise of the Commerce Clause” where a local government engages in a traditional government function).

noting that "[w]e should be particularly hesitant to interfere ... under the guise of the Commerce Clause" where a local government engages in a traditional government function


Context: Therefore, we hold that the requirement contained in West Virginia Constitution art. VIII, SS 7, that candidates for the office of circuit judge must have been admitted to the practice of law in the State for five years prior to their election advances the State's compelling interest in securing and maintaining a judiciary well qualified in the law of the jurisdiction.

See also Trafelet v. Thompson, 594 F.2d 623, 627 (7th Cir.1979), cert. denied, 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979) (equal protection clause does not prohibit adoption of more rigorous standards for assuring excellence in the judiciary than for other elective offices).

See Bullock v. State of Minnesota, 611 F.2d 258 (8th Cir.1979) (similarly constituted provision held to serve compelling state interest); Kraft v. Harris, 18 Wash.App. 432, 568 P.2d 828 (1977) (city charter provision that a corporation counsel candidate must have been practicing law in City of Seattle at least four years held to be reasonable requirement).


Context: Applying this principle, courts have "held that information which is to be communicated to the public or others is not privileged." Similarly, "[documents which merely communicate information obtained from independent sources are not protected by the attorneyclient privilege."

"business documents sent to corporate officers and employees, as well as the corporation's attorneys, do not become privileged automatically"

See also Simon, supra, 816 F.2d at 403 (“business documents sent to corporate officers and employees, as well as the corporation’s attorneys, do not become privileged automatically”).

"Funneling papers past corporate counsel will not shield the communications from disclosure"

Sneider, supra, 91 F.R.D. at 5 (“Funneling papers past corporate counsel will not shield the communications from disclosure”).


Context: Second, Agent Knoll's testimony about the "in furtherance of' element of the alien smuggling statute was permissible under Rule 702(a). Although Agent Knoll's testimony could be read to suggest that any movement away from the border "furthers" an alien's illegal presence in the country, his commentary was neither an incorrect statement of the law nor so likely to cause confusion to justify excluding it under Rule 702(a).

"[A] factfinder may consider any and all relevant evidence bearing on the 'in furtherance of element (time, place, distance, reason for trip, overall impact of trip, defendant's role in organizing and/or carrying out the trip

See United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir.1999) (“[A] factfinder may consider any and all relevant evidence bearing on the ‘in furtherance of element (time, place, distance, reason for trip, overall impact of trip, defendant’s role in organizing and/or carrying out the trip).” (emphasis added)); see also United States v. Hernandez, 327 F.3d 1110, 1113-14 (10th Cir.2003) (reversing judgment of acquittal on “in furtherance of’ element where evidence showed defendant drove semi-truck, in which checkpoint officials discovered several undocumented aliens, from the border town of El Paso to the permanent checkpoint north of Las Cruces).

reversing judgment of acquittal on "in furtherance of' element where evidence showed defendant drove semi-truck, in which checkpoint officials discovered several undocumented aliens, from the border town of El Paso to the permanent checkpoint north of Las Cruces


Context: At oral argument debtor urged us to consider these conversations illustrative of debtor's "conducting" the farming of its acreage. The courts below rejected this suggestion, and so do we. In order for debtor to be characterized as "conducting" the farming of its acreage within the meaning of SS 101(17)(B), some member of the Wargo family must at minimum play an active role in the farming operation taking place on its land.

corporate debtor which leases farmland to tenant under crop share arrangement considered "engaged in farming" only if family members of debtor "take an active role in the operation"

See In re Burke, 81 B.R. 971, 976 (Bankr.S.D.Iowa 1987) (corporate debtor which leases farmland to tenant under crop share arrangement considered “engaged in farming” only if family members of debtor “take an active role in the operation”); In re Mikkelsen Farms, Inc., 74 B.R. 280, 285 (Bankr.D.Or.1987) (though corporate debt- or leased all of its farmland in crop year 1987, debtor eligible for Chapter 12 relief because it, through its principals, had planted and harvested crops in 1986, the year in which it filed its petition).

corporation receives income from a farming operation if income is "derived from its own farming or production efforts as opposed to the farming or production efforts of others"

Cf. In re Dakota Lay’d Eggs, 57 B.R. 648, 656 (Bankr.D.N.D.1986) (corporation receives income from a farming operation if income is “derived from its own farming or production efforts as opposed to the farming or production efforts of others”). As the District Court observed, the conversations just described do not distinguish the role played by the Wargo family in the production of crops on debtor’s acreage from that of an absentee landlord doing business in the corporate form who simply owns land and leases it to a tenant farmer from year to year. In re Tim Wargo & Sons, Inc., 86 B.R. at 151. The “conduct” element of § 101(17)(B) serves to exclude from Chapter 12 eligibility those corporations which bear so attenuated a connection with the farming operation itself.


though corporate debt- or leased all of its farmland in crop year 1987, debtor eligible for Chapter 12 relief because it, through its principals, had planted and harvested crops in 1986, the year in which it filed its petition


Context: Again based on the limited record before us, Wilford's Sixth Amendment claim may not have merit. Even though Wilford's Sixth Amendment right to counsel had attached to other charges, adversary judicial criminal proceedings may not have been initiated in regard to the charges of this case at the time he was interrogated by law enforcement.

holding that "a defendant's statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses"

See Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (holding that “a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses”).

stating that "the right to counsel under either the Sixth Amendment or article I, section 16, [Florida Constitution,] is offense-specific"

See also Smith v. State, 699 So.2d 629, 639 (Fla.1997) (stating that “the right to counsel under either the Sixth Amendment or article I, section 16, [Florida Constitution,] is offense-specific”).


Context: If so, then he lacked access to other inmates who might have written a grievance for him. We have stated that, when inmates cannot comply with grievance procedure without essential help from prison officials and that assistance is withheld, the failure of the officials to facilitate the grievance process effectively renders administrative remedies unavailable.

holding that defendants are "estopped from raising non-exhaustion as an affirmative defense when prison officials inhibit an inmate's ability to utilize grievance procedures"

See Dale, 376 F.3d at 656 (vacating grant of summary judgment for defendants on failure-to-exhaust defense where inmate submitted evidence that prison officials failed to respond to his requests for required grievance forms); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (holding that administrative remedies are unavailable if prison officials fail to respond to prisoners’ grievances); see also Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004) (holding that defendants are “estopped from raising non-exhaustion as an affirmative defense when prison officials inhibit an inmate’s ability to utilize grievance procedures”); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.2003) (holding that district court erred in dismissing inmate’s complaint for failure to exhaust administrative remedies when court did not address inmate’s allegation that prison officials failed to provide necessary grievance forms); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001) (explaining that grievance process “is not an ‘available’ remedy under § 1997e(a)” if prison officials prevent its use).


holding that district court erred in dismissing inmate's complaint for failure to exhaust administrative remedies when court did not address inmate's allegation that prison officials failed to provide necessary grievance forms


explaining that grievance process "is not an 'available' remedy under SS 1997e(a


holding that administrative remedies are unavailable if prison officials fail to respond to prisoners' grievances


Context: A comparison of the Commonwealth's memorandum in support of its original motion with that of its motion for reconsideration reveals that the latter simply rehashes the arguments set forth in the former. This is not enough to merit reconsideration.

"A motion for reconsideration is not a means by which parties can rehash previously made arguments."

See In re Wedgestone Fin., 142 B.R. 7, 8 (Bankr.D.Mass.1992) (“A motion for reconsideration is not a means by which parties can rehash previously made arguments.”); see also Froudi v. United States, 22 Cl.Ct. 290, 300 (1991) (“Generally, a motion for reconsideration is not a vehicle for giving an unhappy litigant an additional chance to sway the judge, nor is it intended to allow a party to make arguments already presented to, and rejected by, the court.”); Renfro v. City of Emporia, 732 F.Supp. 1116, 1117 (D.Kan.1990) (“A party’s failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend.”), aff'd, 948 F.2d 1529 (10th Cir.1991), cert. dismissed, 503 U.S. 915, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992).

"A party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend."


Context: If the Court does not have jurisdiction, it does not have the power to decide defendant's motion.

"Because a holding that the district court lacked removal jurisdiclion would end our inquiry, we first address the district court's denial of [plaintiff's] motion to remand the case to state court for lack of jurisdiction."

See Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194 (2d Cir.2005) ("Because a holding that the district court lacked removal jurisdiclion would end our inquiry, we first address the district court’s denial of [plaintiff's] motion to remand the case to state court for lack of jurisdiction.”); see also Cotter v. Milly LLC, No. 09 Civ. 04639(PGG), 2010 WL 286614, at *2 (S.D.N.Y. Jan. 22, 2010) ("Because the issue of proper removal involves this Court’s subject matter jurisdiction, it must be decided prior to [defendant’s] motion to dismiss under Rule 12(b)(6).”).

"Because the issue of proper removal involves this Court's subject matter jurisdiction, it must be decided prior to [defendant's] motion to dismiss under Rule 12(b)(6)."


Context: We agree with several other circuits which have considered the issue that, with respect to a Class III device that has undergone the PMA process, such claims are preempted because they undoubtedly would add requirements "different from, or in addition to," those set forth in the MDA. "FDA approval of a premarket application shows the FDA has reviewed a device's testing, design specifications, intended use, manufacturing method, performance standard, and labelling, ... and decided the device is safe and effective."

Martello v. Ciba Vision Corp., 42 F.3d 1167, 1169 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995) (citing 21 U.S.C. §§ 360c(a)(2), 360e(c)(1)); see also Ministry of Health, Province of Ontario, Can. v. Shiley, Inc., 858 F.Supp. 1426, 1438-39 (C.D.Cal.1994) (stating that “a finding of negligence would mean implicitly finding that the FDA approval was not good enough,” and that a successful strict liability claim would require a court to hold that the product was unsafe and dangerous “in opposition to the contrary determination made by the FDA”); cf. Slater, 961 F.2d at 1332-33 (indicating that claims for inadequate testing, defective design, and failure to warn were preempted in case involving device not subject to PMA process).

stating that "a finding of negligence would mean implicitly finding that the FDA approval was not good enough," and that a successful strict liability claim would require a court to hold that the product was unsafe and dangerous "in opposition to the contrary determination made by the FDA"


Context: The district court properly dismissed the retaliation claims because Manning did not sufficiently allege that any defendant retaliated against him for exercising a specific constitutional right.

See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003) (explaining that plaintiff must allege that he was retaliated against for exercising a constitutional right and that the retaliatory action did not advance a legitimate peno-logical goal); see also Taylor v. List, 880 F.2d 1040, 1045-46 (9th Cir.1989) (finding conclusory allegations insufficient to establish that any individual prison official acted in retaliation for protected conduct).


Context: At the same time, exaggerating the extent of one's pain to obtain narcotic pain medication and seeking it from multiple sources can also be evidence of a strong desire for the narcotics themselves and even addiction. In addition, less than honest efforts to obtain such medications certainly bear on the credibility of the claimant.

"Contrary to Ms. Poppa's assertion that the only evidence of drug-seeking behavior is a 'single, isolated remark in the record,' ... there is sufficient evidence in the record to support the ALJ's determination that Ms. Poppa's credibility about her pain and limitations was compromised by her drug-seeking behavior."

See Poppa v. Astrue, 569 F.3d 1167, 1172 (10th Cir.2009) (“Contrary to Ms. Poppa’s assertion that the only evidence of drug-seeking behavior is a ‘single, isolated remark in the record,’ ... there is sufficient evidence in the record to support the ALJ’s determination that Ms. Poppa’s credibility about her pain and limitations was compromised by her drug-seeking behavior.”); see also Anderson v. Shalala, 51 F.3d 777, 780 (8th Cir.1995) (observing that claimant’s “drug-seeking behavior further discredits her allegations of disabling pain”); Simila v. Astrue, 573 F.3d 503, 520 (7th Cir.2009).

observing that claimant's "drug-seeking behavior further discredits her allegations of disabling pain"


Context: Thus, Griffin is not serving a statutory mandatory minimum sentence, and Alleyne does not apply to his case. In any event, AUeyne does not apply retroactively on collateral review.

holding the Apprendi rule does not apply retroactively in the context of a SS 2241 petition

See Dohrmann v. United States, 442 F.3d 1279, 1281-82 (11th Cir.2006) (holding the Apprendi rule does not apply retroactively in the context of a § 2241 petition); see also McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001) (holding that Apprendi does not apply retroactively to claims raised in a § 2255 motion); Teague v. Lane, 489 U.S. 288, 310-11, 109 S.Ct. 1060, 1075-76, 103 L.Ed.2d 334 (1989).

holding that Apprendi does not apply retroactively to claims raised in a SS 2255 motion


Context: Although the United States is not a party to this case and is immune from any lawsuit brought against it by Staff Sergeant Maseth's estate and any contribution action brought against it by KBR, given the facts established by KBR regarding the military's decision-making at the base, the Court cannot preclude KBR from presenting its evidence which attempts to place responsibility on the military for the accident involving Staff Sergeant Maseth.

United States immune from soldier's claim against United States military for injuries incident to service

See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (United States immune from soldier’s claim against United States military for injuries incident to service); see also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Feres doctrine extended to bar third party’s claim for contribution or indemnity against United States arising from soldier’s injuries incident to service). Simply put, to permit this case to go forward would place the military and its wartime practices on trial. As a consequence, this case must be dismissed.

Feres doctrine extended to bar third party's claim for contribution or indemnity against United States arising from soldier's injuries incident to service


Context: Moreover, DOMA does not preserve the status quo. The passage of DOMA marks a stark departure from tradition and a blatant disregard of the well-accepted concept of federalism in the area of domestic relations.

"[S]ection three of DOMA was a preemptive strike to bar federal legal recognition of same-sex marriages should certain states decide to allow them, rather than a law that furthered the status quo, which gave the states authority to define marriage for themselves."

See Gill, 699 F.Supp.2d at 392 (finding that DOMA “mark[ed] the first time the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage — or any other core concept of domestic relations, for that matter”); see also Dragovich, 764 F.Supp.2d at 1189 (“[S]ection three of DOMA was a preemptive strike to bar federal legal recognition of same-sex marriages should certain states decide to allow them, rather than a law that furthered the status quo, which gave the states authority to define marriage for themselves.”).

finding that DOMA "mark[ed] the first time the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage -- or any other core concept of domestic relations, for that matter"


Context: Keeping this framework in mind, Defendants' immunity-based affirmative defenses fail for two reasons. First, Plaintiffs are suing the individual Defendants in their official capacities, and therefore they are not entitled to any immunity that the Village does not also possess, meaning they cannot claim qualified or absolute immunity.

"To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state."

Sch. Dist., No. 02-CV-115, 2003 WL 23350123, at *2 (W.D.N.Y. Oct. 16, 2003) (“[The defendant] may not claim the defense of qualified immunity because he was sued in his official capacity.”); cf. Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d-Cir.l993) (“To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.”).

"[The defendant] may not claim the defense of qualified immunity because he was sued in his official capacity."


Context: Therefore, the FDA properly applied its regulations and Barr when it concluded that Mylan's approval with a delayed effective date was a "tentative approval." Furthermore, there are clear public health and safety issues in play that require the FDA to give final effective approval before a generic drug can be introduced into the market.

adopting the FDA's argument that "[approvals do not become effective by operation of law because the FDA has an ongoing health and safety responsibility to perform, and an applicant has no vested right to enter the market until the FDA gives its final formal approval"

Barr, 238 F.Supp.2d at 246 (“Significant events occurring prior to the effective date can, and often must, delay the effective date of ANDA approvals.”); see also Ranbaxy, 307 F.Supp.2d at 19 (adopting the FDA’s argument that “[approvals do not become effective by operation of law because the FDA has an ongoing health and safety responsibility to perform, and an applicant has no vested right to enter the market until the FDA gives its final formal approval”).

"Significant events occurring prior to the effective date can, and often must, delay the effective date of ANDA approvals."


Context: The district court also reduced the fees requested for time spent traveling to 17.5 hours at the hourly rate of $288, as opposed to the requested 35 hours at $375 per hour. Courts often reduce working and non-working travel time.

noting' that generally "it is not an abuse of discretion to discount non-working (and even working

See In re Babckock & Wilcox Co., 526 F.3d 824, 828 (5th Cir.2008) (per curiam) (noting' that generally “it is not an abuse of discretion to discount non-working (and even working) travel time”); see also Watkins v. Fordice, 7 F.3d 453, 458-59 (5th Cir.1993) (holding that the district court did not abuse its discretion by reducing the hourly rate billed by 50% for travel time).


Context: We note that several courts have come to the same or a similar conclusion.

holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant's sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense

See United States v. Corchado, 427 F.3d 815, 820 (10th Cir.2005) (holding that the prior-conviction exception to Blakely permits a sentencing judge to enhance a defendant’s sentence based on the fact that the defendant was on probation and under supervision at the time of the commission of the offense); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (upholding trial judge’s consideration of defendant’s probationary status because “the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception”); cf. Ryle, 842 N.E.2d at 325, 323 n. 5 (holding that judge could rely on presentenee report to determine that defendant was on probation at the time of the offense, but declining to base this holding the theory that “probation is derivative of criminal history”).

holding that judge could rely on presentenee report to determine that defendant was on probation at the time of the offense, but declining to base this holding the theory that "probation is derivative of criminal history"


striking down sentencing increase where judge found that defendant was on supervision because the increased sentence was based on the additional fact-finding that "parole or probation failed to deter defendant from committing further offenses"

But see State v. Jenkins, 199 Or.App. 384, 111 P.3d 782, 782 (2005) (striking down sentencing increase where judge found that defendant was on supervision because the increased sentence was based on the additional fact-finding that “parole or probation failed to deter defendant from committing further offenses”) (internal quotation marks omitted); United States v. Leach, 325 F.Supp.2d 557, 561 (E.D.Pa.2004) (concluding that “Blakely renders [it] impermissible” for the judge to consider the fact that the defendant was on probation at the time he committed the offense).


concluding that "Blakely renders [it] impermissible" for the judge to consider the fact that the defendant was on probation at the time he committed the offense


upholding trial judge's consideration of defendant's probationary status because "the conviction itself and the type and length of a sentence imposed seem logically to fall within [the prior conviction] exception"


Context: 11 But contrary to the MMA, Congress has classified marijuana as a schedule I controlled substance. By doing so, "the manufacture, distribution, or possession of marijuang became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study."

Gonzales v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (state law authorizing possession and cultivation of marijuana does not cireamseribe federal law prohibiting use and possession); see also Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir.2007) (rejecting due process liberty interest claim based on phy-gician's advice to use medical marijuana because "federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering"); accord Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 977 (Colo.App.2011) ("Although Colorado's medical marijuana provision may protect claimant from prosecution under Colorado's criminal laws ... the amendment has no bearing on federal laws, under which marijuana remains an illegal substance.").


Context: However, the appellant in Laird framed the issue not as one of relevance, but as implicating prosecutorial misconduct, and the Court addressed it as such. Id. Of the other jurisdictions that have directly addressed the issues presented, our sister states generally have found such questioning proper, so long as the prosecution does not elicit superfluous facts from prior cases that might confuse the jury.

"We have in fact recognized a host of matters upon which cross-examining counsel may inquire in demonstration of bias, including, for instance, the frequency with which a defense expert testifies for capital defendants."

See Rose v. State, 787 So.2d 786, 798 (Fla.2001) (“We have in fact recognized a host of matters upon which cross-examining counsel may inquire in demonstration of bias, including, for instance, the frequency with which a defense expert testifies for capital defendants.”); State v. Irish, 807 So.2d 208, 213-14 (La.2002); Albarran v. State, 96 So.3d 131, 172-73 (Ala.Crim.App.2011), cert. quashed, 96 So.3d 216 (2012).

attorney's opinion on death penalty was permissible subject for cross-examination

Cf. People v. Bennett, 45 Cal.4th 577, 88 Cal.Rptr.3d 131, 199 P.3d 535, 555-56 (2009) (attorney’s opinion on death penalty was permissible subject for cross-examination).


Context: . We note that the outcome of the first stage will essentially resolve the question of whether plaintiffs can properly rely on the "continuing violation" doctrine and seek relief for alleged acts of discrimination occurring more than 300 days prior to the filing of Thiessen's EEOC charge.

"The second way to establish a continuing violation is to show a systematic policy or practice ol discrimination that operated, in part, within the limitations period -- a systemic violation."

See Purrington v. Univ. of Utah, 996 F.2d 1025, 1028 (10th Cir.1993) (indicating plaintiffs can invoke continuing violation doctrine by demonstrating "the maintenance of a company-wide policy of discrimination both before and during the limitations period”); see also Morgan v. National R.R. Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir.2000) (“The second way to establish a continuing violation is to show a systematic policy or practice ol discrimination that operated, in part, within the limitations period — a systemic violation.”); Lawton v. State Mut. Life Assur.

indicating plaintiffs can invoke continuing violation doctrine by demonstrating "the maintenance of a company-wide policy of discrimination both before and during the limitations period"


Context: This court presumes that in a case of persecution by a governmental body such as a national police force, the government has the ability to persecute the applicant throughout the country.

noting that "a police force controlled by the national government ... would presumably be capable of locating petitioner in other regions of India" and that "petitioner's ability to avoid further persecution by relocating inconspicuously may be limited by his manner of religious dress and his inability to speak the languages or dialects of other regions of India"

See Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir.1986) (government persecution not limited to one geographical area); Singh, 801 F.Supp. at 321 (noting that “a police force controlled by the national government ... would presumably be capable of locating petitioner in other regions of India” and that “petitioner’s ability to avoid further persecution by relocating inconspicuously may be limited by his manner of religious dress and his inability to speak the languages or dialects of other regions of India”) (citing Damaize-Job); cf. Beltran-Zavala v. INS, 912 F.2d 1027, 1030 (9th Cir.1990) (relocation not an option where persecutor is a death squad with “the power to enforce its will”).

relocation not an option where persecutor is a death squad with "the power to enforce its will"


Context: Since there exists no written contract signed by Tudor or its agent, Albrecht's claim for breach of contract is invalid as a matter of law and summary judgment must enter in favor of the defendants.

See Simon v. Simon, 35 Mass.App.Ct. 705, 709 (1994) (whether a sufficient writing exists is a question of law for the court).

See also Bogash v. Studios, Inc., 303 Mass. 207, 207-08 (1939) (holding that where the statute of frauds is pleaded, the burden is on the plaintiff to demonstrate that a sufficient writing exists).


Context: The Hude court, interpreting Sec. 110, noted the lack of a bright-line rule.

See, e.g., Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981) (possession of heroin and a gun at precisely the same time); Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981) (possession of marijuana and LSD at the same time); but see Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984) (no logical relationship between the contemporaneous crimes of theft by receiving stolen property and possession of a controlled substance).


Context: The Government contends that the DEA agents did have Torres' consent. However, assuming the agents did not have consent, the remainder of the affidavit provided sufficient probable cause to justify the issuance of the warrant.

United States v. Lace, 669 F.2d 46, 49 (2d Cir.1982) (ultimate inquiry on motion to suppress is not whether underlying affidavit contained allegations based on illegally seized evidence, but whether, putting aside all tainted allegations, lawful information in affidavit suffices to show probable cause); United States v. Agapito, 620 F.2d 324, 338 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980); see United States v. Giordano, 416 U.S. 505, 554-56, 94 S.Ct. 1820, 1845-46, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part); see e.g., James v. United States, 418 F.2d 1150, 1151 (D.C.Cir.1969) (“when an affidavit in support of a search warrant contains information that is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the issuance of a warrant”); United States v. Epstein, 240 F.Supp. 80, 82 (S.D.N.Y.1965) (Weinfeld, J.) (“[W]hen a warrant issues upon an affidavit containing both proper and improper grounds, and the proper ground — considered alone — are more than sufficient to support a finding of probable cause, inclusion of the improper grounds does not vitiate the entire affidavit and invalidate the warrant”).

"when an affidavit in support of a search warrant contains information that is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the issuance of a warrant"


"[W]hen a warrant issues upon an affidavit containing both proper and improper grounds, and the proper ground -- considered alone -- are more than sufficient to support a finding of probable cause, inclusion of the improper grounds does not vitiate the entire affidavit and invalidate the warrant"


Context: Other courts take a different view of Federal Rule of Civil Procedure 30(b)(6). Unless a corporation can prove that information was unknown or inaccessible, it "cannot later proffer new or different allegations that could have been made at the time of the 30(b)(6) deposition."

"[i]f the designee testifies that [the corporation] does not know the answer. . . [it] will not be allowed effectively to change its answer by introducing evidence during trial"

Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 94 (1998) (binding a corporation to 30(b)(6) testimony where it offered an affidavit in opposition to summary judgment that contained a different theory of facts); see also Ierardi v. Lorillard, Inc., 1991 WL 158911, 1991 U.S. Dist. LEXIS 11887 (E.D. Pa.) (Mem.) ("[i]f the designee testifies that [the corporation] does not know the answer. . . [it] will not be allowed effectively to change its answer by introducing evidence during trial”).


Context: Although the district court allowed this suit to proceed to summary judgment, it needn't have waited that long, for Henderson's claims are so obviously frivolous as to preclude subject matter jurisdiction in federal court.

"[A] frivolous suit does not engage the jurisdiction of the district court."

See Buntrock v. S.E.C., 347 F.3d 995, 997 (7th Cir.2003) (“[A] frivolous suit does not engage the jurisdiction of the district court.”); Gammon v. GC Servs. Ltd. P’ship, 27 F.3d 1254, 1256 (7th Cir.1994); cf. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.2002) (applying the same principle in the context of the Prison Litigation Reform Act).


Context: While Woods did ask the district court to postpone its ruling until he could depose Flores and the officers, he did not file an affidavit outlining his reasons for needing further discovery as contemplated by Rule 56(f). This alone justifies affirmance of the district court's decision.

holding that the court was precluded from considering whether the district court had abused its discretion in ruling on defendant's summary judgment motion before allowing plaintiff to conduct requested discovery where the plaintiff had not filed an affidavit pursuant to rule 56(f

See Wallace v. Tilley, 41 F.3d 296, 302-03 (7th Cir.1994) (holding that the court was precluded from considering whether the district court had abused its discretion in ruling on defendant’s summary judgment motion before allowing plaintiff to conduct requested discovery where the plaintiff had not filed an affidavit pursuant to rule 56(f), and stating that “ ‘when a party does not avail himself of relief under Rule 56(f), it is generally not an abuse of discretion for the district court to rule on the motion for summary judgment’ ” (citation omitted)); see also Jones v. Merchants Nat’l Bank & Trust Company of Indianapolis, 42 F.3d 1054, 1060 (7th Cir.1994); Kinney v. Indiana Youth Ctr., 950 F.2d 462, 466 (7th Cir.1991); Boling v. Romer, 101 F.3d 1336, 1339 n. 3 (10th Cir.1996); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985) (collecting cases); see also Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992) (ruling that unverified statements in an attorney’s memoranda of law alleging a need for a continuance on a motion for summary judgment pending further discovery were insufficient as grounds for a continuance under Rule 56(f), and stating that “[a]dvocacy by counsel does not suffice for evidence or fact in the Rule 56(f) context.”) (citation omitted).

ruling that unverified statements in an attorney's memoranda of law alleging a need for a continuance on a motion for summary judgment pending further discovery were insufficient as grounds for a continuance under Rule 56(f


Context: The administrative defendants have stated that the list has a dollar value of zero. CREW may not agree with this value, but that does not change the fact that CREW has already received that to which it is entitled under the administrative process. The Court will not require the FEC to go through the motions of a process that has already been completed when doing so would yield no new or useful information.

stating that "since the process has progressed as specified in the statute, it seems that [the] plaintifff ] ha[s] received everything [it] is entitled to under the FECA"

See Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C.Cir.2001) (stating that informational injury will not be found if plaintiff cannot show that the legal ruling sought “might lead to additional factual information”); see also Alliance for Democracy v. FEC, 335 F.Supp.2d 39, 48 (D.D.C.2004) (stating that “since the process has progressed as specified in the statute, it seems that [the] plaintifff ] ha[s] received everything [it] is entitled to under the FECA”).

stating that informational injury will not be found if plaintiff cannot show that the legal ruling sought "might lead to additional factual information"


Context: A court must to exclude hours that reflect "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates". This proposition, however, presupposes that the attorneys charging maximum rates readily have junior associates and supporting paralegals at his or her disposal.

See Poston v. Fox, 577 F.Supp. 915, 919-20 (D.N.J.1984) (finding that it is not always possible to delegate in small office); see also Roldan v. Phila. Hous. Auth., Civ. A. No. 95-6649, 1999 WL 1167658, *4, 1999 U.S. Dist. LEXIS 19093, at *14_15 (E.D.Pa.1999) (holding that reduction in rates is unwarranted in office that is understaffed and no less experienced attorney was available to perform tasks).


Context: To be sure, she should be commended for making several payments in the past. But she did not seriously consider the income contingent plan under the William D. Ford Direct Loan Program.

See Tirch, 409 F.3d at 682-83 (debtor did not illustrate good faith when she did not take advantage of the William D. Ford Income Contingent Repayment plan); see also Alderete, 412 F.3d at 1206 & n. 1 (debtors did not prove good faith when they did not consider applying for the income contingent plan, even though the court was not certain they were even eligible for the plan).


Context: The case law describes two lines of cases. In one line, the record may show counsel's entire performance fell below the constitutional minimum. In the other, the record may indicate that counsel, for the most part, provided adequate performance, yet he or she committed a single, critical error that renders the representation ineffective.

holding that counsel's "total failure to conduct pre-trial discovery" constituted ineffective assistance

Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (holding that counsel’s “total failure to conduct pre-trial discovery” constituted ineffective assistance); see also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[T]he right to effective assistance of counsel ... may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial.”); Prou v. United States, 199 F.3d 37, 47, 48 (1st Cir.1999) (finding failure to object to untimely filing that resulted in unlawful mandatory minimum sentence was ineffective assistance); Mason v. Hanks, 97 F.3d 887, 902 (7th Cir. 1996) (finding that failure to raise issue of inadmissible hearsay constituted deficient performance).

"[T]he right to effective assistance of counsel ... may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial."


finding failure to object to untimely filing that resulted in unlawful mandatory minimum sentence was ineffective assistance


finding that failure to raise issue of inadmissible hearsay constituted deficient performance


Context: As in cases involving participant liability, most courts addressing coaching liability claims also consider the plaintiffs knowiedge and experience in the sport.

Id. at 42; see, e.g., Vendrell v. Sch. Dist. No. 26C, 233 Or. 1, 376 P.2d 406 (1962)(affirming judgment in favor of coach and school district because experienced high school football player assumed risk of neck injuries during tackle); cf. Morgan v. New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202, 205-06 (1997)(affirming summary judgment because experienced bobsledder assumed the risk of crash injury).


Context: With respect to Lear's psychological records, Driver argues that the prosecution suppressed a psychological report that was prepared for Lear's sentencing on counterfeiting charges, Lear pled guilty and the report was prepared in the Southern District of Indiana, while Driver was prosecuted in the Southern District of Illinois. Without deciding whether the United States Attorney for the Southern District of Illinois possessed, for the purpose of Brady discovery, information included in a presentence report prepared for a United States District Court for another district, we do not believe the report is material. When he recalled Lear to the stand, Driver elicited the contents of the report, that is, that Lear was addicted to cocaine and marijuana.

See United States v. Sweeney, 688 F.2d 1131, 1141-42 (7th Cir.1982) (nondisclosure of medical reports concerning witness’s drug addiction was not prejudicial because contents of reports were elicited on cross-examination); see also United States v. McMahon, 715 F.2d 498, 501 (11th Cir.) (psychological report was not material because underlying facts were elicited on cross-examination), cert. denied, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (1983) & 465 U.S. 1065, 104 S.Ct. 1413, 79 L.Ed.2d 739 (1984).

nondisclosure of medical reports concerning witness's drug addiction was not prejudicial because contents of reports were elicited on cross-examination


Context: Their decision to so proceed was based on their interpretation of Matthew 18:15-20, an inherently ecclesiastical matter. We hold that court interference with that decision through imposition of tort liability in this case would impinge upon matters of church governance in violation of the First Amendment.

See Milivojevich, 426 U.S. at 713, 96 S.Ct. 2372 (noting that an inquiry into whether the church complied with church laws and regulations is prohibited by the First Amendment); see also United Methodist Church, Baltimore Annual Conference, v. White, 571 A.2d 790, 794 (D.C.1990) (stating “secular evaluation of the procedures that ecclesiastical or cannon law requires the church to follow is precisely the type of inquiry the First Amendment prohibits”); Minker, 894 F.2d at 1358-59 (holding civil courts lack jurisdiction to interpret provisions of the United Methodist Church’s Book of Discipline governing pastoral appointments); Hafner, 616 F.Supp. at 737-39 (dismissing pastor’s suit for alleged denial of benefits based on interpretation of the church synod constitution).

stating "secular evaluation of the procedures that ecclesiastical or cannon law requires the church to follow is precisely the type of inquiry the First Amendment prohibits"


holding civil courts lack jurisdiction to interpret provisions of the United Methodist Church's Book of Discipline governing pastoral appointments


dismissing pastor's suit for alleged denial of benefits based on interpretation of the church synod constitution


Context: In avoiding unwarranted disparities, as in evaluating other key sentencing factors, district courts have enormous discretion. The Supreme Court has consistently instructed us, and we have reminded ourselves, that the appellate courts cannot substitute their judgment for that of the district judge.

"The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court."

See, e.g., id. at 51, 128 S.Ct. 586 (“The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”); see also Koon v. United States, 518 U.S. 81, 97, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.”) (citations omitted); accord Carty, 520 F.3d at 993 (“We may not reverse just because we think a different sentence is appropriate.”); United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.2008) (per curiam) (“Even if we are certain that we would have imposed a different sentence had we worn the district judge’s robe, we can’t reverse on that basis.”) (emphasis added).

"[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence."