Context: To the contrary, they simply served as predicates for the subject litigation. Notably, in respect to the ADA claim, defendant's counsel should have known the basic principle of law that as a precondition to initiating a federal discrimination lawsuit, plaintiff was required to exhaust her administrative remedies, and that failure to do so would be fatal to her case.

"[E]xhaustion of administrative remedies through the EEOC stands as an essential element of Title VII's statutory scheme, and one with which defendants are entitled to insist that plaintiffs comply."

See Francis v. City of New York, 235 F.3d 763, 768 (2d Cir.2000) (“[E]xhaustion of administrative remedies through the EEOC stands as an essential element of Title VII’s statutory scheme, and one with which defendants are entitled to insist that plaintiffs comply.”); see also Joseph v. America Works, Inc., 2002 WL 1033833, at * 5 (S.D.N.Y. May 21, 2002) (claimant must exhaust administrative remedies before bringing ADA claim in federal court).


Context: When drafting that written sentencing opinion, the Court relied on all of the information in the record at that point. The information reviewed and relied upon by the Court included a detailed PSR, which, in practice, generally represents an integral part of a sentencing judge's understanding of a defendant's background, conduct, and future potential.

noting that the presentence report and other materials "typically paint an accurate picture of the defendant and his crime"

See, e.g., United States v. Labbe, 588 F.3d 139, 143 (2d Cir.2009) (“No doubt most sentencing judges have formulated a tentative sentence after reading a [presentence report].”); see also Wilson, 614 F.3d at 227 (noting that the presentence report and other materials “typically paint an accurate picture of the defendant and his crime”).

"No doubt most sentencing judges have formulated a tentative sentence after reading a [presentence report]."


Context: Courts in this district have also expressed a preference, albeit in dicta, for joining IDEA fee claims.

noting that bundling fee applications would "reduce the number of individual lawsuits and ultimately save the parties and the Court time and energy"

See Abraham v. Dist. of Columbia, 338 F.Supp.2d 113, 122 (D.D.C. 2004) (noting that bundling fee applications would “reduce the number of individual lawsuits and ultimately save the parties and the Court time and energy”); Armstrong v. Vance, 328 F.Supp.2d 50, 55-56 (D.D.C.2004) (endorsing “actions that include multiple fee requests” because “while each fee petition will be considered separately, combining them in one complaint avoids burdening the Court with multiple actions”).

"[A]l-though the plaintiffs point out that some courts in this district have expressed in dicta a preference for joining multiple IDEA fee litigation claims in a single case, nothing in those decisions suggests that such a preference permits the joinder of unrelated claims that do not satisfy the requirements of Rule 20(a

But see Davidson, 736 F.Supp.2d at 121 n. 4 (“[A]l-though the plaintiffs point out that some courts in this district have expressed in dicta a preference for joining multiple IDEA fee litigation claims in a single case, nothing in those decisions suggests that such a preference permits the joinder of unrelated claims that do not satisfy the requirements of Rule 20(a).”).


endorsing "actions that include multiple fee requests" because "while each fee petition will be considered separately, combining them in one complaint avoids burdening the Court with multiple actions"


Context: In Insurance Company of North America, we held that California law, not federal common law, applied to a determination of whether theft by an employee constituted "wilful misconduct" under Article 25(1) of the Warsaw Convention.

Ins. Co. of N. Am., 189 F.3d at 919-21. But see id. at 923-29 (W.Fletcher, J., concurring) (disagreeing with the conclusion that California law applied and discussing why federal common law should apply); see also Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1284-87 (11th Cir.1999) (discussing interpretations of “wilful misconduct” for Article 25 purposes in federal circuit courts, none of which applied state law), cert. denied, 528 U.S. 1136, 120 S.Ct. 980, 145 L.Ed.2d 930 (2000); Koirala v. Thai Airways Int’l, Ltd., 126 F.3d 1205, 1208-10 (9th Cir.1997) (relying on Ninth Circuit definition of “wilful misconduct” in affirming district court, which “applied] U.S. federal law” and found that the airline crew’s “wilful misconduct” caused the plane to crash); Saba v. Compagnie Nationale Air France, 78 F.3d 664, 667-69 (D.C.Cir.1996) (relying on federal standard of “willful misconduct” in determining whether Article 25 applied). Under either California law or federal common law, Dazo’s allegations do not establish wilful misconduct for Article 25 purposes.

discussing interpretations of "wilful misconduct" for Article 25 purposes in federal circuit courts, none of which applied state law


relying on Ninth Circuit definition of "wilful misconduct" in affirming district court, which "applied] U.S. federal law" and found that the airline crew's "wilful misconduct" caused the plane to crash


relying on federal standard of "willful misconduct" in determining whether Article 25 applied


Context: We conclude appellant waived review of this issue by failing to object prior to the jury's verdict.

Rule 103(a)(1), SCRE; State v. Hicks, 330 S.C. 207, 499 S.E.2d 209 (1998) (to preserve an issue for appellate review, the objection must be timely made, which usually requires it be made at the earliest possible opportunity); see also State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998) (a new trial motion may not be used to raise an evidentiary issue for the first time); McGee v. Bruce Hosp. Syst., 321 S.C. 340, 468 S.E.2d 633 (1996) (an issue may not be raised for the first time in a motion for a new trial); State v. Penland, 275 S.C. 537, 538, 273 S.E.2d 765, 767 (1981) (finding appellant waived the issue where he did not make a motion for a mistrial until after the verdict).


an issue may not be raised for the first time in a motion for a new trial


finding appellant waived the issue where he did not make a motion for a mistrial until after the verdict


Context: Rather, in DeBoom, we were careful to note the difference between the discriminatory discharge causa tion standard and the "higher" causation standard of claims such as tortious discharge. We have frequently compared tortious discharge under common law and retaliatory discharge under the ICRA, as the two have traditionally possessed similar elements and causation standards.

See Teachout, 584 N.W.2d at 301-02 (stating high causation standard for tortious discharge and comparing to Hulme, a retaliatory discharge case under the ICRA); see also Brown v. Farmland Foods, Inc., 178 F.Supp.2d 961, 979 (N.D. Iowa 2001) (“[T]he Iowa Supreme Court has consistently sought guidance in its common-law retaliatory discharge cases from its decisions involving claims of statutory retaliation, which further demonstrates that the Iowa Supreme Court would analyze these distinct causes of action in a similar manner.”); cf. Scott Rosenberg & Jeffrey Lipman, Developing a Consistent Standard for Evaluating a Retaliation Case Under Federal and State Civil Rights Statutes and State Common Law Claims: An Iowa Model for the Nation, 53 Drake L. Rev. 359, 414-15 (2005) (“The federal courts have used the same approach in defining actionable employment conduct in both statutory and common law cases.”).

"[T]he Iowa Supreme Court has consistently sought guidance in its common-law retaliatory discharge cases from its decisions involving claims of statutory retaliation, which further demonstrates that the Iowa Supreme Court would analyze these distinct causes of action in a similar manner."


Context: Accordingly, insofar as the district court's enhancement of Davila-Rodriguez's sentence as a career offender under SS 4B1.1 involved determinations that he had prior convictions, these determinations did not implicate the Apprendi/Blakely/Booker line of cases. Moreover, to the extent that Davila-Rodriguez's argument can be construed as asserting that Almendarez-Torres is not applicable because the government had to show that his prior convictions, in addition to existing, were "crimes of violence," we also have rejected this argument.

holding that, "whether a previous conviction is a 'crime of violence' is a question of law, not of fact, as it must be determined by interpreting [SS 4B1.2]"

See United States v. Glover, 431 F.3d 744, 749 (11th Cir.2005) (holding that, “whether a previous conviction is a ‘crime of violence’ is a question of law, not of fact, as it must be determined by interpreting [§ 4B1.2]”); see also United States v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir.2005) (holding that the defendant’s argument that the Sixth Amendment requires that a jury, not a judge, must determine whether his prior conviction is within the category of offenses specified in § 2L1.2(b)(1)(A)(vii) was without merit).

holding that the defendant's argument that the Sixth Amendment requires that a jury, not a judge, must determine whether his prior conviction is within the category of offenses specified in SS 2L1.2(b


Context: However, finding that the unchastity category applies to both genders equally avoids any need to examine the serious equal protection clause problem that would otherwise exist.

"prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision."

Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) (“prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.”); see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”) (Brandéis, J., concurring) (internal citation and punctuation omitted).

"When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."


Context: Seventh, while the defendants fault the government for failing to explain the specific reasons for disbelieving them, it is Defendants' burden, not the government's, to make a "substantial" showing that the departure decision was irrational. Normally the general statement of a prosecutor or law enforcement officer that a defendant was unbelievable or unreliable is a sufficient reason to deny a defense motion to compel the government to file a motion for downward departure.

holding that it was not error to deny a motion for an evidentiary hearing regarding a defense motion to compel the government to file a departure motion where, among other things, "the FBI questioned [the defendant's] candor____"

United States v. Nicolace, 90 F.3d 255, 259 (8th Cir.1996) (holding that it was not error to deny a motion for an evidentiary hearing regarding a defense motion to compel the government to file a departure motion where, among other things, “the FBI questioned [the defendant’s] candor____”).

the defendant was not entitled to reduction of the sentence for substantial assistance where, among other things, the prosecutor told the district judge that "the assistance ... turned, out to be unreliable."

See also United States v. Johnigan, 90 F.3d 1332, 1339 (8th Cir.1996) (the defendant was not entitled to reduction of the sentence for substantial assistance where, among other things, the prosecutor told the district judge that “the assistance ... turned, out to be unreliable.”)


Context: 1980 as part of the Civil Rights of Institutionalized Persons Act ("CRIPA"), Pub.L.

declining to extend SS 1997e(a)'s exhaustion provision to Bivens actions

Patsy, 457 U.S. at 508, 102 S.Ct. 2557 (1982) (refusing to require exhaustion for § 1983 claims not covered by the CRI-PA exhaustion provision); see also McCarthy v. Madigan, 503 U.S. 140, 149, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (declining to extend § 1997e(a)’s exhaustion provision to Bivens actions).

refusing to require exhaustion for SS 1983 claims not covered by the CRI-PA exhaustion provision


Context: P 19 We disagree. Although the ordinances at issue here apply to persons who are nude in a public place, fundamentally the Scottsdale Code permits such conduct, rather than bans it. As the Scottsdale City Council noted in "findings" it enacted with the ordinance in 1993, "some activities" associated with sexually oriented businesses no longer may be banned because they "are protected as expression under the First Amendment to the United States Constitution."

See State v. Western, 168 Ariz. 169, 173-74, 812 P.2d 987, 991-92 (1991) (prior Scottsdale city ordinance banning certain striptease performances held void on First Amendment grounds); cf. State v. Gates, 118 Ariz. 357, 359, 576 P.2d 1357, 1359 (1978) (indecent exposure statute may not under the First Amendment be applied to theater and dance); State v. Jones, 177 Ariz. 94, 100, 865 P.2d 138, 144 (App.1993) (invalidating Maricopa County zoning ordinance regulating “adult live entertainment establishments”).


invalidating Maricopa County zoning ordinance regulating "adult live entertainment establishments"


Context: Inherent in the concept of constructive knowledge is what an objective examination of the facts would reveal to a reasonable person. See Black's Law Dietionary 876 (7th ed. 1999) ("Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law"). In other words, rather than requiring a jury to infer actual knowledge on the part of the defendant from circumstantial evidence, we stated in Sidway that a defendant could be "imputed" with knowledge that a reasonable person would have gathered from the circumstances of the accident or impact, i.e., what a reasonable evaluation of the circumstances would reveal.

noting "[i]t is not necessary to show, by direct or circumstantial evidence, that the defendant had actual knowledge of any resultant injury or damage"

Sidway, 139 Vt. at 485-86, 431 A.2d at 1239-40 (noting “[i]t is not necessary to show, by direct or circumstantial evidence, that the defendant had actual knowledge of any resultant injury or damage”). Thus, the trial court’s instruction on constructive knowledge, allowing the jury to impute to defendant knowledge that a reasonable investigation of the circumstances of the accident would reveal, was consistent with the spirit and doctrine of our decision in Sidway, and did not constitute reversible error.

we review substance of jury instructions to determine if the challenged instruction captures the "true spirit and doctrine of the law" to ensure that the jury has not been misled or confused

See State v. Williams, 154 Vt. 76, 81, 574 A.2d 1264, 1267 (1990) (we review substance of jury instructions to determine if the challenged instruction captures the “true spirit and doctrine of the law” to ensure that the jury has not been misled or confused).


Context: . The supreme court has applied the holding of Delgado-Santos even where the statement is made under oath.

See also Ellis v. State, 622 So.2d 991 (Fla.1993) (witness, who was subpoenaed to appear before prosecuting attorney, was put under oath and required to testify before court reporter in nonadversarial setting).

See State v. Smith, 573 So.2d 306 (Fla.1990) (prior statement made under oath to prosecutor and deputy in presence of court reporter).


Context: There is a wealth of cases addressing jurors' use of dictionaries. Courts have almost uniformly found no prejudice to the defendant when the dictionary definition did not vary from the ordinary meaning of the words or from the meaning contained in the trial court's instructions.

no prejudice where definition of "premeditation" was not substantively different from court's instruction

See, e.g., State v. Messenger, 221 Mich.App. 171, 561 N.W.2d 463 (1997) (no prejudice where definition of “premeditation” was not substantively different from court’s instruction); State v. Melton, 102 N.M. 120, 692 P.2d 45 (Ct.App.1984) (no prejudice where definitions of “keep” and “control” did not vary from usual ordinary meaning or from trial court’s instructions); see also Allers v. Riley, 273 Mont. 1, 901 P.2d 600 (1995) (new trial warranted where dictionary definition of “proximate cause” did not contain foreseeability element contained in court’s instruction) (two justices dissented and would have upheld trial court’s denial of mistrial motion based on lack of prejudice).

new trial warranted where dictionary definition of "proximate cause" did not contain foreseeability element contained in court's instruction


no prejudice where definitions of "keep" and "control" did not vary from usual ordinary meaning or from trial court's instructions


Context: Implicit in the case is the suggestion that Green-well's defective notice would have been excusable had she provided follow-up certification as requested. In the instant case, Harlingen's counsel conceded at oral argument that Saenz could not have been required to certify an absence after she was terminated. In fact, termination during the mandatory 15-day compliance period could itself be deemed a FMLA violation.

noting that "[i]f the employee never produces the certification, the leave is not FMLA leave" where employee was afforded full 15-day period and failed to comply (quoting 29 C.F.R. SS 825.311(b) (2003)) (alteration in original

See Lubke v. City of Arlington, 455 F.3d 489, 496-97 (5th Cir.2006) (stating that 29 C.F.R. § 825.305(b) "requires” that the employer allow the employee at least 15 days to respond to the medical certification request); see also Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 554-55 (6th Cir.2006) (termination of employee six days into 15-day compliance period "was clearly a violation of the FMLA”); Cooper v. Fulton County, 458 F.3d 1282, 1286 (11th Cir.2006) (termination of employee before the lapse of the 15-day compliance period deemed impermissible under FMLA); Muhammad v. Ind. Bell Tel. Co., 182 Fed.Appx. 551, 553 (7th Cir.2006) (unpublished) (describing the 15-day compliance period as a prerequisite to adverse employment action); Rhoads v. FDIC, 257 F.3d 373, 383 (4th Cir.2001) ("[T]he employer must allow the employee at least fifteen calendar days to submit [certification].” (emphasis added)); but see Young v. Russell Corp., No. 2:08-CV-148, 2008 WL 5412782, *2 (M.D.Ala. Dec. 29, 2008) (noting that “[i]f the employee never produces the certification, the leave is not FMLA leave” where employee was afforded full 15-day period and failed to comply (quoting 29 C.F.R. § 825.311(b) (2003)) (alteration in original)); Tippens v. Airnet Sys., Inc., No. 2:05-CV-421, 2007 WL 1026954, *5 (S.D.Ohio Mar.30, 2007) (finding that failure to submit medical certification was "fatal to a claim of FMLA interference” where employer granted temporary approval until lapse of 15-day period).

termination of employee six days into 15-day compliance period "was clearly a violation of the FMLA"


finding that failure to submit medical certification was "fatal to a claim of FMLA interference" where employer granted temporary approval until lapse of 15-day period


termination of employee before the lapse of the 15-day compliance period deemed impermissible under FMLA


describing the 15-day compliance period as a prerequisite to adverse employment action


"[T]he employer must allow the employee at least fifteen calendar days to submit [certification]." (emphasis added


Context: Rules 32.2(b) and 32.4(a) of the Arizona Rules of Criminal Procedure provide that a petitioner may only file a successive, untimely PCR petition based on claims that fall within the exceptions to preclusion set forth in Rule 32.1(d)-(h). Absent an applicable exception, which Petitioner does not assert, Claim 11 is now foreclosed from being raised in state court.

affirming the district court's conclusion that petitioner did not have an available state court remedy for claim that had never before been presented to the state courts despite opportunity

See Beaty v. Stewart, 303 F.3d 975, 987 & n. 5 (9th Cir.2002) (finding no available state court remedies and noting that petitioner did not raise any exceptions to Rule 32.2(a)); see also Ortiz, 149 F.3d at 931 (affirming the district court’s conclusion that petitioner did not have an available state court remedy for claim that had never before been presented to the state courts despite opportunity).


Context: Unfortunately for Hall, the failure to object to the recommendations and decisions of a magistrate judge is one instance we have held waiver of appellate review results. The purpose of this waiver rule is to promote efficiency between the district and appellate courts, so that district courts have the opportunity to nip errors in the bud without requiring them to conduct plenary reviews of proceedings supervised by magistrate judges.

See Hernandez-Rivas, 348 F.3d at 598 (citing Thomas v. Am, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)); Lockert v. Faulkner, 843 F.2d 1015, 1017-18 (7th Cir.1988) (holding the rationale of Thomas requires waiver to apply to each issue not included in an objection); see also Johnson v. Zema Sys. Corp., 170 F.3d 734, 742 (7th Cir.1999) (sandbagging problem identified in Thomas may be cured with adequate notice to the district judge of the contested issues).


Context: P 15 While we thus consider the facts and circumstances of each of the New Times' nine requests, we do so pursuant to the requirements of Arizona law. Arizona law places on MCSO the burden of establishing that its responses to the New Times' re quests were prompt given the circumstances surrounding each request.

holding that the "burden fell squarely upon [the Maricopa County Attorney], as a public official, to overcome the legal presumption favoring disclosure."

See Cox, 175 Ariz. at 14, 852 P.2d at 1198 (holding that the “burden fell squarely upon [the Maricopa County Attorney], as a public official, to overcome the legal presumption favoring disclosure.”); cf. Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984) (holding that the burden of showing that a harm will result from disclosure “is on the party that seeks non-disclosure rather than on the party that seeks access”); Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F.Supp.2d 30, 40 n. 8 (D.D.C.2006) (placing the burden of proof on the government agency to show that it is acting “as soon as practicable” under the federal Freedom of Information Act’s (“FOIA”) expedited processing provision).

holding that the burden of showing that a harm will result from disclosure "is on the party that seeks non-disclosure rather than on the party that seeks access"


placing the burden of proof on the government agency to show that it is acting "as soon as practicable" under the federal Freedom of Information Act's ("FOIA"


Context: Further, First Amendment scrutiny is not eliminated simply because burdened speech occurs in the course of conducting one's business as a professional. Even in cases involving speech that is spoken only in pursuit of one's profession, the Court has applied intermediate First Amendment scrutiny.

applying intermediate First Amendment scrutiny to a law prohibiting pharmacies from selling records of doctors' prescribing patterns to pharmaceutical salespeople

See Sorrell, 131 S.Ct. at 2667-71 (applying intermediate First Amendment scrutiny to a law prohibiting pharmacies from selling records of doctors’ prescribing patterns to pharmaceutical salespeople); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 620, 623-24, 115 S.Ct. 2371, 2374, 2375-76, 132 L.Ed.2d 541 (1995) (subjecting a regulation prohibiting lawyers from engaging in certain forms of direct advertising to intermediate First Amendment scrutiny); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 2724, 177 L.Ed.2d 355 (2010) (recognizing that when “conduct triggering coverage under the statute consists of communicating a message,” First Amendment scrutiny still applies).

recognizing that when "conduct triggering coverage under the statute consists of communicating a message," First Amendment scrutiny still applies


subjecting a regulation prohibiting lawyers from engaging in certain forms of direct advertising to intermediate First Amendment scrutiny


Context: In order to show a causal connection, Plaintiff must show that Defendant failed to hire him "because the plaintiff engaged in a protected activity."

Dowe, 145 F.3d at 657. Therefore, “by definition,” id., “a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of [him] engaging in protected activity,” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir.2005) (addressing the causal connection prong in a retaliation claim in a First Amendment context); see also Baqir v. Principi, 434 F.3d 733, 748 (4th Cir.2006) (stating that a plaintiff “must be able to show that the relevant [employer] officials [be] aware of [the protected activity] at the time the alleged retaliation occurred”), cert. denied, — U.S. -, 127 S.Ct. 659, 166 L.Ed.2d 512 (2006); Causey v. Balog, 162 F.3d 795, 803-04 (4th Cir.1998) (same).

stating that a plaintiff "must be able to show that the relevant [employer] officials [be] aware of [the protected activity] at the time the alleged retaliation occurred"


Context: See 1 Leonard B. Sand, et ah, Modern Federal Jury Instructions: Criminal, Instructions 6-9 (flight), 6-11 (false exculpatory statements) (2002). So in this case, in which other evidence plainly established that Cassese had placed the charged DPRC stock purchases, a rational jury could reasonably infer from his effort to undo those trades that he believed that he was guilty of the charged Rule 14e-3(a) crime, that is, that he believed that, at the time he placed the trades, he did so in willful violation of federal securities laws.

recognizing that defendant's attempt to persuade a witness to make false exculpatory statements is probative of guilty knowledge and intent

See United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir.1993) (holding that defendant’s knowledge of and intent to participate in a criminal conspiracy may be established through circumstantial evidence, “including] acts that exhibit a consciousness of guilt”); see also United States v. Perez, 387 F.3d 201, 209 (2d Cir.2004) (recognizing that defendant’s attempt to persuade a witness to make false exculpatory statements is probative of guilty knowledge and intent).

holding that defendant's knowledge of and intent to participate in a criminal conspiracy may be established through circumstantial evidence, "including] acts that exhibit a consciousness of guilt"


Context: Because the ordinance substantially advances a legitimate governmental purpose under the takings analyses, it satisfies this deferential rational basis test for equal protection and substantive due process purposes.

See Concrete Pipe, 508 U.S. at 640, 113 S.Ct. at 2289 (given that employer’s due process arguments are unavailing, “it would be surprising indeed to discover” that legislation nonetheless violates takings clause); see also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 727 n. 12, 66 L.Ed.2d 659 (1981) (if legislation does not violate equal protection, it does not violate substantive due process either); Skeen v. State, 505 N.W.2d 299, 312 (Minn.1993) (standard applied to claims brought under state equal protection clause same as that applied to claims brought under federal equal protection clause); State v. Morrow, 492 N.W.2d 539, 547 (Minn.App.1992) (constitutional challenge under either due process or equal protection of federal or state constitutions raise similar questions).

given that employer's due process arguments are unavailing, "it would be surprising indeed to discover" that legislation nonetheless violates takings clause


standard applied to claims brought under state equal protection clause same as that applied to claims brought under federal equal protection clause


constitutional challenge under either due process or equal protection of federal or state constitutions raise similar questions


Context: In light of the above, Petitioner Casas is not entitled on collateral review to reliti-gate issues raised on direct appeal, absent an intervening change in the law.

holding that a SS 2255 hearing is permitted on an issue previously addressed on direct appeal when there has been an intervening change in the law

Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that a § 2255 hearing is permitted on an issue previously addressed on direct appeal when there has been an intervening change in the law).

"We note that certain other claims raised in the SS 2255 motion were decided on direct appeal and may not be relitigated under a different label on collateral review."

Cf. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1993) (“‘[Ijssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.’ ”) (quoting Dirring v. United States, 370 F.2d 862, 864 (1st Cir.1967)); United States v. Michaud, 901 F.2d 5, 6 (1st Cir.1990)(“We note that certain other claims raised in the § 2255 motion were decided on direct appeal and may not be relitigated under a different label on collateral review.”).


Context: . The declaration was submitted to the Court on March 6, 2001, together with Shipley's supplemental brief. As in Euromepa, we rely on the parties' declarations to this Court to analyze the foreign law issue.

See 154 F.3d at 29 (relying on "the affidavits and other material submitted by the parties"); cf. Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 567 (2d Cir.2000) (relying on briefs and affidavits that the parties submitted in response to the Court's request for supplemental briefing).


Context: He contends that requiring Simeis to disclose this information will chill Payden's relationship of trust and confidence with Simeis. This argument is unpersuasive. The mere disclosure by defense counsel of information that is adverse to the defendant does not affect counsel's ability to represent the defendant effectively as required by the sixth amendment.

where client makes his attorney a witness to the crime by giving him money, the client may not invoke the sixth amendment to bar the attorney's testimony at trial

United States v. Wilson, 571 F.Supp. 1417, 1422 (S.D.N.Y.1983) (not an infringement of sixth amendment unless legal strategy would be disclosed); see In re Grand Jury Witness (Waxman), 695 F.2d 359, 363 (9th Cir.1982) (per curiam); In re Grand Jury Proc., Des Moines, Iowa, 568 F.2d 555, 558 (8th Cir.1977), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Wolfson, 558 F.2d 59, 65-66 (2d Cir.1977); see also In re January 1976 Grand Jury (Gensen), 534 F.2d 719, 731 (7th Cir.1976) (where client makes his attorney a witness to the crime by giving him money, the client may not invoke the sixth amendment to bar the attorney’s testimony at trial).


Context: In particular, the ALJ noted that Woods has consistently reported doing well on her medications since the alleged onset date, with no psychotic symptoms or significant disturbance in her mood. While Dr. Fontaine's notes do indicate that Woods is stable for the most part when she is medicated, that is not inconsistent with his conclusion that adding a daily work schedule to her life would cause her to become unstable.

treating physician's opinion that claimant was disabled was not inconsistent with the fact that her "schizoaffective disorder was in remission," because physician's notes "do not indicate that [physician] believed she was sufficiently stable to return to work, even if she was compliant with recommended treatment and medication."

See Pate-Fires, 564 F.3d at 943 (treating physician’s opinion that claimant was disabled was not inconsistent with the fact that her “schizoaffective disorder was in remission,” because physician’s notes “do not indicate that [physician] believed she was sufficiently stable to return to work, even if she was compliant with recommended treatment and medication.”); see also Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir.2001) (“We also believe the Commissioner erroneously relied too heavily on indications in the medical record that Hutsel was ‘doing well,’ because doing well for the purposes of a treatment program has no necessary relation to a claimant’s ability to work or to her work-related functional capacity.”).

"We also believe the Commissioner erroneously relied too heavily on indications in the medical record that Hutsel was 'doing well,' because doing well for the purposes of a treatment program has no necessary relation to a claimant's ability to work or to her work-related functional capacity."


Context: . An overwhelming majority of those courts have held that such logs are not testimonial.

See Abyo v. State, 166 P.3d 55, 60 (Alaska Ct.App. 2007) (records certifying the date that a breath test machine was tested are nontestimonial); Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471, 480 (Ct.App.2006) (same); Pierce v. State, 278 Ga.App. 162, 628 S.E.2d 235, 238 (2006) (same); State v. Marshall, 114 Hawai'i 396, 163 P.3d 199, 205 (Ct.App.2007) (same); Napier v. State, 820 N.E.2d 144, 149-50 (Ind.Ct.App.2005) (same); People v. Kim, 368 Ill.App.3d 717, 307 Ill.Dec. 92, 859 N.E.2d 92, 93-94 (2006) (same); Commonwealth v. Walther, 189 S.W.3d 570, 575 (Ky.2006) (same); State v. Carter, 326 Mont. 427, 114 P.3d 1001, 1007 (2005) (same); State v. Godshalk, 381 N.J.Super. 326, 885 A.2d 969, 973 (Law Div.2005) (same); State v. Dedman, 136 N.M. 561, 102 P.3d 628, 636 (2004) (same); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870, 875 (N.Y.City Crim.Ct.2005) (same); State v. Norman, 203 Or.App. 1, 125 P.3d 15, 18 (2005) (same); see also State v. Fischer, 272 Neb. 963, 726 N.W.2d 176, 184 (2007) (document certifying the accuracy of the solution used to test a breath test machine was nontestimonial); State v. Shisler, 2006 Ohio 5265, P15 (Ohio Ct.App.2006) (same); but see Shiver v. State, 900 So.2d 615, 617 (Fla.Dist.Ct.App.2005) (a record of the date that maintenance was performed on a breath test machine was testimonial).


a record of the date that maintenance was performed on a breath test machine was testimonial


Context: One circumstance that may justify a more intrusive search is when the initial pat-down reveals a potential weapon.

"Where the pat-down reveals a hard object that the police officer reasonably believes may be a weapon, the officer may further intrude upon the individual to the extent necessary to seize the suspected weapon." (citing Terry, 392 U.S. at 30-31, 88 S.Ct. 1868

Smith, supra, 345 Md. at 469, 693 A.2d 749 (“Where the pat-down reveals a hard object that the police officer reasonably believes may be a weapon, the officer may further intrude upon the individual to the extent necessary to seize the suspected weapon.” (citing Terry, 392 U.S. at 30-31, 88 S.Ct. 1868)).

"[I]f the pat-down reveals a hard object which could be a weapon, a further search is allowed."

See also Aguilar v. State, 88 Md.App. 276, 287, 594 A.2d 1167 (1991) (“[I]f the pat-down reveals a hard object which could be a weapon, a further search is allowed.”).


Context: The LMRA, rather than the Federal Arbitration Act ("FAA") governs actions involving "contracts of employment of ... workers engaged in foreign or interstate commerce."

stating that "[t]he [Federal] Arbitration Act does not apply to 'contracts of employment of ... workers engaged in foreign or interstate commerce,' 9 U.S.C. SS 1, but the federal courts have often looked to the Act for guidance in labor arbitration cases, especially in the wake of the holding that SS 301 of the Labor Management Relations Act 1947, 61 Stat. 156, 29 U.S.C. SS 185, empowers the federal courts to fashion rules of federal common law to govern '[s]uits for violation of contracts between an employer and a labor organization" under the federal labor laws."

Supreme Oil Co. v. Abondolo, 568 F.Supp.2d 401, 406 (S.D.N.Y.2008); 9 U.S.C. § 1; 29 U.S.C. § 185. Yet, federal courts enforcing labor arbitration awards look to the FAA “to guide the development of rules of federal common law to govern such disputes pursuant to the authority to develop such rules granted under 29 U.S.C. § 185.” Supreme Oil, 568 F.Supp.2d at 406; United Paperworkers Int’l v. Misco, 484 U.S. 29, 40 n. 9, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (stating that “[t]he [Federal] Arbitration Act does not apply to ‘contracts of employment of ... workers engaged in foreign or interstate commerce,’ 9 U.S.C. § 1, but the federal courts have often looked to the Act for guidance in labor arbitration cases, especially in the wake of the holding that § 301 of the Labor Management Relations Act 1947, 61 Stat. 156, 29 U.S.C. § 185, empowers the federal courts to fashion rules of federal common law to govern ‘[s]uits for violation of contracts between an employer and a labor organization” under the federal labor laws.”); see also Teamsters Local 814 Welfare Fund v. Dahill Moving & Storage Co., No. 07-CV-2005, 2007 WL 1580085, at *1 (E.D.N.Y. May 30, 2007) (confirming an arbitration award under the LMRA and explicitly looking to the procedure for confirming an arbitration award under the FAA).


Context: The Debtor alleges the court erred in denying discharge under section 727(a)(4)(A) because undervaluation of an asset is an insufficient basis for denying discharge.

Undervaluation of assets which are otherwise properly listed in a debtor's schedules is not sufficient to warrant a denial of discharge

See also In re Wines, 114 B.R. 794, 797 (Bankr.S.D.Fla.1990)(Undervaluation of assets which are otherwise properly listed in a debtor’s schedules is not sufficient to warrant a denial of discharge). This argument is not applicable to the facts of this case.

Failure of the debtor to properly value two automobiles on his schedules was an insufficient ground for discharge since the automobiles were disclosed on debt- or's schedules to the Trustee who was afforded an opportunity to make an independent appraisal of their value

See In re Blum, 41 B.R. 816, 819 (Bankr.S.D.Fla.1984)(Failure of the debtor to properly value two automobiles on his schedules was an insufficient ground for discharge since the automobiles were disclosed on debt- or’s schedules to the Trustee who was afforded an opportunity to make an independent appraisal of their value).


Context: Finally, Hartley argues that we should remand the case for new postcon-viction proceedings because postconviction counsel (Morrow and Malnick) failed to adequately investigate the case and to obtain a mental health expert. Hartley concedes that this Court has held, and, in fact, "all courts" have held, that the Sixth Amendment does not guarantee a right to the effective assistance of postconviction counsel.

"[C]laims of ineffective assistance of postconviction counsel do not present a valid basis for relief."

See Lambrix v. State, 698 So.2d 247, 248 (Fla.1996) (“[C]laims of ineffective assistance of postconviction counsel do not present a valid basis for relief.”); see also Zack v. State, 911 So.2d 1190, 1203 (Fla.2005) (“Under Florida and federal law, a defendant has no constitutional right to effective collateral counsel.”).

"Under Florida and federal law, a defendant has no constitutional right to effective collateral counsel."


Context: First, the debtor argues that the retroactive application of the 1990 ASO is an ex post facto law in violation of the Constitution. This argument is flawed because the Ex Post Facto Clause applies only to criminal cases or punitive legislation.

"[T]he constitutional prohibition against an ex post facto law applies to criminal proceedings and not to civil proceedings."

See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Bugajewitz v. Adams, 228 U.S. 585, 590, 33 S.Ct. 607, 57 L.Ed. 978 (1913); Huffman v. Commonwealth, 210 Va. 530, 172 S.E.2d 788, 789 (1970) (“[T]he constitutional prohibition against an ex post facto law applies to criminal proceedings and not to civil proceedings.”); see also Rainey v. City of Norfolk, 14 Va.App. 968, 421 S.E.2d 210, 213 (1992) (holding that the Ex Post Facto Clause did not apply because the civil contempt citation was not punitive).


Context: See Bittker & Lokken, Federal Taxation of Income, Estates and Gifts, par. 126.5.4, at 126-64 (2d ed. 1984). If the power involves acts of "independent significance", whose effect on the trust is "incidental and collateral", such acts are also deemed to be beyond the decedent's control.

power to bear or adopt children involves act of "independent significance", whose effect on a trust that included after-born and after-adopted children was "incidental and collateral"

See Rev. Rul. 80-255, 1980-2 C.B. 272 (power to bear or adopt children involves act of “independent significance”, whose effect on a trust that included after-born and after-adopted children was “incidental and collateral”); see also Estate of Tully v. United States, 208 Ct. Cl. 596, 528 F.2d 1401, 1406 (1976) (“In reality, a man might divorce his wife, but to assume that he would fight through an entire divorce process merely to alter employee death benefits approaches the absurd.”).

"In reality, a man might divorce his wife, but to assume that he would fight through an entire divorce process merely to alter employee death benefits approaches the absurd."


Context: Additionally, circuits other than the First Circuit have ruled clearly that federal due process requires a lesser included offense instruction in non-capital cases.

If habe-as petitioner was entitled to a lesser included offense instruction under state law, state trial court violated petitioner's rights in refusing to give it, and habeas writ should issue

Prather v. Rees, 822 F.2d 1418 (6th Cir.1987) (If habe-as petitioner was entitled to a lesser included offense instruction under state law, state trial court violated petitioner’s rights in refusing to give it, and habeas writ should issue); Ferrazza v. Mintzes, 735 F.2d 967, 968 (6th Cir.1984) (The Beck “principle is not limited to capital cases_”); see also United States v. Zapata-Tamallo, 833 F.2d 25, 28 (2d Cir.1987) (“Due process requires that a lesser included offense instruction be given [in narcotics possession case] if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”) (quoting Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 [1982]); Bishop v. Mazurkiewicz, 634 F.2d 724 (3d Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981) (Lesser included offense instruction of manslaughter is not required by due process if the evidence does not support it.).


holding that "a state trial court judge's failure to instruct on a lesser included offense is not a federal constitutional matter"

But see Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980) (holding that “a state trial court judge’s failure to instruct on a lesser included offense is not a federal constitutional matter”) (citations omitted); Nichols v. Gagnon, 710 F.2d 1267, 1269-72 (7th Cir.1983); Cooper v. Campbell, 597 F.2d 628, 631 (8th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979); James v. Reese, 546 F.2d 325, 327 (9th Cir.1976, cert. denied sub nom., Davis v. Greer, 459 U.S. 975, 103 S.Ct. 310, 74 L.Ed.2d 289 (1983); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir.1987).


Context: Because Dr. Schwartz-Watts and Dr. Morgan relied on this report, they were permitted to testify about it as a basis for their opinion.

See State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995) (psychiatrist who did not personally examine the defendant was permitted to render an opinion based on reports prepared by others who examined the defendant but did not testify at trial); see also Ellis v. Oliver, 323 S.C. 121, 473 S.E.2d 793 (1996) (in medical malpractice case, plaintiffs experts properly permitted to testify concerning their opinions which were based in part on hearsay statements contained in plaintiffs medical records and on deposition testimony by medical professionals in a separate action); Creed v. City of Columbia, 310 S.C. 342, 426 S.E.2d 785 (1993) (plaintiffs treating physician permitted to render opinion concerning plaintiffs mental and emotional injuries where physician relied on tests and a report issued by a non-testifying neuropsychologist); Howie v. PYA/Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (Ct.App.1986) (plaintiffs psychologist permitted to render expert opinion even though opinion was based in part on inadmissible hearsay gathered from plaintiff and her family given the information was not being offered for the truth of the matters asserted, but rather, as one of the bases of the expert’s opinion).


plaintiffs psychologist permitted to render expert opinion even though opinion was based in part on inadmissible hearsay gathered from plaintiff and her family given the information was not being offered for the truth of the matters asserted, but rather, as one of the bases of the expert's opinion


Context: The district court properly concluded that Title VII and the Rehabilitation Act ("RA") were Miller's exclusive remedies for claims of discrimination in federal employment.

Title VII's exclusivity regarding discrimination on the basis of sex also applies to discrimination on the basis of gender

See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir.1985) (Title VII is the exclusive remedy for discrimination by the federal government on the basis of sex, and the RA is the exclusive remedy for discrimination by the federal government on the basis of disability); see also Brock v. United States, 64 F.3d 1421, 1424 (9th Cir.1995) (Title VII’s exclusivity regarding discrimination on the basis of sex also applies to discrimination on the basis of gender); Clemente v. United States, 766 F.2d 1358, 1364 n. 7 (9th Cir.1985) (“To the extent that plaintiffs Bivens claims are founded in actions proscribed by Title VII, they may not be maintained because Title VII provides the exclusive remedy.”).


"To the extent that plaintiffs Bivens claims are founded in actions proscribed by Title VII, they may not be maintained because Title VII provides the exclusive remedy."


Context: Some observations are made salient even on this limited record. Indisputably, TSI acted jointly with the deputy sheriff, a governmental employee, to divest plaintiffs of their interest in their home.

private party's joint participation with state officials in the seizure of property is sufficient to characterize that party as a "state actor" for the purposes of the Fourteenth Amendment

See Lugar, 457 U.S. at 942 (private party’s joint participation with state officials in the seizure of property is sufficient to characterize that party as a “state actor” for the purposes of the Fourteenth Amendment); see also Kennedy v. Widdowson, 804 F.Supp. 737, 740 (D.Md.1992) (private defendant’s joint participation with police officers in removing property from plaintiffs’ home made him a state actor).

private defendant's joint participation with police officers in removing property from plaintiffs' home made him a state actor


Context: Applying the test set forth in Lopez and Amaya-Ruiz, we reject Doody's argument for two reasons. First, the detectives' statements did not constitute a "promise" because they "did not offer any benefit' to the defendant in exchange for information."

statement by officer that he would not play interrogation tapes for victim's mother did not constitute a promise

State v. Hensley, 137 Ariz. 80, 87, 669 P.2d 58, 65 (1983) (statement by officer that suspect’s confession would not be admissible in court did not constitute a promise); see Lopez, 174 Ariz. at 138, 847 P.2d at 1085 (statement by officer that he would not play interrogation tapes for victim’s mother did not constitute a promise). The trial court found, and we agree, that the officers assured Doody that his statements would not be disclosed to the other suspects because the officers believed Doody’s fear of reprisal affected his willingness to talk. The detectives did not imply that the state would not prosecute Doody if he revealed the information or that the state would not use his statements against him in a subsequent prosecution.

statement by officer that suspect's confession would not be admissible in court did not constitute a promise


Context: It is well settled that a fact-finder may rely on inconsistencies to support an adverse credibility determination.

holding that "inconsistencies ... adequately support the [administrative law judge's ("ALJ"

See, e.g., Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir.2010) (holding that “inconsistencies ... adequately support the [administrative law judge’s (“ALJ”) ] adverse credibility finding”); see also United States v. McCarty, 648 F.3d 820, 829 (9th Cir.2011) (observing that the district court “based its credibility determination on inconsistencies in [a witness’] testimony”).

observing that the district court "based its credibility determination on inconsistencies in [a witness'] testimony"


Context: Some jurisdictions that require that the specific underlying offense be identified in the charge, however, do not require that all the elements of the underlying felony itself be alleged, as mandated in Miles. The courts instead require only that the specific underlying felony be identified by name or statutory reference.

See, e.g., State v. Hartz, 65 Wash.App. 351, 354-55, 828 P.2d 618, 620-21 (1992) (holding that although the specific underlying felony is an essential element of' felony-murder, the government is not required to include the elements of the underlying felony or state the specific means by which it alleges the defendant committed the underlying felony); Demouchette v. State, 591 S.W.2d 488, 490 (Tex.Crim.App.1979) (holding that “an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense”), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981); see also State v. Lindsey, 446 So.2d 1074, 1076 (Fla.1984) (holding that an information charging defendant with offense of burglary that alleged that the defendant had committed an assault was not defective for failing to further allege specific facts that constituted assault).


holding that "an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense"


Context: The analysis in the preceding section disposes of the need to address defendant Davis' qualified immunity defense.

"If the plaintiff here has failed to state a SS 1983 claim, Johnson's qualified immunity defense becomes moot."

Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980) (citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979)); Carlson v. Conklin, 813 F.2d 769, 771 (6th Cir.1987) (“If the plaintiff here has failed to state a § 1983 claim, Johnson’s qualified immunity defense becomes moot.”); see Hill v. Department of the Air Force, 884 F.2d 1318, 1320 (10th Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990) (“Because we find no Bivens remedy under the circumstances of this case, we need not address the qualified immunity issue.”); Sheldon H.

"Because we find no Bivens remedy under the circumstances of this case, we need not address the qualified immunity issue."


Context: The record shows that Officers Patton and Stevenson believed they were on the lookout for a fleeing suspect who had just been involved in a robbery. Although there is no evidence in this record that a robbery had in fact occurred, Officer Lewis had broadcast that he thought a robbery had occurred or was about to occur. It was this information to which Officers Patton and Stevenson were reacting. Whether Officer Lewis was reasonably justified in his belief concerning a possible robbery suspect has no bearing on whether his fellow officers were entitled to rely upon his representation.

holding that where police officers act in good faith reliance on a radio dispatch that a crime has been committed, there is no need to show that the source of the dispatcher's information is rehable

See Moody v. State, 448 N.E.2d 660, 663 (Ind.1983) (holding that where police officers act in good faith reliance on a radio dispatch that a crime has been committed, there is no need to show that the source of the dispatcher’s information is rehable); see also Russell v. State, 519 N.E.2d 549, 551-52 (Ind.1988) (finding investigatory stop warranted where the officer heard a radio dispatch that a possible robbery had been committed and the defendant matched the description relayed in the dispatch).


Context: The ALJ considered further the fact that plaintiff did not take regular prescription pain medication, or over-the-counter preparations for her alleged disabling pain. Plaintiff reports she cannot afford such medications because she has limited financial resources, no health insurance since being unemployed, and that pain medications do not work well.

"[T]he ALJ must consider a claimant's allegation that he has not sought medical treatment or used medications because of a lack of finances."

Dover v. Bowen, 784 F.2d 335, 337 (8th Cir.1986) (“[T]he ALJ must consider a claimant’s allegation that he has not sought medical treatment or used medications because of a lack of finances.”); see also Hutsell v. Sullivan, 892 F.2d 747, 751 n. 2 (8th Cir.1989) (“It is for the ALJ in the first instance to determine a claimant’s real motivation for failing to follow prescribed treatment or seek medical attention.”).

"It is for the ALJ in the first instance to determine a claimant's real motivation for failing to follow prescribed treatment or seek medical attention."


Context: [P 15] We disagree with the trial court's conclusion that Erica had available a remedy as speedy and adequate as the one under the Protection of Domestic Abuse chapter.

noting that "[e]xisting remedies ... have proved to be less than adequate in aiding the victims of abuse and in preventing further abuse"

See Range, 1996 SD 48 at ¶ 8, 547 N.W.2d at 176 (“Judges must exercise broad authority to fashion necessary safeguards for the unpredictable insecurities victims of domestic abuse often face.”) (noting the flexibility afforded the judiciary in fashioning relief under SDCL 25-10-5(6)); see also State ex rel. Williams v. Marsh, 626 S.W.2d 223, 226 (Mo.1982) (en banc) (noting that “[e]xisting remedies ... have proved to be less than adequate in aiding the victims of abuse and in preventing further abuse”); Yankoskie v. Lenker, 363 Pa.Super. 448, 526 A.2d 429, 433 (1987) (“[D]omestic violence and spousal' and child abuse are serious and widespread societal problems which are effectively beyond reach, absent such legislation.”) (quoting Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363, 367 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985)).

"Judges must exercise broad authority to fashion necessary safeguards for the unpredictable insecurities victims of domestic abuse often face."


"[D]omestic violence and spousal' and child abuse are serious and widespread societal problems which are effectively beyond reach, absent such legislation."


Context: We recognize that, because it is an illegal substance, it may be that many jurors may have no firsthand knowledge regarding the effects of marijuana on one's ability to perceive and to relate events. At the same time, we cannot blink at the reality that, despite its illegality, because of its widespread use, many people know of the potential effects of marijuana, either through personal experience or through the experience of family members or friends. The ability to draw inferences about the impairing effects of marijuana, like alcohol, however, is based upon common knowledge, experience and common sense, not necessarily on personal experience.

"[c]onsumption of alcohol or drugs obviously can impair an individual's ability to observe and recall accurately"

State v. Person, 20 Conn. App. 115, 121, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991) (“[c]onsumption of alcohol or drugs obviously can impair an individual’s ability to observe and recall accurately”); see also People v. Fauber, 2 Cal. 4th 792, 839, 831 P.2d 249, 9 Cal. Rptr. 2d 24 (1992), cert. denied, 507 U.S. 1007, 113 S. Ct. 1651, 123 L. Ed. 2d 272 (1993) (“[t]o say . . . that the memory of some of the witnesses may have been affected by drugs is to say no more than the common knowledge that ingestion of drugs affects perception”); Matthews v. State, 68 Md. App. 282, 289, 511 A.2d 548, cert. denied, 308 Md. 238, 517 A.2d 1121 (1986) (“[i]t is common knowledge that the quantity of alcohol and/or drugs consumed will affect one’s ability to see, to hear, and, generally, to perceive what is occurring”). The unfortunate prevalence of marijuana use, coupled with the substantial effort to educate all segments of the public regarding its dangers, underscores the reality that the likely effects of smoking five marijuana cigarettes in a short period of time before an incident are within the ken of the average juror.

"[t]o say . . . that the memory of some of the witnesses may have been affected by drugs is to say no more than the common knowledge that ingestion of drugs affects perception"


"[i]t is common knowledge that the quantity of alcohol and/or drugs consumed will affect one's ability to see, to hear, and, generally, to perceive what is occurring"


Context: The actual malice standard is subjective; the plaintiff must prove that the defendant actually entertained a serious doubt. Although this fact may be proved by circumstantial rather than direct evidence, "the plaintiff must establish that even in relying upon an otherwise questionable source the defendant actually possessed subjective doubt."

when defendant had implicated sheriff and union leader in alleged wrongdoing, actual malice could not be inferred from defendant's having relied solely upon affidavit of union dissident of unknown veracity and having failed to verify allegations with sources who might have known

Secord v. Cockburn, 747 F.Supp. 779, 794 (D.D.C.1990) (plaintiff cannot survive summary judgment merely by showing that some of defendant’s sources were convicted felons); see St. Am-ant, 390 U.S. at 730, 88 S.Ct. at 1325 (when defendant had implicated sheriff and union leader in alleged wrongdoing, actual malice could not be inferred from defendant’s having relied solely upon affidavit of union dissident of unknown veracity and having failed to verify allegations with sources who might have known).

plaintiff cannot survive summary judgment merely by showing that some of defendant's sources were convicted felons


Context: Because we conclude that C.S.'s fundamental right to the assistance of counsel was not implicated in this case, we further conclude that the court was not required in this instance to give C.S. a detailed advisement regarding her decision to appear pro se. Indeed, it appears to us, based on the circumstances leading to Davis's withdrawal, that C.S. knew very well what risk her conduct posed.

"The totality of the circumstances is relevant when determining whether the trial court committed an abuse of discretion by denying a continuance."

See People in Interest of D.J.P., 785 P.2d 129, 131 (Colo.1990) (“The totality of the circumstances is relevant when determining whether the trial court committed an abuse of discretion by denying a continuance.”); see also People v. Arguello, 772 P.2d 87, 94 (Colo.1989)(holding that in determining whether there exists a valid waiver of the right to counsel in the criminal setting, the court may consider “[a] defendant’s lack of good faith in working with appointed counsel,” “including an unreasonable refusal to cooperate with counsel” “or an unreasonable request for substitution of appointed counsel,” and “[t]he timeliness of defendant’s request for new counsel” particularly “when a defendant makes an untimely request for new counsel ... under circumstances which are likely to result in a continuance”).

holding that in determining whether there exists a valid waiver of the right to counsel in the criminal setting, the court may consider "[a] defendant's lack of good faith in working with appointed counsel," "including an unreasonable refusal to cooperate with counsel" "or an unreasonable request for substitution of appointed counsel," and "[t]he timeliness of defendant's request for new counsel" particularly "when a defendant makes an untimely request for new counsel ... under circumstances which are likely to result in a continuance"


Context: SDCL 53-3-3. Ensuing negotiations evidence absence of intent that the purchase agreement constitutes a final and complete agreement.

See Sabow v. Hall, 323 N.W.2d 861, 863 (S.D. 1982) (finding no final and complete agreement where negotiations between parties continued after offer and purchase agreement were signed); cf. Rusch v. Kauker, 479 N.W.2d 496, 500 (S.D.1991) (finding a contract where the purchase agreement contained all necessary terms and conditions and any remaining negotiations involved the contract for deed).


Context: "We have often stated . . . that it is reasonable for police officers to suspect guns to be associated with illegal drug selling operations.

State v. Clark, 255 Conn. 268, 284, 764 A.2d 1251 (2001) (Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms . . .); see also United States v. Wilson, 306 F.3d 231, 238 (5th Cir. 2002) (dealing in narcotics sufficient for reasonable belief in potential for violence and presence of weapon).” (Internal quotation marks omitted.)


Context: The Clerk of Court is a state employee and, consequently, is a state agent for purposes of Eleventh Amendment immunity.

Curry v. Pucinski, 864 F.Supp. 839, 843 (N.D.Ill.1994) (dismissing official-capacity claims against Pucinski because her status as Clerk of Court made her a state agent and triggered Eleventh Amendment immunity).

See also Warren v. Stone, 958 F.2d 1419 (7th Cir.1992) (finding that, in Illinois, a court clerk is a state employee).


Context: First, the evidence it is "reasonable to expect" must be "easily available" to the applicant. Second, even the failure to produce easily available evidence cannot be held against an applicant unless he was given the opportunity to explain at the asylum hearing why that evidence was not produced.

reversing adverse credibility determination, and rejecting government argument that asylum applicant had failed to credibly explain absence of corroborating evidence, because "Arulampalam was not 'given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence.' "

See Sidha, 220 F.3d at 1091 & n. 3 (“The petitioner must be given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence---- In this case Petitioner was specifically asked to explain the lack of corroboration and presented an explanation that both the IJ and BIA explicitly found incredible.”); see also Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir.2003) (reversing adverse credibility determination, and rejecting government argument that asylum applicant had failed to credibly explain absence of corroborating evidence, because “Arulampalam was not ‘given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence.’ ”) (citing Sidha).

"The petitioner must be given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence---- In this case Petitioner was specifically asked to explain the lack of corroboration and presented an explanation that both the IJ and BIA explicitly found incredible."


Context: Summary judgment is inappropriate where there are issues of motive and intent as related to material facts.

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

See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading roles.”); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“[Fjindings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact.”); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000) (finding that “determinations of motive and intent .... are questions better suited for the jury”).

"[Fjindings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact."


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


Context: Here the claimed injury is allegedly the result of a policy of the municipality, i.e., the passage of a budget reduction plan. (Compl. P 119.) Therefore, claims against its officers in their official capacities are in reality claims against the Town of North Hemp-stead itself.

See Graham, 473 U.S. at 165, 105 S.Ct. at 3104-05. Consequently, the official-capacity claims against Zwirn, both as Supervisor and Board Member, and Newburger, D’Urso, Johnson and Cunningham, as Town Board Members, must be dismissed, not because these parties have immunity but merely because the Town is the real party in interest. See e.g., Orange v. County of Suffolk, 830 F.Supp. at 706-07 (official-capacity claims redundant because claim is made against local governmental entity) (citing Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991) and Kohn v. Muda, 776 F.Supp. 348 (N.D.Ill.1991); cf. Goldberg v. Whitman, 740 F.Supp. at 120-21 (motion to dismiss official-capacity claims on legislative immunity denied); Dusanenko v. Maloney, 560 F.Supp. 822, 827-28 (S.D.N.Y.1983) (finding immunity from personal liability for individual defendants but no immunity for the municipality), aff'd, 726 F.2d 82 (2d Cir.1984).


Context: (See DE 11 at 2). After considering State Farm's Motion, I find that impleader under Rule 14(a) is appropriate because State Farm's claims against Betancourt are based on Osorio's claim against State Farm. State Farm's claims for common law indemnification and contractual indemnification are not separate and independent claims arising out of the same facts as Osorio's claim against State Farm.

See Olavarrieta, 812 F.2d at 643 (denying third-party claim under Rule 14(a) and explaining that the Rule does not allow a third-party plaintiff to assert a separate and independent claim against a third-party defendant simply because it shares the same general set of facts as the main claim); see also Southeast Mortgage Co. v. Mullins, 514 F.2d 747, 749 (5th Cir.1975) (impleader is appropriate when the third-party defendant’s potential liability depends on the outcome of the main claim).

impleader is appropriate when the third-party defendant's potential liability depends on the outcome of the main claim


Context: Nor does it contain a proper motion or affidavit by the prosecutor explaining why the report could not have been discovered earlier by the exercise of due diligence. Thus, under the rules, the trial court would have been within its discretion to deny the state's request to introduce the untimely disclosed evidence.

See State v. Scott, 24 Ariz.App. 203, 205, 537 P.2d 40, 42 (1975) (court within its discretion ordering preclusion for untimely disclosure of defense witnesses).

But see State v. Roque, 213 Ariz. 193, ¶¶ 48, 50-51, 141 P.3d 368, 385-86 (2006) (no abuse of discretion in refusing to order preclusion for discovery violation involving scope of expert testimony).


Context: As the Eleventh Circuit has explained, "Section 2254 presumes that federal courts already have the authority to issue the writ of habeas corpus to a state prisoner.... [I]t is not itself a grant of habeas authority, let alone a discrete and independent source of post-conviction relief."

"Our authority to grant habeas relief to state prisoners is limited by SS 2254.... "

In turn, § 2254(d), like other subsections of § 2254, implements and limits the authority granted in § 2241 for “a person in custody pursuant to the judgment of a State court.” § 2254(a). See White, 370 F.3d at 1008 (“[Section] 2254 is properly seen as a limitation on the general grant of habeas authority in § 2241.”); see also Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (“Our authority to grant habeas relief to state prisoners is limited by § 2254.... ”).

"[Section] 2254 is properly seen as a limitation on the general grant of habeas authority in SS 2241."


Context: It is also clear that Captain Roth and the appellant were present at the deposition, and Captain Roth actively participated throughout the deposition including a thorough cross-examination of the deponent. In addition, Captain Roth was aware of the nature of SSgt Duncan's testimony based on his active participation in the Article 32 investigation on 7 August. Therefore, even though the written notice requirements of R.C.M. 702(e) were not completely satisfied, we find no prejudice resulted to the appellant.

But see United States v. Donati, 14 U.S.C.M.A. 235, 34 C.M.R. 15, (C.M.A.1963) (75 minutes elapsing between time defense was made aware of identity of intended deponent and time proceeding was opened was not reasonable notice); United States v. Giles, 42 C.M.R. 880 (A.C.M.R. 1970) (a telephone call to accused approximately an hour and a half before the deposition and at a time when accused was drinking and in no condition to participate in the proceeding did not constitute reasonable written notice).

See also United States v. Stewart, 3 C.M.R. 690 (A.F.B.R.1952) (notice received by defense counsel approximately 1 hour before deposition).


a telephone call to accused approximately an hour and a half before the deposition and at a time when accused was drinking and in no condition to participate in the proceeding did not constitute reasonable written notice


Context: This principle of double recovery, known as the collateral source rule, provided that "compensation or indemnity received by an injured party from a collateral source, wholly independent of the wrongdoer and to which he has not contributed, will not diminish the damages otherwise recoverable from the wrongdoer." The collateral source rule was not applicable in situations in which a plaintiff's compensation was attributable to the defendant.

See Carr v. Boyd, 123 Colo. 350, 356-57, 229 P.2d 659, 663 (1951) (“Benefits received by the plaintiff from a source other than the defendant and to which he has not contributed are not to be considered in assessing the damages.”) (quoting 15 Am.Jur. Damages § 201 (1938)); see also Steckler v. United States, 549 F.2d 1372, 1379 (10th Cir.1977) (In an action against the United States under the Federal Tort Claims Act, that portion of plaintiffs Social Security benefits that were funded by federal government contributions were not collateral sources and, thus, were subject to setoff.). Nor did the collateral source rule apply to compensation “gratuitously furnished” to a plaintiff by a governmental body.

"Benefits received by the plaintiff from a source other than the defendant and to which he has not contributed are not to be considered in assessing the damages."


Context: We acknowledge that the Court in Groetzinger "confined" its construction of the term "trade or business" to the statutory provision at issue in that case, and that the Court "[did] not purport to construe the phrase where it appears in other places."

declining to rely on Groetzinger because the term "trade or business" has different meanings " 'depending upon the [statutory] provision in which it is used' "

But see Ditello, 974 F.2d at 889-90 (declining to rely on Groetzinger because the term “trade or business” has different meanings “ ‘depending upon the [statutory] provision in which it is used’ ”) (citation omitted).

"Although the Groetzinger court considered a provision of the tax code, we find its definition helpful in distinguishing trades or businesses [under ERISA] from purely personal activities or investments."

See Personnel, 974 F.2d at 794 (“Although the Groetzinger court considered a provision of the tax code, we find its definition helpful in distinguishing trades or businesses [under ERISA] from purely personal activities or investments.”). Indeed, the parties have offered no better interpretation, and we can imagine none.


Context: [C]ourts have recognized that a noose may constitute part of a hostile environment claim.

"It is hard to imagine an incident of this sort taking place in 1984. The grossness of hanging an object resembling a noose at the work station of a black female is self-evident."

See [Hollins v. Delta Airlines, 238 F.3d 1255, 1256-58 (10th Cir. 2001) ] (noting that “several hangman’s nooses dangling from the ceiling above [the plaintiffs] work area” coupled with racist jokes, including one about lynching, were sufficient to give rise to an inference of a hostile environment); see also Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 n. 4 (11th Cir.1989) (“It is hard to imagine an incident of this sort taking place in 1984. The grossness of hanging an object resembling a noose at the work station of a black female is self-evident.”), abrogated on other grounds by Harris, 510 U.S. at 21, 114 S.Ct. 367; Vance v. S. Bell Tel. & Tel, 983 F.2d 1573, 1583 (11th Cir.1993) (Fay, J., dissenting) (“The noose in [the workplace] context is a symbol not just of racial discrimination or of disapproval, but of terror.... Not less than the swastika or the Klansman’s hood, the noose in this context is intended to arouse fear.”); Williams v. New York City Housing Auth., 154 F.Supp.2d 820, 824 (S.D.N.Y.2001) (“Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence.”).

noting that "several hangman's nooses dangling from the ceiling above [the plaintiffs] work area" coupled with racist jokes, including one about lynching, were sufficient to give rise to an inference of a hostile environment


"The noose in [the workplace] context is a symbol not just of racial discrimination or of disapproval, but of terror.... Not less than the swastika or the Klansman's hood, the noose in this context is intended to arouse fear."


"Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence."


Context: There is statutory support for the choice of venue and appellant/wife has not demonstrated that the court, for any other reason, should have ordered the case tried in Broward County.

See § 47.011, Fla.Stat. (1985); Groome v. Abrams, 448 So.2d 82 (Fla. 4th DCA 1984) (trial court has broad discretion in dealing with matters of venue); cf. Thames v. Thames, 449 So.2d 402 (Fla. 2d DCA 1984) (dissolution of marriage action was improperly brought in Pinellas County where evidence showed that the place where the parties last resided with the intent to remain married was Alachua County, and there was no property subject to the litigation located in Pinellas County).


Context: The defendants' contentions lack merit because income evidence from several years prior to the date of trial is probative with respect to establishing a defendant's net worth.

permitting "evidence of the [defendants]' gross incomes" during punitive damages phase of trial

See Butera v. District of Columbia, 83 F.Supp.2d 25, 32 (D.D.C. 1999) (permitting “evidence of the [defendants]’ gross incomes” during punitive damages phase of trial), aff’d in part, rev’d in part, 235 F.3d 637 (D.C. Cir. 2001); see also Arceneaux v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 767 F.2d 1498, 1503 (11th Cir. 1985) (affirming an award of punitive damages based upon the fact that the defendant “testified that his income for the past three years had been between $80,000 and $105,000,” and that a jury “could well have found not ‘credible that a person whose income was in the $90,000 per year range had a net worth of only $30,000.” (citation omitted)); Bassi v. Patten, 592 F.Supp.2d 77, 85 (D.D.C. 2009) (denying a motion in limine to exclude the defendant’s 2007 tax return in a trial scheduled to commence in January 2009 because “[evidence concerning a defendant’s net worth is relevant to punitive damages.” (citing Breeden, 665 A.2d at 941 & n.19 (D.C. 1995))), Thus, the defendants’ assertions that the most recent income information does not accurately portray Dadlani’s financial condition at the time of trial goes to the weight of this evidence, not its admissibility.

denying a motion in limine to exclude the defendant's 2007 tax return in a trial scheduled to commence in January 2009 because "[evidence concerning a defendant's net worth is relevant to punitive damages." (citing Breeden, 665 A.2d at 941 & n.19 (D.C. 1995


Context: Plaintiff also asks this court to "seize All Bonds (Special Documents of Title UCC SS 7201, UCC SS 7202, UCC SS 8102 et seq) and-Accounts regards Me and My PERSON; wind-up the Ens Legis: WILLIAM FREDERICK KEMP JR. The Federal Circuit has explained that the Court of Federal Claims "does not have general equity jurisdiction to grant injunctive relief."

holding that "[t]he Tucker Act does not provide a means by which the Court of Federal Claims may grant injunctive or declaratory relief where the suit does not involve a pre-award protest or the application of section 7428 of the Internal Revenue Code"

Shemonsky v. United States, 215 F.3d 1340 (Fed.Cir.1999) (upholding decision of the Court of Federal Claims that the court’s jurisdiction did not extend to injunctive or declaratory relief); see also Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003); Choate v. United States, 60 F.3d 840 (Fed.Cir.1995) (holding that “[t]he Tucker Act does not provide a means by which the Court of Federal Claims may grant injunctive or declaratory relief where the suit does not involve a pre-award protest or the application of section 7428 of the Internal Revenue Code”).

upholding decision of the Court of Federal Claims that the court's jurisdiction did not extend to injunctive or declaratory relief


Context: As a result, the majority finds no reason to remand this ease for the Board to conduct any further development or adjudication of the appellant's claim, which, in fact, imposes the issue exhaustion requirement that Sims prohibits. With the understanding that Sims precludes such a result regardless of the appellant's failure to raise this argument below, I believe that the Court should exercise its discretion to remand this matter to the Agency for proper adjudication of the direct service connection theory in the first instance.

stating that "appellate tribunals are not appropriate fora for initial fact finding"

See Maggitt, 202 F.3d at 1378-79 (allowing this Court to hear an argument raised before it in the first instance, assuming.the Court has jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.Cir.1996) (stating that this Court “is not a trier of fact and is not in a position to make ... factual determination[s]”); see also 38 U.S.C. § 7261(c). I also note that it should not matter what Mr. Robinson wrote on his Substantive Appeal, as both the statute and regulation governing the content of a Substantive Appeal use only hortatory language in'telling claimants what to include.


stating that this Court "is not a trier of fact and is not in a position to make ... factual determination[s]"


Context: To hold otherwise would limit EPA's ability to exercise its section 404(c) authority to situations where a state has not issued a section 401 certification. That interpretation would be inconsistent with the broad "whenever" language employed in.section 404(c), and it also does not fit within the structure of section 404, which designates EPA as the ultimate de-cisionmaker with respect to the enumerated types of environmental consequences of section 404 discharges.

"[I]f the section 404(c) veto is to have any meaning at all, the EPA must be able to disagree with the Corps' conclusions."

See 33 U.S.C. § 1344; Mingo Logan, 714 F.3d at 614 (“[S]ection 404(b) makes equally clear ... that the Administrator has, in effect, the final say on the specified disposal sites ‘whenever’ he makes the statutorily required ‘unacceptable adverse effect’ determination.”); see also Newport Galleria Grp., 618 F.Supp. at 1184 (“[I]f the section 404(c) veto is to have any meaning at all, the EPA must be able to disagree with the Corps’ conclusions.”).

"[S]ection 404(b) makes equally clear ... that the Administrator has, in effect, the final say on the specified disposal sites 'whenever' he makes the statutorily required 'unacceptable adverse effect' determination."


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

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


Context: Joseph F. Nascimento and his minor daughter Kendall E. Nascimento appeal pro se the district court's dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of their civil rights action seeking reversal of a Montana state court decision regarding the custody of Kendall Nascimento.

See H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir.2000) (holding that federal district courts should abstain from interfering with pending state court proceedings); see also Branson v. Nott, 62 F.3d 287, 291 (9th Cir.1995) (holding that federal district courts lack jurisdiction to review a final state court decision in a particular case).


Context: To preserve an issue for appeal, a conditional plea must "precisely identify which pretrial issues the defendant wishes to preserve for review." All non-jurisdictional issues not specifically preserved in the conditional plea agreement are waived.

"[A] guilty plea constitutes a waiver of non-jurisdictional defects occurring prior to the plea."

See, e.g., Dimitrov, 546 F.3d at 416 (holding that although the defendant had preserved his objection to the constitutionality of a “mental state” requirement, he had not preserved another constitutional objection); United States v. Doherty, 17 F.3d 1056, 1058-59 (7th Cir.1994) (noting that although the plea agreement reserved the right to challenge the indictment’s failure to state a violation of a statute, the defendant “did not reserve the right to challenge ‘the sufficiency of the indictment’ in other respects”); see also Cain, 155 F.3d at 842 (“[A] guilty plea constitutes a waiver of non-jurisdictional defects occurring prior to the plea.”).

holding that although the defendant had preserved his objection to the constitutionality of a "mental state" requirement, he had not preserved another constitutional objection


noting that although the plea agreement reserved the right to challenge the indictment's failure to state a violation of a statute, the defendant "did not reserve the right to challenge 'the sufficiency of the indictment' in other respects"


Context: See Way I, 496 So.2d at 129. Further, during the resentencing, although the sentencing order stated that the record supported a finding that the murder was CCP, the order also stated that the trial court had not relied upon this aggravating circumstance because the State had not asserted its applicability during the resentencing proceedings. Because the jury had not been instructed on this aggravating circumstance and the trial court stated it did not consider this aggravating circumstance, even if the record does not support the imposition of this aggravating circumstance, we conclude that any error in the trial court's finding this aggravating circumstance applicable is harmless beyond a reasonable doubt.

See Sochor v. State, 619 So.2d 285, 293 (Fla.1993) (affirming death sentence despite the trial court’s error in finding the aggravating circumstance of CCP applicable because “if there is no likelihood of a different sentence, the error must be deemed harmless”); cf. Sims v. State, 681 So.2d 1112, 1118 (Fla.1996) (concluding that the trial court did not err in finding applicable an aggravating circumstance that had not been alleged by the State and for which the jury had received no instruction).

affirming death sentence despite the trial court's error in finding the aggravating circumstance of CCP applicable because "if there is no likelihood of a different sentence, the error must be deemed harmless"


Context: In contrast, other courts have viewed the phrase "scheduled as contractually due" as indicating the means test provided by SS 707(b) intends to capture a "snap shot" of the debtor's financial state as of the date of the petition rather than construct a forward-looking analysis of the debtor's financial situation.

"Congress did not state that the subsection at issue applied only to payments estimated to be actually paid ... [a] natural reading of subsection (iii

See Fokkena v. Hartwick, 373 B.R. 645, 656 (D.Minn.2007)(“Congress did not state that the subsection at issue applied only to payments estimated to be actually paid ... [a] natural reading of subsection (iii)(I) is that it applies to payments that the debtor is under contract to make ... ”); In re Walker, 2006 WL 1314125, *4 (Bankr.N.D.Ga.2006)(“nothing the debtor does or does not do changes the fact that scheduled payments remain contractually due.”);' In re Kogler, 368 B.R. 785, 791 (Bankr.W.D.Wis.2007)(“The best interpretation of § 707(b)(2) is to regard it as requiring a ‘snapshot’ of the debtors’ finances at the time of filing.”); In re Galyon, 366 B.R. 164, 167 (Bankr.W.D.Okl. 2007) (“for the purposes of the means test calculation, the debtor may deduct the payments at issue, despite her declared intent to surrender the collateral securing the debt.”); see also In re Randle, 2007 WL 2668727, *6-7 (N.D.Ill.2007)(rejecting interpretation of “scheduled” as referring to bankruptcy schedules, explaining “the only other place in the Bankruptcy Code that uses the phrase ‘scheduled as’ also explicitly refers to bankruptcy schedules before using the phrase ‘scheduled as’ in the same sentence.”).

rejecting interpretation of "scheduled" as referring to bankruptcy schedules, explaining "the only other place in the Bankruptcy Code that uses the phrase 'scheduled as' also explicitly refers to bankruptcy schedules before using the phrase 'scheduled as' in the same sentence."


"nothing the debtor does or does not do changes the fact that scheduled payments remain contractually due."


"for the purposes of the means test calculation, the debtor may deduct the payments at issue, despite her declared intent to surrender the collateral securing the debt."


Context: . Nor can Congress confer the Executive's unique Article III standing to private individuals.

holding that Congress cannot confer the Executive's standing to enforce public rights on private individuals through ''citizen-suit" provisions

See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130 (holding that Congress cannot confer the Executive’s standing to enforce public rights on private individuals through ''citizen-suit” provisions); see also Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 772-74, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (holding that private individuals can assert the federal government’s interests in a qui tam suit because they have their own pecuniary interest as partial assignees of the government's pecuniary claim).

holding that private individuals can assert the federal government's interests in a qui tam suit because they have their own pecuniary interest as partial assignees of the government's pecuniary claim


Context: In addition, the government's evidence established that Jones once gave advice to Deshields about cooking the powder into an oil base. This evidence is sufficient to connect Jones to the conspiracy to distribute crack, even if Jones himself never sold crack.

explaining that "the Government must prove the existence of a conspiracy beyond a reasonable doubt, but upon establishing the conspiracy, only a slight connection need be made linking a defendant to the conspiracy to support a conspiracy conviction, although this connection also must be proved beyond a reasonable doubt"

See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.1993) (“It is of course elementary that one may be a member of a conspiracy ... mthout taking part in the full range of its activities. ...” (emphasis added)); see also Burgos, 94 F.3d at 862 (explaining that “the Government must prove the existence of a conspiracy beyond a reasonable doubt, but upon establishing the conspiracy, only a slight connection need be made linking a defendant to the conspiracy to support a conspiracy conviction, although this connection also must be proved beyond a reasonable doubt”).

"It is of course elementary that one may be a member of a conspiracy ... mthout taking part in the full range of its activities. ..." (emphasis added


Context: That defendant officers did not know the precise "use" to which Hobbs's confession would put at the time they solicited it is of little consequence. In May 2005, "a reasonable public official interrogating a criminal suspect would have recognized that coercing a confession by abusive language and physical contact, along with coaching the suspect as to the details of the confession, clearly violates the suspect's constitutional right against self-incrimination."

Hill, 2009 WL 174994, at *8 (holding that police officers were not entitled to qualified immunity where they used threats and physical violence against the plaintiff in March 1992 to coerce a confession that was later used to convict him of murder); see also Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (“a complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds”).

"a complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds"


Context: Defendants do not rely on any caselaw demonstrating that an individual who initiated contact with police does not have a right to effectively communicate with those police when they arrive on the scene. Notably, caselaw specifically addressing claims under the ADA and Rehabilitation Act suggests that such a right may exist.

See Center v. City of West Carrollton, 227 F.Supp.2d 863 (S.D.Ohio 2002) (denying summary judgment regarding the effectiveness of auxiliary aids provided to a deaf 911 caller after the police arrived on the scene); Salinas v. City of New Braunfels, 557 F.Supp.2d 771, 776-77 (W.D.Tex.2006) (motion to dismiss denied where deaf individual who called 911 after finding boyfriend motionless in home given that municipality’s 911 emergency response services fell within those covered by ADA and Rehabilitation Act, the scene was secure and there was no threat to human life and there was no evidence that she was a suspect in the incident for which she had called 911); see also McCray v. City of Dothan, 169 F.Supp.2d 1260, 1275 (M.D.Ala.2001), affirmed in part and reversed in part without published opinion by, 67 Fed.Appx. 582 (11th Cir.2003) (finding deaf individual should have been given interpreter during on-the-scene questioning).


motion to dismiss denied where deaf individual who called 911 after finding boyfriend motionless in home given that municipality's 911 emergency response services fell within those covered by ADA and Rehabilitation Act, the scene was secure and there was no threat to human life and there was no evidence that she was a suspect in the incident for which she had called 911


Context: NEDC notes that at least 142 structures have been allowed since the species' listing in 1999, (BiOp 18), yet no attempt was made to determine the amount of take that has resulted from those structures. It contends no accurate understanding of potential jeopardy can be made without this information.

"The impact of an authorized incidental take cannot be determined or analyzed in a vacuum, but must necessarily be addressed in the context of other incidental take authorized by [the agency]."

See Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121, 127 (D.D.C.2001) (“The impact of an authorized incidental take cannot be determined or analyzed in a vacuum, but must necessarily be addressed in the context of other incidental take authorized by [the agency].”); see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 936 (9th Cir.2008) (“It is only logical to require that the agency know roughly at what point survival and recovery will be placed at risk before it may conclude that no harm will result from ‘significant’ impairments to habitat that is already severely degraded.”).

"It is only logical to require that the agency know roughly at what point survival and recovery will be placed at risk before it may conclude that no harm will result from 'significant' impairments to habitat that is already severely degraded."


Context: . The district court correctly reasoned that the finding of the state court jury of "recklessness" by the Diocese and the Archdiocese, for purpose of awarding punitive damages, is a separate and distinct issue from insurance coverage.

recklessness reflects degree of culpability -- such as an unreasonable' but slight risk of extreme harm -- rather than likelihood of occurrence

See Diocese, 858 F.Supp. at 1417-19 (recklessness reflects degree of culpability — such as an unreasonable' but slight risk of extreme harm — rather than likelihood of occurrence); but cf. Ohio Casualty Ins. Co. v. Terrace Enters., Inc., 260 N.W.2d 450, 452-53 (Minn.1977) (suggesting in dicta that a reckless act may not constitute an occurrence).


Context: In addition, even if Plaintiffs' marks were properly classified as "laudatory" and therefore merely "descriptive," their strength is nonetheless increased by Plaintiffs' significant commercial success.

"A suggestive or descriptive mark, which is coneep-tually weak, can have its overall strength as a mark bolstered by its commercial success."

See M2 Software, 421 F.3d at 1081 (“A suggestive or descriptive mark, which is coneep-tually weak, can have its overall strength as a mark bolstered by its commercial success.”) (internal citations omitted); see also Entrepreneur Media v. Smith, 279 F.3d 1135, 1144 (9th Cir.2002) (“We recognize, however, that although a suggestive or descriptive mark is inherently a weak mark, it may be strengthened by such factors as extensive advertising, length of exclusive use, public recognition ....”) (internal quotations omitted).

"We recognize, however, that although a suggestive or descriptive mark is inherently a weak mark, it may be strengthened by such factors as extensive advertising, length of exclusive use, public recognition ...."


Context: First, in the cases finding proximate cause, there generally was some debris from the first accident still blocking the roadway, while there was not in the cases finding no proximate cause. Second, in the cases finding proximate cause, there generally was only a short time gap between the first accident and the follow-on accident, while in the cases finding no proximate cause there was a substantial time lapse between them.

But see Johnson, 200 Minn. 428 (finding that 1-hour gap did not ehminate proximate-cause relationship when disabled vehicles continued to block the roadway at the time of the second collision).

Compare Sawdey v. Producers’ Milk Co., 107 Cal. App. 467, 480, 290 P. 684 (1930) (finding that a 3-minute gap between accidents did not eliminate proximate-cause question); and Anderson, 131 Conn. at 238-39 (finding that a gap of 2 to 4 minutes between accidents did not ehminate proximate-cause question); and Krumvieda v. Hammond, 71 S.D. 544, 548-49, 27 N.W.2d 583 (1947) (finding that 2 minutes lapsed time between the first and second accidents did not take proximate-cause issue away from jury consideration) with Millirons v. Blue, 48 Ga. App. 483, 484-85, 173 S.E. 443 (1934) (finding that the first accident was not proximate cause of the second accident occurring 20 minutes later when the damaged vehicle was on the roadway with fights on); and Anderson v. Jones, 66 Ill. App. 2d 407, 411-12, 213 N.E.2d 627 (1966) (finding that a gap of 3 to 10 minutes between accidents was an important factor in finding no proximate-cause relationship between them).


finding that a gap of 2 to 4 minutes between accidents did not ehminate proximate-cause question


finding that 2 minutes lapsed time between the first and second accidents did not take proximate-cause issue away from jury consideration


finding that the first accident was not proximate cause of the second accident occurring 20 minutes later when the damaged vehicle was on the roadway with fights on


finding that a gap of 3 to 10 minutes between accidents was an important factor in finding no proximate-cause relationship between them