Context: Learning the contents of the purse was crucial to a proper police response. These facts must be viewed objectively.

"The officer's subjective motivation is irrelevant," as a court need not "discem[] what is in the mind of the individual officer conducting the search."

See Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (“[T] he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”); see also Brigham City, 126 S.Ct. 1943, 1948 (2006) (“The officer’s subjective motivation is irrelevant,” as a court need not “discem[] what is in the mind of the individual officer conducting the search.”).

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


Context: There was no evidence that the defendant shared payment of the rent.

People v. Savage, 630 P.2d 1070, 1073 (Colo.1981) (defendant who was one of four people living in the trailer, paid an equal share of the rent, and used the living area along with the others had a reasonable expectation of privacy). David Juarez was not present in the house when the evidence was seized.

Cf. People v. Godinas, 176 Colo. 391, 394, 490 P.2d 945, 947 (1971) (defendant was legitimately in the house and therefore had standing to challenge the search of the house); Adargo v. People, 173 Colo. 323, 325, 478 P.2d 308, 308 (1970) (defendant had standing because he was in his sister’s home with her permission when the search of her house was conducted).


defendant had standing because he was in his sister's home with her permission when the search of her house was conducted


Context: While private contracting parties would ordinarily be equally chargeable -- so far as enforceability and interpretation are concerned -- -with their respective counsels' derelictions in negotiating commercial contracts, different concerns apply to bargained plea agreements. Unlike the private contract situation, the validity of a bargained guilty plea depends finally upon the voluntariness and intelligence with which the defendant -- and not his counsel -- enters the bargained plea.

in interpreting disputed immunity agreement, court "not primarily concerned with the gauge of [defense counsel's] professional caution or responsibility"

Mabry, 467 U.S. at 509, 104 S.Ct. at 2547. This necessary condition to effective waiver of constitutional rights can be found wanting not only because of the Government’s derelictions in discharging its duty of fair bargaining, see Santobello, 404 U.S. at 261-62, 92 S.Ct. at 498, but also because of any independent (as well as Government-induced) dereliction of defense counsel amounting to ineffective assistance of counsel. See Correale v. United States, 479 F.2d at 949 (Coffin, C.J.) (that defense counsel’s possible dereliction may constitute constitutionally ineffective assistance of counsel invalidating guilty plea, not a “relevant legal concern” in direct proceeding in criminal case to vacate plea because of broken plea agreement); cf. United States v. Society of Independent Gasoline Manufacturers, 624 F.2d 461, 473 (4th Cir.1979) (in interpreting disputed immunity agreement, court “not primarily concerned with the gauge of [defense counsel’s] professional caution or responsibility”).

that defense counsel's possible dereliction may constitute constitutionally ineffective assistance of counsel invalidating guilty plea, not a "relevant legal concern" in direct proceeding in criminal case to vacate plea because of broken plea agreement


Context: We do not agree. Since the law governing the classification of aggravated identity theft was unsettled at the time of the appellant's removal, we cannot fairly conclude that the appellant was misled at all. A waiver of rights based on a reasonable interpretation of existing law is not rendered faulty by later jurisprudential developments.

finding no due process violation in BIA's refusal to entertain a motion to reopen removal proceedings even though offense underlying removal was later determined not to be an aggravated felony

See Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); see also Baptist, 759 F.3d at 698 (explaining that “the law in effect at the time of [the defendant’s] challenged removal is what matters to [the court’s] analysis”); cf. Ovalles v. Holder, 577 F.3d 288, 299 (5th Cir.2009) (per curiam) (finding no due process violation in BIA’s refusal to entertain a motion to reopen removal proceedings even though offense underlying removal was later determined not to be an aggravated felony).

explaining that "the law in effect at the time of [the defendant's] challenged removal is what matters to [the court's] analysis"


Context: The court held that since notice was mandatory, substantial compliance along the lines suggested by the state was insufficient and that suppression was required even if the defendant could show no prejudice resulting from the violation. The court correctly noted that in these respects the Connecticut statute was stricter than the federal wiretapping statute.

See 18 U.S.C. §§ 2510-2520 (1982); id. § 2518(8)(d) (the authorizing judge has discretion to determine whether notice should be sent to a person not named in wiretap authorization); United States v. Donovan, 429 U.S. 413, 438-39 & n. 26, 97 S.Ct. 658, 673 & n. 26, 50 L.Ed.2d 652 (1977) (unnotified defendant entitled to suppression only upon a showing of prejudice); United States v. Fury, 554 F.2d 522, 528-29 (2d Cir.1977) (same), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978).

"Connecticut scheme is ... in many respects more stringent than the equivalent federal act"

See also State v. Grant, 176 Conn. 17, 25, 404 A.2d 873, 878 (1978) (“Connecticut scheme is ... in many respects more stringent than the equivalent federal act”).


Context: Determining whether Rodriguez-Correa was eligible for the program, and thus would have received a reduction in his sentence through a plea bargain or a government's motion for downward departure, is a matter of prosecutorial discretion.

stating that "entering into plea bargains is within the United States Attorney's prosecutorial discretion"

See United States v. Pickering, 178 F.3d 1168, 1174 (11th Cir.1999) (stating that “entering into plea bargains is within the United States Attorney’s prosecutorial discretion”) (citation omitted), overruled on other grounds as stated in United States v. Orrega, 363 F.3d 1093, 1098 n. 8 (11th Cir.2004); see also, United States v. Rankin, 572 F.2d 503, 505 (5th Cir.1978) (stating that “there is no constitutional right to plea bargain.”) (citing Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977)); see also United States v. Orozco, 160 F.3d 1309, 1316 (11th Cir.1998) (stating that “[determining whether a motion for reduction of sentence will be filed is reserved to the government.”).

stating that "[determining whether a motion for reduction of sentence will be filed is reserved to the government."


Context: On appeal, Ms. Plasai argues that the settlement agreement should be voided as involuntary. Because Ms. Plasai first questioned the voluntariness of the settlement agreement in a petition for review by the full board, not during the dismissal proceeding with the AJ, she has waived this argument before us.

See Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed.Cir.1998) (“if the party ... raises an issue for the first time in a petition for review by the full Board, this court will not consider the issue.”); see also Sargent v. Dep’t of Health & Human Servs., 229 F.3d 1088, 1091 (Fed.Cir.2000) (holding that the issue of the voluntariness of a settlement agreement is waived on appeal if not raised before the Board).

"if the party ... raises an issue for the first time in a petition for review by the full Board, this court will not consider the issue."


Context: Yet, the Board injected ambiguity into K.S.A. 2008 Supp. 44-508(f) when it determined that the statute did not define the phrase "recreational or social event." When deciding whether a statute is ambiguous, a basic principle of statutory construction provides that where words in a statute are not defined, they must be given their ordinary meaning.

See Roda v. Williams, 195 Kan. 507, Syl. ¶ 3, 407 P.2d 471 (1965) (words in common use contained within a statute are to be given their natural and ordinary meaning); see also Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979) (words not defined in a statute should be given ordinary or common meaning).


Context: Commentators have suggested that one of the reasons for the absence of a clear framework for determining when the indefinite reach of laws invites arbitrary and discriminatory enforcement may be that the Supreme Court framed vagueness as a procedural doctrine, but used it to invalidate statutes on implicit substantive grounds.

invalidating a vagrancy ordinance classifying "rogues and vagabonds" and others as subject to punishment

Id. at 604-05; see, e.g., Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 Cal. L.Rev. 491 (1994) (arguing that the Supreme Court used the vagueness doctrine to prevent the police from imposing certain kinds of middle class norms on citizens and citing as an example Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (invalidating a vagrancy ordinance classifying “rogues and vagabonds” and others as subject to punishment)); see also Coates v. City of Cincinnati, 402 U.S. 611, 616 n. 6, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (striking down ordinance making it a crime for “three or more persons to assemble ... on any of the sidewalks ... and there conduct themselves in a manner annoying to persons passing by,” and citing Kemer Commission Report for proposition that “alleged discriminatory enforcement of this ordinance figured prominently in the background of the serious civil disturbances that took place in Cincinnati in June 1967”).

striking down ordinance making it a crime for "three or more persons to assemble ... on any of the sidewalks ... and there conduct themselves in a manner annoying to persons passing by," and citing Kemer Commission Report for proposition that "alleged discriminatory enforcement of this ordinance figured prominently in the background of the serious civil disturbances that took place in Cincinnati in June 1967"


Context: . Mangum does not argue, and we do not find, that the pertinent statutes are unclear or reasonably susceptible to different interpretations. Therefore, the rule of lenity does not apply here, nor does Mangum argue otherwise.

applying rule of lenity to prohibited possessor statute that could "be interpreted in two alternative ways"

But see State v. Gore, 101 Wash.2d 481, 681 P.2d 227, 230 (1984) (applying rule of lenity to prohibited possessor statute that could "be interpreted in two alternative ways”).

lenity principle's "touchstone ... is statutory ambiguity" and does not apply when "statute could not be more plain"

See State v. Sanchez, 209 Ariz. 66, ¶ 6, 97 P.3d 891, 893 (App.2004); State v. Fell, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App.2002); see also Lewis, 445 U.S. at 65, 100 S.Ct. at 920-21 (lenity principle’s "touchstone ... is statutory ambiguity” and does not apply when "statute could not be more plain”).


Context: Although the police in this case, unlike Edwards, were unaware of the petitioner's prior request for counsel, I do not consider that fact to be significant. Once a defendant invokes his right to counsel, that knowledge is imputed to all law enforcement officials. Therefore, the fact that subsequent interrogating officers are unaware of such invocation is irrelevant to the question of whether a constitutional right has been violated.

knowledge of petitioner's request for counsel at arraignment imputed to police

Johnson v. Virginia, 454 U.S. at 924, 102 S.Ct. at 424 (Marshall, J., dissenting) (knowledge of petitioner’s request for counsel at arraignment imputed to police); United States v. Scalf, 708 F.2d 1540 (10th Cir.1983); White III, 687 F.2d at 887-88 n. 9; United States ex rel. Karr v. Wolff, 556 F.Supp. at 765; United States v. Renda, 567 F.Supp. at 487; See also United States ex rel. Kimes v. Greer, 527 F.Supp. at 310 (good faith of officer who questioned suspect after request for counsel is irrelevant).


Context: For more than half of this time, Mr. Cluff was in closed quarters with his assailants. They even warned him not to seek help from the guards, warnings that he followed because he was "afraid" and "couldn't handle another beating."

See Ledford, 443 F.3d at 712 (admitting a statement as an excited utterance over a hearsay objection when there was a thirty-five minute period between assault and statement to police upon arriving on scene); see also United States v. Cruz, 156 F.3d 22, 30 (1st Cir.1998) (admitting a statement as an excited utterance when there was a four-hour delay between spousal beating and statements made by victim at battered women’s shelter); United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998) (admitting a statement as an excited utterance when there was a three-hour delay between discovery that people were in burning building and declarant’s statement admitting part in arson); Webb v. Lane, 922 F.2d 390, 395 (7th Cir.1991) (admitting a statement as an excited utterance when there was a two-hour delay between shooting and victim’s statement identifying perpetrator of shooting).

admitting a statement as an excited utterance when there was a four-hour delay between spousal beating and statements made by victim at battered women's shelter


admitting a statement as an excited utterance when there was a three-hour delay between discovery that people were in burning building and declarant's statement admitting part in arson


admitting a statement as an excited utterance when there was a two-hour delay between shooting and victim's statement identifying perpetrator of shooting


Context: If Voisinet is indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel.

See Tex. Fam.Code Ann. § 107.013 (Vernon Supp. 2000); Lassiter v. Dept. of Soc. Serv. of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981) (consideration must be given to the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel); see also M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (equal protection requires the state to provide transcript in appeal of right to indigent parent whose parental rights were terminated).


Context: J.A. 41-42. Given the facts of this case, we cannot conclude that the district court clearly erred when reaching this conclusion.

"The district court's decision whether to grant a two-level reduction for acceptance of responsibility is a factual determination that we review for clear error."

See Miller, 77 F.3d at 74 (“The district court’s decision whether to grant a two-level reduction for acceptance of responsibility is a factual determination that we review for clear error.”); see also United States v. Hawley, 93 F.3d 682, 689-90 (10th Cir.1996) (affirming denial of acceptance of responsibility to defendant who received an obstruction of justice enhancement for pre-guiltyplea violation of appearance bond: “Conduct amounting to escape or violation of an appearance bond is certainly evidence of failure to accept responsibility, and this fact alone provides adequate foundation for the district court’s decision.”).

affirming denial of acceptance of responsibility to defendant who received an obstruction of justice enhancement for pre-guiltyplea violation of appearance bond: "Conduct amounting to escape or violation of an appearance bond is certainly evidence of failure to accept responsibility, and this fact alone provides adequate foundation for the district court's decision."


Context: While the second set of notes do not indicate that Brochu was present, this Court finds that National Grid has not met its burden of proving that the interview notes are subject to the attorney-client privilege because they have not proven that Jim Sullivan and Michael Knott were interviewing Caproni, Coyle, and Sullivan in their capacity as Sciumeca's Team members instead of IA Team members. In addition, any IA Team investigation would necessarily be conducted in the ordinary course of business as there are 1500 incident analysis investigations a year; therefore, National Grid has not met its burden of proving that the interview notes are subject to the protection of the work product doctrine.

indicating that when the work product is prepared in "the ordinary line of business and duty," it is not protected by the work product doctrine

See Shotwell, 26 Mass.App.Ct. at 1016 (indicating that when the work product is prepared in “the ordinary line of business and duty,” it is not protected by the work product doctrine); see also Adlman, 134 F.3d at 1202 (holding that documents that are created in the ordinary course of business or would have been created irrespective of litigation are not protected by the work product doctrine).


Context: The alleged basis for the plaintiffs' non-disclosure claim is that the American Express SEC filings were incorporated by reference in the SPD and those filings failed to disclose material adverse financial information about American Express. Even if the disclosure requirements of ERISA go beyond the specific requirements of sections 1021-31, the requirement is no more than a duty to refrain from making affirmative misrepresentations to plan participants.

"Defendants have no affirmative duty under ERISA to disclose information about the company's financial condition to plan participants."

See Varity Corp., 516 U.S. at 506, 116 S.Ct. 1065 (finding affirmative deception to be a violation of ERISA section 404(a) fiduciary duties, but not reaching “the question whether ERISA fiduciaries have any fiduciary duty to disclose truthful information on their own initiative, or in response to employee inquiries”); Devlin, 274 F.3d at 88 (finding affirmative misrepresentations to plan participants violate ERISA fiduciary duties); see also Gearren, 690 F.Supp.2d at 271 (“Defendants have no affirmative duty under ERISA to disclose information about the company’s financial condition to plan participants.”); In re Citigroup, 2009 WL 2762708, at *21 (citing Bd. of Trs. of CWAJITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139, 147 (2d Cir.1997)).


finding affirmative misrepresentations to plan participants violate ERISA fiduciary duties


Context: Turning to the circumstances of this case, we are easily convinced that the Unions' concerns have more than a "marginal" relationship to the purposes implicit in the PES. The district court erred in focusing too narrowly on the functions of the PES in isolation from the entire Postal Reorganization Act of 1970 ("PRA"), of which the PES are a part. When attempting to discern the scope of interests embraced by a particular legislative provision, courts may look to the purposes animating the entire statutory framework.

"[W]e are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress' overall purposes in the National Bank Act."

See Clarke, 479 U.S. at 401, 107 S.Ct. at 757 (“[W]e are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress’ overall purposes in the National Bank Act.”); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157 & n. 2, 90 S.Ct. 827, 831-32 & n. 2, 25 L.Ed.2d 184 (1970); see also National Coal Association v. Hodel, 825 F.2d 523, 529 (D.C.Cir.1987) (looking beyond the Federal Land Policy and Management Act of 1976 (FLPMA) to other legislation aimed at the coal industry in order to “flesh out the meaning of the term ‘public interest’ ” in the FLPMA); Wilderness Society v. Griles, 824 F.2d 4, 18 n. 11 (D.C.Cir.1987) (“Thus, plaintiffs ... appear to fall within the zone of interests of the statutory scheme represented by three complementary enactments.”).


"Thus, plaintiffs ... appear to fall within the zone of interests of the statutory scheme represented by three complementary enactments."


Context: In addition, the vast majority of the prosecutor's argument focused on the evidence. Fernandez's lawyer thoroughly responded to the improper remarks in his own closing.

partial acquittal "reinforces our conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly"

See Young, 470 U.S. at 18 n.15, 105 S.Ct. 1038 (partial acquittal “reinforces our conclusion that the prosecutor’s remarks did not undermine the jury’s ability to view the evidence independently and fairly”); Wright, 625 F.3d at 613 (same); de Cruz, 82 F.3d at 863 (same); Koon, 34 F.3d at 1446 (same).

improper comment was "the last argument the jury heard before going to the jury room to deliberate"

Compare Wright, 625 F.3d at 613 (improper comment “was mitigated by defense counsel’s excellent rebuttal”), with Sanchez, 659 F.3d at 1261 (improper comment was “the last argument the jury heard before going to the jury room to deliberate”). And the jury acquitted Fernandez of one of the two charges against him, indicating that they reviewed the evidence objectively.


Context: Indeed, the fact that the Board's decision is almost entirely unexplained strongly suggests that the Board simply applied subsection (i)(B), which -- post-amendment--plainly forecloses UPMC's interest claim. Thus, the Court must vacate and remand.

"[W]hen a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded tq the agency for further action consistent with the corrected legal standards."

See PPG Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C.Cir.1995) (“[W]hen a court reviewing agency action determines that an agency made an error of law, the court’s inquiry is at an end: the case must be remanded tq the agency for further action consistent with the corrected legal standards.”); cf. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”).

"[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained."


Context: J.A. 51. In such circumstances, the district court acted well within its discretion in not ordering a competency hearing on its own motion.

identifying no abuse of discretion in failure sua sponte to order hearing because district court's observations and defense counsel's assurances as to defendant's competence "overcome any reasonable doubt ... that may have been raised by his statement that he felt dizzy" from taking wrong medication

See United States v. Quintieri, 306 F.3d at 1233-34 (identifying no abuse of discretion in failure sua sponte to order hearing because district court’s observations and defense counsel’s assurances as to defendant’s competence “overcome any reasonable doubt ... that may have been raised by his statement that he felt dizzy” from taking wrong medication); cf. United States v. Graves, 98 F.3d 258, 261-62 (7th Cir.1996) (concluding district court should have ordered sua sponte competency hearing where defendant suffered stroke that caused him “serious difficulty speaking and some paralysis, and ... some impairment of memory and understanding” when conversing with court).

concluding district court should have ordered sua sponte competency hearing where defendant suffered stroke that caused him "serious difficulty speaking and some paralysis, and ... some impairment of memory and understanding" when conversing with court


Context: Thus, the complainant's testimony was circumstantial evidence of appellant's guilt as a party to aggravated robbery. However, under these circumstances, we conclude that unchallenged direct evidence provided by a criminal cohort is "clearly" more persuasive to a jury than challenged circumstantial evidence.

although State offered documentary circumstantial evidence of defendant's participation in theft, only non-testifying cohort's statement implicated defendant through "eye-witness evidence," causing unchallenged accusation to be more persuasive than records

See Muttoni, 25 S.W.3d at 808 (although State offered documentary circumstantial evidence of defendant’s participation in theft, only non-testifying cohort’s statement implicated defendant through “eye-witness evidence,” causing unchallenged accusation to be more persuasive than records); see also Mendez, 56 S.W.3d at 893 (although “considerable circumstantial evidence” linked defendant to crime, non-testifying co-defendant’s direct allegation that defendant planned murders, provided weapons, entered victims’ house, and fired gun was more persuasive to jury). Accordingly, we conclude the admission of Hunter’s statement probably did contribute to his conviction.

although "considerable circumstantial evidence" linked defendant to crime, non-testifying co-defendant's direct allegation that defendant planned murders, provided weapons, entered victims' house, and fired gun was more persuasive to jury


Context: . Contrary to the concurrence's assertion, this rule does not risk encroaching on Fourth Amendment rights. Computer users can protect their files by using a password, just as one who shares a footlocker can protect his photographs by placing them in a locked container inside the footlocker.

See, e.g., United States v. Andrus, 483 F.3d 711, 718-20 (10th Cir.2007); United States v. Kim, 27 F.3d 947, 957 (3d Cir.1994) (explaining that consent to search an area does not include consent to search locked containers in that area); see also Randolph, 547 U.S. at 135, 126 S.Ct. 1515 (Roberts, C.J., dissenting) ("To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed.”). For example, in Trulock v. Freeh, the Fourth Circuit found that a defendant who protected his files with a password, had not "assumed the risk” that his co-user "would permit others to search his files.” 275 F.3d 391, 403 (4th Cir.2001).

"To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed."


Context: He also argues that his right to liberty protects him from being compelled to contract with an attorney. We are unaware of any U.S. Constitutional decision that declares citizens to have a right to self-representation in civil proceedings. Yet, arguing against such a right is nearly frivolous.

See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (pleadings drafted by pro se litigants shall be held to less stringent standards than pleadings drafted by attorneys); O’Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir.1982) (self-representation in civil cases is a right of “high standing”); see also McBrearty v. Ken tucky Community and Technical College System, 262 S.W.3d 205, 210 (Ky.App.2008) (holding that pro se litigants must follow the Kentucky Rules of Civil Procedure); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.App.1987) (encouraging against the sua sponte dismissal of complaints, in part, because such a practice is “particularly prejudicial to pro se plaintiffs, who are generally unskilled in the art of pleading.”) (internal citation and quotations omitted).


self-representation in civil cases is a right of "high standing"


Context: Courts in other states have repeatedly found that in the absence of actual control, a property owner owes no duty to a contractor or a contractor's employee who suffers injury from being electrocuted on the property owner's premises.

rejecting the claim of a contractor's employee that the premises owner had a duty to deenergize the lines where the contractor worked

Merritt v. Bethlehem Steel Corp., 875 F.2d 603, 605-07 (7th Cir.1989) (rejecting the claim of a contractor’s employee that the premises owner had a duty to deenergize the lines where the contractor worked); Wells v. Gen. Elec. Co., 807 F.Supp. 1202, 1211 (D.Md.1992) (finding an employer owed no duty to a contractor’s employee in the absence of “latent or concealed dangers” or “actual physical control over the work area”); Jackson v. Petit Jean Elec. Co-op., 270 Ark. 506, 606 S.W.2d 66, 68 (1980) (finding a utility had no duty to deenergize its lines or warn an electrical contractor of “obvious hazards which are an integral part of the work the contractor was hired to perform”); Durbin v. Culberson Cnty., 132 S.W.3d 650, 660-61 (Tex.Ct.App.2004) (finding that the defendant owed no duty to a contractor who was electrocuted while changing out light bulbs on an energized pole, despite the contractor’s argument that the defendant should have provided locked down switches); cf. Groover v. Camp Dresser & McKee Inc., 420 Fed.Appx. 358, 362 (5th Cir.2011) (holding that a general contractor owed no duty to an employee of a subcontractor to warn of dangers of electrocution); Edick v. Paul de Lima Co., Inc., 6 A.D.3d 864, 775 N.Y.S.2d 385, 386 (2004) (holding a company that serviced a coffee maker owed no duty to an employee who received an electric shock while attempting to clean the coffee maker).


holding a company that serviced a coffee maker owed no duty to an employee who received an electric shock while attempting to clean the coffee maker


finding an employer owed no duty to a contractor's employee in the absence of "latent or concealed dangers" or "actual physical control over the work area"


finding a utility had no duty to deenergize its lines or warn an electrical contractor of "obvious hazards which are an integral part of the work the contractor was hired to perform"


finding that the defendant owed no duty to a contractor who was electrocuted while changing out light bulbs on an energized pole, despite the contractor's argument that the defendant should have provided locked down switches


Context: Defendants' liter-alist approach to this definition, an apparent source of much discourse among the courts in this circuit and others, has been explicitly rejected by the Second Circuit. In Zeller, the Second Circuit held that "the mere fact that a note has a maturity of less than nine months does not take the case out of Rule 10b-5, unless the note fits the general notion of 'commercial paper' ...."

enumerating categories in which notes with a maturity exceeding nine months may not constitute a "security"

Id. at 800. See also Reves v. Ernst & Young, 494 U.S. 56, 70-71, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990) (declining to determine whether exclusion of short-term notes in § 3(a)(10) should be given literal effect); SEC v. American Bd. of Trade, Inc., 751 F.2d 529, 538 (2d Cir.1984) (noting that decisional law bars a literal reading of § 3(a)(10) and that a note with maturity less than nine months may be a “security”); cf. Exchange Nat’l Bank v. Touche Ross & Co., 544 F.2d 1126, 1138 (2d Cir.1976) (enumerating categories in which notes with a maturity exceeding nine months may not constitute a “security”) and Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 939 (2d Cir.1984) (same).

declining to determine whether exclusion of short-term notes in SS 3(a)(10) should be given literal effect


noting that decisional law bars a literal reading of SS 3(a


Context: The ISTIL forgery findings were relevant under OEC 401 because they tended to show that plaintiff did have the skill and sophistication to create forged documents-- which, in the ISTIL case, included the creation of several letters and documents (both typewritten and on word processing equipment), faxes from different places, and forged signatures. That relevancy goes to the impeachment of plaintiffs factual assertions, not whether he had a propensity to forge documents.

See also State v. Momeni, 234 Or App 193, 227 P3d 1230, rev den, 348 Or 523 (2010) (high degree of similarity of circumstances between uncharged conduct and current charges not required when evidence is used for purpose other than to prove identity).

uncharged misconduct evidence admissible to impeach credibility of defendant's testimony

See State v. Manrique, 271 Or 201, 213, 531 P2d 239 (1975) (uncharged misconduct evidence admissible to impeach credibility of defendant’s testimony); State v. Smith, 86 Or App 239, 244, 739 P2d 577 (1987) (evidence of “other crimes” of the defendant that contradicts a statement of fact made by a witness may be used to impeach that witness’s credibility).


evidence of "other crimes" of the defendant that contradicts a statement of fact made by a witness may be used to impeach that witness's credibility


Context: The contrary view is also acknowledged in Mandelker, Land Use Law SS 5.37, p. 5-38. That treatise recognizes that a total ban can be appropriate: "Courts review the total exclusion of one type of commercial use from a community on a case-by-case basis to decide whether the exclusion advances legitimate zoning purposes."

"Connecticut courts have upheld prohibitions of certain activities within municipalities through zoning after determining that the prohibitions were rationally related to the protection of the municipalities' public safety, health and general welfare."

See, e.g., Beacon Falls v. Fosick, 212 Conn. 570, 583, 563 A.2d 285 (1989) (“Connecticut courts have upheld prohibitions of certain activities within municipalities through zoning after determining that the prohibitions were rationally related to the protection of the municipalities’ public safety, health and general welfare.”); see also Lambros, Inc. v. Town of Ocean Ridge, Fla., 392 So. 2d 993, 994 (Fla. 1981) (“The appellate courts in Florida have acknowledged the authority of a municipality to exclude certain uses of property entirely from a city.”). We observe that in Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974), the United States Supreme Court upheld a zoning ordinance that restricted land use to one-family dwellings for an entire village of 700 people.

"The appellate courts in Florida have acknowledged the authority of a municipality to exclude certain uses of property entirely from a city."


Context: Texas law supplies several limitations periods, applicable to different types of claims. Of the state law claims governed by the Texas statutes of limitations, we find that personal injury claims are most nearly analogous to the discrimination claims authorized by the Rehabilitation Act. As the Supreme Court has recognized, claims for discrimination are essentially claims for personal injury.

Actions pursuant to 42 U.S.C. SS 1981, alleging racial discrimination, "are in essence claims for personal injury."

See Goodman, 482 U.S. at 661, 107 S.Ct. at 2621 (Actions pursuant to 42 U.S.C. § 1981, alleging racial discrimination, “are in essence claims for personal injury.”); Wilson, 471 U.S. at 280, 105 S.Ct. at 1949 (Claims under 42 U.S.C. § 1983, including those which allege discrimination, “are best characterized as personal injury ac-tions_”); see also Price v. Digital Equipment Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (holding that Texas’ two-year statute of limitations applied to suit alleging racial discrimination under 42 U.S.C. § 1981); Cervantes v. IMCO, Halliburton Services, 724 F.2d 511, 514 (5th Cir.1984) (holding that Texas’ two-year statute of limitations applied to section 1981 action for discrimination on the basis of national origin).

holding that Texas' two-year statute of limitations applied to suit alleging racial discrimination under 42 U.S.C. SS 1981


holding that Texas' two-year statute of limitations applied to section 1981 action for discrimination on the basis of national origin


Claims under 42 U.S.C. SS 1983, including those which allege discrimination, "are best characterized as personal injury ac-tions_"


Context: Ultimately, I concluded that the e-mail evidence was sufficiently reliable to show that defendant conspired to smuggle women for purposes of prostitution. Defendant presented no contrary evidence. Therefore, a departure was appropriate.

affirming upward departure based on evidence of defendant's past, uncharged criminal conduct, including violence to prostitutes he pimped

See United States v. Carter, 111 F.3d 509, 514 (7th Cir.1997) (affirming upward departure based on evidence of defendant’s past, uncharged criminal conduct, including violence to prostitutes he pimped); see also United States v. Delmarle, 99 F.3d 80, 85-86 (2d Cir.1996) (affirming upward departure based on foreign criminal conduct, even though foreign conviction was constitutionally infirm, because investigative records were sufficiently reliable).


Context: Nevertheless, a handgun with an obliterated serial number seems distinct from a weapon like a short-barreled shotgun. While a short-barreled shotgun is dangerous and unusual in that its conceal-ability fosters its use in illicit activity, it is also dangerous and unusual because of its heightened capability to cause damage.

"With its shorter barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that makes a sawed-off shotgun useful for only violence against another person .... "

See United States v. Amos, 501 F.3d 524, 532 (6th Cir.2007) (McKeague, J., dissenting) (“With its shorter barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that makes a sawed-off shotgun useful for only violence against another person .... ”); see also United States v. Upton, 512 F.3d 394, 404 (7th Cir.2008) (likening sawed-off shotguns to “other dangerous weapons like bazookas, mortars, pipe bombs, and machine guns”).

likening sawed-off shotguns to "other dangerous weapons like bazookas, mortars, pipe bombs, and machine guns"


Context: . This principle is not at all alien to the federal system, as federal tax obligations have been interpreted in an identical manner.

holding that a derivatively liable corporate officer need not be separately assessed because "[t]he consequences of the assessment ... attach to the tax debt without reference to the special circumstances of the secondarily liable parties."

See Gallet-ti, 541 U.S. at 123, 124 S.Ct. 1548 (holding that a derivatively liable corporate officer need not be separately assessed because "[t]he consequences of the assessment ... attach to the tax debt without reference to the special circumstances of the secondarily liable parties.”); United States v. Holmes, 727 F.3d 1230, 1235 (10th Cir.2013) (same).

observing that state "taxing scheme[s]" may "switch[] the incidence of the tax from one party to a transaction to another when the party that would ordinarily be taxed is immune."

See also Washington v. United States, 460 U.S. 536, 544 n. 9, 103 S.Ct. 1344, 75 L.Ed.2d 264 (1983) (observing that state "taxing scheme[s]” may "switch[] the incidence of the tax from one party to a transaction to another when the party that would ordinarily be taxed is immune.”).


See Galletti, 541 U.S. at 123, 124 S.Ct. 1548 (holding that a derivatively liable corporate officer need not be separately assessed because "[t]he consequences of the assessment ... attach to the tax debt without reference to the special circumstances of the secondarily liable parties.”); United States v. Holmes, 727 F.3d 1230, 1235 (10th Cir.2013) (same).

See also Washington v. United States, 460 U.S. 536, 544 n. 9, 103 S.Ct. 1344, 75 L.Ed.2d 264 (1983) (observing that state “taxing scheme[s]” may "switch[] the incidence of the tax from one party to a transaction to another when the party that would ordinarily be taxed is immune.”).


Context: . The only detail of the evaluation duty that Section 321(a) provides is that the duty includes "investigating threatened plant closures or reductions in employment allegedly resulting from [CAA] administration or enforcement." 42 U.S.C. SS 7621(a). However, Section 321(a) explicitly notes that these investigations need only be conducted "where appropriate," id., and thereby renders them a matter of agency discretion unreviewable under Section 304(a)(2). See Guilford Cty.

holding that a statute providing that a state "shall" offer training and assistance "if appropriate" leaves the state with "discretion in providing training and assistance"

Cmty. Action Program, Inc. v. Wilson, 348 F.Supp.2d 548, 556 (M.D.N.C. 2004) (holding that a statute providing that a state "shall” offer training and assistance "if appropriate” leaves the state with "discretion in providing training and assistance”); cf. Michigan v. EPA, - U.S. -, 135 S.Ct. 2699, 2707, 192 L.Ed.2d 674 (2015) (explaining that " 'appropriate' is the classic broad and all-encompassing term” — one that "leaves agencies with flexibility”) (internal quotation marks omitted).

explaining that " 'appropriate' is the classic broad and all-encompassing term" -- one that "leaves agencies with flexibility"


Context: In determining whether there is significant federal involvement, our cases focus not only on the efforts to obtain a warrant, but also on the execution of the warrant. However, since no federal officers were involved in the criminal investigation, or in obtaining or executing the warrant, federal rules did not apply to the search.

before the exclusionary rule was held applicable to the states, federal participation in execution of state warrant rendered the search "in substance and effect ... a joint operation" of local and federal officers to which federal exclusionary rules apply

Cf. Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520 (1927) (before the exclusionary rule was held applicable to the states, federal participation in execution of state warrant rendered the search “in substance and effect ... a joint operation” of local and federal officers to which federal exclusionary rules apply); Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) (“The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means.

Id. at 662-63. See also Moore, 956 F.2d at 847 (section 3109 not applicable where state officers acted totally without federal involvement in seizing evidence); United States v. Murphy, 69 F.3d 237, 242 (8th Cir.1995) (no “significant federal involvement” where no federal officer participated in initial entry and search of residence, and where federal officers not contacted until after state officers found what they believed to be explosives). In United States v. Schroeder, 129 F.3d 439, 443 (8th Cir.1997), we held that even the presence of federal officers at the search would not have constituted significant federal involvement, at least where state officers obtained and executed a warrant issued by a state judge as part of an investigation based on state law.


no "significant federal involvement" where no federal officer participated in initial entry and search of residence, and where federal officers not contacted until after state officers found what they believed to be explosives


Context: Although this evidence clearly and convincingly supports the finding that rather than separating from his spouse, Father "has chosen, instead, to remain with his wife," App. at 17 (Order at 8, P 2), Father's unwillingness to live separately from a mentally ill spouse, without more, is an insufficient basis upon which to terminate his parental rights. As our courts have long held: "Mental [disability] of the parents, standing alone, is not a proper ground for terminating parental rights."

affirming termination of Mother's and Father's parental rights not only due to "Mother's refusal to take readily available steps to bridge the communication gap caused [by her disability, which] seriously hindered Mother's ability to effectively care for her children" but concluding that "[i]n addition to not being able to appropri ately supervise the children, [both parents] fail[ed] to complete home-based services, and fail[ed] to improve their ability to effectively communicate with each other, ... [and] the parents had also not achieved the dispositional goal of securing and maintaining a safe and stable home"

Egly, 592 N.E.2d at 1234 (citing Ind.Code § 31-6-5-4(c) (1990); Matter of Dull, 521 N.E.2d 972, 976 (Ind.Ct.App.1988) (“finding] that retardation of a parent by itself is not a ground for termination of parental rights” (emphasis in original) (citations omitted))); but see R.W., Sr., v. Marion Cnty. Dep’t of Child. Servs., 892 N.E.2d 239, 249, 248 (Ind.Ct.App.2008) (affirming termination of Mother’s and Father’s parental rights not only due to “Mother’s refusal to take readily available steps to bridge the communication gap caused [by her disability, which] seriously hindered Mother’s ability to effectively care for her children” but concluding that “[i]n addition to not being able to appropri ately supervise the children, [both parents] fail[ed] to complete home-based services, and fail[ed] to improve their ability to effectively communicate with each other, ... [and] the parents had also not achieved the dispositional goal of securing and maintaining a safe and stable home”); R.G. v. Marion Cty.

"finding] that retardation of a parent by itself is not a ground for termination of parental rights" (emphasis in original


Context: . Defendants also premise their motion to dismiss on Rule 9(b), but the PSLRA "super-cedes and embodies the standards of Rule 9(b)."

Cf. In re Navarre Corp. Sec. Litig., 299 F.3d 735, 742 (8th Cir.2002) ("[T]he investors technically do not need to meet the requirements of both Federal Rule of Civil Procedure 9(b) and the PSLRA, as the PSLRA supersedes reliance on 9(b) in securities fraud cases and embodies the standards of 9(b).”).

"The PSLRA requirements are more rigorous than those under Rule 9(b

In re Nash Finch Co. Sec. Litig., 502 F.Supp.2d 861, 871 n. 5 (D.Minn.2007). Accord Lustgraaf v. Behrens, 619 F.3d 867, 874 n. 2 (8th Cir.2010) (“The PSLRA requirements are more rigorous than those under Rule 9(b) of the Federal Rules of Civil Procedure.”).


Context: Ebid claims that the IJ erred in making an adverse credibility determination on the basis of the submission of one fraudulent document that Ebid explained was the result of a friend's advice that he needed corroboration and the fact that he could not obtain one from his doctor in Egypt. We disagree. An asylum applicant's knowing use of a fraudulent document that goes to the heart of his or her asylum claim, without sufficient explanation, can be substantial evidence to support an IJ's decision.

holding that an asylum applicant's submission of false documents without an adequate explanation supported adverse credibility findings

See In re O-D-, 21 I. & N. Dec. at 1083 (holding that an asylum applicant’s submission of false documents without an adequate explanation supported adverse credibility findings); accord, Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006) (holding that, absent a satisfactory explanation, a report indicating that petitioner’s birth certificate was forged impeached her “general credibility” and observing that the IJ could have rested the adverse credibility determination on this fact alone); cf. Lin v. Gonzales, 445 F.3d 127, 132 (2d Cir.2006) (“An IJ may be justified in some circumstances in concluding that a falsified document that goes to the heart of an applicant’s claim for asylum, if submitted as evidence in an asylum proceeding, calls into question the authenticity of other documents submitted in support of that application.”).

"An IJ may be justified in some circumstances in concluding that a falsified document that goes to the heart of an applicant's claim for asylum, if submitted as evidence in an asylum proceeding, calls into question the authenticity of other documents submitted in support of that application."


Context: In support of its slander per se claim, Plaintiff alleges that Hall "has stated and continues to state to Agilysys's existing customers and prospective customers that Agilysys is no longer in the business of selling IBM hardware or IBM solutions for such hardware." Am. Compl. at P 198. Plaintiff also alleges that "Hall has made false statements to Agilysys's customers and prospective customers regarding Agi-lysys's capacity to meet customer needs with respect to iSeries and IBM hardware and- solutions."

Bellemead, LLC, 280 Ga. at 639, 631 S.E.2d 693 (finding no slander per se where the defendant allegedly said that the plaintiff would not be selling lots much longer because the plaintiff was leaving the area and suggesting that the buyer should buy lots from the defendant instead); see B & F Sys., Inc. v. LeBlanc, No. 7:07-CV-192 HL, 2011 WL 4103576, at *30 (M.D. Ga. Sept. 14, 2011) (statements that the plaintiff was out of business did not constitute slander per se because they did not imply any dishonest or discreditable conduct on the Plaintiffs part).


Context: First, as we explain below, a fact question remains as to whether there was sufficient probable cause to arrest Blondin for obstruction. Even if he committed a crime, though, that crime--failing to immediately comply with an officer order to get back from the scene of an arrest, when he was already standing thirty-seven feet away--was far from severe.

trespassing and obstructing a police officer were not "serious offenses"

See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.2007) (trespassing and obstructing a police officer were not “serious offenses”); see also Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.2005) (en banc) (domestic violence suspect was not “particularly dangerous,” and his offense was not “especially egregious”).

domestic violence suspect was not "particularly dangerous," and his offense was not "especially egregious"


Context: Federal courts have also enforced the protection of SS 407 from post judgment garnishment procedures which allowed the garnishment of bank accounts containing Social Security funds where the procedures did not clearly distinguish these funds.

See also, Reigh v. Schleigh, 595 F.Supp. 1535, 1555, n. 15 (D.Md.1984) (notice to debtors must inform them of exemption of Social Security benefits from attachment); Dionne v. Bouley, 583 F.Supp. 307, 319 (D.R.I.1984), aff'd 757 F.2d 1344 (1st Cir.1985); Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178, 1187-88 (S.D.N.Y.1982).

See Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980) (bank accounts may not be attached without regard to whether they contain Social Security funds).


Context: However, the record also demonstrates that plaintiff was reassigned from a route suitable for "experienced couriers" to a route that did not require experience and was a "back buster." Moreover, plaintiff presented evidence that the reassignment required him to drive a truck, which plaintiff describes as the "the worst truck in the station" because of its poor transmission, lap-belt seat belts and lack of shelving. Dep. Grosso at 97. For these reasons, a reasonable jury could find that plaintiff suffered an adverse employment action when he was reassigned to route 202.

See Burlington Northern, 126 S.Ct. at 2417 (reassignment of job duties was “materially adverse” for the purposes of Title VII retaliation claim where plaintiff was reassigned from a job that required “more qualifications” to a job that was “more arduous and dirtier.”); see also Voorhees, 1999 WL 673062 at *6 (plaintiff suffered adverse employment action when her job responsibilities were reduced and her office location changed, even though plaintiff received the same salary and benefits).

reassignment of job duties was "materially adverse" for the purposes of Title VII retaliation claim where plaintiff was reassigned from a job that required "more qualifications" to a job that was "more arduous and dirtier."


Context: Despite our recognition of the problem of homelessness among veterans, we are not bound by the Secretary's concession when considering whether Ms. Checo's homelessness is an extraordinary circumstance.

holding that the Court will "evaluate the evidence presented and determine whether equitable tolling is appropriate on a case-by-case basis"

See Bove, 25 Vet.App. at 140-41 (holding that the 120-day judicial appeal period is not subject to waiver or forfeiture by the Secretary); see also McCreary, 19 Vet.App. at 332 (holding that the Court will “evaluate the evidence presented and determine whether equitable tolling is appropriate on a case-by-case basis”).


Context: Yet, appellant argues that because the decedent did not intend to injure Odegard, the intentional act exclusion is not applicable.

See German Mut Ins. Co. v. Yeager, 554 N.W.2d 116, 117 (Minn.App.1996), review denied (Minn. Dec. 23, 1996) (ruling that an intentional act exclusion to insurance coverage applies only when insured intends to cause harm, not when insured merely intends the act); see also Continental W. Ins. Co. v. Toal, 309 Minn. 169, 177-78, 244 N.W.2d 121, 126 (1976) (inferring intent to injure when the acts were calculated and remorseless, such as intentional preparation to inflict serious injury by carrying loaded guns).


Context: . The circumstances surrounding any allegedly voluntary confession or consent to search include whether the purported confessor or consenter is subjected to custodial interrogation.

"[T]he Court has recognized that the interrogation process is 'inherently coercive ' and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion." (emphasis supplied

See, e.g., Bram v. United States, 168 U.S. 532, 558, 18 S.Ct. 183, 42 L.Ed. 568 (1897) ("[A]s one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether ... the statements of the prisoner were voluntary.”); United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (identifying custodial status as one relevant, non-disposi-tive voluntariness factor, and contrasting consents given while in custody in a public place from those given within the “confines of [a] police station " (emphasis supplied)); United States v. Carter, 884 F.2d 368, 370-71, 375 (8th Cir.1989) (identifying custodial atmosphere and police interrogation as relevant voluntariness factors); cf. Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ("[T]he Court has recognized that the interrogation process is ‘inherently coercive ' and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion.” (emphasis supplied)).

"[A]s one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether ... the statements of the prisoner were voluntary."


identifying custodial status as one relevant, non-disposi-tive voluntariness factor, and contrasting consents given while in custody in a public place from those given within the "confines of [a] police station " (emphasis supplied


identifying custodial atmosphere and police interrogation as relevant voluntariness factors


Context: First, the court reasoned that McGuire had not satisfied the exclusive control requirement of the res ipsa loquitur doctrine because she sued multiple defendants, each of whom had a right or an ability to control. However, the law is to the contrary. Res ipsa loquitur has been applied in situations where multiple defendants have jointly exercised control of the instrumentality or agency that caused the plaintiffs injuries.

See also Swierczek v. Lynch, 466 N.W.2d 512 (Neb. 1991) (res ipsa loquitur applicable to alleged negligence of hospital, oral surgeon, and nurse anesthetist); Stalter v. Coca-Cola Bottling Co., 669 S.W.2d 460 (Ark. 1984) (grocery store and bottling company properly joined as defendants in res ipsa case involving falling bottle); Jackson v. H.H. Robertson Co., 574 P.2d 822 (Ariz. 1978) (en banc) (negligence action based on construction site accident properly maintainable against two subcontractors under res ipsa loquitur).

See, e.g., Samson v. Riesing, 62 Wis. 2d 698, 708, 215 N.W.2d 662, 667-68 (1974) (application of the doctrine permissible where evidence establishes that exclusive control was exercised collectively by the defendants).


grocery store and bottling company properly joined as defendants in res ipsa case involving falling bottle


Context: The plaintiff makes no argument in his brief before us, as he did in the court below, that the defendants' easements "to the Annisquam River" do not extend as set out in the judgment. (See n.6.)

See also Valentine v. Piper, 22 Pick. 85, 94 (1839) (presumption in grant is that it extends to low water mark); Frankel, Law of Seashore Waters and Water Courses: Maine and Massachusetts 50-51 (1969).

"words of similar import . . . convey title to the low water mark"

See Old Colony St. Ry. v. Phillips, 207 Mass. 174, 179-181 (1911); Michaelson v. Silver Beach Improvement Assn., 342 Mass. 251, 260-261 (1961) (“words of similar import . . . convey title to the low water mark”).


Context: Marsh chose to rely upon assistance from the prison legal access attorney and an inmate law clerk despite the fact that he was raising in the state courts only the unexhausted claims he already had raised in federal court." R. doc. 11, at 5-6. The fact that an inmate law clerk was assisting in drafting the state petition does not relieve Mr. Marsh from the personal responsibility of complying with the law.

See Henderson v. John son, 1 F.Supp.2d 650, 655 (N.D.Tex.1998) (noting that although inmate had received assistance from fellow inmate, he could have filed the petition himself at any time); see also Steed, 219 F.3d 1298, 1300 (holding that attorney miscalculation of AEDPA time period did not justify equitable tolling).


Context: The requirement that a district court transfer an action within the jurisdiction of the circuit court is jurisdictional. SS 12-11-9. However, for a district-court order transferring an action to the circuit court to be effective, the circuit court must have exclusive subject-matter jurisdiction over the action.

Alexander v. Hawk, 189 So.3d 824, 827 (Ala.Civ.App.2013) (holding that, when the district court improperly purported to transfer to the circuit court an action over which the circuit court lacked subject-matter jurisdiction, the circuit court was without jurisdiction to enter its judgment, which was void, and dismissing the appeal from that void judgment); Darby v. Schley, 8 So.3d 1011, 1014 (Ala.Civ.App. 2008) (holding that, because the circuit court did not have subject-matter jurisdiction over the unlawful-detainer action, the district court’s “unauthorized transfer” of the action “could not transfer jurisdiction over that action to the” circuit court); cf. Ex parte Smith, 438 So.2d 766, 767-68 (Ala.1983) (holding that, when the district court dismissed, rather than transferred, a case not within its jurisdiction and a party appealed that dismissal, the circuit court could consider only the propriety of the dismissal on appeal, and determining that the circuit court lacked jurisdiction on appeal to consider the merits of the action).


holding that, because the circuit court did not have subject-matter jurisdiction over the unlawful-detainer action, the district court's "unauthorized transfer" of the action "could not transfer jurisdiction over that action to the" circuit court


Context: Finally, under the last prong of the test, employer failed to prove a causal relationship between the injury and the false representation. There is simply no evidence in the record that Lopez's alien status was in any way related to the consequent injury.

finding no causal connection between claimant's lumbo-sacral back injury and misrepresentation as to existence of prior "backaches" where prior back pain was caused by medical problems unrelated to the back

See Grimes, 12 Va. App. at 667-68, 406 S.E.2d at 409 (finding no causal connection between claimant’s lumbo-sacral back injury and misrepresentation as to existence of prior “backaches” where prior back pain was caused by medical problems unrelated to the back); cf. McDaniel, 3 Va. App. at 413-14, 350 S.E.2d at 228-29 (finding a causal relationship between the injury involving back pain radiating into hip and leg and the misrepresentation where claimant, who had been unable to work at prior jobs because of back pain radiating into both legs, stated in job application that he had no specific problems which would prevent him from working).


Context: We lack jurisdiction to consider Celis-Arambula's contention that the IJ was partial and violated his right to due process because he did not raise that issue before the BIA, and thereby failed to exhaust his administrative remedies.

issues not argued in a petitioner's BIA appeal brief have not been exhausted, and the court lacks jurisdiction to consider them

See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (issues not argued in a petitioner’s BIA appeal brief have not been exhausted, and the court lacks jurisdiction to consider them); see also Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.2002) (this court may not entertain due process claims based on correctable procedural errors unless an alien first gives the BIA an opportunity to address them).


Context: The reasons for the changes given by the deponents were to clarify, to correct a misstatement, or to correct a response because the deponent did not. understand the question. In addition, the errata sheets were delivered to defendants prior to their filing their motion for summary judgment, and defendants have not alleged that plaintiffs failed to follow the proper procedures set forth in rule 30(e) to make the changes.

See Rios v. Welch, 856 F.Supp. 1499, 1502 (D.Kan.1994) (responding to plea for reconsideration of weight to be given to corrected deposition testimony the court responded that it was its belief that a plaintiff is not permitted to “virtually rewrite portions of a deposition, particularly after the defendant has filed a summary judgment motion, simply by invoking the benefits of Rule 30(e)”); see also Duff v. Lobdell-Emery Mfg. Co., 926 F.Supp. 799, 804 (N.D.Ind.1996) (failure to provide explanation for changes to deposition testimony resulted in court striking the evidence and disregarding same, in summary judgment analysis).

responding to plea for reconsideration of weight to be given to corrected deposition testimony the court responded that it was its belief that a plaintiff is not permitted to "virtually rewrite portions of a deposition, particularly after the defendant has filed a summary judgment motion, simply by invoking the benefits of Rule 30(e


Context: The orders are void because the district court lacked subject matter jurisdiction over the underlying action. Because the orders are void, appellants argue, appellants should be restored to the position they would have been in had the orders never been entered.

Watts, 752 F.2d at 410 (finding that defendant was entitled to restitution under Rule 60(b)(4) because the judgment against him was void); see also Vander Zee v. Karabatsos, 683 F.2d 832, 834 (4th Cir.1982) (explaining that a garnishee is entitled to restitution of payment made on a void judgment).


Context: Because we have determined from the outset that the carjacking statute is directed at regulating economic activity, we do not need to address the separate question of whether the statute's jurisdictional element also renders it constitutional as another species of Category Three regulation.

focusing on sufficiency of firearm statute's jurisdictional element as basis for valid exercise of commerce power

See United States v. Wall, 92 F.3d 1444, 1450 (6th Cir.1996) (absence of jurisdictional element not fatal to federal gambling statute); United States v. Tucker, 90 F.3d 1135, 1141 (6th Cir.1996) (“Lopez did not proclaim a general rule that all federal criminal statutes must include a jurisdictional element.”); cf. United States v. Chesney, 86 F.3d 564, 568-69 (6th Cir.1996) (focusing on sufficiency of firearm statute’s jurisdictional element as basis for valid exercise of commerce power).


"Lopez did not proclaim a general rule that all federal criminal statutes must include a jurisdictional element."


Context: In order to invoke the "double jeopardy bar," a defendant need not demonstrate that the declaration of a mistrial prejudiced him in any way other than infringement on the "valued right" to have the empaneled tribunal decide his cause.

majority holds declaration of mistrial was not supported by manifest necessity, although, in words of the dissent, "the mistrial was not requested by the prosecutor, and there is not the slightest indication that he desired it to occur."

See Jorn, 400 U.S. at 490, 91 S.Ct. at 559 (majority holds declaration of mistrial was not supported by manifest necessity, although, in words of the dissent, “the mistrial was not requested by the prosecutor, and there is not the slightest indication that he desired it to occur.”) (Stewart, J., dissenting).

mistrial improper even when not requested or desired by government and only declared because of "the interest of the defendant"

See also United States v. Council, 973 F.2d at 255 (mistrial improper even when not requested or desired by government and only declared because of “the interest of the defendant”); Sartori 730 F.2d at 977 (mistrial improper although not requested or desired by government and declared solely because of court’s possible conflict with defense position).


mistrial improper although not requested or desired by government and declared solely because of court's possible conflict with defense position


Context: The Bank admitted discharging Hollingsworth for misconduct uncovered in the course of discovery. This, however, does not constitute an admission that the Bank discharged Hollingsworth in retaliation for participation in protected activity. If the Bank had in fact admitted that a retaliatory motive was the reason or one of several reasons for discharging Hollingsworth, then a directed verdict for Hollingsworth would have been appropriate.

Kinney v. Bauch, 23 Wn. App. 88, 91, 596 P.2d 1074 (1979) (discharge based to any degree on retaliatory motive violates RCW 49.60-.210); cf. Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir. 1982) (must be established that engaging in the protected activity was one of the reasons for discharge and that the discharge would not have occurred but for the activity).


Context: The failure to object to those rulings when the district court still had an opportunity to correct any irregularity constitutes acquiescence. See Liljeberg v. Health Servs.

stating that remedies for violations of the recusal statute depend on making "a timely request for rehef'

Acquisition Corp., 486 U.S. 847, 868, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (stating that remedies for violations of the recusal statute depend on making “a timely request for rehef’); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1108-09 (9th Cir.2001) (stating that failure to raise issues or raising issues too late constitutes waiver); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.1992) (“To hold otherwise would encourage parties to withhold recusal motions, pending a resolution of their dispute on the merits, and then if necessary invoke [recusal] in order to get a second bite at the apple.”).


"To hold otherwise would encourage parties to withhold recusal motions, pending a resolution of their dispute on the merits, and then if necessary invoke [recusal] in order to get a second bite at the apple."


Context: At trial, the Levy defendants offered no evidence that the plaintiffs acted in a manner which justified a belief on the part of defendants that their copyright was free from challenge. Although in some instances, silence and inaction may induce justifiable reliance on the part of the defendant, those circumstances are not present when the defendant is in a position to ascertain the extent of the competing claim.

Hampton, 279 F.2d at 105. See also 3 Nimmer, § 13.07 (acknowledging that such acts of omission rarely satisfy elements of estoppel.) In the instant case, not only did Goldner and Levy know of the plaintiffs’ claim to ownership of the Fools copyright and attempt to conceal the accrual of royalties from them, but Levy also, in part, caused the plaintiffs’ silence and inaction.

"one who seeks Equity's assistance must stand before the court with clean hands"

Cf. Stone II, 891 F.2d 401, 404, (“one who seeks Equity’s assistance must stand before the court with clean hands”) (citation omitted).


Context: (Id. 31 at 10-11.) The standard for determining whether this particular type of regulatory taking has occurred, however, "is not whether the landowner has been denied those uses to which he wants to put his land; it is whether the landowner has been denied all or substantially all economically viable use of his land." Plaintiffs have made no showing that the "mere enactment" of the Ordinance will deprive landowners of all or substantially all economically viable use of their land; thus, Plaintiffs have not yet demonstrated a facial taking of constitutional proportions.

noting that "[m]any zoning ordinances place limits on the property owner's right to make profitable use of some segments of his property"

See, e.g., DeBenedictis, 480 U.S. at 498, 107 S.Ct. 1232 (noting that “[m]any zoning ordinances place limits on the property owner’s right to make profitable use of some segments of his property”); see also Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 296, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (rejecting facial takings claim in part because statute did “not purport to regulate alternative uses to which [property in question] may be put”). Accordingly, Defendant is entitled to summary judgment to the extent Plaintiffs assert a facial takings claim under federal law.

rejecting facial takings claim in part because statute did "not purport to regulate alternative uses to which [property in question] may be put"


Context: Without standing, the court has no jurisdiction over a petition for declaratory relief. Because standing is a necessary component of the court's subject-matter jurisdiction, it cannot be waived, and its absence can be raised at any time.

equating Court's review of dismissal for lack of standing in declaratory-judgment action with dismissal for lack of subject-matter jurisdiction

See Brod, 2007 VT 87, ¶ 2 (equating Court’s review of dismissal for lack of standing in declaratory-judgment action with dismissal for lack of subject-matter jurisdiction); Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) (subject-matter jurisdiction cannot be waived and can be raised at any time); Harris v. Evans, 20 F.3d 1118, 1121 n.4 (11th Cir. 1994) (noting that standing cannot be waived and may be asserted at any stage of litigation); Palmer v. Bahm, 2006 MT 29, ¶ 16, 331 Mont. 105, 128 P.3d 1031 (stating that standing is “threshold requirement of every case” and may be raised at any time); see also Warth v. Seldin, 422 U.S. 490, 517-18 (1975) (“The rules of standing ... are threshold determinants of the propriety of judicial intervention.”).

"The rules of standing ... are threshold determinants of the propriety of judicial intervention."


subject-matter jurisdiction cannot be waived and can be raised at any time


noting that standing cannot be waived and may be asserted at any stage of litigation


stating that standing is "threshold requirement of every case" and may be raised at any time


Context: Even assuming that New York does not require written notification under section 9-504(3), the district court determined that Metlife did not provide adequate oral notification. This determination of a mixed question of law and fact is subject to our review under a deferential standard.

trial court's determination that defendant had actual notice of prior interest in goods was not clearly erroneous

See Shacket v. Philko Aviation, Inc., 841 F.2d 166, 170 (7th Cir.1988) (trial court’s determination that defendant had actual notice of prior interest in goods was not clearly erroneous); see also Yockey v. Horn, 880 F.2d 945, 949 n. 6 (7th Cir.1989) (clearly erroneous standard of review is employed for mixed questions of law and fact).


Context: Finally, although Wright's dicta relating to pledges obviously should be followed because pledges are addressed by the text of Application Note 7(b),-Wright's dicta relating to "immediate recovery from the actual debtor" should be limited to cover the Chichy-iike situation where a criminal defendant in a fraudulent loan case procured the loan for a third party. If this latter piece of dicta were read broadly to apply to any situation where repayment was made immediately, then it contradicts other more tightly and cautiously reasoned circuit precedent.

"the relevant point in time for determining the amount of loss in a fraud case is at the time the crime was detected, rather than at sentencing"

See also United States v. Flowers, 55 F.3d 218 (6th Cir.) (“the relevant point in time for determining the amount of loss in a fraud case is at the time the crime was detected, rather than at sentencing”), cert. denied, — U.S.-, 116 S.Ct. 261, 133 L.Ed.2d 185 (1995), a check kiting case.

See United States v. Scott, 74 F.3d 107, 111 (6th Cir.1996) (refusing to permit a bank loan officer to deduct repayments made within about one month after discovery of the fraud by the bank).


Context: We are also concerned about the application of the permit requirement to groups of ten or more persons. We entertain doubt whether applying the permit requirement to such a small group is sufficiently tied to the City's interest in protecting the safety and convenience of citizens who use the public sidewalks and streets.

recognizing that permit requirement, applied to a "parade or procession" of five groups of fifteen to twenty persons, serves the government interest of public convenience

See Cox, 312 U.S. at 576, 61 S.Ct. at 765-66 (recognizing that permit requirement, applied to a “parade or procession” of five groups of fifteen to twenty persons, serves the government interest of public convenience).

comparing the Portland ordinance to the participant requirements of other cities, and concluding that the other cities' ordinances which, in general, had participant requirements of at least 50 persons, "appear much more narrowly tailored"

See also Grossman, 33 F.3d at 1207 n. 13 (comparing the Portland ordinance to the participant requirements of other cities, and concluding that the other cities’ ordinances which, in general, had participant requirements of at least 50 persons, “appear much more narrowly tailored”); Rosen v. Port of Portland, 641 F.2d 1243, 1248 n. 8 (9th Cir.1981) (stating that even if 24-hour notice requirement were justified for large groups, it sweeps too broadly in regu-lating small groups.)


stating that even if 24-hour notice requirement were justified for large groups, it sweeps too broadly in regu-lating small groups.


Context: An unlawful denial of access can occur in many different ways, including delay.

"The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt."

See, e.g., Tribune Co. v. Cannella, 458 So.2d 1075, 1079 (Fla.1984) (“The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.”); see also Barfield v. Town of Eatonville, 675 So.2d 223 (Fla. 5th DCA 1996) (“An unjustified delay in complying with a public record request amounts to an unlawful refusal under section 119.12(1), Florida Statutes.”).

"An unjustified delay in complying with a public record request amounts to an unlawful refusal under section 119.12(1), Florida Statutes."


Context: BJVSD has made no showing that it had an individual legal right relative to the underlying judgment and the complained-of post-judgment orders.

"Without breach of a legal right belonging to the plaintiff no cause of action can accrue to his benefit."

See Nauslar, 170 S.W.3d at 249 (holding that only one whose primary legal right has been breached may seek redress for injury); see also Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976) (“Without breach of a legal right belonging to the plaintiff no cause of action can accrue to his benefit.”).


Context: Admittedly, this interest did increase due to the 1987 settlement. However, the real issues here are not over the royalty interest itself but rather whether there was a breach of duty to market or, alternatively, whether a take-or-pay settlement should be subject to such royalties at all, both questions of Texas law.

"While it is true that this court approved the agreement, that alone would not confer jurisdiction to resolve all subsequent disputes regardless of their connection to the bankruptcy case"

In re Gerken Trucking, Inc., 10 B.R. 203, 205 (Bankr.N.D.Ohio 1981) (“Adoption of the [collective bargaining] agreement in the plan does not result in the Court’s retaining jurisdiction over post confirmation controversies relating to that agreement”); see also, In re Greenley Energy Holdings of Pa., 110 B.R. 173, 180-81 (Bankr.E.D.Pa.1990) (and authorities cited therein); In re Almarc Corp., 94 B.R. 361, 366 (Bankr.E.D.Pa.1988) (“While it is true that this court approved the agreement, that alone would not confer jurisdiction to resolve all subsequent disputes regardless of their connection to the bankruptcy case”).

"Adoption of the [collective bargaining] agreement in the plan does not result in the Court's retaining jurisdiction over post confirmation controversies relating to that agreement"


Context: The appellant left the bag in the motel room with his girlfriend, who was alone in the room when law enforcement arrived. The police believed that she had control of the room, and the evidence showed that the appellant intended to reunite with her after the drug transaction.

See United States v. Morgan, 936 F.2d 1561, 1570-71 (10th Cir.1991) (observing that leaving an item in the care of another may refute an intent to abandon it); cf. Knight, 61 VaApp. at 309 n. 5, 734 S.E.2d at 722 n. 5 (noting in dicta that an owner generally retains a reasonable expectation of privacy even in lost property, subject to the finder’s examining it to identify its owner).

noting in dicta that an owner generally retains a reasonable expectation of privacy even in lost property, subject to the finder's examining it to identify its owner


Context: A losing bidder seeking to interfere with a government procurement must meet a high burden.

ruling that a "protester must show not only a significant error in the procurement process, but also that the error prejudiced it."

See, e.g., Banknote Corp., 365 F.3d at 1351; Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir.2000) (noting that the “arbitrary and capricious standard ... is highly differential ... [and] requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”); see also Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (ruling that a “protester must show not only a significant error in the procurement process, but also that the error prejudiced it.”).

noting that the "arbitrary and capricious standard ... is highly differential ... [and] requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors."


Context: For purposes of the Corrupt Organizations Act, it is unnecessary to consider whether these acts are sufficient for conviction of the predicate drug offenses. Indeed, our case law emphasizes that conviction of the predicate offenses is neither required nor necessary in the determination of a violation of the corrupt organizations statute.

upholding a defendant's conviction for violation of the corrupt organizations statute even though he had been acquitted of the predicate criminal acts

See also Commonwealth v. Cassidy, 423 Pa.Super. 1, 620 A.2d 9 (1993), appeal denied, 536 Pa. 619, 637 A.2d 279 (1993) (upholding a defendant’s conviction for violation of the corrupt organizations statute even though he had been acquitted of the predicate criminal acts).

"Under the Corrupt Organization Act, an offense could be established by proving, inter alia, that a person received income 'from a pattern of racketeering activity in which he participated as a principal.' 18 Pa.C.S. SS 911(b

See Commonwealth v. Magliocco, 806 A.2d 1280, 1287 (Pa.Super.2002) (“Under the Corrupt Organization Act, an offense could be established by proving, inter alia, that a person received income ‘from a pattern of racketeering activity in which he participated as a principal.’ 18 Pa.C.S. § 911(b)(1). The statute defined the element of ‘racketeering’ as ‘any act which is indictable’ under a prescribed number of Crimes Code chapters. 18 Pa.C.S. § 911(h)(l)(i). Significantly, this language does not require any criminal conviction, but merely a pattern of ‘indictable’ acts”).


Context: Rather, the ALJ detailed at substantial length why he found it lacking compared with the other evidence. This is all that we require when reviewing an administrative law judge's decision for compliance with 20 C.F.R. SS 404.1527(d)(2)'s reasons-giving requirement.

remanding where ALJ did not explain weight given to treating physician's opinion

See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir.2007) (approving ALJ’s decision declining to give treating sources controlling weight where ALJ’s decision stated that sources’ reports were “inconsistent with the overall evidence of record” and sources formed their opinion solely from claimant’s subjective symptoms); Anderson v. Comm’r of Soc. Sec., 195 Fed.Appx. 366, 370 (6th Cir.2006) (approving ALJ decision declining to give treating physician controlling weight where ALJ’s decision stated “that the doctor’s overall treatment notes did not support and were not consistent with his conclusory assertion that [the claimant] was disabled”); cf. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, at 245-46 (6th Cir.2007) (remanding where ALJ did not explain weight given to treating physician’s opinion); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 749-50 (6th Cir.2007) (remanding where ALJ “entirely failed to address the primary treating source’s presumptively supportable opinion”); Wilson, 378 F.3d at 545 (remanding where ALJ summarily dismissed treating physician’s opinion).

approving ALJ's decision declining to give treating sources controlling weight where ALJ's decision stated that sources' reports were "inconsistent with the overall evidence of record" and sources formed their opinion solely from claimant's subjective symptoms


remanding where ALJ "entirely failed to address the primary treating source's presumptively supportable opinion"


approving ALJ decision declining to give treating physician controlling weight where ALJ's decision stated "that the doctor's overall treatment notes did not support and were not consistent with his conclusory assertion that [the claimant] was disabled"


Context: Although the definition of cohabitation as set forth in the dissolution judgment is not controlled by SS 46b-86 (b), statutes are a useful source of policy for common-law adjudication, particularly when there is a close relationship between the statutory and common-law subject matters.

Fahy v. Fahy, 227 Conn. 505, 514-15, 630 A.2d 1328 (1993) (use of Public Acts 1990, No. 90-213, § 46, which amended General Statutes [Rev. to 1989] § 46b-86 [a], to conclude, as matter of common law, that elimination of contemplation requirement applies to alimony as well as child support orders); see New England Savings Bank v. Lopez, 227 Conn. 270, 281-82, 630 A.2d 1010 (1993) (Uniform Commercial Code used as statutory source for transactions involving real property); Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983) (same); Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983) (same); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980) (same); see also Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 453-54, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (statute governing rights of successor corporation following merger used as precedent for determining rights of partnership as successor entity following merger).


Context: The district court did not abuse its discretion by denying the Konarskis' motion under Federal Rules of Civil Procedure 59(e) and 60(b)(1) because the Konarskis failed to demonstrate excusable neglect or any other ground for relief.

See ACandS, 5 F.3d at 1263 (setting forth grounds for reconsideration under Rules 59(e) and 60(b)); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (setting forth four-factor equitable test for determining whether a party’s failure to meet a déadline constitutes “excusable neglect”).

setting forth four-factor equitable test for determining whether a party's failure to meet a deadline constitutes "excusable neglect"


Context: However, when this same evidence is viewed collectively it supports the trial court's determination that Barry constructively possessed the marijuana beyond a reasonable doubt. The trier-of-fact is "permitted to consider the circumstances surrounding the discovery of the drugs."

See also United States v. Lee, 356 F.3d 831, 837 (8th Cir.2003) (holding evidence establishing the intent of the defendants to distribute drugs also permits the inference they intended to exercise dominion over them to demonstrate constructive possession).

United States v. Flores, 362 F.3d 1030 (8th Cir.2004)(upholding drug convictions based on constructive possession of methamphetamine found in the spare tire of a vehicle in light of evidence of a close relationship and drug conspiracy between driver and passenger of the vehicle).


Context: In Zazueta-Carrillo, Vasquez-Lopez and Barragan-Sanchez, we relied on the aliens' previous voluntary departure agreements in rejecting their arguments for relief.

rejecting alien's argument that the voluntary departure period did not begin until after our review, in light of the "specific policy" of voluntary departure to encourage prompt departure

Zazueta-Carrillo, 322 F.3d at 1173-74 (rejecting alien’s argument that the voluntary departure period did not begin until after our review, in light of the “specific policy” of voluntary departure to encourage prompt departure); Vasquez-Lopez, 343 F.3d at 974 (“While the statute provides some incentives to an alien to apply for voluntary departure and thus avoid removal proceedings and removal, nothing there suggests that an alien who commits to departure in order to avoid such proceedings is nevertheless entitled to continue accruing ‘presence’ so as to become eligible for other discretionary relief.”); Barragan-Sanchez, 471 F.2d at 760-61 (holding that because alien’s two previous voluntary departures were the result of implied agreements and were not, therefore, strictly voluntary, they constituted significant departures that precluded a finding of seven years’ continuous presence in the United States under a rule that excused absences that were brief, casual and innocent); cf. Doherty, 502 U.S. at 324,112 S.Ct. 719 (holding that “the Attorney General did not abuse his discretion in denying reopening ... on the basis that respondent failed to satisfactorily explain his previous withdrawal of these claims”).

holding that "the Attorney General did not abuse his discretion in denying reopening ... on the basis that respondent failed to satisfactorily explain his previous withdrawal of these claims"


"While the statute provides some incentives to an alien to apply for voluntary departure and thus avoid removal proceedings and removal, nothing there suggests that an alien who commits to departure in order to avoid such proceedings is nevertheless entitled to continue accruing 'presence' so as to become eligible for other discretionary relief."


holding that because alien's two previous voluntary departures were the result of implied agreements and were not, therefore, strictly voluntary, they constituted significant departures that precluded a finding of seven years' continuous presence in the United States under a rule that excused absences that were brief, casual and innocent


Context: Substantial evidence supports the BIA's denial of withholding of removal because Gorbitz Espinoza failed to establish that the Shining Path persecuted him on account of an imputed political opinion.

See Molina-Estrada v. INS, 293 F.3d 1089, 1094-95 (9th Cir.2002) (no imputed political opinion where petitioner offered no evidence that his father had a political opinion that could be imputed to petitioner); see also Cruz-Navarro, 232 F.3d at 1030 (no imputed political opinion where there was no evidence to show that guerillas imputed a political opinion to petitioner). Moreover, the record does not support Gorbitz Espinoza’s contention that he was persecuted on account of an actual political opinion.


Context: Although this sweeping language is arguably applicable here, the Fifth Circuit, and numerous other courts, have rejected a broad interpretation of Freeporb-McMoRan and have limited its application to cases involving the addition of parties under Rule 25. The case literature supports a finding that a nondiverse intervenor, having intervened as of right, will defeat jurisdiction if considered indispensable.

"If a person cannot be made a party under Rule 19(a) because ... joinder would destroy subject-matter jurisdiction, then a federal court must determine whether that person is 'indispensable.' "

See, e.g., In re Olympic Mills, 477 F.3d at 7 (“If [the intervenor] is entitled to intervene as a matter of right under Rule 24(a)(2) and is an indispensable party under Rule 19(b), the litigation must be dismissed because there would not be complete diversity.” (quoting B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544 (1st Cir.2006))); Lawyers Title, 2009 WL 2032406, at *6 (“Since1 the Court is of the opinion that Intervenors are qualified to intervene as of right under Rule 24, and because their presence would destroy complete diversity, the Court must next determine whether Intervenors are indispensable to this action .... ”); see also Brown, 462 F.3d at 393 (“If a person cannot be made a party under Rule 19(a) because ... joinder would destroy subject-matter jurisdiction, then a federal court must determine whether that person is ‘indispensable.’ ”).

"If [the intervenor] is entitled to intervene as a matter of right under Rule 24(a)(2) and is an indispensable party under Rule 19(b


"Since1 the Court is of the opinion that Intervenors are qualified to intervene as of right under Rule 24, and because their presence would destroy complete diversity, the Court must next determine whether Intervenors are indispensable to this action .... "


Context: Because the Court has found no triable issues regarding the alleged violations of Plaintiffs Eighth Amendment rights, the Court need not reach any issues regarding qualified immunity.

"The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all."

See County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all.”); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

"If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."


Context: The fact that we have taken judicial notice of the reliability of the technique of DNA profiling does not mean that expert testimony concerning DNA profiling is automatically admissible under Daubert. A number of courts have required that the trial court further inquire into whether the expert properly performed the techniques involved in creating the DNA profiles.

See People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 545 (Sup.Ct.1989) (holding that admissibility conditioned on a finding that the expert properly performed the protocols underlying DNA profiling); United States v. Two Bulls, 918 F.2d 56, 61 (8th Cir.1990) (same), vacated and dismissed as moot, 925 F.2d 1127 (8th Cir.1991); but see Jakobetz, 955 F.2d at 800 (court should inquire as to whether the protocols were properly performed, but this issue should generally go to the weight rather than admissibility of the evidence).


Context: The absence of the word "knowingly" in subsection (4)(b) does not, however, mean that the subsection does not have a knowledge requirement. Florida courts will ordinarily presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent.

Wegner v. State, 928 So.2d 436, 439 (Fla. 2d DCA 2006) (statute imposing criminal liability on person who receives computer transmissions of descriptive or identifying information about minor for purpose of facilitating sexual conduct with minor would be construed as requiring knowledge by accused that person from whom or about whom he received computer transmission was minor); see also Cash-att v. State, 873 So.2d 430 (Fla. 1st DCA 2004) (criminal statutes, such as computer pornography statutes, are presumed to include broadly applicable scienter requirements in absence of express contrary intent).


Context: See Rule 403, SCRE (stating that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). This evidence was highly prejudicial and not harmless.

See Fletcher, 379 S.C. at 26, 664 S.E.2d at 484 (noting the admission of prior bad act evidence when the offender was unsubstantiated was not harmless error because the identity of the perpetrator was the essential issue at trial); see also Northcutt, 372 S.C. at 218-19, 641 S.E.2d at 879 (reversing a death penalty conviction due to unfair prejudice pursuant to Rule 403, SCRE, when the trial court admitted evidence of the victim’s spiral leg fracture at age ten-weeks despite the fact that the prior injury was, by all accounts, an accident).

reversing a death penalty conviction due to unfair prejudice pursuant to Rule 403, SCRE, when the trial court admitted evidence of the victim's spiral leg fracture at age ten-weeks despite the fact that the prior injury was, by all accounts, an accident


Context: Such language is inflammatory, particularly to the extent that it attributes improper motives to Appellants. Thus, we admonish counsel to refrain from needlessly inflaming the passions of the jury.

recognizing a "central premise that negligence concepts have no place in Pennsylvania's strict liability law"

See Young, 761 A.2d at 563 (noting that “an appeal to passion or prejudice is improper and will not be countenanced” and equating a verdict obtained by such arguments to “one obtained by false testimony”); see also Schmidt, 11 A.3d at 939 (recognizing a “central premise that negligence concepts have no place in Pennsylvania’s strict liability law”); Phillips, 841 A.2d at 1007 (“Strict liability focuses solely on the product ... and is divorced from the conduct of the manufacturer.”).

noting that "an appeal to passion or prejudice is improper and will not be countenanced" and equating a verdict obtained by such arguments to "one obtained by false testimony"


"Strict liability focuses solely on the product ... and is divorced from the conduct of the manufacturer."


Context: When an appellate court vacates a lower court's order, it renders the lower court's order null and void. However, a state court's factual determination may be given effect even if its order has been rendered a nullity on other grounds.

deferring to state courts' factual findings despite concluding that state courts lacked jurisdiction under Pennsylvania law

Dickerson v. Vaughn, 90 F.3d 87, 90-91 (3d Cir.1996) (Weis, J.) (Superior Court’s factual determination entitled to deference where reversal order by the Pennsylvania Supreme Court left factual determination undisturbed); see also Lambert v. Blackwell, 387 F.3d 210, 236-40 (3d Cir.2004) (deferring to state courts’ factual findings despite concluding that state courts lacked jurisdiction under Pennsylvania law); Pursell v. Horn, 187 F.Supp.2d 260, 292, 308-12 (W.D.Pa.2002) (according deference to PCRA court’s factual findings where state appellate court found PCRA court lacked jurisdiction); Com. v. Pate, 421 Pa.Super. 122, 617 A.2d 754, 760 (1992).

Superior Court's factual determination entitled to deference where reversal order by the Pennsylvania Supreme Court left factual determination undisturbed


according deference to PCRA court's factual findings where state appellate court found PCRA court lacked jurisdiction