Context: Section 652E of the Second Restatement of Torts provides that one of the elements of false light publicity is that the defendant had knowledge of the falsity of his statement or reckless disregard for whether the statement was true. Section 652E has been adopted by the Kansas courts.

recognizing tentative draft of Restatement (Second) of Torts SS 652E

Rinsley v. Frydman, 221 Kan. 297, 303, 559 P.2d 334, 339 (1977) (recognizing tentative draft of Restatement (Second) of Torts § 652E); see also Rinsley v. Brandt, 700 F.2d 1304, 1307 n. 3 (10th Cir.1983) (recognizing that Kansas Supreme Court would accept the final draft of the Restatement (Second) of Torts § 652E, adopted in 1977). Of course it is absurd for Stephan to allege there could be no evidence of his knowledge or reckless disregard of the truth or falsity of his statements; he and Tomson know better than anyone else whether he sexually harassed her.


Context: No consensus exists among our sister Courts of Appeals as to what quantum of deference, if any, should be accorded to these opinions. After Mead, several Courts of Appeals affirmatively rejected application of Chevron deference to unpublished BIA decisions.

See Quinchia v. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir.2008) (stating that an unpublished BIA decision that does not rely on BIA or Court of Appeals precedent does not receive Chevron deference); Rotimi v. Gonzales, 473 F.3d 55, 57-58 (2d Cir.2007) (holding that an unpublished BIA decision that does not rely on precedent for its definition of a contested term does not receive Chevron deference, because it is not “promulgated under [the agency’s] authority to make rules carrying the force of law”) (internal quotation marks omitted); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.2006) (opining that an unpublished BIA decision does not have the force of law and therefore does not receive Chevron deference).

according Chevron deference to BIA's streamlined adoption of IJ decision

But see Gutnik v. Gonzales, 469 F.3d 683, 689-690 (7th Cir.2006) (according Chevron deference to BIA’s streamlined adoption of IJ decision).


holding that an unpublished BIA decision that does not rely on precedent for its definition of a contested term does not receive Chevron deference, because it is not "promulgated under [the agency's] authority to make rules carrying the force of law"


opining that an unpublished BIA decision does not have the force of law and therefore does not receive Chevron deference


Context: Unlike Rule 803(24), which contemplates the presence of corroborating circumstances as just one factor a court may consider in determining whether a statement has "circumstantial guarantees of trustworthiness," Rule 804(b)(3) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances that "clearly indicate" the trustworthiness of the statement. Thus, for the same reasons we determined that Goble's confession and O'Toole's statements were insufficiently corroborated under Rule 803(24), see Part II.C, supra, (the lack of physical evidence and eyewitness testimony tying the declarants to the crime, O'Toole's later recantation of his statements, the dates of most of the statements are largely unknown in relation to the discovery of the victim's body, and the fact that the statements themselves did not contain specific facts that only the perpetrator would have known), we also hold that Hall failed to show that sufficient corroborating circumstances existed that clearly indicated the trustworthiness of these statements under Rule 804(b)(3).

applying the same reasoning in de termining that a statement lacked "trustworthiness" under Rule 804(b)(3) and "circumstantial guarantees of trustworthiness" under 804(b)(5

See Moore, 936 F.2d at 1516-17 (applying the same reasoning in de termining that a statement lacked “trustworthiness” under Rule 804(b)(3) and “circumstantial guarantees of trustworthiness” under 804(b)(5)); see also, United States v. Groce, 999 F.2d 1189, 1190-91 (7th Cir.1993) (concluding that a hearsay statement lacked trustworthiness under Rule 804(b)(3) where the declarant made conflicting statements and later recanted the version most favorable to the defendant); Silverstein, 732 F.2d at 1346-47 (concluding that mere opportunity and ability to commit crime to which hearsay declarant confessed is insufficient corroboration where the statement does not contain facts that only the perpetrator would have known and there was a lack of other evidence linking declarant to the crime).


concluding that mere opportunity and ability to commit crime to which hearsay declarant confessed is insufficient corroboration where the statement does not contain facts that only the perpetrator would have known and there was a lack of other evidence linking declarant to the crime


Context: Proof that the victim did not cross the threshold would not be fatal to MeCuiston's defense.

defendant entitled to "defense of habitation" instruction although victim, who had ripped screen out of screen door, made no actual entry into house

See Miller, 148 S.E.2d at 281-82 (defendant entitled to “defense of habitation” instruction although victim, who had ripped screen out of screen door, made no actual entry into house); State v. Holder, 237 Iowa 72, 20 N.W.2d 909, 913 (1945) (question whether defendant was acting in defense of habitation was for jury, although facts did not indicate victim had gotten past the front door); cf. State v. Roberson, 90 N.C.App. 219, 368 S.E.2d 3, 6-7 (1988) (assailant must actually enter dwelling for self-defense to apply, but “defense of habitation” requires only that there be an attempted forceful entrance), pet. for rev. denied (N.C. June 6, 1988). Under these circumstances, we conclude that the trial court’s error in instructing the jury on self-defense was not harmless and requires a new trial.

assailant must actually enter dwelling for self-defense to apply, but "defense of habitation" requires only that there be an attempted forceful entrance


question whether defendant was acting in defense of habitation was for jury, although facts did not indicate victim had gotten past the front door


Context: Courts recognize that the administrators should be given leeway to address any potential disruption before it manifests itself.

"Under Tinker, it is the objective reasonableness of the school administrators' response, rather than the student's private intentions, that are relevant."

See Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (“It is not the role of the federal courts to set aside decision of school administrators which the court may view as lacking a basis in wisdom or compassion.”); Doninger, 527 F.3d at 51 (“[Plaintiffs] argument is misguided insofar as it implies that Tinker requires a showing of actual disruption to justify a restraint on student speech”); DeFabio v. E. Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 481 (E.D.N.Y.2009), affd, 623 F.3d 71 (2d Cir. 2010), cert. denied, 2011 WL 162835, 2011 U.S. LEXIS 1809 (Feb. 28, 2011); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir.2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”); see also Cuff v. Valley Cent. Sch. Dist., 714 F.Supp.2d 462, 469 (S.D.N.Y.2010) (“Under Tinker, it is the objective reasonableness of the school administrators’ response, rather than the student’s private intentions, that are relevant.”).

"It is not the role of the federal courts to set aside decision of school administrators which the court may view as lacking a basis in wisdom or compassion."


"[Plaintiffs] argument is misguided insofar as it implies that Tinker requires a showing of actual disruption to justify a restraint on student speech"


"Tinker does not require school officials to wait until disruption actually occurs before they may act."


Context: Under these circumstances, Dr. Tan's decision to per form the initial examination of plaintiffs bowel condition in his cell does not evince the requisite state of mind required for an Eighth Amendment violation. For these same reasons, the circumstances of the examination do not give rise to a Fourteenth Amendment violation.

defendant police officer's conduct in secretly videotaping unclothed female volunteer for a police training video "shocks the conscience" and was "unjustifiable by any governmental interest"

See Webb v. Goldstein, 117 F.Supp.2d 289, 298 (E.D.N.Y.2000) (plaintiff failed to state a Fourteenth Amendment claim based on right to privacy in medical condition); but see Poe, 282 F.3d at 189 (defendant police officer’s conduct in secretly videotaping unclothed female volunteer for a police training video “shocks the conscience” and was “unjustifiable by any governmental interest”).


Context: This review process, not surprisingly, is exclusive. See 8 U.S.C. SSSS 1252(b)(9) and (d)(1). Thus, other courts who have confronted this issue have reached the same conclusion.

holding that an AAO eligibility determination is "final" and ripe for district court review if removal proceedings have not been initiated, but noting that judicial review is barred in cases where removal proceedings have begun

See Howell v. INS, 72 F.3d 288, 293 (2d Cir.1995) (finding jurisdiction lacking where removal proceedings had begun because denials of status adjustment may be reviewed by immigration judges); cf. Pinho, 432 F.3d at 200-201 (holding that an AAO eligibility determination is “final” and ripe for district court review if removal proceedings have not been initiated, but noting that judicial review is barred in cases where removal proceedings have begun).


Context: Because the duty of fair representation under the Railway Labor Act is identical to the duty of fair representation under the National Labor Relations Act, and because the federal policies and interests articulated in DelCostello are present in hybrid actions under the Railway Labor Act, six circuit courts have ruled that the six-month statute of limitations in SS 10(b) of the Na tional Labor Relations Act also controls duty of fair representation claims and hybrid actions brought under the Railway Labor Act.

See Ranieri v. United Transp. Union, 743 F.2d 598 (7th Cir.1984) (action against union for breach of duty of fair representation); Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.) (hybrid suit) (opinion on rehearing), cert. denied, - U.S. -, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984); Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.) (hybrid suit), cert. denied, - U.S. -, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984); Sisco, 732 F.2d at 1191-94 (hybrid suit, but statute of limitations ruling only on breach of duty of fair representation claim against the union); Hunt v. Missouri Pacific R.R., 729 F.2d 578 (8th Cir.1984) (hybrid suit, but statute of limitations ruling only on breach of duty of fair representation claim against the union); see also Triplett v. Local 308, Brotherhood of Railway, Airline and Steamship Clerks, 763 F.2d 625 (4th Cir.1985) (holding DelCostello governs a hybrid suit brought under the Railway Labor Act, but refusing to apply it retroactively); Linder v. Berge, 739 F.2d 686 (1st Cir.1984) (hybrid suit holding a federal statute of limitations applies, but not choosing between six-month limitations period in § 10(b) of National Labor Relations Act and two-year period in Railway Labor Act).


hybrid suit holding a federal statute of limitations applies, but not choosing between six-month limitations period in SS 10(b


hybrid suit, but statute of limitations ruling only on breach of duty of fair representation claim against the union


Context: With regard to the disciplinary-sanction, this Court does not hesitate to disbar attorneys who continue to engage in the practice of law while suspended. Given these deficiencies in the record and the referee's report, there is an insufficient basis for this Court to disbar D'Ambrosio.

See Fla. Bar v. Rayman, 238 So.2d 594 (Fla.1970) (holding that the evidence did not present the proof necessary to warrant the findings of guilt and disbarment); see also Fla. Bar v. Shoureas, 892 So.2d 1002 (Fla.2004) (stating that disbarment is an extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards).


Context: The Court of Appeals held that the failure to include this provision was fatal because in Maryland the order must strictly comply with the statutory provisions. The court commented: "[t]he language is unequivocal, leaving no room to doubt that the legislature intended that the wiretap order conform scrupulously to the mandate of the statute."

See also State v. Siegel, App., 266 Md. 256, 292 A.2d 86, 95 (1972) (Title III sets up a strict procedure that must be followed); Poore v. State, 39 Md.App. 44, 384 A.2d 103, 106 (1978) (same); cf. Spease v. State, App., 275 Md. 88, 338 A.2d 284 (1975) (post order compliance judged by more lenient substantial compliance standard).


Context: While B-S Steel disputes the appellees' claim that it only made a single purchase of 18.9 tons after April 3, 2001, the latest that it alleges making purchases is August 2001. B-S Steel has offered no basis for concluding that these purchases should be deemed reasonably contemporaneous with those made by B-S Steel's competitors after December 2001.

concluding that there was substantial evidence supporting FTC's determination that sales over a number of years occurred during the same time period where "the sales are of a single, fairly standardized item, widely sold in the area, and recur frequently during the years involved"

But see Fred Meyer, Inc. v. FTC, 359 F.2d 351, 357 (9th Cir.1966) (concluding that there was substantial evidence supporting FTC’s determination that sales over a number of years occurred during the same time period where “the sales are of a single, fairly standardized item, widely sold in the area, and recur frequently during the years involved”), rev’d in part on other grounds, 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968).

See England v. Chrysler Corp., 493 F.2d 269, 272 (9th Cir.1974) (sixteen-month time span between promotional allowances for new or relocated car dealerships defeated Robinson-Patman Act claim); Atalanta Trading Corp. v. FTC, 258 F.2d 365, 371 (2d Cir.1958) (seven-month period between pork sales not contemporaneous); Maier-Schule GMC, Inc. v. Gen. Motors Corp., 780 F.Supp. 984, 989 (W.D.N.Y.1991) (no § 2(a) violation where plaintiff failed to show it made purchases in same year alleged violation occurred).


Context: Where the parties have had the benefit of a hearing on the issue, but the trial court's analysis of the Barker factors is lacking, this Court has found it appropriate to perform a de novo review of the defendant's speedy-trial claim. On the other hand, where the record lacks sufficient evidence to support a proper de novo review, the more appropriate course is to remand to the circuit court to conduct a Barker analysis.

reversing and remanding to the trial court for a Barker analysis where the record did not establish the actual reasons for the delays in the defendant's trial

See McGee v. State, 608 So.2d 1129,1134 (Miss.1992) (reversing and remanding to the trial court for a Barker analysis where the record did not establish the actual reasons for the delays in the defendant’s trial).

reversing defendant's conviction due to ineffective assistance of counsel, remanding for a new trial, and directing the trial court on remand to conduct a Barker analysis, where the record on appeal did not allow this Court to determine the cause of the delay in the defendant's previous trial

See also Barnes v. State, 577 So.2d 840, 844 (Miss.1991) (reversing defendant’s conviction due to ineffective assistance of counsel, remanding for a new trial, and directing the trial court on remand to conduct a Barker analysis, where the record on appeal did not allow this Court to determine the cause of the delay in the defendant’s previous trial).


Context: .Because the Court GRANTS Provident's summary judgment on Fleischer's counterclaim for breach of contract, the Court also GRANTS Provident's motion with respect to Provident's bad faith claim and claim for punitive damages.

"[A] bad faith claim cannot be maintained unless policy benefits are due.... "

See Waller v. Truck Ins. Exch., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 390, 900 P.2d 619 (Cal.1995) ("It is clear that if there is no potential for coverage ... under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer.”); see also Love v. Fire Ins. Exch., 221 Cal.App.3d 1136, 271 Cal.Rptr. 246 ("[A] bad faith claim cannot be maintained unless policy benefits are due.... ”).

"It is clear that if there is no potential for coverage ... under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer."


Context: The Supreme Court has acknowledged that there may be circumstances justifying equitable tolling of the AEDPA limitations period.

"[W]e therefore join the Courts of Appeals in holding that SS 2244(d

See Holland, 130 S.Ct. at 2562, (“[W]e therefore join the Courts of Appeals in holding that § 2244(d) is subject to equitable tolling.”); see also McQuiggin, 133 S.Ct. at 1931 (reaffirming that equitable tolling of AED-PA’s limitations period is appropriate in certain circumstances).

reaffirming that equitable tolling of AED-PA's limitations period is appropriate in certain circumstances


Context: "If [a] motion [to transfer venue] is based on the location of records and documents, the [defendant] must show with particularity the location, difficulty of transportation, and the importance of such record." At best, therefore, the factor is neutral. See id.; see also In re Triton Limited See.

denying transfer to a district where defendant's documents were located because doing so would merely shift the transportation burden from defendant to plaintiff

Litig., 70 F.Supp.2d 678, 690 (E.D.Tex.1999) (“Defendants ... fail to show that these documents are so voluminous that they would be difficult to transport. Therefore, the Court does not consider this as an important factor in the transfer analysis”); Bianco v. Texas Instruments, Inc., 627 F.Supp. 154, 165 (N.D.Ill.1985) (“As for defendants’ argument concerning the location of relevant documents, we do not believe that this is a compelling factor, given the ready availability of photocopying and the relative ease with which documents may be selectively shipped around the country”); Meh-L-Wood Corp. v. SWS Indus., Inc., 594 F.Supp. 706, 710 (N.D.Ill.1984) (observing that the location of documents is not an important factor “unless documents are so voluminous that their transport is a major undertaking”); cf. Arrow Elec., Inc. v. Ducommun, Inc., 724 F.Supp. 264, 266 (S.D.N.Y.1989) (denying transfer to a district where defendant’s documents were located because doing so would merely shift the transportation burden from defendant to plaintiff).

"Defendants ... fail to show that these documents are so voluminous that they would be difficult to transport. Therefore, the Court does not consider this as an important factor in the transfer analysis"


"As for defendants' argument concerning the location of relevant documents, we do not believe that this is a compelling factor, given the ready availability of photocopying and the relative ease with which documents may be selectively shipped around the country"


observing that the location of documents is not an important factor "unless documents are so voluminous that their transport is a major undertaking"


Context: Given the seemingly novel nature of Newman's theory of recovery, we find that it would constitute an abuse of discretion for the court not to require Newman to demonstrate legal grounds supporting his claim of a right to relief against Dean.

Cf. also Prickett v. Allard, 126 N.J.Super. 438, 440, 315 A.2d 51 (App.Div.) (denying default judgment to foreclose a tax sale certificate on grounds of failure to state a claim when plaintiffs complaint on its face demonstrated that the action was barred by the statute of limitations), aff'd o.b., 66 N.J. 6, 326 A.2d 688 (1974); In re Estate of Sharp, 151 N.J.Super. 579, 582, 377 A.2d 730 (Ch.Div.1977), mod. 163 N.J.Super. 148, 394 A.2d 381 (App.Div. 1978) (holding that the court may, sua sponte, refuse to enter judgment for plaintiff if the complaint on its face fails to state a cause of action as to which relief can be granted).

Douglas v. Harris, 35 N.J. 270, 276-81,173 A.2d 1 (1961) (discussing power of court to require proof of liability); Slowinski v. Valley Nat’l Bank, 264 N.J.Super. 172, 183, 624 A.2d 85 (App.Div.1993) (a successful plaintiff seeking a default judgment can be required to furnish some proof on the merits to show entitlement to the relief demanded); Edelstein v. Toyota Motors Distributors, 176 N.J.Super. 57, 63-64, 422 A.2d 101 (App.Div.1980) (vacating default judgment when plaintiff, seeking to revoke his acceptance of a car, had presented no proof that he had contracted with the manufacturer or that the distributor was an agent of the manufacturer); Williams v. Page, 160 N.J.Super. 354, 369, 389 A.2d 1012 (App. Div.1978) (trial judge had discretion to require proof of liability); Metric Investment, Inc. v. Patterson, 98 N.J.Super. 130, 133, 236 A.2d 187 (Law Div.1967) (the entry of default does, not necessarily obviate the obligation of plaintiff to furnish proof on the issue of liability), affd 101 N.J.Super. 301, 244 A.2d 311 (App.Div.1968).


holding that the court may, sua sponte, refuse to enter judgment for plaintiff if the complaint on its face fails to state a cause of action as to which relief can be granted


vacating default judgment when plaintiff, seeking to revoke his acceptance of a car, had presented no proof that he had contracted with the manufacturer or that the distributor was an agent of the manufacturer


the entry of default does, not necessarily obviate the obligation of plaintiff to furnish proof on the issue of liability


Context: In this appeal, we must analyze the special referee's actions in conjunction with his order of sale. Although the referee acted as his own selling officer, he was still bound by the limits of his written decree of sale. When the public has been informed through the order and the advertisements, the rules of the foreclosure sale are set.

See Ex parte Keller, 185 S.C. 283, 194 S.E. 15 (1937) (recognizing the legal principle that an order of sale is a public document, and all bidders, as well as other persons, are charged with notice of its terms); Hudson v. Inman, 179 S.C. 399, 184 S.E. 102 (1936); see also Federal Nat’l Mortgage Ass’n v. Brooks, 304 S.C. 506, 405 S.E.2d 604 (Ct.App.1991) (stating the purchaser should principally rely on, and is on notice of, the terms provided in the foreclosure decree).


Context: Thus, the Supreme Court held in Penn Central Transportation Company that landmark-preservation laws, based partly on aesthetics, are valid. Other land-use restrictions, such as local zoning laws, also may properly take aesthetics into account.

it is "permissible" for zoning laws to promote aesthetic considerations

See Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (it is “permissible” for zoning laws to promote aesthetic considerations); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir.1999) (“[i]n New York, aesthetics can be a valid ground for local zoning decisions”); see also Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 645 (2d Cir.1999) (holding in context of local environmental review process that “[ajesthetics is generally a valid subject of ... regulation and concern”); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 357, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (discussing United States Forest Service regulations requiring special use permit authorization process to “minimize damage to scenic and esthetic values and fish and wildlife habitat”); Good v. United States, 189 F.3d 1355, 1362 (Fed.Cir.1999) (aesthetics one of the factors considered by the Army Corps of Engineers in issuing dredging or wetlands filling permits).

holding in context of local environmental review process that "[ajesthetics is generally a valid subject of ... regulation and concern"


discussing United States Forest Service regulations requiring special use permit authorization process to "minimize damage to scenic and esthetic values and fish and wildlife habitat"


aesthetics one of the factors considered by the Army Corps of Engineers in issuing dredging or wetlands filling permits


"[i]n New York, aesthetics can be a valid ground for local zoning decisions"


Context: Of course, like Iowa Code section 39.3(8) (2013) today, this statute is not a constitutional test.

recognizing that while we give "respectful consideration to the legislature's understanding of constitutional language," we are the final arbiter of the meaning of the Iowa Constitution

See Snyder, 958 N.E.2d at 780 (concluding an 1843 Indiana statute enumerating nine infamous crimes was not a present-day constitutional test); see also Green v. City of Cascade, 231 N.W.2d 882, 890 (Iowa 1975) (recognizing that while we give “respectful consideration to the legislature’s understanding of constitutional language,” we are the final arbiter of the meaning of the Iowa Constitution).


Context: Determination of the value of legal services rendered falls particularly within the discretion of the trial court.

Succession of Butler, 294 So.2d 512 (La.1974); Oppenheim v. Bouterie, 505 So.2d 100 (La.App. 4th Cir.1987); Simon v. Metoyer, 383 So.2d 1321 (La.App. 3rd Cir.1980), writ refused 389 So.2d 1338 (La.1980); Fiasconaro & Fiasconaro v. Orlando, 342 So.2d 1261 (La.App. 4th Cir.1977); Lynch v. Burglass, 286 So.2d 170 (La.App. 4th Cir.1973) (all reviewing awards of attorney’s fees under the quantum meruit standard, which normally applies when an attorney has been discharged by a client prior to conclusion of a case); cf. Peiser v. Grand Isle, 224 La. 299, 69 So.2d 51 (La.1953); Massey v. Consumer’s Ice Co. of Shreveport, Inc., 223 La. 731, 66 So.2d 789 (La.1953); Succession of Richards, 49 La. Ann. 1115, 22 So. 317 (La.1897) (all affording the trial court great discretion in determining the value of legal services, where the services were rendered in a case tried before that particular trial court).

all reviewing awards of attorney's fees under the quantum meruit standard, which normally applies when an attorney has been discharged by a client prior to conclusion of a case


Context: We note that the issue of a named plaintiffs ability to maintain actions in a representative capacity in collective actions brought under the FLSA, as compared to Rule 23 class actions, is in a state of flux. The Supreme Court has recently reinforced its view that these procedural mechanisms are essentially different. We need not decide whether it may, however, because we believe that the unique fact pattern here--namely, Appellants' voluntary dismissal of their claims with prejudice--has not only extinguished Appellants' individual claims, but also any residual representational interest that they may have once had.

"Since the plaintiffs no longer have an interest in shifting ... costs to the putative class members [following settlement of their claims], the court cannot avoid the conclusion that this case is moot."

Ruppert v. Principal Life Ins. Co., 705 F.3d 839, 844 (8th Cir.2013) (holding that a Rule 23 named plaintiffs acceptance of a settlement offer as to his individual claims mooted his interest in the denial of class certification); Rhodes v. E.I. duPont de Nemours & Co., 636 F.3d 88, 100 (4th Cir.2011) (“[W]hen a putative class plaintiff voluntarily dismisses the individual claims underlying a request for class certification, ... there is no longer a self-interested party ... necessary to satisfy Article III standing.”); cf. Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 706 (6th Cir.2009) (“Since the plaintiffs no longer have an interest in shifting ... costs to the putative class members [following settlement of their claims], the court cannot avoid the conclusion that this case is moot.”). This is so because it would be anomalous to conclude that Appellants are “similarly situated” to opt-in plaintiffs who, unlike Appellants, have actually retained their individual claims.


"[W]hen a putative class plaintiff voluntarily dismisses the individual claims underlying a request for class certification, ... there is no longer a self-interested party ... necessary to satisfy Article III standing."


Context: Addressing federal parole violations, the former Fifth Circuit rejected the double jeopardy argument, similar to the one pressed here, that when parole is revoked upon violation, the time spent on parole should count towards time served on a prisoner's sentence. The former Fifth Circuit explained that in federal parole, the "time spent on parole shall not diminish the sentence where a prisoner has violated his parole and is required to serve the remainder of his sentence."

Clark, 374 F.2d at 953; see also Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir.2001) (holding that Due Process Clause does not require a federal prisoner to receive credit for time spent on supervised release if release is revoked); cf. Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir.2004) (concluding that a state prisoner is in custody pursuant to his original state conviction and sentence upon reincarceration after his parole is revoked). Moreover, our predecessor court has rejected the argument that it violates due process principles to require a parole violator to serve the remaining time on his sentence, even if that causes the prisoner’s “incarceration [to extend] past the final expiration of the maximum sentence as established at the time of imposition.” Sturgis v. United States, 419 F.2d 390, 390 (5th Cir.1969); see also Swicegood v. U.S. Parole Comm’n, 755 F.2d 880, 881 (11th Cir.1985) (noting that parole violation results in forfeiture of good time credit and credit for time spent on parole).


Context: The government argues that the defendants have the burden of proof by virtue of the statutory framework of section 6323(a). The government has a lien on the Property by virtue of its tax assessment against Nancy. 26 U.S.C. SS 6321. This lien, however, is not valid against a "purchaser" until notice is filed. 26 U.S.C. SS 6323(a). It has been held that a third party seeking to invalidate a federal tax lien in an interpleader action bears the burden of proving that she is entitled to the protection of section 6323 as to her interest in a tax debtor's property.

alleged holder in due course of cheeks drawn on taxpayer's bank accounts had burden of proving that she was a purchaser and came within the shelter provision making a federal tax lien invalid as against her interest under 26 U.S.C. SS 6323[b][l][A] in an interpleader action

Resolution Trust Corporation v. Gill, 960 F.2d 336, 344 (3d Cir.1992) (alleged holder in due course of cheeks drawn on taxpayer’s bank accounts had burden of proving that she was a purchaser and came within the shelter provision making a federal tax lien invalid as against her interest under 26 U.S.C. § 6323[b][l][A] in an interpleader action); Texas Oil & Gas Corporation v. United States, 466 F.2d 1040, 1054 (5th Cir.1972), cert. denied 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973); Rodeck v. United States, 697 F.Supp. 1508, 1511 (D.Minn.1988) (claimant in interpleader action bore the burden of proving that she was a “purchaser” and entitled to protection of section 6323[a]); STV Engineers, Inc. v. Ash, 1986 WL 3862, 57 A.F.T.R.2d 86-1137, 86-1141, 86-1 U.S.T.C. ¶ 9352 (E.D.Pa.1986) (claimant transferee of taxpayer’s interest in annuity had burden to prove in interpleader action that he was a “purchaser” and gave “adequate and full consideration” to gain priority over government claimant’s federal tax lien); aff'd, 806 F.2d 251,254 (3d Cirl986); see also, MacKenzie v. United States, 109 F.2d 540, 542 (9th Cir. 1940) (legislative history of section 6323, as interpreted through a predecessor statute, reveals that burden of proof is on party seeking protection of the statute); but see, United States v. McCombs, 30 F.3d at 333 (“... to deprive a person of protection under section 6323[a], a federal statute, the burden and risk of persuading the fact finder that Robert had actual knowledge of a fraudulent conveyance rested with the government”).


"... to deprive a person of protection under section 6323[a], a federal statute, the burden and risk of persuading the fact finder that Robert had actual knowledge of a fraudulent conveyance rested with the government"


claimant in interpleader action bore the burden of proving that she was a "purchaser" and entitled to protection of section 6323[a]


claimant transferee of taxpayer's interest in annuity had burden to prove in interpleader action that he was a "purchaser" and gave "adequate and full consideration" to gain priority over government claimant's federal tax lien


Context: Specifically, Anderson, Vollmer, Foster and Hornstein testified that they always rely on a borrower's balance sheet when they consider a new line of credit. Horizon asserts that this routine practice establishes that they relied on Debtor's balance sheet when they considered approving his loan. Although' the Court overruled objections to the admissibility of this evidence, this testimony does not definitively establish actual reliance.

"Once routine practice evidence has been admitted, Rule 406 does not limit the district court's consideration of such evidence, or the weight that it may be given"

See Burchfield v. CSX Transp., Inc., 2009 WL 1405144, at *4 (N.D.Ga. May 15, 2009) (“Ultimately, habit evidence is to be “weighed and considered by the trier of fact in the same manner as any other type of direct or circumstantial evidence.’ ”) (quoting Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1523 (11th Cir.1985); see also U.S. v. Davis, 261 F.3d 1, 33 n. 24 (1st Cir.2001) (“Once routine practice evidence has been admitted, Rule 406 does not limit the district court’s consideration of such evidence, or the weight that it may be given”). To the contrary, the Court finds their testimony, without more, lacks credibility and is unpersuasive.

"Ultimately, habit evidence is to be "weighed and considered by the trier of fact in the same manner as any other type of direct or circumstantial evidence.' "


Context: Once defendant received actual notice of the assignment, it was under a duty to pay the assignee/hospital to the extent of the rights assigned.

"If the obligor has received no notice and does not know that his debt has been assigned, he may, with impunity, pay his original creditor and extinguish the obligation____"

Lataif, 223 Va. at 62, 286 S.E.2d 161; Southern Residence Corp. v. City Supply Co., 160 Va. 660, 667, 169 S.E. 579, 582 (1933) (once notice is received, obligor does not have the right to pay assignor in disregard of assignment); 2A Michie’s Jurisprudence, Assignments, § 26, at 336, citing Tazewell v. Barrett, 14 Va. (4 Hen. & M.) 259 (1809) (the receipt of actual notice of the assignment creates a “duty of the debtor to pay the assignee of the sum assigned”); Id., citing Lataif, 223 Va. at 62, 286 S.E.2d at 161 (effect of actual notice of an assignment “is to bind the obligor to pay the assignee, after notice, instead of paying the original obligee”) (emphasis added); see also Evans v. Joyner, 195 Va. 85, 88, 77 S.E.2d 420, 422 (1953) (“If the obligor has received no notice and does not know that his debt has been assigned, he may, with impunity, pay his original creditor and extinguish the obligation____”); County School Board of Carroll County v. First Nat. Bank, 161 Va. 127, 136, 170 S.E. 625, 628 (1933) (debtor is liable to assignee if it pays assignor after receiving notice); Switzer v. Noffsinger, 82 Va. 518, 521 (1886) (“until notice, the assignment is subject to all the equities of the debtor against the assignor”).


debtor is liable to assignee if it pays assignor after receiving notice


"until notice, the assignment is subject to all the equities of the debtor against the assignor"


the receipt of actual notice of the assignment creates a "duty of the debtor to pay the assignee of the sum assigned"


effect of actual notice of an assignment "is to bind the obligor to pay the assignee, after notice, instead of paying the original obligee"


Context: P 28 Unlike the situation in Sanders, Freeney has never suggested that the amendment affected, let alone prejudiced, his litigation strategy, trial preparation, examination of witnesses, or argument; nor did he request a trial continuance or recess. Further, his "all or nothing" defense, based on his assertion that someone other than he was the perpetrator, did not change as a result of the amended charge.

See State v. Ramsey, 211 Ariz. 529, 533 ¶ 7, 124 P.3d 756, 760 (App. 2005) (no showing defense was prejudiced by allegedly duplicitous indictment when defendant claimed he had not committed charged acts); cf. Johnson, 198 Ariz. at 248-49 ¶ 12, 8 P.3d at 1162-63 (although defendant denied having engaged in any sexual acts with victim, court found he was prejudiced by amendment of information after state rested its ease because the amendment’s timing “seriously undercut [defendant’s] opportunity to attack the victim’s inconsistent statements ... and inhibited his right to defend himself against her accusations”).

although defendant denied having engaged in any sexual acts with victim, court found he was prejudiced by amendment of information after state rested its ease because the amendment's timing "seriously undercut [defendant's] opportunity to attack the victim's inconsistent statements ... and inhibited his right to defend himself against her accusations"


Context: Further, Plaintiffs activities do not support the ALJ's rejection of her subjective complaints or the ALJ's conclusion that she is able to sustain gainful employment, as none of Plaintiffs activities translate into an ability to do activities that are transferable to a work setting.

See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990) (ALJ errs in failing to make a finding to the effect that ability to perform daily activities translated into the ability to perform appropriate work); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.”).

"This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability."


Context: Viewing the progress of this case in context, I find that lack of due diligence in considering their jurisdictional premises and undue delay on the part of the Plaintiffs provide sufficient reason to deny their motion for reconsideration.

holding that a district court "had sufficient reason to reject the plaintiffs belated attempt to amend her complaint" fifteen months after the commencement of her action and nine months after the initial amendment to her complaint

See Palmer, 465 F.3d at 31 (holding that a district court “had sufficient reason to reject the plaintiffs belated attempt to amend her complaint” fifteen months after the commencement of her action and nine months after the initial amendment to her complaint); cf. Connectu LLC v. Zuckerberg, 522 F.3d 82, 92-93 (1st Cir.2008)(noting the potential for uncertainty and “unwholesome strategic behavior arising from the temptation to manufacture diversity” and finding “no policy-based reason for elongating the reach of the time of filing rule and applying it to a case in which a plaintiff forsakes a claimed entitlement to diversity jurisdiction in favor of a claimed entitlement to federal question jurisdiction”).

noting the potential for uncertainty and "unwholesome strategic behavior arising from the temptation to manufacture diversity" and finding "no policy-based reason for elongating the reach of the time of filing rule and applying it to a case in which a plaintiff forsakes a claimed entitlement to diversity jurisdiction in favor of a claimed entitlement to federal question jurisdiction"


Context: Similarly, and with perhaps even closer parallels to the instant scenario, several courts have responded to claims of sovereign immunity from subpoenas asserted by third-party Indian tribes by recognizing judicial "discretion not to apply the [immunity] doctrine" -- which is "largely" a matter of "comity" -- if "it would conflict with more important federal interests, such as the constitutional rights of criminal defendants."

denying motion to quash criminal defendant's subpoena because, court could not permit "tribe's immunity from civil actions" to "interfere] with the defendant's right to compulsory process"

Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100, 1105 (8th Cir. 2012) (considering tribal immunity claim and contrasting question in criminal context with the “question [of] whether the [sovereign immunity] doctrine applies to non-party subpoenas served in ... private civil litigation,” where no “competing federal interests are present other than the general benefits of discovery”); see also United States v. Juvenile Male 1, 431 F.Supp.2d 1012, 1016-19 (D. Ariz. 2006) (denying motion to quash criminal defendant’s subpoena because, court could not permit “tribe’s immunity from civil actions” to “interfere] with the defendant’s right to compulsory process”); United States v. Velarde, 40 F.Supp.2d 1314, 1316-17 (D.N.M. 1999) (“I also conclude that the Court’s interest in protecting Defendant’s constitutional rights justifies an intrusion upon tribal sovereignty in order to enforce a subpoena on behalf of Defendant.”), conviction vacated on other grounds, 214 F.3d 1204 (10th Cir. 2000); United States v. Snowden, 879 F.Supp. 1054, 1057-58 (D. Or. 1995) (concluding that criminal defendant’s “constitutional rights of due process, fair trial, confrontation, and compulsory process outweigh [Indian tribe’s] claim of immunity” from defendant’s subpoena).

considering tribal immunity claim and contrasting question in criminal context with the "question [of] whether the [sovereign immunity] doctrine applies to non-party subpoenas served in ... private civil litigation," where no "competing federal interests are present other than the general benefits of discovery"


"I also conclude that the Court's interest in protecting Defendant's constitutional rights justifies an intrusion upon tribal sovereignty in order to enforce a subpoena on behalf of Defendant."


concluding that criminal defendant's "constitutional rights of due process, fair trial, confrontation, and compulsory process outweigh [Indian tribe's] claim of immunity" from defendant's subpoena


Context: We conclude that Funtanilla adequately alleged deliberate indifference under the Eighth Amendment. Specifically, Funtanilla alleged that while he was in the suicide prevention cell, "defendant Rubles observed him once during the night cutting his arm."

See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987) (indicating at dismissal all reasonable inferences are drawn in favor of the plaintiff).

indicating circumstantial evidence may be sufficient to show prison official's knowledge of risk

(Complaint at 2, ¶ 10). See Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (holding prison official is deliberately indifferent if he knew that prisoner faced a substantial risk of harm and disregarded that risk); Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.1995) (indicating circumstantial evidence may be sufficient to show prison official’s knowledge of risk). Funtanilla also alleged that Rubles left the hospital “after 3 A.M.,” and that he was not removed from the suicide prevention cell until 5 A.M., covered in his own blood.


Context: This declaration, analogizing UNC to a municipal corporation, tends to support the conclusion that UNC is comparable to a municipality and therefore not entitled to Eleventh Amendment immunity.

concluding that Congress did intend municipalities and other local government units to be included among those persons to whom SS 1983 applies

See Monell, 436 U.S. at 690, 98 S.Ct. at 2035 (concluding that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies); see also Simon, 946 P.2d at 1305 (recognizing that the Supreme Court in Mount Healthy and Lake Country concluded that the entities were not arms of the State because the enabling statutes failed to articulate a clear intention to cloak the entities with Eleventh Amendment immunity).


Context: Disparate treatment cannot automatically be imputed in every situation where one of the State's reasons for striking a venire person would technically apply to another venire person whom the State found acceptable. For example, where the only evidence of discriminatory intent is that the party striking the venire person made an honest mistake in recalling what the venire person said, pretext is not shown.

See Hurd v. Pittsburg State Univ., 892 F.Supp. 245, 248-49 (D.Kan. 1995), aff'd, 109 F.3d 1540, 1546-48 (10th Cir.1997) (mere mistaken belief is insufficient to prove discriminatory intent and pretext); see also Salinas v. State, 888 S.W.2d 93, 98 (Tex.App.—Corpus Christi 1994, pet. ref'd) (“Even if the prosecutor was mistaken in some of these beliefs, the judge could still conclude that the strike was race-neutral because the prosecutor based his peremptory strike on an honest belief.”); Jack v. State, 867 S.W.2d 942, 947 (Tex.App.—Beaumont 1993, no pet.) (“Even if the prosecutor was mistaken, the trial judge could still conclude that the strike was race neutral because the prosecutor based his peremptory strike on an honest belief.”).

"Even if the prosecutor was mistaken, the trial judge could still conclude that the strike was race neutral because the prosecutor based his peremptory strike on an honest belief."


Context: In summary, we cannot conclude that the FCMA on its face pre-empts all state extraterritorial regulation. Other courts which have considered this issue, at least when no federal regulations had been promulgated for the specific species of fish, have agreed.

See Anderson Seafoods, Inc. v. Graham, 529 F.Supp. 512 (N.D.Fla.1982) (upholding state statute prohibiting use of purse seine within or without the waters of the state as applied to fisherman with vessel registered in state operating beyond state territorial boundary); People v. Weeren, 26 Cal.3d 654, 163 Cal.Rptr. 255, 607 P.2d 1279, cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980) (upholding state assertion of penal jurisdiction in situation wherein defendant used state licensed vessel to take swordfish in FCZ in violation of state regulations and no federal regulatory plan for swordfish had been implemented); cf. State v. Sterling, 448 A.2d 785 (R.I.1982) (FCMA pre-empts state regulation of commercial fishing for a particular species of fish where federal regulations governing such fishing have been promulgated).


upholding state assertion of penal jurisdiction in situation wherein defendant used state licensed vessel to take swordfish in FCZ in violation of state regulations and no federal regulatory plan for swordfish had been implemented


Context: The "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate (that is, a reasonable) expectation of privacy in the invaded place." Thus, unless the appellant can demonstrate a reasonable expectation of privacy in the place searched, his mere possessory interest in the searched government quarters will not establish a Fourth Amendment violation.

See United States v. Salvucci, 448 U.S. at 91-92, 100 S.Ct. at 2552-2553; United States v. Quinn, — U.S.-, 106 S.Ct. 1623, 89 L.Ed.2d 803 (1986) (per curiam decision dismissing writ of certiorari as improvidently granted); Rawlings v. Kentucky, 448 U.S. 98, 105-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980); United States v. Miller, 13 M.J. 75, 77 (C.M.A.1982) (person seeking to suppress search evidence bears burden of proving he had a legitimate expectation of privacy in area being searched); cf. United States v. Harris, 5 M.J. at 46-47 (recognizing that actual standing by virtue of a reasonable expectation of privacy may be established, in certain circumstances, by a proprietory interest in premises seized).


person seeking to suppress search evidence bears burden of proving he had a legitimate expectation of privacy in area being searched


Context: Having concluded that plaintiff failed to prove the existence of a valid hourly contract for the services it actually performed, as opposed to the estimated services contract between the parties, the Court considers whether plaintiff is entitled to be reasonably compensated for services rendered on the vessel under the theory of quantum meruit. See R.B.

quantum meruit claims are "non-contractual, equitable remedies that are inapplicable if there is an enforceable contract governing the subject matter."

Ventures, Ltd. v. Simon R. Shane, 112 F.3d 54, 60 (2d Cir.1997) (quantum meruit claims are “non-contractual, equitable remedies that are inapplicable if there is an enforceable contract governing the subject matter.”); see also Peninsular & Oriental Steam Navigation Co. v. Overseas Oil Carriers, Inc., 553 F.2d 830, 835 (2d Cir.1977) (“[T]he law is clear that quasi-contractual claims may be considered by the federal courts in admiralty if they arise out of maritime contracts, or other inherently maritime transactions”) (citations and footnote omitted); GMD Shipyard Corp. v. M/V ANTHEA Y, No. 03 Civ. 2748, 2004 WL 2251670, at *7 (S.D.N.Y. Oct. 6, 2004).

"[T]he law is clear that quasi-contractual claims may be considered by the federal courts in admiralty if they arise out of maritime contracts, or other inherently maritime transactions"


Context: A witness may have multiple motivations for testifying to particular facts, and "[a]dmission of evidence of one type of bias does not render exclusion of evidence of another type of bias harmless."

State v. Hernandez, 269 Or App 327, 333-34, 344 P3d 538 (2015) (exclusion of evidence that complainant had an immigration reason for testifying against defendant was not harmless, even though there was evidence that complainant also had a financial reason for testifying against defendant); see also State v. Miller, 272 Or App 737, 746-47, 358 P3d 301 (2015) (evidence that complainant had numerous strong reasons to be angry with defendant did not render harmless the erroneous exclusion of evidence that complainant had physically attacked defendant, because the excluded evidence showed that complainant was actually angry with defendant and willing to use physical force against him); State v. Nacoste, 272 Or App 460, 470, 356 P3d 135 (2015) (admission of evidence that victim had one motive to accuse defendant—viz., because she was angry with him—did not render harmless the erroneous exclusion of evidence that victim had a second motive to do so—viz., to curry favor with the state).


admission of evidence that victim had one motive to accuse defendant--viz., because she was angry with him--did not render harmless the erroneous exclusion of evidence that victim had a second motive to do so--viz., to curry favor with the state


Context: Furthermore, Bolton is being sued in his official capacity, not as an individual, to enjoin him from acting as directed by a Dallas City ordinance. In actions against public officials in their official capacities, the doctrine of qualified immunity plays no part, prohibiting neither the grant of injunctive relief, nor the award of attorney's fees.

holding that attorney's fees may be awarded against a public official even when the official is immune from money damages

See Jackson v. Galan, 868 F.2d 165, 168 (5th Cir.1989) (holding that attorney’s fees may be awarded against a public official even when the official is immune from money damages); see also Monell v. Department of Social Services of City of New York, 436 U.S. 658, 700, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“Indeed, municipalities simply cannot ‘arrange their affairs’ on an assumption that they can violate constitutional rights indefinitely since injunctive suits against local officials under § 1983 would prohibit any such arrangement.”)

"Indeed, municipalities simply cannot 'arrange their affairs' on an assumption that they can violate constitutional rights indefinitely since injunctive suits against local officials under SS 1983 would prohibit any such arrangement."


Context: P 25 Based on this record, the trial court did not err in determining that Hatch was not an active participant in causing the water flow issue and that his only liability was a result of his status as owner of the property rather than as an actively negligent party.

See Shea, 150 Ariz. at 274, 723 P.2d at 92; Valley Forge, 150 Ariz. at 252, 722 P.2d at 979; see also Busy Bee, 82 Ariz. at 197-98, 310 P.2d at 822-23 (holding that the indemnity plaintiffs liability was due only because of its legal duty as the property owner and not because of any active or independent negligence); cf. Transcon Lines v. Barnes, 17 Ariz.App. 428, 434, 498 P.2d 502 (1972) (describing the evolution of common law indemnity in Arizona, and holding that indemnity plaintiff was more than just technically liable and therefore not entitled to indemnity).


Context: Rose failed to raise certain claims of sentencing error on direct appeal, which are now procedurally defaulted. To show cause to overcome that default, Rose must demonstrate that "some objective factor external to the defense prevented [him] or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to [his] own conduct."

"Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a SS 2255 proceeding." (emphasis added

See McKay, 657 F.3d at 1196 (“Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” (emphasis added) (citation omitted)); see also Lynn, 365 F.3d at 1235 (holding that to show cause to overcome procedural default, a defendant must demonstrate that something prevented him “from raising his claims on direct appeal....” (emphasis added)).

holding that to show cause to overcome procedural default, a defendant must demonstrate that something prevented him "from raising his claims on direct appeal...." (emphasis added


Context: (Defs.' Reply 19.) Accordingly, the Court finds that the governing case law supports the conclusion that RLUIPA, because of its jurisdictional provision and as has already been determined by the Second Circuit, constitutes a proper constitutional exercise of Congress' power and does not run afoul of any constitutional provisions.

"Every circuit to consider whether RLUIPA is Spending Clause legislation has concluded that it is constitutional under at least that power."

See Sossamon, 131 S.Ct. at 1664 (“Though the Court reserves the general question whether RLUIPA is a valid exercise of Congress’ power under the Spending Clause, there is apparently no disagreement among the Federal Courts of Appeals.”); see also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 328, n. 34 (5th Cir.2009) (“Every circuit to consider whether RLUIPA is Spending Clause legislation has concluded that it is constitutional under at least that power.”).

"Though the Court reserves the general question whether RLUIPA is a valid exercise of Congress' power under the Spending Clause, there is apparently no disagreement among the Federal Courts of Appeals."


Context: . While the majority contends that its decision today affects only Swanner's conduct, not his religious beliefs, Opinion at 283, I do not believe that the Alaska Constitution distinguishes so clearly between religious belief and religious conduct.

See Frank, 604 P.2d at 1070 (because of the close relationship between conduct and belief, and because of the high value we assign to religious beliefs, religiously impelled actions can be forbidden only where they are outweighed by a compelling governmental interest).

"[Bjelief and action cannot be neatly confined in logic-tight compartments."

See also Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972) ("[Bjelief and action cannot be neatly confined in logic-tight compartments.”); Smith, 494 U.S. at 893, 110 S.Ct. at 1608 (O’Connor, J., concurring) (“Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.”).


"Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause."


Context: We are unable to conclude that the officers in this case reasonably relied on the warrant in their possession -- which on its face explicitly authorized the search of the first-floor apartment -- to conduct a search of the apartment on the second floor. Indeed, there can be no doubt that a search warrant for one apartment in a building does not permit the police to enter apartments other than the one specified in their warrant.

"The objective standard we adopt ... requires officers to have a reasonable knowledge of what the law prohibits."

See Garrison, 480 U.S. at 86, 107 S.Ct. 1013 (“If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment.”); see also Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3405 (“The objective standard we adopt ... requires officers to have a reasonable knowledge of what the law prohibits.”).

"If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb's apartment."


Context: A notarized waiver in a separation agreement can qualify under ERISA as consent to a change of beneficiary if the waiver specifically refers to the spouse's employee benefit plan.

waiver was not effective when it did not specifically refer to the spouse's rights as beneficiary in an ERISA plan

Fox Valley, 897 F.2d at 280; see Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904, 907 (10th Cir.1991) (“we hold that absent any applicable divorce decree dictating otherwise, the beneficiary designation on file controls the disposition of this case”); see also McMillan v. Parrott, 913 F.2d 310, 312 (6th Cir.1990) (waiver was not effective when it did not specifically refer to the spouse’s rights as beneficiary in an ERISA plan).

"we hold that absent any applicable divorce decree dictating otherwise, the beneficiary designation on file controls the disposition of this case"


Context: The court rejects the Commissioner's claim that the court should remand this ease pursuant to sentence four of 42 U.S.C. SS 405(g). In consideration of the Supreme Court's interpretation of sentence four in Melkonyan, a remand under this sentence would be impermissible. "Remands pursuant to sentence four follow a substantive ruling by a district court, instead of merely returning the case to the agency for disposition." In addition, forcing the district court to issue a substantive ruling on the merits where both parties agree to the remand would impose a "burden on the district courts to make rulings where none are required contrary to generally accepted principles of jurisprudence," or in the alternative, invite the court to silently assist the Commis sioner in making a substantive ruling.

Tucunango v. Sullivan, 810 F.Supp. 103, 108 (S.D.N.Y.1993) (remand under sentence four is inappropriate where the Commissioner seeks remand to correct errors of law); see also Seaborn, 822 F.Supp. at 125; Correa v. Sullivan, No. 92 Civ. 0408 (LLS), 1992 WL 367116, at *3 (S.D.N.Y. Nov. 24, 1992) (no remand under sentence four where the court is not conducting an independent review of the record, but rather is only accepting the Commissioner’s assertion in his moving affidavit that he may have erred).

no remand under sentence four where the court is not conducting an independent review of the record, but rather is only accepting the Commissioner's assertion in his moving affidavit that he may have erred


But see Jordan v. Sullivan, 785 F.Supp. 47, 48-49 (S.D.N.Y.1992) (remand appropriate under sentence four where Commissioner admits legal error); Nguyen v. Sec. of HHS, No. CV-F-90-309-DLB, 1992 WL 184220, at *3 (E.D.Cal. Apr. 17, 1992) (same); Spurlock v. Sullivan, 783 F.Supp. 474, 478 (N.D.Cal.1992) (“the stipulated remand, in which the parties agreed that further evidence is necessary to fully determine the merits of plaintiff’s application, raises the inference that the previous evidentiary proceedings were materially deficient”).


"the stipulated remand, in which the parties agreed that further evidence is necessary to fully determine the merits of plaintiff's application, raises the inference that the previous evidentiary proceedings were materially deficient"


Context: Only then will the public's interest in proper process and in the substantive provisions of the ESA be furthered. Here, AFRC has made a case for vacatur. But missing from the equation is any concession of error by the agency, or even any hint as to how exactly, in FWS's view, the critical habitat designa tion "may" be deficient. This is in contrast not only to the Home Builders cases, already discussed, but also to other cases in which courts have vacated agency rules pursuant to an agency's request for vacatur.

vacating and remanding provisions of EPA rule based on agency's conceded lack of authority to promulgate those provisions

See, e.g., Sierra Club, 705 F.3d at 463, 466 (vacating and remanding provisions of EPA rule based on agency’s conceded lack of authority to promulgate those provisions); Bldg. Indus. Legal Def. Found v. Norton, 231 F.Supp.2d 100, 103, 108 (D.D.C.2002) (vacating critical habitat where “[a]ll parties, including the responsible agency, agree[d] that the economic analyses used in designating the critical habitats [were] substantively defective”); cf. Consumer Energy Council, 673 F.2d at 447 n. 79 (“The Commission’s argument that notice and comment requirements do not apply to ‘defectively promulgated regulations’ is untenable because it would permit an agency to circumvent the requirements of § 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.”).

"The Commission's argument that notice and comment requirements do not apply to 'defectively promulgated regulations' is untenable because it would permit an agency to circumvent the requirements of SS 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation."


vacating critical habitat where "[a]ll parties, including the responsible agency, agree[d] that the economic analyses used in designating the critical habitats [were] substantively defective"


Context: As a. general rule, a party may not obtain a judicial construction of a penal law through a declaratory judgment action.

" 'It is well settled that courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights."'

Ryan v. Rosenthal, 314 S.W.3d 136, 141 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex. 1969) (“ ‘It is well settled that courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights.”’)); see State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (“A civil court simply has no jurisdiction to render naked declarations of ‘rights, status or other legal relationships arising under a penal statute.’”).

"A civil court simply has no jurisdiction to render naked declarations of 'rights, status or other legal relationships arising under a penal statute.'"


Context: There is no authority to support the proposition that when Hernandez-Hernandez's attorney stipulated to the factual basis supporting the plea agreement the defendant was not bound by the facts contained in that stipulation. In fact, we have repeatedly held that criminal defendants are bound by the admissions of fact made by their counsel in their presence and with their authority.

finding that defendant was bound by his attorney's admission during closing argument

See United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir.1980) (holding that “when a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant’s acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agreed to it through his or her attorney”); see also United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (finding that defendant was bound by his attorney’s admission during closing argument); Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1141 (9th Cir.1981) (holding that attorney’s admission to an element of the offense in the petitioners’ presence at a deportation hearing was binding on the petitioners).

holding that "when a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant's acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agreed to it through his or her attorney"


holding that attorney's admission to an element of the offense in the petitioners' presence at a deportation hearing was binding on the petitioners


Context: .If the officers had observed some sort of exchange among the parties that might be an objective factor which would give rise to a reasonable suspicion that the parties were engaged in criminal activity. See United States v. Ruiz, No.Crim.

A. 98-120, 1998 WL 622405, at *2 (E.D.Pa. Sept. 15, 1998) (finding officer had reasonable suspicion after observing money exchange hands in a high drug area).

See also United States v. Williams, 139 F.3d 628, 630 (8th Cir.1998) (finding reasonable suspicion where officer observed exchange of drugs and money); United States v. Garrett, 1007 (DC Cir.1992) (holding that an officer’s observation of exchange of "small object” and money in a known drug trafficking area constituted reasonable suspicion).


Context: The fundamental rule when instructing a jury in a criminal case is that the instructions must identify for the jury all elements of the offense that must be proved beyond a reasonable doubt.

Fifth and Sixth Amendments "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"

See Neder v. United States, 527 U.S. 1, 6-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (government conceded failure to instruct jury on essential element of materiality was constitutional error); see also United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (Fifth and Sixth Amendments “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“prosecution bears the burden of proving all elements of the offense charged, and must persuade the • factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements”) (citations omitted).


"prosecution bears the burden of proving all elements of the offense charged, and must persuade the * factfinder 'beyond a reasonable doubt' of the facts necessary to establish each of those elements"


Context: Further, to the extent the Debtor has a right to sue either the Trust or the Petitioners, that chose in action also is property of the Debtor's bankruptcy estate.

recognizing property of the estate to include the estate's chose in action against its auditor

Cable v. Ivy Tech State College, 200 F.3d 467, 472-73 (7th Cir.1999) (“The phrase ‘legal or equitable interests ... in property’ includes choses in action and other legal claims that could be prosecuted for benefit of the estate.”); see also Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 596 (7th Cir.2012) (recognizing property of the estate to include the estate’s chose in action against its auditor); accord Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 473 n. 7, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974) (addressing section 77a of the Bankruptcy Act, the predecessor to section 541, and concluding that “it is settled that ‘property’ within the meaning of this section includes intangibles such as choses in action.”).

"The phrase 'legal or equitable interests ... in property' includes choses in action and other legal claims that could be prosecuted for benefit of the estate."


Context: . Likewise, any interpretation that is provided or disavowed in the prosecution history also shapes the claim scope.

holding that although term was not limited by the specification, it was "expressly defined" in a narrow manner in the prosecution history

See Loctite Corp. v. Ultraseal, Ltd., 781 F.2d 861, 867, 228 USPQ 90, 93-94 (Fed.Cir.1985) (holding that although term was not limited by the specification, it was "expressly defined” in a narrow manner in the prosecution history); see also CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1158-59, 42 USPQ2d 1577, 1585-86 (Fed.Cir.1997) (reviewing statements in the prosecution history in determining that claim term "elasticity" required total, not just partial, recovery from deformation); Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 452, 227 USPQ 293, 296 (Fed.Cir.1985).


Context: The Supreme Court has also indicated that where the impact of a serious constitutional defect is subject to pure speculation, the defect constitutes structural error.

stating that when "the scope of a violation ... cannot be discerned from the record, any inquiry into its effect on the outcome of the case would be purely speculative"

See Gonzalez-Lopez, 548 U.S. at 149 n.4, 126 S.Ct. at 2564 n.4 (rejecting the use of a “single, inflexible criterion” for determining structural error and instead finding that structural error occurred in light of the pure speculation involved in determining what would have happened but for the error); see also Satterwhite, 486 U.S. at 256, 108 S.Ct. at 1797 (stating that when “the scope of a violation ... cannot be discerned from the record, any inquiry into its effect on the outcome of the case would be purely speculative”); Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978).

rejecting the use of a "single, inflexible criterion" for determining structural error and instead finding that structural error occurred in light of the pure speculation involved in determining what would have happened but for the error


Context: . In addition, immutability is not an absolute prerequisite to heightened scrutiny. The Supreme Court has granted suspect class status to groups whose distinguishing characteristic is not immutable.

recognizing that because a child born out of wedlock may be "legitimated" by father, strictly speaking illegitimacy is not an immutable characteristic

See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (rejecting immutability requirements in treating group of resident aliens as suspect class despite their ability to opt out of class voluntarily); see also Miller v. Albright, 523 U.S. 420, 431, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (recognizing that because a child born out of wedlock may be "legitimated” by father, strictly speaking illegitimacy is not an immutable characteristic); see also Mew Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) (finding religious identification and alienage, despite being changeable, to constitute suspect classes).


Context: We do not discuss the admbsibility of any hearsay that might be contained in the test protocols prepared by Dr. Gibbs, since we hold the court had sufficient grounds to exclude Dr. Smith's testimony when Clifford's attorney refused to produce the protocols for inspection by the government prior to Dr. Smith's testimony before the jury. We do note, though, that hearsay evidence against a criminal defendant may raise question of the defendant's constitutional right to confront witnesses.

holding that hearsay evidence does not violate the confrontation clause if declarant is unavailable and it "bears adequate 'indicia of reliability"'

See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that hearsay evidence does not violate the confrontation clause if declarant is unavailable and it “bears adequate ‘indicia of reliability”’); Wright, 251 U.S.App.D.C. at 286, 783 F.2d at 1101 (stating that expert’s recounting of statements by codefendants did not violate confrontation clause because statements were not introduced for truth of matter asserted and declarant testified at trial); cf. Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir.1978) (holding that “otherwise hearsay evidence disclosing the basis of an expert witness’ opinion should be admissible if ... the impeaching evidence has sufficient guarantee of reliability that the prophylactic effect of the hearsay rule is not necessary to ensure trustworthiness”).

holding that "otherwise hearsay evidence disclosing the basis of an expert witness' opinion should be admissible if ... the impeaching evidence has sufficient guarantee of reliability that the prophylactic effect of the hearsay rule is not necessary to ensure trustworthiness"


stating that expert's recounting of statements by codefendants did not violate confrontation clause because statements were not introduced for truth of matter asserted and declarant testified at trial


Context: Death penalty cases present special concerns about what voir dire may be constitutionally required, and there are special voir dire rules in such cases.

See Turner v. Murray, 476 U.S. 28, 36-37, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (holding that Due Process Clause entitled death-penalty-eligible defendant to voir dire questioning on racial bias where defendant was accused of interracial crime); see also Morgan v. Illinois, 504 U.S. 719, 738-39, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (state trial court, under Due Process Clause, may not refuse to inquire into whether a potential juror, regardless of facts in the case, would automatically impose the death sentence); 5 LaFave, et al., supra, § 22.3(a), at 295.


Context: Victim's testimony that the worst of her injuries--inflicted on March 5th (a Thursday)--lasting well into the middle of the following week, was sufficient to show her impairment was protracted.

See, e.g., Ross, 939 S.W.2d at 19 (“Seven days without the use of a leg or foot is sufficient to constitute protracted impairment.”); see also Norwood, 8 S.W.3d at 246 (protracted impairment depends not just on the length of time the effects of the injury last, but also on the nature and seriousness of a dysfunction). Additionally, Victim’s testimony that her bruises did not heal for weeks could also have led a reasonable juror to conclude that, due to the attendant pain, Victim suffered some impairment for that length of time. A reasonable juror could have found that the loss or impairment of the ability to sit and rest comfortably for even just a few days could have easily felt “protracted,” if not interminable.

"Seven days without the use of a leg or foot is sufficient to constitute protracted impairment."


Context: Indeed, each generic Defendant specifically "carved-out" the pertinent indication (e.g., "adjunctive treatment for major depressive disorder") from their respective generic Ability(r) labels, affirmatively relinquishing the right to actively promote use of their aripiprazole products with any antidepressants, including citalo-pram and escitalopram. (See, e.g., Torrent's Opp'n at 1-2; Alembic's Opp'n at 2, 3, 6, 14,18; Zydus's Opp'n at 22-23; Sun's Opp'n at 12; Teva's Opp'n at 2, 13-14; Actavis's Opp'n at 13-14; Apotex's Opp'n at 11-12; Hetero's Opp'n at 17-18; San-doz's Opp'n at 4, 18.) Indeed, given these Defendants' "carve outs," Defendants cannot, as a matter of law, instruct patients and/or prescribers to use their aripiprazole products for purposes of "adjunctive treatment for major depressive disorder," a use or indication for. which only Otsuka holds approval.

noting that, following the FDA's acceptance of the carve-out label, the generic company may "place its drug on the market, (assuming the [applicant] meets other requirements), but only for a subset of approved uses -- i.e., those not covered by the brand's patents "

See Caraco Pharm. Labs., 132 S.Ct. at 1677 (noting that, following the FDA’s acceptance of the carve-out label, the generic company may “place its drug on the market, (assuming the [applicant] meets other requirements), but only for a subset of approved uses — i.e., those not covered by the brand’s patents ”) (emphasis added); see also Bayer Schering Pharma AG v. Lupin, Ltd., 676 F.3d 1316, 1322-23 (Fed.Cir.2012) (generally noting that the applicable FDA regulations prohibit generic pharmaceutical companies from implying or suggesting that the generic product has indications .or uses other than those approved by the FDA).


Context: This was not an unreasonable application of the Court's precedents, as fairmind-ed jurists could have reached the same result.

holding that an "intervening change in law ... can itself justify an increased sentence on remand, thereby precluding application of the Pearce presumption"

See United States v. Singletary, 458 F.3d 72, 77 (2d Cir.2006) (holding that an “intervening change in law ... can itself justify an increased sentence on remand, thereby precluding application of the Pearce presumption”); cf. Wasman v. United States, 468 U.S. 559, 571, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) (holding that intervening conduct may be used to rebut the presumption of vindictiveness).


Context: [16] Applying that case law here, the notice provision in the instant lease was a condition precedent to Coordinated Health's exercise of either option term.

"where the lease gives the privilege of renewal[,] the lessee, by some affirmative act, must indicate his- election to exercise the option prior to the expiration of the lease"

See, e.g., Fragomeni, 96 N.E.2d at 278 (“where the lease gives the privilege of renewal[,] the lessee, by some affirmative act, must indicate his- election to exercise the option prior to the expiration of the lease”); see also C. Callahan Co., 90 N.E. at 643 (“an option of a renewal would seem to -imply that the parties contemplated some affirmative act by way of the creation of an additional term.”).

"an option of a renewal would seem to -imply that the parties contemplated some affirmative act by way of the creation of an additional term."


Context: The second factor, whether payment of benefits is triggered by a single, unique event or on a recurring basis, also favors the finding of an ERISA plan. Payment of severance benefits under the SAP is not premised upon a single event, such as a plant closing, as was at issue in Fort Halifax.

See Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2218 (holding the payment of benefits at the occurrence of a single event an indicium of lack of an administrative scheme); see also, Delaye v. Agripac, Inc., 39 F.3d 235, 237-38 (9th Cir.1994) (holding that although the employer had discretion to make a for cause determination, the employment contract between the former president/chief executive officer and the defendant employer did not constitute an ERISA plan because administration of the benefits required only a single discretionary decision).


Context: Neither the Virginia state courts nor the Fourth Circuit have addressed the issue of defining personal jurisdiction over entities engaged in letter of credit transactions. Nevertheless, several federal circuit courts and other courts have addressed the issue and the consensus appears to be that the beneficiary's status as a resident of the forum state is not sufficient to establish personal jurisdiction over the banks involved in issuing or confirming the letter of credit for the benefit of the beneficiary.

See Moog World Trade Corp., 90 F.3d at 1386-87 (foreign bank issuing letter of credit payable at Missouri confirming bank for benefit of Missouri citizen was not subject to personal jurisdiction in Missouri); Jet Charter Serv., Inc. v. W. Koeck Progress Aviation (U.S.A), Inc., 907 F.2d 1110, 1114-15 (11th Cir.1990) (Swiss bank’s failure to issue letter of credit in favor of Florida beneficiary for purchase of assets in Florida was not sufficient to establish personal jurisdiction in Florida under Fourteenth Amendment); Pacific Reliant Indus. v. Amerika Samoa Bank, 901 F.2d 735, 737 (9th Cir.1990) (defendant was “not subject to personal jurisdiction in Oregon simply because it issued a letter of credit in favor of an Oregon beneficiary”); Chandler v. Barclays Bank, PLC, 898 F.2d 1148, 1150-53 (6th Cir.1990) (Egyptian bank issuing letter of credit payable at confirming bank in New York for the benefit of Michigan beneficiary was not subject to personal jurisdiction in Michigan because of lack of minimum contacts); Leney v. Plum Grove Bank, 670 F.2d 878, 880-81 (10th Cir.1982) (letter of credit issued by Illinois bank on behalf of Illinois customer payable to California resident for purchase of Colorado property did not subject Illinois issuing bank to personal jurisdiction in Colorado); Empire Abrasive Equip. Corp. v. H.H. Watson, Inc., 567 F.2d 554, 558 (3d Cir.1977) (Rhode Island bank’s issuance of letter of credit for Rhode Island customer payable in Rhode Island did not subject issuing bank to jurisdiction of Pennsylvania where beneficiary resided); Martin v. First Interstate Bank of Cal., 914 F.Supp. 473, 477-78 (D.N.M.1995) (jurisdiction over California issuing bank was not proper in New Mexico where beneficiary of letter of credit resided) (cited favorably in DeSantis, 949 F.Supp. at 424); Occidental Fire & Gas. Co. of N.C. v. Continental Ill. Nat’l Bank & Trust Co. of Chicago, 689 F.Supp. 564, 568 (E.D.N.C.1988) (North Carolina court could not constitutionally exercise jurisdiction over Illinois bank that issued letter of credit that benefitted North Carolina resident); but see American Nat’l Bank & Trust Co. v. Int’l Seafoods of Alaska, Inc., 735 P.2d 747, 752-53 (Alaska 1987) (jurisdiction over Tennessee bank that confirmed letter of credit issued by Florida bank in favor of Alaska resident was constitutionally allowable in Alaska); Van Schaack & Co. v. Dist. Ct., Eighteenth Judicial District, 189 Colo. 145, 538 P.2d 425, 426 (1975) (Kansas issuing bank subject to personal jurisdiction in Colorado when it issued letter of credit on behalf of its Kansas client for the benefit of a Colorado resident purchasing property in Colorado).


Kansas issuing bank subject to personal jurisdiction in Colorado when it issued letter of credit on behalf of its Kansas client for the benefit of a Colorado resident purchasing property in Colorado


Swiss bank's failure to issue letter of credit in favor of Florida beneficiary for purchase of assets in Florida was not sufficient to establish personal jurisdiction in Florida under Fourteenth Amendment


defendant was "not subject to personal jurisdiction in Oregon simply because it issued a letter of credit in favor of an Oregon beneficiary"


Egyptian bank issuing letter of credit payable at confirming bank in New York for the benefit of Michigan beneficiary was not subject to personal jurisdiction in Michigan because of lack of minimum contacts


letter of credit issued by Illinois bank on behalf of Illinois customer payable to California resident for purchase of Colorado property did not subject Illinois issuing bank to personal jurisdiction in Colorado


Rhode Island bank's issuance of letter of credit for Rhode Island customer payable in Rhode Island did not subject issuing bank to jurisdiction of Pennsylvania where beneficiary resided


North Carolina court could not constitutionally exercise jurisdiction over Illinois bank that issued letter of credit that benefitted North Carolina resident


Context: .Some jurisdictions that consider otherwise excluded inheritances as deviations from presumptive child support guidelines have identified an approach that should be helpful in assuring that all applicable factors are fairly considered in the analysis.

See, e.g., Connell, supra, 712 A.2d at 1269-70 (explaining that child support should be calculated first utilizing the parties’ gross income as defined in the child support guidelines before undertaking an analysis of statutory factors for deviation); see also Cody v. Evans-Cody, 291 A.D.2d 27, 735 N.Y.S.2d 181 (2001) (suggesting first a calculation under the guideline formula before deviating when strict application produces an unjust result).

explaining that child support should be calculated first utilizing the parties' gross income as defined in the child support guidelines before undertaking an analysis of statutory factors for deviation


Context: The court of appeals for this circuit has an established tradition of leniency towards pro se petitioners, especially where summary judgment is sought by the government.

"due to the pro se petitioner's general lack of expertise, courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed.... pro se complaints must be liberally constructed"

See Williams v. Kullman, 722 F.2d 1048 (2d Cir.1983) (“due to the pro se petitioner’s general lack of expertise, courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed.... pro se complaints must be liberally constructed”); see also United States v. Gonzalez-Roque, 165 F.Supp.2d 577 (S.D.N.Y.2001) (holding that pro se petitioners need not raise issues “in INS terms” but may raise them “as they may have understood” them).

holding that pro se petitioners need not raise issues "in INS terms" but may raise them "as they may have understood" them


Context: . The State does not argue that rational basis scrutiny, as used in LaRue, applies. Even if it had, we agree'with the Third, Fourth, Sixth, Seventh, and Eleventh Circuits, which have all concluded that 44 Liquormart's reaffirmation of LaRue's holding suggests that the La-Rue regulations would have, and must have, survived intermediate scrutiny.

stating that where the First Amendment is implicated, courts' review must be "more intense"

See SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273-74 (5th Cir.1988) (stating that where the First Amendment is implicated, courts’ review must be "more intense”); see also Fantasy Ranch, 459 F.3d at 555 (noting that intermediate scrutiny "routinely” applies to regulations of SOBs generally).

noting that intermediate scrutiny "routinely" applies to regulations of SOBs generally


Context: Sanctions are not appropriate when the plaintiffs' pretrial inquiries into the factual and legal bases of the complaint are sufficient. The district court, recognizing the difficulty in proving conspiratorial agreement, did not abuse its discretion in concluding that the plaintiffs' claims were reasonable at that time and under those circumstances.

See id. (recognizing difficulty in proving conspiracy); see also Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 446 (5th Cir.1992) (discussing difficulty in direct proof of conspiracy and suggesting courthouse door not be barred for those needing discovery for proof of allegations); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1563 (11th Cir.1992) (finding claims may be meritless but not frivolous, given complexity of facts and legal issues involved).

stating that "a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit"

Cf. Neitzke v. Williams, 490 U.S. 319, 329, 109 S.Ct. 1827, 1834, 104 L.Ed.2d 338 (1989) (stating that “a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit”).


finding claims may be meritless but not frivolous, given complexity of facts and legal issues involved


Context: In addition, the Court notes the significance that, in this case, Class Counsel did not begin negotiating their fee until all of the settlement terms for the Class had been fully negotiated. (PI.

rejecting a settlement agreement which contained an award of attorneys' fees, holding class counsel should not simultaneously negotiate both a settlement and the attorneys' fees

Fee Brief at 1.) See Prudential I, 962 F.Supp. at 577, aff'd, 148 F.3d at 335 (noting that parties properly negotiated settlement before negotiating attorneys’ fees); cf. Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir.1977) (rejecting a settlement agreement which contained an award of attorneys’ fees, holding class counsel should not simultaneously negotiate both a settlement and the attorneys’ fees).

noting that parties properly negotiated settlement before negotiating attorneys' fees


Context: . Appellant, Coty Williams, appeals the summaiy denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which alleged multiple grounds for relief. We find that Williams is entitled to an opportunity to amend 'His third and fifth grounds for relief.

See Spera v. State, 971 So.2d 754, 761 (Fla. 2007) (holding that a defendant who files a legally insufficient rule 3.850 motion for failing to meet pleading requirements should be allowed at least one opportunity to amend); see also Ferris v. State, 996 So.2d 228, 229 (Fla. 1st DCA 2008) (requiring an opportunity to amend because “the trial court did not deny, the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue”).

requiring an opportunity to amend because "the trial court did not deny, the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue"


Context: But if a monopsonist's uncompetitive prices are a result not solely of its market power, but also of practices that result in complete control of the input (supply) market, the effect of the monopsonist's practices may be an injury to competition. Moreover, although PSA claims against processors for practices associated with supply contracts have not enjoyed much success, these cases are factually different from the one before us. For example, the producers in these cases did not allege the existence of a monopsony. In addition, the supply contracts guaranteed producers a price tied to market prices, and overall, the arrangements created incentives and efficiencies that benefitted consumers.

Pickett, 420 F.3d at 1284 (“[I]t was undisputed ... that marketing agreements are a more efficient means for both meat packers and cattle producers to operate in the market.”); IBP, Inc., 187 F.3d at 978 (explaining that the marketing agreements “essentially ensure[ ] that the potential for undue or arbitrary lowering of prices is eliminated”); see also Griffin v. Smithfield Foods, Inc., 183 F.Supp.2d 824, 827 (E.D.Va.2002) (granting summary judgment in favor of a defendant packer because the plaintiff producers had not identified any specific practices that violated the PSA).

"[I]t was undisputed ... that marketing agreements are a more efficient means for both meat packers and cattle producers to operate in the market."


explaining that the marketing agreements "essentially ensure[ ] that the potential for undue or arbitrary lowering of prices is eliminated"


Context: [P 18] Sanderson's assertion the word "delivering" in N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) includes certified mail would render the inclusion of the specific mailing requirements under N.D.R.Civ.P. 4(d)(2)(A)(v) and 4(d)(2)(D)(iii) redundant and largely meaningless.

holding the Rule 4 requirement of "delivery" to the appropriate United States Attorney required personal service, not service by certified mail

See Bickel, 530 N.W.2d at 320 (stating a presumption the legislature acts with purpose and does not perform idle acts); cf. Helmets v. Sortino, 545 N.W.2d 796, 799 (N.D.1996) (hold ing, prior to the 1999 amendment of N.D.R.Civ.P. 4(d)(2)(A)(v) . and 4(d)(2)(D)(iii) to allow third-party commercial delivery, .that Federal Express delivery is not mail delivery); Gabriel v. United States, 30 F.3d 75, 77 (7th Cir.1994) (holding the Rule 4 requirement of “delivery” to the appropriate United States Attorney required personal service, not service by certified mail).


Context: The general rule is that remittance of a filing fee, although derived from a federal statute and sometimes from local rules, is not jurisdictional and the clerk should accept a complaint despite the plaintiffs failure to submit a filing fee or to request IFP status.

See Casanova v. Dubois, 304 F.3d 75, 80 (1st Cir.2002) (“The advance payment of a filing fee is generally not a jurisdictional prerequisite to a lawsuit;” inmates’ complaint was timely filed when placed in prison mail system, although not accompanied by IFP application or filing fee); McDowell, 88 F.3d at 191 (pro se litigant’s complaint was filed for statute of limitations purposes when it was filed with the clerk, even though the filing fee was not paid until fourteen months later); Robinson v. Doe, 272 F.3d 921, 922-23 (7th Cir.2001) (pro se prisoner’s § 1983 action was filed for statute of limitations purposes when the complaint was received by the court clerk even though the complaint was not accompanied by a filing fee or motion to proceed IFP, in violation of local rules), cert. denied, 535 U.S. 1084, 122 S.Ct. 1976, 152 L.Ed.2d 1033 (2002); Cintron v. Union Pacific Railroad Co., 813 F.2d 917 (9th Cir.1987) (filing fee prescribed by 28 U.S.C. § 1914 does not rise to the level of a jurisdictional requirement; where complaint was filed before statute of limitations expired but was returned for failure to comply with local rules and to pay correct filing fee, the case should not have been dismissed as untimely where the correct fee was paid promptly but after the statute of limitations had run); Rodgers, 790 F.2d at 1551-52 (complaint is deemed “filed” for statute of limitations purposes when actually or constructively received by the court clerk, despite untimely payment of the filing fee; plaintiffs social security appeal was filed when she filed it with the clerk, although her IFP application was subsequently denied and the filing fee was not paid until after the limitations period ran); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir.1978) (untimely payment of the filing fee does not vitiate the validity of a timely filed complaint; district court erred in dismissing pro se plaintiffs Title VII case when he failed to pay the filing fee within the time ordered); see also Molina v. City of Lancaster, 159 F.Supp.2d. 813, 819 (E.D.Pa.2001) (pro se litigant in civil matter “constructively filed” his complaint for statute of limitations purposes when he initially filed it with only a portion of the required filing fee and did not submit the remainder of the fee until after the limitations period ran); Wells v. Apfel, 103 F.Supp.2d 893, 897-99 (W.D.Va.2000) (complaint is considered filed for statute of limitations purposes as of date of its receipt, but will not be docketed and summons will not issue until the appropriate fee is paid).

pro se litigant's complaint was filed for statute of limitations purposes when it was filed with the clerk, even though the filing fee was not paid until fourteen months later


pro se prisoner's SS 1983 action was filed for statute of limitations purposes when the complaint was received by the court clerk even though the complaint was not accompanied by a filing fee or motion to proceed IFP, in violation of local rules