Context: When the legislature has stated the purpose of a state law and specified the criteria for evaluating compliance with it, then a local ordinance imposing different requirements is inconsistent with the state statute. But if the state and local provisions serve different purposes, then different methods of determining compliance do not render the two provisions inconsistent.

"[L]ocal regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable."

See Robinson v. City of Longview, 936 S.W.2d 413, 417 (Tex.App.-Tyler 1996, no writ) (holding that ordinance prohibiting topless dancing at locations where alcoholic beverages are served was not inconsistent with state law prohibiting municipalities from imposing stricter standards on premises where a liquor license is required). Thus, to determine if the ordinance is inconsistent with state legislation, we begin by comparing the purpose of each. See City of Weslaco v. Melton, 158 Tex. 61, 63-64, 308 S.W.2d 18, 19-20 (1958) (holding that an ordinance banning the sale of grade A raw milk was not inconsistent with a state statute for grading and labeling milk because the two provisions served different purposes); see also City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 796 (Tex.1982) (“[L]ocal regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.”). In ascertaining these purposes, we rely on the statements of the body that enacted the provision.


Context: Moreover, upon being seized, plaintiffs promptly identified themselves and answered all of the agents' questions; Farag indicated that he was a federal employee and, according to his deposition, he provided his federal tax-identification number. The record does not suggest why the agents could not verify this information before over four hours had passed.

"[T]he ... agents knew the time of Place's scheduled arrival ..., had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests."

See Place, 462 U.S. at 709, 103 S.Ct. 2637 (“[T]he ... agents knew the time of Place’s scheduled arrival ..., had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent’s Fourth Amendment interests.”); cf. United States v. Hooper, 935 F.2d 484, 496-97 (2d Cir.1991) (upholding 30-minute detention under Terry where, under the circumstances, the officers “could not have been expected to ... arrange for any [more expeditious] investigative technique”).

upholding 30-minute detention under Terry where, under the circumstances, the officers "could not have been expected to ... arrange for any [more expeditious] investigative technique"


Context: A contractor's claim where a termination for convenience has occurred may be further reduced by "[a]ny claim which the [government has against the [contractor under this contract." However, the government may not prevail on a claim against a contractor where the government wrongfully prevented performance by the contractor.

See Short Bros., PLC v. United States, 65 Fed.Cl. 695, 799 (2005) (the “implied duty not to hinder performance prohibits the [government, as with any other party to a contract, from do[ing] anything to prevent performance thereof by the [contractor] or that will hinder or delay him in its performance”) (quoting Lewis-Nicholson, Inc. v. United States, 213 Ct.Cl. 192, 550 F.2d 26, 32 (1977)) (internal quotation marks omitted); Tennessee Valley Auth. v. United States, 60 Fed.Cl. 665, 672 (2004) (“occurrence of a necessary condition [in a contract] ‘may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing’ ”) (quoting Restatement (Second) of Contracts § 225 cmt. b (1981)); see also Petrofsky v. United States, 616 F.2d 494, 497 (Ct.Cl.1980); Washington Metro. Area Transit Auth. v. Quik Serve Foods, Inc., 402 F.Supp.2d 198, 202 (D.D.C.2005) (hindrance or prevention of performance is a breach of contract); A.I.C.

the "implied duty not to hinder performance prohibits the [government, as with any other party to a contract, from do[ing] anything to prevent performance thereof by the [contractor] or that will hinder or delay him in its performance"


"occurrence of a necessary condition [in a contract] 'may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing' "


Context: Our conclusion that these obstructions must be removed is reinforced by the fact that maintenance of such obstructions in a right of way for twenty years is enough to extinguish an easement over nonregistered land.

See Post v. McHugh, 76 Mass. App. Ct. 200, 204-205 (2010) (placement of boulders on way for twenty years extinguished easement as to that part of the way).

See also Pappas v. Maxwell, 337 Mass. 552, 557 (1958) (extension of outhouse and plantings extinguished easement as to the area obstructed).


Context: Additionally, this Court has previously imposed disbarment for violations of the ethical rules similar to those found in this case.

See Fla. Bar v. Brownstein, 953 So.2d 502 (Fla.2007) (disbarring respondent who misappropriated $20,000 in client funds held in trust, a portion of the total amount entrusted to the respondent by the client for the purpose of paying a bankruptcy settlement); see also Fla. Bar v. Barley, 831 So.2d 163 (Fla.2002) (disbarring respondent who misappropriated $76,760.68 in client funds held in trust, making a series of withdrawals from the funds over a period of three months, and ultimately depleting the entire amount).


Context: Significantly, the trial judge also had the ability to observe the prosecutor's demeanor to determine whether she appeared to be telling the truth, evidence which would not be evident in the record. Both the majority opinion and the record are devoid of any basis for concluding that the prosecutor's statements and demeanor left the trial judge with no permissible alternative but to reject the prosecutor's race-neutral justifications.

"Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous."

See Hernandez, 500 U.S. at 369, 111 S.Ct. 1859 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”).

stating that Section 2254 "demands that state court decisions be given the benefit of the doubt"

See also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (stating that Section 2254 “demands that state court decisions be given the benefit of the doubt”).


Context: This principle of representative claim preclusion indisputably applies to actions brought by a government agency or officer on behalf of non-party individuals.

holding that consent decree in action by United States and State of Alaska against Exxon which resolved governments' claims for damage to use and enjoyment of environment had res judicata effect and precluded non-party sport fisherman from pursuing same type of claim in separate action against Exxon

Id. (citing Heckman v. United States, 224 U.S. 413, 445-46, 32 S.Ct. 424, 56 L.Ed. 820 (1912) (recognizing “if the United States ... is entitled to bring a suit ... [to set aside illegal land conveyances], it must follow that the decree will bind not only the United States, but the Indians whom it represents in the litigation”)); see also Alaska Sport Fishing Ass’n v. Exxon Corp., 34 F.3d 769, 774 (9th Cir.1994) (holding that consent decree in action by United States and State of Alaska against Exxon which resolved governments’ claims for damage to use and enjoyment of environment had res judicata effect and precluded non-party sport fisherman from pursuing same type of claim in separate action against Exxon); Colby v. J.C. Penney Co., 811 F.2d 1119, 1125 (7th Cir.1987) (discussing doctrine of “virtual representation” which permits privity element of res judicata to be satisfied when “the party to the first suit was an adequate representative of the ... interests” of party to second suit); Jones v. Bell Helicopter Co., 614 F.2d 1389 (5th Cir.1980) (holding that dismissal of EEOC’s action for failure to comply with Administrative Procedures Act barred subsequent private action based on same claim under res judicata principles), abrogated on other grounds as stated in United States v. Popovich, 820 F.2d 134 (5th Cir.1987); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1119 (8th Cir.1977) (ruling that EEOC consent decree with employer barred subsequent private action by employee against employer on same alleged acts of discrimination); EEOC v. Harris Chernin, Inc., 767 F.Supp. 919, 923 (N.D.Ill.1991) (applying res judicata principles to bar EEOC from pursuing ADEA claim for employee whose individual ADEA claim had previously been dismissed on statute of limitations grounds and discussing trend to loosen “ ‘the traditional and sometimes artificial limitations on the application of res judica-ta’ ” with regard to privity requirement) (citing Maguire v. Selcke, 1990 WL 70451 at *4, (N.D.Ill.1990) and quoting Diaz v. City of Chicago, 601 F.Supp. 1251, 1253 (N.D.Ill.1984)), aff'd in part, rev’d in part, 10 F.3d 1286 (7th Cir.1993); but cf. EEOC v. Bap tist Mem’l Hosp., 615 F.Supp. 111, 115 (W.D.Mo.1984) (holding that employee was not precluded from bringing separate employment discrimination action against employer where employee was not a party to consent decree entered into between EEOC and employer, employee had rejected consent decree and had received no relief under decree).

recognizing "if the United States ... is entitled to bring a suit ... [to set aside illegal land conveyances], it must follow that the decree will bind not only the United States, but the Indians whom it represents in the litigation"


discussing doctrine of "virtual representation" which permits privity element of res judicata to be satisfied when "the party to the first suit was an adequate representative of the ... interests" of party to second suit


holding that dismissal of EEOC's action for failure to comply with Administrative Procedures Act barred subsequent private action based on same claim under res judicata principles


ruling that EEOC consent decree with employer barred subsequent private action by employee against employer on same alleged acts of discrimination


holding that employee was not precluded from bringing separate employment discrimination action against employer where employee was not a party to consent decree entered into between EEOC and employer, employee had rejected consent decree and had received no relief under decree


Context: However, Daker ignores the fact that he already argued in his first appeal that the trial court erroneously unsealed the documents that were used in the presentence investigation. Since Daker already waived this issue by failing to identify the location of the relevant signed releases in the record of his first appeal, we cannot reconsider this issue now.

See Willingham v. State, 241 Ga. App. 509 (1) (527 SE2d 232) (1999) (error waived in prior appeal could not be addressed again in subsequent appeal); see also Parker v. State, 229 Ga. App. 217, 218 (2) (493 SE2d 558) (1997) (when issue decided adversely to appellant in prior appeal, relitigation is precluded by res judicata).


Context: P 17 For example, although Article 6, Section 5 of the Arizona Constitution vests power to make procedural rules with the Arizona Supreme Court, and rules of evidence generally are regarded as procedural, statutory evidentiary rules that can be viewed as supplemental to court rules have been upheld.

finding that A.R.S. SS 13-1421, Arizona's Rape Shield Law, "neither impermissibly infringes upon the Arizona Supreme Court's rulemaking authority nor violates the doctrine of the separation of powers"

See State v. Gilfillan, 196 Ariz. 396, 404, ¶ 28, 998 P.2d 1069, 1077 (App.2000) (finding that A.R.S. § 13-1421, Arizona’s Rape Shield Law, “neither impermissibly infringes upon the Arizona Supreme Court’s rulemaking authority nor violates the doctrine of the separation of powers”); see also State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984) (statutory rule establishing procedure for evidentiary admission of results of blood alcohol tests does not violate Article 6, Section 5).


Context: Just as a layperson may testify as to the physical manifestations of a disease or injury, so appellant here is testifying as to an incident or event that resulted in a physically observable injury, i.e., the craniocerebral trauma. Therefore, appellant is not necessarily opining as to a matter involving medical causation, and her statements render the instant claim well grounded.

See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (person submitting claim has “burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded”) (quoting 38 U.S.C. § 5107(a)); but see Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (Court held that lay assertion of medical causation did not render claim well grounded and vacated BVA decision that had found claim to be well grounded).

person submitting claim has "burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded"


Context: Indeed, they were not even looking for such services when they removed Katie from public school. Several courts, relying on the parents' failure to challenge the IEP's adequacy, have found insufficient notice to the school district even when the parents requested an evaluation and received an IEP before removing their child.

affirming a denial of reimbursement when the child's parents agreed to the IEP proposed by the school and only informed the school district of their concerns after they arranged for the child's enrollment in private school

See, e.g., Berger, 348 F.3d at 523-24 (affirming a denial of reimbursement when the child’s parents agreed to the IEP proposed by the school and only informed the school district of their concerns after they arranged for the child’s enrollment in private school); see also M.C., 226 F.3d at 68 (denying reimbursement for psychological counseling that the court assumed necessary for the child to benefit from special education because the parents had failed to raise the issue in the child’s IEP before the counseling started).

denying reimbursement for psychological counseling that the court assumed necessary for the child to benefit from special education because the parents had failed to raise the issue in the child's IEP before the counseling started


Context: When a consumer brings an action for violation of the disclosure provisions of the FCRA, the Act's purpose of protecting consumer confidentiality is implicated. In that respect, such cases are akin to invasion of privacy cases under state law-cases where the plaintiff alleges that the defendant unlawfully invaded the plaintiffs privacy by obtaining information deemed confidential.

finding that the plaintiffs' complaint, which alleged willful and negligent failure to comply with the FCRA and thus unlawfully violated the plaintiffs' right to privacy, stated a valid claim

We implied so in Hansen v. Morgan, 582 F.2d 1214, 1217 (9th Cir.1978) (finding that the plaintiffs’ complaint, which alleged willful and negligent failure to comply with the FCRA and thus unlawfully violated the plaintiffs’ right to privacy, stated a valid claim), and at least three of our sister circuits have agreed with that characterization.

upholding a damage award in an action brought under the FCRA based on the emotional distress caused by the defendant's invasion of privacy into the plaintiffs credit report

See Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir.1998) (upholding a damage award in an action brought under the FCRA based on the emotional distress caused by the defendant’s invasion of privacy into the plaintiffs credit report); Yang v. Gov’t Employees Ins. Co., 146 F.3d 1320, 1322 (11th Cir.1998) (recognizing FCRA’s dual purpose of facilitating accurate reporting and of protecting privacy); Zamora v. Valley Fed. Sav. & Loan Ass’n, 811 F.2d 1368, 1370 (10th Cir.1987) (“By enacting the FCRA, Congress intended to prevent invasions of consumers’ privacy.”).


recognizing FCRA's dual purpose of facilitating accurate reporting and of protecting privacy


"By enacting the FCRA, Congress intended to prevent invasions of consumers' privacy."


Context: While the D.C. Circuit has been silent on the issue, other Circuits have opined and uniformly held that the public has a First Amendment right of access to civil proceedings and records.

See Lugosch v. Pyramid Co., 435 F.3d 110, 124-27 (2d Cir.2006) (holding that the First Amendment secures for the public and the press a right of access to civil proceedings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-70 (3d Cir.1984) (“the public and press possess a First Amendment ... right of access to civil proceedings”); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir.1988) (“We believe that the more rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case.”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6th Cir.1983) (“[t]he historical support for access to criminal trials applies in equal measure to civil trials”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (“the policy reasons for granting public access to criminal proceedings apply to civil cases as well”); see also Nat'l Assoc. of Waterfront Employers v. Chao, 587 F.Supp.2d 90, 98 (D.D.C.2008) (Collyer, J.) (“Courts have found a legitimate public interest in access to civil trials as well.”). According to these Circuits, “[t]he public’s right of access to civil trials and records is as well established as that of criminal proceedings and records.”

"Courts have found a legitimate public interest in access to civil trials as well."


"the public and press possess a First Amendment ... right of access to civil proceedings"


"We believe that the more rigorous First Amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case."


"[t]he historical support for access to criminal trials applies in equal measure to civil trials"


"the policy reasons for granting public access to criminal proceedings apply to civil cases as well"


Context: Finally, we reject Pisabaj-Mejia's contention that the BIA committed legal error in assessing his argument for a continuance for prosecutorial discretion.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (explaining that a petitioner must show error and prejudice to prevail on a due process claim); see also Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483-85, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (prosecutorial discretion by the agency can be granted at any stage of the administrative process).


Context: Nevertheless, Judge Marx's authority was void only "because there was a want of power in the ... appointing body," see id. at 854 (internal quotation marks omitted). Thus, he may qualify as a de facto judge, thereby ratifying his acts prior to his official appointment, if there was "public acquiescence in the authority."

State v. Menzies, 845 P.2d 220, 226 (Utah 1992) (holding that a court reporter was a de facto official where she "assumed authority ... under col- or of a valid appointment, and the public acquiesced in her authority"); see also Vance, 671 P.2d at 131 & n. 5 (holding that for an individual to be a de facto official the community must acquiesce accordingly); State v. Gambrell, 814 P.2d 1136, 1139 (Utah Ct.App.1991) ("[The acts of one who assumes official authority and exercises duties under color of a valid appointment or election are valid where the community acquiesces to his authority.").


"[The acts of one who assumes official authority and exercises duties under color of a valid appointment or election are valid where the community acquiesces to his authority."


Context: The holding that appellant urges this Court to adopt in this appeal would require us to add language to Code SS 19.2-307 that the General Assembly did not actually include when it enacted that statute and would also be patently absurd.

"[W]here a particular construction of a statute will result in an absurdity, some other reasonable construction which will not produce the absurdity will be found."

See Farrakhan v. Commonwealth, 273 Va. 177, 181, 639 S.E.2d 227, 230 (2007) (explaining that an appellate court “must not add to the words of the statute nor ignore the words of the statute”); see also Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942) (“[W]here a particular construction of a statute will result in an absurdity, some other reasonable construction which will not produce the absurdity will be found.”). In this case, the factfinder at appellant’s felony trial was required to decide whether appellant had actually been convicted of the requisite number of misdemeanor predicate offenses.

explaining that an appellate court "must not add to the words of the statute nor ignore the words of the statute"


Context: The Declaration specifically provided that the covenants and restrictions inured to the benefit of all lot owners. As a clearly intended beneficiary of the Declaration, Kirschner had the right to enforce the subdivision's restrictions.

Osius v. Barton, 109 Fla. 556, 147 So. 862, 868 (1933) (restrictive covenants may be enforced by those who may be considered beneficiaries of covenants); see also Gercas v. Davis, 188 So.2d 9, 11 (Fla. 2d DCA 1966) (well settled that residential lot owners are beneficiaries of restrictive covenants); Batman v. Creighton, 101 So.2d 587, 590 (Fla. 2d DCA 1958) (benefit of restrictive covenants inures to each purchaser in subdivision). The fact that the Declaration granted the POA power to enforce the restrictions did not eliminate Kirschner’s enforcement rights.


benefit of restrictive covenants inures to each purchaser in subdivision


Context: Our holding in Data Access counsels that judicially identified limitations periods for federal securities law violations are to be selected by reference to analogous areas of federal securities law.

applying uniform state statute for civil rights suits under 42 U.S.C. SS 1983

See Data Access, 843 F.2d at 1545-49. We relied on three Supreme Court cases opting for a uniform limitation period under other statutes, see Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (civil RICO); DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (suits for violation of collective bargaining agreement, 29 U.S.C. § 185); cf. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (applying uniform state statute for civil rights suits under 42 U.S.C. § 1983), to support application of a uniform federal statute of limitations in cases involving securities claims.

suits for violation of collective bargaining agreement, 29 U.S.C. SS 185


Context: Indeed, under analogous circumstances, we have affirmed the existence of probable cause.

"We have little hesitancy in concluding a reasonable magistrate would conclude the materials found in the trash -- two plastic bags with cocaine residue, two corners torn from plastic bags, Brillo pads, a film canister with white residue -- were sufficient to establish probable cause that cocaine was being possessed and consumed in Alle-bach's residence."

See United States v. Laurrence, 308 F.3d 623, 627 (6th Cir.2002) (holding that the district court acted within its discretion in not allowing a confidential informant to testify in support of the defendant’s suppression motion because, even if the informant’s statements regarding drug activity were excised from the search warrant affidavit, the remaining information obtained through a trash pull, which revealed plastic bags containing wrappers with cocaine residue, supplied sufficient probable cause for the search warrant); Hill, 142 F.3d at 310-11 (affirming decision finding probable cause to issue a search warrant where the affidavit established that the affiant was an experienced narcotics investigator; the defendant had prior drug trafficking convictions; information from a confidential informant indicated that the defendant engaged in drug trafficking on a regular basis and maintained drugs and weapons at the location to be searched; periodic surveillance corroborated the informant’s information; and marijuana and cocaine residue, and packaging materials, were found inside trash bags left on the defendant’s lawn within twenty-four hours before preparation of the affidavit); United States v. Wingate, 191 F.3d 454, 1999 WL 775917, at *3-4 (6th Cir. Sept.24, 1999) (table decision) (holding that traffic around the searched residence, the presence of a known drug dealer, and trash pulls that revealed cut straws, torn plastic baggies, marijuana stems, and one baggie with cocaine residue, constituted substantial basis for magistrate’s probable cause determination); see also United States v. Allebach, 526 F.3d 385, 387 (8th Cir.2008) (“We have little hesitancy in concluding a reasonable magistrate would conclude the materials found in the trash — two plastic bags with cocaine residue, two corners torn from plastic bags, Brillo pads, a film canister with white residue — were sufficient to establish probable cause that cocaine was being possessed and consumed in Alle-bach’s residence.”) (internal footnotes omitted).

holding that the district court acted within its discretion in not allowing a confidential informant to testify in support of the defendant's suppression motion because, even if the informant's statements regarding drug activity were excised from the search warrant affidavit, the remaining information obtained through a trash pull, which revealed plastic bags containing wrappers with cocaine residue, supplied sufficient probable cause for the search warrant


Context: The question to be answered for the purposes of qualified immunity is "whether a reasonable officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances."

affirming grant of summary judgment on grounds of qualified immunity where "a reasonable police officer certainly could have believed that the limited force applied was proper and was not unconstitutionally excessive in light of clearly established law"

Lennon, 66 F.3d at 425; see Edwards v. Giles, 51 F.3d 155, 157 (8th Cir.1995) (reversing district court’s denial of summary judgment on qualified immunity grounds, where force used was “objectively reasonable in the circumstances”); see also Jones v. Webb, 45 F.3d 178, 184 (7th Cir.1995) (affirming grant of summary judgment on grounds of qualified immunity where “a reasonable police officer certainly could have believed that the limited force applied was proper and was not unconstitutionally excessive in light of clearly established law”).

reversing district court's denial of summary judgment on qualified immunity grounds, where force used was "objectively reasonable in the circumstances"


Context: Because this case as tried addressed only actual damages, the district court, on remand, need not address any issue as to the "additional amount" authorized by the second half of the first sentence of section 407.913, but may address any other issue as to the applicability of sections 407.911-M07.915. One factor may be the proportion of Dickey's damages within the scope of the Missouri commissions statute, because damages not within the statute do not entitle Dickey to attorney's fees.

requiring segregation of attorney's fees where some counts do not authorize attorney's fees

See Kraft, 946 S.W.2d at 776; O’Brien v. B.L.C. Ins. Co., 768 S.W.2d 64, 71 (Mo. banc 1989) (requiring segregation of attorney’s fees where some counts do not authorize attorney’s fees); cf. Gary Brown & Assocs., Inc. v. Ashdon, Inc., 268 Fed.Appx. 837, 845 (11th Cir.2008) (unpublished) (analyzing award of attorney’s fees for claims under the Illinois Sales Representative Act, in case also including non-ISRA claims).

analyzing award of attorney's fees for claims under the Illinois Sales Representative Act, in case also including non-ISRA claims


Context: . I am troubled by the trial court's preempto-ry effort to avoid having to call counsel and the defendant into open court to consider questions from the jury. This is a significant deviation from the rules of criminal procedure and this court should not acquiesce in this practice.

See State v. Rean, 421 N.W.2d 303, 306 (Minn.1988) (indicating that district courts cannot follow a blanket rule in denying requests to review testimony by a jury); see also State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980) (reversing and remanding for a new trial where the trial court refused to exercise its discretion by determining at the outset of deliberations that it would deny any jury requests to review trial transcript).


Context: Although the Pennsylvania case law, as does ours, presents a variety of factual scenarios, it includes cases, like this one, in which one household vehicle, the vehicle the insured occupied when injured, was excluded from UIM coverage under the policy insuring another household vehicle, and the exclusion was upheld.

See, e.g., Baker, 972 A.2d at 507 (claimant, injured while riding his motorcycle, sought UIM benefits under a policy covering his three other vehicles); Prudential Prop. & Cos. Ins. Co. v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002) (son injured in his own ■ car sought UIM benefits under the policy cov ering the vehicles of his parents, with whom he resided); Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006 (1998) (same except resident son injured while riding motorcycle).

in both cases, claimant was injured while occupying a regularly used, non-owned vehicle and was denied UIM coverage under the policy covering the claimant's personal vehicle

See also Burstein, 809 A.2d at 204, and Williams, 32 A.3d at 1195, (in both cases, claimant was injured while occupying a regularly used, non-owned vehicle and was denied UIM coverage under the policy covering the claimant’s personal vehicle).


son injured in his own # car sought UIM benefits under the policy cov ering the vehicles of his parents, with whom he resided


Context: .The Court draws on Title VII case law because "the same analytical framework and proof requirements that apply to employment discrimination claims under Title VII also ap ply to discrimination claims under Section 1981."

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 n.6 (11th Cir. 2015) (discussing Title VII and section 1981 claims together at the motion to dismiss stage); see also Cooper v. S. Co., 260 F.Supp.2d 1352, 1356-57 (N.D. Ga. 2003), aff’d, 390 F.3d 695 (11th Cir. 2004) (noting that pattern and practice claims are viable under section 1981).


Context: The instructions here thus failed to provide the jury with a complete understanding of the applicable law, and indeed, they imposed independent burdens on the plaintiff that have been rejected by the Illinois courts. We therefore cannot say with any degree of certainty that the instructional errors were harmless.

See Simmons, Inc., 762 F.2d at 599 n. 3 (in a ease where the jury could have based its decision on a valid or an invalid theory, we cannot speculate as to which the jury chose); cf. Bammerlin v. Navistar Int’l Transp. Corp., 30 F.3d 898, 901 (7th Cir.1994) (remanding for new trial where jury verdict for the plaintiff in a vehicle defect case could have been based on an improper legal theory).


Context: The Fourth Amendment permits a warrantless search of a vehicfcs and any containers or compartments found within it, where probable cause exists to search the vehicle. This court has held that the odor of marijuana, without more, emanating from a properly-stopped vehicle, may provide the requisite probable cause to support the warrantless search of both the vehicle and the baggage therein.

concluding that a police officer has probable cause to arrest for marijuana possession if the officer "smells the odor of marijuana in circumstances where the officer can localize its source to a person"

See United States v. Scheetz, 293 F.3d 175, 183-84 (4th Cir.2002) (upholding as valid the search of a knapsack in a car based on officers’ detection of odor of marijuana); see also United States v. Humphries, 372 F.3d 653, 659 (4th Cir.2004) (concluding that a police officer has probable cause to arrest for marijuana possession if the officer “smells the odor of marijuana in circumstances where the officer can localize its source to a person”).

upholding as valid the search of a knapsack in a car based on officers' detection of odor of marijuana


Context: Furthermore, it was Wife's burden as the movant to establish she was entitled to an award of fees on appeal.' Although Wife, filed a motion alleging Husband was capable of paying Wife's attorney fees, the record reflects no evidence of the parties' financial conditions at the time of the. motion hearing ten months later.

noting evidence of financial condition eight months after dissolution should have been presented at hearing on mov-ant's motion for appellate attorney's fees

See also Davis, 210 S.W.3d at 517 (noting evidence of financial condition eight months after dissolution should have been presented at hearing on mov-ant’s motion for appellate attorney’s fees).

"[T]he court is to consider the financial resources of the parties since the dissolution, even if the time period between the dissolution' hearing and the appellate Tee hearing is relatively short."

See Potts v. Potts, 303 S.W.3d at 197 (“[T]he court is to consider the financial resources of the parties since the dissolution, even if the time period between the dissolution' hearing and the appellate Tee hearing is relatively short.”).


Context: Moreover, Pando was not available for cross-examination concerning his assertion that he had been threatened. Herrera and similar cases cited by the defendant are simply inapposite.

See also United States v. Rubin, 591 F.2d 278, 283 (5th Cir.) (defendant sought to testify in court regarding statements made to him), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979); United States v. Scandifia, 390 F.2d 244, 251 (2d Cir.1968) (when defense counsel pointed out inconsistency in witness’s account, the witness was allowed to testify regarding a threat in order to explain the inconsistency), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969).

See, e.g., United States v. Wright, 783 F.2d 1091, 1098 (D.C.Cir.1986) (defendant sought to testify in court regarding a threat he had received).


when defense counsel pointed out inconsistency in witness's account, the witness was allowed to testify regarding a threat in order to explain the inconsistency


Context: In Thompson, this court considered the question whether a claim for services rendered in violation of the Medicare anti-kickback statutes necessarily constitutes a false claim. While we noted that a claim is not necessarily "false" simply because it involves a statutory violation, we indicated that a claim is necessarily false when it involves a knowingly false certification of compliance with a statute or regulation and that certification is a prerequisite to payment of the asserted claim.

recognizing that, while not all breaches of contract or regulatory violations automatically give rise to liability under the FCA, "the false certification of compliance ... creates liability when certification is a prerequisite to obtaining a government benefit"

See Thompson, 125 F.3d at 902 (“[W]here the government has conditioned payment of a claim upon a claimant’s certification of compliance with, for example, a statute or regulation, a claimant submits a false or fraudulent claim when he or she falsely certifies compliance with that statute or regulation.”); see also United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996) (recognizing that, while not all breaches of contract or regulatory violations automatically give rise to liability under the FCA, “the false certification of compliance ... creates liability when certification is a prerequisite to obtaining a government benefit”) (emphasis in original). We ultimately remanded Thompson to the district court because we were unable to determine from the record whether the certifications of compliance at issue in that ease were actually prerequisites to the defendant’s entitlement to the funds claimed.

"[W]here the government has conditioned payment of a claim upon a claimant's certification of compliance with, for example, a statute or regulation, a claimant submits a false or fraudulent claim when he or she falsely certifies compliance with that statute or regulation."


Context: P. 1.413(1) (emphasis added). This codifies a "but for" causation reqdirement, limiting a fee-based' sanction to the fees that would have been avoided but for the improper filings.

See Everly, 774 N.W.2d at 495. (holding the district court abused its discretion by imposing-a sanction- that included fees expended before the sanctionable filings); see also Bodenhamer Bldg. Corp. v. Architectural Research Corp.) 989 F.2d 213, 218 (6th Cir. 1993) (“[B]efore an award of attorneys’ fees may be made under [Rule 11], .it must be shown that the fees were- incurred be cause of the filing of an improper pleading.”); In re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990) (“Only attorney time which is in response to that which has been sanctioned should be evaluated.”). As the United States Supreme Court recently explained,

"[B]efore an award of attorneys' fees may be made under [Rule 11], .it must be shown that the fees were- incurred be cause of the filing of an improper pleading."


"Only attorney time which is in response to that which has been sanctioned should be evaluated."


Context: The concurrence argues that the Court "retreats" from its decisions in Computer Assocs. In most discovery rule cases, courts are faced with common-law causes of action and general statutes of limitations. We held in Altai and confirmed in S.V. v. R.V. that the elements of inherent undiscoverability and objective verifiability "balance the conflicting policies in statutes of limitations: the benefits of precluding stale or spurious claims versus the risks of precluding meritorious claims that happen to fall outside an arbitrarily set period."

"[T]he Legislature's intent in passing Art. 4590i, SS 10.01, was to abolish the discovery rule in cases governed by the Medical Liability Act"

See, e.g., Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985) (“[T]he Legislature’s intent in passing Art. 4590i, § 10.01, was to abolish the discovery rule in cases governed by the Medical Liability Act”); cf. Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985) (holding that former article 4590i, section 10.01 violated the open courts provision when it abridged the right to sue before the claimant had a reasonable opportunity to discover the wrong).


Context: Consequently, unable to discern any express or implied manifestations of intent that B.R. 7062 was designed to enlarge the limited application of F.R.Civ.P. 62(a) as described above, this court must find that the ten day stay within those rules was not intended to apply to orders involving the dismissal of bankruptcy petitions without a contrary order of the court. Therefore, because no stay was imposed by Rule 7062, and because the Debtor never secured a stay pending appeal, Cibula was free to pursue his state court remedies with complete immunity immediately upon the effective date of the dismissal.

(See In re Lashley, 825 F.2d 362 (11th Cir.1987) (bankruptcy court could not retroactively void foreclosure sale to enable Chapter 13 debtors to pursue appeal in absence of stay pending appeal); Norton v. Hoxie State Bank, 61 B.R. 258 (Bkrtcy.D.Kan.1986) (in accord); Matter of Bluford, 40 B.R. 640 (Bkrtcy.W.D.Mo.1984) (automatic stay does not remain in effect for ten days following dismissal of Chapter 13 petition); In re Linton, 35 B.R. 695 (Bkrtcy.D.Idaho 1983) (perfection of security interest in collateral within 10 days of order dismissing Chapter 13 case held enforceable); In re Weathersfield Farms, Inc., 34 B.R. 435 (Bkrtcy.D.Vt.1983) (absent order staying dismissal of Chapter 11 case, stay terminated upon dismissal and mortgagee was restored to position it assumed at the commencement of the case); Contra In re Cooper, 16 B.R. 19 (Bkrtcy.W.D.Mo.1981) (repossession and sale of automobile within 10 days of dismissal constituted a violation of stay); But c.f.


perfection of security interest in collateral within 10 days of order dismissing Chapter 13 case held enforceable


absent order staying dismissal of Chapter 11 case, stay terminated upon dismissal and mortgagee was restored to position it assumed at the commencement of the case


Context: Pinell testified that these same events took place "some" time after 6:25 a.m. Accordingly, there is no direct conflict between the two accounts, and the evidence related to the parking lot video is sufficiently reliable to merit consideration.

"The magistrate does not weigh conflicting evidence and make factual determinations but, rather, determines only where there is competent evidence to support the belief that the accused has committed the charged offense."

See In re Sainez, 2008 WL 366135 at *18, 2008 U.S. Dist. LEXIS 9573 at *55-56 (rejecting inconsistencies and conflicts as “not sufficient to negate the showing of probable cause.”); see also Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir.1986) (“The magistrate does not weigh conflicting evidence and make factual determinations but, rather, determines only where there is competent evidence to support the belief that the accused has committed the charged offense.”).

rejecting inconsistencies and conflicts as "not sufficient to negate the showing of probable cause."


Context: The California Supreme Court has long held that state wage and hour laws "although at times patterned after federal regulations, also sometimes provide greater protection than is provided under federal law in the Fair Labor Standards Act (FLSA) and accompanying federal regulations."

Ramirez v. Yosemite Water Co., 20 Cal.4th 785, 795, 85 Cal.Rptr.2d 844, 978 P.2d 2 (1999); see Martinez v. Combs, 49 Cal.4th 35, 67, 68, 109 Cal.Rptr.3d 514, 231 P.3d 259 (2010) (reiterating Ramirez’s, holding “that where the language or intent of state and federal labor laws substantially differ, reliance on federal regulations or interpretations to construe state regulations is misplaced”; when “the IWC intended the FLSA to apply to wage orders, it has specifically so stated.”); Morillion v. Royal Packing Co., 22 Cal.4th 575, 592, 94 Cal.Rptr.2d 3, 995 P.2d 139 (2000); Tidewater Marine W., Inc. v. Bradshaw, 14 Cal.4th 557, 573-74, 59 Cal.Rptr.2d 186, 927 P.2d 296 (1996) (rejecting federal rule for calculating the overtime rate of pay in a California overtime claim); see also Gonzalez v. Downtown LA Motors, LP, 215 Cal.App.4th 36, 40, 155 Cal.Rptr.3d 18 (2013) (rejecting FLSA averaging in favor of California requirement to be paid minimum wage for all hours required to remain at work); Armenta v. Osmose, Inc., 135 Cal.App.4th 314, 323-24, 37 Cal.Rptr.3d 460 (2005) (FLSA minimum wage standards different' from California’s significantly; employer violated minimum wage statute even if average of paid and unpaid hours exceeded minimum wage).


Context: Under these circumstances, we see no reasons to deviate from our general rule that the plain-error standard governs the review of unpreserved errors.

noting that failure to review unpreserved errors under the plain-error standard creates a perverse incentive for defendants to "simply relax and wait to see if the sentence later struck him [or her] as satisfactory"

See Vonn, 535 U.S. at 73, 122 S.Ct. 1043 (noting that failure to review unpreserved errors under the plain-error standard creates a perverse incentive for defendants to “simply relax and wait to see if the sentence later struck him [or her] as satisfactory”); see also United States v. Sanya, 774 F.3d 812, 815 (4th Cir.2014) (“Because [defendant] neither objected to the judge’s involvement in plea discussions, nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard.”).

"Because [defendant] neither objected to the judge's involvement in plea discussions, nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard."


Context: At the same time, the VRPA is as targeted as it is comprehensive, protecting consumer data while "allowing the information's ... disclosure in only a few narrow and well-justified circumstances." Additionally, there is no evidence that the Michigan legislature enacted the VRPA because it disagreed with the message of those who use consumer identifying information.

"Vermont may be displeased that [marketers] ... are effective in promoting brand-name drugs -- But [it cannot] burden the speech of others in order to tilt public debate in a preferred direction,"

See id, at 578-79, 131 S.Ct. 2653 (“Vermont may be displeased that [marketers] ... are effective in promoting brand-name drugs — But [it cannot] burden the speech of others in order to tilt public debate in a preferred direction,”); see also King, 903 F.Supp.2d at 309 (“[T]he Somll decision largely rested on the fact that Vermont was restraining a certain form of speech communicated by a certain speaker solely because of the State’s disagreement with it.”). ■

"[T]he Somll decision largely rested on the fact that Vermont was restraining a certain form of speech communicated by a certain speaker solely because of the State's disagreement with it."


Context: Our decisions concerning criminal laws infected with discrimination are illustrative. The Court must entertain the objection -- and reverse the conviction -- even if the right to equal treatment resides in someone other than the defendant.

See Eisenstadt v. Baird, 405 U. S. 438, 452-455 (1972) (reversing conviction for distributing contraceptives because the law banning distribution violated the recipient’s right to equal protection); cf. Craig v. Boren, 429 U. S. 190, 192, 210, and n. 24 (1976) (law penalizing sale of beer to males but not females aged 18 to 20 could not be enforced against vendor).

reversing conviction for distributing contraceptives because the law banning distribution violated the recipient's right to equal protection


Context: Admittedly whether the firearm at issue was "recently stolen" is a close call given the fifteen-month period between the theft of the firearm and its recovery. We note that courts have found lengthy lapses of time (ialbeit shorter than the one presented here) to be within the permissible time limitation of the presumption.

possession of pistols 293 days after theft, "cannot in any sense be considered so recent a possession as to sustain a finding of guilty knowledge that the property was stolen."

See e.g. Lee v. United States, 363 F.2d 469, 475 (8th Cir. 1966) (lapse of five months from time of burglary to apprehension with stolen securities sufficiently recent to justify inference of guilt); Hale v. United States, 410 F.2d 147, 151 (5th Cir. 1969) (six-month period from time of automobile theft to vehicle’s recovery sufficient to infer guilty knowledge); But see Gargotta v. United States, 77 F.2d 977, 982 (6th Cir. 1935) (possession of pistols 293 days after theft, “cannot in any sense be considered so recent a possession as to sustain a finding of guilty knowledge that the property was stolen.”).


six-month period from time of automobile theft to vehicle's recovery sufficient to infer guilty knowledge


Context: Courts have held that a fact finder is rational in deciding that the starvation of a child can constitute an act of commission and omission.

describing the "prolonged and purposeful" starvation of child as a "deliberate act," and finding evidence sufficient to uphold defendant's conviction for first-degree murder involving infliction of torture

See People v. Jennings, 50 Cal.4th 616, 114 Cal.Rptr.3d 133, 237 P.3d 474, 524-25 (2010) (describing the “prolonged and purposeful” starvation of child as a “deliberate act,” and finding evidence sufficient to uphold defendant’s conviction for first-degree murder involving infliction of torture); see also Fairchild v. State, 998 P.2d 611, 621 n. 17 (Okla.Crim.App.1999) (op. on reh’g) (describing willfully starving a child as one of several examples of “acts which result in injury or death but do not require force”); Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 1004 (1992) (describing parents’ conduct in providing inadequate sustenance to children as “acts of commission and omission” that created a substantial risk of death or serious bodily injury, and upholding defendants’ convictions for reckless endangerment of another person on that basis).

describing willfully starving a child as one of several examples of "acts which result in injury or death but do not require force"


describing parents' conduct in providing inadequate sustenance to children as "acts of commission and omission" that created a substantial risk of death or serious bodily injury, and upholding defendants' convictions for reckless endangerment of another person on that basis


Context: Moreover, to maintain a claim for abuse of process the plaintiff must allege that he was unlawfully arrested or his property unlawfully seized.

"The plaintiff [must] establish that an arrest of the person or a seizure of property of the plaintiff resulted from the abuse of process."

Herring, 21 Md.App. at 536, 321 A.2d 182 (“[T]he injuries contemplated by this particular tort (and an indispensable element of it) are limited to an improper arrest of the person or an improper seizure of property.”); see also One Thousand Fleet, 346 Md. at 45-46, 694 A.2d 952 (“The plaintiff [must] establish that an arrest of the person or a seizure of property of the plaintiff resulted from the abuse of process.”). Unfortunately, appellant has failed to allege either impropriety.

"[T]he injuries contemplated by this particular tort (and an indispensable element of it


Context: I disagree. I would hold that the district court acted within its discretion in striking Pickle's claim on a basis that is unquestionably recognized by our precedent, numerous rulings from other courts, the language of Rule G, and the Advisory Committee Note.

"The issue of standing is subject to adversarial testing under Supplemental Rule G(6)(a

See $133,420.00, 672 F.3d at 642 (“The issue of standing is subject to adversarial testing under Supplemental Rule G(6)(a), which gives the government the right to question the claimant regarding the claimant’s identity and relationship to the defendant property and to gather information that bears on the claimant’s standing!.]”) (citations and internal quotation marks omitted); see also $154,853.00, 744 F.3d at 563 (observing that the purpose of Rule G(6)(a) “is to permit the government to file limited interrogatories at any time after the claim is filed to gather information that bears on the claimant’s standing”) (citing $133,420) (in ternal quotation marks omitted); United States v. $25,982.28 in U.S. Currency, No. 5:14 CV 150, 2015 WL 410590, at *2 (N.D.Ohio Jan. 29, 2015) (“While it is claimant’s burden to establish standing, Rule G(6) entitles the government to serve special interrogatories to determine whether the claimant has a sufficient interest in the seized property to contest the forfeiture, that is, whether the claimant has standing....”) (citations and footnote reference omitted); United States v. Vehicle 2007 Mack 600 Dump Truck, 680 F.Supp.2d 816, 822 (E.D.Mich.2010) (noting that “[statutory standing is established through strict compliance with Supplemental Rules G(5) and G(6)”) (citation omitted) (emphasis added); United States v. $104,250.00 in U.S. Currency, 947 F.Supp.2d 560, 565 (D.Md.2013) (“To facilitate the Government’s ability to challenge claims on standing grounds, Rule G(6) permits the Government to serve the Claimant with special interrogatories that focus on the Claimant’s identity and her interest in the defendant property.

observing that the purpose of Rule G(6)(a) "is to permit the government to file limited interrogatories at any time after the claim is filed to gather information that bears on the claimant's standing"


"While it is claimant's burden to establish standing, Rule G(6


noting that "[statutory standing is established through strict compliance with Supplemental Rules G(5


"To facilitate the Government's ability to challenge claims on standing grounds, Rule G(6


Context: Instead, the provision merely provides the BIA the discretion to reopen immigration proceedings as it sees fit. Federal circuit courts consistently have interpreted the provision in this way.

denying petition to reopen but noting that the BIA could have reopened the deportation proceeding under 8 C.F.R. SS 3.2(a

See Mejia Rodriguez, 178 F.3d at 1145 n.5 (denying petition to reopen but noting that the BIA could have reopened the deportation proceeding under 8 C.F.R. § 3.2(a)); Karapetian v. INS, 162 F.3d 933, 937 (7th Cir.1998) (same); see also Wright, 171 F.3d at 9 (describing 3.2(a) as a discretionary provision under which the BIA at its own initiative can reopen proceedings).


Context: Persons within state police custody enjoy the protections afforded by the Fourteenth and Eighth Amendments, which include the right to obtain adequate medical care.

explaining that the denial of medical care by state officials can give rise to claims under the Fourteenth Amendment's due process clause

Martin v. Gentile, 849 F.2d 863, 866 (4th Cir.1988) (explaining that the denial of medical care by state officials can give rise to claims under the Fourteenth Amendment’s due process clause); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (holding that pretrial detainees have at least the same protections under the Fourteenth Amendment as post-trial detainees have under the Eighth Amendment); Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir.1990) (“[T]he Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of Con victed prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee.”); Mitchell v. Aluisi, 872 F.2d 577, 581 (4th Cir.1989) (“A violation of the Eighth Amendment standard ... may be used, however, to determine a due process violation.”) (citing Whisenant v. Yuam, 739 F.2d 160, 163 n. 4 (4th Cir.1984)).


"[T]he Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of Con victed prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee."


Context: Contrary to Madueno-Gonzalez's contention, the IJ did not violate his due process rights by admitting the 1-213 record of deportable/inadmissible alien, which documented his attempt to enter the United States by misrepresenting his identity and immigration status and which was supported by the preparing officer's testimony.

no due process violation because "the bare assertion that a statement is involuntary is insufficient" to prove coercion

See Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir.1979) (no due process violation because “the bare assertion that a statement is involuntary is insufficient” to prove coercion); see also Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.1995) (“The burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade the court not to admit it.”).

"The burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade the court not to admit it."


Context: Based on the foregoing, and "under the facts interpreted most favorably to plaintiffs], it was not reasonable for [Atchison] to adversely treat [plaintiffs] because [they were women]."

denying qualified immunity where it was possible that a jury could find that the individual defendants discriminated against plaintiff on the basis of sex in violation of SS 1983

Kantha v. Blue, 262 F.Supp.2d 90, 109 (S.D.N.Y.2003) (denying qualified immunity on plaintiffs § 1983 disparate treatment claim); see also Back, 365 F.3d at 130 (denying qualified immunity where it was possible that a jury could find that the individual defendants discriminated against plaintiff on the basis of sex in violation of § 1983); Dawson, 351 F.Supp.2d at 198 (denying qualified immunity with respect to plaintiffs § 1983 claim where the individual defendant was “the cause” of the alleged sex discrimination and “under preexisting law a reasonable defendant official would have understood that his acts were unlawful”).

denying qualified immunity on plaintiffs SS 1983 disparate treatment claim


denying qualified immunity with respect to plaintiffs SS 1983 claim where the individual defendant was "the cause" of the alleged sex discrimination and "under preexisting law a reasonable defendant official would have understood that his acts were unlawful"


Context: . Under the federal standards for qualified immunity, a prosecutor would be "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

recognizing objective standard applicable under 42 U.S.C. SS 1983 and suits under United States Constitution

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (recognizing objective standard applicable under 42 U.S.C. § 1983 and suits under United States Constitution); see Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 427 n. 3 (Tex.2004) (noting similarity of qualified immunity and official immunity); cf. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994) (Under Texas common law, official immunity provides government officials "immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.”).


Context: Although dismissal is the presumptive sanction contemplated by CIPA when a defendant is prevented from disclosing classified information found to be material and favorable, 18 U.S.C.App. 3 SS 6(e)(2), in the interest of justice, a district court may exercise its discretion to fashion and impose less draconian sanctions.

See 18 U.S.C.App. 36(e)(2); Fernandez, 913 F.2d at 163; see also Roviaro, 353 U.S. at 65, 77 S.Ct. 623 (noting that the Government’s refusal to provide the defense with the name and address of an informant who could have offered trial testimony that would have been helpful to the defense should have been punished by dismissal of the relevant count in the indictment); Hastings, 126 F.3d at 317 (finding that dismissal of the indictment was too severe a sanction for the Government’s failure to comply with the district court’s discovery order regarding the defendant’s selective prosecution claim); United States v. Muse, 83 F.3d 672, 675 (4th Cir.1996); cf. Jencks, 353 U.S. at 671-72, 77 S.Ct. 1007 (finding that a criminal case must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce to the defense information the trial court has found to be relevant).

noting that the Government's refusal to provide the defense with the name and address of an informant who could have offered trial testimony that would have been helpful to the defense should have been punished by dismissal of the relevant count in the indictment


finding that dismissal of the indictment was too severe a sanction for the Government's failure to comply with the district court's discovery order regarding the defendant's selective prosecution claim


Context: The cashing of the checks resulted, therefore, in satisfaction of the accord. Because there was an accord and satisfaction, appellant is precluded from suing either on the original claim or on the accord.

upon cashing defendant's check, plaintiff who failed to perform condition of settlement agreement estopped from asserting original claim

Cf. McGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976) (upon cashing defendant’s check, plaintiff who failed to perform condition of settlement agreement estopped from asserting original claim).

See, e. g., Yelen v. Cindy’s Inc., 386 So.2d 1234 (Fla. 3d DCA 1980), pet. for rev. dismissed, 394 So.2d 1154 (Fla.1980) (circumstances and conditions under which appellant received and cashed check established compromise in settlement); Hannah v. James A. Ryder, Corp., supra at 510 (noting common law rule with respect to cashing check purporting to full payment); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978), cert. dismissed, 365 So.2d 714 (Fla.1978) (check cashed in full and final payment for all goods, services and claims was accord and satisfaction).


check cashed in full and final payment for all goods, services and claims was accord and satisfaction


Context: Jolicoeur contemplates that an insurance administrator could, under appropriate circumstances, illicitly interfere with the contract of its principal. Like any other agent, an administrator could accomplish this feat by acting beyond the scope of its authority.

"An agent, however, may be personally liable for unauthorized acts outside the scope of the agency[.]"

See Kennett v. Marquis, 798 A.2d 416, 419 (R.I.2002) (per curiam) (“An agent, however, may be personally liable for unauthorized acts outside the scope of the agency[.]”); Brown v. State Farm Fire & Cas. Co., 58 P.3d 217, 223 (Okla.Civ.App.2002) (remarking that an independent insurance adjuster could be liable for tortiously interfering with an insurance contract by acting beyond the scope of its authority from the insurer); see also Michelson v. Exxon Research & Eng’g Co., 808 F.2d 1005,1007-08 (3d Cir.1987) (holding that a corporate officer, acting in his or her official capacity, could not tortiously interfere with a corporate contract because corporations act only through their officers and agents); Rao v. Rao, 718 F.2d 219, 225 (7th Cir.1983) (similar); Am. Trade Partners, L.P. v. A-1 Int’l Importing Enter., Ltd., 757 F.Supp. 545, 555-56 (E.D.Pa. 1991) (same); Shoemaker v. Myers, 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054, 1068 (1990) (same); Hickman v. Winston County Hosp. Bd., 508 So.2d 237, 239 (Ala. 1987) (same).


remarking that an independent insurance adjuster could be liable for tortiously interfering with an insurance contract by acting beyond the scope of its authority from the insurer


Context: . While, guilty pleas of a co-defendant cannot be used to establish the guilt of the defendant on trial, we are cognizant that the Commonwealth is permitted to bring out the circumstances surrounding a witness' agreement on direct examination in order to avoid any inference by the jury that the Commonwealth is attempting to keep a possible bias from them.

where a witness is under indictment for the same crime for which the defendant is being tried, evidence of witness' indictment is relevant as bearing on the witness's interest in the immediate matter

See Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 662 (1969) (where a witness is under indictment for the same crime for which the defendant is being tried, evidence of witness’ indictment is relevant as bearing on the witness’s interest in the immediate matter); Commonwealth v. Coades, 454 Pa. 448, 452 311 A.2d 896, 898 (1973) (a witness who is under indictment for the same crime involved in a case in which he is testifying may be cross-examined about that indictment in order to allow the jury to evaluate whether witness testified for prosecution to gain favorable treatment in his own case).

Commonwealth v. Hartey, 424 Pa.Super. 29, 34, 621 A.2d 1023, 1026 (1993), appeal denied, 540 Pa. 611, 656 A.2d 117 (1994) (Commonwealth agreements should be fully, fairly and honestly disclosed at trial because they have a significant bearing on a witness' motive for testifying).


a witness who is under indictment for the same crime involved in a case in which he is testifying may be cross-examined about that indictment in order to allow the jury to evaluate whether witness testified for prosecution to gain favorable treatment in his own case


Context: Analyzing specific tort duties in these 52 jurisdictions and then comparing them to federal labeling requirements would be onerous, and it is unnecessary. Tort law in particular jurisdictions may or may not require Defendant to change statements regarding efficacy in Lipitor's label, based on the ASCOT data. It is sufficient here to hold that, to the extent any state law does so require, Defendant cannot comply with that state law and federal labeling requirements simultaneously.

"[S]tate tort law is preempted if it imposes a duty upon manufacturers to take some action that is prohibited under federal law."

See, e.g., Schrock v. Wyeth, Inc., 727 F.3d 1273, 1286 (10th Cir.2013) (“[S]tate tort law is preempted if it imposes a duty upon manufacturers to take some action that is prohibited under federal law.”); see also Drager v. PLIVA USA, Inc., 741 F.3d 470, 478 (4th Cir.2014) (holding that "even if such claims are cognizable [under state law], they are preempted in the case of generic drug mánufacturers.”),

holding that "even if such claims are cognizable [under state law], they are preempted in the case of generic drug manufacturers."


Context: Further, they admit that they did not raise their dedication claim until after trial, and simply labeled it an implied-easement claim. Although they suggest a new theory of Idaho law, they cite nothing but contrary public-dedication eases without articulating why those decisions would allow a private dedication in this dispute.

See Partout v. Harper, 145 Idaho 683, 689, 183 P.3d 771, 777 (2008) (affirming a fee award where a party’s position on a purportedly unsettled legal issue was against the clear weight of Idaho law); cf. Thomas v. Madsen, 142 Idaho 635, 639, 132 P.3d 392, 396 (2006) (reversing a fee award where some novel legal defenses were not frivolous).

affirming a fee award where a party's position on a purportedly unsettled legal issue was against the clear weight of Idaho law


Context: (Internal quotation marks omitted.) Nevertheless, companies may be held liable for discrimination even where the decision-making official did not intentionally discriminate if the information used by that official in deciding to terminate a worker's employment was filtered through another employee who had a discriminatory motive.

discriminatory intent of employer's agents sufficient proof to hold employer responsible for discriminatory termination without intentional discrimination by final decision maker

See Jiles v. Ingram, 944 F.2d 409, 413-14 (8th Cir. 1991) (discriminatory intent of employer’s agents sufficient proof to hold employer responsible for discriminatory termination without intentional discrimination by final decision maker); see also Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057 (8th Cir. 1993) (“when a committee has ‘acted as the conduit of [a supervisor’s] prejudice — his cat’s paw — the innocence of its members would not spare the company from liability’ ”).

"when a committee has 'acted as the conduit of [a supervisor's] prejudice -- his cat's paw -- the innocence of its members would not spare the company from liability' "


Context: The facts to be considered are derived from the complaint, as well as documents properly before the court of which both parties have notice.

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (on motion to dismiss court may consider pleadings as well as all documents incorporated therein by reference). Such documents include those attached to the pleadings, incorporated in it by reference and/or subject to judicial notice.

court considers documents if they "are integral to the pleading or subject to judicial notice"

Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007); see Global Network Commc’ns Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir.2006) (court considers documents if they “are integral to the pleading or subject to judicial notice”).


Context: At trial, Harris was a forty-three-year-old high school graduate. The district court found the former CSHC CEO to be "a very bright man" who had been responsible for his company's SEC filings.

finding waiver from a defendant with an eleventh-grade education to be valid when he was a "sophisticated businessman"

See Fitzpatrick, 800 F.2d at 1066 (“Especially relevant to [Defendant’s] understanding of the risks of self-representation with respect to the securities charges is the fact that he is an experienced stockbroker.”); see also United States v. Kimball, 291 F.3d 726, 731 (11th Cir.2002) (finding waiver from a defendant with an eleventh-grade education to be valid when he was a “sophisticated businessman”).

"Especially relevant to [Defendant's] understanding of the risks of self-representation with respect to the securities charges is the fact that he is an experienced stockbroker."


Context: In arguing that those words did not clearly convey any intent to invoke the right against compelled self-incrimination, the state accurately describes contrasting wording from other cases in which this court concluded that unequivocal invocations had occurred.

defendant's first two invocations--"I don't want to talk anymore" and "I don't want to talk no more"--unambiguously communicated her desire to no longer speak with detectives

See id. at 603, 617 (defendant who stated, “I won’t answer any questions,” unequivocally invoked, when record suggested no language barrier or confusion on defendant’s part, or that reasonable officer would have understood defendant instead to be asking a question); McAnulty, 356 Or at 451-52,456 (defendant’s first two invocations—“I don’t want to talk anymore” and “I don’t want to talk no more”—unambiguously communicated her desire to no longer speak with detectives); see also State v. Acremant, 338 Or 302, 322, 108 P3d 1139, cert den, 546 US 864 (2005) (defendant’s statement—“I think that I do need a lawyer!,] I do”—unambiguously expressed his desire to consult with counsel before speaking with detectives); State v. Kell, 303 Or 89, 97, 734 P2d 334 (1987) (citing Smith v. Illinois, 469 US 91, 100, 105 S Ct 490, 83 L Ed 2d 488 (1984), wherein the defendant, upon being advised of right to counsel and asked if he understood, answered “Uh, yeah[,] I’d like to do that”; Supreme Court concluded that he unambiguously invoked his derivative right to counsel). The unequivocal invocations in those cases all share a commonality that this case does not: In each case, the defendant expressed his or her intent by first self-identifying as the actor (“I”) and then by clearly stating the desired action or view relating to the right in question (won’t answer questions, don’t want to talk, need a lawyer). Simply stated, each of those cases involved classic and easily understood words of invocation.

defendant's statement--"I think that I do need a lawyer!,] I do"--unambiguously expressed his desire to consult with counsel before speaking with detectives


Context: The district court also found that Olsen had instructed a co-conspirator not to provide information to law enforcement and told a co-defendant to "keep his mouth shut" while that codefendant was in prison. Each of these actions, as well as Olsen's decision to order a coconspirator to prevent a cooperating witness from testifying, would alone warrant the application of the obstruction of justice enhancement.

See United States v. Agudelo, 414 F.3d 845, 351-52 (2d Cir.2005) (upholding application of the obstruction of justice enhancement where defendant threatened to frame a co-conspirator for kidnapping if he testified); see also United States v. Gaskin, 364 F.3d 438, 465-66 (2d Cir.2004) (sustaining application of the obstruction of justice enhancement where defendant told a potential witness that he planned to kill another potential witness, and the district court determined that this statement was intended to ensure the listener’s silence).

sustaining application of the obstruction of justice enhancement where defendant told a potential witness that he planned to kill another potential witness, and the district court determined that this statement was intended to ensure the listener's silence


Context: Taking the facts in the light most favorable to Plaintiff, the absence of any policy regarding whether the use of pepper spray is appropriate on an individual who is fully restrained created an "obvious" constitutional violation.

"[T]he Eighth Amendment violation is obvious" when prisoner was subdued then handcuffed to hitching post for seven hours.

See Hope, 536 U.S. at 738, 122 S.Ct. 2508 (“[T]he Eighth Amendment violation is obvious” when prisoner was subdued then handcuffed to hitching post for seven hours.); see also Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir.2005) (“[O]ne could draw a reasonable inference” that continued use of force after detainee was subdued or restrained “was for the very purpose of causing harm: excessive force.”).

"[O]ne could draw a reasonable inference" that continued use of force after detainee was subdued or restrained "was for the very purpose of causing harm: excessive force."


Context: Because the record amply supports the determination that Coleman was unavailable, we are hard-pressed to find that the outcome of Reed's trial would have been different had Luka investigated Coleman.

holding that for a habeas petitioner "[t]o prove that he was prejudiced by counsel's failure to investigate and to produce a certain type of expert witness," he- "must demonstrate a reasonable likelihood that an ordinarily competent attorney conducting a reasonable investigation would have found an expert similar to the one eventually produced"

See Elledge v. Dugger, 823 F.2d 1439, 1446 (11th Cir.1987) (per curiam) (holding that for a habeas petitioner “[t]o prove that he was prejudiced by counsel’s failure to investigate and to produce a certain type of expert witness,” he- “must demonstrate a reasonable likelihood that an ordinarily competent attorney conducting a reasonable investigation would have found an expert similar to the one eventually produced”), mod. on other grounds and reh. en banc den., 833 F.2d 250 (11th Cir.1987); Monfiston v. Sec’y, Dep’t of Corr., 559 Fed.Appx. 863, 868 (11th Cir.2014) (concluding that for the petitioner to show that he was prejudiced by counsel’s alleged deficiency to investigate the witness, he had to rebut by clear and convincing evidence the state postconviction court’s finding that the witness was unavailable to testify at trial); Gideon v. Dep’t of Corr., 295 Fed.Appx. 988, 990 (11th Cir.2008) (holding that the state court’s determination that the petitioner “could not show prejudice because he did not allege that [the witness] was available to testify, was a reasonable application of federal law to the facts of the case”); see also Nelson v. State, 875 So.2d 579, 583 (Fla.2004) (concluding that a defendant must identify the testimony that would have been provided and allege that the witness was available to testify to establish prejudice under Strickland).


concluding that for the petitioner to show that he was prejudiced by counsel's alleged deficiency to investigate the witness, he had to rebut by clear and convincing evidence the state postconviction court's finding that the witness was unavailable to testify at trial


holding that the state court's determination that the petitioner "could not show prejudice because he did not allege that [the witness] was available to testify, was a reasonable application of federal law to the facts of the case"


Context: . A finding of willful infringement, by itself, is not sufficient to be res judicata on the issue of fraudulent intent.

ruling that willful infringement "does not equate to fraud" and is therefore not subject to the more stringent 9(b

See In re SeaChange, 2004 WL 240317, at *8 ("Willfulness in the context of patent infringement is not equivalent to actual knowledge.”); see also Ferguson Beauregard/Logic Controls v. Mega Sys., Inc., 350 F.3d 1327, 1343 (Fed.Cir.2003) (ruling that willful infringement "does not equate to fraud” and is therefore not subject to the more stringent 9(b) pleading requirements).

"Willfulness in the context of patent infringement is not equivalent to actual knowledge."


Context: Here, the evidence supporting the officers' reasonable suspicion that Mr. Hishaw was distributing drugs (i.e. his coming and going from the apartment named in the search warrant and the hand-to-hand contact observed outside the apartment) also indicated that he might be armed and dangerous.

See United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir.1996) (holding that, during an investigatory detention, officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo); see also United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.1998) (holding that “when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer’s safety and the safety of others”); United States v. Perrin, 45 F.3d 869, 873 (4th Cir.1995) (noting that “it is certainly reasonable for an officer to believe that a person engaged in the selling of crack cocaine may be carrying a weapon for protection”); Unit ed States v. Anderson, 859 F.2d 1171, 1177 (3d Cir.1988) (concluding that an officer’s pat-down search of the occupants of a car was reasonable after the officer observed large amounts of money on the front seat, became suspicious that it might' be drug money, and was concerned for his safety “because persons involved with drugs often carry weapons”).

holding that "when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others"


noting that "it is certainly reasonable for an officer to believe that a person engaged in the selling of crack cocaine may be carrying a weapon for protection"


concluding that an officer's pat-down search of the occupants of a car was reasonable after the officer observed large amounts of money on the front seat, became suspicious that it might' be drug money, and was concerned for his safety "because persons involved with drugs often carry weapons"


Context: After the OHA issued its decision in 1996, a group of private parties, who stood to recover additional funds as individual claimants under the FSA, directly challenged the ruling in the District of Columbia District Court. That claim, however, was rejected by the Federal Circuit.

dismissing claims for lack of a private right of action and because the OHA's decision was not justiciable

See Consolidated Edison v. O’Leary, 131 F.3d 1475 (Fed.Cir.1997) (dismissing plaintiffs’ claim because the OHA’s decision was not reviewable); cf. Consolidated Edison v. O’Leary, 117 F.3d 538 (Fed.Cir.1997) (dismissing claims for lack of a private right of action and because the OHA’s decision was not justiciable).

dismissing plaintiffs' claim because the OHA's decision was not reviewable


Context: We cannot say of any future case what emphasis will be placed on the State Department's advisory opinion or what emphasis would be proper. For that reason, the injury or threatened injury is too speculative to confer standing. We think it impossible to conclude there is a real and immediate threat that any particular applicant would be denied asylum on grounds of which appellants complain.

denying standing to appellant Congressman to challenge alleged illegal use of funds by the CIA in part because the alleged harm "would take place, if at all, at some undetermined time in the future when Congress exercised" a power related to the alleged illegality

See Harrington v. Bush, 553 F.2d 190, 208-09 (D.C.Cir.1977) (denying standing to appellant Congressman to challenge alleged illegal use of funds by the CIA in part because the alleged harm “would take place, if at all, at some undetermined time in the future when Congress exercised” a power related to the alleged illegality); see also International Longshoremen’s Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954) (rejecting for failure to present a case or controversy a union’s attempt to obtain an injunction prohibiting the INS from applying a statute in a situation that had not arisen at the time of suit).

rejecting for failure to present a case or controversy a union's attempt to obtain an injunction prohibiting the INS from applying a statute in a situation that had not arisen at the time of suit


Context: A court is permitted to use general points of reference as a starting point for calculating the losses or gains from fraudulent transactions and may make reasonable extrapolations from the evidence established by a preponderance of the evidence at the sentencing proceeding." In other words, as a general principle, extrapolation is an appropriate method by which to calculate a forfeiture money judgment.

"it is permissible for the sentencing court, in calculating a defendant's offense level, to estimate the loss resulting from his offenses by extrapolating the average amount of loss from known data and applying that average to transactions where the exact amount of loss is unknown"

Cf. United States v. Bryant, 128 F.3d 74, 76 (2d Cir.1997) (“it is permissible for the sentencing court, in calculating a defendant’s offense level, to estimate the loss resulting from his offenses by extrapolating the average amount of loss from known data and applying that average to transactions where the exact amount of loss is unknown”); United States v. Williams, 553 Fed.Appx. 73, 76-77 (2d Cir.2014) (affirming district court’s loss calculation of $4.17 million in bank fraud case even though it was “far above the loss amount documented at trial” where it was based upon extrapolating from the trial testimony the assumption that the scheme involved three days of work per week over a three year period, that the average theft was $200 per bank, and that the defendants visited five banks per day); United States v. Akpan, 361 Fed.Appx. 252, 254 (2d Cir.2010) (affirming loss calculation for sentencing purposes in excess of $200,000, in health care fraud conviction, where government proved at trial false claims reflecting $107,000 loss and court calculated loss in excess of $200,000 based upon inferences with known data).

United States v. Uddin, 551 F.3d 176, 180 (2d Cir.2009) (forfeiture order in food stamp fraud case properly entered in amount equal to loss amount that was calculated based upon extrapolation).


affirming district court's loss calculation of $4.17 million in bank fraud case even though it was "far above the loss amount documented at trial" where it was based upon extrapolating from the trial testimony the assumption that the scheme involved three days of work per week over a three year period, that the average theft was $200 per bank, and that the defendants visited five banks per day


affirming loss calculation for sentencing purposes in excess of $200,000, in health care fraud conviction, where government proved at trial false claims reflecting $107,000 loss and court calculated loss in excess of $200,000 based upon inferences with known data


Context: This Circuit has similarly interpreted the Doehr majority to have rested its due process holding on the application of Connecticut's statute to an intentional tortfeasor, as opposed to a creditor with an existing interest in the property.

upholding the same Connecticut statute as applied to contractor's claim for payment of "an outstanding sum certain" for completed repairs to attached property

See Shaumyan v. O’Neill, 987 F.2d 122, 126-27 (2d Cir.1993) (upholding the same Connecticut statute as applied to contractor’s claim for payment of “an outstanding sum certain” for completed repairs to attached property); cf. British Int’l Ins. Co. v. Seguros La Republica, S.A, 212 F.3d 138, 144 & n. 3 (2d Cir.2000) (per curiam) (stating in dicta that a claim for a contractually-defined sum “appears to fall into the category of cases cited in Doehr as ‘lending] themselves to accurate ex parte assessments of the merits’ ” (quoting Doehr, 501 U.S. at 17, 111 S.Ct. 2105)).

stating in dicta that a claim for a contractually-defined sum "appears to fall into the category of cases cited in Doehr as 'lending] themselves to accurate ex parte assessments of the merits' " (quoting Doehr, 501 U.S. at 17, 111 S.Ct. 2105


Context: A district court typically has broad discretion to refer evidentiary hearings to a magistrate judge. However, as the magistrate judge explicitly recognized in this case, his authority during the bond revocation hearing was limited to a determination of whether probable cause supported a finding that Schlosser violated the terms of his bond.

See 18 U.S.C. § 3148(b). Thus, had the district court relied on the magistrate judge’s findings of fact as proof by a preponderance of the evidence that Schlosser engaged in the conduct underlying the bond violations, that would be error. See United States v. Brown, 453 F.3d 1024, 1026 (8th Cir.2006) (explaining that the standard of proof at sentencing is preponderance of the evidence); see also Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (explaining that a basic fair trial right “is a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside”).

explaining that a basic fair trial right "is a defendant's right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside"


Context: In accordance with these precedents, the First Circuit Court of Appeals has. recognized the proposition that an official's single act can serve as a policy and thus establish a basis for municipal liability.

holding that a "policy" for purposes of municipal liability may be established by an official's single decision

Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir.2002) (holding that a “policy” for purposes of municipal liability may be established by an official’s single decision) (citation omitted); Dickinson v. Chitwood, No. 98-1446, 181 F.3d 79, 1998 WL 1085684, *1 (1st Cir.1998) (citing Pembaur, 475 U.S. at 481, 106 S.Ct. 1292 for the proposition that a single decision by a final decision-maker may give rise to municipal liability) (unpublished opinion); Roma Constr. Co. v. aRusso, 96 F.3d 566, 576 (1st Cir.1996) (holding that an unconstitutional policy may be inferred from an official’s single decision or act) (citation omitted); Harrington v. Almy, 977 F.2d 37, 45 (1st Cir.1992) (citing Pembaur, 475 U.S. at 481-84, 106 S.Ct. 1292 to hold that a single decision can be a policy for purposes of municipal liability); Bowen v. City of Manchester, 966 F.2d 13, 18 (1st Cir.1992) (same); Small v. City of Belfast, 796 F.2d 544, 553 (1st Cir.1986) (holding that city manager’s single unconstitutional action was sufficient for the imposition of municipal liability); but see Bordanaro, 871 F.2d at 1156-57 (holding that evidence of a single event alone cannot establish a municipal policy) (citations omitted).


holding that an unconstitutional policy may be inferred from an official's single decision or act


holding that city manager's single unconstitutional action was sufficient for the imposition of municipal liability


Context: We have also considered the various bases for Chernov's claim that the immigration judge's conduct at the merits hearing violated his due process rights. On this record, we, like the Board, are not persuaded that there was a defect that rendered the hearing fundamentally unfair or that, if there was, any prejudice resulted therefrom.

granting petition for review and holding the immigration judge violated due process in his conduct at the merits hearing, which included, among other things, "continually abus[ing] an increasingly distraught petitioner, rendering him unable to coherently respond to [the judge's] questions"

See Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir.2008); see also 8 U.S.C. § 1229a(b)(1) (2012) (directing immigration judges to “interrogate, examine, and cross-examine the alien and any witnesses”); Iliev v. INS, 127 F.3d 638, 643 (7th Cir.1997) (explaining that the immigration judge “has broad discretion to control the manner of interrogation in order to ascertain the truth”); cf. Cham v. Attorney Gen. of U.S., 445 F.3d 683 (3d Cir.2006) (granting petition for review and holding the immigration judge violated due process in his conduct at the merits hearing, which included, among other things, “continually abus[ing] an increasingly distraught petitioner, rendering him unable to coherently respond to [the judge’s] questions”).

explaining that the immigration judge "has broad discretion to control the manner of interrogation in order to ascertain the truth"


Context: The district court properly dismissed Cornellier's access to courts claims because he did not complete the prison grievance process prior to filing suit, and failed to demonstrate that he was obstructed from doing so.

holding that "proper exhaustion" under SS 1997e(a) is mandatory and requires adherence to administrative procedural rules

See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (requiring inmates to exhaust administrative remedies prior to filing suit in federal court).


Context: Strictly speaking, the Town's restitution claim may not be moot, unlike its claims for injunctive or declaratory relief. It is settled law that a claim for monetary relief, including restitution, may survive events that moot injunctive or declaratory relief.

See N.L.R.B. v. Me. Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984) (holding that claim for cost reimbursement and making employees whole is not moot, despite the defendant having ceased the challenged practice); see also Demelo v. U.S. Bank Nat’l Ass’n, 727 F.3d 117, 124-25 (1st Cir.2013) (claim for money damages survives despite mootness of other relief)Here, notwithstanding the statute repealing toll collection, the Town seemingly retains a cognizable interest in a refund of the tolls that it alleges were illegally collected.


Context: "The qualification prong must not ... be interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in his prima facie ease, the employer's proffer of a legitimate, non-discriminatory basis for its decision." A plaintiffs successful performance of a job for years can satisfy the second element of the prima facie case.

See Riley, 518 F.3d at 1000 (Eighth Circuit found that plaintiff satisfied second element because “he had been performing [his] job successfully for years[.]”); see also McGinnis, 496 F.3d at 875-76 n. 3 (Eighth Circuit found that plaintiff satisfied second element because he was employed by the company for 28 years). “The fact that an employee meets some expectations, however, does not mean that [he or] she meets the standard if she does not meet other significant ex pectations.” Calder, 298 F.3d at 729 (citation omitted).

Eighth Circuit found that plaintiff satisfied second element because "he had been performing [his] job successfully for years[.]"


Context: . Under this factor, courts also look to state law for # statutes- that expressly require the State to pay the judgment.

relying on state statute that required "any judgment against [Wayne State University] to be paid out of the state's tax revenues''

See Kreipke v. Wayne State Univ., 807 F.3d 768, 776 (6th Cir. 2015) (relying on state statute that required “any judgment against [Wayne State University] to be paid out of the state’s tax revenues''); see also Ernst, 427 F.3d at 360 (discussing state statute that required legislature to "annually appropriate to the retirement system the amount of money needed”).

discussing state statute that required legislature to "annually appropriate to the retirement system the amount of money needed"


Context: Our conclusion that courts cannot provide a remedy when the Legislature has failed to do so is also entirely consistent with the position of Florida courts in other contexts. See, e.g., Jolley v. Seamco Labs.

Inc., 828 So.2d 1050, 1051 (Fla. 1st DCA 2002) (declining to provide a remedy for a violation of Florida’s Wrongful Death Act); see also Carter v. Dep’t of Prof'l Regulation, 633 So.2d 3, 6 (Fla.1994) (finding that if Legislature had intended penalty for a violation of a time limit to be dismissal of the administrative complaint, it would have expressly included that sanction within section 455.225, Florida Statutes (Supp.1986)).

declining to provide a remedy for a violation of Florida's Wrongful Death Act


Context: Merely because he earned $70,000 the year prior to the dissolution hearing does not mean the husband was voluntarily underemployed when he was forced by circumstances to open his own agency. The absence of specific findings or record evidence to support the imputation of income mandates reversal.

"If the court is going to impute income not apparent from the record, it must indicate the amount and source."

See Woodard v. Woodard, 634 So.2d 782, 783 (Fla. 5th DCA 1994) (“If the court is going to impute income not apparent from the record, it must indicate the amount and source.”) (citing Hogle v. Hogle, 535 So.2d 704 (Fla. 5th DCA 1988)); see also Vaccaro v. Vaccaro, 677 So.2d 918, 923 (Fla. 5th DCA 1996) (where financial documents in record support trial court’s decision to impute income to husband, court’s failure to make written findings on the record does not require reversal).

where financial documents in record support trial court's decision to impute income to husband, court's failure to make written findings on the record does not require reversal


Context: The law is "settled that affirmative defenses should be considered in making class certification decisions."

"Going beyond the pleadings is necessary, as a court must understand [inter alia] defenses ... in order to make a meaningful determination of the certification issues."

Waste Mgmt. Holdings v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000); see also Majority Op. at 138, 139 (a court must examine “defenses in determining whether a putative class meets the requirements of Rule 23(b)(3)”) (emphasis added); Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996) (“Going beyond the pleadings is necessary, as a court must understand [inter alia] defenses ... in order to make a meaningful determination of the certification issues.”); cf. Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 342 (4th Cir.1998) (certification is “erroneous” when affirmative defenses “may depend on facts peculiar to each plaintiffs case”) (citation omitted).

certification is "erroneous" when affirmative defenses "may depend on facts peculiar to each plaintiffs case"


Context: Kinder cites no case in support of this argument. To the contrary, the Fifth and Eleventh Circuits have held that expert testimony is not required to justify an enhancement under 2G2.2(b)(3).

holding that "it was within the court's discretion to conclude that the subjection of a young chdd to a sexual act that would have to be painful is excessively cruel and hence is sadistic within the meaning of 2G2.2(b

United States v. Lyckman, 235 F.3d 234, 239 n. 22 (5th Cir.2000) (“One hardly requires a medical degree to ascertain that vaginal intercourse with an adult male would involve pain, both physical and emotional, for a young girl.”); United States v. Caro, 309 F.3d 1348, 1352 (11th Cir.2002) (“[W]e hold that the district court erred in its interpretation that, in order to support a sadistic conduct enhancement, the government is required to present expert medical testimony.”); see also United States v. Delmarle, 99 F.3d 80, 83 (2nd Cir.1996) (holding that “it was within the court’s discretion to conclude that the subjection of a young chdd to a sexual act that would have to be painful is excessively cruel and hence is sadistic within the meaning of 2G2.2(b)(3)”). We agree with those authorities, and conclude that expert testimony was not required.

"One hardly requires a medical degree to ascertain that vaginal intercourse with an adult male would involve pain, both physical and emotional, for a young girl."


"[W]e hold that the district court erred in its interpretation that, in order to support a sadistic conduct enhancement, the government is required to present expert medical testimony."


Context: Additionally, Defendant cites, inter alia, the Third Circuit Court of Appeals' decision in Weiss; however, that Court decided the mootness issue in the context of a class action complaint.

stating, "[bjecause defendants' Rule 68 offer included no relief for the putative class, ... we address the mootness question in that context"

(Doc. 12, p. 3), citing Weiss, 385 F.3d 337 (stating, “[bjecause defendants’ Rule 68 offer included no relief for the putative class, ... we address the mootness question in that context”); see also Zeigenfuse v. Apex Asset Mgmt., L.L.C., 239 F.R.D. 400, 403 (E.D.Pa.2006) (concluding “that the offer of judgment must now be stricken to prevent it from undermining the use of the class action device”).

concluding "that the offer of judgment must now be stricken to prevent it from undermining the use of the class action device"