Context: Hotline next contends that the state did not incur any reimbursable attorney's fees because its lawyers already were on the government payroll as salaried employees. But salaried government lawyers, like in-house and non-profit counsel, do incur expenses if the time and resources they devote to one case are not available for other work.

affirming award under ERISA fee-shifting statute to prevailing pension fund for its staff attorneys' representation

See Hamilton v. Daley, 777 F.2d 1207, 1213 (7th Cir.1985) (affirming fee award under 42 U.S.C. § 1988 to state’s attorneys for their representation of “prevailing defendants”); Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1092-93 (3d Cir.1988) (affirming fee award under Fed. R.Civ.P. 11 to government for time of assistant U.S. attorney in defending a frivolous lawsuit); see also Central States, Southeast & Southwest Areas Pension Fund v. Central Cartage Co., 76 F.3d 114, 115-16 (7th Cir.1997) (affirming award under ERISA fee-shifting statute to prevailing pension fund for its staff attorneys’ representation); see also Softsolutions v. Brigham, Young Univ., 1 P.3d 1095, 1106 n. 5 (Utah 2000) (collecting federal and state cases).

affirming fee award under 42 U.S.C. SS 1988 to state's attorneys for their representation of "prevailing defendants"


Context: Even though TWI provided evidence that might persuade a jury to conclude that Janczak's leave ultimately played no role in his termination, the grant of summary judgment prematurely took that determination from the jury.

observing that "sum-' mary judgment for the employer is warranted only when there is no genuine dispute as to any material fact regarding the grounds for termination," and that "the question ... is not whether a reasonable jury could find in favor of [the employer], but rather whether the evidence is so one-sided that submission to a jury is not required"

See Brown, 700 F.3d at 1227 (observing that “sum-' mary judgment for the employer is warranted only when there is no genuine dispute as to any material fact regarding the grounds for termination,” and that “the question ... is not whether a reasonable jury could find in favor of [the employer], but rather whether the evidence is so one-sided that submission to a jury is not required”); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that, in deciding whether to grant summary judgment, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented”); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir. 1999), overruled on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (concluding that summary judgment in employment discrimination case was premature despite significant weaknesses in employee’s argument).

holding that, in deciding whether to grant summary judgment, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented"


concluding that summary judgment in employment discrimination case was premature despite significant weaknesses in employee's argument


Context: Public interest factors include judicial economy, the interest in having "localized controversies decided at home," and the interest in having issues of foreign law decided by a foreign tribunal. This Court has explained, "[T]here is little sense to allowing a U.S. citizen to haul a group of foreign defendants into a U.S. court on transactions having little or nothing to do with this country where there is an available foreign forum significantly better suited to handling the litigation in a prompt, efficient and effective manner."

Paribas, 135 F.Supp.2d at 448 (dismissing fraud claims against French bank in favor of London, where fraudulent activity was centered).

See also Zweig, 1993 WL 227663, at *4 (dismissing claims of New York plaintiff against Greek bank, even though plaintiff alleged he was defrauded in New . York, because actions by Greek bank took place in Greece).


Context: It is unclear what precisely plaintiff is alleging, but in any event this "claim" is not properly before the court. A plaintiff cannot keep his ease alive through bait-and-switch, luring the defendant into moving for summary judgment on one claim, only then to assert an entirely different claim.

See Crawford v. United States, 179 Ct.Cl. 128, 376 F.2d 266, 276 (1967) (holding that a claim not pleaded in the “petition” (i.e. the complaint) was “not properly before the court” on a motion for summary judgment); cf. Redland Co., Inc. v. United States, 97 Fed.Cl. 736, 756 (2011) (declining to consider a claim for relief not contained in the plaintiffs complaint and first raised in plaintiffs motion for summary judgment); Michels v. United States, 72 Fed.Cl. 426, 431-32 (2006) (holding that a plaintiff cannot avoid dismissal under RCFC 12(b)(6) by asserting a new claim).

holding that a claim not pleaded in the "petition" (i.e. the complaint) was "not properly before the court" on a motion for summary judgment


holding that a plaintiff cannot avoid dismissal under RCFC 12(b)(6) by asserting a new claim


Context: There was also evidence that the pharmacist, in accordance with the defendant's instructions in the note, waited several minutes and surveyed the front of the store before alerting authorities of the robbery. The Court of Appeals determined that a reasonable jury could conclude beyond a reasonable doubt from the totality of the circumstances that the defendant possessed a deadly weapon.

"A victim's belief that a defendant had a gun, together with the intent on the part of the defendant to create and use that belief for his own criminal purposes, is sufficient to prove a firearm specification."

Cf. State v. Leftwich, No. 23383, 2009 WL 3068259, at *3 (Ohio App. 2nd Dist. Sept. 25, 2009) (“A victim’s belief that a defendant had a gun, together with the intent on the part of the defendant to create and use that belief for his own criminal purposes, is sufficient to prove a firearm specification.”).

sufficient evidence existed to support firearm specification where robbery defendant kept hand in pocket and told convenience store that he would "blow [her] head off' if she did not comply

Id. at *7. See also State v. Jeffers, 143 Ohio App.3d 91, 757 N.E.2d 417 (Ohio App. 1st Dist.2001) (sufficient evidence existed to support firearm specification where robbery defendant kept hand in pocket and told convenience store that he would “blow [her] head off’ if she did not comply); State v. Greathouse, No. 21536, 2007 WL 1297181, at *4 (Ohio App. 2nd Dist. May 4, 2007) (sufficient evidence supported firearm specification even though victim never saw a gun, where defendant told victim that he had a gun and that he would kill her and dump her body if she did not comply); State v. Haskins, No. E-01-016, 2003 WL 99572, at *7 (Ohio App. 6th Dist. Jan. 10, 2003) (sufficient evidence to support aggravated robbery conviction where defendant threatened “Are you going to give me the money or do I have to pull this pistol out of my pocket?” and attendant believed defendant in fact had a gun and responded by immediately by putting up her hands even though no weapon was actually seen or found); State v. Green, 117 Ohio App.3d 644, 651-652, 691 N.E.2d 316, 321 (Ohio App. 1st Dist.1996) (sufficient evidence of deadly weapon where defendant verbally threatened to “blow the heads off’ victims while having large envelope wrapped around hand, and victims surrendered money based on belief defendant was armed).


sufficient evidence supported firearm specification even though victim never saw a gun, where defendant told victim that he had a gun and that he would kill her and dump her body if she did not comply


sufficient evidence of deadly weapon where defendant verbally threatened to "blow the heads off' victims while having large envelope wrapped around hand, and victims surrendered money based on belief defendant was armed


Context: Based on this sentiment, a number of courts have found constitutional violations in the use of peace bonds.

See id. at 644, 303 So. 2d at 144 (impermissible discrimination based on wealth, violation of equal protection of laws); Kolvek v. Napple, 158 W. Va. 568, 575, 212 S.E.2d 614, 619 (1975) (same; unconstitutional as applied to indigent defendants); Santos v. Nahiwa, 53 Haw. 40, 44, 487 P.2d 283, 285 (1971) (denial of due process of law unless bond imposition is based on proof beyond a reasonable doubt).

But see Commonwealth v. Miller, 452 Pa. 35, 38-41, 305 A.2d 346, 348-49 (1973) (over two strong dissents, held that neither a jury trial nor proof beyond a reasonable doubt is constitutionally required).


denial of due process of law unless bond imposition is based on proof beyond a reasonable doubt


Context: Given these safeguards, there is very little risk that Plaintiff would suffer unnecessary pain in the event execution team members fail to properly prepare the pentobarbital syringes.

stating that Arizona protocol's safeguards are adequate under Baze standard

See Cook v. Brewer, 637 F.3d 1002, 1007-08 (9th Cir.2011), cert. denied, — U.S.-, 131 S.Ct. 2465, 179 L.Ed.2d. 1227 (2011) (rejecting claim of substantial risk of pain from administration of allegedly incorrect, diluted or adulterated anesthetic in light of consciousness check prior to administration of other two drugs); see also Dickens, 631 F.3d at 1141 (stating that Arizona protocol’s safeguards are adequate under Baze standard).


Context: Warrants have survived particularity challenges even where they have called for the seizure of many categories of items. Although the warrants at issue here encompass many types of records, they sufficiently describe what is within their terms.

concluding that "[d]ue to the peculiar nature of a charge of fraud, especially where corporations are used as vehicles of fraud, an application to search the premises of [the corporate office] for '[b]ooks, [l]edgers, [Receipts, [fin-voices, [b]usiness records, the identification of [fjinancial accounts and any other evidence which is evidence in violation of [two sections of Title 18]' describefd] with particularity the items to be seized"

See Andresen v. Maryland, 427 U.S. 463, 479-81, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (holding that the inclusion of the phrase “together with other fruits, instru-mentalities and evidence of crime at this [time] unknown” did not render search warrants impermissibly general where it was “clear from the context that the term ‘crime’ in the warrants referred] only to the crime of false pretenses with respect to the sale of [one specific real estate lot]”); Wuagneux, 683 F.2d at 1350 n. 5 (finding, in case involving racketeering, embezzlement, mail fraud, bank fraud, and the filing of false tax returns, that search warrant was sufficiently particular; warrant provided for seizure of eleven categories of records, the last of which encompassed “property that constitutes evidence of the above-enumerated offenses, fruits of the crimes named-above and property which is or has been used to commit the crimes enumerated herein”); see also United States v. Majors, 196 F.3d 1206, 1216 (11th Cir.1999) (concluding that “[d]ue to the peculiar nature of a charge of fraud, especially where corporations are used as vehicles of fraud, an application to search the premises of [the corporate office] for ‘[b]ooks, [l]edgers, [Receipts, [fin-voices, [b]usiness records, the identification of [fjinancial accounts and any other evidence which is evidence in violation of [two sections of Title 18]’ describefd] with particularity the items to be seized”); United States v. Sawyer, 799 F.2d 1494, 1508-09 & n. 15 (11th Cir.1986) (affirming denial of motion to suppress and finding search warrant sufficiently particular in case involving conspiracy and financial fraud; warrant authorized seizure from a corporate office of numerous types of records, including “banking records,” “personnel files,” and “financial records,” and the court noted that “the government here had no obligation to restrict the search to specific documents where the evidence, detailed fully in the accompanying affidavits, demonstrated widespread efforts to defraud customers through a variety of misleading disclosures and representations”); United States v. Santarelli, 778 F.2d 609, 613-14 (11th Cir.1985) (affirming denial of motion to suppress in case involving charges of subscription to false statements on income tax returns, finding that warrant authorizing seizure of, inter alia, “United States currency, promissory notes, life insurance policies, documents of assignment of life insurance policy proceeds” and “all property constituting evidence of the crimes of making and conspiring to make extortionate extensions of credit, financing extortionate extensions of credit, and collections of and conspiracy to collect extortionate extensions of credit” and “ ‘all property’ constituting evidence of loansharking” was sufficiently particular) ; United States v. Weinstein, 762 F.2d 1522, 1531-32 (11th Cir.1985) (finding warrant sufficiently specific in RICO conspiracy and mail and wire fraud case despite fact that name of co-defendant was in warrant but not affidavit where warrant and its attached exhibit clearly indicated that correspondence addressed to co-defendant and two business entities was within the scope of probable cause, and finding extensive list of firms and entities whose property was to be seized passed muster because the attached warrant affidavit clarified ambiguities as to the dates at issue and the scope of the fraudulent scheme); United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985) (rejecting “general warrant” argument in mail fraud case where warrant authorized seizure of specific items “and miscellaneous merchandise fraudulently obtained from vendors throughout the United States ... in violation of [three sections of Title 18]” and finding that “[t]he warrant was as specific as possible under the circumstances as to all merchandise seized”).

holding that the inclusion of the phrase "together with other fruits, instru-mentalities and evidence of crime at this [time] unknown" did not render search warrants impermissibly general where it was "clear from the context that the term 'crime' in the warrants referred] only to the crime of false pretenses with respect to the sale of [one specific real estate lot]"


affirming denial of motion to suppress in case involving charges of subscription to false statements on income tax returns, finding that warrant authorizing seizure of, inter alia, "United States currency, promissory notes, life insurance policies, documents of assignment of life insurance policy proceeds" and "all property constituting evidence of the crimes of making and conspiring to make extortionate extensions of credit, financing extortionate extensions of credit, and collections of and conspiracy to collect extortionate extensions of credit" and " 'all property' constituting evidence of loansharking" was sufficiently particular


finding warrant sufficiently specific in RICO conspiracy and mail and wire fraud case despite fact that name of co-defendant was in warrant but not affidavit where warrant and its attached exhibit clearly indicated that correspondence addressed to co-defendant and two business entities was within the scope of probable cause, and finding extensive list of firms and entities whose property was to be seized passed muster because the attached warrant affidavit clarified ambiguities as to the dates at issue and the scope of the fraudulent scheme


rejecting "general warrant" argument in mail fraud case where warrant authorized seizure of specific items "and miscellaneous merchandise fraudulently obtained from vendors throughout the United States ... in violation of [three sections of Title 18]" and finding that "[t]he warrant was as specific as possible under the circumstances as to all merchandise seized"


Context: The Santiagos attempt to distinguish Hobbs Trailers by arguing that their constitutional claims are defensive only. The federal courts considering this argument after Priester have rejected it.

rejecting argument that declaratory-judgment action was "defense" to foreclosure and as such not constrained by statute of limitations

Moran, 560 Fed.Appx. at 279 (rejecting argument that declaratory-judgment action was “defense” to foreclosure and as such not constrained by statute of limitations); see also Ausmus v. Deutsche Bank Trust Co. Nat’l Ass’n, Civil Action No. 3:13-CV-148, 2013 WL 3938515, at *3 (S.D.Tex. July 29, 2013) (mem. op.); and Sigaran v. U.S. Bank Nat’l Ass’n, No. H-12-3588, 2013 WL 2368336, at *8 (S.D.Tex. May 29, 2013), aff'd, 560 Fed.Appx. 410 (5th Cir.2014) (per curiam) (both rejecting contention that constitutional claims were not barred because limitation statutes do not apply to defenses). In Ausmus, the court explained, “the argument that a violation of Section 50(a)(6) can serve as a defense to foreclosure rests on the view that an unconstitutional home equity loan is void.... Priester rejected that position, concluding that such a loan is merely voidable, and that the effort to invalidate it must be made within the four-year limitations” period.


Context: Although she argued in her brief before the BIA that the IJ created an unnecessarily hostile environment, she never referred to a violation of her due process rights or alluded to the hearing being fundamentally unfair or precluding judicial review. See A.R. at 23-24. Because Gomez failed to raise her due process challenge in her BIA appeal, we lack jurisdiction to consider this issue.

noting that the BIA should be given the first opportunity to correct any procedural errors committed during the petitioner's hearing

See Rodriguez, 9 F.3d at 414 (“Because [the petitioner] failed to raise this issue before the BIA, he has not exhausted his administrative remedies, and we have no jurisdiction to consider these grounds.”); see also Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir.2001) (noting that the BIA should be given the first opportunity to correct any procedural errors committed during the petitioner’s hearing).

"Because [the petitioner] failed to raise this issue before the BIA, he has not exhausted his administrative remedies, and we have no jurisdiction to consider these grounds."


Context: (Tr. at 33-39, 98-101, 128-29.) As this Court has no reason to doubt the credibility of the three officers in this case, their specific recollections trump ADA Coyne's bare assumption that the criminal file jacket accurately represents her conversation with Officer Fogarty.

holding that police officer's sworn affidavit that Miranda warnings were given was held sufficient to deny suppression of defendant's post-arrest statement in the absence of properly-supported statement by defendant to the contrary

See United States v. Martinez, 634 F.Supp. 1144, 1147 (S.D.N.Y.1986)(holding that police officer’s sworn affidavit that Miranda warnings were given was held sufficient to deny suppression of defendant’s post-arrest statement in the absence of properly-supported statement by defendant to the contrary); see also United States v. Patterson, No. 02 Cr. 283(WHP), 2002 WL 31890950, at *5 (S.D.N.Y. Dec. 27, 2002) (“[Defendant’s] lack of a present recollection of being informed of his Miranda rights, coupled with [the agent’s] specific recollection ... that [defendant] was read his Miranda rights by [another agent], is sufficient for this Court to conclude that [defendant] properly received his Miranda warnings.”); Agugliaro v. Brooks Bros., Inc., 927 F.Supp. 741, 745 n. 4 (S.D.N.Y. 1996)(when presented with defendant’s “specific recollection” and “plaintiffs lack of recollection of what he said at the first meeting,” reasonable jury “could only” accept defendant’s account of the meeting).

"[Defendant's] lack of a present recollection of being informed of his Miranda rights, coupled with [the agent's] specific recollection ... that [defendant] was read his Miranda rights by [another agent], is sufficient for this Court to conclude that [defendant] properly received his Miranda warnings."


when presented with defendant's "specific recollection" and "plaintiffs lack of recollection of what he said at the first meeting," reasonable jury "could only" accept defendant's account of the meeting


Context: Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding marriage and domestic relations. Because domestic relations are considered by the Tribe as being at the core of Navajo sovereignty, In re Francisco, 16 Indian L. Rep. 6113 (Navajo 1989), we conclude that Navajo law is the appropriate law under which to evaluate the validity of the marriage.

See Montana, 450 U.S. at 565, 101 S.Ct. 1245; Marris v. Sockey, 170 F.2d 599 (10th Cir.1948) (holding that tribal Indians domiciled within the territorial limits of an Indian nation in Indian Territory and who consummated a marriage or divorce in accordance with recognized tribal custom before such customs had been superceded by other law, were bound by the legal effect given to such customs); see also Beller v. United States, 221 F.R.D. 679 (D.N.M.2003) (determining validity of a Navajo couple’s marriage by examining required elements of common law marriage under Navajo law).

determining validity of a Navajo couple's marriage by examining required elements of common law marriage under Navajo law


Context: In the instant case, no comparable special sovereignty interests are at stake. A state's interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young.

holding state's property interest in right to profits from a recreational land lease did not rise to the level of a "special sovereignty interest"

See Doe v. Chiles, 136 F.3d 709, 720 (11th Cir.1998) (asserting, without addressing special sovereignty interest’ requirement, that case in which developmentally disabled individuals brought § 1983 action against officials for failure to furnish Medicaid assistance with reasonable promptness “fit neatly within the Ex parte Young exception”); Marie O. v. Edgar, 131 F.3d 610, 616-17 & n. 13 (7th Cir.1997) (finding no important sovereignty interests such as those at issue in Coeur d’Alene Tribe in suit brought by infants with disabilities against state officials alleging that state did not comply with early intervention requirements of IDEA and seeking to enforce compliance with the federal program under which the officials had accepted funds); cf. Elephant Butte, 160 F.3d at 612-13 (holding state’s property interest in right to profits from a recreational land lease did not rise to the level of a “special sovereignty interest”).

asserting, without addressing special sovereignty interest' requirement, that case in which developmentally disabled individuals brought SS 1983 action against officials for failure to furnish Medicaid assistance with reasonable promptness "fit neatly within the Ex parte Young exception"


finding no important sovereignty interests such as those at issue in Coeur d'Alene Tribe in suit brought by infants with disabilities against state officials alleging that state did not comply with early intervention requirements of IDEA and seeking to enforce compliance with the federal program under which the officials had accepted funds


Context: District Judge Sotomayor (as she was then) reached a similar conclusion in Papeskov v. Brown, and this Court agreed.

dismissing SS 1983 action brought by former inmate who successfully challenged conviction for, inter alia, rape and sodomy, later pled guilty to endangering the welfare of a child, and filed suit upon release

No. 97 Civ. 5351(SS), 1998 WL 299892, at *5 (S.D.N.Y. June 8, 1998), summarily aff'd, 173 F.3d 845 (2d Cir.1999) (dismissing § 1983 action brought by former inmate who was charged with assault and criminal possession of a weapon and pled guilty to harassment); see also Stein v. Cnty. of Westchester, N.Y., 410 F.Supp.2d 175, 179 (S.D.N.Y.2006) (dismissing § 1983 action brought by former inmate who successfully challenged conviction for, inter alia, rape and sodomy, later pled guilty to endangering the welfare of a child, and filed suit upon release).

dismissing SS 1983 action brought by former inmate who was charged with assault and criminal possession of a weapon and pled guilty to harassment


Context: In rejecting Scheuring's LHWCA claim, the district court analogized the ramp to a dock or pier. Scheuring v. Traylor Bros., No. CV 03-06613-RZ, slip op. at 9 (C.D.Cal. Aug. 25, 2004). In opposition, the plaintiff asks us to view the ramp as a gangway. This distinction is critical since a gangway constitutes an appliance of a vessel but a dock or pier does not.

See Victory Carriers, Inc. v. Law, 404 U.S. 202, 207, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (holding that a gangway is the dividing line between admiralty and state jurisdiction); see also Romero Reyes v. Marine Enterprises, Inc. 494 F.2d 866, 870 (1st Cir.1974) (noting that “the authorities are virtually unanimous that maritime liability encompasses the gangway”).

noting that "the authorities are virtually unanimous that maritime liability encompasses the gangway"


Context: The right to equal protection under the United States and Minnesota Constitutions guarantees that people who are similarly situated are treated alike; thus to establish a denial of equal protection, a defendant must first show that similarly situated people have been treated differently.

stating that the guarantee of equal protection does not forbid classifications, but "simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike"

State v. Cox, 798 N.W.2d 517, 521-22 (Minn.2011) (stating that “we have routinely rejected equal-protection claims when a party cannot establish that he or she is similarly situated to those whom they contend are being treated differently”); see also Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992) (stating that the guarantee of equal protection does not forbid classifications, but “simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike”).

stating that "we have routinely rejected equal-protection claims when a party cannot establish that he or she is similarly situated to those whom they contend are being treated differently"


Context: Thus, whatever Second Amendment right Bruley may have to possess a firearm in his apartment, it cannot be stretched to create a wrongful discharge cause of action under Florida law against a private employer which fires an employee for carrying a firearm on company property. Moreover, there is no state action involved.

"the constitutional right to bear arms restricts the actions of only ... governments ..., not private actors"

See Florida Retail Federation, Inc., 576 F.Supp.2d at 1295 (“the constitutional right to bear arms restricts the actions of only ... governments ..., not private actors”) (emphasis in original); see also Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (requiring state action for claimed Fourteenth Amendment violations); O’Dell v. Doychak, No. 606-CV-677-ORL-19KRS, 2006 WL 4509634, at *3 (M.D.Fla. Oct. 20, 2006) (requiring state action for claimed due process and basic rights violations under the Florida Constitution); Schreiner v. McKenzie Tank Lines, Inc., 432 So.2d 567, 569 (Fla.1983) (requiring state action for claimed basic rights violations under the Florida Constitution).


requiring state action for claimed basic rights violations under the Florida Constitution


Context: The IHRA also explicitly prohibits retaliation against employees who oppose unlawful discrimination, or who have filed a charge or complaint under the IHRA. 775 Ill. Comp. Stat. 5/6-101(A). Accordingly, Plaintiffs claim is preempted by the IHRA.

"Both state and federal courts dismiss, for lack of jurisdiction, Illinois common law claims of retaliatory discharge for opposition to an allegedly unlawful employment practice."

See Talley v. Wash. Inventory Serv., 37 F.3d 310, 313 (7th Cir.1994) (affirming district court’s dismissal of plaintiffs retaliatory discharge claim based on alleged marital status discrimination because such discrimination was encompassed by the IHRA and therefore plaintiffs claim was within the exclusive jurisdiction of the Illinois Human Rights Commission); see also Hill v. Vill. of Franklin Park, No. 07-4335, 2008 WL 686256, at *7 (N.D.Ill. Mar. 11, 2008) (“Both state and federal courts dismiss, for lack of jurisdiction, Illinois common law claims of retaliatory discharge for opposition to an allegedly unlawful employment practice.”); Smith v. Chi. Park Dist., No. 98-1691, 1999 WL 33883, at *3 (N.D.Ill.1999) (finding that plaintiffs claim of retaliatory discharge, where plaintiff had complained of discriminatory treatment and harassment, was preempted by the IHRA).

affirming district court's dismissal of plaintiffs retaliatory discharge claim based on alleged marital status discrimination because such discrimination was encompassed by the IHRA and therefore plaintiffs claim was within the exclusive jurisdiction of the Illinois Human Rights Commission


finding that plaintiffs claim of retaliatory discharge, where plaintiff had complained of discriminatory treatment and harassment, was preempted by the IHRA


Context: Promoting the efficient allocation of prison resources has been recognized as a legitimate governmental interest.

prison's policy of providing Muslim inmates vegetarian meals, rather than Halal meals with meat in conformance with the Muslim inmates' religious beliefs, was rationally related to legitimate peno-logical interests in, among other things, simplified food service and staying within the prison's budget

See, e.g., Williams v. Morton, 343 F.3d 212 (3d Cir.2003) (prison’s policy of providing Muslim inmates vegetarian meals, rather than Halal meals with meat in conformance with the Muslim inmates’ religious beliefs, was rationally related to legitimate peno-logical interests in, among other things, simplified food service and staying within the prison’s budget).

recognizing prison's legitimate penological interest in efficient and economical operations in the context of an alleged Establishment Clause violation

See also Orafan v. Goord, 411 F.Supp.2d 153 (N.D.N.Y.2006) (recognizing prison’s legitimate penological interest in efficient and economical operations in the context of an alleged Establishment Clause violation); Breakiron v. Neal, 166 F.Supp.2d 1110 (N.D.Tex.2001) (County’s act of deducting payments from prisoner’s inmate trust account for medical services rendered was rationally related to county’s legitimate interest in the efficient use of prison resources for purposes of Equal Protection Claim).


County's act of deducting payments from prisoner's inmate trust account for medical services rendered was rationally related to county's legitimate interest in the efficient use of prison resources for purposes of Equal Protection Claim


Context: Such findings would have served as com pelling mitigating evidence. Although counsel consulted with Wearry and interviewed his family, he failed to conduct a meaningful investigation into his mental health and childhood, which may have persuaded jurors to spare his life.

"[Evidence about defendant's background and character is relevant because of the belief ... that defendants who commit criminal acts that are attributable to ... emotional or mental problems ... may be less culpable than defendants who have no such excuse."

See, e.g., Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 454, 175 L.Ed.2d 398 (2009) (finding that evidence of poor mental health or mental impairment, in addition to other mitigating evidence, could influence a jury’s appraisal of ^defendant's moral culpability); see also Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“[Evidence about defendant’s background and character is relevant because of the belief ... that defendants who commit criminal acts that are attributable to ... emotional or mental problems ... may be less culpable than defendants who have no such excuse.”), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

finding that evidence of poor mental health or mental impairment, in addition to other mitigating evidence, could influence a jury's appraisal of ^defendant's moral culpability


Context: A statute may be ambiguous if it is silent on an issue that would be expected to be within its scope.

See People v. Newton, 764 P.2d 1182, 1189 (Colo.1988) (silence of statute as to its applicability to crimes committed prior to but continuing beyond its effective date "creates an ambiguity with respect to the reach of the statute"); see also Buckley v. Chilcutt, 968 P.2d 112, 117 (Colo.1998) ("If explicit statutory provisions are ambiguous or silent regarding the matter at issue, we interpret the statute to comport with the legislature's objectives.").


Context: There, the statutory language clearly and unmistakably limits the City's home-rule authority to restrict the rights of other entities to contract for the removal of grease, grit, lint, and sand trap waste. Unlike the language in subsection (h), the language in subsection (f) operates independently of any general grant of authority conferred by the Code and reads similarly to the language construed as unmistakably clear legislative intent in Laredo Merchants.

reasoning that silence will not be construed as unmistakably clear legislative intent to limit a home-rule city's authority on an issue

See Laredo Merchs., 2016 WL 4376627, at *5 (citing Tex. Health & Safety Code Ann. § 361.0961) (“A local government ... may not adopt an ordinance ... to ... prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law[.]”); S. Crushed Concrete, 398 S.W.3d at 679 (holding that a statute stating that “a city ordinance ‘may not make unlawful a condition or act approved or authorized under [the Act] or the [C]ommission’s rules or orders’ ” was unmistakably clear); cf. Quick v. City of Austin, 7 S.W.3d 109, 122-23 (Tex. 1998) (reasoning that silence will not be construed as unmistakably clear legislative intent to limit a home-rule city’s authority on an issue). In contrast, the language in subsection (h) is not unmistakably clear in this regard and, at best, appears to only define the limitations of the section itself — as opposed to the City’s limitations.

holding that a statute stating that "a city ordinance 'may not make unlawful a condition or act approved or authorized under [the Act] or the [C]ommission's rules or orders' " was unmistakably clear


Context: Although Oregon courts have not expressly addressed whether the Court's holding in Mansell extends to bar a court from considering VA disability benefits received in lieu of military retirement benefits for purposes of awarding spousal support, nearly every state court that has addressed that question has concluded that Mansell affects property division, not spousal support. Hence, those courts have concluded that federal law does not prevent a court from considering a party's VA disability benefits as a source of income for purposes of awarding spousal support.

See, e.g., Murphy v. Murphy, 302 Ark 157, 159, 787 SW2d 684, 685 (1990) (stating that nothing in federal law relieved former husband, whose income consisted of VA disability payments, from paying spousal support); Riley v. Riley, 82 Md App 400, 410, 571 A2d 1261, 1266 (1990) (VA benefits may be considered as resource for purposes of setting alimony award); Steiner v. Steiner, 788 So 2d 771, 778 (Miss 2001) (same); Holmes v. Holmes, 7 Va App 472, 485, 375 SE2d 387, 395 (1988) (same); Weberg v. Weberg, 158 Wis 2d 540, 544-45,463 NW2d 382, 384 (Ct App 1990) (same); see also Clauson v. Clauson, 831 P2d 1257, 1263 n 9 (Alaska 1992) (stating in dicta that a “state court is clearly free to consider post-divorce disability income and order a disabled veteran to pay spousal support even where disability benefits will be used to make such payments’’); Davis v. Davis, 777 SW2d 230, 232 (Ky 1989) (noting that, although VA disability benefits were not divisible as property, courts could resolve an inequitable property division with a spousal support award); but see Ex parte Billeck, 777 So 2d 105, 109 (Ala 2000) (holding that federal law precludes courts from considering VA disability payments in awarding alimony).


Context: Washington state courts have noted that state law relating to disability discrimination substantially parallels federal law, and courts should look to interpretations of federal anti-discrimination laws, including the ADA, when applying the WLAD.

See Matthews v. NCAA, 179 F.Supp.2d 1209, 1229 (E.D.Wash.2001); see MacSuga v. County of Spokane, 97 Wash.App. 435, 442, 983 P.2d 1167 (1999) (commenting in dicta that the WLAD and ADA “have the same purpose” and state courts therefore may look to federal cases for guidance); see also Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir.1998) (holding that courts should employ the same analysis to evaluate claims under the ADA and the WLAD).

commenting in dicta that the WLAD and ADA "have the same purpose" and state courts therefore may look to federal cases for guidance


Context: At least two other factors have been found to be significant in addition to those mentioned above. The first is the importance of the information and documents requested to the conduct of the litigation.

"relative unimportance of the information ... in the present proceeding was entitled to be considered"

See Trade Development Bank, 469 F.2d at 41 (“relative unimportance of the information ... in the present proceeding was entitled to be considered”); In Re Uranium Antitrust Litigation, 480 F.Supp. 1138, 1146, 1154-55 (N.D.Ill.1979) (“normal discovery standard of whether a document is relevant or is calculated to lead to the discovery of admissible evidence ... should be replaced by the higher standard of whether the requested documents are crucial to the resolution of a key issue in the litigation”); Vetco, 691 F.2d at 1290 (“no showing that the documents are cumulative of records already produced”); but see Compagnie Francaise, 105 F.R.D. at 32 n. 8 (declining to consider the importance of the requested documents to the requesting party’s case).

declining to consider the importance of the requested documents to the requesting party's case


"normal discovery standard of whether a document is relevant or is calculated to lead to the discovery of admissible evidence ... should be replaced by the higher standard of whether the requested documents are crucial to the resolution of a key issue in the litigation"


"no showing that the documents are cumulative of records already produced"


Context: Simply because Perez's father was, at one point, a member of the Guatemalan military does not mandate the conclusion that his killers fifteen years later acted based on assumptions about his political opinion. Nor do the threatening notes received by Perez's sister require the conclusion that some political opinion will be imputed to Perez or that he will be targeted as a child of a member of the Guatemalan military, because there is no evidence indicating who wrote the notes or why the author targeted Perez's sister.

"To establish an imputed political opinion, the applicant must show that his persecutors actually imputed a political opinion to him."

See Singh, 406 F.3d at 196-97 (noting that, in cases concerning imputed political opinion, “[t]he focus is ... on whether this attribution [of political opinion to the applicant for asylum] has in fact occurred.”); see also Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997) (“To establish an imputed political opinion, the applicant must show that his persecutors actually imputed a political opinion to him.”).

noting that, in cases concerning imputed political opinion, "[t]he focus is ... on whether this attribution [of political opinion to the applicant for asylum] has in fact occurred."


Context: (Sipes Dep. at 68-69.) That agreement, as explained above, makes clear that Mr. Hargarten, by himself, lacked authority to provide equity in Defendant to Mr. Sipes. (Form.

Ag. at § 3.2.) As far as Mr. Sipes is concerned, therefore, a reasonable interpretation of Defendant’s words and deeds could not have made it apparent to him that Mr. Hargarten had authority to give him equity in Defendant. See Trustees of American Federation of Musicians and Employees’ Pension Fund v. Steven Scott Enter.s, Inc., 40 F.Supp.2d 503, 511 (S.D.N.Y.1999) (reasoning that reliance on apparent authority ceased to be reasonable once a plaintiff knew of the agent’s actual authority); cf. Van Pelt v. State Bd., 195 Colo. 316, 577 P.2d 765, 771 (1978) (reasoning in the context of promissory estoppel that there can be no reasonable reliance where the putative promisee knew that the alleged promisor lacked authority); American Train Dispatchers Ass’n v. Union Pacific R.R. Co., 679 F.Supp. 1535, 1544 (W.D.Mo.1987) (reasoning that any apparent authority ended when the plaintiff received and read a letter that made clear that the agent lacked authority).

reasoning that reliance on apparent authority ceased to be reasonable once a plaintiff knew of the agent's actual authority


reasoning that any apparent authority ended when the plaintiff received and read a letter that made clear that the agent lacked authority


Context: . Of the decisions interpreting similar state statutes, only two courts have considered allowing a debtor's future intent to use property as a residence to satisfy the "uses as a residence" requirement.

denying exemption for debtors who owned undeveloped land -- on which they had made limited preparations for building -- because they had not shown the intent or meaningful ability to occupy the property within the past ten years

See In re Bennett, 192 B.R. 584, 588 (Bankr.D.Me.1996) (denying exemption for debtors who owned undeveloped land — on which they had made limited preparations for building — because they had not shown the intent or meaningful ability to occupy the property within the past ten years); see also In re Cole, 185 B.R. 95, 98 (Bankr.D.Me.1995) (denying exemption when debtor installed a septic system and had neither shown a definable intention to move onto the land nor a plan to acquire or build a physical structure in which to live). In each case however, the courts declined to do so.


Context: Second Circuit precedent involving individual liability under Title VII of the Civil Rights Act of 1964 further supports the conclusion that an individual may not be held liable in her or his personal capacity under the ADA.

See Tomka v. Seiler Corp., 66 F.3d 1295, 1321 (2d Cir.1995) (holding that individual defendants may not be held liable for violations under Title VII); see also Lane v. Maryhaven Center of Hope, 944 F.Supp. 158, 162 (E.D.N.Y.1996) (finding as a matter of law that the ADA does not provide for a cause of action against an employer’s individual agents or employees); Cerrato v. Durham, 941 F.Supp. 388, 395 (“[t]he Second Circuit’s reasoning in Tomka is equally applicable to the question of individual liability under the ADA as well”).

finding as a matter of law that the ADA does not provide for a cause of action against an employer's individual agents or employees


"[t]he Second Circuit's reasoning in Tomka is equally applicable to the question of individual liability under the ADA as well"


Context: Moreover, our review of the record persuades us that the record is not sufficiently developed for us to address the merits of Santiago-Lugo's Sixth Amendment claim at this time. Accordingly, we do not reach it.

"Time and again we have held that a claim of inadequate representation will not be resolved on direct appeal when the claim has not been raised in the district court, unless the critical facts are not in dispute and a sufficiently developed record exists."

See, e.g., United States v. Gray, 958 F.2d 9, 15 (1st Cir.1992) (“Time and again we have held that a claim of inadequate representation will not be resolved on direct appeal when the claim has not been raised in the district court, unless the critical facts are not in dispute and a sufficiently developed record exists.”); see also United States v. Hoyos-Medina, 878 F.2d 21, 22 (1st Cir.1989) (“Fairness to the parties and judicial economy both warrant that, absent extraordinary circumstances, an appellate court will not consider an ineffective assistance claim where no endeavor was first made to determine the claim at the district court level.”).

"Fairness to the parties and judicial economy both warrant that, absent extraordinary circumstances, an appellate court will not consider an ineffective assistance claim where no endeavor was first made to determine the claim at the district court level."


Context: As other courts have noted, if plan fiduciaries were required to sell employer stock in the event of a decline, plan fiduciaries would be placed in the untenable position of facing litigation in the event that the price of company stock rises after the plans sell off the assets.

allowing a claim for liquidating company stock following a 60% decline to proceed because the stock "rebounded sharply" months after the sale

See Kirschbaum, 526 F.3d at 256; Moench, 62 F.3d at 571-72 (“[C]ourts must recognize that if the fiduciary, in what it regards as an exercise of caution, does not maintain the investment in the employer’s securities, it may face liability for that caution, particularly if the employer’s securities thrive.”); see also Tatum v. R.J. Reynolds Tobacco Co., 392 F.3d 636, 639-40 (4th Cir.2004) (allowing a claim for liquidating company stock following a 60% decline to proceed because the stock “rebounded sharply” months after the sale).

"[C]ourts must recognize that if the fiduciary, in what it regards as an exercise of caution, does not maintain the investment in the employer's securities, it may face liability for that caution, particularly if the employer's securities thrive."


Context: The district court properly dismissed Patterson's RLUIPA claim for monetary relief because such a claim may proceed only for injunctive relief against defen dants acting within their official capacities.

See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir.2014) (RLUIPA does not contemplate liability of- government employees in individual capacity); see also Holley v. Cal. Dep't of Corr., 599 F.3d 1108, 1114 (9th Cir.2010) (“The Eleventh Amendment bars [the plaintiffs] suit for official-capacity damages under RLUIPA.”).

"The Eleventh Amendment bars [the plaintiffs] suit for official-capacity damages under RLUIPA."


Context: Because the BIA adopted and affirmed the IJ's decision without adding any further explanation, we review the IJ's decision directly. We review de novo the IJ's legal conclusion that the tasks performed by Gao rendered him a "persecutor" under the statute.

"The BIA's application of law to undisputed facts is reviewed de novo."

See Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004) (“The BIA’s application of law to undisputed facts is reviewed de novo.”); cf. Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir.2006) (per curiam) (determination of whether the facts meet the legal definition of persecution “is a mixed question of law and fact, which we review de novo ”).

determination of whether the facts meet the legal definition of persecution "is a mixed question of law and fact, which we review de novo "


Context: P 16 Initially, we note that R.B.'s mother and brother are both included in the statutory definition of a "victim" under the Victims' Rights Act. SS 24-4.1-302(5). And because the Victims' Rights Act represents a decision on a matter of public policy -- here, that R.B.'s mother and brother have a right to be present during the trial of her accused killer -- the statute controls over CRE 615.

See People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993) (“In drawing the distinction between substance and procedure, we have held that in general, rules adopted to permit the courts to function and function efficiently are procedural whereas matters of public policy are substantive and are therefore appropriate subjects for legislation.”); see also People v. McKenna, 196 Colo. 367, 372-73, 585 P.2d 275, 278-79 (1978) (on substantive matters, a statute controls over a rule promulgated by the court); Coney, 98 P.3d at 935.

"In drawing the distinction between substance and procedure, we have held that in general, rules adopted to permit the courts to function and function efficiently are procedural whereas matters of public policy are substantive and are therefore appropriate subjects for legislation."


Context: Second, as noted, the soundness of Ault's focus on mass producers has been questioned, since the logic is premised on the projected behavior of large manufacturers, but the general rule of admissibility is extended to cases involving defendants of all character. Moreover, if the manner or scale of production were the guiding criterion and favored a liberalized rule of admissibility, it would follow that such rule should apply equally to negligence cases involving mass manufacturers.

asserting that an exception for mass producers could "effectively override Rule 407 since its reasoning that evidence of subsequent precautionary measures is admissible in products liability cases might apply with equal force to a negligence cause of action"

See Hyjek, 944 P.2d at 1040 (indicating that the mass producer rationale is based in fallacy, since the argument has equal force in negligence actions); see also Werner, 628 F.2d at 858 (asserting that an exception for mass producers could “effectively override Rule 407 since its reasoning that evidence of subsequent precautionary measures is admissible in products liability cases might apply with equal force to a negligence cause of action”). Few jurisdictions, however, have eliminated the common law rule entirely.


Context: Generally, a prisoner has a protected liberty interest in remaining in the general population.

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that placing a prisoner in disciplinary confinement clearly effects liberty interest); See Parker v. Cook, 642 F.2d 865, 867-68 (5th Cir.1981) (holding that the due process clause protects only those liberty interests created by the state.)


Context: In this case, there is relatively little extrinsic evidence. We agree with Mauer that a conclusory sworn statement from a principal of I4NI as to what was "understood" or "wanted" at the time the lease was signed brings little to the table.

See Peak, 799 N.W.2d at 544 (declining to give weight to one party’s undisclosed unilateral intent); cf. Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 432-33 (Iowa 1984) (authorizing consideration of written and oral communications between the parties as an aid to contract interpretation).

declining to give weight to one party's undisclosed unilateral intent


Context: Massachusetts case law also evidences a clear preference for a full hearing, on the merits of a comparative negligence claim.

"only in a rare case may a judge rule as a matter of law that the plaintiffs contributory negligence bars recovery"

Fahey v. Rockwell Graphic Systems, 20 Mass.App.Ct. 642, 650, 482 N.E.2d 519 (1985) (question of contributory negligence “is rarely taken from the jury and decided as a matter of law”); see also Everett v. Bucky Warren Inc., 376 Mass. 280, 289-290, 380 N.E.2d 653 (1978); Mirick v. Galligan, 372 Mass. 146, 151, 360 N.E.2d 1045 (1977) (“only in a rare case may a judge rule as a matter of law that the plaintiffs contributory negligence bars recovery”).

question of contributory negligence "is rarely taken from the jury and decided as a matter of law"


Context: . This conclusion is also supported by our case law relating to whether border searches are "routine" for purposes of Fourth Amendment analysis.

holding that border searches where returning attendees of an Islamic conference in Canada were detained for four to six hours, interrogated, patted down, fingerprinted, and photographed were "routine" for Fourth Amendment purposes

See, e.g., Tabbaa v. Chertoff, 509 F.3d 89, 97-101 (2d Cir.2007) (holding that border searches where returning attendees of an Islamic conference in Canada were detained for four to six hours, interrogated, patted down, fingerprinted, and photographed were "routine” for Fourth Amendment purposes); United States v. Irving, 452 F.3d 110, 123 (2d Cir.2006) ("Routine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler's privacy rights.”); United States v. Silva, 715 F.2d 43, 47 (2d Cir.1983) (noting that questions about “citizenship, the length and purpose of [an applicant's] trip to Canada, [and] what items she had acquired or bought in Canada” are all routine); see also United Stales v. Flores-Montano, 541 U.S. 149, 155 n. 3, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004) ("We think it clear that delays of one to two hours at international borders are to be expected.”).

"We think it clear that delays of one to two hours at international borders are to be expected."


"Routine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler's privacy rights."


noting that questions about "citizenship, the length and purpose of [an applicant's] trip to Canada, [and] what items she had acquired or bought in Canada" are all routine


Context: Plaintiff received the benefits reflected on those written statements for more than two years before Defendants notified him that, due to an actuarial miscalculation stumbled upon during an audit: (1) Plaintiffs benefits were overstated, (2) Plaintiffs benefits would be permanently reduced, and (3) Plaintiff would be required to pay back the overstated benefits. These are precisely the extraordinary circumstances that strongly favor the application of estoppel under Bloemker.

See Bloemker, 605 F.3d at 439, 444 (extraordinary circumstances existed where plaintiff retired in reliance on assurances that he was entitled to certain retirement benefits, and received those benefits for almost two years, before he was informed that his benefits would be reduced and he would be required to pay the overstated difference); see also Pell, 539 F.3d at 304-05 (concluding that a plaintiffs diligence in asking pertinent questions about his benefits in conjunction with an employer’s affirmative misrepresentations constituted extraordinary circumstances).

concluding that a plaintiffs diligence in asking pertinent questions about his benefits in conjunction with an employer's affirmative misrepresentations constituted extraordinary circumstances


Context: Thus, although the jury may consider the alleged lack of serious injury as evidence that the implemented force was not excessive, and may weigh it against Hodge's testimony, that does not mean that there are no circumstances under which Hodge can prevail.

"While the main purpose of a SS 1983 damages award is to compensate individuals for injuries caused by the deprivation of constitutional rights, a litigant is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of actual compensable injury."

See Pierre-Antoine, 2006 WL 1292076, at *5 (noting that although the lack of severe injury may be considered by a jury as evidence that force was not excessive, it did not entitle defendants to judgment as a matter of law); see Murray v. Williams, No. 05-CV-9438 (NRB), 2007 WL 430419, at *7 (S.D.N.Y. Feb. 7, 2007) (refusing to find that alleged force was de minimis where plaintiff alleged a laceration to his lower lip, a bloody nose, pain and suffering, and mental anguish); see also Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir.1999) (“While the main purpose of a § 1983 damages award is to compensate individuals for injuries caused by the deprivation of constitutional rights, a litigant is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of actual compensable injury.”).


refusing to find that alleged force was de minimis where plaintiff alleged a laceration to his lower lip, a bloody nose, pain and suffering, and mental anguish


Context: This argument is based on the proposition that jeopardy generally attaches when the district court accepts a guilty plea.

"[J]eopardy attaches to a guilty plea pursuant to a plea agreement upon the court's acceptance of the plea agreement."

See United States v. Ursery, 59 F.3d 568, 572 (6th Cir.1995) (“[J]eopardy attaches to a guilty plea pursuant to a plea agreement upon the court’s acceptance of the plea agreement.”), rev’d on other grounds, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); see also United States v. Aliotta, 199 F.3d 78, 83 (2d Cir.1999) (“As a general rule, jeopardy attaches in a criminal case at the time the district court accepts the defendant’s guilty plea.”).

"As a general rule, jeopardy attaches in a criminal case at the time the district court accepts the defendant's guilty plea."


Context: Certain ly, subpart A targets traditional common-law fugitives, specifically, persons who allegedly committed crimes while in the United States and who, upon learning that their arrest was sought, fled the country. Similarly, the "reenter" provision of sub-part B extends disentitlement authority over another class of persons traditionally recognized as "fugitives," that is, persons who allegedly committed crimes while in the United States but who were outside the country -- for whatever reason -- when they learned that their arrests were sought and who then refused to return to the United States in order to avoid prosecution.

See, e.g., United States v. Eng, 951 F.2d at 464 (“Fleeing from justice is not always a physical act; it may be a state of mind.... Thus, a defendant with notice of criminal charges who actively resists returning from abroad to face those charges is a fugitive from justice .... ”); United States v. $45,940 in United States Currency, 739 F.2d at 796-98 (holding that deported Canadian who failed to seek permission from U.S. Consulate to enter United States and answer pending criminal charges was properly deemed a fugitive); see also Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir.1976) (holding that no “meaningful distinction exists between those who leave their native country and those who, already outside, decline to return”).

holding that no "meaningful distinction exists between those who leave their native country and those who, already outside, decline to return"


Context: Under many circumstances, however, a written judgment which does not accurately reflect the oral pronouncement of sentence is subject to correction via nunc pro tunc motion and order. There is neither need nor constitutional authority to raise an issue of an "inaccurate" or "incorrect" written judgment via habeas corpus.

judgment may be held "void for want of a definite punishment having been in fact assessed," but if "a definite punishment was assessed and the entry of a judgment showing otherwise was by a clerical error, the judgment may be corrected by the court ... to make the record speak the truth, by nunc pro tunc entry of the judgment as same was actually rendered in the case when tried"

See Ex parte Patterson, 139 Tex.Crim. 489, 496, 141 S.W.2d 319, 323 (1940) (a mere irregularity in a judgment may be corrected by nunc pro tunc proceeding, but “the matter was not a subject for the granting of the writ of habeas corpus”) (citing Ex parte Beeler, 41 Tex.Crim. 240, 241, 53 S.W. 857, 857 (1899)); see also Ex parte Hannen, 155 Tex.Crim. 10, 13, 228 S.W.2d 864, 866-67 (1950) (judgment may be held "void for want of a definite punishment having been in fact assessed,” but if "a definite punishment was assessed and the entry of a judgment showing otherwise was by a clerical error, the judgment may be corrected by the court ... to make the record speak the truth, by nunc pro tunc entry of the judgment as same was actually rendered in the case when tried”); Ex parte Stansbury, 155 Tex.Crim. 73, 74, 231 S.W.2d 431, 432 (1950) (same); Ex parte Wingfield, 162 Tex.Crim. 112, 113, 282 S.W.2d 219, 219 (1955) (”[i]f the error was in the entry of judgment and not in the pronouncement, the judgment was not void and was subject .to correction by nunc pro tunc proceedings”).

a mere irregularity in a judgment may be corrected by nunc pro tunc proceeding, but "the matter was not a subject for the granting of the writ of habeas corpus"


"[i]f the error was in the entry of judgment and not in the pronouncement, the judgment was not void and was subject .to correction by nunc pro tunc proceedings"


Context: As to the second requirement, however, a breach of privilege is usually an insufficient showing of harm, at least under the strict terms of the standard, because the breach is not "a ruinous injury."

noting that a writ is proper to stop the "breaching [of] a tightly guarded privilege"

Bender, 343 S.W.2d at 801. The violation of a privilege is such a case. Id. at 802 (stating, regarding a privilege, that “in a certain class of cases, of which this is one, the showing of such grievous injury is not an absolute necessity”); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004) (noting that a writ is proper to stop the “breaching [of] a tightly guarded privilege”).

stating, regarding a privilege, that "in a certain class of cases, of which this is one, the showing of such grievous injury is not an absolute necessity"


Context: Perez, at 139-40. Thus, in contrast to representation in accordance with governing rules, representation by a law student intern who fails to comply with the conditions placed upon his or her practice does constitute an absolute denial of the right to counsel which requires reversal.

See Cheatham v. State, 364 So. 2d 83, 84 (Fla. Dist. Ct. App. 1978) (failure to comply with requirements that supervising attorney be present and defendant be informed of student status); In re Moore, 63 Ill. App. 3d 899, 904, 380 N.E.2d 917 (1978) (failure to inform court of student status and failure to obtain defendant's written consent); cf. People v. Masonis, 58 Mich. App. 615, 619, 228 N.W.2d 489 (1975) (law student representation did not violate right to counsel where defendant was aware of student status, general effective assistance of counsel standards were met, and there was no violation of student practice rules).


failure to inform court of student status and failure to obtain defendant's written consent


Context: Several other state courts have found this type of cross-examination improper.

opinion of defendant's non-testifying medical expert as to cause of plaintiffs injury could not be used to cross-examine the plaintiffs medical expert given the opinion was not made available until trial and the plaintiffs expert did not consider it in formulating his opinion

See, e.g., Sharman v. Skaggs Cos., 124 Ariz. 165, 602 P.2d 833 (App.1979) (opinion of defendant’s non-testifying medical expert as to cause of plaintiffs injury could not be used to cross-examine the plaintiffs medical expert given the opinion was not made available until trial and the plaintiffs expert did not consider it in formulating his opinion); State v. Spencer, 319 N.J.Super. 284, 725 A.2d 106 (1999) (trial judge erred in permitting prosecutor to cross-examine defendant’s expert pathologist with a hearsay report containing the opinion of defense’s forensic pathologist who did not testify at trial because the testifying expert did not rely on the conclusions of the forensic pathologist in formulating his opinion even though he had reviewed them); Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119 (1989) (non-testifying expert’s findings made in autopsy report were admissible in cross-examining expert witness who admitted he had relied on these findings, however, the non-testifying expert’s conclusions which differed from those of the expert were inadmissible because the non-testifying expert was not subject to cross-examination); cf. State v. White, 343 N.C. 378, 471 S.E.2d 593, cert. denied, 519 U.S. 936, 117 S.Ct. 314, 136 L.Ed.2d 229 (1996) (prosecutor permitted to cross-examine defense’s expert witness with reports containing conclusions of non-testifying expert where non-testifying expert reported these conclusions to defense expert who relied on them in formulating his opinion); but see People v. Pasch, 152 Ill.2d 133, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992) (prosecutor permitted to impeach defendant’s expert witness with reports of non-testifying doc tors’ reports on which the defendant’s expert did not rely in formulating his opinion in that the reports were for the limited purpose of impeaching the witness).

prosecutor permitted to impeach defendant's expert witness with reports of non-testifying doc tors' reports on which the defendant's expert did not rely in formulating his opinion in that the reports were for the limited purpose of impeaching the witness


trial judge erred in permitting prosecutor to cross-examine defendant's expert pathologist with a hearsay report containing the opinion of defense's forensic pathologist who did not testify at trial because the testifying expert did not rely on the conclusions of the forensic pathologist in formulating his opinion even though he had reviewed them


Context: In accord, Fourth Circuit precedent has indicated a narrow, literal view of Teague's first exception.

finding Teague's first exception inapplicable to the case because the conduct proscribed was capital murder, which obviously may be prosecuted

See Bassette v. Thompson, 915 F.2d 932, 939 (4th Cir.1990) (giving examples such as a state forbidding the sale of contraceptives or forbidding interracial marriages as individual 'conduct beyond the power of laws to regulate); see also Williams v. Dixon, 961 F.2d 448, 453-54 (4th Cir.1992) (finding Teague’s first exception inapplicable to the case because the conduct proscribed was capital murder, which obviously may be prosecuted). Teague’s first exception does not automatically apply if a particular defendant would have a different outcome under the new rule.


Context: There is nothing in the record to suggest that the officers believed that such danger existed, or that they entered the second garage bay for that reason.

Compare Commonwealth v. Walker, 370 Mass. 548, 556-558, cert. denied, 429 U.S. 943 (1976) (concluding that, in light of what the police observed and learned immediately on entering the apartment, they were justified in entering the bedroom to search for a person for the safety of themselves and the occupants of the apartment); Commonwealth v. Bowden, 379 Mass. 472, 478 (1980) (finding that a security check was reasonably believed to be necessary by the police to ensure their personal safety).

See Commonwealth v. Lewin (No. 1), 407 Mass. 617, 621 (1990) (in a murder case, police may conduct a protective sweep of the area to see if there are other victims or if a killer is still on the premises).


finding that a security check was reasonably believed to be necessary by the police to ensure their personal safety


Context: . The Court notes the existence of authority outside this circuit holding that the existence of a civil service system is a factor in determining the question at issue in this case.

"state law classification of a position is not determinative in the Branti analysis"

But see Hadfield v. McDonough, 407 F.3d 11, 18 n. 5 (1st Cir.2005) ("state law classification of a position is not determinative in the Branti analysis”).

no presumption that positions defined as "exempt" from civil service protection are necessarily exempt from First Amendment protection, but interests of federalism counsel substantial deference to state's judgment about definition of job position

See, e.g., Bavaro v. Pataki, 130 F.3d 46, 50 (2d Cir.1997) (no presumption that positions defined as "exempt" from civil service protection are necessarily exempt from First Amendment protection, but interests of federalism counsel substantial deference to state’s judgment about definition of job position); Waskovich v. Morgano, 2 F.3d 1292, 1299 n. 7 (3d Cir.1993) (position’s exemption from civil protection is "one of the factors to be considered in determining whether a dismissal on political grounds offends the First Amendment"); Fields v. Prater, 566 F.3d 381, 388 (4th Cir.2009) (“whether state law prohibits politically-based hiring for a particular position is relevant to whether political affiliation is ‘necessary for effective job performance’ ”); Stott v. Haworth, 916 F.2d 134, 142 (4th Cir.1990) (exemption from civil service system creates presumption that patronage dismissals are proper); Back v. Hall, 537 F.3d 552, 556-57 (6th Cir.2008) (inclusion in civil service system warrants deference to state legislature’s decision to make position nonpolitical); Hall v. Tollett, 128 F.3d 418, 423 (6th Cir.1997) ("state legislatures have the ability to remove government positions from the political sphere by including them in a civil service system and ... the legislature’s decision as to whether a particular job should be classified as political or nonpolitical is at least entitled ... to ‘some deference.' ”); Fuerst v. Clarke, 454 F.3d 770, 773-74 (7th Cir.2006) (inclusion in civil service system that gives protection to some level of party affiliation “amend[s] the job description" and confirms that political loyalty is not a valid qualification); and Finkelstein v. Bergna, 924 F.2d 1449, 1453 (9th Cir.1991) (noting that a person with civil service status might be in a different and more protected position than a political appointee).


position's exemption from civil protection is "one of the factors to be considered in determining whether a dismissal on political grounds offends the First Amendment"


"whether state law prohibits politically-based hiring for a particular position is relevant to whether political affiliation is 'necessary for effective job performance' "


exemption from civil service system creates presumption that patronage dismissals are proper


inclusion in civil service system warrants deference to state legislature's decision to make position nonpolitical


"state legislatures have the ability to remove government positions from the political sphere by including them in a civil service system and ... the legislature's decision as to whether a particular job should be classified as political or nonpolitical is at least entitled ... to 'some deference.' "


inclusion in civil service system that gives protection to some level of party affiliation "amend[s] the job description" and confirms that political loyalty is not a valid qualification


noting that a person with civil service status might be in a different and more protected position than a political appointee


Context: Vives seeks an injunction enjoining the NYPD, through Commissioner Raymond Kelly, from "arresting persons pursuant to section 240.30(1) of the Penal Law of the State of New York for the mailing of nonthreatening materials that are protected by the First Amendment when such materials are mailed with the intent to 'annoy' .or to 'alarm.' " Compl. at ad damnum clause P 5. Although the Court has no doubt that the enforcement of section 240.30(1) with respect to "annoying" or "alarming" conduct is unconstitutional as applied to anyone, see infra Part III.A.2, it is outside the scope of the Court's power to enjoin the NYPD from enforcing the statute against non-parties.

"[IJnjunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs."

See Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) (“[IJnjunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”); United States Dep’t of Defense v. Meinhold, 510 U.S. 939, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993) (“Meinhold I”) (staying injunction, pending appeal, to the extent it granted relief to non-parties); Meinhold v. United States Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir.1994) (“Meinhold II”) (finding injunction over broad where it enjoined the Department of Defense from denying enlistment to anyone based on sexual orientation, and limiting injunction to the Department’s actions with respect, to the plaintiff); see also Hayes v. North State Law Enforcement Officers Assn., 10 F.3d 207, 217 (4th Cir.1993) (“Although injunctive relief should be designed to grant the full relief needed to remedy the injury to the prevailing party, it should not go beyond the extent of the established violation.”).

"Although injunctive relief should be designed to grant the full relief needed to remedy the injury to the prevailing party, it should not go beyond the extent of the established violation."


finding injunction over broad where it enjoined the Department of Defense from denying enlistment to anyone based on sexual orientation, and limiting injunction to the Department's actions with respect, to the plaintiff


Context: As the Second Circuit has observed, "[o]n a large parcel of land, a pond 300 feet away from a dwelling may be as intimately connected to the residence as is the backyard grill of the bloke next door." Nonetheless, even in rural areas, it is rare for curtilage to extend more than 100 feet beyond the home.

But cf. United States v. Furrow, 229 F.3d 805, 817 (9th Cir.2000) (holding that the district court to not clearly err in finding that a distance of 100 feet is within the curtilage); Depew, 8 F.3d at 1427 (distance of 50 to 60 feet is within the curtilage).

See, e.g., Dunn, 480 U.S. at 297, 302, 107 S.Ct. 1134 (holding that deputies who approached within 90 feet of a rural residence were not within the boundaries of the curtilage); United States v. Van Damme, 48 F.3d 461, 464 (9th Cir.1995) (200 feet is outside of the curtilage); United States v. Brady, 993 F.2d 177, 178 (9th Cir.1993) (45 feet is outside of the curtilage); United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir.1993) (70 to 75 feet is outside of the curti-lage); United States v. Calabrese, 825 F.2d 1342, 1350 (9th Cir.1987) (50 feet is outside of the curtilage).


distance of 50 to 60 feet is within the curtilage


Context: .To die extent that the claims could be construed as a mandamus action against HUD, they are dismissed because the Grand Manor Regulatory Agreement vests HUD with discretion, as opposed to non-discretionary ministerial duties required to support a mandamus action.

dismissing mandamus action by tenants "challenging the pervasive failure of HUD to enforce its own regulations" because "[ojnly when the duty is clear and unmistakable is the extraordinary remedy of mandamus appropriate."

See 28 U.S.C. § 1361 ("The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”); Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff ... only if the defendant owes him a clear nondiscretionary duty."); Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir.1978); see also Falzarano v. United States, 607 F.2d 506, 512-13 (1st Cir.1979) (dismissing mandamus action by tenants "challenging the pervasive failure of HUD to enforce its own regulations” because "[ojnly when the duty is clear and unmistakable is the extraordinary remedy of mandamus appropriate.”).

"The common-law writ of mandamus, as codified in 28 U.S.C. SS 1361, is intended to provide a remedy for a plaintiff ... only if the defendant owes him a clear nondiscretionary duty."


Context: While such a characterization is improper, it did not, in this case, constitute plain error.

See People v. Williams, 146 Ill. App.3d 767, 100 Ill.Dec. 399, 497 N.E.2d 377 (1986) (in rape case, prosecutor s statements that defendant picked out, stalked, and captured his victim like a predator was not plain error); see also United States v. Tullos, 868 F.2d 689 (5th Cir.1989) (prosecutor’s comments, based on record evidence, that defendants were “liars” and “a crooked lawyer” who spoke with a “serpent’s tongue” were not plain error); Tennant v. State, 786 P.2d 339 (Wyo.1990) (prosecution’s reference to defendant as “leech,” a “blood sucker,” and “a predator on society” was not plain error in light of the evidence and trial counsel’s failure to object); State v. Williams, 630 S.W.2d 117 (Mo.App.1981) (reference to defendant as “sex animal who thinks he’s doing a girl a favor and shows no remorse” was not plain error based on facts of attack); and De-Pauw v. State, 658 S.W.2d 628 (Tex.App. 1983) (closing argument that defendant was “a shark [who] was swimming in that sea of troubled humanity [and] who silently, selectively, stalked, and slew his victim” was not plain error).

prosecutor's comments, based on record evidence, that defendants were "liars" and "a crooked lawyer" who spoke with a "serpent's tongue" were not plain error


prosecution's reference to defendant as "leech," a "blood sucker," and "a predator on society" was not plain error in light of the evidence and trial counsel's failure to object


reference to defendant as "sex animal who thinks he's doing a girl a favor and shows no remorse" was not plain error based on facts of attack


closing argument that defendant was "a shark [who] was swimming in that sea of troubled humanity [and] who silently, selectively, stalked, and slew his victim" was not plain error


Context: However, prejudice to the nonmoving party is not the only factor courts consider; the reasons for the delay are also relevant. Accordingly, a district court has discretion to deny leave to amend when the moving party's delay was the result of bad faith, dilatory tactics, or sheer inadvertence, or when the moving party offers no adequate explanation for a lengthy delay.

See Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218 (11th Cir.2004) (affirming the denial of leave to amend where the moving party offered no explanation for why she could not have included the proposed amended pleadings in her original complaint or her first amended complaint); Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.1999) (affirming denial where “[t]he facts upon which the claims ... were based were available at the time the complaints were filed”); Hester, 941 F.2d at 1579 (“Given the long history of this case, and the opportunities for [the plaintiff] to attempt to cure the deficiencies in the complaint, [the plaintiffs] proposed amendment was clearly untimely....”); see also Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir.1989) (“[P]arties seeking the benefit of the rule’s liberality have an obligation to exercise due diligence ____”).

"[P]arties seeking the benefit of the rule's liberality have an obligation to exercise due diligence ____"


affirming denial where "[t]he facts upon which the claims ... were based were available at the time the complaints were filed"


"Given the long history of this case, and the opportunities for [the plaintiff] to attempt to cure the deficiencies in the complaint, [the plaintiffs] proposed amendment was clearly untimely...."


Context: Other courts, however, have neglected to restrict the "good cause" test to claimants alone, opting instead to apply the "good cause" test to both the claimant and the Commissioner.

denying the Commissioner's motion to remand where the plaintiff has not consented to remand and where the Commissioner failed to introduce new and material evidence and show good cause why the evidence was not introduced at the prior administrative proceeding

See Schaefer, — U.S. at -, 113 S.Ct. at 2629 (construing the statutory language as allowing a remand “where new, material evidence is adduced that was for good cause not presented before the agency”); see also Formica, Civ. No. 2:92CV00084(AHN), 1994 WL 414299, at *2 (denying the Commissioner’s motion to remand where the plaintiff has not consented to remand and where the Commissioner failed to introduce new and material evidence and show good cause why the evidence was not introduced at the prior administrative proceeding); Hodges v. Secretary of HHS, No. 87-CV-625, 1989 WL 281926, at *5 n. 3 (N.D.N.Y. Nov. 15, 1989) (denying remand where the Commissioner failed to show the existence of new, material evidence and good cause for failure to obtain such evidence for the record); Rivera Sanchez v. Secretary of HHS, 786 F.Supp. 147, 149 (D.P.R.1992) (finding Commissioner’s motion to remand presented good cause for remand where the ALJ needed to “further develop the evidence regarding plaintiffs back disorder, psychiatric condition and mental residual functional capacity, as well as further develop the vocational evidence as necessary”); Spurlock, 783 F.Supp. at 478 (requiring Commissioner to show good cause for failing to consider new evidence in the prior proceedings).

construing the statutory language as allowing a remand "where new, material evidence is adduced that was for good cause not presented before the agency"


denying remand where the Commissioner failed to show the existence of new, material evidence and good cause for failure to obtain such evidence for the record


finding Commissioner's motion to remand presented good cause for remand where the ALJ needed to "further develop the evidence regarding plaintiffs back disorder, psychiatric condition and mental residual functional capacity, as well as further develop the vocational evidence as necessary"


requiring Commissioner to show good cause for failing to consider new evidence in the prior proceedings


Context: Even the Defendants appear to concede the existence of choice-of-law problems regardless of where the trial occurs; for instance, one defense expert explained that even though the Swiss action invokes contractual claims under Argentine law, "because [some of] the assets are located in Switzerland, Swiss law may govern certain of the legal issues in the action." (Russenberger Decl. P 13.) In sum, then, the Court believes that this trial will be difficult regardless of where it takes place, and thus the Gilbert private factors do not weigh strongly in favor of the Defendants.

See, e.g., Peregrine, 89 F.3d at 46-47 (denying forum non conveniens motion in part because critical documents were located in New York and witnesses would be forced to travel regardless of where trial took place); Herbstein, 743 F.Supp. at 189 (finding that existence of American defendants, who committed acts of fraud in this country, weighed heavily in favor of maintaining action in United States); see also Maganlal, 942 F.2d at 168-69 (holding that need to apply foreign law was not dispositive factor, especially where key evidence regarding production and condition of goods was located in New York).


finding that existence of American defendants, who committed acts of fraud in this country, weighed heavily in favor of maintaining action in United States


Context: In Hall, we enunciated the standard practice a district judge should follow when he or she needs more time to determine an amount of restitution. Specifically, a district judge should expressly enter an order of continuance and conduct a second hearing in open court with the defendant present. Although we recognized in Hall that there have been no " 'magic words' " required from a district judge under Cooper and its progeny to continue a sentencing from one hearing to the next and enable setting of a final restitution amount, more than nothing has nevertheless been the rule.

judge ordered restitution with "amount to be determined within 30 days"

Hall, 298 Kan. at 987; see, e.g., Cooper, 267 Kan. at 16, 18-19 (judge ordered restitution “with that amount to be determined within 30 days”); see also State v. Phillips, 45 Kan. App. 2d 788, 790-93, 253 P.3d 372 (2011) (defendant contested restitution amount at sentencing; parties agreed, judge ordered evidentiary hearing on amount of restitution); State v. Bryant, 37 Kan. App. 2d 924, 925, 927-31, 163 P.3d 325 (judge ordered restitution with “amount to be determined within 30 days”), rev. denied 285 Kan. 1175 (2007); State v. Lang, No. 104, 714, 2011 WL 6943098, at *1-2 (Kan. App. 2011) (unpublished opinion) (restitution ordered but judge decided to “leave that amount open” for later hearing); State v. Lewis, No. 101,127, 2010 WL 2502873, at *5-6 (Kan. App. 2010) (unpublished opinion) (judge held issue of restitution “open”), rev. denied 292 Kan. 968 (2011); State v. Wagoner, No. 100,180, 2009 WL 1692248, at *1-2 (Kan. App. 2009) (unpublished opinion) (district court failed to reserve ruling on restitution at sentencing; lacked jurisdiction to increase restitution amount later).

judge ordered restitution "with that amount to be determined within 30 days"


Context: Rather, they embody the positions and opinions of individual staff members, which the agency ultimately declined to accept. Our conclusion is in accord with other circuits that have held that interim agency reports or preliminary memoranda do not satisfy Rule 803(8)(C)'s requirements. See Figures y.

Board of Pub. Util., 967 F.2d 357, 360 (10th Cir.1992) (holding that a draft of a proposed letter from an area director of a government agency to a municipal administrative agency was properly excluded because it did not represent an agency finding); United States v. Gray, 852 F.2d 136,139 (4th Cir.1988) (holding that the district court properly refused to admit a tentative internal IRS referral report because it did not contain “agency factual findings”); City of New York v. Pullman, Inc., 662 F.2d 910 (2d Cir.1981)(holding that an interim recommendation by a transit authority staff member to the transit authority administrator was not a factual finding of an agency within the meaning of Rule 803(8)(C)); cf. United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 743 (2d Cir.1989) (concluding that the district court did not abuse its discretion in excluding government reports that the district court concluded were untrustworthy because of the “interim or inconclusive nature of the reports ____”).

concluding that the district court did not abuse its discretion in excluding government reports that the district court concluded were untrustworthy because of the "interim or inconclusive nature of the reports ____"


holding that the district court properly refused to admit a tentative internal IRS referral report because it did not contain "agency factual findings"


holding that an interim recommendation by a transit authority staff member to the transit authority administrator was not a factual finding of an agency within the meaning of Rule 803(8


Context: P 9. Landowners concede that they base their business losses on the change in the flow of traffic from the construction of the median strip. Like the property owners in Sand Bar and Spear, they contend that because the median strip was part of the same project that resulted in the taking of portions of their land, they are entitled to compensation for the effects of the highway project as a whole. They rely on several out-of-state cases, including a closely analogous case from South Carolina, to argue that when a project results in a taking, the owner of the land that has been taken is entitled to compensation for all incidental effects of the project on the value of the remaining land.

holding that a landowner could recover for placement of a median strip that could not have occurred but for the taking of the landowner's property because "the inquiry is, how much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use"

S.C. State Highway Dep’t v. Wilson, 175 S.E.2d 391, 396 (S.C. 1970) (holding that a landowner could recover for placement of a median strip that could not have occurred but for the taking of the landowner’s property because “the inquiry is, how much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use”) (quotations omitted); see also State ex rel. Mo. Highway & Transp. Comm’n v. Jim Lynch Toyota, Inc., 830 S.W.2d 481, 485 (Mo. Ct. App. 1992) (holding that loss of access resulting from a median strip constructed as part of a highway widening project was a proper consideration because “[a]ny factor that has a present, quantifiable effect on the market value of the property is proper as an element of damages”) (quotations omitted).

holding that loss of access resulting from a median strip constructed as part of a highway widening project was a proper consideration because "[a]ny factor that has a present, quantifiable effect on the market value of the property is proper as an element of damages"


Context: Dunlap's remaining claims are without merit and were properly dismissed.

See Price v. State of Hawaii, 939 F.2d 702, 707-09 (9th Cir.1991) (holding private actors are not acting under the color of state law for the purposes of section 1983 liability); see also Briscoe v. LaHue, 460 U.S. 325, 329-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (holding witnesses are absolutely immune from suit for damages with respect to testimony); Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (holding states are not persons for the purposes of section 1983).


holding states are not persons for the purposes of section 1983


Context: It is a settled principle that we will not address arguments that an appellant has not raised in an opening brief submitted to this Court. See Health Servs.

Cost Review Comm’n v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55 (1984) (“[A] question not presented or argued in an appellant’s brief is waived or abandoned and is, therefore, not properly preserved for review.”); see also Harrison v. Harrison, 109 Md.App. 652, 679-80, 675 A.2d 1003 (stating that an argument concerning an underlying divorce order that was not previously challenged on appeal could not be raised in a later appeal concerning collateral matters), cert. denied, 343 Md. 564, 683 A.2d 177 (1996); Monumental Life Ins. Co. v. United States Fidelity & Guar. Co., 94 Md.App. 505, 544, 617 A.2d 1163, cert. denied, 330 Md. 319, 624 A.2d 491 (1993).

"[A] question not presented or argued in an appellant's brief is waived or abandoned and is, therefore, not properly preserved for review."


Context: Under Home and earlier Supreme Court decisions, a motion to vacate, such as defendants have filed here, requires the Court to determine whether the "objective" of the court orders has been attained.

"The federal court must exercise its equi table powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials."

Id.; Frew, 540 U.S. at 442, 124 S.Ct. 899 (“The federal court must exercise its equi table powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.”); see also LaShaim, 701 F.Supp.2d at 98, 2010 WL 1270202, at *11 (in addressing motion to vacate consent decree, “it is appropriate to consider whether the objectives of the decree have been achieved”).

in addressing motion to vacate consent decree, "it is appropriate to consider whether the objectives of the decree have been achieved"


Context: The Court, in order to accept unopposed portions of the Magistrate Judge's Report and Recommendation, need only satisfy itself that there is no "plain error" on the face of the record. See Douglass v. United Servs.

en banc Xextending the deferential "plain error" standard of review to the un-objected to legal conclusions of a magistrate judge

Auto., Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc Xextending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc)(appeal from district court’s acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); see also Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”)(adopting the Advisory Committee note regarding Fed. R.Crv.P. 72(b)); see also Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (finding that “when no objections are filed, the district court need only review the record for plain error”).

appeal from district court's acceptance of un-objected to findings of magistrate judge reviewed for "plain error"


finding that "when no objections are filed, the district court need only review the record for plain error"


Context: The present complaint might be interpreted, alternatively, as asserting a substantive due process violation based on the theory that the conduct of appellee Morales "shocks the conscience."

alternate tests for analyzing substantive due process claim: (1) as violation of specific property or liberty interest, or (2) as conduct which "shocks the conscience"

See Pittsley, 927 F.2d at 6 (alternate tests for analyzing substantive due process claim: (1) as violation of specific property or liberty interest, or (2) as conduct which “shocks the conscience”).

substantive due process violation obtains when state action in and of itself is "egregiously unacceptable, outrageous, or conscience-shocking"

See also Amsden, 904 F.2d at 754 (substantive due process violation obtains when state action in and of itself is “egregiously unacceptable, outrageous, or conscience-shocking”). Offensive conduct is not conscience-shocking, however, in a substantive due process sense, merely because it trespasses on “some fastidious squeamishness or private sentimentalism,” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952).


Context: At best, however, Otarola stands for the proposition that a party will not be permitted to exploit procedural mechanisms to secure the application of more favorable law.

"Allowing the INS to appeal a correct IJ decision on a frivolous, non-discretionary procedural ground in order to avail itself of the stop-time rule would undermine clear Congressional intent to enact a 180-day delay period [before the effective date of IIRIRA]."

See Otarola, 270 F.3d at 1276 (“Allowing the INS to appeal a correct IJ decision on a frivolous, non-discretionary procedural ground in order to avail itself of the stop-time rule would undermine clear Congressional intent to enact a 180-day delay period [before the effective date of IIRIRA].”); see also INS v. Rios-Pine-da, 471 U.S. 444, 452, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (upholding the BIA’s decision refusing to reopen a suspension proceeding where the aliens had filed frivolous appeals in order to accrue seven years of continuous residence).

upholding the BIA's decision refusing to reopen a suspension proceeding where the aliens had filed frivolous appeals in order to accrue seven years of continuous residence


Context: The "irreducible constitutional minimum" of standing is that for each claim, each plaintiff must allege an actual or imminent injury that is traceable- to the defendant and redressable by the court.

holding wildlife-conservation organizations lacked standing to seek injunctive relief against the Secretary of the Interior's interpretation of the Endangered Species Act where . organization - members' harm was the endangering of wild animals in Sri Lanka but where the members had no current plans to go to Sri Lanka- to observe the animals

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding wildlife-conservation organizations lacked standing to seek injunctive relief against the Secretary of the Interior’s interpretation of the Endangered Species Act where . organization - members’ harm was the endangering of wild animals in Sri Lanka but where the members had no current plans to go to Sri Lanka- to observe the animals); see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (agreeing that “a plaintiff must demonstrate standing separately for each form of relief sought”).

agreeing that "a plaintiff must demonstrate standing separately for each form of relief sought"


Context: Second, and for the sake of completeness, we note that in addition to the previously identified problem of the Federal Rules of Evidence not applying, many courts have permitted the introduction of similar evidence in the context of domestic violence to show intent, motive, and the general nature of the relationship.

See, e.g., State v. Brown, 900 A.2d 1155, 1161 (R.I. 2006) (stating that admission of uncharged instances of assault was permissible to show “an escalating pattern of domestic violence tended to establish defendant’s intent”); State v. Williams, 188 Vt. 405, 9 A.3d 315, 320 (2010) (holding prior instances of domestic assault admissible “to show the nature of the parties’ relationship and explain what might otherwise appear to be incongruous behavior to a jury, such as remaining with an abusive partner and delaying a report of abuse”); see also United States v. Faulls, 821 F.3d 502, 508-09 (4th Cir. 2016) (rea soning that admission of .prior acts of domestic violence was appropriate because evidence was relevant to motive and nature of relationship); Albrecht v. Horn, 485 F.3d 103, 127-28 (3d Cir. 2007) (stating that evidence of past instances of domestic abuse was admitted for the legitimate purpose of showing the defendant’s motive).

stating that admission of uncharged instances of assault was permissible to show "an escalating pattern of domestic violence tended to establish defendant's intent"