Context: Almond argued that the deposition pertained to a question central to the validity of the suit, namely whether Bayview Loan was the owner of the note and mortgage on the date it filed suit. See Country Place Cmty. Ass'n, Inc. v. J.P. Morgan Mortg.

stating that party's standing is determined at time suit is filed and cannot be acquired after the fact

Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (noting that party lacks standing to file foreclosure action if it does not own or possess note and mortgage when it files suit); see also Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005) (stating that party’s standing is determined at time suit is filed and cannot be acquired after the fact).


Context: First, as a threshold matter, because the Montreal Convention provides the exclusive remedy for Plaintiffs, any theory of agency liability concerping airlines involved in the underlying ticket transaction or accident must arise from a provision of the Convention itself.

"The Conventions preempt all state law claims within their scope."

See Paradis v. Ghana Airways, Ltd., 348 F.Supp.2d 106, 111 (S.D.N.Y. 2004), aff'd, 194 Fed.Appx. 5 (2d Cir. 2006) (“The Conventions preempt all state law claims within their scope.”); see also, Asiedu-Ofei v. South African Airlines, 2016 WL 8229875, at *2 (E.D. Va. June 17, 2016) (holding that additional claims brought under state law are preempted by the Montreal Convention); Shirobokova v. CSA Czech Airlines, Inc., 376 F.Supp.2d 439, 441 (S.D.N.Y. 2005) (enumerating claims for negligence, breach of warranty, and negligent misrepresentation as state law claims specifically preempted by the Montreal Convention).


enumerating claims for negligence, breach of warranty, and negligent misrepresentation as state law claims specifically preempted by the Montreal Convention


Context: Second, contrary to Joseph's contention, the trial judge did not tell the jury that a battery tester was a deadly weapon. Rather, the trial judge merely mentioned the battery tester and instructed the jury to find whether that object constituted a deadly weapon.

finding that the trial court committed error by instructing the jury that a pistol is a deadly weapon, "as the question was one for the jury, and that a weapon may or may not be deadly according to its size and the manner of its use"

See, e.g., United States v. Harris, 293 F.3d 863, 870 (5th Cir. 2002) (finding that the trial judge did not err in instructing the jury that the defendant had used a baton because that fact was undisputed, and noting that the jury itself had to determine whether the baton constituted a dangerous weapon), cert. denied, 537 U.S. 950, 123 S. Ct. 395, 154 L. Ed. 2d 296 (2002); cf. United States v. Davis, 429 F.2d 552, 556 (8th Cir. 1970) (finding that the trial court committed error by instructing the jury that a pistol is a deadly weapon, “as the question was one for the jury, and that a weapon may or may not be deadly according to its size and the manner of its use”).


Context: There are no reported Virginia cases construing the term "paid" as it is used in Va.Code Ann. SS 6.1-330.57(A). Since the statute does not provide a definition, the court must assume that the term is to be given its normal, everyday meaning.

looking to Black's Law Dictionary and Webster's Dictionary for the everyday meaning of terms in an insurance policy

See Bell v. Dorey Elec. Co., 248 Va. 378, 382, 448 S.E.2d 622, 624, (1994) (turning to Black’s Law Dictionary and Webster’s for the everyday meaning of terms of a statute); see also Lumbermen’s Mut. Cas. Co. v. Keller, 249 Va. 458, 460-61, 456 S.E.2d 525, 526 (1995) (looking to Black’s Law Dictionary and Webster’s Dictionary for the everyday meaning of terms in an insurance policy).

turning to Black's Law Dictionary and Webster's for the everyday meaning of terms of a statute


Context: With respect to Del Rosario's testimony, we conclude that the District Court did not abuse its discretion when it declined to immunize Del Rosario. In light of the evidence, we find reasonable the District Court's determination that the disclosure of Del Rosario's statement implicating Zo-letta would not have changed the decision to deny Del Rosario use immunity.

judicial immunity properly denied where proposed immunized testimony would not have been "clearly exculpatory"

See United States v. Steele, 685 F.2d 793-808 (3d Cir.1982) (judicial immunity properly denied where proposed immunized testimony would not have been “clearly exculpatory”); United States v. Lowell, 649 F.2d 950, 965 (3d Cir.1981) (same); see also United States v. Ammar, 714 F.2d 238, 251 n. 8 (3d Cir.1983) (judicial immunity properly denied where “the exculpatory nature of [the] testimony is at best speculative”).

judicial immunity properly denied where "the exculpatory nature of [the] testimony is at best speculative"


Context: The agency denied Chen's asylum and withholding claims based on an adverse credibility determination. We lack jurisdiction to consider Chen's contentions regarding the adverse credibility determination, because he failed to raise them to the BIA.

"we may not entertain due process claims based on correctable procedural errors unless the alien raised them below"

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (this court lacks jurisdiction to review issues not raised before the agency); see also Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.2002) (“we may not entertain due process claims based on correctable procedural errors unless the alien raised them below”).


Context: Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to deference ... and although district court findings are subject to the clearly erroneous standard ..., both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." While making clear that ineffectiveness questions are "mixed," this announcement in no way clarifies the appropriate standard of review. Indeed, other state courts have been struggling with this very question and reaching different results.

supporting a deferential standard of review: "We will reverse a negative judgment after a non-jury trial only if 'the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.' "

See, e.g., Coleman v. State, 741 N.E.2d 697, 699-700 (Ind.2000) (supporting a deferential standard of review: “We will reverse a negative judgment after a non-jury trial only if ‘the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.’ ”); State v. Gill, 967 S.W.2d 540, 542 (Tex.App.1998) (noting that court reviews Strickland standards “through the prism of an abuse of discretion standard”); but see State v. Rice, 261 Kan. 567, 932 P.2d 981, 1005 (1997) (holding that the appellate standard of review of ineffectiveness claim is de novo).


noting that court reviews Strickland standards "through the prism of an abuse of discretion standard"


Context: Elliot's claim he previously issued Miranda warnings warranted an exception to the exclusionary rule. However, we note that, contrary to the trend in the Fourth Amendment area, courts have declined to create a "good faith" exception in the context of the Fifth Amendment.

"once a suspect has invoked the right to counsel, knowledge of that request is imputed to all law enforcement officers who subsequently deal with the suspect"

United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.1983) (per curiam) (“once a suspect has invoked the right to counsel, knowledge of that request is imputed to all law enforcement officers who subsequently deal with the suspect”).

See also Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988) (implicitly rejecting "good faith" argument); White v. Finkbeiner, 687 F.2d 885, 887 n. 9 (7th Cir.1982) (declining to create exception absent clear indication from United States Supreme Court), vacated on other grounds, 465 U.S. 1075, 104 S.Ct. 1433, 79 L.Ed.2d 756 (1984).


Context: Even circuits that clearly permit sua sponte summary judgment generally enforce the ten day notice requirement.

See Milburn v. United States, 734 F.2d 762, 765-66 (11th Cir.1984) (court strictly enforces ten day notice require ment); Davis Elliott International, Inc. v. Pan American Container Corp., 705 F.2d 705, 707 (3d Cir.1983) (although district court may enter summary judgment sua sponte, ten days notice is required); Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir.1984) ("clearly established rule in this circuit is that a district court must afford the party against whom sua sponte summary judgment is to be entered ten-days notice and an adequate opportunity to respond"); Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434, 436 (6th Cir.1981) (although district court may enter summary judgment sua sponte ten days notice is required); Hoopes v. Equifax, Inc., 611 F.2d 134, 135 (6th Cir.1979) (district court must comply with ten day notice requirement even when summary judgment motion is made on the day of trial); Herzog & Straus v. GRT Corp., 553 F.2d 789, 792 (2d Cir.1977) (ten day notice and hearing also required when judge considers sua sponte summary judgment); see also Adams v. Campbell County School District, 483 F.2d 1351, 1353 (10th Cir.1973) (court has no authority to grant summary judgment without first giving ten days notice); Winfrey v. Brewer, 570 F.2d 761, 764 (8th Cir.1978) (strictly construing ten day notice requirement); Utility Control Corp. v. Prince William Construction Co., Inc., 558 F.2d 716, 719 (4th Cir.1977) (same).


"clearly established rule in this circuit is that a district court must afford the party against whom sua sponte summary judgment is to be entered ten-days notice and an adequate opportunity to respond"


although district court may enter summary judgment sua sponte ten days notice is required


district court must comply with ten day notice requirement even when summary judgment motion is made on the day of trial


ten day notice and hearing also required when judge considers sua sponte summary judgment


Context: Evid. 801(e)(2)(C),(D). Moreover, such discrepancy goes to the weight, not the admissibility of the translated statement.

See Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App.1989) (stating any discrepancy in testimony goes only to weight of evidence and not its admissibility); see also State v. Patino, 177 Wis.2d 348, 502 N.W.2d 601, 610 (1993) (holding that discrepancy between declarant's testimony at preliminary hearing compared to his translated statement offered at trial went to weight not admissibility of statement).


Context: Yet these facts, if true, are insufficient to meet the "conscience-shocking" standard. "This standard is exceedingly difficult to meet, a fact underscored by the cases in which courts have declined to find a violation of substantive due process rights under substantially more egregious allegations than presented by [Ms. Hays]."

holding that a law school professor's substantive due process rights were not violated despite his allegations that the university failed to warn him that his conduct was prohibited

Seabourn v. Ind. Sch. Dist. No. 1-300, 775 F.Supp.2d 1306, 1314 (W.D. Okla. 2010) (holding that a “career teacher’s” substantive due process rights were not violated when the school board decided not to renew her contract due to concerns about her performance) (citing cases); see also Tonkovich, 159 F.3d at 529 (holding that a law school professor’s substantive due process rights were not violated despite his allegations that the university failed to warn him that his conduct was prohibited).

holding that a "career teacher's" substantive due process rights were not violated when the school board decided not to renew her contract due to concerns about her performance


Context: Such an interpretation does not square with the statute's explicit reference to "the spouse ... surviving at such member's death" (emphasis added), which plainly implies that only one person can be eligible to receive such benefits. We thus hold that a former spouse is not a surviving spouse and may not collect death benefits under the statute.

See Koelsch v. Koelsch, 148 Ariz. 176, 178, 713 P.2d 1234, 1236 (1986) (“The statute restricts death benefits to current spouses and children.”); see also Lack v. Lack, 584 S.W.2d 896, 899 (Tex.App.1979) (interpreting a Texas pension plan and reaching a similar conclusion); Arnold v. Department of Retirement Sys., 128 Wash.2d 765, 912 P.2d 463, 465 (1996) (excluding former spouses from receipt of death benefits).

"The statute restricts death benefits to current spouses and children."


Context: Plaintiff contends that his filing an application with the DOT BCMR on November 3, 2006, renders his claim timely. Plaintiff reasons that this filing tolled the court's general statute of limitations. Nevertheless, it is a canon of military-pay jurisprudence that seeking permissive administrative review does not toll the statute of limitations in the Tucker Act.

"[I]t is well settled that the statute of limitations for Tucker Act claims is not tolled by the claimant's exercise of his right to seek permissive administrative review of his claim."

See Martinez v. United States, 333 F.3d 1295, 1312 (Fed.Cir.2003) (“[I]t is well settled that the statute of limitations for Tucker Act claims is not tolled by the claimant’s exercise of his right to seek permissive administrative review of his claim.”); see also Brighton Village Assocs. v. United States, 52 F.3d 1056, 1060 (Fed.Cir. 1995) (holding that administrative challenges “did not postpone accrual of ... claims”).

holding that administrative challenges "did not postpone accrual of ... claims"


Context: The outstanding mortgage held by S/N-l at the time it foreclosed was $605,000. Fall River's outstanding liens for taxes and interest totaled approximately $190,000 as of January of 1999. Under the City Assessor's most recent valuation of the property in January of 1998, the value of the property is $642,000; therefore, any attempt by Fall River to foreclose on its tax liens will impair the value Plaintiff would receive through a foreclosure of its lien.

finding sufficient equity to permit a tax sale where the property value was $529,578, the delinquent taxes were $73,-488.83, and the outstanding value of the FDIC's interest was $196,689.73

See Matagorda, 19 F.3d at 225 n. 11 (noting that with insufficient value in the property to satisfy both liens, allowing state to foreclose if they “preserve” the FDIC’s lien is “not a realistic solution”); but see Donna Indep. School Dist. v. Balli, 21 F.3d 100, 101 (5th Cir. 1994) (finding sufficient equity to permit a tax sale where the property value was $529,578, the delinquent taxes were $73,-488.83, and the outstanding value of the FDIC’s interest was $196,689.73).

noting that with insufficient value in the property to satisfy both liens, allowing state to foreclose if they "preserve" the FDIC's lien is "not a realistic solution"


Context: Moreover, even if the order had required the parent coordinator to apply the same statutory standard that governs a judge in ruling on a complaint for modification, the statute authorizes, and indeed obligates, the judge to issue the final decision on any modification to the family's custody arrangement. In similar cases we have held that a judge cannot shift the final decision-making authority granted by statute to a third party.

judge could not grant therapist "sole authority" to determine when parent-child visitation would be appropriate where statute obligated judge to make specific findings on issue of visitation

See Silverman v. Spiro, 438 Mass. 725, 736-737 (2003) (judge could not grant therapist “sole authority” to determine when parent-child visitation would be appropriate where statute obligated judge to make specific findings on issue of visitation); Worcester County Trust Co. v. Marble, 316 Mass. 294, 301 (1944) (judge could not delegate to trustee authority to determine what constitutes “reasonable” legal fees where statute requires judge to make that determination).

See also P.W. v. M.S., 61 Mass. App. Ct. 779, 785-786 (2006) (judge cannot delegate wholesale to guardian ad litem statutory duty to conduct in camera review of documents over which privilege asserted).


judge could not delegate to trustee authority to determine what constitutes "reasonable" legal fees where statute requires judge to make that determination


Context: The Novaks' attorneys, anticipating this problem of causation, sought to avoid the problem by alleging that the transfusion Judge Hines authorized was the product of a conspiracy. By linking the defendants to the state actor, Judge Hines, through a conspiracy, counsel apparently believed that they could satisfy the requirements of 42 U.S.C. SS 1983 and the Fourteenth Amendment.

See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1330 (11th Cir.1988) (en banc) (Tjoflat, J., specially concurring) (section 1983 requires proof of an affirmative causal connection between the action taken by the defendant and the constitutional deprivation), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989); Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990) (private defendants can be liable under section 1983 if they act in concert with state officials in depriving the plaintiff of constitutional rights), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991); see also Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980) (though a judge may be immune from suit, private parties who conspire with him act “under color of state law” for purposes of section 1983).

though a judge may be immune from suit, private parties who conspire with him act "under color of state law" for purposes of section 1983


private defendants can be liable under section 1983 if they act in concert with state officials in depriving the plaintiff of constitutional rights


Context: The district court's finding regarding customer care in the Internet context is not clearly erroneous. In any event, if marks are similar, as they are here, "then purchaser care will decrease the likelihood of confusion only minimally."

"That is, confusingly similar marks may lead a purchaser who is extremely careful and knowledgeable about the [product] he is buying to assume nonetheless that the seller is affiliated with or identical to the other party."

Daddy’s Junky Music Stores, 109 F.3d at 286 (“That is, confusingly similar marks may lead a purchaser who is extremely careful and knowledgeable about the [product] he is buying to assume nonetheless that the seller is affiliated with or identical to the other party.”); see also Induct-O-Matic Corp., 747 F.2d at 364-65 (“Being skilled in their own art does not necessarily preclude their mistaking one trademark for another when the marks are as similar as those here in issue, and cover merchandise in the same general field”) (citation omitted).

"Being skilled in their own art does not necessarily preclude their mistaking one trademark for another when the marks are as similar as those here in issue, and cover merchandise in the same general field"


Context: In order for an individual to have standing to seek an injunction against a market competitor's violations of the law, the law allegedly violated must be one that protects the individual's interest in avoiding competition.

a competitor cannot appeal a zoning decree allowing the construction of a rival store because "competition is not a proper element of zoning"

Cook, 176 Md. at 399, 4 A.2d at 749 (rejecting standing on the grounds that “the requirements of the building code to which reference is made ... are not at all intended to confer privileges or advantages on owners of other theaters”); see also Kreatchman v. Ramsburg, 224 Md. 209, 222, 167 A.2d 345, 352 (1961) (a competitor cannot appeal a zoning decree allowing the construction of a rival store because “competition is not a proper element of zoning”); Baltimore Retail Liquor Package Stores Ass’n v. Board of License Comm’rs, 171 Md. 426, 429, 189 A. 209, 210 (1936) (liquor licensees have no standing to compel the revocation of their competitors’ licenses that were allegedly improperly renewed because, inter alia, “it was not within the purpose of the [licensing] statute to restrict competition for the benefit of any licensee”).

rejecting standing on the grounds that "the requirements of the building code to which reference is made ... are not at all intended to confer privileges or advantages on owners of other theaters"


liquor licensees have no standing to compel the revocation of their competitors' licenses that were allegedly improperly renewed because, inter alia, "it was not within the purpose of the [licensing] statute to restrict competition for the benefit of any licensee"


Context: On the record before us, a reasonable jury could conclude that Janczak's taking FMLA leave played a role in his ultimate termination and so find in his favor. Though taking advantage of Janczak's absence to reevaluate the value of his contributions to the company might appear a prudent economic decision in the abstract, protecting ill or caregiving employees from the effects of such a decision is precisely the purpose of the FMLA.

observing that "the FMLA was enacted because employers had found it in their economic self-interest to fire employees who missed too much work for medical care or other reasons now addressed by the FMLA"

See DeFreitas, 577 F.3d at 1161 (observing that “the FMLA was enacted because employers had found it in their economic self-interest to fire employees who missed too much work for medical care or other reasons now addressed by the FMLA”); Brockman, 342 F.3d at 1164 (recounting the FMLA’s purpose to “alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss”); cf. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 959 (10th Cir.2002) (employee prevailed on FMLA interference claim even though “[d]uring [her] absence, [the employer] says it became apparent” that she had not fully trained her subordinate).

employee prevailed on FMLA interference claim even though "[d]uring [her] absence, [the employer] says it became apparent" that she had not fully trained her subordinate


recounting the FMLA's purpose to "alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss"


Context: We decline, however, to follow that opinion's isolated preference for physical payment. Rather, "it [i]s not necessary that [an attorney's] fee be paid to enable [an insured] to recover, but when he established that he [i]s obligated to pay, and that the fee is reasonable ... his cause of action accrued."

Royal Indem. Co. v. Schwartz, 172 S.W. 581, 584 (Tex.Civ.App.-El Paso 1914, writ dism’d w.o.j.); see also Oliver B. Cannon and Son, Inc. v. Fidelity & Cas. Co. of New York, 519 F.Supp. 668, 675-76 (D.C.Del.1981) (recognizing that an insured is not precluded from maintaining “an action in its own name to recover its unpaid attorney’s fees merely because, by the workings of an independent agreement between [insured] and [attorney], [the insured] may be relieved of all or part of its obligation to pay those fees”); Colpan Realty Corp. v. Great Am. Ins. Co., 83 Misc.2d 730, 373 N.Y.S.2d 802, 805 (N.Y.Sup.Ct.1975) (“If defendant is in fact obligated to pay for legal expenses involved it must pick up the tab whether plaintiff paid it or not. There is no logical reason to require plaintiff to advance money it is not obligated to pay as a condition to obtaining payment from the party responsible for the obligation in the first place.”); cf. Jamar v. Patterson, 910 S.W.2d 118, 123-24 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (holding that an award for medical expenses is proper when the expenses have been incurred, but not paid); O’Connell v. O’Connell, 843 S.W.2d 212, 220 (Tex.App.-Texarkana 1992, no writ) (holding in an appeal from a post-answer default judgment that third prong of Craddock test required appellant to offer to reimburse appellee for legal expenses he incurred in obtaining default judgment, even though most of the fees incurred had not been paid).

recognizing that an insured is not precluded from maintaining "an action in its own name to recover its unpaid attorney's fees merely because, by the workings of an independent agreement between [insured] and [attorney], [the insured] may be relieved of all or part of its obligation to pay those fees"


"If defendant is in fact obligated to pay for legal expenses involved it must pick up the tab whether plaintiff paid it or not. There is no logical reason to require plaintiff to advance money it is not obligated to pay as a condition to obtaining payment from the party responsible for the obligation in the first place."


Context: The vast number of jobs falling within the category of inspector, all with differing job requirements, makes it quite difficult to tell whether someone with Pires' level of impairment might be able to perform an inspector job. Therefore, the lack of any specifics as to what this job might entail renders this aspect of the VE's testimony insufficient to satisfy the Commissioner's burden of proving the existence of jobs in the national economy that may be performed by someone with the claimant's residual functional capacity.

holding that VE's testimony did not satisfy that burden due to his failure to identify any specific inspector job among hundreds of possibilities consistent with ALJ's findings as to plaintiffs capacity

See Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir.2001) (stating that burden lies on Commissioner to come forward with evidence of jobs that claimant can perform); cf. Perez v. Chater, 17 F.Supp.2d 1115, 1127 & n. 33 (C.D.Cal.1997) (holding that VE’s testimony did not satisfy that burden due to his failure to identify any specific inspector job among hundreds of possibilities consistent with ALJ’s findings as to plaintiffs capacity).


Context: Nonetheless, certification has been denied when the plaintiff displays "an alarming unfamiliarity with the suit."

Greenspan v. Brassier, 78 F.R.D. 130, 131 (S.D.N.Y.1978) (plaintiff failed to meet with attorney until months into litigation, lacked knowledge about facts in complaint); see also Sicinski v. Reliance Funding Corp., 82 F.R.D. 730, 734 (S.D.N.Y.1979) (plaintiff lacked personal knowledge of facts underlying suit); Levine v. Berg, 79 F.R.D. 95, 97-98 (S.D.N.Y.1978) (plaintiff lacked familiarity with any of corporation’s filed reports and showed no willingness to learn basic facts).

plaintiff lacked familiarity with any of corporation's filed reports and showed no willingness to learn basic facts


Context: L. c. 93A damages, and the question of G. L. c. 93A relief has not been committed to it. See G. The question whether Columbia submitted unreasonable bills to Trust, based on the furnishing of unneeded chiropractic services or an overcharging for such services, is not a complicated issue calling for agency expertise.

See also Fishman v. Brooks, 396 Mass. 643, 649-650 (1986) (question whether disciplinary rule was violated within province of jury). We see no merit in Columbia’s belated assertion that Trust may not press its claim of unfair or deceptive acts or practices based on the very facts that are in dispute in the claims that Columbia asserts against Trust.

See Vieira v. Schupp, 383 Mass. 739, 743 (1981) (reasonableness and necessity of medical bills appropriately for trier of fact); Victum v. Martin, 367 Mass. 404, 410 (1975) (same).


Context: . The burdens imposed on plaintiffs here are at least as real and immediate as what every member of this court en banc seemingly recognized as having been inflicted on abortion providers by the passage of an earlier Louisiana law that "exposes [abortion] doctors to unlimited tort liability" in private suits, in part by exempting civil suits brought pursuant to that law from the limitations on liability provided in Louisiana's generally applicable Medical Malpractice Act.

explaining that the standing injury-in-fact inquiry and the ripeness hardship inquiry "overlap in practice," as each amounts to "an examination of whether a plaintiff has suffered a concrete injury"

Okpalobi, 244 F.3d at 427 (explaining that the “impact of the statute” is "coercive in that it exposes [abortion physicians] to unlimited tort liability”); id. at 435 (Benavides, J., concurring in part and dissenting in part) (agreeing that "Act 825, by its mere existence, coerces the plaintiffs to abandon the exercise of their legal rights lest they risk incurring substantial civil liability”); id. at 451 (Parker, J., dissenting) (agreeing that the plaintiffs "undoubtedly established an 'injury-in-fact' ”); see also Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir.2010) (explaining that the standing injury-in-fact inquiry and the ripeness hardship inquiry “overlap in practice,” as each amounts to “an examination of whether a plaintiff has suffered a concrete injury”).

explaining that the "impact of the statute" is "coercive in that it exposes [abortion physicians] to unlimited tort liability"


Context: . Judge Bacon erred in holding that only a "national" policy against discrimination based on sexual orientation could constitute a compelling governmental interest.

District of Columbia has same power as state to enact "legislation which prohibits discrimination''

See Roberts v. United States Jaycees, supra, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (state law against sex discrimination, more extensive than its federal counterpart, furthered compelling governmental interest and outweighed First Amendment burden); Braunfeld, supra, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (state Sunday closing law furthered compelling governmental interest and outweighed First Amendment burden); Prince v. Massachusetts, supra, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (state child labor law furthered compelling governmental interest and outweighed First Amendment burden); see also District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953) (District of Columbia has same power as state to enact "legislation which prohibits discrimination’’); cf. Whalen v. Roe, 429 U.S. 589, 597, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 (1977) (“we have frequently recognized that individual states have broad latitude in experimenting with possible solutions to problems of vital local concern").


"we have frequently recognized that individual states have broad latitude in experimenting with possible solutions to problems of vital local concern"


state Sunday closing law furthered compelling governmental interest and outweighed First Amendment burden


state child labor law furthered compelling governmental interest and outweighed First Amendment burden


Context: Given that Smith has been given notice and an opportunity to respond to the procedural bar and that the State did not intentionally waive the bar, we deem it appropriate for this court to apply the procedural bar.

See Washington v. James, 996 F.2d 1442, 1451 (2d Cir.1993) (stating that a court of appeals may raise the procedural bar sua sponte despite the. fact that the issue was not addressed in the district court); cf. Blankenship v. Johnson, 118 F.3d 312, 316 (5th Cir.1997) (stating that a court of appeals has discretion to apply Teague despite state waiver); Graham v. Johnson, 94 F.3d 958, 970 (5th Cir.1996) (stating that a court of appeals •has discretion to require exhaustion of state court remedies despite state waiver).


stating that a court of appeals *has discretion to require exhaustion of state court remedies despite state waiver


Context: Even if Keene had proven duplication, credit would not be permitted for any award of damages based on a claim for which the defendants were not jointly and severally liable.

See Dobson v. Camden, 725 F.2d 1003, 1005 (5th Cir.1984) (where there is no joint and several liability, there can be no offset for settlements).

See also Touche Ross, 854 F.2d at 1235 n. 17 (credit not permitted for any award of damages based on a claim for which the defendants were not jointly and severally liable); Phillips, 813 F.2d at 1176 (settlement amounts may ordinarily be set off against any judgment obtained against the other joint tortfeasors); Dykes v. Raymark Industries, Inc., 801 F.2d 810 (6th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987) (implicitly recognizing that a finding of joint liability is a prerequisite to setoff); Hendrix, 776 F.2d at 1508 (under Georgia law, there may be an offset for settlement amounts received from joint tortfeasors for an indivisible injury); Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260, 267 (2d Cir.1957), cert. denied, 355 U.S. 952, 78 S.Ct. 536, 2 L.Ed.2d 529 (1958) (to determine the impact of settlement on the plaintiffs award, the court must first determine whether liability of the defendants is joint); Yost v. American Overseas Marine Corp., 798 F.Supp. 313, 318 (E.D.Va.1992) (where tortfeasors are jointly liable for the entire harm, a payment by one diminishes the claim against the other joint tortfeasors); Hill v. Budget Finance & Thrift Co., 383 S.W.2d 79, 81 (Tex.Civ.App.—Dallas 1964, no writ hist.) (joint tortfeasor is entitled to credit if it is able to show that the same injury was com pensated by a payment made by another joint tortfeasor).


settlement amounts may ordinarily be set off against any judgment obtained against the other joint tortfeasors


implicitly recognizing that a finding of joint liability is a prerequisite to setoff


under Georgia law, there may be an offset for settlement amounts received from joint tortfeasors for an indivisible injury


to determine the impact of settlement on the plaintiffs award, the court must first determine whether liability of the defendants is joint


where tortfeasors are jointly liable for the entire harm, a payment by one diminishes the claim against the other joint tortfeasors


Context: "The legislature enacted the statutes governing the operation of motor vehicles . . . for the protection of the lives and property of the citizens of this state." (Internal quotation marks omitted.)

holding General Statutes SS 14-66 (a), requiring licensing to engage in operating wrecker for purpose of towing, valid exercise of police power

State v. Swain, 245 Conn. 442, 456, 718 A.2d 1 (1998) (concluding General Statutes § 14-111, governing suspension or revocation of operator’s license, valid exercise of state police power); see also C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 167 Conn. 304, 307-308, 355 A.2d 247 (1974) (holding General Statutes § 14-66 (a), requiring licensing to engage in operating wrecker for purpose of towing, valid exercise of police power).

concluding General Statutes SS 14-111, governing suspension or revocation of operator's license, valid exercise of state police power


Context: . Although Plaintiff argues that his excessive force claim is governed by the Eighth Amendment, the district court properly analyzed Plaintiffs excessive-force claim as arising under the Fourth Amendment.

"[T]he Eighth Amendment applies only after a prisoner is convicted."

See Jackson v. Sauls, 206 F.3d 1156, 1169 (11th Cir. 2000) (analyzing a claim of excessive force arising from ail arrest under the Fourth Amendment); see also United States v. Myers, 972 F.2d 1566, 1571 (11th Cir. 1992) ("[T]he Eighth Amendment applies only after a prisoner is convicted.”).


Context: At the second step of the McDonnell Douglas framework, defendant offers the same qualifications-based justification as discussed in Part II.B, supra, and as in the race discrimination context, this justification is sufficient. Unlike Ms. Simpson's race discrimination claim, however, at the final stage of the McDonnell Douglas analysis her age discrimination claim is supported by evidence sufficient to permit an inference that defendant's proffered explanation is pretextual. Klafehn's statements were not "direct" in the sense that they applied specifically to Ms. Simpson or to this position specifically because there were directed at hiring decisions more generally. They may, however, support an inference of age-based discrimination.

sexist comments reflecting the supervisor's stereotypical images of men and women raised a genuine issue of fact with respect to pretext

See Threadgill v. Spellings, 377 F.Supp.2d 158, 164-66 (D.D.C.2005) (holding that repeated remarks about need to bring in “new blood” or “young blood” by one of the decision-makers were not “stray remarks” and may permit inference of discrimination); see also Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.1991) (sexist comments reflecting the supervisor’s stereotypical images of men and women raised a genuine issue of fact with respect to pretext); Lindemann & Gross-man, 1 Employment Discrimination Law 28.

holding that repeated remarks about need to bring in "new blood" or "young blood" by one of the decision-makers were not "stray remarks" and may permit inference of discrimination


Context: Based on the general nature of Quinta-na's objections, and the course of the proceedings as just described, we are convinced that Quintana's objections were not sufficiently specific to preclude the district court's reliance on the PSR.

holding that a defendant's argument that her PSR overstated the seriousness of her past conduct was not a sufficiently specific objection to the fact of her previous conviction

See United, States v. Flores, 9 F.3d 54, 55-56 (8th Cir.1993) (holding that a defendant’s general objection to his PSR’s recommendation of a sentence increase did not serve as an objection to specific factual allegations in the PSR); see also, United States v. Coleman, 132 F.3d 440, 441 (8th Cir.1998) (holding that a defendant’s argument that her PSR overstated the seriousness of her past conduct was not a sufficiently specific objection to the fact of her previous conviction).

holding that a defendant's general objection to his PSR's recommendation of a sentence increase did not serve as an objection to specific factual allegations in the PSR


Context: The defendants contend that the evidence of the drug deal affected the jury's verdict on both punitive and compensatory damages. Although it is not clear whether the evidentiary error discussed above necessarily vitiated the compensatory damage award entered against the defendants, we believe the proper remedy would be to require a new trial on all issues.

stating that "better practice and procedure requires that one jury determine both the compensatory and punitive damages"

See White v. Burger King Corp., 433 So.2d 540 (Fla. 4th DCA 1983); see also DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532, 536 (Fla. 3d DCA 1970) on reh’g (stating that “better practice and procedure requires that one jury determine both the compensatory and punitive damages”).

But see Stephens v. Rohde, 478 So.2d 862 (Fla. 1st DCA 1985) (remanding only for a new trial on punitive damages where the plaintiff alleged no error in the trial on compensatory damages nor the specific amount of the award).


Context: Richardson, to be clear, does not hold that a state felon disenfranchisement law may never raise equal protection concerns. If a state enacts a law which disenfranchises felons "with the intent of disenfranchising blacks," that state has run afoul of SS 1 of the Fourteenth Amendment.

holding Alabama's petty crime and misdemeanor disenfranchisement provisions unconstitutional under Equal Protection Clause based on evidence of discriminatory intent

Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (holding Alabama’s petty crime and misdemeanor disenfranchisement provisions unconstitutional under Equal Protection Clause based on evidence of discriminatory intent); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 477, 105 S.Ct. 3249, n. 25, 87 L.Ed.2d 313 (1985) (“[In Hunter ], we did not suggest that felons could not be deprived of the vote through a statute motivated by some purpose other than racial discrimination.”).

"[In Hunter ], we did not suggest that felons could not be deprived of the vote through a statute motivated by some purpose other than racial discrimination."


Context: It is undisputed that no separate jurisdictional basis for these claims exists in this case. Because the court finds dismissal appropriate with respect to each of plaintiffs' claims arising under federal law, the court declines to exercise its discretion to address the merits of plaintiffs' remaining state law claims.

in light of Tenth Circuit's affir-mance of district court's dismissal of plaintiffs "jurisdietionally predicate" federal claims under SS 1983, dismissal of plaintiffs pendent state law claims appropriate

See 28 U.S.C. § 1367(c)(3); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir.1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”); see also Pride v. Does, 997 F.2d 712, 717 (10th Cir.1993) (in light of Tenth Circuit’s affir-mance of district court’s dismissal of plaintiffs “jurisdietionally predicate” federal claims under § 1983, dismissal of plaintiffs pendent state law claims appropriate).

"When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."


Context: R. at 978. The trial court found no mitigating factors. Abel contends the trial court did not "adequately support" the sentence it imposed. Br. of Appellant at 17. In so doing he does not challenge the propriety of the sole aggravating factor the trial court relied on to enhance his sentence.

See Smith v. State, 675 N.E.2d 693, 698 (Ind.1996) (noting that the particular circumstances of a crime can be an aggravating circumstance); see also Sherwood v. State, 702 N.E.2d 694, 699 (Ind. 1998) (observing that only one valid aggravating factor is necessary to enhance the presumptive sentence).


Context: Its chief drawback, as demonstrated here, is its duration. Congress, though, has addressed the matter of delay directly, see 15 U.S.C. SS 717r(d)(2); 33 U.S.C. SS 1341(a)(1), and by divesting states of their customary review of state agency orders and opinions in this field, see 15 U.S.C. SS 717r(d)(l). We see no indication that Congress otherwise intended to dictate how (as opposed to how quickly) MassDEP conducts its internal decision-making before finally acting.

"In the CWA, Congress expressed its respect for states' role through a scheme of cooperative federalism that enables states to 'implement ... permit programs' like [the one at issue here.]"

See 33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources .... ”); United States v. Cooper, 482 F.3d 658, 667 (4th Cir. 2007) (“In the CWA, Congress expressed its respect for states’ role through a scheme of cooperative federalism that enables states to ‘implement ... permit programs’ like [the one at issue here.]”); S. Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enf't, Dep’t of Interior, 20 F.3d 1418, 1427 (6th Cir. 1994) (“[T]he CWA sets up a system of ‘cooperative federalism,’ in which states may choose to be primarily responsible for running federally-approved programs.”); cf. Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C. Cir. 2013) (noting that the NGA “expressly does not preempt” certain environmental protection laws like the Clean Air Act that contemplate a robust role for states).

noting that the NGA "expressly does not preempt" certain environmental protection laws like the Clean Air Act that contemplate a robust role for states


"[T]he CWA sets up a system of 'cooperative federalism,' in which states may choose to be primarily responsible for running federally-approved programs."


Context: The claim must be one for money damages against the United States." The Fifth Amendment is the only provision of the Constitution that has 'been held to fall under the Court's jurisdiction pursuant to the Tucker Act.

"If there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine."

See, e.g., United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946) (“If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.”); Phelps v. United States, 274 U.S. 341, 343, 47 S.Ct. 611, 71 L.Ed. 1083 (1927) (“Under the Fifth Amendment plaintiffs were entitled to just compensation, and ... the claim is one founded on the Constitution.”).

Cf. Carruth v. United States, 224 Ct.Cl. 422, 627 F.2d 1068 (1980); Crocker v. United States, 125 F.3d 1475, 1476 (Fed.Cir.1997) (explaining that this Court does not have jurisdiction over claims involving due process violations of the Fifth or Fourteenth Amendment).


"Under the Fifth Amendment plaintiffs were entitled to just compensation, and ... the claim is one founded on the Constitution."


Context: The particular facts in this left-hand turn situation required that the charge be given. Specifically, the fact that Barry could not see to the passenger side of the van operated by Eldred A. More, provided ample reason for her to take special precautions under the particularly hazardous circumstances.

Cf. Zec v. Thompson, 166 N.J.Super. 52, 55 (App.Div.1979) (driver not relieved of duty to exercise increased amount of care in making turn, even though proceeding in accordance with traffic light).

See Ambrose v. Cyphers, supra, 29 N.J. at 144 (standard of care of reasonable person involves consideration of varied amounts of care in relation to amount of risk of harm involved).


Context: (Pis.' Opp'n at 19). This argument is not persuasive for two reasons: first, it is contrary to the law of immunity in analogous situations that the wrongfulness of the alleged act does not take it beyond the scope of authority for immunity purposes.

See, e.g., Belhas v. Ya’alon, 515 F.3d 1279, 1287-88 (D.C.Cir.2008) (individual Israeli military officer immune under Foreign Sovereign Immunities Act from suit alleging war crimes); Princz v. Fed. Repub. of Germany, 26 F.3d 1166, 1174 (D.C.Cir.1994) (foreign state does not waive sovereign immunity by violating jus cogens); see also Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 244 (2d Cir.1996) (noting that revisions to the Foreign Sovereign Immunities Act removed sovereign immunity for acts of state-sponsored terrorism only under particular circumstances); 14 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Procedure § 3655 (3d ed. 2015) (“The fact that the defendant officer’s acts were wrongful or erroneous is not sufficient to demonstrate that they are outside the scope of his or her official authority.”).


foreign state does not waive sovereign immunity by violating jus cogens


Context: In the hearing on the motion to dismiss, the attorneys for the parties elaborated on the underlying factual basis for the complaint in explanation of the asserted grounds for dismissal. However, no stipulation of fact was made, no affidavit or other evidence was submitted, and the transcript does not indicate that the court converted the motion into a motion for summary judgment, as contemplated by Rule 56, SCRCP.

"[T]he trial court may treat a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleadings if the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e

See Cobb v. Benjamin, 325 S.C. 573, 482 S.E.2d 589 (Ct.App.1997) (where there is no stipulation, a representation of fact by counsel in written briefs, memoranda or made during oral argument, may not be considered by the court where it is unsupported by the record); see also Brown, 291 S.C. at 367, 353 S.E.2d at 698-99 (“[T]he trial court may treat a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleadings if the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e) of the South Carolina Rules of Civil Procedure.”).


Context: The plaintiff contends that a liberty interest in his continued participation in the work release program arises directly under the Due Process Clause. According to the plaintiff, his participation in the work release program can be analogized to other conditional restrictions imposed upon a prisoner's freedom -- such as parole, probation and conditional release programs -- the revocation of which have been held to be protected by the Due Process Clause of its own force.

"[A] prisoner release program which permits a convict to exist, albeit conditionally, in society on a full-time basis more closely resembles parole or probation than even the more permissive forms of institutional confinement."

See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973) (revocation of probation status); Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972) (revocation of parole); Edwards v. Lockhart, 908 F.2d 299, 302 (8th Cir.1990) (revocation of participation in program bearing many of the same characteristics as parole); see also Harper v. Young, 64 F.3d 563, 566-67 (10th Cir.1995) (“[A] prisoner release program which permits a convict to exist, albeit conditionally, in society on a full-time basis more closely resembles parole or probation than even the more permissive forms of institutional confinement.”), petition for cert. filed, No. 95-1598 (U.S. Apr. 4, 1996); United States v. Stephenson, 928 F.2d 728, 732 (6th Cir.1991) (finding inherent liberty interest in continued placement in supervised release program that allowed convicts to live in society).


finding inherent liberty interest in continued placement in supervised release program that allowed convicts to live in society


Context: The Court rejects Griffin's argument that her actions did not violate SS 362(h) because the Debtor had previously entered into an oral contract with Griffin to repay the Prepetition Debt.

See In re Esposito, 154 B.R. 1011 (Bankr.N.D.Ga.1993) (finding that creditor willfully violated automatic stay where creditor repossessed collateral in reliance on reaffirmation agreement which had not been approved by bankruptcy court); cf. In re Baker, 183 B.R. 30 (Bankr.D.R.1.1995) (finding that creditor’s ex parte negotiation of reaffirmation agreement with debtor constituted willful violation of the automatic stay).

finding that creditor's ex parte negotiation of reaffirmation agreement with debtor constituted willful violation of the automatic stay


Context: Because none of the parties has identified non-party witnesses, this factor adds little to the court's analysis. Certainly, defendants have not demonstrated that the factor favors transfer.

"The movant is obligated to clearly specify the key witnesses to be called and make at least a generalized statement of what their testimony would have included"

See Bohara, 390 F.Supp.2d at 963 (“If the [requested] transfer is for the convenience of witnesses, [the] defendant must name the witnesses it wishes to call, the anticipated area of their testimony and its relevance, and the reasons why the present forum would present hardship to them”); see also Fireman’s Fund Ins. Co. v. National Bank for Cooperatives, No. C 92-2667 BAC, 1993 WL 341274, *4 (N.D.Cal. Aug. 27, 1993) (“The movant is obligated to clearly specify the key witnesses to be called and make at least a generalized statement of what their testimony would have included”).

"If the [requested] transfer is for the convenience of witnesses, [the] defendant must name the witnesses it wishes to call, the anticipated area of their testimony and its relevance, and the reasons why the present forum would present hardship to them"


Context: In such a circumstance, the court will assume that the statements actually misled consumers. On the other hand, if the statements at issue are either ambiguous or true but misleading, the plaintiff must present evidence of actual deception.

stating that when a "plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse"

See American Council, 185 F.3d at 616; Smithkline, 960 F.2d at 297 (stating that when a “plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse”); Avila, 84 F.3d at 227. The plaintiff may not rely on the judge or the jury to determine, “based solely upon his or her own intuitive reaction, whether the advertisement is deceptive.” Smithkline, 960 F.2d at 297. Instead, proof of actual deception requires proof that “consumers were actually deceived by the defendant’s ambiguous or true-but-misleading statements.”

American Council, 185 F.3d at 616; see also Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 386 (2d Cir.1986)(stating that the plaintiff's claim fails due to its failure to introduce evidence establishing that the public was actually deceived by the statements at issue).


Context: Landgraf demands an "unambiguous directive" from Congress before a court may apply a statute retrospectively. A negative inference from Section 108's exclusion of RICO is an ambiguous directive, if that. I therefore conclude that the PSLRA provides no explicit or (sufficiently clear) implicit indication of Congressional intent to apply the RICO amendments to actions involving pre-en-actment events.

"This language falls short of demonstrating a 'clear congressional intent' favoring retroactive application of these fees limitations." (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483

See Mathews, 161 F.3d at 170 (“[W]e find defendants’ reliance on unstated intentions, absent language, and explicit congressional directives in non-RICO areas of the Reform Act to be far from the clear evidence we seek when discerning congressional intent.”); Baker, 940 F.Supp. at 1177 (“[I]t is unlikely that Congress chose to indicate its desire for retroactive application of the RICO Amendments — which will likely affect hundreds of pending cases — by such a roundabout method.”); District 65 Retirement Trust, 925 F.Supp. at 1569; cf. Martin, 119 S.Ct. at 2004 (“This language falls short of demonstrating a ‘clear congressional intent’ favoring retroactive application of these fees limitations.” (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483)).

"[W]e find defendants' reliance on unstated intentions, absent language, and explicit congressional directives in non-RICO areas of the Reform Act to be far from the clear evidence we seek when discerning congressional intent."


"[I]t is unlikely that Congress chose to indicate its desire for retroactive application of the RICO Amendments -- which will likely affect hundreds of pending cases -- by such a roundabout method."


Context: An-tonick's claims rest on the contention that the source code of the Sega Madden games infringed on the source code for Apple II Madden. But, none of the source code was in evidence. The jury therefore could not compare the works to determine substantial similarity. And, absent evidence of the copyrighted work and the allegedly infringing works, the record is insufficient to allow appellate review of the jury's verdict.

"We have frequently affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity."

See, e.g., Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1448, 1451 (9th Cir. 1988) (granting JMOL to copyright defendant because no reasonable jury could have found substantial,similarity); cf. Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990) (“We have frequently affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity.”).


Context: .Few courts have considered the issue of whether personal notes of officials are public records, but the majority have adopted a similar position.

But cf. Tingling v. Lang, 39 Misc.2d 338, 240 N.Y.S.2d 633 (1963) (allowing inspection of written notes and computations made in course of audit proceedings under state FOIA where court found notes formed a part of the file and inquiry and could have been used for guidance in final audit report).

See, e.g., Courier-Journal v. Jones, 895 S.W.2d 6 (Ky.App.1995) (holding . Governor's daily appointment schedule with notes were not subject to state FOIA); In State, ex rel. Mothers Against Drunk Drivers, v. Gosser, 20 Ohio St.3d 30, 485 N.E.2d 706, 710 (1985) (finding judge's personal notes regarding trial and sentencing hearing were not public records); American Fedn. of Govt. Emp., Local 2782 v. United States Dept. of Commerce, 632 F.Supp. 1272 (D.D.C.1986), aff'd 907 F.2d 203 (D.C.Cir.1990) (holding employees' personal notes not intended for distribution through usual agency channels are beyond the scope of the federal FOIA).


finding judge's personal notes regarding trial and sentencing hearing were not public records


holding employees' personal notes not intended for distribution through usual agency channels are beyond the scope of the federal FOIA


Context: In my view, appellant was deprived of a liberty interest. When a claimant asserts that government action has wrongly deprived him of a liberty interest and the claim is fact intensive, a hearing to develop the factual basis of the claim is a necessary part of the review guaranteed by due process.

Id. at 557-58, 94 S.Ct. 2963 (“This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests.”); see also Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) (recognizing that due process requires a trial-type hearing for fact-specific, adjudicatory decisions by administrative agencies).

"This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests."


Context: . Apparently, in Texas no one can have a vested right in a utility rate until the rate is administratively and judicially final.

Southwestern Bell v. PUC, 615 S.W.2d at 957 (holding that the Commission, on remand, can set the effective date of a rate to be the effective date of the original Commission activity); but see New England Tel. & Tel. Co. v. Public Util. Comm’n, 116 R.I. 356, 358 A.2d 1, 22 (1976) ("[E]stablished rates are presumed to be valid while they are in force and ... neither the commission nor the court has the power to alter such rules retroactively.")


Context: The court held that the plaintiffs amended complaint, filed after her appointment as administratrix, would relate back to the original filing date. See E.R.

Hakusan II, 954 F.2d 874, 886-87 (3d Cir.1992) (allowing omission of a non-diverse defendant and allowing relation back to original filing); see also Black v. Sec’y of Health and Human Sens., 93 F.3d 781, 790 (Fed.Cir.1996) (permitting relation back of statutory claim which initially lacked sufficient allegation of unreimbursed expenses).

noting that "where a change in parties, necessary to the existence of jurisdiction, is appropriate and is made (even on or after appeal

Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 163 (2d Cir.2001) (noting that “where a change in parties, necessary to the existence of jurisdiction, is appropriate and is made (even on or after appeal), appellate courts have acted as if the trial court had jurisdiction from the beginning of the litigation”); Berkshire Fashions, Inc. v. The M.V.


allowing omission of a non-diverse defendant and allowing relation back to original filing


Context: Although the [Fourteenth] Amendment does not generally require police officers to provide medical assistance to private citizens, DeShaney v. [Winnebago County Dept.

Soc. Svcs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ] (holding that the due process clause does not generally confer affirmative rights to governmental aid, even where such aid may be necessary to secure life), when a state officer’s conduct places a person in peril in deliberate indifference to their safety, that conduct creates a constitutional claim.

See L.W. v. Grubbs, 974 F.2d 119 (9th Cir.1992) [¶]... ] (concluding a valid section 1983 claim existed against a supervisor at a state facility who placed plaintiff in danger by assigning her to work with an inmate sex offender who had a history of violent assaults on women; he subsequently raped and kidnaped her); Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989) [¶]... ] (concluding that a valid section 1983 claim existed against a state police officer who caused a woman to be stranded in a high-crime area at night where she was subsequently raped).


Context: The defendant's argument is unpersuasive. The federal government is not inappropriately intervening in New York's affairs by prosecuting the defendant under the mail fraud statute -- the government is acting pursuant to the federal interest in protecting the United States Mails from misuse.

noting in dicta that the broad federal mail .statute punishes "any scheme or artifice to defraud in which the jurisdictional means-- the mails--are 'employed.'"

See, e.g., United States v. States, 488 F.2d 761, 766-67 (8th Cir.1973) (rejecting argument that mail fraud prosecution improperly intervened in state affairs, because “the focus of the statute is upon misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails.”) (citation omitted), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974); see also United States v. Porcelli 865 F.2d 1352, 1359 (2d Cir.1989) (noting in dicta that the broad federal mail .statute punishes “any scheme or artifice to defraud in which the jurisdictional means— the mails—are ‘employed.’”), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989). In view of the federal interest in protecting the mails from misuse, it does not violate any principles of federalism to prosecute the defendant under the mail fraud statute even if the underlying conduct is not criminalized by the State of New York.

rejecting argument that mail fraud prosecution improperly intervened in state affairs, because "the focus of the statute is upon misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails."


Context: A finding of sanity does not preclude consideration of the statutory mitigating factors concerning a defendant's mental condition.

finding error in trial court's rejection of mental mitigators on the basis that the defendant was sane

See, e.g., Morgan v. State, 639 So.2d 6, 13 (Fla.1994) (finding error in trial court’s rejection of mental mitigators on the basis that the defendant was sane); Knowles v. State, 632 So.2d 62, 67 (Fla.1993) (remanding for resen-tencing where trial court failed to find statutory mental mitigation because the defendant was sane even though evidence indicated that defendant suffered from organic brain damage and that he was in an acute psychotic state at the time of the murder); Huckaby v. State, 343 So.2d 29, 33-34 (Fla.1977) (vacating death sentence where trial court completely ignored evidence of mental mitigation partially on the basis that the defendant understood the difference between right and wrong); cf. Smith v. State, 407 So.2d 894, 902 (Fla,1981) (declining to follow Huckáby where the trial court considered mental mitigation, but found that the testimony did not compel application of mental mitigators).

declining to follow Huckaby where the trial court considered mental mitigation, but found that the testimony did not compel application of mental mitigators


remanding for resen-tencing where trial court failed to find statutory mental mitigation because the defendant was sane even though evidence indicated that defendant suffered from organic brain damage and that he was in an acute psychotic state at the time of the murder


vacating death sentence where trial court completely ignored evidence of mental mitigation partially on the basis that the defendant understood the difference between right and wrong


Context: "This broadbased power includes the power to supervise, administrate, discipline, and serve the needs of the public in all facets of the courts." It further includes "the authority to exercise necessary means to regulate and control the practice of law by promulgating and enforcing rules to discipline attorneys."

"Courts have long recognized an inherent authority to suspend or disbar lawyers. * * * This inherent power derives from the lawyer's role as an officer of the court which granted admission."

Howell v. State Bar of Texas, 843 F.2d 205, 206 (5th Cir.1988); see In re Snyder, 472 U.S. 634, 643, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985) (“Courts have long recognized an inherent authority to suspend or disbar lawyers. * * * This inherent power derives from the lawyer’s role as an officer of the court which granted admission.”); see also In re Petition of Almond, 603 A.2d 1087, 1087 (R.I.1992) (“This court is responsible for promulgating rules regulating the practice of law and ethical standards for the conduct of attorneys admitted to the Rhode Island Bar.”).

"This court is responsible for promulgating rules regulating the practice of law and ethical standards for the conduct of attorneys admitted to the Rhode Island Bar."


Context: Courts have held entire meal breaks to be compensable under the FLSA when employees continue to have job responsibilities during their breaks.

"[T]he essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are in fact relieved from work for the purpose of eating a regularly scheduled meal."

See Kohlheim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir.1990) (“[T]he essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are in fact relieved from work for the purpose of eating a regularly scheduled meal.”); see also Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 64-65 (2d Cir.1997) (holding meal periods compensable “work” under FLSA if employees perform duties predominantly for the benefit of the employer); Henson v. Pulaski County Sheriff Dep’t, 6 F.3d 531, 534-35 (8th Cir.1993) (same).

holding meal periods compensable "work" under FLSA if employees perform duties predominantly for the benefit of the employer


Context: The government's case against Hands contained weaknesses similar to those identified in Marshall: the direct evidence consisted entirely of the testimony of wit nesses of highly questionable credibility, and the circumstantial evidence was far less convincing than the Marshall circumstantial evidence. Hands's case turned entirely upon which biased witnesses the jury chose to believe. Evidence that tended to erode Hands's credibility and to prejudice the jury against him, therefore, could have had a substantial -- perhaps overpowering -- impact on the jury's deliberations.

finding error not harmless and vacating conviction on grounds of prosecutorial misconduct that "significantly interfered with the jury's ability to make an essential and liminal credibility determination"

See United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir.1994) (reversing conviction on grounds of prosecutorial misconduct where “[t]he prejudicial effect of [the] misconduct cannot be disputed, as this case turned largely on the jury’s credibility determinations of the several witnesses who testified”); see also United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir.1999) (holding that the cumulative effect of several incidents of prosecutorial misconduct that undercut defendant’s credibility was not harmless error; noting that defendant, to go free, needed to persuade jury that he was credible and that the prosecution witnesses, who testified in exchange for leniency, were not); United States v. Watson, 171 F.3d 695, 700-01 (D.C.Cir.1999) (no harmless error where “credibility was key”); United States v. Manning, 23 F.3d 570, 575 (1st Cir.1994) (finding error not harmless and vacating conviction on grounds of prosecutorial misconduct that “significantly interfered with the jury’s ability to make an essential and liminal credibility determination”).

reversing conviction on grounds of prosecutorial misconduct where "[t]he prejudicial effect of [the] misconduct cannot be disputed, as this case turned largely on the jury's credibility determinations of the several witnesses who testified"


Context: But, as we have noted, Ms. Escobedo has not alleged that it was a vehicle to effect any discriminatory animus harbored by the nurses, let alone provide evidence of such intent or effect; to the contrary, Ms. Escobedo testified that she got along well with the nurses and they supported her in disputes with her supervisors. This evidence before us thus simply does not permit an inference of "overt" discrimination as required by our precedent' and we cannot say that the combination of the two incidents could reasonably be found to have created a hostile atmosphere.

holding that the "obviously sex and gender-motivated conduct" by a supervisor -- including, inter alia, his stated belief "that women in general were incompetent, stupid and scatterbrained" -- "so poisoned the entire body of conduct toward Plaintiff that a jury reasonably could view all of the allegedly harassing conduct ... as the product of sex and gender hostility"

See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (holding that plaintiff failed to present a triable issue as to a hostile work environment where the “derisive environment in the workshop was universal” — he was not “singled out” for abuse — and he failed to show the derisive atmosphere “stemmed from racial animus”); cf. O’Shea, 185 F.3d at 1098, 1102 (holding that the “obviously sex and gender-motivated conduct” by a supervisor — including, inter alia, his stated belief “that women in general were incompetent, stupid and scatterbrained” — “so poisoned the entire body of conduct toward Plaintiff that a jury reasonably could view all of the allegedly harassing conduct ... as the product of sex and gender hostility”).

holding that plaintiff failed to present a triable issue as to a hostile work environment where the "derisive environment in the workshop was universal" -- he was not "singled out" for abuse -- and he failed to show the derisive atmosphere "stemmed from racial animus"


Context: This is particularly so as to plaintiffs' claims for blacklisting which I previously found derive from a "common nucleus" of facts since the blacklisting allegedly occurred in retaliation for the action to recover wages. Judicial economy, deference to plaintiffs' choice of forum and the avoidance of unnecessary, duplicative and expensive litigation all support retention of jurisdiction in a single forum.

See Pereira, 764 F.2d at 690 (deference to plaintiff’s choice of forum); Dutta, 528 F.2d at 1261 (because plaintiff asserted valid wage claim court should retain jurisdiction over personal injury claim); Cf. Kanagaratnam v. Vialogro Compania Naviera, S.A., 1985 AMC 865, 871, 1984 WL 735 (S.D.N.Y.1984) (court retained wage claims but dismissed personal injury claim based upon absence of American contacts).


Context: Nor is Lee's appeal moot. In Frumento, we noted that "an appeal is not moot even though the appellant has been released from custody or has served his sentence if he has taken all possible steps to have the order of confinement promptly reviewed prior to his release."

"[A] state may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing."

Id. at 537, citing Sibron v. State of New York, 392 U.S. 40, 53, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“[A] state may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing.”); cf. Fay v. Noia, 372 U.S. 391, 424, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (“[Conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.”).

"[Conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review."


Context: Nor does the later introduction of the tape in evidence at the hearing transform the preparation of the tape into a prosecu-torial activity.

"The prosecutorial nature of an act does not spread backwards like an inkblot, immunizing everything it touches."

See Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir.1995) (“The prosecutorial nature of an act does not spread backwards like an inkblot, immunizing everything it touches.”); see also Buckley, 509 U.S. at 275-76, 113 S.Ct. 2606 (“That the prosecutors later called a grand jury to consider the evidence this work produced does not retroactively transform that work from administrative into the prosecutorial.”).

"That the prosecutors later called a grand jury to consider the evidence this work produced does not retroactively transform that work from administrative into the prosecutorial."


Context: Mocek argues that forum analysis and time, place; and man ner analysis do not apply in determining whether his conduct was "protected speech" for purposes of a retaliation claim, such that any government conduct intended to stop activity that is sometimes protected by the First Amendment is unconstitutional retaliation. But most other circuits have applied forum and time, place, and manner analyses to retaliation claims.

holding, for purposes of a retaliation claim, "[Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them," including "[t]he circumstances of some traffic stops"

See Gericke, 753 F.3d at 7-8 (holding, for purposes of a retaliation claim, “[Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them,” including “[t]he circumstances of some traffic stops”); Dean v. Byerley, 354 F.3d 540, 552 (6th Cir.2004) (holding, for purposes of a retaliation claim, “[b]ecause Michigan has not passed an applicable time, place, or manner restriction, Dean had a constitutionally protected right to engage in peaceful targeted picketing in front of Byerley’s residence” (emphasis added)); Abrams v. Walker, 307 F.3d 650, 654 (7th Cir.2002) (rejecting argument that sometimes-protected speech can always support a retaliation claim), abrogated on other grounds by Spiegla v. Hull, 371 F.3d 928 (7th Cir.2004); Blomquist v. Town of Marana, 501 Fed.Appx. 657, 659 (9th Cir.2012) (holding plaintiffs could not maintain a retaliation claim where they “lacked a First Amendment right to picket or otherwise occupy” a nonpublic forum); Olasz v. Welsh, 301 Fed.Appx. 142, 146 (3d Cir.2008) (holding, for purposes of a retaliation claim, “restricting ... disruptive behavior constitutes the type of time, place, and manner regulation that survives even the most stringent scrutiny for a public forum”); cf. Carreon v. Ill. Dep’t of Human Servs., 395 F.3d 786, 796-97 (7th Cir.2005) (rejecting, in an employment-termination context, a retaliation claim premised on freedom of association where restrictions on association were reasonable in a nonpublic forum).


holding, for purposes of a retaliation claim, "[b]ecause Michigan has not passed an applicable time, place, or manner restriction, Dean had a constitutionally protected right to engage in peaceful targeted picketing in front of Byerley's residence" (emphasis added


rejecting argument that sometimes-protected speech can always support a retaliation claim


holding plaintiffs could not maintain a retaliation claim where they "lacked a First Amendment right to picket or otherwise occupy" a nonpublic forum


holding, for purposes of a retaliation claim, "restricting ... disruptive behavior constitutes the type of time, place, and manner regulation that survives even the most stringent scrutiny for a public forum"


Context: Whatever the perceived inadequacy of the district court's recitation of its reasons, the district court's sentencing decision was amply supported by evidence the government proffered at sentencing -- evidence that was neither contested nor countered by the defense. The defendant thus received a sentence merited by the evidence, and we cannot say -- as we would have to in order to find plain error -- that, but for the claimed error, the defendant's sentence would have been any different.

stating defendant can meet his burden on prong three "by demonstrating a reasonable probability that had the district court ap plied the [proper] sentencing framework, he would have received a lesser sentence"

See id. at 1298 (defendant could not meet the third prong of plain error in his challenge to the adequacy of findings under Rule 32(i)(3)(B) given the presence of sufficient evidence to support the enhancement); United States v. Gore, 298 F.3d 322, 325 (5th Cir.2002) (“If the defendant does not object and there is evidence to sustain the enhancement, the error [under § 3553’s open court provision] is not reversible under the plain error standard.”); United States v. Orlandez-Gamboa, 185 Fed.Appx. 86, 87 n. 1 (2d Cir.2006) (no plain error in failure to make adequate findings in support of enhancement under § 3B1.1 because “there is evidence to sustain the enhancement”); see also United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir.2005) (stating defendant can meet his burden on prong three “by demonstrating a reasonable probability that had the district court ap plied the [proper] sentencing framework, he would have received a lesser sentence”).

"If the defendant does not object and there is evidence to sustain the enhancement, the error [under SS 3553's open court provision] is not reversible under the plain error standard."


no plain error in failure to make adequate findings in support of enhancement under SS 3B1.1 because "there is evidence to sustain the enhancement"


Context: The formulation of the Speech or Debate privilege implies that the judiciary cannot avoid determining what are the outer limits of # legitimate legislative process.

See In re Possible Violations of 18 U.S.C. §§ 201, 371, 491 F.Supp. 211 (D.D.C.1980) (ordering in camera hearing to determine whether subpoenaed documents were covered by the legislative privilege at which Government was allowed to be present and to contest the claims of privilege); Benford v. Am. Broad. Cos., 98 F.R.D. 42, 45 & n.2 (D.Md.1983) (requiring detailed index of potentially privileged documents under Speech or Debate Clause to be submitted for judicial review and suggesting the need for in camera review of certain relevant documents to determine whether the congressional defendants have accurately characterized their content); cf. Nixon, 418 U.S. at 706, 94 S.Ct. 3090 (Absent a claim of need to protect [national security], we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide). The district court in Benford refused to blindly accept the[ ] conclusory and seemingly self-serving suggestion that [the House Select Committee on Aging] will screen what is and what is not protected. 98 F.R.D. at 45. Review of allegedly privileged material by the Court is allowed and appropriate under the Constitution.


requiring detailed index of potentially privileged documents under Speech or Debate Clause to be submitted for judicial review and suggesting the need for in camera review of certain relevant documents to determine whether the congressional defendants have accurately characterized their content


Context: The first canon is the strong presumption against implied repeals.

"[Cjourts must recognize that Congress does not legislate in a vacuum" and "take into account the tacit assumptions that underlie a legislative enactment, including ... preexisting statutory provisions."

Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); see also Passamaquoddy, 75 F.3d at 789 (“[Cjourts must recognize that Congress does not legislate in a vacuum” and “take into account the tacit assumptions that underlie a legislative enactment, including ... preexisting statutory provisions.”).

"We are unequivocally committed to 'the bedrock principle that implied repeals of federal statutes are disfavored.' " (quoting Narragansett, 19 F.3d at 703

See Passamaquoddy, 75 F.3d at 790 (“We are unequivocally committed to ‘the bedrock principle that implied repeals of federal statutes are disfavored.’ ” (quoting Narragansett, 19 F.3d at 703)). That canon is based on the well-established assumption that “Congress is aware of existing law when it passes legislation.”


Context: T41 Furthermore, the prosecutor made the comment only at the outset of his closing argument and did not repeat it at any other point during the trial, including the rebuttal closing.

See Munsey, 232 P.3d at 124 (where there are no other allegations of prosecutorial misconduct during closing, it is unlikely that isolated portion of closing argument substantially influenced the verdict); cf. Harris v. People, 888 P.2d 259, 268 (Colo.1995) (reversal required where improper comments repeated over the course of the entire closing argument).


Context: The district court did not abuse its discretion by allowing the parties to file additional motions for summary judgment after the applicable law changed.

See Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir.2002) (“The district court has considerable latitude in managing the parties’ motion practice[.]”); see also Knox v. Sw. Airlines, 124 F.3d 1103, 1105-06 (9th Cir.1997) (rejecting contention that successive motions for summary judgment were impermissible).

"The district court has considerable latitude in managing the parties' motion practice[.]"


Context: Most states to have confronted the question have upheld the validity of parole agreements in which the parolee consents in advance to warrantless searches.

"[W]e have held that a parolee's advance consent is valid because the parolee remains in the custody of the penal institution from which he is released .... "

See McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529, 534-35 (2001) (“[W]e have held that a parolee’s advance consent is valid because the parolee remains in the custody of the penal institution from which he is released .... ”); State v. Devore, 134 Idaho 344, 2 P.3d 153, 156 (Idaho Ct.App.2000) (“The ‘reasonable grounds’ requirement for warrantless searches by probation or parole officers does not apply when the subject of the search has entered into a probation or parole agreement that includes a consent to warrantless searches.”); People v. Wilson, 228 Ill.2d 35, 319 Ill.Dec. 353, 885 N.E.2d 1033, 1042 (2008) (upholding an agreement where the parolee consents in advance to warrantless searches); Sullivan v. Bunting, 133 Ohio St.3d 81, 975 N.E.2d 999, 1001 (2012) (per curiam) (upholding the search of a parolee’s email based on his prior consent to warrantless searches); see also Roman v. State, 570 P.2d 1235, 1241-42 (Alaska 1977) (“Depending on the nature of the crime involved, a condition of release granting authorities the right to search premises and persons at reasonable times could stand muster under both the Alaska and federal Constitutions.”); William E. Ringel, Searches and Seizures, Arrests and Confessions § 17:8 (2012) (“In most jurisdictions, one of the conditions in [parole] agreements is that the parolee or probationer consents to the search of himself, his possessions, and his residence by a parole officer, and a majority of courts give effect to such provisions.”).

"Depending on the nature of the crime involved, a condition of release granting authorities the right to search premises and persons at reasonable times could stand muster under both the Alaska and federal Constitutions."


"The 'reasonable grounds' requirement for warrantless searches by probation or parole officers does not apply when the subject of the search has entered into a probation or parole agreement that includes a consent to warrantless searches."


upholding an agreement where the parolee consents in advance to warrantless searches


Context: . There is no question that Texas law governs whether the State Court Claims are derivative or direct claims.

"State law determines whether a shareholder may maintain a nonderivative action."

Crocker v. Federal Deposit Ins. Corp., 826 F.2d 347, 349 (5th Cir.1987) (“State law determines whether a shareholder may maintain a nonderivative action.”); see also In re Blanton, 105 B.R. 811, 821 (Bankr.W.D.Tex.1989) (holding that where the entity was incorporated in Texas, and the shareholders reside in Texas and the bankruptcy case is pending in Texas, Texas law — not Arizona law — should be applied).

holding that where the entity was incorporated in Texas, and the shareholders reside in Texas and the bankruptcy case is pending in Texas, Texas law -- not Arizona law -- should be applied


Context: Under this section, registration is a jurisdictional prerequisite to the initiation of an infringement action in federal court. E.g., M.G.B.

Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir.1990); Dodd v. Fort Smith Special School Dist. No. 100, 666 F.Supp. 1278, 1282 (W.D.Ark.1987); see International Trade Management, Inc. v. United States, 553 F.Supp. 402, 403 (Cl.Ct. 1982) (“A suit for copyright infringement is conditioned on obtaining (or being denied) a certificate of registration”); cf. Haan Crafts Corp. Craft Masters, Inc., 683 F.Supp. 1234, 1242 (N.D.Ind.1988) (accepting jurisdiction over infringement claim where plaintiff amended complaint to reference certificates of registration obtained after suit was filed).

"A suit for copyright infringement is conditioned on obtaining (or being denied) a certificate of registration"


Context: . The parties agree that statutes of limitations are classified as procedural rather than substantive.

See Horvath v. Davidson, 148 Ind.App. 203, 209, 264 N.E.2d 328, 332 (1970) (“Without exception the statute of limitations has been considered procedural in Indiana.''); see also Bailey v. Skipperliner Indus., Inc., 278 F.Supp.2d 945, 953 (N.D.Ind.2003) (observing that in breach of contract action statutes of limitations are treated as procedural).

"Without exception the statute of limitations has been considered procedural in Indiana.''


Context: For the larceny to be "from the person," it is sufficient that property is taken that was in the possession and immediate presence of the victim. Michigan case law since the opinion in Gould makes clear that the property must be in the possession or immediate presence of the victim.

See also People v. Eberhardt, 205 Mich.App. 587, 518 N.W.2d 511, 513 (1994) (recognizing that larceny from the person is in the robbery crime-group category for purposes of sentencing in Michigan).

holding that taking money from a victim offering the money out of fear of violence can be larceny from the person because there is no consent and the money was "removed from the actual possession or custody of the person or his immediate pres ence, Viz., the area within his control"

See, e.g., People v. Wallace, 173 Mich.App. 420, 434 N.W.2d 422, 426 (1988) (quoting Criminal Jury Instruction 23:2:01 which says “the property must have been taken from the person of the complainant,” and defines “‘[f]rom the person’ [to] mean[] that the property must have been taken from the body of the complainant or from within his [or her] immediate area of control or immediate presence”); People v. Smith, 68 Mich.App. 551, 243 N.W.2d 681, 683 (1976) (holding that taking money from a victim offering the money out of fear of violence can be larceny from the person because there is no consent and the money was “removed from the actual possession or custody of the person or his immediate pres ence, Viz., the area within his control”); People v. Johnson, 25 Mich.App. 258, 181 N.W.2d 425, 428 (1970) (finding no larceny from the person if the victim is in another room).


finding no larceny from the person if the victim is in another room


Context: . The Government argues that even if the execution of the search warrant impermissi-bly intruded on legislative activity, the careful procedures established by the Government here are sufficient to protect Congressman Jefferson from suffering any prejudice. The Court finds that a harmless-error analysis is not appropriate in the context of the Speech or Debate privilege.

See United States v. Swindall, 971 F.2d 1531, 1548 n. 21 (11th Cir.1992) (a harmless-error analysis will not excuse a violation [of the Speech or Debate Clause]); cf. Brown & Williamson, 62 F.3d at 419 (The degree of disruption [of the legislative process] is immaterial .... any probing of legislative acts is sufficient to trigger the immunity.) (emphasis in original). Here, there was no intrusion into legitimate legislative activity, as the search warrant sought only non-privileged material, and the Congressman was not compelled to provide any testimony as to his legitimate legislative activity.


Context: Not only do the above-cited eases show that the jury award of $1 million for pain and suffering in this case was not excessive as a whole, but most of that award (70%) was for Mr. Carmody's past pain and suffering, which was unquestionably severe, and which ProNav barely challenges. Further, Mr. Carmody's injuries were not of the ordinary kind, and the seriousness of his illness, which nearly resulted in his death, makes this case more compelling than the garden-variety case involving an injury aboard ship.

"[T]his case is set apart by the magnitude of the physical injuries suffered by the plaintiff."

See, e.g., Shea, 925 F.Supp. at 1025 (“[T]his case is set apart by the magnitude of the physical injuries suffered by the plaintiff.”); see also Marcoux, 290 F.Supp.2d at 478 (although the jury verdict for pain and suffering was on the “high end of the spectrum ..., given the severity and debilitating nature of plaintiffs ... injuries, the award [was] solidly within that spectrum and fairly reflected] the nature and extent of the injuries sustained, the permanence and extent of the pain caused by those injuries, [and] the loss of enjoyment of life....”). On the facts and circumstances of this case, the jury’s award for pain and suffering does not shock the conscience, and, therefore, the Court will not disturb that award.

although the jury verdict for pain and suffering was on the "high end of the spectrum ..., given the severity and debilitating nature of plaintiffs ... injuries, the award [was] solidly within that spectrum and fairly reflected] the nature and extent of the injuries sustained, the permanence and extent of the pain caused by those injuries, [and] the loss of enjoyment of life...."


Context: On the one hand, we might consider disqualification to be a kind of additional punishment and then allow a judge (perhaps at the original trial) to find the necessary factual predicate by a preponderance of the evidence.

applying "clear, unequivocal and convincing evidence" standard where factual finding "will result in a much longer and harsher sentence"

Cf. McMillan v. Pennsylvania, — U.S.-, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (factual finding requiring imposition of mandatory minimum sentence may be made by trial judge on a preponderance of the evidence); but cf. United States v. Fatico, 458 F.Supp. 388, 408 (E.D.N.Y.1978) (applying “clear, unequivocal and convincing evidence” standard where factual finding “will result in a much longer and harsher sentence”), aff'd, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980).


Context: In reviewing the district court's judgment of this issue, we must refrain from second-guessing the district court's assessment, unless we find that the court abused its discretion.

"[J]udgment calls and issues that demand the balancing of conflicting factors are reviewed deferentially."

See George Weston Bakeries, 570 F.3d at 8 (“[W]e afford considerable deference to the trial court’s balancing of equities.”); see also Wine & Spirits Retailers, 418 F.3d at 46 (“[J]udgment calls and issues that demand the balancing of conflicting factors are reviewed deferentially.”).

"[W]e afford considerable deference to the trial court's balancing of equities."


Context: However, it has been well-established that Bivens is not applicable for the purposes of asserting a constitutional claim against a private corporate entity. See Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (foreclosing the extension of a Bivens remedy to the context of employer liability); see also Stoutt v. Banco Popular de P.R., 320 F.3d 26, 33 (1st Cir.2003) (holding that no Bivens claim existed against a defendant bank that supplied information required by law to the Federal Bureau of Investigations).


Context: (Compl. P 33.) Indeed, Plaintiffs rely on this fact to counter Defendants' argument for dismissal under Morrison. (Doc. No. 175, at 4.) Despite this clear definition, Plaintiffs urge the Court to look to the subsection heading of the statute, which refers to the "Exclusive Federal regulation of nationally traded securities." 15 U.S.C. SS 77r(b)(l). Plaintiffs claim the inclusion of "trading" in the heading implies a trading requirement for qualification as a "covered security," even though the definition portion of the statute, which follows, makes no reference to trading. (Doc. No. 175, at 10.) Plaintiffs' reliance on the heading of the' SLUSA subsection is misplaced. See, e.g., Penn.

finding reference to a subtitle "unnecessary and inappropriate" where there was no ambiguity in the subsection

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (“[T]he title of a statute ... cannot limit the plain meaning of the text” and is “of use only when [it] shed[s] light on some ambiguous word or phrase.”); see also United States v. Hoang, 636 F.3d 677, 681 (5th Cir.2011) (finding reference to a subtitle “unnecessary and inappropriate” where there was no ambiguity in the subsection).

"[T]he title of a statute ... cannot limit the plain meaning of the text" and is "of use only when [it] shed[s] light on some ambiguous word or phrase."


Context: (Pl. Dep. 194:6-197:10.) A reasonable jury could find that no force was warranted, and that forcibly removing Plaintiff from her car and handcuffing her was excessive force.

See, e.g., Robison, 821 F.2d at 923-24 (holding that forcibly removing nonviolent plaintiff from her car could be excessive force); Lemmo v. City of New York, No. 08-CV-2641, 2011 WL 4592785, at *8 (E.D.N.Y. Sept. 30, 2011) (holding that tightening “handcuffs ... to their maximum, for apparently gratuitous reasons” along with kneeing the plaintiff in his back could be excessive force); Hamilton v. City of New York, No. 07-CV-3633, 2009 WL 2226105, at *9 (E.D.N.Y. July 23, 2009) (holding that “purposely tripp[ing] [the plaintiff] while he was being escorted, in handcuffs, ... causing him to fall to the floor and cut his face” could be excessive force); Davenport v. Cnty. of Suffolk, No. 99-CV-3088, 2007 WL 608125, at *11 (E.D.N.Y Feb. 23, 2007) (holding that an officer intentionally hitting the plaintiffs head into the top of the police car as the plaintiff was being placed in the police car could be excessive force); see also Maxwell v. City of New York, 380 F.3d 106, 109-10 (2d Cir.) (reversing the district court’s entry of summary judgment against a plaintiff who had suffered only “minor scrapes, bumps or bruises [that] potentially could occur, often unintended, during any arrest,” pain, and post-concussive syndrome, as a result of police officer allegedly shoving her, causing her to hit her head) supplemented, 108 Fed.Appx. 10 (2d Cir.2004).

reversing the district court's entry of summary judgment against a plaintiff who had suffered only "minor scrapes, bumps or bruises [that] potentially could occur, often unintended, during any arrest," pain, and post-concussive syndrome, as a result of police officer allegedly shoving her, causing her to hit her head


holding that tightening "handcuffs ... to their maximum, for apparently gratuitous reasons" along with kneeing the plaintiff in his back could be excessive force


holding that "purposely tripp[ing] [the plaintiff] while he was being escorted, in handcuffs, ... causing him to fall to the floor and cut his face" could be excessive force


holding that an officer intentionally hitting the plaintiffs head into the top of the police car as the plaintiff was being placed in the police car could be excessive force