Context: This means that the defendant must have "specifically and deliberately undertaken the duty"; and that the party, on whose behalf the duty is being undertaken, must "relinquish control of the obligation".

"the party who adopts the duty must be acting 'in lieu of the original party"

Griffin, 948 N.E.2d at 359-60 (“the party who adopts the duty must be acting ‘in lieu of the original party”); Marks v. N. Ind. Pub. Serv. Co., 954 N.E.2d 948, 955 (Ind.App.2011); Bd. of Comm’rs of Monroe Cty v. Hatton, 427 N.E,2d 696, 699-700 (Ind.App.1981) (“precisely what has been undertaken must be determined because liability is no broader than the actual duty assumed”).

noting that the issue of control, specifically whether the defendant exercised "control or active supervision of safety at the job site", is determinative in cases involving a common law duty of safety at a workplace

See also Peterson v. Ponda, 893 N.E.2d 1100, 1106 (Ind.App.2008) (noting that the issue of control, specifically whether the defendant exercised “control or active supervision of safety at the job site”, is determinative in cases involving a common law duty of safety at a workplace).


Context: Osterhaus concludes most, if not all, of these matters could not have been discovered through reasonable inspection.

buyer could not reasonably rely upon representations of seller when truth or falsity of representation would have been revealed by an inspection of the property, unless fraud "prevented the making of a full, fair, and complete examination of the property"

Cf. Alires, 277 Kan. at 411 (buyer could not reasonably rely upon representations of seller when truth or falsity of representation would have been revealed by an inspection of the property, unless fraud “prevented the making of a full, fair, and complete examination of the property”).

fraudulent nondisclosure, or fraud by silence, depends in large part on the buyer's inability to discover a defect with a reasonable inspection

See Brennan, 37 Kan. App. 2d at 379 (fraudulent nondisclosure, or fraud by silence, depends in large part on the buyer’s inability to discover a defect with a reasonable inspection).


Context: . Although the defendant briefly suggests that the January 2004 e-mail does not qualify as protected activity, Def.'s Mot. at 25, the email contains allegations of discrimination against the African-American members of the Task Force in receiving foreign assignments, and thus likely does constitute protected activity.

See Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006) (holding that "[n]ot every complaint garners its author protection under Title VII ... the complaint must in some way allege unlawful discrimination, not just frustrated ambition”) (internal citations omitted); see also Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990) (finding informal protests of discriminatory practices, including complaints to management, to be protected activity).

holding that "[n]ot every complaint garners its author protection under Title VII ... the complaint must in some way allege unlawful discrimination, not just frustrated ambition"


Context: The district court found that all but one of these claims were procedurally defaulted because Jones failed to either preserve them at trial or present them in his appeal from the denial of his state motion for post-conviction relief. All of Jones's additional points of error were also deemed procedurally defaulted.

noting that Jones abandoned all his claims except ineffective assistance of trial counsel for failure "to present mitigating character evidence at the penalty phase"

See Jones, 767 S.W.2d at 43 (noting that Jones abandoned all his claims except ineffective assistance of trial counsel for failure “to present mitigating character evidence at the penalty phase”); see also Gilmore v. Armon-trout, 861 F.2d 1061, 1065-66 (8th Cir.1988) (procedural bar under former Missouri Rule 27.26), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989); Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 674, 130 L.Ed.2d 606 (1994) (same procedural bar arises for failure to appeal under current Missouri Rule 29.15).


Context: Hackworth appears to suggest that she was blinded by bright lights of the Mini-Mart, and thus failed to see the puddle she claims existed. The court finds, however, that given Hack-worth's knowledge of the rainy conditions, the close attention Hackworth says she was paying to the floor, and the fact that a three-foot wide puddle could not be entirely obstructed by overhead lights, the Government had no duty to warn. This finding comports with the great majority of Federal Tort Claims Act cases involving slip and fall accidents on wet floors.

See, e.g., Holland v. United States, 918 F.Supp. 87, 89 (S.D.N.Y.1996) (“The cases essentially are uniform which have considered the United States’ liability under the FTCA in customers’ slip and fall cases arising from injuries suffered when slipping on wet post office floors during or after a rainstorm. Even in the case where no sign was posted, no mats or runners were provided, and recommended mopping procedures were not followed, the courts have repeatedly found that the Government did not breach a duty to postal customers because a proprietor’s duty to warn does not extend to obvious dangers.”); see also Gunter v. United States, 10 F.Supp.2d 534 (M.D.N.C.1998) (rainwater that accumulated on post office floor was open and obvious hazard and patron injured in slip and fall could not recover under FTCA); Faircloth v. United States, 837 F.Supp. 123, 128-30 (E.D.N.C.1993) (“Everybody knows that the hallways ... during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be.

"The cases essentially are uniform which have considered the United States' liability under the FTCA in customers' slip and fall cases arising from injuries suffered when slipping on wet post office floors during or after a rainstorm. Even in the case where no sign was posted, no mats or runners were provided, and recommended mopping procedures were not followed, the courts have repeatedly found that the Government did not breach a duty to postal customers because a proprietor's duty to warn does not extend to obvious dangers."


Context: In precisely the same manner, enjoining the commencement of other actions against the Petitioners, Israel Re or its property will aid the Israeli court in achieving equality for creditors. The guiding premise of the Bankruptcy Code is the equality of distribution of assets among creditors.

"the road to equity is not a race course for the swiftest"

Cunard, 773 F.2d at 459; Israel-British Bank (London), Ltd. v. Fed. Deposit Ins. Corp., 536 F.2d 509, 513 (2d Cir.) (“the road to equity is not a race course for the swiftest”), cert. denied, 429 U.S. 978, 97 S.Ct. 486, 50 L.Ed.2d 585 (1976); see also Banque de Financement, S.A. v. First National Bank, 568 F.2d 911 (2d Cir. 1977) (mad scramble to the United States courts for immediate attachments was in con travention of the established goal of United States and international bankruptcy law to preserve assets for equitable distribution for all creditors wherever located); In re Culmer, 25 B.R. 621, 629 (Bankr.S.D.N.Y.1982) (court “not obliged to protect the positions of fast-moving American and foreign attachment creditors over the policy favoring uniform administration in a foreign court”).


court "not obliged to protect the positions of fast-moving American and foreign attachment creditors over the policy favoring uniform administration in a foreign court"


Context: The administrative search exception has been used to permit legislatively authorized warrantless inspections of commercial property in cases in which the government interest in conducting the search would be frustrated by requiring prior notice. Cases applying the administrative search exception generally involve statutory schemes aimed at ensuring safety or other "substantial" government interests.

See, e.g., New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2646-47, 96 L.Ed.2d 601 (1987) (upholding warrantless inspection of automobile junkyards where state had substantial interest in reducing growing problem of motor vehicle theft associated with this industry); Donovan v. Dewey, 452 U.S. at 603, 101 S.Ct. at 2540 (permitting warrantless safety inspections of mines); United States v. Biswell, 406 U.S. 311, 316-17, 92 S.Ct. 1593, 1596-97, 32 L.Ed.2d 87 (1972) (approving warrantless searches pursuant to gun control legislation); see also Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S.Ct. 774, 776-77, 25 L.Ed.2d 60 (1970) (approving congressional scheme of war-rantless searches and seizures in liquor industry in light of long history of regulation of this industry).


Context: Because the Regulation clearly applies to Mclsaac's conduct, he cannot challenge it for facial vagueness.

police officer may not challenge vagueness of regulation prohibiting conduct "unbecoming an officer and a gentlemen" when his own conduct properly could have been subjected to departmental disciplinary action even in the absence of any such regulation

See also Allen v. City of Greensboro, 452 F.2d 489, 491 (4th Cir. 1971) (police officer may not challenge vagueness of regulation prohibiting conduct “unbecoming an officer and a gentlemen” when his own conduct properly could have been subjected to departmental disciplinary action even in the absence of any such regulation).

"Since appellee could have had no reasonable doubt that his public statements . . . were both 'unbecoming an officer and a gentlemen,' and 'to the prejudice of good order and discipline in the armed forces,' . . . his challenge to [those terms] as unconstitutionally vague . . . must fail"

Parker v. Levy, 417 U.S. 733, 757 (1974) (“Since appellee could have had no reasonable doubt that his public statements . . . were both ‘unbecoming an officer and a gentlemen,’ and ‘to the prejudice of good order and discipline in the armed forces,’ . . . his challenge to [those terms] as unconstitutionally vague . . . must fail”).


Context: . Even if the disclaimer was not tainted, Nikzad contends that he nevertheless retained a privacy interest in the briefcase's contents because the briefcase itself was located within a closed container under his ownership and control.

But see United States v. Veatch, 647 F.2d at 999 (defendant abandoned his privacy interest by disclaiming ownership of a wallet found in passenger section of his automobile).

despite defendant's disclaimer of ownership, he retained a privacy interest in journals found inside his locked safe

See United States v. Issacs, 708 F.2d 1365, 1368 (9th Cir.), cert. denied, — U.S.-, 104 S.Ct. 165, 78 L.Ed.2d 150 (1983) (despite defendant’s disclaimer of ownership, he retained a privacy interest in journals found inside his locked safe); United States v. Portillo, 633 F.2d 1313, 1316-17 & n. 1 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981) (despite disclaimer of ownership, defendant maintained a privacy interest in the contents of two paper bags found in the locked trunk of a car under his control).


despite disclaimer of ownership, defendant maintained a privacy interest in the contents of two paper bags found in the locked trunk of a car under his control


Context: The court reasoned that the victim's loss stemmed from the passing of the counterfeit bills and not from the crime of possession for which the defendant stood convicted: "[T]he mere possession and concealment of the bogus money by itself did not harm the [victim]. Therefore, Burger's offense did not 'cause' the loss for which he now is required to make restitution."

finding it improper to order restitution of the costs of investigating the defendant's case

Id. at 811; see also United States v. Vaughn, 636 F.2d 921, 923 (4th Cir.1980) (finding it improper to order restitution of the costs of investigating the defendant’s case); United States v. Jimenez, 600 F.2d 1172, 1174-75 (5th Cir.) (rejecting order of restitution for the cost of court-appointed defense counsel), cert. denied, 444 U.S. 903, 100 S.Ct. 216, 62 L.Ed.2d 140 (1979).

upholding the assessment of fees for court-appointed counsel under section 3651 as a "fine"

But see United States v. Santarpio, 560 F.2d 448, 455 (1st Cir.) (upholding the assessment of fees for court-appointed counsel under section 3651 as a “fine”), cert. denied, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977).


rejecting order of restitution for the cost of court-appointed defense counsel


Context: This conclusion is supported by an examination of Plaintiffs brief and expert reports, which do not allege that the fire was caused by any defect in the electricity, but rather by PSE & G's failure to promptly discontinue electrical service to the building. Because this conduct relates to the maintenance of the electrical service, and not a defect inherent in the product, it does not qualify as "harm caused by a product" and is therefore not cognizable under the NJPLA.

See Potwora v. Grip, 319 N.J.Super. 386, 725 A.2d 697, 704 (1999)(concluding that when an injury does not result from a defective product, but rather from a service, the NJPLA is inapplicable because the plaintiffs claim is “not ‘for harm caused by a product’ within the meaning of the Act”); see also Ridenour, 707 A.2d at 1097 (holding that claims of improper maintenance and installation are governed by negligence law, not the NJPLA).

concluding that when an injury does not result from a defective product, but rather from a service, the NJPLA is inapplicable because the plaintiffs claim is "not 'for harm caused by a product' within the meaning of the Act"


Context: ' By contrast, courts have found that where a plaintiff "could fully preserve in state court" as a defense the claims asserted in federal court, the second exception to the Anti-Injunction Act is not applicable because the "pendency of the state court proceedings would not meaningfully threaten th[e] Court's jurisdiction".

Sierra v. City of New York, 528 F.Supp.2d 465, 468 (S.D.N.Y.2008); Bosch v. Lamattina, No. 08-CV-238, 2008 WL 4820247, at *7 (E.D.N.Y. Nov. 4, 2008) (holding that the Anti-Injunction Act barred the court from enjoining eviction proceedings in the Suffolk County District Court, Fifth District because the court had jurisdiction to hear the plaintiffs claims under the Real Estate Settlement Procedures Act); Armstrong v. Real Estate Intern., Ltd., No. 05-CV-5883, 2006 WL 354983, at *4 (E.D.N.Y. Feb. 14, 2006) (holding that the Anti-Injunction Act barred the court from enjoining eviction proceedings because “claims for rescission under TILA can be brought in state court, including as a defense to an eviction claim in Housing Court”); cf. Atl. Coast Line, 398 U.S. at 295, 90 S.Ct. at 1747 (“the state and federal courts had concurrent jurisdiction in this [labor dispute] and neither court was free to prevent either party from simultaneously pursuing claims in both courts”).

"the state and federal courts had concurrent jurisdiction in this [labor dispute] and neither court was free to prevent either party from simultaneously pursuing claims in both courts"


holding that the Anti-Injunction Act barred the court from enjoining eviction proceedings because "claims for rescission under TILA can be brought in state court, including as a defense to an eviction claim in Housing Court"


Context: How can this court force the grocery store to sell the vendor's product when it cannot, and will not, force the customers to patronize the store? The business decision should, and does, rest squarely with the one who bears the risk of the decision.

noting that "it is not for the courts or juries to second-guess" certain business decisions

See Smithy Braedon Co. v. Hadid, 825 F.2d 787, 790 (4th Cir.1987) (quoting Justice Holmes regarding freedom of contract: “I think that at least it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear.”); Richland Wholesale Liquors v. Glenmore Distilleries, Co., 818 F.2d 312, 317 (4th Cir.1987) (noting that “it is not for the courts or juries to second-guess” certain business decisions); cf., Glaesner v. Beck/Amley Corp., 790 F.2d 384, 390 (4th Cir.1986) (noting that “South Carolina law has never equated the exercise of reasonable business judgment with an act of tor-tious bad faith.”).

noting that "South Carolina law has never equated the exercise of reasonable business judgment with an act of tor-tious bad faith."


Context: In contrast, for example, subsection (g)(1)(B), 5 U.S.C. SS 552a(g)(l)(B), applies to a specific subsection of the Act that incorporates the Act's system of records requirement.

"The language of paragraph (d)(1) expressly limits its applicability to records contained within a system of records."

See id. (providing civil relief for a “refus[al] to comply with an individual request under subsection (d)(1) of this section”); id. § 552a(d)(l) (addressing a “request by any individual to gain access to his record or to any information pertaining to him which is contained in the system ”) (emphasis added); see Clarkson, 678 F.2d at 1375-76 (“The language of paragraph (d)(1) expressly limits its applicability to records contained within a system of records.”); cf. Dickson, 828 F.2d at 39 (“[T]he statute expressly limits the judicial remedies available under section (g)(1)(A) and (B) to violations of other named sections of the Act.

"[T]he statute expressly limits the judicial remedies available under section (g)(1)(A) and (B


Context: In construing this statute, I am conscious of the fact that the New Hampshire legislature passed the legislation in question as remedial law to protect subcontractors and others who are not by and large particularly skilled or sophisticated in legal language. The law should be construed in terms of its purpose and in terms of the audience of which it was addressed.

bankrupt law is a "prosy thing intended for ready application to the everyday affairs of practical business"

Quality Carpets v. Carter, 133 N.H. 887, 889, 587 A.2d 254 (1991) (“we will construe statutes so as to effectuate their evident purpose”); cf. Gleason v. Thaw, 236 U.S. 558, 560, 35 S.Ct. 287, 288, 59 L.Ed. 717 (1915) (bankrupt law is a “prosy thing intended for ready application to the everyday affairs of practical business”).

"we will construe statutes so as to effectuate their evident purpose"


Context: Br. of Appellant at 8. And we further note that visible bruising itself rises to the level of temporary substantial disfigurement. See State v. Hovig, 149 Wn.

"serious" "red and violet teeth-mark[ ]" bruising that lasted for 7 to 14 days constituted "substantial bodily injury"

App. 1, 5, 13, 202 P.3d 318 (“serious” “red and violet teeth-mark[ ]” bruising that lasted for 7 to 14 days constituted “substantial bodily injury”), review denied, 166 Wn.2d 1020 (2009); see also State v. Ashcraft, 71 Wn. App. 444, 455, 859 P.2d 60 (1993) (bruises that resulted from being hit by a shoe were “ ‘temporary but substantial disfigurement’ ” (quoting RCW 9A.04.110(4)(b))).

bruises that resulted from being hit by a shoe were " 'temporary but substantial disfigurement' " (quoting RCW 9A.04.110(4)(b


Context: On several occasions, this Court has commented that it is improper for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights.

improper to comment on appellant's refusal to consent to search

See United States v. Turner, 39 MJ 259, 262 (CMA 1994) (improper to comment on appellant’s refusal to consent to search); United States v. Toro, 37 MJ 313, 318 (CMA 1993) (improper to comment of exercise of right to remain silent); United States v. Edwards, 35 MJ 351, 355 (CMA 1992) (improper to comment on refusal to plead guilty); United States v. Clifton, 15 MJ 26, 29 (CMA 1983) (improper to argue that accused “asserted his rights” and “fought this every inch of the way”); see also United States v. Causey, 37 MJ 308, 311 (CMA 1993) (improper to urge members to reject innocent ingestion defense in drug cases in order to deter others from making similar claims).


improper to comment of exercise of right to remain silent


improper to argue that accused "asserted his rights" and "fought this every inch of the way"


Context: Inconsistencies in his testimony might be attributed to the tricks memory often plays when a person wishes the past were different from what it was. See U.S.S.G. SS 3C1.1 cmt. 1 ("inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all ... reflect a willful attempt to obstruct justice"). An allegation of perjury is not supported.

arguing that a requirement of "automatic enhancement" upon a district court's finding of perjury undercuts sound policy and a defendant's constitutional right to testify

See U.S.S.G. § 3C1.1 cmt. 3(b) (“committing, suborning, or attempting to suborn perjury” .warrant obstruction "of justice enhancement); United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 1116-17, 122 L.Ed.2d 445 (1993) (clear finding of perjury required for enhancement under U.S.S.C. § 3C1.1 based upon defendant’s alleged false testimony); United States v. Onumonu, 999 F.2d 43, 45-46 (2d Cir.1993) (“A district court may enhance a defendant’s sentence for obstruction of justice if the defendant commits perjury.”); cf. United States v. Shonubi, 895 F.Supp. 460, 526-27 (E.D.N.Y.1995) (arguing that a requirement of “automatic enhancement” upon a district court’s finding of perjury undercuts sound policy and a defendant’s constitutional right to testify), vacated on other grounds, 103 F.3d 1085 (1997).

clear finding of perjury required for enhancement under U.S.S.C. SS 3C1.1 based upon defendant's alleged false testimony


"A district court may enhance a defendant's sentence for obstruction of justice if the defendant commits perjury."


Context: In light of the foregoing, we find Petitioner established that an actual conflict of interest adversely affected her plea coun sel's performance.

Petitioner in PCR proceeding demonstrated actual conflict of interest that adversely affected counsel's trial performance where his counsel, who represented him on the charge of murder, also simultaneously represented Petitioner's father, mother, and brother on related accessory after the fact of murder charges

See Thomas v. State, 346 S.C. 140, 143-45, 551 S.E.2d 254, 256 (2001) (holding Petitioner in PCR proceeding demonstrated actual conflict of interest that affected her counsel’s performance given counsel jointly represented Petitioner and her husband in a case where solicitor offered a plea . bargain that would allow the charge against one spouse to be dismissed if the other spouse would plead guilty to the entire amount of cocaine); see also Staggs v. State, 372 S.C. 549, 551-52, 643 S.E.2d 690, 691-92 (2007) (Petitioner in PCR proceeding demonstrated actual conflict of interest that adversely affected counsel’s trial performance where his counsel, who represented him on the charge of murder, also simultaneously represented Petitioner’s father, mother, and brother on related accessory after the fact of murder charges); see generally Allan L. Schwartz, Circumstances Giving Rise to Conflict of Interest Between or Among Criminal Codefendants Precluding Representation by Same Counsel, 34 A.L.R.3d 470 (1970 & Supp.2008) (outlining cases which consider what particular circumstances give rise to conflict of interest where single counsel represents multiple codefendants).

holding Petitioner in PCR proceeding demonstrated actual conflict of interest that affected her counsel's performance given counsel jointly represented Petitioner and her husband in a case where solicitor offered a plea . bargain that would allow the charge against one spouse to be dismissed if the other spouse would plead guilty to the entire amount of cocaine


Context: Since Prudential, the supreme court has consistently emphasized that mandamus relief is appropriate "to spare the parties and the public the time and money spent on fatally flawed proceedings."

"Requiring eight separate suits here, when only one is proper, would be a clear waste of the resources of the State, the landowners, and the court."

In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex.2014) (orig.proceeding) (concluding that appeal provided an inadequate remedy for the trial court’s refusal to dismiss an injured worker’s claim for declaratory judgment regarding insurance coverage in a personal injury action in “light of the conflict of interest and prejudice that we have noted”); see, e.g., In re State, 355 S.W.3d 611, 615 (Tex.2011) (orig.proceeding) (collecting cases) (“Requiring eight separate suits here, when only one is proper, would be a clear waste of the resources of the State, the landowners, and the court.”); In re McAllen Med. Ctr., 275 S.W.3d 458, 465 (Tex.2008) (orig.proceeding) (“The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial — regardless of the outcome — would defeat the substantive right involved.”).

concluding that appeal provided an inadequate remedy for the trial court's refusal to dismiss an injured worker's claim for declaratory judgment regarding insurance coverage in a personal injury action in "light of the conflict of interest and prejudice that we have noted"


"The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial -- regardless of the outcome -- would defeat the substantive right involved."


Context: Moreover, there is no evidence that the New Jersey Legislature or the Racing Commission intended to create a private right of action. Indeed, the regulations provide for enforcement of the Trainer Responsibility Rule by Racing Commission stewards through the imposition of administrative sanctions (such as fines and suspensions), see N.J.A.C. 13:70-14A.7, 13:70-16.7, suggesting that no other remedy for violation of the Rule should be implied by the Court.

"Our Supreme Court has indicated that a court should be especially hesitant in implying a right to a private cause of action against an entity that is subject to such pervasive regulation by a State agency."

See Castro v. NYT Television, 370 N.J.Super. 282, 293-94, 851 A.2d 88 (App.Div.2004) (“Our Supreme Court has indicated that a court should be especially hesitant in implying a right to a private cause of action against an entity that is subject to such pervasive regulation by a State agency.”) (citing R.J.

Gaydos, 168 N.J. at 280-81, 773 A.2d 1132 (refusing to recognize implied private cause of action against insurance company in light of “comprehensive regulation” 'of insurance industry); Campione v. Adamar of New Jersey, Inc., 155 N.J. 245, 266, 714 A.2d 299 (1998) (“Given the elaborate regulatory scheme” under which casinos operate, the Court “decline[d] to imply a cause of action [against casino] when no such cause of action exist[ed] at common law.”)); see also Jalowiecki, 182 N.J.Super. at 24, 440 A.2d 21 (no private right of action conferred by environmental regulations because Department of Environmental Protection has enforcement authority).


refusing to recognize implied private cause of action against insurance company in light of "comprehensive regulation" 'of insurance industry


"Given the elaborate regulatory scheme" under which casinos operate, the Court "decline[d] to imply a cause of action [against casino] when no such cause of action exist[ed] at common law."


Context: But when, particularly after having mentioned that petitioner had served four months in a treatment-type institution, the district court ordered twelve months to be served consecutively to the term for the marijuana conviction, the most logical -- and we hold proper -- reading is that the judge intended twelve more months of incarceration rather than twelve months as reduced by the four months served several years before. This construction is in accord with that given by all of the other circuit courts that have considered the issue.

"when a convicted defendant receives less than the maximum possible sentence, it is presumed that the trial court has credited defendant with time already served unless the record shows otherwise"

United States v. Kendis, 883 F.2d 209, 211 (3d Cir.1989) (“when a convicted defendant receives less than the maximum possible sentence, it is presumed that the trial court has credited defendant with time already served unless the record shows otherwise”); Davis v. United States, 790 F.2d 716, 718 (8th Cir.1986); Ochoa v. Lennon, 750 F.2d 1345, 1348-49 (5th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 382, 88 L.Ed.2d 335 (1985); Granger v. United States, 688 F.2d 1296, 1297 (9th Cir.1982).

same presumption for pre-sentence custody time when court's sentence is less than the maximum sentence that could have been imposed

Cf. Davis v. Willingham, 415 F.2d 344, 345 (10th Cir.1969) (same presumption for pre-sentence custody time when court’s sentence is less than the maximum sentence that could have been imposed).


Context: . We also note that the stay of a civil forfeiture action where there is a related criminal action often can serve to benefit criminal defendants who are claimants to the property that is the subject of the civil forfeiture action; the stay in the civil case prevents the government from using civil discovery as a means to obtain information to flesh out the criminal case against the claimants.

See Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203 (Fed.Cir.1987) ("The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in the criminal case.”); see also United States v. A Certain Parcel of Land, 781 F.Supp. 830, 834-35 (D.N.H.1992) (granting a stay of discovery in a civil forfeiture action to protect a criminal defendant's Fifth Amendment rights).

"The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in the criminal case."


Context: Defendant is correct that plaintiff did not assert the allegations in counts 4, 8, 10, and 11 before the ABCMR. When a plaintiff fails to raise arguments before the ABCMR, he or she is precluded from raising those arguments for the first time before this court.

See Walls v. United States, 582 F.3d 1358, 1367 (Fed.Cir.2009) (holding that judicial review of decisions of military correction boards is review of the Administrative Record conducted under the Administrative Procedure Act); Metz v. United States, 466 F.3d 991, 999 (Fed.Cir.2006) (holding that plaintiff waived his argument of ineffective counsel in front of the United States Court of Federal Claims because he failed to raise the issue in the first instance with the Air Force Board for the Correction of Military Records); Murakami v. United States, 398 F.3d 1342, 1354 (Fed.Cir.2005) (holding that the Court of Federal Claims correctly concluded that plaintiff waived his argument concerning his father’s constructive travel restriction by not first raising the argument with the administrative agency); Spellissy v. United States, 103 Fed.Cl. 274, 283 (2012) (“When a service member chooses first to petition a military correction board, the Court of Federal Claims’ review is limited to the administrative record.”) (citations omitted); Neutze v. United States, 88 Fed.Cl. 763, 774-75 (2009) (citing Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804, 811 (1979)) (“In evaluating a Board decision, the court may not consider new arguments not raised before the Board.”); see also Barnick v. United States, 80 Fed.Cl. 545, 560 (2008) (“[t]he court will not consider materials that were not presented to a review board”), aff'd, 591 F.3d 1372, 1374 (Fed.Cir.2010) (internal citations omitted).

"[t]he court will not consider materials that were not presented to a review board"


holding that plaintiff waived his argument of ineffective counsel in front of the United States Court of Federal Claims because he failed to raise the issue in the first instance with the Air Force Board for the Correction of Military Records


holding that the Court of Federal Claims correctly concluded that plaintiff waived his argument concerning his father's constructive travel restriction by not first raising the argument with the administrative agency


"When a service member chooses first to petition a military correction board, the Court of Federal Claims' review is limited to the administrative record."


Context: Tr. at 36:19-37:15. Indeed, Uber argued that so long as just one driver opted-out of the 2013 Agreement's arbitration provision, the opt-out right necessarily must have been "real," and thus the arbitration provision (and importantly for this discussion, the delegation clause) was not oppressive or otherwise procedurally unconscionable. And even if Uber had presented such evidence, this Court has significant doubts that the California Supreme Court would vindicate an opt-out clause simply because a few signatories out of thousands were able to (and did) successfully opt-out.

See Gentry, 42 Cal.4th at 471-72, 64 Cal.Rptr.3d 773 (finding that even the presence of a conspicuous opt-out provision did not render an arbitration provision entirely without procedural unconscionability or oppression); see also Duran v. Discover Bank, 2009 WL 1709569, at *5 (Cal.Ct.App.2009) (unpublished) (concluding that Gentry held generally that “even a contract with an opt-out provision can be a contract of adhesion”).

concluding that Gentry held generally that "even a contract with an opt-out provision can be a contract of adhesion"


Context: The fraudulent letter that Kipta used to back her deposits stated that she had -reserves of $800,000.00, an amount more than sufficient to cover the deposits into the First Chicago account. There was nothing to limit the amount of funds available for withdrawal, and the corresponding potential for loss by First Chicago, to less than the total amount deposited into the account.

See United States v. Yusufu, 63 F.3d 505, 513 (7th Cir.1995) (holding that the amount that a defendant made available to himself by way of fraudulent deposits demonstrated the amount of loss intended); see also United States v. Bonanno, 146 F.3d 502, 509-10 (7th Cir.1998) (“[T]he relevant inquiry is not ‘How much would the defendants probably have gotten away with?’, but, rather, ‘How many dollars did the culprits’ scheme put at risk?’.”). Furthermore, it is undisputed that Kipta unsuccessfully attempted to negotiate her final deposit of $45,000.00 into a cashier’s check.

"[T]he relevant inquiry is not 'How much would the defendants probably have gotten away with?', but, rather, 'How many dollars did the culprits' scheme put at risk?'."


Context: While this case is not a criminal action like Rodriguez, the facts here are similar in that Agilysys had a policy that authorized Hall to access the internet for business purposes only. And Plaintiff alleges that Hall exceeded this authorization when he accessed the internet to send Agilysys information to his personal email account.

company policy restricted employee's authorization to access certain information and the employee admitted that he accessed the information

See Rodriguez, 628 F.3d at 1263 (company policy restricted employee’s authorization to access certain information and the employee admitted that he accessed the information); IPC Sys., Inc., 2012 WL 12872028, at *6 (relying on Rodriguez and denying dismissal of CFAA claim because fact questions remained about the purpose for which an employee accessed information and whether the employee exceeded his authorized access); cf. Aquent LLC v. Stapleton, 65 F.Supp.3d 1339, 1346 (M.D. Fla. 2014) (finding company policy that required the employee to keep information confidential and to use information for business purposes only akin to the policy in Rodriguez and concluding that- the plaintiff stated a claim under the CFAA that the employee exceeded her authorization).


relying on Rodriguez and denying dismissal of CFAA claim because fact questions remained about the purpose for which an employee accessed information and whether the employee exceeded his authorized access


Context: The established and well-delineated exception to the requirement for a warrant in circumstances involving recently burglarized premises is discussed in numerous cases which we set forth in ascending chronological order.

where police responded to a radio call reporting breaking and entering at defendant's apartment, found the door to the apartment pried open, and entered to search for a burglar, defendant's motion to suppress a sawed-off shotgun found in plain view, held properly denied

See United States v. Estese, 479 F.2d 1273 (6th Cir.1973) (where police responded to a radio call reporting breaking and entering at defendant’s apartment, found the door to the apartment pried open, and entered to search for a burglar, defendant’s motion to suppress a sawed-off shotgun found in plain view, held properly denied); State ex rel. Zander v. District Court, 180 Mont. 548, 591 P.2d 656 (1979) (where neighbor reported to police that someone was tampering with window of trailer home and said trailer door always locked, and officer found door unlocked, entry “to protect the property” was deemed proper); State v. Jennings, 461 A.2d 361 (R.I.1983) (entry by police lawful where police found apartment door ajar and apartment appeared to have been ransacked); Mann v. Cannon, 731 F.2d 54 (1st Cir.1984) (police could enter unoccupied house after reports of juvenile breaking into house to obtain drugs); United States v. Dart, 747 F.2d 263 (4th Cir.1984) (police properly entered units of self-storage warehouse complex upon finding locks sawed off and doors forced open); People v. Duncan, 42 Cal.3d 91, 227 Cal.Rptr. 654, 657, 720 P.2d 2 (1986) (where neighbor reported burglary and officer who responded saw open window and TV and other valuable property inside, it “would have been poor police work indeed for an officer to fail to investigate under circumstances suggesting a crime in progress.”); Carroll v. State, 335 Md. 723, 646 A.2d 376, 382 (1994) (police can enter where there is “probable cause to believe that burglary is either in progress or recently has been committed,”); United States v. Tibolt, 72 F.3d 965 (1st Cir.1995) (police lawfully entered premises after security alarm had been activated, found unlocked door on rear deck but no response to efforts to communicate with anyone who might be inside); State v. Keating, 288 Mont. 447, 958 P.2d 690, 694 (1998) (upholding lower court’s conclusion that when officer on routine patrol saw individual with known criminal record leave a business at 3:30 a.m., found his explanation suspicious, and door of business open, officer “had every right to enter the building and make sure that it was secure and that no burglary was going on.”).

where neighbors said the suspected burglars departed by car over an hour earlier, police looking in basement window of residence thought to have been burglarized constituted an illegal search despite claim police engaged in lawful "community caretaking function" as (i

But cf. United States v. Erickson, 991 F.2d 529 (9th Cir.1993) (where neighbors said the suspected burglars departed by car over an hour earlier, police looking in basement window of residence thought to have been burglarized constituted an illegal search despite claim police engaged in lawful “community caretaking function” as (i) warrantless search for such reason still requires “exigent circumstances” not present here given passage of time; and (ii) even if police trying to act for householder’s benefit, that person is still entitled to protection of the Fourth Amendment); United, States v. Selberg, 630 F.2d 1292 (8th Cir.1980), (police entry unlawful where neighbor who was asked by defendant to watch his house trailer while defendant was away saw defendant depart and leave front door open and called police when door still open one day later but there was no sign of forced entry.)


police entry unlawful where neighbor who was asked by defendant to watch his house trailer while defendant was away saw defendant depart and leave front door open and called police when door still open one day later but there was no sign of forced entry.


where neighbor reported to police that someone was tampering with window of trailer home and said trailer door always locked, and officer found door unlocked, entry "to protect the property" was deemed proper


entry by police lawful where police found apartment door ajar and apartment appeared to have been ransacked


police could enter unoccupied house after reports of juvenile breaking into house to obtain drugs


police properly entered units of self-storage warehouse complex upon finding locks sawed off and doors forced open


where neighbor reported burglary and officer who responded saw open window and TV and other valuable property inside, it "would have been poor police work indeed for an officer to fail to investigate under circumstances suggesting a crime in progress."


police can enter where there is "probable cause to believe that burglary is either in progress or recently has been committed,"


police lawfully entered premises after security alarm had been activated, found unlocked door on rear deck but no response to efforts to communicate with anyone who might be inside


upholding lower court's conclusion that when officer on routine patrol saw individual with known criminal record leave a business at 3:30 a.m., found his explanation suspicious, and door of business open, officer "had every right to enter the building and make sure that it was secure and that no burglary was going on."


Context: Plaintiff also advances claims for what appear to be medical negligence and employment discrimination by the VA. These claims are separate and distinct from his claims for benefits and are not governed by the VJRA.

See Shinseki, 678 F.3d at 1023 (holding that district courts could consider FTCA claims alleging negligence against VA doctors because it would no't have any effect on benefits); see also generally Slater, 175 Fed.Appx. 300 (recognizing the difference between claims relating to benefits and administrative tort claims).


Context: He stated that he would have objected to the method of selection had he believed improprieties existed. This is not a case where counsel inadvertently failed to object or where counsel lacked knowledge of the facts or law to make the objection.

"[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures."

Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984) (“[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.”); see also Dietz v. Solem, 677 F.2d 672, 675 (8th Cir.1982) (no cause found when defense counsel had available at the time of trial the constitutional basis for an objection but failed to object anyway).


Context: The Third Circuit has rejected the proposition that nexus is required without expressly distinguishing between stateless and foreign vessels.

See United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.1993) (holding that no nexus was required in a determination involving a stateless vessel); see also United States v. Perez Oviedo, 281 F.3d 400, 403 (3d Cir.2002) (noting that Martinez-Hidalgo had expressly rejected our approach and holding that it was not arbitrary or fundamentally unfair to exert jurisdiction when the flag nation consents to application of the MDLEA).


Context: Vargas-Miranda chose to approach the officer and begin a conversation. Under the totality of these circumstances, a reasonable person in Vargas-Miranda's position would have believed he was free to refuse the officer's requests for information and continue on with his travel, and a reasonable officer would believe this defendant was voluntarily cooperating with the officer's requests. Vargas-Miranda was not unlawfully seized when he responded to Deputy Sheriff Brown's request to produce his drivers license and the vehicle information.

holding that "asking defendant for identification" was not a seizure absent evidence that the officer "used language or a tone of voice indicating that compliance might be compelled"

See also, United States v. Granillo, 288 F.3d 1071 (8th Cir.2002)(holding that “asking defendant for identification” was not a seizure absent evidence that the officer “used language or a tone of voice indicating that compliance might be compelled”).

reversing district court's ruling suppressing evidence and holding that the presence of a marked police car and use of police car's computer to check person's name did not transform a consensual encounter into "seizure" where the incident occurred on public sidewalk, detectives made no demand, gave no intimidating commands, displayed no weapons, and used neither threats nor force

U.S. v. Locklin, 943 F.2d 838 (8th Cir.1991)(reversing district court’s ruling suppressing evidence and holding that the presence of a marked police car and use of police car’s computer to check person’s name did not transform a consensual encounter into “seizure” where the incident occurred on public sidewalk, detectives made no demand, gave no intimidating commands, displayed no weapons, and used neither threats nor force).


Context: As to the reasonableness of attorneys' fees and expenses under section 506(b), the ultimate burden of persuasion is on the secured creditor seeking payment.

burden of persuasion on claimant once claim objector meets burden of going forward with evidence sufficient to rebut claimant's proof of claim

Cf. Matter of DeLorean Motor Co., 39 B.R. 157 (Bktcy.E.D.Mich.1984) (burden of persuasion on claimant once claim objector meets burden of going forward with evidence sufficient to rebut claimant’s proof of claim); In re WHET, Inc., 33 B.R. 424 (Bktcy.D.Mass.1983) (burden of proof as opposed to burden of going forward with evidence is always on claimant). Conse quently, Barclays has the burden of demonstrating upon a preponderance of the evidence that the fees and expenses objected to by the Debtor are reasonable.

secured creditor's failure to provide documentation pursuant to former Bankruptcy Rule 219(a

See Matter of Kennedy Mortgage Co., 23 B.R. 466 (Bktcy.D.N.J.1982) (secured creditor’s failure to provide documentation pursuant to former Bankruptcy Rule 219(a) (currently Bankruptcy Rule 2016) held to preclude award of fees); In re H.P. Tool Manufacturing Corp., 12 B.R. 600 (Bktcy.E.D.Pa.1981) (absent evidence of reasonableness of fees as required by former Bankruptcy Rule 219(a), award of fees pursuant to section 506(d) not possible).


burden of proof as opposed to burden of going forward with evidence is always on claimant


absent evidence of reasonableness of fees as required by former Bankruptcy Rule 219(a


Context: *When an employee disclaims any intent to file a charge, the request does not trigger any investigation or attempt at a resolution. Allowing the employee to bring suit against her employer without first exhausting those .administrative remedies would frustrate the intent behind both federal and state statutory schemes.

observing that treating every completed questionnaire as a charge would thwart "Congress's expressed desire that the EEOC [also] act as an information provider and try to settle employment disputes through informal means"

See Patterson, 491 U.S. at 180-81, 109 S.Ct. at 2374-75; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 809, 811-12 (Tex.2010) (holding that claim for sexual harassment exists only under statute, which pre-empts any common law claim based on allegations giving rise to statutory claim; plaintiff cannot evade statutory exhaustion of administrative remedies requirement and other unique features of Chapter 21 by bringing suit under common-law theory); City of Waco v. Lopez, 259 S.W.3d 147, 154-55 (Tex.2008) (declaring that employee could not sidestep Chapter 21’s administrative exhaustion requirement by bringing retaliation claim solely under Whistle-blower Act and holding that trial court erred in denying city’s plea to jurisdiction); see also Holowecki, 552 U.S. at 401, 128 S.Ct. at 1157 (observing that treating every completed questionnaire as a charge would thwart “Congress’s expressed desire that the EEOC [also] act as an information provider and try to settle employment disputes through informal means”).

declaring that employee could not sidestep Chapter 21's administrative exhaustion requirement by bringing retaliation claim solely under Whistle-blower Act and holding that trial court erred in denying city's plea to jurisdiction


Context: Alternatively, construing the factual record based on Pontikes' affidavit, this court finds that the "legal assistants" are either law students or paralegals who worked under the direct supervision of an attorney, i.e., Pontikes.

"a 'reasonable attorney's fee' cannot have been meant to compensate only work performed personally by members of the bar"

See Missouri v. Jenkins by Agyei, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) ("a 'reasonable attorney’s fee’ cannot have been meant to compensate only work performed personally by members of the bar”); see also Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 128 S.Ct. 2007, 2010, 170 L.Ed.2d 960 (2008) ("fees for paralegal services must be recoverable at prevailing market rates” under 5 U.S.C. § 504); Case v. Unified School District No. 233, 157 F.3d 1243, 1249 (10th Cir.1998) (section 1988 "fees for attorneys, law clerks, and legal assistants are all determined” using lodestar method); Erath v. Academic Stone Setters, Inc., 2008 WL 4146200, *3 (E.D.N.Y. Sept. 8, 2008) ("affirmation” setting out "description of the billing rates as ... $75 per hour for legal assistants” considered reasonable and recoverable albeit in different community); see also Cook v. Brown, 68 F.3d 447, 453 (Fed.Cir.1995) (courts approve "inclusion of fees for paralegals, law clerks, and law students ... on the theory that their work con tributed to their supervising attorney’s work product, was traditionally done and billed by attorneys, and could be done effectively by nonattorneys under supervision for a lower rate, thereby lowering overall litigation costs”); see, e.g., Dixon v. International Brotherhood of Police Officers, 434 F.Supp.2d at 87 (awarding fees to “paralegals and law students”).

"fees for paralegal services must be recoverable at prevailing market rates" under 5 U.S.C. SS 504


section 1988 "fees for attorneys, law clerks, and legal assistants are all determined" using lodestar method


"affirmation" setting out "description of the billing rates as ... $75 per hour for legal assistants" considered reasonable and recoverable albeit in different community


courts approve "inclusion of fees for paralegals, law clerks, and law students ... on the theory that their work con tributed to their supervising attorney's work product, was traditionally done and billed by attorneys, and could be done effectively by nonattorneys under supervision for a lower rate, thereby lowering overall litigation costs"


Context: However, the vast majority,- either expressly or implicitly, understand the word "sureties" in the phrase "sufficient sureties," to encompass a variety of bond forms, including cash.

"the framers did not intend to favor one particular method of surety-- commercial bonding -- by inclusion of the sufficient sureties clause"

See State v. Briggs, supra, 666 N.W.2d at 583 (“the framers did not intend to favor one particular method of surety— commercial bonding — by inclusion of the sufficient sureties clause”); State v. Brooks, supra, 604 N.W.2d at 353 (the word “sureties” “encompasses a broad array of methods to provide adequate assurance that an accused will appear as the court requires”); see also Ex parte Singleton, supra, 902 So.2d at 135 (quoting State v. Briggs, supra, 666 N.W.2d at 581-83: “[w]e are also confident that the. framers did not intend to favor one particular method of surety”); People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 217 N.E.2d 803, 806 (1966) (“the alternative methods of bail provided in [the statutes] do not violate the constitutional provision that all persons shall be bailable by ‘sufficient sureties”’’); Burton v. Tomlinson, 19 Or.App. 247, 527 P.2d 123, 126 (1974) (“Nowhere does it say that lawful release of a defendant may be accomplished only through the medium of sureties.”); cf. Rendel v. Mummert, supra, 474 P.2d at 828; State ex rel. Jones v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 543 (1993); but see State v. Golden, supra, 546 So.2d at 503 (limiting the “sufficient sureties” clause to commercial sureties).

"the alternative methods of bail provided in [the statutes] do not violate the constitutional provision that all persons shall be bailable by 'sufficient sureties"''


"Nowhere does it say that lawful release of a defendant may be accomplished only through the medium of sureties."


the word "sureties" "encompasses a broad array of methods to provide adequate assurance that an accused will appear as the court requires"


Context: Without making a determinative decision, we note that the practical application of SS 204b to plaintiff presents an instructive comparison to the case at bar. Unlike the current case, if SS 204b's seventy-percent rule had been applied to plaintiff, the statute's plain terms would have retroactively increased the length of plaintiffs minimum sentence. This, presumably, would violate the Ex Post Facto Clause.

Peugh, 569 U.S. at 544, 133 S. Ct. at 2084 (holding that retroactive application of advisory sentencing guidelines violated Ex Post Facto Clause because guidelines increased minimum sentencing range); see also Puckett v. Abels, 684 So. 2d 671, 678 (Miss. 1996) (holding that statutory amendment requiring eighty-five percent of sentence be served before prisoner is eligible for parole is Ex Post Facto Clause violation).


Context: This court has applied the fugitive disentitlement doctrine numerous times in the criminal appeal context.

See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1220 (10th Cir.1999) (dismissing criminal appeal where defendant failed to report for supervised release following prison term and was declared a fugitive from justice); see also Brinlee v. Crisp, 608 F.2d 839, 856-57 (10th Cir.1979) (upholding denial of habeas corpus petition when state court dismissed criminal defendant’s appeal because he was a fugitive), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); Lopez v. Motley, 552 F.2d 682, 683 (10th Cir.1977) (same); Gonzales v. Stover, 575 F.2d 827, 828 (10th Cir.1978) (same); United States v. Swigart, 490 F.2d 914, 915 (10th Cir.1973) (federal criminal appeal); United States v. O’Neal, 453 F.2d 344, 345 (10th Cir.1972) (same).

upholding denial of habeas corpus petition when state court dismissed criminal defendant's appeal because he was a fugitive


Context: The district court properly granted summary judgment on plaintiffs' Title VII retaliation claims because plaintiffs failed to initiate contact with an Equal Employment Opportunity ("EEO") Counselor or any agency official logically connected with the EEO process within 45 days of becoming aware of the facts underlying their retaliation claims.

explaining that for a retaliation claim, plaintiff can comply with SS 1614.105(a)(1

See 29 C.F.R. § 1614.105(a)(1) (“An aggrieved person must initiate contact with á Counselor within 45 days of the date of the matter alleged to be discriminatory[.]”); Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (Title VII claim accrues upon awareness of the actual injury and not when a plaintiff suspects a legal wrong); see also Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1044-46 (9th Cir. 2009) (explaining that for a retaliation claim, plaintiff can comply with § 1614.105(a)(1) by initiating contact with “any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process”).


Context: The court must first determine whether there is "objective evidence of coercion, duress, deception, promises, threats, intrusive conduct or other undue influence by the police, which critically impaired the defendant's judgment."

People v. Helm, 633 P.2d 1071, 1077 (Colo.1981)(when upholding police action in that case, pointing out that officer did not claim the right to conduct the sobriety test or attempt to deceive defendant about his rights).

stating that a court "must decide whether the police conduct could reasonably have appeared to be coercive to a person in the defendant's circumstances"

See also Reddersen, 992 P.2d at 1182 (stating that a court “must decide whether the police conduct could reasonably have appeared to be coercive to a person in the defendant’s circumstances”).


Context: As discussed above, this case is simply not about CITA's non-reviewable substantive decisions concerning the imposition of safeguards. Plaintiff challenges the existence of CITA's regulations and CITA's actions pursuant thereto. The Federal Circuit has held that such regulatory challenges do not require the exhaustion of administrative remedies.

finding question of CITA's ultra vires actions ripe for judicial review absent final agency action

See AAEI-TAG II, 751 F.2d at 1245-46 (not requiring exhaustion under protest procedures where importers challenged existence of CITA-directed regulations imposing import restrictions); see also Fieldston Clothes, 19 CIT at 1185, 903 F.Supp. at 76-77 (finding question of CITA’s ultra vires actions ripe for judicial review absent final agency action).


Context: This court has positively cited Steagaid when addressing situations in which the prosecution failed to raise standing before the trial court.

See People v. McKinstrey, 852 P.2d 467, 470 n. 4 (Colo.1998) (declining to address whether defendant had legitimate expectation of privacy when prosecution did not raise issue on interlocutory appeal); People v. Burola, 848 P.2d 958, 960 n. 2 (Colo.1993) (rejecting invitation to address standing when prosecution lost the right to raise the issue by failing to address it in front of trial court or seeking certiorari on the question); People v. Hearty, 644 P.2d at 311-12. See also United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir.1991) (ruling prosecution waived its opportunity to raise standing on appeal when it did not raise issue below at suppression hearing and offered no exeuse for the omission).

But see United States v. Hansen, 652 F.2d 1374, 1382 (10th Cir.1981) (concluding "confusing" cireum-stances made it unfair to impose waiver of standing after prosecution failed to address issue at trial and distinguishing Steagaid because prosecution had not made contrary assertions about factual predicates of standing).


rejecting invitation to address standing when prosecution lost the right to raise the issue by failing to address it in front of trial court or seeking certiorari on the question


ruling prosecution waived its opportunity to raise standing on appeal when it did not raise issue below at suppression hearing and offered no exeuse for the omission


Context: However, Mr. Melton asserts that adoption proceedings were scheduled for May 12,13, 14,15, and 16, 2014 in D.C. Superior Court and this Court cannot stay proceedings that already have occurred. Moreover, this Court must abstain from interfering in ongoing D.C. court proceedings under the Younger abstention doctrine.

"[T]he normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions."

See Younger, 401 U.S. at 45, 91 S.Ct. 746 (“[T]he normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.”); see also District Properties Assocs. v. District of Columbia, 743 F.2d 21, 27 (D.C.Cir.1984) (“[B]ased on principles of equity ... the doctrine of Younger ... and its progeny restrains federal courts from interfering in ongoing state judicial proceedings.”).

"[B]ased on principles of equity ... the doctrine of Younger ... and its progeny restrains federal courts from interfering in ongoing state judicial proceedings."


Context: Additionally, Dr. Kraut has conducted his own research, and maintained an active familiarity in the research of other leading experts, in the subject of jaw necrosis. For these reasons, the Court finds Dr. Kraut to be qualified to offer opinions concerning causation (whether general or specific) under Daubert.

See Davids, 857 F.Supp.2d at 277 (finding Dr. Kraut to be qualified for purposes of offering an expert opinion as to causation for similar reasons); In re Fosamax Prods. Liab. Litig., 688 F.Supp.2d 259, 268 (S.D.N.Y.2010) (finding a doctor to be qualified under Rule 702 to offer expert testimony because the record showed that “[h]e has practiced dentistry for over 30 years; he specializes in oralfa-cial pain and maxillofacial radiology; he keeps up to date with the developments in research regarding BRONJ and has given presentations on the issue; he also has practical experience in that he has treated many patients that he believes developed ONJ from a bisphosphonate”); cf. Harvey, 895 F.Supp.2d at 1211 (finding that a doctor was not qualified to testify concerning possible ONJ causation where doctor’s testimony showed that he had never conducted medical or scientific research in the field of ONJ, had never researched bis-phosphonates, and had not published articles or otherwise hold relevant experience concerning bisphosphonates or ONJ).

finding that a doctor was not qualified to testify concerning possible ONJ causation where doctor's testimony showed that he had never conducted medical or scientific research in the field of ONJ, had never researched bis-phosphonates, and had not published articles or otherwise hold relevant experience concerning bisphosphonates or ONJ


Context: Tax statutes in addition to the one at issue here recognize that taxpayers may recover money lost because taxes were erroneously imposed. This statutorily recognized interest in property is protected by the due process clause.

See Smotkin v. Peterson, 73 Ariz. 1, 5, 236 P.2d 743, 745 (1951) (taxpayer’s remedy of action for refund is adequate and does not violate due process); cf. Maricopa County v. Superior Court (First Interstate Bank), 170 Ariz. 248, 823 P.2d 696 (App.1991) (rejecting on other grounds a claim that denial of right to appeal property tax valuation was due process violation).

taxpayer's remedy of action for refund is adequate and does not violate due process


Context: This approach also puts a child of separated parents in the same situation as a child of parents who are not separated because it allows the child to maintain the same standard of living as if the parents had not separated.

"[H]ad the marriage not been dissolved, petitioner's children would have enjoyed a standard of living based on both parents' income plus the social security benefits they received as petitioner's dependents."

See Graby, 87 N.Y.2d at 612, 641 N.Y.S.2d at 581, 664 N.E.2d at 492 (“[H]ad the marriage not been dissolved, petitioner’s children would have enjoyed a standard of living based on both parents’ income plus the social security benefits they received as petitioner’s dependents.”); cf. Stultz, 659 N.E.2d at 129 (noting in a social security retirement benefits case that if the marriage had not been dissolved, the children would have had the benefit of their parent’s social security retirement benefits and their own social security retirement dependency benefit).

noting in a social security retirement benefits case that if the marriage had not been dissolved, the children would have had the benefit of their parent's social security retirement benefits and their own social security retirement dependency benefit


Context: While the litigation privilege is an affirmative defense, Am. Nat'l Title & Escrow of Fla., Inc., 810 So.2d at 998, it can be adjudicated on a motion to dismiss if the applicability of the privilege can be clearly discerned from the face of the complaint.

Kidwell v. Gen. Motors Corp., 975 So.2d 503, 505 n. 2 (Fla. 2d DCA 2007) (“Although immunity is an affirmative defense, it can be considered on a motion to dismiss if the complaint demonstrates the existence of the defense.”); see also Donner v. Appalachian Ins. Co., 580 So.2d 797 (Fla. 3d DCA 1991) (dismissing plaintiffs complaint on the basis of the litigation privilege); Vaswani v. Ganobselc, 402 So.2d 1350, 1351 (Fla. 4th DCA 1981) (“If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such defense can be considered on a motion to dismiss.”).

"Although immunity is an affirmative defense, it can be considered on a motion to dismiss if the complaint demonstrates the existence of the defense."


"If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such defense can be considered on a motion to dismiss."


Context: The district court did not discuss whether the service of Kodak equipment could be a relevant market and whether Kodak might possess monopoly power or a dangerous possibility of monopoly power in that market. This court has strongly suggested that service of one company's micrographic equipment can be a relevant market under Section 2.

See Dim idowich, 803 F.2d at 1480-81 n. 3 (“[A]n owner of broken [Bell & Howell] micro-graphic equipment is indifferent to people who can service Kodak or 3M machines. If the owner’s only option is to request service from Bell & Howell or Comgraphix (depending on his location), that is obviously the market the owner faces.”); Cf. Bushie, 460 F.2d at 118 n. 1, 120-21 (implying without analysis that the relevant market for servicing dictating equipment is the interbrand service market).

"[A]n owner of broken [Bell & Howell] micro-graphic equipment is indifferent to people who can service Kodak or 3M machines. If the owner's only option is to request service from Bell & Howell or Comgraphix (depending on his location


Context: At least one Texas court of appeals has applied Randolph in the context of a vehicle search. The Beaumont Court of Appeals held that the driver's consent was valid based on her care, custody, and control of the vehicle.

"[T]he extension of the prohibition on warrantless searches applies only to defendants who are present and actually express a refusal to consent."

See Houston, 286 S.W.3d at 609 (“Voluntary consent given by a third party is not valid as to the defendant if the defendant is also present and expressly refuses to consent.”); see also Harris, 526 F.3d at 1339 (“[T]he extension of the prohibition on warrantless searches applies only to defendants who are present and actually express a refusal to consent.”).

"Voluntary consent given by a third party is not valid as to the defendant if the defendant is also present and expressly refuses to consent."


Context: Id Even when there is direct evidence of premeditation, the state must prove beyond a reasonable doubt that petitioner calmly deliberated or reflected on the decision to kill prior to the actual act of killing to support this aggravating factor. Our cases make clear that this aggravating factor does not apply where the evidence reasonably is susceptible to some other conclusion than that the murder was accomplished in a calculated manner or where there simply is no evidence as to the defendant's state of mind prior to the killing.

See Thompson v. State, 456 So.2d 444, 445-47 (Fla.1984) (no evidence to set murder apart from usual holdup murder).

Peavy v. State, 442 So.2d 200, 202 (Fla.1983) (murder that occurred during burglary and robbery is susceptible to other conclusions than finding it was committed in cold, calculated, and premeditated manner).


Context: Finally, ReBrook appeals the district court's decision to increase his sentence for wire fraud because he was an "official holding a high-level decision-making or sensitive position," pursuant to U.S.S.G. SS 201.7(b)(1)(B). Because this question turns primarily on fact, we review the district court's application of SS 201.7(b)(1)(B) under the clearly erroneous standard.

where issue turns primarily on factual determinations, the appellate court should apply "clearly erroneous" standard

United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989) (where issue turns primarily on factual determinations, the appellate court should apply “clearly erroneous” standard); see also United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir.1994) (applying clearly erroneous standard to application of U.S.S.G. § 201.1(b)(2)(B), which provides offense level increase for payment made to influence any official in a high level decisionmaking or sensitive position).

applying clearly erroneous standard to application of U.S.S.G. SS 201.1(b


Context: Class Members' damages differ only in their qualification for Specified Physical Condition compensation. It is well-settled, however, that the necessity of calculating damages on an individual basis does not defeat predominance.

holding that a common question of causation was "a predominate issue central to each of Plaintiffs claims and subject to generalize proof' notwithstanding need to review each plaintiffs individual account

See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th Cir.2012) (holding that a common question of causation was “a predominate issue central to each of Plaintiffs claims and subject to generalize proof’ notwithstanding need to review each plaintiffs individual account); see also Bell Atl. Corp., 339 F.3d at 306 (recognizing that “[e]ven wide disparity among class members as to the amount of damages suffered does not necessarily mean that class certification is inappropriate”); Bertulli v. Indep. Ass’n of Continental Pilots, 242 F.3d 290, 298 (5th Cir.2001); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988); Eatmon v. Palisades Collection LLC, Civil Action No. 2:08-CV-306-DF-CE, 2011 WL 147680, at *12 (E.D.Tex.

recognizing that "[e]ven wide disparity among class members as to the amount of damages suffered does not necessarily mean that class certification is inappropriate"


Context: A motion for failure to state a claim may be granted if a party fails to plead a claim that is cognizable under state law.

"The Court finds that the assessment of the merits of Plaintiffs' legal theory in this case can adequately be assessed without factual development, and consequently, dismissal of this action for Plaintiffs' failure to state a claim should not be rejected simply because Plaintiffs' theories are novel"

See Lieberman v. A &W Rests., Inc., 2003 WL 21252008, at *7 (D.Minn. May 28, 2003) (dismissing claim when, to accept it “would be to recognize a new cause of action[.]”); see also Kuhn v. Thompson, 304 F.Supp.2d 1313, 1328, n. 15 (M.D.Ala.2004) (“The Court finds that the assessment of the merits of Plaintiffs’ legal theory in this case can adequately be assessed without factual development, and consequently, dismissal of this action for Plaintiffs’ failure to state a claim should not be rejected simply because Plaintiffs’ theories are novel”).

dismissing claim when, to accept it "would be to recognize a new cause of action[.]"


Context: Officer Bentley's evidence about what he was told by the dispatcher was not hearsay because it was not offered for the truth of the matter asserted. The statements were admitted in order to explain why Bentley went to Gilbert's house even though police had already been there earlier that day to investigate his death.

officer's testimony concerning phone call not hearsay when offered to explain what prompted his investigation

See United States v. Collins, 996 F.2d 950, 953 (8th Cir.1993) (out of court statement to officer not hearsay if offered to explain why investigation was undertaken); see also Nottingham v. Arkansas, 29 Ark.App. 95, 778 S.W.2d 629, 630 (1989) (officer’s testimony concerning phone call not hearsay when offered to explain what prompted his investigation).


Context: We lack jurisdiction to review the agency's discretionary determination that Sosa failed to show exceptional and extremely unusual hardship to a qualifying relative. Sosa's contention that the agency deprived him of due process by misapplying the law to the facts of his case and by disregarding their evidence of hardship is not supported by the record and does not amount to a colorable constitutional claim.

"traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction."

See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (holding that the “misapplication of case law” may not be reviewed).

holding that the "misapplication of case law" may not be reviewed


Context: Calloway's later admission regarding the presence of marijuana in the house was a fruit of the illegal detention, and could not be used to justify the subsequent search.

"A consent to search given after illegal police conduct is presumptively tainted and is deemed involuntary absent 'clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.' "

See, e.g., Turner v. State, 674 So.2d 896, 897 (Fla. 5th DCA 1996) (“A consent to search given after illegal police conduct is presumptively tainted and is deemed involuntary absent ‘clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.’ ”) (quoting Norman v. State, 379 So.2d 643, 647 (Fla.1980)).

evidence "obtained by exploitation of [an unlawful detention] instead of by means sufficiently distinguishable to be purged of the primary taint" must be excluded

United States v. Flores-Sandoval, 422 F.3d 711, 714 (8th Cir.2005) (evidence “obtained by exploitation of [an unlawful detention] instead of by means sufficiently distinguishable to be purged of the primary taint” must be excluded). His mother’s consent to search the home was also tainted by the officer’s illegal order that everyone vacate the home.


Context: As reflected in the comment's language, knives are often considered not to constitute objects that are of such of a nature that they should be prohibited under section 908.

"Wyoming Knife" which consisted of metal handle with two finger holes incorporating two cutting blades, one facing outward and the other inward, was hunting implement which had "common lawful purpose," and thus such knife was not "offensive weapon" for purposes of statute

See Fisher, 485 Pa. 8, 400 A.2d 1284 (1979) (“Wyoming Knife” which consisted of metal handle with two finger holes incorporating two cutting blades, one facing outward and the other inward, was hunting implement which had “common lawful purpose,” and thus such knife was not “offensive weapon” for purposes of statute); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (Section 908 does not define a simple kitchen knife as a prohibited offensive weapon); Commonwealth v. Artis, 275 Pa.Super. 127, 418 A.2d 644 (1980) (although defendant waved a folding knife with a seven-inch blade in a crowded bar, the knife, which was purchased at a sporting goods store and used for hunting, was not an implement for infliction of serious bodily injury that served no common lawful purpose within the meaning of statute); Commonwealth v. Myers, 273 Pa.Super. 381, 417 A.2d 700 (1980) (thirteen-inch butcher knife which defendant carried while he was charging up a crowded street and threatening to kill another person had a common lawful purpose and thus defendant was not guilty of possession of prohibited offensive weapon); Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979) (absent proof that knife, which did not have blade “exposed in an automatic way,” had no common lawful purpose, Commonwealth’s evidence in prosecution for possession of prohibited offensive weapon failed to prove essential element that such knife was “offensive weapon”).

Cf. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975) (court used an improper circumstances-of-possession approach to determine that a thirty-inch knife found in possession of defendant while in a high crime urban area in the early morning had no common lawful purpose and was a prohibited weapon under statute).


Section 908 does not define a simple kitchen knife as a prohibited offensive weapon


although defendant waved a folding knife with a seven-inch blade in a crowded bar, the knife, which was purchased at a sporting goods store and used for hunting, was not an implement for infliction of serious bodily injury that served no common lawful purpose within the meaning of statute


thirteen-inch butcher knife which defendant carried while he was charging up a crowded street and threatening to kill another person had a common lawful purpose and thus defendant was not guilty of possession of prohibited offensive weapon


absent proof that knife, which did not have blade "exposed in an automatic way," had no common lawful purpose, Commonwealth's evidence in prosecution for possession of prohibited offensive weapon failed to prove essential element that such knife was "offensive weapon"


Context: I do not believe the evidence is sufficient to demonstrate an indispensible element of a retaliation claim: that is, that the decision makers actually knew of the employee's complaint so that their adverse action could have been causally related to that protected activity. See Gibbons v. State Pub. Emps.

"A court will not presume that a decisionmaker was motivated to retaliate by something unknown to him or her."

Relations Comm’n, 702 So.2d 536, 537 (Fla. 2d DCA 1997) (“The plaintiff, at a minimum, must establish that the employer was aware of the protected expression when it took the adverse employment action.”); see also Johnson v. State of Florida, Dep’t of Elder Affairs, 2010 WL 1328995, *2 (N.D.Fla.2010) (“A court will not presume that a decisionmaker was motivated to retaliate by something unknown to him or her.”); Brown v. Sybase, Inc., 287 F.Supp.2d 1330, 1347 (S.D.Fla.2003).

"The plaintiff, at a minimum, must establish that the employer was aware of the protected expression when it took the adverse employment action."


Context: While Ghosh has pointed out numerous gaps and/or errors in the information provided by DOH, these failings in DOH's submissions do nothing to advance Ghosh's claim that DOH's failure to hire him was a result of improper motives. As discussed above, though the burden of establishing a prima facie case of discrimination is "not onerous," it is nonetheless the plaintiff's burden, and it cannot be met with conclu-sory assertions.

noting that "even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment"

See Burdine, 450 U.S. at 258, 101 S.Ct. 1089 (“The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”); Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000) (describing plaintiffs “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff’); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (noting that “even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment”).

"The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination."


describing plaintiffs "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff'


Context: Because the assignment declination code was appropriate, Mr. Young was not entitled to reenlistment or a promotion prior to his date of separation on April 12, 2005.

holding that no serviceperson has a right to enlist or to reenlist in the armed forces "unless specially granted one"

See Dodson, 988 F.2d at 1208 (holding that no serviceperson has a right to enlist or to reenlist in the armed forces “unless specially granted one”); see also Dysart, 369 F.3d at 1313-15 (requiring a clear legal right to a promotion to successfully assert a denial of a promotion claim).


Context: Where it is claimed'that counsel failed to move for a violation of his or her client's right to speedy trial, a thirty month delay between arraignment and trial has not been deemed sufficient to warrant post-conviction relief.

denying petitioner's- ineffective assistance of counsel claim premised upon counsel's alleged failure to move for recovery from a speedy trial where the under lying speedy trial claim "would not have been successful[.]"

See Mallet v. Miller, 432 F.Supp.2d 366, 384 (S.D.N.Y.2006) (denying ineffective assistance of counsel claim based on counsel’s failure to move for a violation of right to speedy trial where there was á delay of thirty months between arraignment and trial due to pretrial hearings and inability of the prosecution to locate a key witness, and where the underlying speedy trial claim was merit-less); see also Curnen v. Yelich, No. 11-CV-7499, 2015 WL 3827693, at *9 (S.D.N.Y; June 19, 2015), appeal filed No. 15-2166 (2d Cir, July 8, 2015) (denying petitioner’s ineffective assistance of counsel claim premised on allegations that counsel had refused to file a motion for relief with respect to violation of petitioner’s right to a speedy trial where the lower court would have rejected claim as merit-less, and where petitioner could not have shown prejudice because government could have acquired new indictment on the same conduct); Walker v. Bennett, 262 F.Supp.2d 25, 37 (W.D.N.Y.2003) (denying petitioner’s- ineffective assistance of counsel claim premised upon counsel’s alleged failure to move for recovery from a speedy trial where the under lying speedy trial claim “would not have been successful[.]”).

denying ineffective assistance of counsel claim based on counsel's failure to move for a violation of right to speedy trial where there was a delay of thirty months between arraignment and trial due to pretrial hearings and inability of the prosecution to locate a key witness, and where the underlying speedy trial claim was merit-less


Context: For at least two reasons, the court rejects Dreyfus's position. First, as this court has explained, "the public policy exception in the conflicts arena is intended to effectuate the forum state's concern for and interest in protecting its residents."

finding that California had a substantial interest in its rule of joint and several liability for economic damages in order to make sure that "resident plaintiffs receive all of the damages to which they are entitled since the economic impact of any shortfall will be felt in California' "

Broadhead v. Hartford Cas. Ins. Co., 773 F.Supp. 882, 904 (S.D.Miss.1991); see also Mitchell, 211 So.2d at 514 (observing that “[t]his state is especially concerned with the protection of its injured domiciliaries and their families, and the distribution of its domiciliaries’ estates,” and that “[t]he comparative negligence statute of this State has been effectively administered for many years and we have an interest in applying it to Mississippi residents”); Gann v. Fruehauf Corp., 52 F.3d 1320, 1325 n. 4 (5th Cir.1995) (stating that “[w]here the specific public policy issue involves a non-resident ..., Mississippi courts have held that its public policy concerns are not implicated”); Perry v. State Farm Mut. Auto. Ins. Co., 606 F.Supp. 270, 274 (N.D.Miss.1985) (public policy did not require application of Mississippi stacking laws since the plaintiffs and their decedent were not residents of Mississip pi); cf. Villarreal v. Superior Court of Los Angeles, 2004 WL 902114, at *3 (CaLApp. April 28, 2004) (finding that California had a substantial interest in its rule of joint and several liability for economic damages in order to make sure that “resident plaintiffs receive all of the damages to which they are entitled since the economic impact of any shortfall will be felt in California’ ”).

stating that "[w]here the specific public policy issue involves a non-resident ..., Mississippi courts have held that its public policy concerns are not implicated"


public policy did not require application of Mississippi stacking laws since the plaintiffs and their decedent were not residents of Mississip pi


Context: However, if the general employer and special employer have entered into a contract assigning liability to one of the parties, courts will give effect to that contract.

"[U]nder Maryland law, whatever the status of an employee under the 'borrowed servant' doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee's negligent acts."

See Temp. Staffing, 765 A.2d at 611 (directing workers’ compensation commission to consider contract between co-employers when assigning liability for benefits, for injured employee); Hercules Powder Co. v. Harry T. Campbell Sons Co., 156 Md. 346, 144 A. 510, 518 (1929) (reversing jury verdict in favor of special employer where contract between general and special employer assigned liability for employee’s negligence to special employer); see also Sea Land Indus., Inc. v. Gen. Ship Repair Corp., 530 F.Supp. 550, 563 (D. Md. 1982) (“[U]nder Maryland law, whatever the status of an employee under the ‘borrowed servant’ doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts.”).

directing workers' compensation commission to consider contract between co-employers when assigning liability for benefits, for injured employee


reversing jury verdict in favor of special employer where contract between general and special employer assigned liability for employee's negligence to special employer


Context: Our conclusion is generally consistent with our sister circuits' approaches to this challenging area.

striking down as unconstitutionally vague a supervised release condition banning the possession of "any pornographic, sexually oriented or sexually stim ulating materials"

See, e.g., United States v. Antelope, 395 F.3d 1128, 1141-42 (9th Cir.2005) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornographic, sexually oriented or sexually stim ulating materials”); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornography,” including legal adult pornography, because “a probationer cannot reasonably understand what is encompassed by a blanket prohibition on ‘pornography’ ”); United States v. Loy, 237 F.3d 251, 265 (3d Cir.2001) (striking down as unconstitutionally vague a supervised release condition banning the possession of “all forms of pornography, including legal adult pornography”); Farrell v. Burke, 449 F.3d 470, 486 (2d Cir.2006) (noting that the Second Circuit has “strongly suggested] that the term ‘pornography’ is inherently vague for defendants whose statute of conviction does not define it.” (citing United States v. Simmons, 343 F.3d 72 (2d Cir.2003)); ' United States v. Cabot, 325 F.3d 384 (2d Cir.2003)); see also United States v. Perazza-Mercado, 553 F.3d 65, 74-76 (1st Cir.2009) (vacating a condition of supervised release that banned the “possession of any kind of pornographic material” because the district court did not provide an explanation for this condition, and “no evidence in the record ... justifies the ban”); cf. United States v. Armel, 585 F.3d 182, 185-87 (4th Cir.2009) (holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition on adult “pornography” where defendant had been convicted of threatening federal officials).

vacating a condition of supervised release that banned the "possession of any kind of pornographic material" because the district court did not provide an explanation for this condition, and "no evidence in the record ... justifies the ban"


holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition on adult "pornography" where defendant had been convicted of threatening federal officials


But see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007) (upholding the breadth of the supervised release condition in part because the defendant was found guilty of producing child pornography); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir.2003) (acknowledging that the ban on “sexually oriented or sexually stimulating materials” is “somewhat vague,” but narrowing it so that it does not reach magazines and so that “the prohibition on patronizing sexually oriented establishments refers ... to places such as strip clubs and adult theaters or bookstores”).


acknowledging that the ban on "sexually oriented or sexually stimulating materials" is "somewhat vague," but narrowing it so that it does not reach magazines and so that "the prohibition on patronizing sexually oriented establishments refers ... to places such as strip clubs and adult theaters or bookstores"


striking down as unconstitutionally vague a supervised release condition banning the possession of "any pornography," including legal adult pornography, because "a probationer cannot reasonably understand what is encompassed by a blanket prohibition on 'pornography' "


striking down as unconstitutionally vague a supervised release condition banning the possession of "all forms of pornography, including legal adult pornography"


Context: In reviewing a probable cause determination, this court does not review the determination de novo; rather the court looks to see if the officer "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.

Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn.App.1983) (making clear that even single objective indication may be sufficient depending on circumstances); see Martin v. Commissioner of Pub. Safety, 353 N.W.2d 202 (Minn.App.1984) (reiterating that “it is fundamental that each case must be decided on its own facts and circumstances”).

reiterating that "it is fundamental that each case must be decided on its own facts and circumstances"


Context: The District Court also did not err in denying Day's due process claim to the extent that Day claimed that his classification deprived him of liberty without due process. Day did not have a liberty interest in the degree of his confinement.

"As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight."

See Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) (“As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.”); see also Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that liberty interests implicating the Due Process Clause are “generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”).

holding that liberty interests implicating the Due Process Clause are "generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life"


Context: Bloomfield expressly abandoned this claim in her brief in opposition to Whirlpool's motion. (Doc. No. 38 at p. 22 n. 21). Accordingly, "Whirlpool is entitled to summary judgment on Bloomfield's sex discrimination claim.

See Liberty Lobby, Inc., 477 U.S. at 256-57, 106 S.Ct. 2505 (noting Rule 56 requires a party to produce affirmative evidence to defeat a properly supported motion for summary judgment); Contract Design Group, Inc. v. Wayne State Univ., No. 10-14702, 2013 WL 2199957, at *7 (E.D.Mich. May 20, 2013) (granting defendant summary judgment where plaintiffs abandoned a claim asserted in their complaint).


Context: We acknowledge that a prosecutor may not present argument that penalizes or impinges upon a defendant's exercise of the privilege against self-incrimination.

"It is true that . #.. any direct or indirect reference to the defendant's failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify."

Boatright v. State, 759 N.E.2d 1038, 1048 (Ind.2001) (“The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence.”) (emphasis added) (quotation omitted); see also Crosson v. State, 274 Ind. 247, 249, 410 N.E.2d 1194, 1195 (1980) (“It is true that . ■.. any direct or indirect reference to the defendant’s failure to testify has been strictly regarded as an impingement of his constitutional and statutory rights not to testify.”) (emphasis added).

"The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence."


Context: Nevertheless, we hold that the district court's failure to comply with Rule 32(c)(3)(D)'s requirement and with our eases is harmless error.

Hammer, 3 F.3d at 270 (harmless error analysis applied to erroneous use of PSR as evidence at sentencing); see also United States v. Montoya, 891 F.2d 1273, 1279 (7th Cir.1989) (failure to rule on controverted matters in PSR subject to harmless error analysis).


Context: And for most cases, it may not matter which test is employed. Id. (noting that the analysis between the two lines of cases may be "entirely interchangeable"). The crucial analytical step of both tests is the same; which is to say, that under both lines of cases, intermediate scrutiny is applied if the challenged law is found to be either content neutral or for the purpose of decreasing secondary effects.

"We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O'Brien for content-neutral restrictions on symbolic speech."

Cf. Pap’s A.M. 529 U.S. at 289, 120 S.Ct. 1382 (plurality opinion) (“We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O’Brien for content-neutral restrictions on symbolic speech.”).

"A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny."

See Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J. concurring) (“A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.”); R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 408 (7th Cir.2004) (“[OJnly after confirming that a zoning ordinance’s purpose is to combat the secondary effects of speech do we employ Renton’s intermediate scrutiny test.”).


"[OJnly after confirming that a zoning ordinance's purpose is to combat the secondary effects of speech do we employ Renton's intermediate scrutiny test."


Context: The Supreme Court has stated that an error is harmless when the error "did not affect the district court's selection of the sentence imposed." On the other hand, when we are not certain that the sentencing judge would have imposed the same sentence had it not committed a procedural error, we have declined to find the error harmless.

See, e.g., United States v. Zahursky, 580 F.3d 515, 528 (7th Cir.2009) (remanding for resentencing where district court’s statements did “not approach the firm assurances that we had in the cases where we have found a sentencing error harmless”); United States v. Edwards, 581 F.3d 604, 613 (7th Cir.2009) (remanding for a further sentencing hearing where it was unclear whether a procedural error had occurred that affected the choice of sentence); see also Gibbs, 578 F.3d at 695-96 (remanding for resentencing where district court committed procedural error by failing to calculate advisory guideline range for supervised release term).

remanding for resentencing where district court's statements did "not approach the firm assurances that we had in the cases where we have found a sentencing error harmless"


remanding for a further sentencing hearing where it was unclear whether a procedural error had occurred that affected the choice of sentence