Context: Substantial evidence supports the agency's conclusion that, even if Coc-Lacan's family constitutes a particular social group, he failed to establish a nexus between the harm he experienced in the past and fears in the future and a protected ground.

even if membership in a particular social group is established, an applicant must still show that "persecution was or will be on account of his membership in such group" (emphasis in original

See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group” (emphasis in original)); Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002) (petitioner failed to establish nexus where “the evidence would permit a finding” that he was persecuted on account of his family membership, but did not “compel that finding” (emphasis in original)); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”).

"An [applicant's] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground."


petitioner failed to establish nexus where "the evidence would permit a finding" that he was persecuted on account of his family membership, but did not "compel that finding" (emphasis in original


Context: Permitting parties to contractually eliminate all judicial review of arbitration awards would not only run counter to the text of the FAA, but would also frustrate Congress's attempt to ensure a minimum level of due process for parties to an arbitration. Through SS 10 of the FAA, Congress attempted to preserve due process while still promoting the ultimate goal of speedy dispute resolution.

"[T]he three provisions, SSSS 9-11, ... sub-stantiat[e] a national policy favoring arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving disputes straightaway."

See Kyocera Corp., 341 F.3d at 998 (“The[ ] grounds [in § 10] afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures.”); see also Hall St. Assocs., 552 U.S. at 588, 128 S.Ct. 1396 (“[T]he three provisions, §§ 9-11, ... sub-stantiat[e] a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.”); Hoefb, 343 F.3d at 64 (“In enacting § 10(a), Congress impressed limited, but critical, safeguards onto this process, ones that respected the importance and flexibility of private dispute resolution mechanisms, but at the same time barred federal courts from confirming awards tainted by partiality, a lack of elementary procedural fairness, corruption, or similar misconduct.”).

"The[ ] grounds [in SS 10] afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures."


Context: Federal courts applying Iowa's choice-of-law principles are in line with Iowa's state courts' decisions.

See, e.g., Dethmers Mfg. Co., 23 F.Supp.2d at 1004 (finding under Iowa choice-of-law rules that a claim for a breach of an alleged contract to keep an invention confidential was governed by the law of Nebraska, which barred punitive damages, rather than by the law of Iowa, California, or Nevada, as the defendant was a Nebraska corporation, and negotiations and performance occurred primarily in Nebraska, and negotiations only incidentally began in California and terminated in Nevada); see also Woods Masonry, Inc., 198 F.Supp.2d at 1021 (finding that in applying Iowa’s “most significant relationship” test, even though the underlying accident occurred in Iowa, Arkansas had the most significant relationship because the policy at issue was formed in Arkansas, and the policyholder was domiciled in Arkansas); Northwestern Flyers, Inc. v. Olson Bros. Mfg. Co., Inc., 679 F.2d 1264, 1272 (8th Cir.1982) (finding that although a plane crash occurred in Montana, Nebraska had “the most significant relationship with the transaction in dispute and that Nebraska law should control any interpretation of the [insurance] policy provisions” as the parties entered into the insurance contract in Nebraska, and the insured was a Nebraska corporation).

finding that in applying Iowa's "most significant relationship" test, even though the underlying accident occurred in Iowa, Arkansas had the most significant relationship because the policy at issue was formed in Arkansas, and the policyholder was domiciled in Arkansas


finding that although a plane crash occurred in Montana, Nebraska had "the most significant relationship with the transaction in dispute and that Nebraska law should control any interpretation of the [insurance] policy provisions" as the parties entered into the insurance contract in Nebraska, and the insured was a Nebraska corporation


Context: Accordingly, the trial court erred in factoring in the Father's payment of alimony each month where he failed to make payments. Because of this error, this Court remands to the trial court for a determination of the amount of alimony the Father paid between October 1, 2010, and the entry of final judgment to determine the offset to the Mother's retroactive child support obligation.

retroactive child support calculations erroneous where child support worksheets reflect that former husband paid alimony every month, thereby increasing former wife's income and decreasing former husband's, where former husband had not paid alimony consistently

See Marlowe v. Marlowe, 123 So.3d 1194, 1196 (Fla. 1st DCA 2013) (retroactive child support calculations erroneous where child support worksheets reflect that former husband paid alimony every month, thereby increasing former wife’s income and decreasing former husband’s, where former husband had not paid alimony consistently); see also Swor v. Swor, 56 So.3d 825, 826 (Fla. 2d DCA 2011) (where former husband failed to pay alimony, “it was error to include the sums due for this time period in the calculation that was the basis for the amount of retroactive child support awarded in the final judgment”).

where former husband failed to pay alimony, "it was error to include the sums due for this time period in the calculation that was the basis for the amount of retroactive child support awarded in the final judgment"


Context: Freedom's assertion that the judgment is void is based on the fact that it was signed on Freedom's behalf by a non-attorney. The fact that a non-attorney represented a party in a judicial proceeding does not render the resulting judgment void per se.

although a corporation may not appear pro se, district court's denial of appellant's motion for new trial is not reversible error even though appellant corporation was represented at trial by its non-attorney president

See Alexander, 882 F.2d 421 (district court’s denial of motion to vacate judgment on the basis of fraud (60(b)(3)) not an abuse of discretion despite the fact that appellant’s trial counsel was unlicensed); cf. Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir.1985) (although a corporation may not appear pro se, district court’s denial of appellant’s motion for new trial is not reversible error even though appellant corporation was represented at trial by its non-attorney president), cert. denied, 475 U.S. 1147, 106 S.Ct. 1801, 90 L.Ed.2d 346 (1986); E.E.O.C. v. Safeway Stores, Inc., 611 F.2d 795, 800 (10th Cir.1979) (consent decree not void even if it violates federal law), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 809 (1980).

district court's denial of motion to vacate judgment on the basis of fraud (60(b


consent decree not void even if it violates federal law


Context: In Pennsylvania, a duty of good faith and fair dealing is implicit in an insurance contract. As such, under Pennsylvania law, a plaintiff may bring a cause of action for breach of the contractual duty of good faith and fair dealing in the insurance context, permitting an insured to recover compensatory damages for an insurer's failure to act in good faith.

holding that, in the context a third party case in which the insurer refused to settle a claim on behalf of the insured, "nothing in D Ambrosio bars a party bringing a bad faith action sounding in contract from recovering damages that are otherwise available to parties in contract actions ...."

Benevento v. Life USA Hold ing, Inc., 61 F.Supp.2d 407, 425 (E.D.Pa. 1999) (citations omitted); Gray v. Nationwide Mut. Ins. Co., 422 Pa. 500, 223 A.2d 8, 11 (Pa.1966) (holding that a common law breach of contract action will lie for the insurer’s failure to comply with its obligation to act in good faith and with due care in representing the interests of the insured in its failure to settle with a third party); Johnson v. Beane, 541 Pa. 449, 664 A.2d 96, 101 (Cappy, J. concurring) (citing Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 134 A.2d 223 (1957)); see also Birth Center v. St. Paul Cos., 567 Pa. 386, 787 A.2d 376, 385-86 (Pa.2001) (holding that, in the context a third party case in which the insurer refused to settle a claim on behalf of the insured, “nothing in D Ambrosio bars a party bringing a bad faith action sounding in contract from recovering damages that are otherwise available to parties in contract actions ....”)

holding that a common law breach of contract action will lie for the insurer's failure to comply with its obligation to act in good faith and with due care in representing the interests of the insured in its failure to settle with a third party


Context: These facts, which would have sufficed to insulate TG from common-law liability for the acts of TGA, also sufficed to defeat this facet of TGA's workers' compensation immunity defense, for a North Carolina court would not find TGA to have been conducting the business of TG within the meaning of SS 97-9 if it could not hold TG liable for TGA's acts.

subsidiary that was distinct legal entity was not employee of parent for purposes of workers' compensation immunity

See Lewis v. Barn- hill, 267 N.C. 457, 148 S.E.2d 536, 544 (1966); see also McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117, 122 (1967) (stockholder does not possess corporation’s workers’ compensation immunity from suit); cf. Thomas v. Maigo Corp., 37 A.D.2d 754, 754, 323 N.Y.S.2d 106, 106-07 (4th Dep’t 1971) (subsidiary that was distinct legal entity was not employee of parent for purposes of workers’ compensation immunity); Daisernia v. Co-operative G.L.F.

stockholder does not possess corporation's workers' compensation immunity from suit


Context: The existence vel non of a credible threat of prosecution, critical to the injury-in-fact requirement for standing, factors into both branches of the ripeness equation. This is as it should be, for the reasonableness of the fear of enforcement is at the core of both standing and ripeness.

"Our conclusion that a reasonable threat of prosecution exists, for purposes of standing, effectively dispenses with any ripeness problem."

See Adult Video Ass’n v. Barr, 960 F.2d 781, 786 (9th Cir.1992) (“Our conclusion that a reasonable threat of prosecution exists, for purposes of standing, effectively dispenses with any ripeness problem.”), vacated, 509 U.S. 917, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), reinstated in relevant part, 41 F.3d 503 (9th Cir.1994); see also Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244-45 (11th Cir.1998) (considering ripeness and standing together in respect to a pre-enforcement challenge).


Context: Moreover, neither the Supreme Court in Actavis nor this Court in King Drug Co. required such detailed allegations at the pleading stage. The complaint in Actavis simply alleged that the. patentee paid various sums of money to generic manufacturers to induce them to delay their entry into the paten-tee's pharmaceutical drug market.

"[Pllaintiffs must allege facts sufficient to support the legal conclusion that the settlement at issue involves a large and unjustified reverse payment under Actavis."

King Drug Co., 791 F.3d at 410. The facts alleged by Effe-xor plaintiffs similarly, and thus plausibly, allege that Wyeth leveraged its extremely valuable promise not to enter the generic market with an authorized generic in exchange for Teva’s promise to delay entry into the Effexor XR market. See King Drug Co., 791 F.3d at 409 (allegations that patentee “sought to induce [the generic manufacturer] to delay its entry into the [relevant pharmaceutical drug] market by way of an unjustified no-AG agreement” sufficiently stated a claim “under Twombly and Iqbal for violation of the Sherman Act”); see also Loestrin, 814 F.3d at 552 (“[Pllaintiffs must allege facts sufficient to support the legal conclusion that the settlement at issue involves a large and unjustified reverse payment under Actavis.”).

allegations that patentee "sought to induce [the generic manufacturer] to delay its entry into the [relevant pharmaceutical drug] market by way of an unjustified no-AG agreement" sufficiently stated a claim "under Twombly and Iqbal for violation of the Sherman Act"


Context: Thus, while the judge found Green guilty of the drug and ammunition charges, and also of the assault and battery charge based on the March 5 incident, the judge found Green not guilty of the additional assault and battery charge and also of the threat charge. Such discernment by the factfinder in assessing the evidence is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant.

jury's acquittal on some of several counts suggests that the jury was not confused by joinder

See also United States v. Edgar, 82 F.3d 499, 504 (1st Cir.), cert, denied, 519 U.S. 870 (1996) (jury’s acquittal on some of several counts suggests that the jury was not confused by joinder).

See Commonwealth v. Delaney, 425 Mass. 587, 595 (1997), cert, denied, 522 U.S. 1058 (1998) (defendant had not been prejudiced by joinder of offenses for trial where it was clear from not guilty verdicts on some of the charges that the jury had carefully considered the evidence with respect to each crime charged).


Context: Although the conduct of Brigian's retained attorney was egregious and Brigian's inability to obtain his court records is unfortunate, it is far from clear whether either situation would constitute an ex traordinary circumstance sufficient to satisfy the first prong of the analysis.

"[Attorney error [is] inadequate to create the 'extraordinary1 circumstances equitable tolling requires."

See Smaldone, 273 F.3d at 138 (“[Attorney error [is] inadequate to create the ‘extraordinary1 circumstances equitable tolling requires.”); Davis v. McCoy, No. 00 Civ. 1681, 2000 WL 973752, at *2 (S.D.N.Y. July 14, 2000) (holding that inability to obtain court documents did not constitute “extraordinary circumstance”).

finding that intentional confiscation of petitioner's legal papers by corrections officer constituted an "extraordinary" circumstance

But see Valverde, 224 F.3d at 133-34 (finding that intentional confiscation of petitioner’s legal papers by corrections officer constituted an “extraordinary” circumstance).


holding that inability to obtain court documents did not constitute "extraordinary circumstance"


Context: We agree with the reasoning of the Eighth Circuit that "[a] reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act." If the victim testifies that she woke up while the sexual act was ongoing, this "provide[s] sufficient evidence for the jury to conclude that penetration occurred while she was asleep."

Id.; see also United States v. Smith, 606 F.3d 1270, 1281 (10th Cir.2010) (holding that evidence was sufficient where, inter alia, the victim “woke up to find [the defendant] on top of her and engaged in sex”); cf. United States v. Peters, 277 F.3d 963, 967-68 (7th Cir.2002) (holding that evidence was insufficient where the record was silent with respect to the hour-and-a-half period in which the sexual act occurred); United States v. Williams, 89 F.3d 165, 168 (4th Cir.1996) (holding that evidence was insufficient where the victim testified that she was awake and “communicated her desire not to have sexual intercourse” with the defendant).

holding that evidence was sufficient where, inter alia, the victim "woke up to find [the defendant] on top of her and engaged in sex"


holding that evidence was insufficient where the victim testified that she was awake and "communicated her desire not to have sexual intercourse" with the defendant


Context: . Although a fact-centric approach might make sense in the SS 924(j) context because the statute addresses present rather than past conduct, which would enable a fact-finder to focus on the risk presented by the nature of a defendant's actual conduct, case law squarely holds that the language of SS 924(c) requires courts to use a categorical approach.

noting that the court employs a categorical approach to determine if an offense is a "crime of violence" under SS 924(c

See Leocal, 543 U.S. at 7, 125 S.Ct. 377 (observing that because [§ 16] directs our focus to the 'offense’ of convictionf,] the court must "look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [the] crime”); Evans, 644 F.3d at 453 (relying on Leocal and applying the categorical approach to § 924(c) crime-of-violence inquiry); see also United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir.2013) (noting that the court employs a categorical approach to determine if an offense is a "crime of violence” under § 924(c)(3)(B) because of the phrase "by its nature”); United States v. Velazguez-Overa, 100 F.3d 418, 420 (5th Cir.1996) ("[T]he phrase 'by its nature’ compels a categorical approach to determining whether an offense is a crime of violence under Section 16(b).”).

observing that because [SS 16] directs our focus to the 'offense' of convictionf,] the court must "look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [the] crime"


"[T]he phrase 'by its nature' compels a categorical approach to determining whether an offense is a crime of violence under Section 16(b


relying on Leocal and applying the categorical approach to SS 924(c


Context: In soliciting a medical opinion on the question of the "etiological[ ] relationship between the vet[eran]'s service-connected chest injury and his fatal emphysema," the Board employee himself provided the answer: "Clearly, his inserviee chest injury was not related to his fatal pulmonary emphysema." The Court holds that such a statement evidences that there was no process at work to ensure impartiality, and creates the impression that the Board was not securing evidence to determine the correct outcome, but rather to support a predetermined outcome.

noting the "marked difference between the issuance of a press release which states that the Commission has filed a complaint because it has 'reason to believe' that there have been violations, and statements by a Commissioner after an appeal has been filed which give the appearance that he has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves"

See Withrow v. Larkin, 421 U.S. 35, 47, 54, 95 S.Ct. 1456, 1464, 1468, 43 L.Ed.2d 712 (1975) (although the combination of investigative and adjudicative functions does not necessarily create an unconstitutional “bias or the risk of bias or prejudgment” in the administrative adjudication, the Supreme Court cautioned that “we should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice”); see also City of Charlottesville v. FERC, 774 F.2d 1205, 1212 (D.C.Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986) (“[i]n order to establish improper prejudgment of a case, it must appear to ‘a disinterested observer ... that [the agency] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it’” (citations omitted)); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C.Cir.1970) (noting the “marked difference between the issuance of a press release which states that the Commission has filed a complaint because it has ‘reason to believe’ that there have been violations, and statements by a Commissioner after an appeal has been filed which give the appearance that he has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves”); cf. Burke v. Bd. of Governors of the Federal Reserve System, 940 F.2d 1360, 1368 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1957, 118 L.Ed.2d 559 (1992) (ex parte communication restriction of the Administrative Procedure Act (APA) did not apply to a legal memorandum from the agency’s legal counsel to the administrative law judge because the memorandum constituted contact within the agency); Do-Right Auto Sales v. Howlett, 401 F.Supp. 1035, 1039 (N.D.Ill.1975) (“fact that an investigator in an administrative body is biased is not fatal to the decision of that body ... [; w]hat is crucial to the validity of a decision is the actual impact of bias on the person who makes the decision”) (citations omitted).

although the combination of investigative and adjudicative functions does not necessarily create an unconstitutional "bias or the risk of bias or prejudgment" in the administrative adjudication, the Supreme Court cautioned that "we should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice"


ex parte communication restriction of the Administrative Procedure Act (APA


ex parte communication restriction of the Administrative Procedure Act (APA) did not apply to a legal memorandum from the agency's legal counsel to the administrative law judge because the memorandum constituted contact within the agency


Context: It is immediately evident that the Commission was inconsistent in its applica tion of the legal concept of "misconduct." The legal definition of "misconduct," because it is an interpretation of the language of a statute, is a question of law. See Petet v. State, Dep't ofSoc. While no court has interpreted "misconduct" as used in SS 313.812.14(9), the Missouri Supreme Court has defined the term in another context by utilizing the dictionary definition found in Black's Law Dictionary.

defining misconduct in the context of judicial discipline proceedings by reference to Black's Law Dictionary

See In re Baber, 847 S.W.2d 800, 806 (Mo. banc 1993) (defining misconduct in the context of judicial discipline proceedings by reference to Black’s Law Dictionary); See also In re Conard, 944 S.W.2d 191, 201 (Mo. banc 1997) (applying the dictionary definition as set forth in Baber, 847 S.W.2d at 806). The Supreme Court found that “[m]iseonduct means transgression, dereliction, unlawful, or wrongful behavior, or impropriety that is willful in nature.” Conard, 944 S.W.2d at 201. Since the Supreme Court did not define “willful” in Baber or Conard, this court utilizes the dictionary definition of “willful.” “Willful” is defined as “proceeding from a conscious motion of the will; ... deliberate.


Context: (Defs.' Br. at 24-29.) More specifically, Defendant Wembley USA underscores Plaintiffs argument in her seventh claim that the same alleged retaliatory actions were based on her complaints to the EEOC regarding sex discrimination. (Defs.' Br. at 26-29.) Defendant Wembley USA points to Colorado case law expressly supporting its position that in order to bring a successful claim under section 8-2.5-101, a plaintiff must establish that any action was taken solely because of the plaintiffs testimony.

upholding dismissal of section 8-2.5-101 claim where the disciplinary action in question "was not based on the sole fact that [the plaintiff] provided testimony"

See Hoffler v. Colo. Dep't of Corr., 27 P.3d 371, 376 (Colo.2001) (upholding dismissal of section 8-2.5-101 claim where the disciplinary action in question “was not based on the sole fact that [the plaintiff] provided testimony”); see also Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165, 1168 (Colo.Ct.App.2005) (explaining section 8-2.5-101 “concretely and discernibly prohibits employers from forbidding or preventing employees from honoring requests for their testimony,” and expresses public policy for employees “to be free from termination or other adverse employment action solely for fulfilling” such requests).

explaining section 8-2.5-101 "concretely and discernibly prohibits employers from forbidding or preventing employees from honoring requests for their testimony," and expresses public policy for employees "to be free from termination or other adverse employment action solely for fulfilling" such requests


Context: One federal circuit extended the Kelly rationale to include federal restitution orders, even though the court recognized that Kelly "was partially influenced by federalism concerns."

United States v. Caddell, 830 F.2d 36, 39 (5th Cir.1987) (restitution order did not illegally require debt- or to divert funds from Chapter 11 estate); see also In re Wright, 87 B.R. 1011, 1015 n. 3 (Bankr.S.D.1988) (restitution ordered by federal district court not discharged in Chapter 7 proceeding); In re O’Connell, 80 B.R. 475, 476 (Bankr.E.D.Mo.1987) (same).


Context: . We do not address whether appellee's act of producing government records may be used against her in subsequent criminal proceedings.

corporate custodian's act of production may not be used against the custodian in a criminal prosecution

See Braswell, 487 U.S. at 117-18 & n. 11, 108 S.Ct. at 2295 & n. 11 (corporate custodian’s act of production may not be used against the custodian in a criminal prosecution); cf. Baltimore City Dep’t of Social Services v. Bouknight, 493 U.S. 549, 561, 110 S.Ct. 900, 908, 107 L.Ed.2d 992 (1990) (“The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony.”).

"The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony."


Context: We have phrased this rule slightly differently in two cases.

test for determining whether trial court has subject matter jurisdiction over counterclaim in unlawful detainer action is whether "resolution of the [tenant's] damage claim is . . . necessary to determine the right of possession"

See First Union Mgmt., Inc., 36 Wn. App. at 854 (test for determining whether trial court has subject matter jurisdiction over counterclaim in unlawful detainer action is whether “resolution of the [tenant’s] damage claim is . . . necessary to determine the right of possession”); see also Int’l Raw Materials, Ltd., 96 Wn. App. at 438 (in unlawful detainer action, trial court may resolve any issues necessarily related to the parties’ dispute over possession of the property).

in unlawful detainer action, trial court may resolve any issues necessarily related to the parties' dispute over possession of the property


Context: In Pradubsri's case, the circuit court used truth-seeking language almost identical to that challenged in Needs. However, the circuit court referenced the "beyond a reasonable doubt" standard at least twenty times during its instruc tions. Further, the instructions did not contain Manning's disfavored language.

holding a charge was harmless partly because "it did not contain ... troubling language identified in Manning"

See Needs, 333 S.C. at 155, 508 S.E.2d at 867 (holding a charge was harmless partly because “it did not contain ... troubling language identified in Manning”); see also State v. Kirkpatrick, 320 S.C. 38, 46, 462 S.E.2d 884, 889 (Ct. App. 1995) (noting a charge was not defective partly because it lacked “language found objectionable in the Manning case”).

noting a charge was not defective partly because it lacked "language found objectionable in the Manning case"


Context: Whatever their legal merit, these contentions, like claims by other prisoners challenging the computation of a sentence, may not be raised under SS 23-110. Because such contentions concern the executive department's execution of sentence, not the trial court's imposition of sentence, they must be raised in a habeas corpus petition as the prisoners did in Lewis, Johnson, and Scott.

See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973) (habeas corpus sole federal remedy for challenging imprisonment or seeking speedier release); Chatman-Bey v. Thornburgh, 274 U.S.App.D.C. 398, 404 n. 5, 864 F.2d 804, 810 n. 5 (1988) (habeas corpus sole remedy for challenging parole eligibility); United States v. Monteer, 556 F.2d 880, 880-81 (8th Cir.1977) (prisoner’s request for restoration of good time credits challenges manner of execution of sentence, not sentence itself, and must be brought by habeas corpus); see also Brame v. Palmer, 510 A.2d 229 (D.C.1986) (prisoner serving new sentence after probation revocation filed petition for writ of habeas corpus seeking credit for time served on original sentence).


prisoner's request for restoration of good time credits challenges manner of execution of sentence, not sentence itself, and must be brought by habeas corpus


Context: Rather the former patient evidence is the type of character evidence contemplated under Rule 404(b). This evidence of Dr. Seltzer's treatment of the former patients was clearly an attempt to show that Dr. Seltzer treated Weil in conformity with his treatment of the five testifying patients.

admission of police officer's personnel files containing evidence of other bad acts was error because it subjected officers to risk of unfair prejudice

See, e.g., Outley v. City of New York, 837 F.2d 587, 592-93 (2d Cir.1988) (evidence of six prior lawsuits filed by litigant improper under Rule 404(b) because it is improper evidence of the character trait of litigiousness); cf. Carter v. District of Columbia, 795 F.2d at 131 (admission of police officer’s personnel files containing evidence of other bad acts was error because it subjected officers to risk of unfair prejudice).


Context: Upon careful de novo review, we enforce the appeal waiver.

See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc) (court should enforce appeal waiver and dismiss appeal where it falls within scope of waiver, plea agreement and waiver were entered into knowingly and voluntarily, and no miscarriage of justice would result); see also United States v. Scott, 627 F.3d 702, 704 (8th Cir.2010) (de novo review of validity and applicability of appeal waiver).


Context: The trial court concluded that permitting deadly force to protect the commission of a felony in one's home would establish a "lower standard" for self-defense than set forth in Boyce. But the trial court's deletion of statutory language cannot be justified in light of common law principles because there is a "defense of habitation" at common law.

a person may take the life of another who attempts to force an entrance into the person's house to commit a felony or inflict serious personal injury

See State v. Miller, 267 N.C. 409, 148 S.E.2d 279, 281 (1966) (a person may take the life of another who attempts to force an entrance into the person’s house to commit a felony or inflict serious personal injury); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.9 (West 1986) (same); Annotation, Homicide or Assault in Defense of Habitation or Property, 25 A.L.R. 508, 509 (1923) (same); 1 Paul H.

See, e.g., State v. Johnson, 289 Minn. 196, 201-02, 183 N.W.2d 541, 544-45 (1971) (necessity may be a general defense to criminal liability although not specifically provided for in statute); cf. State v. Hanson, 468 N.W.2d 77, 78-79 (Minn.App.) (common law defense of necessity should not be applied to possession of marijuana where legislature has specifically limited medical use of marijuana), pet. for rev. denied (Minn. June 3, 1991). See generally Rollin M.


necessity may be a general defense to criminal liability although not specifically provided for in statute


Context: Moreover, Allen's guilty plea to securities fraud did not establish willfulness as to the securities element.

See People v. Pahl, 169 P.3d 169, 185 (Colo.App.2006)(willfulness does not require proof that defendant knew the transaction involved a security); see also Destro, - P.3d at -, 2008 WL 2202099, at *2 ("Proof of knowledge that an investment is a security is not required for a conviction of 'willful securities fraud.").


Context: Although General Poly evidently was not satisfied with the quality of the resin from that run, it cannot now argue that it did not have notice of its existence. Second, even if the record were otherwise, we are unwilling to read into the written agreement an obligation on the part of Allied to notify General Poly of the availability of prime resin, because no such provision appears in the clear and unambiguous language of the agreement.

"Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument."

See Meccico v. Meccico, 559 N.Y.S.2d 974, 76 N.Y.2d 822, 559 N.E.2d 668 (1990) (“Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument.”); cf. Remetich v. Remetich, 110 A.D.2d 760, 488 N.Y.S.2d 49 (1985) (plaintiff failed to exercise an option to purchase “in the clear and explicit manner stated in the separation agreement”).

plaintiff failed to exercise an option to purchase "in the clear and explicit manner stated in the separation agreement"


Context: Second, Badon's oral explanation of the coefficient employee pay scheme accorded with the clear understanding criterion. It included a statement that the new coefficient employee would receive his or her salary, regardless of the number of hours he or she was assigned to work in a week. She also secured written statements expressing an understanding of her presentation.

"where an employee has signed and acknowledged an explanatory form indicating how FLSA's fluctuating workweek plan operates, a 'clear mutual understanding of the parties exists' "

See Condo, 1992 WL 317199, at *3 (“where an employee has signed and acknowledged an explanatory form indicating how FLSA’s fluctuating workweek plan operates, a ‘clear mutual understanding of the parties exists’ ”); see also Highlander, 805 F.2d at 647-48 (no clear error in finding that employee, who signed a form acknowledging her understanding of the fluctuating workweek method, possessed a clear comprehension of how she was paid); cf. Bailey, 94 F.3d at 156 (“nor do the regulation and the FLSA in any way indicate that an employer must secure from its employees written acknowledgments indicating that the employees’ pay plan has been explained to them”). Badon’s explication, along with the written example, enabled Conn to fulfill the clear understanding criterion.


"nor do the regulation and the FLSA in any way indicate that an employer must secure from its employees written acknowledgments indicating that the employees' pay plan has been explained to them"


Context: This court will "only enforce appeal waivers to which the defendant knowingly and voluntarily agreed."

Ibarra-Coronel, 517 F.3d at 1222. And here, Richardson makes no such no argument. See Anderson, 374 F.3d at 958-59 (treating appeal waiver as knowing and voluntary where defendant did not address the issue on appeal); see also Lyons, 510 F.3d at 1233 (deeming appeal waiver to be knowing and voluntary where defendant did not specifically address that issue in his opening brief and did not file a reply brief).


Context: P13 Our usual standard of review with respect to parenting plan modifications is as follows: we review the findings underlying a district court's decision to modify a parenting plan to determine whether those findings are clearly erroneous; and when the findings upon which the modification decision is predicated are not clearly erroneous, we will reverse the district court's decision only where an abuse of discretion is clearly demonstrated.

'Where . . . the issue on appeal is whether the trial court followed the statutory requirements for a sentence revocation, the question is a matter of law, and our review is plenary."

In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9. In a case such as this, however, where the allegation is that the district court made no such findings in the first place and the issue is whether the court’s action conforms to statutory requirements, we are presented with a question of law, which we review de novo. See In re T.H., 2005 MT 237, ¶ 35, 328 Mont. 428, ¶ 35, 121 P.3d 541, ¶ 35 (“We review a district court’s interpretation and application of statutes for correctness.”); Wombold v. Assoc. Financial Services Co., 2004 MT 397, ¶ 30, 325 Mont. 290, ¶ 30, 104 P.3d 1080, ¶ 30 (“Issues of statutory interpretation are reviewed de novo.”); cf. State v. Williams, 2003 MT 136, ¶ 8, 316 Mont. 140, ¶ 8, 69 P.3d 222, ¶ 8 (‘Where . . . the issue on appeal is whether the trial court followed the statutory requirements for a sentence revocation, the question is a matter of law, and our review is plenary.”).

"We review a district court's interpretation and application of statutes for correctness."


Context: Jenney cannot seriously contend that the employment agreement is protected by the attorney-client privilege be- # cause both he and Airdata had copies of the agreement before Jenney retained his former attorney to negotiate the retirement agreement. The fact that Jenney may have given a copy of the employment agreement to the attorney negotiating the retirement agreement does not convert the nonprivileged employment agreement into a privileged document.

See Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. 3d DCA 1982) (holding that a document which is given to an attorney in the course of seeking legal advice is privileged in the hands of the attorney only if it was privileged in the hands of the client); cf. Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980) (holding that if documents are privileged in the hands of the client, they retain that privilege when given to an attorney for the purpose of seeking legal advice).


Context: The Endangered Species Act does not itself define "range." That seems to accord with the Service's position that "range" refers to "current range."

Congress has "used the present tense to refer to past convictions"

But see McNeill v. United States, 563 U.S. 816, 821-822, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) (Congress has “used the present tense to refer to past convictions”).

"The use of the present tense in a statute strongly suggests it does not extend to past actions."

See Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions.”).


Context: At this point, based upon the deputy's prior observation of Spangler's traffic infractions, coupled with his detecting the odor of alcohol, the deputy had a reasonable, articulable suspicion that Spangler might be intoxicated as well. Thus, under Terry, the deputy had the legal authority to fully detain Spangler for an investigatory stop. When Spangler ignored the deputy's requests to stop, Manthei instructs that the deputy could then legally enter the open garage to complete the Terry detention of Spangler. To permit Spangler to retreat into his business at this point, when he knew he was being detained and was not free to go, would defeat the very purpose of a Terry stop..

"In a Terry stop, the officer communicates to the detainee, either orally or through a show of force or authority, that he is not free to go about his business."

See Manthei, 939 P.2d at 559; see also State v. Zubizareta, 122 Idaho 823, 827, 839 P.2d 1237, 1241 (Ct.App.1992) (“In a Terry stop, the officer communicates to the detainee, either orally or through a show of force or authority, that he is not free to go about his business.”); cf. State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Ct.App.1989) (where defendant who was previously on open porch and then pursued into his house, the court notes that the critical question is whether the officers attempted to arrest or detain defendant on the porch prior to his entry into the home).


Context: The government's contention is not unreasonable under our general law of forfeiture and plain error.

seeking to clarify Tenth Circuit precedent by concluding that where a defendant "did not object on procedural grounds under SS 3553(a) or (c

See United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007) (seeking to clarify Tenth Circuit precedent by concluding that where a defendant “did not object on procedural grounds under § 3553(a) or (c) after the district court imposed his sentence, he has forfeited his right to appeal this issue and our review is only for plain error”); see also United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir.2005) (where defendant argued that “the district court erroneously sentenced him to consecutive sentences under a mandatory guidelines system,” holding that “we review for plain error” because defendant “did not raise his Booker argument in the district court”).

where defendant argued that "the district court erroneously sentenced him to consecutive sentences under a mandatory guidelines system," holding that "we review for plain error" because defendant "did not raise his Booker argument in the district court"


Context: The SEC says-their-lifetimes, but with no justification beyond the asserted egregiousness of Defendants' conduct. Section 78u(d)(2),-however, is not an all-or-nothing standard] it gives courts the discretion to grant an officer-or-director bar "for such period of time as [the -court] shall determine;" And Patel suggests that lifetime bans may not be warranted. where a fixed-term bar might suffice.

ordering five-year bar despite defendant's knowing and deliberate violations because "a permanent bar ... is far too draconian a remedy"

See Johnson, 595 F.Supp.2d at 45-46 (ordering five-year bar despite defendant’s knowing and deliberate violations because “a permanent bar ... is far too draconian a remedy”).

Patel, 61 F.3d at 142, Given the award of a permanent -bar on securities-law, violations and the fact that neither Defendant is a repeat offender, see SEC v. Bankosky, No. 12-1012, 2012 WL 1849000, at *2 (S.D.N.Y. May 21, 2012) (repeat offenders are those who committed securities violations outside of the ones giving rise to the present litigation), aff'd, 716 F.3d 45 (2d Cir.2013), the Court concludes that, especially given her age, a ten-year bar for Grace and a five-year bar for Saito are sufficient and appropriate.


Context: The discharge exceptions are to be narrowly construed in favor of the debtor since the aim of the Bankruptcy Code is to give the debtor a fresh start. To meet the definition of "embezzlement," there must be proof of the debt- or's fraudulent intent in taking the property.

requiring an intent to defraud for a determination of whether there has been a breach of a fiduciary relationship under SS 523(a

See Brady v. McAllister (In re Brady), 101 F.3d 1165, 1173 (6th Cir.1996) (“A creditor proves embezzlement by showing that he entrusted his property to the debtor, the debtor appropriated the property for a use other than that for which it was entrusted, and the circumstances indicate fraud.”); In re Sokol, 170 B.R. 556, 560 (Bankr.S.D.N.Y.1994); cf. Coburn Co. v. Nicholas, 956 F.2d 110, 111 (5th Cir.1992) (requiring an intent to defraud for a determination of whether there has been a breach of a fiduciary relationship under § 523(a)(4)).

"A creditor proves embezzlement by showing that he entrusted his property to the debtor, the debtor appropriated the property for a use other than that for which it was entrusted, and the circumstances indicate fraud."


Context: Moreover, Congress' decision to give DOE express authority to issue remedial orders does not automatically mean that the agency lacked the authority prior to passage of the provision. Courts have held both expressly and impliedly that the Federal Energy Administration (FEA), DOE's predecessor, had power to issue remedial orders before October 1977.

See Getty Oil Co. v. Dep’t of Energy, 478 F.Supp. 523, 527, n. 4 (C.D.Cal.1978) (holding the FEA had authority to issue a remedial order in September, 1976, despite plaintiff's contention that FEA had no such power until passage of 42 U.S.C. § 7193 expressly authorized DOE to issue remedial orders); see also Sauder v. Dep't of Energy, 648 F.2d 1341 (Temp.Emer.Ct.App.1981) (affirming aRO issued on November 4, 1976, which held plaintiff liable for crude oil overcharges).

holding the FEA had authority to issue a remedial order in September, 1976, despite plaintiff's contention that FEA had no such power until passage of 42 U.S.C. SS 7193 expressly authorized DOE to issue remedial orders


Context: Even if late-filed tax documents can sometimes qualify as returns, the BAPCPA definition also demands that a return satisfy "the requirements of applicable nonbankruptcy law." Both parties to this case, and all courts to consider the issue, agree that the term "applicable nonbankruptcy law" incorporates the Beard test.

declining to apply Beard test because the one-day-late rule meant that late tax filings could never be returns, and therefore declining to apply any "applicable non-bankruptcy law" at all

See, e.g., In re Martin, 500 B.R. 1, 8 (D.Colo.2013) aff'd sub nom. In re Mallo, 774 F.3d 1313 (10th Cir.2014) (holding that the Beard test “constituted the ‘applicable nonbankruptcy law1 — pursuant to the first sentence of the hanging paragraph provided by the BAPC-PA — for purposes of determining whether a filing is a ‘return’ under § 523(a)(1)(B)®”); In re Rhodes, 498 B.R. 357, 367 (Bankr.N.D.Ga.2013) (applying Beard test “to determine whether a late-filed, post-assessment return is, in fact, a ‘return’ for purposes of dischargeability considerations under clause (i) of § 523(a)(1)(B)”); cf. In re Casano, 473 B.R. 504, 507 (Bankr.E.D.N.Y.2012) (declining to apply Beard test because the one-day-late rule meant that late tax filings could never be returns, and therefore declining to apply any “applicable non-bankruptcy law” at all).

holding that the Beard test "constituted the 'applicable nonbankruptcy law1 -- pursuant to the first sentence of the hanging paragraph provided by the BAPC-PA -- for purposes of determining whether a filing is a 'return' under SS 523(a


applying Beard test "to determine whether a late-filed, post-assessment return is, in fact, a 'return' for purposes of dischargeability considerations under clause (i


Context: Without a rule that plaintiff have a live claim at least when the motion to certify is filed, the "case or controversy" requirement would be almost completely eviscerated in the class action context, since almost anybody might be deemed to have standing to move to certify a class. For example, a concerned citizen, with no personal grievance whatsoever against defendant, might file a class action out of empathy for those who were allegedly injured. However, "[t]o permit the certification of a class headed by a 'representative' who did not have a live controversy with the defendant on the day the suit began would be to jettison the last vestiges of the case-or-controversy requirement in class actions."

"[A] predicate to appel-lee's right to represent a class is his eligibility to sue in his own right."

Holmes v. Fisher, 854 F.2d 229, 233 (7th Cir.1988) (affirming dismissal of civil rights complaint brought by arrestee who claimed he was detained without a warrant but was arraigned before filing the suit); see also Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 734 (3d Cir.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971) (“[A] predicate to appel-lee’s right to represent a class is his eligibility to sue in his own right.”); Note, Class Standing and the Class Representative, 94 Harv.L.Rev. 1637, 1637 (1981) (“It is axiomatic that an uninjured plaintiff cannot bring suit on behalf of an injured class.”).


Context: However, neither, the Supreme Court nor this court has adopted the "continuing seizure" doctrine. Thus, even if we assume that being "subject to the authority of the [court]" constitutes a Fourth Amendment seizure, defendants would still be entitled to qualified immunity because the particularized right alleged -- the right to be free from a "continuing seizure" by virtue of a pending criminal charge -- is not clearly established.

"[Existing precedent must have placed the statutory or constitutional question beyond debate."

See Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (“[Existing precedent must have placed the statutory or constitutional question beyond debate.”); see also Williams v. Crosby, 43 F.Supp.3d 794, 805 (ND.Ohio 2014) (“Far from being clearly established in September 2012, this point of law [regarding “continuing seizures” and malicious-prosecution claims] was (and remains) expressly unsettled in this Circuit.”).

"Far from being clearly established in September 2012, this point of law [regarding "continuing seizures" and malicious-prosecution claims] was (and remains) expressly unsettled in this Circuit."


Context: Standing alone, a vehicle that hails from a purported known drug source area is, at best, a weak factor in finding suspicion of criminal activity. In this Circuit alone, police testimony has identified an extremely broad range of known "drug source areas."

collecting cases and noting that law enforcement officers have identified a number of drug supply states and a significant number of the largest cities in the United States as "drug source cities"

See, e.g., United States v. Nicholson, 144 F.3d 632, 638 (10th Cir.1998) (identifying the entire West Coast as a drug source area); United States v. Scarborough, 128 F.3d 1373, 1378 (10th Cir.1997) (Colorado); Wood, 106 F.3d at 947 (California); United States v. Garrett, 47 F.Supp.2d 1257, 1265 (D.Kan.1999) (Texas); see also United States v. Beck, 140 F.3d 1129, 1138 & n. 3 (8th Cir.1998) (collecting cases and noting that law enforcement officers have identified a number of drug supply states and a significant number of the largest cities in the United States as “drug source cities”).


Context: We believe that there could be no misunderstanding by a veteran of the horse-racing industry like Perez -- indeed, by any reasonable person -- that banging on tables, repeatedly shouting obscenities and threatening to choke a racing official at an official Stewards' meeting would impede the Stewards' efforts to investigate Perez's very serious allegations -- that Lakow was "fixing" races by manipulating race entries -- and, thus, constitute conduct "detrimental to the best interests of racing generally."

observing that although regulation prohibiting "improper language" and "improper conduct" might be "seriously deficient" as a "norm addressed to the general public for the conduct of daily affairs," the regulation is not vague because, inter alia, it is addressed only to Illinois horse-racing licensees and is "administered by an agency that, through a series of decisions, can add details"

See Hadges v. Corbisiero, 739 F.Supp. 792, 793 (S.D.N.Y.1989) (holding that harness-racing regulation prohibiting “conduct detrimental to the best interests of racing” was not vague as applied to plaintiff who was an “experienced horseman” and should have known that passing wagering information was prohibited); cf. LeRoy v. Illinois Racing Bd., 39 F.3d 711, 715 (7th Cir.1994) (observing that although regulation prohibiting “improper language” and “improper conduct” might be “seriously deficient” as a “norm addressed to the general public for the conduct of daily affairs,” the regulation is not vague because, inter alia, it is addressed only to Illinois horse-racing licensees and is “administered by an agency that, through a series of decisions, can add details”), cert. denied, 515 U.S. 1131, 115 S.Ct. 2555, 132 L.Ed.2d 809 (1995).

holding that harness-racing regulation prohibiting "conduct detrimental to the best interests of racing" was not vague as applied to plaintiff who was an "experienced horseman" and should have known that passing wagering information was prohibited


Context: . Accordingly, the United States Court of Federal Claims has relied on other federal court decisions to construe RCFC 23.

"Owing to the fact that the language of RCFC 23 and Federal Rule 23 is, in many regards, identical, this opinion relies upon nu merous decisions that have construed the relevant portions of the latter rule."

Haggart v. United States, 89 Fed.Cl. 523, 529-30 (Fed.Cl.2009) ("Cases applying [FRCP 23] have been examined and followed in interpreting RCFC 23.”); see also Barnes v. United States, 68 Fed.Cl. 492, 494, n. 1 (2005) (“Owing to the fact that the language of RCFC 23 and Federal Rule 23 is, in many regards, identical, this opinion relies upon nu merous decisions that have construed the relevant portions of the latter rule.”).

"Cases applying [FRCP 23] have been examined and followed in interpreting RCFC 23."


Context: Plaintiffs' other evidence of public use is unavailing. Darlin Brin's testimony that he and neighborhood children played in the roads and that he walked the roads to travel from his house to Charlotte Amalie High School does not establish an easement for vehicular use, which Plaintiffs seek. Similarly, DeLugo's testimony that "anyone trying to beat traffic" would use the hotel's roads and parking lot as a cut-through road does not establish by clear and convincing evidence an intent on the part of BCI or its predecessors to dedicate the entrance and exit roads and middle aisle of the hotel parking lot to the public for a public highway.

use of a driveway in commercial area "by persons not desiring to shop or to park, but who intended to drive [through] as a matter of convenience or to avoid a traffic light" was insufficient to show offer to dedicate by property owner

See Blank v. Park Lane Center, 209 Md. 568, 121 A.2d 846, 848 (Md. 1956) (use of a driveway in commercial area “by persons not desiring to shop or to park, but who intended to drive [through] as a matter of convenience or to avoid a traffic light” was insufficient to show offer to dedicate by property owner); see also Shapiro Bros. v. Jones-Festus Properties, 205 S.W.3d 270, 277-278 (Mo. Ct. App. 2006) (fact that some members of the general public used parking lot of shopping establishment as a shortcut was insufficient to show an offer to dedicate); Security Fed. Sav. & Loan Assn. v. C & C Investments, 448 N.W.2d 83, 87-89 (Minn. Ct. App. 1989) (use of parking lot as a cut through is insufficient to demonstrate an offer to dedicate); Snow v. Murphy, 248 Mich. 659, 227 N.W. 544, 545 (Mich. 1929) (“mere permissive use of a private road by the general public, however long continued, will not make it a public highway”).


use of parking lot as a cut through is insufficient to demonstrate an offer to dedicate


"mere permissive use of a private road by the general public, however long continued, will not make it a public highway"


Context: We have held that an "estate bringing a decedent's SS 1983 claims may seek damages allowable under a state wrongful death statute." Indiana permits recovery for damages caused by an individual's wrongful acts or omissions that led to the decedent's death, including "[reasonable medical expenses, hospital, funeral, and burial expenses.... " Ind.Code SS 34-23-l-2(c). Thus, if the defendants' acts were found to be excessive, the Estate would have been allowed to present evidence of Escobedo's death to demonstrate the full scope of the injuries he sustained and to advance its theory that the defendant commanders proximately caused those injuries.

"[T]he ordinary rules of tort causation apply to constitutional tort suits."

See Guzman v. City of Chi, 689 F.3d 740, 745-46 (7th Cir.2012) (“[Liability must be resolved before the question of damages is reached.”); see also Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir.2002) (“[T]he ordinary rules of tort causation apply to constitutional tort suits.”); Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir.1999) (“[A] plaintiff must demonstrate both that he has suffered an ‘actual’ present injury and that there is a causal connection between that injury and the deprivation of a constitutionally protected right caused by a defendant.”).

"[Liability must be resolved before the question of damages is reached."


"[A] plaintiff must demonstrate both that he has suffered an 'actual' present injury and that there is a causal connection between that injury and the deprivation of a constitutionally protected right caused by a defendant."


Context: While it is difficult to precisely define what, exactly, may constitute a dangerous condition, the cases that consider small holes, voids, or height deviations in walkways or roadway surfaces generally hold that such defects are not dangerous conditions as defined by the Tort Claims Act.

"[T]he relevant case law includes many examples of minor surface defects that do not constitute dangerous conditions."

{See, e.g., Polyard, 390 A.2d at 655-56 (three-eighths inch differential in road height not a dangerous condition for vehicular travel); McCarthy, 2001 WL 1917169, at *2 (one and one-half inch horizontal gap and one and one-quarter inch vertical height difference between concrete sidewalk slabs not a dangerous condition for pedestrians); Cordy, 975 F.Supp. at 641. (railroad track raised seven-eighths of an inch above roadway surface not a dangerous condition for bicycle riders); Mendelsohn, 2004 WL 2314819, at *4 (nail raised one-quarter inch above boardwalk surface not a dangerous condition for pedestrians); Gohel v. Sherry, No. A-1610-97T1, 1998 WL 34024178 (N.J.Super.Ct.App.Div.1998) (two sidewalk cracks — one to two inches wide, one-half inch deep, and five to six inches long — not a dangerous condition for pedestrians); see also, Ciricillo v. United States, 2005 WL 2406096, at *3 (D.N.J. Sept. 29, 2005) (“[T]he relevant case law includes many examples of minor surface defects that do not constitute dangerous conditions.”)).


one and one-half inch horizontal gap and one and one-quarter inch vertical height difference between concrete sidewalk slabs not a dangerous condition for pedestrians


railroad track raised seven-eighths of an inch above roadway surface not a dangerous condition for bicycle riders


nail raised one-quarter inch above boardwalk surface not a dangerous condition for pedestrians


two sidewalk cracks -- one to two inches wide, one-half inch deep, and five to six inches long -- not a dangerous condition for pedestrians


Context: P.), the court held that, although a motion to amend the sentence did not come within the precise language of Temp. Rule 13, it was within the coverage of that rule. In affirming this holding, our supreme court noted that "the provisions of subsection (d) [now Rule 24.4] regarding denial of such a motion by operation of law would also apply." 475 So.2d at 600 n. 1. However, other caselaw appears to support a different conclusion.

See, e.g., Martinez v. State, 602 So.2d 504 (Ala.Crim.App.1992) (a motion to reconsider the sentence does not fall within that category of motions that tolls the time for appeal).

Cf. Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995) (an application for probation does not fall within the purview of Rule 24.4 and, thus, cannot be denied by operation of law).


Context: P 9 And, when the Legislature has intended to reclassify other repetitive misdemeanors as felonies, it has specifically done so in the substantive statute. For instance, the shoplifting statute expressly provides that misdemeanor shoplifting is reclassified as a class 6 felony when the defendant shoplifts on three different occasions within a 90-day period.

"[W]e assume that when the legislature uses different language within a statutory scheme, it does so with the intent of ascribing different meanings and consequences to that language."

A.R.S. §§ 13-3601(B), - 3601.02(A), (F). The Legislature has not specified a comparable reclassification for misdemeanor disorderly conduct, and we will not rewrite the statute to do so. See Comm. for Preservation of Established Neighborhoods v. Riffel, 213 Ariz. 247, 249-50, ¶ 8, 141 P.3d 422 (App. 2006) (“[W]e assume that when the legislature uses different language within a statutory scheme, it does so with the intent of ascribing different meanings and consequences to that language.”); see also Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821 (2002) (noting assumption “that the legislature has said what it means”).

noting assumption "that the legislature has said what it means"


Context: Contrary to the State's contention and in accord with petitioner's, daytime housebreaking could not possibly be encompassed by the categories of burglary in the first, second, and third degree because a conviction for statutory burglary requires a key element that was not required for a conviction of daytime housebreaking: Whereas burglaries in the first, second, and third degree require that the defendant both break and enter the dwelling or storehouse of another, daytime housebreaking required proof only of "breaking a dwelling house." An entry into the structure has always been required for burglary, but not of daytime housebreaking.

See, e.g., Hawkins v. State, 291 Md. 688, 692, 436 A.2d 900, 902 (1981) (finding that the crime of breaking and entering a dwelling house could not be a lesser included offense of daytime housebreaking because the former required both a breaking and entering whereas the latter only required a breaking); cf. Hebron v. State, 331 Md. 219, 627 A.2d 1029 (1993) (holding that conviction for a crime that required “breaking and entering” also required the State to prove that defendant had actually entered the premises); Brown v. State, 311 Md. 426, 535 A.2d 485 (1988) (noting that the distinction between daytime housebreaking, which required breaking, and another type of burglary that did not require breaking was significant in the application of mandatory minimum sentencing under § 643B of Article 27).

holding that conviction for a crime that required "breaking and entering" also required the State to prove that defendant had actually entered the premises


noting that the distinction between daytime housebreaking, which required breaking, and another type of burglary that did not require breaking was significant in the application of mandatory minimum sentencing under SS 643B of Article 27


Context: First, some of these challenges are in the nature of challenges to the expert's conclusions, and therefore not to be considered as bases for exclusion. Second, Defendant's challenges are to the application of the principles, and do not approach the level of altering a reliable methodology to the extent of "skew[ing] the methodology itself'; therefore, these alleged deficiencies would go to the weight of the evidence and not to its admissibility.

See, e.g., Whittey, 821 A.2d at 1097 (even misapplication of product. rule would go to weight, not admissibility); State v. Kinder, 942 S.W.2d 313, 327 (Mo. 1996) (criticisms of statistical methods go to weight, not admissibility); State v. Faulkner, 103 S.W.3d 346, 359-60 (Mo.Ct.App.2003) (any criticism of particular statistical methods goes to weight only, and is for jury to decide); see also Bonds, 12 F.3d at 564-65 (under Daubert, challenges to statistics and probability results go to weight, not admissibility).


any criticism of particular statistical methods goes to weight only, and is for jury to decide


Context: At oral argument counsel for debtor asserted that the Bankruptcy Court's finding is speculative. To this claim we need only observe that the Bankruptcy Court drew an entirely fair inference from the record presented it, and that, were there more to Tim Wargo, Jr.'s role in the conduct of the farming of debtor's acreage than that re-fleeted in the record, the burden was debt- or's to elicit the relevant facts.

See In re Rott, 73 B.R. 366, 371 (Bankr.D.N.D.1987) (party filing Chapter 12 petition bears burden of proving eligibility); see also Jenkins v. Petitioning Creditor — Ray E. Friedman & Co., 664 F.2d 184, 186 (8th Cir.1981) (party filing involuntary petition bears burden of proving entitlement to such relief).


Context: Finally, Plaintiff attempts to derive an express warranty from Maserati's claim that the Ghibli has "[s]tate of the art engineering," which "inevitably enhances the Ghibli's reliability, for which Maserati is world renowned." (Dkt 17 at 7; see also FAC P 30; SUF at 30.) But Maserati's statements in this regard constitute straightforward examples of "generalized, nonactionable puffery."

"This order detects nothing 'specific or measurable' about the phrases 'Most Advanced Notebook Ever' or 'State-of-the-Art.' Those representations 'and the four put forth in the complaint constitute non-actionable puf-fery."

Vitt v. Apple Computer, Inc., 469 Fed.Appx. 605, 607 (9th Cir. 2012) (affirming dismissal on basis that descriptors such as “durable,” “reliable,” and “high performance” were not actionable); see Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 WL 151489, at *5 (N.D. Cal. Jan. 8, 2015) (“This order detects nothing ‘specific or measurable’ about the phrases ‘Most Advanced Notebook Ever’ or ‘State-of-the-Art.’ Those representations 'and the four put forth in the complaint constitute non-actionable puf-fery.”).

affirming dismissal on basis that descriptors such as "durable," "reliable," and "high performance" were not actionable


Context: Mr. McGowan concedes that his arguments are foreclosed by binding circuit and Supreme Court precedent, but raises the issues only to preserve them for further review.

explaining that Almendarez-Torres remains good law and "binding until it is overruled by the Supreme Court"

See also United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (explaining that Almendarez-Torres remains good law and “binding until it is overruled by the Supreme Court”).

holding that a district court may review Shepard documents "to determine 'the factual nature' of prior convictions for ACCA purposes, 'including whether they were committed on different occasions'"

See United States v. Overstreet, 713 F.3d 627, 635 (11th Cir. 2013) (holding that a district court may review Shepard documents “to determine ‘the factual nature’ of prior convictions for ACCA purposes, ‘including whether they were committed on different occasions’”) (citations omitted); Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that, for sentencing purposes, the government does not need to allege a defendant’s prior conviction or prove the fact of a prior conviction where that fact “is not an element of the present crime”).


holding that, for sentencing purposes, the government does not need to allege a defendant's prior conviction or prove the fact of a prior conviction where that fact "is not an element of the present crime"


Context: Omnibus Opp'n 15-16.) But while Rule 9(c) allows parties, in pleading conditions precedent to bringing suit, to "allege generally that all conditions precedent have occurred or been performed," Plaintiffs cannot allege something they know to be untrue, see Fed.R.Civ.P. 11(b), and they admit that they have not complied with either the sixty-day pre-suit requirement or the indemnification provisions of SS 6.07. See Sterling Fed. Bank, F.S.B. v. DLJ Mortg.

refusing to credit similar general averments of compliance with a no-action clause in light of plaintiffs' contrary admissions

Capital, Inc., No. 09 Civ. 6904(JFG), 2010 WL 3324705, at *4 (N.D.I11. Aug. 20, 2010) {“Sterling II”) (refusing to credit similar general averments of compliance with a no-action clause in light of plaintiffs’ contrary admissions); see also In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 405 (S.D.N.Y. 2001) (“[A] court need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted [ ] by statements in the complaint itself____”).

"[A] court need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted [ ] by statements in the complaint itself____"


Context: In contrast to the well-settled rule for criminal cases, as of this date, the Ninth Circuit has not made a clear statement as to the time when jeopardy attaches in a civil forfeiture case. Several decisions, however, provide guidance on this question.

See United States v. Kearns, 61 F.3d 1422, 1428 (9th Cir.1995) (holding that conviction did not violate double jeopardy where jury was empaneled and sworn in criminal trial before defendant filed answer to forfeiture complaint); United States v. Barton, 46 F.3d 51, 52 (9th Cir.1995) (jeopardy attaches no earlier than date on which defendant filed answer to forfeiture complaint); see also United States v. Faber, 57 F.3d 873, 874-75 (9th Cir.1995) (conviction does not violate double jeopardy where defendant entered guilty plea before entering into settlement agreement in civil forfeiture proceeding); United States v. Wong, 62 F.3d 1212, 1214-15 (9th Cir.1995) (holding that jeopardy does not attach in the administrative process preliminary to formal forfeiture proceedings even when the petitioner has filed a petition for remission or mitigation); United States v. Sanchez-Cobarruvias, 65 F.3d 781, 783 (9th Cir.1995) (stating that there must be a degree of finality to the civil proceeding before double jeopardy may be deemed to attach).


holding that jeopardy does not attach in the administrative process preliminary to formal forfeiture proceedings even when the petitioner has filed a petition for remission or mitigation


stating that there must be a degree of finality to the civil proceeding before double jeopardy may be deemed to attach


jeopardy attaches no earlier than date on which defendant filed answer to forfeiture complaint


Context: Yet, when police stopped Moore, he claimed to be traveling from Lawrenceville, Georgia, to visit his grandmother in Marion, North Carolina at approxi mately 1:10 a.m. -- less than twelve hours after the vehicle was rented. The trial court found this circumstance also supported a finding of reasonable suspicion, noting that it would have been very unusual to drive "from Morganton to Lawrenceville and back to Marion to visit a grandmother." This unusual itinerary, coupled with the large sum of cash, and other factors, support the trial court's finding of reasonable suspicion.

"[A] reasonable officer could conclude that few innocent travelers from New York City are traveling northbound on Interstate 95 in South Carolina at 3:30 a.m. in a vehicle rented in Miami fourteen hours earlier."

See United States v. Digiovanni, 650 F.3d 498, 513 (4th Cir.2011) (noting an unusual travel itinerary, “coupled with other compelling suspicious behavior,” supports a finding of reasonable suspicion); cf. United States v. Brugal, 209 F.3d 353, 361 (4th Cir.2000) (“[A] reasonable officer could conclude that few innocent travelers from New York City are traveling northbound on Interstate 95 in South Carolina at 3:30 a.m. in a vehicle rented in Miami fourteen hours earlier.”).

noting an unusual travel itinerary, "coupled with other compelling suspicious behavior," supports a finding of reasonable suspicion


Context: Subsequent courts have followed the Supreme Court's guidance in Burbank in determining whether local ordinances are preempted under the Federal Aviation Act.

See United States v. City of Berkeley, 735 F.Supp. 937 (E.D.Mo.1990) (FAA regulations preempt city’s building code); Blue Sky Entertainment, Inc. v. Town of Gardiner, 711 F.Supp. 678 (N.D.N.Y.1989) (court finds in favor of small airport operators; sections of town ordinance regulating low-flying aircraft, parachute jumping, flight paths, noise, and insurance requirements were preempted); Command Helicopters, Inc. v. City of Chicago, 691 F.Supp. 1148 (N.D.Ill.1988) (court nullifies local ordinance governing loading operations of helicopters); United States v. City of Blue Ash, 487 F.Supp. 135 (S.D.Ohio 1978) (court found that city ordinance restricting noise was preempted by federal law); see also Allegheny Airlines, Inc. v. Cedarhurst, 238 F.2d 812 (2d Cir.1956) (village ordinance preventing aircraft from flying over village at less than one thousand feet was unconstitutional).


Context: Calculation of the rate for prejudgment interest also "rests firmly within the sound discretion of the trial court." Courts commonly look to state statutory prejudgment interest provisions as guidelines for a reasonable rate.

noting that because "ERISA is inscrutable on the subject" of the appropriate rate of prejudgment interest, "courts have discretion to select an appropriate rate, and they may look to outside sources, including state law, for guidance"

See, e.g., Allison, 289 F.3d at 1244 (holding that “district court did not abuse its discretion in awarding prejudgment interest at the Colorado statutory rate of 8 percent”); cf. Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 224-25 (1st Cir.1996) (noting that because “ERISA is inscrutable on the subject” of the appropriate rate of prejudgment interest, “courts have discretion to select an appropriate rate, and they may look to outside sources, including state law, for guidance”).

holding that "district court did not abuse its discretion in awarding prejudgment interest at the Colorado statutory rate of 8 percent"


Context: But each case will turn on its specific facts. Particularly in the context of small, closely held corporations, a corporate insider may stand to lose more than an outside creditor from a majority shareholder's fraudulent abuse of the corporation's limited liability.

Cf. Donahue v. Rodd Electrotype Co., 367 Mass. 578, 328 N.E.2d 505, 514-16 (1975) (recognizing special dangers and creating protections under Massachusetts common law for minority shareholders in closely held corporation); but see Nixon v. Blackwell, 626 A.2d 1366, 1379-81 (Del.1993) (declining to judicially create parallel rule under Delaware common law).


Context: A review of the authorities offered by both the SEC and the movants reveals that there is disagreement within the courts concerning the application of Section 21(g) to intervention motions. Compare SEC v. Flight Trans.

Corp., 699 F.2d 943, 950 (8th Cir.1983) (rejecting Section 21(g) as bar to intervention in SEC enforcement actions); SEC v. Prudential Sec. Inc., 171 F.R.D. 1, 4 (D.D.C. Mar.26, 1997) (rejecting Section 21(g) as a bar to non-consensual intervention in certain SEC actions), with SEC v. Wozniak, No. 92 C 4691, 1993 WL 34702, at *1 (N.D.Ill. Feb.8, 1993) (holding that Section 21(g) operates as “impenetrable wall” to intervention by victim of fraudulent scheme in SEC enforcement action); see also SEC v. Qualified Pensions, Inc., No. Civ.A. 95-1746-LFO, 1998 WL 29496, at *3 (D.D.C. Jan. 16, 1998) (holding that, as applied to case in which applicants for intervention “are already plaintiffs in another ongoing lawsuit and that the matter on which they wish to expound ... is squarely before the other court,” Section 21(g) bars intervention; noting that allowing intervention would effectively allow coordination of enforcement action with lawsuit already pending in another jurisdiction).

holding that, as applied to case in which applicants for intervention "are already plaintiffs in another ongoing lawsuit and that the matter on which they wish to expound ... is squarely before the other court," Section 21(g


holding that Section 21(g) operates as "impenetrable wall" to intervention by victim of fraudulent scheme in SEC enforcement action


Context: This presumption would not apply where a defendant challenges the substantive reasonableness on other grounds. In addition, this presumption of reasonableness would not be applied where the Government appeals that a district court's sentence is substantively unreasonable.

applying the usual Gall analysis when considering the Government's cross-appeal challenging the substantive reasonableness of a below-Guidelines term of imprisonment

See, e.g., Ahu Ali, 528 F.3d at 260-61 (applying the usual Gall analysis when considering the Government’s cross-appeal challenging the substantive reasonableness of a below-Guidelines term of imprisonment); see also United States v. Engle, 592 F.3d 495 (4th Cir.), cert. denied - U.S. -, 131 S.Ct. 165, 178 L.Ed.2d 41 (2010), (apply ing no presumption when considering the substantive reasonableness of a sentence of probation when the Guidelines included a term of imprisonment).


Context: Kennedy has cited no authority for this proposition. To the contrary, the law in South Carolina allows the context of the words themselves and the circumstances under which the words are spoken to be considered in determining whether there is a defamatoiy meaning and whether it is actionable per se.

Store, 178 S.C. 278, 182 S.E. 889 (1935); Turner v. Montgomery Ward & Co., 165 S.C. 253, 163 S.E. 796 (1932); see Sandifer v. Electrolux Corp., 172 F.2d 548 (4th Cir.1949) (holding under South Carolina law, where words themselves do not impute the commission of a crime, the juiy may consider surrounding circumstances to determine whether statement was defamatory because it charged the commission of a crime). Therefore, we dismiss Kennedy’s arguments in .that regard as unsupported by the law of defamation in this State.

holding that when considered in light of circumstances, employer's statement that employee was "short" was clearly defamatory and actionable per se because it alleged the commission of a crime, namely theft

Herring v. Lawrence Warehouse Co., 222 S.C. 226, 235, 72 S.E.2d 453, 455 (1952) (holding that when considered in light of circumstances, employer’s statement that employee was "short” was clearly defamatory and actionable per se because it alleged the commission of a crime, namely theft); Lily v. Belk’s Dept.


Context: This aspect of Rubright may seem to be in tension with several cases holding that legal fathers whose biological paternity is disestablished should normally be granted only prospective relief from their child support obligations. But the tension is more apparent than real: Any potential overlap in child support obligations between a newly-established biological father and a former legal father may be remedied through reimbursement.

"A parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes."

See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) ("A parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes.”) (superceded by rule in other respects).

recognizing the concept of "dual paternity" in which a child born into a marriage with a non-biological father retains a legal parent/child relationship based on presumptive fatherhood for purposes of legitimacy and inheritance, while becoming the child of a newly-established biological father for purposes of child support

Cf. Smith v. Cole, 553 So.2d 847, 854-55 (La.1989) (recognizing the concept of “dual paternity” in which a child born into a marriage with a non-biological father retains a legal parent/child relationship based on presumptive fatherhood for purposes of legitimacy and inheritance, while becoming the child of a newly-established biological father for purposes of child support).


recognizing that "child support arrearages are imposable by law from the date of a child's birth"

See also Flanigin v. State, CSED, 946 P.2d 446, 450 (Alaska 1997) (recognizing that "child support arrearages are imposable by law from the date of a child’s birth”).


Context: The choices are not so stark for the person who, in the familiar surroundings of his home, can send the police away without fear of immediate repercussions.

suggesting that consent searches are not "inherently coercive" when they "occur on a person's own familiar territory"

See Schneckloth, supra, 412 U.S. at 247, 93 S.Ct. at 2058, 36 L.Ed.2d at 874 (suggesting that consent searches are not “inherently coercive” when they “occur on a person’s own familiar territory”); United States v. Carter, 378 F.3d 584, 589 (6th Cir.2004) (stating that “a man’s home is his castle,” and that “police may be kept out or invited in as informally as any other guest”), cert. denied, 543 U.S. 1155, 125 S.Ct. 1298, 161 L.Ed.2d 121 (2005); cf. State v. Timmendequas, 161 N.J. 515, 615, 737 A.2d 55 (1999) (stating that, because questioning of defendant took place in his home, it “was not inherently intimidating”), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001); State v. P.Z., 152 N.J. 86, 103, 703 A.2d 901 (1997) (noting that, during interview of defendant in his home, he had “complete freedom to come and go as he pleased”). In limiting the reach of our holding in Carty, we recognized the distinct disadvantage of the motorist detained at the side of the road and the history of abuse of the consent search in the context of motor vehicle stops.

stating that, because questioning of defendant took place in his home, it "was not inherently intimidating"


noting that, during interview of defendant in his home, he had "complete freedom to come and go as he pleased"


stating that "a man's home is his castle," and that "police may be kept out or invited in as informally as any other guest"


Context: We have interpreted the provisions of K.S.A. 22-3402(3)(c), relating to delays involving the gathering of material evidence, and concluded that such time is not counted in computing the statutory speedy trial period.

stating that "delays which are the result of the application or fault of the accused, or extended, by 22-3402(3)(c) to allow the prosecution to obtain material evidence, are not counted in computing the statutory speedy trial period."

State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994) (stating that “delays which are the result of the application or fault of the accused, or extended, by 22-3402(3)(c) to allow the prosecution to obtain material evidence, are not counted in computing the statutory speedy trial period.”)

(Emphasis added.); see State v. Welch, 212 Kan. 180, 185-86, 509 P.2d 1125 (1973) (stating that where 257 days had elapsed between arraignment and trial, 135 days were the result of the application or fault of the defendant and 56 days were permissible extensions of time granted to the State under the provisions of K.S.A. 1971 Supp. 22-3402(3)(c), making a total delay of 191 days not to be counted against the State).


Context: [t]his Court has consistently looked to federal discrimination law dealing with Title VII of the Civil Rights Act of 1964, 42 U.S.C. SS 2000e to e-17 (1994) when interpreting provisions of our state's human rights statutes.

noting that "cases brought under the West Virginia Human Rights Act are governed by the same analytical framework and structures developed under Title VII, at least where our statute's language does not direct otherwise"

Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 482, 457 S.E.2d 152, 159 (1995) (noting that "cases brought under the West Virginia Human Rights Act are governed by the same analytical framework and structures developed under Title VII, at least where our statute’s language does not direct otherwise”); West Virginia University v. Decker, 191 W.Va. 567, 573-74, 447 S.E.2d 259, 265-66 (1994) (altering disparate impact test previously established based on 1991 amendments to Title VII which shifted burden of production and persuasion to employer to prove that particular employment practice or policy is "job related” and "consistent with business necessity”); Slack v. Kanawha County Housing and Redevelopment Auth., 188 W.Va. 144, 153-55, 423 S.E.2d 547, 556-558 (1992) (defining elements of constructive discharge cases by adopting majority view of federal decisions decided under both Title VII and Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.); Frank's Shoe Store v. Human Rights Commission, 179 W.Va. 53, 58-59, 365 S.E.2d 251, 256-57 (1986) (citing Pregnancy Discrimination Act amendment to Title VII and United States Supreme Court decision interpreting that amendment as basis for holding that discrimination based upon pregnancy constitutes illegal sex discrimination under West Virginia Human Rights Act); see also Paxton v. Crabtree, 184 W.Va. 237, 250, 400 S.E.2d 245, 258 n. 26 (1990) (observing that “we have adopted federal precedent when we believed it was compatible with our human rights statute”).

observing that "we have adopted federal precedent when we believed it was compatible with our human rights statute"


altering disparate impact test previously established based on 1991 amendments to Title VII which shifted burden of production and persuasion to employer to prove that particular employment practice or policy is "job related" and "consistent with business necessity"


defining elements of constructive discharge cases by adopting majority view of federal decisions decided under both Title VII and Age Discrimination in Employment Act, 29 U.S.C. SS 621, et seq.


Context: The United States may not make proprietary use of the water denied to Casitas by the ESA, nor may it divert Casitas' use rights to a third party. Rather, the limitation imposed on the total quantity of water available for Casitas' use is directly correlated to the quantity of water needed to remain in the Ventura River's hydrologic cycle to preserve the endangered Southern California steelhead under a public program to promote the common good.

distinguishing between government invasion or acquisition of property, which constitutes a physical taking, and government interference with a private owner's use of her property, which constitutes a regulatory taking if, after a complex factual assessment, a court determines it goes too far

See Tahoe-Sierra, 535 U.S. at 322-23, 122 S.Ct. 1465 (distinguishing between government invasion or acquisition of property, which constitutes a physical taking, and government interference with a private owner’s use of her property, which constitutes a regulatory taking if, after a complex factual assessment, a court determines it goes too far); Penn Central, 438 U.S. at 124, 98 S.Ct. 2646 (“A ‘taking’ may more 'readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”) (internal citation omitted); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (concluding that a true physical “occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion”).

concluding that a true physical "occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion"


"A 'taking' may more 'readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good."


Context: . In fact, a number of courts have applied SS 43(a) to claims brought by an estate or assignees of a deceased celebrity.

concluding facts supporting finding of likelihood of success regarding likelihood of confusion also supported SS 43(a

See Estate of Presley v. Russen, 513 F.Supp. 1339, 1376 (D.NJ.1981) (concluding facts supporting finding of likelihood of success regarding likelihood of confusion also supported § 43(a) claims brought by Elvis Presley’s estate); Hicks v. Casablanca Records, 464 F.Supp. 426, 433 (S.D.N.Y.1978) (assuming without comment that estate and assignees of Agatha Christie could bring § 43(a) claim but dismissing the false endorsement claim because there was no likelihood of confusion); Cheever v. Academy Chicago, Ltd., 690 F.Supp. 281, 288 (S.D.N.Y.1988) (noting no apparent impediment to author John Cheever’s survivors’ § 43(a) claims and commenting that potential financial motive would not undermine claim based on literary reputation of deceased); Museum Boutique Intercontinental, Ltd. v. Picasso, 880 F.Supp. 153, 166 (referring to unpublished related case involving Lanham Act false endorsement claims brought by Picasso heirs and estate); but see Robles v. Deutsch Advertising, Inc., 1997 WL 266976 (S.D.N.Y.1997) (affirming discovery order denying access to defendants' financial information because defendants’ belief that plaintiff-actor was deceased or had signed away his rights to film meant defendants’ use of film clips was not in bad faith or done with malice that would support award of profits and attorneys’ fees on § 43(a) false endorsement claim).

affirming discovery order denying access to defendants' financial information because defendants' belief that plaintiff-actor was deceased or had signed away his rights to film meant defendants' use of film clips was not in bad faith or done with malice that would support award of profits and attorneys' fees on SS 43(a


assuming without comment that estate and assignees of Agatha Christie could bring SS 43(a


noting no apparent impediment to author John Cheever's survivors' SS 43(a


referring to unpublished related case involving Lanham Act false endorsement claims brought by Picasso heirs and estate


Context: Christopher therefore had an opportunity to address the deficiencies in his evidence, whether by filing an amended response seven days before the hearing or requesting leave to file an amended response less than seven days before the hearing. As in Carpenter, the rules provided Christopher with a remedy before the summary judgment hearing.

observing that "nothing in this record suggests that before summary judgment was granted," pro se litigant realized her mistake

Carpenter, 98 S.W.3d at 686 (stating that Crad-dock’s purpose — “to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available” — does not apply “when our rules provide the defaulting party a remedy.”); see also Wheeler, 157 S.W.3d at 442 (observing that “nothing in this record suggests that before summary judgment was granted,” pro se litigant realized her mistake).

stating that Crad-dock's purpose -- "to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available" -- does not apply "when our rules provide the defaulting party a remedy."


Context: The United States Court of Federal Claims has jurisdiction "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. SS 1491(a)(1). The Tucker Act, however, is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." Therefore, to satisfy jurisdictional requirements of the Tucker Act, a plaintiff must identify and plead a constitutional provision, federal statute, independent contractual relationship, and/or executive agency regulation that provides a substantive right to money damages.

"Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit."

See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[Jjurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir.2004) (“Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit.”).

"[Jjurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act."


Context: Courts have consistently held that waste disposal is subject to regulation by municipalities pursuant to their police powers.

holding that two New York counties' ordinances governing the flow of solid waste does not violate the Commerce Clause, in part because "[w]aste disposal is both typically and traditionally a local government function" (alteration in original

See Riley v. Monroe Cnty., 43 N.Y.2d 144, 400 N.Y.S.2d 801, 371 N.E.2d 520, 522 (1977) (characterizing waste disposal as an issue that “certainly affects the health and welfare of [the county’s] citizens” and is therefore subject to its police powers); Jamaica Recycling Corp. v. City of N.Y., 12 Misc.3d 276, 816 N.Y.S.2d 282, 291 (Sup.Ct.2006) (collecting “a long line of cases which hold that, in the exercise of their police powers, municipalities may regulate the disposal of solid waste”), aff'd, 38 A.D.3d 398, 832 N.Y.S.2d 40 (2007); cf. United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007) (holding that two New York counties’ ordinances governing the flow of solid waste does not violate the Commerce Clause, in part because “[w]aste disposal is both typically and traditionally a local government function” (alteration in original) (internal quotation marks omitted)); USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1275 (2d Cir.1995) (“For ninety years, it has been settled law that garbage collection and disposal is a core function of local government in the United States.”).

characterizing waste disposal as an issue that "certainly affects the health and welfare of [the county's] citizens" and is therefore subject to its police powers


"For ninety years, it has been settled law that garbage collection and disposal is a core function of local government in the United States."


collecting "a long line of cases which hold that, in the exercise of their police powers, municipalities may regulate the disposal of solid waste"


Context: Were this a case of the Crucifixion standing alone, the inquiry would end here. There is abundant case law holding unconstitutional the prominent display of a cross without any detracting features.

See, e.g., City of St. Charles, 794 F.2d 265 (holding, impermissible the prominent display of a cross on a public building); see also Friedman v. Bd. of County Comm’rs of Bernalillo, 781 F.2d 777, 782 (10th Cir.1985) (the presence of a Latin cross in a city logo violates the establishment clause), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 978 (1986); cf. Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990) (declaring unconstitutional a city display of a menorah standing alone during Chanukah).


declaring unconstitutional a city display of a menorah standing alone during Chanukah


Context: The record contains substantial evidence tying both defendants to the house and to the marijuana found inside the house. Although we have stated the test in various ways, an error admitting evidence is harmless if there is sufficient independent evidence that establishes the defendants' guilt.

although prejudicial effect of officer's opinion substantially outweighed probative value and therefore was error to admit opinion under Rule 403, "error was harmless ... because there was other reliable identification testimony identifying Henderson as the robber"

See United States v. Shannon, 137 F.3d 1112, 1119 (9th Cir.1998) (error was harmless where “government produced overwhelming evidence against Shannon independent of Eck’s letter”) overruled on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir.2007) (en banc); see also United States v. Henderson, 68 F.3d 323, 328 (9th Cir.1995) (although prejudicial effect of officer’s opinion substantially outweighed probative value and therefore was error to admit opinion under Rule 403, “error was harmless ... because there was other reliable identification testimony identifying Henderson as the robber”).

error was harmless where "government produced overwhelming evidence against Shannon independent of Eck's letter"


Context: Typically, while denials of motions to dismiss are not deemed final for appellate purposes, the Panel agrees with those courts holding that denial of a request for dismissal regarding the application of the means test should be treated as final ap-pealable orders.

"[T]he split among the bankruptcy courts over application of the means test to this issue provides greater support for treating the denial of the Trustee's motion to dismiss for substantial abuse as final."

See Randle v. Neary (In re Randle), 2007 WL 2668727 at *4 (N.D.Ill. Jul.20, 2007) (“[T]he split among the bankruptcy courts over application of the means test to this issue provides greater support for treating the denial of the Trustee’s motion to dismiss for substantial abuse as final.”); Fokkena v. Hartwick, 373 B.R. 645, 646 (D.Minn.2007) (on appeal from bankruptcy court’s order denying the UST’s motion to dismiss under § 707(b)); see also In re Northwood Properties, 509 F.3d 15 (1st Cir.2007) (an order is final if it disposes of all issues surrounding a discrete controversy within a larger proceeding).


on appeal from bankruptcy court's order denying the UST's motion to dismiss under SS 707(b