niryuu/sni-each-converted huggingface dataset:
Annotated section 2-40-1302 (Repl. 2008) requires that all large animal carcasses be disposed of pursuant to these regulations. Kisner, Cole, and Hartford answered that they were without sufficient information to form a belief as to the allegations of the improper burial. A review of these pleadings demonstrates a factual dispute as to whether Mr. Elkins followed the regulations regarding the disposal of carcasses, see Young v. Dodson, 239 Ark. 143, 388 S.W.2d 94 (1965) (recognizing that violation of a law does not constitute negligence per se but is evidence of negligence), whether a trespass occurred, and whether Hartford, acting as the agent for Kisner and Cole, employed Mr. Smith to dispose of the carcasses that Mr. Elkins buried, see Tackett v. Merchant’s Security Patrol, supra (<HOLDING>). A factual dispute exists as to the 
 Holding statements: (A) holding that certain fiduciary duty claims did not arise out of the underlying contractual provisions (B) holding that a special relationship may arise from the factual circumstances of a particular case (C) holding that where the contract affirmatively shows the parties intent to charge one party with a duty of care actionable negligence may be predicated upon that contractual duty (D) holding that a duty of care may arise out of a contractual relationship between two parties (E) holding a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contractual relationship between the parties
Output: (D)
CURIAM. Affirmed. § 120.68(7)(b), Fla. Stat. (2005); Ferguson v. Miami-Dade County, 890 So.2d 450, (Fla. 3d DCA 2004) 
 Holding statements: (A) holding that as long as the findings are supported by substantial evidence the board must defer to the hearing committees credibility determinations because they are subsidiary findings of basic facts (B) holding that findings of fact are conclusive if supported by clear and convincing competent evidence even where the evidence might support contrary findings (C) holding that it is the commissioners findings of fact to the extent they modify or replace the administrative law judges findings that are relevant on appeal (D) holding law court will not overturn conclusions supported by competent and substantial evidence (E) holding that the court may not overturn the administrative law judges factual findings as long as they are supported by competent substantial evidence
Output: (E)
the word "initially” is to be given effect. The court wrote: "[T]he crux of defendant’s oral argument was that it is illogical for the Immunity Act to absolutely immunize a public entity’s initial failure to erect a traffic warning device (see 745 ILCS 10/ 3—104 (West 1992); West[, 147 Ill. 2d 1, 588 N.E.2d 1104]), but fail to extend this absolute immunity once the traffic warning device is erected. What defendant and the appellate court failed to recognize, however, is that it is not for the courts to extend this statutory immunity or to fill the perceived interstices of the Immunity Act: that is strictly the province of the General Assembly.” Snyder, 167 Ill. 2d at 477, 657 N.E.2d at 994. See also Jefferson v. City of Chicago, 269 Ill. App. 3d 672, 678, 646 N.E.2d 1305, 1310 (1995) (<HOLDING>). Defendants cite Culver v. Velcor, 247 Ill. 
 Holding statements: (A) holding that nothing in the pslra has altered that doctrine (B) holding that appeal from a decision of the attorney general denying legal representation was before the appellate division as of right to review the final decision of a state officer (C) holding that there is nothing inherent in the phrase that requires the action working the deprivation to come from the state (D) holding that nothing in the west decision justifies gapinskes excision of the word initially from section 3104 (E) recognizing that the existence of a copy of a decision in a bill file along with numerous references to a decision of the court of appeals in the legislative history indicated that an amendment was made in response to that decision
Output: (D)
the account controlled by BCBST, BCBST had effective access to the funds in the larger account. Its check writing authority makes BCBST a fiduciary. The only alleged breach of fiduciary duty with respect to the checking account was BCBST’s retention of interest on the float and on delayed payments to individual physicians. Plaintiffs allege that BCBST’s retention of that interest violates 29 U.S.C. § 1106(a)(1)(A) barring a plan fiduciary from causing the plan to sell, lease, or exchange property with a party in interest. Other courts which have addressed the issue, however, consider the retention of interest on float to be an issue of compensation, where it is clear that float will be created. See Assocs. in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 564, 568-69 (<HOLDING>); Sirna v. Prudential Securities, Inc., 964 
 Holding statements: (A) holding that rule 63 applies to pleadings filed within seven days of summary judgment proceedings (B) holding that interest on float is part of compensation (C) holding defendant was afforded substantive and procedural due process at the administrative level when he was given seven days to respond to a prepenalty notice for negligence (D) holding that rule 6e did not extend the period in which a workers compensation carrier was required to pay a compensation award under the longshore and harbor workers compensation act where the act required payment within ten days of filing of the order as opposed to within ten days of service of notice provided for in the rule (E) holding that where it was clear up to seven days of float might exist interest on float was contracted for compensation
Output: (E)
Sandoz further submits ER 411 as a basis for admissibility. Evidence regarding availability of insurance is inadmissible on the issue of negligence pursuant to ER 411 unless relevant to an issue other than fault "such as proof of agency, ownership, or control, or bias or prejudice of a witness”. ER 411. A court may allow testimony regarding insurance to overcome the bar of ER 411 only for a proper purpose, such as to rebut an element of a claim, Kubista v. Romaine, 87 Wn.2d 62, 69, 549 P.2d 491 (1976), or to show bias by advising the jury of a witness’ relation to and interest in the case, Moy Quon v. Furuya Co., 81 Wash. 526, 531-32, 143 P. 99 (1914). In the present case, Sandoz has not shown the disputed testimony to be relevant to any element of a failure to wa P.2d 1213 (1994) (<HOLDING>). We find persuasive the majority of courts, 
 Holding statements: (A) holding fifra preempts inadequate label claims but not claims for failure to warn through other channels (B) holding oregon law extinction of failure to warn claims obviates need to decide fifra preemption issue (C) holding that fifra preempts state law failure to warn claims (D) holding fifra preempts no commonlaw claims (E) holding that a failure to warn was not a policy judgment
Output: (B)
his relatively straightforward FOIA case unaided, the magistrate did not need to go any further. In addition, we reject Willis’s contention that the court erred in selecting Local Civil Rule 83.11 as the appropriate standard rather than Poindexter’s multifactor test. The Poindexter criteria are the plaintiffs ability to afford an attorney; the merits of the plaintiffs case; plaintiffs efforts to secure counsel; and the capacity of the plaintiff to present the case adequately without the aid of counsel. 737 F.2d at 1185 be considered include the indigent’s ability to conduct whatever factual investigation is necessary, the complexity of the factual and legal issues, and the capability of the indigent litigant to present the case); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982) (<HOLDING>). Because the district court acted within its 
 Holding statements: (A) holding that a 22month delay was particularly understandable and largely neutral with respect to the first barker factor given the presence of multiple defendants the large number of allegations and the complexity of the charges and evidence (B) holding that although the guidelines should be the starting point and the initial benchmark of calculating a proper sentence the district court should then consider all of the  3553a factors to determine whether they support the sentence requested by a party (C) holding that when evaluating a settlement agreement the court is not to substitute its judgment for that of the parties nor is it to run consideration of the adequacy of the settlement into a trial or a rehearsal of the trial  rather the cjourts responsibility is to reach an intelligent and objective opinion of the ultimate success should the claims be litigated and to form an educated estimate of the complexity expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise (D) holding that representation by counsel until the first day of trial likely exposed the defndant to the complexity of his case and the legal process (E) holding that courts should consider a number of factors including the type and complexity of the case and whether the indigent is capable of adequately presenting the case
Output: (E)
unable to determine which, if any, conditions might mitigate adverse effects on adjoining properties. (Def.’s Mem. at 2.) This inability resulted from “uncertainty” regarding ILC’s proposed use, the County asserts (Def.’s Resp. at 13), again criticizing ILC’s reliance on testimony of counsel rather than ILC’s directors. (Def.’s Resp. at 5, 7.) Again, any purported uncertainty regarding ILC’s proposed use and how it could conduct its activities within the conditions placed on its proposed use appears to rest on an unsupported assumption that ILC would exceed its proposed use. ILC alleges that the “delay, uncertainty, and expense” that have accompanied its efforts to gain approval of its Conditional Use Application impose a substantial burden. Sts. Constantine and Helen, 396 F.3d at 901 (<HOLDING>). Importantly, the Seventh Circuit has noted 
 Holding statements: (A) recognizing same factors (B) recognizing burden (C) holding that a citys requirement that the plaintiff refile a complete permit application did not constitute a substantial burden (D) holding that the burden is on the plaintiff (E) holding that such factors may constitute a substantial burden
Output: (E)
You know that Kenny Mohammed told you the truth from all of the evidence in this case. The evidence in this case corroborates what Kenny Mohammed told you from that stand. The prosecutor then proceeded to summarize that corroborating evidence, discussing the recordings of Mohammed receiving and making calls before the transactions, the testimony of agents who witnessed the wine-colored Corolla and Mohammed’s movements at both transactions, the expert testimony of Agent Coleman regarding the typical structure of these drug transactions, and the evasive moves made by Johnson in the wine-colored Corolla. Thus, the prosecutor properly argued that the evidence compelled the conclusion that Mohammed complied with his immunity agreement by testifying truthfully. See Clarke, 227 F.3d at 885 (<HOLDING>). Finally, Johnson challenges the prosecutor’s 
 Holding statements: (A) holding witnesss prior consistent statement admissible where defense counsel implied in his opening statement that witness should not be believed because of the favorable consideration he received from the government in his plea bargaining agreement (B) holding that a rule 41e claimant relinquished any possessory claim he had to the property when he signed a forfeiture agreement at the time he entered into a plea bargain (C) holding that under subsection al as then written the defendant had no right to appeal whether his sentence was supported by evidence presented because he entered into a plea agreement as to the sentence (D) holding that a merger clause normally prevents a criminal defendant who has entered into a plea agreement from asserting that the government made oral promises to him not contained in the plea agreement itself (E) holding that the prosecutors statement about a witnesss truthfulness was proper because the evidence showed that the witness complied with the plea agreement not that he told the truth simply because he entered into the plea agreement
Output: (E)
when, for instance, there is a dispute between the parties as to whether an express agreement exists. Cascade Elec. Co. v. Rice, 70 Mich.App. 420, 426-27, 245 N.W.2d 774, 777 (1976) (finding that the plaintiff could bring both actions because the plaintiff performed work that was not contemplated under the express contract and the defendant disputed the existence of an express verbal contract). A party is not required to “elect to proceed under one theory or the other, but could seek recovery on the basis either of an express [ ] contract, or an implied contract if the [trier of fact] found that the express [ ] contract did not exist.” Id. at 427, 245 N.W.2d at 777; see also H.J. Tucker & Assocs., Inc. v. Allied Chucker & Eng’g Co., 234 Mich.App. 550, 573, 595 N.W.2d 176, 188 (1999) (<HOLDING>). The plaintiff also may bring a breach of 
 Holding statements: (A) holding that the trial court should have dismissed the employees breach of contract claim (B) holding that the plaintiff may proceed under a claim for breach of contract and unjust enrichment because the defendant admitted the existence of a contract solely for the purposes of summary judgment (C) holding that a claim for unjust enrichment should not be dismissed because the court may find that the express contract was no longer in force (D) holding that where an express contract was in place between plaintiff and defendant that governed the compensation sought by plaintiff plaintiff may not recover under a theory of unjust enrichment (E) holding that there is no cause of action in california for unjust enrichment
Output: (C)
him with child molestation; (2) a pretrial arraignment and bail hearing (the CrR 3.2 hearing); and (3) a pretrial evidentiary hearing (the CrR 3.5 hearing) to determine the admissibility of his confession. The question is whether these forms of reliance on Paul’s statements constitute “use” in a “criminal ease” under Chavez. We conclude that (1) and (2) above do constitute such “use.” Although we have not, after Chavez, addressed the scope of the “use” concept for Fifth Amendment purposes, other circuit courts have, with mixed results. The Third, Fourth, and Fifth Circuits have applied Chavez to bar recovery under the Fifth Amendment unless the allegedly coerced statements were admitted against the defendant at trial. See Burrell v. Virginia, 395 F.3d 508, 513-14 (4th Cir.2005) (<HOLDING>) (emphasis in original); Murray v. Earle, 405 
 Holding statements: (A) holding fifth amendment not violated under above rationale (B) holding that the fourteenth amendment  and therefore also the fifth amendment  gives rise to a cause of action on behalf of a class of one where the plaintiff did not allege membership in a class or group (C) holding that a defendants fifth amendment rights were violated when an interpreter was withdrawn by the court (D) holding that because plaintiff did not allege any trial action that violated his fifth amendment rights  ipso facto his  1983 claim fails (E) holding defendants fifth amendment rights had been violated when his probation was revoked based on his failure to complete a sexual treatment program that required incriminating admissions
Output: (D)
with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). After the July 2006 merits hearing, the IJ found that the Petitioner had failed to establish his Congolese identity, which defeated prima facie eligibility for relief. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (“[A] petitioner’s nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum.”) (internal quotation marks omitted). On the motion for rehearing, the BAD did not err in declining to consider Petitioner’s newly submitted identity documents. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (<HOLDING>). As the BIA found, and Mudiangomba conceded 
 Holding statements: (A) recognizing that bia may deny motion to reopen where movant has not established prima facie eligibility for relief sought (B) recognizing that failure to offer new previously unavailable evidence establishing a prima facie case for the underlying relief sought is a proper ground on which the bia may deny a motion to reopen (C) recognizing that in an untimely motion to reopen based on changed country conditions the movant must submit previously unavailable evidence demonstrating his prima facie eligibility for relief (D) holding that the bia may deny a motion to reopen on the ground that the movant has not established prima facie eligibility for the underlying relief sought (E) holding that the bia may deny a motion to reopen based on its finding that the movant has not established his prima facie eligibility for relief
Output: (C)
a third attending physi cian, testified it was possible Smith was not even present when the spiral fracture occurred. During the motion in limine to exclude evidence of the victim’s broken femur, the trial court noted “either he or his wife or both of them had to do it.” It appears from the record that the trial court focused on clear and convincing evidence of a pattern of abuse inflicted upon the victim by any perpetrator, versus cle the victim’s broken femur after investigating the incident, and returned the victim to her parents. Therefore, evidence of the victim’s broken femur was inadmissible as a prior bad act because the State failed to present any evidence that Smith intentionally inflicted the injury. Compare State v. Pierce, 326 S.C. 176, 178-79, 485 S.E.2d 913, 914 (1997) (<HOLDING>), with State v. Martucci, 380 S.C. 232, 241-42, 
 Holding statements: (A) holding a person commits aggravated dui when his or her driving under the influence was a proximate cause of the injuries  citation not the sole and immediate cause of the victims injuries emphasis omitted (B) holding that victims injuries did not arise out of the use of a motor vehicle when the victim received injuries from a gun fired in the vehicle (C) holding hospital employees testimony regarding victims previous injuries was inadmissible under the common scheme or plan exception because there was no clear and convincing evidence defendant inflicted the injuries (D) holding that under the common law a claim for personal injuries died with the victim (E) holding that the courts analysis should focus on the nature of the abuse injuries inflicted and the effect of both
Output: (C)
It is not the Court’s function to weigh the evidence that might be presented at a trial; instead, the Court must merely determine whether the complaint is legally sufficient. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Thus, the Court must accept the allegations of the complaint as true, and construe all reasonable inferences in favor of the plaintiffs. Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Connell v. Signoracci, 153 F.3d 74 (2d Cir.1998); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991). 2. Rule 9(b) Rule 9(b) provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R.Civ.P. 9(b). See also Plount v. American Home Assurance Co., Inc., 668 F.Supp. 204, 206 (S.D.N.Y.1987) (<HOLDING>). The Second Circuit has held that allegations 
 Holding statements: (A) holding that the rico bar applies even where the plaintiff does not have standing to bring a securities fraud action (B) holding that state courts have concurrent jurisdiction over rico claims and that plaintiffs federal rico claim was barred by res judicata since he failed to bring his rico claim along with his state fraud claims in prior state court action (C) holding that the concerns that require fraud to be pleaded with particularity are even more urgent in a civil rico action (D) holding that plaintiffs must provide more than conclusory allegations to satisfy rule 9bs requirement that circumstances of fraud be pleaded with particularity (E) holding that because civil rico is penal in nature illinois twoyear statute of limitations for actions based on a statutory penalty applies to civil rico claims
Output: (C)
the scope of ERISA jurisdiction and preemption, not in deciding when a § 1132(a)(1)(B) claim accrues. White, and the district courts mentioned above, erred in relying on Stevens as authoritative in determining the proper accrual date of § 1132(a)(1)(B) claims for the statute of limitations. But see Watkins, 570 Fed. Appx. at 460 (citing Stevens for the general proposition that § 1132(a)(1)(B) claims accrue upon formal denial of benefits, but nonetheless applying the discovery rule of Moni-son). In Morrison, we addressed accrual for the purposes of the statute of limitations in § 1132(a)(1)(B) claims for the first time, and adopted the '‘discovery rule.” 439 F.3d at 302-03. There we held that a § 1132(a)(1)(B) claim accrues upon "clear and unequivocal repudiation” of benefits. Id. (<HOLDING>). We reiterated this rule in Redmon v. 
 Holding statements: (A) holding evidence including that insurer only charged life insurance premium that would ordinarily apply to onehalf the amount of coverage actually permitted by policy as written did not warrant retroactive reformation of policy to reduce coverage amount because it did not demonstrate mistake on insureds part and insurance company did not present evidence on what parties agreed to before the policy was issued (B) holding that the plaintiffs deceased husbands benefits claim had been clearly repudiated by the plan sending him a refund check for his first premium payment and an accompanying letter denying his application to convert his portable life insurance coverage to a group policy (C) holding that the appellant waived his claim on appeal because he failed to address that claim in either his application for a coa or his brief on appeal (D) holding that the insured covered by a group insurance policy purchased through his employer was not entitled to continue receiving coverage for the treatment of his daughters illness after he terminated his employment (E) holding widows claim that deceased husbands former employer and its life insurance carrier were negligent in their handling of husbands conversion of benefits was preempted by erisa finding the liability of the defendants is dependent upon the existence of the erisa plan and the interpretation of rights conferred by it
Output: (B)
rather than immune, from taxation, see Lehigh-Northampton Airport Auth., 585 Pa. at 676 n. 9, 889 A.2d at 1180 n. 9 (noting that immunity is a threshold issue, and a non-immune parcel may be tax-exempt on a separate basis), so long as the public use continues. See Pa. Const, art. VIII, § 2(a)(iii) (permitting the General Assembly to exempt from taxation “[t]hat portion of public property which is actually and regularly used for public purposes”); 53 Pa.C.S. § 8812(a)(8) (“The following property shall be exempt from all county, city, borough, town, township, road, poor, county institution district and school real estate taxes: ... [a]ll other public property used for public purposes.... ”); see also Appeal of Mun. Auth. of Borough of West View, 381 Pa. 416, 420, 113 A.2d 307, 309 (1955) (<HOLDING>). See generally Wesleyville Borough v. Erie 
 Holding statements: (A) recognizing that leased property is exempt from taxation where the lessee uses it for a public purpose (B) holding that lcras property devoted exclusively to public use is exempt from taxation under article xi section 9 (C) holding that the debtor could retain exempt property because it was not property of the estate (D) recognizing that exempt property ceases to be property of the estate (E) recognizing that unlike public uses private uses of property are characterized by the benefits bestowed on a particular and most often limited sector of the public usually distinguishable by certain characteristics or membership
Output: (A)
has recently held that a police officer may order passengers out of a vehicle during a traffic stop without violating the passengers’ Fourth Amendment rights. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). The Court reasoned that the public interest in protecting an officer’s safety outweighed the minimal intrusion involved in requiring passengers to exit the vehicle. See id. at 413-15, 117 S.Ct. 882. The same rationale applies here. An officer may reasonably conclude that his safety is best protected by having the passengers remain in the vehicle. Further, the intrusion involved with having passengers remain in their vehicle is de minimis — the officer is merely maintaining the status quo. See United States v. Moorefield, 111 F.3d 10, 11 (3d Cir.1997) (<HOLDING>). Defendant Garner refused to comply with 
 Holding statements: (A) holding that an officer making a traffic stop may order passengers to exit the car pending completion of the stop (B) holding that passengers of a vehicle which they did not own had standing to challenge the validity of a traffic stop (C) holding that police officer may order passengers to remain in vehicle with hands up during traffic stop (D) holding police officers making a traffic stop could order passengers out of the stopped car (E) holding that an officer may order a passenger out of a vehicle during a stop for a traffic infraction
Output: (C)
established’ constitutional rights.” Noyola, 846 F.2d at 1025. After weighing James and Mellen’s interests, we conclude that this is not one of those rare cases where a public employer violated a clearly established constitutional right. We recognize that James’s interest in running for office is significant because “[political speech regarding a public election lies at the core of matters of public concern protected by the First Amendment.” Wiggins v. Lowndes County, 363 F.3d 387, 390 (5th Cir.2004). James argues that there is no public interest to weigh against his individual interest in running for office because the ability of the district attorney’s office to provide services was not in any way affected by his candidacy. See Vojvodich v. Lopez, 48 F.3d 879, 885-86 (5th Cir.1995) (<HOLDING>). We disagree. Mellen has presented evidence 
 Holding statements: (A) holding that termination is an adverse employment action (B) holding that reduction in workload is an adverse employment action (C) holding that conduct causing public humiliation was not an actionable adverse employment action because public perceptions were not a term or condition of employment of the plaintiffs employment (D) holding that an adverse employment action is unconstitutional unless the public employer shows a disruption in its ability to provide services (E) holding that denial of a bonus was not an adverse employment action
Output: (D)
not actually moot because the alleged harm was “capable of repetition but evading review,” id. at 800-01, but the general rule of law holds true: where a representative plaintiffs claim has been rendered moot before certification is granted, dismissal of the entire action is warranted unless the claims fall into either of the enunciated exceptions. See also Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) (“In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the claim is not live, the Court lacks a justiciable controversy and must dismiss the claim as moot.”); Sannon v. United States, 631 F.2d 1247, 1252 (5th Cir.1980) (<HOLDING>). In the present case, no class had been 
 Holding statements: (A) holding that because no class was certified at the time the individual claims were dismissed the class action was properly dismissed (B) holding that the claims of the class representative and class members must be based on the same legal or remedial theory (C) holding that the dismissal of a class action suit after the representative plaintiffs claims became moot was proper noting that  because the class action was never properly certified nor the class properly identified by the district court the decision that the claims of the purported representative were moot dictated the dismissal of the uncertified class action as well quoting bd of school commrs v jacobs 420 us 128 130 95 sct 848 850 43 led2d 74 78 1975 per curiam (D) recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members (E) holding that the filing of a class action by a class representative without standing tolls the period of limitations with regard to all asserted members of the class and that the amendment of the complaint by the addition of a class member with standing relates back to the original complaint
Output: (C)
the context of the EAJA, see, e.g. Perales v. Casillas, 950 F.2d 1066, 1072 (5th Cir.1992) (noting failure of bad faith claim did not mandate conclusion that government’s position was substantially justified); Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir.1987) abrogated on other grounds, 884 F.2d 442 (9th Cir.1989) (bad faith standard "higher than the substantial justification standard"); Gregory C. Sisk, "The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part Two)” 56 La. L.Rev. 1, 54 (1995) (noting that where the government acts in bad faith, this "under mines the 'substantial justification’ for the government's position”), as well as in other areas. Cf. United States v. Truesdale, 211 F.3d 898, 908 (5th Cir.2000) (<HOLDING>). Here we simply conclude that the basis for 
 Holding statements: (A) holding that a bad faith claim is a tort (B) holding that for the administrative position of the government to be substantially justified it must have a reasonable basis both in law and fact (C) holding that congress did not want the substantially justified standard to be read to raise a presumption that the government position was not substantially justified simply because it lost the case citations omitted (D) holding that in order to establish bad faith claim under hyde amendment criminal defendant must show more than that governments position was not substantially justified (E) holding that the governments position must be justified to a degree that could satisfy a reasonable person and have a reasonable basis in both law and fact citations omitted
Output: (D)
See 516 U.S. at 148, 116 S.Ct. 501. The Court subsequently recognized in Bousley that a p:re-Bailey conviction pursuant to a plea agreement would be constitutionally defective if a defendant was misinformed of the elements of § 924(c)(1), see 523 U.S. at 618-19, 118 S.Ct. 1604 and that a pre-Bailey conviction based on an unintelligent guilty plea may be attacked on collateral review, see id. at 621, 118 S.Ct. 1604. Although the government concedes that Abdullah’ 2d 40 (2000); United States v. Lawson, 155 F.3d 980, 982 (8th Cir.1998) (“[Ijssues not presented to the district court will not be considered on appeal unless a finding of waiver would be unfair or unjust.”), cert. denied, 525 U.S. 1186, 119 S.Ct. 1131, 143 L.Ed.2d 124 (1999); Devose v. Norris, 53 F.3d 201, 207 (8th Cir.1995) (<HOLDING>). Abdullah’s § 2255 petition, filed in 1993, 
 Holding statements: (A) holding that habeas claim not included in petition and never raised by petitioner before the district court as basis for habeas relief is procedurally defaulted (B) holding that district court must resolve all claims for relief premised on alleged constitutional violations which are raised in a petition for writ of habeas corpus whether habeas relief is granted or denied (C) holding that the convention claim was procedurally defaulted (D) holding that an argument not raised before the district court is procedurally defaulted (E) holding that the district court must resolve all claims for relief raised in a habeas petition regardless of whether habeas relief is granted or denied
Output: (A)
a triable issue.’ ” Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.2005) (quoting Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.2002)). The reason is obvious: “[s]uspicious timing may be just that — suspicious—and a suspicion is not enough to get past a motion for summary judgment.” Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir.2011) (citation omitted). Accordingly, for a suspicious-timing argument alone to give rise to an inference of causation, the plaintiff must demonstrate that “an adverse employment action follows close on the heels of protected expression, and the plaintiff [must] show that the person who decided to impose the adverse action knew of the protected conduct.” Lalvani v. Cook Cnty., 269 F.3d 785, 23, 427 (7th Cir.2009) (<HOLDING>); McClendon v. Ind. Sugars Inc., 108 F.3d 789, 
 Holding statements: (A) holding that allegations that employees supervisors yelled at her told her she was a poor manager and gave her poor evaluations chastised her in front of customers and once required her to work with an injured back were insufficient to state title vii claim (B) holding that a two to threeday time period between the employees complaint and his discharge was sufficient (C) holding that the plaintiffs evidence of pretext which included but was not limited to her supervisors statement that she had enough of the plaintiff going to her supervisor about her was not sufficient to preclude summary judgment (D) holding that a oneday time period between the employees complaint and her supervisors recommendation to fire her was sufficient (E) holding that the plaintiffs second complaint did not relate back to her first complaint because her second complaint was not an amendment to her first complaint but rather a separate filing
Output: (D)
whereby we consider such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness, whereby we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a). United States v. Crosby, 397 F.3d at 114-15. To the extent Watson appears to contend that his sentence is procedurally unreasonable because the district court persisted in calculating his Guidelines by reference to drug quantities not found proved beyond a reasonable doubt by the jury, his argument is foreclosed by Crosby. See id. at 115 (<HOLDING>). Similarly without merit is Watson’s argument 
 Holding statements: (A) holding that a sentencing judge would violate section 3553a by limiting consideration of the applicable guidelines range to the facts found by the jury or admitted by the defendant instead of considering the applicable guidelines range as required by subsection 3553a4 based on the facts found by the court (B) holding that judge found sentence enhancements mandatorily imposed under the guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the sixth amendments guarantee of the right to trial by jury (C) holding that a sentencing judge would commit a statutory error  if the judge failed to consider the applicable guidelines range  as well as the other factors listed in section 3553a (D) holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range (E) holding that despite the advisory nature of the sentencing guidelines they remain the starting point and the initial benchmark of a district courts sentencing analysis the district court should begin all sentencing proceedings by correctly calculating the applicable guidelines range and keep that range in mind throughout the sentencing process and that failing to calculate or improperly calculating the guidelines range  or failing to adequately explain the chosen sentenceemdashincluding an explanation for any deviation from the guidelines range constitutes significant procedural error 
Output: (A)
continuous presence and substantial activities that satisfy the requirements of doing business do not necessarily need to be conducted by the foreign corporation itself.” Wiwa, 226 F.3d at 95. While “the presence of [a] subsidiary alone does not establish the parent’s presence in the state,” Jazini, 148 F.3d at 184 (citing Volkswagenwerk AG v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir.1984)), personal jurisdiction over a foreign parent exists where its New York subsidiary is either a “mere department,” or an “agent,” of the parent. Id. (citing Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir.1996)). Conversely, jurisdiction exists over a subsidiary that is a mere department of a parent corporation which has a presence in New York. See Cornell, 2000 WL 284222, at *3 (<HOLDING>)(citing cases). To determine whether Siemens 
 Holding statements: (A) holding that the agency and mere department tests may be applied where the foreign parent is doing business in new york and plaintiffs seek to attribute its contacts to a subsidiary ie the converse of the ordinary cplr  301 attribution case (B) holding that a close relationship between a parent corporation and a subsidiary may justify finding that the parent engages in business in the jurisdiction through the local activities of its subsidiary (C) holding that a parent corporations contacts may not be imputed to its subsidiary (D) holding that a parent company was not liable for aiding and abetting a breach of fiduciary duty by its subsidiary because the parent company was not a stranger to the business relationship between its subsidiary and the plaintiff giving rise to and underpinning the contract (E) holding that a parent must exercise some control over the subsidiarys activities which does not require that the subsidiary be controlled to an ultimate degree by its parent  although something more than mere passive investment by the parent is required the parent must have and exercise control and direction  over the affairs of its subsidiary in order for venue to be proper
Output: (A)
general election. Such campaigning varied in terms of degree, but most of the named plaintiffs testified that they circulated petitions, made posters and generally aided in the campaign effort. Several of the named plaintiffs have asserted pendent state law claims alleging that as honorably discharged veterans who served in the armed forces during wartime they were entitled to special protection under New York’s Civil Service Law. Due to the differences not only in terms of proof, but also in causes of action, the court will address each of the plaintiffs’ claims separately. Following this determination the court will examine plaintiffs’ motion for class certification. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (<HOLDING>). Marion Sciortino Goodwin Plaintiff Marion 
 Holding statements: (A) holding that a class plaintiff who seeks to assert statutory rights to protect a class of which he is a member is not asserting rights antagonistic to any members of that class (B) holding that it is error to certify class when named class representatives are not members of the class they purport to represent (C) holding that putative class members are not parties to an action prior to class certification (D) recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members (E) holding that putative class representatives had standing to represent the class even when they owned stock for only part of lengthy class period because they alleged a common course of conduct to defraud over that entire period including the period during which they owned stock
Output: (B)
is uncertain whether Mr. Porcaro is actually dead. Great Southern presented deposition evidence from which a jury could reasonably determine that Mr. Porcaro may have fled to avoid prosecution and, thus, still be alive. Furthermore, the probate court’s ruling does not constitute prima facie evidence of Mr. Porcaro’s death. While a death certificate obtained through probate proceedings provides some evidence of death, death certificates no longer have prima facie evidentiary value outside the context of probate proceedings. See Ch. 97-287, § 106, at 4169, Laws of Fla. (eliminating provision in section 382.025(5), Florida Statutes, that provided for such prima facie evidentiary value in “all courts and cases”); Branca by Branca v. Sec. Benefit Life Ins. Co., 773 F.2d 1158 (11th Cir.1985) (<HOLDING>). Therefore, the burden was on Mrs. Porcaro to 
 Holding statements: (A) holding that a plaintiff must merely make out a prima facie case to withstand a motion to dismiss for lack of personal jurisdiction where there has been no evidentiary hearing (B) holding that a prima facie case is subject to independent review (C) recognizing confusion caused by prima facie language (D) holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence (E) holding section 731103 florida statutes providing for prima facie evidentiary value upon the presentation of enumerated evidence of death applies only in probate proceedings
Output: (E)
or serious bodily injury.” See Tex. Penal Code Ann. § 1.07(a)(17)(B) (emphasis added). A car can be a deadly weapon. Butler v. State, 928 S.W.2d 286, 288 (Tex.App.Fort Worth 1996, pet. ref'd). Randy and Gary collectively testified that Appellant rammed them with his vehicle two or three times, and Randy testified that Appellant caught them even after he drove sixty or seventy miles-per-hour while fleeing from Appellant. Although neither Randy nor Gary testified that they were physically injured by Appellant’s conduct, there is no requirement that the deadly weapon actually cause death or serious bodily injury before the jury can affirmatively answer the deadly weapon question. See Tex. Penal Code Ann. § 1.07(a)(17)(B); see also McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000) (<HOLDING>). The evidence is legally sufficient to support 
 Holding statements: (A) holding that reckless conduct was lesserincluded offense of aggravated assault by threatening another with imminent bodily injury by use of deadly weapon because the danger of serious bodily injury in the lesser offense is necessarily established when a deadly weapon is used in the commission of an offense as required for the greater offense (B) holding that although defendants vehicle was not used with deadly effect it was a deadly weapon because it was capable of causing death or serious bodily injury if not for an oncoming drivers evasive maneuver (C) holding that it was a double jeopardy violation to convict and sentence for both dui with serious bodily injury and driving without a valid license with serious bodily injury based on an injury to a single victim (D) holding that the evidence was insufficient to support a deadlyweapon finding because a motor vehicle is not a deadly weapon per se and there was no testimony in the record that defendant operated his vehicle in a manner that was capable of causing death or serious bodily injury (E) holding section 107a17bs plain language does not require that the actor actually intend death or serious bodily injury an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury
Output: (E)
and in fact in this case the Service actually lifted the permit requirement without ever having denied Boise’s permit application. Thus, the situation before the Court in Tahoe is very different from both the Riverside Bayview line of cases and the case Ass’n, 452 U.S. 264, 297, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (rejecting a Takings Clause challenge to the Surface Mining Control and Reclamation Act in part because the challengers had not yet availed themselves of administrative procedures for obtaining a variance from the requirements of the act and noting that “[t]he potential for such administrative solutions confirms the conclusion that the taking issue ... simply is not ripe for judicial resolution”); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 927 (5th Cir.1983) (<HOLDING>); United States v. Byrd, 609 F.2d 1204, 1211 
 Holding statements: (A) holding takings claim not ripe under riverside bayview because landowner never applied for a permit (B) holding that takings claim does not ripen until a permit application is denied (C) holding that no takings claim can arise unless a permit is denied (D) holding the substantially advances formula is not a valid takings test and indeed  it has no proper place inour takings jurisprudence (E) holding the takings clause inapplicable to the states of its own force
Output: (B)
cannot be waived); 2 Moore’s, supra, § 8.07[3] (noting that affirmative defenses are, waivable); see also Denver & Rio Grande W.R. Co. v. Blackett, 538 F.2d 291, 294 (10th Cir.1976) (“[T]he application of affirmative defenses offer[s] no jurisdictional question.”)- While it is true, as Sanborn points out, that Colorado courts have barred civil suits against employers when workers’ compensation was available, in none of these cases did the parties dispute the existence of the state law bar, as they have done in the current case. See, e.g., Kandt v. Evans, 645 P.2d 1300, 1305-06 (Colo.1982) (affirming grant of summary judgment because plaintiff had already received workers’ compensation benefits and the fact that plaintiff was ac gomery LC, Inc., 942 P.2d 1230, 1234 (Colo.Ct.App.1996) (<HOLDING>); cf. Massie v. Godfather’s Pizza, Inc., 844 
 Holding statements: (A) holding that the issue of foreseeability should be submitted to the jury where reasonable persons might differ (B) holding that new york common law must be applied to determine whether the parties formed an oral settlement agreement and state statutory law must be applied to determine whether the agreement if any is enforceable (C) holding that factual issues essential to determining whether state law bar applied should be submitted to a jury (D) holding that the disputed issue with respect to the state law bar was properly submitted to the jury (E) holding that state court with jurisdiction over  301 claim should have applied federal labor law rather than state contract law
Output: (C)