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even though the store benefitted from the advertising, the court found this did not rise to the level of consideration. Id. In State v. Socony Mobil Oil Co., the Court of Civil Appeals contrasted Brice with Cole and found no consideration where a filling station paid for bingo cards but gave them away free to any and all persons who came to their stations to request them, and a local TV station broadcast games in which bingo cards were used with winners being awarded cash prizes. 386 S.W.2d 169 (Tex.Civ.App.-San Antonio 1964). Some jurisdictions outside of the State of Texas have held that requiring a person to actually go to the location of the sweepstakes sponsor in order to participate constitutes consideration. See Lucky Calendar Co. v. Cohen, 19 N.J. 399, 117 A.2d 487, 496 (1955)(<HOLDING>); Knox Indus. Corp. v. State ex rel. Scanland,
### Response:
holding that consideration exists where a customer is burdened by having to visit the store where the coupons are being offered
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individuals are cooperating with law enforcement authorities.” (Id.) As a general proposition, courts have repeatedly recognized that materials, including even judicial documents which are presumptively accessible, can be kept from the public if their dissemination might “adversely affect law enforcement interests.” Amodeo II, 71 F.3d at 1050; see also Lugosch, 435 F.3d at 120 (noting that the “danger of impairing law enforcement” may be a countervailing factor outweighing the qualified right of access); Madoff, 626 F.Supp.2d at 427 (rejecting press access to emails sent by victims in a major fraud case, because “disclosing the details of the Government’s efforts to obtain evidence will undoubtedly hamper the investigation”); United States v. Park, 619 F.Supp.2d 89, 94 (S.D.N.Y.2009) (<HOLDING>). Thus, where public disclosure of certain
### Response:
holding that the need to maintain the secrecy of the governments investigation outweighed the publics right of access to sentencing documents
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For example, the Commission at one point says that it will “require the pipelines to show why their existing tariffs should not be considered unjust and unreasonable,” Order No. 637-A at 31,591, and that “individual pipelines [will have] an opportunity to demonstrate that their own circumstances justify deviation from the general conclusion that segmentation is appropriate,” FERC Br. at 101. INGAA’s suspicion is also fueled by the fact that on several previous occasions the Commission had impermissibly blurred the distinction between § 4 and § 5, see Western Res., 9 F.3d at 1578 (“We now make it an even six” times that the Commission failed to respect this distinction), or tried to use another section of the NGA to “trump” its § 5 obligations, see Pub. Serv. Comm’n, 866 F.2d at 491 (<HOLDING>). Nonetheless, the orders contain some express
### Response:
holding that 16 of the nga which grants the commission the right to require filings needed to exercise its powers under the nga did not permit ferc to require a company to make periodic 4 refilings
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His hands, everything, was shaking." Haley's mouth was dry and he was licking his lips, stuttering, shuffling his feet, and nervously pacing in circles. Daniel was also extremely nervous and exhibited a facial twitch and shaking hands and neither Dunlap nor Daniels knew their point of destination. Miller informed Haley that he was free to leave and asked him if he had any drugs or anything illegal in the vehicle, and Haley responded, "No. You want to check it out?" Haley asked the officer, "would you want to look at the bags or something?" Lastly, when Haley removed the bags from the trunk of nt officer's ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997); see also People v. Ratcliff, 778 P.2d 1371, 1379 (Colo.1989) (<HOLDING>). Here, that objectively reasonable suspicion
### Response:
holding that a defendants actions while appearing innocent to a casual observer assume added significance when considered in the context of a police officers training and experience in drug enforcement
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and “decreased short term survival” is, in effect, a loss of chance instruction and contrary to Indiana law. We agree. We first note that this instruction again correctly states the § 323 standard of proximate causation. However, this instruction erroneously defines the “harm” as the loss of a chance of survival. This instruction effectively combines the loss of chance doctrine and the § 323 standard. However, these options are alternative and incompatible approaches for imposing liability in cases such as this. The supreme court in Mayhue clearly adopted the § 323 approach in this class of cases while rejecting the loss of chance doctrine. See Mayhue 653 N ed from Cummings’s claim for pain and suffering. See Kolkman v. Falstaff Brewing Corp., 511 N.E.2d 478, 480 (Ind.Ct.App.1987) (<HOLDING>), reh’g denied, trans. denied. Therefore, we
### Response:
holding that absent an actionable injury to one spouse the other spouse cannot recover for loss of consortium
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noting that the additional materials provided "are submitted only to assist the Court in exercising its discretion in ruling on the Motion to Strike under Rule 14(a)." Third-Party Defendants’ Brief at 9 n. 9. PFM argues that it is really a motion for summary judgment. Since the court is not considering the materials outside the pleadings, the motion should be regarded as one to dismiss. 5 . The Court also declined in both cases to create an implied right to contribution under federal common law. Northwest Airlines, 451 U.S. at 98, 101 S.Ct. at 1584; Texas Indus., 451 U.S. at 646, 101 S.Ct. at 2069. 6 . This conclusion is inconsistent with this court’s earlier decision in Phillips v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 4-81-394, slip op. at 12 (D.Minn. July 27, 1984) (<HOLDING>). The issue of contribution was not fully
### Response:
recognizing a right to contribution
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the difference between it and the previous provisions in Section 70(a)(5) of the Bankruptcy Act. There is no question that the language has changed. The significance of this change in concept clearly indicates that the reliance of the Debtor on the case of In re Edgar, supra, is misplaced. The Edgar decision involved the interpretation of Section 70(a)(5) of the Bankruptcy Act of 1898, and the present controversy is governed by Section 541(a)(5)(A) of the Bankruptcy Code. Thus, the decision in Edgar no longer represents the controlling law under the Code. In re Kragness, 58 B.R. 939 (Bankr.D.Or.1986); In re Hersloff, 147 B.R. 262 (Bankr.M.D.Fla.1992); In re Gower, 184 B.R. 163 (Bankr.M.D.Fla.1995). In its reasoning, the Kragness Court cites In re Hecht, 54 B.R. 379 (Bankr.S.D.N.Y.1985) (<HOLDING>). The Bankruptcy Court for the Southern
### Response:
holding that income payment debtor received from spendthrift trusts or was entitled to receive by terms of the trusts within 180 days of filing of debtors bankruptcy petition constituted bequests and became property of debt ors estate under 541a5a
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she argues that that affidavit demonstrates that Mandeville’s testimony regarding DMV complaints about Bucci is not worthy of belief. It is important to note, however, that San Bento said in his affidavit that he did not recall making any complaints about Bucci and that he found her to be “professional, efficient and competent.” But Mandeville never said that it had been San Bento who had made a complaint to her about Bucci. Indeed, other employees from the DMV, or employees from motor-vehicle departments from other states, may well have complained about Bucci’s performance. When a plaintiff attempts to counter a claim by an employer that it fired an employee for poor performance, it is simply not sufficient for a plaintiff to present evidence that her performance wa (7th Cir.2007) (<HOLDING>). Further, the policy states that there are
### Response:
holding no pretext for not following progressive discipline where policy contemplated immediate termination for certain offenses
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disparity exists between the parties, such that one party may be inhibited from preparing or presenting a claim, the trial court should liberally exercise its discretion so as to remove that inhibition and assist the needy party”). In this case, an allowance of attorney fees against an intervening third party, particularly when incurred in a collateral proceeding to enforce a judgment, would do nothing to advance the statutory purpose of equalizing the economic resources between the divorcing parties. {20} We acknowledge that divorce actions may sometimes include parties, other than husband and wife, who join in the action because they assert a right or interest in the subject of the dissolution proceedings. See Greathouse v. Greathouse, 64 N.M. 21, 23, 322 P.2d 1075, 1076 (1958) (<HOLDING>); Ruybalid v. Segura, 107 N.M. 660, 663, 763
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recognizing that either party to a divorce action may bring in third parties who claim an interest in the property alleged to be community or third parties themselves may intervene and have their rights therein determined
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at the time of leasing, and of the continuing supervision of the federal agencies involved over future activities, the agency’s decision in this case that the lease issuance itself was not a major federal action significantly affecting the quality of the human environment was not unreasonable. Id. at 624 (emphasis added). Park County has been overruled to the extent it held that a reasonableness standard of review should be used when reviewing an agency’s decision to not prepare an EIS. In Marsh, 490 U.S. at 385, 109 S.Ct. 1851, the Court held that an agency’s decision to not prepare an EIS or to not supplement an existing EIS should only be reversed when it is arbitrary and capricious. See also Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972-73 (10th Cir.1992) (<HOLDING>). Nevertheless, according to Pen-naco, Park
### Response:
recognizing park county was overruled in part by marsh
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noted, the misrepresentations were actionable “because they caused him to enter into an agreement whereby he made an unfavorable purchase” and, thus, the claims related to the agreement. Id. The allegations in this case are analogous as Plaintiffs allege that Defendants’ misrepresentations caused Plaintiffs to sign up for HighBeam’s free trial, which necessitated agreeing to the clickwrap agreement. If Plaintiffs had not entered into the Agreement, they would not have sustained any losses. The cases Plaintiffs rely on in which courts held that forum selection clauses did not apply arose from factual scenarios that are easily distinguishable from the case at hand. See Bay State Anesthesia Inc. v. Mallinckrodt, Inc., No. CIV.A. 02-11174RWZ, 2002 WL 31761286, at *1 (D.Mass. Dec. 6, 2002) (<HOLDING>); Pixel Enhancement Labs., Inc. v. McGee, No.
### Response:
holding that the plaintiffs claims fell outside the scope of the forum selection clause because they were either not related to the contract such as claims that the defendants made disparaging and untrue statements to plaintiffs customers or concerned conduct that occurred after the contract was terminated
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at 324 (noting that “materially adverse employment action requires more than trivial, subjectively perceived incon verbenees.” (citations omitted)). Rather, although the demotion was intended to be temporary, in light of the fact that months went by without Sensing being scheduled for work or contacted regarding the IME that could allow her to return to work, we hold that Sensing has adduced sufficient facts to establish that Outback’s actions were nevertheless “materially adverse.” Id.; Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir.2002) (listing “demotions [and] disadvantageous transfers or assignments” as examples of “material changes” in working conditions); see also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71-73, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (<HOLDING>). Finally, having concluded that a reasonable
### Response:
holding that potentially indefinite suspension of employee from work without pay could constitute materially adverse employment action even where employer awards full backpay for the entire period and that reassignment of responsibilities could constitute materially adverse employment action even absent demotion
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waterways.” It is well established that “ ‘an expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant.’ ” Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (1970) (quoting Miller v. Abrahams, 239 Md. 263, 273, 211 A.2d 309, 314 (1965)). An expert opinion “derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert.” State Health Dep’t v. Walker, 238 Md. 512, 520, 209 A.2d 555, 559 (1965). See also Jones v. State, 343 Md. 448, 682 A.2d 248 (1996) (expert testimony by police officer that he was able to identify crack cocaine by touch was nothing more than a conclusion); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 625 A.2d 1005 (1993) (<HOLDING>); Wood v. Toyota Motor Corp., 134 Md.App. 512,
### Response:
holding inadmissible auto reconstruction experts opinion that height of bumper on truck was unreasonably dangerous where height complied with industry standards and no scientific studies or emerging consensus supported opinion
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the Dominican court did not have subject matter jurisdiction in the Dominican divorce. The Dominican court did not have subject matter jurisdiction because neither Dubie nor Sylvie was a resident or domiciliary of the Dominican Republic at the time the Dominican court granted the Dominican Decree. Hence, the Dominican Decree supposedly dissolving the marriage between Du-bie and Sylvie is void ab initio. Geraldine also claims that the Dominican Decree is not entitled to comity, recognition, or enforcement in Hawai'i. She argues that “a foreign ‘ex parte’ divorce for cause between pe a trial court did not err by refusing to recognize Egyptian divorce decree where neither party was domiciled in Egypt at time decree was issued); Sargent v. Sargent, 225 Pa.Super. 1, 307 A.2d 353, 356 (1973) (<HOLDING>); Clark v. Clark, 192 So.2d 594, 596-97
### Response:
holding that an absolute prerequisite to judicial recognition of an outofstate divorce is that the plaintiff must have resided in the country for a minimum period of residency and the residency be accompanied by domiciliary intent
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rule on at least four occasions since Beam was decided. In Beam/Harper, the Supreme Court rejected the analysis of Sunburst/Chevron in retroactivity determinations for federal constitutional rulings, but the Court did not formally overrule those cases. Nor did the Court suggest that the principles underlying Sunburst/Chevron were unsound for purposes of state court retroactivity analysis. Therefore, I am satisfied that we remain bound by the holding in Mendes. Finally, I also disagree with the majority’s application of the Mendes factors. First, both parties in this case relied exclusively, and justifiably, on the rule established in Adams. Retroactive application of Carl II would undermine the reliance and expectations of the parties. See French, supra note 3, 658 A.2d at 1031-32 (<HOLDING>). Second, because the previous law concerning
### Response:
holding that new rule applied purely prospectively primarily because of reliance factor
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to the arbitration clause is preempted by the Communications Act, the issue of unconscio-nability is not even in play. Moreover, while on appeal Boomer perfunctorily states in a footnote that Ting collaterally estops AT & T from arguing that the Communications Act preempts his state law challenges to the arbitration clause, he fails to support this position with any legal analysis or citation. Therefore he has waived that argument. Rekhi v. Wildwood Indust., Inc., 61 F.3d 1313, 1317 (7th Cir.1995). Finally, even had Boomer not waived this argument, because the issue of preemption involves a pure question of law and because Ting is currently on appeal to the Ninth Circuit, we would still conclude that Ting has no preclusive effect. See, e.g., Chicago Truck Drivers, 125 F.3d at 532-33 (<HOLDING>) (internal quotation omitted). 11 . In Ting,
### Response:
holding that collateral estoppel did not bar the defendant from relitigating a pure question of law and noting that that is especially true when the issue is of general interest and has not been resolved by the highest appellate court that can resolve it
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faith, excused the wrong two alternates. Because of this mistake, the two alternates from the bottom of the list — that is, the two alternates who should have been excused pursuant to Rule 6(f) — were allowed to stay and serve on the grand jury panel. Under these circumstances, these two alternates should be deemed de facto grand jurors; their participation on the grand jury panel does not invalidate the acts of that panel. Conclus at 193. 4 . Id. 5 . See Supreme Court Order No. 1115. 6 . 783 P.2d 1173, 1177 (Alaska App.1989). 7 . See id. at 1177-78. 8 . See Bobby v. State, 950 P.2d 135, 138 (Alaska App.1997) (the superior court's factual determinations will stand unless the defendant shows them to be clearly erroneous). 9 . See Hampton v. State, 569 P.2d 138, 148-49 (Alaska 1977) (<HOLDING>); Peterson v. State, 562 P.2d 1350, 1366
### Response:
holding that the defendants right to an impartial jury was not impaired when there was no common thread or similarity among the group of excluded jurors
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(“The most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.”). Courts typically do not disturb a lead plaintiffs choice of counsel unless doing so is necessary to protect the interests of the class. See Cavanaugh, 306 F.3d 726, 733 (9th Cir.2002) (“[T]he district court must approve the lead plaintiffs choice of counsel, but Congress gave the lead plaintiff, and not the court, the power to select a lawyer for the class.”). The presumption that a lead plaintiff fulfills the typicality and adequacy requirements can be rebutted by a showing that the plaintiff is in fact not adequate or will be subject to unique defenses. See, e.g., See In re Network Assoc., Inc. Sec. Litig., 76 F.Supp.2d 1017, 1029 (N.D.Cal.1999) (<HOLDING>). 1. The Pension Fund Group The Pension Fund
### Response:
holding presumptive lead plaintiff inadequate due to unrelated fraud investigation
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CURIAM. Pursuant to appellee’s proper confession of error, the final order on appeal is reversed and the cause is remanded to the trial court with directions to hold an evi-dentiary hearing on appellant’s motion to vacate. See Johnson v. State, Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) (<HOLDING>). ROWE, MAKAR, and KELSEY, JJ.,
### Response:
holding that absent record refutation of allega tions in the motion for relief from judgment allegations which if proven would establish that the judgment is void the trial court must conduct an evidentiary hearing
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what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. Stone, at 681. The Alaska court was quick to point out that this balance does not interfere with any preference for disclosure established by its public records act because the burden is still on the agency to show that the public interest weighs on the side of nondisclosure. Anchorage Daily News, at 591. While we recognize that the public has some degree of interest in disclosure of the evaluations of prosecutors, in light of the potential harm disclosure could cause, we hold that legitimate public concern is lacking in this case. Cf. Stern v. FBI, 737 F.2d 84, 93 (D.C. Cir. 1984) (<HOLDING>). Disclosure could harm the public interest in
### Response:
holding that public interest based only on a general notion of public servant accountability does not necessarily require disclosure
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because he has alleged a sincerely held religious belief, so his Free Exercise Clause challenge thus turns on whether the State’s interest in compliance with the Equal Protection Clause is reasonably related to legitimate penological interests. Potential legal liability may constitute a legitimate penological interest under Turner. See Acorn Inv., Inc. v. City of Seattle, 887 F.2d 219, 226 (9th Cir.1989) (indicating that compliance with an ordinance constitutes a “legitimate interest”); Victoria W. v. Larpenter, 369 F.3d 475, 486 (5th Cir.2004)' (noting that the threat of legal liability stemming from prison escapes gave the state a legitimate penological interest in restricting prisoner access to off-site medical care); cf. Goodwin v. Turner, 908 F.2d 1395, 1399 n. 7 (8th Cir.1990) (<HOLDING>). As we discuss in Part V.C, there is a
### Response:
holding that the state did not have a legitimate penological interest stemming from potential legal liability in part because the grounds for liability were farfetched
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argument. Pursuant to 29 U.S.C. § 626(e)(2), the statute of limitations may be tolled up to one year for the period during which the EEOC attempts compliance with the ADEA’s requirements through conciliation. Therefore, together with the extension for willful violations, conciliation may extend the statute of limitations for a total of four years. O’Rourke v. Continental Casualty Co., 983 F.2d 94, 95 (7th Cir.1993). The conciliation period begins, thereby tolling the filing period, when the EEOC issues a letter of violation. E.E.O.C. v. Barrett, Haentjens & Co., 705 F.Supp. 1065, 1069 (M.D.Pa.1988) (citing the Congressional and Administrative News); U.S. Equal Employment Opportunity Commission v. Francis W. Parker School, 91 C 4674, 1993 WL 106523, at *4 (N.D.Ill. Mar. 24, 1993) (<HOLDING>); but see Equal Employment Opportunity
### Response:
holding that eeoc phone calls served to commence the tolling period
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directs us is an amended complaint (the “Second” complaint) that Lynchval filed sometime after the original complaint and sometime before the SASC. This complaint contains the new allegations present in the SASC. But Winklevoss has no proof that it tendered this complaint to Federal, or that Federal knew about it through other means. Moreover, just as the SASC does not “clarify” the original complaint, the Second complaint (which mirrors the SASC in all relevant respects) likewise fails to “clarify” the original complaint. These facts render Winklevoss’ cited authority inapposite. Those cases all involved vague complaints that were clarified by later fact discovery, or that, liberally construed, held the potential for coverage from the very beginning. See Travelers, 974 F.2d at 829 (<HOLDING>); Kufalk, 636 F.Supp. at 311-12 (complaint’s
### Response:
holding that the complaints allegations that the lithograde polystyrene sheets supplied by penda were unusable and unacceptable could be read to claim property injury in light of deposition testimony that plaintiff sought compensation for damages caused by the defective sheets
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through the courts. {13} Finding that the issue was adequately preserved also complies with the New Mexico appellate courts’ approach to “construe the rules of appellate procedure liberally so that causes on appeal may be determined on their merits.” Danzer v. Prof'l Insurors, Inc., 101 N.M. 178, 180, 679 P.2d 1276, 1278 (1984), (cited with approval in Aken v. Plains Elec. Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 10, 132 N.M. 401, 49 P.3d 662 (2002)). {14} Finally, and alternatively, the Rules of Appellate Procedure specifically authorize this Court, at our discretion, to review an issue that was not properly preserved if the issue is of “general public interest.” Rule 12-216(B); see also Pineda v. Grande Drilling Corp., 111 N.M. 536, 539, 807 P.2d 234, 237 (Ct.App.1991) (<HOLDING>); United Salt Corp. v. McKee, 96 N.M. 65, 67,
### Response:
holding that question involving procedure required of workers compensation agency to promulgate valid rules was of general public interest
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his arrest. Likewise, I agree with Justice Woodall’s rejection of the reliance in the main opinion upon the fact of a subsequent indictment as prima facie evidence of probable cause for an antecedent arrest. As the court in Radvansky v. City of Olmsted Falls, 395 F.3d 291, 307 n. 13 (6th Cir.2005), recently noted: “[N]either the Supreme Court, nor this court, has ever held that a subsequent grand jury indictment can establish probable cause for an earlier arrest. See Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) (evaluating probable cause based on the circumstances at the time of arrest despite the fact that the defendant was later indicted by a federal grand jury); Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (<HOLDING>); United States v. Bowker, 372 F.3d 365, 374
### Response:
holding that in the absence of a prior indictment probable cause for arrest is determined by the facts in the sworn complaint
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the power and the intention at a given time to exercise dominion and control over” the gun. See Hadley, 431 F.3d at 507. Because we conclude that the foregoing evidence was sufficient to support the jury’s guilty verdict, we need not resolve the question of whether Newsom’s failure to stop the vehicle promptly, his furnishing of false identification, and his evasiveness in responding to the officer’s questions could also support his conviction. D. Propriety of Newsom’s sentence Newsom was sentenced in December of 2004, a month before Booker was decided. He argues, and the government concedes, that this court’s post-Booker cases require us to vacate his sentence and remand the case to the district court for resentencing. See United States v. Barnett, 398 F.3d 516, 529 (6th Cir.2005) (<HOLDING>). No such evidence has been presented in this
### Response:
holding that sentencing under the mandatory guidelines regime creates a presumption of prejudice that the government must rebut with clear and specific evidence that the district court would not have sentenced the defendant to a lower sentence if it had treated the guidelines as advisory
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(citation and internal quotation marks omitted)); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998). 2 . On April 25, 2014, Plaintiff filed another action against various government employees pursuant to 42 U.S.C. § 1983. See Complaint, Bussie v. Government Accountability Office, No. 14-CV-2665 (E.D.N.Y.2014). By Memorandum and Order dated May 23, 2014, the Court denied Plaintiff's request to proceed in forma pauperis and ordered Plaintiff to pay the $400 filing fee in order to proceed with that action. 3 . Plaintiff is advised that even a fee-paid pro se complaint may be dismissed sua sponte if the Court lacks subject matter jurisdiction or if the complaint is frivolous. Fed.R.Civ.P. 12(h)(3); Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000)
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holding that a district court may dismiss a frivolous complaint sua sponte notwithstanding the fact that the plaintiff paid the statutory filing fee
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F.2d 305, 308 (10th Cir.1981) ("Even where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere.... Because each member of our society at some time engages in an activity that fairly could be characterized as a matter of legitimate public concern, to permit that activity to open the door to the exposure of any truthful secret about that person would render meaningless the tort of public disclosure of private facts."); Doe v. Gangland Prods., Inc., 730 F.3d 946, 959 (9th Cir.2013) ("'The newsworthiness inquiry focuses on the particular fact at issue that was disclosed, not on the general topic of the publication."); Toffoloni v. LFP Publ'g Grp., LLC, 572 F.3d 1201, 1212 (11th Cir.2009) (<HOLDING>). 34 The Virgil court ultimately concluded that
### Response:
holding that every private fact disclosed in an otherwise truthful newsworthy publication must have some substantial relevance to a matter of legitimate public interest emphasis omitted
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§ 7201 because there is no affirmative act of evasion or an intent to evade the payment of taxes. Yet, the drug dealer could be prosecuted under § 7206(5) for lying about the "source of funds” because that statute punishes any person who falsifies any document relating to the financial condition of the taxpayer submitted in connection with an offer-in-compromise. See Tr. of 9/17/10 Hr’g at 47-48. 7 . See United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (“This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecutes [sic] under either so long as it does not discriminate against any class of defendants.”); United States v. Beacon Brass Co., 344 U.S. 43, 45-46, 73 S.Ct. 77, 97 L.Ed. 61 (1952) (<HOLDING>); United States v. Kenny, 973 F.2d 339, 342-43
### Response:
holding that defendant could be charged for making false statements to treasury officials under the tax evasion statute or the statute prohibiting false statements to government officials
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### Input:
P. 26.02(1) placed the initial burden on the Boyd parties to establish that the requested documents contained information relevant to (1) Comdata’s obligations under the Marketing Services Agreement, (2) Comdata’s representations that induced the Boyd parties to approve the assignment of the contracts to Comdata and to sign the Guaranty Agreement, and (3) the Boyd parties’ obligations under the Guaranty Agreement. The Boyd parties have not carried this burden. The rights and obligations of the parties to a written contract are governed by the terms of the contract, Hillsboro Plaza Enters, v. Moon, 860 S.W.2d 45, 47 (Tenn.Ct.App.1993), not by the parties’ statements during their negotiations or drafts of the final contract. Faithful v. Gardner, 799 S.W.2d 232, 235 (Tenn.Ct.App.1990) (<HOLDING>); GRW Enters., Inc. v. Davis, 797 S.W.2d 606,
### Response:
holding that the existence of a written contract gives rise to the presumption that the parties have reduced their prior agreements to writing
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
decision to address that question. DISCUSSION Applicable Legal Standard Debtors seek approval of all aspects of the merger under Section 363, which provides, in relevant part, that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). Although Section 363 of the Bankruptcy Code does not set forth a standard for determining when it is appropriate for a court to authorize the sale, disposition, or other use of a debtor’s assets, courts in the Second Circuit and elsewhere have required that it be based upon the sound business judgment of the debtor. See Comm. of Unsecured Creditors of LTV Aerospace & Defense Co. v. LTV Corp. (In re Chateaugay Corp.), 973 F.2d 141 (2d Cir.1992) (<HOLDING>); Comm. of Equity Sec. Holders v. Lionel Corp.
### Response:
holding that a judge reviewing a section 363b application must find from the evidence presented a good business reason to grant such application
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### Instruction:
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### Input:
argues that special circumstances are established in this case by evidence that Ms. Patterson knew that Marquette had the shotgun and knew that he had made a statement about shooting the police. Thus, Finley argues, Ms. Patterson must have known that harm to Finley was imminent. For one to have a duty to warn, however, one must have a reasonable opportunity to warn. See Richard C. Tinney, Liability to Police—Owner or Occupant, 30 A.L.R.4th 81, 97 (1984) (citing Armstrong v. Mailand, 284 N.W.2d 343 (Minn.1979)). Finley offered evidence that Ms. Patterson, although she was over 80 years holding homeowners not liable to member of police SWAT team who was shot by the homeowners’ son while the officer responded in his professional capacity); Chapman v. Craig, 431 N.W.2d 770 (Iowa 1988) (<HOLDING>); Hannah v. Jensen, 298 N.W.2d 52 (Minn.1980)
### Response:
holding tavern owner not liable for injuries sustained when intoxicated patron assaulted a police officer
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
ink addressing each other’s contentions, but the dispute about the supplemental affidavit is immaterial to the resolution of this appeal. Even if the second affidavit was legally defective (because it was unsworn and uncertified), the return of service and original affidavit Relational offered were sufficient to discharge its prima facie burden. To make a prima facie showing, the movant must simply produce a return of service identifying the recipient and noting when and where service occurred, thereby providing enough detail so the opposing party knows what evidence he must rebut. See Homer, 415 F.3d at 754 (suggesting a bare-bones return of service lacking an address or a receiving individual might be insufficient to discharge the prima facie burden); cf. Robinson, 223 F.3d at 451-53 (<HOLDING>). Relational’s original return of service and
### Response:
holding that it was improper for the court to grant a default judgment where the process server stated in his affidavit that he served an unidentified individual
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### Instruction:
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### Input:
States ex rel. Sanders v. East Ala. Healthcare Auth., 953 F.Supp. 1404, 1413 (M.D.Ala.1996). Even after having given due weight to the liberal requirements of notice pleading discussed above, the court finds that Morrow’s pleading of fraudulent concealment is inadequate. Morrow’s allegation consists of one sentence and provides no “details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them.” Cooper v. Blue Cross & Blue Shield of Fla., Inc., 19 F.3d 562, 568 (11th Cir.1994) (finding claim that made only general, conclusory allegations of fraud to be inadequate). Some further level of precision, other than a blunderbuss allegation, is necessary. See, e.g., Seville Indus. Mach. Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir.1984) (<HOLDING>). Furthermore, Morrow does not assert that her
### Response:
holding that although plaintiff did not list dates places or times of fraudulent acts he nonetheless adequately satisfied the requirements of rule 9b by incorporating into the complaint a list identifying with great specificity the pieces of machinery that were the subject of the alleged fraud
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### Instruction:
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### Input:
Mindful of these words, it should be noted that the application of the federal common law developed by the district court in the context of the instant case would not impose any conflicting or undue burdens on plans or plan sponsors. As the ensuing discussion shows, however, the district court has presented a persuasive argument as to why the doctrine of substantial compliance may significantly impact the purposes of ERISA and thus, merit the development of federal common law. 23 . In Singer, we went on to say that the prediction that "use of preempted state commonlaw doctrines to shape a federal common law of ERISA would frustrate Congress's goal of uniformity is unfounded.” Singer, 964 F.2d at 1453. 24 .Citing Wilkie v. Philadelphia Life Ins. Co., 187 S.C. 382, 197 S.E. 375 (1938) (<HOLDING>), and York v. Summer, 195 S.C. 413, 11 S.E.2d
### Response:
holding that insured had not substantially complied with the policys change of beneficiary provisions when the hospitalized insured was physically unable to leave her bed and was unable to retrieve the policy from her lock box at the bank to return to the company for endorsement as required by the terms of the policy
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### Instruction:
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### Input:
1. 36 . See Guard v. P & R Enterprises, Inc., 631 P.2d 1068, 1072 (Alaska 1981). 37 . City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 223 (Alaska 1978) (quoting Levene v. City of Salem, 191 Or. 182, 229 P.2d 255, 263 (1951)), disapproved of on other grounds by Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211 (Alaska 1984). 38 . 631 P.2d at 1072 (first citing Standard Mach. Co. v. Duncan Shaw Corp., 208 F.2d 61, 64-65 (1st Cir. 1953); Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977); El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358, 364 (1978)“; then citing Gen. Elec. Supply Co. v. Mt. Wheeler Power, Inc., 94 Nev. 766, 587 P.2d 1312, 1313 (1978)); see also Sisters of Providence in Wash., 81 P.3d at 1007 (<HOLDING>), 39 . Guard, 631 P.2d at 1072 n.4 (citing
### Response:
holding that expert testimony accompanied by the testimony of two doctors with similar practices and defendants preliminary revenue estimates supported a finding of lost profits
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### Instruction:
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### Input:
§ 7430(c)(4)(E)(i) (“A party ... shall be treated as the prevailing party if the liability of the taxpayer pursuant to the judgment in the proceeding ... is equal to or less than the liability of the taxpayer which would have been so determined if the United States had accepted a 'qualified offer of the party!.]”). This statute does not require any minimum amount or define the parameters of a “reasonable” offer, nor does it require that an offer be for a certain percentage of the taxpayer’s purported liability. See I.R.C. § 7430(e)(4)(E)(i). Indeed, the Government has offered no amount with respect to I.R.C § 7430, “fees are incurred when there is a legal obligation to pay them.” Estate of Palumbo, 675 F.3d at 239-40; see also Morrison v. Comm’r, 565 F.3d 658, 662 (9th Cir. 2009) (<HOLDING>). In this case, BASR “incurred” litigation
### Response:
holding that taxpayer incurs attorney fees if he assumes either 1 a noncontingent obligation to repay the fees advanced on his behalf at some later time or 2 a contingent obligation to repay the fees in the event of their eventual recovery
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### Instruction:
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### Input:
and impeachment material. Judge Tatel authored section I and sections II.D, II.E, II.F, and II.G- on limits on cross-examination, admission of audiotapes, testimony of Detective Rawls, and proof of age. 2 . The government attributed the murder only to White, Hughes and Ballard. Because Ballard pled guilty in the middle of trial, it might seem that the back-up "clear and convincing" finding as to White and Hughes would moot the standard of proof issue. But defendants challenge the court's finding on a factual basis, and it is appropriate for us, in conducting that review, to be clear on the standard that the district court was to apply. Our review of the district court's factual finding, of course, is for clear error. Cf. United States v. Lewis, 921 F.2d 1294, 1301 (D.C.Cir.1990) (<HOLDING>). 3 . To the extent that Thevis endorses
### Response:
holding that because of the factbound nature of the inquiry determination of voluntariness of consent to search is reviewed for clear error
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
under the ordinance.” Nevertheless, she claims that her expressive interests were restricted because some people who had been given a notice of trespass could not attend a rally she held on Church Street to oppose the ordinance. Appellants cite the United States Supreme Court’s recent decision, McCullen v. Coakley, _ U.S. _, 134 S. Ct. 2518 (2014), as evidence that Ms. Baird has standing to challenge the ordinance. McCullen dealt with a Massachusetts statute that made it a crime to knowingly stand within thirty-five feet of an entrance or driveway to a reproductive health care facility. Id. at _, 134 S. Ct. at 2525. The Court ruled that the law expressly “restricts access to traditional public fora and is therefore subject to First Amendment scrutiny.” Id. at _, 134 S. Ct. at 252 5) (<HOLDING>). ¶ 16. Appellants next assert that Mr. Carter
### Response:
holding that contraceptive providers could assert rights of patients in part because patients rights would otherwise be diluted
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
definition of moral turpitude should be for our purposes, it should be clear that its application as an aggravating factor should occur only where the facts warrant our strongest condemnation. In addition, if fraud is a touchstone, it indicates that a finding of moral turpitude requires this Court to look beyond the sanctionable conduct itself and examine, as well, the intent underlying the behavior in question. ¶ 26. In line with that principle, this Court has said that a finding of moral turpitude requires a determination of “whether a judge’s conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007) (<HOLDING>). Thus, heightened sanctions may be appropriate
### Response:
holding that fixing tickets by passing them to the inactive files without requiring the defendants to appear in court and over the objections of the issuing officer constituted moral turpitude
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
consent must be clearly, unequivocally expressed. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. Waivers are narrowly construed and almost never implied. Further, a State’s waiver of Eleventh Amendment immunity in its own courts is not a waiver of its immunity in federal courts. See, e.g., Florida Dept, of Health & Rehab. Serv. v. Florida Nursing Home Assoc., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034-35, 67 L.Ed.2d 132 (1981) (per curiam); Ford Motor Co., 323 U.S. at 464-65, 65 S.Ct. at 350-51; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121 (1944). [I]t is not consonant with our dual system for the federal courts ... to read the consent to embrace federal as well as state courts____ [A] c . 58, 64-67, 109 S.Ct. 2304, 2308-10, 105 L.Ed.2d 45 (1989) (<HOLDING>). Section 1983 provides a federal forum to
### Response:
holding that states and state officials acting in their official capacities are not persons subject to liability under 1983
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
order issued in Dormescar TV. 11 . Dormescar did not argue to the IJ or the Board that because he was convicted of counterfeiting in 2007 but was not deemed admitted until the Board issued its September 9, 2008 order, he had not been "convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). Because Dormescar did not raise that issue before the IJ or the Board, we cannot and do not consider it here. See Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir.2003) ("[W]e lack jurisdiction to consider claims that have not been raised before the BIA.”). Nor did he raise the issue before this Court, which is another reason we do not consider it. See, e.g., Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir.2012) (<HOLDING>); Greenbriar, Ltd. v. City of Alabaster, 881
### Response:
holding that an issue not raised on appeal is waived
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### Instruction:
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### Input:
raised by the district court is the dispositive question of the ease. B. Attenuation Analysis “Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the constitutional violation.” United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998) (citing Brown v. Illinois, 422 U.S. 590, 597-603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). A failure to knock and announce, leading to an unconstitutional arrest and search, may, if not too attenuated, require suppression of evidence. See Sabbath v. United States, 391 U.S. 585, 586, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) (<HOLDING>). In resolving attenuation questions, this
### Response:
holding under 3901 that because officers entered without knocking and announcing the subsequent arrest was invalid and the evidence seized inadmissible
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
wholesale prices, noting that such a rate “is simple to apply, and avoids the need to allocate costs among services.” Local Competition Order ¶ 916. The NCUC set AT & T North Carolina’s discount rate at 21.5% for the residential services at issue here on December 23, 1996. In other words, if AT & T North Carolina sells a service to its residential retail customers for $100 a month, it must sell the same service to dPi and other resellers for $78.50. When AT & T North Carolina offers promotions to attract potential retail customers, and those promotions are available at retail for more than 90 days, AT & T North Carolina must also offer a promotional benefit to resellers, like dPi, who purchase services subject to the promotion. 47 C.F.R. § 51.613(a)(2); Sanford, 494 F.3d at 442 (<HOLDING>). When these promotions take the form of a
### Response:
holding that promotional offerings that exceed 90 days have the effect of changing the actual retail rate to which a wholesale requirement or discount must be applied
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
rule 42(b)(1) and 42(b)(2) certification. LSRC cannot—having failed to move for a continuance, having agreed for the trial court to consider certification under rule 42(b)(1) and 42(b)(2) if LSRC were allowed to file a brief addressing those issues within two weeks of receiving a transcript of the class certification hearing, and having filed such a brief-now assert that the trial court erred by considering certification under rule 42(b)(1) and 42(b)(2). See In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) (“The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal.”); Keith v. Keith, 221 S.W.3d 156, 164 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (<HOLDING>). We hold that LSRC waived its complaint that
### Response:
holding that party who asked trial court to take certain action could not complain on appeal that action was wrong
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### Instruction:
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### Input:
action will “significantly affect” the environment and thus whether an Environmental Impact Statement is required. 40 C.F.R. §§ 1501.4(b), 1508.9 (2001). If the Environmental Assessment reveals that the proposed action will significantly affect the environment, the agency must prepare an Environmental Impact Statement. See id. Conversely, if the agency makes a Finding of No Significant Impact, 40 C.F.R. § 1501.4(e), then it is not required to prepare an Environmental Impact Statement. Northwoods Wilderness Recovery, 323 F.3d at 407. CFV grounds its NEPA claims on § 4332(2)(E), which requires that “all agencies of the Federal Government ... study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolv (9th Cir.1996) (<HOLDING>). CFV’s response to these cases is that the
### Response:
holding that the designation of a species as threatened did not require preparation of a supplemental eis where the environmental impacts of timber sales on the species had already been addressed because a change in the legal status of the species did not alter its biological status and did not constitute new information that would show that the timber harvests and sales were likely to affect the quality of the environment in a significant manner quoting marsh v oregon natural resources council 490 us 360 374 109 sct 1851 104 led2d 377 1989 alterations in original
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### Instruction:
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### Input:
J. The defendant, Richard Jackson, appeals from the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 based on the trial court’s determination that the motion was untimely. ' Because the record before this Court demonstrates that the motion was timely filed within the two-year time limit provided by rule 3.850 based on the “mailbox rule,” we reverse the order denying the defendant’s motion for postconviction relief and remand for consideration on the merits. See Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002) (“Under the mailbox rule, a notice' is deemed filed when it is delivered to prison authorities for mailing.”); Haag v. State, 591 So.2d 614, 617 (Fla.1992) (<HOLDING>); Lawson v. State, 107 So.3d 1228, 1229 (Fla.
### Response:
holding that under the mailbox rule a pro se inmates document is deemed filed at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing which is usually when the inmate places the document in the hands of prison officials
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
character. See 18 U.S.C. § 3553(a)(1). The district court was within its statutory authority to sentence him to any term between ten years (120 months) and his natural life. 21 U.S.C. § 841(b). It sentenced him to a term of 180 months — a term within the lower half of his Guidelines sentence range. In fact, the court was not prohibited by the applicable Guidelines from sentencing to a term less than 180 months. Nothing in the record establishes a reasonable probability that, had the court considered the guidelines range as advisory rather than mandatory and taken into account any otherwise unconsidered § 3553 factors, it would have imposed a lesser sentence. Rodriguez, 398 F.3d at 1302; compare United States v. Shelton, 400 F.3d 1325, 1332-33, manuscript op. at 15 (11th Cir.2005) (<HOLDING>). Because appellant failed to establish
### Response:
holding that the sentencing courts expressions that the lowest sentence within the guidelines was too se vere was sufficient to show that the lower court would have imposed a lesser sentence if it had not felt bound by the guidelines thus satisfying plain errors third prong
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
. CAC ¶ 59. 63 . See In re Ibis Tech. Sec. Litig. 422 F.Supp.2d 294, 313 n. 19 (D.Mass.2006) (citing In re Int’l Bus. Mach. Corp. Sec. Litig., 163 F.3d 102, 107 (2d Cir.1998) (“A defendant, however, is liable only for those statements made during the class period.”)). The court also discards Defendant Tobin’s April 11, 2001, statement on identical grounds. 64 . CAC ¶ 68 65 . Medinol Ltd. v. Boston Scientific Corp., intended to provide shareholders with an avenue for relief against executives for alleged illegal practices or corporate mismanagement...." Id. at 586 (quoting Galati v. Commerce Bancorp, Inc., No. 04-3252, 2005 WL 3797764, at *8 (D.N.J. Nov.7, 2005) (unpublished)); 77 . See Ballan v. Wilfred Am. Educ. Corp., 720 F.Supp. 241, 249 (E.D.N.Y.1989) (internal quotations omitted) (<HOLDING>). In that case, the Defendants were indicted,
### Response:
holding in securities fraud case that defendants who were the subject of criminal investigation were not bound to predict the likelihood that they would be indicted but were required to disclose material facts that would potentially endanger the companys future financial performance
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
provided to Medved for editorial purposes. See Gottlieb, 84 F.3d at 518. As for Myskina’s other common law claims, it is settled that the only judicially recognized relief in New York for violations of a right to privacy or publicity are the protections afforded against the commercial misappropriation of a person’s name or picture, as set forth in Sections 50 and 51. There is no independent common law cause of action in the right to privacy or publicity. See e.g., Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir.1990) (“New York courts have indicated clearly that the Civil Rights Law preempts any common law right of publicity action. ...”); Arrington, 55 N.Y.2d at 439, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Grodin v. Liberty Cable, 244 A.D.2d 153, 154, 664 N.Y.S.2d 276 (1st Dep’t 1997) (<HOLDING>). Under New York law, common law unjust
### Response:
holding that it was error not to dismiss plaintiffs causes of action for negligence and unjust enrichment there being no commonlaw right of privacy in new york where the plaintiff brought an action to recover damages for the unauthorized reuse of his image and voice in a television commercial
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
§ 155 (1979). 32 . Id. at cmt. b. See also Restatement (Second) of Contracts, ch. 6, introductory note at 379 (“Where, however, because of a mistake of both parties as to expression the writing fails to express an agreement that they have reached previously, the appropriate relief ordinarily takes the form of reformation of the writing to make it conform to their intention.”). 33 . Restatement (Second) of Contracts § 158(2). See also Restatement (Second) of Contracts, ch. 6, introductory note at 381 ("The rules governing [mistake] have traditionally been marked by flexibility and have conferred considerable discretion on the court.”). 34 . Restatement (Second) of Contracts § 158 cmt. c. 35 . See, e.g., Ellingstad v. State, Dep't of Natural Res., 979 P.2d 1000, 1008 (Alaska 1999) (<HOLDING>). See also Rego v. Decker, 482 P.2d 834, 837 n.
### Response:
holding that where contract silent court may supply reasonable term to fulfill parties expectations
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
PER CURIAM. Grant Leon Turner appeals his convictions and sentence for possession of a firearm by a convicted felon and retaliating against a witness, victim or informant. On appeal, he argues that (1) the district court erred in publishing to the jury a transcript of a recording admitted into evidence and (2) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him as an armed career criminal under 18 U.S.C. § 924(e) (1994) even though the issue of his prior convictions was not submitted to the jury. We ons that qualify the defendant for an armed career criminal sentence need not be charged in the indictment and proved beyond a reasonable doubt. United States v. Sterling, 283 F.3d 216, 220 (4th Cir.2002) (<HOLDING>). We decline Turner’s invitation to reconsider
### Response:
holding that apprendi did not affect enhanced sentence under 924e
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Lester and had received an automobile ride to her house in the mid-morning of the day of the murder; on the way, he purchased a bottle of wine. Late in the afternoon, Reid was observed walking from the direction of Lester’s house, drunk and covered in blood. The blood on Reid’s clothing was later determined to be consistent with Lester’s DNA. Reid’s fingerprints were found in blood on the telephone in Lester’s bedroom, his saliva was found on a cigarette butt left in the room, and his handwriting was found on pieces of paper in the house. Reid, who claimed to have no memory of Lester’s murder, subsequently entered an Alford plea to one count each of capital murder, attempted rape, and attempted robbery. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (<HOLDING>). After a sentencing hearing, the trial judge
### Response:
holding that a defendant may plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
legal remedy. Riverwoods, L.L.C. v. County of Charleston, 349 S.C. 378, 563 S.E.2d 651 (2002); City of Rock Hill v. Thompson, 349 S.C. 197, 563 S.E.2d 101 (2002); Exparte Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000); Redmond v. Lexington County Sch. Dist. No. 4, 314 S.C. 431, 445 S.E.2d 441 (1994). Upon the filing of a petition for a writ of habeas corpus, the Clerk of Court should verify the document contains a case caption, a proper county designation, and the signature of the filing party, and should forward a copy of the petition to the Attorney General’s Office. S.C. Clerk of Court Manual § 6.24. Because petitioner failed to name the Clerk of Court as a party or serve his petition for a writ of mandamus on her, he may not seek mandamus relief as to her. Thompson, supra (<HOLDING>). Moreover, the 2004 habeas petition became
### Response:
holding a party seeking mandamus must serve the party against whom relief is sought
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### Instruction:
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### Input:
but the plaintiffs have alleged no facts that would bring their claim within the exception. See id. (describing a “limited exception to the general rule” where employees of a corporate employer have an independent personal stake and “stand to benefit from conspiring with the corporation to restrain trade”). Plaintiffs’ complaint fails to state a claim under § 1. Section 13a, which is a section of the Robinson-Patman Act, prohibits the sale of goods “at unreasonably low prices for the pui’pose of destroying competition or eliminating a competitor.” 15 U.S.C. § 13a. However, plaintiffs may not bring a civil claim under § 13a because it is reserved for criminal enforcement by the Department of Justice. See Safeway Stores v. Vance, 355 U.S. 389, 389-90, 78 S.Ct. 358, 2 L.Ed.2d 350 (1958) (<HOLDING>); Thomas V. Vakerics, Antitrust Basics § 8.10
### Response:
holding that no civil action exists for sales at unreasonably low prices under 13a
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Second, the court found that the “movement” heard in the mobile home during the raid provided an exigent circumstance that justified the officers’ forcible entry. In contrast to the panel opinion, I find these “attenuation” questions to be the dispositive issues before this court, but, on the facts presented, conclude that the district court erred in its determination. As the panel is in agreement that there was a constitutional violation from the officers’ attempt at entry, the predicate for the district court’s reasonableness argument falls away. The district court held that “if the attempt is never significant, the forty-five second period between announcement and actual entry is plainly reasonable under Jones.” See United States v. Jones, 133 F.3d 358, 361-62 (5th Cir.1998) (<HOLDING>). In other words, if there was no
### Response:
holding that after properly knocking and announcing officers need only wait fifteen to twenty seconds before entering
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
489, 505-06 (S.D.N.Y. 1999). Airborne argues that, as a courier service, its activities are analogous to those of the U.S. Postal Service, and that the court’s inquiry should, therefore, focus on the same considerations that would apply in determining whether immunity is available to the government mail service. Airborne, however, is not being sued in this case for its activities in delivering mail. Rather, plaintiffs have sued Airborne for being a private actor enlisted by law enforcement to make an allegedly unlawful arrest. It is this latter, functional description of Airborne’s role in the circumstances that precipitated this action that defines the relevant class of private actors for the purposes of determining whether qualified immunity is available to Airborne. Cf. id. (<HOLDING>). Although it is presumably common place for
### Response:
holding in 1983 action against board of directors of state racing commission that availability of qualified immunity would be determined on basis of board members status as corporate officers not their status as parties engaged in horse racing
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
The Appellants contend that the accident report was not listed as an exhibit because the Appellee had admitted liability. The accident report became imperative only as rebuttal to the Appellee’s claims of insignificant damage resulting from the accident. Under these circumstances, and consistent with our conclusions regarding the severity of the lower court’s sanction for discovery violations on the issue of introduction of medical bills, we conclude that the trial court also abused its discretion and committed reversible error by excluding the accident report. The report was of “a critical nature, so that there is no reasonable assurance that the jury would have reached the same conclusion had the evidence been admitted.” Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir.1987) (<HOLDING>). IV. Conclusion Based upon the foregoing, we
### Response:
holding that accident report was necessary to presentation of case and exclusion was in error
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
on the part of D & J to use electricity safely and that this independent duty arises out of the agreement to purchase the electricity. We view this testimony as describing nothing more than the general duty that every member of society owes to every other member — the duty not to harm him through tortious acts. Such a general duty does not support a right of indemnity in a case where the would-be indemnitor is an “employer” covered by the workmen’s compensation law. Hysell v. Iowa Pub. Serv. Co., 534 F.2d 775, 783 (8th Cir.1976) (quoting Western Casualty & Sur. Co. v. Grolier, Inc., 501 F.2d 434, 438 (8th Cir.1974)). The testimony does not describe a duty that is of a “specific, defined nature” which would support a claim of indemnity against an employer. See Hysell, 534 F.2d at 782 (<HOLDING>); see also Iowa Power & Light Co. v. Abild
### Response:
holding that an employer through its employees did not breach an independent duty to power company not to come in contact with power companys transmission lines because such a duty is a general duty not an independent one
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
(1983). “If the statute contains an express preemption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent,” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The ICCTA, effective January 1, 1996, abolished the Interstate Commerce Commission and created the Surface Transportation Board. 49 U.S.C. § 10101 et seq. Section 10501(b) provides: “(b) The jurisdiction of the [Surface Transportation] Board over— “(1) transportation by rail earners, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other o , 297 F.Supp.2d 326, 334 (D.Maine 2003)(<HOLDING>); Guckenberg v. Wisconsin Cent. Ltd., 178
### Response:
holding that the iccta preempted statelaw tortiousinterference claim
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### Instruction:
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### Input:
that “[i]f these two elements were deemed sufficient to constitute the enumerated offense of kidnapping, then dissimilar state kidnapping offenses would be treated identically for purposes of the [crime of violence] enhancement,” which “would be inconsistent with the Sentencing Guideline’s goals of uniformity and predictability.” Id.' “A two-element definition of kidnapping would sweep more broadly than the generic, contemporary meaning of the crime.” Id. In order -to qualify as an enumerated offense of kidnapping, the statute must contain “[additional aggravating elements, such as the second and fourth elements identified in Gonzalez-Ramirez, or the specified purpose requirements of the MPC definition.” Id.; accord United States v. Najera-Mendoza, 683 F.3d 627, 630 (5th Cir.2012) (<HOLDING>). As previously set forth, the Florida statute
### Response:
holding that the oklahoma statute like the california statute did not qualify as an enumerated offense because it lacked the elements of substantial interference with the victims liberty and risk of bodily injury
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
function, its proper course was to require an additional labeling statement. But, as explained below, this argument is rejected because the agency can only require additional labeling when an intended use “is not identified in the proposed labeling,” 21 U.S.C. § 360c(i)(l)(E), whereas here the agency found the CS device to have a new intended use identified in the proposed labeling. 8 . Ivy suggests that the FDA should have limited itself only to the Indications for Use, "which is the only document that is actually attached to the substantial equivalence detenmination.” (Dkt. No. 62, at 43). But the company failed to address Supreme Court precedent contradicting this argument and cited by the agency. See Kordel v. United States, 335 U.S. 345, 349, 69 S.Ct. 106, 93 L.Ed. 52 (1948) (<HOLDING>). 9 . Ivy claims that Dr. Shuren came to his
### Response:
holding that for material accompanying a device no physical attachment is necessary it is the textual relationship that is significant
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The trial judge admitted the passports, over Kea’s objection, holding that he did not accept the passports as official documents of the United States or a foreign government, but as notations concerning arrivals and departures. However, the notations of arrivals and departures were purportedly made by an agent of the Turkish government. The stamps should have been accompanied by a final certificate in accordance with Mississippi Rule of Evidence 902(3). See Overseas Trust Bank Ltd. v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92 (1992) (<HOLDING>). ¶ 16. The passports should not have been
### Response:
holding that it was not error for the trial judge to refuse to admit the passport as evidence that defendant could not have been served with process in new york because she had been in hong kong the defendant offered no attestation or testimonial authentication by the hong kong authorities who had affixed the stamps on her passport
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### Instruction:
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### Input:
that betokens a significant deprivation of freedom, “such that [an] innocent person could reasonably have believed that he [or she] was not free to go and that he [or she] was being taken into custody indefinitely,” Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir.1986). See also Delmondo, 54 Haw. at 557, 512 P.2d at 554 (observing that officer “took custody of the defendant and his cohort by obliging them to leave the toilet stall, stand against a wall, and generally to remain subject to his directions” and holding that “[t]his type of action, despite the absence of the magic words (‘I place you under arrest’ etc.), is an arrest, where the defendant clearly understands that he [or she] is not free to go”); State v. Crowder, 1 Haw.App. 60, 64-65, 613 P.2d 909, 912-13 (1980) (<HOLDING>). Cf. State v. Groves, 65 Haw. 104, 649 P.2d
### Response:
holding that defendant was arrested when the police officer took physical custody of him by grabbing his arm and returned him to the hotel for detention there
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
See also Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). 23 . The Court and the parties agree that this Court lacks jurisdiction under section 1442 pertinent part: "A 'governmental unit' includes the following: United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States ... a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government...." Id. 29 . Cal. Gov’t Code § 16271(d). 30 . See Jared Eigerman, "California Counties: Second-Rate Localities or Ready-Made Regional Governments?,” 26 Hastings Const. L.Q. 621, 670 (1999) ("Eigerman, California Counties”) ("Califo de Fajardo v. Mora, 805 F.2d 440 (1st Cir.1986) (<HOLDING>); In re Sampson, 17 B.R. 528, 531
### Response:
holding that a breach of contract action by the department of health for the commonwealth of puerto rico did not qualify as an exercise of police or regulatory power even if related to the departments general regulatory power
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### Instruction:
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### Input:
whether or not there was an unlawful warrantless entry into Cummings’ home, but this allegation was not raised in the counts recited in the complaint, and this Court sees no need to expand upon issues which were not raised. On appeal, Defendants cite to the magistrate judge’s statement and argue that this Court should not entertain on appeal Cummings’ claim for unlawful entry. We disagree. As an initial matter, the magistrate judge’s decision not to address the claim is irrelevant to the question of whether this Court may address it on appeal. We apply a “course of the proceedings” test to determine whether defendants in a § 1983 action have received notice of the plaintiffs claims where the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc) (<HOLDING>). Here, regardless of the fact that Cummings
### Response:
holding that failure to explicitly state in complaint whether a defendant is being sued in his or her individual capacity is not fatal if the course of the proceedings otherwise indicate that the defendant received sufficient notice
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
suits for the purpose of finality and appealability. We first adopted this rule in Hebel v. Ebersole, 543 F.2d 14 (7th Cir.1976), when we held that, because the claims resolved by the district court and those remaining in that court had been severed pursuant to Rule 21, that court’s judgment was “final and properly appealable.” Id. at 17. This rule enjoys continued vitality. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n. 8 (7th Cir.2000) (“If the district court severed [the claims against the successor corporation] under Rule 21, then it created two separate actions, each capable of reaching final judgment and being appealed.”). The district court clearly and unambiguously classified its severance order as one “pursuant to Federal Rule of Civil Procedure 21.” R.168 at 1, 7 (<HOLDING>). Nevertheless, because “the district court
### Response:
holding that because they are distinct and separate it had broad discretion under rule 21 to sever the plaintiffs claims against riverboat from what remained of the plaintiffs claims against showboat
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### Instruction:
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### Input:
some ambiguity in the cases discussed above concerning exactly what müst be “dealt with” by a Chaptér 11 plan under section 1141(c). The Penrod court suggests that the hen that is to be voided must be dealt with. It states: “[U]nless the plan of reorganization, or the order confirming the plan, says that a hen is preserved, it is extinguished by the confirmation. This is provided, we emphasize, that the holder of the hen participated in the reorganization. If he did not, his lien, would not be ‘property dealt with by the plan,’ and so the section would not apply.” Penrod, 50 F.3d at 463 (emphasis added). Penrod has been interpreted to require that the lien itself be dealt with in the plan. See 260 Gregory LLC v. Black Hawk/Central City Sanitation Dist., 77 P.3d 841, 845 (Colo.App.2003) (<HOLDING>); Coffin v. Malvern Fed. Savings Bank, 189 B.R.
### Response:
holding that the lien at issue was not extinguished by silence in the plan as to its survival unless it is dealt with by the plan by a provision for the payment of or securing of the claim
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
the privilege [against self-incrimination] and the legitimate demands of government to compel citizens to testify.' It is through immunity statutes supplanting the privilege that Legislatures have attempted to ease such tensions." Attorney General v. Colleton, 387 Mass. 790, 444 N.E.2d 915, 918 (1982) (citation omitted). 6 . 3 Whinery, supra note 4, § 43.56; see also City of Hollywood v. Washington, 384 So.2d 1315, 1319 (Fla.Dist.Ct.App.1980) ("Immunity from prosecution is a creature of statute."). Professor Whinery cites Texas as an example of a jurisdic tion where immunity is not statutory; instead, it is "derived from the so-called inherent power of prosecuting attorneys." 3 Whinery, supra note 4, § 43.56 & n. 6. 7 . Accord Hunter v. State, 63 Okl.Cr. 24, 31, 72 P.2d 399, 402 (1937) (<HOLDING>); Eden v. State, 54 Okl.Cr. 265, 267, 21 P.2d
### Response:
holding that before immunity under the provision at okla const art ii 27 can be given a witness such witness must have testified under an agreement made with the prosecuting attorney approved by the court or such witness must have claimed the privilege of silence which was by the court denied and such witness must have been compelled by the court to so testify
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### Instruction:
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### Input:
the Board found to be- — • (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law; and (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. (b) In making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error. (c) In no event shall findings of fact made by the Se (<HOLDING>); Akles v. Derwinski 1 Vet.App. 118, 121
### Response:
holding that the board is not free to ignore its own regulations
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
as the “stigma or disability” test, “a protectable liberty interest is implicated if the government alters the employee’s status and such a change ‘foreclose^] his freedom to take advantage of other employment opportunities by either (a) automatically excluding him from a definite range of employment opportunities with the government or (b) broadly precluding him from continuing his chosen career.’ ” Id. (quoting M.K. 196 F.Supp.2d at 15) (citing O’Donnell, 148 F.3d at 1140). If the plaintiff proves that “the government has infringed upon [his] protected liberty interest under either test, the person has a due process, right to notice and an opportunity to refute the charges against him and to clear his name.” Id. (citing Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985) (<HOLDING>)). As this Court previously held when it
### Response:
holding that because a fifth amendment liberty interest claim implicates an interest in ones postemployment reputation rather than any right to continued employment the wellsettled remedy is a nameclearing hearing
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
apparent lack of candor it reflects. 21 . Indeed, even Judge Smith is forced to examine the strength of the federal interest here in explaining why abstention was proper. In his opinion, Judge Smith, agrees that the comparative weight of the federal interest here does not support a finding of preemption. Nevertheless, he concludes that the district court should have abstained even though, given the required preemption analysis, there was nothing left to abstain from. 22 . First, there was a pending administrative enforcement proceeding before the New Jersey Department of Environmental Protection, for which New Jersey law provides Hi Tech with a right to a hearing and a right to judicial review. N.J. Stat. Ann. §§ 52:14B-1 to 52:14B-24; Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002) (<HOLDING>). Second, "there is a well-recognized
### Response:
holding that similar proceedings under the new jersey administrative procedure act are clearly judicial in nature and therefore meet the first part of the younger test
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Court upheld the trial court’s decision to refrain from delivering the instruction requested by the defendant and to utilize the pattern jury instructions concerning the weight and credibility of the evidence and the necessity for the jury to find beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before returning a guilty verdict on the grounds that the instructions actually delivered by the trial court adequately informed the jury about the factors that should be considered in evaluating the credibility of eyewitness identification testimony. Id. at 753, 412 S.E.2d at 49. An examination of the Supreme Court’s decisions in Green and Dodd, coupled with our similar decision in State v. Summey, 109 N.C. App. 518, 525-26, 428 S.E.2d 245, 249-50 (1993) (<HOLDING>), reveals that this Court and the Supreme Court
### Response:
holding that the trial court did not err by failing to instruct the jury to consider certain additional factors in evaluating the validity of eyewitness identification testimony
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Act, 29 U.S.C. § 794, and the Court looks to the statute for jurisdiction over Kinneary’s claim. Ridge contends that the Rehabilitation Act does not provide for a private right of action against the United States when it acts in its capacity as a regulator. Although the Second Circuit has not yet addressed this particular issue, several of its sister circuits have found that no such private right of action exists under the Rehabilitation Act. See Cousins v. Secretary of United States DOT, 880 F.2d 603 (1st Cir.1989) (finding that the Rehabilitation act does not create a private right of action against the federal government acting in its role as a regulator); see also Clark v. Skinner, 937 F.2d 123 (4th Cir.1991) (same); Salvador v. Bennett, 800 F.2d 97, 99 (7th Cir.1986) (<HOLDING>). The Court agrees with the rationale expressed
### Response:
holding that the rehabilitation act does not create a private right of action against the secretary of education acting in his role as an administrator
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
ordered the sentences to run consecutively. Appellant raises two issues on appeal, only one of which merits discussion. Appellant contends that the trial court erred in entering judgment and sentence on both the offense of DUI manslaughter and the offense of driving while license suspended and carelessly or negligently causing the death of another human being, claiming that the legislature did not intend to punish a single death under two different statutes. We agree. In Houser v. State, 474 So.2d 1193 (Fla.1985), the supreme court indicated that, before the courts would be obligated to convict and sentence for two crimes arising from a single death, the legislature would need to express a clear intent to treat the two crimes as two separate offenses. Houser, 474 So.2d at 1196-1197 (<HOLDING>). Since the advent of Houser, the legislature
### Response:
holding that dwi manslaughter and vehicular homicide are different forms of the same offense
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Rolm from selling those parts to an ISO, and (4) Rolm forbid Rolm Resale from selling parts to an ISO. As for forbidding customers from reselling ordered parts, ISO II expressly found this conduct unilateral. See ISO II, 203 F.3d at 1324, 1329 (noting that Xerox employed a scheme insuring that parts were not resold or otherwise used in machines not owned by the entity ordering the part, but nonetheless finding that the scheme did not run afoul of Xerox’s unilateral right not to deal patented and copyrighted works). Likewise, a manufacturer imposing upon a distributor a policy circumscribing with whom that distributor may deal is not involved in a concerted action for purposes of antitrust law. See Tarrant Service Agency, Inc. v. American Standard, Inc., 12 F.3d 609, 617 (6th Cir.1993) (<HOLDING>), cert. denied, 512 U.S. 1221, 114 S.Ct. 2709,
### Response:
holding that manufacturer of hvac equipment acted unilaterally where it prohibited independentlyowned and companyowned distributors of its parts from selling to independent repair companies
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
by guards concerning the security status of prisoners are not statements designed to elicit an incriminating response. Id. Compton’s question was reasonable and relevant to maintaining order in the prison and protecting Kemp. Similarly, Kemp’s statements to Jackson were the product of ordinary, everyday interaction between guard and prisoner. Because Kemp was not interrogated by Compton and Jackson, the admission of his statements did not violate Miranda and his rights under art. 2, § 24 of the Arizona Constitution. Kemp’s assertion that his Sixth Amendment Massiah rights were violated fails for the same reason his Miranda claim fails: the guards did not seek to elicit incriminating evidence from him. Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (<HOLDING>). Kemp’s admissions therefore were properly
### Response:
holding that the defendant must demonstrate that the police and their informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
464 So.2d 1189, 1191 (Fla.1985), the subordinate factors in complex areas such as taxation should be left to the appropriate agency having expertise and flexibility. Otherwise, the legislature would be forced to remain in perpetual session and devote a large portion of its time to regulation. Id. In re Advisory Opinion, 509 So.2d at 311-12. In other words, subordinate functions like those at issue here “may be transferred by the legislature to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions.” Microtel, 464 So.2d at 1191. Establishing the subject alternative cost recovery mechanisms is simply not a “fundamental legislative task” like the one at issue in Cross Key Waterways, 372 So.2d at 919 (<HOLDING>). In sum, we find that section 366.93 is not
### Response:
holding that the statutory criteria for designation of an area of critical state concern are constitutionally defective because they reposit in an agency the fundamental legislative task of determining which geo graphic areas and resources are in greatest need of protection
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Twin City merely asserts that “Sun’s proposed lower level depositions will reveal what Twin City already knows — Sun’s executives played an integral and unique role in the settlement process, and their depositions cannot be avoided.” [DE 210, p. 7]. Twin City also fails to carry its burden of showing that the information it seeks to ob tain through deposing Leder and Krouse cannot be obtained from any other source. In certain cases, even when a high-ranking official of a corporation does have direct knowledge of the facts, it is inappropriate to compel his or her deposition without first deposing lesser-ranking employees who have more direct knowledge of the facts at issue. Stelor Productions, Inc. v. Google, Inc., No. 05-80387-CIV, 2008 WL 4218107, at *4 (S.D.Fla. Sept. 15, 2008) (<HOLDING>). Twin City has not yet deposed any other
### Response:
holding that although plaintiff claimed that googles two top executives did have direct unique and personal knowledge of the facts at issue it made sense to require plaintiff to seek the information from other sources first
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
which concerns use of rights-of-way for utilities, allows a municipality to impose an occupancy fee on the use of its rights-of-way. Reasoning that the legislature had not given authority to a county to impose such a fee, the trial court concluded that Broward County lacked such authority. It also found that under state law, the county is preempted from imposing such a fee. Upon finding the county’s annual occupancy fee invalid, the trial court declared the entire ordinance void and unenforceable. Broward County argues that because it is a charter county it is vested with municipal powers. It thus has authority to charge telecommunications companies for use of their rights-of-way and such authority was not preempted by state law. We agree. See Palm Beach County, 819 So.2d at 877-78 (<HOLDING>). Based on the foregoing, we reverse the trial
### Response:
holding that a charter county may assess a fee pursuant to florida statute section 3374013 and is not expressly or impliedly preempted by federal or state law
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value. See Fed. R.App. P. 32.1; 10th Cir. R. 32.1. 1 . We ordinarily lack jurisdiction to review the dismissal of a complaint without prejudice. But we have jurisdiction here because the district court dismissed the entire action, not just the complaint. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 n. 15 (10th Cir.2008)
### Response:
holding that the dismissal of a complaint ordinarily is a nonfinal nonappealable order since amendment generally is available while dismissal of the entire action ordinarily is final
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
date of injury, employees who continue to be exposed to hazardous occupational noise are not obligated to give notice prior to filing a claim petition, while employees who cease to be exposed must give notice within 120 days of cessation of the exposure. While Crompton argues that this result is without foundation in reason or law, the Court notes that Socha II is a plurality opinion with limited prece-dential value as only three of six participating justices agreed that Section 306(c)(8)(ix) should determine the date of injury for purposes of Section 311’s notice requirement. In Socha I, however, this Court specifically rejected the argument that Section 306(c)(8)(ix) should determine the date of injury in hearing loss cases for purposes of the notice requirements. See Socha I (<HOLDING>). It is noteworthy that although a majority of
### Response:
holding that definition of date of injury in section 306c8ix is intended to be utilized for calculating benefits not for determining whether section 311 notice requirements were satisfied
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
the stop under the reasonableness standard. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Under Terry v. Ohio, the determination of whether an investigative detention is reasonable is a two-pronged inquiry: whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). This determination is a factual one and is made and reviewed by considering the totality of the circumstances existing throughout the detention. Loesch v. State, 958 S.W.2d 830, 832 (Tex.Crim.App.1997); 523789, at *1, 4 (TexApp.-Austin Dec. 6, 2006, no pet.) (mem.op.) (not designated for publication) (<HOLDING>). In the Hartman case, an officer stopped
### Response:
holding approximately twentyminute delay in dwi investigation primarily to await arrival of dwi enforcement officer was reasonable because delay furthered reasonable law enforcement purposes
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
445 (2007). Even assuming the District Court erred procedurally when it applied the downward departure to the 262- to 327-month range instead of to the statutory maximum, see U.S.S.G. § 5G1.1 & cmt., its arguably erroneous calculation would be “precisely the kind of ‘garden variety’ claim of error contemplated by [an] appellate waiver,” United States v. Castro, 704 F.3d 125, 141-42 (3d Cir.2013) (quotation marks omitted). See United States v. Corso, 549 F.3d 921, 931 (3d Cir.2008) (“[A]llow[ing] alleged errors in computing a defendant’s sentence to render a waiver unlawful would nullify the waiver based on the very sort of claim it was intended to waive.” (second alteration in original) (quotation marks omitted)); see also United States v. Price, 558 F.3d 270, 283-84 (3d Cir.2009) (<HOLDING>); United States v. Mabry, 536 F.3d 231, 243 (3d
### Response:
holding that there was no miscarriage of justice where the defendant claimed that the government abused its discretion by refusing to request a threelevel downward adjustment for acceptance of responsibility
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
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officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened.” Ecker, 311 So.2d at 109 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). See also Williams v. State, 674 So.2d 885 (Fla. 2d DCA 1996). “Moreover, failure to provide identification is not an element of the charged offense. While the statute gives the suspect an opportunity to explain his presence and conduct, the criminal conduct must be completed prior to any action by police officers.” E.B. v. State, 537 So.2d 148 (Fla. 2d DCA 1989) (citations omitted). See also R.D.W. v. State, 659 So.2d 1193 (Fla. 2d DCA 1995)(<HOLDING>). In the present case, assuming that sitting
### Response:
holding that offense of loitering and prowling must be completed prior to any police action
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
events of the distant past. Barker, 407 U.S. at 532 (“Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown”). The Supreme Court, however, has stressed that “if witnesses die or disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532. Francis has not argued, nor has he suggested, that his defense has been prejudiced in any way. There is no evidence any of his potential witnesses died, suffered memory loss, or are otherwise unavailable to testify. Accordingly, the Court finds that Francis has failed to demonstrate that the delay in this case impaired his ability to defend himself in this criminal proceeding. See United States v. Cain, 671 F.3d 271, 297 (2d Cir. 2012) (opining that preju (8th Cir. 2009) (<HOLDING>). The delay between Francis’ arrest and the
### Response:
holding threeyear delay between indictment and arraignment caused by the serious negligence of the government presumptively prejudicial
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
of the suit clearly manifest the proper alignment of the dispute”). 20 . Put another way, the requisite antagonism between the stockholder and the management of a corporation is present "where the dominant officers and directors are guilty of fraud or misdeeds.” Smith, 354 U.S. at 95, 77 S.Ct. 1112. 21 . Specifically, the Separation Agreement provides, in pertinent part, that "Wife grants Husband an irrevocable proxy for all of her shares in the Gyms which proxy shall provide him with full irrevocable management authority-” 22 . In support of her position, Hildebrand argues unpersuasively that the corporation was deadlocked at the time the complaint was filed, and thus, that the requisite antagonism is not present. See, e.g., Duffey v. Wheeler, 820 F.2d 1161, 1163 (11th Cir.1987) (<HOLDING>); Gibson, 780 F.Supp. at 375 (recognizing that
### Response:
recognizing that when the corporations management or its shareholders are deadlocked with respect to a particular issue courts have realigned such corporations as party plaintiffs
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
even date, this Court grants the Plaintiffs Motion for Summary Judgment. 1 . 11 U.S.C. § 523(a)(6) reads in relevant part: "(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt- ... (6) for willful and malicious injury by the debtor to ano his injuries. The Debtor states the amount of the Claim representing lost wages and medical bills to be approximately $6,352.76. At the hearing, Debtor’s counsel conceded that the Claim included about $2,000.00 in damages the Act would not cover, namely Gomes’ pain and suffering. 6 . 28 U.S.C. § 1738 provides in pertinent part that judicial "proceedings of any court of any ... State ... shall have the same full faith and credit in every court within the United State 131, 136 (9th Cir. BAP 2000); (<HOLDING>); Harry Ritchie's Jewelers, Inc. v. Chlebowski
### Response:
holding that unless the actor desires to cause consequences of his act or believes that the consequences are substantially certain to result from it he has not committed a wilful and malicious injury as defined under 523a6 citing to restatement second of torts 8a 1964 internal citations omitted
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
whether a claimant’s injury arose out of employment). An injury that occurs after the employment relationship ends, however, is generally not compensable under the NUA. See Law Offices of Barry Levinson v. Milko, 124 Nev. 355, 184 P.3d 378 (2008). Other courts have recognized exceptions to this general rule. See, e.g., Peterson v. Moran, 245 P.2d 540 (Cal. Ct. App. 1952) (reversing a tort judgment for an employee who was assaulted as he left the workplace immediately after being discharged); Ardoin v. Cleco Power, L.L.C., 38 So. 3d 264, 266 (La. 2010) (providing that an employee is within the course and scope of employment if his “injury occurs during the reasonable period of time for winding up his affairs”); Zygmuntowicz v. American Steel & Wire Co., 134 N.E. 385, 386-87 (Mass. 1922) (<HOLDING>); Anderson v. Hotel Cataract, 17 N.W.2d 913,
### Response:
holding that an assault that occurred immediately after the employee was discharged was in the course of the employment
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
the Legislature when that intent is clear. State v. D.A., supra, 191 N.J. at 164, 923 A.2d 217. By holding that Chapter 91’s appeal-preclusion provision does not apply to non-income-producing properties, we give effect to the statute’s clear language. We recognize, however, that the Legislature may hereafter amend the statute to provide practical consequences to non-responding owners of non-income-producing properties. Finally, we note that a property owner, when failing to respond to a Chapter 91 request, runs the risk that the property will ultimately be found to be income-producing. In such a case, the taxpayer’s appeal would properly be limited under Ocean Pines, supra, 112 N.J. at 11, 547 A.2d 691. See Alfred Conhagen, Inc. v. S. Plainfield Boro., 16 N.J. Tax 470, 474 (App.Div.) (<HOLDING>), certif. denied, 151 N.J. 74, 697 A.2d 546
### Response:
holding that plaintiff was limited to ocean pines reasonableness hearing when plaintiffs property had formerly been incomeproducing and plaintiff had failed to respond to a chapter 91 request notifying the assessor of the change in his propertys status
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
that it could not be held liable in negligence because plaintiff was seeking solely economic damages. Defendant argued that the Moorman doctrine, as articulated in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982), precludes recovery of such economic damages under a tort theory. Plaintiff responded that the implied warranty of habitability has never been limited to only builder-vendors, and that the policies underlying the warranty apply equally well to builders. Plaintiff further argued that the “sudden or dangerous occurrence” exception to the Moorman doctrine applies in this case because the water damage to the building resulted from the September 2008 storms, relying on Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill. App. 3d 346 (4th Dist. 2002) (<HOLDING>). The trial court granted defendant’s motion to
### Response:
holding that a single thunderstorm was a sudden and dangerous occurrence
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
and parliament of England in lands under tide waters, and that the owner of land bounded by a navigable river within the ebb and flow of the tide had no private title or right in the shore below high-water mark ...” Shively v. Bowlby, 152 U.S. 1, 20-21, 14 S.Ct. 548, 38 L.Ed. 331 (1894). As stated above, Plaintiff admitted at trial that the State did not grant any rights or property to any previous owner of the 175 Ellis Street property. Furthermore, Plaintiffs own expert witness testified that errors in deeds are common, and that some of Plaintiffs own deeds contained errors. In light of the fact that no external proof exists that the foreshore was granted to the Plaintiff, I find that title to the 175 Ellis Street foreshore remains in the State. C. Proof of Ownership of the Fo 1895) (<HOLDING>); see also Evans v. City of Johnstown, 96
### Response:
holding that the conclusion is inevitable that the parliament and the crown together were not competent to grant to a private corporation for private purposes the seacoast around the island below the shore line without violating established principles of law
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
courts applying Johnson provide some direction. For instance, the United States Court of Appeals for the Sixth Cireuit held that an officer's single question about the possession of firearms or drugs "did not render the traffic stop [for a minor infraction] an unreasonable seizure under the Fourth Amendment." United States v. Everett, 601 F.3d 484, 496 (6th Cir.2010). The Court reasoned that "[It cannot be said that this single question ... constituted a definitive abandonment of the prosecution of the traffic stop in favor of a sustained investigation into drug or firearm offenses. Nor did this single question, taking [only] seconds, constitute the bulk of the interaction...." Id. at 495 (footnote omitted); see also United States v. Dixie, 382 Fed.Appx. 517, 519-20 (7th Cir.2010) (<HOLDING>). 132 Similarly, the United States Court of
### Response:
holding that an officers single unrelated question regarding weapons that took only seconds did not unreasonably extend traffic stop
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
and remanded for resentencing on his remaining convictions. See United States v. Argento, No. 95-50337, 1996 WL 471358 (9th Cir. Aug. 19, 1996) (unpublished memorandum disposition). Subsequently, Argento filed this § 2255 motion, contending that he received constitutionally deficient counsel at re-sentencing because counsel failed to request a downward departure based on his post-sentence rehabilitation. It appears that despite United States v. Gomez-Padilla, 972 F.2d 284 (9th Cir.1992), post-offense rehabilitation could arguably have formed a permissible basis for a downward departure at the time of Argento’s re-sentencing in April 1997 because it was not a prohibited factor under the Sentencing Guidelines. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (<HOLDING>). On the record before us, therefore, we are
### Response:
holding that only factors specifically prohibited by the sentencing guidelines cannot form the basis for a downward departure
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Association.... ” (Doc. 18-12 at 20.) The AAA rules provide that “[pjarties to an arbitration under these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.” R-48(c), AAA Commercial Arbitration Rules & Mediation Procedures (available at www.adr.org) (last visited April 30, 2013). Based on these provisions, the parties agreed that — upon a timely application — a judgment of the court can be entered on the November 16, 2012 arbitration award. Defendant has timely applied. Unless plaintiff demonstrates that the award should be vacated, the court must affirm the award and enter judgment accordingly. 9 U.S.C. § 9; see also Youngs v. Am. Nutrition, Inc., 537 F.3d 1135, 1141 (10th Cir.2008) (<HOLDING>). Plaintiff argues that the award should be
### Response:
holding that the party seeking to vacate the award has the burden of providing the court with the evidence to support its arguments
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
Solanki does not challenge this aspect of the IJ’s ruling; therefore, we do not address it. 5 . Because we will deny the petition on other grounds, we assume without deciding that Solanki’s injuries resulting from the robberies, along with the threat to his life, were sufficiently severe to constitute persecution. However, we note that this Court has previously held that "[s]imple robbery, in isolation, while unfortunate and troubling, does not seem to [constitute persecution].... [T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005); see also DeSouza v. INS, 999 F.2d 1156, 1159 (7th Cir.1993)(<HOLDING>). 6 . We further note that even if Solanki had
### Response:
holding that private racial discrimination and harassment of a kenyan citizen of indian descent does not establish persecution
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. 7 . Burley was awarded WC benefits pursuant to section 306. (Burley's brief at 8.) 8 . The word fault, as used in this section, “connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches. To find 'fault,' there must be some finding by the [UC] referee or Unemployment Compensation Board of Review concerning claimant’s state of mind.” Teitell v. Unemployment Compensation Board of Review, 118 Pa.Cmwlth. 406, 546 A.2d 706, 710 (1988) (citations omitted). 9 . Although this issue is not before us, it is probable that Burley is not at fault. See Celia v. Unemployment Compensation Board of Review, 34 Pa.Cmwlth. 532, 383 A.2d 1318 (1978) (<HOLDING>). Thus, Burley would not be hable to repay the
### Response:
holding that the mere application for other benefits is not fault
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
See Bowden v. State, 588 So.2d 225, 228 (Fla.1991) (stating that “pattern of striking black venire members need not be demonstrated before a trial court’s duty to conduct an inquiry into the State’s reasons for the excusal of the minority member is triggered”). The failure to conduct a Neil inquiry is reversible error requiring remand for a new trial. See Johans, 613 So.2d at 1322. Thus, we reverse Vasquez’s convictions for grand theft and obtaining a vehicle with intent to defraud and remand for a new trial. We also agree with Vasquez’s argument that concurrent convictions are prohibited for grand theft of the Tahoe and obtaining the Tahoe with intent to defraud based on the same transaction. See State v. Thompson, 607 So.2d 422 (Fla.1992), adopting, 585 So.2d 492 (Fla. 5th DCA1991) (<HOLDING>); State v. McDonald, 690 So.2d 1317 (Fla. 2d
### Response:
holding that section 7750214b florida statutes 1989 barred concurrent prosecution for fraudulent sale of a counterfeit controlled substance and felony petit theft based on the same transaction
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
decisionmakers from treating differently persons who are in all relevant respects alike.’ ”) (emphasis added) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)), cert. denied, - U.S. -, 118 S.Ct. 1812, 140 L.Ed.2d 950 (1998). Second, even assuming that the differences between New York City’s school system and those in other jurisdictions were immaterial, plaintiffs have failed to produce any evidence to show that the legislature’s disparate treatment lacked a rational basis. The state legislature is presumed to act constitutionally, and it is a plaintiffs burden to prove otherwise. See Butts v. City of New York, 779 F.2d 141, 147 (2d Cir.1985); cf. New York State Club Ass’n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (<HOLDING>) (quoting Members of City Council of Los
### Response:
holding that a plaintiff must show that a statute could never be applied in a valid manner to prevail in a facial attack on its validity
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### Instruction:
Use the Input below to create an instruction, which could have been used to generate the input using an LLM.
### Input:
addition, the City’s zoning ordinance does not affect existing adult use establishments, as Plaintiffs current business is not considered an adult use and Le Sex Shoppe, the only present adult business in the City, is not required to relocate. Thus, the City’s ordinance is different from those invalidated because they fail to provide a reasonable opportunity for adult businesses to operate. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n. 35, 96 S.Ct. 2440, 2453 n. 35, 49 L.Ed.2d 310 (1976) (upholding adult business zoning ordinances in part because the district court found that ‘“[t]he Ordinances do not affect the operation of existing establishments but only the location of new ones.’ ”); Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1109-10 (9th Cir.1988) (<HOLDING>); Alexander v. City of Minneapolis, 698 F.2d
### Response:
holding that ordinance concentrating adult businesses in one area with 1000 foot separation requirement violated first amendment because ordinance would force the only existing adult theater in the city to close at its present location with no definite prospect of a place to relocate
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