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adopt today. Congress has often explicitly included a required mental state in other hoax statutes. See, e.g., 18 U.S.C. § 35(b) (requiring that a false bomb threat on an airplane be made “willfully and maliciously, or with reckless disregard for the safety of human life”); 18 U.S.C. § 844(e) (requiring that a hoax about a “fire or an explosive” be made “willfully” or “maliciously”). Instead of including these specific terms of art in § 1038(a), Congress crafted this statute using the language “under circumstances where” and “may reasonably be believed.” 18 U.S.C. § 1038(a)(1). This is a noticeable difference, and we have read statutes with language similar to § 1038(a)(1) as containing an objective reasonableness standard. See Roy v. United States, 416 F.2d 874, 877-78 (9th Cir.1969) (<HOLDING>); see also United States v. Hanna, 293 F.3d Holdings: 0: holding that the statement i have a gun is a threat of death 1: holding that the crime of knowingly and willfully threatening the president required only that the threat be made under circumstances where a reasonable person would foresee that the statement would be interpreted by those to whom it is addressed as a serious threat and not be the result of mistake duress or coercion 2: holding that speech must be a threat or coercion to be actionable 3: holding that a threat to harm another person is a crime of violence 4: holding that duress or coercion would invalidate a contract if the coercion comes from the opposing party not the claimants attorney
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otherwise have little incentive to do so. See H.R.Rep. No. 99-660, at 22 (1986) (“The purpose of the qui ta/m provisions of the False Claims Act is to encourage private individuals who are aware of fraud being perpetrated against the Government to bring such information forward.”); S.Rep. No. 99-345, at 14 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5279 (stating that the False Claims Act “reward[s] those private individuals who take significant personal risks to bring such wrongdoing to light”); id. at 6, reprinted in 1986 U.S.C.C.A.N. 5266, 5271 (“The Committee believes changes are necessary to halt the so-called ‘conspiracy of silence’ that has allowed fraud against the Government to flourish.”); United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.1990) (<HOLDING>). These purposes are accomplished by giving the Holdings: 0: holding that the public disclosure limitation discourages persons with relevant information from remaining silent and encourages them to report such information at the earliest possible time 1: holding that the acts duty of good faith includes the disclosure of information relevant to the employers bargaining position 2: holding that lists of persons who visited with inmates are exempt from disclosure because information is confidential by constitutional law 3: holding that the disclosure is a public disclosure within the meaning of the fca if the the prior public disclosure contained enough information to enable the government to pursue an investigation against the defendant 4: recognizing that information disclosed in private is not a public disclosure under the fca
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of Trade Risk Guaranty, Inc., the company that issues ICP its customs bonds. See Conf. R. Annex A, Exs. 3, 4. While these affidavits are not relevant to the instant motion, they may be relevant to the underlying action. 11 Plaintiff makes several other arguments concerning injury it claims will be suffered, in the absence of an injunction, by (1) a related company’s manufacturing plant, see Raybuck Decl. ¶ .1 at 1, and (2) an unrelated purchaser of its merchandise, see id. ¶ 26 at 10. Because neither of these corporate entities is a party to this action, these arguments cannot be heard as proof of the irreparable harm facing ICP. See Heartland By-Products, Inc. v. United States, 23 CIT 754, 760, 74 F. Supp. 2d 1324, 1331 (1999), rev’d on other grounds, 264 F.3d 1126 (Fed. Cir. 2001) (<HOLDING>). 12 ICP claims that Just on the entries of Holdings: 0: holding that a party cannot demonstrate the presence or absence of irreparable harm based on the potential financial abilities of a nonparty 1: holding potential damage to reputation to constitute irreparable harm 2: holding that movant must demonstrate that irreparable injury is likely in the absence of an injunction 3: holding that the potential loss of valuable business may constitute irreparable harm 4: holding that a movant for a preliminary injunction must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief
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Texas Supreme Court has carved out an exception to this general rule. When the case has been dismissed for want of prosecution, there is no presumption that the dismissal order also disposed of issues in an independent cross-action or counterclaim. See Id. (citing Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941)); Dardari v. Texas Commerce Bank Nat’l Ass’n, 961 S.W.2d 466, 469 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Macarangal, 838 S.W.2d at 634; Massey v. Davis, 660 S.W.2d 551, 554 (Tex.App.-Eastland 1988, writ ref'd n.r.e.). Here, the dismissal order made no specific mention or reference to Darr’s counterclaim; therefore, his counterclaim was not dismissed and the judgment is interlocutory from which no appeal will lie. See Davis, 150 S.W.2d at 378 (<HOLDING>). An exception to the rule stated in Davis Holdings: 0: holding that the courts denial of either a motion to dismiss or a motion for summary judgment is not a final judgment and is not reviewable 1: holding that an order is not a final appealable order when it does not dispose of the complaints against all of the defendants 2: holding summary judgment order was not a final judgment because it did not dispose of the defendants claim for attorneys fees 3: holding that because trial courts order did not dispose of the defendants counterclaim that order was not a final judgment that would support an appeal 4: holding that where the trial court dismisses the plaintiffs suit but does not refer to or mention the defendants crossaction the judgment does not dispose of the crossaction either expressly or by implication and there is no final judgment
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that members of the Marine Corps "promise[d] that Sgt. Eugene was no longer a threat to our family ... [and] [h]e was supposed to be detained and monitored at Henderson Hall/ Fort Myers and would not be able to leave to Barracks unaccompanied.” (ECF No. 1, at 2). Pro se complaints must be construed liberally, and it is no leap of logic to conclude that such allegations support a claim for failure to protect. 11 . The Fourth Circuit has called this exception "[t]he most important” exception to the FTCA. McMellon v. United States, 387 F.3d 329, 335 (4th Cir.2004) (en banc). 12 . Courts have found other situations beyond those noted in Berkovitz wherein an agent has "no rightful option but to adhere.” See, e.g., Downs v. U.S. Army Corps of Eng’rs, 333 Fed. Appx. 403, 409 (11th Cir.2009) (<HOLDING>); Irving v. United States, 162 F.3d 154, 172 Holdings: 0: holding that courtapproved stipulation satisfied notice requirement for assumption of contract 1: holding conflict of interest on the part of a government official who participated in contract negotiations in violation of federal law rendered contract unenforceable 2: holding that arbitration award is binding on the parties 3: holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract 4: holding that governments assumption of obligations in binding contract rendered discretionary function exception inapplicable
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184 (1988). The fact that a new version of the Open Meeting Law took effect on July 1, 2010—see St. 2009, c. 28, §20—does not affect the mootness calculation in this case. The statutory exception allowing public bodies to meet privately to discuss litigation strategy has not substantively changed. Compare G.L.c. 30A, §21{a)(3) (effective July 1, 2010) with G.L.c. 39, §23B(3) (in effect prior to July 1, 2010). Since this case raises an issue of ongoing public importance that is “capable of repetition in a manner that might again evade review,” Plaintiffs are entitled to have the Court resolve their claims even though the parties’ dispute over the Board’s discussions of the prior HDC litigation is now moot. See Globe Newspaper Co. v. Commissioner of Education, 439 Mass. 124, 127 (2003) (<HOLDING>). Although a declaratory judgment may only be Holdings: 0: recognizing that intent of public records act is to provide all citizens with access to the records of all public governmental bodies 1: holding that municipal court records were admissible under official records or public documents exception 2: holding that to the extent medical records may be properly categorized as business records such records are properly categorized as nontestimonial 3: holding that records relating to a student court were not education records 4: holding that superior court judge prudently permitted controversy regarding scope of public records statute to proceed and properly decided matter on cross motions for summary judgment even though lawsuit became moot when defendant released all records sought by plaintiff
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916 S.W.2d 685, 692 (Tex.App.-Waco 1996, writ denied); HBA East, Ltd. v. JEA Boxing Co., 796 S.W.2d 534, 536 (Tex.App.-Houston [1st Dist.] 1990, writ denied); Audio Data Corp. v. Monus, 789 S.W.2d 281, 286 (Tex.App.-Dallas 1990, no writ). An exception exists when the claims against debtor and non-debtor parties are “inextricably intertwined.” See Carway v. Progressive County Mut. Ins. Co., 183 B.R. 769, 775 (S.D.Tex.1995) (citing A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1001 (4th Cir.1986)); Federal Life Ins. Co. (Mut.) v. First Fin. of Tex., Inc., 3 B.R. 375, 376-77 (S.D.Tex.1980). The dismissal of a defendant/debt- or from a lawsuit does not violate the bankruptcy stay. See Orion Inv., Inc. v. Dunaway & Assocs., Inc., 760 S.W.2d 371, 374 (Tex.App.-Fort Worth 1988, writ denied) (<HOLDING>); Weaver v. Jock, 717 S.W.2d 654, 658 Holdings: 0: holding nonsuit does not violate bankruptcy stay because it is a termination of the case against the debtor 1: holding nonsuit does not frustrate purpose of bankruptcy stay which is to protect the debtor against further actions and to ensure equal treatment of creditors 2: holding that the protections of the automatic stay apply only to actions against the debtor 3: holding dismissal is not precluded by bankruptcy stay 4: holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay
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processing of the appeal is a fact issue for determination in the trial court, and in making that determination the trial court exercises a broad legal discretion [that] is subject to appellate scrutiny only for abuse.” (citation and punctuation omitted)). 7 See Propst, 288 Ga. at 863. 8 Crenshaw v. Ga. Underwriting Ass’n, 202 Ga. App. 610, 611 (1) (414 SE2d 915) (1992). 9 As we have previously noted, a delay in paying costs of more than 30 days is prima facie unreasonable and inexcusable; however, this is a rebuttable inference. See, e.g., Morrell v. W. Servs., LLC, 291 Ga. App. 369, 372 (1) (662 SE2d 215) (2008); McCorvey Dev., Inc. v. D.G. Jenkins Dev. Corp., 260 Ga. App. 276, 277 (581 SE2d 308) (2003); see also Langdale Co. v. Langdale, 295 Ga. App. 372, 374 (671 SE2d 863) (2008) (<HOLDING>); Dye v. U. S. Bank Nat’l Ass’n, 273 Ga. App. Holdings: 0: holding that delay caused by or consented to by a defendant is not unreasonable 1: holding that a party failed to present any evidence to rebut inference that delay was unreasonable and inexcusable 2: holding that evidence that a partys delay in paying costs was caused by a miscommunication was not sufficient to rebut inference 3: holding that the trial court made sufficient findings of fact to support its dismissal of an appeal when the order set forth the circumstances surrounding the appealing partys 16month delay in paying court costs and the appellee had moved to dismiss the appeal based on an inexcusable delay caused by the appellants failure to pay costs 4: holding that a partys explanation that the delay in paying costs was caused by a desire to avoid seeking public assistance in payment did not rebut inference
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focused on two questions: whether the definition of “person” from section § 5-13-210 includes an [14unborn person and whether sufficient evidence supports the verdict. At no point did appellant, the State, or amici analyze whether “otherwise introduced” excludes a passive bodily function. Nor did appellant raise at trial the argument that “otherwise introduced” could not include a passive transfer through the umbilical cord post-delivery. Instead, she limited her argument concerning post-delivery transfer to the insufficiency of the evidence. We have re.peatedly held that we will not address an issue not raised and ruled on by the trial court and to otherwise would be to issue an advisory opinion, which we will-not do! See, e.g., Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993) (<HOLDING>). Rather than ruling on an undeveloped issue, I Holdings: 0: holding that the supreme court will not issue advisory opinion on issue not before the court 1: holding that defendant failed to raise a constitutional issue at trial and thus waived appellate review of that issue 2: recognizing that an advisory opinion is one that offers an opinion on a moot issue 3: holding the constitutional issue was not preserved and thus declining to issue an advisory opinion 4: holding that an issue is preserved for appeal where the issue was sufficiently raised for the court to rule on it
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CIT at —, 123 F.Supp.2d at 1371. Under the second interpretation, tied to the slightly more flexible “impede” or “avert” definition of “prevent,” an agreement would have to effectively counteract — without necessarily eliminating — price suppression. Id. The Court finds that Commerce’s interpretation of the statute is reasonable because it is in accord with the interpretation tied to the latter definition of “prevent,” and because, contrary to U.S. Steel’s suggestions, this interpretation creates a reviewable standard. How much price suppression is “significant” may be determined on a case-by-case basis. See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); see also Fabrique De Fer De Charleroi S.A. v. United States, slip op. 01-82, at 21 (CIT July 3, 2001) (<HOLDING>). And any conclusion that an agreement prevents Holdings: 0: holding that reinstatement in an age discrimination case lies within the discretion of the trial court after careful consideration of the particular facts of the case 1: holding that the appropriate postpetition interest rate must be determined by examining the equities involved in a particular case 2: holding defendant failed to rebut statutory presumption where evidence was not particular to the facts and circumstances of the case 3: holding that a special relationship may arise from the factual circumstances of a particular case 4: holding that commerce may reach a determination after examining the particular circumstances of the case without formally promulgating an allinclusive standard
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Plaintiff or Defendants object. C. Estoppel In their Opposition, Defendants Tokuda and Shen argue that Plaintiff cannot pursue its claims because of the doctrine of estoppel. As Tokuda and Shen explain, the doctrine of estoppel has four elements: “(1) The party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” Skulnick v. Roberts Express, Inc., 2 Cal.App.4th 884, 890, 3 Cal.Rptr.2d 597 (1992). The reliance must be reasonable. Martinez v. Scott Specialty Gases, Inc., 83 Cal.App.4th 1236, 1238, 100 Cal.Rptr.2d 403 (2000) (<HOLDING>). Tokuda and Shen argue that Plaintiff is Holdings: 0: holding that a credibility determination based on among other things a tendency to exaggerate was supported by substantial evidence 1: holding that pleading was insufficient where the plaintiff failed to among other things set forth the dates of any fraudulent statements 2: holding it error to admit testimony where among other things there was no evidence that defendants appearance had changed since the time of the robbery 3: holding individual defendant liable where he among other things made inquiries into the business obligations under the flsa 4: holding that ejstoppel requires among other things reasonable reliance on the other partys actions and rejecting estoppel where plaintiffs could not reasonably have been misled
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relationship of self-insured/claims-handling-agent also imposed contractual duties on Zurich to properly handle and pay claims within the deductible. Because we have rejected Methodist’s contention regarding the parties’ relationship, we also reject this suggestion. Moreover, regardless of how the parties’ relationship is characterized, like the Dud-dlesten court, we must consider the terms of their contract when evaluating the con-traetual duties owed by Zurich to Methodist and enforce it as written. See Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006) (stating court’s primary concern when interpreting contract is to ascertain and give effect to intent of parties as expressed in the contract); Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex.1965) (<HOLDING>); see also Nat’l Union Fire Ins. Co. v. CBI Holdings: 0: holding that when a statutes terms are clear and unambiguous on their face there is no room for statutory construction and a court must apply the statute according to its literal meaning 1: recognizing court must enforce unambiguous contract according to its terms 2: holding that circuit courts failure to apply statute according to its clear and unambiguous terms amounted to failure to apply clearly established law 3: holding that if the statutory terms are unambiguous a courts review ends and the statute is construed according to the plain meaning of its words 4: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties
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We also agree with the BAP that the notice of removal was frivolous. The debt- or represented in its bankruptcy schedules that it had no assets, the state court proceedings were stayed against the debtor, and the trustee of the debtor’s estate gave no indication that the state court action might otherwise affect the estate. Scott never articulated a plausible argument why the bankruptcy court could have had jurisdiction over the state proceedings in spite of those circumstances. It was therefore not an abuse of discretion for the bankruptcy court to find Scott’s notice of removal frivolous and filed in bad faith to delay the state court proceedings, thereby warranting the imposition of sanctions. See Lahiri v. Universal Music & Video Distrib., 606 F.3d 1216, 1221-22 (9th Cir.2010) (<HOLDING>); In re Silberkraus, 336 F.3d 864, 871 (9th Holdings: 0: recognizing courts inherent power to impose sanctions including attorneys fees for conduct that abuses the judicial process 1: holding that an attorneys misrepresentations and manipulative tactics unnecessarily protracting the proceedings warranted the imposition of sanctions under the courts inherent power 2: recognizing inherent power of courts of appeals 3: recognizing the federal courts ability to impose inherent power sanctions on parties 4: holding that where party had reasonable grounds to believe conduct was in compliance with the district courts order imposition of sanctions was not warranted and constituted an abuse of discretion
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officials through the due process clause of the fourteenth amendment, thereby rendering our state exclusionary rule superfluous after nearly four decades of independent application). This exclusionary rule has always been understood to bar evidence gathered under the authority of an unconstitutional statute (see Brocamp, 307 Ill. 448 (adopting the reasoning in Weeks for purposes of our state exclusionary rule); Weeks, 232 U.S. at 394, 58 L. Ed. at 656, 34 S. Ct. at 345 (making it clear that the federal exclusionary rule was intended to apply to evidence gathered by officers acting under "legislative *** sanction”)), so long as that statute purported to authorize an unconstitutional search or seizure (see Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979) (<HOLDING>)). Consequently, to adopt Krull’s extended Holdings: 0: recognizing good faith exception to fourth amendment exclusionary rule 1: holding that fourth amendment claims are not cognizable on habeas review because the fourth amendment exclusionary rule does not relate to the accuracy of the factfinding process 2: holding that the fourth amendment and the exclusionary rules are not implicated by a private search 3: holding that the exclusionary rule under the fourth amendment applies to civil forfeiture proceedings 4: recognizing a substantiveprocedural distinction not at issue here specifically holding that the fourth amendment exclusionary rule did not apply where an ordinance was held unconstitutional on vagueness grounds
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official. Kroll v. Bd. of Trustees of the Univ. of Ill., 934 F.2d 904, 907 (7th Cir.1991). The Eleventh Amendment provides that, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Under the Eleventh Amendment, each state remains a sovereign entity and may not be sued by any individual without that state’s consent. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Federal district courts lack original subject matter jurisdiction over claims barred by the Eleventh Amendment. Porter v. Illinois, 36 F.3d 684, 691 (7th Cir.1994) (<HOLDING>). Specifically, the Eleventh Amendment bars Holdings: 0: holding that barring waiver by the state the eleventh amendment precludes federal courts from hearing state claims brought against state officials in their official capacities 1: holding that states and state officials acting in their official capacities are not persons subject to liability under 1983 2: holding that neither a state nor its officials acting in their official capacities are persons under 1983 3: holding that an action brought against the state officials in their official capacities was not properly removed to federal court because the district court lacked jurisdiction 4: holding that such claims however cannot be brought directly against the state or a state agency but only against state officials in their official capacities
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§ 1983, “[e]very person who, under color of [law,] [deprives] ... any citizen ... of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” In reviewing claims brought under this statute, we use the framework established in McDonnell Douglas. Richardson v. Leeds Police Dep't, 71 F.3d 801, 805-06 (11th Cir.1995). Under this framework, the plaintiff has the burden of establishing a prima facie case of racial discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. The plaintiff may meet his burden using direct or circumstantial evidence. See Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.2000) (outlining the types of evidence used to prove a Title VII claim); Richardson, 71 F.3d at 805 (<HOLDING>). Direct evidence of discrimination is evidence Holdings: 0: holding that the same types of evidence used to prove a title vii claim also may be used to prove a 1983 claim 1: holding that such circumstantial evidence may be used to prove discrimination 2: holding that the government must prove the facts used in sentencing by a preponderance of the evidence 3: holding that a plaintiff may rely on the same evidence to prove both pretext and discrimination 4: holding that circumstantial evidence may be used to prove a wiretap claim including actual interception
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make an arrest for child abuse in order to remove a child from a potentially hazardous situation, and in this case, the child was removed from the apartment and placed in CYFD custody. Because the facts before Officer O’Brien at the time of Plaintiff’s arrest do not satisfy the elements of child abuse under N.M.S.A. § 30-6-1, the Court finds that Officer O’Brien arrested Plaintiff without probable cause. Finally, the Court notes that Defendants argue that the question of whether Officer O’Brien had probable cause to arrest Plaintiff is a factual question for the jury. The Court disagrees. Probable cause for arrest is a proper issue for the jury “when there is no genuine issue of material fact.” Keylon, 535 F.3d at 1215 (citing Bruner v. Baker, 506 F.3d 1021, 1028 (10th Cir.2007)) (<HOLDING>). Since the Court has determined that there are Holdings: 0: holding that when there are no genuine issues of material fact summary judgment is appropriate 1: holding trial court erred in denying defendants motion for arrest of judgment where indictment was insufficient 2: holding that trial court erred in denying motion for judgment of acquittal when state failed to prove venue 3: holding that a probable cause determination is appropriate for summary judgment where there are no genuine issues of material fact and no credibility issues 4: holding that bjecause there were no issues of genuine fact the district court erred in denying ms keylons motion for judgment as a matter of law
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disparate work assignment or pay rates between similarly situated employee groups" a continuing violation exists); Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1399 (9th Cir.1986) ("The policy of paying lower wages ... on each payday constitutes a 'continuing violation.' ”) (internal quotation omitted); see also Miller v. Beneficial Management Corp., 977 F.2d 834, 843-44 (3d Cir.1992) (applying continuing violations doctrine to unequal pay claim under Equal Pay Act); Satz v. ITT Fin. Corp., 619 F.2d 738, 743 (8th Cir.1980) ("The practice of paying discriminatorily unequal pay occurs not only when an employer sets pay levels, but as long as the discriminatory differential continues.”). But cf. Hendrix v. City of Yazoo, 911 F.2d 1102, 1103-05 (5th Cir.1990) (<HOLDING>). 8 . The result in Lorance was also based in Holdings: 0: holding right to liquidated damages under fair labor standards act nonwaivable 1: holding that the inability to proceed as a class does not deprive plaintiffs of substantive rights under the fair labor standards act flsa 2: holding claims based on the fair labor standards act subject to arbitration 3: holding that discriminatory pay reduction under fair labor standards act does not constitute continuing violation 4: holding that the otca limitations period applied to a claim alleging a breach of the fair labor standards act by the state
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To establish eligibility for asylum, Kruja was required to demonstrate either a well-founded fear of future persecution in Albania or past persecution giving rise to a rebuttable presumption of such a well-founded fear. See Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). Lack of eligibility for asylum would automatically mean that Kruja was not entitled to withholding. See id. To establish eligibility for relief under the Convention Against Torture, Kruja was required to demonstrate that it is more likely than not that she will be tortured on her return to Albania. See 8 C.F.R. § 208.16(c). We evidence that she is likely to be tortured in Albania, and the background materials alone do not compel a conclusion that torture is more likely than not. Cf. Ramsameachire, 357 F.3d at 184-85 (<HOLDING>). For the foregoing reasons, the petition for Holdings: 0: holding that a negative credibility finding for the purposes of an asylum claim does not preclude relief under cat where documented country conditions corroborate a claim of torture 1: holding that the agency may not deny a cat claim solely on the basis of adverse credibility finding made in the asylum context where the cat claim did not turn upon credibility 2: holding that the agency may not deny a cat claim solely on the basis of an adverse credibility finding made in the asylum context where the cat claim did not turn upon credibility 3: holding objectively wellfounded fear established notwithstanding adverse credibility finding by documentary evidence of very high likelihood of execution if returned to iraq 4: holding it improper to deny cat relief based on adverse credibility finding where objective documentary evidence establishes likelihood of torture
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which exceeded 13 months, are at issue. Hurtado also filed two letters of supplemental authority pursuant to Fed. R.App.P. 28(j). In the first letter, Hurtado cites to United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and argues that the district court erred by applying the guidelines in a mandatory fashion. In the second letter, Hurtado cites to Shepard v. United States, — U.S. —, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and argues that the district court erred under Shepard in determining facts “about a prior conviction,” as opposed to a “fact of a prior conviction.” We review a defendant’s preserved constitutional challenges to his sentence de novo but will reverse and remand only for harmful error. See United States v. Paz, 405 F.3d 946 (11th Cir.2005) (<HOLDING>). We further explained in Paz as follows: A Holdings: 0: holding that statutory construction is a question of law which this court reviews de novo 1: recognizing that this court reviews de novo the trial courts interpretation and application of a statute to undisputed facts 2: holding that judge found sentence enhancements mandatorily imposed under the guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the sixth amendments guarantee of the right to trial by jury 3: recognizing that appellate court reviews questions of law de novo 4: holding that this court reviews a booker issue de novo where the defendant objected in the district court to sentence enhancements based on facts not found by a jury nor admitted by the defendant
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on September 18, 2009. We rejected Liu’s petition for review as untimely in a December 22, 2008 order. The BIA denied Liu’s motion to reconsider in its November 4th Order, finding that Liu offered no new or previously unavailable evidence, and that Liu had failed to demonstrate an error of fact or law in the BIA’s August 20th Order. Liu petitions us for review of that denial. II. ANALYSIS In his petition, Liu asks us to review the BIA’s denial of his motion to reopen as well as its denial of his motion to reconsider. The Government contends that Liu improperly seeks collateral review of the BIA’s August 20th Order. We agree that a party may not collaterally attack a BIA ruling in a petition for review of a motion to reconsider. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir.2006) (<HOLDING>). We also agree that Liu wrongly asks us to Holdings: 0: recognizing collateral attack on void order 1: holding that we lack jurisdiction based on a failure to exhaust where an alien in expedited removal proceedings failed to challenge the dhss determination that he committed an aggravated felony after receiving notice of the dhss intent to issue a final removal order on that basis 2: holding the finality of a bia order is not affected by a subsequent motion to reconsider 3: holding that the bia does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the bia has previously rejected 4: holding that dhss motion to reconsider was a collateral attack on a bia order
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opinion. Id. at 491, 106 S.Ct. 1292. It is clear in this Circuit that a single unconstitutional act by a local governmental entity's final policymaker can subject that governmental entity to liability under Section 1983. See Bennett v. Pippin, 74 F.3d at 586. 164 . See Pembaur, 475 U.S. at 481, 106 S.Ct. 1292 (“If the decision to adopt that particular course of action is properly made by that government's authorized decision-makers, it surely represents an act of official government 'policy' as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.)” Accord Brooks v. George County, Mississippi, 84 F.3d at 165 (<HOLDING>). 165 . See McMillian v. Monroe County, Holdings: 0: holding that a policy for purposes of municipal liability may be established by an officials single decision 1: holding that facility manager of particular halfway house run by private corporation was not final policymaker 2: holding that a single decision by a final policymaker within the area of his responsibility can impose liability on the responsible governmental entity 3: holding that an individual can be a final policymaker either by operation of state and local positive law or by custom or usage having the force of law 4: holding that state medical director of prison medical services corporation was not final policymaker
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domiciled . . . outside of this state as of the date of perfection of service of process as provided by Code Section 9-10-94. OCGA § 9-10-90. Because the long arm statute defines “nonresident” in the disjunctive, “either a change in residence or change in domicile would suffice to make a person a nonresident.” Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998). And while “a concurrence of actual residence and intent to remain is necessary to acquire a domicile,” the same is not true to establish residence. Id. Indeed, “a person may have several residences which are not necessarily permanent or in the same locale as the domicile.” Id. Thus, regardless of whether Thornburg’s domicile remains in Georgia, she has been an Arizona resident since early October 2010. See id. at 49-50 (<HOLDING>). Accordingly, Thornburg is a nonresident Holdings: 0: holding that in order to establish liability under the ada the plaintiff must demonstrate that the defendant was an employer within the meaning of the statute 1: holding that trial court properly concluded minimum contacts existed when defendant had numerous telephone conversations with plaintiffs husband a resident of north carolina along with email messages and sexual relations there was a direct relationship between plaintiffs injuries and defendants contacts plaintiff a resident of north carolina could not bring suit in defendants home state because of abolition of the causes of action and defendant although residing in georgia would have only a minimal travel burden 2: holding that a defendant who was incarcerated in south carolina was a resident of that state regardless of whether his domicile remained in georgia and was therefore a nonresident within the meaning of the long arm statute 3: holding that in south carolina sheriffs and deputies are state officials 4: holding that although the resident defendant had not been formally served prior to removal the resident defendant had made a voluntary appearance in state court and therefore jurisdiction was not proper under 1441b
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person acting under oath of office will not do anything contrary to his or her official duty.’ ” Hou v. Walker, No. CV 96 1365, 1996 WL 684442, at *3 (E.D.N.Y. Nov. 20, 1996) (quoting People v. Bicet, 180 A.D.2d 692, 580 N.Y.S.2d 55, 56 (1992)); see also Clervil v. McNeil, No. 08-20144-CIV, 2008 WL 4753575, at *12 (S.D.Fla. Oct. 28, 2008) (citing Hou, 1996 WL 684442, at *3). In any event, this court believes that, even without this supporting authority, a presumption of propriety should accompany a court interpreter in the performance of his or her official duties. The law recognizes many presumptions that place the onus to adduce rebuttal evidence on the party attacking the presumption. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (<HOLDING>); AT & T Techs., Inc. v. Commc’ns Workers of Holdings: 0: recognizing a presumption against retroactive legislation 1: holding that retroactive aspects of legislation must satisfy due process a burden met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose 2: holding that the act is retroactive 3: recognizing presumption 4: recognizing this presumption
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Each time, Defendant massaged her breasts. The last time Stephanie went to see Defendant, she had just given birth and she was not producing breast milk. Defendant had told Stephanie’s mother that he could help the problem by massaging an area under Stephanie’s arm. When Stephanie came in, Defendant had her undress and remove her bra. Then, without explaining why he was doing so, he proceeded to massage her full breast, pinching her nipples the way a baby would suckle them. This made Stephanie feel very uncomfortable. Defendant then told Stephanie that when his wife was pregnant, he would suckle her breasts to try to bring in her milk. He offered to suck on Stephanie’s breasts for the same reason. Stephanie immediately ended the session. She never returned to 626, 633 (Ct.App.1985) (<HOLDING>). The question of whether a massage therapist Holdings: 0: recognizing a district courts continuing jurisdiction over child eustody and child maintenance determinations 1: holding that livein babysitter was in position of au thority over child 2: holding an unborn child is not a child for purposes of criminal prosecution of mistreatment of a child 3: holding an unborn child is a child for purposes of prosecuting chemical endangerment of a child 4: holding over
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core judicial functions, upon persons other than article VIII judges. III. DE FACTO AUTHORITY However, because the circuit court to which the commissioner was assigned had jurisdiction to decide this matter, we must address Commissioner Peuler’s authority to hear this case as a “judge de facto” of the third circuit court. A judge de facto is defined as: One who holds and exercises the office of a judge under color of lawful authority and by a title valid on its face, though he has not full right to the office, as where he was appointed under an unconstitutional statute, or by an usurper of the appointing power, or has not taken the oath of office. Black’s Law Dictionary 841 (6th ed. 1990); see also State ex rel. Farmer v. Edmonds Mun. Court, 27 Wash.App. 762, 621 P.2d 171, 175 (1980) (<HOLDING>); accord O’Neill v. O’Neill, 420 So.2d 261, 263 Holdings: 0: recognizing that a prosecutors office is an entity and that information in the possession of one attorney in the office must be attributed to the office as a whole 1: holding that an employee had a legitimate expectation of privacy in his office even though the papers seized from the office were not the property of the employee 2: holding that a municipal ordinance that contravenes state law as here is invalid for that reason alone 3: recognizing a nonresident who receives the most votes for elected office does not hold the office but not discussing the de facto officer doctrine 4: holding that when a judicial office is created by legislative act or municipal ordinance the office is regarded as a de facto office until the act or ordinance is declared invalid
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court concluded: Id. Other courts that have considered this issue are in accord. See, e.g., Redner’s Markets, Inc. v. Joppatowne G.P. Ltd. P’ship, No. RDB-11-1864, 2013 WL 5274356, at *7 (D.Md. Sept. 17, 2013); Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), rev’d in part on other grounds, 828 F.2d 514 (9th Cir.1987) (“Courts have distilled various grounds for reconsideration of prior rulings into three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or prevent manifest injustice.”); Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1241 (D.Del.1990); Shields v. Shetler, 120 F.R.D. 123, 125-26 (D.Colo.1988) (<HOLDING>); United States v. Smithfield Foods, Inc., 969 Holdings: 0: holding that the court did not have jurisdiction to consider an argument not presented to the board in a motion for reconsideration 1: holding that the standard of review for the denial of a motion for reconsideration is governed by the law of the regional circuit 2: recognizing the three customary reasons for granting a motion for reconsideration providing they are of a strongly convincing nature and observing that a motion for reconsideration is not a license for a losing partys attorney to get a second bite at the apple 3: holding under third circuit law that the denial of a motion for reconsideration is reviewed for abuse of discretion 4: holding issue raised for first time in motion for reconsideration constituted waiver
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§ 208 provides that “Chapter 1 applies to actions and proceedings brought under this chapter to the extent that that chapter is not in conflict with this chapter or the Convention as ratified by the United States.” The plain meaning of the statute is clear: a court may look to Chapter 1 of the FAA in determining whether to confirm an arbitral award so long as it does not conflict with the Convention and its implementing legislation, 9 U.S.C. §§ 201- 208. While not explicitly on point with this issue, the court in Industrial Risk Insurers held that grounds not enumerated in the Convention do not provide valid cause to vacate an award; namely, that an award cannot be vacated under the Convention on the ground that it is “arbitrary and capricious.” Indus. Risk Ins., 141 F.3d at 1443 (<HOLDING>). The court found that because the Convention Holdings: 0: holding that a transcript is necessary if the asserted grounds for vacatur of arbitration award are grounded in the conduct of the proceeding 1: holding that hall street restricts the grounds for vacatur to those set forth in section 10 of the faa 2: holding that common law grounds such as manifest disregard of law and gross mistake were not valid grounds for vacatur of arbitration award as hall street forecloses any common law grounds for vacatur 3: holding that the statutory grounds for vacatur and modification of arbitration awards may not be supplemented by contract 4: holding that arbitrary and capricious ground for vacatur recognized along with the four grounds for vacatur specified in chapter 1 of the faa could not be used to vacate award under the convention
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F.Supp.2d 634 (E.D.Va.2007) (Hudson, J.); Walker v. Johnson, 448 F.Supp.2d 719 (E.D.Va.2006) (Hilton, J.). These decisions also influence the third factor, because they damage plaintiffs ability to “show[ ] a significant possibility of success on the merits.” Hill, 547 U.S. at 584, 126 S.Ct. 2096. Moreover, the pleadings filed by plaintiff provide minimal support for his assertions that the DOC’s protocol is not substantially similar to Kentucky’s procedure or that his execution will be carried out in a cruel and unusual fashion. Nor does the fact that the same or similar issues are pending before the Fourth Circuit increase the likelihood of irreparable harm, or likelihood of success, in the matter pending before this Court. See Jones v. Allen, 485 F.3d 635, 641 n. 4 (11th Cir.2007) (<HOLDING>). Finally, the Court must consider the Holdings: 0: recognizing in dicta that the case before it involving an individual and not an entity did not involve a recent change of domicile by the party in question and a similar case brought immediately after the partys arrival in the united states following a long period of domicile in the country where the bankruptcy is pending would likely lead to a different result 1: holding that in the context of a challenge to a states lethal injection protocol the mere possibility of a trial date in another case involving similar issues does not affect the balancing of the equities in this case 2: holding resentencing does not affect the date on which the judgment of conviction became final 3: holding that the same hearing officer as in this case erred in substituting his judgment for that of the pertinent school board in that case 4: holding that in a case involving misrepresentations in violation of securities and exchange commission rule 10b5 under the circumstances of this case involving primarily a failure to disclose positive proof of reliance is not a prerequisite to recovery
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Court of Appeals decided Vetter, Congress passed § 3663A. Section 3663A makes restitution mandatory in this case “[njotwithstanding any other provision of law.” 18 U.S.C. § 3663A (2000) (emphasis added). Thus, even if 11 U.S.C. § 727 purported to discharge Defendant’s debt to U.S. Bank and the exception in 11 U.S.C. § 523(a)(7) did not apply, Defendant would still be liable for restitution under § 3663A. See, e.g., Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (“[I]n construing statutes, the use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”); see also United States v. Hyde, 497 F.3d 103, 108 (1st Cir.2007) (<HOLDING>) (citing United States v. Novak, 476 F.3d 1041, Holdings: 0: holding that another notwithstanding clause in the mvra overrode apparently contrary state law and federal bankruptcy law 1: holding that the plaintiffs state law claims are preempted by federal law 2: holding that federal courts presiding over causes of action created by state law should apply state substantive law but federal procedural law 3: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 4: holding that the bankruptcy court lacked subject matter jurisdiction over counterclaims asserted by the bankruptcy estate against a creditor where the claim is a state law action independent of the federal bankruptcy law and not necessarily resolvable by a ruling on the creditors proof of claim in the bankruptcy emphasis added
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was inconsistent and incomplete. While some of the discrepancies in petitioner’s testimony appear relatively minor, we afford “ ‘particular deference’ ” in applying the substantial evidence standard when a factual challenge pertains to a credibility finding made by an IJ and adopted by the BIA. Zhou Yun Zhang v. United States, 386 F.3d 66, 73 (2d Cir.2004) (quoting Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997)). At the very least, petitioner’s testimony, coupled with petitioner’s wife’s rebuttal affidavit, did not establish the type of consistent, complete, and plausible explanation necessary for overcoming the IJ’s finding with regard to the fabricated documents — a finding that, as discussed above, is supported by substantial evidence. See In re O-D-, 211. & N. Dec. at 1084 (<HOLDING>). Finally, Petitioner asserts (as he did before Holdings: 0: holding that it is the appellants burden to present a record to overcome the presumption of correctness of the trial courts findings 1: holding that it is the duty of the appellant to overcome the presumption of the correctness of the trial courts judgment by demonstrating some reversible error 2: holding that the remaining inconsistent record presented by the respondent is insufficient to overcome the pall cast on the respondents credibility by virtue of his submission of the counterfeit document 3: holding that where there is thrust upon the government either by virtue of the defense raised by the defendant or by virtue of the elements of the crime charged the affirmative duty to prove that the underlying prohibited act was done with a specific criminal intent other acts evidence may be introduced under rule 404b 4: holding evidence insufficient to overcome presumption of correctness
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rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out," id. at 989; (2) whether "the situation to which the legal principle is to be applied is sufficiently new to the courts that appellate judges are unable to anticipate and articulate definitively what factors should be outcome determinative," id.; (8) whether "the trial judge has observed 'facts,' such as a witness's appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts," id.; and (4) whether there are policy reasons that weigh for or against granting discretion to district courts, such as when substantial constitutional rights are implicated, see id. at 988-39 (<HOLDING>); see also State v. Brake, 2004 UT 95, ¶¶ Holdings: 0: recognizing such balance of interests 1: holding that the fourth amendment and the exclusionary rules are not implicated by a private search 2: holding there is no consent as a matter of law where the consent was given under coercion 3: holding that there is no violation of the fourth amendment when the government reasonably believed that the individual giving consent to the search had authority to do so 4: recognizing the interest of having uniform legal rules regarding consent to search given the substantial fourth amendment interests lost as a result of such consents as a policy reason opposing a grant of discretion to the district court
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plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. at 487, 114 S.Ct. 2364. Defendants contend that the relief Grier seeks would necessarily implicate or undermine the validity of his criminal convictions. Previously, several appellate courts were split as to whether a § 1983 claim to compel state officials to release evidence for postconviction DNA testing is a claim seeking to undermine a plaintiffs conviction. Compare Kutzner v. Montgomery County, 303 F.3d 339, 340 (5th Cir.2002) (<HOLDING>), Harvey v. Horan, 278 F.3d 370, 377 (4th Holdings: 0: holding that a claim seeking dna testing is cognizable under section 1983 1: holding that there is no postconviction due process right to biological evidence for purposes of dna testing 2: holding that a 1983 claim requesting release of evidence for dna testing is cognizable because plaintiff only seeks access to evidence 3: holding that no 1983 claim exists for injunctive relief to compel dna testing 4: holding that trial delay for dna testing was attributable to the state but was mere negligence
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as to Plaintiffs NYHRL Claims Is Also Denied N.Y. Exec. L. § 296(1) provides in relevant part that: “It shall be an unlawful discriminatory practice: (a) For an employer ..., because of the ... race, ... color, ... [or] sex ... of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment.” New York state courts require the same standard of proof for claims brought under NYHRL as those brought under Title VII, so Title VII and NYHRL claims can be analyzed in tandem. Quinn v. Green Tree Credit Corp., 159 F.3d at 765; Arias, 2003 WL 354978, at *7; see also, Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1158-1159 (E.D.N.Y.2003) (<HOLDING>). I thus adopt the above analysis to plaintiffs Holdings: 0: holding that there is no individual liability under title vii 1: holding that title vii and nyhrl claims are arbitrable 2: recognizing the same analysis applies under the wlad and title vii 3: recognizing disagreement among district courts in the second circuit as to whether the standard for vicarious liability is the same under title vii and the nyhrl but interpreting second circuit law including quinn to indicate that nyhrl claims should be analyzed under the framework of title vii 4: recognizing that claims arising under the ihra are analyzed under the same standards as title vii claims
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sovereignty, including immunity from suit, simply by adopting Article I of the Constitution. Id. The Court concluded that immunity “is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today.” Id. at 713, 119 S.Ct. 2240. {25} Based on Alden, this Court in Cockrell, 2002-NMSC-009, ¶ 1, 132 N.M. 156, 45 P.3d 876, found that New Mexico’s constitutional sovereign immunity shielded the state from private FLSA suits brought in state court. We held that New Mexico did not waive its sovereign immunity in regard to the congressionally created remedies found in the FLSA, as the FLSA was created pursu ant to Congress’ Article I powers. Id. ¶¶ 14-15; see also Gill, 2004-NMSC-016, ¶ 49, 135 N.M. 472, 90 P.3d 491 (<HOLDING>). {26} The question in this case, however, Holdings: 0: holding that ex parte young exception to states sovereign immunity applies only where violation of federal law is ongoing not where federal law was violated only in the past 1: holding a foreclosure claim on a municipal tax lien asserted against the state was barred by sovereign immunity but sovereign immunity would not bar the bank from seeking just compensation for the states taking of its property as a result of the allegedly unpaid taxes under the takings clause as applied to the states under the fourteenth amendment 2: holding age discrimination claim barred 3: holding a claim for injunction but not money damages against a state officer for a violation of the age discrimination in employment act enacted under article i section 8 of the united states constitution was not barred by sovereign immunity under the ex parte young exception 4: holding that sovereign immunity barred a post alden claim under the fair labor standards act for money damages asserted against the state in state court
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court granted her adoption petition. KG.S. attaches to her motion to dismiss a proposed order granting KG.S.’s adoption petition; that order is not signed by Druhan, and there is no indication that that order was actually entered. On November 10, 2015, Druhan also filed a motion to dismiss KR.’s mandamus petition. Druhan states that he denied KR.’s motion contesting KG.S.’s adoption petition on October 28, 2015. As a result, Druhan argues, KR.’s petition before this Court is moot. Druhan states that, “save for this Court’s stay,” he would have entered the proposed order submitted by KG.S. Standard of Review “A petition for the writ of mandamus is the usual method by which to seek review of a trial judge’s denial of a recusal motion. See Ex parte Crawford, 686 So.2d 196, 198 (Ala.1996) (<HOLDING>). ‘A writ of mandamus is an extraordinary Holdings: 0: holding that a petition for a writ of mandamus is the appropriate mechanism for challenging a trial courts grant of leave to amend a complaint 1: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 2: holding that appellate courts can review the denial of a rule 60b motion by appeal even if the appellant mistakenly files a petition for a writ of mandamus 3: holding a claim not previously raised or ruled on by the circuit court was waived in an appeal from the denial of a writ of mandamus 4: holding that a trial judges denial of a recusal motion can be challenged on appeal or in a petition for a writ of mandamus
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intentionally providing false information on an application form. Ill We conclude that it was arbitrary and capricious to deny Singleton a hearing at which he could offer evidence that he did not understand the phrase “administrative action” to include a court-ordered revocation of his driver’s license. Accordingly, we grant the petition for review, vacate the NTSB’s summary judgment order, and remand for further proceedings consistent with this opinion. So ordered. 1 . Although Hart itself interpreted a regulation related to fraudulent or intentionally false entries in logbooks, the FAA and the Board adopted its requirements for purposes of § 67.403(a)(1) as well. See Dillmon, op. at 1093. 2 . See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct 2505, 91 L.Ed.2d 202 (1986) (<HOLDING>); Board Opinion at 6 (noting that the NTSB has Holdings: 0: holding that dispute regarding material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party 1: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact 2: holding that under the federal rules of civil procedure summary judgment will not lie if the dispute about a material fact is genuine that is if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party 3: holding that an issue is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party 4: holding that summary judgment is unwarranted if the evidence is such that a reasonable jury could return a verdict for the nonmoving party
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$200.01. DISCUSSION Whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex.2010). Although both Allen and the Appellees agree that the district court has jurisdiction over Allen’s claim, we must determine the issue because jurisdiction cannot be conferred by agreement. Burke v. Satterfield, 525 S.W.2d 950, 953 (Tex.1975); Walls Regional Hosp. v. Altaras, 903 S.W.2d 36, 40-41 (Tex.App.Waco 1994, no writ). Until 1985, both the Texas Constitution and the civil statu 97077 at *2, (Tex. App.-Corpus Christi July 28, 2005, no pet.) (mem. op.) (stating that “minimum amount needed to invoke the jurisdiction of the district court is $500”) and (<HOLDING>), and Le Clair v. Wood, No. 10-04-00232-CV, Holdings: 0: holding that the district court erred in not determining whether the amount in controversy necessary to create diversity jurisdiction was met at the time of removal 1: holding that district court can exercise supplemental jurisdiction over a coplaintiff claim that fails to meet the amount in controversy requirement 2: holding that the burden is on defendant as the party invoking removal jurisdiction to establish the existence of a sufficient amount in controversy 3: holding minimum amount in controversy required for district court jurisdiction is 20001 4: holding that summary judgment on one claim that reduced amount in controversy below statutory minimum did not divest court of jurisdiction
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service, program or activity is a public entity. Civic Ass’n of the Deaf of New York City v. Giuliani, 915 F.Supp. 622, 634 (S.D.N.Y.1996) (internal citations omitted). NY-CHA does not dispute, that it is a “public entity” within the meaning'of the statute. Because the standards for discrimination against the disabled are interpreted similarly in the Rehabilitation Act, ADA, and FHAA, Plaintiffs’ Disability Rights Statutes claims can be analyzed together. See Toyota Motor Manuf., Ky. Inc. v. Williams, 534 U.S. 184, 193-94, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334 (2d Cir.1995) (noting that Congress relied on Rehabilitation Act standards in drafting the FHAA); Lincoln Cercpac v. Health and Hosp. Corp., 977 F.Supp. 274, 279-80 (S.D.N.Y.1997) (<HOLDING>); see also 42 U.S.C.A. § 12133 (West 1995) Holdings: 0: holding that secrecy is essential to establishing a violation of massachusetts wiretap act 1: holding that neither the ada nor the rehabilitation act applies to prison employment 2: holding that the requirements for establishing a rehabilitation act violation are similar to those for establishing an ada violation 3: holding that the same standards apply to claims under the ada and under the rehabilitation act 4: holding the ada and the rehabilitation act applicable
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in Spanish. While we do not have a record of appellant’s Spanish statements, we assume that had appellant's Spanish statements risen to the level of criminal contempt, the district court would have stopped appellant, had her comments translated for the record, and made a contempt finding. In the absence of such action by the district court, we assume that appellant said nothing which rose to the level of criminal contempt. 6 . Because we hold that there was no alteration under Rule 35(c), we find it unnecessary to address the complicated question of exactly when a sentence is imposed for purposes of Rule 35(c). Currently, there is a circuit split on this issue. Many circuits look to the oral imposition of sentence. Compare United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir.2000) (<HOLDING>); see also United States v. Morrison, 204 F.3d Holdings: 0: holding that oral imposition of sentence begins seven day clock for rule 35c 1: holding that imposition occurs at time of oral pronouncement 2: holding that modification of original sentence occurred outside the sevenday window and the district court lacked jurisdiction to act pursuant to rule 35c 3: holding that trial court may modify sentence on the same day as the assessment of the initial sentence and before the court adjourns for the day 4: holding that timely filing of rule 35c predecessor to rule 35a motion renders otherwise final order of district court nonfinal until disposition of that motion
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this exception. This exception is limited, however, “to those procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. The rule at issue here has no bearing on the accuracy of the defendant’s criminal conviction. As such, the second exception to non-retroactivity is inapplicable in this case. In supplemental briefing on this issue, petitioner also argues that retroactive application is appropriate because the rule of law which Garcia invokes is substantive, rather than procedural. Petitioner’s argument is premised upon a third exception, which provides that, in contrast to new constitutional rules of criminal procedure, substantive rules of criminal law are applied retroactively. See United States v. McClelland, 941 F.2d 999, 1000 (9th Cir.1991) (<HOLDING>). Under this substantive law exception, when a Holdings: 0: holding dollar amount is not an essential element 1: holding that failure to instruct on an essential element was harmless error because the element was so clearly established 2: holding that causation is an essential element in failure to warn claim 3: holding that the decision in aguon ii 851 f2d 1158 9th cir1988 finding that inducement is an essential element of extortion was fully retroactive 4: holding that dollar amount is an essential element of welfare fraud
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administration company, sued defendants Robert Dube, an underwriter, and Lafayette Life Insur-anee Company, alleging, among other claims, breach of contract and breach of fiduciary duty. Excess Risk, 208 F.Supp.2d at 1312. In defendant Dube’s motion to dismiss, he claimed that the economic loss doctrine barred ERU’s breach of fiduciary duty claim. The court agreed and granted Dube’s motion to dismiss. Id. at 1316. The court reasoned that “ERU’s breach of fiduciary duty claim against Dube is barred by the economic loss rule because ERU has not alleged facts independent from the contract” and because the breach of fiduciary duty claim arose solely as a result of the existence of the contract. Id.; see also McCutcheon v. Kidder, Peabody & Co., Inc., 938 F.Supp. 820, 824 (S.D.Fla.1996)(<HOLDING>); Hilliard, 125 F.Supp.2d at 1080 (economic Holdings: 0: holding a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contractual relationship between the parties 1: holding economic loss rule did not bar negligent misrepresentation claim where parties had no contract 2: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 3: holding that economic loss rule barred claim for breach of fiduciary duty where precontract misrepresentations were directly related to alleged breach of contract 4: holding that economic loss rule barred claim for breach of fiduciary duty where plaintiffs claim arose solely as a result of the existence of a contract between the parties
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Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once this prima facie case has been established, there is a presumption of discrimination, and the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. If such a showing is made, the burden shifts back to the plaintiff to demonstrate that the articulated reason was merely a pretext for intentional discrimination. Id. The third step of the McDonnell Douglas test has been altered by the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (<HOLDING>). In light of Desert Palace, the Fifth Circuit Holdings: 0: holding that in title vii cases the mixedmotives theory of discrimination is available in cases with circumstantial evidence of discrimination 1: holding that such circumstantial evidence may be used to prove discrimination 2: holding that mcdonnell douglas framework which is used in title vii cases applies to ada cases when only circumstantial evidence of discrimination is offered 3: holding that direct evidence of discrimination is not required to prove discrimination in mixed motive cases under title vii 4: holding that a claim for discrimination in private employment is not preempted by title vii
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Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended at 42 U.S.C. § 1981(b)); Sutton v. United Airlines, Inc., 527 U.S. 471, 478, 119 S.Ct. 2139, 2144, 144 L.Ed.2d 450 (1999) (announcing a restrictive interpretation of “impairment” and “disability” under the ADA), superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110-325, 112 Stat. 3553 (codified as amended at 42 U.S.C. § 12102(3)); Toyota Motor Mfg. of Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002) (narrowing scope of protection under the ADA), superseded by statute, ADA Amendment Act of 2008, Pub. L. No. 110-325,112 Stat. 3553 (codified as amended at 42 U.S.C, § 12102(3)); and Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621, 127 S.Ct. 2162, 2165, 167 L.Ed.2d 982 (2007) (<HOLDING>), superseded by statute, Lilly Ledbetter Fair Holdings: 0: holding that the statute of limitations period begins to run when the allegedly discriminatory pension plan is applied to the plaintiffs and leaving determination of the actual date the statute begins to run on each claim to the district court 1: holding that the limitations period for a title vii claim for pay discrimination begins with the first discrete act 2: holding the sixyear limitations period begins to run upon date that payment is made 3: holding that the statute of limitations begins to run on the date the alleged malpractice is discovered 4: holding statute of limitations for discriminatory pay practices begins when initial pay decision was made
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contribution limit involving even ‘significant interference’ with associational rights is nevertheless valid if it satisfies the ‘lesser demand’ of being ‘closely drawn’ to match a ‘sufficiently important interest.’ ” McConnell, 540 U.S. at 136, 124 S.Ct. 619 (internal quotation marks omitted) (quoting FEC v. Beaumont, 539 U.S. 146, 162, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003)). As in Buckley and McConnell, the provisions involved here have only a marginal impact on the ability of contributors to engage in effective political speech. As such, they are not subject to strict scrutiny, but to the lesser standard of intermediate scrutiny applied in Buckley and McConnell. See Ohio Right to Life Society, Inc. v. Ohio Elections Comm’n, No. 2:08-CV-492, 2008 WL 4186312 (S.D.Ohio Sept. 5, 2008) (<HOLDING>). Under the intermediate scrutiny standard, Holdings: 0: holding that appropriate standard of review regarding campaign finance disclosure laws is intermediate not strict scrutiny 1: holding that the appropriate standard of review is abuse of discretion 2: holding that strict scrutiny applies 3: recognizing that strict scrutiny applies to facial discrimination against a suspect class 4: holding that strict scrutiny is the appropriate standard of review for racial classifications even in the prison context
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§ 261.101(a). Upon investigation by the CAC, the Austin County Sheriffs Department, and CPS, the evidence that Byles had assaulted L.S. was found by CPS to be “significant” enough to support a finding of “unable to determine,” together with a conclusion that the risk was “significant” but “controlled” because Byles had been kept away from L.S. since the date of the o d 398, 405-07 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (affirming dismissal for failure to state cause of action after law firm establish defense of qualified immunity). Accordingly, I would vacate the judgment of the trial court and dismiss the case. In my opinion, this case presents fundamental jurisdictional error. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (Tex.1957) (per curiam) (<HOLDING>). The record clearly shows that Jesus was held Holdings: 0: holding jurisdictional defect voids judgment when defect exposes such personal jurisdictional deficiencies as to violate due process 1: holding that a violation of the forum defendant rule is a jurisdictional defect 2: holding right to be fundamental 3: recognizing plain or fundamental error 4: holding error to be fundamental when record shows jurisdictional defect
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testified that petitioner admitted to engaging in consensual sex with the victim on the night in question. Given the strength of this evidence, the Kansas Court of Appeals found that “it is difficult to believe that the testimony of three or four transient people, some of whom had criminal records, to the effect that Payne was drinking and smoking marijuana with them at the time of the crime would be sufficient to raise a reasonable doubt in the minds of the jurors.” Petitioner has failed to proffer clear and convincing evidence to contradict these factual findings. As such, the court cannot find that the state appellate court unreasonably applied the prejudice prong of the Strickland framework to the facts of this case. See United States v. Nelson, 984 F.Supp. 1368, 1872 (D.Kan.1997) (<HOLDING>). While the alibi witnesses might have Holdings: 0: holding that to establish prejudice there must be a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 1: holding that upon remand if the trial court determined that the testimony in a newly discovered evidence claim was reliable the trial court must review that new evidence as well as brady claims that were previously rejected in a prior postconviction motion because the evidence was equally accessible to the defense and there was no reasonable probability that the result of the trial would have been different had the evidence been disclosed 2: holding that party asserting plain error must show a reasonable probability that but for the error claimed the result of the proceeding would have been different 3: holding that even if attorney had secured defense witnesses 2255 relief was not warranted where the evidence against defendant at trial was so overwhelming that no reasonable probability exists that the result of the proceeding would have been different 4: holding that there is no brady violation unless a reasonable probability exists that the disclosed evidence would have altered the result of trial
|
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on whether the unborn child was born alive or died in útero. Therefore, we hold that Geiser is controlling. Section 19-03.1-22.2, N.D.C.C., endangerment of a child, does not apply to acts committed on an unborn child, regardless if the child is subsequently born alive or dies in utero. [¶ 20] When a question of interpretation arises as to whether conduct is criminal or not, we construe the statute in the light most favorable to the defendant. State v. Laib, 2002 ND 95, ¶ 15, 644 N.W.2d 878. Furthermore, we presume the legislature, having had an opportunity to state otherwise, acquiesces to our construction and interpretation of N.D.C.C. § 19-03.1-22.2. See Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139, ¶ 26, 632 N.W.2d 407 (“We presume t 75 Cal.App.3d 214, 141 Cal.Rptr. 912 (1977) (<HOLDING>); State v. Gethers, 585 So.2d 1140 (Fla.Ct.App. Holdings: 0: holding a mother was not criminally liable for knowingly causing injury to a child under circumstances likely to produce death or serious physical injury after the mothers prebirth ingestion of heroin caused her child to suffer heroin withdrawal symptoms postpartum 1: holding a mother may not be held criminally liable under a reckless endangerment statute for the effect that prenatal ingestion of a controlled substance may have on her child pre or postbirth 2: holding that mother could not be prosecuted under child abuse statute for prenatal use of heroin 3: holding that mother may not be prosecuted criminally for child endangerment for prenatal substance abuse 4: holding a mother not criminally liable for child endangerment for ingesting heroin while pregnant
|
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have a common principle to apply, they recognize a definitive ending or finality to an event or proceeding. As such, an unresolved proceeding, one that is not final and has not reached a definitive end, does not meet the accepted general definition of “terminate” or its past-tense equivalent “terminated.” In this case, the generally accepted definition of “terminated” would appear to support Mother’s position — where a termination proceeding remains unresolved on appeal and has not yet ended formally or definitely, parental rights to a sibling have not been terminated under Section 32A-4-2(C)(4). However, our Supreme Court has recognized that the application of the plain meaning rule does not end an analysis. See State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (<HOLDING>). We should be looking at the overall Holdings: 0: holding that a statute cannot be construed in a manner that would lead to an absurd or unreasonable result 1: holding that a literal interpretation should not be adhered to when it would lead to absurd results 2: recognizing that a clause in an insurance policy was susceptible to a construction in favor of the insured but that such a construction would be unreasonable absurd and produce results never intended or contemplated by the parties 3: recognizing that the appellate courts will not rely upon the literal meaning of a statute when such a construction would be absurd unreasonable or otherwise inappropriate 4: recognizing a court must look beyond the plain language of a statute when the literal interpretation would lead to an absurd result
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10 . Defenders accorded the Secretary's interpretation of the statutory phrase "in danger of extinction throughout all or a significant portion of its range” no deference. 258 F.3d at 1145 n. 11. The court explained that the Secretary had entirely ignored an aspect of the phrase (the use of the disjunctive "or”), and thus there was no interpretation to defer to. See id. Here, we owe the Secretary’s interpretation of the statute deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because he offers an interpretation of an ambiguous statutory phrase, and offers that interpretation via formal notice and comment rulemaking. See United States v. Mead Corp., 533 U.S. 218, 230-31, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (<HOLDING>). 11 . Plaintiffs also argue that the Secretary Holdings: 0: holding that the postal service was not required to follow notice and comment rulemaking procedures 1: holding that removal proceedings are in the nature of process and defects in the removal procedures are waivable 2: holding that the extradition procedures are a matter of state law 3: holding california postdeprivation recovery procedures satisfy due process despite lack of notice to claimant of recovery procedures 4: holding that although notice and comment procedures are not required to trigger chevron deference such procedures are significant in pointing to chevron authority
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appropriate sentence outside the guideline range if a departure is warranted. We also reject Appellants’ contention that consideration of conduct from dismissed counts would severely undermine the plea bargaining process and threaten the proportionality in sentencing that the guidelines seek to foster. Reality does not bear out their argument. There is little difference between utilizing uncharged, dismissed, or even acquitted conduct as a basis for departure and employing it as relevant conduct under U.S.S.G. § 1B1.3 to determine the base offense level or adjustments to it. And, the propriety of using uncharged, dismissed, and acquitted conduct for these purposes is well settled. See, e.g., United States v. Watts, — U.S. -, -, 117 S.Ct. 633, 636-38, 136 L.Ed.2d 554 (1997) (per curiam) (<HOLDING>); United States v. Carroll, 3 F.3d 98, 102 n. Holdings: 0: holding that when a court miscalculates the guideline range yet imposes a sentence that falls within a properly calculated guideline range the sentence enjoys a presumption of reasonableness 1: holding that a sentence within the properly calculated guideline range is presumptively reasonable 2: holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range 3: holding that sentences within the guideline range are presumptively reasonable 4: holding that conduct contained in dismissed counts may be considered by a district court in determining whether to depart from the applicable guideline range
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as such findings “simply do not exist in a fibromyalgia ease.” (PI. Mem., pg. 15.) Indeed, as Judge Posner of the Seventh Circuit explained in Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996), “[fibromyalgia’s] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia.” Id. Thus, any focus by the Defendant or by ALJ Cohen on the absence of objective evidence is misplaced, because “its absence is no more indicative that the patient’s fibromyalgia is not disabling than the absence of headache is an indication that a patient’s prostate cancer is not advanced.” Id., see also Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.2003) (<HOLDING>) (citing Lisa v. Sec’y of Dep’t of Health & Holdings: 0: recognizing disagreement among district courts in the second circuit as to whether the standard for vicarious liability is the same under title vii and the nyhrl but interpreting second circuit law including quinn to indicate that nyhrl claims should be analyzed under the framework of title vii 1: holding that the terms second circuit and third circuit do not require entirely separate and distinct circuits with each requiring a specific structural requirement 2: holding that certificate is required to appeal denial of rule 60b motion challenging denial of habeas application and stating that eight circuit courts including eighth circuit are in accord on this issue 3: holding that when the district court improperly purported to transfer to the circuit court an action over which the circuit court lacked subjectmatter jurisdiction the circuit court was without jurisdiction to enter its judgment which was void and dismissing the appeal from that void judgment 4: holding that a growing number of courts including the second circuit have recognized that fibromyalgia is a disabling impairment and that there are no objective tests which can conclusively confirm the disease
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claims must retain a “continuing interest in the litigation” in order to appeal a denial of class certification. Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 613-14 (8th Cir.2003). We emphasized that a stipulation in a settlement agreement, by which a plaintiff reserves the right to appeal the denial of certification, is not sufficient in and of itself to satisfy Article III. Id. at 614 n. 3. Rather, we said that when individual claims are fully satisfied, the court of appeals, in determining whether a case or controversy remains, “need only address whether [the plaintiff] retains an interest in shifting costs and attorney fees to the putative class members.” Id. at 614. But cf. Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1246-47 (11th Cir.2003) (per curiam) (<HOLDING>). Here, applying Potter, we see no continuing Holdings: 0: holding that a class action may continue even though the claim of the named plaintiff has become moot 1: holding that it is error to certify class when named class representatives are not members of the class they purport to represent 2: holding that a named plaintiffs appeal was not moot despite the absence of any economic interest in shifting costs or attorneys fees because the plaintiff had a personal stake in pursuing his procedural right to represent a class 3: holding that after a class is certified the controversy may exist between a named defendant and a member of the class represented by the named plaintiff even though the claim of the named plaintiff has become moot 4: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees
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reasonable efforts to eliminate the need for the child’s removal and enable the child to return home, there is a substantial risk of a continuing danger if the child is returned home. See id. § 262.201(b), (c). This order named DFPS K.N.D.’s temporary managing conservator, but it did allow A.D. visitation with K.N.D. Thus, the trial court specifically found danger to KN.D.’s physical health or safety caused by “an act or failure to act” of A.D., as “the person entitled to possession.” A.D. did not challenge these findings at the time the trial court made them or at any other time in the year that this case was pending in the trial court. At trial, she did not present an argument regarding the sufficiency of 59, at *4 (Tex.App.-Houston [14th Dist.] Aug. 30, 2012, no pet. h.) (mem. op.) (<HOLDING>); L.Z. v. Tex. Dep’t of Family & Protective Holdings: 0: holding evidence sufficient to show child was removed under chapter 262 for abuse or neglect when undisputed evidence showed family service plan stated reason for involvement with family was two referrals alleging neglectful supervision and physical abuse caseworker testified to basis of referrals and the record eontained the trial courts temporary order following an adversary hearing which appointed dfps as temporary managing conservator and included the findings required by section 262201 of the family code 1: holding in termination of fathers rights that evidence was sufficient to support finding children were removed for abuse or neglect when previous decree reflected trial court made findings that children were removed from mother under chapter 262 for abuse or neglect 2: holding evidence insufficient to terminate mothers parental rights under section c because mother made arrangements for adequate support of children evidence showed mother left children with father who maintained steady employment and adequately supported children mother knew that father would provide adequate support and mother left children pursuant to agreed divorce decree 3: holding that although the father did not have physical custody of his children at the time they were removed the children were nonetheless effectively removed from both their parents when they were removed from the physical custody of the mother and placed in another home pursuant to the dispositional decree 4: holding that evidence was sufficient that child was removed under chapter 262 for abuse or neglect when record contained evidence that parent made no effort to contact child left at shelter and trial court made findings of immediate danger to childs physical health or safety in emergency temporary order
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the down payment, despite the fact that the conditions to splitting the lot were not yet satisfied. Plaintiffs refused, as was their right at that time. While the paving requirement was eventually removed by the board due to plaintiffs’ efforts, Hatt served notice of forfeiture on the plaintiffs before that requirement had been satisfied and before he presented the abstract to plaintiffs for inspection. From that point forward, Hatt refused to cooperate with plaintiffs in any way despite their repeated requests. In essence, Hatt breached the contract by anticipatory repudiation. By serving upon plaintiffs the notice of forfeiture, Hatt repudiated the contract. See Williams v. Clark, 417 N.W.2d 247, 250 (Iowa App.1987); accord Bitzes v. Sunset Oaks, Inc., 649 P.2d 66, 70 (Utah 1982) (<HOLDING>); Blue Lakes v. George Gowing, Inc., 464 So.2d Holdings: 0: holding that the seller had no noncontractual duty to disclose water damage to armslength buyers of residential real estate 1: holding that seller repudiated a real estate contract where it refused to honor a sale contract and returned buyers down payment after compliance with a city drainage easement added an unforeseen expense to formation of the lot to be sold 2: holding that the validity of a contract for a commission for the sale of real estate is determined by the law of the state where the contract is made 3: holding the real estate sale proceeds 4: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable
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development of a filling station at the Sam’s Club location. This constitutes a statutorily authorized, direct attack on a land use decision by the City under Section 31-2-9. See also § 3-19-8; § 3-21-9; § 39-3-1.1 (providing for an appeal to the district court by any person in interest dissatisfied with an order or determination of a planning commission after review of the order or determination by the governing body of the municipality). Although the City, Wal-Mart, and the dissent assert that Petitioner was required to intervene in the litigation between them in order to protect his right to challenge the development, they cite no New Mexico authority to support this position, and we decline any invitation to create such author o., 92 N.M. 237, 241, 586 P.2d 318, 322 (Ct.App.1978) (<HOLDING>). It has no application to contractual Holdings: 0: holding that a judgment establishing a partys exclusive light to use a trade name was not subject to collateral attack 1: holding that dormant judgment is voidable and therefore not subject to collateral attack 2: recognizing collateral attack on void order 3: holding that prior ro decision that had not become final was not subject to cue collateral attack 4: holding that a judgment as to the title in a prior litigation was not subject to collateral attack
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and representations,” that it was proceeding under a “traceable proceeds” theory. Id. The court found, however, that “[t]he Government’s last-minute change of tactic, although advanced prior to the issuance of the Court’s Opinion, was too late.... ” Id. It followed, therefore, that the government’s new theory could not “in fairness be regarded as an appropriate ground for reconsideration of th[e] Court’s prior decision.” Id. In affirming the lower court’s finding of waiver, the Second Circuit stated: Under these circumstances, we believe that the court acted within its discretion in finding that the government raised the “traceable proceeds” theory too late to be considered by the court. Ruiz v. Commissioner of Dep’t of Transp. of the City of New York, 858 F.2d 898, 902 (2d Cir.1988) (<HOLDING>). Our review of the record satisfied us that Holdings: 0: holding that because a claim was never raised in the district court this court would not consider it for the first time on appeal 1: holding that district court has discretion when deciding to convert a defendants motion to dismiss to a motion for summary judgment 2: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 3: holding that the court has discretion to hear or to remand legal arguments raised for the first time on appeal 4: holding that the district court has discretion to reject a claim raised on a motion for reargument
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limitations. See Lovett, 327 F.3d at 1182; see also O.C.G.A. § 9-3-33. The events in Fortson’s federal complaint occurred in April 2011, when his state complaint was dismissed. Fortson knew or should have known of the facts giving rise to his federal claims at the time his state complaint was dismissed; therefore, the limitations period began to run in April 2011. See Lovett, 327 F.3d at 1182. Nonetheless, he did not file his federal complaint until January 2014, nearly three years later, after the limitations period had expired. See id. To the extent Fortson requested the district judge to void any state judgments, his claims were barred by the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005) (<HOLDING>). Accordingly, we affirm dismissal of Holdings: 0: holding rookerfeldman doctrine deprived district court of jurisdiction to review decision of west virginia state bar 1: holding the rookerfeldman doctrine bars cases brought by statecourt losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments 2: holding that rookerfeldman doctrine bars federal determination of claim where the district court must hold that the state court was wrong in order to find in favor of the plaintiff 3: holding that rookerfeldman bars subject matter jurisdiction where but for the statecourt judgment the plaintiff would have no claim 4: holding rookerfeldman also bars federal claims raised in state court as well as claims that are inextricably intertwined with the statecourt judgment
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of the parties will illuminate plausible interpretations other than the one that is facially obvious to the judge. See id. Thus, ambiguity determined by the judge’s view of “clear meaning” is a troublesome concept that often obstructs the court’s proper and primary function in this area — to enforce the meaning intended by the contracting parties. See 3 Corbin § 542, at 122-24; Gottsfield, supra, at 385. Recognizing these problems, we are hesitant to endorse, without explanation, the often repeated and usually oversimplified construct that ambiguity must exist before parol evidence is admissible. We have previously criticized the ambiguity prerequisite in the context of non-negotiated agreements. See State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 257, 782 P.2d 727, 733 (1989) (<HOLDING>); Darner, 140 Ariz. at 389, 682 P.2d at 394 Holdings: 0: recognizing the lack of logic in requiring ambiguity which may be fortuitous to prove the true terms of an agreement 1: recognizing that terms and conditions of a proposal for settlement should be devoid of ambiguity patent or latent 2: holding that the judicial admission exception did not apply to prove the existence of an oral agreement for the sale of stock where the defendant offered his deposition testimony acknowledging that the parties agreed to have a document transferring the stocks drafted by an attorney because the defendants references to the agreement were in terms of a tentative or incomplete agreement and because any admission of such a contract would necessarily have to include a statement of the price and quantity terms 3: holding that a federal habeas court may grant specific performance of a plea agreement in the face of evidence that the state has breached the terms of such an agreement 4: recognizing a latent ambiguity in a lease agreement
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289 N.Y.S.2d 12, 14 (N.Y. App. Div. 1968) (per curiam) (“Unless [appellant] is a party to an agreement to arbitrate, or unless by its actions or course of conduct it embraces or adopts such agreement, or seeks to benefit directly by provisions of such agreement, it, of course, is not bound by the result in arbitration proceedings between [respondent] and [appellant’s wholly owned subsidiaries.”). On appeal, defendants fail to point to any evidence submitted on summary judgment suggesting that plaintiff is a party to the arbitration agreement between Liberty Mutual and Frankenmuth, that he adopted the agreement, or that he sought to benefit directly from the arbitration. See Hartford Acc. & Indem. Co. v. Maryland Cas. Co., 75 Misc.2d 410, 412, 347 N.Y.S.2d 380, 383 (N.Y. Sup. Ct. 1973) (<HOLDING>). Nor is there any evidence that plaintiff Holdings: 0: holding that driver was not bound in subsequent personal injury case by prior arbitration decision that plaintiffs injuries were related to auto accident because driver was not in privity with his insurance carrier and did not participate in arbitration 1: holding that the arbitration agreement in a written contract did not apply to a dispute arising from a subsequent oral agreement which did not incorporate the arbitration clause from the written contract 2: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 3: holding that plaintiffs personal injury action against other driver in auto accident was not precluded by arbitration award between insurance carriers regarding damage to plaintiffs car because plaintiff did not participate in or control arbitration was not a party to arbitration agreement did not adopt agreement or attempt to benefit from agreement 4: holding trial court must decide whether to compel arbitration of personal injury claim of party who was not signatory to arbitration agreement
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9-89, at 799 (2d ed.1975) (footnote omitted). If the amount of security provided by the LOU is insufficient to satisfy a judgment, the court ordinarily may authorize the re-arrest of the vessel only if the amount of the original security was obtained through fraud or mistake. See Moore v. M/V ANGELA 353 F.3d 376, 385-386 (5th Cir.2003) (“While it is true that a district court may require ‘further security’ at any time, we interpret the phrase to mean substitute or replacement security (e.g., when a surety has become insolvent) rather than additional security, except where the vessel was released by fraud, misrepresentation, or mistake of the court.” (internal citation omitted) (emphasis in original)); Industria Nacional Del Papel, CA. v. M/V ALBERT F, 730 F.2d 622, 626 (11th Cir.1984) (<HOLDING>). Although in this case there was no fraud or Holdings: 0: holding misrepresentation claim to be preempted 1: recognizing that a release is subject to avoidance on grounds such as fraud or mistake 2: recognizing fraud to be a known misrepresentation or a nondisclosure 3: holding that a mistake sufficient to justify rearrest must be tinged with fraud or misrepresentation 4: holding negligent misrepresentation sufficient
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received cash awards and please state the total amounts réceived by the informant from you in relation to the events at issue in this Complaint[ ]” may allow Plaintiff to piece together the person who made a purchase of black tar heroin from him, which could put the informant’s life and/or well-being in jeopardy. You cited to criminal defense cases as the basis for your argument that you are entitled to this information, however, this case does not involve an “individual’s right to prepare his defense.” This case involves a civil complaint filed against Defendant Ficke, inter alia. You have not set forth a basis for the need to disclose the identity or even the identifying information of the informant. See McGee v. Hayes, 43 Fed.Appx. 214, 217 (10’h [10th] Cir.2002) (unpublished) (<HOLDING>) Although you argue in your letter that Holdings: 0: holding that the court is in no position to decide whether there is a genuine dispute because the district court did not permit any discovery before issuing its ruling 1: holding that a plaintiff is required to identify specific acts of individual defendants for his claim to survive 2: holding that a district court is not required to permit plaintiff to engage in a fishing expedition in the hope of supporting his claim 3: holding that a plaintiff is not required to state the statutory or constitutional basis for his claim only the facts underlying it 4: holding that failure to develop a legal argument supporting a claim results in waiver of the claim
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circumstances unless it finds, on the face of the record, clear and convincing evidence that one of five enumerated exceptions applies. See D.C. Bar R. XI, § 11(f)(2); In re Spann, 711 A.2d 1262, 1263 (D.C.1998); accord In re Bielec, 755 A.2d 1018, 1022 n. 3 (D.C.2000) (“In Spann, we articulated that this court has ‘independent authority to impose different discipline if it finds ‘on the face of the record ... by clear and convincing evidence’ that an exception applies.’”). The fifth of these exceptions provides orney has a right to fair notice of the charges against her). It follows that reciprocal discipline based on an attorney’s resignation must be based only on those allegations of which the attorney had fair notice at the time of resignation. Cf. In re Bielec, 755 A.2d at 1024 (<HOLDING>). Schoeneman had no such notice of the charges Holdings: 0: holding that in reciprocal discipline cases disciplinary procedures in the other state must meet minnesotas due process requirements 1: holding that due process requirements may be satisfied if a defendant receives actual notice of the charges against him even if the indictment or information is deficient concluding that defective indictment did not violate defendants sixth amendment right because defendant was made fully aware of charges and potential punishment during guilty plea proceedings 2: holding that vague and ambiguous charges in another jurisdiction cannot form the basis for reciprocal discipline in a manner consistent with due process requirements even if the attorney consented to that discipline 3: holding a plaintiff cannot state a due process claim for defendants failure to follow statutory procedural requirements because a plaintiff cannot have a protect property interest in the procedure itself 4: holding that the due process requirements of jurisdiction in michigan had been met for a dispute involving property in tennessee
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to a motion under Rule 56. Subsequently, the plaintiff submitted two responses essentially reiterating his prior allegations and attached copies of his previously submitted FOIA and Privacy Act requests and a copy of the Thirteenth Amendment to the United States Constitution. The defendant filed a response indicating that it did not wish to submit any additional information. Therefore, this Court will examine the plaintiffs claims pursuant to Rule 12(b)(1) and Rule 56. (1) Rule 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) requires that the plaintiff bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (<HOLDING>); Pitney Bowes, Inc. v. United States Postal Holdings: 0: holding that although trial court has broad discretion to define scope of discovery it can abuse its discretion by acting unreasonably 1: holding that a failure to advise even when the defendant has an affirmative obligation to do so is not the same as engaging in affirmative misconduct 2: holding that the court has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority 3: holding that as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority a court should not vacate his decision 4: holding that for immunity an official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred
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758 (1978) (original complaint, if properly served, remains in effect until amended complaint is properly served). B. Personal Jurisdiction Defendants Fashion Group and Mar-amoti argue that this Court lacks personal jurisdiction over them. This argument is without merit. Robins alleges that Max Mara USA was “designed solely to sell [Fashion Group’s] garments and other product lines ... and Max Mara USA does not sell garments from any other manufacturer.” Robins Aff. ¶ 30. Where a foreign corporation sells goods in New York through a subsidiary, such activity “subject[s] the parent corporation to personal jurisdiction in New York.” Pfizer Inc. v. Perrigo Co., 903 F.Supp. 14, 16 (S.D.N.Y.1995). See also Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34, 40 (2d Cir.1989) (<HOLDING>). Thus this Court has personal jurisdiction Holdings: 0: holding that a divorce granted at a foreign consulate in new york was not valid for immigration purposes because it did not comply with new york law 1: holding that for purposes of longarm jurisdiction because plaintiff was employed in new york the original event causing his injury occurred in new york 2: holding that a parent must exercise some control over the subsidiarys activities which does not require that the subsidiary be controlled to an ultimate degree by its parent although something more than mere passive investment by the parent is required the parent must have and exercise control and direction over the affairs of its subsidiary in order for venue to be proper 3: holding that a foreign defendant was not present in new york for the purposes of jurisdiction simply because it engaged in financing transactions there 4: holding that a subsidiarys activities will be attributed to the foreign parent for purposes of determining the parents amenability to personal jurisdiction in new york
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rather than a “final conviction.” The elements of the offense of felony evading arrest under section 38.04(a), (b)(2) are: (1) the actor intentionally fled from a person he knew was a peace officer attempting to lawfully arrest him; (2) the actor used a vehicle in fleeing from the officer; and (3) the actor had been previously convicted under section 38.04. Id. § 38.04(a), (b)(2)(A). The language in section 38.04(b)(2) that makes the offense of evading arrest a third degree felony is presented as an element of the felony offense itself, rather than as an enhancement provision, such as can be found in section 12.42 of the penal code. See id. § 12.42 (providing penalties for repeat and habitual felony offenders); State v. Atwood, 16 S.W.3d 192, 196 (Tex.App.-Beaumont 2000, pet. refd) (<HOLDING>) (emphasis added). Throneberry argues the Holdings: 0: holding that no offense alleged where affidavit described offense as felony 1: holding that resisting arrest is lesser offense of assault on an officer 2: holding a prior offense of evading arrest is an element of the offense of felony evading arrest 3: holding that employees convictions for burglary possession of controlled substance public intoxication possession of marijuana unlawful carrying of weapon and evading arrest did not make his sexual assault of child foreseeable 4: holding that when an arrest is properly supported by probable cause as to any offense neither the officers subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest
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(11th Cir. 1982). Probationers, howev er, have a diminished expectation of privacy and are subject to limitations to which ordinary citizens are free, such as home visits by probation officers. Id. at 1367-68. We have not addressed the question of whether a probation condition so completely diminished a probationer’s reasonable expectation of privacy that a search without reasonable suspicion would satisfy the reasonableness requirement of the Fourth Amendment in the criminal context. We and the Supreme Court have held that the Fourth Amendment is not violated when a probationer’s home is searched based on only reasonable suspicion, absent consent and absent a warrant. See, e.g., United States v. Knights, 534 U.S. 112, 114, 121-22, 122 S.Ct. 587, 589, 592-93, 151 L.Ed.2d 497 (2001) (<HOLDING>); United States v. Yuknavich, 419 F.3d 1302, Holdings: 0: holding search of probationers computer by probation officers was reasonable even in absence of a search provision when conditions on probationers computer use reduced his expectation of privacy in his computer 1: holding warrantless search of probationers home by probation officers based on reasonable suspicion was constitutionally permissible when conditions of probation required probationer to submit to home visits but not searches 2: holding warrantless search of probationers home by law enforcement officer for investigatory purposes was reasonable when conditions of probation included a search term and search was supported by reasonable suspicion 3: holding that the warrantless search of knights supported by reasonable suspicion and authorized by a condition of probation was reasonable within the meaning of the fourth amendment 4: holding unanimously that a warrantless search of a probationers apartment that was supported by reasonable suspicion and authorized as a condition of his probation was reasonable within the meaning of the fourth amendment
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to a core business. See id. This Court cannot hold, therefore, that appellee’s e-mails contained subject lines that had the capacity, tendency, or effect of deceiving the recipient. In addition, from these facts, we cannot draw a reasonable inference that a consumer would likely be deceived or misled by the e-mails. We hold that appellant’s pleading is legally insufficient to support a valid cause of action, because the statements were conclusory without any factual allegations to support them. We further hold that the exhibit attached to the complaint, which merely listed e-mails sent by Network Solutions, is, without more, insufficient to support an allegation that the subject lines were misleading or had a tendency to deceive. See Cont’l Masonry, 279 Md. at 481-82, 369 A.2d 566 (<HOLDING>). We, therefore, affirm the circuit court’s Holdings: 0: holding a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contractual relationship between the parties 1: holding plaintiffs pleading was insufficient to state a valid cause of action because plaintiffs characterization of defendantjs conduct was nothing more than a conclusory expression of opinion without factual allegations to support it and mere conclusions and general averments of a breach of a contractual duty do not suffice in complex matters such as where the breach is not readily apparent 2: holding that conclusory allegation of conspiracy without supporting factual averments insufficient to state claim 3: holding that conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based citations omitted 4: holding that a cause of action for breach of contract accrues at the time of the breach
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verdict that conflated liability and damages. We review for abuse of discretion a district court’s denial of a motion for a new trial based on the verdict being an improper compromise. Mekdeci ex rel. Mekdeci v. Merrell Nat'l Labs., 711 F.2d 1510, 1513 (11th Cir.1983). Federal law governs the decision whether or not to grant a new trial, but an issue of the sufficiency of damages awarded for a state claim is decided under state law. Hattaway v. McMillian, 903 F.2d 1440, 1451 (11th Cir.1990). A motion for a new trial under Fed.R.Civ.P. 59 must be granted “when the issues of liability and damages were tried together and there are indications that the jury may have rendered a compromise verdict.” Mekdeci, 711 F.2d at 1513 (quoting Lucas v. Am. Mfg. C 528, 529 (Fla. 3d DCA 1992) (<HOLDING>); see also Burger King Corp. v. Mason, 710 F.2d Holdings: 0: holding that there was an impermissible compromise because the damages award was inadequate and liability was hotly disputed by the parties and struggled over by the jury 1: holding that defense of fraud was waived where no special issue was submitted and there was disputed evidence 2: holding that jurys damagesrelated questions and verdict of liability with clearly inadequate damages of only medical expenses but no noneconomic damages in case where liability was hotly contested strongly suggested compromised verdict 3: holding that whether the gerrymandering at issue was the product of impermissible racial motivation was a disputed fact and that it was error in this case for the district court to resolve the disputed fact of motivation at the summary judgment stage 4: holding that there was an impermissible compromise where the damages award was inadequate liability was hotly contested at trial the jury was deadlocked the court charged the jury to continue deliberating to reach a decision and less than one hour later the jury returned a verdict
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forty or more members. See id. at 936. A plaintiff need not provide “a precise quantification of their class,” and courts may “make common sense assumptions” to support a finding of numerosity. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y.2000). Nevertheless, a plaintiff seeking class certification “ ‘must show some evidence of or reasonably estimate the number of class members.’ ” Pecere, 194 F.R.D. at 69 (quoting LeGrand v. New York City Trans. Auth., 1999 WL 342286 *3 (May 26, 1999)). Where the plaintiffs assertion of numerosity is pure speculation or bare allegations, the motion for class certification fails. See Demarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968); Reese v. Arrow Financial Servcs. LLC, 202 F.R.D. 83, 2001 WL 901280 (D.Conn. June 14, 2001) (<HOLDING>); Wilner, 198 F.R.D. at 396 (finding that the Holdings: 0: recognizing that in determining numerosity the proper focus is not on numbers alone but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors 1: holding that a complaints bare assertions alone were insufficient for certification 2: holding that bare assertions of numerosity are insufficient and the plaintiff must reasonable estimate or provide some evidence of the number of class members 3: holding that a potential class of 256 members did not satisfy numerosity 4: recognizing that in determining numerosity courts must consider the geographical dispersion of the class the ease with which class members may be identified the nature of the action and the size of each plaintiffs claim
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appointed attorneys unreasonably delayed occurrence of his PCRA hearing and disposition of his PCRA petition, thus violating his right to due process. In so doing, we applied the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Pursuant to Barker, the court first considers whether the delay itself is sufficient to trigger further inquiry. Second, the court must evaluate the reason for the delay. Thirdly, the court must ascertain the timeliness of the defendant’s assertion of his right; and lastly, the court must decide if there exists any resulting prejudice to the defendant. Burkett, 5 A.3d at 1276. The 21-month delay herein is clearly sufficient to trigger further inquiry; thus, the first prong of the test is satisfied. Id., 5 A.3d at 1279 (<HOLDING>). With respect to the second prong of Barker, Holdings: 0: recognizing that although there were no limits placed on the defense counsels preparation it was surely reasonable for the defense to assume that there was no reason to present argument or evidence directed at whether the death penalty was either appropriate or permissible where the prosecution never argued for the application of the death penalty 1: holding that the death penalty is unconstitutional as applied to juvenile defendants 2: holding that the penalty is applicable 3: holding that although there is no procedural rule requiring a court to determine a petition within a certain time frame after conducting a hearing in a nondeath penalty case presumptively it should not require more than the 120 days allotted to death penalty cases under parcrimp 909 to render a decision 4: holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty
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basis, just as the defense, by observing the demeanor of members, may perceive a member to be glaring at the accused or at counsel and feel uncomfortable with that member’s demeanor. The Government is similarly entitled to excuse a member. Defense, any peremptory challenge? At the outset I acknowledge that these issues arise from the lower court’s attempt to deal with a difficult and complex issue — what the military judge must do when there is a factual dispute relating to the race-neutral explanation for the exercise of a peremptory challenge governed by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This issue implicates the fundamental concern of how to prevent use of a subterfuge race-neutral explanation. See Ford v. Norris, 67 F.3d 162, 168 (8th Cir.1995) (<HOLDING>); Bennett v. Collins, 852 F.Supp. 570, 578-85 Holdings: 0: holding raceneutral basis for preemptory challenge was pretext where stated reasons for challenge not supported by venirepersons statements 1: holding prebatson that challenge to africanamericans who had limited education was raceneutral 2: holding that pretext may be established by proving that prosecutors used their peremptory challenges to exclude africanamerican venirepersons for a given reason or reasons but then failed to apply the same reason or reasons to exclude similarly situated white venirepersons 3: holding that when a plaintiff proves the defendants stated reasons for hiring someone else were pretext for offering the position to a personal friend and not a pretext for racial discrimination she does not establish triable issues of fact 4: holding lack of factual basis for preemptory challenge renders avowed reason for challenge a pretext
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remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. MONROE and THOMPSON, JJ., concur. CRAWLEY, J., concurs specially. ROBERTSON, P.J., concurs in the result. 1 . Rodriguez had filed an amended complaint in January 1997, alleging retaliatory discharge and the tort of outrage. These claims were settled and the parties filed a stipulation for dismissal of these claims in May 1998. CRAWLEY, Judge, concurring specially. I write to point out that Rule 59(g), Ala. R. Civ. P., states that Rule 59 motions “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Rule 59(g) has not been interpreted to require a hearing in every case. Historic Blakely Authority v. Williams, 675 So.2d 350, 352 (Ala.1995) (<HOLDING>). In this case, there is probable merit in the Holdings: 0: recognizing that a partys lack of response to a motion or argument therein is grounds for the district court to assume opposition to the motion is waived and grant the motion 1: holding that the standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss 2: holding that the denial of a postjudgment motion without a hearing thereon is harmless error where 1 there is no probable merit in the grounds asserted in the motion or 2 the appellate court resolves the issues presented therein as a matter of law adversely to the movant by application of the same objective standard of review as that applied in the trial court 3: holding that a motion to continue a hearing on a postjudgment motion was ineffective to extend the period for the trial court to rule on the motion absent the express consent of the parties 4: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion
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287.150 or any of its six subsections confers on an employer or its workers’ compensation insurance carrier the unconditional right to intervene in an injured employee’s negligence suit against third parties “to protect and enforce [a] statutory workers’ compensation lien,” as alleged in SVC’s motion. Moreover, our independent review of the entire statute confirms that nowhere does it confer such an unconditional right of intervention. Since “[t]he burden of proof in an intervention action [under Rule 52.12(a)] lies with the proposed intervenor,” In re Estate of Potashnick, 841 S.W.2d 714, 719 (Mo.App. E.D.1992), the trial court properly overruled SVC’s motion to intervene on the basis of Rule 52.12(a)(1). See Flippin v. Coleman Trucking, Inc., 18 S.W.3d 17, 20 (Mo.App. E.D.2000) (<HOLDING>); Ruth L. v. State, 830 S.W.2d 528, 530 Holdings: 0: holding that an appeal from a denial of a motion to intervene as a matter of right is allowed under rule 2a2 1: holding that a wouldbe intervenor was not entitled to intervene on the basis of rule 5212a1 where she failed to show that any missouri statute conferred upon her an unconditional right to intervene 2: holding that a motion to intervene was permitted even though the intervenor filed her motion eighteen days before trial where the intervenor herself could have brought an independent action to seek the same relief as she was within the twoyear statute of limitations commencing on the date of her automobile accident 3: holding that rule 5212a1 was inapplicable because the wouldbe intervenor failed to show that any missouri statute unconditionally authorized it to intervene as a matter of right 4: holding that a partys status as an intervenor at trial was insufficient alone to confer standing to appeal absent the defendants participation because the intervenor failed independently to satisfy the requirements of article iii
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while incarcerated at the CCDC, and then shoot Plaintiff and Bland in their cell. See docket entry #78, Ex. 6. These witnesses told Detective Voyles that Plaintiff faked a fall down the stairs at the CCDC on November 29, 2007, so that he could be taken to a local hospital where he retrieved a gun from Bland's girlfriend. Id. The next day, on November 30, 2007, Plaintiff, not Wright, shot Bland while they were in the cell together. Id. Bland was then suppose to shoot Plaintiff, but the gun failed to fire. Id. To make it appear that Plaintiff had been shot, Bland was forced to cut Plaintiff in the back with a razor and stab him with a pen to simulate a gunshot wound. Id. Wright then exited the cell and hid the gun in the shower area. Id. 10 . See Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (<HOLDING>); Tucker v. Evans, 276 F.3d 999, 1002 (8th Holdings: 0: holding that an officials failure to alleviate a risk that he should have perceived but did not is insufficient for a finding of liability 1: holding that fmla permits individual liability for public officials 2: holding evidence insufficient to support finding of implied contract 3: holding that a policy for purposes of municipal liability may be established by an officials single decision 4: holding that employees requests for accommodation were not protected activity because the evidence did not show that he had a reasonable good faith belief that he was disabled or perceived as disabled
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preparation of HCS’s proposal in response to the Solicitation, in any way, other than in selecting the location of a hotel for the proposal. PL Mot. JAR Ex. 1 (Murray Dep. at 52). Command had the burden of identifying “hard facts” to support its allegations of a conflict of interest or bias on the part of MICC that gave HCS unequal access to information or an unfair competitive advantage in obtaining the contract award. The court has determined that Command failed to meet this burden. See PAI Corp., 614 F.3d at 1352 (“To demonstrate that such a determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere inference or suspicion of an actual or apparent conflict is not enough.”); see also C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed.Cir.1983) (<HOLDING>). The Administrative Record does not set forth Holdings: 0: holding that a moiety award will be upheld unless it is arbitrary or capricious 1: holding that the mere allegation of arbitrary and capricious action on defendants part absent a direct and pointed attack on the evidentiary basis of the agencys action is insufficient to warrant a judicial determination of wrongful agency action 2: recognizing a nonstatutory basis for setting aside an arbitration award if it is arbitrary and capricious 3: holding that to demonstrate that a contract award is arbitrary or capricious on the basis of a possibility and appearance of impropriety a protester must identify hard facts not a mere inference based on suspicion or innuendo 4: holding that court may set aside lsc decisions that are arbitrary and capricious or are not based on substantial evidence
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in the protected activity; (3) the defendant took adverse action against the plaintiff; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the defendant. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000) (citing Cosgrove v. Sears, Roebuck & Co. 9 F.3d 1033, 1039 (2d Cir.1993)). As in the case of a discrimination claim under Title VII or the ADA, once the plaintiff establishes a prima facie case, the defendant must provide a legitimate, non-retaliatory reason for the adverse action. After that, the plaintiff must show that the reason is pretextual. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844-846 (2d Cir.2013); Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. —, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013) (<HOLDING>). The Court analyzes ADA retaliation claims Holdings: 0: holding that the mixedmotive framework does not apply to retaliation cases under title vii 1: holding that a plaintiff can prove illegal retaliation under 1981 in the same manner as he establishes retaliation under title vii 2: holding the title vii mixedmotive theory does not apply to adea claims 3: holding that in title vii cases the mixedmotive theory of discrimination is available in cases with circumstantial evidence of discrimination 4: holding that title vii does not mention much less require that a plaintiff make a heightened showing through direct evidence in mixedmotive cases
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that particular conduct occurred, we may review whether the facts assumed by the district court constituted excessive force). 8 . The Estate points to the opinions of some lay witnesses that Waterman's vehicle did not appear to be a threat to the officers ahead and to expert testimony that the officers’ use of deadly force was unreasonable. Neither precludes Appellants' entitlement to summary judgment. Even ignoring the conclusory nature of the lay opinions, those opinions do not create a genuine issue. of fact because the witnesses were unaware of tire fact most critical to the probable cause analysis: that Waterman had reportedly attempted to use his vehicle as a weapon in order to avoid being captured only minutes before entering the toll plaza. See Pace, 283 F.3d at 1280 & n. 11 (<HOLDING>). Nor is summary judgment precluded by the Holdings: 0: holding that lay witness opinion as to guilt of defendant inadmissible 1: holding that lay witness opinion that approaching vehicle did not appear to be a threat to any officer on the scene did not warrant denial of summary judgment because the witness was not aware of the events that preceded the shooting that gave the officers reason to believe that suspect would attempt to assault them internal quotation marks omitted 2: holding that evidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from testifying and avoid punishment for the crime 3: holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary 4: holding that the failure of a witness to appear in response to a subpoena was an indirect contempt since the court did not witness all of the essential elements of the misconduct
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In re Levenson, 587 F.3d at 932 (emphasis in original). This is forbidden by the Constitution. See Romer, 517 U.S. at 634-35, 116 S.Ct. 1620. “Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather than in a lawfully-recognized ‘state of connubial bliss’ that encourages a long-enduring permanent relationship that, in turn, serves as the basis of a state-recognized family.” In re Levenson, 587 F.3d at 932. The promotion of morality is not a cognizable governmental interest furthered by the denial of federal benefits and protections. Similarly, the Court does not find the justification of preserving the government fisc satisfies rational basis review. See Lyng v. International Union, 485 U.S. 360, 376-77, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (<HOLDING>). Ostensible savings to the government fisc Holdings: 0: holding something more than denial of receipt is required 1: holding that plaintiffs statistics did not shed any light on the legally relevant issue because they did not indicate the group of applicants who were interviewed or even the group of applicants found qualified or the group of all applicants 2: holding that previous cases make clear that something more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting one group rather than some other group to suffer the burden of costcutting legislation 3: holding that something more than a mere error of law is required to constitute misconduct 4: holding that probable cause is something more than mere suspicion
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case of other removed actions, the federal court takes the case as it finds it, subject to the applicable federal rules, and treats everything that occurred in the state court as if it had taken place in federal court. Vernon Sav. & Loan Ass’n v. Commerce Sav. & Loan, 677 F.Supp. 495, 498 (N.D.Tex.1988) (emphasis added). The Court holds today that, with regard to removal under 12 U.S.C. 1819, one of the applicable federal rules continues to be set forth in 28 U.S.C. § 1446(b), requiring timely removal by the FDIC. As stated above, Defendant FDIC’s removal was required on or about August 17, 1989, and its September 8, 1989 notice was therefore untimely. III. CONCLUSION The Court GRANTS Plaintiffs Motion to Remand. However, the Court DENIES Plainti 9-0494-H, slip op. at 2 (Sanders, C.J.) (<HOLDING>). 3 . See Plaintiff's Motion at 8. 4 . The FDIC Holdings: 0: holding that removal under the second paragraph of 1446b did not apply and defendants therefore had removed outside of the thirty day time period triggered at the time of service of the complaint 1: holding that the federal common law doench doctrine protects the fslic and the fdic in both receiver and corporate capacities 2: holding that a receiver appointed for the parent corporation of the debtor was not a custodian of the debtorsubsidiary because the receiver was not appointed to take control of the debt ors assets for the benefit of the debtors creditors 3: holding that when the federal savings and loan insurance corporation fslic is appointed receiver for a failed thrift that is a party to litigation action then becomes removable by fslic pursuant to 28 usc 1446b and must be removed within thirty days of the appointment 4: holding that if the attorney general issues a scope certificate the action must be removed to federal court and the united states must be substituted as the party defendant by the plain language of 28 usc 2679d2 no discretion is given to the district court
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the disclosure statement alongside the plan to determine whether the trustee has standing. Although no court of appeals has addressed whether the disclosure statement may be consulted for purposes of standing, courts routinely consult the disclosure statement in deciding whether res judicata and judicial estoppel apply. See, e.g., Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 208 (5th Cir.1999) (explaining that claims must be revealed in plan and disclosure statement or trustee may be judicially estopped from pursuing them); Browning v. Levy, 283 F.3d 761, 774 (6th Cir.2002) (considering whether the disclosure statement properly preserved claims or whether res judicata and judicial estoppel should be applied); In re Kelley, 199 B.R. 698, 704 (9th Cir. BAP 1996) (<HOLDING>). In addition, several lower courts have held Holdings: 0: holding the court cannot find intent where the consent judgment fails to mention the cause of action 1: holding appeal not moot when court could order debtor to return to the estate postconfirmation distributions of pension plan assets 2: holding that if the debtor fails to mention the cause of action in either his schedules disclosure statement or plan then he will be precluded from asserting it postconfirmation 3: holding that a plan provision purporting to provide jurisdiction over any and all actions involving the debtor postconfirmation was invalid as beyond the scope of the bankruptcy code 4: holding confirmation vested property in the debtor and therefore properly of the estate was not liable for postconfirmation taxes incurred by debtor
|
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is unable to demonstrate that in fact he has no remedy. Nelson is effectively asking us to address a hypothetical situation, but we decline to do so. IV. CONCLUSION We AFFIRM the superior court's decision that the Municipality is a project owner. We REMAND the case for further proceedings consistent with this opinion. FABE, Justice, not participating. 1 . Western Power was doing business as Yukon Equipment, Inc. at the time. 2 . Alaska R. Civ. P. 77(K)(4). 3 . Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004). 4 . Id. 5 . Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000). 6 . Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (citing Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). 7 . See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska 2009) (<HOLDING>). 8 . Lowell v. Hayes, 117 P.3d 745, 758 n. 61 Holdings: 0: holding statutory interpretation is subject to de novo review 1: holding that review of ripeness decisions is de novo 2: holding that review of the construction of a sentencing statute is de novo 3: recognizing de novo standard of review 4: holding that appellant was entitled to a de novo review however he was not entitled to a de novo review of an argument never raised
|
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the Ten Commandments and the other patriotic documents and symbols. A reasonable observer of the displays cannot connect the Ten Commandments with a unifying historical or cultural theme that is also secular. All of the other documents relate in some fashion to Western European or American culture since 1215; several of the documents are legal in nature, one is an American symbol, one is an American slogan and one is an American song. The Ten Commandments are several th ‘no sign can disclaim an overwhelming message of endorsement’ ”) (quoting Allegheny, 492 U.S. at 619, 109 S.Ct. 3086). Upon seeing the Ten Commandments, which sticks out in the displays like a proverbial “sore thumb,” a “reasonable person will think religion, not history.” Indiana Civil Liberties Union, 259 F.3d at 773 (<HOLDING>). The distinct court further found that the Holdings: 0: holding that expert testimony usually is necessary to establish a causal connection between an injury and its source unless the connection is a kind that would be obvious to laymen such as a broken leg from being struck by an automobile 1: holding the connection is an element 2: holding discharge less than two months after plaintiff filed a sexual harassment complaint with management and ten days after filing a complaint with state human rights office provided prima facie evidence of a causal connection between protected activity and retaliation 3: holding that reasonable observer would not be able to make an analytical connection between ten commandments bill of rights and preamble to indiana constitution 4: holding that defending party may establish a right to summary judgment by showing that the plaintiff after an adequate period of discovery has not been able to produce and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimants elements
|
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of which they are a part. See Fulfillment Services Inc. v. United Parcel against an insurer, see Brandt v. Superior Court, 37 Cal.3d 813, 210 Cal. Rptr. 211, 693 P.2d 796 (Cal.1985) (“When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney’s fees are an economic loss — damages — proximately caused by the tort. These fees must be distinguished from recovery of attorney’s fees qua attorney’s fees, such as those attributable to the bringing of the bad faith action itself.”) (internal citations omitted); and abuse of process suits, see, e.g., Technical Computer Servs., Inc. v. Buckley, 844 P.2d 1249 (Colo.Ct.App.1992) (<HOLDING>). What is less clear is whether Congress Holdings: 0: holding that the defendant was only permitted to recover attorney fees as an item of special damages with respect to the underlying action in which the defendant was sued and was not permitted to recover attorney fees incurred in the malpractice portion of the case as damages 1: holding the same for malicious prosecution 2: holding that insured may recover legal fees incurred in defending itself in a declaratory judgment action brought by insurer but not for those incurred in prosecuting cross claims and counterclaims against insurers 3: holding that section 1983 claims alleging due process violations stemming from malicious prosecution are unavailable when a state malicious prosecution action exists 4: recognizing the general rule that a claimant in a malicious prosecution or abuse of process action can recover attorney fees incurred in defending against the prior wrongful litigation but cannot recover attorney fees incurred in bringing the malicious prosecution or abuse of process action itself and applying the same rule where the abuse of process claim is brought as a counterclaim to wrongful litigation rather than as a later separate action
|
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by reference to state law.’ ” Pittman v. Wil n violated under the federal Constitution, “[alleged violations ... are to be measured against a federal standard of what process is due and that standard is not defined by state-created procedures.” Id. at 1469. Under the federal standard of what process is due, the plaintiffs suspension with pay did not violate the Fourteenth Amendment, even if it was a “suspension ... for punitive reasons,” Va.Code Ann. § 2.1-116.5 (Michie 1995). See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544-45,105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (noting that an employer “can avoid the [due process] problem by suspending with pay” (footnote omitted)); Royster v. Board of Trustees of Anderson County Sch. Dist. Number Five, 774 F.2d 618, 621 (4th Cir.1985) (<HOLDING>); see also Edwards v. California Univ. of Pa., Holdings: 0: holding that an attorney approval clause in a contract for the sale of real estate was a part of that contract and would have to be satisfied for the underlying contract to be enforceable 1: holding that under article i section 9 a person has no constitutionally protected privacy interest in abandoned property 2: holding that a public employee who may only be terminated for cause has a property interest in his position that is protected by the 14th amendment 3: holding that any constitutionally protected property interest an employee has as a result of his employment contract is satisfied by payment of the full compensation due under the contract 4: holding that a party cannot claim damages for breach of contract unless he has shown his full compliance with the contract and is not acting in bad faith
|
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shall issue in any suit, action or proceeding, in any court against this State or against any officer thereof to prevent or enjoin the collection of any contribution sought to be collected under this division.” California Const., Art. XIII, § 32, provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.” Despite the apparently unambiguous language of these provisions, the District Court considered the availability of injunctive relief only “uncertain” because of state deci 180, 383 P. 2d 409, 411 (1963) (<HOLDING>). Relying on Aronoff, a District Court of Holdings: 0: holding that 1983 is not an exception to the state tax injunction act 1: holding that resident shareholder of s corporation is eligible for tax credit for taxes paid by corporation in another state and noting that this conclusion is consistent with the internal revenue code which provides that shareholders of an s corporation are entitled to a foreign tax credit for their share of foreign income tax paid by an s corporation 2: holding that registration requirements that aid in the collection of taxes are valid exercise of congress power to tax 3: holding that cal const art xiii 15 and cal rev tax code ann 19081 west 1970 preclude issuance of an injunction to prevent collection of additional income taxes 4: holding that 230e2 applies to californias wrongful use of registered mark law cal bus profcode 14335 and californias right of publicity law cal civcode 3344
|
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to suppress. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993). Because Gordon has not met the requirements for Rule 11(a)(2), we find that Gordon is foreclosed from appealing the denial of his motion to suppress. Gordon also waived his right to appeal sentencing issues in the plea agreement. At Gordon’s second guilty plea hearing, to which the plea agreement is applicable, the district court explicitly noted the agreement’s appellate waiver provisions and Gordon reaffirmed his agreement to them. We conclude the waiver is valid and enforceable and that the Sixth Amendment issues raised on appeal fall within the scope of the waiver. See United States v. Blick, 408 F.3d 162, 169-73 (4th Cir.2005) (<HOLDING>). Gordon’s claims regarding the § 1326 offense Holdings: 0: holding that the changes in sentencing law imposed by united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not render waiver of appeal involuntary and unknowing 1: holding that waiver of right to appeal in plea agreement entered into before united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 was not invalidated by change in law effected by that case and that booker error fell within scope of waiver 2: holding that 3582c does not apply to a person seeking resentencing under united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 3: holding that united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not alter the standard of review for the interpretation and application of the guidelines 4: holding that blakely and united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 are not retroactive on collateral review
|
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proposition that, where the breaching party has not shown that the non-breaching party did not have the capacity to make additional sales, the breaching party retains the burden of proving that the non-breaching party could not have made both the contracted-for sale and the supposedly mitigating sale); Crestvalley Homes Ltd. v. Krklinski, [1996] 50 R.P.R. (2d) 283, ¶¶ 35-39 (Ont.) (standing merely for the proposition that, where it is essentially undisputed that the non-breaching party had the capacity to make additional sales, the breaching party retains the burden of proving that the non-breaching party nevertheless could not have made both the contracted-for sale and the supposedly mitigating sale); Candlepin Mach. Parts Ltd. v. Britten, [1991] 109 N.S.R. (2d) 366, ¶¶ 71-82 (N.S.) (<HOLDING>); Mason & Risch Ltd. v. Christner, [1920] 54 Holdings: 0: holding merely that to the extent a breaching party claims that the appropriate measure of damages is the difference between the contract price and the market price it holds the burden of proving that there is in fact an available market for the goods in issue 1: holding that the measure of damages for the breach of a contract of sale where no fraud is shown is the difference between the contract price and the market price of the goods on the date of the breach 2: holding that the market price is understood to mean the current market price being paid for gas at the well where it is produced 3: holding damage award resulting from a breach of an agreement to purchase securities is the difference between the contract price and the fair market value of the asset at the time of the breach 4: holding merely that to the extent a breaching buyer wishes to invoke the presumption that a nonbreaching seller will resell the contractedfor goods in the open market it holds the burden of proving that there is in fact an available market for those goods
|
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Drawing upon the United States Supreme Court’s analysis in Padilla, this Court concluded that counsel was obliged to warn the defendant that forfeiting his pension would be a consequence of pleading guilty. In so holding, we noted that, in Padilla, the United States Supreme Court stated it had never applied the distinction between direct and collateral consequences to define the scope of constitutionally professional assistance required under Strickland. We then concluded in Abraham that it was unclear whether the direct/collateral analysis is still viable as it relates to issues concerning the ineffective assistance of counsel. See Abraham, 996 A.2d at 1092. On April 5, 2010, the Pennsylvania Supreme Court granted allowance of appeal in Abraham to address, inter alia, "whethe .2003) (<HOLDING>). Thus, in light of this Commonwealth’s Holdings: 0: holding that counsel was ineffective for inter alia failing to impeach a witness with prior inconsistent statements 1: holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy 2: holding that counsels failure to impeach a witness by showing bias was ineffective assistance 3: holding that failure to object to admissible evidence was not ineffective assistance of counsel 4: holding that counsels total failure to conduct pretrial discovery constituted ineffective assistance
|
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of dealing altered that understanding. Although there was conflicting testimony regarding whether or not the provision regarding letters of intent had been waived, there is no doubt that the letter clearly states that the agreement is conditioned upon Baker’s performance, which the trial court found to be unsatisfactory. Specifically, the Bankruptcy Court found that “[t]he debtor rarely paid Telelect on time, repeatedly refused to provide Telelect with promised financial data, and jeopardized Teleleet’s reputation in the market by not timely delivering its finished product.” In re JGB Industries, Inc. v. Simon-Telelect, Inc., Adv. Proc. No. 96-3046 at 14 (Bankr.E.D.Va. May 220, 1236 (E.D.Va.1996); and Swengler v. ITT Corp. Electro-Optical Div., 993 F.2d 1063, 1070 (4th Cir.1993) (<HOLDING>)). The Court declines to decide whether Holdings: 0: holding enforceable employee manual that was distributed to all employees 1: holding that an employees communications to general counsel requesting legal advice remained confidential even though they were distributed to other employees involved in the matter because such limited dissemination does not amount to a breach of confidentiality in the corporate attorneyclient context 2: holding that no implied contract arises from policy manuals which are not generally distributed to employees but which are instead provided only upon request 3: holding that internal policy memorandum not generally distributed to employees did not create an implied condition to an employees contract even though that employee had requested an obtained a copy 4: holding as a matter of law that the existence of an expense reimbursement policy alone did not create an implied contract limiting the employers right to terminate an employee atwill
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courts to enter judgment. Only then will the circuit court be able to properly exercise its authority. An express aim of the Act is that its provisions are to be construed as to effectuate its general purpose to make uniform the law of those states which enact it. 710 ILCS 5/20 (West 1998). Our determination comports with the holdings expressed by courts in other jurisdictions. See Northern Indiana Commuter Transportation District v. Chicago Southshore & South Bend R.R., 685 N.E.2d 680, 694-95 (Ind. 1997) (noting that counterpart section in Indiana Uniform Act essentially enables the parties to control by contract what court may review an action to enforce an award and effectively provides the basis of jurisdiction); Tru Green Corp. v. Sampson, 802 S.W.2d 951, 953 (Ky. App. 1991) (<HOLDING>); H.T.I. Corp. v. Lida Manufacturing Co., 785 Holdings: 0: holding that a dispute arising out of an insurance policy was not covered by the arbitration provision in the parties separate premium payment agreement because if the party had intended to subject this dispute to the arbitration provision it could easily clearly and unequivocally have done so either by including an arbitration provision in the insurance policy itself or by adding to the above arbitration provision 1: holding that where an arbitration agreement between an employer and employee does not specifically provide for the handling of arbitration costs california courts should interpret the arbitration agreement as providing that the employer must bear the arbitration forum costs 2: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration 3: holding that the plain meaning of the counterpart provision in the kentucky uniform act reveals that the arbitration agreement must provide for the arbitration itself to be in kentucky in order to confer subjectmatter jurisdiction on a kentucky court 4: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added
|
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other situations or “exceptions” that are more akin to the situation here: A recognized exception to this rule applies where enforcement of a challenged restriction would adversely affect the rights of non-parties,. and there is no effective avenue for them to preserve their rights themselves. Cf. Stall v. State, 570 So.2d 257, 258 (Fla. 1990) (“[assuming that the petitioners [who were alleged vendors of obscene materials] have vicarious standing to raise their customers’ privacy interest”). This principle has been extended' to apply where it is the petitioners who “stand to lose from the outcome of this case and yet they have no other effective avenue for preserving their rights” than by raising the constitutional rights of non-parties. Jones v. State, 640 So.2d 1084, 1085 (Fla. 1994) (<HOLDING>). Id. at 76 n.3 (emphasis added). Powell, 497 Holdings: 0: holding that passengers lacked any reasonable expectation of privacy and therefore had no standing to challenge the search of the vehicle 1: recognizing that plaintiffs had standing to allege infringements of their first amendment rights where the record established that they had been threatened with enforcement of the statute and that such enforcement would cause them injury 2: holding that defendant had no standing to assert his wifes privacy right pertaining to medical records introduced into evidence at trial 3: recognizing petitioners vicarious standing to5 assert the claimed privacy rights of the underaged girls with whom they had sexual intercourse 4: holding that a litigant may not claim standing to assert the rights of a third party
|
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directing Deason to ascend the scaffolding for dismantling, Walker performed a visual inspection of its condition. Walker contends that, in light of the foregoing facts and prior decisions of this Court, even assuming that he negligently performed his duties with regard to the inspection and ascension of the scaffolding, those duties were performed in' the line and scope of his discretionary authority as a carpenter supervisor. See Ex parte Randall, 971 So.2d 652, 664 (Ala.2007) (“This Court has previously held that poor judgment or wanton misconduct, an aggravated form of negligence, does not rise to the level of willfulness and maliciousness necessary to put the State agent beyond the immunity recognized in Cramnan. See Giambrone [v. Douglas], 874 So.2d [1046] at 1057 [ (Ala.2003),] (<HOLDING>).”). The undisputed evidence before us Holdings: 0: holding that a state agent was entitled to immunity notwithstanding the fact that there was sufficient evidence for a jury to return a verdict for malicious prosecution because malice for purposes of malicious prosecution can be based upon a lack of probable cause but such malice in law is not enough to satisfy the ex parte cranman exception for acts committed willfully maliciously fraudulently in bad faith beyond his or her authority or under a mistaken interpretation of the law 1: holding that for a defendant to recoup attorneys fees under 706k of title vii a court must find that the plaintiff litigated his or her claim beyond the point where it became frivolous unreasonable or groundless or where plaintiff acted in bad faith 2: holding that stateagent immunity is not abrogated for negligent and wanton behavior instead immunity is withheld only upon a showing that the state agent acted willfully maliciously fraudulently in bad faith or beyond his or her authority 3: holding that awarding fees under 35a is inappro priate absent an explicit finding that the losing party acted willfully or in bad faith 4: holding that a bad faith claim is a tort
|
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informant’s testimony. For the same reasons stated in the third issue, we do not find the corroborating evidence so unconvincing that it renders the State’s overall case clearly and significantly less persuasive. See id. We overrule Appellant’s second issue. Conclusion We affirm the judgment of the trial court. 1 . See Tex. Health & Safety Code Ann. §§ 481.126(a)(3), .102(3)(D), .115(a), (0 (Vernon 2010). 2 . Appellant admitted that his voice was on the recording, but he denied that the recording was from inside the Burger King. Instead, he claimed it was a recording of a telephone conversation. Viewing the record in the light most favorable to the verdict, we must conclude that the recording took place inside the Burger King. See Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008) Holdings: 0: holding that the evidence is viewed in the light most favorable to the nonmoving party and all doubts are resolved against the moving party 1: holding that we view the evidence in the light most favorable to the prevailing party 2: holding that in ruling on a summaryjudgment motion record evidence must be viewed in a light most favorable to nonmovant 3: holding that when reviewing a challenge to the sufficiency of the evidence all evidence is viewed in the light most favorable to the government 4: holding record is viewed in light most favorable to verdict
|
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Fourth Amendment: We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, if the plaintiffs can show that they were subjected to unequal treatment based upon their race or ethnicity during the course of an otherwise lawful traffic stop, that would be sufficient to demonstrate a violation of the Equal Protection Clause. Cf. United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir.) (en banc) (<HOLDING>), cert. denied, 531 U.S. 889, 121 S.Ct. 211, Holdings: 0: holding that doctrine does not violate equal protection 1: holding that equal protection principles precluded use of hispanic appearance as a relevant factor for fourth amendment individualized suspicion requirement 2: holding that the state law violated equal protection principles 3: holding that suspicion must be individualized 4: holding that ch 980 does not violate principles of equal protection
|
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Ass’n of Pa. v. DPW, 585 Pa. 106, 116 n. 12, 888 A.2d 601, 607 n. 12 (2005) (“In ruling on whether preliminary objections were properly sustained, an appellate court must determine whether it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief.” (citation omitted)). On the merits, I note that this Court has previously interpreted statutory provisions governing the training of police officers that are analogous to those in issue here as extending to officials who were not technically subject to their terms but nevertheless were cloaked with authority on a par with the police officers that the statute directly covered. See Commonwealth v. Leet, 537 Pa. 89, 96-97, 641 A.2d 299, 303 (1994) (<HOLDING>). Accordingly, I also believe that a demurrer Holdings: 0: holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle 1: holding that ems training lieutenants position met criteria because the lieutenants developed coordinated implemented and conducted ems training programs prepared lesson plans and training aids supervised delivery of training and tests and evaluated new equipment 2: holding that the plaintiff had offered insufficient evidence to establish deliberate indifference in a failuretotrain claim in part because the plaintiff did not present evidence that the training received was inadequate or evidence of any specific additional training that the employees should have received 3: holding that an expert established a national standard of care for police officer training by testifying that police departments throughout the country commonly trained officers to deal with mentally distuibed persons and by naming several departments that offered such training 4: holding that sheriffs and deputy sheriffs enforcing motor vehicle laws were required to meet the training requirements of the former municipal police officers education and training act 53 ps 7417491 repealed
|
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funds operate in general may shed some light on the defendants’ intent in forming the limited partnerships (LP), the rationale for some of the LPs’ management practices, and whether the LPs indeed intended to form a partnership or a joint venture. Details of private equity funds’ investment and management practices are outside the domain of an ordinary person’s knowledge, and might be helpful to a decisionmaker. However, the plaintiffs have a valid point when they challenge Adams’s testimony that holding the defendants accountable would have a detrimental effect on the private equity industry. Such policy-type arguments fall outside of the scope of expert testimony sanctioned by Rule 702, and are irrelevant to issues at hand. Cf. Chavez v. Carranza, 559 F.3d 486, 498 (6th Cir.2009) (<HOLDING>) (citing Berry v. City of Detroit, 25 F.3d Holdings: 0: holding that an expert opinion on a question of law is inadmissible 1: holding that rules of evidence do not permit an expert to give opinion or state legal conclusions regarding a question of law 2: holding inadmissible an affidavit by copyright law expert opining that a term was suggestive rather than descriptive because his opinion was a conclusion of law 3: holding that lay witness opinion as to guilt of defendant inadmissible 4: holding that an administrative agencys decision may not be based upon inadmissible expert opinion
|
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[
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its failure to settle, “the insured[’s] assignee is entitled as a matter of law to recover damages equal to the amount by which the judgment exceeds policy coverage.” Brightman, 568 S.E.2d at 501-02. Thus, in each of the cases discussed above at pages 34-37, 44-45, the damages sought and awarded included the underlying judgment minus the policy limits paid by the insurance company plus interest and costs. As a its $100,000 policy limits toward satisfaction of . the judgment, $492,155.82 in interest had accrued. Thus, because Nationwide’s payment of $100,000 was less than the $492,155.82 in accrued interest on the judgment as of February 23, 2011, the $100,000 partial payment did not' reduce the principal amount and did not abate the accrual of additional interest on that' amount. Id. (<HOLDING>). While Plaintiffs in the bad faith action are Holdings: 0: holding that where payment toward judgment was for less than the total amount of principal and interest owed that payment then did not terminate the accrual of interest on the remaining principal 1: holding that the term reverse payment is not limited to a cash payment 2: holding that it was not essential to an action by a supplier on a payment bond under the miller act that a demand be made on the general contractor for payment although there was evidence in the case from which it could be found that the materialman looked to the general contractor for payment since the statute does not require a demand for payment but merely requires written notice of the claim 3: holding that agency relationship existed where principal paid plaintiff directly and written agreement stated agent was signing on behalf of principal 4: holding that a declaratory judgment action was not the proper forum for the principal to make its bad faith argument which instead is properly asserted as a defense to the suretys claim against the principal for indemnification
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and enjoined the use of that district in future elections. Shaw v. Hunt (Shaw II), 517 U.S. 899, 905-18, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). In 1997, a politically divided General Assembly enacted a remedial plan expected to elect six Republican and six Democratic Representatives, rendering each party’s share of the state’s congressional delegation proportional to its share of the statewide vote in the most recent congressional election. Cromartie v. Hunt, 133 F.Supp.2d 407, 412-13 (E.D.N.C. 2000), rev’d sub nom. Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001); id. at 423-24 (Thornburg, J., dissenting). In 2001, after several more years of litigation, the Supreme Court approved that remedial plan. See Easley, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (<HOLDING>). Just as litigation regarding the 1992 Plan Holdings: 0: holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record 1: holding substantial evidence supported jury finding of abuse of process 2: holding that threejudge panels finding that race constituted the predominant motivation in redrawing remedial districts was not supported by substantial evidence 3: holding that the district courts finding of no discrimination under title vii was not clearly erroneous because the finding was supported by the record 4: holding that if a reasonable fact finder could make a particular finding on the administrative record then the finding is supported by substantial evidence
|
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Sylvie at the time he purportedly married Geraldine. Dubie was still married to Sylvie becaus p.1966) (re fusing to uphold validity of Mexican divorce decree where parties, residents and domicili-aries of Louisiana, went to Mexico for sole purpose of obtaining divorce); Sohnlein v. Winchell, 230 Cal.App.2d 508, 41 Cal.Rptr. 145, 146-47 (1964) (refusing to recognize Mexican divorce decree where party stayed in Mexico for only two or three days, after which decree was issued, and holding that “where the foreign jurisdiction has no legitimate interest in the status of the parties, or where the sole purpose of seeking the divorce in the foreign jurisdiction is to evade the policy of this state, the judgment should not be recognized”); Cross v. Cross, 94 Ariz. 28, 381 P.2d 573, 574 (1963) (<HOLDING>). Neither Dubie nor Sylvie was domiciled in the Holdings: 0: holding parties to an exculpatory clause where the parties intent is clear 1: holding that the judgment was entered without jurisdiction and was therefore a nullity 2: holding that mexican divorce was a nullity and totally void where parties were not residents of mexico because mexican court did not have the slightest semblance of jurisdiction to adjudicate the marital status of the parties 3: holding that a district courts order of dismissal with prejudice was a nullity because the court lacked jurisdiction 4: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract
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