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an impermissible fishing expedition.”); United States v. Reed, 726 F.2d 570, 577 (9th Cir.1984) (affirming trial court order quashing defendants’ subpoena after in-camera review where the defendants “did not request specific documents, but sought entire arson investigation files”). The name of a document and mere speculation as to its contents are not sufficient to satisfy the Rule’s specificity and relevance requirements. See United States v. Hardy, 224 F.3d 752, 755-56 (8th Cir.2000) (upholding trial court’s order quashing defendant’s subpoena of recorded police radio transmissions where the defendant had “stated why he wants to listen to the transmissions, but he cannot set forth what the subpoenaed materials contain”); United States v. Arditti, 955 F.2d 331, 345-46 (5th Cir.1992) (<HOLDING>). [¶ 36] Here, Marroquin-Aldana’s subpoena Holdings: 0: holding that the defendant did not demonstrate and our review of the record did not reveal that the defendant made a showing of good cause as to why his late notice should be accepted and as such the trial court did not abuse its discretion when it denied the defendants belated oral motion to assert an insanity defense 1: holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge 2: holding that trial court did not abuse its discretion by allowing the state to introduce direct evidence of the controlling nature of defendants relationship with the victim 3: holding that a district court did not abuse its discretion when it denied a motion for reconsideration that relied on materials available to the movant at the time of the original motion and where movant did not give any explanation as to why she did not rely on those materials in the first instance 4: holding that the trial court did not abuse its discretion in quashing a subpoena where the defendant demonstrated why he wants to look into the subpoenaed material but has not set forth what the subpoenaed materials contain forcing the court to speculate as to the specific nature of their contents and its relevance
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analysis.” This standard is not defined by bright lines and rigid boundaries. Instead, the standard allows a magistrate judge to review the facts and circumstances as a whole and make a common sense determination of whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” The magistrate judge’s decision in this regard is one we review with great deference. Grossman, 400 F.3d at 217 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (other internal quotation marks omitted). As part of such a common sense determination, we observed in Grossman, “it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key.” Id. at 218; see also Servance, 394 F.3d at 230 (<HOLDING>). In light of our precedent, the district court Holdings: 0: holding that evidence was admissible under the good faith exception where the affidavit contained a detailed description of the nature of the offense the premises to be searched the items for which they were searching and the transaction which led the informant to believe that the drugs would be in this apartment 1: holding that on clear error review appellate court cannot secondguess the trial courts choice between permissible competing inferences internal quotation marks and ellipses omitted 2: recognizing that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence internal quotation marks omitted 3: holding that due process is violated if evidence of prior bad acts goes only to character and there are no permissible inferences the jury may draw from it internal quotation marks omitted 4: holding that a warrant lacking a description of items to be seized was not facially invalid and finding in the alternative that even if the warrant were found to be deficient the seized evidence was admissible under the good faith exception
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to professional compensation would make the language of Sections 503(b)(2) superfluous. Congress enacted Sections 327, 330(a), and 503(b)(2) to provide the exclusive method for a debtor’s retention of professionals, subject to numerous safeguards, including the requirement of disinterestedness. A court should not circumvent the limitations placed on retention of professionals by compensating a disqualified professional under Section 503(b)(1)(A). Instead, Section (b)(1)(A) is properly applicable only to authorize priority treatment of non-professional employee claims, including wages, salaries and commissions. The remaining issue is whether the services rendered by Harold Zell were professional in nature, in which case his administrative claim cannot be allowed, or w E.D.N.C.1985) (<HOLDING>); Matter of Seatrain Lines, Inc., 13 B.R. 980 Holdings: 0: holding that a lottery ticket purchased prepetition that won postpetition was included in the debtor estate 1: holding that management consultant hired prepetition and retained postpetition was professional requiring appointment nonsalaried employee could not be compensated under section 327a or b 2: holding that a subcontract agreement could not circumvent the requirements of section 327a 3: holding that a postpetition claim under section 1305 is a liability that arises postpetition and relates only to postpetition activity 4: holding that creditors cannot allow postpetition funds to be automatically applied to a prepetition indebtedness absent some positive indication that debtors indeed intend to voluntarily assume their prepetition debts
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(<HOLDING>). Marshall asserted that he was entitled to be Holdings: 0: holding that consecutive fixedterm sentences for juveniles who committed multiple nonhomicide offenses are not clearly unconstitutional under graham even when they amount to the practical equivalent of life without parole 1: holding that williams fiftyyear sentence is not a de facto life sentence in violation of graham 2: holding that a juvenile nonhomicide offenders sentence of seventy years imprisonment is unconstitutional under graham for the reasons explained in henry 3: holding that the eighth amendment forbids life without the possibility of parole for a juvenile who commits a nonhomicide offense 4: holding that a juvenile seventeen years old or younger cannot be sentenced to life without parole in a nonhomicide case
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of attorney’s fees for breach of contract. Allstate contends the subject contracts do not contain a fee provision such that no legal basis exists to award attorney’s fees for a simple breach of contract. Plaintiff appears to concede that he may not recover attorney’s fees under his contract claim unless he establishes that Allstate breached the implied covenant of good faith and fair dealing. (Pl.’s Opp’n at 12-13). The Court therefore GRANTS Allstate’s motion to the extent it seeks to preclude Plaintiff from recovering attorney’s fees and costs under the breach of contact claim. (CompLf 14). Plaintiff may, of course, pursue attorney’s fees under his implied covenant claim as permitted by Brandt v. Superior Court, 37 Cal.3d 813, 819, 693 P.2d 796, 800, 210 Cal.Rptr. 211, 215 (1985) (<HOLDING>). III. Conclusion and Order For the foregoing Holdings: 0: holding that chapter 38 permits an insured to recover attorney fees from the insurer 1: holding that when the insured brings an action for a declaration of coverage and prevails absent a bad faith denial of coverage by the insurer attorneys fees incurred by the insured in the prosecution of that action are not incurred at the request of the insurer 2: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith 3: holding that an insurer acted in bad faith by failing to keep the insured informed of settlement negotiations 4: holding that insured may recover from its insurer any attorney fees incurred in successfully attempting to force the insurer to defend an action against the insured
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behavior after the accident was due to intoxication and not due to trauma from the accident. Appellant directs us to Officer Trusler’s cross-examination testimony in which the officer testified he was unsure what types of behavioral and neurological problems might be exhibited by someone who had recently been involved in an accident as opposed to someone who was intoxicated. Section 577.010 sets out in pertinent part that “[a] person commits the crime of [DWI] if he operates a motor vehicle while in an intoxicated or drugged condition.” “[A] person is in an ‘intoxicated condition’ when he is under the influence of alcohol, a controlled substance, or drug, or any combination thereof.” § 577.001.2. “ ‘Intox requested sobriety tests. See State v. Myers, 940 S.W.2d 64, 65 (Mo.App.1997) (<HOLDING>). Additionally, Officer Trusler testified at Holdings: 0: holding evidence sufficient when appellant exhibited signs of possible intoxication failed field sobriety tests and had blood alcohol level in excess of legal limit 1: holding that a refusal to perform field sobriety tests was admissible as evidence of intoxication 2: holding that under florida precedent trial court erred in excluding expert testimony on intoxication as voluntary intoxication was a valid defense to a specific intent crime and expert testimony is relevant to a disputed voluntary intoxication defense 3: holding such intoxication to be voluntary 4: holding statistical conclusions admissible and questions regarding the size of a tests database goes to the weight not admissibility of the evidence
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the estates would be better off litigating the claims than negotiating their resolution through a plan of reorganization. In fact, the Committee itself recognizes the possibility that “nego tiations might consensually resolve” its challenges. (Bankr. Dkt. No. 2740 at 25). If the motion is granted, the Committee says, the court should not require the proposed amended complaint to be filed right away or by a certain date. The Committee instead asks leave to file the complaint at its discretion—“to potentially avoid unnecessary litigation if it appears its discussions with the parties may yield progress.” (Id.). That the litigation could prove unnecessary given the parties’ settlement discussions is justification enough for the debtors’ not to pursue it. Cf. Caesars, 808 F.3d at 1188-89 (<HOLDING>). The debtors’ justification, though, might not Holdings: 0: holding that this court could enjoin litigation in another court if doing so would promote settlement of disputes in these bankruptcy cases 1: holding bankruptcy court had jurisdiction to issue injunction of state court litigation against debtors principal stating this power under 11 usc 105a includes the authority to enjoin litigants from pursuing actions in other courts that threaten the integrity of the debtors estate 2: holding that bankruptcy court may enjoin federal administrative proceedings when they threaten the debtors estate 3: holding that bankruptcy court may enjoin state environmental reclamation order 4: holding that bankruptcy court could not enjoin third party tort claims that would not affect estate
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(reasonable to believe suspect would be at home at 8:45 a.m. on Sunday morning); Edmonds, 52 F.3d at 1248 (entry at 6:45 a.m. was “early enough that it was unlikely someone living in the apartment would have already departed for the day”); Anderson, 104 F.3d 367, 1996 WL 731244 (“the officers came to the home at 8:45 p.m., on a cold, snowy evening, a time when a person would reasonably be expected to be at home”); observing the operation of lights or other electrical devices, Route, 104 F.3d at 63 (officers heard television set left on inside residence after third person left residence); Magluta, 44 F.3d at 1538 (observations that “the lawn was manicured and a porch light was on” gave “no indication that Magluta departed, such as for work or the like”); Morehead, 959 F.2d at 1496 (<HOLDING>); and the circumstances of a suspect’s Holdings: 0: holding that an arrest warrant without a search warrant does not permit law enforcement authorities to enter a third partys home to legally search for the subject of the arrest warrant 1: holding that arrest warrant can support entry into suspects residence when there is reason to believe the suspect is within 2: holding that an illuminated light provided a reasonable basis for officers to believe the subject of an arrest warrant was within the building 3: holding that the vehicle of a recent occupant may be searched incident to arrest as an exception to the warrant requirement where it is reasonable to believe the vehicle contains evidence of the offense of arrest 4: holding that an arrest warrant can authorize entry into a dwelling only where the officials executing the warrant have reasonable or probable cause to believe the person named in the warrant is within
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fees under 42 U.S.C. § 1988, "an appropriate ad justment for delay in payment-whether by the application of current rather than historic hourly rates or otherwise” is permissible. 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The Seventh Circuit in Brandt v. Schal Assoc., Inc. upheld a district court’s award of interest on attorney’s fees for the "delay factor” and affirmed the district court’s holding that awarding delay damages does not violate Cooter & Gell v. Hartmarx Corp. 960 F.2d 640, 645, 649 (7th Cir.1992) (citing 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). 171 . The FDIC disputes that it acted as a receiver here. See supra note 158. 172 . See, e.g., Spawn, 989 F.2d at 833 (quoting McGehee v. Panama Canal Comm'n, 872 F.2d 1213, 1215 (5th Cir.1989)) (<HOLDING>); see also Meyer, 510 U.S. at 482, 114 S.Ct. Holdings: 0: holding that a government agency may lose its immunity to interest sanctions if congress has shed the cloak of sovereignty and given an agency the status of a commercial operation 1: holding that when congress has implicitly delegated legislative authority to an agency a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency 2: holding that a draft of a proposed letter from an area director of a government agency to a municipal administrative agency was properly excluded because it did not represent an agency finding 3: holding that when an agency has not reached an issue the proper course is to remand to the agency to address in the first instance 4: holding that agency regulations cannot be applied retroactively unless congress has so authorized the administrative agency and the language of the regulations require it
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agree with the Commonwealth that the PCRA court’s reference to Pa.R.E. 705, which requires that “an expert must testify as to the facts or data on which the opinion or inference is based,” does not support a finding of counsel ineffectiveness. As the medical examiner testified that the basis for her time-of-death estimation was her investigator’s liv-idity test, she clearly set forth the facts or data on which her opinion was based, and an objection grounded on Pa.R.E. 705 would have been futile. Further, to the extent the PCRA court found counsel ineffective for failing to challenge the time-of-death testimony as speculative because it was based on the investigator’s notes, we find such legal conclusion to be in conflict with our ruling on direct appeal. See Elliott, 700 A.2d at 1252 (<HOLDING>). Thus, there is no arguable merit to a claim Holdings: 0: holding victim waived physicianpatient privilege by authorizing her doctor to release her medical records to the department of criminal investigation because the information contained in her medical records was no longer confidential between herself and her physician 1: holding that a teachers complaint to school authorities that her principal had instructed her to make improper changes in her own students grades was unprotected because it was made pursuant to her official duties 2: holding that it was proper for the medical examiner to estimate the victims time of death based on the results of her investigators lividity test as it was standard procedure for her to rely on tests performed by members of her office 3: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 4: holding that plaintiffs motion to amend her complaint to add her husband as a defendant did not relate back because her failure to sue her husband was not due to misnomer or mistake involving the identity of the proper party but because the law at the time of the complaint did not allow one spouse to sue another in tort
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elements of these “independent torts.” Koffman, 574 S.E.2d at 261. The Court explained that the “tort of assault consists of an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.” Id. The Court defined the tort of battery as “an unwanted touching which is neither consented to, excused, nor justified.” Id. In moving for summary judgment with respect to these claims, the Sheriffs Office defendants argue that the deputies’ actions were justified in light of the circumstances that they faced in this case, and thus, that the claims for assault and battery are without merit. See, e.g., McLenagan v. Karnes, 27 F.3d 1002, 1009 (4th Cir.1994) (<HOLDING>). In response to the defendants’ motion, the Holdings: 0: holding that the plaintiffs claims for assault and battery were patently without merit since the officers actions under the circumstances were justified 1: holding that claims were clearly excluded from coverage under assault and battery exclusion and therefore insurer had no duty to defend or indemnify 2: holding that district court could impose attorney fees where plaintiffs lawsuit patently had no legal merit 3: holding that under maryland common law an assault is an attempted battery an actual battery or a combination of the two 4: holding that the actions were not actions of public and general applicability but were actions directed principally and primarily at plaintiffs
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Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must ‘produce specific facts, in suitable evidentiary form’ sufficient to limn a trial-worthy issue.... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence.”); Medina-Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (<HOLDING>) Local Rule 56(b), moreover, requires the Holdings: 0: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted 1: holding that a district court must compare and weigh the opposing evidence and it must set aside the verdict if it determines that the verdict is against the clear weight of the evidence 2: holding that the evidence illustrating the factual controversy cannot be conjectural or problematic it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve 3: holding substance of claim must have been presented to state court 4: holding to prove possession the state must show that a defendant possessed a certain substance the substance was illegal and he had knowledge of the presence of the substance
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524, 526 (Ind.1990) (discussing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel is presumed to be competent; "[iJsolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel." Id. Defendant first argues that defense counsel's performance was deficient when he failed to object to Jacob's testimony concerning Tanelle's Fourth of July statements. Defendant argues that this could not have been a strategy decision, since defense counsel already had objected to Darlene's testimony on the same topic. However, since the objection to Darlene's testimony already had been overruled, we cannot say that failure to object once again was deficient performance. See Drake v. State, 563 N.E.2d 1286, 1290 (Ind.1990) (<HOLDING>). Even assuming that this behavior was Holdings: 0: holding that issue is preserved if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them 1: holding that a party waived its objections on appeal to an affidavit presented in support of a motion for summary judgment by failing to raise its objections to the trial court 2: holding that failure to make repeated objections is not ineffective when such objections would not have been sustained 3: holding that when defendants only timely filed objections to expert report were that two statements were speculative defendant waived all other objections 4: holding that because generic objections do not afford a sentencing court sufficient notice such objections are inadequate to preserve specific claims of sentencing error
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residents of the Depot. Nor are the District and taxing entities attempting to assess taxes on property within the federal enclave that constitutes the Depot. Those aspects of a “state” within the federal system of these United States are not implicated. The tax is assessed solely on inventory while it is located on Aviall’s private property at its distribution center in Irving, Texas. See Tex. Tax Code Ann. §§ 11.01, 23.01, 32.01 (Vernon 2008). Moreover, Aviall’s interpretation would reverse the long-standing rule to strictly construe tax exemptions against the taxpayer. See River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854 (Tex.1963); ICAN Enter., Inc. v. Williamson County Appraisal Dist., No. 03-06-00594, 2009 WL 1025084, *3 (Tex.App.Austin April 17, 2009, pet. denied) (<HOLDING>). It is well settled that language granting Holdings: 0: holding that trial court abused its discretion by denying a motion for rule 11 sanctions without adequate explanation 1: holding trial court erred in denying defendants motion for arrest of judgment where indictment was insufficient 2: holding trial court properly gave narrow interpretation for exemption for stored aircraft parts denying taxpayers application for its storage of entire aircraft 3: holding that before denying petition trial court must conduct an evidentiary hearing and state specific reasons for denying the petition 4: holding that trial court did not abuse its discretion by denying motion for continuance when not in proper affidavit form
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tance due to a failure to object to the introduction of time-barred offenses (the burglary charge), and Claim XII, which claimed that Overton’s death sentences were unconstitutional under Ring, were both properly denied without an evidentia-ry hearing. Overton’s posteonvietion counsel conceded that these were purely legal issues that did not require an evidentiary hearing. Moreover, as previously developed, no prejudice resulted from the introduction of the burglary charge, which the trial court correctly recognized in denying the evidentiary hearing. Additionally, the claim that Overton’s death sentences violated Ring was clearly without merit because this Court has previously held that Ring cannot receive retroactive application. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (<HOLDING>). Thus, these claims were legally insufficient Holdings: 0: holding that the rule announced in ring does not apply retroactively to cases already final on direct review 1: holding that ring does not apply retroactively in florida postconviction proceedings to cases that were final on direct review at the time of the ring decision 2: holding that batson does apply retroactively to cases pending on direct review 3: holding that apprendi does not apply retroactively in florida in postconviction proceedings to cases that were final on direct review at the time of the apprendi decision 4: holding that apprendi does not apply retroactively in florida postconviction proceedings to cases that were final on direct review at the time of the apprendi decision
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of the Debtor’s bad acts does not mandate that this Court restrict the scope of its findings. In determining whether appointment of a Chapter 11 Trustee was warranted, this Court was required to consider the totality of the circumstances. Each of the findings contained in the Trustee Order were relevant to this Court’s determination that the Debtor’s conduct manifested the extreme circumstances that are a prerequisite to appointment of a Chapter 11 Trustee pursuant to both § 1104(a)(1) and § 1104(a)(2). Accordingly, this Court believes that its decision to include all of its relevant findings, rather than some subset, does not constitute indisputable error. The Debtor’s appeal to equity is without merit. See, e.g., In re Combustion Engineering, Inc., 391 F.3d 190 (3d Cir.2004) (<HOLDING>). This Court can identify no principle that Holdings: 0: recognizing derivative standing that bankruptcy courts can authorize 1: holding that mere procedural changes which do not affect substantive rights are not immune from retrospective application 2: recognizing that a bankruptcys equitable powers provided by 105 do not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law or constitute a roving commission to do equity 3: holding damages do not constitute other equitable relief 4: holding that similar doj guidelines not mandated by statute or the constitution do not confer substantive rights on any party
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placed and allowed R.A. to remain with Akin, who engaged in conduct that endangered R.A.’s physical or emotional well-being, and (b) Jordan herself engaged in conduct that endangered R.A.’s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E). a. Placing and Allowing RA. to Remain with Akin For the same reasons detailed in our analysis of section D, we conclude the evidence supports the trial court’s determination that Jordan’s voluntary and knowing placement of R.A. with Akin and her voluntary and knowing decision to allow R.A. to remain with Akin by opting not to use earnest efforts until after September 2007 to regain custody of R.A., endangered the physical and emotional well-being of R.A. See In re S.P., 168 S.W.3d 197, 204-05 (Tex.App.-Dallas 2005, no pet.) (<HOLDING>); In re J.M.M., 80 S.W.3d at 241-42; Hann, 969 Holdings: 0: 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 1: holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother placed children with father who lived transient lifestyle with children 2: holding evidence supported terminating mothers parental rights under section d based in part on evidence that mother could not adequately protect or provide financially for children 3: holding evidence legally and factually sufficient under sections d and e to terminate mothers parental rights based in part on evidence that mother placed children with physically abusive father 4: holding evidence supported termination of mothers parental rights where among other factors mother knowingly allowed abusive and sexually deviant father to have access to children
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interest in their continued employment and that Richardson’s Age Discrimination in Employment Act (ADEA) claim was barred by Eleventh Amendment sovereign immunity. Plaintiffs contend that DHS’s discipline policies entitled them to due process protection and that Arkansas has waived its sovereign immunity to ADEA suits. After reviewing the relevant discipline policies, we agree with the District Court that they did not alter plaintiffs’ at-will employment status to create property interests in their jobs. See Singleton v. Cecil, 176 F.3d 419, 424-25 & n. 6 (8th Cir.) (finding that an at-will employee has no property interest in job), cert. denied, 528 U.S. 966, 120 S.Ct. 402, 145 L.Ed.2d 313 (1999); Ball v. Ark. Dep’t of Cmty. Punishment, 340 Ark. 424, 10 S.W.3d 873, 876 (Ark.2000) (<HOLDING>); Batra v. Bd. of Regents of the Univ. of Neb., Holdings: 0: holding that an atwill employee may not be discharged for refusal to violate the law 1: holding that under new york law employment is atwill unless the duration of an employment contract is set forth explicitly 2: holding that an atwill employee can be discharged for any reason or no reason unless employee is discharged for reasons that contravene a clear mandate of public policy 3: holding that under arkansas law employment is atwill unless personnel manual or employment agreement contains express provision that employee shall not be discharged except for cause 4: holding where employee handbook and employment offer letter disclaimed creation of employment contract that employees testimony of his understanding of terms of agreement did not raise fact issue of specific express and clear agreement contradicting the express provisions of the personnel manual and the employment offer letter
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to adjudicate plaintiffs claims because plaintiff “does not allege, and cannot demonstrate, that his conviction has been reversed or set aside upon grounds of innocence.” Def.’s Mot. 4. To support its argument, defendant quotes 28 U.S.C. § 1495: “ ‘[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.’ ” Id. (quoting 28 U.S.C. § 1495). Defendant then states that “[f]or the Court of Federal Claims to have jurisdiction pursuant to [Section 1495, a plaintiff must allege that his conviction has been reversed or set aside for one of the reasons listed in [Section] 2513.” Def.’s Mot. 4 (citing Salman v. United States, 69 Fed.Cl. 36, 39 (2005) (<HOLDING>)). Defendant argues that plaintiff “has failed Holdings: 0: holding that section 311034 does not make section 890041 jurisdictional 1: holding 2513 to be jurisdictional and therefore must be strictly construed 2: holding that section 1495 does not stand alone and must be read in conjunction with section 2513 3: holding that section 1397k should be read to preserve state law claims 4: holding 362h should be construed more broadly than its literal language and should be read in conjunction with all of 362
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a compensation claim to a conclusion on the merits, may file an action against an employer for that workplace injury under these circumstances if the employer’s conduct is to the level of intentional conduct substantially certain to result in injury for which workers’ compensation immunity is not available. Jones, 932 So.2d at 1105 (emphasis added). Vallejos improperly relies on Jones because Jones dealt with waiving the right to pursue an action under an intentional tort theory. All Jones means for Vallejos is that he can still pursue a civil action based upon an exception to the exclusivity of the workers’ compensation statute because none of those claims were litigated in the workers’ compensation case. See Petro Stopping Ctrs., L.P. v. Gall, 23 So.3d 849, 852 (Fla. 5th DCA 2009) (<HOLDING>); Vasquez, 962 So.2d at 413-14 (emphasis added) Holdings: 0: holding that the plaintiffs lawsuit which was filed despite a general release in the parties settlement agreement constituted a material breach of the settlement agreement 1: holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt 2: holding that gall waived her right to sue for an intentional tort because her mediated settlement was a conclusion on the merits due to the fact that the settlement agreement provided that petro accepted gall as permanently and totally disabled 3: holding that because the alleged settlement was never approved by the court under rule 9019 the settlement agreement was unenforceable 4: holding that trial court did not err by refusing to enforce mediated settlement agreement that contained an illegal provision
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was required because they were all members of the unit sharing in all production from the unit. Because the Ohrt-Heinold No. 1 Well was the only well in the unit, if appellants had prevailed on their claims seeking cancellation of the unit, appellants would have received all royalties from that well, and other unit lessors, including the McAdams and Chilcoats, would be entitled to no royalties on the Unit’s production from the well. Appellees further assert that the evidence showed that the Ohrt-Heinold Well was draining gas from under the McAdams’ and Chilcoats’ lands, entitling them to a share of the production from the well. We conclude that the trial court did not abuse its discretion in allowing joinder of the third-party defendants. See Royal Petroleum Corp., 332 S.W.2d at 316-17 (<HOLDING>); Veal v. Thomason, 138 Tex. 341, 159 S.W.2d Holdings: 0: holding trial court did not abuse its discretion in finding that the energy company defendants lessors the owners of royalty interests in the property at issue and the owners of the mineral estate in unleased part of the 9200 acres should be joined as parties if feasible 1: holding that the trial court did not err in denying a plea in abatement to obtain joinder of other royalty owners in a pooled unit on grounds that the presence of the other royalty owners was not necessary to determine whether sabre pooled in bad faith and breached the terms of the lease 2: recognizing reverse piercing when other shareholders and creditors are not adversely affected 3: holding trial court has discretion to require joinder of royalty interest owners whose interests will be directly and possibly adversely affected by decree in trespass to try title action 4: holding trial court did not abuse its discretion in failing to require joinder of owners of nonpossessory royalty interests and possibilities of reverter in partition suit between owners of mineral leasehold estate although it would be wise to join them
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been excused was excused. See Ross, 487 U.S. at 88, 108 S.Ct. 2273. The deprivation that remains in this cireumstance is the loss of the peremptory challenge. Thus, the harm to be evaluated is the harm attributable to the loss of one of the statutorily limited-in-number peremptory challenges. See State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993). 1 25 Second, in Novotny, the court appears to have regarded the error at issue in a case such as this as the deprivation of a peremptory challenge. See Novotny, I 14 (referring to the "erroneous ruling on a challenge for cause adversely impacting the defendafit’s ability to shape the jury through peremptory challenges"), 122 (same), 128 (referring to the "violation of our statutes and rules prescribing the use of peremptory challenges"), 1 27 (<HOLDING>). As discussed, such a deprivation is not a Holdings: 0: holding that the defendant was precluded from asserting error where the defendant had used all of his peremptory challenges and did not ask for more 1: holding that a defendants exercise of peremptory challenges is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause 2: holding that peremptory challenges may not be exercised in a discriminatory manner 3: holding that where a defendant does not use all of his or her peremptory challenges the defendant may not complain of prejudice for failure to dismiss prospective jurors 4: holding that allowing a defendant fewer peremptory challenges than authorized or than available to and exercised by the prosecution does not in and of itself amount to structural error
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Nor did Hatcher allege facts underlying a claim of constitutional error that would show by clear and convincing evidence that, but for the error, no reasonable fact finder would have found him guilty of the underlying offense. Id. Most importantly, however, Hatcher did not present a timely, cognizable claim in his habeas petition. Because he presented an untimely claim, no purpose would be served by inquiring into the defaulted claim by way of an evidentiary hearing. The judgment of the District Court is affirmed. 1 . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. 2 . Nor did Hatcher's 1997 federal habeas petition toll the limitation period for his 1999 petition. See Duncan v. Walker, - U.S. -, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001) Holdings: 0: holding statute of limitations period defined in 28 usc 2244d is subject to equitable tolling 1: holding that the other collateral review provision of 2244d2 encompasses federal review 2: holding that 2244d is subject to equitable tolling in appropriate cases 3: holding for the same reason that motion for appointment of counsel does not toll the period for filing a federal habeas petition 4: holding that the filing of a first federal habeas petition is not an application for other collateral review under the tolling provision of 2244d
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from bringing a claim if (1) a court of competent jurisdiction (2) rendered a final judgment on the merits (3) on the same claim (4) in a prior action between the same parties or their representatives. In re Int’l Nutronics, Inc., 28 F.3d 965, 969 (9th Cir.1994). The doctrine bars all grounds for recovery that could have been asserted, regardless of whether they actually were asserted, during the prior action. Id. Defendant MTC argues that the present suit is barred by res judicata because of this Court’s final judgment in the Sierra Club/CBE litigation. See Citizens for a Better Env’t v. Wilson, No. C89-2044 TEH, Judgment (N.D.Cal. Aug. 27, 1992). The Court was a court of competent jurisdiction, thereby satisfying the first res ju-dicata requirement. CBE I, 731 F.Supp. at 1454-58 (<HOLDING>). Even though it was entered into by Holdings: 0: holding a suit against an agency of the state is a suit against the state 1: holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit 2: holding that judicial review under the apa is precluded when a remedy is available under a citizen suit provision of an environmental statute citations omitted 3: holding in a patent case that when the plaintiff brought the suit in federal district court it submitted itself to the jurisdiction of the court with respect to all the issues embraced in the suit including those pertaining to the counterclaim of the defendants 4: holding that the court had jurisdiction to hear the suit under the citizen suit provision of the caa
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in the wrongful-death action does not constitute a payment of White’s liabilities or debts and, therefore, does not run afoul of § 6-5-410(c), as Rodgers argues. Accordingly, we conclude that the trial court did not err in awarding McElroy a fee from the proceeds derived from the wrongful-death claim. Rodgers also argues that the fee of $15,750 that the trial court awarded to McElroy was excessive. The fee is 9% of the $175,000 in wrongful-death proceeds collected. Rodgers did not file a post-judgment motion challenging the amount of the award. “The long-established precedent in Alabama caselaw is that an appellate court cannot reverse a trial court’s judgment on an argument that was not first presented to the trial court. See Belcher v. Belcher, 18 So.3d 946, 948 (Ala.Civ.App.2009) (<HOLDING>); Smith v. Equifax Servs., Inc., 537 So.2d 463, Holdings: 0: recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review 1: holding that defendant failed to raise a constitutional issue at trial and thus failed to preserve the issue for appellate review 2: holding party must make timely and specific objection at trial to preserve issue for appellate review 3: holding to preserve an issue for appellate review the issue must have been raised to and ruled upon by trial court and a party may not argue one ground for objection at trial and another ground on appeal 4: holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court either at trial or in his postjudgment motion
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prescription exception in the definition of the offense. Nor do we believe that the “except as otherwise provided” language is so “incorporated with the language describing and defining the offense” that all other potential exceptions or exemptions become elements of the offense. In light of the Segovia decision, and the subsequent enactment of I.C. § 37-2745, we deem it clear the Legislature intended that absence of an “exemption or exception,” such as a “valid prescription” or other “authority” to deliver, shall not be an element of the crime of possession or delivery of a controlled substance. Rather, the existence of a valid prescription or other “exemption or exception” must be placed in issue by the accused. Compare, e.g., State v. Huggins, 105 Idaho 43, 665 P.2d 1053 (1983) (<HOLDING>). This leaves the instruction as given. We Holdings: 0: holding that the crime of rape is a lesser included offense of the crime of felony murder in the perpetration of rape and that since the latter crime included all of the elements of the former consecutive sentences were therefore improper 1: recognizing a privacy interest in the intimacies of the marital relationship 2: holding that evidence of uncharged incest with the same victim is admissible to illustrate the relationship existing between the defendant and the victim 3: holding that mistake as to the age of the victim is no defense to statutory rape 4: holding that elements of rape do not include proof of the absence of a marital relationship between the accused and the victim
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collective knowledge of each individual Defendant and the Enterprise as a whole. Accordingly, the Government has met its burden to show that Defendants acted with the specific intent to defraud or deceive. a. Defendants Are Liable for the Acts of Their Officers, Employees, and Agents Each Defendant is liable for the acts of its officers, employees, and agents. Because a corporation can act only through its agents, it may be held liable for the acts of its officers, employees, and other agents in certain circumstances. Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); New York Cent & Hudson R.R. v. United States, 212 U.S. 481, 494, 29 S.Ct. 304, 53 L.Ed. 613 (1909) (<HOLDING>); R.R. Co. v. Hanning, 82 U.S. 649, 657, 15 Holdings: 0: holding that a corporation is held responsible for acts not within the agents corporate powers strictly construed but which the agent has assumed to perform for the corporation when employing the corporate powers actually authorized and in such eases there need be no written authority under seal or vote of the corporation in order to constitute the agency or to authorize the act 1: recognizing that agents of a corporation may be held criminally responsible for crimes committed in the name of the corporation 2: holding that corporation will be liable under false claims act if agent acts with apparent authority even if corporation received no benefit from agents fraud 3: holding that the funds in the privatelyheld corporations account belonged to the corporation not to the individuals who owned the corporation and expressly stating that directors officers and shareholders of a corporation do not have standing to claim an ownership interest in corporate property in their individual capacities they must state a claim in the corporate name 4: holding that a corporation could be served by delivering a copy of the subpoena to an officer or managing or general agent of the corporation and that the agent could be an individual a partnership or another corporation
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1907 ("[T]he forum clause should control absent a strong showing that it should be set aside .... [the resisting party should] clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.”). 77 . See, e.g., Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 130, 740 N.E.2d 195 (2000) (quoting The Bremen, 407 U.S. at 18, 92 S.Ct. 1907). 78 . Lambert, 983 F.2d at 1116. 79 . Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 17 (1st Cir.2009). 80 . Id. (quoting 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). 81 . 1st Am. Compl., Ex. B [# 15]. 82 . 1st Am. Compl., Ex. B [# 15]. 83 . See, e.g., Lambert, 983 F.2d at 1112-13 (<HOLDING>); Action Corp. v. Toshiba Am. Consumer Prods. Holdings: 0: holding that remand to state court was appropriate where mandatory forumselection clause placed venue in a specified county of the state 1: holding that a forumselection clause was mandatory where it stated that for any action brought to enforce such terms and conditions venue shall lie exclusively in clark county washington 2: holding that a forumselection clause was mandatory because it provided for exclusive jurisdiction and venue in a particular court 3: recognizing that shall will and must are all mandatory terms 4: holding clause reading the parties agree that in any dispute jurisdiction and venue shall be in california to be mandatory
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that failure to do so would result in revocation. In United States v. Salas-Camacho, 859 F.2d 788 (9th Cir.1988), this court held that a false statement remains material when a declarant recants it only after he is confronted with suspicion on the part of a government agent and is faced with an imminent inspection that would reveal the truth. Id. at 791-92. Bound by that precedent, we affirm Johnson’s conviction on Count Five. For similar reasons, we hold that the jury instructions regarding Count Five adequately reflected the law as set forth in Salas-Camacho and, therefore, were not erroneous. The prosecutor’s statements in closing argument regarding the officers’ lack of motivation to lie constituted improper vouching. See United States v. Combs, 379 F.3d 564, 574-76 (9th Cir.2004) (<HOLDING>). However, we conclude that in this case such Holdings: 0: holding that the prosecutors question to the defendant about a prior unrelated offense was improper 1: holding that while not reversible error a prosecutors vouching for a witness was improper and should be avoided on retrial 2: holding that prosecutors remark vouching for credibility of government agent was certainly improper 3: holding the prosecutors argument if it was there they can bring it to you was not an improper jury argument 4: holding that a prosecutors argument about the special agents disincentive to lie was impermissible vouching
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of the discovery rule, the statute of limitations is tolled until an injured party discovers or reasonably should discover, (1) that she has been injured and (2) that her injury has been caused by another party’s conduct). While knowledge of the cause of injury is pertinent to determining the date on which the statute of limitations begins to run, it has no special relevance to determining the date an insurance policy is triggered, unless specifically required by the language of the applicable policy of insurance. Compare Wilson, 964 A.2d at 362 n. 3 (explaining that tolling the statute of limitations until the cause of injury is reasonably discoverable is necessary to protect the litigation rights of persons who suffer latent injuries) with Kvaerner Metals Div., 908 A.2d at 897 (<HOLDING>). Here, the language of the Penn National Holdings: 0: holding that in interpreting a contract the actual purpose and intent of the parties must be derived 1: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 2: recognizing that in interpreting a statute our primary purpose is to ascertain the intent of the legislature 3: holding that the primary goal when interpreting an insurance contract is to ascertain the intent of the parties as manifested by the language of the specific insurance policy 4: holding that an arbitration award involving the appellants challenge to the failure of the insurance company to ensure that he had read and understood a signed waiver and to attach the waiver to the insurance policy as contrary to public policy is not reviewable by the courts because there is no challenge to a provision or term of the policy the appellant never claimed that the waiver or policy language itself was contrary to the public policy of this commonwealth
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would help solve the crime.... ” Motive is one of the permissible purposes listed in Rule 404(b) not because the “why” helps solve a crime, but because it is highly relevant to show that a defendant had a motivation to commit the crime for which he is being charged. In a case like this, where Lee is asserting that he never had a gun on the day in question, it is important to know that he had a personal motivation to possess a gun. Indeed, someone who is involved in an ongoing feud — a feud during which guns have been used — is far more likely to have a gun in his possession than someone who is not involved in such a feud. United States v. Lee, 612 F.3d 170, 187 n. 19 (3d Cir.2010) (citation omitted and emphasis added); see also United States v. Harris, 587 F.3d 861, 868 (7th Cir.2009) (<HOLDING>); United States v. Weems, 322 F.3d 18, 25 (1st Holdings: 0: holding that evidence of gang involvement was properly admitted to prove motive for participating in the alleged crimes 1: holding appellate counsel did not provide ineffective assistance of counsel by failing to appeal district courts decision to admit evidence that defendant was a member of a gang because gang membership was relevant to show motive and intent 2: holding the district court properly admitted expert testimony on defendants active gang membership 3: holding that evidence of gang membership was admissible because the testimony also reflected harriss motive for possessing these particular firearms 4: holding gang membership admissible because it did not substitute for evidence of actual participation in the drug distribution conspiracy
|
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is led around by others? Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? Can the person hide facts or lie effectively in his own or others’ interests? Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Id. at 8-9. Although a jury determined the issue of mental retardation in this case, it is important to note at the outset that a jury determination of mental retardation is not required. See Schriro v. Smith, 546 U.S. 6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005) (<HOLDING>); see also Briseno, 135 S.W.3d at 9 (holding Holdings: 0: holding that the ninth circuit erred in requiring arizona courts to conduct a jury trial to resolve mentalretardation claim 1: holding trial court erred in giving jury instruction requiring scienter in franchise fraud case 2: holding that the ninth circuit erred because the state appellate courts conclusion that one incorrect statement in jury instructions did not render the instructions likely to mislead the jury was not unreasonable 3: holding that the sixth circuit erred in finding that the state courts jury instructions were contrary to clearly established federal law 4: holding that the ninth circuit erred by failing to defer to the bias reasonable interpretation of the ina
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v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981), included as a reason for its denial of the defendant’s motion to strike certain errata sheets that the original answers to the deposition would remain part of the record and could be read at trial, stating that “[t]he witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he changed his testimony.” In addition, district courts have provided another safeguard against abuse by allowing the deposing party to reopen the examination if the changes render the deposition useless or incomplete without additional testimony. See Tingley, 152 F.Supp.2d at 120 (<HOLDING>); Perkasie Indus. Corp. v. Advance Transformer, Holdings: 0: holding that cjourts generally construe rule 30e broadly to permit any changes to the deposition even those having the effect of contradicting the original answers regardless of how unconvincing the deponents explanation for making the changes might be 1: holding that where a jury fails to return unanimous answers to some of the questions on a special verdict form the trial judge can enter judgment on the basis of the unanimous verdicts if they are dispositive of the case 2: holding that in light of the trial courts inquiry the defendants verbal responses and the defendants answers to the questions on the transcript of plea the trial court did determine that defendant was fully informed of the consequences of his choice to enter an alford plea 3: holding to prove possession the state must show that a defendant possessed a certain substance the substance was illegal and he had knowledge of the presence of the substance 4: holding that rule 30e allowed deponent to change the substance of his answers but reconvening the depositions for the limited purpose of inquiring into the reasons for the changed answers and where the changes originated
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(although they certainly may be persuasive).” Mathai v. Warren, 512 F.3d 1241, 1248 (10th Cir.2008). “For purposes of most bankruptcy proceedings, property interests are created and defined by state law. Once that state law determination is made, however, we must still look to federal bankruptcy law to resolve the extent to which that interest is property of the estate” under § 541. Parks v. FIA Card Servs., N.A., 550 F.3d 1251, 1255 (10th Cir.2008) (citations and quotations omitted); 11 U.S.C. § 541(a)(1). We first consider whether and to what extent Debtors have an interest in the SARs under Kansas law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); see, e.g., Williamson v. Hall, No. KS-08-088, 2009 WL 4456542, at *8 (10th Cir. BAP Dec. 4, 2009) (<HOLDING>). We then consider whether that interest Holdings: 0: holding that a debtors interest in a tenancy by the entirety is property of the bankruptcy estate under section 541 because of debtors undivided present interests in the use possession income and right of survivorship of the property 1: holding contingent prepetition property rights were sufficiently rooted in the prebankruptcy past to be part of the bankruptcy estate under 11 usc 541 2: holding that pay on death accounts were not part of the bankruptcy estate under 541 because under kansas law debtor had no property interest in the accounts until the death of the owner 3: holding inmates possess a constitutionally cognizable property interest in the interest earned on money held in their prison accounts 4: holding that because prisoner did not have private property interest in his prison accounts there could be no unconstitutional taking
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the defendants exported them intact for reuse in monitors. And he did so without providing any explanation of what constitutes “processing” or how it impacts the original intended purpose requirement. Cf. United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir.2013) (noting that while an expert may refer to the law in expressing an opinion, testimony raises concerns “when an expert uses a specialized legal term and usurps the jury’s function”); McIver, 470 F.3d at 552 (expert testimony’s overreliance on terms that “have a separate, distinct and specialized meaning in the law different from that present in the vernacular” risks crossing the line into unhelpful and inadmissible testimony (internal quotation marks omitted)). Thus, the district court erred, by permitting Mr th Cir.1991) (<HOLDING>). Because the defendants claim Mr. Smith’s Holdings: 0: holding that the probative value of contested evidence far outweighed any danger of unfair prejudice where any potential unfair prejudice was cured by a limiting jury instruction 1: recognizing that a limiting instruction has the potential to cure any prejudice from the erroneous admission of evidence 2: holding improper admission of extrinsic evidence may be cured by adequate limiting instruction 3: holding that written instructions did not cure erroneous oral instruction 4: holding potential for unfair prejudice related to evidentiary issue dispelled by the circuit courts limiting instruction to the jury
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purposes of the EAJA, and whether the Government’s position was “substantially justified” is uncontested. The primary issue in this case is whether Murkeldove and the Vinning Plaintiffs incurred fees as contemplated by the EAJA. Here, the parties entered into contingency-fee agreements with their attorneys for the payment of an EAJA award. Thus, as a threshold matter, we must determine whether contingency-fee agreements are allowed under the EAJA. The Commissioner and Plaintiffs agree that Plaintiffs have incurred fees, and our analysis in United States v. Claro, 579 F.3d 452 (5th Cir.2009), supports this determination. The plaintiff in Claro sought attorney’s fees and expenses pursuant to the Hyde Amendment, which incorporates the requirements articulated in section 2412 4th Cir.1992) (<HOLDING>); Phillips v. Gen. Servs. Admin., 924 F.2d Holdings: 0: holding parties agreement provided clear contractual justification for the award of costs and expenses including attorneys fees to the prevailing party 1: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 2: holding that under the eaja a prevailing party with an unconditional right to be indemnified for his legal expenses by a solvent third party had not incurred attorneys fees 3: recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea 4: holding that under the eaja a litigant did not incur fees when his former employer agreed to pay his legal fees and expenses
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a contributory negligence defense would absolve such providers from tort responsibility in the event of medical negligence and thus operate to undermine substantially such providers’ duty of reasonable care. Numerous other jurisdictions agree that, where a patient seeks medical treatment for a condition that may have arisen in whole or in part from the patient’s own negligence, such negli Dist.Ct.App.1975) (“[C]onduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment ... simply is not available as a defense to malpractice which causes a distinct subsequent injury — here, the ultimate injury, wrongful death”). But see Krklus v. Stanley, 359 Ill.App.3d 471, 480, 295 Ill.Dec. 746, 833 N.E.2d 952, 960 (2005) (<HOLDING>) (quotation marks omitted). The convergence of Holdings: 0: holding that the absence of privity does not constitute a policy reason for not imposing liability where negligence is a substantial factor in causing the harm alleged 1: holding that a motion for rule 37 sanctions should be promptly made thereby allowing the judge to rule on the matter when it is still fresh in his mind and that the motion should normally be deemed waived if it is not made prior to trial 2: recognizing the general rule that a property owner is not liable for the negligence of an independent contractor 3: holding that the obviousness of a danger is a factor for comparative negligence not a bar to recovery 4: recognizing an exception to the general rule that the patients conduct prior to treatment should not be considered in assessing damages holding that comparative negligence applies when the plaintiffs negligence is a legally contributing cause of his harm if but only if it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it
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requested are. reasonable in light of the complexity of the litigation and the number of counsel involved, and are therefore approved by the Court. Linney v. Cellular Alaska P’ship, No. C-96-3008 DLJ, 1997 WL 450064, at *7 (N.D. Cal. July 18, 1997). The Court does not find this case persuasive in light of its cursory discussion and the more recent and ERISA-specific authority cited above. The other three cases cited by Plaintiffs, ECF No. 153 at 19-20, support an award of non-taxable costs as part of a reasonable attorneys’ fee, but expert fees were not awarded—or addressed—in any of those cases. Redland Ins. Co., 460 F.3d at 1258-59 (allowing recovery in ERISA case of “reasonable charges for computerized research”); Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577 (9th Cir. 2010) (<HOLDING>); Langston v. N. Am. Asset Dev. Corp. Grp. Holdings: 0: holding that postage charges and telecopy charges are not taxable costs 1: holding that federal express costs telephone expenses and postage expenses did not qualify as taxable costs 2: holding that 1920 does not authorize taxing mediation fees as costs 3: holding that mediation costs are not compensable 4: holding that fair credit reporting act allows nontaxable costs and remanding to district court to consider whether to award claimed nontaxable costs which included the cost of postage facsimiles travel mediation services and video conferencing services used in depositions
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employed by American at Logan, seven skycaps were employed by G2 at Logan, one skycap had formerly been employed by G2 at Logan, and one skycap was employed by American in St. Louis, Missouri. 2 . The district court permitted only seven of the nine Logan skycaps to pursue both theo fies at trial. During discovery, two skycaps asserted their privilege against self-incrimination to withhold their tax records; those two skycaps were precluded from presenting evidence of damages that would have been required to make out a claim for tortious interference. The district court also made clear to the jury that no duplicative recovery would be permitted for skycaps who prevailed on both theories. 3 . See Brown v. United Air Lines, Inc., 656 F.Supp.2d 244, 249-51 (D.Mass.2009) (Gertner, J.) (<HOLDING>); Travers v. JetBlue Airways Corp., No. Holdings: 0: holding tips law preempted 1: holding that the plaintiffs state law claims are preempted by federal law 2: holding the state law claims were not preempted 3: holding that state law claim regarding breach of settlement agreement was preempted by federal labor law 4: holding misrepresentation claim to be preempted
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in the English Court, and did not dispute its jurisdiction over him, but did raise numerous defenses during the English Action. The English Court ruled against Mullin on each of the defenses he asserted against his obligation to pay the Equitas Premium, and entered judgment in Lloyd’s favor on March 11, 1998 (the “English Judgment”). To date, the English Judgment remains unsatisfied, and led to the instant matter. On March 8, 2002, Lloyd’s filed its Complaint in this Court, seeking enforcement of the English Judgment against Mullin. Lloyd’s moved for summary judgment thereafter, and the motion is now ripe for a decision. This Court’s jurisdiction is premised on diversity of citizenship, and Pennsylvania law governs. See 28 U.S.C. § 1332; Choi v. Kim, 50 F.3d 244, 248 n. 7 (3d Cir.1995) (<HOLDING>). II. STANDARD OF REVIEW ON SUMMARY JUDGMENT Holdings: 0: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 1: holding that federal courts must apply state substantive law in diversity cases 2: holding that state substantive rules of decision apply in federal diversity cases 3: holding in diversity cases without any federal question state law governs district courts determination of whether to recognize a foreign country judgment 4: holding that the declaratory judgment act as opposed to state law governs cases removed on the basis of diversity jurisdiction under an erie analysis
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[
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himself planned to do so.” Id. at 13,120 S.Ct. 1942. The Court carefully noted, however, that it did “not address whether a bankruptcy court can allow other interested parties to act in the trustee’s stead in pursuing recovery under § 506(c).” Id. at 13 n. 5, 120 S.Ct. 1942. Noting the “practice of some courts of allowing creditors ... a derivative right to bring avoidance actions when the trustee refuses to do so, even though the applicable Code provisions mention only the trustee,” the Court explained that this practice “ha[d] no analogous application here, since [Hartford] did not ask the trustee to pursue payment ... and did not seek permission from the Bankruptcy Court to take such action i enics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 580 (3d Cir.2003) (en banc) (<HOLDING>). Two other circuits have continued to approve Holdings: 0: holding that bankruptcy courts can authorize creditors committees in chapter 11 proceedings to sue derivatively to avoid fraudulent transfers for the benefit of the estate notwithstanding hartford underwriters 1: holding that the purpose of the bankruptcy codes avoidance provisions is to prevent a debtor from making transfers that diminish the bankruptcy estate to the detriment of creditors 2: holding that derivative standing is available to a creditor to pursue avoidance actions when it shows that a chapter 7 trustee or debtorinpossession in the case of chapter 11 is unable or unwilling to do so notwithstanding hartford underwriters 3: holding that a creditors security was preserved notwithstanding the bankruptcy of the debtor 4: holding that the transfers at issue were not fraudulent transfers because they did not diminish the debtors estate
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violation of petitioner’s right to a speedy trial where the lower court would have rejected claim as merit-less, and where petitioner could not have shown prejudice because government could have acquired new indictment on the same conduct); Walker v. Bennett, 262 F.Supp.2d 25, 37 (W.D.N.Y.2003) (denying petitioner’s- ineffective assistance of counsel claim premised upon counsel’s alleged failure to move for recovery from a speedy trial where the under lying speedy trial claim “would not have been successful[.]”). “Failure to make a meritless argument does not amount to ineffective assistance.” United States v. Arena, 180 F.3d 380, 396 (2d Cir.1999) abrogated on other grounds by United States v. Sekhar, 683 F.3d 436 (2d Cir.2012) rev’d — U.S.-, 133 S..Ct. 2720, 186 L.Ed.2d 794 (2013). (<HOLDING>). 3. Rule as Applied to Appellate Counsel Holdings: 0: holding the defendant did not demonstrate a denial of his sixth amendment right to a speedy trial where even though the delay was substantial and the defendant was detained pretrial for three years the fault for the delay was shared and the defendant continued to request continuances following his assertion for the right to a speedy trial 1: recognizing in a case where the court sua sponte reduced the attorneys fee request that the district court has discretion to reduce the amount of the fee request and stating when defense counsel fails to do so the district court should not reward the defendants by denying the plaintiffs counsel an opportunity to defend his claim against specific challenges whatever their source 2: holding defendants right to counsel not violated despite district court denying pretrial request by the defendant to discharge his attorney where request was made on eve of trial and was openly part of attempt to have the district judge recuse himself and delay trial 3: holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion 4: holding that trial court erred in denying defendants request to allow standby counsel to conduct voir dire where there was no indication that the trial court considered the koehler factors or that granting the request would have disrupted or delayed the trial
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the application of the doctrine of laches, the prejudice alleged by plaintiff simply does not match up to defendant having been dispossessed of her home and belongings without plaintiffs compliance with its procedural notice obligations. In these circumstances, where plaintiff cannot demonstrate compliance with the procedural requirements precedent to a valid mortgage foreclosure action, a conclusion to the contrary in respect of the applicability of the doctrine of laches lacks rationality, inexplicably departs from established policies, and rests, therefore, on an impermissible basis. Thus, despite the deference rightly owed to the Chancery Division in this context, its decision cannot be sustained. See, e.g., Assoulin v. Sugarman, 159 N.J.Super. 393, 397, 388 A.2d 260 (App.Div.1978) (<HOLDING>); Orange Land Co. v. Bender, 96 N.J.Super. 158, Holdings: 0: holding that where property subject to the irss timely filed lien is sold during a nonjudicial sale and the irs is not given notice of the sale the sale of the property is made subject to and without disturbing the lien 1: holding that failure to comply with rule requiring notice of sheriffs sale requires voiding of sale 2: holding that failure of irs to provide statutory notice of sale caused sale to be voidable ab initio 3: holding that a failure to comply with the foreclosure statutes invalidates a foreclosure sale 4: holding in the analogous context of choiceoflaw in relation to the sale of personal property that compensation for arranging the sale is assessed apart from underlying sale
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that her constitutional injury resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to condonation or tacit authorization .... ” Rodríguez-García v. Miranda-Marin, 610 F.3d 756, 768 (1st Cir.2010) (internal quotation marks and citation omitted). A plaintiff can either show that the particular defendant personally participated in the deprivation of his or her rights, or can indirectly show that defendant “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause other to inflict the constitutional injury.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 51 (1st Cir.2009) (quoting Gutierrez-Rodriguez, 882 F.2d at 561); see also Penalbert-Rosa v. Fortufio-Burset, 631 F.3d 592, 594-95 (1st Cir.2011) (<HOLDING>). Defendants maintain Plaintiffs have failed to Holdings: 0: holding that witness was not an accomplice in distributing marijuana to himself 1: holding a named defendant could be someone that participatedeither as a perpetrator or an accomplice in the decision to dismiss plaintiffs 2: holding that motion to dismiss cannot be treated as summary judgment 3: holding that the district courts decision to dismiss will be affirmed unless it has abused its discretion 4: holding that appellants could have amended as of right after they received the motion to dismiss and prior to the trial courts decision
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included the following: Base Offense Level for 1.6 Kilograms of 38 Cocaine Base Firearms +2 Organizer Roll +4 Adjustment for Acceptance of Responsibility -3 Total Offense Level 41 At this offense level, the district court possessed the discretion to sentence McKnight to 360 months, taking into consideration his guilty plea and zero criminal history points (category I). However, at sentencing the government sought a two-point enhancement for obstruction of justice based upon McKnight’s alleged attempt to convince a co-defendant to withdraw his guilty plea. This particular claim was not included voluntarily pleaded guilty to the charge, and that he failed to show a “fair and just” reason for withdrawal of his guilty plea. See United States v. Yell, 18 F.3d 581, 582 (8th Cir.1994) (<HOLDING>). McKnight next claims that the plea agreement Holdings: 0: holding that a criminal defendant must provide a fair and just reason to support withdrawal of his guilty plea even when that plea has not yet been accepted by the district court 1: holding that in passing 21 usc 846 congress left the common law burden of proving the affirmative defense of withdrawal on the defendant rather than requiring the government to prove nonexistence of withdrawal 2: holding that defendant was responsible for the delay from the withdrawal of his guilty plea 3: holding that the defendant has the burden of proving a fair and just reason for withdrawal of a guilty plea 4: holding that the government was not responsible for delay from withdrawal of guilty plea
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through a post-verdict review, rather than with pre-verdict jury instructions. Similarly, Williams’ holding is inapposite in the context of the reasonable relationship inquiry. Williams mandates that juries receive proper instruction on harm to nonparties, an instruction that is essential if the jury is to calculate the proper amount of punitive damages. But the reasonable relationship inquiry is markedly different from the jury’s determination of a specific amount of punitive damages; its purpose is to aid in ascertaining the constitutional ceiling. Unlike the initial damage calculation, determining the constitutional ceiling on a punitive damage award is a question of law, properly reserved for the court. See Bains LLC v. Arco Prods. Co., 405 F.3d 764, 777 (9th Cir.2005) (<HOLDING>). Although states are certainly free to Holdings: 0: holding that whether a previous conviction is a crime of violence is a question of law not of fact as it must be determined by interpreting 4b12 1: holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court 2: holding that when a prr sentence is determined to be illegal the defendant is entitled to a de novo resentencing 3: recognizing that determination of appropriate sentence to be imposed should ordinarily be determined by the trial court on remand rather than at the appellate level 4: holding state of the law must be determined at time of challenged action
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that the required TILA disclosures were not made. Accordingly, the court limits its analysis of Plaintiffs' claim for rescission to the allegation that the required copies of the notice of their right to rescind were not provided. 9 . Courts are split over whether a borrower can recover damages and attorney's fees against an assignee who fails to honor a valid rescission notice. Compare Brodo v. Bankers Trust Co., 847 F.Supp. 353, 359 (E.D.Pa.1994) ("Neither § 1641 nor any other section provides for a statutory penalty or an award of attorney’s fees to a plaintiff should an assignee fail to respond to a valid rescission notice. Rescission is therefore the only remedy [] to which plaintiff is entitled.”) with Fairbanks Capital Corp. v. Jenkins, 225 F.Supp.2d 910, 916-17 (N.D.Ill.2002) (<HOLDING>). This court has not found a Fourth Circuit Holdings: 0: holding that plaintiffs are entitled to attorneys fees for time spent litigating the fees issue on appeal under title viis attorneys fee provision 1: holding that attorneys fees are necessaries in a civil suit to recover money or property for the minor 2: holding party not entitled to recover attorneys fees without also recoveringdamages for breach of contract in part because attorney fees are in the nature of costs not damages 3: holding that although attorneys fees are usually not recoverable unless permitted by statute or contract contractual or statutory authorization was not necessary in a malpractice claim to recover attorneys fees and costs as damages 4: holding that plaintiffs are entitled to recover attorneys fees against an assignee who wrongfully refuses to rescind and suggesting that such plaintiffs are also probably entitled to recover statutory damages
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“,[t]he vital test in determining whether an agency relationship exists is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.” Id. at 636, 532 S.E.2d at 257 (internal quotation marks omitted). Specifically, “ ‘the principal must have the right to control both the means and the details of the process by which the agent is to accomplish his task in order for an agency relationship to exist.’ ” Wyatt v. Walt Disney World Co., 151 N.C. App. 158, 166, 565 S.E.2d 705, 710 (2002) (emphasis added) (quoting Williamson v. Petrosakh Joint Stock Co. of the Closed Type, 952 F. Supp. 495, 498 (S.D. Tex. 1997)). See also Hoffman v. Moore Reg’l Hosp., Inc., 114 N.C. App. 248, 251, 441 S.E.2d 567, 569 (<HOLDING>), disc. review denied, 336 N.C. 605, 447 S.E.2d Holdings: 0: holding that the principal must have control and supervision over the details of the agents work 1: holding that a principal does not have an action against his agent for indemnification based on the agents misrepresentations because the principal was not blameless in the misrepresentations made to the third parties 2: holding a principal liable for its sales agents misrepresentations 3: recognizing that enhancement requires control over a participant in the scheme not only control over the scheme itself 4: holding that the principal is liable for an agents acts committed within the scope of the agents employment
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B The government argues, in the alternative, that even if § 216(b) gives the district court discretion to impose a penalty in an amount less than the unlawful payment, the court “abused its discretion in considering evidence of POGO’s good faith” without “holding a fair hearing to provide the Government with the opportunity to supplement the record” on that issue. Gov’t Br. 57-58. We note that the government never expressly sought such a hearing, but rather described to the court the evidence it would proffer if the court were to hold one. U.S. Resp. to [POGO’s] Req. that the Court Impose No Penalty Upon the Organization at 6-7 (Feb. 29, 2008). In any event, because we are remanding the case for a new trial, the government will have an opportunity to request a penalty hear .Cir.1985) (<HOLDING>). But see United States v. George, 386 F.3d Holdings: 0: holding that 18 usc 1919 did not implicitly repeal 18 usc 1001 1: holding that 18 usc 1920 the misdemeanor false statement provision of the federal employees compensation act feca preempted 18 usc 1001 because 41 of feca expressly repealed all inconsistent statutes 2: holding that good faith is a defense to the willful filing of false statements under 18 usc 1001 3: holding that 18 usc 1001 which criminalizes making false statements to a united states agency is specifically made applicable to the postal service by 39 usc 410b2 4: holding that a good faith belief that a firearm is inoperable is not a viable defense to 18 usc 922g
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“AGENCY shall make a deposit of probable compensation with the County Treasury in the amount of $3,091,000,” at which time, pursuant to section 1255.410, it would be empowered to take exclusive possession of the property. Mesdaq did not file a motion seeking determination or redetermination of the deposit amount under section 1255.030, subdivision (a). Immediately prior to trial, the court determined that the date of trial, not the statutorily determined date of deposit, would be the date of valuation. The court reasoned rising property values and delays in concluding the proceedings necessitated a later valuation date to enforce the constitutional mandate of just compensation, citing Saratoga Fire Protection Dist. v. Hackett (2002) 97 Cal.App.4th 895, 905-906 [118 Cal.Rptr.2d 696] (<HOLDING>). The parties and the trial court recognized Holdings: 0: holding that the construction of a median in a roadway that causes traffic traveling to and from an abutting property to travel a cireuitous route does not constitute a compensable taking under indiana eminent domain law 1: holding that where necessary to enforce the california constitutions requirement of just compensation for a taking courts can disregard statutory eminent domain requirements 2: holding that a termination of a government contract does not constitute a taking of the plaintiffs property without just compensation or without due process of law 3: holding ripe a claim for a pre1987 taking because prior to first english california law did not permit landowners to seek compensation for a regulatory taking through an action in inverse condemnation 4: holding that the termination of a billboard lease according to its terms was not a taking of property by eminent domain
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the ICF/[DD] program,” and from “paying providers for services at ICF/[DD] cluster facilities in a manner other than as provided for in a rate plan” that “pay[s] to each provider of ICF/[DD] services at cluster facilities the full Medicaid rate for that facility” and affords “each provider at cluster facilities all rights and protections accompanying a rate plan governing ICF/ [DD] facilities.” The injunction order specifically declined to modify the State’s existing plan by imposing new rates, but rather permitted Defendants themselves to file a new plan “which complies with the substantive requirements of’ the Medicaid Act. This Circuit has held repeatedly that “obey the law” injunctions are unenforceable. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir.1999) (<HOLDING>); Payne v. Travenol Labs., Inc., 565 F.2d 895, Holdings: 0: holding that injunction which prohibited municipality from discriminating on the basis of race in its annexation decisions would do no more than instruct the city to obey the law and therefore was invalid 1: holding that a defendant may not be convicted of multiple offenses under 922g on the basis that he belonged to more than one prohibited class or that he simultaneously possessed more than one firearm 2: holding that the court properly refused to instruct on an issue for which no evidence was offered 3: holding that the failure to instruct on a definition or to amplify an element is not a failure to instruct on an essential element 4: holding that the failure to properly instruct the jury on the burden of proof required a new trial
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1996. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992) , and we affirm. We affirm the district court’s finding that the tax liabilities for 1989, 1991 and 1992 are res judicata because the tax court adjudicated these deficiencies in a prior proceeding. See Baker v. Internal Revenue Service (In re Baker), 74 F.3d 906, 909-10 (9th Cir.1996) (per curiam) (“a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action”). We uphold the district court’s deficiency findings for 1993 through 1996, and its penalty finding for 1992, because the government submitted Forms 4340 in support of these determinations, see Hughes, 953 F.2d at 535 (<HOLDING>), and the Collinses did not produce evidence Holdings: 0: holding that the color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty 1: holding that form 4340 shows in the absence of contrary evidence that notices and assessments were properly made 2: holding that official certificates such as forms 4340 can constitute proof of the fact that the assessments were actually and properly made 3: holding that as a matter of evidence juries may properly consider prior oral and written statements for the purpose of defining the contract that was actually made 4: holding that form 4340 is probative evidence in and of itself and shows in the absence of contrary evidence that notices and assessments were properly made
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Blackstone’s Commentaries make clear that the legislature could compel a property owner to give up his property but only “by giving him full indemnification and equivalent for the injury thereby sustained.” 1 William Blackstone, Commentaries at 139. {44} The New Mexico Constitution addresses the power of eminent domain in two provisions. Article II, Section 18 provides that “[n]o person shall be deprived of life, liberty or property without due process of law,” and Article II, Section 20 provides that “[pjrivate property shall not be taken or damaged for public use without just compensation.” The “or damaged” provision of Section 20 serves to allow compensation even when an actual taking has not occurred. Bd. of County Comm’rs v. Harris, 69 N.M. 315, 317, 366 P.2d 710, 711 (1961) (<HOLDING>). But see Pub. Serv. Co. v. Catron, 98 N.M. Holdings: 0: holding the aggregate value of the land and its improvements is the controlling value 1: holding that sale was appropriate where dividing the property among six parties was difficult because the nature of the land made it impossible to divide it into six equal parcels and the land likely had more value sold as a whole 2: holding plaintiff entitled to depreciation after repairs in determining the vehicles value at the time of the theft allowance must be made for depreciation then accrued 3: holding that a cause of action relative to an asserted de facto condemnation did not arise until physical restrictions to access were effected since until such time the claim was speculative and remote as no compensable injury had occurred thus the mere filing of a highway plan showing a change of grade that would interfere with access did not give rise to a condemnation claim 4: holding that depreciation in land value caused by a material change in a highway grade which made access to the property difficult is compensable
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the loss of housing assistance through the federally-subsidizing program Section 8, because of defendants [sic] fraud on the court.” Compl. ¶ 122. However, in contravention to Rule 9(b), Drawsand fails to identify the “the who, what, when, where, and how” of the alleged fraudulent conduct, Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997), and fails to “set forth an explanation as to why [a] statement or omission complained of was false and misleading,” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994) (en banc). To the extent that Drawsand is attempting to challenge the adverse ruling in the UD action, such claim is barred under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (<HOLDING>). In addition, Drawsand acknowledges in her Holdings: 0: recognizing that 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 1: 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 2: holding rookerfeldman doctrine deprived district court of jurisdiction to review decision of west virginia state bar 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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the ten minutes or so between being awakened and providing consent, Kyer’s mother took that time to compose herself and to listen to the officers explain why they came to her apartment and why they entered it uninvited. By itself, however, this brief duration does not put the attenuation inquiry to an end. It is just one of several considerations. Even a very short duration need not negate the efficacy of a voluntary consent. See, e.g., Seidman, 156 F.3d at 548 (finding a few minute period between entry and consent insufficient to negate consent); Sheppard, 901 F.2d at 1235 (“Even though the time span between the challenged conduct and Sheppard’s consent was short, we cannot find that the second search resulted from the exploitation of the challenged conduct.”); Owen, 453 So.2d at 1207 (<HOLDING>). III. In sum, we hold that the trial court Holdings: 0: holding that although temporal proximity alone may show causation the proximity must be very close and action taken 20 months later suggests by itself no causality at all 1: holding that close temporal proximity is sufficient to establish a prima facie case of retaliation 2: holding that a three to four month period between the protected activity is not enough to show very close temporal proximity 3: holding that consent was valid despite close temporal proximity between the illegal entry and consent 4: holding that a close temporal proximity between a public employees speech and a defendants actions suggested a causal relationship
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Plaintiff Shannon C. Horita appeals the district court’s decision to grant Defendant Kauai Island Utility Cooperative’s motion for summary judgment in this employment-related diversity case. We review de novo the district court’s grant of summary judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008). 1. The district court properly held that Plaintiff had faile f a discriminatory motive until later does not change the outcome under a straightforward application of the statute of limitations. See id. (<HOLDING>). 2. We do not reach Plaintiffs claims of Holdings: 0: holding that the statute of limitations for an employment discrimination lawsuit by a college professor who did not receive tenure began when the college made the tenure decision and communicated that decision to the plaintiff 1: holding that termination is an adverse employment action 2: holding that the only alleged discrimination occurred and the filing limitations periods therefore commenced at the time the adverse employment action was made and communicated to the plaintiff 3: holding that the relevant time is the time of the employment decision 4: holding that although the plaintiff has suffered no adverse employment action she may still raise a claim of discrimination based on the alleged failure reasonably to accommodate her disability
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groups on the basis such groups have not been.shown to share unique attitudes, ideas, or experiences, and therefore, do not constitute a “distinctive group.” E.g., State v. Puente, 69 Ohio St.2d 136, 431 N.E.2d 987, 989 (1982) (considering exemption of doctors, dentists, and lawyers from jury service); Boyd, 867 S.W.2d at 336 (considering systematic exclusion of doctors, lawyers, and the clergy); cf. Commonwealth v. Matthews, 406 Mass. 380, 548 N.E.2d 843, 848 (1990) (considering exclusion of “suburban parents” and “caretakers of adolescent children”). Other courts have skipped the distinctive-group analysis and have simply held the government had a legitimate reason to exclude the occupational group under consideration. E.g., United States v. Terry, 60 F.3d 1541, 1544 (11th Cir.1995) (<HOLDING>), cert. denied, — U.S. -, 116 S.Ct. 737, 133 Holdings: 0: holding that a defendant need not be a member of the excluded group in order to assert a sixth amendment faircrosssection claim 1: holding that fire departments are analogous to police departments in this respect 2: holding routine exclusion of members of fire and police departments did not violate the faircrosssection requirement because it is good for the community that these workers not be interrupted in their work 3: holding that the right of privacy does not extend to sexual behavior that is not purely private that compromises a police officers performance and that threatens to undermine a police departments internal morale and community reputation 4: holding that a defendant may object to the exclusion of members of the defendants own race
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the availability of the MD-2 variety to the public does not undermine Del Monte’s Lanham Act claim. Although the Eleventh Circuit has not addressed this issue, the former Fifth Circuit has held that an unpatented article of commerce is subject to Lanham Act protectio s., Inc., 7 F.3d 1434, 1437 (9th Cir.1993) (stating that, even though plaintiffs unpatented lathes were in public domain, a defendant may be guilty of reverse palming off by modifying plaintiffs product for sale and labeling it with defendant’s name); Roho, Inc. v. Marquis, 902 F.2d 356, 360 (5th Cir.1990) (entertaining reverse palming off claim where defendant copied plaintiffs unpat-ented mattress but ruling for defendant on merits); c.f. Hypertherm, Inc. v. Precision Products, Inc., 832 F.2d 697, 700-01 (1st Cir.1987) (<HOLDING>); G.D. Searle & Co. v. Hudson Pharm. Corp., 715 Holdings: 0: holding that defendant who had copied plaintiffs swath was not liable for reverse palming off where it represented to public that its swaths were interchangeable with those of plaintiff 1: recognizing that the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material 2: holding that defendant who had copied plaintiffs perfume formula had a right to market it under defendants name because it identified to public plaintiffs product as competition 3: holding that the third factor disfavored fair use because the defendant copied a qualitatively substantial portion of the original work even though the defendants copied only approximately 300 words out of the 200000 words in the plaintiffs work 4: holding that plaintiff had established reverse palming off claim against defendant who modified plaintiffs seeds after obtaining them in open corn field
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mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant.... In State v. Casaretto, 818 S.W.2d 313 (Mo.App.1991), the court, referring to § 547-200.2, said: Double jeopardy is an issue which is always raised 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79 (1978), the court held that a defendant who, after the introduction of evidence, deliberately chooses to seek termination of the proceedings against him by a motion to dismiss, unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the State is permitted to appeal and seek reversal of the dismissal. See also United States v. Kehoe, 516 F.2d 78, 86 (5th Cir.1975) (<HOLDING>). We do, therefore, find that this appeal is Holdings: 0: holding that where the evidence offered by the state and admitted by the trial court whether erroneously or not would have been sufficient to sustain a guilty verdict the double jeopardy clause does not preclude retrial 1: holding that the double jeopardy clause bars retrial when the commonwealth intentionally undertakes to prejudice the defendant to the point of the denial of a fair trial 2: holding that a defendant who delays for reasons of trial tactics filing a motion attacking an indictment until after the jury is sworn and some evidence has been heard is not entitled to prevent a retrial on the basis of the double jeopardy clause 3: holding that under monge double jeopardy does not prevent retrial of an aggravating factor for sentencing purposes 4: holding that the granting of a mistrial due to a defect in the wording of the indictment did not prevent retrial even though the mistrial was declared after the jury was impaneled and sworn and over the objection of defendant
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Separately, the Council’s denial of Permit Application 831 is not subject to judicial review under Stanley Municipal Code section 15.04.040.C because a municipal ordinance cannot create a right to judicial review. See Black Labrador Investing, LLC v. Kuna City Council, 147 Idaho 92, 97-98, 205 P.3d 1228, 1233-34 (2009). B. Neither party is awarded attorney’s fees on appeal. The City requests attorney’s fees on appeal according to Idaho Code section 12-117(1). Idaho Code section 12-117 provides, in pertinent part, as follows: Unless otherwise provided by statute, in any proceeding involving as adverse parties a state agency or a political subdivision and a person, the state agency, political subdivision or the court hearing Cnty. Comm’rs, 147 Idaho 660, 214 P.3d 646 (2009) (<HOLDING>). Each of these decisions was issued prior to Holdings: 0: holding that where a zoning board had no authority under state law to take certain actions with respect to a protected property interest a trier of fact could conclude that there was no rational basis for the towns zoning boards actions and that as a result the zoning board violated appellants rights to substantive due process 1: holding that reliance on comprehensive plan as basis for denying conditionaluse permit was improper where zoning ordinance did not list compliance with comprehensive plan as basis for denial 2: holding that a zoning commission was capable of being sued directly under section 1983 because zjoning commissions function legislatively when adopting zoning regulations and holding public hearings for the adjudication of individual petitions for zoning redress 3: holding that the llupa does not provide for judicial review of requests to change zoning or comprehensive zoning plans 4: holding that in the limited circumstances when local zoning authorities actions prohibit personal wireless service the act preempts local zoning law
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more than sufficient to satisfy due process requirements and hence, if the Plaintiffs’ were “unknown” creditors at the time of the Bar Order, their claims are now barred. See New York, 344 U.S. at 296, 73 S.Ct. 299 (in providing notice to unknown creditors, constructive notice of the bar claims date by publication satisfies the requirements of due process); Chemetron Corp. v. Jones, 72 F.3d 341, 348-49 (3d Cir.1995) (“Publication in national newspapers is regularly deemed sufficient notice to unknown creditors, especially where supplemented, as here, with notice in papers of general circulation in locations where the debtor is conducting business”), cert. denied, 517 U.S. 1137, 116 S.Ct. 1424, 134 L.Ed.2d 548 (1996). See, e.g., Brown v. Seaman Furniture Co., 171 B.R. 26 (E.D.Pa.1994) (<HOLDING>); In re Chicago, Milwaukee, St. Paul & Pacific Holdings: 0: holding that evidence of publication in local newspapers precludes defense of lack of notice of receivership 1: holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york 2: holding publication in local and national editions of the new york times sufficient notice to claimant in pennsylvania 3: holding that governments choice to publish notice in the new york times did not violate statutory publication requirements even though publication in the houston chronicle would have been more likely to provide notice to the claimant 4: holding that notice published in the new york times and the wall street journal was sufficient to satisfy due process owed to unknown creditors
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§ 3 (“the word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”); cf. also Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11 Cir.1990); Matter of Guglielmo, 897 F.2d 58 (2 Cir.1990). In this regard, the operation of a motorized jet ski, like a small motor boat, sufficiently implicates traditional maritime activities. Foremost, supra, 457 U.S. at 676, 102 S.Ct. at 2659. As plaintiffs' complaint essentially alleges that decedent was killed as a result of “a collision between two vessels on navigable waters ... [it] properly states a claim within the admiralty jurisdiction of [this] federal court”, id. at 677, 102 S.Ct. at 2659; see also Sisson, supra, 497 U.S. at -, 110 S.Ct. at 2897 (<HOLDING>). It is important to note that this conclusion Holdings: 0: holding that it is the conduct required to obtain a conviction rather than the consequences resulting from the crime that is relevant 1: holding that an indictment that is substantially in the language of the code is sufficient inform and substance 2: holding that because the activity reported did not constitute any form of criminally illegal activity mcarns narrow public policy exception is not applicable in this instance 3: holding that navigation is an example rather than a sole instance of conduct that is substantially related to traditional maritime activity 4: holding that standard of review is a matter of procedural rather than substantive law
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found in Pinkerton v. United States to find that an act is reasonably foreseeable if it is “ ‘a necessary or natural consequence of the unlawful agreement.’ ” United States v. Martinez, 924 F.2d 209, 210 n. 1 (11th Cir.1991) (quoting Pinkerton v. United States, 328 U.S. 640, 648, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946)); see also Gallo, 195 F.3d at 1282 (noting with approval Martinez’s discussion of the Pinkerton definition of “reasonably foreseeable”). The fact that the co-conspirators agreed to a plan that did not involve carjacking or abduction does not preclude the district court from finding that carjacking and abduction were reasonably foreseeable if “the original plan went awry” and the police became involved. United States v. Molina, 106 F.3d 1118, 1121-22 (2d Cir.1997) (<HOLDING>), (“Even if Molina hoped that the original plan Holdings: 0: holding the trial court erred in instructing the jury that it may find the defendant guilty if the jury found the defendant had conspired with the two coconspirators named in the indictment or both of them or others where evidence tended to show a conspiracy between the defendant and some person other than the named coconspirators 1: holding that the district court did not clearly err in finding that the defendant was an organizer or leader under 3blla in part because he recruited coconspirators 2: holding the district court erred by finding an automatic conflict of interest merely because insurer and administrator were the same 3: holding that the district court did not clearly err in finding that the defendant was an organizer or leader under 3blla because the defendant recruited and instructed coconspirators 4: holding that district court erred in finding that shooting was not reasonable foreseeable merely because the coconspirators had agreed not to discharge their firearms
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the language of the superceding indictment compels the conclusion that either Count 1 or Count 6 was premised, in whole or in part, on the facts or circumstances giving rise to the felon-in-possession charge. The question remains, however, whether the government violated the plea agreement when it introduced evidence at trial that Garton was carrying firearms when he was pulled over in Rawlins. Both Officer Ford and Officer Palmer testified about the Rawlins traffic stop, and the firearms themselves were introduced into evidence. A review of the rec ord reveals this evidence was offered to prove that Garton engaged in drug trafficking activities and that he carried a firearm during and in relation to those activities. See United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir.1991) (<HOLDING>). Instruction 30 related to Count 1 and stated, Holdings: 0: holding that uncharged amounts of drugs may be included as relevant conduct even if the defendant never actually possessed or distributed the drugs 1: holding firearms large sums of cash and uncharged quantities of illegal drugs are admissible to show a defendant is involved in the distribution of illegal drugs 2: holding prior acts of illegal drug distribution admissible to show modus operandi knowledge and absence of mistake 3: holding the large quantity of drugs sufficient evidence of intent to distribute 4: holding that the evidence did not plausibly support a buyerseller instruction because overwhelming evidence showed that defendants agreed to import drugs with the intent to distribute them and engaged in repeated transactions of large quantities of narcotic drugs for resale
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separately, Baldwin offers no explanation of how any differences in the NYCHRL standards are material to the evidence in this case, or make her NYCHRL claims viable where her federal and state claims fail. We have considered all of Baldwin’s remaining arguments and find them to be without merit. For the foregoing reasons the judgment of the district court is AFFIRMED. 1 . Because Goddard did not raise the issue as a defense to Baldwin's claim under Title VII, we do not address whether opposition to housing discrimination qualifies as protected activity for a Title VII retaliation claim. See 42 U.S.C. §§ 2000e-2, 20000e-3 (prohibiting retaliation for opposition to employment practices made unlawful by Title VII); of. Wimmer v. Suffolk Cty. Police Dep't, 176 F.3d 125, 134 (2d Cir.1999) Holdings: 0: holding that the plaintiffs reports of his fellow police officers discriminatory treatment of minority citizens was not protected activity under title vii 1: holding that the pittsburgh police department did not illegally terminate an officers hla benefits and that the police department was entitled to a subrogation interest against the officers thirdparty settlement 2: holding that individual employees are not liable under title vii 3: holding police department employees opposition to discrimination by police officers against black citizens did not constitute protected activity under title vii 4: holding that an attorneys letters constitute protected conduct under title vii
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made on a showing of the relevant factors. [Brady, supra, 152 N.J. at 210-11, 704 A.2d 547 (quoting George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 27, 644 A.2d 76 (1994)).] Additionally, as we recently stated in State v. Locurto, 157 N.J. 463, 471, 724 A.2d 234 (1999), an appellate court may not “engage in an independent assessment of the evidence as if it were the court of first instance.” We frequently have observed that findings of fact made by a trial judge “are considered binding on appeal when supported by adequate, substantial and credible evidence,” Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974), and that standard is equally applicable to reviews of administrative decisions, see Close, supra, 44 N.J. at 599, 210 A.2d 753 (<HOLDING>). Accordingly, if in reviewing an agency Holdings: 0: holding that in its review of the irs exercise of discretion the court is limited to a review of the administrative record 1: holding that the convenience of the witnesses has less relevance where the case involved judicial review of an administrative decision 2: holding that scope of review of administrative decision is the same as that for an appeal in any nonjury case 3: holding an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case 4: holding that the proper scope of the review under rule 307 is to review any prior error that bears directly upon the question of whether the order on appeal was proper
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jurisdiction to act.” Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992). “Thus, due and legal service of process is necessary to give a court jurisdiction over a defendant.” Id. Without jurisdiction to act, the orders and judgment of the court are void ab initio. Id. at 521. “In order for the trial court to have jurisdiction in these contempt proceedings, personal service upon [defendant] under the provisions of SDCL 15-6-4 was mandatory. Because this service is absent, jurisdiction is totally lacking.” Matter of Gillespi, 397 N.W.2d 476, 477 (S.D.1986). [¶ 24.] “[T]he failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction.” Ripple v. Wold, 1997 SD 135, ¶15, 572 N.W.2d 439, 443; See also Lekanidis v. Bendetti, 2000 SD 86, ¶ 33, 613 N.W.2d 542, 549 (<HOLDING>). “One may research over 100 years of decisions Holdings: 0: holding that it is well settled that there is no constitutional right to an appeal 1: holding that service of a statecourt summons and complaint after removal to federal court is valid service 2: holding that if service done by certified mail action commenced upon receipt of summons and complaint 3: recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act 4: holding that a defendants actual knowledge that an action is pending or that service has been attempted is not the equivalent of service of summons and will not relieve the plaintiff of its burden or vest the court with jurisdiction
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1038, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Groome Resources, 234 F.3d at 217; Karlin v. Foust, 188 F.3d 446, 468 (7th Cir.1999); St. Croix Waterway Ass’n v. Meyer, 178 F.3d 515, 520 (8th Cir.1999); Kildea v. Electro-Wire Prods., Inc., 144 F.3d 400, 407 (6th Cir.1998); see also Coates v. City of Cincinnati, 402 U.S. 611, 613, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) (striking down a city ordinance barring “conduct ... annoying to persons passing by” on vagueness grounds because, inter alia, the ordinance “did not indicate upon whose sensitivity a violation [would] depend — the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man”). But see Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553 (6th Cir.1999) (<HOLDING>). Moreover, “it is well established that Holdings: 0: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city 1: holding factor b is not unconstitutionally vague 2: holding the phrase open and gross lewdness unconstitutionally vague 3: holding unconstitutionally vague a city ordinance imposing criminal sanctions because its use of the term reasonable to guide law enforcement discretion was not amenable to a limiting interpretation in the unique and everchanging context of open water restrictions 4: holding city could not enforce through administrative adjudication a city ordinance limiting vehicle weight
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in an advisory instead of binding fashion by the sentencing judge in this case.” Id. at 1301. Reasonable probability of a different result means a probability “sufficient to undermine confidence in the outcome.” Id. at 1299 (citation and punctuation omitted). Under the fourth prong, we consider the plain error’s affect on the judicial proceedings and look for such factors as the district judge’s express desire to impose a sentence different than that imposed. Shelton, 400 F.3d at 1333-34. We have consistently held that a sentence even at the low end of the guideline range, standing alone, is insufficient to carry a defendant’s burden demonstrating a reasonable probability of a lesser sentence under advisory guidelines. See United States v. Fields, 408 F.3d 1356, 1361 (11th Cir.2005) (<HOLDING>). Even with the government’s concession that Holdings: 0: 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 1: holding that the fact that a sentence imposed under the prebooker mandatory guideline regime was at the bottom of the mandatory range is not enough to create a reasonable probability that the defendant would have received a different sentence upon resentencing under an advisory guidelines system 2: holding that a defendant met the third prong of plain error analysis demonstrating prejudice resulting from a booker error where the sentencing judge made several statements indicating the mandatory guideline sentence was very very severe and sentenced the defendant at the low end of the guideline range 3: holding that the fact that the defendant was sentenced at the bottom of the mandatory guideline range without more is insufficient to satisfy the third prongs requirement that the defendant show a reasonable probability of a lesser sentence under an advisory guideline system accord united states v cartwright 413 f3d 1295 1301 11th cir2005 4: holding that the fact that the defendant was sentenced to the bottom of the mandatory guidelines range without more was insufficient to satisfy the third prongs requirement that the defendant show a reasonable probability of a lesser sentence under an advisory guideline system
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regulations implementing the VCAA. The petitioners objected to 38 C.F.R. § 3.159(b) on the ground that it was inconsistent with section 5103(a), in part because it did not require VA to provide specific notice to claimants. Paralyzed Veterans, 345 F.3d at 1347. In refusing to hold the regulation invalid for this reason, we stated that “the regulation is clearly consistent with the statute, and its requirements are both reasonable and sufficient.” Id. at 1348. Finally, while we think that section 5103(a) must be interpreted as requiring only generic notice at the outset, even if the statute were ambiguous, we would be required to defer to the VA’s interpretation under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (<HOLDING>). The Secretary of Veterans Affairs has Holdings: 0: holding that a court is not empowered to substitute its judgement for that of the agency 1: holding that chevron deference is due only to a reasonable interpretation made by the administrator of an agency 2: holding that a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency 3: holding that the court may not under the guise of statutory construction rewrite a statutory provision 4: holding that court is not empowered to substitute its judgment for that of the agency
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v. Ferguson, 111 S.W.3d 589, 598 (Tex.App.-Fort Worth 2003, pet. denied). B. Whether Valentina’s petition has a basis in law and fact In her petition, Valentina conceded that she signed the settlement agreement and that the agreement granted McCulloch the ability to sell the homestead. Even a liberal construction of the petition demonstrates that Valentina’s request to enjoin the sale of her homestead has no basis in law or in fact because the petition acknowledges that she signed an agreement permitting the sale, and it does not ask the court to revoke that agreement. Therefore, a rule of law (waiver) bars Valentina’s cause of action to enjoin the sale, and the facts pleaded refute that cause of action. See, e.g., In re Essex Ins. Co., 450 S.W.3d 524, 527 (Tex.2014) (per curiam) (<HOLDING>); Dailey v. Thorpe, 445 S.W.3d 785, 789-90 Holdings: 0: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 1: holding that trial court abused its discretion by denying a motion for rule 11 sanctions without adequate explanation 2: holding trial court abused discretion in denying rule 91a motion where cause of action barred by legal rale 3: holding that bia abused its discretion in denying motion to reopen 4: holding that district court abused its discretion by denying plaintiffs motion to file fourth amended complaint
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and, except in certain enumerated circumstances, should not be released without proper consent." We agree with this reasoning and hold that, for purposes of 1.C. § 5-14-38-4(a)(8), FERPA is a federal law which requires education records to be kept confidential. See also U.S. v. Miami Univ., 294 F.3d 797, 809 (6th Cir.2002) (noting that onee federal funding and the conditions of FERPA are accepted by a school, the school is "indeed prohibited" from systematic non-consensual release of education records). B. Education Records Having determined that FERPA requires education records to be kept confidential, the question becomes whether the Reed materials are encompassed by the term "education records." FERPA defines educati L.Ed.2d 502, with DTH Publ'g Corp., 128 N.C.App. 534, 496 S.E.2d 8 (<HOLDING>), and Miami Univ., 294 F.3d 797 (holding that Holdings: 0: holding that student loans for debtors sons education were for family purposes and should be considered consumer debt 1: holding that student information divulged in undergraduate court proceedings constituted education records 2: holding that university students redacted disciplinary records were not education records 3: holding that municipal court records were admissible under official records or public documents exception 4: holding that records relating to a student court were not education records
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to show Defendant-Appellant Jay Jeffrey Werner (Defendant) could actually pay $20,000 in restitution. The majority goes on, however, to conclude that the order of the first circuit court (the court) “to pay ten percent of his gross income satisfies the [restitution] requirement better than ordering [Defendant] to pay specific monthly payments[,]” majority opinion at 15, because “[depending on [Defendant’s] income, a specific monthly payment could be too much or too little.” Id. I respectfully disagree. First, I think it is premature to determine whether the percentage method of payment is “reasonable” until after the court has sufficiently determined whether Defendant can actually pay $20,000 in restitution. See State v. Johnson, 68 Haw. 292, 297-98, 711 P.2d 1295, 1299 (1985) (<HOLDING>). The method of payment may be governed by the Holdings: 0: holding that it is incumbent upon the trial court to enter into the record findings of fact and conclusions that the manner of payment is reasonable and one which defendant can afford 1: holding that court is not required to state findings of fact and conclusions of law when denying 3582 motion 2: holding because defendant does not argue in his brief that these findings of fact are not supported by evidence in the record this court is bound by the trial courts findings of fact 3: holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence 4: holding that before admitting rule 80324 hearsay statements the trial court must enter in the record appropriate statements rationale or findings of fact and conclusions of law
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issue with the analogy drawn between the district court’s order in this case and the granting of a motion for new trial. 307 S.W.3d at 271 (“The Company argues that the district court’s order should not be appealable because it was like granting a motion for new trial in a case, which is not appealable. But the analogy does not fit.”). Whether the Court can find a more fitting analogy is beside the point: both precedent and the statute itself direct us to treat much of the process as we would a civil trial, and “an order vacating an arbitration award and directing a rehearing is the functional equivalent of an order granting a new trial.” Stolhandske, 14 S.W.3d at 814; see also Bison Bldg. Materials, Ltd. v. Aldridge, 263 S.W.3d 69, 75 (Tex.App.-Houston [1st Dist.] 2006, pet. granted) (<HOLDING>); Thrivent, 251 S.W.3d at 623 (same); Me. Dep’t Holdings: 0: holding order granting motion to withdraw plea to be the functional equivalent of an order granting a new trial because like a postverdict mistrial it returns case to posture it had been before trial 1: holding that an order remanding an arbitration award is not a final appealable order when the order does not also vacate the arbitration award 2: holding that an order vacating an arbitration award and directing a rehearing is the functional equivalent of an order granting a new trial 3: holding that order to vacate award and order new arbitration is the functional equivalent of an order granting a new trial and therefore not subject to direct appellate review quoting stothandske 14 sw3d at 814 4: holding that order vacating award and ordering rehearing is analogous to order granting new trial
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services rendered,” among other requirements. A.R.S. § 6-702(9)(f). If, as JHass argues, the phrase “receiving money,” as it is used in § 6-701(4) means “taking actual possession of,” then this exemption would be redundant; bill paying service providers who merely control, but do not actually possess, debtors’ funds would not constitute debt management companies within the language of § 6-701(4) and would not require a license to operate anyway. Likewise, if the legislature intended “receiving” to mean only actual physical possession, then presumably it would have used “receiving money” in § 6-702(9)(f), or it would have used “take physical possession” in § 6-701(4) to create a mirror image of the rule and the exception. See Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) (<HOLDING>). The legislature did not draft the statutes in Holdings: 0: holding that the word void is not sufficient 1: holding that each provision of a statute must be afforded meaning when possible 2: holding that effect must be given if possible to every clause and word of a statute 3: recognizing that where the statutory language is not ambiguous the plain and ordinary meaning of the statute must be given effect 4: recognizing that each word and phrase of a statute must be given meaning so that no part of it will be void inert redundant or trivial
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International Airport, continue to enjoy the right to join labor organizations and to engage in collective bargaining.” 5 . Specifically, the defendants state: Compare Compl. in Loy I at 6 para. (2) (requesting an order '[djeclaring that the directive issued by Under Secretary Loy prohibiting airport screeners from engaging in collective bargaining or form being represented by an organization for the purpose of engaging in such bargaining deprives plaintiffs of ar that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies.” Id. (quoting McKinley, 705 F.2d at 1114); see Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (<HOLDING>). 8 . In particular, the plaintiffs point out Holdings: 0: holding that if the speech in question does not address a matter of public concern there is no first amendment violation 1: holding that the absence of a motivating desire to address a matter of public concern was not dispositive as to whether the speech addressed a matter of public concern 2: holding public employees conduct and expression in internal investigation of employees at county prosecutors office to expose potential wrongdoing constituted matter of public concern 3: holding that the plaintiffs speech was not a matter of public concern because it did not bring to light actual or potential wrongdoing or breach of public trust on the part of the defendant and others 4: recognizing the need to balance the states interest in fulfilling its responsibilities to the public the extent to which the speech in question involves a matter of public concern and the manner time place and context of the speech
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even if he had preserved it, we do not believe that Barker’s motion was untimely. Barker could not file her motion until the litigation had commenced, and once it had commenced, she did not delay in bringing the matter to the trial court’s attention. Barker filed her original answer forty-five, days after Hendricks filed his original petition, and nine days after that, she moved to disqualify Proctor. The motion was filed well in advance of discovery, and it cannot be characterized as a dilatory trial tactic. See EPIC Holdings, 985 S.W.2d at 52-53 (concluding that the delay in filing the motion to disqualify was not prejudicial because “almost no discovery” had been conducted at the time of filing); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding) (<HOLDING>). We conclude that Barker’s motion was timely Holdings: 0: holding that a year delay in filing a motion to disqualify did not bar the motion where there was no evidence that the motion was inspired by dilatory tactics 1: holding that delay is waived when the defendant makes dilatory pleadings and motions 2: holding that courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic 3: holding courts must adhere to legislative intent when interpreting a statute 4: holding that an accused cannot sustain a speedytrial claim when delay results from his making dilatory pleadings or motions failing to object when a continuance is granted the government
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vehicles. This petition was based on the research of Leon Robertson, who served as an expert for the plaintiffs in this case. The NHTSA ultimately rejected the Wirth petition. Nevertheless, plaintiffs sought to introduce the memoran-da, in which NHTSA staff members expressed opinions that support Robertson’s methodology and the plaintiffs’ theory in this case. The district court excluded these memo-randa on hearsay grounds. Smith argues on appeal that these memoranda satisfy Federal Rule of Evidence 803(8), which excepts certain public records from the general rule that hearsay is inadmissible. That rule exempts: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, ... or (C) 1996) (<HOLDING>), cert. denied, .— U.S. -, 117 S.Ct. 1425, 137 Holdings: 0: holding that a notice because it was docketed should be considered a matter of public record 1: recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public 2: holding the right to record police activity on public property was not clearly established 3: holding that a childabuse report is not a public record and therefore is not subject to public inspection 4: holding that countys registry of applicants for firefighter position was a public record under rule 8038a
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the specification otherwise would improperly broaden the scope of the invention. See On Demand Machine, 442 F.3d at 1340. It does not necessarily follow, however, that the preamble term “fixed dose combination” is necessary to breathe life and vitality into the claim. 3. The Prosecution Histories Beyond the specifications and claim language, Gilead claims that further support for its proposed construction can be found in the prosecution histories of the patents-in-suit. See Ormco Corporation v. Align Technology, Inc., 498 F.3d 1307, 1314 (Fed.Cir.2007). “Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent.” Phillips, 415 F.3d at 1317; see also Sentry Prods., Inc. v. Eagle Mfg. Co., 400 F.3d 910, 915 (Fed.Cir.2005) (<HOLDING>). In its application for the '397 patent, Holdings: 0: holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category 1: holding that the prosecution history may modify a claim terms scope if the patentee expressly disclaimed the prior arts subject matter 2: holding that prosecution history will limit the interpretation of claim terms so as toexclude any interpretation that was disclaimed during prosecution 3: holding patentees are restricted by prosecution history estoppel to the scope of what they ultimately claim 4: holding that although term was not limited by the specification it was expressly defined in a narrow manner in the prosecution history
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fact and law for a sentence below the Guidelines range. Among other reasons, Rhodes stressed his extraordinary restitution efforts and ability to repay restitution fully if he were not incarcerated, the aber-rance of his behavior and his emotional disorders, his low risk to reoffend, as indicated by the opinion of the social worker as well as his self-employment, his bond with his daughter and the need to provide her financial support. These factors have all been recognized at one time or another as providing appropriate grounds for a below-Guidelines sentence. United States v. DeMonte, 25 F.3d 343, 346-47 (6th Cir.1994) (defendant’s voluntary restitution payments before an adjudication of guilt may justify downward departure); United States v. Madden, 515 F.3d 601, 611 (6th Cir.2008) (<HOLDING>); United States v. Borho, 485 F.3d 904, 913 Holdings: 0: holding that the district court may consider evidence of a defendants postsentence rehabilitation and that such evidence may support a downward variance from the federal sentencing guidelines 1: recognizing the ninth circuits aberrant behavior spectrum 2: holding that substantial downward variance was substantively unreasonable 3: recognizing that aberrant criminal behavior may justify downward variance 4: holding there was no jurisdiction to review district courts discretionary refusal to depart downward on the grounds that defendants conduct constituted a single act of aberrant behavior
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for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Addressing the first factor, Hatchett has clearly suffered an irreparable injury. The Supreme Court as well as the Court of Appeals for the Seventh Circuit have emphasized that “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (citation omitted); see also Dombrowski v. Pfister, 380 U.S. 479, 485-86, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (<HOLDING>); Joelner v. Vill. of Wash. Park, Ill., 378 Holdings: 0: holding that the relevant inquiry when assessing irreparable injury is whether there is an adequate remedy in the absence of an injunction 1: holding that movant must demonstrate that irreparable injury is likely in the absence of an injunction 2: holding that allegation of procedural injury does not affect the issues of injury in fact or causation 3: holding that an allegation of impairment to freedom of expression demonstrated an irreparable injury 4: holding that potential loss of a contract constitutes irreparable injury
|
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was decided, Ohio had state-issued temporary tags, but had no law that governed how the tags had to be displayed. The officer who stopped Chatton justified his stop based on two grounds: the tag was not visibly displayed, and cars with temporary tags are often used in criminal activity. 15 . Id. at 1239-40. 16 . 242 Neb. 426, 495 N.W.2d 475 (1993). At the time Childs was decided, Nebraska issued "In Transit” stickers to newly acquired cars. The expiration date was not visible, however, without pulling the car over to examine the sticker. 17 . See State v. LaBarge, 275 S.C. 168, 268 S.E.2d 278 (1980) (noting that all presumptions of law are in favor of innocence until proven otherwise). 18 . S.C.Code Ann. § 56-3-2420 (1991). 19 . See United States v. Wilson, 205 F.3d 720 (4th Cir.2000) (<HOLDING>). 20 . See State v. Copeland, 321 S.C. 318, Holdings: 0: holding detention of passenger for warrant check violated fourth amendment absent reasonable suspicion 1: holding that officers may consistent with the fourth amendment conduct a brief investigatory stop when they have a reasonable articulable suspicion that criminal activity is afoot 2: holding that an officer has reasonable suspicion to conduct traffic stop even when his suspicion that a law has been violated is based on a reasonable mistake of law 3: holding that absent probable cause to arrest a police officer may approach an individual to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion that criminal conduct is afoot 4: holding that absent an articulable reasonable suspicion of unlawful conduct the fourth amendment forbids stopping a car simply because it has a temporary tag
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refusal to pay a significant portion of what it owed to ThoughtWorks. JX 66; Tr. 64. 15 . The $10 million line of credit was secured by ThoughtWorks's accounts receivable. 16 . ThoughtWorks did not seek or obtain approval from the holders of the preferred stock for the expansion of the line of credit to $5 million. 17 . SVIP thought the $10 million line of credit was excessive and well beyond what it thought was appropriate for the purposes of running the company. 18 . Tr. 54, 100-103. Goodwin testified that “the ultimate goal was to become an employee-owned and employee-controlled company.” The put right had the potential to threaten the company’s independence. 19 . JX 14 (emphasis added). 20 . Id. 21 .Id. 22 . Eagle Indus. v. DeVilbiss Health Care, 702 A.2d 1228, 1232 (Del.1997) (<HOLDING>). 23 . Id. at 1232; see also Capital Mgmt. v. Holdings: 0: holding that person who is not party to contract does not have standing to challenge contract 1: 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 2: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties 3: holding for purposes of contract clause analysis a statute can be said to impair a contract when it alters the reasonable expectations of the contracting parties 4: holding that contract terms themselves will be controlling when they establish the parties common meaning so that a reasonable person in the position of either party would have no expectations inconsistent with the contract language
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multiple qualifying drug offenses as the result of a single criminal episode would still be eligible for treatment under this amendment upon reof-fending a second time. However, the summary, when considered alone, gives voters the impression that a first-time offender who committed two qualifying offenses as the result of a single criminal episode (e.g., a defendant charged with possession of cocaine and possession of drug paraphernalia resulting from a single lawful search of her pocket), would only qualify once for treatment under this amendment. Thus, the summary’s use of “first two offenses” does not accurately describe the wide scope of the amendment’s text. See Advisory Opinion to the Attorney Gen. re Casino Authorization, Taxation and Regulation, 656 So.2d 466, 469 (Fla.1995) (<HOLDING>). Second, the term “legislative implementation” Holdings: 0: holding that it may not 1: holding that the courts grant of summary judgment did not violate the plaintiffs seventh amendment right to a jury trial and describing the plaintiffs argument that it did as very misleading 2: holding that no jury could reasonably fail to find that it was objectively reasonable for the officers to take the actions they did when the only invasion of privacy that occurred was entry and an emergency sweep a search of the premises was not conducted until the magistrate informed of what the officers had learned on the scene prior to entry explicitly authorized a search of the third house 3: holding that the amendments summary was misleading because it could lead voters to believe that only operational floating vessels may house casinos when the amendment authorized casinos on stationary and nonstationary riverboats and us registered commercial vessels 4: holding that defendant staying in abandoned house had no legitimate expectation of privacy in the house despite having a key to the house and the ability to let people in and out of it
|
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the EPA requested this information not-to uncover additional- information about Site operations, PRPs, or Gurley’s assets, but to use “Gurley’s understandably less than adequate recall as a means of attacking him.” Id. at 17. These claims were previously rejected by Judge Turner. See United States v. Gurley, No. 93-2775-TUA, slip, op. at 5-6. As a result, Gurley is es-topped from arguing these same claims a second time. Moreover, even if Gurley was not estopped, the EPA has the authority to seek information from Gurley even if the EPA already possessed-from other sources-some of the information it was seeking from Gurley. See Barkman, 784 F.Supp. at 1189; Crown Roll Leaf I, 19 Envtl. L. Rep. at 20265. See also United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1507 (S.D.Oh.1991) (<HOLDING>). Therefore, Gur-ley was not justified in Holdings: 0: holding that certain dual purpose documents created in response to the epa information request and consent order were protected from discovery by the work product doctrine as they were created because of potential litigation with the epa 1: holding that private parties may contract to transfer financial responsibilities under cercla 2: holding that a request for information and explanation is not sufficient to constitute a claim absent a demand for action by the insured 3: holding claim based on failure to disclose information to the epa preempted 4: holding that parties subject to a cercla investigative request may not decide for the epa when they have provided sufficient information
|
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safety.” While this particular piece of evidence does indicate a concern for safety rather than- “conscious indifference,” it does not in itself present overwhelming evidence contradicting the evidence provided by plaintiff. Oregon law makes no special exception relieving manufacturers from punitive damages if they issue product warnings. Second, Crown refers us to evidence properly excluded by the district court at trial, such as the military specifications and independent engineering reports. The jury cannot be said to have reached an erroneous verdict because of evidence that was not before it at trial. Evidence not admitted at trial cannot be used in a review of the district court’s denial of judgment as a matter of law. Elbert v. Howmedica, Inc., 143 F.3d 1208, 1209 (9th Cir.1998) (<HOLDING>). As a result, Crown is left to support its Holdings: 0: holding that a motion for rule 37 sanctions should be promptly made thereby allowing the judge to rule on the matter when it is still fresh in his mind and that the motion should normally be deemed waived if it is not made prior to trial 1: holding that the court should make factual findings from the record evidence as if it were conducting a trial on the record 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 trial court did not err in ruling on appellees motion for summary judgment before appellees complied with appellants discovery request when the record reflected that appellant filed a motion to compel three days before the hearing and the record did not reveal any effort on the part of appellant to secure a ruling from the trial court on its motion to compel or object at the trial court hearing the motion for summary judgment prior to ruling on the motion to compel 4: holding that when ruling on a rule 50 motion the record should be taken as it existed when the trial was closed
|
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state prisoner Albert Hayes appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional and statutory claims in connection with the processing of his administrative grievances. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm. The district court properly dismissed Hayes’ Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) claims against defendants in their individual capacities because Title II of the ADA and Section 504 of the RA do not authorize claims against State officials in their individual capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (<HOLDING>). The district court properly dismissed Hayes’ Holdings: 0: holding title ix does not support an action against official in an individual capacity 1: holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 usc 1983 based upon actions taken in his official capacity 2: holding that a suit against a state official in his or her official capacity is a suit against the state itself and not cognizable under 1983 3: holding that plaintiffs may bring a section 1983 claim for damages to vindicate their rights under idea 4: holding that a plaintiff cannot bring an action under 42 usc 1983 against a state official in her individual capacity to vindicate rights created by title ii of the ada or section 504 of the rehabilitation act
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The identified constitutional concern with defendant’s construction of § 16913(d) is further aggravated by the fact that it presumes that Congress, without providing any meaningful guidance, delegated to the Attorney General, the very officer charged with executive power to enforce the criminal laws, the legislative power unilaterally to pronounce the scope of a law with crimi nal consequences. Cf. Buckley v. Valeo, 424 U.S. 1, 139, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.” (internal quotation marks omitted)); Mistretta v. United States, 488 U.S. at 391 n. 17, 109 S.Ct. 647 (<HOLDING>). This I expect is why the Supreme Court has Holdings: 0: holding that unless that power is restricted by the principal an agent under a california statutory healthcare power of attorney has the power to execute applicable admission forms including arbitration agreements 1: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power 2: holding that the power to terminate a contract atwill subsumes the power to modify its terms 3: recognizing that uniting power to prosecute and power to sentence in executive would raise constitutional concerns 4: recognizing that administrative agencies lack to power to consider or determine constitutional issues
|
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fourteenth amendment imposes upon those state officials no obligation to prevent that harm.” Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.1989). The Court in DeShaney did, however, recognize “that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” 489 U.S. at 198, 109 S.Ct. 998; see also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (recognizing that the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment’s Due Process Clause, requires the State to provide adequate medical care to incarcerated prisoners); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (<HOLDING>); Revere v. Massachusetts General Hosp., 463 Holdings: 0: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment 1: holding that the substantive component of the fourteenth amendments due process clause requires the state to provide involuntarilycommitted mental patients with such services as are necessary to ensure their reasonable safety from themselves and others 2: holding municipalities are not persons within the meaning of the due process clause of the fifth or fourteenth amendments 3: holding that the state must provide involuntarily committed mental patients with services that insure their reasonable safety 4: holding that for federal court to grant full faith and credit to state court judgment state proceedings must satisfy the minimum procedural requirements of the fourteenth amendments due process clause
|
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their fourth issue, Appellees assert that legally and factually insufficient evidence exists to support the jury’s finding in question 6 that a joint enterprise existed between LMS and Hospital. Specifically, Appellees challenge the sufficiency of the evidence to support the second two elements of joint enterprise: (3) a community of pecuniary interest in the common purpose of the enterprise among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. The Texas Supreme Court has addressed legal sufficiency challenges to the third element, the eommunity-of-pecuni-ary-inter est-in-the-common-purpose-of-the-enterprise element, of a jury’s joint enterprise finding in several cases. See St. Joseph Hosp., 94 S.W.3d at 531-33 (<HOLDING>); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, Holdings: 0: holding evidence was legally insufficient to support conviction for violation of sex offender registration requirement 1: holding evidence legally sufficient under sections d and e 2: recognizing that evidence may be legally insufficient where there is variance between indictment allegations and proof 3: holding evidence legally sufficient 4: holding evidence legally insufficient
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171 Cal.Rptr.3d 621. The delegation clause appears on the eleventh page of a form agreement, without a separate header or any other indicator (e.g., bold or relatively larger typeface) that would call a reader’s attention to the provision. Put simply, Gillette and other drivers would have no reason to know or suspect that arbitrability would be decided by an arbitrator under the 2013 Agreement. Thus, the delegation clause specifically is procedurally unconscionable. 2. Substantive Unconscionability Substantive unconscionability arises when a provision is overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. See Tompkins, 2014 WL 2903752, at *15; Tiri, 226 Cal.App.4th at 243, 171 Cal.Rptr.3d 621; see also id. at 243 n.6, 171 Cal.Rptr.3d 621 (<HOLDING>). Gillette contends the delegation clause in Holdings: 0: recognizing that california supreme court is currently considering the appropriate standard for determining whether a contract or contract term is substantively unconscionable 1: 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 2: holding that the more substantively oppressive the contract term the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable and vice versa 3: holding that when a term is not defined in a contract the presumption is that the term is to be given its ordinary meaning and significance 4: holding that additional consideration is a factor in determining whether there is an implied contract of employment
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"even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998) (citations omitted). The only mention of their claims against CitiFinancial is in the Kinseys’ statement of the issues, which questions whether the court erred in informing CitiFinancial that its failure to answer the summons in 20 days would result in a default judgment. Flowever, the Kinseys offer no discussion on this issue or any other issue regarding CitiFinancial. TranSouth is not mentioned in the Kinseys’ brief. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6, (11th Cir. 1989) (<HOLDING>); Harris v. Plastics Mfg. Co., 617 F.2d 438, Holdings: 0: holding in counseled case that listed issue was abandoned where it was not discussed in the argument portion of the brief 1: holding arguments not raised on appeal waived 2: holding in counseled appeal that an issue was abandoned where it was referred to in the statement of the case but no arguments on the merits were raised 3: holding an issue listed in statement of issues on appeal but not addressed in brief is abandoned 4: holding that where an appellant fails to raise arguments regarding an issue on appeal that issue is deemed abandoned
|
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be a change in circumstances. |s(Emphasis added.) Michael’s argument that the circuit court’s award of permanent alimony should be reversed “as a matter of law” is not well taken. While Michael is correct that there is no such animal as “permanent” alimony, the nomenclature employed by the circuit court does not constitute error. As set forth in the case above, “permanent”—or as in the present case “lifetime”—alimony is just another way of saying that the circuit court has chosen not to limit the amount of time a spouse should receive alimony. We find no error, and we affirm. Michael also contests the amount of the alimony award: Our court has never reviewed an award of alimony solely on a mathematical-formula analysis. Kuchmas v. Kuchmas, 368 Ark. 48, 46, 243 S.W.3d 270, 272 (2006) (<HOLDING>). Here, because the circuit court considered Holdings: 0: holding that the pearce presumption was not designed to prevent the imposition of an increased sentence on retrial for some valid reason associated with the need for flexibility and discretion in the sentencing process but was premised on the apparent need to guard against vindictiveness in the resentencing process 1: recognizing that expungement is appropriate when unusually substantial harm to the defendant not in any way attributable to him outweighs the governments need for a record of the arrest 2: recognizing need for flexibility and discretion by the secretary in section 13c certifications 3: holding that the amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty 4: recognizing relevance of information and that need for this information outweighs the burden to appellants
|
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bears the ultimate burden of persuasion as to the adequacy of the forum. See, e.g., Norex, 416 F.3d at 159-160. When the district court granted Pfizer’s motion, it identified the pivotal issue as whether the plaintiffs produced sufficient evidence to show that Nigeria is an inadequate alternative forum. Abdullahi III, 2005 WL 1870811, at *15. Having found that they had not, it concluded that Nigeria was an adequate forum. Id. at *16-18. In so doing, the district court omitted an analysis of whether Pfizer discharged its burden of persuading the court as to the adequacy and present availability of the Nigerian forum and improperly placed on plaintiffs the burden of proving that the alternative forum is inadequate. Cf. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir.2002) (<HOLDING>). On remand, the district court will have an Holdings: 0: holding that the burden of proof is on the claimant 1: holding the states reference to the defendants lack of remorse was error because it was a comment on the defendants assertion of his constitutional rights to plead not guilty and require the state to carry its burden of proof 2: recognizing that the burden of proof is an essential element of the claim itself and that one who asserts a claim has the burden of proof that normally comes with it 3: holding that it is error not to hold defendants to their burden of proof of the gilbert factors 4: holding that such factors may constitute a substantial burden
|
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Harris has not tried to rebut by showing that the grand jury proceedings (or any other aspect of the indictment) were irregular. And cases interpreting Ohio law in analogous circumstances confirm that the officers had probable cause to believe that Harris knowingly attempted to cause physical harm by pushing Officer Harrison. See, e.g., Palshook v. Jarrett, 120 F.Supp.2d 641, 649 (N.D.Ohio 2000); Stillwell v. City of Xenia, No.2000CA-41, 2001 WL 127880, at *4, 2001 Ohio App. LEXIS 573, at *11-12 (Ohio Ct.App. Feb.16, 2001) (noting that “evidence existed to support a criminal assault charge” under Ohio law when plaintiff “intended to and did strike [the officer] in the chest with both hands”); Matlock v. Ohio Dep’t of Liquor Control, 77 Ohio Misc.2d 13, 665 N.E.2d 771, 773, 775 (1996) (<HOLDING>); cf. Hopkins v. City of Westland, 21 F.3d 427 Holdings: 0: holding that the opening of a makeup bag was justified when a woman had grabbed the bag when the officer turned away had resisted it being taken from her the bag felt heavy her companion had been armed the previous day and the officer and individual were alone 1: holding that defendant adequately indicated to officers that she sought assistance of counsel when she stated that she wanted to call her lawyer and officer testified that request was unambiguous 2: holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination 3: holding that excited utterance was proven when evidence showed that a patrol officer saw the victim screaming and waiving her hands when he approached she was crying her dress was ripped and she asked the officer to keep the defendant away from her 4: holding that plaintiff did not prove by a preponderance of the evidence that her arrest for assault under 290313 was unlawful or that her prosecution was malicious when she grabbed the officer from behind the officer pushed her away and she then grabbed the officers shirt
|
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of the plan as a whole.” Id. at 142 n. 9, 105 S.Ct. at 3090 n. 9. Following Russell, the Sixth Circuit has provided that, pursuant to Section 502(a)(2), participants [and beneficiaries] are authorized to sue on behalf of a plan for breach of fiduciary duty and “[p]ermit-ting such suits ... is the mechanism which Congress established to enforce the plan’s right to recover for a breach of fiduciary duty.” Smith v. Provident Bank, 170 F.3d 609, 616 (6th Cir.1999). Thus ERISA grants four categories of plaintiffs the right to sue a fiduciary of an ERISA plan, on behalf of the plan, for injuries incurred by the plan due to a breach of the fiduciary’s ERISA duties, regardless of whether the plaintiff individually suffered any injury as a result of the breach. See Merck-Medco, 433 F.3d at 199 (<HOLDING>); Horvath v. Keystone Health Plan East, Inc., Holdings: 0: holding that a plan participant may have article iii standing to obtain injunctive relief related to erisas disclosure and fiduciary duty requirements without a showing of individual harm to the participant 1: holding that plaintiff is a plan participant and he is seeking to recover for the plan as a whole these are the only requirements on the face of the statute itself 2: holding that a plan participant or beneficiary may not recover extracontractual damages in an erisa suit for breach of fiduciary duty under 502a2 and 409a only the plan may recover damages in such cases 3: holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant 4: holding noneconomic harm satisfies article iii standing requirements
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CURIAM. We DENY the petition for writ of cer-tiorari on the merits to the extent that petitioner argues that the trial court departed from the essential requirements of law in dissolving a notice of lis pendens. We DISMISS the petition to the extent that petitioner argues that the trial court erred in denying its request to amend its complaint as to certain counts. See Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (<HOLDING>); see also Venus Labs., Inc. v. Katz, 573 So.2d Holdings: 0: holding that in considering common law certiorari district courts of appeal should be primarily concerned with seriousness of error not mere existence of error and should exercise certiorari discretion only when there has been violation of clearly established principles of law resulting in miscarriage of justice 1: holding that circuit court violated the essential requirements of the law in not issuing an order to show cause after receiving a facially sufficient petition for writ of certiorari 2: holding that for a nonfinal order to be reviewable by petition for certiorari the order must depart from the essential requirements of law thus causing material injury to the petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal 3: holding that a petition for writ of certiorari should be dismissed if there has been an insufficient showing of irreparable harm and should be denied when it is determined that an order did not depart from the essential requirements of law 4: recognizing the right to petition for writ of certiorari as a form of appellate review
|
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conclusion was manifestly unreasonable. Rhoten’s testimony would have indicated that Helen had admitted to sexual intercourse with her boyfriend, but falsely claimed it was nonconsensual. Defendant, however, claimed that Helen made up claims that they had had sexual intercourse in order to retaliate against him. Thus, in one instance, Helen was covering up consensual intercourse with her boyfriend, while, in the other, she was alleged to have been lying about intercourse with her stepfather. Because of the different circumstances, the trial court could reasonably determine that Rhoten’s testimony was not highly probative when compared to the potential for unfair prejudice if the jury perceived Helen as promiscuous. See State v. Harris, 189 N.C. App. 49, 64, 657 S.E.2d 701, 711 (2008) (<HOLDING>), disc. review denied, 362 N.C. 366, 664 S.E.2d Holdings: 0: holding that a trial court abused its discretion by excluding the testimony of an expert witness where the testimony would have been relevant to show that the defendant breached a duty of care 1: holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative 2: holding that the district court did not abuse its discretion in excluding hearsay evidence and evidence that violated the best evidence rule in deciding a summary judgment motion 3: holding that trial court did not abuse discretion in excluding under rule 403 evidence of prior motel stays by prosecuting witness and defendant in case in which defendant denied that sexual encounter giving rise to charges occurred because of the questionable relevance of this evidence and its likely prejudicial effect on the remainder of the prosecuting witness testimony 4: holding that before immunity under the provision at okla const art ii 27 can be given a witness such witness must have testified under an agreement made with the prosecuting attorney approved by the court or such witness must have claimed the privilege of silence which was by the court denied and such witness must have been compelled by the court to so testify
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for the Government’s position. The operative question here — whether Nash’s conviction was an adult conviction — was simply not addressed in Orlando-Mena. Admittedly, the court did take a somewhat more holistic approach to analyzing the nature of the conviction, which, at least in part, considered the nature of the sentence. This is consistent with Second Circuit precedent. See United States v. Cuello, 357 F.3d 162, 168-69 (2d Cir.2004) (considering the “substance” of the prior youthful offender adjudication for the purposes of U.S.S.G. § 2K2.1 and concluding it constituted an “adult conviction” because “defendant was indisputably tried and convicted in an adult forum, and [ ] defendant served his sentence in an adult prison”); United States v. Driskell, 277 F.3d 150, 154 (2d Cir.2002) (<HOLDING>). To the extent these cases suggest the nature Holdings: 0: holding that a defendant cannot collaterally challenge a prior conviction used to calculate criminal history points 1: holding that an adjudication under new yorks youthful offender statute does not operate as an expungement of the defendants conviction and the conviction may be considered in calculating criminal history 2: holding that district courts should look to the substance of the past conviction when determining whether a youthful offender conviction should be considered an adult conviction for the pur poses of including criminal history points under ussg 4a11 and 4a12 3: holding that an aggravated misdemeanor conviction under section 7191 is a felony for purposes of assessing criminal history points under ussg 4a12c 4: holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense
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policy. The NFL asserts that the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), controls the facts of this case and overturns prior caselaw holding that NFL clubs do not constitute a single enterprise but rather, are separate entities which were capable of conspiring with each other under § 1. See L.A. Coliseum, 726 F.2d at 1387-90; NASL, 670 F.2d at 1256-58. We do not agree that Copperweld, which found a corporation and its wholly owned subsidiary to be a single enterprise for purposes of § 1, Copperweld, 467 U.S. at 771, 104 S.Ct. at 2741, applies to the facts of this case or affects the prior precedent concerning the NFL. See McNeil v. National Football League, 790 F.Supp. 871, 879-80 (D.Minn.1992) (<HOLDING>). Copperweld’s holding turned on the fact that Holdings: 0: holding that the department of the treasury and the internal revenue service are not entities subject to suit and they should be dismissed 1: holding that the gtla does not apply to contract claims against governmental entities 2: holding that a member of a golf club was charged with knowledge of an indemnity clause in the clubs membership handbook 3: holding that copperweld did not apply to the nfl and its member clubs and finding the clubs to be separate entities capable of conspiring together under 1 4: holding that notice statute applies to both municipal entities and employees of municipal entities acting within the scope of their employment
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