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(emphasis added) (internal citations omitted). Here, Appellant did not request a limiting instruction concerning Appellant’s assault of Ms. Kurt until the State had completed its direct examination of Randy. And it was during the State’s direct examination of Randy that he testified that Appellant hit Ms. Kurt twice in the convenience store parking lot. Thus, Randy’s testimony that Appellant twice hit Ms. Kurt had already been admitted as part of the general evidence and was usable for all purposes. See id. Appellant failed to request a limiting instruction at the time the evidence of the assault was first admitted, and therefore failed to preserve this point for appellate review. See id.; see also Prescott v. State, 123 S.W.3d 506, 515-16 (Tex.App.-San Antonio 2003, no pet.) (<HOLDING>). We overrule Appellant’s third point. VII. Holdings: 0: holding that trial court is not required to give limiting instruction when defendant did not object at first opportunity because evidence admitted for all purposes 1: holding that a limiting instruction is required where evidence of a prior conviction is admitted over objection 2: recognizing that upon request the trial court may provide a limiting instruction to the jury 3: holding defendant who failed to request limiting instruction concerning use of extraneous offenses at the moment the evidence was admitted was not entitled to limiting instructions in jury charge 4: holding that a prior inconsistent statement was admissible and the defendant failed to ask for a limiting instruction that the jury could not use the statement as substantive evidence
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in determining whether the false light tort had been committed; their interest hi the subject matter was determinative. Here, the report was not distributed to the public. The report was only distributed to those individuals with a professional interest in the value of the Resort. Order filed December 22, 1995, 4-7. The report was distributed by defendants to the Bank, which forwarded copies to certain individuals working for other participating lenders. One copy was left in a hotel room, but retrieved two hours later. Benchmark’s decision to copy and distribute this report cannot be charged to defendants — plaintiffs cannot complain of unwanted publicity for which they alone are responsible. Cf. Live Oak Pub. Co. v. Cohagan, 234 Cal.App.3d 1277, 286 Cal.Rptr. 198, 201-03 (1991) (<HOLDING>). Since plaintiffs have no proof that the Holdings: 0: holding the government liable to plaintiffs for breach of contract 1: holding that libel and slander suit that involved statements concerning plaintiffs patent for a pump arose under state law not federal patent law a suit arises under the law that creates the cause of action 2: holding that it is not 3: holding that plaintiffs allegation that defendant engaged in conduct that coerced intimidated threatened and interfered with neighboring residents enjoyment of their dwelling because of their religion in violation of the fha was entirely conclusory characterization of defendant residents intent that was not binding on court for purposes of defendants motion for judgment on pleadings 4: holding that libel defendant is not liable for plaintiffs reasonable republication where republication was not coerced
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before he filed his EEOC complaint, and Count I is dismissed as time-barred. B. Title III of the ADA Claims Defendants move to dismiss Counts II and III, both of which allege ADA Title III violations. Count II alleges that Prudential discriminated against Wilson based on his mental disability by maintaining a long-term disability policy that treats mental and physical disabilities differently. Count III states that Prudential violated Title III by refusing to pay Wilson’s rehabilitation expenses based on the Plan’s mbntal-disability limit. Defendants’ motions to dismiss both counts turn on an issue not yet decided by the First Circuit: whether the ADA requires a private employer-sponsored disability plan to provide equal benefits for mental and physical disabili 4, 148-58 (2d Cir.2000) (<HOLDING>); Kimber v. Thiokol Corp., 196 F.3d 1092, Holdings: 0: holding 504 of the rehabilitation act does not require equivalent benefits for different disabilities 1: holding that the virginia disabilities act constitutes the most analogous state statute of limitations for claims brought under the ada 2: recognizing that a finding of actual physical control does not require that car actually is moving 3: holding that rule 35 does not permit sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition by asserting his mental or physical condition either in support of or in defense of a claim and that mere relevance to the case is insufficient 4: holding ada does not require parity between mental and physical disabilities
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has been “convicted of any prior or subsequent crime.” This language contrasts with the language of N.J.S.A. 2C:52-3 that bars expungement of disorderly persons offenses only for those “convicted of any prior or subsequent crime * *, or of another three disorderly persons or petty disorderly persons offenses.” By making its disqualifier for another “crime” both retrospective and prospective, the Legislature has frozen the rights of the two-time criminal. The act must be read to disapprove of the language of State v. Chelson, supra, 104 N.J.Super. at 510, that suggested that an offender could expunge the record of a last criminal conviction, although not able to use that to leapfrog backwards to wipe out an entire record. Cf. State v. D’Angerio, 124 N.J.Super. 240 (Law Div.1973) (<HOLDING>). Implicit in this view is that the Legislature Holdings: 0: holding that when a defendant admits prior convictions at a habitual offender hearing he waives any complaints about the validity of the prior convictions 1: holding that a defendants claim challenging his multiple offender adjudication by asserting that the district attorney provided insufficient evidence of his boykin waiver was not entitled to be heard on postconviction relief 2: holding that defendants sixth amendment right to trial by a jury was not violated by district courts reliance on his prior convictions for purposes of sentencing as career offender 3: holding that even though the defendant did not challenge his prior convictions at the original sentencing lawofthecase principles do not insulate the state from proving them at resentencing 4: holding that the multiple offender could not expunge all of his convictions by simply removing them from his record one at a time
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of movement; their initial contact was not a stop. Nor was Officer Robinson’s observation of the inside of defendant’s pickup a search for constitutional purposes. In State v. Orlovski, 146 Or App 632, 933 P2d 976 (1997), we explained, “It is well settled that a police officer’s unaided observation, purposive or not, from a lawful vantage point is not a search under Article I, section 9, of the Oregon Constitution. Moreover, the Supreme Court has held that “ ‘[a]n officer who has lawfully stopped a vehicle does not violate any occupant’s rights in walking around the vehicle and looking through the windows of the vehicle to observe that which can be plainly seen.’ State v. Jackson, 296 Or 430, 438, 677 P2d 21 (1984); see also State v. Wacker, 317 Or 419, 426-27, 856 P2d 1029 (1993) (<HOLDING>).” Id. at 636-37 (internal quotation marks and Holdings: 0: holding that no privacy interest was invaded when the officers saw the defendants activities while he was parked in a tavern parking lot and seated in a vehicle with the console light on 1: holding automobile exeeption did not apply to warrantless search of vehicle where vehicle was not readily mobile because the vehicle was legally parked in parking lot occupants of vehicle were seated on a bench in the playground near the parking lot police officers surrounded the vehicle and the driver of the vehicle was handcuffed for safety purposes 2: holding that the prisoner should have been allowed to choose whether to leave his car parked in a public parking lot 3: holding that the presence requirement of the carjacking statute was satisfied when keys were taken from a bank employee whose car was parked in a parking lot outside the bank 4: holding that the police officer had reasonable suspicion when he saw a vehicle moving with its lights off in the parking lot of a closed business in a rural area at 300 am
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punishment. The court’s instruction is designed to prevent a jury from committing jury misconduct by speculating on the amount of time that a convict may serve, or by considering what the Parole Board may do relative to the accused’s sentence. A juror’s ability to follow the court’s instruction on this matter must and can be tested during voir dire when the accused may challenge each venire member, both concerning his position on or understanding of the law as well as on the accused’s right to a fair and impartial trial and to fair and impartial punishment. Implicit within the statute is appellant’s duty to make inquiry and to challenge each ve-nire member on his willingness to follow the court’s instruction. See House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 658 (Tex.1965) (<HOLDING>). While it may very well be difficult for a Holdings: 0: holding that even though a bond contained provisions not required by statute it must be considered statutory and not common law because the bond did not expand the payment provisions beyond those stated in statute 1: holding that where administrative complaint contained references to statutory provisions but failed to allege any act or omission in violation of those provisions the complaint did not afford proper notice to the licensee and that therefore disciplinary action could not be predicated on those statutes 2: holding recoupment statute unconstitutional because it did not provide for a hearing prior to entry of judgment 3: holding that statutory notice provisions for notice of default and opportunity to cure were waived by provisions of note as to one obligor though provisions applied to coobligor who used property as residence 4: holding that a statute that does not provide for notice and a hearing is not unconstitutional because those provisions may be incorporated by implication to prevent a holding of unconstitutionality
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focus on conduct, which almost doomed the defendants’ constitutional Challenge from the outset, has returned to extinguish their argument based on R.AV. Because R.AV. does not apply to statutes that are “directed at conduct,” it does not apply to FACE, which is primarily, or 'even entirely, “directed at conduct.” This assumes, however, that our definition of “conduct” has not changed. With respect to the use of force, this seems to be a safe assumption. See, e.g., Mitchell, — U.S. at -, 113 S.Ct. at 2201. Moreover, at least one panel in this circuit has held that a civil rights statute that selectively proscribes threats of force is similarly “directed at conduct” and thus not subject to the R.A.V. general rule. Hayward, 6 F.3d at 1251 (42 U.S.C. § 3631); cf. J.H.H., 22 F.3d at 826 (<HOLDING>); but cf. United States v. Lee, 6 F.3d 1297, Holdings: 0: holding that interference with the right to service in a restaurant is chargeable under 18 usc 241 1: holding that 18 usc 245 a statute passed on the same day as 42 usc 3631 and for similar purposes constituted a valid enactment under congress thirteenth amendment authority as applied to racially motivated interference with federallyprotected rights 2: holding that 18 usc 1919 did not implicitly repeal 18 usc 1001 3: holding that a state is not a person under 42 usc 1983 4: holding that 18 usc 241 and 42 usc 3631 fall within separate exception to rav
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Lopez v. State, 25 S.W.3d 926, 928 (Tex.App.—Houston [1st Dist.] 2000, no pet.); Moore v. State, 4 S.W.3d 269, 272 (Tex.App.—Houston [14th Dist.] 1999, no pet.); Minix v. State, 990 S.W.2d 922, 923 (Tex.App.—Beaumont 1999, pet. ref'd); Price v. State, 989 S.W.2d 435, 437 (Tex.App.—El Paso 1999, pet. ref'd); Hernandez v. State, 986 S.W.2d 817, 820 (Tex.App.—Austin 1999, pet. ref'd); Vidaurri v. State, 981 S.W.2d 478, 479 (Tex.App.—Amarillo 1998, pet. granted); Johnson v. State, 978 S.W.2d 744, 746 (Tex.App.—Eastland 1998, no pet.); Session v. State, 978 S.W.2d 289, 291-92 (Tex.App.—Texarkana 1998, no pet.); Rigsby v. State, 976 S.W.2d 368, 369 n. 1 (Tex.App.—Beaumont 1998, no pet.). 4 . But see Johnson v. State, 32 S.W.3d 444, 445-46 (Tex.App.—Houston [1st Dist.] 2000, pet. filed) (<HOLDING>); Lopez, 25 S.W.3d at 928 (same); Martinez v. Holdings: 0: holding that regulatory requirements are not jurisdictional in nature 1: recognizing the general rule that an appellate court will not address matters that were not raised or decided in the trial court 2: holding that notwithstanding rule 252b3 requirements appellate court could address jurisdictional defects 3: holding that notice requirements under rule 252b3 are jurisdictional 4: recognizing general rule that an appellate court cannot address claims that were not raised below
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beyond a reasonable doubt. See id. We suspect Knight’s multiple attempts to obtain relief on this claim stem from a mistaken belief that such an error is, or was at one time, per se reversible. The supreme court, however, has never held that it is. In the absence of such a declaration by the supreme court, all judgments are subject to a harmless error analysis. See § 924.33, Fla. Stat. (1993); State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995); State v. DiGuilio, 491 So.2d 1129, 1134 (Fla.1986). Knight likely was misled because until recently the supreme court had not discussed the harmless error test in any of its decisions reversing an improper firearm enhancement. See, e.g., Tripp, 642 So.2d at 728; State v. Overfelt, 457 So.2d 1385 (Fla.1984). A reversal without a discussion of wh ) (<HOLDING>); State v. Overfelt, 457 So.2d 1385, 1387 Holdings: 0: holding that even where evidence regarding the use of a firearm is unrebutted to impose mandatory minimum sentence a jury must make that finding 1: holding that even if the minimum mandatory exceeds the statutory maximum the court must impose the minimum mandatory 2: holding that even where the evidence is uncontroverted to sentence a defendant to a minimum mandatory sentence for trafficking the jury must make express findings of the amount of cocaine involved 3: holding that the trial court was not entitled to impose a threeyear mandatory minimum sentence on a defendant convicted of possession of a firearm by a convicted felon where the jury verdict did not specifically find actual possession 4: holding that to enhance a sentence because of the defendants use of a firearm the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used
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Therefore, on the face of the Amended Complaint, it is certainly at least ambiguous and not readily discernible that the minimum amount in controversy could be met at the time of removal of the case from state court in order to support diversity jurisdiction. Accordingly, the Court must move to the second step of the analysis, wherein Defendant, “the party invoking federal jurisdiction^] must prove the requisite amount by a preponderance of the evidence.” Bell, 557 F.3d at 956. 2. Legally Recoverable Damages As discussed above, Plaintiffs Amended Complaint alleges only a single claim of breach of contract. In Minnesota, the measure of damages for a breach of contract claim is those damages flowing from the alleged breach. Wild v. Rarig, 302 Minn. 419, 440, 234 N.W.2d 775, 789 (1975) (<HOLDING>). Defendant first argues that, when determining Holdings: 0: holding that party may not recover damages for breach of contract where its own bad faith caused the other partys breach 1: holding that the failure to act in good faith does not amount to an independent tort the breach of the implied duty under the ucc gives rise only to a cause of action for breach of contract 2: recognizing that where a plaintiff failed to perform because of the defendants breach the plaintiff could recover damages caused by the defendants breach 3: holding that there must be a tort distinguishable from or independent of the breach of contract in order for a party to bring a valid claim in tort based on a breach in a contractual relationship 4: holding that absent an independent tort a plaintiff alleging a breach of contract may only seek to recover the damages flowing from the breach
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it.” J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1272 (3d Cir.1994) (quotation marks and citation omitted). Further, New Jersey courts have opined that the “the entire thrust of the Act is pointed to products and services sold to consumers in the popular sense.” E. Coast Office Sys. v. Citicorp Vendor Fin., Inc., No. 06-24-GEB, 2006 WL 3257091, at *2, 2006 U.S. Dist. LEXIS 82044, at *6-7 (D.N.J. Nov. 9, 2006) (quotation marks and citation omitted). “Thus, the [NJ]CFA is not intended to cover every transaction that occurs in the marketplace, but, rather, its applicability is limited to consumer transactions which are defined both by the status of the parties and the nature of the transaction itself.” I 79-80, 597 A.2d 1109 (N.J.Super.Ct. Law Div. 1990) (<HOLDING>); Bracco Diagnostics, Inc. v. Bergen Brunswig Holdings: 0: recognizing that generally services that benefit debtor are services that facilitate completion of a case 1: holding there were no grounds for challenging in a termination proceeding the alleged failure to comply with the ada in the provision of services because services are not required by the termination statute 2: holding that an attorneys cause for services rendered over a period of time accrued when his services had been completely performed 3: holding that a corporation that purchased certain technology and support services through a services and licensing agreement was not protected by the njcfa because the technology and services were not 1 available to the public in large quantities or mass produced and 2 had no similarity to the comprehensive definitions of goods and services promulgated by the nj division of consumer affairs under the njcfa 4: holding that an attorneys services were personal services rendered or labor done under the predecessor statute to section 38001
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immunity from civil suit based on their testimony because without such immunity, "the truth-seeking process at trial would be impaired.” Id. at 1505. The Court reasoned in Rehberg that "[t]he factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses.” Id. Although here we deal with a different form of speech protection, we similarly hold that the factors justifying First Amendment protection against retaliation for trial witnesses apply with equal force to subpoenaed deposition witnesses. 4 . We note that, unlike the plaintiff in Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), Karl is not a police officer whose duty under state law is to testify truthfully as part of her professional responsibilities. See 574 F.3d at 707-08 (<HOLDING>) (internal quotation marks and brackets Holdings: 0: holding that a defendants false grand jury testimony was insufficient to establish perjury where the defendant was called before the grand jury for the mere purpose of laying the foundation for a perjury prosecution such testimony was immaterial to the grand jurys purpose 1: holding that where witness refused to take the oath and testify his grand jury testimony should not have been admitted because he was not subject to cross examination before the grand jury 2: recognizing that although no obstruction occurs when an individual lies to fbi agents who might or might not testify before a grand jury it may occur if the agents acted as an arm of the grand jury or indeed that the grand jury had even summoned the testimony of these particular agents 3: holding that under california law tjestifying before a grand jury charged with investigating corruption is one part of an officers job and therefore any speech huppert gave during his grand jury testimony was pursuant to his duties as a police officer 4: holding that right was available in grand jury proceedings
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consistent with the ruling of this Court., As only the City or the Commonwealth may appeal from an adverse ruling by this Court pursuant to Va. Code § 16.1-131.1 and the Court has ruled in their favor, endorsements are dispensed with in accordance with Rule 1:13 of the Rules of the Supreme Court of Virginia. The Clerk is directed to remand this matter to the Chesapeake General District Court and to forward copies of this Memorandum Opinion and Order to all counsel of record and to The Honorable Michael R. Katchmark, Presiding Judge of the Chesapeake General District Court. Entry of this memorandum opinion shall constitute an order of the Court consistent with its directives. It is so ordered. 1 See Parker v. Commonwealth, 24 Va. App. 681, 686-90, 485 S.E.2d 150, 153 — 54 (1997) (<HOLDING>), cert. denied, 523 U.S. 1071. 2 See Holdings: 0: holding that 750170 is not void for vagueness nor constitutionally infirm for overbreadth 1: holding va code 182460a is not unconstitutionally vague 2: holding residual clause of acca void for vagueness 3: holding a law is void for vagueness when it offers no standard of conduct that was possible to know emphasis added 4: holding that va code 182603 is not void for vagueness
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Transfers that the Debtor made to the Bank because the Defendant received, either directly or indirectly, the benefit of these transfers. However, the Mortgage Payment Transfers reduced a secured debt — the mortgage owed- on the Lake Property, The Debtor owed the-mortgage to the'Bank, in the same amount and with the same payment schedule,'whether or not the Defendant was living in the Lake Property. The benefit received by the Defendant on account of the Mortgage Payment Transfers is merely incidental. The Mortgage Payment Transfers reduced the mortgage such that the.Bank’s claim in the Debtor’s bankruptcy estate is significantly less than it would have been had the Debtor not made the Mortgage Payments. See Meister v. Jamison (In re Jamison), 21 B.R. 380, 381 (Bankr.D.Conn.1982) (<HOLDING>). Moreover, allowing the Trustee to recover the Holdings: 0: holding that a plaintiff who has not sustained any damage as the result of a transfer of property cannot seek to set that transfer aside as fraudulent 1: holding that even though a transfer of property eg money incidentally benefits another it cannot be said as a matter of law or logic that the transaction was a fraudulent transfer as to the party benefited 2: holding that suit arose from alleged fraudulent transfer of real property located in texas even though the allegedly fraudulent assignment occurred in california 3: holding that debtors cannot claim an exemption in a homestead after trustee avoided the transfer of the property as a fraudulent conveyance because the transfer by the debtors was voluntary 4: holding that transfer was proper remedy for improper venue even though the issue of transfer was not raised until the motion hearing in circuit court
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the Association’s dismissal from the foreclosure action did not preclude PNC Bank’s entitlement to section 718.116’s safe harbor protection and, therefore, dismissal of PNC Bank’s action based on the doctrine of collateral estoppel was not appropriate. First, the involuntary dismissal of the Association from the foreclosure action did not render the assessment lien superior to the mortgage lien. The Association was involuntarily dismissed from PNC Bank’s 2012 foreclosure action because it was involuntary dismissed from the 2008 foreclosure action as a sanction against the previous bank. This sanction could not, as a matter of law, render the Association’s assessment lien superior to the first mortgage lien. See U.S. Bank Nat’l Ass’n v. Farhood, 153 So.3d 955, 957-58 (Fla. 1st DCA 2014) (<HOLDING>); see also Holly Lake Ass’n v. Fed. Nat’l Holdings: 0: holding that a mortgage took priority over a judgment lien under real prop 3201 where the mortgage had been executed before but recorded after the institution of a lawsuit to obtain the judgment lien 1: holding that the lien bond releases the property from the lien but the lien is then secured by the bond 2: holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien 3: holding that the trial court exceeded its authority in declaring the associations lien superior to the foreclosing banks mortgage lien as a sanction for delay tactics because the courts declaration of lien priority as a sanction impermissibly overlooked the common law and encroached on the legislatures codification of wellestablished property rights 4: holding that a property right that comes into existence by court action such as a judgment lien does not relate back to some earlier date to destroy the priority of a federal tax lien
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was no manifest necessity to declare the mistrial, and no express or implied consent to the mistrial by the defendant, we perceive no exception to the Double Jeopardy Clause’s requirement that an individual may not be subjected “to hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). We have considered all arguments presented by the parties and conclude that no further discussion is necessary. The judgment of the district court will be affirmed. 1 . New Jersey relies on "manifest necessity” because the phrase "ends of public justice” is not applicable to the facts of this case. See Illinois v. Somerville, 410 U.S. 458, 468-471, 93 S.Ct. 1066, 1072-1074, 35 L.Ed.2d 425 (1973) (<HOLDING>). 2 . The district court, without discussion, Holdings: 0: holding claim of alleged brady violation waived on collateral appeal for failure to raise it at trial or on direct appeal 1: holding that ineffective assistance of counsel claims should be brought in collateral proceedings not on direct appeal 2: holding that even when the issue is constitutional in nature an argument is not preserved on appeal unless the appellant raised and made the argument at trial and obtained a ruling on it nor will a particular theory be addressed on appeal if it was not presented below 3: holding that the ends of public justice justify a mistrial where the trial contains a defect such that a conviction if obtained could be upset at will on appeal or in collateral proceedings 4: holding that direct appeal from subsequent conviction is the proper context in which to seek review of trial courts ruling declaring mistrial over defendants objection at previous trial
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Fifth Amendment. Gray, 796 A.2d at 717. In response to the State’s contention that Appellant fully presented his theory of the case to the jury, we cannot conclude that the trial court’s refusal to permit Appellant to call Ms. Day to the stand was harmless. See Jenkins, 195 W.Va. at 628, 466 S.E.2d at 479. Simply put, we cannot be certain that the jury would not have viewed Appellant’s theory of the case in a different light had Ms. Day taken the stand and either responded to questions posed by defense counsel or refused to testify in the jury’s presence. Based on the specific circumstances present in this case, an acquitted co-defendant who refused to testify despite a grant of immunity combined with sufficient evidence suggesting that the co-defendant may have been the sole per t 150 (<HOLDING>). Based on the specific facts presented by this Holdings: 0: recognizing that exclusion of testimony that provides a direct link to someone other than the defen dant committing the crime constitutes reversible error 1: holding exclusion of defendants nephews prior inconsistent statement constituted reversible error 2: holding exclusion was harmless error 3: holding that sua sponte grant of summary judgment without notice to the parties constitutes reversible error 4: holding the erroneous deprivation of the right to counsel constitutes per se reversible error
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Friendly, J., and dissenting opinion of Lombard, J.) 4 . A recent case in which the same situation prevailed is LaMade v. Wilson (1975) 168 U.S.App.D.C. 108, 512 F.2d 1348. There the trial court had ruled such evidence admissible. The issue of a curative instruction was not raised and the only issue was one of admissibility. 5 . 375 U.S. at 255, 84 S.Ct. at 317. 6 . 58 Am.Jur. § 530, p. 124. For an instance in which an appropriate instruction cured an impermissible reference to collateral benefits, see Edwards v. Steinns (4th Cir. 1953) 207 F.2d 734, 735. To the same effect, are Mixon v. Lovett (1970) 122 Ga.App. 517, 177 S.E.2d 826, 827, and Finley P. Smith, Inc. v. Schectman (Fla.App.) 132 So.2d 460, 466; cf. Franklin v. Sandersville Railroad Company (5th Cir. 1971) 445 F.2d 270, 271 (<HOLDING>) The point, however, has been most often Holdings: 0: holding that the verdict must be sustained if there is any competent evidence to support the verdict 1: holding there is no dutyimposed on trial judge to question jurys verdict of liability but no damages unless requested to by a party 2: holding that jurys damagesrelated questions and verdict of liability with clearly inadequate damages of only medical expenses but no noneconomic damages in case where liability was hotly contested strongly suggested compromised verdict 3: holding that admission of hearsay constituted harmless error when there was more than sufficient other evidence in the record to support the verdict 4: holding that a verdict of no liability made any reference to collateral benefits harmless
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, at any time upon a showing of good cause. See 31 U.S.C. § 3730(c)(3). This court follows the vast majority of courts that have considered this issue and finds that the FCA does not run afoul of the separation of powers doctrine. See United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir.1994); Kelly, 9 F.3d at 755 (“[T]he FCA gives the Attorney General sufficient means of controlling or supervising relators to satisfy separation of powers concerns.”); Kreindler, 985 F.2d at 1155 (“[T]he FCA qui tam provisions do not usurp the executive branch’s litigating funct d qui tam rela-tors do not wield so much governmental power that their appointments must conform to the requirements of the Appointments Clause); Robinson, 824 F.Supp. 830, 836 (<HOLDING>). Hektoen argues that qui tam relators are Holdings: 0: recognizing that civil rights lawsuits are private only in form 1: holding that state rights are equivalent to federal rights in this area 2: holding that relators are not officers because they seek to vindicate not only public rights but their own private rights as well 3: holding that rights under vienna convention are not the equivalent of fundamental rights such as the right to counsel 4: holding that it is well settled that while one tenant in common may acquire homestead rights in the common property the rights so acquired are not superior to the rights and remedies of the other joint owners he can acquire no such rights as will prejudice or in anywise interfere with the rights of the other tenants in common
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the sound discretion of the trial judge.” Mangan, 575 F.2d at 45. The Bondholders argue that evidence regarding the hedging activities of Non-Consequential Damages Parties is not relevant as it does not shed light on the conduct of the Consequential Damages Parties and, ev ion v. Raroc, Inc., No. 99 Civ. 3078, 2000 WL 204537, at *2 (S.D.N.Y. Feb. 22, 2000) (citing, in the context of a labor case, 26 C.F.R. § 639.99(b)(2) for the proposition that an “employer must exercise such commercially reasonable business judgment as would a similarly situated employer in predicting the demands of its particular market”). Reasonableness cannot be judged solely by looking at the subjective actions of the Consequential Damages Parties. See Rost v. Pfizer, Inc., 248 F.R.D. 417, 419-20 (S.D.N.Y.2008) (<HOLDING>). Here, where “there is no clear, established Holdings: 0: holding that res judicata properly barred claims based on an employers decision to terminate an employee because the termination was not a fresh act of discrimination rather it was the same decision not to allow the employee to return to work that the employee had challenged previously 1: holding that an employer regards an employee as handicapped in his or her ability to work by find ing the employees impairment to foreclose generally the type of employment involved 2: holding that the one central question at a title vii trial is whether the employee produced sufficient evidence for a reasonable jury to find that the employer intentionally discriminated against the employee on the basis of race color religion sex or national origin emphasis added 3: holding that beeause the actions an employee takes to find work themselves cannot be evidence of their own reasonableness looking solely at the employee plaintiffs efforts to find work would convert the mitigation test into a subjective one 4: holding that to find negligence jury need not find violation of federal motorcarrier regulation
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this issue. Kinman states in her affidavit that initially she did not welcome McDougall’ F.3d 1006 (5th Cir.1996) (refusing to hold school district Hable for student-on-student harassment unless the school itself directly discriminated based on sex). The divergence of views on this issue stems in part from the factual disparity in the cases. Title IX cases vary in both the type of discrimination alleged (hostile environment, quid pro quo, sexual abuse, discriminatory hiring/firing, or some combination) and in the identity of the perpetrators and victims (teacher/student harassment, stu dent/student harassment, or school official/teacher harassment). But even those courts which have addressed similar fact patterns have varied in their holdings. Compare Bosley, 904 F.Supp. at 1022 (<HOLDING>) with Rowinsky, 80 F.3d 1006 (refusing to hold Holdings: 0: recognizing that an employer is liable for an employees action if the employer knew or should have known about an employees acts of harassment and fails to take appropriate remedial action 1: holding school board liable for studentonstudent harassment if school officials knew of harassment and intentionally failed to take proper remedial action 2: holding school hable for sexual harassment by its employees only if the district knew or should have known and neghgently failed to take prompt effective remedial action 3: holding that employer who failed to take remedial action could be held liable for sexual harassment of employee by subcontractors employees 4: holding school district strictly hable for sexual harassment by its employees
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III, concurs. 1 . The Fourth Circuit is one of two federal circuits that does not currently require a showing that the government intentionally delayed the indictment so as to gain a tactical advantage. See U.S. v. Automated Med. Laboratories, Inc., 770 F.2d 399 (4th Cir.1985); Howell v. Barker, 904 F.2d 889 (4th Cir.1990). Chief Justice TOAL dissenting: I respectfully dissent. In accordance with the majority of the federal circuits that have addressed the issue, I would hold that pre-indictment delay does not violate the Fifth Amendment’s due process clause unless a defendant can show both actual prejudice and that the State has intentionally delayed the issuance of an indictment in order to gain an unfair tactical advantage. See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (<HOLDING>). But leaving this aside, I disagree with the Holdings: 0: recognizing that the ninth circuit adheres to the rule that violations of the automatic stay are void and criticizing the bap decision in this case 1: recognizing that no federal circuit has addressed the issue 2: holding that reasonableness analysis applies in general jurisdiction case under federal circuit law 3: recognizing that the winter court rejected the ninth circuit sliding scale test because it was too lenient 4: recognizing that this test applies in every federal circuit save the fourth and the ninth
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also provides that “[t]he burden of proof in hearings held under this section is on the appropriate county agency.” In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa.Cmwlth.2000), the Department argued that the trial court had discretion to dismiss the statutory appeal for the sake of judicial efficiency when the licensee failed to appear at the scheduled hearing to prosecute his appeal. Finding no controlling authority on the issue, the Court relied on the “practice rule” under Rule 218(b)(1) and (c) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 218(b)(1) and (c), while recognizing that the rules of civil procedure do not apply to a statutory appeal. See Knopsnider v. Derry Twp. Bd. of Supervisors, 725 A.2d 245 (Pa.Cmwlth.1999) (<HOLDING>). Rule 218(b)(1) and (c) permits a plaintiff to Holdings: 0: holding discovery rules apply to civil forfeiture proceedings 1: holding that by vesting jurisdiction of gtla actions in circuit court where the tennessee rules of civil procedure applied the legislature intended to allow the tennessee rules of civil procedure to apply to gtla actions 2: holding that under pa rcp no 1007 the rules of civil procedure apply only to actions brought by a praecipe for a writ of summons or a complaint not to a statutory appeal 3: holding that preclusion rules apply in 1983 actions 4: holding that where state rules of civil procedure apply to courts of the state they do not apply to adjudicatory proceedings before state agencies
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Ventures § 12 (1969)).” Flowers v. Pope, 937 So.2d 61, 65-66 (Ala.2006). The record does not contain substantial evidence to create a jury question with regard to the existence of a joint venture involving Hyundai. Nothing in the evidence supports a finding of a community of interest. Hyundai never had a joint ownership interest with any of the alleged joint venturers in the property of the Rus-sells or the McLemore group upon the closings on the property. Additionally, Hyundai did not provide financing for the purchase of the property, and it had no risk or expenses with regard to the purchase. Thus, nothing supports a finding of a community of interest involving Hyundai with regard to the acquisition of the property to constitute the project site. Cf. Flowers v. Pope, 937 So.2d at 68 (<HOLDING>). Moreover, the record indicates that Hyundai Holdings: 0: holding evidence insufficient to support conviction when none of the defendants had any proprietary interest nor previous association with the premises and there was no evidence of how long the defendants had been on the premises prior to the arrival of the police 1: holding that a married couple filing a joint return can deduct interest paid on 1 million of acquisition indebtedness 2: holding that the submission of a defective involuntary joint petition corrected to include only one debtors name at the time of filing and prior to the issuance of the summons was a filing against only one debtor and consequently valid 3: holding a 50 joint interest 4: holding that there was no community of interest because the alleged joint venturers did not have an equal proprietary interest and only one of the alleged joint venturers bore the risks and paid the expenses
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the trial court’s denial of the university’s plea to the jurisdiction in part, but concluded that the bank’s claim for inverse condemnation was properly dismissed because the university took the property under color of contract, as conceded by the parties in their pleadings. Id. at 911. In contrast to Texas Southern, in which the parties conceded the existence of a contract by which the university took possession of the equipment, here, the Porrettos’ claim of ownership in the land is unchallenged in the pleadings and the evidence. Id. Instead, the facts in this case resemble those in State v. Riemer and Kenedy Memorial Foundation v. Mauro, cases in which takings claims survived a plea to the jurisdiction. See State v. Riemer, 94 S.W.3d 103, 109 (Tex.App.-Amarillo 2002, no pet.) (<HOLDING>); see also Kenedy Mem’l Found., 921 S.W.2d at Holdings: 0: 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 1: holding that there is no right to monetary compensation for a regulatory taking in an inverse condemnation action 2: holding assignment of oil and gas lease is subject to business and commerce code section 2601 3: holding provision in oil and gas lease authorizing lessor to use gas for agricultural purposes contained no geographical limitations 4: holding that allegations that states lease and actions that resulted in taking of oil and gas were sufficient to state claim for inverse condemnation
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light of the statute’s language, structure, and legislative history. If such inferences of intent are not present, we must conclude that “ ‘the essential predicate for implication of a private remedy’” does not exist. Thompson, 484 U.S. at 179, 108 S.Ct. at 516 (quoting Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981)). “Courts seldom imply a private right of action where none appears in the statute, for ‘a strong presumption exists against [their] creation....’” Statland v. American Airlines, Inc., 998 F.2d 539, 540 (7th Cir.1993) (quoting West Allis Mem’l Hosp., Inc. v. Bowen, 852 F.2d 251, 254 (7th Cir.1988)); see also Louisiana Landmarks Soc’y, Inc. v. City of New Orleans, 85 F.3d 1119, 1123 (5th Cir.1996) (<HOLDING>); Stowell v. Ives, 976 F.2d 65, 70 n. 5 (1st Holdings: 0: recognizing added presumption 1: recognizing this presumption 2: recognizing this rule 3: recognizing a presumption of reasonableness 4: recognizing that this court applies an appellate presumption of reasonableness to a withinguidelines sentence
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some state-law claims nonactionable through the class-action device”). 2. In connection with prong Plaintiffs assert that even if their complaints allege deceit, their claims are not SLUSA-barred because the challenged conduct did not occur “in connection with the purchase or sale of’ a security. 15 U.S.C. § 78bb(f)(l). But, the Supreme Court has read SLUSA’s “in connection with” requirement broadly, finding it satisfied if misrepresentations simply “coincide with a securities transaction.” Dabit, 547 U.S. at 77-78, 85, 126 S.Ct. 1503 (internal quotation marks omitted). The misrepresentation need only “have more than some tangential relation to the securities transaction.” Freeman, 704 F.3d at 1116 (internal quotation marks and citation omitted); see also Chadbourne, 134 S.Ct. at 1066 (<HOLDING>). That test is satisfied here. As the district Holdings: 0: holding that a plaintiff alleging securities fraud must show that a defendant 1 made a material misrepresentation or a material omission as to which he or she had a duty to speak 2 with scienter 3 in connection with the purchase or sale of securities 1: holding that it is unlawful for a person to omit material facts in connection with the offer or sale of a security 2: holding breach of best execution duty is a material misrepresentation in connection with the purchase or sale of the securities 3: holding that slusas in connection with prong extends to misrepresentations that are material to the purchase or sale of a covered security 4: holding that a claim arises from the purchase or sale of a security only if there is an allegation of fraud in the purchase sale or issuance of the instrument
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the plea-agreement-disclosure requirement. Although Wilder did not testify pursuant to a plea agreement, the Court finds that the prosecutor’s repeated reference to the “minimal” benefit afforded Wilder for his testimony was improper. The Court also finds that the prosecutor’s statements tended to mislead the jury, prejudiced Petitioner by hamstringing his efforts to explore fully Wilder’s motives for testifying, and were deliberately placed before the jury by the prosecutor. In addition, considered in the context of the relative weakness of the prosecution’s case, which relied heavily on Wilder’s testimony and the testimony of admitted drug dealers, the prosecutor’s misconduct rendered the trial fundamentally unfair. See Scott v. Foltz, 612 F.Supp. 50, 58 (E.D.Mich.1985) (Cohn, J.) (<HOLDING>). The Court finds that the state court’s Holdings: 0: holding that the prosecutors statement about a witnesss truthfulness was proper because the evidence showed that the witness complied with the plea agreement not that he told the truth simply because he entered into the plea agreement 1: holding specific performance of plea agreement proper remedy where defendant testified against all of his coconspirators and where court later unilaterally breached original plea agreement by imposing a ninety day term of incarceration in addition to sentence of probation that had been earlier agreed to without first providing1 defendant with opportunity to withdraw plea on the record 2: holding witnesss false testimony regarding plea agreement was reasonably likely to have impacted the jurys judgment where case essentially amounted to a credibility contest between the witness who testified falsely regarding a plea agreement and the defendant 3: holding that where judgment and sentence for nonexistent crime had to be vacated upon remand the state shall have the option of withdrawing from the entire plea agreement since the plea agreement was based on a material mistake of law which works to the benefit of the defendant 4: holding that a defendant must have knowledge of the likely consequences of entering the guilty plea in order for a plea to be voluntary and knowing
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whether or not a certificate has been filed. TOLLING OF STATUTE OF LIMITATIONS The hearing officer found that even if the limitations period began to run before the certificate was filed, the period should be tolled during the time the city was attempting to obtain worker’s signature on the certificate. Worker’s refusal to execute the certificate, according to the hearing officer, provided good cause for the city’s failure to file its claim against the fund within the limitations period. Tolling of a limitations period is normally accomplished by statute. See NMSA 1978, §§ 37-1-9 to 37-1-12 (tolling for absence or concealment of a debtor, minority, incapacity, death of claimant, and stay of action pursuant to injunction); cf. Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (Ct.App.1974) (<HOLDING>). As the Hardin case illustrates, some fault on Holdings: 0: holding that it may not 1: holding that tolling may occur even in absence of statute if defendant prevented plaintiff from knowing of claim by fraudulently concealing it or failing to disclose it when its existence is hidden from plaintiff 2: holding that there is an inference from the existence of a blank for the name of defendants lawyer and from the absence of any evidence to the contrary that defendant was not represented by counsel 3: holding that it is not 4: holding by new jersey supreme court that a plaintiff may recover from a spoliator even if the plaintiff prevails in the original suit
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(emphasis added.) As a matter of industry terminology, “not to exceed” or “guaranteed not to exceed” refers to an estimate by which the customer pays the lower of the estimated cost or the actual cost based upon the actual weight and services provided on the estimate. (Id. ¶ 15.) Had Mr. Harrison been disclosed pursuant to Rule 26(a)(2), there might have been an argument as to whether his expert opinion on the “industry” meaning of the terms “not to exceed” or “guaranteed not to exceed” would be admissible (especially in light of the fact that Chen is not a member of the moving industry). But there is no doubt that such testimony falls under Rule 702’s category of “specialized knowledge.” See, e.g., WH Smith Hotel Sens., Inc. v. Wendy’s Intl., Inc., 25 F.3d 422, 428-29 (7th Cir.1994) (<HOLDING>); but see Harbor Ins. Co. v. Continental Bank Holdings: 0: holding witness not licensed as real estate appraiser could not testify as expert on real estate valuation where statute made it unlawful to engage in real estate appraisal without license 1: holding that court did not err in interpreting lease using testimony of expert in real estate leases 2: holding that trial court did not err 3: holding prospectively that a vendees interest in a real estate contract constitutes real estate within the meaning of the judgment lien statute 4: holding that leases of real property upon which the debtor operated senior nursing homes were not leases of nonresidential real property
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is sought.’ ” Sample v. Keystone Mercy Health Plan, Civ. A. No. 12-3188, 2012 WL 5401015, at *4 (E.D.Pa. Nov. 5, 2012). We are bound by the Court of Appeals’ holding in Marra and agree with the numerous district courts deciding that the Seventh Amendment confers a right to a jury trial on PHRA claims seeking compensatory damages brought in federal court. See Id.; Weaver v. Cnty. of McKean, No. 11-254, 2012 WL 1564661, at *7 (W.D.Pa. Apr. 9, 2012) (“[T]he Court finds that Plaintiff has a right to a jury trial on her PHRA retaliation claim.”); Heater v. Kispeace, No. Civ. A. 05-4545, 2005 WL 2456008, at *5-6 (E.D.Pa. Oct. 5, 2005) (“Plaintiff is entitled to a jury trial on her PHRA claim for compensatory damages.”); Cortes v. R.I. Enterps., Inc., 95 F.Supp.2d 255, 260-62 (M.D.Pa.2000) (<HOLDING>). F. Compensatory and Punitive Damages pursuant Holdings: 0: holding that the plaintiff had established an entitlement to relief on the merits of the claim and was therefore entitled to fees even though it was remanded to the agency for further action 1: holding that claims under the vrra are equitable and a plaintiff is not entitled to a jury trial 2: holding that adea and phra claims proceed under the mcdonnell douglas framework 3: holding plaintiff established entitlement to jury trial of legal claims brought under the phra 4: holding that tort actions brought against a state actor must be brought in the illinois court of claims and the district courts dismissal of such claims was proper
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to raise a genuine issue of material fact as to whether or not the defendants knew of, and disregarded, an excessive risk to his health or safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”). The district court properly granted summary judgment on Windham’s due process claims challenging his transfer to administrative segregation at CSP-Solano because prisoners generally have no protected liberty interest in being incarcerated at a particular prison or against placement in administrative segregation. See Meachum v. Fano, 427 U.S. 215, 225-27, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (<HOLDING>); May v. Baldwin, 109 F.3d 557, 565 (9th Holdings: 0: recognizing minnesotas interest in protecting the interests of the child 1: holding that vdocs interstate transfer regulations are routine and create no liberty interest in any transfer 2: holding prisoners have no due process interest protecting against transfer from one insti tution to another 3: holding that there is no due process right to appellate review 4: recognizing virginias interest in protecting defendants from claims and in holding down insurance costs
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not qualify as an excited utterance because the State failed to show the amount of time that elapsed between the shooting and Anderson’s purported statement. Appellant further maintains that Anderson’s statement is not reliable because the State was unable to show Anderson’s actions during the time between the shooting and the statement, and therefore, Anderson may have had the opportunity to reflect on, or fabricate, the details of the shooting. The excited utterance exception to the hearsay rule is founded on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow the declarant an adequate opportunity to fabricate, thereby ensuring the trustworthiness of the statement. Couchman, 3 S.W.3d at p.-San Antonio 2002, pet. ref'd.) (<HOLDING>); Gay v. State, 981 S.W.2d 864, 867 Holdings: 0: holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant 1: holding that the trial court committed no error in sustaining objection to plaintiffs testimony that the water had been there for some time because the plaintiff had no personal knowledge of how long the puddle had been there 2: holding no excited utterance because declarant had time to fabricate during oneyear lapse 3: holding that the appellant had not changed his residence from his registered address despite the fact that the house had never had electricity service during the time that he had lived there 4: holding no excited utterance because declarant most likely deliberated about the offense during 10day lapse
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but not cocaine. The court entered a revocation of probation and imposed a two-year sentence for battery on a law enforcement officer and resisting arrest with violence, with credit for time served on probation. However, the court’s written order of revocation of probation does not give defendant any credit for time served on probation, and finds that defendant committed each of the probation violations charged. We affirm the revocation of probation because defendant admitted several violations of his conditions of probation. However, the State properly concedes that the sentence must be reversed because the trial court erred in failing to enter a written order that conformed to its oral pronouncements at the sentencing hearing. See Whitehead v. State, 654 So.2d 658 (Fla. 3d DCA 1995) (<HOLDING>); Nodal v. State, 650 So.2d 696 (Fla. 3d DCA Holdings: 0: holding that when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence the oral pronouncement controls 1: holding that the failure of a written sentence to conform to the courts oral pronouncement cannot be raised in a rule 3800a motion 2: holding that in cases of direct conflict between a courts oral pronouncement of sentence and the written judgment the oral pronouncement controls 3: holding that courts written sentence must conform to oral pronouncement 4: holding that written judgment controlled over oral pronouncement
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and a third party who supplied necessaries to the husband’s wife and children, providing the third party with a means of holding the husband liable for the support of his family. Id. As early as 1867, this Court expressly recognized a father’s liability for necessaries furnished to his child. Fowlkes v. Baker, 29 Tex. 135, 137 (1867); see also Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 48 (1931) (noting that a father’s liability for necessaries furnished to his minor child “is generally enforced in England, ... the United States, and always in Texas”). Not long after, this Court recognized attorney’s fees incurred as a result of services rendered for the benefit of a minor may be treated as necessaries. See, e.g., Searcy v. Hunter, 81 Tex. 644, 17 S.W. 372, 373 (1891) (<HOLDING>); Askey v. Williams, 74 Tex. 294, 11 S.W. 1101, Holdings: 0: holding that trial court properly assessed mothers attorneys fees as necessaries against father in case in which trial court ordered father to pay mothers attorneys fees as child support but did not state that the fees were necessaries 1: holding that attorneys fees are necessaries in a civil suit to recover money or property for the minor 2: holding that attorneys fees are necessaries for the criminal de fense of a child 3: holding that reasonable attorneys fees for the benefit of a minor in defending the minor against a criminal charge were necessaries 4: holding that attorneys fees are necessaries for the criminal defense of a child
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police observed that the radiator and motor were still hot. Id. The trial court also admitted evidence that Rawls was intoxicated at the time. Id. The Court of Criminal Appeals affirmed Rawls’ conviction, even though “[t]he only direct evidence that [Rawls] had driven a motor vehicle upon a public street was his statement or confession,” stating, The fact that appellant failed to challenge the statement of the driver of the wrecker or in any other manner failed to challenge the implication that it was his automobile which the officer trailed and which was found at the site is deemed sufficient circumstance to corroborate his extrajudicial confession that he was the driver of the automobile. Id. (relying on Fancher v. State, 167 Tex.Crim. 269, 319 S.W.2d 707, 708 (Tex.Crim.App.1958) (<HOLDING>)). Likewise, here, appellant described running Holdings: 0: holding that mother who did not learn of her sons death in airplane crash until seven hours after the crash could not recover 1: holding that the defendant was guilty of leaving the scene because the injured party and a police officer were present at the scene within a reasonable time after the accident 2: holding informants testimony corroborated by evidence consisting of defendants presence at scene coupled with cash found in his pocket carrying serial numbers matching those provided to informant for controlled buy and videotape of transaction included conversation of defendant regarding prior drug sale 3: holding that ownership of vehicle and presence at scene of crash sufficiently corroborated appellants statement 4: holding that a photograph of the body of the victim at the scene was relevant and admissible because it illustrated clarified and corroborated the testimony of various witnesses
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Export Clause does not contain that affirmative requirement, the court cannot construe the clause as the full and express waiver of sovereign immunity necessary to allow prejudgment interest. C. Fifth Amendment Taking Plaintiffs argue that the imposition of the HMT on exports was a taking under the Fifth Amendment and, therefore, the traditional rule against interest does not apply. The Takings Clause of the Fifth Amendment guarantees that private property shall not be taken for public use without just compensation. See U.S. Const, amend. V. A Fifth Amendment takings claim requires a two-step analysis. First, Plaintiff must establish that it possesses a compensable property interest. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992); , 876 (9th Cir. 1991) (<HOLDING>); Coleman v. C.I.R., 791 F.2d 68, 70 (7th Cir. Holdings: 0: holding that probation does not constitute a sentence 1: holding that a purely financial exaction does not constitute a taking 2: holding that bodily injury does not include purely emotional injuries 3: holding that overflights can constitute a taking 4: holding that the failure to completely disentangle the parties financial affairs does not constitute an abuse of discretion
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requirements of-Daubert, see Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317-18 (11th Cir.2011), or to expert, disclosure requirements under rules of court. See Tampa Bay Shipbuilding & Repair Co., 320 F.3d at 1217-23; United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir.2002). .This is so because “[l]ay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events.” United States v. Conn, 297 F.3d 548, 554 (7th Cir.2002) (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir.2001)); see also Fed. R. Evid. 701, Advisory Committee Note to 2000 Amendments (<HOLDING>). However, courts must be vigilant to ensure Holdings: 0: recognizing that rule 701 as amended incorporates the distinction set forth in state v brown 836 sw2d 530 549 tenn1992 in which the court stated that lay testimony results from a process of reasoning familiar in everyday life whereas expert testimony results from a process of reasoning which can be mastered only by specialists in the field 1: holding that in a statutory fee case the results obtained factor was already subsumed in the lodestar and that results multipliers should be awarded only in some cases of exceptional success 2: recognizing that independent analysis is the only means by which the defendant can defend against expert testimony by the state 3: holding that expert testimony is unnecessary where the case is not a case in which lay jurors would be unable to grasp the issues without expert assistance 4: holding that it is improper to judicially notice the content of testimony in another proceeding and noting that the method for introducing testimony from a past proceeding is set forth in rule 804b1 of the rules of evidence
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to the NLRB, the state’s jurisdiction is preempted. Id. at 197, 201, 98 S.Ct. 1745; see also Belknap, 463 U.S. at 511, 103 S.Ct. 3172 (applying primary jurisdiction test to state regulation of arguably prohibited conduct). As to whether the picketing was arguably protected by the NLRA, the Court went beyond the primary jurisdiction test to address additional federal supremacy concerns — whether, despite the lack of identi-cality between issues the state court and NLRB might consider, preemption was warranted to protect against the risk of “misinterpretation of [the NLRA] and the consequent prohibition of protected conduct.” Sears, 436 U.S. at 203, 98 S.Ct. 1745. We employed this “primary jurisdiction plus” approach in Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 786 (9th Cir.2001) (<HOLDING>). a. Primary Jurisdiction The parties do not Holdings: 0: holding that state jurisdiction over claims by union members against employer for false arrest false imprisonment and malicious prosecution were not preempted under garmon 1: holding union members state law claims for defamation against union preempted 2: holding that false arrest and false imprisonment claim were not duplicative 3: holding that false arrest is one means of committing false imprisonment 4: holding that claims for false arrest and imprisonment under 1983 accrue at the time of the arrest
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only unjust, but also inconsistent with the underlying policies of the patent law, now to base a determination that A & E infringed the patent on information that was not part of the public record at the time A & E designed the 735 Model, regardless of whether that information substantively altered the claims of the original patent. To do so would expose any subsequent inventor who seeks to improve the art to the risk of paying substantial damages by the simple expedient of allowing a patent holder to obtain a reissued patent and then use the changes in that patent in a pending infringement suit in order to prevail with its interpretation of a disputed term. See Stairmaster Sports/Medical Prod. Inc. v. Groupe Procycle, Inc., No. Civ. 97-396(MMS), 1998 WL 290296 (D.Del. May 20, 1998) (<HOLDING>). This potential risk is balanced to a certain Holdings: 0: holding that 1338a jurisdiction inures when a complaint establishes that federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law in that patent law is a necessary element of one of the wellpleaded claims 1: holding that copyright infringement defendant failed to prove the affirmative defense of unclean hands which was based on the patent holders marking of its product with an expired patent because there was no evidence that the patent holder had acted with the requisite intent to deceive 2: recognizing risk of allowing patent holder to selfservingly make a reissue declaration that broadens the scope of the claims beyond what was intended by the inventor when the initial patent was first filed 3: holding a nonparty to a patent infringement suit who funded an unsuccessful challenge to a patent could not file a subsequent lawsuit again challenging the patent 4: holding patent policy incorporated by reference into patent agreement
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determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). Maldonado-Reyes challenges the denial of his request for a continuance. “We review the BIA’s affirmance of the IJ’s denial of petitioner’s motion for continuance under an abuse-of-discretion standard.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir.2007). “An abuse of discretion occurs if ‘the denial ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.’ ” Id. (omission in original) (quoting Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir.2006)). The IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. “Finding ‘good cause’ is crucial since a continuance, in effe .2008) (<HOLDING>). Maldonado-Reyes additionally argues that the Holdings: 0: holding that an ij made an explicit credibility when the ij found testimony not credible based on several enumerated inconsistencies 1: holding that the ij did not abuse his discretion in denying request for further continuance where the ij granted previous request 2: holding that criminal aliens argument that the ij abused its discretion by not granting her a continuance does not present a constitutional claim or issue of law that this court has jurisdiction to consider 3: recognizing this court may affirm for any reason supported by the record 4: holding that where the ij had previously granted continuance requests this reason alone is a sufficient basis to affirm the ij
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Hart points to two remarks, one from the prosecutor’s closing argument, the other from the prosecutor’s rebuttal closing. In his brief, Hart quotes the first challenged remark: This whole thing about the Defendant intending to kill himself has been a false issue that’s just been kind of floating around out there throughout. What the Defendant’s actions were all about weren’t about suicide. * ⅜ ⅞ ⅜ But the bottom line is it doesn’t really matter what his intention was, whether he was intending at that time to kill himself. What matters is that he committed an aggravated assault. [¶ 12] Appellant contends the prosecutor’s remark was a gross misstatement of the law because intent does matter, even if the crime is a general intent crime. See Cox v. State, 829 P.2d 1183, 1185-86 (Wyo.1992) (<HOLDING>); accord Streitmatter v. State, 981 P.2d 921, Holdings: 0: holding that attempted sexual abuse is a specific intent crime 1: holding that duress is a defense available in new mexico except when the crime charged is a homicide or a crime requiring intent to kill 2: recognizing general rule 3: holding prosecutor has discretion to charge defendant under general crime even though more specific crime exists 4: holding that wyo stat ann 62502aiii defines a general intent crime
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whether the appeal is taken in good faith or is frivolous. Regardless of whether a defendant’s counsel or the district court determines that an appeal is frivolous, if the appellate court agrees, then no counsel is required to represent the client on the frivolous appeal. Rather, the obligation is upon counsel to withdraw from an appeal that is frivolous. Counsel may even be subject to sanctions for bringing a frivolous appeal. Fed. R.App. P. 38 ("If a court of appeals determines that an appeal is frivolous, it may ... award just damages and single or double costs to the appellee."). See also U.S. v. Spitzer, Case No. 06-CV00479,-Fed.Appx.-, 2007 WL 2376783 (11th Cir. 2007) (granting sanctions under Rule 38 when appeal was frivolous); U.S. v. Cooper, 170 F.3d 691 (7th Cir.1999) (<HOLDING>). 2 . Defendant, in her motion, relies on very Holdings: 0: holding rule 38 applies to frivolous criminal appeals as well as civil appeals 1: holding that court of appeals may adopt such waiver rule 2: holding that cr 60b applies to criminal as well as civil judgments 3: holding that state statute which re quired reimbursement of cost of criminal appeal transcript only by incarcerated persons violated the equal protection clause the statute would burden many appeals that were not frivolous and allow many that were so it did not serve the purpose of deterring frivolous appeals 4: holding that the court of appeals may not overrule modify or withdraw language from a previously published decision of the court of appeals
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statutes] and 625 ILCS 5/2 — 123(h) [section 2 — 123(h) of the Illinois Vehicle Code]). Now saying that they do “not directly rely on the [federal statutes],” Claimants contend that count III asserts “an implied statutory tort based on the federal statutes and State nondisclosure policy.” Petition for Rehearing, paragraph 20, at 7. Raising an issue of first impression in this Court, Claimants ask us to recognize an implied statutory tort— i.e., a private civil action implied from a statute that does not expressly create a private cause of action — emanating from a mix of federal and state statutes. Claimants invoke the “5-factor” standard for implied statutory torts established in Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 378, 432 N.E.2d 849, 59 Ill. Dec. 905 (<HOLDING>). We must reject this creative but wildly Holdings: 0: recognizing implied private action under the collection agency act 1: recognizing implied private action under the plat act rejecting implied private action under the national flood insurance act of 1968 2: recognizing implied private action for violation of the real estate brokers and salesmen license act 3: holding that a real estate brokers allegations of an oral contract with prospective purchasers stated a cause of action 4: holding that the real estate brokers law which provided for the investigation of the acts of real estate brokers and the suspension or revocation of their licenses for specified acts is penal and must be strictly construed
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his deposition and go over his testimony. They were under no obligation to do so. See Grand Jury Proceedings, 219 F.3d at 191 (contrasting subpoenaed grand jury testimony with voluntary disclosure). This “deliberate, affirmative, and selective” use of work product waives the SEC’s ability to now assert the privilege against the defendants. See also In re Grand Jury Subpoenas Dated June 5, 2008, 329 Fed.Appx. 302, 303-04 (2d Cir.2009) (summary order) (“Disclosure to Roe waived the privilege because Roe had firsthand and independent knowledge of the facts at the center of the grand jury’s investigation, she had separate representation from Doe, and her interests in the litigation were divergent from those of Doe.”); Ricoh Co., Ltd. v. Aeroflex, Inc., 219 F.R.D. 66, 70-71 (S.D.N.Y.2003) (<HOLDING>); Medinol, Ltd. v. Boston Scientific Corp., 214 Holdings: 0: holding privilege waived where plaintiffs counsel shared legal strategy with a thirdparty witness against whom plaintiffs had tolled claims 1: holding that opinion work product is entitled to nearly absolute protection with limited exceptions 2: holding work product protection waived for disclosures to independent auditor who did not share common interests with corporation 3: holding work product protection waived where company shared litigation strategy against plaintiff with nonparty independent contractor 4: holding defendants waived work product protection over emails that defense counsel sent to independent thirdparty witness with whom defendants did not share common interest
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night, and thus they tried to use the DWI unit whenever possible so that patrol cars would be available for their primary responsibility of responding to service calls and emergencies. He also stated that the DWI unit officers were more experienced in DWI investigations, were usually able to conduct a DWI investigation more quickly than patrol officers, and had primary responsibility for conducting DWI investigations. We conclude that the delay in Bullock’s detention furthered legitimate law enforcement purposes — specifically, ensuring that an adequate number of patrol cars are available to respond to emergency calls and utilizing a DWI unit that has greater experience in investigating DWIs and can perform such investigations with greater expediency. See Belcher, 244 S.W.3d at 539-41 (<HOLDING>); Hartman, 144 S.W.3d at 573-74 (holding that Holdings: 0: holding that legitimate law enforcement interests were served by local police officers delay while waiting for state police officer to arrive to conduct dwi investigation because state officers had more dwi experience and local officers needed to be available to respond to emergencies 1: holding delay in dwi investigation primarily for arrival of rookie officer for purpose of training was reasonable because delay furthered legitimate law enforcement purposes 2: holding approximately twentyminute delay in dwi investigation primarily to await arrival of dwi enforcement officer was reasonable because delay furthered reasonable law enforcement purposes 3: holding that delay while awaiting arrival of dwi enforcement officer was for legitimate law enforcement purposes because dwi officer was more experienced and could complete dwi investigation faster 4: holding fiveto fifteenminute delay in dwi investigation primarily so that another officer could bring a video camera to the scene was reasonable because delay furthered legitimate law enforcement purposes
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fact-dependent inquiry that will vary depending on individual circumstances”). Consideration of these factors leads the Court to conclude that Johnson’s due process rights have not been offended by his detention. Johnson was detained for eleven months before an IJ ruled on his removal, an extended period of detention. On December 17, 2012, an IJ ordered Johnson removed. The sole reason that Johnson continues to be in ICE custody is the fact that Johnson chose to appeal the IJ’s removal order. Although Johnson indisputably “has every right to seek any relief from deportation for which he may be eligible, delay caused by his actions does not make continued detention unreasonable or unjustified.” Andreenko, 2010 WL 2900363 at *4; see Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir.1991) (<HOLDING>); see also Diaz, 2011 WL 3422856, at *4 Holdings: 0: recognizing a plaintiffs 1988 claim predicated on an alleged violation of his substantive due process rights 1: holding a judgment in the absence of notice violates due process rights 2: holding that pretrial detention resulting from legal process unsupported by probable cause violates the fourth amendment 3: holding that petitioneralien could not rely on the extra time resulting from his pursuit of available legal remedies to claim that his prolonged detention violates substantive due process 4: recognizing 1983 substantive due process claim
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from disposition of collateral, our analysis is based on a calculation of McCormac’s intended “pecuniary harm.” U.S. Sentencing Guidelines Manual § 2B1.1, cmt. n. 2(A)(ii). The 2001 amendments to the sentencing guidelines for fraud make clear that intended loss should not be an inquiry into intent to repay, as suggested by case law interpreting the prior sentencing guideline, but rather should focus on the intended financial harm. See id. Thus, even though in many instances this will simply be an inquiry into whether a defendant intended to repay, when collateral is involved courts must also consider whether a defendant planned to return the collateral or anticipated that such collateral would be repossessed or foreclosed on by the lending institution. See Williams, 292 F.3d at 686 (<HOLDING>). Applying that standard here, we find that Holdings: 0: holding that the district court determines the amount of loss under the preponderance of the evidence standard 1: holding that a court should consider pledged collateral when determining the amount of the intended loss 2: holding that the amount that a defendant made available to himself by way of fraudulent deposits demonstrated the amount of loss intended 3: holding that while the nonprevailing partys financial condition is not appropriate to consider in determining whether to award attorneys fees it is appropriate to consider when determining the amount of the attorneys fees 4: holding that bank incurred a loss when it made a loan upon the collateral of pledged stock certificates
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of an interpretation that covers the asserted dispute.” Carter, supra, 566 A.2d at 717. Any doubts in this regard are to be “resolved in favor of coverage.” Id. As it is clear that Article II, Section 12 can be interpreted rationally to include the underlying dispute between the parties here, we hold, as a matter of law, that the parties’ dispute falls within the scope of their agreement to arbitrate. Our decision to enforce the Beth Din provision in Ohev Sholom’s bylaws is consistent with every other decision of which we are aware in which an appellate court in a jurisdiction, like ours, that has adopted the Uniform Arbitration Act has addressed the enforceability of an agreement to refer a dispute to a Beth Din. See In re Marriage of Popack, 998 P.2d 464, 465-68 (Colo.2000) (<HOLDING>); Blitz v. Beth Isaac Adas Israel Congregation, Holdings: 0: holding that an arbitration agreement was procedurally unconscionable because it did not attach the aaa rules 1: holding that an agreement to arbitrate before a beth din is enforceable under the colorado uniform arbitration act as long it is not unconscionable and did not result from duress 2: holding that a later concession to strike an unconscionable term does not change the fact that the arbitration agreement as written is unconscionable and contrary to public policy 3: holding that an arbitration clause was not unconscionable because it did not unreasonably favor the defendants 4: holding unconscionable an arbitration agreement requiring employees to arbitrate claims against the employer but not requiring the employer to arbitrate claims against the employees
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order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties[.] 6 . Assuming, arguendo, that the circuit court intended.to — and did— dismiss the entire action, that ruling would have been erroneous. Md. Rule 2-213 provides: Misjoinder of parties is not ground for dismissal of an action. So long as one of the original plaintiffs and one of the original defendants remain as parties to the action, parties may be dropped ... by order of the court on motion of any party.... Any claim against a party may be severed and proceeded with separately. Severance rather than dismissal is the appropriate remedy for misjoinder when, as here, the appellants and the Asbestos Defe .Y.1993) (<HOLDING>); Ex parte Rudolph, 515 So.2d 704 (Ala. 1987) Holdings: 0: holding on policy grounds that a strict liability claim should not lie against drug manufacturer 1: holding joinder of two defendants was proper where plaintiffs filed a products liability claim against general motors and a negligent roadway design claim against a local government for injuries caused by an automobile accident 2: holding that despite a jury verdict against the insured hospital for medical malpractice liability was not beyond dispute 3: holding joinder of a hospital medical malpractice claim and a drug manufacturer products liability theory was proper in claim alleging injury from administering a drug 4: holding defendant made motive issue in drug conspiracy prosecution by advancing theory he was conducting investigation of drug dealing
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17 U.S.C. § 102). It then noted that "[elffort expended to create the Tentative Map and supporting documents is effort expended to create tangible: works of authorship," and "[als such, ... [was] within the scope of copyright protection." Id. (citing Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985)). Turning to the second prong-the extra-element test-the court noted that the development company's allegation that its former employee had breached her fiduciary duty by giving the map to its competitor did not "change[] the nature of [its] action'" but rather simply restated a copyright claim. Id. at 977. Accordingly the "unfair competition claim for misappropriation of ... time and effort expended in producing t *1, *5 (Mich.App. Sept. 22, 2005) (per curiam) (<HOLDING>); Editorial Photocolor Archives, Inc. v. Holdings: 0: holding in suit between sellers of historic photographs copyright act preempted state law claim based on right to exclusive reproduction of photographs 1: holding that even if utah law recognized tort of misappropriation such a claim would be preempted by copyright act 2: holding in suit between film and photograph archive companies that copyright act preempted misappropriation claim and pllaintiffs could not by nsiscasting their causes of action secure the equivalent of copyright protection under guise of state law 3: holding that while the computer program at issue was within the subject matter of copyright the right sought under state law pursuant to a license was not equivalent to the exclusive rights under copyright as such copyright preemption did not apply 4: holding misappropriation claim by real estate information service provider against website using services photographs was preempted by copyright act because claim had no extra element
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third parties. In re Farmland Indus., Inc., 378 B.R. 829 (8th Cir. BAP 2007). The BAP remanded the case to the bankruptcy court, instructing the court to dismiss GAF’s complaint for lack of subject-matter jurisdiction. The defendants appealed the BAP’s decision, and this Court reversed. In re Farmland Indus., Inc., 567 F.3d 1010 (8th Cir.2009). We held that the bankruptcy court had subject-matter jurisdiction because GAF’s claims are “related to” the bankruptcy of Farmland under 28 U.S.C. § 157(e)(1). Id. at 1020. We thus remanded the case to the BAP for a ruling on whether the bankruptcy court properly dismissed GAF’s complaint. Id. at 1021. On remand, the BAP affirmed the bankruptcy court’s dismissal of GAF’s complaint. In re Farmland Indus., Inc., 408 B.R. 497 (8th Cir. BAP 2009) (<HOLDING>). II. In an appeal from a decision of the BAP, Holdings: 0: holding that employers have standing to sue 1: holding that gaf lacked standing to sue and that gafs complaint failed to state a claim was barred by collateral estoppel and was precluded by 11 usc 363m 2: holding that plaintiffs lacked standing to sue 3: holding that a union lacked standing to sue for injuries passed on to it by intermediaries 4: holding that challenge to state proceeding was barred by younger even if it was not barred by rookerfeldman
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most favorable to the plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). Dismissal of a complaint is improper “unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.’ ” Id. (quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986)). 1. Application of the statute of limitations to the § 1983 claims. DeGrassi contends that the district court erred when it dismissed those of her § 1983 claims based on acts occurring more than one year before the fifing of the action on September 23, 1997, as barred by the one-year statute of limitations. We apply California’s personal injury statute of limitations to § 1983 actions. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.1999) (<HOLDING>). Federal law determines when a civil rights Holdings: 0: holding that collateral estoppel applies to 1983 claims 1: holding that the oneyear statute of limitations set out in 28 usc 2244d applies to 2241 petitions 2: holding that the aedpa oneyear statute of limitations applies to amendments to 2255 motions 3: holding that in california the oneyear statute applies to a 1983 action 4: holding that a similar motion to strike under california state law applies in federal court
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each element of this offense. Witness testimony and wire-transfer receipts confirm that the defendant made wire transfers of $93,650 in drug proceeds. Further, the defendant’s claim of innocence is incredible. Over a span of three years Ronald Jenkins received thousands of dollars in cash from Hart, Smith, House, and Coleman, all young men ranging in age from 15 to 19. He also was aware that his brother lived a lavish lifestyle—he owned multiple homes, limousines, a Rolls Royce—yet had no visible source of income. On at least one occasion, the defendant had over $100,000 in cash stored in a garbage bag in his home. A jury certainly could have concluded from this evidence that the defendant was aware that the money in question had resulted from drug activity. Lopez, 42 F.3d 463, 467 (<HOLDING>). III. Next, the defendant argues that his Holdings: 0: holding that because evidence was sufficient to support defendants 1962c convictions and jury could infer from evidence that defendants each manifested an agreement to participate in enterprises affairs evidence was sufficient to support defendants 1962d convictions for rico conspiracy 1: recognizing that jury may infer from the evidence that defendants money came from drug sales 2: recognizing that a jury is permitted to infer an intent to deceive from circumstantial evidence 3: recognizing that while it is more difficult to show actual fear without a defendants testimony a jury can infer intent from the circumstantial evidence 4: holding that the factfinder may infer discrimination from the falsity of the employers explanation
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ch. 290, § 1, 2001 Tex. Gen. Laws 548, 548-51 (repealed and recodified 2003) (current version at Tex Ins.Code Ann. §§ 541.051-.061). 8 . This subsection defines as unfair and deceptive acts or practices in the business of insurance [m)isrepresenting an insurance policy by: (a) making an untrue statement of material fact; (b) failing to state a material fact that is necessary to make other statements made not misleading, considering the circumstances under which the statements were made; (c) making a statement in such manner as to mislead a reasonably prudent person to a false conclusion of a material fact; (d) making a material misstatement of law; or (e) failing to disclose any matter required by law to be disclosed, including a failure to make disclo .-Corpus Christi 2003, no pet.) (<HOLDING>). Significantly, both Durbin and Alaniz relied Holdings: 0: holding that a reviewing court must address an appellees reply as to preservation of error and an alternative argument in an appellees reply 1: holding issues raised for the first time in a reply brief are not properly before this court 2: holding that issue raised for the first time in reply brief was waived 3: holding that affidavit filed separately from the reply was untimely because it was offered in support of the motion for summary judgment but evidence attached to the reply was properly part of the summaryjudgment evidence because the evidence was offered in reply to nonmovants response 4: holding that a contention raised for the first time in a reply brief was waived
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to Young, falls short of the required showing necessary to establish that his claim reasonably grew out of the EEOC charge. For a charge to grow out of an ensuing investigation, the plaintiffs EEOC charge must, at a minimum, relate facts that would prompt the EEOC to consider or investigate other forms of discrimination. See Haithcock v. Frank, 958 F.2d 671 (6th Cir.1992) (noting that plaintiffs complaint contained factual predicates that supported court review of allegations of race and disability discrimination). The facts set forth in Young’s charge explicitly limit his allegation to that of age discrimination and there is no evidence to conclude that the EEOC uncovered facts that would suggest otherwise. See Abeita v. Trans-America Mailings, Inc., 159 F.3d 246 (6th Cir.1998) (<HOLDING>). Viewing the determination letter as a whole, Holdings: 0: holding that a title vii retaliation claim was not properly before the court because although the plaintiff had not been fired when he filed his complaint the plaintiff never amended his complaint to include a claim of retaliation based on his termination 1: holding that a claim of retaliation for filing eeoc charges is cognizable under 1981 2: holding court did not have jurisdiction to hear plaintiffs retaliation claim where plaintiff did not check the retaliation box or describe anything that indicates such a claim in the eeoc complaint 3: holding retaliation claim not reasonably related to discrimination charges where eeoc complaint set forth retaliation as a motive for plaintiffs termination and not as a motive for plaintiffs overtime assignments 4: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation
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governmental interest or if it is an unreasonable means of advancing a legitimáte governmental interest.” In Curto, the plaintiff, a gas station owner, claimed that a local ordinance violated his substantive due process rights by limiting the number of vehicles that were allowed to wait for service at his station. Id. at 1240. Pearson, Curto, Lakewood, and Harris are all consistent with the Supreme Court’s substantive due process jurisprudence. Oddly, the Sixth Circuit also has a line of recent cases in which it holds that substantive due process protects only fundamental rights, and affords no protection to state action that arbitrarily or capriciously deprives persons of their economic interests or contractual rights. See Charles v. Baesler, 910 F.2d 1349, 1352-56 (6th Cir.1990) (<HOLDING>); Sutton v. Cleveland Bd. of Educ., 958 F.2d Holdings: 0: holding right to testify was federal constitutional right 1: holding that plaintiff state employees contract right to be discharged only for cause was not protected by due process clause because it did not rise to level of fundamental right 2: holding that plaintiff state employees contractual right to promotion was not protected by constitutional guarantee of substantive due process because right was not fundamental 3: holding right to be fundamental 4: holding that the right to drive is not a fundamental right
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reciprocal admission rules are more generous, Mr. Spencer was required to establish that he had been actively practicing for three of the previous five years preceding his application. See Idaho Bar Comm'n R. 204A(a)(2) (2010); see also supra ¶ 1 n. 1. 24 . Rule 14-705 now requires that an applicant seeking admission on motion establish that he has actively practiced law in a reciprocal jurisdiction for five of the seven years preceding his application. Sur. Ct. R. Practice 14-705(a)(7). 25 . 42 U.S.C. § 12132. 26 . Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir.2000) (citing Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 LEd.2d 540 (1998). 27 . Id. (citations omitted). 28 . See Kourianos v. Smith's Food & Drug Ctrs., Inc., 65 Fed.Appx. 238, 241 (10th Cir.2003) (<HOLDING>). 29 . 42 U.S.C. § 12189. 30 . 28 C.F.R.§ Holdings: 0: holding that plaintiffs claim that she was disabled because her major life activity of breathing was substantially limited by her respiratory condition would provide a basis for protection under the ada 1: holding that employee who frequently missed work was not a qualified individual able to perform the essential functions of her job either with or without a reasonable accommodation as required to support disability discrimination and reasonable accommodation claims under the rehabilitation act 2: holding that ada may obligate employer to reassign disabled employee who can no longer even with reasonable accommodation perform the essential functions of her job 3: holding that the appellant failed to establish that she was entitled to an accommodation under the ada because there was nothing in the record to demonstrate that she could not perform the functions and activities of daily life or that her impairment and symptoms substantially limited her functions and activities 4: holding that employee allegedly suffering from fibromyalgia was not qualified individual and thus could not maintain ada claim challenging transfer and termination inasmuch as she was unable to perform essential functions of those positions with or without accommodation employee did not dispute supervisors evaluations documenting her performance deficiencies and provided no medical evidence that requested accommodation would have improved her performance
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understood that “revisions to the Increment Rule,” which might have obviated the need for its petition, “would take time.” Pet’r’s Br. 29. But the Clean Air Act does not toll filing deadlines for such niceties. The Increment Rule was in full effect and applicable to North Carolina when we handed down our decision in NRDC. See, e.g., 75 Fed.Reg. at 64,898 (noting that the Increment Rule set “final PM2.6 increments ... for all State [prevention of significant deterioration] programs” (emphasis added)). The State thus had no more than sixty days from when we issued that decision on January 4, 2013, to avail itself of the after-arising grounds exception and file its petition. See 42 U.S.C. § 7607(b); cf. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (<HOLDING>), abrogated on other grounds by Califano v. Holdings: 0: holding that issue of whether dismissal was with or without prejudice becomes ripe only when new action is filed and issue is raised the court in the new action should decide the issue 1: holding that a suit is ripe if the legal issue is fit for judicial resolution and the party challenging an administrative action has felt its effects in a concrete way 2: holding that requiring a party to participate in further administrative or judicial proceedings is not a hardship sufficient to outweigh a determination that an issue is unfit for review 3: holding that the ripeness doctrine exists to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements over administrative policies and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties 4: holding that a third party holding legal title to property is a necessary party in an action for equitable distribution
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have recognized inherent powers in the following instances: to change, set aside or otherwise control their judgments; to summon and compel the attendance of witnesses; to regulate the admission and practice of law; and to provide personnel to aid the court in the exercise of its judicial function. Id. at n. 1 (and cases cited therein). The judicial branch of government possesses inherent power to require the legislative and judicial branches to provide staffing and facilities for it to properly perform its judicial functions. Distvict Judges of 188th Judicial District v. County Judge and Commissioners’ Court for Gregg County, Texas, 657 S.W.2d 908, 909 (Tex.App.-Texarkana 1983, writ refd n.r.e.); see also Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 110 (Tex.1981) (<HOLDING>). Without this power, the judiciary, a separate Holdings: 0: holding that longevity pay enhanced the regular periodic salaries paid to firefighters and police officers 1: holding that a clerks scheduling duties as part of a courts inherent power to control its docket is subject to absolute immunity 2: recognizing inherent power of courts of appeals 3: recognizing the inherent power of the courts to issue warrants 4: holding that courts have inherent power to hire and require salaries be paid to secretaries clerks probation officers and assistants
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should be warned that his statements during sentencing could be used against him in his pending case. See Whitehead, 21 So.3d at 159 (noting that the trial judge “told the defendant that he could say anything he wished, but warned him that his statements could be used in the [pending] case”). If the defendant decides not to offer an explanation, the court should respect his decision and not consider his silence in imposing sentence. For the above reasons, we affirm the defendant’s conviction and sentence. We recede from prior case law to the extent that it is inconsistent with this opinion. Affirmed. DAMOORGIAN, C.J., WARNER, STEVENSON, GROSS, MAY, CIKLIN, GERBER, LEVINE, CONNER, FORST and KLINGENSMITH, JJ., concur. 1 . See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) (<HOLDING>); Mirutil v. State, 30 So.3d 588, 590 (Fla. 3d Holdings: 0: holding that the sentencing judge could consider the defendants subsequent arrest even though the charges were dismissed during sentencing 1: holding that consideration of pending or dismissed charges during sentencing results in a denial of the defendants due process rights 2: holding decision denying expert witness testimony during sentencing concerning impact of prison term on juvenile offender was not a denial of due process 3: holding that the trial courts apparent consideration of the defendants national origin during sentencing amounted to a due process violation and required resentencing by a different judge 4: holding that a trial courts consideration of a new pending charge at a sentencing hearing for the purpose of determining a pattern of conduct and defendants character was not improper absent a showing that the trial judge used the pending charge in determining defendants sentence
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overcompensates the defendant, at the expense of the deterrence force of the criminal law. Another consequence is that there will be fewer motions of any kind. If filing a motion under § 5K1.1 permits the judge to cut the sentence by three-quarters (as happened here), the prosecutor will insist on a great deal of assistance. Many defendants are unlucky enough to have little of value to offer.... They are now condemned to serve the full authorized sentence, even though a prosecutor possessed of power to differentiate might reward slight aid with a slight reduction. ' We hold that a motion under USSG § 5K1.1 unaccompanied by a motion under 18 U.S.C. § 3553(e) does not authorize a sentencing court to impose a se d.2d 169 (1993); United States v. Valente, 961 F.2d 133, 135 (9th Cir.1992) (<HOLDING>). V. Finally, Melendez argues that the district Holdings: 0: holding that a sentence below a statutory minimum based on the filing of a substantial assistance motion did not eliminate the otherwise applicable mandatory minimum for purposes of sentence modification under 3582c2 1: holding that a motion under 5k11 permitted a downward departure from the guideline range but that the departure could not extend below the statutory minimum sentence absent an additional motion by the government under 3553e 2: holding that a defendants substance abuse or addiction does not justify a downward departure 3: holding that defendants diminished capacity while grounds for departure from the guidelines sentencing range is not grounds for departure below the minimum sentence set by congress 4: holding that defendants aberrant behavior will not justify a departure below a statutory minimum
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has met “the burden of showing that ‘such an adjustment is necessary to the determination of a reasonable fee.’” Dague, 505 U.S. at 562, 112 S.Ct. at 2641 (emphasis added) (quoting Blum, 465 U.S. at 898, 104 S.Ct. at 1548). Moreover, we disagree with the dissent that the unavailability of willing local counsel is not a proper factor justifying an enhancement of the lodestar. Such an enhancement is clearly necessary to a reasonable fee where the district court finds that the case is of the type that attorneys are unwilling to take for fear of ostracization and out of concern for their personal safety. Such a consideration is hot ordinarily reflected in the lodestar, and we find that it was clearly not reflected in the lodestar in this particular instance. See Stewart, 987 F.2d at 1454 (<HOLDING>). In the alternative, the dissent contests the Holdings: 0: recognizing that after dague enhancement is still appropriate in limited circumstances on the basis of factors not fully reflected in the basie fee 1: holding that application of 2a31 is appropriate even when the victim is fictional as an enhancement for a fictitious victim is consistent with the utilitarian purpose of the enhancement 2: recognizing same factors 3: recognizing contribution in the appropriate case 4: holding that the 2d11b1 enhancement is not limited to the charged conspiracy
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any difficulties were created by the State. In support of his contention, Defendant merely asserts that the manufacturer of a particular machine, the Intoxilyzer, does not sell the machine to private persons. Moreover, the record fails to show that Defendant even attempted to obtain independent testing of his breath. Defendant did not offer any evidence that the State created the difficulty he identifies in obtaining a breath sample. Instead, the record shows that Defendant was informed of his right to seek an independent chemical test, but did not seek one. He could have obtained a blood test. Thus, the practical difficulty that Defendant identifies in obtaining an independent breath sample fails to create a due process violation. See Bolan, 187 Ariz. at 161-62, 927 P.2d at 821-22 (<HOLDING>). ¶ 16 For the foregoing reasons, we affirm Holdings: 0: holding that mere neglect for prisoners safety does not amount to a substantive due process violation implying that intent to do harm would be an abuse of government power and amount to a substantive due process violation 1: holding blood testing for alcohol content a search 2: holding that there is no federal due process right to present new evidence of actual innocence such as dna testing 3: holding that practical difficulties in securing transportation and finding and hiring experts for blood testing and analysis do not present due process violation 4: holding that there is no due process violation where the ijs finding was not arbitrary and the alien was not denied a full and fair opportunity to present his claims
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sent the notices to his last known address and to the prison where he was incarcerated, that the prison received the notice and had a policy and procedure in place for distribution of mail to inmates, and that the Government published notice in USA Today. Rather, Tidwell argues for the first time on appeal that the notice the Government provided was insufficient because the Government could have assured that the Notice of Seizure was directly handed to him or sent to his attorney, but it failed to do so. The argument that the Government must provide a prisoner with actual notice was squarely rejected by the Supreme Court in Dusenbery. Dusenbery, 534 U.S. at 171, 122 S.Ct. 694 (“[O]ur cases have never required actual notice.”); see One Toshiba Color Television, 213 F.3d at 155 (<HOLDING>). Furthermore, Tidwell’s argument that the Holdings: 0: holding that where the recipient is a federal prisoner the government is required to provide him with actual notice of a deprivation 1: holding that while the government was required to prove that the defendants phone call crossed a state line the government did not need to prove that the defendant knew of the interstate nexus 2: holding that the government need not prove actual notice to the prisoner 3: holding that where the governmental unit filed a verified special denial that it received timely actual notice the plaintiff had the burden to prove and secure a finding on actual notice at trial 4: holding that notice of administrative forfeiture sent to prisoner did not require actual notice to the property owner only notice reasonably calculated to apprise a party of the pendency of the action
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fall within one of the limited grounds for vacation of an arbitration award. See § 16-4423(a)(3) (identifying as ground for vacatur arbitrator’s “re-fus[al] to consider evidence material to the controversy, or otherwise conducting] the hearing contrary to § 16-4415,” which provides for “a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing,” D.C.Code § 16-4415). Ap-pellee’s brief, however, paints a different picture. He contends that appellant agreed to the arbitrators, that she testified at the hearing, and responded to questions. In short, appellant’s bare allegations are contested and, without support, are insufficient to prove a statutory basis for vacating the arbitration award. See Dolton, 935 A.2d at 299-300 (<HOLDING>). Appellant argues that because there is no Holdings: 0: holding that the statutory grounds for vacatur and modification of arbitration awards may not be supplemented by contract 1: holding that a transcript is necessary if the asserted grounds for vacatur of arbitration award are grounded in the conduct of the proceeding 2: holding that common law grounds such as manifest disregard of law and gross mistake were not valid grounds for vacatur of arbitration award as hall street forecloses any common law grounds for vacatur 3: holding that the role of the courts is limited to ascertaining whether there exists one of the specific grounds for the vacation of an award as provided in 10 of the arbitration act and that the court should not review the arbitration proceeding for errors of law or fact 4: holding that arbitrary and capricious ground for vacatur recognized along with the four grounds for vacatur specified in chapter 1 of the faa could not be used to vacate award under the convention
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have previously rejected similar arguments and recently addressed this same issue in Marek v. State, where we explained: With regard to the claim about the length of time Marek has spent on death row, we have previously rejected similar arguments. In Tompkins [v. State], 994 So.2d [1072, 1085 (Fla.2008)], we held that twenty-three years on death row did not constitute cruel and unusual punishment. We explained that 0 L.Ed.2d 89 (2008); Elledge v. State, 911 So.2d 57, 76 (Fla.2005) (finding no merit in constitutional claim predicated on the cruel and unusual nature of prolonged stay on death row); Lucas v. State, 841 So.2d 380, 389 (Fla.2003) (concluding that twenty-five years on death row does not constitute cruel and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (<HOLDING>). Therefore, Johnston’s claim that execution Holdings: 0: holding that seventyfive to ninetynine years for robbery is not cruel and unusual punishment 1: holding that what constitutes cruel and unusual punishment is a question of law 2: holding that twentythree years on death row is not cruel and unusual punishment 3: holding that the fact that defendant spent years on death row awaiting execution does not render the death penalty cruel and unusual punishment 4: holding cruel and unusual punishment complaint not preserved
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“[t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration ... [and opining that] as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability”) (citations omitted). Neither of the FDIC’s other arguments undermines this conclusion. First, the court is unpersuaded by the FDIC’s claim that a broad interpretation of the arbitration clause would render the forum selection clause superfluous. As TACG points out, the forum selection clause could apply to suits to compel arbitration or enforce an arbitration award. See Kvaerner ASA v. Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch, 210 F.3d 262, 267 (4th Cir.2000) (<HOLDING>). Thus, a broad construction of the arbitration Holdings: 0: holding that a contracts clause violation may support a 1983 claim 1: holding that the best way to harmonize a choice of law clause and an arbitration clause is to apply the substantive case law of the named state to the entire agreement including the arbitration clause 2: holding that a contracts choiceoflaw provision did not determine the scope of an arbitration clause 3: holding that there was no conflict between a contracts arbitration clause and its venue clause 4: holding an entire arbitration clause is void and arbitration cannot be compelled where contract contained unconscionable clause and has a nonseverability clause
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Inc., 120 F.3d 50, 52 (5th Cir.1997), we held that an individual who was permanently blind in one eye was not substantially limited in the major life activity of seeing because he could see well enough with the other eye to engage in most typical activities.. And in Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996), we held that an individual who suffered from asbestosis, which impairment had reduced his lung capacity to 50% of normal and had caused him to experience shortness of breath and difficulty climbing stairs, was not substantially limited in the major life activity of breathing. See also Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 & n. 11 (5th Cir.1995), and Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.1996) (<HOLDING>). Additionally, we note that Deas' claim is Holdings: 0: holding that workers compensation statutes do not prohibit claimant from receiving permanent partial disability benefits from prior accident concurrently with temporary total disability benefits from subsequent injury 1: holding evidence of a 13 permanent partial disability insufficient to establish disability for purposes of ada 2: holding that determination of causation in permanent disability hearing not barred by estoppel because wlhether an industrial accident caused temporary total disability or permanent partial disability are two distinct questions 3: holding that disability pension benefits could be offset against both temporary and total permanent disability compensation benefits 4: holding that a totally disabled claimant whose preexisting osteoarthritis was temporarily aggravated by her employment was entitled to temporary total disability benefits but not permanent total disability benefits because there was no causal connection between the temporary aggravation and the permanent disability
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in seeking a lower sentence, the record must both reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” United States v. Vonner, 452 F.3d 560, 567 (6th Cir.2006); United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006). This Court will only uphold a sentence if it is reasonable. Reasonableness contains two facets: substantive and procedural. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005); United States v. Jones, 445 F.3d 865 (6th Cir.2006) (Moore, J., dissenting on the ground that the majority opinion conflicted with prior Circuit precedent). In reviewing for reasonableness, this Court employs a presumption of substantive reasonableness. United States v. Williams, 436 F.3d 706, 708 (2006) (<HOLDING>). That is, this Court presumes that the Holdings: 0: holding a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the sentencing guidelines 1: holding presumption of reasonableness exists but still noting that a district court must consider the 3553 factors 2: holding that a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the sentencing guidelines 3: recognizing a presumption of reasonableness 4: holding that the rebuttable presumption of reasonableness does not relieve the district court of the obligation to consider other relevant statutory factors or sufficiently articulate its reasoning so as to permit reasonable appellate review
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§ 3. As we have discussed, Stewart decided whether a worker on a floating dredge was a seaman. Steivart did not decide whether a ship taken out of the water for extensive repairs was a vessel. Stewart’s holding, thus, does not decide the issue before us. Rather, we must decide this case by looking at its distinct factual circumstances and their legal implications. Nehring v. S.S. M/V Point Vail, 901 F.2d 1044, 1050 (11th Cir.1990). Stewart simply reinforces our precedent, directing our focus to the BETTY LYN II’s practical capability to serve as a means of maritime transportation. D. The BETTY LYN II is a Vessel A “case-by-case approach” is often necessary to determine whether admiralty jurisdiction applies to “novel or unusual situations.” Id. This case w 45, 850-51 (8th Cir.2004) (<HOLDING>); Colonna’s Shipyard, 584 F.Supp.2d at 864, Holdings: 0: holding that the plaintiffs speech was not constitutionally protected because it was made in his official capacity and there was simply no evidence that he was speaking as a citizen on a matter of public concern 1: holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant 2: holding that because civil contempt is only to obtain compliance it must be used only where the contemnor has the present ability to comply with the court order and the trial court specifically finds that the contemnor has that ability 3: holding that a ship with inoperable engines and no ability to selfpropel was a vessel because it had residual navigational capacity 4: holding that plaintiffs did not have standing because they did not sue the party with the clear ability to act
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citing Letson v. Liberty Mut. Ins. Co., 523 F.Supp. 1221, 1230 (N.D.Ga.1981). Camfield, 719 F.2d at 1364. 14 . There is nothing in the record which would indicate that Wesley would be unable to receive the quantities of grain covered by the HTAs. 15 . As Judge Easterbrook has astutely observed, ‘'[ejrroneous business judgments many months after a contract was formed do not, however, change the nature of the contract from a forward to a future.” Nagel v. ADM Investor Servs., 65 F.Supp.2d 740, 750 (N.D.Ill.1999), affirmed, 217 F.3d 436, 441 (7th Cir.2000). 16 . Because FAC-MARC was not a signatory to the guarantee agreement entered into by ADM and Agri-Plan, the guaranteed IB relationship between ADM and Agri-Plan would not render FAC-MARC an agent of ADM. See Cunningham, 65 F.3d at 1358 Holdings: 0: holding that nonsignatory was estopped from denying applicability of arbitration clause where nonsignatory received direct benefits from contract including lowered insurance rates and the ability to sail under the french flag 1: holding that liquidated damages provision in trust agreement would not bind nonsignatory because it was merely helpful to the trustees but not essential to management of the funds 2: holding that nonsignatory to ib guarantee agreement possessed no authority from fcm express implied or apparent to conduct business relating to commodity pools nonsignatory to ib guarantee agreement was never an agent of any kind for fcm 3: holding that an exception to the rule that a nonsignatory cannot invoke arbitration exists when under agency or related principals the relationship between the nonsignatory and a signatory is sufficiently close that the only way to avoid eviscerating the arbitration agreement is to allow the nonsignatory to compel arbitration 4: holding nonsignatory defendants who were sued separately from signatory defendants on same claims could enforce arbitration agreement under this equitable exception further nonsignatory defendants were undisputedly agents or servants of signatory defendants
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Judge. Felix Moultrie appeals from a final judgment adjudicating him guilty of aggravated battery in which he was sentenced as a prison releasee reoffender to fifteen years’ imprisonment. Out of the five issues raised on appeal, only one merits discussion and requires reversal. Moultrie claims and the State agrees that the trial court erred in imposing discretionary costs without orally announcing same and without making the required statutory finding that he had the ability to pay the additional assessment. See § 939.18, Fla. Stat. (1999); Patterson v. State, 796 So.2d 572 (Fla. 2d DCA 2001); Tolbert v. State, 698 So.2d 1288 (Fla. 2d DCA 1997) (<HOLDING>). Because these requirements were not followed, Holdings: 0: holding failure to comply with 851b was harmless error in part because defendant did not comply with 851c procedures for challenging prior convictions 1: holding that a court may sua sponte dismiss pursuant to rule 41b for failure to comply with a court order 2: holding plaintiffs failure to comply with section 2622 requires dismissal in federal court 3: holding the failure to comply with the act does not bar defendant from raising a constitutional challenge to jury selection procedures 4: holding trial court must comply with procedures in imposing discretionary costs pursuant to section 93901
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that the remedy provided to Simmons when Missouri held his death sentence to be unconstitutional was life without possibility of parole. 112 S.W.3d at 413. This case, of course, does not involve the death penalty. Neither the United States Supreme Court nor the Supreme Court of Florida has held that a sentence of life without possibility of parole is unconstitutional when applied to a person under the age of eighteen. Without such a ruling, Mr. Culpepper does not have an issue raising a “fundamental constitutional right” that can be raised at this time. See Fla. R.Crim. P. 3.850(b)(2); Witt v. State, 387 So.2d 922, 930 (Fla.1980); Margarejo v. State, No. 2D07-700, — So.2d -, 2007 WL 4404602 (Fla. 2d DCA Dec. 19, 2007); see also Sims v. Commonwealth, 233 S.W.3d 731, 733 (Ky.App.2007) (<HOLDING>). We note that Mr. Culpepper’s motion for Holdings: 0: holding unconstitutional defendants sentence of death based upon the holding in roper supra and remanding for the montgomery circuit court to set aside the defendants death sentence and to sentence him to the only other sentence available life in the penitentiary without the possibility of parole 1: recognizing that before the case was submitted to the jury the trial court charged the jury that if it were unable to reach a unanimous recommendation the court would impose a sentence of life imprisonment without the possibility of parole 2: holding that after roper juvenile convictions can qualify as predicate offenses for sentence enhancement purposes 3: holding that the imposition of a life sentence on a juvenile does not violate the holding of roper 4: holding that roper did not support a similar postconviction claim and noting that roper contained obiter dictum to the effect that life imprisonment without the possibility of parole remains a permissible sentence for such offenders
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insolvent, the directors are thereafter considered as trustees for the corporate creditors.” 3 Fletcher Cyclopedia Corporations § 849 (1945 ed.). It appears, then, that the directors of a Chapter 11 debtor are not fiduciaries of the corporation; rather, they are fiduciaries of the estate, which the debtor in possession holds as trustee for the creditors, 11 U.S.C. § 1107(a). Given that, it is difficult to accept debtors’ position that, in effect, there is no difference in the relationship between the debtors and their directors pre- and post-petition, since the nature of the directors’ duties has changed from helmsman to guardian. 43 B.R. at 459-60 n. 22. See also Automatic Canteen Co. of America v. Wharton, (In re Continental Vending Machine Corp.) 358 F.2d 587, 590 (2d Cir.1966) (<HOLDING>); Davis v. Woolf, 147 F.2d 629, 633 (4th Holdings: 0: holding that courts should not substitute their judgment for that of the directors of a corporation 1: holding that directors of an insolvent corporation are trustees for the creditors 2: holding that independent directors can be entrusted with the decision to sue other directors on behalf of the corporation 3: recognizing that insolvent corporations officers are directors and may have fiduciary duty to existing creditors not to dissipate corporate assets 4: recognizing that when a corporation is insolvent the trust fund doctrine fundamentally alters the relationship between a corporation its shareholders and its creditors and that corporate or shareholder ratification does not apply to creditors who would be prejudiced thereby
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that the plaintiff suffer an adverse employment action.” Id. In this case, the central dispute over Spees’s ADA claim revolves around whether she meets the definition of a “disabled” person. A “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2006). This section of the Act was amended in 2009, subsequent to the events giving rise to Spees’s lawsuit. But we must analyze Spees’s claims pursuant to the earlier version (provided above) because the amendments to the ADA do not apply retroactively. See Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 567 (6th Cir.2009) (<HOLDING>). Spees does not argue that her pregnancy Holdings: 0: holding that the ada does not contain a waiver of sovereign immunity and thus does not apply to the federal government 1: holding that the ada amendments act does not apply to preamendment conduct 2: holding that the protect act amendments to the standard of review apply retroactively 3: holding the ada and the rehabilitation act applicable 4: holding that the same standards apply to claims under the ada and under the rehabilitation act
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sovereignty interest, and lawsuit seeking recertification of state property tax assessment was fully as intrusive as retroactive money judgment). The United States Court of Appeals for the Sixth Circuit has likewise declined to extend Coeur d'Alene. See Arnett v. Myers, 281 F.3d 552, 567-68 (6th Cir.2002)(Coeur dAlene does not extend to every case involving state property interest, and state’s interest in regulation of riparian rights does not implicate Coeur dAlene where the suit does not seek to quiet title); Hamilton v. Myers, 281 F.3d 520, 526 (6th Cir.2002)(same). The Sixth Circuit specifically has determined that Coeur d’Alene does not apply to claims for prospective relief brought under federal anti-discrimination laws. Carten v. Kent State Univ., 282 F.3d 391, 397 (6th Cir.2002)(<HOLDING>). In two other decisions, however, the Sixth Holdings: 0: holding that title ii does not apply to the states 1: holding that title ii of the ada is not applicable to the federal government 2: holding that title ii of the ada was a valid use of congress power under section 5 of the fourteenth amendment 3: holding that prudential limitations on standing do not apply to title ii ada claims 4: holding that coeur dalene does not bar claim for prospective relief under ada title ii citing garrett 121 sct at 968 n 9
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The clear intent of this provision is to permit the staff judge advocate or legal officer (not the chief of staff or some other officer in the chain of command) to supplement the staff judge advocate’s recommendation. See generally Article 6(b), UCMJ, 10 USC § 806(b) (“Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice. . . .”); Cooke v. Orser, 12 MJ 335, 344 (CMA 1982) (noting that Congress intended special relationship between commander and staff judge advocate). The attachment of these comments to the post-trial recommendation without the knowledge or approval of the staff judge advocate was legal error. See United States v. Hensley, 52 MJ 391, 393 (2000) (<HOLDING>); United States v. Finster, 51 MJ 185, 188-89 Holdings: 0: recognizing that exclusion of testimony that provides a direct link to someone other than the defen dant committing the crime constitutes reversible error 1: holding that because judge who was substituted for posttrial motions erred in finding that trial court judge made mistake of law grant of new trial was error 2: holding posttrial submissions inadmissible where there was no compelling reason why the trial record should be reopened the failure to introduce the posttrial submission at trial reflected lack of due diligence and admission of evidence would have caused undue prejudice 3: holding defendant not prejudiced by allowing the state to amend its indictment because he had more than adequate time to prepare his defense 4: holding that it was error for someone other than ships legal officer to prepare posttrial recommendation
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§ 523(a)(8) and whether the Debtor may attempt to discharge the amount through the plan confirmation process. Initially, the parties dispute whether the amount at issue represents a default penalty or collection costs incurred in USAFI’s attempt to collect upon the student loan debt. The Debtor argues that the amount is a default penalty that may either be discharged or cured through payment of the student loan principal and interest. The Debtor is correct that default penalty provisions, meant to penalize a debtor rather than repay the loan or reimburse a creditor for costs, have been held to be outside the discharge exception for student loans found in 11 U.S.C. § 523(a)(8). See Rural Kentucky Medical Scholarship Fund, Inc. v. Lipps (In re Lipps), 79 B.R. 67, 70 (Bankr.M.D.Fla. 1987) (<HOLDING>). However, USAFI’s “Statement of Purchased Holdings: 0: holding that 1322b2 prohibits modification of the interest rate on the loan on the debtors principal residence 1: holding that accruing interest at the default interest rate was not a penalty but the addition of a 5 late charge on top of the default interest would have been unreasonable pursuant to 506b and would have therefore been a penalty 2: holding that in a chapter 7 case postpetition interest on a nondischargeable tax claim is also nondischargeable 3: holding that the principal and interest of a student loan was nondischargeable but that the default penalty arising from the debtors failure to practice medicine in the contractually agreed upon area was dischargeable 4: holding that where parties to an oral loan agreed that the loan would be repaid on demand the statute of limitations did not begin to run until the date plaintiff demanded repayment of the loan
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had the authority to consent to a search of the [woman’s] purse.” Id. Guided by Glenn, we reach a similar result here. In the appellant’s case, it was unreasonable for Investigator Sapp to conclude that the appellant’s girlfriend had the authority to consent to the search of the bag because she specifically told Sapp that the bag belonged to the appellant. Sapp was not required to speculate about who owned it. See also, e.g., United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir.1987) (recognizing that consent to search provided by the owner of premises “is generally invalid when it is ‘obvious’ that the searched item belongs to a guest” (quoting United States v. Isom, 588 F.2d 858, 861 (2d Cir.1978))). Compare United States v. Salinas-Cano, 959 F.2d 861, 863-65 (10th Cir.1992) (<HOLDING>), with United States v. Ruiz, 428 F.3d 877, 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 defendants girlfriend had authority to consent to search as a joint occupant 2: holding that girlfriend lacked actual or apparent authority to consent to the search of her boyfriends bag which he stored in her apartment because she identified the bag as his and no evidence indicated that she exercised mutual use or possessed joint interest and control over it 3: holding that where a defendant left his duffel bag at his cousins house and authorized the cousin to use the bag the cousin clearly had authority to consent to its search 4: holding that search of shoulder bag was not authorized by search warrant for apartment
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a default provision similar to that applicable in the instant case. The Lamberth Court recognized an equitable interest in a vendee under an executory agreement for the sale of land, stating: It has been held repeatedly that “the relation between vendor and vendee in an executory agreement for the sale and purchase of land is substantially that subsisting between mortgagee and mortgagor, and governed by the same general rules.” Lamberth, 506 S.E.2d at 296. In expanding on this view, the court found in the event of default, a vendor-mortgagee may choose a variety of remedies, including forfeiture if the contract allows, while a vendee-mortgagor has the right to redeem his interest under the contract to prevent forfeiture. See also Boyd v. Watts, 316 N.C. 622, 342 S.E.2d 840 (1986) (<HOLDING>). The court further held a vendee’s right to Holdings: 0: recognizing the cause of action 1: recognizing private right of action 2: holding that the trial courts failure to dismiss the action to quiet title was error because the plaintiff was not in possession of the land in question but the error was not fatal to the claim because the superior court could sua sponte amend the pleadings to include an action in ejectment 3: recognizing actions to quiet title are equitable in nature and a court sitting in equity has jurisdiction to quiet title as a remedy for fraud 4: recognizing among a vendors options in the case of a default the right to initiate a quiet title action accept noncompliance as a forfeiture or initiate an action to declare the contract at an end
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Code where the General Assembly has prohibited conduct with statutes that rely on individualized assessments by those enforcing the laws, including: (1) Va. Code § 18.2-60.3 (stalking); (2) Va. Code § 18.2-153 (obstructing canal or ther states have held that their respective “following too closely” statutes, with almost identical language to the Virginia statute, are not unconstitutionally vague. See, e.g., State v. Maga, 2008-Ohio-423, P48-P55, 2008 Ohio App. LEXIS 375, at *13-16 (Ct. App. Ohio 2008) (Ohio Rev. Code Ann. § 4511.34); Tennessee v. Harton, 108 S.W.3d 253, 258-60 (Tenn. Crim. App. 2002) (Tenn. Code Ann. § 55-8-124(a)); State v. Shapiro, 751 So. 2d 337, 341-42 (La. App. 4th Cir. 1999) (La. Rev. Stat. Ann. § 32:81). 2 See Wilson v. State, 262 S.E.2d 810, 812-13 (Ga. 1980) Holdings: 0: holding factor b is not unconstitutionally vague 1: holding that georgias reckless driving statute now ga code ann 406390 which is similar in substance to the virginia statute is not unconstitutionally vague 2: holding va code 182460a is not unconstitutionally vague 3: holding flag contempt statute unconstitutionally vague 4: holding that indianas public intoxication statute ind code 71513 which is similar in substance to the virginia statute is not unconstitutionally vague
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extinct by mutual agreement between the parties” (citation omitted)). Moreover, Settlement Agreement I also stated that “[b]y copy of this agreement, the USPS is formally providing notification to [Plaintiff] that it is moving out of the Detroit, Michigan property on November 30, 2000.” Id. Ex. B H2 (emphasis added). Finally, the USPS’s decision to move out of the facility as of September 1999, and not using the facility thereafter, further evidences the intention of the parties to surrender the lease tenancy on November 30, 2000, not some unknown date in the future. See Gov’t Resp. To PFF H 4; see also Gov’t Resp. To PFF App. at 1-2. Third, Plaintiff argues that by retaining the keys subsequent t ank & Trust Co., 104 Ill.App.3d 636, 60 Ill.Dec. 314, 432 N.E.2d 1213, 1217-18 (Ct.1982) (<HOLDING>); Brennan v. City of New York, 80 A.D. 251, Holdings: 0: recognizing that it is a wellestablished rule that a tenant is estopped from denying the title of his landlord existing at the commencement of the tenancy 1: holding that where the landlord was aware the tenant had moved out a tenant who attached a lock to the door and accidentally retained the keys to the lock was not a holdover tenant 2: holding the landlord did not trespass when his agent entered the premises for the purpose of showing them to a potential tenant 3: holding that the tenant was not a holdover tenant despite retaining keys because the tenant recognized the termination of the tenancy relinquished possession of the premises and the landlord was able to gain access to the property 4: recognizing the general rule that the landlord is not liable for dangerous conditions existing once the tenant takes possession of the premises
|
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See United States v. Garcia, 413 F.3d 201, 210 (2d Cir.2005) (error harmless unless evidentiary ruling had a “substantial and injurious effect or influence” on the jury’s verdict) (quoting United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir.2003)). We also reject Williams’ claims that the district court impermissibly precluded him from arguing to the jury during summation that the government failed to meet its burden of proving alienage insofar as it failed to definitively rule out the possibility that Williams had derived citizenship. Given that the evidence before the jury was insufficient to support any claim of derivative citizenship, the district court did not abuse its discretion in precluding this line of argument. See United States v. Bautista, 252 F.3d 141, 145 (2d Cir.2001) (<HOLDING>). In any event, any error was, again, harmless. Holdings: 0: holding that the movant was not entitled to new trial under rule 59 based on a defense which if properly placed in issue would have affected the course of the jury trial 1: holding that trial court properly prohibited an argument at closing that was not based on facts in the record and could have effect of confusing the jury 2: holding on habeas review that counsels failure to object to improper argument at trial did not prejudice petitioner where other evidence supported a guilty verdict and the jury was told closing argument was not evidence 3: recognizing that a lawyers comments during closing argument may explain away the alleged prejudicial effect of the opposing parties closing argument comments 4: holding that a defendant bears the burden of objecting to an allegedly improper closing argument at the time the improper argument is made
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held that any challenge to counsel’s performance must be reviewed on direct appeal. Id. at 187. Petitioner’s reliance on Geist misses at least two marks. First, unlike a proceeding for termination of parental rights, in which the state brings the direct weight of its power to bear on parents who risk losing the fundamental right of parenthood, id. at 186, petitioner has been convicted of a crime in an underlying proceeding. In contrast to the challenge of the defending parent in Geist, petitioner’s motion did not address the performance of counsel in the underlying proceeding that resulted in a deprivation of his liberty interests. Here, unlike in the criminal proceeding, petitioner is the party who is ultimately responsible for prosecuting the action. See McClure, 110 Or App at 123-24 (<HOLDING>). In sum, this is a collateral civil Holdings: 0: holding statute of limitations for filing petition for postconviction relief not tolled by general savings statute tolling limited to reasons enumerated in state postconviction relief act 1: holding that a postconviction petitioner is responsible for filing the petition and selecting the issues for litigation 2: holding filing of motion for reconsideration does not toll the 30day deadline for filing petition for review 3: holding that time limit for filing petition for review is mandatory and jurisdictional 4: holding that untimely petition for postconviction petition divests trial court of jurisdiction
|
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fully accept this principle but find it inapplicable here. Where the indictment includes, as here, specific, narrowing language “descriptive of the offense charged,” we cannot treat it as immaterial “surplusage.” Commonwealth v. Nuckles, 266 Va. 519, 523, 587 S.E.2d 695, 697 (2003); see also Etheridge, 210 Va. at 330, 171 S.E.2d at 192. In short, we hold a fatal variance existed between the indictments against Purvy and the proof offered by the prosecution at trial. For this reason, his convictions cannot stand. II. Sufficiency of the Evidence Purvy also contends the evidence was insufficient to prove the unindicted variant offenses for which he was convicted—specifically, violating Code § 18.2-472.1(B) by “knowingly providing] materially false information” i at 435-36 (15th ed.1993) (<HOLDING>), with Farr, 536 F.3d at 1186-87 (recognizing Holdings: 0: holding that where the date of the offense is not an element of the charge a variance between the indictment date and the proof at trial is not fatal so long as the acts charged were committed within the statute of limitations period and prior to the return date of the indictment 1: recognizing double jeopardy bar is inapplicable where a variance between indictment and proof necessitated prosecution under a new indictment 2: recognizing that evidence may be legally insufficient where there is variance between indictment allegations and proof 3: holding that trial on second indictment alleging repeat offender count separate from indictment on primary offense for which defendant was convicted did not offend principles of double jeopardy 4: holding that the dismissal of an indictment before trial and institution of a superseding indictment does not trigger double jeopardy
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v. United States, 899 F.2d 1495, 1501 (6th Cir.1990). Vaught based his motion to disqualify on the fact that John Hollins, Sr., husband of Vaught’s sister Carol, was a prominent attorney in the Nashville area, past president of the Nashville Bar Association, and a member of various other professional organizations. In United States v. Dandy, we held that a judge who was acquainted with a government witness did not err by denying a motion for recusal. 998 F.2d 1344, 1349 (6th Cir.1993). Similarly, there is no evidence in this case that the judge’s acquaintance with John Hollins, no matter how long-standing, extended beyond that level in any way that requires recusal (i.e., that their relationship was personal or fiduciary). See also United States v. Lovaglia, 954 F.2d 811 (2nd Cir.1992) (<HOLDING>); United States v. Cole, 293 F.3d 153, 164 (4th Holdings: 0: holding that recusal was required based on newspaper report of interview with trial judge 1: holding recusal not required where case involved a family whom district judge had known personally seven or eight years earlier 2: recognizing the prejudice of an extension to a defendant who would be required to litigate events that occurred more than eight years earlier 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 recusal not required
|
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$1,350,-000, the court is concerned about Prudential serving as its own surety. Prudential is very much an interested stakeholder in the instant suit. Under these circumstances, we do not believe that the claimant’s rights would be as fully protected as if the bond carried a surety .other than Prudential. Notwithstanding that Prudential is on a fist of sureties approved in the District of Kansas, we believe that a separate surety is necessary to more adequately protect the rights of the claimants by giving them two independent parties from whom to collect. See Wilmington Trust Co. v. Gillespie, 397 F.Supp. 1337 (D.Del.1975) (requiring bond in Rule 22 interpleader even where stakeholder was disinterested); but cf, Aetna Cas. & Sur. Co. v. Schmitt, 441 F.Supp. 440 (N.D.Cal.1977) (<HOLDING>). We conclude that we lack jurisdiction over Holdings: 0: holding that a surety has standing to sue for a progress payment released by the government after notification by the surety of unpaid subcontractors 1: holding that there is no privity of contract between the government and a surety since the government is not a party to the agreement between the surety and the contractor the government never undertakes an obligation to the surety 2: recognizing that the gjovernment as obligee owes no equitable duty to a surety unless the surety notifies the government that the principal has defaulted under the bond notice by the surety is essential before any governmental duty exists 3: holding that a wholly owned subsidiary of the plaintiff could serve as surety 4: holding that the defendants failure to timely serve a notice of appeal and docketing statement did not prejudice the plaintiff and therefore would not serve as a basis to dismiss the appeal
|
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693, 142 L.Ed.2d 728 (1999) (Lopez II). Moreover, “[a] State, whether partially or fully covered, has authority to submit any voting change on behalf of its covered jurisdictions and political subunits.” 28 C.F.R. § 51.23. At least one district court has recognized that “Congress intended that either the legislative body that enacted the legislation or the executive body that was responsible for administering the legislation would be responsible for obtaining preclearance.” Bone Shirt v. Hazeltine, 200 F.Supp.2d 1150, 1156 (D.S.D.2002) Under the facts alleged in this case, Secretary Detzner is an appropriate defendant for a Section 5 enforcement action because his office adopted and is responsible for administrating the Database Matching Program. See Bone Shirt, 200 F.Supp.2d at 1156 (<HOLDING>); see also Haith v. Martin, 618 F.Supp. 410 Holdings: 0: holding that a state may not condition voting in state elections on payment of a tax 1: recognizing the immunity of counties unless an action is authorized by the legislature 2: holding that an action naming a state entity as a defendant did not constitute an action against the state because the state entity was sued in its capacity as receiver 3: holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action 4: holding that ujnder the plain meaning of the voting rights act the state of south dakota is an entity that must secure preclearance from the attorney general or bring a declaratory judgment action for review of a law passed by the state legislature that impacts voting in covered counties
|
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drug offenders, and not non-violent property offenders, to mandatory sentencing treats these two similarly situated groups differently. This, appellant argues, violates the equal protection clause. We disagree. Appellant has failed to show that non-violent drug offenders are subjected to a level of scrutiny higher than that stated above. See Appellant’s brief at 11-16. “Consequently, only a minimum level of scrutiny need be applied to determine whether the statute bears a rational relationship to a legitimate legislative objective.” Eicher, 605 A.2d at 352 (citing Commonwealth v. Jones, 374 Pa.Super. 431, 543 A.2d 548 (1988)). This Court has repeatedly held that mandatory sentencing provisions pass constitutional muster. See Eicher, 605 A.2d at 352; see also Plass, 636 A.2d at 641 (<HOLDING>); Commonwealth v. Jones, 374 Pa.Super. 431, 543 Holdings: 0: holding that evidence of prior drug sales was sufficiently similar to the crimes charged to be probative of the fact that the defendant was not merely an innocent driver who was involved in the drug transaction by accident 1: holding that 18 pacsa 5711 and its federal counterpart 18 usc 25174 prevent the government from introducing recordings of communications between spouses resulting from tap on third partys telephone 2: holding failure of reemployment drug test did not constitute grounds for reducing employees benefits 3: holding 18 pacsa 7508 effectuates the legislative purpose of reducing drug crimes 4: holding that under the crimes code conspiracy and the completed substantive offense are separate crimes
|
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CURIAM. AFFIRMED. See Davidson v. State, 701 So.2d 123 (Fla. 5th DCA 1997) (<HOLDING>). SAWAYA, PALMER and ORFINGER, JJ., Holdings: 0: holding that pursuant to florida rule of criminal procedure 3050 the court may extend the sixtyday time limit for a motion to mitigate sentence as long as the motion to mitigate is resolved within a reasonable time 1: holding that remand orders are also appealable orders under 28 usc 1291 2: holding that orders denying motions to mitigate sentence under florida rule of criminal procedure 3800c are not appealable 3: recognizing that orders denying motions to reopen are treated as final orders of removal 4: holding order denying motion for reduction of sentence under rule 3800 is not appealable
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circumstances” excusing his late filing of an asylum application. The BIA also affirmed the immigration judge’s (“IJ”) adverse credibility determination. Because the BIA generally adopted the IJ’s conclusions and added its own comments, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). For the reasons stated below, we grant the petition and remand for further proceedings on an open record. 1. As the government now concedes, we have jurisdiction over the BIA’s “extraordinary circumstances” determination on undisputed underlying facts. Husyev v. Mukasey, 528 F.3d 1172, 1177-81 (9th Cir.2008). Petitioner argued that he established “extraordinary circumstances,” because he received ineffective assistance of counsel. See 8 C.F.R. § 208.4(a)(5)(iii) (<HOLDING>); see also Toj-Culpatan v. Holder, 588 F.3d Holdings: 0: holding that to the extent defendants claim is one of ineffective assistance of counsel it is not cognizable on direct appeal and rule 2915 is the exclusive procedure by which a claim of ineffective assistance of counsel can be advanced 1: recognizing that strickland applies to ineffective assistance of appellate counsel claims 2: recognizing ineffective assistance of counsel as one extraordinary circumstance and setting forth the requirements 3: recognizing a constitutional claim for ineffective assistance of counsel 4: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record
|
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had no statutory duty to bargain. The unions were nevertheless able to enforce interest arbitration clauses in expiring contracts. We also conclude that Local 666’s situation did not bar it from invoking interest arbitration. Specifically, we hold that although Stokes had no statutory duty to bargain because of its good faith doubt about the Union’s majority, it was not for that reason relieved of its contractual obligation to submit to interest arbitration. C. Stokes next argues that the Regional Director’s dismissal of its election petition was tantamount to a formal decertification by election, an event that would have ended the Union’s rights under the collective bargaining agreement. See, e.g., Retail Clerks Int’l Ass’n v. Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir.1963) (<HOLDING>). According to the Regional Director, he Holdings: 0: holding that employer overstepped its role when it refused to enter into written collective bargaining agreement because it believed unions entering the deal would violate union constitution 1: holding that a union may breach its duty of fair representation by rejecting an employees interpretation of the collective bargaining agreement if the unions interpretation is itself arbitrary or unreasonable 2: holding that unions were not entitled to specific performance of collective bargaining agreements after employees voted in boardsupervised elections to decertify the unions 3: holding that collective bargaining agreements cannot compel the arbitration of statutory rights 4: holding that in the grievance representation context an employee must prove that the unions acts tainted the grievance procedure such that the outcome was more than likely affected by the unions breach internal citation and quotation omitted
|
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courts and state courts have found judges to be judicially immune from criminal charges relating to the performance of judicial duties. See Chaplin, 54 F. Supp. at 934-35 (sustaining a judge’s plea at bar that he should be immune from indictment and prosecution for depriving a citizen of civil rights “under the color of any law” in judicial proceedings in his court); In re Petition of Dwyer, 486 Pa. 585, 406 A.2d 1355, 1360 (Pa. 1979) (finding “that the petitioners are quasi-judicial and/or quasi-prosecutorial officers . .. [and] in the absence of allegations of bad faith or corruption, the petitioners, in granting the extensions and variance, are insulated from criminal prosecution for the consequences of their actions”); Commonwealth v. Tartar, 239 S.W.2d 265, 266-67 (Ky. App. 1951) (<HOLDING>); In re McNair, 324 Pa. 48, 187 A. 498, 502 Holdings: 0: holding that state employees acting in their official capacities are insulated from liability for money damages 1: holding that neither a state nor its officials acting in their official capacities are persons under 1983 2: holding that an action brought against the state officials in their official capacities was not properly removed to federal court because the district court lacked jurisdiction 3: holding that the circuit court properly sustained a demurrer to the indictment of a judge for misfeasance in office because judges acting in their official capacities should be protected from harassment by either civil suits or criminal prosecutions 4: holding that states and state officials acting in their official capacities are not persons subject to liability under 1983
|
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the Board in making the decision whether to grant or deny the parole” — not to limit it, id. at 1360 (emphasis added). Where the Board exercises its discretion to depart from this numerical system, it may do so as long as it “specif[ies] in writing those factors which it used. Departures must be explained, but they are not proscribed.” Id. (emphasis added). As the McRae Court concluded, the Board need not render a decision based on a strict application of the system set forth in the 1987 Regulations. Rather, it must simply adhere to “the words of the governing statute, § 24-204(a), [and determine whether a prisoner is able to] live and remain at liberty without violating the law such that release would be compatible with the welfare of society.” Id. at 1361; see also id. at 1360-61 (<HOLDING>). The holding in McRae does not stand alone. In Holdings: 0: holding the board is not required to either grant or deny parole based upon the score attained and it may ignore the results of the scoring system and either grant or deny parole in the individual case so long as it specifies the reasons in writing 1: holding that in reviewing a uspc decision to deny parole on a petition for a writ of habeas corpus a federal court inquires into whether there is a rational basis in the record for the parole commissions conclusions embodied in its statement of reasons 2: holding that the parole regulations numerical system is not a rigid formula because the board is not required to either grant or deny parole based upon the score attained 3: holding that an important part of due process in the context of parole revocation is a written statement by the factfinders as to the evidence relied on and reasons for revoking parole 4: holding that it is well settled that the pennsylvania board of probation and parole has exclusive authority to determine parole when the offender is sentenced to a maximum term of imprisonment of two or more years
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Bar, 59 So.3d 29, 39 (Ala.2010). We further stated: ‘When the Board issues its new order, Cooner will have an opportunity to challenge the judgment” through a postjudgment motion. 59 So.3d at 41. The Board issued a new order of disbarment, but Cooner did not file a post-judgment motion. We twice more remanded the Board’s order for the entry of a more specific order and ultimately affirmed, without an opinion, the Board’s order of disbarment. Cooner v. Alabama State Bar, 145 So.3d 1 (Ala.2013) (on return to second remand). After this Court had affirmed the Board’s order, Cooner filed with the Board a “Motion for New Trial, to Alter, Amend or Vacate, or Alternatively to Open the Disciplinary Board’s Order.” The Board, citing this Court’s affirmance of Cooner’s disbarment .Civ.App.2003) (<HOLDING>); and Superior Sec. Serv., Inc. v. Azalea City Holdings: 0: holding that a postjudgment motion to incorporate a sanction as part of the final judgment is a motion to modify the judgment and extends the trial courts jurisdiction 1: holding that postjudgment application for intervention was timely 2: holding that absent a timely postjudgment motion the trial court has no jurisdiction to alter amend or vacate a final judgment 3: holding that a motion to continue a hearing on a postjudgment motion was ineffective to extend the period for the trial court to rule on the motion absent the express consent of the parties 4: holding that courts may not alter waive or amend the filing deadline
|
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we have focused on whether the members of the district attorney's office would stand to receive personal benefit or detriment from the outcome of a case in order to determine whether the office was "interested" in the case in such a way as to require disqualification. Id. at 711. Examples of such a level of "interest" would be a case in which attorneys in the office were material witnesses in a case, Pease v. Dist. Court, 708 P.2d 800, 802 (Colo.1985), or a case in which an attorney in the office had an attorney-client relationship with the defendant prior to the attorney's employment as a prosecutor. People v. Stevens, 642 P.2d 39, 40 (Colo. App. 1981). An "appearance of impropriety" can also be the basis for disqualification. People v. Garcia, 698 P.2d 801, 806 (Colo. 1985) (<HOLDING>); People v. County Court, 854 P.2d 1341, 1344 Holdings: 0: holding that a defendant must demonstrate that the governments intrusion upon his relationship with his attorney created a possibility of either injury to his defense or benefit to the government in order to establish a violation of the right to counsel 1: holding because an award of attorney fees is discretionary court may consider attorney fees in relation to the underlying equities in the case 2: holding that a trial court may disqualify the district attorney where a member of his staffs testimony in a criminal case created an appearance of impropriety 3: holding that trial court erred in sanctioning attorney under rule 13 when only pleading motion or other paper attorney signed was his notice of appearance which was not challenged as sanctionable by opposing parties 4: holding a person who is not a member of the bar of any court may appear pro se but is not qualified to appear in the district court or in this court as counsel for others
|
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began to run at the filing of the Chapter 11 petition and expired on January 24, 1994, five months before the filing of this action. This court recently held that the two-year statute of limitations in Section 546(a) begins to run against a debtor-in-possession upon the filing of the bankruptcy petition in a Chapter 11 case. In re Harstad, 170 B.R. 666, 669 (D.Minn.1994). Although a question of first impression in this circuit, the decision is in accord with four courts of appeals. See In re Century Brass Products, Inc., 22 F.3d 37 (2d Cir.1994); In re Coastal Group, Inc., 13 F.3d 81 (3d Cir.1994); In re Softwaire Centre Int'l, Inc., 994 F.2d 682 (9th Cir.1993); Zilkha Energy Co. v. Leighton, 920 F.2d 1520 (10th Cir.1990); but see In re Maxway Corp., 27 F.3d 980 (4th Cir.1994) (<HOLDING>), cert. denied, - U.S. -, 115 S.Ct. 580, 130 Holdings: 0: holding that the statute of limitations does not run on a debtorinpossession 1: holding that negligently allowing a statute of limitations to run does not constitute an ethical violation 2: holding that the statute of limitations begins to run on the date the alleged malpractice is discovered 3: holding that statute of limitations does not run until it was or should have been clear to the employee that the union would not pursue the grievance 4: holding that the statute of limitations period begins to run when the allegedly discriminatory pension plan is applied to the plaintiffs and leaving determination of the actual date the statute begins to run on each claim to the district court
|
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The Sixth Circuit has since narrowed its holding in Benes. See United States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989) (recognizing that the statute of limitations is not a jurisdictional bar, but rather a waivable affirmative defense that does not affect the subject-matter jurisdiction of the court, but not reaching whether the failure to assert the defense in the trial court constitutes a waiver). The issue (at least in the federal arena) has now largely been put to rest by the United States Supreme Court’s recent pronouncement in Musacchio, 136 S.Ct. at 717: [T]he statute-of-limitations defense becomes a part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing complia 011) (<HOLDING>); Adams v. Hawai’i, 103 Hawai’i 214, 81 P.3d Holdings: 0: holding that the running of the statute of limitations is an affirmative defense 1: holding that the statute of limitations in a criminal case is a nonjurisdictional affirmative defense that is waived if not raised in the trial court 2: holding that the statute of limitations is nonjurisdictional and defendant expressly waived it observing in dicta that a statute of limitations defense should be raised no later than the trial 3: holding that complaint need not anticipate statute of limitations which is an affirmative defense 4: holding that statute of limitations is an affirmative defense is waived if not raised in the trial court and does not require a knowing and intelligent waiver
|
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to establish personal jurisdiction” on the basis of Wendt. In Acquadro, a defamation claim was brought against the nonresident defendant based upon a telephone call from Massachusetts to the plaintiff, the plaintiffs sister, and another third party in Florida in which the defendant stated that the plaintiff “had AIDS.” Id. at 668. The Court noted in a footnote that although the record was not completely clear, it appeared that the telephone call was a conference call in which the third party called the defendant in Massachusetts, and they proceeded to call the defendant in Florida. Id. at 668 n. 7. Other courts, both state and federal, applying Florida law have also held that communications made during a telephone call between a person in Florida and an 65 (Fla. 5th DCA 2003) (<HOLDING>). In a case on a similar topic but with Holdings: 0: holding that if the alleged misrepresentations are material a plaintiff is entitled to recovery whether or not the misrepresentations caused the alleged damage 1: holding that nonresident defendants failure to make payments in florida coupled with forum selection clause sufficient for court to exercise personal jurisdiction over nonresident defendant 2: holding that nonresident limited partners did not have the necessary minimum contacts to sustain personal jurisdiction in florida although partnerships purpose was to develop property in florida 3: holding that a nonresident defendant who called plaintiff in florida and allegedly made misrepresentations during the conversation satisfied 481931b 4: holding that alleged fraudulent statements by the defendants that occurred during a telephone call initiated by the plaintiff satisfied section 481931b citing wendt 822 so2d at 1260
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