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98 & n.17, 104 S.Ct. 2948, 2959 & n. 17, 82 L.Ed.2d 70 (1984); Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332, 342-44, 102 S.Ct. 2466, 2472-73, 73 L.Ed.2d 48 (1982). The Clayton Act, 15 U.S.C. §§ 15, 26, grants a private right of action to, inter alia, a person “injured in his business or property” by a violation of section 1 of the Sherman Act. Smith misconstrues the law in arguing that the Supreme Court has refused to limit antitrust remedies to commercial interests. The cases she cites address whether the plaintiffs alleged injuries within the meaning of the Clayton Act; in that context, the Court held that the statute was not limited to redressing injuries to commercial interests. See Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330-31, 60 L.Ed.2d 931 (1979) (<HOLDING>); Blue Shield of Va. v. McCready, 457 U.S. 465, Holdings: 0: holding that use of tangible property must be proximate cause of injury and that property does not cause injury if it does no more than furnish the condition that makes the injury possible 1: holding that injury to business or property was not limited to commercial interests 2: holding lease of property was a commercial transaction where the property was for commercial ranching but a residence was maintained on the property 3: holding that claims for breach of fiduciary duty do not arise from the purchase or sale of limited partnership interests where the wrongful conduct occurred after the sale of those interests 4: holding that restrictive covenants disallowing commercial or industrial ventures or business of any type from being maintained on any lot in the subdivision were not ambiguous and that according to their plain meaning clearly allow the rental of residential property whether shortterm or longterm because the use does not violate the prohibition on commercial and business activity as such terms are commonly understood
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had been repealed for aliens placed in removal proceedings on or after April 1, 1997. See IIRIRA § 309(c)(1). At the hearing, the IJ informed Walker and the Huieoeheas that in light of the statutory amendments, the only relief even potentially available to them was a discretionary procedure known as “cancellation of removal.” See 8 U.S.C. § 1229b(b). An alien must demonstrate ten years of continuous physical presence in the United States prior to applying for this new form of relief. See 8 U.S.C. § 1229b(b)(l)(A). Furthermore, according to the “stop-time rule,” an alien’s continual presence in the United States is deemed to end once the INS begins removal proceedings by serving a Notice to Appear. See 8 U.S.C. § 1229b(d)(l); Tefel v. Reno, 180 F.3d 1286, 1289 (11th Cir.1999) (<HOLDING>). Unaware of Huicochea-Gomez’s eleven-month Holdings: 0: holding that neither aedpa nor iirira expressly repeals the availability of habeas review of deportation or removal orders 1: holding that because petitioners proceedings commenced after the enactment of iirira petitioner was statutorily ineligible for suspension of deportation 2: holding that the new stoptime rule applies to all aliens applying for either suspension of deportation under the old law or cancellation of removal under the iirira amendments 3: holding that the court lacked subject matter jurisdiction to review aliens eligibility for special rule cancellation of removal 4: holding that the procedural aspects of iirira 309c apply only to ongoing exclusion or deportation proceedings and are irrelevant in cases involving aliens whose orders of deportation or exclusion were final on the effective date
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without implicating the First Amendment, even if newspapers themselves were not banned. First Amendment Reply at 4. First Amendment scrutiny is triggered because the statute bans the sale of something that at some level contains protected expression. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227-28, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (invalidating tax on magazines, with exceptions b L.Ed.2d 118 (2000). While there is some disagreement over whether object code, as opposed to source code, is deserving of First Amendment protection, the better reasoned approach is that it is protected. Object code is merely one additional translation of speech into a new, and different, language. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445-49 (2d Cir.2001) (<HOLDING>); Reimerdes, 111 F.Supp.2d at 326-27; Bernstein Holdings: 0: holding that first amendment protections apply to compelled speech as well as restrictions on speech 1: holding that speech about financial assistance and handling racial discrimination does not qualify as protected speech 2: holding that the plaintiffs right to political speech is fully in accord with the publics interest in free speech and association 3: recognizing that source code is speech but not reaching the object code issue 4: recognizing that code is speech
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in two stages. “First, we determine whether the statements were improper.” Boyd, 640 F.3d at 669. Second, we determine whether the prosecutor’s remarks were “flagrant.” Id. Poandl contends that the prosecutor made two types of improper arguments. First, Poandl argues that the government made inflammatory appeals to sympathy for David Harper and played on jurors’ fears that Poandl would hurt other children. Appellant Br. at 52. Second, Poandl argues that the government minimized the burden of proof. Id. at 58-62. I agree with my colleagues that the second category of comments was not improper or flagrant. I. IMPROPRIETY A. Inflaming the Passions and Prejudices of Jurors It is well established that prosecutors “must obey the cardinal rule that a prosecutor cannot m th Cir.1977) (<HOLDING>). And it is improper for the government to Holdings: 0: holding that it is not vouching for prosecutor to say that jury should come to believe on the evidence that the events occurred the way the governments witnesses said they did 1: holding that it was improper for the trial court to instruct the jury that it could not consider the states failure to videotape the defendant 2: holding that comments that if jurors acquit then they are accomplices to future murders were improper 3: holding that comments that implied that the drug trade would continue if the jury did not convict the defendant were improper 4: holding that it was improper for the prosecutor to tell the jury that if they acquit the defendant of bank robbery that is like opening all the banks and saying come on and get the money boys because well never be able to convict them
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remand, it should first be determined whether the actions the [plaintiffs] allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. ... If they are not, and if the actions Anderson claims he took are different from those the [plaintiffs] allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson’s motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson’s qualified immunity. 483 U.S. at 641, 646-47, n. 6, 107 S.Ct. at 3039, 3042, n. 6. See also Kulwicki v. Dawson, 969 F.2d 1454, 1463 n. 11 (3d Cir.1992) (<HOLDING>); Pfeiffer v. Hartford Fire Insurance Co., 929 Holdings: 0: recognizing the availability of summary judgment based on absolute prosecutorial immunity 1: holding that prosecutors have absolute immunity 2: holding that absolute prosecutorial immunity extends to civil forfeiture proceedings 3: holding failure to turn over brady material after prosecutorial phase of case had begun was covered by absolute prosecutorial immunity 4: holding that the considerations underlying absolute prosecutorial immunity at common law dictate the same absolute immunity under 1983
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to strike are pending. In such circumstances, the trial court is given the limited jurisdiction to rule on the merits of the motion in order to decide if it should award attorney fees and costs to the defendants.”). The reasoning for this retention of limited jurisdiction makes intuitive sense.’As the court in Col-train v. Shewalter explained, a voluntary dismissal should not automatically preclude an award of attorneys’ fees to a defendant because [ojtherwise, SLAPP plaintiffs could achieve most of their objective with little risk — by filing a SLAPP suit, forcing the defendant to incur the effort and expense of preparing a special motion to strike, then dismissing the action without prejudice. The specter of the action being refiled (at ptr.2d 807 (1999), as modified (Feb. 5, 1999) (<HOLDING>); eCash Techs., Inc. v. Guagliardo, 127 Holdings: 0: holding that the filing of notice without motion is insufficient 1: holding that substance of motion to extend time was a section 1301f motion rather than a section 1301g motion and that trial court did not abuse discretion in denying the section 1301f motion 2: holding motion for attorneys fees was necessary predicate 3: holding that a defendant who is voluntarily dismissed with or without prejudice after filing a section 42516 motion to strike is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendants motion for attorneys fees and costs under subdivision c of that section 4: holding that because the finality of judgment is effectively postponed by the timely filing of a motion under rule 59 the deadline for filing a motion for attorneys fees is tolled until the postjudgment motion is resolved
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the magistrate judge’s finding. Instead, the Millers argue that they are entitled to a less stringent standard because they are not attacking the validity of the foreclosure sale but, rather, are seeking only compensatory damages arising from the sale. The Millers are correct that the above three-part standard — in particular the requirement to show a grossly inadequate selling price — does not apply to all wrongful foreclosure claims* under Texas law. However, the cases on which the Millers rely establish only a particularized exception whereby the plaintiff-mortgagor may avoid showing a grossly inadequate selling price if he or she alleges that the defendant-mortgagee (lender) deliberately “chilled” the bidding at the foreclosure sale. See, e.g., Charter Nat’l Bank, 781 S.W.2d at 371 (<HOLDING>). The cases do not stand for the Millers’ Holdings: 0: holding that a mortgagor is not required to prove a grossly inadequate selling price in a situation where the bidding at a nonjudicial foreclosure sale was deliberately chilled by the affirmative acts of a mortgagee and the injured mortgagor seeks a recovery of damages rather than a setting aside of the sale itself emphasis omitted 1: holding that a nonstatutory postponement does not constitute an irregularity in the foreclosure proceeding itself that could justify setting aside a foreclosure sale 2: holding that plaintiffmortgagor lacked standing to enforce the terms of a foreclosure sale since there was no statutory authority allowing a mortgagor to enforce the provisions of a sale agreement when a foreclosure purchaser is in default 3: holding that an insurers defenses against the mortgagor could not be asserted against the mortgagee 4: holding that a mortgagor in possession is not a fiduciary of the mortgagee within the meaning of the bankruptcy act even though the mortgagor has obligated himself to keep the security intact
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right of eminent domain cannot be questioned by a private landowner in a proceeding to condemn land); Bonaparte v. Baltimore, H & L. R.R. Co., 75 Md. 340, 23 A. 784 (1892) (the existence of a de facto corporation may not be challenged in a collateral way but must be brought quo warranto ); Reisner v. Strong, 24 Kan. 410 (1880) (a de facto railroad may exercise the right of eminent domain and the legal existence of a de facto corporation can only be questioned by the state in a proceeding for that purpose); The National Docks Railway Co. v. The Central Railroad Company of New Jersey, 32 N.J.Eq. 755 (1880) (when corporation is de facto, private party cannot challenge, but action, instead, must be instituted by the state); The Aurora and Cincinnati R.R. Co., v. Miller, 56 Ind. 88 (1877) (<HOLDING>); McAuley v. Columbus, Chicago and Indian Holdings: 0: holding that a notice of appeal filed in an adversary proceeding could not appeal the main proceeding 1: holding that misleading testimony regarding the purpose of a proceeding did not warrant inquiry into the result of the proceeding 2: holding that a proceeding under section 547 is a core proceeding 3: recognizing that proceeding in the nature guo warranto was pending to challenge organization of railroad rather than through condemnation proceeding 4: holding that a workers compensation proceeding is a legal proceeding
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v. State ex rel. Baxley, 340 So.2d 1121 (Ala.Civ.App.1976)). A forfeiture proceeding that is not instituted promptly is ineffectual. Id. “The term ‘promptly’ has been construed to mean within a reasonable time in light of all the circumstances.” State v. $17,636.00 in United States Currency, 650 So.2d 900, 901 (Ala.Civ.App.1994). Whether a forfeiture action is “prompt” is governed by the facts and circumstances of that particular case. Lightfoot v. Floyd, 667 So.2d 56, 66 (Ala.1995); Adams v. State ex rel. Whetstone, 598 So.2d 967, 970 (Ala.Civ.App.1992). However, it is evident from cases addressing the issue of promptness in forfeiture actions that a short period of time between the seizure of property and the institution of forfeiture proceedings is favored. See Reach v. State, supra (<HOLDING>); State v. Chesson, 948 So.2d 566 Holdings: 0: holding that state did not promptly institute forfeiture proceedings given 14week delay between the seizure of the property and the filing of the states complaint 1: holding that a forfeiture proceeding instituted four weeks after seizure met the promptness requirement of the statute 2: holding that the district court abused its discretion in denying leave to amend after a delay of eight months 3: holding that forfeiture proceedings instituted eight months after the seizure of property failed to meet the promptness requirement 4: holding that forfeiture proceeding instituted more than seven months after property was seized did not meet the promptness requirement of 202 93c
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court approval of professional fees); Woods v. City Nat’l Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941) (using denial of compensation as tool for strict enforcement of conflict-of-interest rules); Anderson v. Anderson (In re Anderson), 936 F.2d 199, 204 (5th Cir.1991) (recognizing bankruptcy court’s broad discretion as court of equity to grant or deny fees and noting that attorney has no absolute right to fee award absent compliance with Code and rules); In re Key Largo Land, Inc., 158 B.R. 883, 884 (Bankr.S.D.Fla.1993) (recognizing that any payment to debtor’s attorney, regardless of the source, is reviewable by the bankruptcy court); see also Futuronics Corp. v. Arutt, Nachamie, & Benjamin (In re Futuronics Corp.), 655 F.2d 463, 469-71 (2d Cir.1981) (<HOLDING>), cert. denied, 455 U.S. 941, 102 S.Ct. 1435, Holdings: 0: holding that counsels total failure to conduct pretrial discovery constituted ineffective assistance 1: holding that total denial of compensation is the only appropriate sanction for nondisclosure of all facts bearing upon counsels eligibility and all connections with debtor including counsels retainer agreement 2: holding that it is well settled that the amount of time an attorney spends consulting with his client before trial is not by itself a legitimate basis for inferring the total extent of counsels pretrial preparation much less the adequacy of counsels preparation 3: holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy 4: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense
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.Id. at 266. 24 . Id. 25 . Id. 26 . Id. at 267. 27 . Int’l Paper Co., 788 S.W.2d at 305. 28 . Id. 29 . Id. at 306. 30 . See Webcon Group, Inc., 1 S.W.3d at 542-43. 31 . Smith, 17 S.W.3d at 597. 32 . RSMo 1994. 33 . McCormack v. Stewart Enter., Inc., 956 S.W.2d 310, 314 (Mo.App. W.D.1997). 34 . See id. 35 . Id. (citing Komosa v. Monsanto Chemical Co., 317 S.W.2d 396, 400 (Mo. banc 1958)). 36 . 421 S.W.2d 229 (Mo.1967). 37 . Id. at 234 (quoting Laughlin v. Boatmen's Nat’l Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 979 (1945)). 38 . Kinetic Energy Dev. Corp. v. Trigen Energy Corp., 22 S.W.3d 691, 697 (Mo.App. W.D. 1999) (quoting Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22, 27 (1956)). 39 .Id. at 698. 40 . Baraba v. Stuart, 780 S.W.2d 136, 138 (Mo.App. E.D.1989). 41 . See id. (<HOLDING>). 42 . See Burger v. Wood, 446 S.W.2d 436, 444 Holdings: 0: holding that an expert is not competent to testify as to statutory interpretation 1: holding that a contractors experience in his profession qualifies him to testify as an expert to reasonable rates 2: holding that expert was qualified to testify regarding sexuallyabused children based on witness education professional license and experience 3: holding that the statute qualifies as an exemption 3 statute 4: holding that the district court did not abuse its discretion in allowing plaintiffs expert witness to testify when it also allowed defendants expert witness who disputed the methodology used by plaintiffs expert to testify
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on Bailey’s current net income, of $970.51 per month, an amount lower than his former monthly net income of $1,200 per month. We remand this issue to the trial court with instructions to calculate and award retroactive child support to the date Bardin filed her counter-petition for support, based upon the child’s needs and Bailey’s ability to pay. III. Change of the Child’s Surname. The trial court changed the child’s legal surname from Bardin to Bailey despite the fact that Bailey offered no evidence that the change was in the best interests of the child. This court, in Collinsworth v. O’Connell, 508 So.2d 744 (Fla. 1st DCA 1987), held that the change of a child’s surname to that of the father, based only on a finding of paternity, is error. The Collinsworth court explained CA 1997)(<HOLDING>); Lazow v. Lazow, 147 So.2d 12, 14 (Fla. 3d DCA Holdings: 0: holding that the trial court had erred in imposing an obligation to pay child support when clear and convincing evidence established that the husband was not the father of the child 1: holding that the trial court abused its discretion in changing the surname of the child and explaining that the mere fact that paternity has been established does not automatically entitle the father to insist the child be given his surname 2: holding that the trial court did not abuse its discretion in changing the surname of the child where the court made factual findings that the name change would be in the best interest of the child 3: holding in a paternity action that the selection and change of the childs surname from the name chosen by the mother must be based on the trial courts determination that renaming is in the childs best interests and the record must affirmatively show such a name change is required for the welfare of the minor child 4: holding that a child was not barred by a former statute of limitations applicable to actions to establish the existence of a father and child relationship when the current action was to establish the nonexistence of a father and child relationship and the presumed father no longer persisted in maintaining paternity
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aff'd, 912 F.2d 464 (4th Cir. 1990). Rather, " 'actual intent’ to defraud must be shown.” Id. See also In re Cushman Bakery, 526 F.2d 23, 32 (1st Cir. 1975) (noting that "[although every preferential payment to a creditor has the effect of hindering or delaying other creditors from collecting their judgments, ... granting a security interest to secure funds with which the debtor intends to pay a preexisting debt does not necessarily imply an intent to 'hinder, delay or defraud creditors’[.]”); Mayo v. Pioneer Bank & Trust Co., 270 F.2d 823, 831 (1959) ("Although a transfer may have the effect of hindering or delaying or defrauding creditors, incidental effect is not enough to satisfy the requirements of actual intent to defraud.”); In re Decker, 295 F.Supp. 501, 515 (W.D.Va.1969) (<HOLDING>), aff’d, 420 F.2d 378 (4th Cir. 1980). 10 . Holdings: 0: holding that the repayment of an antecedent debt constitutes fair consideration 1: holding that a preexisting or antecedent debt may constitute sufficient consideration to support a mortgage 2: holding that effect of bankruptcy discharge under arizona law is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debtor 3: recognizing wellsettled law that a conveyance made in good faith whether for an antecedent debt or a present consideration is not forbidden even though it may have the effect of hindering or delaying creditors by removing from their reach assets of the debtor 4: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or
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to that fact, it should have been dispelled by Breshears’s unequivocal declaration that he lived there. Further, when Wyles arrived, Deputy Cameron perceived that Wyles and Breshears were acquainted with each other. Under these circumstances, we believe that it was unreasonable for Deputy Cameron to rely on Wyles’s consent to enter Breshears’s residence without further inquiry and further evidence that Breshears had been lawfully evicted. Deputy Cameron’s reliance on the fact that Wyles was the owner of the property- and his claim that Breshears was trespassing as his sole basis for entry into a dwelling known by the officer to be a rental unit was the type of consent that was of course long ago found not to pass constitutional muster. See Chapman v. United States, 365 U.S. 610 (1961) (<HOLDING>). We hold that the Fourth Amendment required Holdings: 0: holding search not to violate fourth amendment where officers belief that apparent landlord had the power to consent and that he had not revoked that consent was reasonable emphasis added 1: holding that it was unreasonable to believe that womans boyfriend had authority to consent to the search of her purse even though he had authority to consent to the search of the car in which it was kept 2: holding that a landlord could not validly consent to the search of a house he had rented to another 3: holding that a landlord cannot validly consent to a search of a tenants apartment despite ownership and legal authority to enter the premises 4: holding that police officers warrantless search of rented home with consent of landlord but not tenant violated tenants fourth amendment rights
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for documents until after the suit was initiated. Until then it did not even attempt to search its files for the requested documents or review them at all. OL & S was therefore reasonable in believing that the filing of a lawsuit was necessary in order to induce government compliance. b. OL & S Vigorously Pursued Administrative Avenues Before Filing Suit. OL & S took full advantage of the administrative process to resolve its claim prior to filing a lawsuit, and had exhausted the process and reached an impasse before the suit was filed. A number of eases have held that a lawsuit was premature, and therefore unnecessary, when the plaintiff was aware that the agency was attempting to comply with the request. Weisberg v. United States Dep’t of Justice, 848 F.2d 1265, 1271 (D.C.Cir.1988) (<HOLDING>); Ginter v. Internal Revenue Serv., 648 F.2d Holdings: 0: holding not necessary a suit filed while the government was still searching for the files and the plaintiffs requests were unduly broad 1: recognizing that if the plaintiff files suit in a county where venue does not lie the plaintiff waives the right to choose and the defendant may have the suit transferred to a proper venue 2: holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit 3: holding a suit not necessary where the government sent a telegram explaining the reason for delay and its ongoing attempts to comply and asked for plaintiffs phone number to discuss it plaintiff filed suit the day after receiving the telegram 4: holding the government liable to plaintiffs for breach of contract
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discharge. Ill The trial court determined by summary judgment that even if MacDougall were an employee, he did not demonstrate that he was wrongfully discharged. The Appellate Division sustained that determination. If on the retrial of this matter, the trial court determines that the working relationship was one of employment, then it must consider whether plaintiff was "wrongfully discharged. That issue, we note, has been fully briefed and argued on the appeal before us. Accordingly, we deem it appropriate to explain the standards that should inform and guide the trial court in the event it reaches the issue of wrongful discharge. A In Pierce, we recognized that “an employee has a cause of action for wrongful discharge when the discharge is c 157-59, 443 A.2d 728 (App.Div. 1982) (<HOLDING>); O’Sullivan v. Mallon, 160 N.J.Super. 416, Holdings: 0: holding that discharge of employee for having distributed expired drugs at employers direction did not violate clear mandate of public policy because the discharge implicated only the private interests of the parties 1: holding that federal law can provide source of state public policy for determining whether discharge of employee violated clear mandate of public policy 2: holding that discharge of employee to avoid paying commissions on future transactions did not violate clear mandate of public policy 3: holding that accountant terminated for refusing to violate professional codes stated cognizable claim for wrongful discharge 4: holding that discharge of pharmacist for refusing to violate state administrative regulation requiring pharmacist to be present at all times pharmacy operates for business and for reporting his employers intended violation pursuant to statutory provision and his professional code of ethics would violate clear mandate of public policy
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in part is reversed and the complaints are dismissed. Judge Barry dissents. 1 The two complaints, which were heard separately by the administrative law judge, were consolidated on appeal to the PUO. 2 Stray voltage is neutral voltage which cannot return to the utility’s substation through the distribution lines. Stray voltage is grounded by the utility, and travels through the earth as it returns along the distribution circuit. When the stray voltage , runs through any electrical equipment, such as milking machines, it can produce low voltage electrical shock if the equipment is not properly grounded. Stray voltage may also pass through the body of a cow as part of the return circuit, depending in part on the levels of soil moisture. T 34 Pa. Commonwealth Ct. 516, 383 A.2d 997 (1978) (<HOLDING>). 6 Because of our disposition of the case on Holdings: 0: holding that the puc may not allocate the amount of a disputed water bill between the utility and the customer where the complainants had not met their burden of proof 1: holding that section 523a2c shifts the burden of production and not the burden of proof on the issue of intent only 2: holding that the burden of proof is on the claimant 3: holding that a letter from the complainants psychiatrist established a nexus between the complainants mental disability and a comfort dog 4: holding that the amount of water rights appurtenant to the land is the amount that is being used thereon before and at the time of the sale
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allegedly false statements to the press because statements to the media “have no functional tie to the judicial process.” Id. at -, 113 mation that is subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215 (1963), is advocatory. In Imbler, the prosecutor was alleged to have knowingly used false testimony and suppressed material exculpatory evidence at trial. The Court upheld the lower courts’ rulings that the prosecutor was absolutely immune from potential liability for the alleged misconduct. As other courts have recognized, it follows from Imbler that the failure, be it knowing or inadvertent, to disclose material exculpatory evidence before trial also' falls within the protection afforded by absolute prosecutorial immunity. See Hill, 45 F.3d at 662 (<HOLDING>); Carter v. Burch, 34 F.3d 257, 262 (4th Holdings: 0: recognizing the availability of summary judgment based on absolute prosecutorial immunity 1: holding that the considerations underlying absolute prosecutorial immunity at common law dictate the same absolute immunity under 1983 2: holding that absolute prosecutorial immunity extends to civil forfeiture proceedings 3: holding that a state prosecutor is shielded by absolute prosecutorial immunity when he decides to bring forth criminal charges seeks an arrest warrant or presents documents to a judicial officer 4: holding failure to turn over brady material after prosecutorial phase of case had begun was covered by absolute prosecutorial immunity
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or employee, (2) perform a federal function, and (3) be subject to supervision by a federal officer or employee. 5 U.S.C. § 2105(a) (1988). See Hedman v. United States, 15 Cl.Ct. 304, 313 (1988); Lambert v. United States, 4 Cl.Ct. 303, 305, aff'd, 746 F.2d 1490 (Fed.Cir.1984). 5 . Thus, for example, a plaintiff with a contract claim for an amount greater than $10,000 could not sue in the District Court under section 702 for specific performance of her contract; she may only sue in the Claims Court for appropriate relief. See H.R.Rep. No. 1656 at 12-13. In addition to the limitation on section 702, section 704 of the APA bars District Court jurisdiction over claims for which an adequate remedy in another court exists. 5 U.S.C. § 704 (1988). See Bowen, 487 U.S. at 904, 108 S.Ct. at 2737 (<HOLDING>). In Mitchell v. United States, 930 F.2d 893 Holdings: 0: holding that section 704 does not bar district court jurisdiction when the claims court does not provide a special and adequate review procedure for that claim 1: holding that the court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this court 2: holding that this court does not have jurisdiction over plaintiffs claims because the court may review neither criminal matters nor the decisions of district courts 3: holding that this court does not have jurisdiction over plain tiffs claims because the court may review neither criminal matters nor the decisions of district courts 4: holding that a jail inmate does not have a constitutional entitlement to an adequate grievance procedure and the ineffectiveness or even absence of a grievance procedure does not give rise to a constitutional claim
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a contention that the panel held that the Convention created rights enforceable by individuals. While we conclude that Faulder has not decided the question, we do not reach its merits because at best Flores’s assertion is Teague barred. The Supreme Court in Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998), noted that “[t]he Vienna [Convention ... arguably confers on an individual the right to consular assistance following arrest.” Thus, even the Court admits the possibility that the Vienna Convention does not confer such rights, and therefore, such a finding would create a new exclusionary rule, which is prohibited in a collateral habeas attack because of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Breard, 118 S.Ct. at 1354-55 (<HOLDING>). AFFIRMED. 1 . The petition was filed in the Holdings: 0: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under 1983 1: holding that federal courts possess habeas jurisdiction over claims arising under implementing legislation and regulations of the convention against torture 2: holding that the plaintiff must demonstrate that defendants contacts with the united states as a whole support the exercise of jurisdiction consistent with the constitution and laws of the united states 3: holding that the vienna convention must be applied in conformity with the laws and regulations of the united states including the rules for federal habeas relief 4: holding that habeas petitioner scheduled to be executed in the state of virginia for capital murder could not raise claim of violation of his rights under the vienna convention on federal habeas review where he failed to preserve the claim by raising it in state court proceedings vienna convention does not trump subsequent federal statute requiring habeas petitioners who claim to be held in violation of treaties of the united states to develop factual bases for their claims in state court as a precondition of federal habeas review
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of agency apply); 4 White & Summers, Uniform, Commercial Code § 31-8 (6th ed. 2012) (“We are left, therefore, with several hundred years of cases and with the policy of Article 9 to help us define the word possession.”). The main focus of possession is whether the evi rts have stated that for per er. 447, 453-54, 370 A.2d 41, 45 (N.J.App.Div.1977) (finding that the secured party had possession of the hotel’s personalty when the debtor handed the hotel’s keys to the secured party). The Fourth Circuit has held that a “pledgee must either have actual exclusive possession of the property, or if it remains on the pledgor’s premises he must so separate and mark it as to give notice of his possession to the public.” In re Spanish-American Cork Prods. Co., 2 F.2d 203, 204 (4th Cir.1924) (<HOLDING>). The Fourth Circuit has further held that it Holdings: 0: holding under kansas law that a plumber who was injured while inspecting the leased premises in order to prepare an estimate for plumbing work had not entered the premises for the purpose for which they were leased and thus could not rely on the public use exception 1: recognizing a landlords duty for injuries sustained on leased premises where the landlord is aware that the premises are leased with intent to admit the public 2: holding that the public use exception was not applicable because the injury to the tenants employee occurred in an area of the leased premises that was not open to the public but was used only by employees 3: holding that signs placed on the inside of a leased space were not alone sufficient to provide notice of control of any part of the premises by anyone other than the debtor 4: holding that abandonment requires that tenant vacate the leased premises
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fraction would entitle plaintiff to 25.22 percent of defendant’s military pension if defendant retired at,his earliest retirement date, 11 July 2003. In addition, the trial court properly attempted, pursuant to N.C. Gen. Stat. § 50-20.1(b) (3), to award plaintiff a prorated portion of defendant’s military pension, one-half of the marital portion of each of defendant’s pension payments, to be paid by defendant at the time he began receiving benefits. However, the trial court failed to determine that defendant’s military pension was a defined benefit retirement plan and failed to value it. We further note the record contained evidence regarding the value of defendant’s military pension as of the date of separation. Cf. Albritton v. Albritton, 109 N.C. App. 36, 426 S.E.2d 80 (1993) (<HOLDING>). Accordingly, we reverse and remand the trial Holdings: 0: holding the trial courts error in not valuing a retirement account was not prejudicial because plaintiff failed to provide evidence regarding the date of separation value 1: holding the exclusion of cumulative evidence was not prejudicial error 2: holding the petition date is the appropriate date to value the collateral when the debtors intend to remain in the home 3: holding that if the market value of an asset can be ascertained the decree should account for the change in value between the date of the decree and the timely execution of the distribution plan in the decree the distribution based on value at the distribution date 4: holding that the trial court committed prejudicial error by failing to give a requested instruction on the probative value of fingerprint evidence where the state relied primarily on that evidence
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became very confused about the timing of her alleged abortion. An independent review of the record confirms that the petitioner’s awkward attempts to make sense out of a story that did not hang together cannot be lightly dismissed. A third basis for the IJ’s adverse credibility finding involves the high price that the petitioner paid to be smuggled into the United States. The IJ had difficulty believing that someone who complained so bitterly about a 5,000 yuan penalty could meet the $50,000 price tag set by the smugglers. The IJ also noted that this steep price, once paid, gave the petitioner a tremendous incentive to lie, if necessary, so as to remain in the United States. The petitioner attempts to debunk this reasoning as mere conjecture. See Cordero-Tre-jo, 40 F.3d at 487 (<HOLDING>). We regard it, however, as the drawing of a Holdings: 0: holding that no deference is due when findings are based on inferences not grounded in the record or merely personal views of the immigration judge 1: holding that when findings are based on determinations regarding the credibility of witnesses rule 52 demands even greater deference to the trial courts findings for only the trial judge is in a position to be aware of the variations in demeanor including but not limited to the actions mannerisms and facial expressions that bear so heavily on the listeners understanding of and belief in what is said 2: holding that clearly erroneous standard of review governs district courts factual findings based on state record documentary evidence and inferences from other facts 3: holding that because the state court made no findings as to the merits of the petitioners claim it is axiomatic that there are no findings to which we can give deference and thus 2254d does not apply 4: holding that while legislative findings are due deference that cannot foreclose a courts constitutional analysis
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from seeking to accelerate the rent, despite being in possession of the leased property. The same is not true regarding the annual maintenance fee. First, the acceleration clause does not mention the annual maintenance fee, only stating that “the Minimum Rent for the unexpired portion of the Term shall be accelerated... and shall become due and be paid upon the demand of [IMAX].” (Doc. 1, Ex. A at p. 11 of 26.) Thus, Plaintiff has no contractual claim to acceleration of the annual maintenance fee. Second, Plaintiff would be unjustly enriched if it were allowed to accelerate the annual maintenance fee where it is in possession of the IMAX system and cannot possibly have any future maintenance obligations to Defendant. See Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.Ct.1999) (<HOLDING>). Plaintiff would essentially be paid for Holdings: 0: holding that a party is unjustly enriched where under the circumstances it would be inequitable for the party to retain a benefit for which it has not provided value 1: holding that a constructive trust is imposed in order to prevent injustice and that such a trust may be imposed when the circumstances show that it would be inequitable for the holder of legal title to retain the property 2: holding that it is not 3: holding that an arbitration agreement enforceable against party who signed the agreement even where the other party did not sign it because generally it is enough that the party against whom the contract is sought to be enforced signs it 4: holding that a constructive trust will be imposed where the evidence is clear and convincing that one party will be unjustly enriched if allowed to retain the entire property
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and fair evidentiary hearing are without merit. With regard to the questioning by the trial court, which Overton contends functioned as action from a “second prosecutor,” there was not any bias displayed by the trial court in favor of either the State or Overton. Instead, the court questioned witnesses to clarify certain points after both parties asked initial questions and also to gain further knowledge into background information with regard to the witnesses. As evidenced by the length of the evidentiary hearing, we conclude that the trial court’s refusal to rush through the evidentiary hearing and the decision to ask questions to ensure that all pertinent information was on the record helped facilitate a full and fair hearing here. See Sims v. State, 754 So.2d 657, 666 (Fla.2000) (<HOLDING>). Moreover, the trial court elicited Holdings: 0: recognizing that a trial court can set aside verdict 1: holding that because defendant did not raise a newly discovered evidence claim or amend his postconviction motion after the evidentiary hearing the issue was not timely presented to the trial court and was not cognizable on appeal 2: holding that the trial court was without authority to set aside entry of default on motion to set aside default judgment 3: holding that the defendant was not deprived of a full and fair hearing on his postconviction motion by reasoning in part that the trial court set aside several days for the hearing 4: holding defendant may appeal order stemming from full restitution hearing even though motion for hearing filed ten days after sentencing
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the circumstances attending claimant's departure from his job as bank teller, and the reference to his drinking on the job, what evidence there is on this issue suggests that claimant did occasionally decompensate in the work setting. 8 . These are: Organic mental disorders (§ 12.-02); Depressive syndrome (§ 12.04); Anxiety disorders (§ 12.06); Personality disorders (§ 12.08); Peripheral neuropathies (§ 11.14); Liver damage (§ 5.05); Pancreatitis (§ 5.08); and Seizures (§ 11.02 or 11.03). Proof that alcoholism, or any substance addiction disorder, has resulted in conditions that meet or equal any of these listings will establish that the substance addiction disorder is disabling at step three of the sequential evaluation process. But see In re Petition of Sullivan, 904 F.2d at 844-846 (<HOLDING>). 9 . In response to questioning by the AU, Dr. Holdings: 0: holding that title automatically vests in the adverse possessor at the end of the statutory period if all the requirements are met 1: holding that once one severe impairment is found the combined effect of all impairments must be considered even if other impairments would not be severe 2: holding that only the severity requirements of the crossreferenced mental impairments must be met while all of the requirements for the crossreferenced physical impairments must be met to prove alcoholism disabling at step three 3: holding that the plaintiffs had not offered sufficient evidence that their claims met the requirements of rule 23a 4: holding that all five elements of 547b must be met
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v. Basler, 239 S.W.3d 687, 690 (Mo.App. E.D.2007) (citing Beery v. Shinkle, 193 S.W.3d 435, 441 (Mo.App. W.D.2006)). This principle simply restates, of course, the criteria described in the first sentence of section 228.342. For this purpose, Mis souri courts have defined “strict necessity” as “ ‘the lack of a legally enforceable right to use a practicable way to and from a person’s land, either private or public.’” Id. (quoting Kirkpatrick v. Webb, 58 S.W.3d 903, 907 (Mo.App. S.D.2001)). Under this definition, if property has no physical access to a public road and no other legally enforceable right to use a practicable way to a public road (such as an express easement, for example), then strict necessity for a private road has been established. See, e.g., Beery, 193 S.W.3d at 441-42 (<HOLDING>). In this case, the parties stipulated that Holdings: 0: holding that purchaser did not take property subject to unrecorded easement created by private agreement 1: holding that the plaintiffs express easement of rightofway for ingress and egress over the defendants property would not be enlarged to allow the installation of an underground utility and telephone lines on the defendants property absent express provision for such although the plaintiffs deed restricted his lot to residential use 2: holding that where an express easement created by agreement afforded a property owner a legally enforceable right of ingress and egress strict necessity under section 228342 is not established 3: holding that under oregon law an agreement must be supported by consideration to be legally enforceable 4: holding that an easement agreement and an unrecorded easement plan created an easement
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challenge the results by showing errors in the machine or in the operator, or extraneous conditions affecting the results. Id. at 354, 857 P.2d at 406. Our decision in Guthrie did not undermine this rationale. See Guthrie, 202 Ariz. at 275, 43 P.3d at 603. ¶ 14 In any event, the practical difficulty that Defendant has identified in obtaining an independent breath sample is not sufficient to create a due process violation. A DUI suspect has a due process right to gather exculpatory evidence. See Smith v. Coda, 114 Ariz. 510, 512-13, 562 P.2d 390, 392-93 (App.1977). Due process, however, requires only that a defendant be given a “reasonable opportunity” to obtain exculpatory evidence. Van Herreweghe v. Burke ex rel. County of La Paz, 201 Ariz. 387, 390, ¶ 11, 36 P.3d 65, 68 (App.2001) (<HOLDING>). “Police officers are not required to take the Holdings: 0: holding that release unambiguously released defendants from negligence liability even though the release did not include the word negligence because there was no other rational purpose for which the exculpatory language could have been intended 1: holding that constitutional precedent does not require that a convicted defendant be warned of his right to counsel and his right to remain silent prior to submitting to a routine authorized presentence interview 2: holding that dui defendants constitutional and statutory right to a reasonable opportunity to obtain exculpatory evidence does not require his immediate release from jail 3: holding that there is both a statutory and a constitutional right to a jury trial under erisa because congress lacks constitutional authority to limit right to a jury 4: holding that the government is not required to present exculpatory evidence to the grand jury
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CURIAM. Appellant appeals the trial court’s denial of his complaint for declaratory judgment challenging the constitutionality of the term “disorderly conduct” contained in Fla. Admin. Code R. 33-601.314, § 9-17. We affirm the trial court’s ruling because the term is not vague or overbroad. See Smith v. Fla. Dep’t of Corr., 799 So.2d 319, 319 (Fla. 1st DCA 2001) (<HOLDING>); D.L.B. v. State, 707 So.2d 844, 845 (Fla. 2d Holdings: 0: holding va code 182460a is not unconstitutionally vague 1: holding 3631 not vague or overbroad 2: holding 241 not vague or overbroad 3: holding that the prohibition against fighting in fla admin code r 33601314 24 was not unconstitutionally vague or overbroad 4: holding factor b is not unconstitutionally vague
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of the business judgment rule. In view of the case law and the record we are unable to say that the district court abused its discretion. B. MONDSCHEIN’S CLAIM OF DEMAND FUTILITY Unlike Stepak; Mondschein did not make a demand upon the Board. Instead, Mondschein alleged that demand was futile and therefore excused. The district court rejected this argument and held that under Spiegel v. Buntrock, 571 A.2d 767 (Del.1990), and Stotland v. GAF Corp., 469 A.2d 421 (Del.1983), Stepak’s demand precluded any Southern stockholder from prosecuting a demand other excused derivative suit based on the claims covered by the Stepak demand letter. The district court is not alone in its analysis. See Boeing Co. v. Shrontz, Del.Ch. (Civ. A. No. 11,278, April 20, 1992), 18 Del. J.Corp.L. 225, 237 (1993) (<HOLDING>). On appeal, Mondschein does not address the Holdings: 0: holding that plaintiffs cannot cover all the bases by having one shareholder make a demand and another allege demand futility spiegel requires shareholders to choose either to make demand or attempt to establish demand futility 1: holding that the federal acquisition regulation far requires a claim to be a written demand seeking a sum certain as a matter of right 2: holding that plaintiffs wishing to inspect books and records for purposes of pleading demand futility in an amended derivative complaint had a proper purpose 3: holding that plaintiff lacked a proper purpose for bringing a section 220 action because the federal judge in kenney had denied plaintiffs request to replead demand futility in an amended complaint 4: holding that the statute does not begin to run until at least a demand has been made upon the government but determining that the facts of that case made it unnecessary to choose between the date of demand and the date of actual payment as the triggering date for the running of the statute of limitations
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such a restrictive application could be given the case, the impact would likely be substantial. The range of time and offenses involved, and the size of our military forces underscore the effect of ret-roactivity on the administration of justice. The difficulties and dangers in reopening large numbers of such cases obviously argue with great force for prospective application of O’Callahan. In sum we are persuaded that the criteria under Supreme Court decisions justify and strongly call for limiting to prospective application the ruling in O’Callahan v. Parker. We agree with the view of the District Judges in these proceedings and those of the several courts that have reached a like conclusion. See Gosa v. Mayden, supra; Mercer and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (<HOLDING>). 9 . Alaska does provide for indictment by Holdings: 0: holding the right to assistance of counsel as announced in gideon v wainwright 372 us 335 83 sct 792 9 led2d 799 to be retroactive 1: holding that counsel must be appointed to indigents for purposes of appeal as announced in douglas v california 372 us 353 83 sct 814 9 led2d 811 to be retroactive 2: holding the rule requiring that counsel be furnished in proceedings for probation or imposition of deferred sentence as announced in mempa v rhay 389 us 128 88 sct 254 19 led 2d 336 to be retroactive 3: holding that indigents have a right to a transcript on appeal as announced in griffin v illinois 351 us 12 76 sct 585 100 led 891 to be retroactive 4: holding the rule against adverse comments on a defendants failure to testify as violative of the privilege against selfincrimination announced in griffin v california 380 us 609 85 sct 1229 14 led2d 106 not to he retroactive
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money or property utilized in the illegal sale of controlled substances. That section provides, in pertinent part: “(a) The following are subject to forfeiture: “(1) All controlled substances ... acquired in violation of any law of this state; “(2) All raw materials, products, and equipment of any kind which are used or intended for use for the manufacturing, ... processing, delivering, importing or exporting any controlled substance in violation of any law of this state; “(4) All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys ... used or intended to be used to facilitate any violation of any law of this st So.2d 151 (Ala.Civ.App.1992) (<HOLDING>); Adams v. State ex rel. Whetstone, supra Holdings: 0: holding that forfeiture proceedings instituted eight months after the seizure of property failed to meet the promptness requirement 1: holding that later colloquy that took place between defendant and trial court concerning defendants decision to waive counsel did not cure earlier failure by court to fulfill requirements of nc gen stat 15a1242 because it did not take place until first day of defendants sentencing proceeding more than five months after defendant was permitted to proceed without assistance of counsel and approximately two months after defendant proceeding pro se pleaded guilty to murder 2: holding that double jeopardy clause did not apply to forfeiture proceeding before the court 3: holding that a forfeiture proceeding instituted four weeks after seizure met the promptness requirement of the statute 4: holding that forfeiture proceeding instituted more than seven months after property was seized did not meet the promptness requirement of 202 93c
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permitted Williams's convictions despite a lack of sufficient evidence, the result of the trial is fundamentally unfair. Garner v. State, 550 N.E.2d 1309, 1312 (Ind. Ct.App.1990). The crux of Williams's allegation of ineffective assistance is identical to his allegation of fundamental error, that is, his convictions lacked sufficient evidentiary support. Generally, allegations of errors not raised on direct appeal are considered waived for purposes of post-conviction relief. Green v. State, 525 NE.2d 1260, 1261 (Ind.Ct.App.1988). However, conviction without sufficient evidence constitutes fundamental error, and fundamental error may be raised in a post-conviction proceeding, within the rules of post-conviction procedure. Id. See also Smith v. State, 559 N.E.2d 888 (Ind. Ct.App.1990) (<HOLDING>). We therefore will examine, on the merits, the Holdings: 0: holding that insufficiency of evidence is reviewable even in a postconviction setting 1: holding that postconviction proceeding is a civil suit 2: recognizing that rule 32 is a postconviction remedy 3: holding that claims not raised in a timely postconviction motion are waived 4: holding that insufficiency of evidence not cognizable in postconviction claim
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and thus, on that basis, cannot be said to be within the scope of the assets transferred by the Asset Agreement. The majority recognizes this problem and states that “[a] possible reply” is that ICI “didn’t need the copyright itself, but just the right that [17 U.S.C. § 117] gave it — the right to modify the program for its own use.” Op. at 931. I agree that the right to modify the program is the only right “necessary” to its freight forwarding service and thus the only right necessarily conveyed by an asset transfer agreement that only transfers assets “necessary” to the business. 2. Although there is a strict requirement that the transfer of a copyright interest be in writing, the majority is correct when it states that “it does not follow as ITOFCA believes t 80, 285 (S.D.N.Y.1997) (<HOLDING>); Relational Design & Tech., Inc. v. Brock, Holdings: 0: holding unconscionable an arbitration provision in a consumer lending contract that binds the consumer to relinquish his or her right to a day in court and virtually all substantive rights while the lender retains the right to a judicial forum for purposes of collection and foreclosure proceedings deficiency judgments and all other procedures which the lender may pursue to acquire title to the borrowers real or personal property 1: holding that agreement transferring all right title and interest to all of its computer programs and software conveyed the copyright 2: holding that the language in the lease agreement for computer accounting programs was an effective disclaimer of an implied warranty but for language in a statement of installation conditions which document created a genuine issue of material fact as to disclaimer 3: holding that a determination of unfair discrimination requires a court to consider all aspects of the case and the totality of all the circumstances 4: holding the right of free speech is not absolute at all times and under all circumstances
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from the time of the damaged shipment until the time of the insurance payment. Because National Insurance, as subrogee, is only entitled to indemnity for its payment to Tabacalera, we believe that the district court did not err in computing prejudgment interest from the date that National Insurance paid Tabacalera’s claim. D. Simple Prejudgment Interest On cross-appeal, National Insurance also submits that the district court erred in awarding simple rather than compound prejudgment interest. As a general rule, the decision whether to award compound or simple prejudgment interest is left to the discretion of the trial court. See Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 437 (7th Cir.1989); EEOC v. Kentucky State Police Dep’t, 80 F.3d 1086, 1098 (6th Cir.1996) (<HOLDING>); Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, Holdings: 0: holding that the trial court did not abuse its discretion in awarding prejudgment interest on attorneys fees paid prior to the entry of judgment 1: holding that prejudgment interest may inelude compound interest 2: holding in adea action that district court did not abuse its discretion by awarding compound rather than simple prejudgment interest 3: holding that prejudgment interest may include compound interest 4: holding that district court did not abuse its discretion in awarding prejudgment interest at the colorado statutory rate of 8 percent
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diversity jurisdiction over cases between aliens. More specifically, “diversity is lacking ... where the only parties are foreign entities, or where on one side there are citizens and aliens and on the opposite side there are only aliens.” Universal Licensing, 293 F.3d at 581. For corporate citizenship, the version of section 1332(c) that was in effect at the time this action was commenced read: “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (2006). State, with a capital “S,” clearly refers only to the States of the United States. The diversity statute repeatedly dis f Syria & Leb., No. 04 Civ. 5434(RJH), 2005 WL 39917, at *6-7 (S.D.N.Y. Jan. 6, 2005) (<HOLDING>); Willems v. Barclays Bank D.C.O., 263 F.Supp. Holdings: 0: holding that the location of a corporations principal place of business for diversity purposes is the state where the corporation has its headquarters or nerve center 1: holding that a corporation is fairly regarded at home and so amenable to personal jurisdiction for suits relating to all of its activities including those outside the forum in its principal place of business and place of incorporation 2: holding 1332c does not apply to a domestically incorporated corporation with its principal place of business abroad 3: holding that for a domestic corporation the foreign principal place of business does not count 4: holding that if a domestic corporations principal place of business is abroad the foreign principal place of business cannot be considered for diversity jurisdiction purposes
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recovery under that section. We note that pre-SARA, Conrail could make a viable claim for contribution under § 107(a)(4)(B). As originally enacted, CERCLA lacked any express mechanism by which one party could recover from another for paying more than its pro rata share of the costs of a clean-up. See United Technologies v. Browning-Ferris Industries, Inc., 33 F.3d 96, 100 (1st Cir.1994). Courts filled this gap by interpreting § 107(a)(4)(B) as providing a private right of action by which a party, who had expended resources on cleanup efforts, could obtain contribution from others. See Key Tronic Corp. v. United States, 511 U.S. 809, 816 n. 7, 114 S.Ct. at 1965 n. 7, 128 L.Ed.2d 797 (1994) (noting interpretation); United States v. New Castle County, 642 F.Supp. 1258, 1269 (D.Del.1986) (<HOLDING>). Until the passage of SARA in 1986, the Holdings: 0: recognizing cause of action for loss of consortium 1: recognizing cause of action for wrongful death 2: recognizing cause of action for wrongful discharge 3: recognizing cause of action 4: holding that dismissal is proper for a derivative cause of action but not for a direct cause of action
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Leasing Corp., 699 F.2d 58, 61 (1st Cir.1983) (”[I]n case of doubt, an instrument is to be taken against the party that drew it”); ER Holdings, Inc. v. Norton Co., 735 F.Supp. 1094, 1100 (D.Mass.1990) ("Massachusetts law construes ambiguous contractual language against the drafter”)). This Court need not reach the issue before Judge Hillman. Even if the language were ambiguous as capable of the two meanings offered in Cromwell, the Gizas cannot rely on either as a rebuttal to the presumption of delivery where they did not testify with any assurance or consistency as to what they received, where they put it or what happened to it thereafter. 20 .The District Court affirmed the Bankruptcy Court’s ruling that Appellants had violated the MCCCDA by failing to provi 008, 1012 (7th Cir.2004) (<HOLDING>), with Stutzka v. McCarville, 420 F.3d 757, 762 Holdings: 0: holding that the mere existence of a scintilla of evidence is insufficient to create a dispute of fact that is genuine 1: holding that mere assertion of nonreceipt is not enough to raise a genuine issue of fact as to compliance with the regula tion 2: holding response stating attached evidence demonstrated genuine fact issues insufficient to raise issue 3: holding that where affidavits raise a genuine issue of material fact as to a brady claim an evidentiary hearing should be conducted 4: holding that a speculative affidavit which contained mere conjecture was insufficient to create a genuine issue of material fact for trial
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Ramiro Camacho, Jr., a Nevada state pris acho failed to produce any evidence creating an issue of fact pertaining to the alleged violation of his Eighth Amendment rights. See Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (<HOLDING>); see also Jacobson, 50 F.3d at 1496 (affirming Holdings: 0: holding that prisoner must show prison officials were deliberately indifferent to prison conditions to establish an eighth amendment violation 1: holding prison official is deliberately indifferent if he knew that prisoner faced a substantial risk of harm and disregarded that risk 2: holding that prison conditions are those aspects of prison life affecting the entire prison population 3: holding that in order to state a violation of the eighth amendment an inmate must demonstrate that prison officials showed deliberate indifference to serious medical needs 4: holding a prisoner has no constitutional right to a job in prison
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issue. SCRA 1986, 12-216 (Cum.Supp.1995); see also State v. Casteneda, 97 N.M. 670, 674, 642 P.2d 1129, 1133 (Ct.App.1982). The trial court asked during closing argument whether the sole issue was the exigent circumstances question, and neither the prosecutor nor defense counsel corrected the court’s impression. After the trial court orally ruled in favor of the State on the exigent circumstances question, defense counsel asked to clarify several points. None of the matters sought to be clarified involved the pretext issue sought to be argued here, and counsel did not request that the trial court rule on this issue. Under these circumstances we hold that Defendants failed to preserve this issue for appellate review. Cf. State v. Montoya, 116 N.M. 297, 304, 861 P.2d 978, 985 (Ct.App.) (<HOLDING>), cert. denied, 116 N.M. 364, 862 P.2d 1228 Holdings: 0: holding that where there is insufficient evidence to permit a reasonable factual finding of originality the question may be disposed of as an issue of law at summary judgment 1: holding we may consider an issue raised for the first time on appeal when the issue presented is purely one of law and depends on the factual record developed below 2: holding claim of pretextual purpose necessitates finding on factual issue 3: holding that a calculation of the amount of loss is a factual finding 4: holding that factual pleadings on this issue are weak but sufficient
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contains a lengthy discussion — located in the section following Kendall’s discussion of recusal — explaining why Kendall had sua sponte concluded that Ford and Paris could not obtain a fair trial due to pre-trial publicity, despite the holding of this Court’s May 13, 2009 Opinion. Ford, 52 V.I. at 53-59. Thus, the July 7, 2009 Opinion itself provides strong evidence that Kendall’s stated reason for recusal was a pretext, in that Kendall continued to issue rulings in the matter — including in the same document in which he announced his recusal — despite claiming to have been biased against one of the parties. Under these circumstances, we find Kendall guilty of indirect criminal contempt through failure to comply with the May 13, 2009 Opinion and Order. See Palmer, 418 N.E.2d at 532 (<HOLDING>). D. Misbehaving in Official Transactions Holdings: 0: holding that an attorney charged with contempt for failing to attend a scheduled hearing could be charged only with indirect not direct contempt because the contempt did not occur in open court and the judge did not have personal knowledge of the reasons for the attorneys nonappearance 1: holding trial judge in indirect criminal contempt for recusing himself to avoid applying decision he disagreed with 2: holding that a juvenile defendant could not be found in indirect criminal contempt where defendant was not given specifics as to the acts which constituted the alleged contempt and there was no information in the order to show cause informing defendant that he was subject to possible criminal penalties 3: holding that where criminal contempt charged has in it the element of personal criticism or attack upon the judge and where delay would not be impracticable a different judge should preside over the criminal contempt trial 4: holding evidence insufficient to show direct contempt and no basis for indirect contempt because of failure to meet procedural requirements
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the period required to replace it. Damages in Tort, supra § 37.54[1], at 166—67; McCormick, supra § 124. The general rule regarding damages occasioned by the total destruction of one’s motor vehicle has long been limited to recovery simply for the vehicle’s value at the time of destruction. The reason for this rule is not clear. It may be based upon the historical limitation contained in an action for trover at common law; or because plaintiff has the presumed ability to enter the marketplace with the sum awarded and purchase another product; or perhaps upon the theory that in recovering the full value of the vehicle as of the date of destruction, the owner has been made whole. Allanson v. Cummings, 81 A.D.2d 16, 439 N.Y.S.2d 545, 546-47 (1981) (citations and internal quotat 1962) (<HOLDING>). The rationale supporting this proposition is Holdings: 0: holding sentence of life imprisonment resulting from a wrongful killing caused by the use of an automobile is not cruel and unusual punishment 1: holding that an employer is only allowed to be reimbursed from a tort recovery to the extent that the recovery duplicates the elements of damage covered by compensation benefits 2: holding that smiejas consent to a contract of hire could be implied from his acceptance of the districts control and direction of his work 3: holding that the court could not condone conditioning recovery on ones financial ability to hire another automobile because plaintiff would be denied compensation for his inconvenience resulting from the wrongful act of the defendant 4: recognizing suit for discriminatory failure to hire when the defendant employer failed to hire another corporation as an independent contractor and a potential employee of the rejected corporation brought suit directly against the defendant employer
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683, 684-85 (Tex.App.-Austin 1990, no writ). Section 230 of the Texas Probate Code codifies the common law concept that the executor has a fiduciary duty to exercise reasonable care in the administration of the estate property. Tex. PROb.Code Ann. § 230 (“The executor or administrator shall take care of the property of the estate of his testator or intestate as a prudent man would take of his own property.”); see also Restatement (Third) of Trusts § 77 (2007) (stating that trustee has duty to administer the trust as a prudent person would). An independent executor’s fiduciary duty runs to the estate’s beneficiaries, and it arises from his status as trustee of the estate’s property. Human Soc’y of Austin, 531 S.W.2d at 577; see also Huie v. DeShazo, 922 S.W.2d 920, 922-23 (Tex.1996) (<HOLDING>). Thus, the independent executor owes a legal Holdings: 0: holding that a physicianpatient relationship gives rise to a duty to avoid emotional harm from failure to provide critical information to patient 1: holding that the unique nature of psychotherapistpatient relationship gives rise to a duty of care to the patient 2: holding that independent executor stands in fiduciary relationship with creditors of estate 3: holding that relationship between executor and estates beneficiaries is one that gives rise to fiduciary duty as matter of law 4: holding that broker owed no fiduciary duty to client as a matter of law
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700 F.2d 427, 429 (1st Cir.1983). In this case, the specificity of the indictment’s allegations “fairly [apprised] the defendant of the crimes with which he was charged,” Kimberlin, 18 F.3d at 1159, quoting Land v. United States, 177 F.2d 346, 348 (4th Cir.1949), and the date of the conspiracy was not a substantive element of the crime of conspiracy. Even if an improper variance had existed, it would not have impinged on Queen’s substantial rights. Furthermore, the district court’s decision not to give the defendant’s- offered limiting instructions to the jury was a reasonable exercise of its discretion. “A district court’s refusal to provide an th Cir.1993) (admitting testimony of defendant's prior extortionate acts to show motive, intent, and plan); Russell, 971 F.2d at 1106-07 (<HOLDING>). 4 . The archetype of this practice appears at Holdings: 0: holding evidence of defendants extramarital affairs and discharge from the marine corps admissible to show motive in the murder of defendants wife 1: holding evidence of prior drug use admissible to show motive and the nature of the defendants relationship with coconspirators 2: holding other crimes evidence admissible to show motive where motive was put in issue by defense at trial 3: holding evidence of defendants gambling losses and extramarital affair admissible to show motive to kill when he admitted to police that he drugged and robbed murder victims but claimed he did not kill them 4: holding prior assault on wife admissible to show husbands jealousy as motive for her murder
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States v. Theriault, 440 F.2d 713, 715 (5th Cir.1971) (same). In the section 3006A(e) context, we have remanded to the district court for adherence to the statute. Hamlet, 456 F.2d at 1285; Theriault, 440 F.2d at 715. However, the guarantees of section 3006A(e) are distinct in at least one important respect: the statute provides a defendant expert assistance for preparation for his trial, and provision of those statutory guarantees therefore takes on a constitutional dimension not present in collateral habeas corpus proceedings. Compare Theriault, 440 F.2d at 716-717 (Wisdom, J., concurring) (invoking indigent criminal defendant’s constitutional right to court-appointed experts to assist with defense) with Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (<HOLDING>). The fact that there is no constitutional Holdings: 0: holding that even capital prisoners have no constitutional right to counsel in habeas cases 1: holding teague applies to capital cases 2: recognizing the common practice of substituting specialized capital counsel for habeas petitions filed by capital defendants 3: recognizing constitutional right to effective counsel 4: holding no right to counsel for capital defendants in state habeas proceedings
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proposition that the imposition of principles of comparative negligence is an appropriate method for apportioning liability when the misrepresentation is only negligent. See Aztlan Lodge No. 1 v. Ruffner, 155 Ariz. 163, 745 P.2d 611 (1987) (court held jury should have been instructed on contributory-negligence theory in negligent-misrepresentation action by sellers against real estate broker and its agent); Darner Motor Sales Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984) (court held that question of contributory negligence is for the trier of fact and turns on the reasonableness of an insured’s failure to read the policy and his reliance on statements made by the agent); Robinson v. Poudre Valley Federal Credit Union, 654 P.2d 861 (Colo.Ct.App.1982) (<HOLDING>); McElroy v. Boise Cascade Corp., 632 S.W.2d Holdings: 0: holding negligent misrepresentation sufficient 1: holding that pecuniary damages are essential to a fraudulent misrepresentation cause of action 2: holding that contributorynegligence principles apply to recipient of a negligent misrepresentation and to negligence that results in pecuniary loss 3: holding that the plaintiffs negligent misrepresentation and negligent infliction of emotional distress claims are governed by opla 4: holding economic loss rule did not bar negligent misrepresentation claim where parties had no contract
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review by the municipality’s authorized policymakers," Id. at 127 (plurality opinion) (emphasis added). Rather, it refers to the plurality's earlier observation that "[ajssuming applicable law” does not make the mayor's decisions reviewable by municipality's civil service commission, "one would have to conclude that policy decisions made [] by the mayor ... would be attributable to the city itself.” Id. at 126 (plurality opinion). This is merely a common sense understanding of the word "final.” 25 . A different way of stating the same point is to the extent an official is not monitored for compliance with "merit and fitness” policies, the official is not actually "constrained” by such polices for purposes of Praprotnik. See Randle v. City of Aurora, 69 F.3d 441, 448-49 (10th Cir.1995) (<HOLDING>) (citations omitted) (emphasis added). 26 . If Holdings: 0: holding that director of the police department is not a final policymaking official because his decisions are constrained by the county manager the board and administrative order and polices 1: holding that determination as to whether an official has been delegated final policymaking authority is a question of law for the court not one of fact for the juiy 2: holding that in determining final policymaking authority the pertinent issue is not whether the official is hypothetically constrained by policies not of that officials making but whether such constraints are actually meaningful and citing melton to note that a city charters merit and fitness policy did not preclude an officials final policymaking authority 3: holding that under praprotnik a town charters directive that city managers personnel decisions be based on merit and fitness did not preclude city managers final policymaking authority where no other town officials were empowered to enforce that provision 4: holding that under praprotnik city manager had final policymaking authority regarding personnel decision despite city charters command that all personnel decisions be made according to merit and fitness
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opinion on remand that the superior court may have implicitly adjusted upward the valuation of the marital estate by the amount of the post-trial appreciation in the Snowy Owl property. (The superior court there stated that, “one solution is to re-divide the marital assets and give Kevin more of those assets, which primarily is the [Snowy Owl] house.") There is no indication that the superior court adjusted the valuation of any of the other assets comprising the marital estate to account for any post-trial appreciation. To the extent that the appreciation of the Snowy Owl property is attributable to Wendy’s post-trial expenditures of effort or money, it would be error to increase the valuation of the marital estate. See, e.g., Bousquet v. Bousquet, 731 P.2d 1211, 1214 (Alaska 1987) (<HOLDING>); Foster v. Foster 883 P.2d 397, 399 (Alaska Holdings: 0: holding that separate property may become marital property if spouse donates it to marital unit with intent at time of donation that property become marital 1: holding that separate property valued at 45000 was transmuted to marital property when improved by 3800 of marital property 2: holding that circuit court erred in failing to consider that marital property in the form of marital earnings was used to pay debt against nonmarital property 3: holding trial court had no authority to award portion of the marital property to wifes children from another marriage even though money they received by way of social security benefits were commingled with the marital estate and used in part for the aequisition of marital property 4: holding that assets acquired subsequent to separation are not considered marital property absent evidence that spouse used marital property to obtain them
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both the Code and the relevant regulations that allowed the double deduction at issue. In fact, Ilfeld itself suggests that it would give way to permissive regulations. See 292 U.S. at 68, 54 S.Ct. 596 (“There is nothing in the Act that purports to authorize double deduction of losses or in the regulations to suggest that the [IRS] construed any of its provisions to empower [the IRS] to prescribe a regulation that would 'permit consolidated returns to be made on the basis now claimed by [the parent].” (emphases added)). The deductions in Ilfeld violated the existing regulations, which was the basis of the decision. Id. at 67, 54 S.Ct. 596. Nor do any other Supreme Court cases make such a leap. See McLaughlin v. Pac. Lumber Co., 293 U.S. 351, 355-56, 55 S.Ct. 219, 79 L.Ed. 423 (1934) (<HOLDING>); United States v. Skelly Oil Co., 394 U.S. Holdings: 0: holding that the claimed deductions were inconsistent with the governing statute where no onpoint regulations permitted the duplicative deductions 1: holding that as the court has made clear in several recent decisions a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue 2: holding that where the subject matter of the statute falls squarely within the agencies areas of expertise and the regulations were issued as a result of a statutorilycoordinated effort among the agencies chevron is the governing standard 3: holding that the mustbill policy is a reasonable implementation of the reimbursement system and consistent with the governing statute and regulations 4: holding moot a constitutional challenge to a state statute governing the involuntary commitment of mentally ill minors because the law had been replaced with a different statute
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Id. The result of this balancing test, the Seventh Circuit concluded, is that an order damaging only an attorney’s professional reputation, while potentially a significant enough injury to satisfy the case or controversy requirements of Article III, is not a “final decision” for the purposes of § 1291 and, therefore, not appealable. Id.; Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir.1984). The Seventh Circuit did, however, leave open the possibility that an attorney damaged by an order finding misconduct alone could seek relief by a writ of mandamus. Clark, 972 F.2d at 820. The Fifth and District of Columbia Circuits fall into the second category and both allow attorneys to appeal orders that find misconduct alone. Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir.1997) (<HOLDING>); Sullivan v. Committee on Admissions and Holdings: 0: holding that the importance of an attorneys professional reputation and the imperative to defend it when necessary obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct 1: holding professional rules do not provide basis for civil liability 2: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 3: holding that a professional owes no duty to third persons unless the professional had actual knowledge that those persons would rely on his rendering of professional services 4: holding that as a general matter membership or shareholder status in a professional corporation does not shield an attorney from individual liability for his own mistakes or professional misdeeds
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1439 & n. 11 (1995) ("It is well known that some of the most insuperable barriers in the great race of competition are the result of government regulation.” (quoting United States v. Syufy Enters., 903 F.2d 659, 673 (9th Cir.1990) (quotation marks omitted))). 11 . See also Wash. Admin. Code §§ 246-310-010(58), -715(2). If a planning area's net need is negative, the Department may revoke existing certificates of need. See Wash. Admin. Code §§ 246-310-715(2), -755(a). 12 . At worst, capacity expansion, if motivated by a specific intent to monopolize with a dangerous probability of success, might be attempted monopolization under Sherman Act § 2, but that could not be decided on a facial challenge and thus could not warrant preemption. See Fisher, 475 U.S. at 270 n. 2, 106 S.Ct. 1045 (<HOLDING>); Copperweld, 467 U.S. at 774-75, 104 S.Ct. Holdings: 0: holding that taxpayer was still required to go through tax refund procedure despite facial constitutional challenge to state intangibles tax 1: holding that the alc may not rule upon a facial challenge to the constitutionality of a regulation or statute but may rule upon an asapplied challenge 2: recognizing that courts should exercise judicial restraint in a facial challenge 3: holding that an allegation of monopolization or attempted monopolization would go beyond the scope of the facial preemption challenge presented here 4: holding that exhaustion of arbitration procedure is not necessary before the district court could consider a facial constitutional challenge
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modification suit, does a trial court have jurisdiction and authority to order payment of attorney’s fees as additional child support? Under his first issue, Ross argues that in a modification suit in which the trial court does not order a party to pay a past-due child-support obligation, the trial court has no authority to order payment of attorney’s fees to a parent or amicus attorney as additional child support. The reasoning of the First Court of Appeals in In re Moers supports Ross’s argument. See 104 S.W.3d 609, 611-12 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Though he relies upon the In re Moers case, Ross acknowledges that this court declined to follow In re Moers and held to the contrary in Hardin v. Hardin. See 161 S.W.3d 14, 24-27 (Tex.App.-Houston [14th Dist.] 2004) (<HOLDING>), judgm’t vacated, op. not withdrawn, No. Holdings: 0: holding in nonenforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorneys fees of the other parent as additional child support if the fees are necessaries for the benefit of the children 1: holding that attorneys fees are necessaries for the criminal defense of a child 2: holding in nonenforcement modification suit that court of continuing jurisdiction did not abuse its discretion in ordering father to pay reasonable attorneys fees incurred by mother as necessaries for the children 3: holding in modification suit in which no enforcement was ordered that trial court did not abuse its discretion in ordering father to pay mothers attorneys fees as child support under the necessaries rule 4: holding that attorneys fees incurred in a nonenforcement modification suit can be awarded as additional child support under the family code
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Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987) (quoting Restatement (Second) of Judgments § 13 cmt. f(1982)). Therefore, the defendants could have included the affirmative defenses in their answer. But delay alone is not sufficient reason to deny a motion for leave to amend a pleading, and although the delay here is substantial, it must be weighed against the “time and judi ndants’ dispositive motions, taken alone, should fail because they incorporate affirmative defenses not set forth in their answer. See Harris, 126 F.3d at 345; Fed.R.Civ.P. 8(c). But the fact that the defendants erred in filing their dispositive motion before seeking leave to amend their answer does not persuade the court to deny their motion for leave to file an amended answer. See Harris, 126 F.3d at 345 (<HOLDING>). Indeed, allowing the defendants to amend Holdings: 0: holding that the defendant could not raise affirmative defenses initially in its dispositive motion but remanding the case to the trial court to determine if leave to amend answer to incorporate affirmative defenses was appropriate so that the defendant could then properly raise those defenses in its dispositive motion 1: recognizing that trial court properly left the door open for defendant to prove its defenses to the fed complaint 2: holding that where incorrectly named defendant filed a motion to dismiss and an answer with affirmative defenses and actively participated in discovery it led the plaintiff to believe that the correct defendant had been sued and that the plaintiff was therefore entitled to amend its complaint to correct the misnomer 3: holding that a party may not raise a new claim in its response to a dispositive motion 4: holding that affirmative defenses are waived if not pled
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because Shushan applies the analysis used for class actions brought under Rule 23, and because the Fifth Cir cuit has described Rule 23’s “opt out” procedure as fundamentally and irreconcilably different from § 216 (b)’s “opt in” proee-dure, see LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir.1975) (per curiam), most courts in this district follow the Lusardi approach. See Sandoz, 553 F.3d at 915 n. 2. See also Tolentino v. C & J Spec-Rent Services Inc., 716 F.Supp.2d 642, 646 (S.D.Tex.2010) (collecting cases). This court, therefore, will analyze plaintiffs motion using the Lusardi approach. At this initial state of the Lusardi approach, a plaintiff need only make a minimum showing to persuade the court to issue notice to potential class members. Mooney, 54 F.3d at 1214 (<HOLDING>). In the absence of Fifth Circuit guidance on Holdings: 0: holding party may raise jurisdictional issue at any stage of proceedings 1: holding that the filing of a motion for a new trial is a critical stage of the prosecution and that an indigent defendant is constitutionally entitled to the assistance of counsel at that stage 2: holding that the application of the fair use doctrine at the pleading stage is appropriate 3: recognizing that courts apply a fairly lenient standard at the initial stage of the analysis 4: holding that a valid waiver of counsel at an early stage of the proceeding does not continue in effect through a subsequent stage
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been committed before Agent Faria intervened, Valencia-Vergara had the opportunity to proceed to trial, but chose to plead guilty, and he was represented during his plea and sentencing hearings by his attorney. Based on these considerations, Agent Faria’s conduct, though reprehensible, did not rise to the level of fundamental unfairness and outrageousness contemplated by this Court’s precedent. See id. at 868-69. Moreover, as the magistrate judge noted, neither this Court nor the Supreme Court has reversed a conviction because of a failure to dismiss a case based on government misconduct, and this case is not one of the rare instances in which government conduct was so outrageous that it violated due process. See United States v. Tobias, 662 F.2d 381, 385-87 (5th Cir. Unit B Nov.1981) (<HOLDING>). Moreover, even if Valencia-Vergara had shown Holdings: 0: holding that when the government acts to enforce public rights the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts 1: holding that whether error in failing to ask a question about bias in favor of law enforcement testimony requires reversal hinges on such factors as the importance of the government agents testimony to the case as a whole the extent to which the question concerning the venire persons attitude toward government agents is covered in other questions the extent to which the credibility of the government agentwitness is put into issue and the extent to which the testimony of the government agent is corroborated by nonagent witnesses internal quotation marks and citation omitted 2: holding where 1 the government provided the defendant with all the necessary drugmaking materials 2 the government provided instructions on how to make the drugs and 3 the defendant sought out the materials and help from the undercover government agents the case set the outer limits to which the government may go in the quest to ferret out and prosecute crimes but the governments conduct did not rise to the level of a due process violation 3: holding that the defendant failed to demonstrate government acquiescence in part because he never reported alleged gang incidents to the government and therefore could not prove that the government was even aware of a problem 4: holding that the district court did not err in instructing the jury not to draw any adverse inferences from the governments failure to call a witness because the witness did not have a relationship with the government such that one would expect him to give testimony in favor of the government
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considered the claim of the mother to be more analogous to a direct claim for negligent infliction of emotional distress. As explained by the Court in Giardina, “the medical malpractice causing an infant stillbirth constitutes a tort against the parents, entailing the direct infliction of injury, their emotional distress and mental suffering, for which they are entitled to recover compensatory damages.” 111 N.J. at 413, 545 A.2d 139. In reaching that conclusion the Court drew on cases involving so-called wrongful-birth and wrongful-life causes of action, which recognize direct claims by parents for the infliction of emotional distress from negligent advice or genetic counselling in anticipation of or during pregnancy, see, e.g., Procanik v. Cilio, 97 N.J. 339, 352, 478 A.2d 755 (1984) (<HOLDING>); Schroeder v. Perkel, 87 N.J. 53, 63-64, 432 Holdings: 0: recognizing claim for negligent infliction of emotional distress when hospital negligently failed to release to parents their sons braindead corpse 1: recognizing claim for negligent infliction of emotional distress when medical malpractice during pregnancy resulted in stillborn child 2: holding that doctors failure to inform parents of availability of amniocentesis that deprived parents of opportunity to terminate pregnancy forms basis of direct claim for negligent infliction of emotional distress 3: holding that family could assert claim for negligent infliction of emotional distress against doctor who negligently interpreted a german measles test thereby depriving parents of opportunity to consider terminating pregnancy 4: holding that parents could assert direct claim for emotional distress against doctor who failed to inform them of genetic risk of having another child
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in order to increase the attendance and contributions of out-of-state parishioners, it drew members from three states, it paid salaries, it hosted gospel concerts featuring out-of-state talent for which it requested donations, and it owned several vehicles. Id. at 234-35. On this basis, we concluded that “[t]he church’s interstate connections were direct, regular, and substantial.” Id. at 234. Other courts have similarly found churches to affect interstate commerce where the church has some active commercial connection. See United States v. Terry, 257 F.3d 366, 369-70 (4th Cir.2001) (finding that a church daycare center “was actively engaged in commercial activity” because it provided childcare services for payment); United States v. Grassie, 237 F.3d 1199, 1209 n. 7 (10th Cir.2001) (<HOLDING>). Churches are not the-only buildings that we Holdings: 0: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 1: holding that robbery of proceeds intended for purchase of cocaine affected interstate commerce 2: holding that a state common law claim against a railroad for failure to provide adequate services after the railroad abandoned a line was preempted by frustration of purpose conflict with the interstate commerce act which delegated to the interstate commerce commissioner the authority to regulate abandomnent of lines by earners and broad discretion in determining whether abandonment should be permitted 3: holding that transmission of photographs by means of the internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce 4: holding that a mormon church in rural new mexico affected interstate commerce because the revenues of the church and the tithed incomes goods and services of church members flowed across state lines for distribution by the churchs headquarters in salt lake city
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v. Bell, 833 F.2d 272, 277 (11th Cir.1987) (finding that although federal authorities were highly involved in the defendant’s initial arrest, “it was only after the federal indictment ... that the clock under the Speedy Trial Act began running”). Mr. Bocanegra argues that because the agents that led the investigation and arrested him were federal officials, his arrest was in effect a federal arrest. This circuit’s precedent, however, is contrary to Mr. Bocanegra’s argument given the factual findings of the district court. “[I]f one is held by state officers on a state charge and subsequently turned over to federal authorities for federal prosecution, the starting date for purposes of the Act is the date that the defendant is delivered into federal custody.” Shahryar, 719 F.2d at 1525 (<HOLDING>). That a defendant’s arrest is effected by Holdings: 0: holding that the date of transfer should be measured by the date that the transfer was good as against a subsequent bona fide purchaser or judgement holder which in accordance with applicable state law was the date of recordation as opposed to the date the deed was signed 1: holding that the statute does not begin to run until at least a demand has been made upon the government but determining that the facts of that case made it unnecessary to choose between the date of demand and the date of actual payment as the triggering date for the running of the statute of limitations 2: 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 3: holding that the date of sale for an installment contract was the date of contract formation not the date of the last payment due 4: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act
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(V.I. 2008)). Having reviewed the magistrate’s order and the record, we agree with the Superior Court that the magistrate did not commit clear error in his determination of actual notice. To show that the opposing party received actual notice, a party is not required to prove that any particular form, such as personal service by a process server or service by mail, was used. See Tulsa, 485 U.S. at 491 (permitting actual notice to be given by “ ‘mail or other means as certain to ensure actual notice.’ ”) (quoting Mennonite, 462 U.S. at 800). In the present context, the critical issue under Tulsa is whether or not the claimants had actual knowledge of the creation and pendency of the estate, not the form the notice took. See In re Estate of Sheridan, 117 P.3d 39, 41 (Colo. Ct. App. 2004) (<HOLDING>). The magistrate rested his determination that Holdings: 0: recognizing that when a creditor does not receive adequate notice the creditor is not bound by the confirmation order 1: holding 57 days notice before deadline to file a complaint under 523 was sufficient notice when creditor had actual notice of filing 2: holding that personal injury action arising during the pendency of the bankruptcy proceedings was property of the estate 3: holding that despite a lack of any formal notice tulsa requirement was satisfied by a showing that because the creditor was also the executor of the estate the creditor had actual notice of the pendency of the estate proceedings 4: holding that the creditor did not satisfy the foregoing requirement because it was trying to exercise the avoidance power for itself as a sole creditor not for the benefit of the debtors estate or the creditors as a whole
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we affirm the trial court’s decision, and we remand the case for further proceedings consistent with this opinion. 1 . The trial court noted that the detective asked Arroya whether or not she needed a kleenex, something to drink, and even whether she wanted an opportunity to smoke. Additionally, the court found, based its on review of the entire interrogation, that the detective had not used “unscrupulous techniques.” 2 . The law has developed differently in the area of a request for counsel. Building on a distinction first articulated in Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602, the Supreme Court provides greater procedural safeguards for the right to counsel than for the right to remain silent. Compare Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (<HOLDING>) with Mosley, 423 U.S. at 104 & n. 10, 96 S.Ct. Holdings: 0: holding that the interrogation must cease once the suspect invokes his miranda right to counsel 1: holding that interrogation must cease if the suspect unambiguously asserts his right to counsel 2: holding that the right to have counsel present means the right to have counsel physically present during the interrogation not merely the right to consult an attorney by telephone 3: holding that once the right to counsel is invoked custodial interrogation must cease until the suspects attorney is present 4: holding that when an accused has invoked his right to have counsel present during custodial interrogation a valid waiver of that right cannot be established by showing only that he responded to further policeinitiated custodial interrogation even if he has been advised of his rights an accused having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication exchanges or conversations with the police
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'genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] 'material' means that the fact is one that might affect the outcome of the suit under the governing law"). 13 . Leonard v. General Motors Corp. (In re Headquarters Dodge), 13 F.3d 674, 679 (3d Cir.1993) ("A fact is material if it might affect the outcome of the case, and an issue is genuine if the evidence is such that a reasonable factfinder [sic] could return a verdict in favor of the nonmovant.”). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("Where the record taken as a whole co pital), 213 B.R. 509, 516 (Bankr.N.D.Ohio 1997), aff'd, 181 F.3d 103, 1999 WL 313768 (6th Cir.1999) (<HOLDING>). 49 . Notably, before the March and April 2007 Holdings: 0: holding that a difference between approximately 54 days prepreference average days to payment and approximately 67 days preference average days to payment did not make the payments out of the ordinary course of business 1: holding that payments made 25 days after the average were within the ordinary course of dealings but payments made 50 days after the average were not 2: holding that a difference between 384 days prepreference average number of days to payment and 547 days preference average number of days to payment did not make the payments out of the ordinary course of business 3: holding that a five day discrepancy between average days outstanding during the prepreference period versus during the preference period did not make the payments out of the ordinary course of business 4: holding that the average number of days to payment nearly doubled between the historical period and the preference period which based on the facts of that particular case made the payments outside the ordinary course of dealings between the plaintiff and defendant
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she was qualified for the positions which became available in March and no circumstantial evidence indicating that Kelly Services’s failure to offer these positions to her was related to her jury service. Because three months passed between Boutwell’s jury service in December and the alleged failure to offer her an available position in March, the two events are not “proximate” and there is, therefore, no inference that the two events are connected. See Hatch, - So.3d at -, 2009 WL 1716967 at *5. Furthermore, although the evidence indicates that Kelly Services was aware of Boutwell’s service on a jury, this evidence alone is not sufficient to demonstrate that her service was the sole motivating factor in the decision to not offer one of the Yutaka positions to her. Id. at -, *6 (<HOLDING>). Evidence indicating that three months after Holdings: 0: holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action 1: holding that plaintiff could not establish a prima facie case of retaliation without evidence that the decisionmaker knew about plaintiffs protected activity when he made the decision that resulted in the adverse action 2: holding that the plaintiff failed to establish a prima facie case of retaliation because there was no evidence that the decisionmaker knew of the plaintiffs protected conduct 3: holding that a sixmonth gap between the protected activity and the employees termination was insufficient to infer that the protected activity was a contributing factor 4: holding that the fact that employer had knowledge of the employees protected activity was not sufficient to establish a prima facie case of retaliation where the timing of the discharge was not proximate to the protected activity
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idea’ of the ‘characteristics’ of the product.” Black & Decker, 944 F.Supp. at 225 (quoting Abercrombie & Fitch v. Hunting World, Inc., 537 F.2d 4, 11 (2d Cir.1976)). No exercise of the imagination is necessary to perceive that PowerCheck enables a consumer to check, or verify, the power in the battery. See Thompson Med. Co., 753 F.2d at 216. Indeed, as noted above, in 1981, Anderson registered POW-R-CHEK as a mark, and four other companies are presently marketing products with a power verification feature called “power check.” The use of the identical term by several companies to describe diverse products with a power-verification feature supports the Court’s conclusion that the term PowerCheck is descriptive and thus not particularly distinctive. See Estee Lauder, 108 F.3d at 1511 (<HOLDING>). As the Second Circuit has noted, “[t]he Holdings: 0: holding that there is nothing improper about the use of a trademark to communicate that goods bearing that mark were actually sold on defendants website 1: holding there was no renewal but finding estoppel on the part of the landlord 2: holding that district courts finding of distinctiveness of mark 100 used in respect to facial moisturizer was undermined by the trial evidence that there were approximately 70 trademark registrations and pending applications for registration or renewal that incorporated the term 100 some of which were for cosmetic products 3: holding that district courts lack jurisdiction to review denied applications when deportation proceedings are pending 4: holding that the district court to not clearly err in finding that a distance of 100 feet is within the curtilage
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that permits us to review the constitutionality of the provision in question. Accordingly, even though Ohms did not challenge the constitutionality of seetion 78-3-31 below, we nonetheless address this argument on appeal. Our analysis of the constitutionality of section 78-3-31 begins with the premise that “statutes stitutionality of a given statute is made, the said statute must be examined to determine if it is unconstitutional, either on its face or as applied. See, e.g., In re Criminal Investigation, 7th Dist. Court No. CS-1, 754 P.2d 633, 640 (Utah 1988); Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 204 (Utah 1984); Ellis v. Social Servs. Dep’t of Church of Jesus Christ of Latter-day Saints, 615 P.2d 1250, 1255 (Utah 1980). The statute at issue in th 116 (Utah 1970) (<HOLDING>); accord State v. Green, 793 P.2d 912, 916 Holdings: 0: recognizing right of this court to regulate and discipline members of the bar 1: recognizing that an attorney has a duty of loyalty to his client 2: holding that utah supreme court cannot delegate its duty to discipline an erring attorney to others 3: holding that a general acute care hospital may not delegate its duty to provide physicians for emergency room care because the law imposes a duty on hospital to provide that health care 4: holding that the authority of the supreme court to discipline judges and members of the bar is plenary
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that “[d]is-missal of the underlying bankruptcy proceeding may indicate that no case or controversy remains with respect to issues directly involving the reorganization of the estate....” Dahlquist v. First Nat’l Bank (In re Dahlquist), 751 F.2d 295 (8th Cir.1985); see also Spacek v. Thomen (In re Universal Farming Indus.), 873 F.2d 1334, 1335 (9th Cir.1989) (“When the issue being litigated directly involves the debt- or’s reorganization, the case is mooted by the dismissal of the bankruptcy.”). We believe that the issue before-this court is directly related to OSI’s reorganization. The purpose of this appeal is to obtain a ruling that allows OSI to challenge the propriety of the bankruptcy court’s order lifting the automatic stay. In Chapter 11 bankruptci 100 (Bankr. 9th Cir.1988) (<HOLDING>). Let an appropriate order of dismissal be Holdings: 0: holding that bankruptcy court has discretion to retain jurisdiction over related case after dismissal of the underlying bankruptcy case 1: holding bankruptcy court order approving retention of a law firm retroactively was appealable order 2: holding that creditor lacked appellate standing to appeal order of bankruptcy court absent permission of bankruptcy court 3: holding that an appeal challenging a bankruptcy court order lifting the automatic stay became moot when the underlying bankruptcy case was dismissed 4: holding that an appeal challenging a bankruptcy court order approving a foreclosure sale became moot upon dismissal of the underlying bankruptcy case
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or motion is made for a rehearing of such decision, the decision of the appeals examiner shall become final. 9 . 078. WORK, NATURE OF. Every claimant has the right to restrict his availability to suitable work. I.D.A.P.A. 09.01.30 (1994). 02. Suitable Work. A claimant who customarily works either inside or outside may restrict his availability for a reasonable time to that type of work for which he is best suited and shall not be denied benefits. 073.01. Prospects for Work. A claimant unemployed for a long period of time shall be expected to lower his expectations for employment and become available for work which may not have been previously considered suitable. I.D.A.P.A. 09.01.30 (1994). See also, Guillard v. Department of Employment, 100 Idaho 647, 652, 603 P.2d 981, 986 (1979) (<HOLDING>). (Citing Bayly Mfg. Co. v. Department of Holdings: 0: holding that work which may be deemed unsuitable at the inception of claimants unemployment and for a reasonable time thereafter may thereafter become suitable work when consideration is given to the length of unemployment and the prospects of obtaining customary work at claimants prior earning capacity 1: recognizing receipt of unemployment benefits could impact a claimants disability claim 2: recognizing that the work to be completed in accordance with the time limits of section 6 is the work for which lien enforcement is sought 3: recognizing the principle that an administrative agency error should not work to a claimants detriment 4: holding that your work exclusion is triggered only where the damage at issue is to work performed by you and is caused by work performed by you and does not apply to damage caused to original construction of a house during later repair work
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‘the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.’ ” United States v. Adamson, 291 F.3d 606, 615 (9th Cir.2002) (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.1984)). Here, there was no constructive amendment of the indictment. Swaid’s conviction for ITSP was not substantially altered from the charged crime. Nor did the facts, as alleged in the indictment, materially vary from the evidence adduced at trial. The government evidence concerning “Mark Hansen,” another source of stolen merchandise, constituted nothing more than a single divergence and did not result in any material change in the complex of facts. Cf. Von Stoll, 726 F.2d at 587 (<HOLDING>). Thus, there was no constructive amendment of Holdings: 0: holding that 18 usc 1919 did not implicitly repeal 18 usc 1001 1: holding for the purposes of 18 usc 924e that being a felon in possession of a firearm is not a violent felony as defined in 18 usc 924e2b 2: holding that the person who travels as an agent of person defrauded is a victim 3: holding that a sentencing court is required by 18 usc 3583g to revoke the defendants term of supervised release unless defendant could come under the exception in 18 usc 3583d 4: holding that the identity of a defrauded person under 18 usc 2814 is irrelevant and did not materially alter the complex of facts
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the defendants here, but rather it applies through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 4 . For example, Fox's brief opposing summary judgment in the district court stated that "Plaintiff has never based his [42 U.S.C. § 1983] claim on the original, August 17, 1993, seizure of his license.” A 21, 1991 WL 268661, *3 (N.D.Ill.Dec.4, 1991) (rejecting such a Fourth Amendment claim), aff'd without reaching this issue, 980 F.2d 733, 1992 WL 348883 (7th Cir.1992) (unpublished order). In addition, the district court found that two unpublished opinions of this circuit suggest that claims similar to the one made by Fox here are cognizable under the Fourth Amendment. See Bush v. Banks, Nos. 95-6370, 96-5015, 1996 WL 668551 (6th Cir.1996) (<HOLDING>); Eaton v. Farmer, No. 93-6305, 1994 WL 151336 Holdings: 0: holding that an initially reasonable seizure can become an unreasonable seizure that violates the fourth amendment when officers refuse to return seized property 1: holding seizure unreasonable due to length of detention of property 2: holding that allegations that a seized vehicle was improperly retained and damaged state claims of a denial of due process and right to be free from unreasonable seizure 3: holding that there is no substantive due process right under the fourteenth amendment to be free from malicious prosecution 4: holding that the fourth amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person
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requests for leave to amend. In deciding whether to permit an amendment, a district court may consider factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously! allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We conclude that the district court gave Rogers sufficient prior opportunity to plead his best case and amend his complaint, and the district court did not abuse its discretion in dismissing Rogers’s case without permitting Rogers to file a third complaint. See, e.g., U.S. ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403-04 (5th Cir. 2004) (<HOLDING>). AFFIRMED. * Pursuant to 5th Cir. R. 47.5, the Holdings: 0: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 1: holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint 2: holding district court did not abuse its discretion in not granting plaintiffs leave to amend complaint for a third time 3: holding no abuse of discretion after plaintiff had three opportunities to correct any deficiencies in its complaint 4: holding that trial court did not abuse its discretion in denying motion to amend complaint because the proposed amendment would have been futile
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318-19 (Bankr. M.D.Fla.1991) (awarding $250,000.00 in punitive damages where petitioners acted willfully and maliciously); In re Camelot, Inc., 25 B.R. at 869 (assessing $1,000.00 in punitive damages where petitioners “vindictively” filed their petition). Also, the court should attempt to further overriding bankruptcy policies while ensuring that the penalty is not “unduly harsh.” In re Atlas Mach, and Iron Works, Inc., 190 B.R. at 805 (quoting In re Fox Island Square, 106 B.R. 962, 968 (Bankr.N.D.Ill.1989)). The court should take into account the petitioner’s financial situation in determining what amount of sanctions will further the purposes served by punitive damage awards. See TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 462, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (<HOLDING>). In these cases, Petitioners chose not to Holdings: 0: holding a court may not award punitive damages 1: recognizing the financial position of the defendant as a factor in assessing a punitive damages award 2: holding that defendants wealth is a traditional and acceptable factor where calculating punitive damages 3: holding tcpa is remedial statute and that statutory damages are not punitive damages 4: holding without discussion of the punitive damages issue that judgment for embezzlement which included actual and punitive damages was nondischargeable
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“investigation for, initiation of, testimony for, or assistance in an action filed or to be filed” under the FCA. 31 U.S.C. § 3730(h) (amended 2009). The Sixth Circuit has held that “protected activity” should be interpreted broadly. United States ex rel. McKenzie v. BellSouth Telecomms., Inc., 123 F.3d 935, 944 (6th Cir.1997) (McKenzie I) (citation omitted). Indeed, Plaintiff need not have actually filed suit under the FCA to receive whistleblower protection accorded by Section 3730(h). Rather, in accordance with other circuits, the Sixth Circuit has interpreted “in furtherance of’ to require that Plaintiff be “investigating matters that reasonably could lead to a viable False Claims Act case.” Id.; see also Dookeran v. Mercy Hosp. of Pittsburgh, 281 F.3d 105, 108 (3d Cir.2002) (<HOLDING>) Here, the Complaint alleges that Plaintiff “in Holdings: 0: holding that a party must at least have a subjective belief that litigation was a real possibility and that belief must have been objectively reasonable 1: holding that a forfeiture action is timely so long as at least an administrative action is filed within the 120day statutory period 2: holding misrepresentation must at least be partial cause of plaintiffs injury 3: holding there must at least be a distinct possibility that a viable fca action could be filed 4: holding that the federal action at issue must be authorized
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was maritime in nature. Id. at 738, 81 S.Ct. 886. This was true even though the right the seaman gave up may have been “erroneousf ].” Id. In this case, Great Eastern’s right to refuse delivery of the cargo without presentation of the bills of lading is not contested. It is clear from the language of the LOI itself that its purpose was to induce Great Eastern into discharging the cargo without the presentation of the bills of lading. Binani’s “consideration” (Compl. Ex. 2 at 1) on the contract was a promise to pay indemnity; Great Eastern’s consideration was the prompt discharge of the cargo, a quintessentially maritime service, in forbearance of its right to demand the bills of lading on discharge, a quintessentially maritime right. Cf. Norfolk S. Ry., 543 U.S. at 27, 125 S.Ct. 385 (<HOLDING>). Therefore, the LOI was maritime in nature. Holdings: 0: holding that standard noncompete nondisclosure and lease contracts were still maritime contracts because of nature and character and connection to maritime commercial venture 1: holding that bills of lading are maritime contracts so long as they require substantial carriage of goods by sea 2: holding that the court may not overturn the administrative law judges factual findings as long as they are supported by competent substantial evidence 3: holding that at will contracts of employment are subject to tortious interference with contracts claims 4: holding that that choices as to selection and arrangement are entitled to copyright protection only so long as they are made independently
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because Thompson’s car was within the protected curtilage of his home — parked in his attached garage. (See R.189, at 10-12.) “The decision to impound an automobile, unless it is supported by probable cause of criminal activity, is only valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots.” Duguay, 93 F.3d at 351. 1. The Officers Had Probable Cause to Believe Thompson’s Car Was Subject to Seizure and Forfeiture Defendants claim they are entitled to summary judgment because Thompson’s vehicle was used in commission of an offense — aggravated fleeing or attempting to elude a police officer — that subjected his vehicle to forfeiture. See United States v. Pace, 898 F.2d 1218, 1241-42 (7th Cir.1990) (<HOLDING>). Police may seize vehicles without a warrant Holdings: 0: holding that a vehicle may be seized without a warrant if there is probable cause to believe that it is subject to forfeiture 1: holding that an arrest warrant can authorize entry into a dwelling only where the officials executing the warrant have reasonable or probable cause to believe the person named in the warrant is within 2: holding a warrantless arrest by a law officer is reasonable under the fourth amendment where there is probable cause to believe that a criminal offense has been or is being committed 3: holding that the vehicle of a recent occupant may be searched incident to arrest as an exception to the warrant requirement where it is reasonable to believe the vehicle contains evidence of the offense of arrest 4: holding that the purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it
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at 406, 79 Cal.Rptr.2d 52. NCAIG raises a separate issue, barely addressed by Maxum, as to whether Max-um breached its duty to defend Mulberry in the underlying litigation. The Policy states: We will have the right and duty to defend any “insured” against any “suit” seeking those “damages”. However, we will have no duty to defend an “insured” against any “suit” seeking “damages” for a “wrongful act” to which this insurance does not apply. In NCAIG’s view, because the Maxum failed to show that Mulberry subjectively believed that the issuance of the fraudulent insurance would result in a claim, it also breached its duty to defend the litigation, and is therefore liable for the default judgment. See Gray v. Zurich Ins. Co., 65 Cal.2d 263, 279, 54 Cal.Rptr. 104, 419 P.2d 168 (1966) (<HOLDING>). The next inquiry is whether the knowledge of Holdings: 0: holding that insurance companies that breach the duty to defend to be liable on any subsequent judgment 1: holding that an insurer had no duty to defend in the absence of any cause of action amounting to a potentially covered offense under the insurance policy 2: holding government could be liable for breach of a contractual obligation to purchase insurance for plaintiff 3: holding the duty to indemnify is narrower than the duty to defend 4: holding that insurer had a continuing duty to defend
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(W.D.Mo. Sept. 14, 1999) (same); Greer v. Allstate Ins. Co., No. 97-1138 (W.D.Mo. Sept. 14, 1999) (same); McClain v. Shelter General Ins. Co., No. 97-1139 (W.D.Mo. Sept. 14, 1999) (same); McClain v. American Economy Ins. Co., No. 97-1019 (W.D.Mo. Sept. 14, 1999) (same); Canady v. Federal Ins. Co., No. 97-1141 (W.D.Mo. Sept. 14, 1999) (same); Canady v. Farm Bureau Town & Country Ins. Co., No. 97-1121 (W.D.Mo. Sept. 14, 1999) (same); Hammonds v. Prudential Property & Cas. Co., No. 97-1016 (W.D.Mo. Sept. 14, 1999) (same). 6 . Appellants contend that the All Writs Act does not provide an independent basis for removal to federal court, relying primarily on precedent from other circuits to support their argument. See, e.g., Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1379 (11th Cir.1998) (<HOLDING>). However, those cases do not deal with the Holdings: 0: recognizing the all writs act gives federal courts authority to issue writs of coram nobis to correct fundamental errors in criminal proceedings where the person is no longer in custody 1: holding that district court had jurisdiction to consider claims under the all writs act 2: holding that removal to federal court was proper for claims asserted under all writs act 3: holding that the all writs act does not provide an independent basis for supplemental federal jurisdiction in situations where federal jurisdiction is otherwise wholly lacking 4: holding the federal tort claims act did not permit exercise of pendant jurisdiction over additional parties as to which no basis for federal jurisdiction existed
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recanted his testimony to some extent, stating that it was hard to tell whether the riders and/or the truck had remained on their respective sides of the road. Another rider testified at his deposition that he was certain that Mr. Konitshek’s SUV extended beyond the center line. Still another testified that the SUV certainly remained on its side of the road the entire time. For purposes of this appeal, we will assume the facts most favorable to Plaintiffs’ argument. 4 . Admittedly, there is no indication in Keller v. Albright, 1 F.Supp.2d 1279, that the plaintiff there argued that the Utah standard for granting summary judgment in a negligence claim should apply. 5 . Even if the defendants have some burden to establish that the race was run in accorda 570, 574-75 (Utah Ct.App.1994) (<HOLDING>), with Macintosh v. Stoker Paving and Const. Holdings: 0: holding that the admission of expert testimony was prejudicial where the testimony was pervasive 1: holding that the relationship between fire insurance regulation and rating fire loss fire prevention and fire investigation is rational and reasonable 2: holding that expert testimony was not necessary in case involving claim that a center working with the developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off 3: holding that fire expert should not have been sequestered where opposing expert testified to facts and theories not revealed prior to trial 4: holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system
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its consent to be bound by [an international agreement].). Secondarily, a treaty may be self-executing upon ratification. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829) (“Our Constitution declares a treaty to be the law of the land ... [it is regarded as] equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”). When this is the case, the treaty acts in the same manner as an Act of Congress. See, e.g., Medellin v. Dretke, 544 U.S. 660, 125 S.Ct. 2088, 2103, 161 L.Ed.2d 982 (2005) (O’Connor, J. dissenting) (noting that Article 36 of the Vienna Convention on Consular Relations was self-executing); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988) (<HOLDING>); Trans World Airlines, Inc. v. Franklin Mint Holdings: 0: holding that service was not perfected on the defendant german corporation because the plaintiff had failed tostrictly comply with the servieeofprocess requirements of the hague convention 1: holding that service of process by international registered mail from germany to the united states satisfied the hague convention and constitutional due process 2: holding because fla stat 48161 required sending of notice and process directly to the defendant under schlunk hague convention applies 3: holding hague convention applies to service of foreign defendant pursuant to fla stat 48181 and 48161 4: holding that the hague service convention is selfexecuting
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repaid. Burnett also purchased a large quantity of drugs from Jer-abek that turned out to be of very low quality. Burnett severed his relationship with Jerabek after this. Rutland sold drugs and collected debts for Burnett. Although there was no evidence any of the coconspirators specifically stated they were targeting Jerabek to damage his business, Burnett did say while planning the robbery that he wanted what Jerabek owed him. The district court could have inferred from this evidence that one purpose of the robbery was to collect drug debts Jerabek owed Burnett. Rutland’s sole response to this evidence is to argue the robbery was not a reasonably foreseeable consequence of the drug conspiracy. See Bourjaily v. United States, 483 U.S. 171, 188, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (<HOLDING>). He maintains that the drug conspirators Holdings: 0: holding that absolute immunity cannot attach to a quasijudicial officer if his actions are clearly and completely outside the scope of his jurisdiction 1: holding that a police officers rape of an arrestee was outside the scope of his employment 2: holding an individual who acts outside the scope of a conspiracy cannot bind his coconspirators 3: holding that once a defendant becomes associated with a conspiracy he is responsible for all of the acts of the conspiracy even those which occurred before or after his association with the conspiracy 4: holding that evidence was sufficient for jury to find that the defendant participated in the conspiracy even though he did not have a relationship with all of his fellow coconspirators
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Swansea (1977), 56 Ill. App. 3d 759, 763-65, 371 N.E.2d 1155, 1157 (sewer rate classifications). We conclude that the trial court did not apply an incorrect standard in reviewing Chicago’s ordinance in the first instance. Because it is plaintiffs’ “heavy burden” to overcome the presumptive validity of the ordinance, it follows that they must also demonstrate that the rates charged them are discriminatory, unreasonable, or arbitrary, by a clear and affirmative showing. If it were Chicago’s burden to prove the reasonableness of its rates in the first instance, the presumptive validity of the ordinance would be nullified. Nevertheless, Chicago did produce affirmative evidence of the reasonableness of its rates. Cf. Bobrowicz v. City of Chicago (1988), 168 Ill. App. 3d 227, 522 N.E.2d 663 (<HOLDING>), appeal denied (1988), 122 Ill. 2d 570, 530 Holdings: 0: holding that simply because claimants had diverted the entire run of the water at issue did not give them the ability to claim a right to all the water when they could not and had not put it to beneficial use 1: holding substantial completion had occurred because water district took possession of all the lines filled them with water and began using them to serve the customers of the water district 2: holding that chicagos 50 surcharge on water sales to nonresident consumers violated its common law duty not to charge unreasonable or discriminatory rates to those customers to whom the city had undertaken to provide water 3: holding district court had no jurisdiction over citys decision to shut off customers water 4: holding that article x 2 of the california constitution dictates the basic principles defining water rights that no one can have a protectible interest in the unreasonable use of water and that holders of water rights must use water reasonably and beneficially
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for a full evidentiary hearing in which extensive findings of fact would be made. Moreover, the court’s judgment on whether the reinitiation procedures in question are contumacious turns on legal analysis not on disputed issues of material facts. This conclusion is based on two realities. First, the facts that underlie the specific practice alleged to be contumacious are not controverted. The plaintiffs agree with the defendant that the union’s policy of charging fees and back dues for reinitiation is race neutral on its face. (Pl.’s Motion at 2). The absence of a dispute over the nature of the policy makes a full evidentiary hearing in which the court would conduct extensive findings of fact unnecessary. See Sassower v. Sheriff of Westchester Cnty., 824 F.2d 184, 190 (2d Cir.1987) (<HOLDING>); Agur v. Wilson, 498 F.2d 961, 965 (2d Cir.) Holdings: 0: holding that an evidentiary hearing is necessary only if the party requesting the hearing raises a significant disputed factual issue 1: holding that where affidavits raise a genuine issue of material fact as to a brady claim an evidentiary hearing should be conducted 2: holding that there is no need for an evidentiary hearing when the petitioners habeas submissions demonstrate that the petitioner is conclusively entitled to relief in such circumstances an evidentiary hearing would be a waste of judicial resources 3: holding that due process requires an evidentiary hearing when parties submissions in contempt proceedings raise disputed issue of material fact 4: holding that constitutional due process in civil contempt proceedings requires notice and a hearing but not the right to counsel
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v. Davis, 203 F.3d 627, 636 (9th Cir.2000). The pertinent part of § 2255 reads: “A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of(l) the date on which the judgment of conviction becomes final.” Id. The phrase “becomes final” is capable of at least two meanings. In this case, the district court interpreted “final” to mean the date the court of appeals affirms the judgment of conviction. Both parties contend on appeal, however, that a judgment is final only when the time for seeking certio-rari review has expired. This date is 90 days after entry of the court of appeals’ judgment. See Sup.Ct. R. 13. Our sister circuit courts have split over this issue. Compare Gendron v. United States, 154 F.3d 672 (7th Cir.1998) (<HOLDING>) with Kapral v. United States, 166 F.3d 565 (3d Holdings: 0: holding that the oneyear period begins to run after the time for filing a petition for a writ of certiorari has expired 1: holding that the oneyear period begins to run when the mandate of the court of appeals issues 2: 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 3: holding that the twoyear period for filing a motion for postconviction relief begins to run upon issuance of the directappeal mandate 4: holding that limitation period begins to run at the time of the breach
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That legislative inaction, in and of itself, is entitled to little weight is evident from a review of several decisions of this court in which we have overruled our own earlier statutory interpretations despite legislative inaction. See, e.g., Magoon, 75 Haw. at 185-86, 858 P.2d at 722-23 (explicitly overruling In re Application of Kaimuki Land Co., 35 Haw. 254 (1939), because it failed to correctly review and analyze the statutory estoppel language of Revised Laws of Hawai'i (RLH) 1935 § 5032); State v. Dow, 72 Haw. 56, 59-61, 806 P.2d 402, 404-05 (1991) (overruling in part State v. Wacker, 70 Haw. 332, 770 P.2d 420 (1989), because “the statutory analysis employed in Wacker [was] no longer applicable”); State v. Batangan, 71 Haw. 552, 559-63, 799 P.2d 48, 52-54 (1990) (<HOLDING>); Association of Owners of Kukui Plaza v. Holdings: 0: recognizing that the federal rules of evidence do not apply to sentencing hearings 1: holding that the burden is upon the state under the applicable federal rules of evidence 2: holding that rules 702 and 704 of the hawaii rules of evidence do not allow expert witnesses to opine as to the credibility of alleged child sex abuse victims and overruling state v kim 64 haw 598 645 p2d 1330 1982 to the extent that it held otherwise 3: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery 4: holding that rules of evidence do not permit an expert to give opinion or state legal conclusions regarding a question of law
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insurance contract [does] not impose a duty on the insurer to pay attorney’s fees in connection with the insured’s pursuit of the coverage issues.Generally, if the insured hires an attorney to represent him in coverage disputes, he will have to bear those costs himself.” Steptore v. Masco Constr. Co., 643 So.2d 1213, 1218 (La.1994); see Dowden v. Leebo’s Stores, Inc., 877 So.2d 353, 356 (La.Ct.App.2004) (“Generally, an insured can recover attorney fees associated with its defense of the underlying action, but not with its litigation of the coverage issue.”). Some Louisiana courts have, however, allowed for the imposition of attorney’s fees and penalties pursuant to Louisiana Revised Statute §§ 22:658 and 22:1220. See, e.g., Credeur v. McCullough, 702 So.2d 985, 987 (La.Ct.App.1997) (<HOLDING>). But see, e.g., Howell v. Am. Cas. Co. of Holdings: 0: holding that attorneys fees can be awarded only from time duty to defend arose 1: holding insurers duty to defend is determined by allegations in the petition 2: holding that awarded fees were reasonable and that proof that attorneys fees are necessary apart from testimony as to the reasonableness of the fee is not required 3: holding trial court did not abuse its discretion when it awarded attorneys fees because the declaratory relief action addressed validity of note and was not used as a mere ploy to recover attorneys fees 4: holding that a thirdparty claimant could be awarded attorneys fees and penalties pursuant to 221220 because the insurers failure to defend was arbitrary and capricious
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Truck Lines, Inc., 314 S.C. 303, 304, 443 S.E.2d 906, 907 (1994). When the language of a court rule is clear and unambiguous, the court is obligated to follow its plain and ordinary meaning. Unless an extension is granted, a defendant must serve his answer within thirty days “after the service of the complaint upon him.” Rule 12(a), SCRCP. If a party has failed to “plead or otherwise defend as provided by [the South Carolina Rules of Civil Procedure] and that fact is made to appear by affidavit or otherwise,” the clerk of court will enter default. Rule 55(a), SCRCP. Entry of default is a ministerial act which a clerk is required to perform once default is made to appear by the affidavit of the moving party. See Thynes v. Lloyd, 294 S.C. 152, 153-54, 363 S.E.2d 122, 123 (Ct.App.1987) (<HOLDING>). Appellants initially argue the circuit court Holdings: 0: holding that in considering the appellants opposition to the motion for a default judgment it is proper to apply the rule 55c standard for setting aside the entry of a default 1: holding that whether default was actually entered is of no consequence since the entry of default is a purely ministerial act which the clerk was required to perform once the default was made to appear by the affidavit of the moving party 2: holding that trial court must make entry of default prior to entry of default judgment and court may not make entry of default when there is no default in law or in fact 3: holding that despite failure to appear for trial default could not be entered without notice to defendant 4: holding that the trial court was without authority to set aside entry of default on motion to set aside default judgment
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lacks the integrity and judgment to resist getting revenge in an immature and vicious manner. All of these implications go to Cody’s personal, rather than professional, traits. The alleged misconduct did not even occur while Cody was on the job, as it did in Sangston; Harris accused Cody of retaliating against the station not while he was an employee, but after (and apparently because of) his termination. This situation is not like the Illinois cases that have found defamation per se when a plaintiffs work or conduct while carrying out his employment-duties has been impugned. In some cases, personal integrity is so intertwined with job skills, that an attack upon it could constitute defamation per se. Kumaran v. Brotman, 247 Ill.App.3d 216, 186 Ill.Dec. 952, 617 N.E.2d 191, 199 (1993) (<HOLDING>). We do not believe, nor does Cody argue, that Holdings: 0: holding that school officials may not limit the first amendment rights of students and teachers to freedom of speech and expression 1: holding that a newspaper article accusing a schoolteacher of filing scam lawsuits was defamatory per se because part of a teachers job is to set a good example and serve as a role model for students 2: recognizing him from the newspaper picture and article of the night before 3: holding that the board of education violated a school teachers first amendment rights by dismissing him because he had criticized the board in a letter to the local newspaper 4: holding that a students right to bodily integrity under the fourteenth amendment encompasses a students right to be free from sexual assaults by his or her teachers
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judicata because a court of competent jurisdiction previously signed an order denying expunction. The Department has assigned error only in these two respects. Notably, on appeal, the Department has not challenged any of the following: (1) the sufficiency of the notice the Department received of the hearing on Pinnock’s expunction petition, (2) the trial court’s action in granting the expunction petition without receiving any evidence at the expunction hearing, (3) any alleged failure by Pinnock to prove his entitlement to the expunction relief the trial court granted, or (4) the trial court’s signing of an “Agreed Order of Expunction,” despite the lack of any apparent indication that the Department had agreed to the order. See Texas Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.1986) (<HOLDING>); Wilson v. Patterson, No. 14-10-00943-CV, 2011 Holdings: 0: holding that a ruling of the trial court to which no error has been assigned becomes the law of the case and is not subject to review by the court of appeals 1: holding that it is error for court of appeals to reverse trial courts ruling that had not been objected to at the trial court level 2: holding an appellate court cannot reverse a trial courts judgment absent properly assigned error 3: holding that the court of appeals may not reverse a trial courts judgment in the absence of properly assigned error 4: holding it is axiomatic that an appellate court cannot reverse a trial courts judgment absent properly assigned error
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cited by defendants, but we highlight it more for its insightful language than its precedential value. The district court in Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440 (S.D.Ga.1976), observed that “[d]efining public figures is much like trying to nail a jellyfish to the wall.” When the case went up on appeal, the circuit court looked to the words of Justice Potter Stewart in remarking that “[although the public figure concept has eluded a truly working definition (footnote omitted), it falls within that class of legal abstractions where ‘I know it when I see it.’ ” Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 861 (5th Cir.1978) (quoting Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurr n. 3 (10th Cir.1983) (<HOLDING>). Of course it is absurd for Stephan to allege Holdings: 0: recognizing that restatement second of torts 323 and 324a correctly state pennsylvania law 1: recognizing restatement second of torts 428 but also discussing the inherently dangerous activities standard 2: recognizing kansas courts adoption of restatement second of torts 909 1977 3: recognizing that kansas supreme court would accept the final draft of the restatement second of torts 652e adopted in 1977 4: recognizing tentative draft of restatement second of torts 652e
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Hum. Res.Code Ann. § 36.113(b); Va.Code Ann. § 8.01-216.8. 121 . Fed.R.Civ.P. 9(b). 122 . United States ex rel. Franklin v. Parke-Davis, 147 F.Supp.2d 39, 46 (D.Mass.2001) (quoting United States ex rel. Walsh v. Eas e of an actual false claim is 'the sin qua non of a False Claims Act violation.’ " (quoting Clausen, 290 F.3d at 1311)). 129 . Id. at 232. 130 . See id. 131 . Id.; see also Walsh, 98 F.Supp.2d at 147 ("Relator’s First Amended Complaint, in essence, sets out a methodology by which the vendors might have produced false invoices, which in turn could have led to false claims. Without citing a single false claim arising from an allegedly false invoice, Relator has not met even a bare-bones Rule 9(b) test.”). 132 . Karvelas, 360 d. 148 . See id. at 235; Walsh, 98 F.Supp.2d at 147 (<HOLDING>). 149 . See Karvelas, 360 F.3d at 235 Holdings: 0: holding that false arrest and false imprisonment claim were not duplicative 1: holding that the plaintiff failed to satisfy rule 9b when his complaint did not cite one single false claim arising out of the defendants alleged methodology that may have produced false claim invoices 2: holding a complaint failed to satisfy rule 9b where the allegations were lacking in detail 3: holding that the chief financial officer of a hospital had sufficient access to the allegedly false cost reports resulting from the false invoices to require him to plead at least one example of a false claim with particularity 4: holding that false arrest is one means of committing false imprisonment
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404 U.S. at 323, 92 S.Ct. 455). Referencing its preference for resolving issues of delay by relying upon statutes of limitations the United States Supreme Court stated: “ ‘The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge.’ ” Jones, 94 F.3d at 906 (quoting Marion, 404 U.S. at 322, 92 S.Ct. 455) (emphasis in original). Critically, as the Fourth Circuit recounted, “the courts of appeals have uniformly held that to obtain a dismissal under the Due Process Clause a defendant must establish that a pre-indictment delay actually prejudiced his defense .... ” Jones, 94 F.3d at 907 (emphasis in original); accord Wilson v. McCaughtry, 994 F.2d 1228, 1234 (7th Cir.1993) (<HOLDING>). After reviewing the rulings of the various Holdings: 0: holding that despite sixteenyear delay between crime and indictment defendant must demonstrate that he suffered actual and substantial prejudice 1: holding that inmates must demonstrate an actual injury 2: holding petitioner must demonstrate error and substantial prejudice to prevail on a due process claim 3: holding that a defendant must not only show actual prejudice as opposed to mere speculative prejudice but also any actual prejudice was substantial that he was meaningfully impaired in his ability to defend against the states charges to such an extent that the disposition of the criminal proceeding was likely affected 4: holding that victims must have suffered an actual pecuniary loss
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Having determined that the district court’s sentencing calculations were based oh a proper interpretation of § 2F1.1(b)(1), we turn to the district court’s assessment of the amount of the intended loss. We find that the district court’s determination that Kipta intended to defraud First Chicago out of the entire $171,355.46 was not clearly erroneous. The fraudulent letter that Kipta used to back her deposits stated that she had -reserves of $800,000.00, an amount more than sufficient to cover the deposits into the First Chicago account. There was nothing to limit the amount of funds available for withdrawal, and the corresponding potential for loss by First Chicago, to less than the total amount deposited into the account. See United States v. Yusufu, 63 F.3d 505, 513 (7th Cir.1995) (<HOLDING>); see also United States v. Bonanno, 146 F.3d Holdings: 0: holding that a calculation of the amount of loss is a factual finding 1: holding that the record must support by a preponderance of the evidence the conclusion that mr smith realistically intended a 440896 loss or that a loss in that amount was probable 2: holding that a court should consider pledged collateral when determining the amount of the intended loss 3: holding that the amount that a defendant made available to himself by way of fraudulent deposits demonstrated the amount of loss intended 4: holding that the district court determines the amount of loss under the preponderance of the evidence standard
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contract). Jolicoeur contemplates that an insurance administrator could, under appropriate circumstances, illicitly interfere with the contract of its principal. Like any other agent, an administrator could accomplish this feat by acting beyond the scope of its authority. See Kennett v. Marquis, 798 A.2d 416, 419 (R.I.2002) (per curiam) (“An agent, however, may be personally liable for unauthorized acts outside the scope of the agency[.]”); Brown v. State Farm Fire & Cas. Co., 58 P.3d 217, 223 (Okla.Civ.App.2002) (remarking that an independent insurance adjuster could be liable for tortiously interfering with an insurance contract by acting beyond the scope of its authority from the insurer); see also Michelson v. Exxon Research & Eng’g Co., 808 F.2d 1005,1007-08 (3d Cir.1987) (<HOLDING>); Rao v. Rao, 718 F.2d 219, 225 (7th Cir.1983) Holdings: 0: holding that insurer could not tortiously interfere with its own insurance plan 1: holding that a corporate officer signing a contract in his corporate capacity is generally not liable for damages under the contract 2: holding that the acts of a corporate officer done in his or her official capacity are acts of the corporation 3: recognizing distinction between corporate officer acting on behalf of himself and corporate officer acting on behalf of his corporation 4: holding that a corporate officer acting in his or her official capacity could not tortiously interfere with a corporate contract because corporations act only through their officers and agents
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Engstrom pushed Hoffman away from the toilet. He reached into the toilet and retrieved a baggie. It was later determined the baggie contained crack cocaine. Corporal Engstrom testified he had participated in the execution of numerous search warrants where drugs were retrieved from toilets. He further testified that after seeing Hoffman standing over the toilet and flushing it, he entered the room because he feared she was destroying evidence. Investigator Geske also testified he thought Hoffman was destroying evidence and stated it was uncommon for a person to see him with a motel manager and then “immediately run into the room and flush the toilet.” The trial court ultimat L.Ed.2d 573 (1988); see also Illinois v. Wardlow, 528 U.S. 119, 122, 124-5, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (<HOLDING>). The circumstances may also include attempts Holdings: 0: holding that a defendants unprovoked flight upon noticing the police in a highcrime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention 1: holding that unprovoked flight is not necessarily indicative of wrongdoing but it is certainly suggestive of such 2: holding that there was reasonable suspicion to stop the defendant based on his presence in an area known for heavy narcotics trafficking and his flight upon seeing police officers 3: holding defendants unprovoked flight from area of heavy narcotic trafficking after noticing uniformed officers provided reasonable suspicion to detain and stating headlong flight wherever it occurs is the consummate act of evasion it is not necessarily indicative of wrongdoing but it is certainly suggestive of such 4: holding that in a high crime area unprovoked headlong flight from police can form the basis for reasonable suspicion under terry
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sources on safety regarding the ventilation of an HC binder; review of Fuller’s MSDS; interviews with McCullock concerning her work area and the glue pot; background industrial experience with ventilation; and practical experience with fumes. Thus, his analysis went far beyond that of a layman. Woolley had both the practical experience and necessary academic training to testify whether McCullock was in the breathing zone of the glue fumes. The district court therefore did not err, let alone manifestly err, by admitting Woolley’s expert testimony. B. Dr. Fagelson As to Dr. Fagelson, Fuller cites Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1113 (5th Cir.1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992), for the proposition that hol 5 (9th Cir.1994) (<HOLDING>), cert. denied, — U.S. -, 115 S.Ct. 734, 130 Holdings: 0: holding that in reviewing the district courts decision concerning expert testimony we must first determine whether the district court properly followed the framework set forth in daubert 1: holding that a doctor was qualified under daubert to give an expert opinion on standard of medical care based on thirty years of experience as a practicing boardcertified cardiologist and his review of the medical records 2: holding that the district court properly admitted expert testimony under daubert that was based on inter alia the doctors clinical experience and review of the medical records 3: holding the district court properly admitted expert testimony on defendants active gang membership 4: holding that a request for funds for expert testimony must show inter alia that the testimony is crucial and is subject to varying expert opinions
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1993-NMSC-033, ¶ 4, 115 N.M. 573, 855 P.2d 562. We also look to the common law and to equity in determining public policy. {39} Other relevant statutes include the Small Loan Act, Sections 58-15-31 to -39, which regulates the small loan industry; the unconscionability clause of the Uniform Commercial Code (UCC), Section 55-2-302; and the Money, Interest and Usury Act (Money Act), NMSA 1978, Sections 56-8-1 to -21 (1851, as amended through 2004), which sets a default interest rate of 15 percent for contracts where no interest rate is stated. Section 56-8-3. Because these statutes were enacted prior to the UPA, we can infer that the Legislature enacted the UPA with full knowledge of and in harmony with the public policy expressed by those statutes. See Schnedar, 1993-NMSC-033, ¶ 4 (<HOLDING>). {40} The Legislature enacted the Small Loan Holdings: 0: holding that statutes are to be interpreted in accordance with the legislative intent and in a manner that will not render the statutes application absurd unreasonable or unjust internal quotation marks and citation omitted 1: holding that the statutes could be harmonized 2: holding that similar statutes should be harmonized and construed together when possible in a way that facilitates their operation and the achievement of their goals internal citation omitted 3: holding that penal statutes are to be strictly construed in favor of the persons sought to be subjected to their operation 4: holding that criminal statutes of limitation should be construed in favor of the accused
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ROBERT M. DOW, JR., District Judge. I. Background In May 2011, KZF Development (KZF) and/or Dundee Partners (Dundee) removed approximately 180 trees from a 6.8 acre residential parcel in Northbrook, Illinois (the Site). Plaintiffs Robert and Sheryl Long allege that the tree removal c ycling Corp., 629 F.3d 387, 399-400 (4th Cir.2011) (<HOLDING>). Moreover, Plaintiff may only allege ongoing Holdings: 0: holding that an identical notice requirement in resource conservation and recovery act was a mandatory precondition to suit 1: holding that clean water acts notice provision is a condition precedent to all claims 2: holding that the limitation act does not apply to claims brought under the clean water act 3: holding that adequate notice is a mandatory precondition of a clean water act citizen suit 4: holding that denial of permit under section 404 of the clean water act was a taking
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first part of claim two, Mr. Goodwin alleged that his trial counsel rendered ineffective assistance at a hearing on a motion to suppress a pretrial confession and at the trial on the charges. In the portion of claim two addressing the motion to suppress, Mr. Goodwin alleged that his trial counsel was ineffective for failing to research the effects of heroin withdrawal on an addict. This allegation is concluso-ry, and we need not address it further. As part of this portion of his second claim, Mr. Goodwin also asserted that his trial counsel failed to present the testimony of medical experts who had been subpoenaed and were waiting to testify. The postconviction court denied this part of claim two as facially insufficient, citing Leftwich v. State, 954 So.2d 714, 714 (Fla. 1st DCA 2007) (<HOLDING>). Mr. Goodwin alleged that the potential Holdings: 0: holding that death of potential alibi witness did not cause actual prejudice because defendant failed to relate the substance of the testimony of the missing witness in sufficient detail and to show witness testimony not available from other sources 1: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 2: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 3: holding that a 3851 claim of ineffective assistance was legally insufficient where the motion did not allege the specific facts to which the witness would testify and how the lack of testimony prejudiced the case 4: holding that the state courts determination that the petitioner could not show prejudice because he did not allege that the witness was available to testify was a reasonable application of federal law to the facts of the case
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to the juvenile court. Although we find instructive the Supreme Court’s holding in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), cited by appellant, we conclude that holding does not require a different result. In Gallegos, the Court said that a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. [Such a person] is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and ... is unable to know how to protect his own interests or how to get the benefit of his constitutional rights. 370 U.S. at 54, 82 S.Ct. at 1212; see also Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948) (<HOLDING>). Gallegos is distinguishable from appellant’s Holdings: 0: holding interrogation of fifteen year old without parent or attorney violated due process 1: holding that due process rights were not violated when alien claimed a lack of actual notice but his attorney received notice 2: holding that a termination of a government contract does not constitute a taking of the plaintiffs property without just compensation or without due process of law 3: holding that detention of approximately eight months violated due process 4: holding due process was violated by the automatic rejection of an unwed fathers custodial relationship without granting the father opportunity to present evidence regarding his fitness as a parent
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forward an alternative theory that the rules stem from unlawful "hub-and-spoke” conspiracies. See Stoumbos Prop. Compl. ¶ 53. Because we conclude that the proposed amended complaints allege a horizontal conspiracy, we do not reach the question of whether Plaintiffs’ alternative theories are tenable. 4 . As futility was the sole ground articulated by the District Court for denying the Plaintiffs’ motions to amend the judgment and to file amended complaints, we see no reason that the motions should not be granted on remand. See Foman, 371 U.S. at 181-82, 83 S.Ct. 227 (explaining that if "the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits”); Ciralsky, 355 F.3d at 672-73 (<HOLDING>). But we leave this discretionary decision to Holdings: 0: recognizing that it may be appropriate to convert a judgment that dismisses a case into an order dismissing a complaint for statute of limitations purpose 1: holding that an order dismissing a claim without prejudice is a final appealable order if the statute of limitations for that claim has expired 2: holding that an order dismissing a complaint without prejudice is a final appealable order only if no amendment to the complaint could cure the defects in the case internal quotation marks omitted 3: recognizing that statute of limitations questions may be resolved on a motion to dismiss 4: holding that when the trial court signed an order dismissing the plaintiffs complaint but refused to enter a final judgment on that order the order refusing to enter judgment was appealable under former ors 190102a
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harm is unavailing—because the harm respondents seek to avoid is not certainly impending” and holding that “respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”); see also Reilly v. Ceridian Corp., 664 F.3d 38, 46 (3d Cir.2011) (“[The plaintiffs’] alleged time and money expenditures to monitor their financial information do not establish standing, because costs incurred to watch for a speculative chain of future events based on hypothetical future criminal acts are no more ‘actual’ injuries than the alleged ‘increased risk of injury* which forms the basis for [the plaintiffs’] claims.”); Crisafulli v. Amertias Life Ins. Co., No. 13-CV-5937, 2015 WL 1969176 (D.N.J. Apr. 29, 2015) (<HOLDING>); In re Horizon Healthcare Servs. Data Breach Holdings: 0: holding that because the court could not consider police reports it could not rely on an attorneys argument based on the police report as the basis for determining the statutory basis for a conviction 1: holding that the plaintiff may not rely on expenses for identity theft protection as a basis for standing 2: holding attorney fees may be allowed for expenses incurred for default 3: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 4: holding that a plaintiff may rely on the same evidence to prove both pretext and discrimination
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Court’s use of the disjunctive in defining the relationship requirement in H.J. Inc. “suggests that the Court meant to craft a broad test of relatedness”). Applying the test set forth in H.J. Inc., the court concludes that the first indictment clearly contains sufficient facts to satisfy the relationship requirement. The indictment alleges that the defendant committed all of the predicate acts of criminal activity charged in the indictment, and that he misused his position as Sheriff to engage in each of the predicate acts. Thus, the predicate acts shared a common “participant” (the defendant) and a common “method[] of commission” (abuse of the defendant’s power as Sheriff). H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893; see also United States v. Hively, 437 F.3d 752, 762 (8th Cir.2006) (<HOLDING>); United States v. Lovin, 2007 WL 167454, at Holdings: 0: holding inter alia that common law claims were preempted 1: holding that evidence was sufficient where inter alia the victim woke up to find the defendant on top of her and engaged in sex 2: holding that the evidence was sufficient to establish a pattern of racketeering where inter alia the predicate acts of mail fraud shared a common participant the defendant an elected state prosecutor and a common method of commission abuse of the defendants power as prosecuting attorney 3: recognizing that commission is not bound by statutory or common law rules of evidence 4: recognizing that even evidence of a defendants and a witnesss prior bad acts was admissible to show inter alia the defendants familiarity with the witness
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[
"2"
] |
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