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There was nothing particularly horrific about the admitted evidence to indicate that the jury would have based its verdict on such emotional considerations. See Maurer, 770 P.2d at 984. Moreover, any prejudicial effect the evidence may have had was outweighed by its highly probative value concerning the very elements of the crime charged which Downs disputed-knowledge and intent. See State v. Kell, 2002 UT 106, ¶ 35, 61 P.3d 1019. The fact that she was living in a house where police had observed activity consistent with drug trafficking and executed a search warrant that yielded controlled substances and drug paraphernalia provided context and made her claim of ignorance about the pink baggie in her pocket considerably less believable. See State v. Boyd, 2001 UT 30, ¶ 24, 25 P.3d 985 (<HOLDING>); cf. Johnson, 784 P.2d at 1141 ("The Holdings: 0: holding that the trial court did not exceed its judicial discretion in finding that the damages ordered by the jury were excessive and ordering remittitur in a wrongful death action 1: holding that the military judge has considerable discretion to exclude relevant evidence under military rule of evidence 403 2: holding that trial court did not abuse its discretion by allowing the intervention of biological grandparent under section 102004b 3: holding that trial court did not abuse its discretion by allowing the state to introduce direct evidence of the controlling nature of defendants relationship with the victim 4: holding that the trial court did not exceed its discretion under rule 403 by allowing evidence that provided background for the crime charged
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hindered, delayed, or defrauded) to be clearly and utterly void, frustrate and of no effect, any pretense, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding. S.C.Code Ann. § 27-23-10(A). 1. Cash Transfers May Be Voided under The Statute of Elizabeth Ross contends that cash transfers are not covered by the Statute of Elizabeth and, therefore, that the transfers to the Ross Shareholders and Directors are not voidable. Conveyances of cash are, admittedly, not expressly referenced in the Statute of Elizabeth. S.C.Code Ann. § 27-23-10(A). However, the South Carolina Supreme Court does not view the listing of various specific types of property in the statute as prohibitive. See Avery v. Wilson, 47 S.C. 78, 25 S.E. 286, 294 (1896) (<HOLDING>). In Fabrica la Estrella S.A. de C.V. v. Banda, Holdings: 0: holding that the omission from the statute of elizabeth as then written of the words goods and chattels did not enable debtors to practice frauds as to goods and chattels any more than they could as to any other property 1: holding that a statement of conditional sale of goods can be filed with the state auditor before the delivery of goods where statute says the statement must be filed within ten days of delivery of goods 2: holding that a creditors pmsi in goods sold to debtors did not survive consolidation of the original installment contract with a later contract for the purchase of additional goods 3: holding single coexecutors release of mortgage debt paid to estate was valid and binding on estate because acts of any coexecutor in respect to the administration of the effects of the estate are deemed to be the acts of all as where one releases a debt or settles an account of a person with the deceased or surrenders a term or sells the goods and chattels of the estate his act binds the others characterizing conversion of decedents personal property into cash as act in due course of administration of estate 4: holding that a buyer who purchases goods subject to an express warranty that the goods are free from all liens takes free of any unperfected security interest
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omitted). However, there must be “some but not precise factual correspondence” between the relevant precedents and the conduct at issue. Id. (citations omitted). Officials are expected to “apply general, well-developed legal principles.” Id. (citation omitted). The acts complained of in this case which relate to the diet issue occurred between July 18, 1992 and February 24, 1994. Case law prior to July 18, 1992 reveals that courts had found that inmates have a right, in general, to sufficient food to sustain them in satisfactory health consistent with their religious beliefs. See, e.g., Hunafa v. Murphy, 907 F.2d 46 (7th Cir.1990) (reversing summary judgment for defendants where Muslim in disciplinary segregation denied non-pork diet); Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975) (<HOLDING>). Prior to July 1992, however, courts had also Holdings: 0: holding orthodox jewish inmates are entitled to a kosher diet 1: holding orthodox jewish inmate was entitled to kosher meals 2: holding that prison official could not deny inmate kosher meals based on rabbis determination that inmate was not jewish under judaic law 3: holding that juveniles are not entitled to jury trials 4: holding that defendants are not entitled to qualified immunity
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to be a conviction or impose any civil disabilities ordinarily resulting from a conviction for a crime.” (Emphasis added.) Additionally, recognizing that juvenile adjudications are “quasi-criminal in nature” necessarily demonstrates that juvenile adjudications are, in fact, not criminal. Indeed, Black’s Law Dictionary defines the term “quasi” as: “Seemingly but not actually; in some sense or degree; resembling; nearly.” Black’s Law Dictionary 1363 (9th ed.2Q09) (emphasis added). Thus, although it. is correct to characterize juvenile-delinquency proceedings as “quasi-criminal in nature,”- such a characterization does not mandate a finding that a juvenile adjudication is the functional equivalent of a criminal conviction. See also Jennings v. State, 384 So.2d 104, 105 (Ala.1980) (<HOLDING>). Additionally, under Rule 32.1, I cannot Holdings: 0: holding when observable defects in a highway have existed for a time so long that they ought to have been observed notice of them is implied and is imputed to those whose duty it is to repair them 1: holding that it is the conduct required to obtain a conviction rather than the consequences resulting from the crime that is relevant 2: recognizing that our juvenile statute removes juveniles who have committed a crime from the jurisdiction of the criminaljustice system and establishes an entirely separate system to minister to them a system whose aim is rehabilitative rather than retributive 3: holding that whether the defendant is a member of a group specifically authorized to possess firearms is an affirmative defense rather than an element of the crime 4: recognizing that the statute of limitations provision of the aedpa is an affirmative defenses rather than jurisdictional
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In the absence of such relationships or when the circumstances of a particular case do not suggest a duty of protection or a duty to control, then “the evidentiary hurdle is higher” and the risk of the criminal act must be precisely shown. Workman, 320 F.3d at 264. The rationale for lessening the requirement of heightened foreseeability in cases involving a special relationship between the parties is that “the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other,” and, therefore, “a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other one from assaults by third parties which, at least l conduct of servant); id. § 318 (<HOLDING>); id. § 319 (recognizing duty of those in Holdings: 0: holding that as one who does an act or carries on an activity upon land on behalf of the possessor refrigeration supply company could be liable for physical injury caused to others on premises as though it were a possessor of land when its employees allegedly removed plywood covering trench inside market and plaintiff tripped over exposed cables 1: recognizing duty of parent to control conduct of child 2: recognizing duty of possessor of land or chattels to control conduct of licensee 3: holding that land sales contracts were not securities because they involved no investment in an enterprise even if land was bought on expectation that development of the area would increase the value of the land 4: holding authority to control limits duty to control
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the purposes of section 607A.6 were accomplished despite the fact the judge delegated to the court attendant the judge’s statutory responsibility to excuse potential jurors. See Coble, 301 N.W.2d at 237 (concluding that procedure allowing jury commissioners to excuse potential jurors, rather than judge as required by statute, did not frustrate legislative goals). -For this reason, Chidester is unable to shoyv that he has been prejudiced and therefore, the State’s violation of section 607A.6 was . not material as required by rule 17(3). See State v. Clift, 202 Kan. 512, 449 P.2d 1006, 1008 (1969) (refusing to reverse defendant’s conviction where he showed no prejudice from fact that bailiff excused potential jurors rather than the judge, as required by statute); Martel, 689 A.2d at 1330 (<HOLDING>). The trial court did not err in denying Holdings: 0: holding statutory challenge to juryselection procedure failed in absence of showing of prejudice 1: holding that we will not reverse in the absence of prejudice 2: recognizing that the burden of persuasion for a showing of prejudice was on the defendant 3: holding that in the absence of demonstrated prejudice remand is unnecessary 4: holding that an assertion of prejudice is not a showing of prejudice
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sovereign immunity. C. The Public Vessels Act, Suits in Admiralty Act, and Federal Tort Claims Act Each of these three Acts provides an explicit waiver of sovereign immunity. The PVA waives sovereign immunity for suits for “damages caused by a public vessel of the United States.” 46 U.S.C. § 31102(a)(1). But the PVA contains a reciprocity requirement: A national of a foreign country may sue under the PVA only if the government of that foreign country would permit a United States national to bring the same suit in its courts. Id. § 31111. The SAA waives sovereign immunity, subject to some exceptions, in admiralty cases when a civil action could otherwise be brought if the United States were not a party. Id. § 30903(a); see Earles v. United States, 935 F.2d 1028, 1032 (9th Cir.1991) (<HOLDING>). Finally, the FTCA waives sovereign immunity Holdings: 0: holding that an agent acting outside his delegated authority is not protected by the discretionary function exception 1: recognizing a discretionary function exception to that waiver 2: holding that the discretionary function exception may apply in the absence of a conscious decision 3: holding federal tort claims act discretionary function exception does not apply if prison personnel violate a mandatory regulation 4: recognizing exception
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and misconduct on the part of the DEA, which falls under Rule 60(b)(3). Reed did not file his motion within one year after the 1992 order was entered, and accordingly, the motion was untimely. Moreover, Reed presented no new facts, arguments, or evidence to explain why he was unable to directly appeal the 1992 order or to justify the 13-year delay between the 1992 order and the 2005 Rule 60(b) motion. On this record, the district court did not abuse its discretion by denying the motion. AFFIRMED. 1 . Given our resolution of the Rule 60(b) issue, we discern no abuse of the district court’s discretion in its denial of Reed's Fed.R.Civ.P. 59(e) motion to alter or amend the order denying his Rule 60(b) motion. Cf. Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (<HOLDING>). 2 . In construing Reed's arguments, we have Holdings: 0: holding that denial of untimely request was not abuse of discretion 1: holding that we will not overturn a denial of a rule 59 motion absent an abuse of discretion 2: holding that denial of joinder motion is reviewed for abuse of discretion 3: holding denial of continuance to be an abuse of discretion 4: holding that when plaintiffs argue an inconsistent jury verdict this court will not disturb the trial courts denial of a motion for a new trial absent a showing of abuse of discretion
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Terry’s and Silverman’s hostile environment harassment of Faragher. IV.Standards of Review We review the district court’s finding of fact under the clearly erroneous standard of review. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). We review the district court’s conclusions of law and its application of law to facts de novo. Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994). V.Contentions of the Parties Faragher contends that Terry’s and Silver-man’s positions as top lifeguard commanders make them prototypical agents of the City. Faragher argues that this status, combined with Terry’s and Silverman’s conduct, makes the -16 (9th Cir.1989)(<HOLDING>). This Circuit has concluded that in a pure Holdings: 0: holding that the timeliness of the employees suit is measured from the later of the date the employee knew or should have known of the employers final action or the date the union appeals procedure is exhausted or otherwise broken down to the employees disadvantage 1: holding that a viable hostile work environment claim requires an environment that a reasonable person would find hostile or abusive 2: holding that a single offensive racist comment was not sufficient to establish a hostile work environment 3: holding that employers are liable for failing to remedy or prevent a hostile or offensive work environment of which managementlevel employees knew or in the exercise of reasonable care should have known 4: recognizing a hostile work environment claim under section 1983
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law. Central Wharf, 57 S.W. at 983. We believe this principle applies equally to Article 3, sec. 56. See JC-0101. Our conclusion that this constitutional provision does not limit the legislature’s inherent power to repeal laws is further supported by decisions from other states construing similar constitutional provisions. See People ex rel. Williamson v. Rinner, 52 Cal.App. 747, 199 P. 1066 (3 Dist.1921)(citing Central Wharf and numerous other cases with approval, Court held act which repealed special act creating school district did not violate constitutional provision against creation of local or special laws because the legislature’s inherent power to repeal is not expressly limited by the state constitution); People ex rel. Rogerson v. Crawley, 274 Ill. 139, 113 N.E. 119 (1916)(<HOLDING>); State v. Prather, 84 Kan. 169, 112 P. 829 Holdings: 0: holding a city liable for personal injuries caused by a driver colliding with a girder in the center of a city street where the city did not give a warning 1: holding that a city charter is a law under the whistleblower act 2: holding that constitutional provision which prohibited local and special laws did not limit legislatures inherent power to repeal the corporate privileges of a particular community and therefore act which repealed the charter of the city of memphis was not unconstitutional 3: holding that legislation which repealed the charter of the city of jacksonville did not violate constitutional provision prohibiting local or special laws which change the charter of a city 4: holding that city attorneys promise in an oral settlement agreement for city to annex and rezone land was within the legal authority of the city of joliet to accomplish and were not absolutely void acts per se therefore city could be estopped from avoiding enforcement of contract
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Nos. A97 484 984, A97 484 985, A97 849 320 (Immig. Ct. N.Y. City June 14, 2002). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Even assuming that the IJ’s adverse credibility finding, to the extent that it was affirmed by the BIA, was marred by serious error and that the IJ abused her discretion by denying Huang a continuance, remand would be futile because Huang has not submitted any evidence from which a reasonable fact finder could conclude that she suffered past persecution, had a well-founded fear of future persecution, or has demonstrated that it is more likely than not that her life or freedom would be threatened if she were returned to China. See Xiao Ji Chen v. United States Dep’t of Justice, 434 F.3d 144, 161-62 (2d Cir.2006) (<HOLDING>); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 Holdings: 0: holding that a remand is appealable only when the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation 1: holding that remand is unnecessary when it is clear that the same decision would have been reached in the absence of the errors 2: holding that a remand need not be ordered despite legal errors if remand would be futile 3: holding that a remand on a claim that could not be supported by the record would be a waste of judicial resources 4: holding that remand is appropriate when the erroneous aspects of the bias reasoning are not tangential to its findings and that the evidence supporting those findings is not so overwhelming as to make remand futile
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Rights Practices in Sri Lanka indicates that repercussions of the war continue to impact human rights in Sri Lanka, particularly for Tamils such as Sabaratnam. U.S. Dep’t of State, Sri Lanka, Country Reports on Human Rights Practices 2010 (2011), available at http://www. state.gov/g/dr]/rls/hrrpt/2010/sca/154486. htm; see also Hoxhallari v. Gonzales, 468 F.3d 179, 186 n. 5 (2d Cir.2006) (providing that the Court “may always exercise independent discretion to take judicial notice of any further changes in a country’s politics that occurred between the time of the BIA’s determination decision and [the Court’s] review”). Furthermore, on remand, the agency may decide that Sabaratnam is entitled to nunc pro tunc relief. See Xue Yong Zhang v. Holder, 617 F.3d 650, 665 & n. 13 (2d Cir.2010) (<HOLDING>) (internal quotation marks and citations Holdings: 0: holding that summary judgment may be reversed when it is based on an error of law 1: recognizing that an award of nunc pro tunc may in an appropriate circumstance be granted as a means of rectifying error in immigration proceedings and that when a matter is adjudicated nunc pro tunc it is as if it were done as of the time that it should have been done 2: holding that it may not 3: holding that it may be decided as a matter of law 4: holding that it is not
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"above and beyond what is required by Tennessee law.” Turner, 2009 WL 426260, at *8. This statement of the Court of Criminal Appeals is only accurate in the post-waiver context. 11 . The court went on to state that "[a]ssum-ing arguendo that [Tidwell]'s request in the case sub judice was equivocal, the interrogation following the equivocal request should have been strictly limited to a clarification of whether the defendant was in fact invoking his right to have counsel present during interrogation.” Id. at 387. This was the standard for all custodial interrogations in Tennessee prior to Davis and Saylor. It remains the standard for interactions between police and the accused prior to waiver of the Miranda rights. 12 . See, e.g., Lord v. Duckworth, 29 F.3d 1216, 1220-21 (7th Cir. 1994) (<HOLDING>); Braboy v. State, 130 Md.App. 220, 745 A.2d Holdings: 0: holding that appellants statement i think i need a lawyer is just as ambiguous as the statement made by the defendant in davis 1: 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 2: holding that defendants response i cant i cant afford it when informed that an attorney would be provided for him if he could not afford one did not without further explanation amount to a clear unambiguous or unequivocal invocation of the right to counsel 3: holding in light of davis that defendants statement i cant afford a lawyer but is there anyway i can get one lacked the clear implication of a present desire to consult with counsel and was ambiguous at best 4: holding that defendants response after being told that the state would provide him an attorney if he wanted one of yeah im im ah need that cause i cant afford none did not reflect a present desire for counsel at all much less an unequivocal one
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reduces the likelihood of confusion.” Sally Beauty Co., 304 F.3d at 975. Buyers typically exercise little care in selecting inexpensive items and making impulse purchases. Id. Conversely, expensive items are typically chosen more carefully. Id. “The relevant inquiry focuses on the consumer’s degree of care exercised at the time of purchase.” Id. The court envisions that a rational trier of fact might weigh this factor in favor of finding that consumers are likely to exercise a high degree of care under all of the circumstances here. See, e.g., Nike, Inc. v. Just Did It Enters., 6 F.3d 1225, 1230-31 (7th Cir.1993) (trademark infringement case involving apparel in which the court rejected the argument that the degree of care depends solely upon price); Jordache Enters., 828 F.2d at 1487 (<HOLDING>).' But, at this procedural juncture the court Holdings: 0: holding trial courts finding omission of information was not intentional or with reckless disregard for truth was not clearly erroneous 1: holding that the district courts finding of no discrimination under title vii was not clearly erroneous because the finding was supported by the record 2: holding the district courts finding following a bench trial that customers are likely to exercise a high degree of care in purchasing clothing that costs between fifteen and sixty dollars was not clearly erroneous 3: holding bankruptcy courts finding of proximate causation not to be clearly erroneous 4: holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record
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in a concrete factual circumstance. United States v. Argomaniz, 925 F.2d 1349, 1356 (11th Cir. 1991) (Fifth Amendment privilege against self incrimination); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984) and Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342 (D.C.Cir.1984) (assertion of privilege in general). 2 . Gillock advises that Florida law is relevant to the inquiry. But since the privilege asserted is a federal one which should be uniform in all of the states, Florida law cannot be dispositive of the issue. 3 . The circuit declined to extend the reasoning of this case, providing immunity to state legislators, to the legislative acts of a municipality. Berkley v. Common Council of City of Charleston, 63 F.3d 295 (4th Cir.1995) (<HOLDING>). 4 . The analogy to the law clerks in the Holdings: 0: holding that koon overruled prior circuit law to the contrary 1: holding that prior circuit caselaw requiring district courts to gauge the extent of a departure by drawing analogies to the guidelines was overruled by koon 2: holding that schlitz was overruled to that extent 3: holding that almendareztorres was not overruled by apprendi 4: holding that 3501 overruled mcnabbmallory
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recounting Mr. Ruiz’s evidence that police “might or might not” help a person, like Mr. Ruiz, who has gang-related tattoos and who has been removed from the United States. R. at 215. Thus, the agency did not utilize a flawed willful-blindness standard. Finally, we turn to this court’s jurisdiction over Mr. Ruiz’s second and third CAT arguments. We conclude that those arguments are not reviewable as they attempt to raise issues of fact. Specifically, to determine the likelihood of governmental acquiescence to torture (Mr. Ruiz’s second argument), and whether the evidence as a whole shows Mr. Ruiz’s eligibility for CAT relief (his third argument), we would have to weigh the evidence in this case. The criminal-alien bar prevents that. See Siwe v. Holder, 742 F.3d 603, 613 (5th Cir.2014) (<HOLDING>); Gallimore, 715 F.3d at 690 (observing that Holdings: 0: holding that petitioner must demonstrate it is more likely than not that he will be tortured upon his return 1: holding that cat applicant must establish that it is more likely than not that he would be tortured if removed to his native country 2: holding that the court lacked jurisdiction to review whether alien established that he will more likely than not be tortured if removed 3: holding that to qualify for protection under the convention against torture an alien must show that he will more likely than not be tortured in his home country if removed 4: holding that the court lacked jurisdiction to consider petitioners argument that the evidence in the record clearly establishes that he is more likely than not to face torture if removed citation quotation marks and brackets omitted
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did not waive personal jurisdiction because service had never been effectuated. Here, Myers was validly served, and to the extent valid service on Myers confers personal jurisdiction, Fisher is inapposite. More importantly, the issue of whether there is an invalid retroactive application of personal jurisdiction may involve other issues; for example, whether valid service by publication confers personal jurisdiction on the district court in the way that personal service might confer personal jurisdiction such that there is no retroactivity issue but instead, only a waiver issue. Myers did not cite Fisher or raise the issue of retroactive waiver of personal jurisdiction in either the district court or in its briefing, instead presenting the argument and authori 1138, 1140 (2002) (<HOLDING>). Because Myers’ general appearance did not Holdings: 0: holding that an attorneys filing a notice of appearance on behalf of his or her client constitute a waiver of service of process by the client 1: holding the notice of appearance was not a motion under rule 12b2 4 or 5 and therefore the filing of the notice constituted a voluntary appearance by the defendants in this action which was the equivalent of the service of the summons upon them 2: holding that a defendants actual knowledge that an action is pending or that service has been attempted is not the equivalent of service of summons and will not relieve the plaintiff of its burden or vest the court with jurisdiction 3: holding a general appearance constitutes voluntary submission to the personal jurisdiction of the court 4: holding that defendant did not waive his special appearance by filing a motion for new trial subject to the special appearance
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rendition of the services by the other party to the contract, constitutes a breach of contract, importing damages”) (citations omitted). Moreover, a determination as to whether activities were undertaken in good faith depends partly on an analysis of motive and should generally be made by a trier of fact. See, e.g., Carvel Corp. v. Diversified Mgmt. Group, Inc., 930 F.2d 228, 230 (2d Cir.1991) (party to contract claiming that other party to contract “unjustifiably frustrated” its efforts to perform under agreement in breach of implied duty of good faith “is entitled to have the jury instructed as to his claims and theories of law if supported by the evidence and brought to the attention of the court”); Schwartz v. Marien, 37 N.Y.2d 487, 493, 373 N.Y.S.2d 122, 128, 335 N.E.2d 334 (1975) (<HOLDING>). Here, defendants refused to certify a Holdings: 0: holding the bad faith rationale inapplicable given that the defendants acted in good faith in appealing the case and in raising defenses to the plaintiffs claims 1: holding that it is appropriate for determinations as to whether the activities of defendants were undertaken in good faith for a legitimate corporate purpose to go to the jury 2: holding that the defendant did not establish good faith as a matter of law 3: holding that while the creditor has the initial burden to produce some evidence of lack of good faith the ultimate burden is on the debtor to prove his good faith 4: holding that the district courts good faith finding is reviewed for clear error
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For each of those factors, plaintiffs rely on the survey evidence presented by their expert William Neal. For the reasons set forth above and below, the Court finds Mr. Neal’s testimony is not persuasive on this critical issue. 2. Plaintiffs’ Survey Evidence is Unpersuasive a. The Legal Standard Under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Court must ensure that expert testimony “is not only relevant, but reliable.” See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Daubert and Kumho are codified in Federal Rule of Evidence 702. The Daubert standard applies to survey evidence. See, e.g., The Sports Authority, Inc. v. Abercrombie & Fitch, Inc., 965 F.Supp. 925, 933 (E.D.Mich.1997) (<HOLDING>) (citation omitted). Defendant’s expert, Dr. Holdings: 0: holding that in condemnation proceedings the landowner has the burden of establishing the value of the property 1: holding that tjhe proponent of a consumer survey has the burden of establishing that it was conducted in accordance with accepted principles of survey research 2: holding that determination of whether someone is an employee under the adea must be made in accordance with common law agency principles 3: holding that the party asserting work product protection has the burden of establishing that the doctrine applies 4: holding that the plaintiff had the burden of establishing that he properly served an agent of the defendant
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have transpired differently had the proper defendants been named. In these circumstances, and particularly where the party seeking to avoid claim preclusion was the plaintiff in the prior action and the sole source of the error in naming the incorrect party, res judicata should bar the plaintiff from gaining a second opportunity to litigate the very same claims, even where complete identity between the parties is lacking. See Cahill, 659 F.Supp. at 1123. To find otherwise would be to elevate form over substance in a manner inconsistent with the underlying goals of res judicata. See Amalgamated Sugar Co., 825 F.2d at 640 (“The doctrine of privity [in the res judicata context] ... is to be applied with flexibility.”); Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.1977) (<HOLDING>). Although the Second Circuit has not, to the Holdings: 0: holding that identity of parties for res judicata purposes is a determination of substance not mere form 1: holding that a dismissal on statute of limitations grounds is an adjudication on the merits for purposes of res judicata 2: holding that an unappealed order is a final judgment on the merits for res judicata purposes 3: holding that a summary judgment is a determination on the merits for res judicata and collateral estoppel purposes 4: holding that a bankruptcy courts sale order is a final order for res judicata purposes
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91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Garces, of course, is not controlling precedent in this circuit. In any event, Garces itself recognizes no categorical prohibition on the consideration of a vacated Alford plea. See 611 F.3d at 1347 (observing that neither case law nor Fed. R.Evid. 410 “categorically bars the BIA from considering [defendant’s] withdrawn plea for any purpose”). Indeed, our court has summarily observed that § 1182(a)(2)(C) “places no qualification upon the basis of knowledge or belief that an alien has engaged in drug trafficking.” Neptune v. Holder, 346 Fed.Appx. 671, 673 (2d Cir.2009) (emphasis in original). The focus of concern in Garces was how much evidentiary weight the guilty plea could bear under the circumstances. See 611 F.3d at 1347; see also id. at 1347-49 (<HOLDING>). Although the BIA here noted the IJ’s Holdings: 0: holding that a defendants guilty plea was unconditional where the guilty plea was not in writing and the government did not consent to it being conditional 1: holding that the movant failed to establish that plea counsel coerced him to plead guilty to avoid taking the case to trial 2: holding failure to advise of right to compel witnesses and plead not guilty are not required by boykin and there is absolutely no requirement that defendant be advised of any other rights in order to be able to enter a valid guilty plea 3: holding that plea carried little or no probative weight where record lacked indication that defendant made any admissions and florida law permitted defen dants to plead guilty without swearing to underlying facts 4: holding that even if the district court erred in accepting defendants guilty plea without a factual basis there was no reasonable probability that but for the alleged error the defendant would not have pleaded guilty in light of the extremely favorable plea deal that was structured to find a significantly less serious offense to which he could plead
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Ins. Co., Ltd., 512 F.2d 4, 6 (1st Cir.1975) (contract between seamen and vessel owner); T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 587-88 (5th Cir.) (contract for repairs at shipyard), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983). Panek’s negligence claim that Concordia’s lax security caused the fire or that its failure to prevent the PROWLER from sinking is also maritime in nature. See Butler v. American Trawler Co., Inc., 887 F.2d 20, 21 (1st Cir.1989) (“[Tjhere is admiralty jurisdiction if the tort at issue 1) occurred on navigable waters and 2) bore a significant relation to traditional maritime activities.”); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972) (<HOLDING>). Consequently, the district court could have Holdings: 0: recognizing tort of negligence by words 1: holding that an adverse action occurs when the decision is carried out when it is communicated or actually takes effect 2: holding that a complaint that asserts both admiralty jurisdiction and diversity jurisdiction is not an adequate 9h designation to trigger admiralty procedures 3: holding that for the purposes of admiralty jurisdiction a tort occurs where the negligence takes effect not where the negligent act occurred 4: holding that courts apply substantive admiralty law to claims that sound in admiralty regardless of whether the complaint invokes diversity or admiralty jurisdiction
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battery claim where the jury failed to award any compensatory or nominal damages. (Dkt. 91 at 12 n.4) If the court’s ruling was error, it was invited error. Invited error precludes a court from “invoking the plain error rule and reversing.” United States v. Davis, 448 F.2d 560, 564-65 (5th Cir. 1971). Second, she contends that the district court plainly erred by instructing the jury that nominal damages are awarded in an amount that “you ... decide [is appropriate] under all of the facts and circumstances of the case.” (Dkt. 96 at 312.) Smith contends that Georgia law requires a jury to award, at a minimum, nominal damages for an intentional tort. See, e.g., Norton v. Holcomb, 285 Ga.App. 78, 646 S.E.2d 94, 101 (2007); see also Jeter v. Davis, 33 Ga.App. 733, 127 S.E. 898, 901 (1925) (<HOLDING>). Under Georgia law, compensatory or nominal Holdings: 0: holding that plaintiff was not entitled to a presumption of nominal damages when she had failed to request them 1: holding that the right to nominal damages was waived in a breach of duty action when plaintiff failed to raise the issue of nominal damages until after the verdict 2: recognizing that a plaintiff would at least be entitled to nominal damages by proving the elements of an intentional tort 3: holding that when plaintiff has proven injury but has failed to prove the amount of damages the plaintiff is only entitled to nominal damages 4: holding that plaintiff waived the right to nominal damages in an excessive force case because nominal damages were not requested until after the verdict
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this Court is required to directly review Clark’s sentence of death, though we believe that, if he is competent, he may knowingly, voluntarily, and intelligently waive his right to any further review of his case. {92} IT IS SO ORDERED. MINZNER, C.J., BACA, and MAES, JJ., concur. FRANCHINI, Justice (specially concurring). 1 . The State notes that Rosales, Scullion, and Redford did not deliberate Clark’s sentence: Rosales’ name was not reached during the selection process, Scullion was peremptorily stricken by Clark, and Redford was chosen as an alternate after Clark exhausted his peremptory challenges. However, the State also notes that this Court held that prejudice is presumed when a defendant uses a peremptory challenge to remove a juror who should have been excused for cause, and ) (<HOLDING>); Klokoc v. State, 589 So.2d 219, 221-22 (Fla. Holdings: 0: holding that twentythree years on death row is not cruel and unusual punishment 1: holding that california has an important interest in accuracy and fairness in its criminal proceed ings that outweighs the defendants right to selfrepresentation where the defendant challenged the validity of californias statutory automatic appeal for death sentences by habeas petition contending that his incarceration on death row pending determination of the forced and unwanted appeal constitutes cruel and unusual punishment and violates his right to refuse counsel 2: holding that twentythree years served on death row is not cruel and unusual punishment 3: holding that the fact that defendant spent years on death row awaiting execution does not render the death penalty cruel and unusual punishment 4: recognizing the right to counsel on appeal
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due process guarantees. See Payne, 501 U.S. at 825, 111 S.Ct. 2597; id. at 831, 111 S.Ct. 2597 (O’Connor, J., concurring). We hold that victim impact evidence, brief and narrowly presented, is admissible during the penalty phase of death penalty cases. {38} Further, we hold that victim impact testimony is consistent with the Capital Felony Sentencing Act following Payne because it constitutes additional evidence as to the circumstances of the crime under Section 31-20A-1(C) and NMSA 1978, § 31-20A-2(B) (1979). Through Section 31-2CA-1(C), the Legislature requires the jury to consider evidence of the circumstance of the crime, and many other courts have also held that victim impact testimony is relevant for this purpose. See United States v. McVeigh, 153 F.3d 1166, 1219 (10th Cir.1998) (<HOLDING>), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, Holdings: 0: holding that the impact upon the victims is relevant to circumstances of the crime 1: holding that mental health evidence could be mitigating at the penalty phase even though it is insufficient to establish a legal defense to conviction in the guilty phase 2: holding that one of the primary purposes of the fmla is to balance the demands of the workplace with the needs of families 3: holding that the offense of sexual battery requires the state prove the victims lack of consent regardless of the victims age and charge the jury on the same 4: holding that the effects of the victims deaths upon the families is part of the circumstances of the crime and is properly presented to the jury at the penalty phase
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Commission also seeks a declaratory judgment that Nebraska has violated its fiduciary and contractual obligations under the Compact, an accounting, the removal of Nebraska from further supervision of the licensing process and appointment of a third party to exercise supervision of the licensing process. 5 . "No State shall, without the consent of Congress, ... enter into any Agreement or Compact with another State, or with a foreign Power....” 6 . Entergy Arkansas, Inc., v. State of Nebraska, 68 F.Supp.2d 1093, 1097-98 (D.Neb.1999) (Commission’s suit was not barred by the Eleventh Amendment), aff'd, 241 F.3d 979, 987-88 (8th Cir.2001). 7 . The early history of the Compact Clause is also described in Virginia v. West Virginia, 246 U.S. 565, 597-602, 38 S.Ct. 400, 59 L.Ed. 1272 (1918) (<HOLDING>). See also United States Steel Corp. v. Holdings: 0: holding that party timely objected to appointment of special master and did not waive its right to object when it objected to appointment several days before it participated in proceedings before special master 1: recognizing that the virginia supreme court has consistently applied the one year statute of limitation to defamation actions 2: holding that because the special master saw the witnesses and heard the testimony he has broad discretion in determining credibility 3: holding that the court had the power to enforce a 12 million judgment recommended by a special master and adopted by the court in favor of virginia and against west virginia 4: holding that reviewing court should accord deference to special masters decision and may not substitute its own judgment for that of the special master
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much a part of the term as the antecedent fixed term,” Shackelford, 138 Ga. at 162, and that “the mere expiration of the term of the incumbent does not create a vacancy,” id. at 163. Appellant contends that, because the end of his four-year term did not create a vacancy and because his holdover term was an extension of his original term, he was entitled to the protection of the removal-for-cause provision of the City Charter. Appellant, however, overlooks the fundamental character of a holdover term, which is that the holdover official has the right to the position only until a successor is appointed. See OCGA § 45-2-4 (saying that holdover officers hold the office only “until [their] successors are commissioned and qualified”); Garcia v. Miller, 261 Ga. 531, 532 (408 SE2d 97) (1991) (<HOLDING>); Shackelford, 138 Ga. at 161-162 (saying that Holdings: 0: holding that it was not error for successor trial judge to direct a judgment for defendant based on the statute of limitations where initial judge had denied a motion for summary judgment on the same issue 1: holding that where a superior court judge was named a defendant in an action for a writ of mandamus the prosecuting attorney is the proper court representative of the superior court judge 2: holding that a holdover superior court judge could exercise the power of that office until his successor was qualified 3: holding that rule 18 granted a successor to a deceased judge the power to file findings 4: holding that rule 18 granted a successor to a resigned judge the power to file findings when a case was transferred between districts
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ongoing paid administrative leave, which deprives him of the ability to go to his workplace and advance his career, constitutes an adverse employment action. B. Timing of Attempted Return to Work Defendants next argue that Plaintiff has failed to state a claim for retaliation under the FMLA because he did not attempt to return to work until five 569, 577 (E.D. Pa. 2011) (stating that “[a]n employer may not terminate an employee because he or she has taken the leave permitted by the statute. If the employee is not able to return to work after twelve weeks, however, the employer may terminate the employee.”) (quoting Katekovich v. Team Rent A Car, Inc., 36 Fed.Appx. 688, 690 (3d Cir. 2002)) (alteration in original); Dogmanits v. Capital Blue Cross, 413 F.Supp.2d 452, 462 (E.D. Pa. 2005) (<HOLDING>). In arguing that he was still protected by the Holdings: 0: holding a plaintiff to be ineligible for fmla leave wherein the plaintiffs leave exceeded twelve weeks within a twelve month period 1: holding that employees who exceed the twelve weeks of fmla leave stand to lose their entitlement to job restoration even if their employers provide additional nonfmla leave 2: holding that both the cfra and the fmla require the employee to provide notice to the employer of the employees intent to take leave 3: holding that an employee who did not present evidence that she could have returned to work prior to the expiration of her fmla leave allowance was not entitled to additional leave merely because her employer had not properly provided her with notice that the leave was designated as fmla leave 4: holding that employers oral denial of plaintiffs request for fmla leave showed interference
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a bank lo t know about his damages, his testimony is no evidence of damages. See Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 635 (Tex.App.Dallas 2000, pet. denied) (“Damages must be ascertainable in some manner other than by mere speculation or conjecture, and by reference to some fairly definite standard, established experience, or direct inference from known facts.”). Further, even if we disregarded Dr. Cravens’s reb-anee upon Dr. Ruhter’s opinions and his “I don’t know” statements, his testimony would still be no evidence because it was entirely conclusory. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156-57 (Tex.2012) (confirming that conclu-sory or speculative testimony will not support a judgment); Holt Atherton Indus., Inc., 835 S.W.2d at 84 (<HOLDING>). We hold that Dr. Cravens’s testimony was no Holdings: 0: holding that owners testimony that he lost 200200 in income was legally insufficient because it did not provide any indication of how the owner determined what his lost profits were 1: holding that testimony of owner that he lost approximately 200000 in income was legally insufficient because it did not provide any indication of how the damages were determined 2: holding evidence legally sufficient 3: holding that joness application was insufficient because it did not indicate how communication with counsel would have affected trial or how he would have proceeded differently 4: holding evidence legally insufficient
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when its owner has received a specific amount of money. See id. § 422.3, at 385. If article 5.2 is a production payment clause, it would not prevent NL from recovering additional damages if GHR breached the workover agreement. The owner or operator of a gas well must protect the interest of the owner of a production payment or an overriding royalty, particularly in a case such as this, in which the entire reimbursement for NL’s services was to come from the production payment. See id. § 420.1, at 356.1-356.2. If the owner or operator of the gas well does something to diminish the value of the mineral interest, the owner of a production payment or an overriding royalty can sue for damages. See, e.g., Whitson Co. v. Bluff Creek Oil Co., 156 Tex. 139, 146-47, 293 S.W.2d 488, 492 (1956) (<HOLDING>); Natural Gas Distrib. Corp. v. Williams, 355 Holdings: 0: holding that medical evidence as to nexus to service expressed as very well might have been although not conclusive suffices to well ground claim 1: holding that the sentence was reasonable in part because it was well below the statutory maximum 2: holding that the operator of an oil well was liable for damages to the owner of an overriding royalty after the operator negligently destroyed the well when it attempted to eliminate excess water that the well was producing 3: holding that a defendants sentence was reasonable in part because it was well below the statutory maximum 4: holding that it is within the power of the legislature to determine that the community should be beautiful as well as healthy spacious as well as clean wellbalanced as well as carefully patrolled
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papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 10 . Neither Lindsey nor the State argues that Officer Kruse's actions do not constitute a search. The State's brief states, "Arguably, this was not even a search," Appellee's Br. p. 19, but includes no further discussion on the point. Any such argument is thus waived for failure to present a cogent argument. See Ind. Appellate Rule 46(A)(8)(a) ("'The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.") Lyles v. State, 834 N.E.2d 1035, 1050 (Ind.Ct.App.2005) (<HOLDING>), reh'g denied, trans. denied. 11 . Article 1, Holdings: 0: holding that failure to develop a cogent argument waives the issue for appellate review 1: holding that the defendant waived argument on appeal by failing to develop a cogent argument 2: holding that the failure to obtain a ruling on a motion for new trial waives the issues raised for appellate review 3: recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review 4: holding that partys failure to develop issue in argument section constitutes waiver of issue
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May 1, 1995, so that deduction would only be available for systems certified for the 1993 assessment year or earlier, and phased out the deduction entirely after the 1997 assessment year. P.L. 25-1995, SEC. 15. One effect of this amendment was that an RRS first certified in 1994 would no longer receive any deduction. Winski first argues that the trial court has subject matter jurisdiction over its complaint because to exhaust its administrative remedies would be futile. The general rule is that a party is not entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted. Austin Lakes Joint Venture v. Avon Util., Inc., 648 N.E.2d 641, 644 (Ind.1995). Well recognized exceptions to the general rule requiring exhaust .1996)(<HOLDING>). But see Bielski v. Zorn, 627 N.E.2d 880 Holdings: 0: holding that constitutional challenge to controlled substance excise tax must pursue administrative routes followed by appeal in tax court 1: holding that state legislature should determine whether to cure discriminatory tax by enforcing tax as to all or forgiving tax in its entirety 2: holding that taxpayer was still required to go through tax refund procedure despite facial constitutional challenge to state intangibles tax 3: holding that the granting or denial of an urban renewal tax exemption is reviewable by tax appeal 4: holding texas franchise tax constitutional
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32.1 and 10th Cir. R. 32.1. 1 . "The Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico apply except as otherwise provided by local rule or by Court order. See, e.g., D.N.M.LR-Civ. 83.4(c). Lawyers appearing in this District must comply with the section for lawyers of ‘A Creed of Professionalism of the New Mexico Bench and Bar.’" D.N.M.LR-Civ. 83.9. 2 . Mr. Bello asserts in his statement of issues that an attorney's "respectful disagreement” with a district court cannot be a proper basis for discipline. Aplt. Br. at XVI. His brief, however, does not develop this particular argument, and in fact, makes no further reference to this contention. We therefore deem the argument waived. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1202 n. 4 (10th Cir.2003) Holdings: 0: recognizing that failure to develop claim on appeal constitutes waiver 1: holding that failure to develop a legal argument supporting a claim results in waiver of the claim 2: holding failure to brief argument constitutes waiver 3: holding that partys failure to develop issue in argument section constitutes waiver of issue 4: holding that defendants failure to appeal the voluntariness of a plea constitutes waiver of the issue on subsequent appeal
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outstanding capias warrant for Plaintiff and the law prohibiting a search in such circumstances was not “clearly established” as required in Maldonado, 568 F.3d at 269. For their argument that the law on this issue was unsettled at the time of the search, Defendants cite Malek v. Knightly, No. 94-2113, 56 F.3d 59, 1995 WL 338178, 1995 U.S.App. LEXIS 13924 (1st Cir.1995). In Malek, the First Circuit declined to determine “whether a bench warrant for civil contempt authorizes entry into the arrestee’s home to effect the arrest.” Id. at *2, 1995 U.S.App. LEXIS 13924 at *2. From this, Defendants argue that Defendant Bartels was conducting himself in an uncertain area of the law defining whether the capias entitled him to enter and search the P 172, 94 S.Ct. 988, 39 L.Ed.2d 242 (U.S.1974) (<HOLDING>)). See also U.S. v. Romain, 393 F.3d 63, 69, n. Holdings: 0: holding that where a third partys conduct is closely related to the contractual relationship or the contractual dispute and where the third party enjoys financial benefit from the contract the forum selection clause applies to the third party 1: holding that the question of whether police had a reasonable basis for finding that a third party had authority to consent to search is a question of law 2: holding defendant assumed risk that third party would consent to search of storage locker where defendant instructed third party to rent locker under third partys name and allowed third party to keep possession of lease papers and to occasionally retain the keys 3: holding that a third party has authority to consent to a search if the third party is a coinhabitant 4: holding the family court has jurisdiction to join third parties when property is alleged to be marital but is owned by a third party
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law, a municipality may be held vicariously liable on state law claims asserted against individual officers under a theory of respondeat superior.” Marcano, 38 F.Supp.3d at 267; see also Bektic Marrero v. Goldberg, 850 F.Supp.2d 418, 434 (S.D.N.Y. 2012) (“The doctrine of respon-deat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment.”). Thus, “an employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.” Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (N.Y. 1999); see also Ramos v. Jake Realty Co., 21 A.D.3d 744, 801 N.Y.S.2d 566, 567 (N.Y. 2005) (<HOLDING>). Indeed, “New York courts have held Holdings: 0: holding intentional assault by coworker to be outside the course and scope of employment 1: recognizing the doctrine reaches even intentional torts such as an employees alleged assault provided the tortious conduct at issue occurred within the scope of employment 2: holding that it is well established that whether an employees actions were within the scope of employment is a question of fact and even if some of the actions were unauthorized the question of whether the actions were within the scope of employment is for the jury 3: holding that inter alia employees criminal conviction for alleged tortious act demonstrated employee was not acting in scope of his employment 4: holding that the doctrine of respondeat superior in maryland allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship citations omitted
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Workers Union of New Jersey, Local 827 v. New Jersey Bell Tel. Co., 584 F.2d 31, 33-34 (3d Cir.1978); Burmah Oil Tankers v. Trisun Tankers, 687 F.Supp. 897, 899 (S.D.N.Y.1988); Hudson-Berlind Corp. v. Local 807, Affiliated with the Int’l Bhd. of Teamsters, 597 F.Supp. 1282, 1285-86 (E.D.N.Y.1984). Cases which have refused to apply issue preclusion to arbitrators have done so because the requirements for issue preclusion were not met. See, e.g., W.R. Grace & Co. v. Local Union No. 759, Int’l Union of the United Rubber Workers, 461 U.S. 757, 765, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983) (refusing to apply res judicata where arbitrator’s earlier award had exceeded his authority); McGraw Edison, Wagner Div. v. Local 1104, Int’l Union of Elec. Workers, 767 F.2d 485, 489 (8th Cir. 1985) (<HOLDING>). We recognize that the arbitrator had the Holdings: 0: holding that an arbitrator was not bound by an earlier award involving a different contract and different union 1: recognizing that consent decrees have a dual character that of contract and that of judicial decree subjecting them to different treatment for different purposes 2: recognizing that the legislature would not generally use a different meaning for the same word in a legislative provision unless a different purpose was intended 3: holding that the legislature intends different meanings when it uses different terms in a statute 4: holding that upon vacating an arbitration award the court has the discretion to remand to the same arbitrator or different arbitrator
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Murphy’s reasoning was “cursory, meandering, and generally unclear.” Furthermore, Arbitrator Murphy, by failing to afford the Vana Award preclusive effect, created an anomaly, to the benefit of Smucker and the employee Rose would have bumped. However, the threshold for vacating an arbitration award is extremely high. Lat-timer-Stevens, 913 F.2d at 1169. “[Alb-sent a contractual provision to the contrary, the preclusive effect of an earlier arbitration award is to be determined by the arbitrator.” UAW v. Dana Corp., 278 F.3d 548, 557 (6th Cir.2002). In our case law, we have consistently showed considerable reluctance to allow district courts to vacate arbitration awards. In light of Arbitrator Murphy’s explicit examination of the Vana A thyl Corp., 644 F.2d 1044, 1050 (5th Cir.1981) (<HOLDING>). However, we have explicitly declined to adopt Holdings: 0: holding that the rights of an aggrieved party are substantially affected if the outcome either would have or may have been different had the error not occurred 1: holding that a states law is materially different from california law if application of the other states law leads to a different result 2: holding that arbitrations may be subject to preclusion if their facts are substantially similar or not materially different 3: holding that arbitrations may be subject to preclusion if they have same strict factual identities 4: holding that a plaintiff could not add civil claim based upon different facts that are separate and distinct both qualitatively and temporally and relate to the conduct of different individuals from facts in administrative charge
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action.”); ORS 652.200 (providing for attorney fees for prosecution of an action for the collection of wages). As we understand plaintiff’s contention, it is that, because attorney fees were available and awarded in the underlying wage claim, under ORCP 68 A(l) fees are also available in the UFTA action, as an action to enforce the judgment on the wage claim and, therefore, as “services related to the prosecution or defense of’ the underlying wage claim. Plaintiff is correct that we have previously said that fees incurred in the collection of a judgment on a claim for which attorney fees are available are encompassed within “attorney fees,” as defined in ORCP 68 A(l) as fees “related to the prosecution or defense of an action.” See Holder v. Elg, 151 Or App 329, 332, 948 P2d 763 (1997) (<HOLDING>); Johnson v. Jeppe, 77 Or App 685, 688, 713 P2d Holdings: 0: recognizing that the party seeking attorney fees bears the burden of proving entitlement to those fees 1: holding attorney lacked standing to challenge amount of attorney fees awarded plaintiffs not parties to the appeal 2: recognizing a partys right to receive postjudgment fees for collection when the original judgment awarded that party attorney fees 3: holding that the insured was entitled to prejudgment and postjudgment interest and attorney fees as found by the jury 4: holding a summary judgment to be final although motion to assess attorney fees remained pending because award of attorney fees is collateral to judgment
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§ 1512 — the criminal statute prohibiting tampering with a witness — and a criminal conspiracy in violation 18 U.S.C. § 371. Section 1512(b) specifically provides: Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to — (1) influence, delay, or prevent the testimony of any person in an official proceeding; .... shall be fined under this title or imprisoned not more than ten years, or both. An “official proceeding,” as referred to in § 1512(b), is explicitly defined in 18 U.S.C. § 1515 to include a federal grand jury proceeding. Indeed, § 1512(b) applies to attempts to influence testimony in a broader range of proceedings than does t d Cir.1995) (<HOLDING>). Plainly, by stating a claim under § 1985(2), Holdings: 0: holding that witnesss testimony that he lied to investigators because his friend the defendant had asked him to do so was sufficient to sustain the defendants conviction under 1512b 1: holding that uncorroborated testimony of one witness is sufficient by itself to sustain a conviction 2: holding that the uncorroborated testimony of an informant may be sufficient to sustain a conviction 3: holding that a defendant who was told several times he was not under arrest and who never asked to leave during an interview with investigators was not in custody 4: holding witnesss testimony identifying appellant is sufficient standing alone to support conviction
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was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances r n any event. But cf. Lewis v. Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (<HOLDING>). 7 . Since we determine that Fairman did not Holdings: 0: holding that sufficiency challenges are cognizable in a federal habeas proceeding 1: holding that an error pertaining to a mixed question of law and fact under state law is not cognizable in a federal habeas proceeding 2: holding the question of necessity is one of mixed law and fact and accordingly one for the fact finder in the ordinary case 3: holding claim that prior conviction was not serious felony under californias sentencing law not cognizable in federal habeas proceeding 4: holding that probable cause determination presents a mixed question of law and fact
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if any of them believed that the Creditor Group was legally barred from ... bringing the Claims, (Answering Br. at 21.) We agree. To hold otherwise would allow a “claw back” of the sale itself because the value of the claims, without the ability to prosecute them, would be completely eliminated and a central feature of the transaction would thus be frustrated, through no apparent fault of the Creditor Group. See, e.g., Pieper, Inc. v. Land O’Lakes Farmland Feed, LLC, 390 F.3d 1062, 1066 (8th Cir. 2004) (concluding that defendant’s expressed principal purpose for entering an agreement was substantially frustrated by the failure of basic assumption of the agreement, defeating the commercial reason for contract); Unihealth v. U.S. Healthcare, Inc., 14 F.Supp.2d 623, 635 (D.N.J. 1998) (<HOLDING>); 30 Williston on Contracts § 77:95 (4th ed. Holdings: 0: recognizing frustration of purpose where an unexpected regulatory change substantially frustrated the principal purpose of the agreement to the unfair advantage of one party 1: holding that a defendant is in custody and miranda applies even when the purpose of defendants detention is unrelated to the purpose of the interrogation 2: recognizing purpose of ccpa as protection of consumers from unfair illegal or deceptive acts 3: holding that conspiracy requires an agreement to accomplish either an unlawful purpose or a lawful purpose by unlawful means 4: holding that rule 408 exclusion does not apply to evidence of a settlement agreement if it is offered for another purpose ie for a purpose other than to prove or disprove the validity of the claims that the agreement was meant to settle
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the Attorney General chose to remove the case from state court, where it originated. In contrast, the elements required to show clear and voluntary action constituting a waiver of Eleventh Amendment immunity by a State defendant are absent here. Regarding MDOC, AmerenUE has not demonstrated that MDOC has the power to bring suit in federal court. Having this power is, under Lapides, a prerequisite for a state actor to have the ability to waive the State’s Eleventh Amendment immunity. Even if MDOC has this power, it is clear that MDOC, which is a defendant in this lawsuit, has not voluntarily invoked federal jurisdiction by entering a general appearance and defending against AmerenUE’s suit. See, e.g., Fromm v. Comm’n of Veterans Affairs, 220 F.3d 887, 888-90 (8th Cir.2000) (en banc) (<HOLDING>). Moreover, MDOC did assert the State’s Holdings: 0: holding that there was no waiver where attorney general appeared in federal court answered a complaint responded to discovery and later moved to amend its answer to the complaint in order to raise states eleventh amendment immunity 1: holding the language of 5518e insufficient as a waiver of eleventh amendment immunity to federal claims in federal court 2: holding that state defendant waived eleventh amendment immunity to a federal claim by removing to federal court 3: holding that the conduct of an assistant attorney general of nebraska in answering a complaint and filing a counterclaim did not amount to waiver of the eleventh amendment 4: holding that denial of leave to amend was appropriate because the plaintiff sought to amend his complaint two years after filing his complaint on the eve of trial when discovery was complete
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that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1, quoting State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 473 N.E.2d 264, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810. {¶ 11} This court has previously been split as to the standard of review for the granting or denial of a motion to compel arbitration and to stay proceedings pending arbitration. GB AZ 1, L.L.C. v. Arizona Motors, L.L.C., Cuyahoga App. No. 95502, 2011-Ohio-1808, 2011 WL 1419636. See Vanyo v. Clear Channel Worldwide, 156 Ohio App.3d 706, 2004-Ohio-1793, 808 N.E.2d 482 (<HOLDING>). Cf. Bevan v. Owens-Illinois, Inc., Cuyahoga Holdings: 0: holding that whether a statute affects sentencing is a question of law subject to de novo review 1: recognizing that the constitutionality of a statute is a question of law subject to de novo review 2: holding that when trial courts decision turns on question of law appellate review is de novo 3: holding that the question whether a party has agreed to submit an issue to arbitration is a question of law requiring de novo review 4: holding that whether a statute has been properly construed is a question of law subject to de novo review
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required merger where the “evidence presented at a particular trial” showed that one offense was coextensive with another, “does not suffice to overcome the presumption.” Id. Byrd’s presumption applies here because kidnaping and child sexual abuse each “requires proof of a fact which the other does not.” 598 A.2d at 389. Kid-naping, unlike child sexual abuse, requires “asportation or confinement.” Parker, 692 A.2d at 916; see also D.C.Code § 22-2001. Child sexual abuse, on the other hand, requires proof of an actual or attempted “sexual act” (in the case of first-degree child sexual abuse, see D.C.Code §§ 22-3008, 3018) or “sexual contact” (in the case of second-degree child sexual abuse, see D.C.Code §§ 22-3009, 3018), whereas kid-naping does not. See also Bryant, 859 A.2d at 1108 (<HOLDING>). Since D.W. “has not presented any evidence, Holdings: 0: holding that all convictions under wisconsin sexual assault statute were not per se convictions for crimes of violence 1: holding that enticement and sodomy merge under 223601d 2: holding that convictions under 846 and 371 do not offend the double jeopardy clause 3: holding that under byrd kidnaping and sexualabuse convictions do not merge 4: recognizing that the district court could merge duplicative convictions after the jury verdicts are recorded
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Rent-a-Car is not a proper defendant to this case.” (Garnishee Defs.’ Resp. PL’s Verified Mot. Remand, Ex. J at 1.) In response, Mr. Johnson’s lawyer wrote on January 25, 2001: “I concur that my theories of possible negligence against Enterprise have not developed. Thus, regarding the underlying tort action it does not appear that Enterprise was negligent or that Wilson was your agent.” (Id., Ex. L at 1.) What remained was a dispute between Mr. Johnson and Enterprise with respect to whether Enterprise could have some secondary liability rather than some independent liability to Mr. Johnson. Under Indiana law, Mr. Johnson could not bring a direct action against Enterprise as a part of the underlying negligence action. See Rausch v. Reinhold, 716 N.E.2d 993, 1002 (Ind.Ct.App.1999) (<HOLDING>); Araiza v. Chrysler Ins. Co., 703 N.E.2d 661, Holdings: 0: holding that an injured third party does not have the right to bring a direct action against a tortfeasors liability insurer 1: holding that an insurer which insures a tortfeasor under a liability policy has no obligation of good faith and fair dealing to an injured third party even where the injured third party also carries a separate policy with the insurer 2: holding that there can be no common liability upon which to base a contribution claim between a third party and an injured partys employer because the exclusive remedy provision means that the employers liability is not based on negligence so that application of the common liability rule deprives a third party of the opportunity to secure contribution from the injured partys employer 3: holding that there is an actual controversy between an insurer and the party injured by the insured 4: holding that an injured party in an underlying tort action was not a necessary party in an action by an insurer for declaratory judgment of nonliability where the injured person had not obtained judgment against the insured
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barred party from raising issue in second arbitration proceeding that could have been raised in first arbitration); Waterfront Marine Construction, Inc. v. North End 49ers Sandbridge Bulkhead Groups A, B and C, 251 Va. 417, 434, 468 S.E.2d 894 (1996) (doctrine of claim preclusion barred second arbitration action because “even though the first demand described only specific defects, the doctrine of res judicata applies to all claims which could have been brought”); and, more specifically, have distinguished between issue preclusion and claim preclusion in requiring a subsequent arbitral panel to apply the doctrine of claim preclusion based upon a prior panel’s determination. See, e.g., Vandenberg v. Superior Court, 21 Cal. 4th 815, 824 and n.2, 982 P.2d 229, 88 Cal. Rptr. 2d 366 (1999) (<HOLDING>); but see, e.g., Chiron Corp. v. Ortho Holdings: 0: holding that where an arbitration agreement between an employer and employee does not specifically provide for the handling of arbitration costs california courts should interpret the arbitration agreement as providing that the employer must bear the arbitration forum costs 1: holding that res judicata and collateral estoppel apply to arbitration award 2: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 3: recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement 4: holding that prior arbitration has no collateral estoppel effect absent agreement of parties on subsequent arbitration but noting that california precedent accords res judicata effect to serial arbitration proceedings
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is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof’). Because the sentencing process, even after Apprendi is “no more exacting than the process of establishing guilt,” Patterson’s reasoning applies with full force to Snype’s challenge to the burden of proof assignment in § 3559(c)(3)(A). United States v. Bradshaw, 281 F.3d at 295 (relying on Patterson in holding that “a paradigm that allows the defendant to raise an affirmative defense during the sentencing phase of criminal proceedings, but then shifts the burden of proof to him to establish the defense, does not violate due process”); see also United States v. Brown, 276 F.3d at 932 (<HOLDING>); United States v. Wicks, 132 F.3d 383, 389 Holdings: 0: holding that on a review of the sufficiency of the evidence the court determines whether any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt 1: holding that apprendi leaves undisturbed the principle that while the prosecution must indeed prove all the elements of the offense charged beyond a reasonable doubt the legislation creating the offense can place the burden of proving affirmative defenses on the defendant internal citations omitted 2: recognizing congresss power to place burden of proving affirmative defense on defendant as long as state proves all elements of the crime beyond a reasonable doubt 3: holding state must prove every element of an offense beyond a reasonable doubt and a scheme that shifts the burden of proof to the defendant by presuming a fact upon proof of the other elements of the offense violates due process 4: holding due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the charged offense and new york law that requires the defendant in a second degree murder prosecution to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter when no element of the charged offense is presumed does not violate the due process clause
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for discrimination or retaliation purposes between “termination” and other adverse actions such as “failure to promote” or “denial of transfer.” See Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Nor does — or could— the majority ultimately hinge its decision on the absence of any formal “reinstatement process.” The denial of reinstatement can give rise to a claim if grounded in discriminatory or retaliatory bias, regardless of whether any formal process attends the denial. Indeed, one of the cases cited by the majority in setting out when reinstatement claims might be made, EEOC v. City of Norfolk Police Department, 45 F.3d 80 (4th Cir.1995) (cited ante, at 529-30), establishes that refusal of reinstatement through informal means can be actionable. See Norfolk Police, 45 F.3d at 84-85 (<HOLDING>). The majority ultimately rests its decision on Holdings: 0: holding police department employees opposition to discrimination by police officers against black citizens did not constitute protected activity under title vii 1: holding police officer is a public official 2: holding that police departments failure to discipline an officer can create municipal liability particularly when plaintiffs injuries result from conduct similar to that alleged in prior complaints against the officer 3: holding that where white police officers were customarily reinstated imme diately after criminal charges against them were dropped while an africanamerican officer was required to complete a formal administrative appeal process eeoc can pursue a discrimination claim against the police department for failing to reinstate the africanamerican officer through informal procedures 4: holding that the pittsburgh police department did not illegally terminate an officers hla benefits and that the police department was entitled to a subrogation interest against the officers thirdparty settlement
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[the court] why the district court erred” and, indeed, could not. “respond to the district court’s decision, since each section [was] directly copied and pasted, essentially word for word from”'the underlying filings). Lanier also asserts that the question violated the Confrontation Clause because it assumed facts not in,evidence thus transforming the prosecutor into an unconfronted fact witness. When combined with a witness’s testimony, the questions of a prosecutor designed to introduce testimony about out-of-court testimony that would otherwise be inadmissible hearsay, can violate the Confrontation Clause. United States v. Kizzee, No. 16-20397, 877 F.3d 650, 655-56, 2017 WL 6398243, at *3 (5th Cir. Dec. 15, 2017). But see United States v. Solis, 299 F.3d 420, 442 (5th Cir. 2002) (<HOLDING>). Here, the prosecutor’s questioning was not Holdings: 0: holding that because closing arguments do not constitute evidence a prosecutors statement did not implicate the confrontation clause 1: holding that admission of statement with references to we or they which did not directly implicate defendant did not violate defendants confrontation rights 2: holding that hearsay argument for admission of evidence did not preserve confrontation clause challenge on appeal argument could have referred either to rules of evidence or confrontation clause but failed to identify confrontation clause as basis and thus did not put trial court on notice of issue 3: holding appellate court erred in reversing conviction on confrontation clause grounds because appellant did not clearly articulate to trial court that confrontation clause demanded admission of evidence in question 4: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment
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Standard Concrete Pipe Sales Co., 366 S.W.2d 103 (Tex.Civ.App.-Houston [1st Dist.] 1963, no writ), the court of appeals held it to be error for the trial court to include in a summary judgment an order severing an attorney’s-fee issue in a suit on an account when the defendant, in controverting affidavits, raised an issue of fact as to the reasonableness of the attorney’s fees demanded in the plaintiffs motion for summary judgment. Id. at 105. The crux of the court’s holding was that the defendant was entitled to rely on its affidavits as raising a fact issue to defeat the summary-judgment motion. Id. The outcome may well have been different if the severance had come after a ruling on the motion for summary judgment. See Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 526 (Tex.1982) (<HOLDING>). Bradford directs this Court to several eases Holdings: 0: holding that trial court did not abuse its discretion in severing defendants counterclaim after summary judgment was granted as to plaintiffs claim 1: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed 2: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 3: holding trial court did not abuse its discretion in finding violation was willful and substantial 4: holding that district court did not abuse its discretion in considering merits of state law counterclaim that formed part of the same case as federal counterclaim even though court had dismissed federal counterclaim quoting 28 usc 1367a
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crime of violence under 18 U.S.C. 3156(a)(4)(B) which has a definition similar to that in 18 U.S.C. § 16(b)). On its face, the plain language of 16(b) encompasses Tex. Penal Code § 30.04, which proscribes breaking into, or entering, a vehicle with the intent to commit a theft or felony. Breaking into a vehicle, by its nature, involves a substantial risk that physical force may be used against the property of another. See 18 U.S.C. § 16(b). Alfaro-Gramajo’s argument that the Texas courts have construed the statute too broadly for it to be considered a crime of violence is unpersuasive. The cases cited by Alfaro-Gramajo show that Texas courts have interpreted the statute within the plain meaning of its terms. See, e.g., Thomas v. State, 919 S.W.2d 810, 814 (Tex.Ct. App.1996) (<HOLDING>). However, to qualify under § 16(b), the Holdings: 0: holding that the automobile exception applied to a car that had broken down and was to be repaired during the night and operable the next morning because the car had not lost its inherent mobility 1: holding a car was broken into or entered when defendant reached in through the open window of a car 2: holding that an arrest to retrieve car keys where ownership of the car was in dispute was not supported by probable cause 3: holding that the driver of a car who had permission to use the car had standing to challenge its search 4: holding that there was probable cause for arrest where officers knew defendants had recently been with suspected drug dealer officers saw defendants car being maneuvered so as to indicate that surveillance had been detected and when officers approached car defendant attempted to place package under car and then pulled the package back inside the car and closed and locked the car door
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finds this argument unconvincing for two reasons. First, as presented above, Karaeff relied on factors in addition to the apparent wealth of the Harts, such as the close personal relationship and trust between her and Toby, as well as her perception of Toby as a savvy real estate developer. Although Karaeff may not have had as close of a relationship with Toby as she did with Debra Hart, her testimony indicates she trusted Toby as a family member. Trial Tr. 10:5-10. Second, the language under 523(a)(2)(A) “other than a statement respecting the debtor’s ... financial condition,” should be interpreted narrowly to include formal written accounting documents, and not broad oral or written statements concerning financial wealth. See In re Belice, 461 B.R. 564, 577-78 (B.A.P. 9th Cir.2011) (<HOLDING>); In re Joelson, 427 F.3d 700, 714 (10th Holdings: 0: holding that the phrase statement respecting the debtors financial condition should be narrowly interpreted 1: holding that a phrase should be interpreted consistent with the context of the statute in which it is contained 2: holding that representation as to financial solvency of partnership was statement of financial condition because it reflected overall economic condition of partnership 3: holding that the phrase relates to should be interpreted to limit the breadth of erisa 4: holding that contracts should be interpreted to give effect to all provisions
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to the jury that Bailey was of bad character and was willing to engage in criminal pursuits. As was the case with the evidence about the four-wheeler and the tractor, this evidence was not admissible, and it did not come within any exception to the exclusionary rule. The trial court erred when it allowed evidence of the collateral acts. Even if we had determined that evidence about the four-wheeler, the tractor, and the conversations recorded at Reeves’ residence fit within an exception to the exclusionary rule, we would nonetheless hold that the collateral-act evidence was inadmissible because it was not reasonably necessary to the State’s case and because its probative value was far outweighed by its prejudicial value. See, e.g., Ex parte Jackson, 33 So.3d 1279, 1286 (Ala.2009) (<HOLDING>). None of the collateral-act evidence Holdings: 0: holding that to admit evidence of prior bad acts under rule 404b ala r evid the state must demonstrate that the evidence was reasonably necessary to its case 1: holding that admission of rule 404b evidence was proper 2: holding for evidence to be admissible under rule 404b its relevance must not include bad character or propensity as a necessary link in the inferential chain 3: holding that proponent of 404b evidence must identify a proper 404b purpose for admission that is at issue in the case 4: holding that it is error for a trial court to admit evidence of prior bad acts without properly conditioning the jurys use of that evidence
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Reardon’s independent investigation yielded only minimal corroborative evidence relating to appellant, Officer Rear-don lacked probable cause to arrest appellant at the time he seized and searched the bag of socks. For these reasons, I would hold the trial court erroneously denied the motion to suppress, and I would reverse and dismiss appellant’s conviction. Therefore, I respectfully dissent. 2 . The Commonwealth made this argument in the trial court and on brief on appeal. The fact that the trial court concluded appellant consented to the search and, thus, did not reach the probable cause issue does not prevent us from considering that issue on appeal where no further factual findings are necessary. See Driscoll v. Commonwealth, 14 Va.App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (<HOLDING>); see also Hancock v. Commonwealth, 21 Va.App. Holdings: 0: holding that an appellate court may affirm the result reached by a district court on alternative grounds 1: holding that the tipsy coachman doctrine allows an appellate court to affirm a trial court that reaches the right result but for the wrong reasons so long as there is any basis which would support the judgment in the record 2: holding that appellate court may affirm ruling where trial court reached right result for wrong reason as long as alternate basis for affirmance was presented to trial court and no further factual findings are necessary 3: recognizing an appellate court may affirm a trial courts decision that reached the right result regardless of the trial courts reasoning 4: holding that it is axiomatic that this court can affirm a circuit court if the right result is reached even if for a different reason
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and Skelly relied on their design expert, Sicher, who testified about the important role testing plays (or should play) in the design process: “[T]he basic design principles are set your goals, determine how you’re going to test or evaluate them, and then start testing them.” If the test results are unsatisfactory, then the company should “go back and either do a redesign or evaluate whether that was a true indicative method of evaluating [the goal] properly.” That is, in Sicher’s opinion, rollover testing is vital to producing a careful design because it allows a company like GM to discover how a vehicle performs during a rollover and what alternatives, if any, can improve that performance—to him, failure to test means failure to exercise reasonable care. Cf. McKnight, 36 F.3d at 1411 (<HOLDING>); Zesch v. Abrasive Co. of Phila., 353 Mo. 558, Holdings: 0: holding that rule 54b applies when plaintiffs theory of recovery against one defendant is largely subsumed by its theory of recovery against the other defendant even though there was no formal joint liability 1: holding that although an adequate warning will prevent the reliance on a theory of strict liability in a failure to warn defect ease such a warning will not make safe a product with a manufacturing defect 2: holding while there may be some case law to support plaintiffs argument the majority approach is that the failure to attach process defect is merely procedural and that this particular procedural defect may be cured 3: recognizing failure to test is a viable theory of recovery under missouri law in a manufacturing defect case 4: holding that notice of a defect could not be imputed to a defendant inasmuch as it created the defect
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(op. on reh’g). In the Windsor suit, the trial court specifically found that venue was proper in Tarrant County. We reviewed the venue ruling and affirmed it. Windsor, 923 S.W.2d at 93-95. Thus, we need to determine whether this final judgment on venue in the Windsor suit irrevocably fixes venue in Tarrant County for Miller II. A final judgment on venue is conclusive on the parties as to the issue of venue and irrevocably fixes venue of any suit involving the same subject matter and parties. See Texas Employers’ Ins. Ass’n v. Orozco, 681 S.W.2d 245, 245 (Tex.App.—San Antonio 1984, no writ); Pinney v. Cook, 558 S.W.2d 33, 36 (Tex. l Co., 510 U.S. 820, 114 S.Ct. 76, 126 L.Ed.2d 45 (1993); Southwestern Inv. Co. v. Gibson, 372 S.W.2d 754, 756 (Tex.Civ.App.—Fort Worth 1963, no writ) (<HOLDING>). Further, the underlying facts giving rise to Holdings: 0: holding that defendant in second suit was in privity for res judicata purposes because his interests were aligned with those of defendant in first suit which concerned same facts 1: recognizing that res judicata does not apply unless the facts and evidence necessary to maintain suit are the same in both actions 2: holding additional parties in second suit do not prevent the application of res judicata based on the first suit 3: 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 4: holding that res judicata applies when the parties are identical or in privity the first suit proceeded to a final judgment on the merits and the second claim is based on the same set of transactional facts as the first
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to any relief in this suit.” Id. at 620, 58 S.Ct. 385; see also Mobil-Teria Catering Co. v. Spradling, 576 S.W.2d 282 (Mo.1978), overruled on other grounds, Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907 (Mo.1997) (finding that a municipality may not impose a tax on gross receipts derived from places of business lying outside its geographical boundaries). ¶ 12 The Arizona Supreme Court applied these principles in Gorman v. City of Phoenix, concluding that portions of the property to be annexed “were not contiguous to the City of Phoenix and that therefore the city commission is without jurisdiction to annex the territory involved.” 70 Ariz. 59, 65, 216 P.2d 400, 404 (1950). The court held that unless a sufficient petition l, 98 Ariz. 382, 385-88, 405 P.2d 871, 873-75 (1965) (<HOLDING>); Cornman Tweedy 560, L.L.C. v. City of Casa Holdings: 0: holding that a condition was precedent to performance because the contract language did not explicitly state that it was precedent to formation 1: holding that the signature requirement was an indispensable condition precedent and the failure to comply with it deprived the town of jurisdiction to annex 2: holding the trial court may determine issue of condition precedent to enforcement of agreement to arbitrate 3: holding that failure to comply with statutory prerequisite deprived the courts of subjectmatter jurisdiction 4: holding that the petitioners failure to raise his ineffective assistance of counsel claim before the bia deprived the district court of jurisdiction to hear the issue
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is based in large part on the Court’s determination that the decisions of the Second and Eleventh Circuits hew more closely to the Supreme Court’s instruction that the jurisdictional provision of § 1001 should not be construed in a narrow or technical manner. See Rodgers, 466 U.S. at 480, 104 S.Ct. 1942. In addition, the Court also notes as persuasive the Government’s argument that this somewhat broader interpretation of § 1001’s jurisdictional scope is consistent with that taken by the Fourth Circuit in its interpretation of the jurisdictional scope of 18 U.S.C. § 111, which imposes criminal liability on, inter alia, persons who assault federal marshals or “person[s] employed to assist” federal marshals. 18 U.S.C. §§ 111, 1114; see United States v. Murphy, 35 F.3d 143 (4th Cir.1994) (<HOLDING>). Although § 111 differs from § 1001 in that § Holdings: 0: holding that a district court is not authorized to sentence a defendant below the statutory minimum unless the government filed a substantial assistance motion pursuant to 18 usc 3553e and ussg 5k11 or the defendant falls within the safetyvalve of 18 usc 3553f 1: holding that the scope of 18 usc 111 is broad enough to include assaults on local law enforcement officials responsible for housing federal prisoners pursuant to a contract with the marshals service 2: holding that 18 usc 3625 does not preclude claims that the bop acted contrary to established federal law violated the constitution or exceeded its statutory authority when it acted pursuant to 18 usc 3621 3: holding that employees of county jail that housed federal prisoners pursuant to contract with the federal government were not federal employees even though county jail had to comply with federal rules and regulations 4: holding that interference with the right to service in a restaurant is chargeable under 18 usc 241
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as an intentional relinquishment of a known right,” but which is often construed as “an equitable principle used by courts to avoid harsh results when a party has conducted itself in such a way as to make those results unfair.” Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367, 370 (7th Cir.1978). Neither the district court nor the Kramer states that Plaintiff-Appellant intentionally relinquished her Fourth Amendment claim, nor are we dealing with a hard, judicially recognized bright line for waiver, like the principle that a party waives on appeal any argument that it does not present to the district court. This bright-line principle backs the numerous waiver cases cited by Defendant-Appellee Kramer in her brief. See, e.g., Teumer v. Gen. Motors Corp., 34 F.3d 542, 546 (7th Cir.1994) (<HOLDING>); Colburn v. Trs. of Ind. Univ., 973 F.2d 581, Holdings: 0: holding summary judgment appropriate when the facts in evidence supported another plausible theory not the plaintiffs theory of the case 1: holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory 2: holding that the plaintiffs misconceived legal theory did not preclude it from obtaining relief under another theory 3: holding that the failure to draw the district courts attention to an applicable legal theory waives pursuit of that theory in this court 4: holding that appellate courts may uphold a trial courts ruling on any legal theory or basis applicable to the case but may not reverse a trial courts ruling on any theory or basis that might have been applicable to the case but was not raised
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that because the nylon mask and other items that were later subjected to DNA testing were stored in the same place as items that were taken from his home, there was a possibility that the DNA analysis was conducted on a mixed sample and, therefore, the DNA evidence should be excluded. The trial court rejected the defendant’s argument and pointed out that there was “no evidence” that the items taken from the defendant’s home were “somehow commingled” with the nylon mask. We agree with the defendant that if the DNA results presented to the jury were based on the analysis of a known mixed sample, the State would be required to explain how the presence of DNA from another individual would affect the statistical analysis. See, e.g., State v. Garcia, 3 P.3d 999, 1003-04 (Ariz. Ct. App. 1999) (<HOLDING>); State v. Ayers, 68 P.3d 768, 775 (Mont. 2003) Holdings: 0: recognizing that in prior decisions the court had used the term inconclusive to mean that dna evidence did not exclude an individual but clarifying that in the future the term inconclusive would be used only when a dna sample does not contain enough dna to draw a conclusion dna is degraded or for other reasons a dna test yields no results or the examiner draws no conclusion 1: holding that there was no ineffective assistance for failing to hire a dna expert because the defenses theory was that the defendants dna was planted so the dna evidence would not seem to be an issue 2: holding use of mtdna analysis to prove identity satisfied frye test for admissibility of new or novel scientific evidence 3: holding that admission of evidence that defendants dna profile was consistent with dna profiles from mixed blood samples was plain error warranting reversal because no testimony was provided to explain the statistical significance of a potential match 4: holding that frye test for admissibility was satisfied because expert used likelihood ratios to explain results of dna tests conducted on known mixed samples
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witness’s testimony adversely. We have stated that “[i]n determining the intent with which a defendant acted, a district court is entitled to rely on ... all reasonable inferences that may be drawn from all of the evidence,” Khedr, 343 F.3d at 102, and that “[w]e generally defer to a sentencing court’s findings as to what a speaker meant by his words, and how a listener would reasonably interpret those words.” United States v. Gaskin, 364 F.3d 438, 466 (2d Cir.2004) (internal quotation marks and citation omitted). These considerations fully support the district court’s conclusion that the totality of the timing and circumstances of Yarbrough’s phone call to the witness demonstrated a clear intent to threaten the witness. Cf United States v. Shoulberg, 895 F.2d 882, 884-86 (2d Cir.1990) (<HOLDING>). The fact that the witness stated that he did Holdings: 0: holding that willful failure to appear at sentencing supported obstruction of justice enhancement 1: holding that ussg 3c11 reaches attempts to obstruct whether direct or indirect in affirming obstruction of justice enhancement for incarcerated defendant who wrote a note stating that he did not trust at all a codefendant asking for location of codefendants residence and implying possibility of rough sexual altercation with codefendant upon defendants release from detention even though codefendant never received note because totality of circumstances surrounding note indicated an indirect attempt to obstruct justice 2: holding that the right to choose counsel cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice 3: holding trial court in determining proper sentence of a defendant may validly consider codefendants belowguideline sentence where the codefendant is at least if not more culpable than defendant 4: holding that before a court imposes an enhancement for obstruction of justice the court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice
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abuse of discretion standard, I concur in the result. 1. Standard of Review As the majority notes, the parties on appeal disagree as to which standard of review is applicable to the trial court’s sentencing. There is inconsistency amongst jurisdictions concerning which standard of review applies to those alleged sentencing errors not preserved at trial. There are at least three categories in which standards of review are applied to sentencing. Some jurisdictions apply the abuse of discretion standard when addressing the substantive reasonableness of a sentence, whereas procedural errors not raised at trial are reviewed for plain error. See United States. v. Judge, 649 F.3d 453, 457 (6th Cir. 2011) (“[sentences are generally reviewed for an abuse of discretion, but wher 160 (Neb. 2011) (<HOLDING>); State v. Georgius, 225 W. Va. 716, 696 S.E.2d Holdings: 0: holding that the decision whether to grant a continuance lies in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion 1: holding that the admission or exclusion of evidence is within discretion of the trial court and that such determinations will not be disturbed on appeal absent clear abuse of discretion 2: holding that a sentencing determination will not be disturbed on appeal absent an abuse of discretion by the district court 3: holding that rulings on admissibility of evidence are within the discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion 4: holding that a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court
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equitable relief as may be appropriate, including ... reinstatement,” 29 U.S.C. § 2617(a)(1)(B). Defendants .also argue that Dr. Coulibaly cannot rely on the Federal Tort Claims Act ("FTCA”) for any waiver of sovereign immunity. See Mem. Supp. Defs.’ Mot. Dismiss 6-7. But the Court does not discern an FTCA claim from the complaint, and because Dr. Coulibaly disclaims any reliance on the. FTC A in his filings, the Court will not consider this issue, See Mem. Supp. PL’s Mot. Summ. J, 19 ("FTCA‘and FMLA are two different cases and there is no issue of sovereign immunity for FMLA lawsuit."). 10 . The question of whether the FMLA permits actions against individuals as1 opposed to only employer^ is the subject of a circuit split. Compare Mitchell v. Chapman, 343 F.3d 811, 829 (6th Cir.2003) (<HOLDING>); Wascura v. Carver, 169 F.3d 683, 687 (11th Holdings: 0: holding that a civil rights plaintiff failed to state a claim upon which relief can be granted under fmla against individual individual is not employer subject to liability under the act 1: holding that fmla permits individual liability for public officials 2: holding no individual liability under the adea 3: holding that 10512a does not provide for individual liability because it does not include any of the phrases that so clearly provide a basis for individual liability under other subparts of lad 4: holding that fmla does not impose individual liability
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New York law, false arrest is considered to be a species of false unlawful arrest, the determination of whether probable cause existed must be made on the basis of the information possessed or reasonably available to the defendant at the time of the arrest. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 570 (2d Cir.1996), It is, therefore, axiomatic that subsequently discovered evidence cannot be used to cure an arrest that was made without probable cause. Cf. People v. Gomcin, 265 A.D.2d 493, 495, 697 N.Y.S.2d 93, 95 (2d Dep’t 1999) (search incident to arrest) (“[I]t is beyond cavil that the fruit of a search incident to an arrest cannot be used to establish probable cause to arrest.”); cf. also Johnson v. United States, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948) (<HOLDING>). B. Malicious Prosecution under § 1983 and New Holdings: 0: holding that the searehincidenttoalawfularrest rule does not apply to a warrantless search that provides the probable cause for the subsequent arrest because one cannot justify the arrest by the search and then simultaneously justify the search by the arrest 1: holding that reasoning which would justify the arrest by the search and at the same time justify the search by the arrest will not do 2: holding that while search incident to arrest could not justify search in that case probable cause plus exigency justified search 3: holding that consent searches do not require probable cause to justify the search of a home 4: holding that a lawful custodial arrest is a prerequisite to a search since the arrest is the authority of law justifying the search
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Notably, the rule prohibiting interlocutory appeals prevents the “delay and expense from fragmentary appeals” and “expedite^] the administration of justice.” See Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 828, (citing Shaver, 54 N.C. App. at 486, 283 S.E.2d at 526), disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984). Here, the Commission reserved both the issue of the extent of Mr. Thomas’s temporary disability, if any, after 13 November 2008 and the issue of his permanent partial disability for future resolution. Its Opinion and Award with respect to causation and temporary total disability compensation from October 2007 until November 2008 was clearly interlocutory. See Watts v. Hemlock Homes of Highlands, Inc., 160 N.C. App. 81, 84, 584 S.E.2d 97, 99 (2003) (<HOLDING>). While we certainly agree with the parties’ Holdings: 0: holding that the record supported the district courts award of damages 1: holding that where the commissions opinion and award had yet to determine the total amount of compensation and there was nothing in the record to indicate that the parties had resolved this issue independently since the commission entered its opinion and award that the appeal was clearly interlocutory 2: holding that an attorneys fees award is not appealable until the amount of the award is set 3: holding a medical opinion to be not significantly probative where the opinion was contrary to other substantial record evidence 4: holding that an appeal may be taken from an award of attorneys fees only after that award is independently final which means after the district judge had decided how much must be paid
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a criminal defendant had obtained independent DNA testing of physical evidence, but decided not to present the evidently unfavorable results at trial. When the prosecution subpoenaed the person who had conducted the tests to testify, the defendant moved to quash the subpoena, but the trial court denied the motion. On appeal to this Court, we determined that the work-product privilege barred the prosecution from presenting the testimony. We refused to allow the prosecution to present the expert’s testimony because the defense had reasonably expected discussions with, and investigations by, the expert to remain confidential, and the public interest behind the privilege would be undermined by overriding the privilege. See also Commonwealth v. Noll, 443 Pa.Super. 602, 662 A.2d 1123 (1995) (<HOLDING>). Consistent with Kennedy, we conclude here Holdings: 0: holding that the prosecution could not retain as a testifying expert for trial a nontestifying expert the defendant had previously retained 1: holding that public policy militates against a judge testifying as an expert witness for one of the parties 2: recognizing that the need for the expert was so great that the decision to preclude the expert effectively amounted to dismissal of case 3: holding that an expert that had provided consulting services to the defendant relating to the litigation was not precluded from serving as an expert for the plaintiff 4: holding that the plaintiff was entitled to recover reasonable expert fees for a rehabilitation expert and economist
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available exemptions as measured by the dollar amount of the exemption claim. Thus, “§ 522(f) entitles [the debtor] to avoid [the judgment] lien only to the extent of the ... homestead exemption” irrespective of the debtor’s equity interest in the property. Wrenn, 40 F.3d at 1166-67. Applying Wrenn to the ease before us, the Holloways can avoid John Hancock’s lien on their residence only to the extent of their homestead exemption. Because the Holloways’ claimed exemption was worth $0.00, they are not entitled to any lien avoidance. The Holloways contend that the Bankruptcy Reform Act of 1994 effectively overrules Wrenn, and that a judgment lien can be avoided to the extent that it impairs an exemption or exceeds the amount of equity in the property. See Thomsen, 181 B.R. at 1016-1017 (<HOLDING>). Although the 1994 amendments to the Holdings: 0: holding that the bankruptcy reform act effectively overruled wrenn 1: holding that almendareztorres was not overruled by apprendi 2: holding that the bankruptcy reform act of 1978 publ no 95598 92 stat 2549 precluded dismissal of cases pending before enactment of the reform act in order to refile under the act 3: holding that casey effectively overruled salerno 4: holding that lynch has been effectively overruled by subsequent cases
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waive” the alleged error). We discern no plain error. Viewed in context of the entire trial, see United States v. Christians, 200 F.3d 1124, 1128 (8th Cir.1999), it is not clear or obvious that the prosecutor was commenting indi rectly on Kieffer’s failure to testify. Kieffer was attempting to convince the jury that the Ninth Circuit’s decision to admit Kieffer to practice somehow relieved Kieffer of responsibility for his own deceitful conduct. In stating Kieffer was “not accepting ... responsibility,” the prosecutor apparently was rebutting Kieffer’s defense. The prosecutor probably was deflecting Kieffer’s attempt to shift blame, emphasizing the District of North Dakota’s attorney admission system was based on trust and the jury should not “lose sight of who is on trial.” Cf. id. (<HOLDING>). 3. Sufficiency of the Evidence Kieffer argues Holdings: 0: holding that prosecutorial misconduct was harmless in the face of overwhelming evidence of guilt 1: holding that prosecutors reference to the fact that not one white witness has produced contradictory evidence was plain error 2: holding the prosecutors statement there was no contradictory evidence to those facts was only a general observation about the strength and clarity of the governments evidence presented at trial and not grounds for plain error relief for alleged prosecutorial misconduct 3: holding that evidence consisting of the testimony of three witnesses who each had motives to lie was not overwhelming and that prosecutorial misconduct therefore was not harmless error 4: holding that if no evidence was presented to support the prevailing party there is no evidence upon which to apply the substantial evidence test and therefore the capricious disregard standard applies
|
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v. Ameritech Pub., Inc., 700 N.E.2d 1128, 1129 (Ind.1998). "[Ilt is in the best interest of the public not to restrict unnecessarily persons' freedom of contract." Id. (quoting Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind.1995)). Burkhart freely entered into this lease with Providence's predecessor. In fact, the lease is clearly Burkhart's own form lease. We conclude that the termination of a lease according to the parties' own provisions is not a taking of property. Given the termination of the lease pursuant to Provi-denece's proposed development of the property and our supreme court's opinion in Heslar, we conclude that Burkhart had no interest in the property compensable by the City. See also P.C. Management, Inc. v. Page Two, Inc., 573 N.E.2d 484, 439 (Ind.Ct.App.1991) (<HOLDING>). We acknowledge another clause in the lease, Holdings: 0: holding that 7403 requires compensation for every property interest that is taken in the process 1: holding that taxes are not private property that can be physically taken by the government 2: holding that a sublessee had no property interest taken by the city 3: holding that plaintiffs may have a property interest in real property 4: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city
|
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only be used sparingly in employment discrimination eases,” citing Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir.1990); Hillebrand, 827 F.2d at 364). Summary judgment is appropriate in such cases only in “those rare instances where there is no dispute of fact and where there exists only one conclusion.” Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir. 1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244). The court reasoned that “[bjecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.” Crawford, 37 F.3d at 1341 (<HOLDING>); Johnson, 931 F.2d at 1244. The Eighth Circuit Holdings: 0: holding that when there are no genuine issues of material fact summary judgment is appropriate 1: holding that unsupported allegations or denials are insufficient to create a genuine issue of material fact for purposes of summary judgment 2: holding that there was a genuine issue of material fact precluding summary judgment 3: holding that an eeoc reasonable cause determination letter did not constitute evidence precluding summary judgment when the other evidence was insufficient to create a genuine issue of material fact 4: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact
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custody affected a liberty interest because they constituted an “atypical and significant hardship [upon him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). As a result, Mr. Rios maintains, he could not be placed in maximum custody without some procedural protections. Mr. Rios also argues that prison officials violated his due process rights by reviewing his placement in maximum custody only once a year. Finally, Mr. Rios asserts that “administrative sentence credit” constitutes an appropriate request for relief in this § 2241 proceeding because he is barred from seeking monetary relief under the Feres doctrine. See generally Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (<HOLDING>); Walden v. Bartlett, 840 F.2d 771, 774 (10th Holdings: 0: holding that injuries covered by the act are not limited to external traumatic injuries 1: holding that victims injuries did not arise out of the use of a motor vehicle when the victim received injuries from a gun fired in the vehicle 2: holding that the govemment is not liable under the federal tort claims act for injuries to service members where the injuries arise out of or are in the course of activity incident to military service 3: holding that the united states is immune from monetary damages for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service 4: holding that where the claimants were servicemen injured or killed while on active duty due to the negligence of others in the armed forces they could not seek recovery under the ftca for injuries sustained that arose out of or were incident to their military service
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course of law.’ ” Hintz, 305 S.W.3d at 772 (quoting Tex. Const, art. I, § 13). “This provision, among other things, prohibits the Legislature from unreasonably restricting common law causes of action.” Id. (quoting Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995)). When challenging a statute as unconstitutional under the open courts provision, the plaintiff must first demonstrate that the statute restricts a well-recognized common law cause of action. Id. (citing Flores v. Law, 8 S.W.3d 785, 787 (Tex.App.-Houston [1st Dist.] 1999, pet.denied)); see also Thomas, 895 S.W.2d at 357. Because the open courts provision affects common law claims and not statutory claims, the provision does not apply to claims under the TTCA. Villasan, 166 S.W.3d at 766; see also Thomas, 895 S.W.2d at 357-58 (<HOLDING>); Hintz, 305 S.W.3d at 772-73 (holding current Holdings: 0: recognizing that the municipal function test is used to determine both whether municipalities are immune from suit and immune from running of statutes of limitations 1: recognizing that municipalities immunity from punitive damage awards under section 1983 does not render them immune from suit altogether 2: holding that since there was no common law cause of action for wrongful death the texas constitutions open courts provision did not bar limiting rights and remedies that were created exclusively by statute 3: recognizing a claim for civil liability against municipalities under 1983 4: holding predecessor to section 101106 did not violate open courts provision because ttca broadened rather than restricted an injured partys remedies because municipalities performing governmental functions were completely immune from liability under common law
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has jurisdiction to sua sponte impose a pre-filing injunction, and we believe that the rationale of that decision is equally applicable to a modification. Although Martin-Trigona and Brown imply that a district court may sua sponte modify an existing injunction to deter vexatious filings, they do not explicitly adopt this holding. Based on our precedent, we conclude that the exercise of this power is permitted by Rule 60(b)(5) of the Federal Rules of Civil Procedure. Rule 60(b)(5) states the following: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment [or] order [when] ... it is no longer equitable that the judgment should have prospective application.” See Agostini v. Felton, 521 U.S. 203, 215, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (<HOLDING>). The one-year limitation period applicable to Holdings: 0: holding preliminary injunction improper where it exceeded the relief sought and granted the same relief which would have been given in a final order of permanent injunction 1: holding that a significant change in decisional law will permit the district court in its sound discretion to prospectively modify a permanent injunction under rule 60b5 2: recognizing a permanent injunction as a means of ordering specific performance 3: holding that a party may obtain relief from a district courts permanent injunction pursuant to rule 60b5 4: holding that where a district courts preliminary injunction preventing the appellant from terminating its agreement with the defendant had expired the appellants appeal of the district courts decision to grant that injunction was moot
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appellate counsel’s performance was constitutionally deficient, we give special weight to the PCR court’s decision. Finally, the State’s case against Pfau did not hinge upon the Cyco evidence. As found by the trial court, Pfau’s appellate counsel, the PCR court, and the district court below, the State presented overwhelming evidence that Pfau planned and participated in the robbery. Although we conclude the Iowa Supreme Court decided the trial court did not erroneously admit the Cyco evidence, we also conclude, even if the trial court did erroneously admit this evidence, it constituted harmless error beyond a reasonable doubt, which means Pfau suffered no prejudice from his appellate counsel’s failure to cite Nance. See, e.g., Odem v. Hopkins, 382 F.3d 846, 851-52 (8th Cir.2004) (<HOLDING>); Bear Stops v. United States, 339 F.3d 777, Holdings: 0: holding stricklands prejudice prong was not met because of overwhelming evidence of guilt 1: holding that prejudice was not shown where there was overwhelming evidence of guilt 2: holding the error harmless in light of the overwhelming evidence of guilt 3: holding improperly admitted evidence was harmless error given the overwhelming evidence of guilt 4: holding that even if the error complained of was structural and affected substantial rights the fourth prong of olano was not met because of the overwhelming and essentially uncontroverted evidence of petitioners guilt
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bring his or her Tucker Act action in the Court of Federal Claims within six years of the date of discharge or retirement.”); Martinez, 333 F.3d at 1313 (“The cause of action in [the plaintiffs] Tucker Act suit was for the denial of money; that cause of action therefore accrued when he was separated from active duty and his monetary injury began.”); Adkins v. United States, 68 F.3d 1317, 1321 (Fed.Cir.1995) (noting that the plaintiff, a retired Army officer, was entitled to basic pay under 37 U.S.C. § 204 prior to his retirement, and holding that if the plaintiffs “discharge was voluntary and improper, [his] statutory right to pay was not extinguished, and thus serves as a basis for Tucker Act jurisdiction”); see also Brownfield v. United States, 589 F.2d 1035, 1038-40 (Ct.Cl.1978) (<HOLDING>); Coon v. United States, 30 Fed.Cl. 531, 540 Holdings: 0: holding former wifes cause of action accrued at the time of former husbands failure to pay her the portion of his retirement benefits to which she was entitled which was no earlier than the date of his actual retirement 1: holding that a plaintiffs 1983 claim accrued on the date of the alleged illegal search and seizure 2: holding that retirement benefit increases due to postdivorce promotion were separate property 3: holding that the cause of action accrued on the date of sale 4: holding that the plaintiffs claim that he was wrongfully denied a promotion prior to his retirement accrued on the date that he was finally denied that promotion the date of his retirement at the lower rank
|
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a duty to avoid negligent infliction of emotional distress, as the law recognizes and imposes a duty of care on many different types of relationships, not all of which necessarily implicate the emotional well-being of the parties. See Undertakings and Special Relationships, supra, at 49 & n. 1. (referring to relationships involving “(1) carrier-passenger, (2) innkeeper-guest, (3) invitor-invitee or possessor of land open to the public and one lawfully upon the premises; (4) employer-employee, (5) school-student, (6) landlord-tenant, and (7) custodian-ward”); Vassiliades, 492 A.2d at 591-92 (noting that fiduciaries have a duty to “scrupulously hon- or the trust and confidence reposed in them because” of fiduciary relationship); District of Columbia v. Royal, 465 A.2d 367, 369 (D.C.1983) (<HOLDING>); Smith v. Safeway Stores, Inc., 298 A.2d 214, Holdings: 0: recognizing the districts duty of care for the protection of school children in its schools 1: recognizing the schools custodial and tutelary responsibility for children in the fourth amendment context 2: holding that a school board policy prohibiting employees from sending their children to private schools interfered with employees constitutional right to control the education of their children 3: recognizing application of sovereign immunity to school districts 4: recognizing fundamental right of parents to care for their children
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“actual conflict” exists between the laws of jurisdictions with ties to a case, New Jersey applies the “most significant relationship” test set forth in the Restatement (Second) of Conflict of Laws. See Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir.2006); P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453, 459-60 (2008). As the District Court found, an actual conflict exists here: Michigan bars all variations of the claims asserted by the Grossbaums, see Mich. Comp. Laws Ann. § 600.2971, whereas the New Jersey and New York statutes of limitations for medical malpractice claims differ in both length and the date on which they begin to run, compare N.J. Stat. Ann. § 2A:14-2 (two-year statute of limitations), and Caravaggio v. D’Agostini, 166 N.J. 237, 765 A.2d 182, 189 (2001) (<HOLDING>), with N.Y.C.P.L.R. 214-a (30-month statute of Holdings: 0: holding that the statute of limitations begins to run on the date the alleged malpractice is discovered 1: holding that accrual date begins to run on the date the employee is notified unambiguously of the adverse employment action 2: holding that statute of limitations for malpractice begins to run when plaintiff knows or has reason to know of the alleged malpractice 3: 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 4: holding the sixyear limitations period begins to run upon date that payment is made
|
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the City in this case are not legally cognizable unless they are clearly waived by the TTCA See York, 871 S.W.2d at 177; Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). Plaintiff alleges assault and battery and intentional infliction of emotional distress—both intentional torts under Texas law. The TTCA provides that a municipality cannot be liable for any claims “arising out of assault, battery, false imprisonment, or any intentional tort_” Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2). A review of the summary judgment evidence submitted by Plaintiff reveals that his intentional tort allegations are not waived by the TTCA. Therefore, these claims are absolutely barred by sovereign immunity. See City of San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex.App.—San Antonio 1990, writ denied)(<HOLDING>); Townsend v. Memorial Medical Center, 529 Holdings: 0: holding that no waiver of municipal liability existed under the ttca where plaintiffs claims arose out of allegations of intentional torts including false arrest and excessive force 1: holding no liability existed under the circumstances 2: holding that excessive force claims are to be treated under the fourth amendment 3: recognizing that the fourth amendment protects against the use of excessive force by police officers in carrying out an arrest 4: holding that claims for false arrest and imprisonment under 1983 accrue at the time of the arrest
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inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.’ ” (Citation omitted.)). The Teamsters court recognized that a particularized showing of bad faith is required to justify the use of the court’s inherent power, and stated that we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color, and are taken for reasons of harassment or delay or for other improper purposes and a high degree of specificity in the factual findings of the lower courts. Id. (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.1986) (citations, internal brackets, and internal quotations marks omitted)); see also Kukui Nuts, 6 Haw.App. at 436, 726 P.2d at 272 (<HOLDING>). Although it is well-settled that “[a]n Holdings: 0: holding motion for attorneys fees was necessary predicate 1: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 2: holding that the court of appeals erred in modifying the judgment to include attorneys fees when the trial courts refusal to grant attorneys fees was not the subject of a point of error 3: holding that a necessary precedent to any sanction of attorneys fees under the courts inherent powers was the finding that the attorneys conduct constituted or was tantamount to bad faith citation omitted 4: holding that a finding of plaintiffs bad faith is not a prerequisite to the trial courts exercise of discretion to award fees
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the government to release to Stichting Mayflower and Olson-Neihart the deposit of just compensation that the government deposited into an escrow account. Mayflower, however, has failed to submit an application for fees With this court or the district court as required by the statute. See 28 U.S.C. § 2412(d)(1)(B) (“A party seeking an award of fees ... shall within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party ... the amount sought, including an itemized statement from any attorney or expert witness ... stating the actual time expended and the rate at which fees and other expenses were computed.”) (emphasis added); see also Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir.1990) (<HOLDING>). Consequently, we do not address Mayflower's Holdings: 0: holding that issue exhaustion is mandatory even if not a statutory jurisdictional requirement 1: holding that regulatory requirements are not jurisdictional in nature 2: holding that this time requirement is mandatory and jurisdictional 3: recognizing that the statutory requirement that a claimant under eaja file timely application for fees is jurisdictional in nature 4: recognizing that issue exhaustion is a mandatory although not jurisdictional requirement
|
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Corp., 282 Minn. 400, 165 N.W.2d 259, 261 (1969) (finding woman who, while in a department store dressing room, heard a noise like an explosion and witnessed the collapse of a wall, although she herself merely got dusty, to be within a zone of danger); Quill v. Trans World Airlines, Inc., 361 N.W.2d 438, 440 (Minn.Ct.App.1985) (determining that man who experienced a sudden 34,000-foot drop in elevation due to the out-of-control tailspin of the commercial aircraft in which he was a passenger was within a zone of danger). Masepohl has not alleged a single incident that could even remotely be construed as placing him in a zone of danger. The doctrine of negligent infliction of emotional distress simply does not cover the type of conduct that Masepohl asserts. Cf. K.A.C., 527 N.W.2d at 558 (<HOLDING>). As for Masepohl’s negligence claim, Masepohl Holdings: 0: holding statement that plaintiff was antisemitic not actionable 1: holding that defendant must have placed plaintiff in a situation where it was abundantly clear that plaintiff was in grave personal peril for some specifically defined period of time for negligent infliction claim to be actionable 2: holding that the plaintiff must have more than a unilateral expectation the plaintiff must have a legitimate claim of entitlement to the benefit 3: holding that for a plaintiff to recover on claim of negligent hiring the negligent hiring of the employee must have been the proximate cause of the injury at issue 4: recognizing that a plaintiff cannot recover for negligent infliction of emotional distress unless she has either witnessed or experienced a dangerous accident or experienced some actual physical peril
|
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we must then decide if that improper factor was significant enough to remand the cause for resentencing. Matters considered by the legislature in determining the authorized range of sentences which are inherent in the offense are not proper aggravating factors to be considered in a sentencing hearing. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) In Conover, the Illinois Supreme Court held that it was improper for a trial court to consider receipt of proceeds from a burglary or theft as an aggravating factor in determining the length of a sentence. Proceeds were an inherent part of the crime of burglary or theft and had already been considered by the legislature when it determined the range of penalties. (See also People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884 (<HOLDING>); People v. Saldivar (1986), 113 Ill. 2d 256, Holdings: 0: holding that the death of a victim may not be considered an aggravating factor in a homicide sentencing 1: recognizing that the governments failure to prevail is a factor that may be considered 2: recognizing attorneys substantial experience in the practice of law as an aggravating factor 3: holding that a sentencing judge sitting without a jury may not find an aggravating circumstance necessary for imposition of the death penalty 4: recognizing that the fear experienced by the victim before death is a significant factor in determining the existence of this aggravating circumstance
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a determination that Plaintiffs are actually innocent of the charges for which they were convicted. Against this need, Ryan claims an “executive communications privilege.” The court finds no federal authority for extending to a state governor the presidential communications privilege. Furthermore, Ryan has disclaimed reliance on the deliberative process privilege and has not followed the established procedures for asserting that privilege. Additionally, if there is some privilege Ryan might have asserted to maintain the confidentiality of his deliberations in exercising his state constitutional authority to issue pardons, he has waived that privilege. Privileges relating to governmental decisionmaking may be waived. See, e.g., Shell Oil Co. v. IRS, 772 F.Supp. 202, 209 (D.Del.1991) (<HOLDING>). However, such a waiver “should not be lightly Holdings: 0: holding that where an authorized disclosure is voluntarily made to a nonfederal party whether or not that disclosure is denominated confidential the government waives any claim that the information is exempt from disclosure under the deliberative process privilege 1: holding that the government must provide the party seeking disclosure with a detailed index describing the documents the government claims are exempt from disclosure under foia 2: holding that the disclosure is a public disclosure within the meaning of the fca if the the prior public disclosure contained enough information to enable the government to pursue an investigation against the defendant 3: holding that the inadvertent disclosure of a privileged document does not waive the attorneyclient privilege if attorney took all reasonable steps to avoid disclosure and asserted the privilege as soon as the disclosure became known 4: holding that a party waives the attorneyclient privilege when it voluntarily consents to the disclosure of any significant part of the communication in issue
|
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period. Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 215 F.R.D. 523, 528 (E.D.Tex.2003). Rule 23(b)(3) provides that a class may be certified if, among other requirements, “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The district court applied the correct legal standards, and we cannot say that it abused its discretion in denying class certification. A. Calculation of Damages The necessity of calculating damages on an individual basis, by itself, can be grounds for not certifying a class. Bell Atlantic, 339 F.3d at 308 (5th Cir.2003) (<HOLDING>); O’Sullivan v. Countrywide Home Loans, Inc., Holdings: 0: holding that the predominance requirement was satisfied where determination of each class members damages involved a straightforward calculation of which days and how many hours they worked as well as a review of the defendants written records keeping track of class members earnings 1: holding that putative class members are not parties to an action prior to class certification 2: holding that rule 23b2 calls for injunction as to all class members or to none of them and does not authorize class certification when each class member would be entitled to an individualized award of monetary damages 3: holding that the mere existence of individualized factual questions with respect to the class representatives claim will not bar class certification 4: holding that class certification is not appropriate because plaintiffs failed to demonstrate that the calculation of individualized actual economic damages if any suffered by the class members can be performed in accordance with the predominance requirement of rule 23b3
|
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where no promise to reeonvey). Under these authorities, the facts asserted by Clara would give rise to a constructive trust in the C.D. to her benefit. She makes a prima facie showing that "within the confidential relationship of husband and wife, she transferred property (the loan proceeds) in reliance on her husband’s agreement that the property acquired with the loan proceeds (the C.D.) was hers and his promise that the property would be reconveyed to her upon the maturity of the C.D. The government’s forfeiture forced a breach of that promise that may result in a potentially unjust enrichment of the government (and commensurate unjust impoverishment of Clara) if Clara is denied standing to contest the forfeiture. See United States v. Marx, 844 F.2d 1303, 1306-08 (7th Cir.1988) (<HOLDING>). Clara’s status as the apparent beneficiary of Holdings: 0: holding stock transfer restriction in corporate bylaws did not prevent levy against and sale of stock by third party in order to pay judgment 1: holding in forfeiture case that circumstances surrounding mothers conveyance of stock to her soninlaw were sufficient under wisconsin law to create constructive trust in stock in daughters favor where testimony showed such was intent of conveyance despite facts that stock registered in husbands name and that no documentation supported testimony 2: holding that shares of stock in husbands name had not been transmuted 3: holding that a spouse was bound by a conveyance of community property to which she was not a party because of her knowledge and acquiescence to the conveyance 4: holding that the transfer of stock in an insolvent corporation did not constitute fair consideration to support conveyance of property to its stockholder
|
[
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Ala. R.App. P. Slack v. Stream, 988 So.2d 516, 533-34 (Ala.2008). This court cannot cure that deficiency by creating legal arguments for the appellant, see Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992), because it is not the function of this court to perform an appellant’s legal research. City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). Disregarding those arguments the State fails to appropriately supp d in concluding that the agreement between the grandmother and the grandson regarding payment for the truck satisfied § 8-9-2, Ala.Code 1975, the Statute of Frauds. However, the State did not raise that argument before the trial court, and it cannot be raised for the first time on appeal. See Simmons v. Simmons, 99 So.3d 316, 323 (Ala.Civ.App.2011) (<HOLDING>). Based on the foregoing analysis, I would Holdings: 0: holding that a party waives an objection by failing to request a ruling on the admissibility of the evidence before the district court 1: holding that failure to file a postjudgment motion on alleged error of law relating to ruling on exception to the statute of frauds that was committed for first time in the judgment waives any objection to that ruling and that in the absence of any other formal objection the issue is not preserved for appellate review 2: holding that for error to be preserved on appeal with regard to admission of evidence in violation of a ruling on a motion in limine that the evidence is inadmissible an objection should be made at the time the evidence is offered 3: holding that to preserve an alleged error in the admission of evidence a timely objection must be made to the introduction of the evidence specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court 4: holding that the failure to obtain a ruling on a motion for new trial waives the issues raised for appellate review
|
[
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money is incapable of being ‘described or identified in the same manner as a specific chattel’ ..., it is not the proper subject of a conversion action.” Id. (internal citation omitted). In its conversion cause of action, Plaintiff alleges that Defendant’s “intentional unauthorized use of coins ... resulted in loss and damage to the City of Syracuse[.]” See Dkt. No. 22 at ¶ 182. Plaintiff does not specifically allege how much money was allegedly converted by Defendant and, in its prayer for relief, simply requests a “[j]udgment against defendant!] for compensatory [damages], in an amount to be determined at trial.” This conclusory allegation is insufficient to support a claim for conversion. See In re Bernard L. Madoff Inv. Securities LLC, 458 B.R. 87, 133 (Bkrtcy.S.D.N.Y.2011) (<HOLDING>). Moreover, Plaintiff fails to allege that Holdings: 0: holding prejudgment interest is to be determined on the entire amount of compensatory damages and then reduced by the amount of interest which would have accrued at present value on the settlement amount determined before trial 1: recognizing that an action will lie for conversion of money when its identification is possible and there is an obligation to deliver the specific money in question or otherwise particularly treat the specific money 2: holding that although the trial courts failure to determine amount of fees does not render underlying order nonfinal the fee award itself is not reviewable until the amount is determined 3: holding that new york law did not preclude an arbitrators award of punitive damages despite a new york choice of law provision because there was no indication in the contract that the parties intended to limit their remedies in arbitration 4: holding that because the complaint does not seek a specific amount of money converted from a particular account but rather an award of compensatory damages in an amount to be determined at trial it fails to state a claim for conversion under new york law
|
[
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[
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allow [the Court] to depart downward.” The court then went on to consider the government’s motion for an upward departure, a motion the court granted. In the final analysis, despite the government’s attempts to paint them as innocuous, the district court’s comments are pointed and reflect a belief that the court lacked discretion to depart downward. This, however, is error. In effect, the district court inverted the rule. The district court appeared to assume that, absent the Guidelines’ express reference to a particular factor, the court lacked authority to depart downward on that basis; the rule, however, is the opposite — unless the Guidelines specifically proscribe consideration of the factor, then the factor is to be considered. This rule was articulated plainly and (9th Cir.1996)(<HOLDING>). Clearly, then, because previous incarceration Holdings: 0: holding that defendants status as a deportable alien could be considered by the district court at sentencing 1: holding that deportable alien status is not a ground for departing downward 2: holding that the district court could consider increased sentence severity resulting from deportable alien status 3: recognizing that district court may take into account adverse impact on incarceration caused by status as deportable alien 4: holding that departure based on deportable alien status was prohibited
|
[
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[
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by the employees that day. Under the circumstances, we do not view the agents’ interviewing of employees who had been detained during the execution of a search warrant as acts taken in “flagrant disregard” of the terms of the search warrant. Therefore, the extreme remedy of blanket suppression of the documentary evidence covered by the terms of the warrant was not required and the distinct court properly denied Appellants’ motion to suppress on this basis. 3. For similar reasons, we reject Appellants’ alternative contention that the district court should have held an evidentiary hearing on the motion to suppress because there was a factual dispute as to whether the employees were forcibly detained and coercively questioned. Cf. United States v. Taylor, 13 F.3d 786, 789 (4th Cir.1994) (<HOLDING>). Appellants assert that they created a Holdings: 0: recognizing conflict 1: recognizing the conflict 2: holding that the court must consider the adequacy of the inquiry into the conflict the extent of the conflict and the timeliness of the motion 3: holding that when material facts that affect the resolution of a motion to suppress evidence seized during a warrantless search are in conflict the appropriate way to resolve the conflict is by holding an evidentiary hearing after which the district court will be in a position to make findings 4: recognizing an exception to the conflict rule where the conflict arose after the award of the contract
|
[
"0",
"2",
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[
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period at issue.” 5 So.3d at 1198. Cutler’s complaint, on the other hand, alleges that the tumor/lesion culminated in a legal injury on February 11, 2015, despite “an adverse beginning of the growth process within the four years following June 28, 2005.” (Emphasis added.) Based on this averment, the trial court concluded that, regardless of the date of the discovery of any injury, the statute of repose would have begun to run at the latest by June 28, 2009, and would have expired at the latest by June 28,2013. We agree. It is well settled that in medical-malpractice actions the legal injury occurs at the time of the negligent act or omission, regardless of whether the injury is or could be discovered within the statutory period. See, e.g., Ex parte Hodge, 153 So.3d 734 (Ala.2014)(<HOLDING>); Ex parte Sonnier, 707 So.2d 635 Holdings: 0: holding that limitations on an insureds claims of negligent procurement negligent misrepresentation and violations of the insurance code and deceptive trade practices act began to run when insured purchased life insurance coverage and the discovery rule did not apply because the nature of the injury was not inherently undiscoverable 1: holding that patient suffered actionable legal injury and period of repose began to run when physician left hemostat clamp in patients body regardless of when or to what extent the complications from the negligent act would be discovered 2: holding that statute of limitations began to run on patients medicalmalpractice action against surgeon after first operation during which surgeon failed to locate hernia even though full extent of patients injury was not known until second operation 3: holding that limitations began to run when the defendant began wrongfully discharging water containing harmful chemicals on the plaintiffs land and not on the date when the extent of the damages to the land were fully ascertainable 4: holding that period of limitations on a patients negligence cause of action began to run when the patient knew or had reason to know about the foreign object left in her body
|
[
"2",
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the Arbitration Agreement Under issue one, Mohamed argues the Auto Nation parties could not enforce the arbitration agreement because they were not signatories to the agreement and did not prove they were in privity with a signatory. The initial burden of the party seeking to compel arbitration-to establish the arbitration agreement’s existence-includes proving the entity seeking to enforce the arbitration agreement was a party to it or had the right to enforce the agreement notwithstanding. See Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 931 (Tex.App.-Houston [1st Dist.] 1996, no writ) (combined appeal & orig. proceeding); Texas Private Employment Ass’n v. Lyrir-Jay Int’l, Inc., 888 S.W.2d 529, 531, 532 (Tex.App.-Houston [1st Dist.] 1994, no writ) (op. & op. on reh’g) (<HOLDING>). The burden of showing one’s status as a party Holdings: 0: holding trial court must decide whether to compel arbitration of personal injury claim of party who was not signatory to arbitration agreement 1: holding association itself was not party to arbitration agreement set out in associations bylaws that required associations members to arbitration disputes among themselves 2: recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement 3: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added 4: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration
|
[
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in a contract that did not define the term). By its terms, section XVI prohibits an award of “attorney fees” or “costs and disbursements” to either party in an action for dissolution of their marriage. Husband does not contend that the expert witness fee was an “attorney fee.” Rather, husband argues that the fee was a “cost.” We turn to the meaning of that word as the parties used it in the broader term “costs and disbursements.” The parties do not suggest that the term “costs and disbursements” is ambiguous, nor did they adduce any evidence at trial regarding its intended meaning. However, the term has a well-established legal meaning in the context of the subject matter of section XVI, that is, dissolution actions. See O’Neal and O’Neal, 158 Or App 431, 433-35, 974 P2d 785 (1999) (<HOLDING>). ORCP 68 A(2) defines “costs and Holdings: 0: holding that orcp 68 defines costs and disbursements for purposes of dissolution actions 1: holding that no distinction exists between investigatory costs and onsite cleanup costs for purposes of recovery 2: holding that even though attorneys fees were not properly awardable under rule 68 costs excluding fees were mandatory 3: holding that costs and disbursements are a procedural element separate from the concept of just compensation under the minnesota constitution 4: holding that fees of witnesses for purposes of orcp 68 a2 means the statutory fee provided by ors 44415
|
[
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[
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official charged with detaining a federal prisoner in order to fraudulently obtain access to that prisoner. Simply stated, Hussein Addine Selmen is a federal prisoner regardless of whether he is detained directly by the Marshals Service or by a local official to whom the Marshals Service has properly delegated this responsibility. Access to him is therefore a federal issue within the jurisdiction of the Marshals Service. Accordingly, any false statement made in order to gain access to him falls within the scope of § 1001, which, as the Government correctly notes, hinges not on the person to whom the statement is made, but rather on whether the statement falls within the jurisdiction of a branch of the federal government. See Davis, 8 F.3d at 929; see also Gibson, 881 F.2d at 322 (<HOLDING>). Here, the statement clearly falls within the Holdings: 0: holding that federal rule of evidence 8034 the hearsay exception for statements made for medical diagnosis or treatment does not apply to statements made by doctors 1: holding that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable 2: holding that tjhere is no implicit requirement that the statements be made directly to or even be received by the federal department or agency in question 3: holding that the trial court properly refused to suppress statements made by defendant to the police on the ground that the interrogation resulting in those statements was not electronically recorded since there is no federal or state due process requirement that interrogations and confessions be electronically recorded 4: holding that a refusal to allow a question is an implicit ruling on a request to ask that question
|
[
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[
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decisions, judgments, orders, and decrees entered by district courts in appeals to them from bankruptcy courts. The bankruptcy court held that the interests of the permanent investors were not part of the bankrupt estate and that the notes, deeds of trust and their proceeds should be delivered to Fireman’s Fund; it reserved judgment, however, on the nature of the interests of revolving investors. As the interests of the revolving investors and other issues remain to be decided, we must determine whether the decision of the lower court is final within the meaning of § 158(d). The Supreme Court has adopted a practical rather than a technical construction of the requirement of “finality”. Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), (<HOLDING>). That a pragmatic approach to finality is Holdings: 0: holding that criminal history consisting of five misdemeanor convictions was at best marginally significant in determining sentence for class a felony 1: recognizing that the constitutional right to appeal must be given a practical construction 2: holding that appellate jurisdiction is limited to the issues contained in the certificate of appealability 3: holding that the practical effects of marginally final orders must be taken into account in determining appealability 4: holding that the totality of the circumstancesthe whole picturemust be taken into account
|
[
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[
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initial ability to determine its jurisdiction}.]”). Once the determination is made that a public employer and its labor relations system has grandfather status and that its collective bargaining system has not substantially changed after January 1, 2003, no other provision of the PEBA applies to that employer. Id. ¶ 6 (explaining that if the grandfather clause applies, “the PEBA does not apply”). And, if the public employer is not subject to the terms of the PEBA, then the PELRB has no jurisdiction to hear its complaints because the PELRB can only enforce the PEBA— it cannot enforce the LMRO. See § 10-7E-9(F) (noting that the PELRB “has the power to enforce provisions of the [PEBA]”); Regents of Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020, ¶ 4, 125 N.M. 401, 962 P.2d 1236 (<HOLDING>); Deming Firefighters Local 4521, Holdings: 0: recognizing that the peba created the pelrb whose function is the administration of the peba 1: recognizing a discretionary function exception to that waiver 2: holding that any error in the prosecutors misstatement of the gjrand jjurys function was cured when the judge in effect granted the objection and allowed the attorney to correctly articulate the grand jurys function 3: holding that imposition of punishment is a judicial function 4: holding the function of a public utility is controlling not how the term is defined
|
[
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[
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given that applying the Establishment Clause to all government actions that impede religion would render the Free Exercise Clause superflous, the Court will dismiss Plaintiffs’ Establishment Clause claim as it pertains to Defendants’ alleged attempts to impede Plaintiffs’ religion. However, Plaintiffs also allege the Defendants attempted to advance their own religious beliefs and to impose those beliefs on the Plaintiffs and their children by sharing their religious views with Plaintiffs’ children and forcing them to listen to “Christian music.” Complaint, ¶¶ 59, 66. These alleged actions have no apparent secular purpose and would have a primary effect of advancing Defendants’ religion. As such, these alleged actions would constitute violations of the Establishment Clause. Lemon, supra (<HOLDING>) Therefore, to the extent that Plaintiffs Holdings: 0: holding that a party held in prisons visiting room did not have the effect of advancing religion where it was dubbed a christmas party and some songs contained religious lyrics 1: holding that discrimination based on religion is subjected to strict scrutiny whether a claim arises under the establishment clause the free exercise clause of equal protection clause 2: holding that governmental actions violate the establishment clause if they have no secular purpose have a primary effect of advancing religion or foster excessive governmental entanglement with religion 3: recognizing a religious institutions right to free exercise of religion 4: holding no violation of federal establishment clause
|
[
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[
"2"
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this case. It states in part, “[w]hen property is damaged, the loss is the cost of repairs, not to exceed the loss had the property been destroyed.” The district court calculated the cost of repairs based upon the bank’s standard hourly rate for its employees’ time, computer time, and administrative overhead-the same rate that the bank uses in charging paying customers. Sabían complains that this was improper because of the profit margin and administrative overhead that is built into these charges. However, had the bank hired an outside contractor to make the repairs these factors would have been built into the charges. Similarly, had it not been necessary for the bank to devote its employees’ time and computer time to making these repairs, the administrative overhead (11th Cir.1993) (<HOLDING>). However, we need not consider this matter in Holdings: 0: holding that plaintiffs consequential damages were too speculative because no evidence connected damages to defendants breach of contract 1: holding that provision barring recovery of consequential damages did not necessarily bar all loss of use damages but damages for loss of use of money were consequential 2: holding that foreseeable consequential damages are to be considered in valuing loss 3: holding that 1603a cannot be fairly interpreted as mandating consequential damages 4: holding that consequential damages are not to be considered
|
[
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court to reverse a criminal conviction obtained in an otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). We “must consider the probable effect the prosecutor’s [comments] would have on the jury’s ability to judge the evidence fairly,” “within the context of the trial.” Id. at 12, 105 S.Ct. 1038. a. Barragan, Franco, and Gutierrez An “important factor contributing to the prejudicial effect of improper statements is the strength of the case against a defendant.” Sanchez, 659 F.3d at 1260 (quoting Weather spoon, 410 F.3d at 1151). The evidence against Barragan, Franco, and Gutierrez was overwhelming, and they do not argue otherwise. Thus, we conclude that the prosecutor’s remarks did not prejudice them. See Nobari, 574 F.3d at 1082 (<HOLDING>). b. Fernandez The evidence against Fernandez Holdings: 0: holding that the admission of a family photo was harmless error in light of the overwhelming evidence in support of the conviction 1: holding that while the prosecutors question was improper in light of the overwhelming evidence there was no reversible error in the denial of defendants motion for mistrial 2: holding the error harmless in light of the overwhelming evidence of guilt 3: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 4: holding that prosecutors remarks were harmless in light of overwhelming evidence against defendants
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(same). If the direct evidence approach can ever supplant the market definition approach in a § 2 context, it can only do so where a reasonable juror could find the evidence conclusive as to why Defendants’ prices were higher. Geneva Pharmaceuticals, 386 F.3d 485, 500 (“where direct evidence is unavailable or inconclusive, as here, monopoly power may be inferred from” the market definition approach); Blue Cross & Blue Shield v. Marshfield Clinic, 65 F.3d 1406, 1411-12 (7th Cir.1995) (“a reasonable finder of fact cannot infer monopoly power just from higher prices — the difference may reflect a higher quality more costly to provide — and it is always treacherous to try to infer monopoly power from a high rate of return”); Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir.1997) (<HOLDING>). The Plaintiffs’ one-track focus on the price Holdings: 0: holding that to pose a threat to monopolization one firm alone must have the power to control market output and exclude competition 1: holding that high prices with no showing of restricted output failed to establish monopoly power 2: holding that a plaintiff claiming monopolization is obligated to establish the relevant market because the power to control prices or exclude competition only makes sense with reference to a particular market 3: holding police power is restricted by constitutional bill of rights 4: holding that unless that power is restricted by the principal an agent under a california statutory healthcare power of attorney has the power to execute applicable admission forms including arbitration agreements
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a double discipline issue. Am. Nat’l Can Co. v. United Steelworkers of Am., 120 F.3d 886, 890 (8th Cir.1997). The court finds no valid basis to distinguish this case from the Rice matter. Although Henderson purported to rely on factual differences between Rice and this case, he did not explain how those differences would justify a different result. Nor did Henderson explain why the well-recognized bar against retroactivity did not apply to Peterson. Even leaving the Rice decision aside, it is not seriously contested that the Commissioner understood he was constrained to apply the New Policy prospectively. See NFLPA Ex. 119, at 7; id. Ex. 35, at 101:12-13, 99:21-100:15; see also United Transp. Union, Local Lodge No. 31 v. St. Paul, Union Depot Co., 434 F.2d 220, 222 (8th Cir.1970) (<HOLDING>). Henderson simply disregarded the law of the Holdings: 0: recognizing that the law of the shop includes the understanding of the parties 1: holding that the possibility of a mistaken understanding of the phrase preponderance of the evidence on the part of the jury is too remote to constitute plain error when counsel gave the jury an accurate explanation of the legal meaning of the phrase in his closing argument and that meaning is consistent with the common understanding of the words in the phrase 2: holding that whether impasse exists rests upon factintensive inquiry into the bargaining history the good faith of the negotiating parties the length of negotiations the importance of the issues about which there is disagreement and the contemporaneous understanding of the parties as to the state of negotiations 3: holding that a contract was fully integrated where it stated that it contained the parties entire understanding was not ambiguous covered the disputed subject matter and conveyed no suggestion that anything beyond the four corners of the writing was necessary in order to ascertain the intent of the parties 4: recognizing that context under the pge analysis includes the preexisting common law and statutory framework within which the law was enacted
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