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Denny’s employees ignored her requests that they do so. Gray adduced testimonial evidence that the events at issue occurred during the so called “bar rush” that followed the closing of local bars, a time when customers coming to Denny’s were frequently loud and profane. See Pl.’s Rule 56.1 Statement ¶ 57(c), (e). Gray further adduced evidence that Denny’s internal policies recognized profane language as “work place violence.” She also submitted police reports of work place violence involving actual physical assaults occurring in the year preceding her assault. Denny’s submits that such records cannot defeat summary judgment because they are inadmissible hearsay. The argument fails only one, instance of customer assault. See Kazanoff v. United States, 945 F.2d 32, 39 (2d Cir.1991) (<HOLDING>); Davis v. City of New York, 183 A.D.2d 683, Holdings: 0: holding evidence of one possible burglary before incident at issue insufficient to demonstrate prior criminal activity 1: holding that possession of burglary tools is an offense separate from burglary 2: holding that a threeyear gap was insufficient to demonstrate staleness where the criminal activity was ongoing 3: holding that iowa burglary is not categorical burglary as the elements of iowa burglary law are broader than those of generic burglary 4: holding that virginia burglary statute comes within definition of generic burglary
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over personal-injury suits before its termination, concluded that, in drafting ICCTA, Congress was “primarily concerned with transferring the resolution of commercial disputes from the ICC to the courts.” Stewart, 241 F.Supp.2d at 1221 (emphasis added) (citing H.R.Rep. No. 104-311, at 86, 87, reprinted in 1995-2 U.S.C.C.A.N. at 798-99, as indicating that the ICC was responsible for claims for the loss and damage of goods). The Stewart court stated that it was taking the Eighth Circuit’s analysis in Owner-Operator “a step further” by holding that “[sjection 14704(a)(2) creates a private right of action for damages in commercial disputes involving violations of the Motor Carrier Act and its regulations, but not for personal injury actions.” Id.; see also Owner-Operator, 192 F.3d at 785 (<HOLDING>). In Schramm, a case involving an accident Holdings: 0: recognizing that no private right of action exists for subsection a violations 1: holding that 1132a3b authorizes the award of appropriate equitable relief to a beneficiary for violations of erisa 2: holding that section 14704a authorizes private actions for damages to remedy at least some violations of the motor carrier act 3: holding that section 303i2b expressly authorizes a stand alone award of punitive damages 4: holding that section 14704a2 authorizes private action for damages and injunctive relief to remedy at least some violations of the motor carrier act and its implementing regulations
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Stults v. Conoco, Inc., 76 F.3d at 656; Garcia v. Elf Atochem North America, 28 F.3d 446, 449 (5th Cir.1994); Slaughter v. Southern Talc Co., 949 F.2d at 170; Fields v. City of South Houston, Texas, 922 F.2d at 1187; Meyers v. M/V Eugenio C, 919 F.2d at 1072; Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d at 178; and Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). 47 . See Celotex Corp. v. Catr olding that a nonmovant cannot discharge his burden with some metaphysical doubt as to the material facts, by conclusoiy allegations, unsubstantiated assertions, or by only a scintilla of evidence); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994), cert. denied sub nom. Forsyth v. Vines, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994) (<HOLDING>); Resolution Trust Corporation v. Camp, 965 Holdings: 0: holding that securities fraud claims cannot rest on speculation and conclusory allegations 1: holding that summary judgment is appropriate where the nonmovant rests merely upon conclusory allegations improbable inferences and unsupported speculation 2: holding affidavits based on conclusory allegations insufficient at summary judgment 3: holding that summary judgment was appropriate when no reasonable factfinder could have found for the nonmovant 4: holding speculation insufficient to avoid summary judgment
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any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, including evi-dentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendati 69-70 (6th Cir.1993) (<HOLDING>); Bennett v. General Caster Serv., 976 F.2d Holdings: 0: holding an interlocutory appeal is allowed from the trial courts written order denying a motion to dismiss under the tcpa 1: holding that a motion for rule 11 sanctions is dispositive 2: holding that a magistrate judge acting pursuant to 636b1 has no authority to issue a dispositive ruling on a motion to certify a district court order for interlocutory appeal under 28 usc 1292b 2000 3: holding an order denying a motion for summary judgment is interlocutory and not appealable 4: holding that a motion to certify a district court order for interlocutory appeal is dispositive
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¶ 11 Father next argues the family court’s findings are inadequate to satisfy the requirements of A.R.S. § 25-403(B). In making a custody determination, the court must consider the factors enumerated in A.R.S. § 25-403(A) regarding the children’s best interests. Further, A.R.S. § 25-403(B) requires that, “[i]n a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child[ren].” (Emphasis added.) ¶ 12 In Diezsi, this court held that it was an abuse of discretion for the lower court to fail to make the requisite findings pursuant to § 25-403. 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. See also Owen v. Blackhawk, 206 Ariz. 418, 421-22, ¶ 12, 79 P.3d 667, 670-71 (App. 2003) (<HOLDING>); Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 19, Holdings: 0: holding that the family court abused its discretion in changing the primary residential parent and altering the parenting time schedule without making the required findings on the record in a contested custody case brought under the relocation statute ars 25408 1: holding district court abused its discretion in admitting state court findings of fact 2: holding that the lower courts findings were insufficient as a matter of law and remanding for the court to make the findings required under ars 25403 3: holding the trial court did not abuse its discretion in finding the best interest of the children require the continuation of primary physical custody with defendant and secondary custody with plaintiff and the trial court failed to make sufficient findings of fact and conclusions of law for this court to determine whether the guidelines were followed 4: holding that the trial court did not abuse its discretion in changing the surname of the child where the court made factual findings that the name change would be in the best interest of the child
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whether the DOC’s policies requiring all of the ISC’s commitments to undergo a visual strip and body cavity search comports with the Fourth Amendment’s prohibition against unreasonable searches. Upon careful review of the stipulated facts and relevant policies, the Court finds those policies to be unconstitutional. Any analysis of the policies in issue necessarily begins with Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In that case, the Supreme Court of the United States considered whether a policy requiring pretrial detainees at a federal detention facility to expose their body cavities to visual inspection after contact visits with persons outside the institution was constitutional. Id. at 558, 99 S.Ct. 1861. In holding that the policy did not (7th Cir.1983)(<HOLDING>); Logan v. Shealy, 660 F.2d 1007 (4th Holdings: 0: holding a visual strip and visual cavity search unreasonable when done beside a police car 1: holding that prison officials may conduct visual body cavity searches in a reasonable manner 2: holding probable cause to be required for strip and visual body cavity searches 3: holding unconstitutional city policy of subjecting all females arrested and detained to strip and visual body cavity searches 4: holding unconstitutional blanket jail policy of subjecting all arrestees to strip and visual body cavity searches
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language, ... or makes an obscene gesture; d. Obstructs vehicular or pedestrian traffic or the use of a public facility; g. Creates á hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or h. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. In City of Bismarck v. Nassif, 449 N.W.2d 789, 794-95 (N.D.1989), this Court upheld a disorderly conduct conviction based on the defendant’s use of “fighting words” likely to provoke violent reaction where the jury could have reasonably found bystanders in a public place heard the defendant make threatening statements from his private property tr.2d 837, 839 (1992) (<HOLDING>); City of Dodge City v. Hadley, 262 Kan. 234, Holdings: 0: holding limited investigative detention of defendant was justified where officer investigated a report that a panhandler at a drugstore had been creating a disturbance potentially implicating a violation of the disorderly conduct statute and defendant matched the description of the suspect 1: holding officer had reasonable suspicion of criminal activity necessary to support traffic stop where officer received dispatch that defendant committed disorderly conduct and record check showed parked truck was registered to defendant 2: holding investigative detention occurred when officer after initial inquiry exited vehicle and approached defendant because officer chose to escalate the encounter to afford greater investigation which of course is consistent with the purpose of an investigative detention 3: holding traffic stop was legal where eyewitness told officer defendant kicked over parking sign and officer observed defendant yelling and gesturing in parking lot officer had at least reasonable grounds to suspect defendant of having committed disorderly conduct 4: holding police officers show of authority by announcing he was a police officer and ordering defendant to stop was an investigative seizure implicating fourth amendment protections
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in the regulation of interstate commerce in order to prevent unjust discrimination. Id. at 97, 35 S.Ct. 494. Thus, even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. See AT & T Co., 524 U.S. at 222, 118 S.Ct. 1956 (citing Kansas City Southern R. Co. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 57 L.Ed. 683 (1913)). i. The filed-tariff doctrine bars courts from hearing challenges to duly filed rates In addition, and of moment in this case, the filed-tariff doctrine bars eourts from hearing any challenge to duty filed rates. See, e.g., Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251-52, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (<HOLDING>); Fax Telecomm. Inc., 138 F.3d at 489 (by Holdings: 0: holding that once a rate is filed with the appropriate agency except for review of the agencys orders the courts can assume no right to a different rate on that ground that in its opinion it is the only or the more reasonable rate 1: holding that the proper rate for prejudgment interest is the rate fixed by the parties in a contract 2: holding that the petitioner can claim no rate as a legal right other than the filed rate whether fixed or merely accepted by the agency commission 3: holding that under the filed rate doctrine a question regarding reasonable rates should be addressed to the department of insurance and that the rate plaintiff was charged is conclusively presumed reasonable under the filed rate doctrine 4: holding that a utility can claim no rate as a legal right that is other than the filed rate whether fixed or merely accepted by the commission
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those at issue here, together with wages, remunerate employees for services rendered. — U.S. at -,---, 126 S.Ct. at 2109, 2111-2112. If the contributions at issue are in respect of employees’ services that were rendered prepetition, as here, under the plain meaning of Bankruptcy Code section 503(b)(A) and the rationale of the foregoing decisions, the claim for such contributions cannot be accorded priority status under Bankruptcy Code sections 503(b)(1)(A) and 507(a)(1). McFarlin’s, 789 F.2d at 101-102. All of the authorities cited by the Trustees for a contrary reading of sections 503(b) and 507(a) are from courts outside the Second Circuit or construe a different section of the Bankruptcy Code, section 507(a)(4). See, e.g., In re Braniff, Inc., 218 B.R. 628, 631 (Bankr.M.D.Fla.1998) (<HOLDING>); accord, Ivey v. Great West Life & Annuity Holdings: 0: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 1: holding that if an insurer denies coverage based on an assertion that the underlying claim is excluded from coverage there is a presumption that the insurer did not suffer prejudice because prompt notice would have merely resulted in an earlier denial of coverage 2: holding that the employer created an erisa plan when it 1 paid for the employees insurance 2 contracted with the insurance company for coverage and eligibility requirements and 3 collected and remitted the employees dependents premiums 3: holding that under bankruptcy code section 507a4 the services were an insurers provision of health insurance coverage for employees during the 180day period immediately before the petition date rather than the earlier labor by the employees on which such coverage was based 4: holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed
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we are not compelled by either logic or existing precedent to accept that proposition. As explained below, if the jury found, as it could, that Officer Wyatt was in the passenger seat of a slowly rolling vehicle, it could conclude that he did not face an immediate threat to safety sufficient to justify the immediate use of deadly force. Our decision simply identifies a disputed issue of material fact. If, as Chief Judge Kozinski's dissent bemoans, that gives plaintiffs "a bludgeon with which to extort a hefty settlement,” id., it will only be because the defendants are concerned that a jury might not view the evidence as the dissent does. 3 . The constitutional standard for using force less than deadly force is lower. See Gregory v. County of Maui, 523 F.3d 1103, 1106-07 (9th Cir.2008) (<HOLDING>). Because it is undisputed that Gonzalez did Holdings: 0: holding that an officers single use of a taser was reasonable where used to subdue an arrestee who had failed to accede to repeated police commands to stop his retreat into his home 1: holding that where the plaintiffs evidence supported a finding that the defendants had applied force to restrain him the jury must determine not only whether the officers were justified in using force at all but if so whether the degree of force actually used was reasonable 2: holding that officers had substantial grounds for believing that some degree of force was necessary where suspect was possibly under the influence of drugs acting bizarrely trespassing and refusing repeated commands to drop a pen 3: holding that the decision of a police officer to preserve public safety and order through use of commands backed by threat of force or actual use of physical force is a matter of discretion 4: holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot
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financial aspects of drug trafficking and his professional opinion that drug traffickers keep financial records at their homes. In addition, the affidavit provided information obtained from reliable cooperating witnesses and electric company records. This information was sufficient for the issuance of the search warrant in this case. See United States v. Jones, 159 F.3d 969, 975 (6th Cir.1998) (stating that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live”). b. Particularity The Blairs also argue that the federal search warrant was overbroad in that it lacked particularity as to the items to be seized. Because the Blairs failed to make this argument to the district court, it is waived. See United States v. Critton, 43 F.3d 1089, 1094 (6th Cir.1995) (<HOLDING>). Even if the Blairs’ argument were properly Holdings: 0: holding that where plaintiff fails to raise issue of timeliness of departments hearing at administrative level the issue is waived on appeal 1: holding that by fading to timely raise the issue before the trial court the defendant had waived the right to raise the issue on appeal that the trial court failed to consider less severe sanctions 2: holding defendants argument the court erroneously denied his motion to suppress was reviewable as a constitutional issue even though defendant failed to raise the issue in a written posttrial motion 3: holding that a defendant who fails to raise a specific issue as the basis for suppression in a motion to suppress to the district court has waived the right to raise that issue on appeal 4: holding that there was no good cause to raise an untimely suppression issue where the defendant could have with due diligence discovered the information necessary to timely raise the issue
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with the majority of circuits that have concluded St. Cyr does not apply to aliens who challenged their aggravated felony convictions by exercising their right to jury trial. We conclude that just as foregoing or exercising a right to jury trial can demonstrate objectively reasonable reliance, those who proceed to trial but forgo their right to appeal have suffered impermissible retroactive effects under IIRIRA § 304(b). Following the Supreme Court’s analysis in St. Cyr, the Third, Fourth, and Sixth Circuits have held that determining whether a statute has retroactive effects does not entail an inquiry into litigants’ actual subjective reliance on prior law, but rather, a review of what reasonable litigants would consider in a given situation. See, e.g., Olatunji, 387 F.3d at 396 (<HOLDING>); Thaqi v. Jenifer, 377 F.3d 500, 504 n. 2 (6th Holdings: 0: holding in the context of a non 212c iirira retroactivity challenge that if reliance were required we would insist at most upon objectively reasonable reliance and not subjective reliance 1: holding that each class member was not required to prove justifiable reliance when an inference of reliance arises if a materially false representation was made to persons whose acts thereafter were consistent with reliance upon the representations 2: holding that direct reliance was not shown where plaintiffs relied on third partys actions which were in turn undertaken in reliance on alleged misrepresentation by defendant 3: holding that reasonable reliance is not an element of the defense 4: holding suppression of evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant is not required
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in which we held that the BIA erred because it made “no pronouncement on the credibility of Dial-lo’s underlying testimony or of his explanations for the lack of additional corroborating evidence,” the IJ here made clear that he found Ebid’s testimony not credible because he knowingly relied on a fraudulent document that he did not reveal to be fraudulent until after a government investigation. We thus have no difficulty in reviewing the IJ’s determination with respect to Ebid’s credibility. Nor do we find error in the IJ’s dismissal of Ebid’s explanation that he submitted the fraudulent letter because a friend had told him that it was necessary to have corroboration. In contrast to circumstances in which an applicant uses a false document under duress, see, e.g., Lin, 445 F.3d at 132, (<HOLDING>), this explanation does not undermine the IJ’s Holdings: 0: holding that substantial evidence supported an adverse credibility finding where the petitioners two asylum applications differed significantly regarding past persecution 1: holding that the use of a fraudulent document to escape persecution does not undermine a petitioners credibility in asylum proceedings 2: holding that omissions in petitioners asylum application which go to the heart of the claim support adverse credibility finding 3: holding that an adverse credibility determination is sufficient to deny asylum 4: holding that substantial evidence supported an adverse credibility finding where inter alia the petitioners claimed guerrilla persecution on their asylum applications but later claimed government persecution
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would not be applicable to him during the entire period w e facts is consistent with the text of the regulation, with precedent, and with the policy underlying the administration of the salary basis test of “avoiding] the imposition of massive and unanticipated overtime liability.” Auer, 519 U.S. at 461, 117 S.Ct. 905. AFFIRMED. 1 . Initially, plaintiffs claimed the City had imposed a total of four improper suspensions without pay. Two of the four, however, were permissible week-long Monday-to-Friday suspensions, and are, therefore, not relevant to whether the City had a practice of improper deductions. See 29 C.F.R. § 541.118(a) (1998) ("[A]n employee need not be paid for any workweek in which he performs no work.”); Childers v. City of Eugene, 120 F.3d 944, 946 n. 2 (9th Cir.1997) (<HOLDING>). 2 . Plaintiffs contend that their position is Holdings: 0: holding weeklong suspensions do not violate the flsa 1: holding that the flsa does not preempt a state law contractual claim that seeks to recover wages for time that is compensable under the contract but not under the flsa 2: holding that the flsa preempted plaintiffs fraud claim 3: holding under flsa 4: holding that the flsa does not preempt state law contract provisions that are more generous than the flsa demands
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we must affirm the circuit court. By the Court. — Judgment affirmed. 1 Generally, a defendant who pleads guilty waives all non-jurisdictional defects and defenses. See County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). However, Wis. Stat. § 971.31(10) (2011-12) creates an exception to this rule, allowing appellate review of an order denying a motion to suppress evidence, notwithstanding a guilty plea. Smith, 122 Wis. 2d at 434-35. All references to the Wisconsin Statutes are to the 2011-12 version. 2 While Scull originally filed his notice of appeal in December 2011, our decision in this case has been delayed by the United States Supreme Court's decision in Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409 (2013), and our subsequent request tha Cir. 1997) (<HOLDING>); United States v. Broadway, 580 F. Supp. 2d Holdings: 0: holding that canine sniff not a search under the fourth amendment 1: holding that a trained dogs detection of odor in a common corridor of a hotel does not contravene the fourth amendment and that the information developed from such a sniff may properly be used to support a search warrant affidavit 2: holding that a canine sniff is a search for purposes of the fourth amendment 3: holding that a dog sniff of the area outside the door of a hotel room is not a search under the fourth amendment or the texas constitution because the dogs sniff does not explore the details of the hotel room and the sniff reveals nothing about the room other than the presence of cocaine in which there is no legitimate privacy interest 4: holding that the fourth amendment requires that a defendant be allowed an opportunity to challenge the veracity of an affidavit supporting a search warrant
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Marat Ginayatovich Umarov, a native and citizen of Russia, petitions for review of the Board of Immigration Appeals’ order denying his motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo questions of law, including claims of ineffective assistance of counsel. Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir.2008). We deny the petition for review. Umarov’s contention that an acquaintance whom he knew not to be a lawyer provided him with ineffective assistance of counsel is foreclosed by Hernandez, 524 F.3d at 1020 (<HOLDING>). His due process contention therefore fails. Holdings: 0: recognizing a constitutional claim for ineffective assistance of counsel 1: holding that knowing reliance upon the advice of a nonattorney cannot support a claim for ineffective assistance of counsel in a removal proceeding 2: holding that ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if and to the extent that the proceeding is thereby rendered fundamentally unfair 3: recognizing claim of ineffective assistance of trial counsel usually must be raised in collateral proceeding 4: holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate
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issues, that he has ADHD and depression, for which he must be medicated, that he has speech problems requiring therapy, and that he has made several outcries of sexual assault. Given the circumstances of both Appellant and the child, and based on the applicable standard of review, we hold that the evidence is factually sufficient to support the finding that Appellant engaged in conduct that endangered AJ.H.’s well-being. We overrule the fourth issue and do not reach the remaining issues. We note that Appellant has not challenged the best interest finding. Having disposed of Appellant’s six issues, we affirm the trial court’s order of termination. 1 . Tex. Fam.Code Ann. § 263.405(1) (Vernon Supp.2006). 2 . Id.; see also In re D.A.R., 201 S.W.3d 229 (Tex.App., 2006, no pet. h.) (<HOLDING>). 3 . See House Comm. On Juvenile Justice and Holdings: 0: holding failure to raise issue in statement of points does not forfeit it on appeal 1: holding statement of points in notice of appeal sufficient 2: holding that section 263405i bars this court from considering issues not appearing in a timelyfiled statement of points 3: holding failure to file statement of points is no bar to appeal 4: holding failure to timely file statement of points does not forfeit issues on appeal
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(615 SE2d 540) (2005) (noting that in the absence of a transcript, appellate court “must presume that the evidence supports the judge’s findings”); Portee v. State of Ga., 277 Ga. App. 536, 537 (1) (a) (627 SE2d 63) (2006) (“[W]hen a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed.”) (citation and punctuation omitted). 11 Murray v. Hooks, 313 Ga. App. 485 (722 SE2d 82) (2012), citing Nodvin v. State Bar of Ga., 273 Ga. 559, 560 (3) (544 SE2d 142) (2001). 12 See Portee, supra at 539 (5) (assertions that lacked an evidentiary basis demonstrated no reversible error); In the Interest of F. L. S., 232 Ga. App. 100, 101 (502 SE2d 256) (1998) (<HOLDING>); Baugh v. Robinson, 179 Ga. App. 571, 572 (346 Holdings: 0: holding due process claim failed because plaintiff failed to explain how confrontation and crossexamination would have changed the outcome of his hearing 1: holding that partys failure to specify how his presence would have been of assistance at the hearing precluded the requisite showing of harm 2: holding that a violation of a defendants constitutional right to compulsory process requires at a minimum some plausible showing of how the excluded testimony would have been both material and favorable to his defense 3: holding that petitioners have not established the requisite need of the highest order 4: holding that for an ineffective assistance of counsel claim to be established a defendant must show that but for counsels error the outcome of his proceedings would have been different
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Valley, which the circuit court granted prior to ruling on the motion. In our review of the record, it is clear that Mr. Valley’s deposition reinforced and further supported the existence of Union Pacific's facts, and there was no contrary evidence in the record. 7 . The version of 49 C.F.R. 232.103(n) in effect in 2007, at the time of Johnson’s accident, includes the language “on a grade.” However, this phrase was later removed by an amendment in 2015. 80 Fed. Reg. 47350-01 (published August 6, 2015). While Johnson attached to his brief a copy of the later regulation omitting this phrase, our analysis rests on the version of the regulation that was in force at the time of the accident, in 2007. See Damon v. Grand Trunk W. R.R., No. 2:05CV60, 2006 WL 2699736 (N.D. Ind. Sept. 19, 2006) Holdings: 0: holding that the equitable tolling doctrine applies to the 90day period provided in 8 cfr 323bl2000 for filing motions to reopen based on new facts 1: holding that fourteenth amendment only applies to state action 2: holding that the fourteenth amendment only applies to state action 3: holding that defendant is free to claim protections of 49 cfr 39123l and west virginia common law privilege for former employer reports to prospective employers 4: holding that 49 cfr 232103n only applies to unattended equipment left on a grade
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Life Ins. Co. v. Glenn, — U.S. -, 128 S.Ct. 2343, 2350, 171 L.Ed.2d 299 (2008) (explaining that when a plan administrator both appraises and pays benefits claims, the resulting conflict of interest must be weighed in determining “whether there is an abuse of discretion”). But because this case is properly decided on a contractual time bar, whether the circuits might have differed on the merits is beside the point Affirmed. 1 . ERISA is the acronym for Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a)(l)(B)(2006), the federal statute comprehensively governing employee health and pension plans and providing federal remedies and a federal forum for wrongful denial of.benefits. 2 . See State Street Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir.2001) (<HOLDING>) (internal citations and quotation marks Holdings: 0: holding that the time within which suit may be brought after disallowance of a claim by irs is not controlled by a statute of limitation as generally understood but on conditions under which the united states has consented to be sued 1: holding that limitation period begins to run at the time of the breach 2: holding that limitations provision of section 1821d14 of firrea is applicable to suit on note brought by fdics assignee preempts state fouryear limitations period and extends limitation period to six years 3: holding that an earlier version of 11707 was not intended to operate as a statute of limitation but rather was meant to restrict the freedom of carriers to fix the period within which suit could be brought 4: recognizing that under illinois law parties are free to contract for a time period within which a suit may be brought which is less than the general statute of limitation period applicable to written contracts
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LLC In its motion to dismiss, Culver challenges the sufficiency of the allegations in the corporate plaintiffs’ complaint to support a § 1981 claim. Relying on out-of-district precedent, Culver argues that their allegations lack sufficient factual specificity demonstrating that race was the reason for its actions. At the outset, the Court notes that the corporate plaintiffs who were the parties to the franchise agreements with Culver have standing to bring a § 1981 claim here. See Amber Pyramid, Inc. v. Buffington Harbor Riverboats, L.L.C., 129 Fed.Appx. 292, 294 (7th Cir.2005) (allowing corporation owned by two African-American shareholders to maintain § 1981 suit) (citing cases); see also Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir.2004) (<HOLDING>). Here, the corporate entities are each Holdings: 0: holding unequivocally that 1981 protects against racial discrimination in private employment 1: holding with little discussion that section 1981 applies to private racial discrimination 2: holding that title vii precludes a claim under section 1981 for racial discrimination against a federal employee 3: holding where corporation had acquired imputed racial identity and was direct target of discrimination it had standing to pursue 1981 claim 4: holding that conduct occurring after the formation of an employment contract could not be racial discrimination under 1981
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W. Daisey petitions pro se for review of the decision of the National Transportation Safety Board (“NTSB”) that it lacks jurisdiction over Daisey’s appeal from a decision of the Federal Aviation Administration (“FAA”). We have jurisdiction under 49 U.S.C § 1153(a). We review de novo the NTSB’s conclusions of law. Olsen v. National Transp. Safety Bd., 14 F.3d 471, 474 (9th Cir.1994). We deny the petition for review. The NTSB correctly determined that it lacked jurisdiction over Daisey’s appeal of the FAA’s revocation and non-approval of check airman authority because check airmen serve under the Administrator’s delegated authority, which the Administrator may rescind “at any time for any reason.” 49 U.S.C. § 44702(d); cf. Adams v. FAA 1 F.3d 955, 956-57 (9th Cir.1993) (per cu-riam) (<HOLDING>); Greenwood v. FAA 28 F.3d 971, 974-75 (9th Holdings: 0: holding that the decision whether to renew a hap rests entirely with the owner and that an owner has no legal obligation to renew 1: holding that this court lacked jurisdiction under 46110 for lack of finality and that the district court also lacked jurisdiction because the orders were not final and thus not ripe for review 2: holding that this court lacked preliminary authority to review the district courts jurisdiction because there was no immediately appealable order before the court 3: holding that the faas decision not to renew an aircraft examiners authority is nonreviewable 4: holding that this court lacked jurisdiction to review the faas decision to not renew a pilot examiner designation
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a claim or the day suit is filed. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex.1998). However, how this rule applies to cases where damages accrue at times subsequent to either date is an issue that the Texas Supreme Court has not yet addressed. This court must predict how the Texas Supreme Court would decide this issue. In making an “Erie guess” in a diversity case, this court will “seek guidance by looking to the precedents established by intermediate state appellate courts only when the state supreme court has not spoken on an issue.” Webb v. City of Dallas, 314 F.3d 787, 795 (5th Cir.2002) (internal quotations and citations omitted). However, 147-CV, 2001 WL 893986, at *8 (Tex.App.—Dallas Aug.9, 2001, no pet.) (not designated for publication) (<HOLDING>). These cases, however, do not factor into this Holdings: 0: holding that prejudgment interest is based on the amount of the judgment not the total amount of damages awarded by the jury because nonsettling defendants have no control over settlement negotiations and should not be forced to pay prejudgment interest on settling defendants parts of a damages award 1: holding that prejudgment interest should not be calculated based on a monthbymonth basis 2: holding that prejudgment interest may include compound interest 3: holding that prejudgment interest may inelude compound interest 4: holding that prejudgment interest should not be calculated based on a paycheckbypaycheck basis
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pleas court and the Superior Court, where she argued primarily that DiMarco, Troxel, and Section 324A were controlling. Appellee also did not assert that she was denied an adequate procedure in which to advance evidence or argument on the policy matters at the heart of the duty decision. In such circumstances, to the extent that Appellee attempts to do so at the present stage of the appellate litigation, those arguments are unpreserved. See In re J.M., 556 Pa. 63, 83 n. 15, 726 A.2d 1041, 1051 n. 15 (1999) (finding waiver of an issue, on the part of one who became an appellee in the Supreme Court, that was not raised before the trial court or the Superior Court where that party was the appellant); accord Commonwealth v. McMullen, 599 Pa. 435, 443 n. 2, 961 A.2d 842, 846 n. 2 (2008) (<HOLDING>). In any event, as a consequence of Appellee’s Holdings: 0: holding that a litigant did not waive a claim because it was the appellee in the intermediate appellate court emphasis added 1: holding that an application is pending from the time it is first filed emphasis added 2: holding that a federal court has jurisdiction over the question of whether truck was engaged in interstate commerce at the time of the accident emphasis added 3: holding that the statute incorporated all the rights and obligations of the contract emphasis added 4: holding that the plain meaning of the statutory language a claim refutes the defendants argument that plaintiff must allege that the anticompetitive effect gives rise to his claim emphasis added
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at 397. This Court had cited the following language from Cooter v. State Farm Fire and Casualty Company, 344 So.2d 496, 498 (Al.1977), which we find particularly telling: The fatal weakness of the appellants’ contention for coverage lies in its failure to acknowledge one of the elements essential to recovery for negligent entrustment — the negligent operation of the motor vehicle.... The plain wording of the exclusionary provision reveals the deficien 99 Tenn.App. Lexis 440 (Tenn.Ct.App.1999) (explaining that vehicle owner’s liability for negligent entrustment did not rest on imputed negligence, but was based on his own negligence in entrusting the automobile to an incompetent driver); Grinnell Mutual Reinsurance Company v. Center Mutual Insurance Company, 658 N.W.2d 363 (N.D.2003) (<HOLDING>). ¶ 17 After study, however, we conclude that Holdings: 0: holding that public policy favors the exclusion of intentional acts as contained in the mjua policy 1: holding that because there were motor vehiclerelated acts of negligence and nonmotor vehiclerelated acts of negligence both involved in the same accident concurrent coverage under both the auto policy and the farm policy existed 2: holding that there was no coverage because there was no occurrence within the meaning of the policy because defective workmanship does not constitute an accident or an occurrence under a commercial general liability policy 3: holding that there was no evidence in the record to support appellants contention that the doctor committed a separate act of negligence by continuing to prescribe coumadin and that the doctors alleged failure to correct any previous negligence does not constitute additional acts of negligence 4: holding that there was no evidence in the record to support appellants contention that the doctor committed a separate act of negligence by continuing to prescribe reglan and that the doctors alleged failure to correct any previous negligence does not constitute additional acts of negligence punctuation omitted
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automatically renewed for successive one-year terms, unless either party gave sixty days’ notice of termination or ninety days’ notice of intent to renegotiate. The contract further provided that, during its term, the county and each city which approved the contract agreed not to contract with “any other individual or firm to provide solid waste removal from residential premises in any [cjity.” Appellees’ App. at 139. Mr. Umbehr hauled trash for six of the seven cities in the county from 1985 until the county terminated the contract in 1991. In other words, the contract was automatically renewed each year, according to its terms. Throughout this time period, Mr. Umbe 02 (6th Cir.), vacated, 882 F.2d 207 (6th Cir.1989), reinstated in pertinent part, 924 F.2d 627 (6th Cir.1991) (en banc) (<HOLDING>), cert. denied, 501 U.S. 1250, 111 S.Ct. 2889, Holdings: 0: holding that it was not clearly established that independent contractor claiming denial of public contract because of political affiliation was protected under first amendment 1: holding that independent contractor claiming termination of contract in retaliation for petition was not protected by first amendment 2: holding that independent contractor claiming termination of contract because of lobbying and other political activities not protected by first amendment 3: holding that first amendment prohibits government officials from discharging or threatening to discharge lowerlevel public employees based on their political affiliation 4: holding that independent contractor claiming removal from city towing rotation list because of political affiliation was not protected by first amendment
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demonstrate cause for her trial counsel’s failure to raise her continuity of counsel claim, she has failed to make the requisite showing of prejudice. We thus affirm the denial of relief. A. Cause Harris advances two reasons why there is cause for her trial counsel’s failure to raise the continuity of counsel claim. She first argues that the lack of continuity of counsel itself supplies cause to excuse the default. Although this may explain why some of her lawyers failed to raise the claim—that is, they held appointments only for a matter of days or weeks—ultimately her assertion begs the question why Bowen and Argo, who tried the case, failed to raise the claim during the months they represented Harris (Argo for about 12 and Bowen for about 6). See Ex parte Harris, 947 So.2d at 1149 (<HOLDING>). Harris’s second, related, argument for why Holdings: 0: recognizing a constitutional claim for ineffective assistance of counsel 1: holding that harris defaulted her claim because bowen and argo had at least nine months in which to consider whether the fact that harris had been represented by so many different pretrial attorneys amounted to ineffective assistance 2: holding that for an ineffective assistance of counsel claim to be established a defendant must show that but for counsels error the outcome of his proceedings would have been different 3: holding that where the record supported the district courts conclusion that statements would not have been suppressed and there had been nothing submitted on appeal to lead to a different conclusion the petitioner had not shown any resulting prejudice from the failure to file a motion to suppress and therefore had not established a claim of ineffective assistance of counsel 4: holding that counsels total failure to conduct pretrial discovery constituted ineffective assistance
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is GRANTED IN PART. Claims 16, 22 & 24 are DISMISSED WITH PREJUDICE. 3. UNO’s Motion to Dismiss is GRANTED IN PART. Claims 11, 16, 21, 22 & 23 are DISMISSED WITH PREJUDICE. 4. The Court declines to exercise pendent jurisdiction over Andela’s state law claims against both UM and UNC. Claims 1, 2, 3, 4, 7, 8, 9, 10, 12, 13 & 15 are hereby DISMISSED. 5. The Clerk of the Court is instructed to CLOSE this case. All pending motions are DENIED AS MOOT. 1 . Because the Parties submitted extensive evidence of the administrative and state proceedings in this action, the Court converted UM and UNC's Motions to Dismiss into motions for Summary Judgment with respect to their arguments asserting res judicata. Papa John’s Intern., Inc. v. Cosentino, 916 So.2d 977, 983 (Fla. 4th Dist.Ct.App.2005) (<HOLDING>). Moreover, pursuant to Rule 56 of the Federal Holdings: 0: holding that a summary judgment is a determination on the merits for res judicata and collateral estoppel purposes 1: holding wjhile the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment the trial court erred when it ventured outside the four corners of the complaint took judicial notice of the final judgment of dissolution of marriage and dismissed the complaint with prejudice 2: holding that in determining motion to dismiss on basis of res judicata the court could take judicial notice of all of the documents which are part of the record before it as well as the documents contained in the record before the state court without having to convert the motion to one for summary judgment 3: holding that a court may not take judicial notice of separate legal proceedings on a motion to dismiss and defenses of res judicata and collateral estoppel must be resolved through motion for summary judgment 4: holding that res judicata and collateral estoppel apply to arbitration award
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of limitations under Lampf. “However, every circuit to have addressed the issue since Lampf has held that inquiry notice is the appropriate standard.” Id. at 703-04 (listing the various circuits that have ruled upon the issue). Plaintiffs’ assertion that the Berry court held that actual notice is the appropriate standard is patently contradicted by the opinion. Specifically, the Berry court ruled that “we need not decide whether actual discovery or inquiry notice applies, because under either standard the Forbes article did not trigger the statute of limitations.” Id. at 704. This Court joins the circuits that have ruled upon the issue and finds that inquiry notice is the appropriate standard. See Carley Capital Group v. Deloitte & Touche, L.L.P., 27 F.Supp.2d 1324, 1341 (N.D.Ga.1998) (<HOLDING>); cf. White v. Mercury Marine, 129 F.3d 1428, Holdings: 0: holding inquiry notice to be appropriate standard under lampf 1: recognizing that in certain circumstances inquiry notice may be determined as a matter of law 2: holding that the relevant inquiry is not whether the court has discretion to facilitate notice but whether this is an appropriate case in which to exercise discretion 3: holding that dismissal without prejudice was appropriate where a plaintiff failed to name each of the persons alleged to have violated the appropriate standard of care 4: holding that the appropriate standard of review is abuse of discretion
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considered employee’s actions in foreign state in determining whether minimum contacts existed to confer jurisdiction over South Carolina bail bondsman in foreign court). 8 . Dolan v. City of Camden, 233 S.C. 1, 103 S.E.2d 328 (1958) (municipalities, which have full and complete control over streets and highways within their corporate limits, are liable for injuries caused by failure to use reasonable care to keep them in a reasonably safe condition for public travel). 9 . 24A S.C.Code Ann. Regs. 61-16 § 613 (1992) (requiring hospitals to maintain certain minimum standards and equipment to provide emer gency care and services, including around-the-clock access to x-ray and routine laboratory services and a licensed physician). 10 . See e.g., Jackson v. Power, 743 P.2d at 1379-82 (<HOLDING>); Gilbert v. Sycamore Mun. Hosp., 156 Ill.2d Holdings: 0: holding that a company providing administrative purchasing and financial services to a hospital was not a hospital and thus could not be held directly liable under emtala 1: holding that hospital may be held liable for negligence of emergency room physicians under apparent agency doctrine 2: holding that physicians as agents of the hospital are indistinguishable from the hospital for immunity purposes under the lgaa 3: holding that a general acute care hospital may not delegate its duty to provide physicians for emergency room care because the law imposes a duty on hospital to provide that health care 4: holding that a municipality may be held liable as a person under 1983
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the absence of any allegations that the vendor payments were, in fact, bribes — that is, that they were paid by the vendors with the intent to improperly influence or corrupt Starwood’s conduct on behalf of the Blue Tree Owners — Star-wood’s alleged breach of its fiduciary duties is insufficient to establish commercial bribery. No such allegations appear in the Blue Tree Owners’ complaint, however. Improper intent on the part of the vendors might be inferred from the Blue Tree Owners’ allegation that vendors who were unwilling or unable to make the vendor payments were precluded from competing for the Hotels’ business and, as a result, the Blue Tree Owners were unable to negotiate advantageous prices and terms with such vendors. But such b., Inc., 146 F.Supp.2d 385, 397 (S.D.N.Y.2001) (<HOLDING>) with Envtl. Tectonics, 847 F.2d at 1054, 1066 Holdings: 0: holding that mountaineering does not implicate the public interest 1: holding that reputation alone does not implicate any liberty or property interests sufficient to trigger procedural protections of fourteenth amendment 2: holding that the lack of shareholder standing under texas law does not implicate constitutional standing 3: holding that allegation that discounts or payments passed from one business to another does not implicate bribery 4: holding that mere negligence does not implicate the right to due process
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context, that courts should not “penaliz[e] diligent counsel who has employed [§ 220] ... in a deliberate and thorough manner in preparing a eom-plaint[.]” Rales v. Blasband, 634 A.2d 927, 934 n.10 (Del. 1993) (applying the “first to file” rule for derivative litigation); see also Technicorp, 2000 WL 713750, at *9 n.26 (“[A]ccept[ing] ... [Defendants’ time-bar argument would penalize, not encourage, the use of those important tools.”). But a rale that automatically forbade tolling once a party had inquiry notice would do just that. Indeed, if a shareholder has enough suspicion of wrongdoing to file a successful § 220 action, then there is some probability that the shareholder also has inqifiry notice. See, Sec. First Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563, 567 (Del. 1997) (<HOLDING>). The District Court’s categorical exception Holdings: 0: holding that to institute a proper 220 action to investigate fraud the plaintiff must demonstrate a credible basis to find probable wrongdoing 1: holding that in the context of a settlement contract the defrauded party may either 1 rescind the settlement or 2 ratify the settlement retain the proceeds and institute an action to recover fraud damages 2: holding that the plaintiffshareholders demonstrated a credible basis for its 220 claim tjhrough the testimony of their two trial witnesses and the documents introduced as evidence regarding the actions of the corporations board of directors through evidence of suspicious expense figures 3: holding that once probable cause is established officer is not required to investigate further 4: holding that knowledge of a credible report from a single credible eyewitness can be sufficient to demonstrate probable cause for a warrantless arrest
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against the seller’s broker. Id. at 1297. In recognizing the limits of the economic loss doctrine in Moransais, the Florida supreme court favorably cited PK Ventures and stated that the court has “declined to extend the economic loss rule to actions based on ... negligent misrepresentation.” Moransais, 744 So.2d at 981; see Perfumeria, 231 F.Supp.2d at 1223 (explaining that the Florida supreme court has refused to apply the economic loss doctrine to the category of cases involving negligent misrepresentation); Stone Throw Condo. Assoc., Inc. v. Sand Cove Apartments, Inc., 749 So.2d 520 (Fl.2d DCA 1999)(reversing trial court’s decision to dismiss negligent misrepresentation claim based upon economic loss doctrine); see also Williams v. Bear Steams & Co., 725 So.2d 397 (Fla. 5th DCA 1998)(<HOLDING>); Burton v. Linotype Co., 556 So.2d 1126, 1128 Holdings: 0: holding that the economic loss rale did not bar banks claim against mortgagors attorney for negligent misrepresentation where there was no contract between the bank and the attorney 1: holding negligent misrepresentation sufficient 2: holding that economic loss rule barred claim for breach of fiduciary duty where plaintiffs claim arose solely as a result of the existence of a contract between the parties 3: holding economic loss rule did not bar negligent misrepresentation claim where parties had no contract 4: holding economic loss rule did not bar recovery of tort damages on statutory fraud claim based upon fraudulent inducement
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analysis that defendants had a “special relationship” with plaintiffs and that plaintiffs’ evidence might suffice to show negligence. This argument ignores the district court’s finding that there was no evidence presented to show that defendants had any “actual knowledge of a substantial risk of harm.” Nor did plaintiffs present evidence showing that defendants could have reasonably foreseen that either Stevens or Lovick were likely to abuse the children. Plaintiffs’ failure to present such evidence means that they cannot satisfy the third prong of this test. Gloria and Terry remain entitled to immunity for the negligence claims brought against them in their official capacities. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (<HOLDING>). Finally, as the district court held, Gloria Holdings: 0: holding that in a suit against state officials in their official capacities monetary relief unlike prospective injunctive relief is generally barred by the eleventh amendment 1: holding that such claims however cannot be brought directly against the state or a state agency but only against state officials in their official capacities 2: holding an exception to eleventh amendment immunity inapplicable in a suit against state officials on the basis of state law 3: holding that barring waiver by the state the eleventh amendment precludes federal courts from hearing state claims brought against state officials in their official capacities 4: holding that an action brought against the state officials in their official capacities was not properly removed to federal court because the district court lacked jurisdiction
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is also without merit. The claim based on alleged evidence of three other possible suspects also fails on the merits. The record refutes Overton’s argument that information on Hector Hernandez was not disclosed to his counsel. Overton’s counsel testified that he was given the information about Hernandez. Consistent with that testimony, Ellsworth testified that he advised Overton’s counsel about Hernandez as a suspect upon his receipt of the information. Moreover, the information was actually inculpatory rather than exculpatory. These statements from Hernandez would establish that he was at the murder scene whi reports is also insufficiently pled as Overton does not present any information as to what these pages included or how such would be exculpatory. See Gore, 846 So.2d at 466-67 (<HOLDING>). The fact that alleged missing pages were from Holdings: 0: holding the tenday requirement was ministerial and the defendant failed to show he was prejudiced by the delay 1: holding that an appellants due process rights were not violated when he did not receive brady material before his transfer hearing because he will be able to make effective use of any brady material at trial 2: holding that the defendant insufficiently pled the brady claim because he failed to assert how the evidence was material or how he was prejudiced by the states nondisclo sure 3: holding that the brady claim was insufficiently pled in the rule 3851 motion because the defendant presented no factual basis that the disputed item ever existed or contained exculpatory information 4: holding that the defendant did not require advance notice where he could not show how he was prejudiced by late notice or how he could have been helped by additional notice
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supplemented by regs. 3.1 and 4.1, nor (b) general constitutional principles, in the light of the Frank case, 359 U. S. 360, 367, required the code enforcement inspector to have resort to § 131 to obtain a warrant. He was free to make use either of a bill in equity or the criminal sanction of reg. 3.1. 6. The defendant does not argue that, by denying admission, he did not “wilfully impede or obstruct” the inspector. Cf. District of Columbia v. Little, 339 U. S. 1, 4, 6-7, where the Supreme Court of the United States construed a somewhat comparable District regulation (penalizing, see p. 5, “interfering with or preventing” any inspection authorized by the regulations) as not mailing it an offence merely to decline to permit health officers to inspect. Despite language of the Little case (<HOLDING>), we construe the somewhat different language Holdings: 0: holding that threatening employee to mind her own business investigating her videotaping her without her permission and forcing her to take polygraph could not be considered adverse employment actions because they had no effect on conditions of employment 1: holding that the word interfere in the regulation could not p 7 fairly be interpreted to encompass the respondents failure to unlock her door and her remonstrances on constitutional grounds 2: holding that relative to the threat that she posed physically separating tina cortez from her telephone taking her by the arm escorting her from her home taking the keys to her home and locking the door and placing her in the locked back seat of a patrol car was excessive force as well as an unlawful seizure under the fourth amendment 3: holding that the former wife did not waive her attorneyclient privilege simply because the credibility of her claim that she relied on her husbands representations could be impeached by deposing her former attorney 4: holding that the word interfere in a dc regulation criminalizing the interfering with or preventing of building inspections by health officers could not be interpreted to encompass respondents failure to unlock her door and her remonstrances on fourth amendment grounds
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It does require a history of effort to achieve repayment .... Relevant proof may ... include a history of some payment, the propitious use of deferments and the energetic exploration of employment options.”); Sands v. United Student Aid Funds (In the Matter of Sands), 166 B.R. 299, 311-312 (Bankr.W.D.Mich.1994) ("In determining the Debtor's good faith, the court must not only examine the Debtor's payments towards his student loans, but also his efforts to negotiate deferments with the applicable student loan agency .... in addition, the timing of the Debtor’s bankruptcy filing may affect the good faith analysis.”). 15 . See, e.g., In re Rifino, 245 F.3d at 1088 (examining debtor's income and the reasonableness of her expenses under the first Brun-ner prong); In re Faish, 72 F.3d at 307 (<HOLDING>); Ammirati v. Nellie Mae, Inc. (In re Holdings: 0: holding debtor satisfied first prong even though she had cable television 1: holding that debtor failed the first brunner prong because she did not demonstrate that she had maximized earnings and minimized expenses 2: holding plaintiff failed to demonstrate disparate treatment because she failed to show she was similarly situated to coworker to whom she compared herself 3: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired 4: holding that debtor did not satisfy the third prong because she did not seek out loan consolidation options even though she made several payments on her student loan debt
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of the Property. In order to determine whether the owner of a property is a nominee, a court may consider any of the following factors: (1) whether the taxpayer expended personal funds for the property; (2) whether inadequate or no consideration was paid by the alleged nominee; (3) whether the property was placed in the alleged nominee’s name in anticipation of a lawsuit or other liability; (4) whether the taxpayer enjoys the benefits of, retains possession of, and exercises dominion and control over the property; (5) whether a close family relationship exists between the taxpayer and the alleged nominee; (6) whether conveyances between the taxpayer and alleged nominee were recorded; and (7) whether the alleged nominee interferes with the taxpayer’s use of the property. Id. at 694-95 (<HOLDING>). Based on the factors listed above, there are Holdings: 0: recognizing that mcl 57011076 provides a real property owner with a defense to a claim of lien if the owner can show that the sum of payments made pursuant to the specific contract plus the claim of lien exceed the price of the contract 1: holding that owner of townhouse was nominee of relative and therefore lien on property by irs was proper 2: holding that property seized by a creditor prior to debtors bankruptcy was property of the estate even though creditor the irs held a secured interest a tax lien in the property 3: holding that where property subject to the irss timely filed lien is sold during a nonjudicial sale and the irs is not given notice of the sale the sale of the property is made subject to and without disturbing the lien 4: holding that the lien bond releases the property from the lien but the lien is then secured by the bond
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see also Young Br. at 12-13 (conceding that "the district court did not directly use the weight of the PCC in determining [Young’s] offense level,” but that the weight of PCC was used to determine the quantity of pure PCP "supposedly capable of being produced from the PCC”). 6 . In 1991, Note 2 was an application note to § 2D1.4, which provided that "if a defendant is convicted of a conspiracy ... to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy ... had been completed.” U.S.S.G. § 2D1.4. The Sentencing Commission deleted § 2D 1.4 in 1992, and moved the relevant text of Note 2 to Application Note 12 of § 2D1.1. See U.S.S.G. app. C, amend. 447; United States v. Ynfante, 78 F.3d 677, 680-81 (D.C.Cir.1996) (<HOLDING>). 7 . The principal deficiency Young asserts is Holdings: 0: holding rule 38 applies to frivolous criminal appeals as well as civil appeals 1: holding that cr 60b applies to criminal as well as civil judgments 2: holding that amended note 12 applies to choate as well as inchoate offenses 3: holding that sentence factor manipulation applies to statutory minimums as well as to the guidelines 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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suppression of these items that “he left in a company truck.” Plowman argues that he did not waive this ineffective assistance of counsel claim by entering his plea. We agree. A plea waives certain defenses for purposes of direct appeal. Lacey v. State, 831 So.2d 1267, 1271 (Fla. 4th DCA 2002); Boddie v. State, 328 So.2d 877 (Fla. 1st DCA 1976). However, a plea does not waive ineffective assistance of counsel claims regarding counsel’s failure to raise those defenses. See Skellie v. State, 849 So.2d 1220, 1220 (Fla. 5th DCA 2003) (“Although [defendant] waived all defenses by entering the plea, he nevertheless may be entitled to 3.850 relief if he can show that counsel did not adequately investigate or pursue a viable defense.”); Robinson v. State, 972 So.2d 1115 (Fla. 5th DCA 2008) (<HOLDING>). Because this ground was not legally Holdings: 0: recognizing a constitutional claim for ineffective assistance of counsel 1: holding no ineffective assistance of appellate counsel claim for failure to raise as basis for appeal of conviction ineffective assistance of trial counsel where basis for the latter claim was inadequate 2: holding that plea did not waive claim of ineffective assistance of counsel for failure to seek suppression 3: holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims 4: holding that failure to object to admissible evidence was not ineffective assistance of counsel
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of the jury that the stock was worthless both at the time of the sale and at the time of the tender, or, in other words, that the sale was without consideration.”). See generally 17 Williston on Contracts §51:18 (4th ed.) (discussing the defense of failure of consideration for the sale of securities and noting that, “[i]f the parties are dealing at arm’s length... and neither buyer nor seller is guilty of fraud, the defense of failure of consideration will not, by the weight of authority, prevail, unless the stock or other security had neither a market value, nor an intrinsic value both on the day of the contract and on the day of tender”). 10 Coast Scopitone, 127 Ga. App. at 126 (1); see also Jones v. Dixie O’Brien Div., O’Brien Corp., 174 Ga. App. 67, 68 (1) (329 SE2d 256) (1985) (<HOLDING>); Fagala v. Morrison, 146 Ga. App. 377, 377 (1) Holdings: 0: holding testimony that inter alia paint at issue was defective and of no value whatsoever was sufficient evidence that the consideration had totally failed punctuation omitted 1: holding that there was no evidence of market value where owners testimony affirmatively showed that it was based on personal value 2: holding inter alia that common law claims were preempted 3: holding that the trial court properly excluded evidence that other persons had a motive to kill the victims because inter alia such evidence was speculative 4: holding inter alia that expert testimony was not required to prove damages for emotional distress in an abuse of process claim
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were induced to forebear from filing suit. See Baptist Hosp. of Miami, Inc. v. Carter, 658 So.2d 560, 562-63 (Fla. 3d DCA 1995) (finding a triable issue as to the estate’s estoppel to claim the limitations defense where the decedent’s surviv- or actively misled a hospital into believing that the decedent left no estate from which to collect outstanding bills), abrogated by May v. Illinois Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000); Alachua County v. Cheshire, 603 So.2d 1334, 1337 (Fla. 1st DCA 1992) (applying equitable estoppel where the federal government, by continual assurances of payment, induced the plaintiff not to sue on a lien against government-seized property within the limitations period); Jaszay v. H.B. Corp., 598 So.2d 112, 113 (Fla. 4th D 2d 846, 848 (Fla. 5th DCA 1982) (<HOLDING>); Cape Cave Corp. v. Lowe, 411 So.2d 887, Holdings: 0: holding that an insurer acted in bad faith by failing to keep the insured informed of settlement negotiations 1: holding a settlement privilege exists as to thirdparty discovery of settlement negotiations 2: holding that continuing settlement negotiations if infected with an element of deception may create an estoppel 3: holding a court may eonsider settlement negotiations for the purpose of deciding a reasonable attorney fee award 4: holding the connection is an element
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arguments exclusively discussed the concept of unanimity, even with regard to the possible non-death sentences. For example, Instruction Number 14 stated as follows: In the event you assess the death penalty, your verdict must be unanimous. You may also return a unanimous verdict of imprisonment for life without the possibility of parole or imprisonment for life with the possibility of parole. When you have reached your verdict, all of you in a body must return it into open court. There is, however, no discussion in the instructions of the effect of the jury failing to reach a unanimous verdict. This court certainly recognizes that such an instruction is required only in unusual circumstances. See Jones v. United States, 527 U.S. 373, 381-82, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (<HOLDING>). Nevertheless, the failure to so inform the Holdings: 0: holding that when both parties agree that the facts of the case entitled defendant to a selfdefense instruction failing to so instruct the jury was error 1: holding that the failure to properly instruct the jury on the burden of proof required a new trial 2: holding that a failure to instruct the jury on additional uncharged conspiracies is not reversible error so long as the jury is instructed that the government has the burden to prove the charged conspiracy 3: holding eighth amendment does not require trial courts to instruct jury on consequences of failure to agree on sentence unless to fail to do so would affirmatively mislead the jury regarding its role in the sentencing process 4: holding that the district courts failure to instruct the jury as to the proper standard of proof constituted plain error
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to identify a title or rank. Section 147.55, however, provides that the short forms “may be used and are sufficient” but does not mandate the use of those forms. Ohio Rev. Code Ann. § 147.55. To the contrary, § 147.55 expressly states that “[t]he authorization of the forms in this section does not preclude the use of other forms.” Id. Nor does § 147.55 provide that an acknowledgment is defective merely because the notary public omits his or her official title. Because this Court does not have the authority to interpret an Ohio statute so as to add words to it, the Court declines to find within § 147.55 a rule that an acknowledgment is defective if a notary public fails to identify herself as such. Cf. Helbling v. Zabor (In re Zabor), 2009 WL 2256911 at *5 (Bankr.N.D.Ohio July 22, 2009) (<HOLDING>). It is true that courts have interpreted the Holdings: 0: holding that where the date of the offense is not an element of the charge a variance between the indictment date and the proof at trial is not fatal so long as the acts charged were committed within the statute of limitations period and prior to the return date of the indictment 1: holdingin an adversary proceeding in which the issue was whether the certificate of acknowledgment must include the date of signingthat the date was not required and that the statutory short form of acknowledgment was not dispositive because while the date is indeed a part of the short form of acknowledgment authorized under ohio revcode 14755 that section does not preclude the use of other forms 2: holding that the omission of the date of execution on the acknowledgment did not render it invalid when read in conjunction with the instrument 3: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 4: holding that the date of sale for an installment contract was the date of contract formation not the date of the last payment due
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Id. at 939 ("The Act was meant to shield debtors from abusive collection practices, but it was never intended to shift the balance of power between debtors and creditors such that a debt collector cannot work with a debtor's attorney to settle claims without exposing itself to liability."). 9 . Wolpoff argues it is immune from liability under the TDCA because "a lawyer is 'quali-fiedly immune' from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation.” Def.'s Mot. to Dismiss 8. To the contrary, the TDCA expressly makes actionable misleading representations made in judicial proceedings. Tex Fin.Code § 392.304(a)(8); see also Gibson v. Grupo de Ariel, LLC, No. 4:05-CV-415-BE, 2006 WL 42369, *4 (N.D.Tex. Jan.9, 2006) Holdings: 0: holding first lawsuit and allegations in second lawsuit part of same transaction for res judicata purposes even though different theory of recovery and harm alleged in second lawsuit 1: holding that where the violation of the fdcpa was the filing of a lawsuit the statule of limitations begins to run on the date of filing 2: holding that filing an answer does not invoke the status as a defendant in plaintiffs lawsuit 3: holding that the district court used the wrong legal standard when calculating restitution and remanding for further proceedings without discussing sufficiency of the evidence under the wrong standard 4: holding that filing a lawsuit in the wrong court is actionable under the tdca
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... the officer performs a discretionary act.”). Although federal law does not determine whether an officer’s actions are discretionary for purposes of state law, nonetheless an examination of federal immunity law is instructive. Under federal law, the act in question must be discretionary as a prerequisite to an extension of qualified immunity. See Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990) (“Qualified immunity cloaks a police officer from personal liability for discretionary acts which do not violate well-established law.”). Thus, those cases in which a federal court extends immunity to a police officer, necessarily determine that the disputed actions are discretionary. See, e.g., Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987) (<HOLDING>); Swint v. City of Wadley, 5 F.3d 1435 (11th Holdings: 0: holding officers engaged in search entitled to immunity 1: holding that defendants are not entitled to qualified immunity 2: holding that defendant officers were entitled to qualified immunity as a matter of law where they relied upon consent of property owner to perform search 3: holding that officers were entitled to qualified immunity where defendant officers could have reasonably believed that they were given sufficient third party consent to search 4: holding officers involved in investigatory raid entitled to immunity
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the nurses’ actions, and because Dr. Berger did not provide that opinion, plaintiffs have failed to present any expert opinion on causation to support their survival claims against Tenet. ‘ This does not necessarily mean that the plaintiffs’ survival claims fail, however. Plaintiffs also alleged that Tenet was liable for Medrano’s death because Tenet was vicariously liable for the actions of Dr. Boone in prematurely pulling on the catheter and tearing her heart muscle. When a health care liability claim involves a vicarious liability theory, either alone or in combination with other theories, and there is an expert report sufficient to support that vicarious liability theory, the entire case may proceed. Certified EMS, Inc., 392 S.W.3d at 632; TTHR Ltd. Partnership, 401 S.W.3d at 44 (<HOLDING>). Thus, we proceed to address the adequacy of Holdings: 0: holding that expert reports were not required to mention the defendant hospital because reports were based upon the actions of hospital physicians 1: holding that expert report addressing hospitals conduct was not required when plaintiffs sole theory against hospital was vicarious liability based on ostensible agency and explaining that the conduct by the hospital on which the agency relationship depends is not measured by a medical standard of care these are principles of agency law on which no expert report is required 2: holding that because the contract between the hospital and the health insurance company had a hold harmless provision which stated the hospital would not bill or hold insurance subscribers liable for any hospital expenses covered by the subscribers insurance contract and all expenses from the patients treatment for the automobile accident were covered in such contract there was no debt upon which the hospital could assert a lien pursuant to the states hospital lien statute 3: holding that because the trial court did not abuse its discretion in finding the expert report adequate as to the vicarious liability claim against the hospital based on the actions of the doctors plaintiffs suit against the hospital including her claim that the hospital was vicariously hable for the actions of its nurses could proceed 4: holding that where hospital used balance billing that since the hospital had already received payments from the patient and his health insurer and had agreed to accept that amount as payment in full for its services there was no longer any amount owing to the hospital and thus it could not assert a statutory hospital lien for the difference between its charges and the amount received in light of the negotiated network agreements
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the time the Agreement was recorded Hoffenberg owned both parcels of land. Because the Agreement purported to convey an easement from Hoffenberg, as both grantor and grantee, the trial court held that Hoffenberg’s attempt to create an easement over his own property was void ab initio. The trial court further held that One Harbor neither proved the establishment of an easement by prescription nor an implied easement because the equitable arguments raised were not supported by the facts, the record or the law. We agree with the trial court’s findings. APPLICATION OF SECTION 687.07, FLORIDA STATUTES In reaching its decision, the trial court applied section 689.07, Florida Statutes (1959). Section 689.07 provides: (1) Every deed or conveyance of real estate heretofore (Tex.Com.App.1928) (<HOLDING>); Bales v. Butts, 309 Mo. 142, 274 S.W. 679 Holdings: 0: recognizing that an easement may entitle the easement owner to do acts which were not for the easement would constitute a nuisance 1: recognizing that one cannot have an easement in his own land 2: holding that one who possesses deeded easement need not use the easement to maintain his title and easement cannot be extinguished from nonuser alone 3: holding one cannot grant an easement to oneself one can only reserve such interest in land granted to another 4: holding that an easement agreement and an unrecorded easement plan created an easement
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concerning employment. If a court can uphold state rights without interpreting the terms of a CBA, allowing suit based on the state rights does not undermine the pur pose of section 301 preemption: guaranteeing uniform interpretation of terms in collective bargaining agreements. Therefore, “nonnegotiable state-law rights ... independent of any right established by contract” are not preempted. Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. A contrary rule would permit unions and employers to exempt themselves from state labor standards. Congress never intended “to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Id. at 212, 105 S.Ct. at 1912; see, e.g., Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir.1987) (<HOLDING>), cert. denied, June 13, 1988. In this case, Holdings: 0: recognizing tort of wrongful discharge in violation of public policy 1: recognizing common law tort claim for wrongful discharge in violation of ohio public policy based upon statutory and judicial sources 2: holding that an employees claim for relief for wrongful discharge based on state common law was preempted by 1132a 3: holding that a wrongful discharge claim based on violation of a state public policy is not preempted because it is a nonnegotiable independent statelaw right 4: holding statelaw claim based on alleged failure to give proper notice of right to convert is preempted by erisa
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of, such person for any offense connected with the administration or enforcement of the internal revenue laws, or (ii) any request is made under section 6103(h)(3)(B) for the disclosure of any return or return information (within the meaning of section 6103(b)) relating to such person.” 26 U.S.C. § 7602(d)(2)(A). Agent Weinger has attested that “[a]s of the date of this declaration, there is no ‘Justice Department referral,’ as that term is described in 26 U.S.C. § 7602(d), in effect with respect to the Khans for any of the periods in issue.” (R. 30, Weinger Decl. ¶ 13.) This representation satisfies this Court that Petitioners have not been referred to the Justice Department for criminal prosecution. See United States v. Ins. Consultants of Knox, Inc., 187 F.3d 755, 759 (7th Cir.1999) (<HOLDING>). Petitioners argue, however, that the Holdings: 0: holding that an appellant bears the burden of demonstrating error on appeal 1: holding that the government can usually satisfy its burden of demonstrating the propriety of an irs summons through an affidavit of one of its agents 2: holding that the defendant bears the burden of demonstrating that the action should be transferred 3: holding that the government must satisfy its burden of proving contract damages 4: holding actual possession of or access to information by the irs is not an absolute bar to enforcement of a summons for that information
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the private right of action made available under § 2114 was modeled after OSHA’s retaliatory discharge provision, 29 U.S.C. § 660(c). See S.Rep. No. 98-454, at 12 (1984), as reprinted in 1984 U.S.C.C.A.N. 4831, 4842. Under OSHA, in order for a plaintiff to establish that he was terminated in retaliation for filing a health or safety complaint, he must show that the “protected activity was a substantial reason for the action,” although it “need not be the sole consideration behind discharge.” 29 C.F.R. § 1977.6(b). In such circumstances, as under § 2114, the ultimate question is whether the discharge or other adverse action would have “taken place ‘but for’ engagement in protected activity.” Id.; see also Dole v. H.M.S. Direct Mail Serv., Inc., 752 F.Supp. 573, 580 (W.D.N.Y.1990) (<HOLDING>); Donovan v. Commercial Sewing, Inc., 562 Holdings: 0: holding that although the plaintiff was a problem employee and eventually may have been terminated for that reason the immediate cause of his termination was the osha report 1: holding that although a reason was provided in the termination letter the without cause termination provision was applicable 2: holding that although incorrect drug report was detrimental to employee employee had no claim against hospital because the report was not intended to primarily or directly benefit the employee 3: holding attendance problem was a legitimate basis for an employers termination of an employee 4: holding that without a provision stating that an employee can be terminated only for cause the atwill doctrine permitted termination in the absence of any reason at all summary judgment and directed verdict in companion cases affirmed
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inquiring into the legitimacy of the regulatory claims would mire the bankruptcy courts in “mini-trials of purely state regulatory issues.” Id. at 10 (internal quotation marks and citation omitted). In McMullen, we cited Spookyworld in noting “the tenuousness of the arguments for engrafting such a ‘bad faith’ exception ... noting the emergent rule that bankruptcy eoui'ts should not inquire into the legitimacy of ongoing administrative enforcement proceedings in determining whether the police power exception applies to them.” 386 F.3d at 328 (internal quotation marks and citation omitted). Moreover, even if the Partnership pi’evailed on this claim, it is questionable whether it would be able to collect much in the way of damages. See 11 U.S.C. § 362(k)(1); Spookyworld, 346 F.3d at 7 (<HOLDING>). Furthermore, any recovery likely would be Holdings: 0: holding judgment in violation of automatic stay void 1: holding that the denial of a motion to find a violation of the automatic stay was a final order 2: holding that a debtor that is a corporation cannot sue under 362h for a violation of the automatic stay 3: holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay 4: holding that the protections of the automatic stay apply only to actions against the debtor
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brother Benjamin Culbertson, an attorney, filed a divorce action on August 5,1993 on grounds of Kristi Culbertson’s adultery. Attached to her Answer and Counterclaim, Kristi appended an affidavit stating that she was not involved in an adulterous affair. On August 23, 1993, the family court conducted a hearing regarding temporary custody of the Culbertsons’ minor daughter. At the hearing, in response to Kristi’s affidavit which was before the court and which denied adultery, Benjamin offered Thomas’s affidavit, including transcripts of telephone conversations taped by Thomas that revealed Kristi’s adulterous activity. It appears that at the time of this submission, Benjamin was aware of the statute and the Fourth Circuit’s opinion in Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984) (<HOLDING>). Kristi’s counsel objected to the introduction Holdings: 0: recognizing exception 1: holding that the trial court lacked authority to renew spousal support payments pursuant to a motion that was filed after the expiration of time during which spousal support was required to be paid under the original judgment 2: holding that there is no spousal exception to the statute 3: holding that there is no exception to rule 322c and that the limitations period is jurisdictional 4: holding that the trial court was without authority to modify a spousal support obligation when the modification proceeding was initiated ten years after the obligation to pay spousal support under the dissolution judgment had been terminated by order
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Neither is this court free to reopen and replace Congress’s judgment with our own.”), and the factual similarities between Prost and the case here, Mr. Abernathy’s claims appear to be barred, see Stine v. Davis, 442 Fed.Appx. 405, 405-06 (10th Cir.2011) (“A Chambers-type argument that his prior escape convictions did not merit a career offender enhancement was available to Mr. Stine at the time of his initial § 2255 motion. The fact that Chambers itself was not decided until after Mr. Stine filed his initial § 2255 motion makes no difference. Neither does the fact that Mr. Stine may have tried and lost a Chambers-type argument in his first § 2255 motion mean that it was an inadequate and ineffective remedial vehicle for challenging his detention.”); see also Brace, 634 F.3d at 1170 (<HOLDING>). However, Mr. Abernathy presents two arguments Holdings: 0: holding that the petitioners initial 2255 motion offered him an adequate and effective means for testing his statutory interpretation argument 1: holding that an expert is not competent to testify as to statutory interpretation 2: holding statutory interpretation is subject to de novo review 3: holding that a trial courts statutory interpretation is given no deference on review 4: holding that the defendant is precluded from bringing his ncmiosbased statutory interpretation argument under prost
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Biotech Corp., 178 B.R. 34, 38-39 (Bankr.D.Mass.1995), held that a certificate of deposit which states on its face "nonnegotiable and nonlransferable” is a general intangible under Rhode Island law. Acknowledging that its holding was against the weight of authority, the court held that "[nonnegotiable, nontransferable certificates of deposit] are not instruments because they are not transferable in the ordinary course of business.” Id. at 39. However, the court made no factual finding as to whether in commercial practice such certificates are in fact transferred, but merely stated, "I do not agree that the 'realities of business practice' need be consulted.” Id. at 38; see also Bank IV Topeka, N.A. v. Topeka Bank & Trust Co., 15 Kan.App.2d 341, 807 P.2d 686, 691 (Kan.Ct.App.1991) (<HOLDING>); Prudential-Bache Securities, Inc. v. Bartow Holdings: 0: holding that a certificate of deposit labeled nontransferable is not an instrument without making any inquiry into actual business practice 1: holding out admission to practice law when not admitted to practice 2: holding that a loan transaction is a business practice under the ucl 3: holding certification is not an occasion for inquiry into the merits 4: holding that the term manufacture applied not only to things made but to the practice of making to principles carried into practice in a new manner to new results of principles carried into practice
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of the proceedings: "We do not mean that the non-moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.E.d.2d 265 (1986). Seizing in part on this declaration, a number of federal courts have found that evidence that would be inadmissible a , 520 U.S. 781, 117 S.Ct. 1734, 188 L.Ed.2d 1 (1997); Treff v. Galetka, 74 F.3d 191, 195 (10th Cir.1996) ("The nonmoving party is not required to produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible.") (quotation omitted) (italies in original); Petruszi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1284-85 n. 9 (3d Cir.19983) (<HOLDING>). We find particularly instructive the case of Holdings: 0: holding that ijnadmissible evidence may be material if the evidence would have led to admissible evidence 1: holding on the authority of celotex v catrett 477 us 317 106 sct 2548 91 led2d 265 1986 that hearsay evidence produced in an affidavit opposing summary judgment may be considered if the outofcourt declarant could later present that evidence through direct testimony ie in a form that would be admissible at trial 2: holding that hearsay evidence may be considered on summary judgment if the same evidence would be admissible in another form at trial 3: holding that hearsay in affidavit which would be inadmissible in evidence at trial could not be considered on motion for summary judgment 4: holding that evidence in an inadmissible form may be considered at the summary judgment stage as long as the evidence is submitted in an admissible form at trial
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their staff in the correct way to handle child abuse cases. (Amended Complaint at 63.) Local governments may be held liable for' constitutional violations caused by official custom and policy. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). A municipality cannot be liable for the failure to supervise or train an officer when there is no underlying constitutional violation by the officer. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). However, actions of city policymakers, rather than those of the individual officer whose behavior directly impacted the plaintiffs, can be the predicate for § 1983 claims against a municipality. Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir. 1991) (<HOLDING>), cert. denied, 503 U.S. 985, 112 S.Ct. 1671, Holdings: 0: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city 1: holding that city policymakers who owed an independent duty to pretrial detainees were individually liable under 1983 for prisoner suicide even though factfinder determined that the turnkey had not violated prisoners constitutional rights 2: holding city policymakers rather than turnkey were the city actors whose primary liability must be shown to establish 1983 claim arising from prisoner suicide 3: holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures 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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counsel are precluded from doing so. Although the lower court in the present case did not address this point in detail, the court did explain that the claim was denied because we have repeatedly rejected constitutional challenges to rule 4 — 3.5(d)(4). The lower court provided its rationale for denying relief on the constitutional challenge and, in doing so, sufficiently complied with rule 3.851. Accordingly, Troy is not entitled to relief as to this subclaim. 8. Caldwell Claim Troy contends that the trial court’s instruction to the jury that its role is advisory diminished its responsibility, contrary 5 (Fla.2006)). Second, Troy’s claim that the trial court’s instruction diminished the jury’s sense of responsibility is meritless. See Card v. State, 803 So.2d 613, 628 (Fla.2001) (<HOLDING>). Although the instructions provided during the Holdings: 0: holding as meritless a claim that the standard jury instructions which refer to the jury as advisory and refer to jurys verdict as a recommendation violate caldwell 1: recognizing that references to and descriptions of the jurys verdict as advisory as a recommendation and of the judge as the final sentencing authority are permissible under romano v oklahoma 512 us 1 114 sct 2004 129 led2d 1 1994 2: holding that district court could not decide after jury returned verdict to treat jury verdict as advisory on issue not triable of right by jury but which was tried by consent of parties to nonadvisory jury 3: holding that if jury instructions viewed as a whole fairly state the applicable law to the jury the failure to give particular instructions will not be error 4: holding that although the instruction at issue could have been worded more specifically the jury instructions as a whole did not mislead the jury as to the law
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bank with fewer than 20 employees that section 24, Fifth, has been impliedly repealed by the ADEA, reasoning that they are not in conflict inasmuch as the ADEA covers only employers with 20 or more employees; stating in dictum that, “arguably,” section 24, Fifth, has been impliedly repealed by the ADEA to the extent that they are, in fact, in conflict); compare Ana Leon T. v. Federal Reserve Bank of Chicago (6th Cir. 1987) 823 F.2d 928, 931 (per curiam) (dealing with section 4, Fifth, of the Federal Reserve Act, as amended, codified at section 341, Fifth, of title 12 of the United States Code, its common designation, which, in line with the model of section 2 , 809 P.2d at pages 1301-1303 (same); compare Moodie v. Federal Reserve Bank of New York, supra, 835 F.Supp. at pages 752-753 (<HOLDING>); Moodie v. Federal Reserve Bank of New York, Holdings: 0: holding to the effect that section 24 fifth has been impliedly amended by title vii 1: holding to the effect that section 1432a as impliedly amended by title vii preempts state law without limitation as to only conflicting state law 2: holding outside of the context of title vii or the adea that section 24 fifth preempts state law to the extent but only to the extent that it conflicts 3: holding to the effect that section 341 fifth as impliedly amended by title vii preempts state law to the extent but only to the extent that it conflicts 4: holding outside of the context of title vii or the adea to the effect that section 341 fifth preempts conflicting state law
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the mere ipse dixit of a credentialed witness.’ ” Id. at 232 (emphasis added) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999)). If an expert “brfings] to court little more than his credentials and a subjective opinion,” his testimony will not support a judgment. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.1997) (substitution in original). We later observed that an expert’s testimony is conclusory as a matter of law if he “simply state[s] a conclusion without any explanation.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex.2008). And testimony is speculative if it is based on guesswork or conjecture. Although Coastal involved expert testimony, its holding is not necessarily limited to experts. See Coastal, 136 S.W.3d at 233 (<HOLDING>). We held that “[o]pinion testimony that is Holdings: 0: holding that bare conclusions even if unobjected to cannot constitute probative evidence 1: holding it is proper to defer to the family court even if conflicting evidence is presented on appeal as long as ample evidence in the record supports the family courts findings and conclusions 2: recognizing the probative value of objective and reliable hearsay evidence 3: holding that a court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged 4: holding that inextricably intertwined evidence is intrinsic evidence that is admissible if its probative value outweighs the danger of prejudice
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the pending Motion to Strike, specifying Plaintiffs failure to seek leave to file the amendment as grounds to strike. [Doc. # 13 (Mot.Strike) at 2.] Additionally, Defendants argued that assuming the Court allowed Plaintiff to submit an untimely Motion to Amend Complaint, any motion should be denied because of a failure to state a claim upon which relief could be granted. [Id. at 3.] Plaintiff has not filed a response to Defendants’ Motion, timely or otherwise. DISCUSSION I. Defendants’ Motion to Strike Third Amended Complaint for Failure to Comply with Federal Rule of Civil Procedure 15(a) (Doc. # 13) A. Legal Standard Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend a pleading “once as a matter of course at any time before a r 96, 699 (9th Cir.1988) (<HOLDING>). B. Analysis The Court recognizes that Holdings: 0: holding that especially in civil rights claims a court has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits due to ignorance of technical procedural requirements 1: holding that pro se litigants must follow the kentucky rules of civil procedure 2: holding that although pro se litigants are entitled to liberal construction of their pleadings pro se litigants must follow procedural rules 3: recognizing that although pro se litigants are not entitled to greater rights than represented litigants due process principles permit the imposition of a procedural bar only after consideration of the pro se litigants reasonable expectations about what had occurred 4: recognizing that courts generally afford pro se litigants leniency in technical matters
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the Court is required to presume that all the factual allegations concerning the Defendants' purported deliberate indifference as to Candelaria's medical needs are true. Indeed, the Moving Defendants have proffered no facts overlooked by this Court nor have they provided medical records or affidavits concerning the medical care received by Candelaria during his tenure at Green Haven supporting their claim for supervisory immunity, accordingly, this Court need not, and indeed cannot, delve into the question of the prison officials’ subjective "intent” as required by contemporary Eighth Amendment jurisprudence. See Farmer v. Brennan, -U.S. -, -, 114 S.Ct. 1970, 1978-1979, 128 L.Ed.2d 811 (1994); see also Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d 271 (1991) (<HOLDING>). It is also persuasive to note that Candelaria Holdings: 0: holding a subjective inquiry into a prison officials state of mind is mandated when it is claimed that the official has inflicted cruel and unusual punishment 1: holding prison officials ultimately violated the plaintiffs right to be free from cruel and unusual punishment 2: holding cruel and unusual punishment complaint not preserved 3: holding life in prison without the possibility of parole was not cruel and unusual punishment for juvenile convicted of murder 4: holding that what constitutes cruel and unusual punishment is a question of law
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(citation omitted). Additionally, courts within this circuit have adopted the majority position. See In re Clarkson, 168 B.R. 93, 94 (Bankr.D.S.C. 1994) (“Actions by creditors to collect a debt from the debtor, which are taken after the filing of a bankruptcy petition, are void ab initio and of no legal effect.”) (citation omitted); In re Lampkin, 116 B.R. 450, 453 (Bankr.D.Md.1990) (“This court will adhere to the general rule that violations of the stay are void.”); In re Burns, 112 B.R. 763, 765 (Bankr.E.D.Va. 1990) (“Bankruptcy Courts have generally held that actions taken in violation of the automatic stay are void, and this Court finds no reason to disregard the general rule here.”); but see Blue Ridge Bank v. Boswell (In re Boswell), 206 B.R. 421, 423 (Bankr.W.D.Va.1997) (<HOLDING>). In the view of this Court, the clear weight Holdings: 0: holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay 1: holding that annulment of the automatic stay can be retroactively applied to validate proceedings that otherwise would be void 2: holding judgment in violation of automatic stay void 3: holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached would be inconsistent with the underlying purpose of the automatic stay 4: recognizing that any action taken in violation of the automatic bankruptcy stay is void and without effect
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an appropriate degree of care to protect hotel guests from criminal victimization. Nor can it be said that the duty of anticipation extends only to crimes similar in nature and seriousness to those that have occurred in the past. See Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla.Dist.Ct.App.1981), (burglaries sufficient to alert hotel operator to possibility of attack); Mozlak v. Ettinger, 25 Ill.App.3d 706, 323 N.E.2d 796 (1975); (attempted break-ins at women’s residence indicated possibility of assault); Jenness v. Sheraton-Cadillac Properties, Inc., 48 Mich.App. 723, 211 N.W.2d 106 (1973), (in which hotel employees allowed a prostitute to loiter and she assaulted a guest who refused her solicitations); Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Pa., 1977), (<HOLDING>). In Murphy v. Penn Fruit Co., supra, 418 A.2d Holdings: 0: recognizing that restatement second of torts 323 and 324a correctly state pennsylvania law 1: recognizing tentative draft of restatement second of torts 652e 2: recognizing kansas courts adoption of restatement second of torts 909 1977 3: recognizing that restatement second of torts 416 to 429 are often overlapping 4: holding that auto thefts on parking lot should alert owner to danger of assaults citing restatement second of torts 281 comment j 1965
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Similarly, the Council argues that the Rules must rise or fall as a single regulatory scheme. ¶ 49 Our courts have repeatedly held that if part of a legislative act is unconstitutional, it alone should be severed if the balance of the act remains workable. Randolph v. Groscost, 195 Ariz. 423, 427, ¶ 13, 989 P.2d 751, 755 (1999); Long v. Napolitano, 203 Ariz. 247, 266, ¶ 70, 53 P.3d 172, 191 (App. 2002). The Rules have “the same effect and force as a law.” Goodman v. Superior Court, 136 Ariz. 201, 203, 665 P.2d 83, 85 (1983). Consequently, no reason appears, and neither the Cooperatives nor the Council suggest any, why we cannot similarly sever R14r-2-1611(A) from the Rules if the remaining regulatory framework is workable. See Burbridge v. Sampson, 74 F.Supp.2d 940, 954 (C.D.Cal.1999) (<HOLDING>). ¶ 50 We will sever R14-2-1611(A) and leave Holdings: 0: holding that the proof at sentencing1 provision contained in 42 pacs 97121 is unconstitutional in light of alleyne and is not severable from the remainder of the statute 1: holding that because pennsylvania law limited a state courts review of a zoning boards decision to the issue whether the boards determinations were supported by substantial evidence the rookerfeldman doctrine did not prevent the plaintiffs from filing a federal action claiming that the zoning board had engaged in disability discrimination following a state courts review of the boards determinations 2: holding that an arbitration provision that waived class actions and thus required the consumer to pay a 125 fee to vindicate a 150 claim was substantively unconscionable but also holding that the waiver provision was severable from the remainder of the arbitration provision which would be enforced 3: holding export provision severable from other hmt provisions 4: holding boards unconstitutional regulations severable from remainder
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risk inadvertently foreclosing his right to pursue certain constitutional claims by ignorantly filing a petition that excluded those claims. After McCleskey, however, this is precisely the “trap for the unwary pro se petitioner” of which Justice Blackmun warned. Since a prisoner has no right to counsel in habeas proceedings, see Coleman, — U.S. at -, 111 S.Ct. at 2566, the initial habeas petition is typically filed pro se, or at best with the assistance of jailhouse lawyers who are notoriously unreliable. The absence of a right to counsel in habeas proceedings means that lack of counsel does not constitute cause under the McCleskey rule for a pro se petitioner’s failure to raise a claim in his initial habeas petition. See, e.g., Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir.1991) (<HOLDING>). Thus, a petitioner’s initial pro se habeas Holdings: 0: holding petitioners pro se status did not constitute adequate cause for failure to raise claims earlier 1: holding that this court was unable to reach alleged errors where pro se appellant did not provide an adequate record 2: holding that pro se status does not in itself constitute an extraordinary circumstance meriting tolling 3: holding that pro se petitioners need not raise issues in ins terms but may raise them as they may have understood them 4: holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond
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the law as amended at the time of the appeal, unless doing so would interfere with a vested right. Whether a particular expectation rises to the level of a vested right is not capable of precise definition. In recognizing the conclusory nature of the inquiry, this court has defined a vested right as an expectation that is so far perfected that it cannot be taken away by legislation. Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 20 (1985). Although not capable of precise definition, a vested right is a complete and unconditional demand or exemption that may be equated with a property interest. See, e.g., Sepmeyer v. Holman, 162 Ill. 2d 249 (1994) (finding that expiration of a statute of limitations creates a vested right that is beyond legislative interference); Collin, 302 Ill. at 275 (<HOLDING>). Plaintiff initially argues that it has a Holdings: 0: holding that owner of land sought to be taken for public use has a vested right to compensation pursuant to law in effect at time of filing of petition because filing of petition creates an immediate fixed and determinate right to any compensation 1: holding that because maryland law expressly creates right to file workers compensation claim action exists for wrongful discharge for termination based solely on the filing of a workers compensation claim 2: holding that time limit for filing petition for review is mandatory and jurisdictional 3: holding that if defendant could establish ineffective assistance of counsel in failure to file petition for review in his direct appeal then appropriate remedy would be to allow filing of petition for review out of time 4: holding that utility customers mailing of a petition did not constitute the filing of the petition as filing was not effectuated until the petition was received by the clerk
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party who seeks to seal an entire record faces an even heavier burden.” (internal quotation marks and citation omitted)). The rationale underlying the “good cause” standard for nondispositive orders, namely that “the public has less of a need for access to court records attached only to non-dispositive motions because those documents are often unrelated, or only tangentially related, to the underlying cause of action,” does not apply to this case. See Kamakana, 447 F.3d at 1179 (internal quotation marks omitted). Here, the parties seek to seal the entire record of the proceedings in the district court, including the court’s opinion. The district court properly invoked the “compelling reasons” standard in considering the sealing request. See Joy v. North, 692 F.2d 880, 894 (2d Cir.1982) (<HOLDING>). The only reasons provided for sealing the Holdings: 0: holding that a nonstatutory postponement does not constitute an irregularity in the foreclosure proceeding itself that could justify setting aside a foreclosure sale 1: holding that a failure to comply with the foreclosure statutes invalidates a foreclosure sale 2: holding that only the most compelling reasons can justify the total foreclosure of public and professional scrutiny to a courts basis for the adjudication 3: holding that after a judgment entry grants a decree of foreclosure and order of sale the foreclosure action cannot be dismissed as the judgment is final 4: holding that foreclosure on mortgage not state action and thus could not trigger due process clause scrutiny
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services they perform, its relationship with its customers, and by the fact that failure to properly perform the contract could have far-reaching or appalling consequences.” See id. at ¶ 168. Contrary to Plaintiffs assertions, the Armored Car Carrier Act does not create a legal duty distinct from Defendant’s contract obligations. First, while Plaintiff cites to the Armored Car Carrier Act, it does not state what, if any, particular provision of the statute that Defendant violated. Plaintiff simply cites to the definitions section of the Act. Without an allegation that Defendant violated one or more provisions of the Armored Car Carrier Act’s provisions, Plaintiffs negligence claim must fail. See Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965) (<HOLDING>). Second, to the extent that Plaintiff is Holdings: 0: holding that a statute of general applicability was not enacted for the purpose of regulating the business of insurance 1: holding that the filing of a complaint in a class action suit suspends the statute of limitations but a denial of class certification reactivates the statute of limitations for potential plaintiffs 2: holding that when a statute is patterned after a similar provision in another states statute it is proper to resort to judicial constructions placed on the statute by the courts of the state whose statute provided the model in determining the proper construction 3: holding that liability arises out of a statute only in limited instances where disregard of the command of the statute results in damage to one of the class for whose especial benefit the statute was enacted 4: holding that the title of the statute did not limit the reach of the statute
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Since Irene Lifson did not have the “team laptop,” the only place she could respond to pages was at home. Therefore, a reasonable fact-finder could easily conclude that at the time of her accident, Irene was en route to the place where she and her employer expected her to, and where she in fact would have done, work for MONY. While we have some doubt as to whether a reasonable insured would understand the policy language in light of New York caselaw interpreting similar statutory phrases, we believe such law also strongly favors the Plaintiff. An employee who can show either that they were to carry out “a specific work assignment for the employer’s benefit at the end of the particular homeward trip,” or that they engage in “so regular a pattern o 2, 289 N.Y.S.2d 534, 535-36 (1968) (<HOLDING>); cf. Neacosia v. N.Y. Power Auth., 85 N.Y.2d Holdings: 0: holding that the employee was acting within the course of her employment when she died while returning from the workrelated session because her death occurred on a public highway which was brought within the scope of her employment by her employers requirement that she attend training at the state police academy 1: holding that lifeguard on call was in course of employment because she was in a position to return quickly to work and employer benefitted from her availability 2: holding the employee was clearly within the zone of her employment even though not at her work station because she was on the universitys premises the campus 3: holding that a doctor who was traveling to the hospital simply to be on call and not in response to a page was in the course of business even though she was not required to be in any particular location while on call 4: holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination
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159, 842 P.2d 975, 978 (1992), affd in part, rev’d in part, 124 Wash.2d 158, 876 P.2d 435 (1994). The Restatement defines the doctrine of promissory estoppel as follows: A promise which the promisor should reasonably expect to induce action of forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. Restatement (Second) of Contracts § 90 (1979). The doctrine of promissory estoppel is used to enforce a promise where there is a lack of consideration and as such does not apply to the facts of this ease. See Hatfield v. Columbia Federal Savings Bank, 57 Wash.App..876, 790 P.2d 1258, 1263 (1990) (<HOLDING>). In this case there is an express contract and Holdings: 0: holding that the doctrine of promissory estoppel did not apply where promise was supported by bargained for consideration 1: holding that the absence of a binding agreement does not defeat a promissory estoppel claim 2: holding that promissory estoppel is applicable only in the absence of an enforceable contract 3: holding that unenforceable promises cannot form the basis for a claim of promissory estoppel 4: holding that a promissory estoppel claim failed where the plaintiff provided no evidence that the employer defendant did not follow the employment manuals requirements
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States v. Judge, 864 F.2d 1144, 1145 (5th Cir.1989) (stating that Bertine “does not condemn all forms of police discretion, but only ‘evidentiary discretion which is exercised on the basis of suspicion of criminal activity”), cert. denied, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990). Because that requirement is met by the MPPD inventory search policy, Andrews has not shown that Adams violated the Fourth Amendment by searching Andrews’ notebook. See United States v. Walker, 931 F.2d 1066, 1068-69 (5th Cir.1991) (finding no Fourth Amendment violation where “police department had an established but unwritten inventory policy,” the purpose of which “was to protect the property of the owner and to reduce the potential liability of the police department”); Gallo, 927 F.2d at 819 (<HOLDING>). Andrews also argues, however, that no Holdings: 0: holding that even though an inventory search was invalid the vehicle was properly impounded 1: holding that a qualitative statement that inventory was in good shape while defendants knew the contrary was actionable 2: holding that police do not need probable cause or a warrant to search items that have already been searched for inventory purposes 3: holding that inventory search could not be condemned insofar as department policy permitted opening box for the standard purposes of inventory searches 4: holding the opening and inventory of a shoulder bag was reasonable despite the possible alternative of securing the bag as a whole
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§ 8(a)(3) of the Act. Finally, the record lacks substantial evidence to support a § 8(a)(5) violation. Section 8(a)(5) prohibits an employer from bypassing the union to bargain directly with employees. 29 U.S.C. § 158(a)(5); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1368 (4th Cir.1995). However, an employer is allowed to talk with employees and to communicate its position to them. Americare Pine Lodge Nursing & Rehab. Ctr. v. NLRB, 164 F.3d 867 (4th Cir.1999). The limit of these communications is offering a quid pro quo that is not before the union. Id. The employer’s § 8(a)(5)-duty is to present proposals to the union before communicating them to employees. See Ameri-care, 164 F.Sd at 876-77 (<HOLDING>). There is, however, no “rule requiring Holdings: 0: recognizing that union members interests are adequately represented by the union 1: holding that a rico action by union members was properly dismissed where any financial improprieties occurred with union funds and directly injured solely the union 2: holding union members state law claims for defamation against union preempted 3: holding that a union officials comments may be used to infer the object of union activity 4: holding that an employer could only distribute its proposal to union employees when the proposal was properly before the union
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the conditions of supervision which he has been doing since he was released on bond. (Tr. 11/26/13, pp. 17-18). Having heard the argument, the court then queried the government about its “position on home confinement here.” Id. p. 18. The government responded by saying that it was asking for a sentence of imprisonment within the range. Id. As for the § 3553 sentencing factors, circuits are split as to whether a district court need consider § 3553 factors when, as here, the revocation is mandatory under § 3583. Compare, U.S. v. Thornhill, 759 F.3d 299, 311 (3d Cir.2014) (stating that, “Meaningful consideration of the § 3553(a) factors is also required in revocation proceedings.”) with U.S. v. Garza, 706 F.3d 655, 658 (5th Cir.2013); U.S. v. Giddings, 37 F.3d 1091, 1095 (5th Cir.1994) (<HOLDING>). We need not determine where our Circuit Holdings: 0: holding that the statute is mandatory 1: holding that a sentencing court is required by 18 usc 3583g to revoke the defendants term of supervised release unless defendant could come under the exception in 18 usc 3583d 2: holding that when revocation is mandatory under 18 usc 3583g the statute does not require consideration of 3553a factors 3: holding that a district courts failure to consider the 18 usc 3553a factors was plain error relying on gall 4: holding that the district courts sentencing decision was not constrained by the factors specifically enunciated in 18 usc 3583e where revocation was mandated by 3583g
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or child support. Thus, even if the Former Wife established need, the trial court abused its discretion in accepting and adopting the magistrate’s recommended order because there is no competent, substantial evidence to support the magistrate’s determination that the Former Husband has the ability to pay. See Kearley v. Kearley, 745 So.2d 987, 988 (Fla. 2d DCA 1999) (“We conclude that the trial court abused its discretion in awarding the appellee $1400 per month in alimony. According to the financial affidavit, appellant’s monthly net income is $3,380.41. After deducting his average monthly expenses from his net income, including the $1400 alimony, appellant is left with a deficiency of $818.59 per month.”); see also McCann v. Crumblish-McCann, 21 So.3d 170, 172 (Fla. 2d DCA 2009) (<HOLDING>); Hotaling v. Hotaling, 962 So.2d 1048, 1051 Holdings: 0: holding that the trial court abused its discretion in ordering temporary alimony that exceeded the husbands ability to pay 1: holding that the trial court exceeded its discretion because its judgment created financial obligations for the husband that after deducting the wifes periodicalimony award from the husbands net income exceeded his remaining income 2: holding that although trial judges have broad discretion in setting temporary alimony awards any such award must be supported by competent substantial evidence that demonstrates the need for support and the paying spouses ability to pay 3: holding in part that the trial court abused its discretion in granting a temporary injunction in the absence of a showing that the plaintiff did not have an adequate remedy at law 4: holding that final judgment ordering 4000 in monthly alimony created presumption in subsequent proceedings that husband had ability to pay that amount
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prior to the granting of a discharge, the reaffirmation agreement satisfies the requirements of 11 U.S.C. § 524(c)(1). This is true even if the reaffirmation agreement is not memorial ized in a signed writing until after a discharge is granted. See In re Merritt, 366 B.R. 687 (Bankr.W.D.Tex.2007) (finding that a reaffirmation agreement is made “when all parties to the contract have objectively expressed their intention to make the bargain expressed by the contract,” and enforcing a reaffirmation agreement which was signed by the creditor post-discharge where the communications between the debtor and the creditor and the acts and circumstances surrounding those communications establish that a meeting of the minds occurred pre-discharge); In re LeBeau, 247 B.R. 537 (Bankr.M.D.Fla.2000) (<HOLDING>). In this case, a “meeting of the minds” Holdings: 0: holding that agreement had been reached where the plaintiff had proposed terms for providing his services to the defendant and the parties then entered into a business relationship despite defendants claim it never agreed to the plaintiffs proposed salary terms for that relationship 1: holding that a settlement agreement in which the parties failed to agree upon the terms of a release was unenforceable 2: holding that reopening a closed case to file a reaffirmation agreement is not permitted by the bankruptcy code 3: holding that a reaffirmation agreement is enforceable as having been made predischarge where the parties agree to the terms of the proposed reaffirmation predischarge but the debtors do not sign a writing embodying the terms of their agreement until after entry of the discharge order 4: recognizing an agreement to agree is enforceable if its terms are reasonably definite and certain
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carries a firearm, shall, in addition to the punishment provided for such crime or violence or drug trafficking crime, be sentenced to imprisonment for five years. 3 . Section 922(k) provides in relevant part: It shall be unlawful for any person ... to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce. 4 . We note additionally that even if the gun was first discovered at the scene of the arrest, the evidence in the record before us shows that a search of the glove compartment incident to defendant’s arrest would have been lawful. See New York v. Belton, 453 U.S. 454, 460-61 & n. 4, 101 S.Ct. 2860, 2864-65 & n. 4, 69 L.Ed.2d 768 (<HOLDING>). Moreover, given that defendant concedes the Holdings: 0: holding police incident to arrest of occupant of automobile may search entire passenger compartment of vehicle 1: holding that after making an arrest of the driver of a vehicle the police may search the passenger compartment of the vehicle 2: holding when a policeman has made a lawful custodial arrest of the occupant of an automobile he may as a contemporaneous incident of that arrest search the passenger compartment of that automobile 3: recognizing that permissive search of car compartment incident to arrest is based on the fact that compartment is within reach of the arrestee 4: holding that after policeman has made a lawful custodial arrest of the occupant of an automobile he may as a contemporaneous incident of that arrest examine the contents of any containers including glove compartments found within the passenger compartment
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whose unborn child is killed”); Kan. Stat. Ann. § 65-6703(e) ("A woman upon whom an abortion is performed shall not be prosecuted under this section....”); Ky.Rev.Stat. Ann. § 507A.010(3)("nothing in this chapter shall apply to any acts of a pregnant woman that caused the death of her unborn child”); La. Rev.Stat. Ann. § 14:87(A)(2) (penalties for criminalized abortions not applicable to pregnant women having abortions); Minn.Stat. § 609.266 (excluding the "pregnant woman” from liability for "crimes against unborn children”); Neb.Rev.Stat. § 28-335 (providing "[n]o civil or criminal penalty ... against the patient upon whom the abortion is performed”); Ohio Rev.Code Ann. § 2919.17(I)(expressly excluding women from liability for post-viability abortions); 18 Pa. Cons. , 1224 (2005) (<HOLDING>); Hill-man v. State, 232 Ga.App. 741, 503 Holdings: 0: holding a fetus is not a child person or individual for purposes of criminal prosecution under the reckless injury to a child statute 1: holding for purposes of establishing the offense of reckless manslaughter against a pregnant woman a fetus is not a person 2: holding that the definition of person in the hawaii manslaughter statute did not include a fetus and thus did not apply when a woman caused the death of her fetus by smoking crystal methamphetamine 3: holding an unborn viable fetus is not a human being under the new mexico child abuse statute and the mothers use of cocaine during pregnancy was not child abuse 4: holding that a woman possessed immunity from criminal prosecution for causing injury or death to her fetus
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to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” However, as the Supreme Court of Georgia has long held, [t]he general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. As the trial court’s charge on the use of a knife as a deadly weapon pointed out, whether Quiroz’s use of the knife made it a deadly weapon was for the jury to decide. But the part of the indictment unsupported by the evidence in this case (<HOLDING>) was an “unnecessary [specification] of a[ Holdings: 0: holding that a drivers knowledge that there are concealable weapons in the car available for the drivers use is evidence of possession 1: holding that variance between indictment alleging that defendant held knife to victims neck and proof that defendant only pointed knife at victim was not fatal to conviction for aggravated assault 2: holding a knife to the drivers neck 3: holding that the officer acted reasonably in shooting the decedent where the plaintiff did not directly counter the defendants evidence showing that the decedent matched the description of a suspect who threatened a victim with a knife was armed with a knife and ignored the officers instructions to drop it and jabbed it at the officer while taking steps toward him 4: holding that variance between indictment alleging that defendant threw a knife at the victim and proof that the knife fell out of the defendants hand as he was stabbing the victim was not fatal to conviction for aggravated assault
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Purchasers in another location. These transactions allowed for the parties to cut down on transportation costs. Any diff referenced in U.C.C. § 1 — 201(b)(9) must be an antecedent or pre-existing debt. See In re Black Diamond Mining Co., 2011 WL 6202905, at *24 (stating that no pre-existing debt was due or owing by Black Diamond to Commodities at the time Commodities acquired the coal, and the transaction was thus not in total or partial satisfaction of a money debt); In re Mid-Atl. Piping Prods. of Charlotte, Inc., 24 B.R. 314, 328 (Bankr.W.D.N.C.1982) (stating that a person is not a BIOC “where a party receives goods in satisfaction of an antecedent money debt owed to that party”) (emphasis added); Kay v. City Bank & Trust Co. of Natchez, Miss., 358 F.Supp. 630, 639 (S.D.Ohio 1973) (<HOLDING>) (emphasis added); Fleet Capital Corp. v. Holdings: 0: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or 1: holding that reporting of historically accurate debt may violate the fcra when the reporting did not include that the debt was discharged in bankruptcy or that the debt was in dispute 2: holding that satisfaction of preexisting debt of corporate affiliate was sufficient to support jury finding of fair consideration for the transfer of valid security interest 3: recognizing satisfaction of a valid debt as adequate consideration in a transfer of real property 4: holding that the plaintiff was not a bioc because the plaintiffs purchase was in partial satisfaction of a prior personal debt
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at 1241 (citing 28 U.S.C. §§ 516, 519, which vest the Attorney General, acting through the officers of the Justice Department, with plenary authority to settle litigation in which federal agencies are a party). Settlement is to be encouraged. See United States v. McInnes, 556 F.2d 436, 441 (9th Cir.1977) (“We are committed to the rule that the law favors and encourages compromise settlements.”). Indeed, if the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same rulemaking process by which the regulation was created — a proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at 524 n. 13, 106 S.Ct. 3063 (<HOLDING>). The fact that the Federal Agencies complied Holdings: 0: recognizing that a limit on the governments ability to enter a consent decree would make it substantially more difficult to settle title vii litigation 1: holding that arbitration agreement that did not provide for award of attorney fees to successful title vii claimant was unenforceable because the right to attorneys fees is central to the ability of persons to seek redress from violations of title vii 2: holding that nonparties to a consent decree resolving a title vii case may fully challenge beyond the narrow grounds normally available for such a collateral attack employment decisions taken pursuant to it 3: holding claims based on title vii subject to arbitration 4: holding that absent a factual basis rendering it invalid an oral agreement to settle a title vii claim is enforceable against a plaintiff
|
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we conclude that the NTEU standard is inapplicable on these facts. 4 . Implicit in the Pickering test is a requirement that the public employer have taken some adverse employment action against the employee. See Koch v. City of Hutchinson, 847 F.2d 1436, 1440 (10th Cir.1988) (noting that Pickering and its progeny "establish the basic framework for analyzing a claim by a public employee that his or her governmental employer made an adverse employment decision in violation of the employee’s First Amendment rights” (emphasis added)). If the action taken by the employer in response to the employee's speech is inconsequential or has only speculative consequences, there can be no basis for a First Amendment claim. See, e.g., Thomsen v. Romeis, 198 F.3d 1022, 1027-28 (7th Cir.2000) (<HOLDING>). Defendants argue that the written reprimand Holdings: 0: holding that unsubstantiated oral reprimands do not constitute an adverse em ployment action absent evidence that they had some impact on the employees employment status 1: holding that written reprimands with only speculative consequences do not constitute adverse actions 2: holding not only that court had no obligation to predict consequences but also that court could not have predicted consequences 3: holding that poor evaluations alone do not constitute an adverse employment action 4: recognizing that a set of actions may constitute an adverse employment action when considered collectively even though some actions do not rise to the level of an adverse employment action individually
|
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investigation. Citing In re O-D-21 I. & N. Dec. 1079, 1083, 1998 WL 24904 (BIA 1998), the IJ determined that the forgery indicated a lack of credibility with respect to Ebid’s testimony in general and, in particular, with respect to the May 1999 incident. Ebid claims that the IJ erred in making an adverse credibility determination on the basis of the submission of one fraudulent document that Ebid explained was the result of a friend’s advice that he needed corroboration and the fact that he could not obtain one from his doctor in Egypt. We disagree. An asylum applicant’s knowing use of a fraudulent document that goes to the heart of his or her asylum claim, without sufficient explanation, can be substantial evidence to support an IJ’s decision. See In re O-D-, 21 I. & N. Dec. at 1083 (<HOLDING>); accord, Borovikova v. U.S. Dep’t of Justice, Holdings: 0: holding that in light of an applicants omission of various relevant facts from his asylum application substantial evidence supported the ijs adverse credibility determination 1: recognizing that using false documents that go to the heart of an asylum claim can indicate lack of credibility 2: holding that pursuant to the best evidence rule trial testimony relying on documents was inadmissible without submission of such documents or an explanation as to why the documents were unavailable 3: holding that an asylum applicants submission of false documents without an adequate explanation supported adverse credibility findings 4: holding that an adverse credibility determination is sufficient to deny asylum
|
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the exercise of the particular profession. The duty imposed upon the insurance agent as well as [the lawyer, doctor, and accountant] upon whose advice the client or patient depends is that of ‘reasonable diligence' a breach of which duty results in an action in negligence.”); § 19:8.Detrimental reliance, 18 La. Civ. L. Treatise, Civil Jury Instructions § 19:8 (3d ed.) ("The basis of detrimental reliance is not the intent to be bound, since detrimental reliance is not really contractual in nature. It is based on the idea that a person should not harm another person by maldng promises that he does not keep."). 295 . See, e.g., Rec. Doc. 1-2 at 10. 296 . See, e.g., Rec. Doc. 172 at 6. 297 . See Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 2014-0664 (La. 12/9/14), 156 So.3d 627, 633-34. (<HOLDING>). 298 . Rec. Doc. 118-5 at 10. 299 . Rec. Doc. Holdings: 0: holding that it is wellsettled that although a plaintiff is entitled to full recovery for its damages it is not entitled to a double recovery for the same loss or injury 1: holding that it is clear that ebys misrepresentation claim as it is presented here is a contractual one 2: holding that it is wellsettled in our jurisprudence that unjust enrichment is a quasicontract claim 3: holding that it is not 4: holding that under michigan law it is wellsettled that an individual with a mental disability is the beneficiary of the tolling statute even where his rights have been capably handled by a guardian or an attorney
|
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James Financial Services, Inc., 2013 WL 489088 at *3, n. 2 (M.D.Fla. Feb. 8, 2013) (recognizing existence of fraudulent concealment tolling doctrine but finding that plaintiff did not properly allege all elements). The Florida Supreme Court previously held that the fraudulent concealment doctrine no longer existed, and that the only viable tolling doctrines were enumerated in Fla. Stat. § 95.051; however the court subsequently withdrew that opinion. See Fulton County Admin. v. Sullivan, 1997 WL 589312 (Fla. Sept. 25, 1997), withdrawn and superseded by 753 So.2d 549 (Fla.1999). As such, there is no definitive law on this subject in Florida, and this Court will not create new law and hold that the doctrine does not apply. Cf. Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001) (<HOLDING>). 11 . Both Weaver and Beacon also mention in Holdings: 0: holding that the courts statute of limitations is jurisdictional in nature and is thus not subject to waiver or estoppel 1: holding that employer was estopped to assert a statute of limitations defense where the insurer had arranged to have the claimant examined by one of its physicians after the statute of limitations had run 2: holding that defendants may be estopped from raising defense of statute of limitations even though equitable estoppel is not listed in fla stat 95051 3: holding nursing home estopped from raising statute of limitations defense when it stipulated to sixtyday extension of presuit screening period 4: holding that equitable estoppel may bar a partys assertion of a statute of limitations
|
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for bad debt, or CMS’ interpretive guidance on this issue. The court disagrees. As discussed above, the must-bill policy is set forth in PRM §§ 310, 312 and 322 and further clarified in JSM 370. See California Hospitals Crossover Bad Debts Group Appeal PRRB Dec. No. 2000-D80 (2000 WL 33170706, *8). The must-bill policy has been consistently articulated in the final decisions of the Secretary addressing this issue. See, e.g., Hoag Mem. Hosp. Presbyterian Provider v. Blue Cross, 2002 WL 31548714 (2002); Hospital de Area de Carolina, Admin. Dec. No. 93-D23; Concourse Nursing Home, PRRB Dec. No. 83-D152; St. Joseph Hospital, PRRB Dec. No. 84-D109. Similarly, this court has already affirmed the must-bill policy. GCI Health Care Ctrs. v. Thompson, 209 F.Supp.2d 63, 74 (D.D.C.2002) (<HOLDING>); see also, CHMP, 323 F.3d 782, 793 (9th Holdings: 0: holding that an employeess selfserving statements about his ability are insufficient to contradict an employers negative assessment of that ability such statements may create a material dispute about the employees ability but do nothing to create a dispute about the employers honesty do nothing in other words to establish that the proffered reason is a pretext for discrimination 1: holding that there is nothing arbitrary or capricious about the requirement 2: holding that summary judgment is not appropriate if there is a genuine dispute about a material fact 3: holding that the sentence alone tells us nothing about whether the district court would have imposed a lesser sentence 4: holding that there is nothing intrinsically unclear about the terms sudden and accidental
|
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with the District Court that Seko failed to present a prima facie case under the ADA. See Hennenfent v. Mid Dakota Clinic P.C., 164 F.3d 419, 421-22 (8th Cir.1998) (stating that one element of prima facie ADA case is that employee is qualified to perform essential job functions with or without reasonable accommodation). Further, assuming, as did the District Court, that she established a causal connection between the decision to place her on medical leave and her prior lawsuits, she failed to present evidence showing that Boeing’s proffered legitimate nondiscriminatory reason for placing her on such leave—her inability to return to a job requiring the use of power tools, given her medical condition—was pretextual. See Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir.2000) (<HOLDING>). We decline to address the new arguments Seko Holdings: 0: holding that even if employee established prima facie case of retaliation he produced no evidence challenging employers reason for firing him 1: holding that federal government employee successfully established prima facie case of retaliation under mcdonnell douglas but failed to prove employers proffered reason was pretextual 2: holding that the plaintiff failed to establish a prima facie case of retaliation because there was no evidence that the decisionmaker knew of the plaintiffs protected conduct 3: holding that a prima facie case of retaliation requires a causal link between the employees protected activity and the employers adverse employment action 4: holding that close temporal proximity is sufficient to establish a prima facie case of retaliation
|
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type of drug was in the truck. When Sergeant Witte asked how much methamphetamine was in the truck, Shoen responded “a little bit” without additional questioning from the officers. ¶ 14 Moreover, the officers did not attempt to intimidate Shoen into remaining at the storage unit. In fact, their advice was just the opposite: They recommended that he call someone to pick him up so he could leave. Shoen agreed to speak with the officers and appeared comfortable throughout the encounter; he willingly answered the officers’ questions and allowed them to look in his truck bed. See Paynter, 955 P.2d at 73 (deeming an encounter consensual because the defendant’s liberty was not restrained and his voluntary cooperation was elicited through non-coercive questioning); Thomas, 839 P.2d at 1178 (<HOLDING>); Marujo, 192 P.3d at 1006 (noting that a Holdings: 0: holding that an encounter was consensual where the defendant was comfortable during the encounter chose not to leave and acquiesced to the officers request to answer questions 1: holding officers request for passengers identification during stop constituted lawful consensual encounter 2: holding that once the officer asked the defendant to exit his vehicle the encounter became a stop because the defendant was no longer free to leave 3: holding that the officers mere use of her spotlight and flashlight did not transform the consensual encounter into an investigatory stop 4: holding that request of passenger in vehicle lawfully stopped for traffic infraction for her identification was consensual encounter where there was no evidence that defendant was intimidated or forced to comply with request
|
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multiple glow plugs in the diesel engine system, leading to the clear conclusion that there are multiple “voltage signals.” As such, the intrinsic evidence makes clear to a person of ordinary skill in the art that “a voltage signals” should be construed as “voltage signals” in the context of the ’258 Patent whose claims are directed to vehicles with “one or more glow plugs.” See ’258 Patent 23:33-36. Defendants argue that because the ’258 Patent’s prosecution history does not “suggest whether the applicants intended ‘a voltage signals’ to be singular or plural,” this history dictates that the Court should not correct “a voltage signals.” However, a prosecution history that is silent on a claim term does not prevent a court from correcting a grammatical error. See Novo, 350 F.3d at 1354 (<HOLDING>). Because the Court finds that this Holdings: 0: holding that a court can correct a patent claim for a grammatical error where the prosecution history does not suggest a different interpretation of the claims 1: holding that claim 22 which depends from nonexistent claim 38 could be corrected because the error in the dependency was evident based on the face of the patent and that the correct antecedent claim was apparent from the prosecution history 2: holding a technical term used in a patent document is interpreted as having the meaning that it would be given by persons experienced in the field of the invention unless it is apparent from the patent and the prosecution history that the inventor used the term with a different meaning 3: holding that prosecution history will limit the interpretation of claim terms so as toexclude any interpretation that was disclaimed during prosecution 4: holding that in order to understand patent claims a court can take instruction from the other claims the specification and the prosecution history
|
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36. Mr. Sapp’s overtime logs include notations with various iterations of this statement in response to his overtime requests throughout 2011 and 2012. See id, at 20-86. Furthermore, on December 16, 2011, the BOP sent Mr. Sapp a memorandum clarifying that, as previously advised, he was not to go past certain areas into the prison facility, that he was not to have any inmate contact, and that this action was taken based on the investigation. See D.E. 116-6. The record demonstrates that the BOP consistently cited the ongoing investigation and corresponding restrictions as the reason for denying his overtime requests. That Ms. Burke provided Mr. Sapp with a different or alternate reason does not itself show pretext. Cf. Holland v. Washington Homes, Inc., 487 F.3d 208, 216 (4th Cir. 2007) (<HOLDING>); Fane v. Locke Reynolds, LLP, 480 F.3d 534, Holdings: 0: holding that employers report to state employment agency providing a reason for termination that was different than employers proffered reason did not create a genuine and material issue of fact as to pretext particularly when evidence showed the inaccurate reporting benefitted employee 1: holding that a jury could find employers proffered reason for termination pretext when plaintiff presented evidence that she had not violated company policy or was authorized to deviate from stated policy and employer never discussed alleged violations with her 2: holding that questions about employees impending retirement failed to rebut the employers nondiscriminatory reason for termination particularly considering employee admitted that he did not know whether questions were for a legitimate purpose in concluding overall that the plaintiff had not established a genuine issue of material fact regarding pretext 3: holding that plaintiff can show pretext by demonstrating that an employers proffered reason for an adverse employment action has no basis in fact 4: holding that a reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false and that discrimination was the real reason
|
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judicial body that confers standing to appeal.” Merriam Webster’s Dictionary of Law, 354 (Collector Ed. 2005); see also, Walker v. Ohio State Univ. Bd. of Trustees, No. 09APP-748, 2010 Ohio 373 at ¶ 25 (Ohio Ct. App. Feb. 4, 2010). Dr. Williams could not simultaneously pursue a writ of review in the Superior Court when the District Court entered a TRO, which became a preliminary injunction, enjoining enforcement of V.I.B.M.E.’s decision to permanently revoke his license. The reason is that Rule 15(a)’s thirty-day limit only authorizes the Superior Court to consider a petition for writ of review brought by one who has been “aggrieved by the decision of an officer, board, commission, authority, or tribunal.” Cf. Hodge v. Bluebeard’s Castle, Inc., 392 Fed. Appx. 965, 977 (3d Cir. 2010) (<HOLDING>) (quoting Custer v. Sweeney, 89 F.3d 1156 (4th Holdings: 0: 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 1: holding that the phrase party aggrieved should be given a practical rather than hypertechnical meaning 2: recognizing that each word and phrase of a statute must be given meaning so that no part of it will be void inert redundant or trivial 3: holding that an undefined statutory term should be given its natural ordinary meaning 4: holding that party is aggrieved from the date of issuance but construing a statute rather than rule 15a
|
[
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[
"1"
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it is impossible to know whether the jury’s “Yes” answer to Question 3 is a finding that the Association made a negligent misrepresentation on which the Feldmans or the Trustee — or both — justifiably relied. See In re United Scaffolding, 377 S.W.3d 685, 689-90 & n. 3 (Tex.2012) (observing that the use of and/or in legal documents “inherently leads to ambiguity and confusion”). Because the jury’s ambiguous answers are not findings of liability to each plaintiff, they cannot support a judgment. See W & F Transp., 208 S.W.3d at 47 (reversing trial court’s judgment and rendering take-nothing judgment for two defendants because verdict did not establish individual liability of either defendant); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 640-41 (Tex.App.-San Antonio 1993, no writ.) (<HOLDING>). The remainder of the jury charge does not Holdings: 0: holding that counsels ambiguous statement during argument on summary judgment motion did not constitute waiver 1: holding exclusion was not ambiguous 2: holding that another courts decision is a proper subject of judicial notice 3: holding proper basis for award of fees 4: holding ambiguous finding that one or another defendant was liable did not provide a proper basis for judgment
|
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[
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was enacted in 1991 as part of the General Assembly's general revision of the Workers' Compensation Act. See ch. 219, see. 13, § 8-42-105(2)(c), 1991 Colo. Sess. Laws 219, 1805-06; see also John G. Salmon & Francine R. Salazar, 1991 Update on Workers' Compensation Law, 20 Colo. Law. 2223, 2228 (Nov.1991). Prior to the enactment of the temporary total disability benefits provision, a claimant's failure to attend an appointment with an attending physician was subject to sanctions under what is now seetion 8-48-404(8), CRS. (2007). See id. That provision of the Workers' Compensation Act governs penalties and enforcement when a claimant refuses to submit to a medical examination or evaluation. § 8-48-404(8); see Bacon v. Indus. Claim Appeals Office, 746 P.2d 74, 75 (Colo.App.1987) (<HOLDING>); Dziewior v. Mich. Gen. Corp., 672 P.2d 1026, Holdings: 0: holding that before terminating benefits the plan should have obtained a vocational experts opinion to determine if claimant is presently capable in light of his physical impairment to perform any occupation and observing that claimant met his burden when he proved his disability initially 1: holding that the consideration of the fact that claimant collected unemployment benefits while he was allegedly disabled was not a ground for reversal where there was other medical and vocational evidence supporting denial of benefits and claimants receipt of unemployment benefits was not decisive factor in denial of benefits 2: holding that a claimants benefits were rightly suspended under what is now section 8434048 when the claimant refused to cooperate with a vocational rehabilitation plan 3: holding that vocational experts testimony that there were jobs claimant could perform constituted substantial evidence 4: holding that a claimants benefits were rightly suspended under what is now section 8434043 when the claimant did not return to the authorized physician for treatment
|
[
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doctrine. Maurice Turner was listed as a potential witness in the State’s proposed voir dire, and the prosecutor acknowledged in his opening statement that the jury would hear from Mitchell’s alleged cohorts Antonio Corprew and Lewis “Man-Man” Cochran. In addition, the jury heard about Wali Henderson, the driver of the Hummer, an initial suspect in the shooting, and the jury also learned of Darnell Carter and Andre Chase, the two men who led police to the shotgun. Because it is within the scope of permissible closing argument for counsel to draw inferences from the evidence admitted at trial, which includes the ability to comment on an absence of such evidence, defense counsel’s closing argument was not improper. See Eley v. State, 288 Md. 548, 553, 419 A.2d 384, 386-87 (1980) (<HOLDING>); Wise v. State, 132 Md.App. 127, 146, 751 A.2d Holdings: 0: holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify 1: holding that the failure of defense counsel to call a corroborating witness resulted in prejudice to the defendant 2: recognizing the right of a defendant to comment upon the failure of the state to produce evidence 3: holding that it was permissible for prosecutor to comment on the general failure of the defense to produce any evidence 4: holding that defense counsel may call attention to the states failure to produce evidence
|
[
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[
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of a cell phone incident to arrest. See, e.g., Hawkins v. State, 290 Ga. 785, 723 S.E.2d 924, 926 (2012) (upheld search of text messages that was limited “as much as is reasonably practicable by the object of the search”); Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210, 216 (2012) (upheld search of recent call list). On the other hand, a smaller number of courts, including one circuit court, several state supreme courts, and several district courts, have now rejected the notion that the contents of a cell phone are susceptible to search upon arrest, particularly in circumstances where the phone has been removed from the arrestee’s person by the police. See, e.g., United States v. Wurie, 728 F.3d 1 (1st Cir.2013), cert. granted, — U.S. —, 134 S.Ct. 999, 187 L.Ed.2d 848 (2014) (<HOLDING>); United States v. Mayo, No. 2:13-cr-48, 2013 Holdings: 0: holding that warrantless searches of cell phones incident to arrest should not be allowed because such searches cannot be justified by officer safety or the preservation of evidence given the privacy implications inherent in cell phone data searches 1: holding a person may consent to warrantless searches as a condition of a suspended sentence 2: holding a warrantless search of cell phone contents did not exceed permissible scope of search incident to arrest 3: holding that while law enforcement officers properly separated and assumed possession of a cell phone from arrestees person during the search incident to arrest a warrant was required before the information data and content of the cell phone could be accessed and searched by law enforcement 4: holding that consensual suspicionless searches of government employees personal belongings in the workplace were searches even though refusal to consent carried no criminal penalty and the searches were not for law enforcement purposes
|
[
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[
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the BIA did not abuse its discretion in denying Lin’s motion to reopen as untimely and number-barred, as it was his second motion to reopen and was filed more than six years after his December 2002 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2). The BIA reasonably concluded that Lin failed to establish changed country conditions such that the time and number limits on his motion to reopen should be excused. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). We find no abuse of discretion in its determination that Lin failed to point to evidence in the record establishing that the Chinese government’s current treatment of pro-democracy activists differed from their treatment at the time of his merits hearing. See In re S-Y-G, 24 I. & N. Dec 247, 253 (B.I.A.2007) (<HOLDING>). Moreover, there was no abuse of discretion in Holdings: 0: holding that the bia abused its discretion when it denied petitioners motion to reopen by failing to consider evidence of country conditions 1: holding that change in country conditions is measured from time of proceedings before ij 2: holding that bia did not abuse its discretion by declining to consider an unauthenticated document submitted with a motion to reopen to show changed country conditions 3: holding that in determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below 4: holding that in evaluating evidence of changed country conditions the bia compares the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below
|
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[
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by the custodial parent with the noncustodial parent’s visitation rights does not justify a modification of a child custody order. See, e.g., Woncik v. Woncik, 82 N.C. App. 244, 248, 346 S.E.2d 277, 279 (1986). In the instant case, however, the trial court’s findings of fact reflected far more than the mere interference with defendant’s visitation rights, warranting the court’s intervention. As noted supra, the trial court characterized the child’s relationship with defendant, his father, as a good relationship and further found that the child looked forward to seeing defendant. The trial court’s findings indicate that the denial of defendant’s visitation was deceitful and more than simply an interference or frustration with his rights, as it encompassed a considerable period. See id. (<HOLDING>). Furthermore, denying the minor child Holdings: 0: holding that parent has custodial right to prevent visitation with nonparent 1: holding interference with visitation of the noncustodial parent that negatively impacts the welfare of the child can constitute a substantial change of circumstances sufficient to warrant a change of custody 2: holding that the domicile of the child follows that of the parent with lawful custody 3: holding that psychological parent was not entitled to custody or visitation 4: holding that where interference with visitation becomes so pervasive as to harm the childs close relationship with the noncustodial parent there can be a conclusion drawn that the actions of the custodial parent show a disregard for the best interests of the child warranting a change of custody
|
[
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a class action lawsuit based on securities fraud against several individual defendants (collectively “Defendants”) that held various positions in Red-back Networks, Inc. (“Redback”). Plaintiffs appeal the district court’s dismissal of Plaintiffs’ complaint for failure to state a claim upon which relief can be granted. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. This Court reviews dismissals for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. Thompson v. Paul, 547 F.3d 1055, 1058 (9th Cir.2008). Even assuming Plaintiffs adequately pleaded falsity for their fraudulent statement claim, Plaintiffs have not adequately pleaded loss causation. See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (<HOLDING>). Plaintiffs’ allegations that the loss was Holdings: 0: holding that judgment as a matter of law was proper when the plaintiff did not present any evidence that the defendant was motivated by the eeoc complaint knowledge is necessary to establish causation but it is not sufficient 1: holding that a claim not pleaded in the petition ie the complaint was not properly before the court on a motion for summary judgment 2: holding despite authority for the general proposition that the duty to defend is determined based on the allegations of the complaint that an insurer had no duty to defend where the underlying claim was covered by the policy based on the facts pleaded in complaint but other facts not appearing in the complaint excluded coverage 3: holding the presence or absence of federalquestion jurisdiction is governed by the veil pleaded complaint rule which provides that federal jurisdiction exists only where a federal question is presented on the face of the plaintiffs properly pleaded complaint 4: holding loss causation not adequately pleaded when the complaint did not claim that the share price fell significantly after the truth became known
|
[
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had seeped into the groundwater and then migrated onto Easton’s. Those chemical solvents continue to contaminate Easton’s soil and groundwater and will do so for several years. Remediation efforts could take as long as thirty years. While the pollution poses no significant health risks to humans, building occupants on Easton’s property inhale vapors from the contami nated groundwater and must avoid contact with the groundwater. Easton sought damages and injunctive relief from Aramark for the prior and ongoing migration of contaminated groundwater onto his property. He asserted various common law theories (reckless or negligent endangerment/failure to warn, strict liability, trespass, private nuisance, and negligence), as well as v. Peterson, 674 So.2d 201, 205 (Fla. 5th DCA 1996) (<HOLDING>), review dismissed, 687 So.2d 1305 (Fla.1997). Holdings: 0: holding that erisa creates no private right of action 1: recognizing cause of action 2: holding that mississippis wrongful death statute creates an independent cause of action 3: holding that section 3763133 creates a cause of action 4: recognizing the cause of action
|
[
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[
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fetus because the power to define crimes and to establish criminal penalties is exclusively a legislative function. Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993); see State v. Thompson, 57 N.M. 459, 465, 260 P.2d 370, 374 (1953) (stating that “[b]y the constitution of the [SJtate the [Ljegislature is invested with plenary legislative power, and the defining of crime and prescribing punishment therefor are legislative functions”); see also N.M. Const, art. Ill, § 1 (providing for division of powers of government between legislative, judicial, and executive branches). {10} Other jurisdictions with similar child abuse statutes have concluded that such statutes do not apply to an unborn fetus. See People v. Morabito, 151 Misc.2d 259, 580 N.Y.S.2d 843, 846-17 (N.Y.City Ct.1992) (<HOLDING>); State v. Gray, 62 Ohio St.3d 514, 584 N.E.2d Holdings: 0: holding that mother could not be prosecuted under child abuse statute for prenatal use of heroin 1: holding that mother may not be prosecuted criminally for child endangerment for prenatal substance abuse 2: holding a woman may be prosecuted for child neglect and endangering a child for prenatal substance abuse 3: holding that evidence was sufficient to support trial courts best interest finding where mother allowed child to be in contact with individual who had physically abused her mother was not capable of caring for child on her own mother admitted at trial she had not found stable employment and child was doing well in her current placement 4: holding that mother could not be charged with criminal endangering the welfare of her child based upon prenatal acts of smoking cocaine
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[
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