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that Ocwen’s reporting was “incomplete or inaccurate” regarding his personal liability for the foreclosure deficiency stated a claim under CCRAA § 1785.25. We note that unlike the company in Wang v. Asset Acceptance, LLC, which faced only the potential of the debtor raising a statute of limitations defense, Ocwen itself had made an election of remedies when it sold Kuns’s home in a non-judicial foreclosure, thereby changing the collectibility of the debt. 681 F.Supp.2d 1143 (N.D.Cal.2010). The anti-deficiency laws’ protection against post-foreclosure personal liability is complete and nonwaivable, in contrast to the affirmative defense of the statute of limitations that the debtor in Wang could raise. See DeBerard Props. v. Lim, 20 Cal.4th 659, 85 Cal.Rptr.2d 292, 976 P.2d 843 (1999) (<HOLDING>). Because Kuns’ complaint stated a claim under Holdings: 0: holding the statutory scheme of two federal laws was not void for vagueness and did not violate equal protection or due process even though the defendants conduct violated both laws 1: holding that segregation in public education is a denial of equal protection of the laws 2: holding that antideficiency laws protection is nonwaivable 3: holding that a temporarily totally disabled person may invoke protection under disability discrimination laws 4: holding that lprs are entitled to the protection of the equal protection clause
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of the balancing test first articulated in Lear. See, e.g., Warner-Jenkinson Co. v. Allied Chem. Corp., 567 F.2d 184, 187-88 (2d Cir.1977) (licensee could litigate the validity of patent even though licensing agreement was entered into as part of a settlement-of earlier litigation); Schlegel Mfg. Co. v. U.S.M. Corp., 525 F.2d 775, 781 (6th Cir.1975) (enforcing consent decree, which recited that plaintiffs patent was valid); Kraly v. Nat’l Distillers & Chem. Corp., 502 F.2d 1366, 1369 (7th Cir.1974) (concluding that a licensee was not es-topped from challenging the validity of a patent even where a consent decree incorporated an understanding that the patent would not be challenged); Massillon-Cleveland-Akron Sign Co. v. Golden State Adver. Co., 444 F.2d 425, 427 (9th Cir. 1971) (<HOLDING>). The Lear balancing test has also been Holdings: 0: holding that a restrictive covenant with a tenyear term was unenforceable 1: holding employment agreement consisting entirely of a covenant not to compete unenforceable because the covenant must be supported by valuable consideration 2: holding that a settlement agreement in which the parties failed to agree upon the terms of a release was unenforceable 3: holding that covenant in settlement agreement whereby defendants agreed not to contest validity of patent was unenforceable because in direct conflict with strong federal policy 4: holding that because the alleged settlement was never approved by the court under rule 9019 the settlement agreement was unenforceable
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it appears at least four judges in the Second District would agree with the First, Fourth, and Fifth Districts if not for Second District precedent. 5 . Although not relevant to the precedential value of our decision in Mann, we note that the Eleventh Circuit Court of Appeals later vacated Mann's sentence on other grounds. See Mann v. Dugger, 844 F.2d 1446, 1458-59 (11th Cir.1988) (en banc) (finding the jurors were misinformed as to the importance of their recommendation, contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). The resentencing resulted in another death sentence, which we affirmed. See Mann v. State, 603 So.2d 1141, 1144 (Fla.1992). Mann v. Dugger was subsequently overruled. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997) (<HOLDING>). PARIENTE, J., concurring. While I have Holdings: 0: 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 1: holding that although contempt and sanctions are not identical the principles the supreme court articulated for cases of contempt in international union united mine workers of america v bagwell 512 us 821 114 sct 2552 129 led2d 642 1994 guide our determination of what procedural protections are necessary in imposing sanctions under a courts inherent powers 2: 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 3: holding that the rule announced in simmons v south carolina 512 us 154 114 sct 2187 129 led2d 133 1994 doesnt apply retroactively on collateral review 4: holding that regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny quoting turner broad sys inc v fed commcn commn 512 us 622 642 114 sct 2445 129 led2d 497 1994 plurality opinion
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school. Id. at 280. And the defendant noted the school district would have paid as much to another driver performing the same job. Rejecting these arguments, the Eighth Circuit held: What the School District wanted was a competent school-bus driver who was truthful and had not been convicted of a felony, and this is not what it got. The School District has been deprived of money in the very elementary sense that its money has gone to a person who would not have received it if all of the facts had been known. Id. at 280. The court concluded the school district had been deprived of its property, too, because it had a choice in how to spend its money and the defendant’s misrepresentations induced it to part with that money under false pretenses. Id.; see also Bunn, 26 Fed.Appx. at 142 (<HOLDING>); Leahy, 464 F.3d at 787 (same). The defendants Holdings: 0: holding that the defendant could be prosecuted for making false claims against the government under either the false claims statute 18 usc 287 or the mail and wire fraud statutes 18 usc 1341 1343 1: holding that amtrak is an agency of the government for purposes of the constitutional obligations of government 2: holding that wire and mail fraud statutes are construed identically 3: holding that a plaintiff cannot avoid the securities fraud exception by pleading mail fraud or wire fraud if the conduct giving rise to those offenses also amounts to securities fraud 4: holding that where defendant made false representations to attain government contract but performed satisfactorily the government had been deprived of money or property for purposes of mail and wire fraud
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(1) seek recovery of benefits under the plan; (2) enforce his rights as provided by the plan; or (3) obtain clarification of any possible future benefits to which he may be entitled under the plan. 29 U.S.C. § 1132(a)(1)(B). The law is clear, however, that “Section 514(a) of ERISA, 29 U.S.C. § 1144(a), expressly ‘supersedes any and all State laws insofar as they may now or hereafter relate to any employee benefit plan’ covered by ERISA.” Rozzell v. Security Services, Inc., 38 F.3d 819, 821 (5th Cir.1994) (quoting Ingersoll-Rand Company v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)) (citations omitted). Courts have held that ERISA completely preempts the specific state law claims McSperitt alleges. See, e.g., Metropolitan Life, 481 U.S. at 62-64, 107 S.Ct. 1542 (<HOLDING>); McNeil v. Time Insurance Company, 205 F.3d Holdings: 0: holding the state law claims were not preempted 1: holding that erisa preempted a state law claim because the courts inquiry centered on the employee benefits plan at issue 2: holding that claims for misrepresentation under texas insurance code were preempted because the plaintiffs sought to recover benefits under an erisa plan 3: holding that erisa completely preempted certain state law claims and finding that erisa preempted an employees common law tort and contract claim when the employee sought benefits under the employers disability policy 4: holding that the state law contract claim alleged the same conduct as in the erisa claim and was therefore preempted
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that the trial court did instruct the jury to disregard the prosecutor's question. 17 . Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). 18 . Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert, denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). 19 . Hawkins, 135 S.W.3d at 77; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert, denied, 542 U.S. 905, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). 20 . Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000); Hamilton v. State, No. 02-04-00435-CR, 2005 WL 3008449, at *2 (Tex.App.-Fort Worth Nov. 10, 2005, pet. refd) (mem. op., not designated for publication); Calderon v. State, 847 S.W.2d 377, 380 (Tex.App.-El Paso 1993, pet. refd). 21 . See Calderon, 847 S.W.2d at 380-81 (<HOLDING>). 22 . See Orona v. State, 791 S.W.2d 125, Holdings: 0: holding that the district courts swift response instructing the jury to disregard the improper comment prevented the improper comment from materially affecting the verdict 1: holding that instruction to disregard cured error from prosecutors improper comment during voir dire 2: holding that a judges comment on the issues in the case although not technically correct could be cured by instruction 3: holding improper admission of extrinsic evidence may be cured by adequate limiting instruction 4: holding almost any improper argument may be cured by an instruction to disregard
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694 (Fla. 1st DCA 2004). The Kiedrowski decision acknowledged that a non-habitual felony offender sentence could be made to run consecutively to a habitual felony offender sentence for felony offenses arising out of the same criminal episode, but held that such sentences violate Hale where, when combined, their length exceeds the maximum the defendant could have received under the habitual offender statute. See Kiedrowski, 876 So.2d at 694 (“Davis is silent as to whether the combined sentence of imprisonment and probation exceeded the statutory maximum allowed under the habitual felony offender statute. In the instant case the combined sentences do exceed the statutory maximum. We find this to be a critical distinction.”). But see Fuller v. State, 867 So.2d 469, 470 (Fla. 5th DCA 2004) (<HOLDING>). Kiedrowski distinguished, and did not Holdings: 0: holding that any fact other than a prior conviction may not be used to enhance a defendants sentence beyond the statutory maximum unless it is submitted to a jury and proved beyond a reasonable doubt 1: holding statutory maximum for prior conviction is the potential maximum sentence defined by the applicable state criminal statute not the maximum sentence which could have been imposed against the particular defendant according to the states sentencing guidelines 2: holding that the district court may enhance a sentence for the use of a deadly weapon or under the habitual criminal statute but not both 3: holding that the whole point in hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode consecutive sentencing may not be used to further lengthen the overall sentence and certifying conflict with davis 4: holding that all facts that would enhance the defendants sentence above the statutory maximum must be found by a jury
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would hurt the store’s business, because of the lack of African-American customers at this location; and (ii) his purported statements at a department head meeting just before Johnson’s arrival in Wheelersburg that Johnson was not very intelligent and that the employees needed to work with him. Accepting, for the moment, that these remarks are indicative of racially discriminatory views, Newman necessarily must have made them before Johnson’s transfer to Wheelersburg in January of 1995, or nearly two years before Johnson was terminated in November of 1996. This sizable temporal gap precludes any reliance upon these alleged statements as supporting an inference of discrimination in Johnson’s eventual discharge. See Phelps v. Yale Security, Inc., 986 F.2d 1020, 1025-26 (6th Cir.) (<HOLDING>), cert. denied, 510 U.S. 861, 114 S.Ct. 175, Holdings: 0: holding that isolated remarks are insufficient to prove discriminatory intent 1: holding that remarks made by decisionmakers could be viewed as reflecting discriminatory animus 2: holding that almost a year between plaintiffs eeo activity and the adverse employment decision is too great a length of time to support an inference of reprisal 3: holding that discriminatory remarks made nearly a year before the challenged employment decision could not support an inference of discrimination 4: holding causal link between alleged discriminatory remarks and adverse employment action insufficient
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Orphans’ Court Opinion, 1/8/09, at 4. ¶ 7 According to Y.N., the Orphans’ Court erred in applying section 2905(b), as that subsection, which pertains to supplying limited information to an adoptee about his or her natural parents, is irrelevant to the instant case since neither S.B. nor Y.N. is seeking such information. Brief for Appellant at 16. Y.N. maintains that the relevant provision is 23 Pa.C.S.A. § 2905(a). Brief for Appellant at 17. We agree that the Orphans’ Court should have applied section 2905(a). ¶ 8 Section 2905(a) of title 23 provides that records relating to adoption shall be withheld from inspection “except on an order of court granted upon cause shown[.]” Id. (emphasis added); In re Adoption of B.E.W.G. and S-L.W.G., 355 Pa.Super. 554, 513 A.2d 1061, 1065 (1986) (<HOLDING>). Y.N. correctly points out that section Holdings: 0: holding that where father who killed his wife had relinquished his children for adoption prior to his conviction the maternal grandparents of the children who had legal custody at the time of the adoption had standing to petition to unseal the adoption records this court vacated the orphans courts order that held the grandparents lacked standing and directed that on remand the orphans court determine whether the grandparents had shown cause under section 2905a to unseal the records 1: holding that when children had resided with grandparents for several months during pendency of divorce proceedings grandparents had standing to intervene and seek managing conservatorship under former section 102004b and section 1020039 2: holding unconstitutional a statute authorizing courts to recognize grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child where the child actually resided with the grandparents in a stable relationship 3: holding that parties not related to the child could not file an adoption petition and later prove the unfitness of the natural parents because the child was not available for adoption as defined in the adoption act parents had to be found unfit before petition could be filed 4: holding that grandparents standing to bring suit under a custody statute was not a jurisdictional question that the court of appeals could raise on its own motion
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somewhat implausible. It puts the cart before the horse. The question presented is whether the statutes in question confer standing. If the answer is that they do not — which appears to be the case — the court and the parties should never reach the merits of a particular decision, particularly where the determination of the nature of that decision requires the development of a record. Plaintiff's claim also ignores the fact that prudential standing is determined on a wholesale basis, with the court called upon to determine whether categories of claimants were intended to be conferred rights under a particular statute. 22 . Indeed, this principle of prudential standing was relied upon by at least three circuits in denying government employees the right t 51 Fed.Cl. 667, 672-73 (2001) (<HOLDING>). 24 . One looking for evidence of the Holdings: 0: holding that the court lacked jurisdiction under the bid protest provisions of section 1491 to enjoin a contracting agencys termination of a contract 1: holding that where an oral contract was removed from the statute of frauds by clear and convincing evidence under arkansas law the defendant could not terminate the contract at its will only a contract of indefinite duration may be so terminated 2: holding that person who is not party to contract does not have standing to challenge contract 3: holding that the awardee of a contract may not challenge the decision to terminate that contract by invoking the courts bid protest jurisdiction 4: holding that a denial of a bid protest without holding a hearing did not deprive a disappointed bidder of any property rights because there is no legitimate claim of entitlement to a government contract unless the contract actually is awarded
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its interests. , Summary judgment should be granted in favor of defendant on this issue. ■ B. Plaintiffs also ask the Court to find that defendant .has, as a matter -of law, waived all defenses, other, the § 207(e)(2) regular- rate exclusion at issue in this opinion. Dkt. #87, at 22. Specifically, plaintiffs assert that defendant did not adequately raise any additional defenses in its pleadings or discovery responses, particularly identifying the Motor Carrier Act exemption (MCAE) as improperly raised. Id. The Federal Rules of Civil Procedure require a party responding to a pleading to “state in short and plain terms its defenses to each claim asserted against it” and to “affirmatively state any avoidance or affirmative defense — ” Fed.R.Civ.P. 8(b), ( . 2004) (unpublished per curiam) (<HOLDING>); Williams v. Ashland Eng’g Co., 45 F.3d 588, Holdings: 0: holding that defendants answer sufficiently encapsulated the elements of an affirmative defense to have put plaintiff on notice that defendant intended to rely on it 1: holding that the plaintiff waived an objection to the defendants failure to plead qualified immunity as an affirmative defense 2: holding that unpleaded affirmative defense was properly considered by the district court where plaintiff had notice of the defense and an opportunity to respond 3: holding that defendant does not waive an affirmative defense if defendant raises it at a pragmatically sufficient time such as summary judgment and the defendants failure raise the affirmative defense in its answer did not cause the plaintiff prejudice 4: holding that the plaintiff did not establish a waiver where the defendants answer had put the plaintiff on notice of an arbitration defense
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only did not know about SORNA, but also that this lack of knowledge contributed to his decision to evade well-known and well-established state law registration obligations. AFFIRMED. 1 . In his brief, Mr. Lawrance states that he "left Arizona prior to the Act's effective date and was in Oklahoma prior to the Attorney General's February 28, 2007 order.” Aplt. Br. 15. 2 . See United States v. Sallee, 2007 WL 3283739 (W.D.Okla. Aug. 13, 2007) (unpublished) (declining to apply SORNA to a defendant who completed his interstate travel in 2004); United States v. Heriot, 2007 WL 2199516 (D.S.C. July 27, 2007) (unpublished) (declining to apply the Act to a defendant who completed his interstate travel in June 2006); United States v. Muzio, 2007 WL 2159462 (E.D.Mo. July 26, 2007) (unpublished) (<HOLDING>); United States v. Marvin Smith, 528 F.Supp.2d Holdings: 0: holding that the more than three month gap between the plaintiffs eeoc complaint and the allegedly adverse action was insufficient to show causation 1: holding that the average number of days to payment nearly doubled between the historical period and the preference period which based on the facts of that particular case made the payments outside the ordinary course of dealings between the plaintiff and defendant 2: holding that two separate incidents of rape were perpetrated against the same victim where an appreciable period of time elapsed between the incidents and intervening events occurred during the interim 3: holding that a threeyear gap between the protected activity and the adverse employment action was insufficient to support an inference of causation 4: holding sorna inapplicable to a defendant who traveled during the gap period between enactment and issuance of the interim rule and was indicted on march 15 2007
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the bound ary lines” of a right-of-way a “street” does not control the constitutional forum analysis. Furthermore, even treating the median as “part of’ a public street, because Plaintiff seeks access only to that “part” of the street for the display of his Nativity scene, it is only that part of the venue that is determinative of the forum. “When speakers seek general access to public property, the forum encompasses that property. When speakers seek more limited access, however, we must take a more tailored approach to ascertaining the perimeters of [the relevant] forum within the confines of the government property at issue.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., supra, 473 U.S. at 801, 105 S.Ct. at 3448. See also Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir.2007) (<HOLDING>). Indeed, even public streets as a whole may Holdings: 0: holding that because plaintiffs speech occurred in the reception area of the judge executives office it was only the nature of that limited area and not the general public nature of fiscal court budding within which the office was located that was determinative of the forum 1: holding that the public use exception was not applicable because the injury to the tenants employee occurred in an area of the leased premises that was not open to the public but was used only by employees 2: holding that after the district court determined that the plaintiffs speech was protected the court was required to inform the jury of its ruling that knapps speech was constitutionally protected 3: holding that because public use of a beach was permissive the public was a licensee and as such could be excluded from the whole area at any time by the title owner 4: holding that the appropriate sanction was to require the defendant to disclose the nature of the agreement with the witness
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the [trial judge] must treat the motion as a motion for summary judgment.” Dual, Inc. v. Lockheed Martin Corp., 383 Md. 151, 161, 857 A.2d 1095, 1100 (2004). If a trial judge has been presented with facts or allegations outside of those in the complaint and has not specifically excluded them from consideration, we have acted on the presumption that the additional information was considered by the trial judge. See 120 W. Fayette St., LLLP v. Mayor & City Council of Balt., 407 Md. 253, 263, 964 A.2d 662, 667 (2009) (concluding that “[b]y relying on material outside of the pleadings when granting the City’s motion to dismiss, the Circuit Court, in effect, converted the motion to dismiss into a motion for summary judgment”); Smith v. Danielczyk, 400 Md. 98, 105, 928 A.2d 795, 799 (2007) (<HOLDING>); Okwa v. Harper, 360 Md. 161, 177, 757 A.2d Holdings: 0: holding that physicians were specifically excluded from the ocspa but hospitals were not so they must abide by the ocspa 1: holding that extraneous documents were not part of contract with voters created by voter approval of bond proposition 2: holding that because the record does not indicate that the extraneous documents or averments were excluded by the court we must assume that they were considered 3: holding that it was appropriate for the district court to refer to the documents attached to the motion to dismiss since the documents were referred to in the complaint 4: holding that unauthenticated documents may be considered in support of a motion for summary judgment where the documents were not objected to or their authenticity disputed
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of highly questionable credibility, and the circumstantial evidence was far less convincing than the Marshall circumstantial evidence. Hands’s case turned entirely upon which biased witnesses the jury chose to believe. Evidence that tended to erode Hands’s credibility and to prejudice the jury against him, therefore, could have had a substantial — perhaps overpowering — impact on the jury’s deliberations. See United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir.1994) (reversing conviction on grounds of prosecutorial misconduct where “[t]he prejudicial effect of [the] misconduct cannot be disputed, as this case turned largely on the jury’s credibility determinations of the several witnesses who testified”); see also United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir.1999) (<HOLDING>); United States v. Watson, 171 F.3d 695, 700-01 Holdings: 0: holding that the cumulative effect of several incidents of prosecutorial misconduct that undercut defendants credibility was not harmless error noting that defendant to go free needed to persuade jury that he was credible and that the prosecution witnesses who testified in exchange for leniency were not 1: holding that in light of defendants attack on credibility of states witnesses prosecutor did not commit misconduct during closing argument when he implied states witnesses were credible 2: holding that prosecutorial misconduct was harmless in the face of overwhelming evidence of guilt 3: holding any error in admitting testimony of expert witness was harmless because it was cumulative of same testimony given by six other expert witnesses who testified at trial 4: holding that evidence consisting of the testimony of three witnesses who each had motives to lie was not overwhelming and that prosecutorial misconduct therefore was not harmless error
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alleges that CUNY’s conduct violated the Fifth and Fourteenth Amendments of the United States Constitution. Compl. ¶¶ 9396. These claims are barred by the Eleventh Amendment. The Second Circuit has decisively held that CUNY and its senior colleges, like Hunter College, are “arms of the state,” which are immune from suit under the Eleventh Amendment. Clissuras, 359 F.3d at 83; see also Jackson v. City Univ. of New York, No. 05-Civ.-8712, 2006 WL 1751247, at *2 (S.D.N.Y. June 23, 2006) (Rakoff, J.). And neither of the aforementioned exceptions — statutory abrogation or prospective injunctive relief from a state official — applies to a direct constitutional claim brought directly against a state entity. Santiago v. New York State Dept. of Corr. Services, 945 F.2d 25, 30-32 (2d Cir.1991) (<HOLDING>); Garcia v. Paylock, 13-CV-2868, 2014 WL Holdings: 0: holding that the fourteenth amendment was not an unequivocal expression of congressional intent to abrogate states immunity and reversing district courts rejection of new yorks eleventh amendment argument 1: holding that congress exceeded its authority under 5 of the fourteenth amendment in attempting to abrogate the states eleventh amendment immunity in adea suits 2: holding that congress may abrogate a states immunity pursuant to its enforcement power under 5 of the fourteenth amendment 3: holding that the tia does not abrogate states immunity under the eleventh amendment 4: holding that the nyshrl does not waive the new yorks eleventh amendment immunity to suit in federal court
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1731; Allen v. Scribner, 812 F.2d 426 (9th Cir.1987); Anderson v. Central Point Sch. Dist., 746 F.2d 505 (9th Cir.1984); and Thomas v. Carpenter, 881 F.2d 828 (9th Cir.1989) for the proposition that the law was clearly established). When Diaz acted in 2009, it was also clearly established under both Supreme Court and Ninth Circuit precedent that “the type of sanction ... ‘need not be particularly great in order to find that rights have been violated.’” Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir.1992) (quoting Elrod v. Burns, 427 U.S. 347, 359 n. 13, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). It was also clearly established that deprivation of an employee’s salary is unconstitutional if levied in retaliation for protected speech. See Manhattan Beach, 881 F.2d at 818-19 (9th Cir.1989) (<HOLDING>). That we have not decided a case in which the Holdings: 0: holding that if a fireman contributed to a pension fund on the basis of his salary plus longevity payments he would be entitled to pension payments computed on the same basis 1: holding that salary is unconstitutionally withheld if on the basis of protected activities 2: holding that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex 3: holding the freedom of speech assembly and petition guaranteed by the first and fourteenth amendments gives petitioner the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights 4: holding that peaceful picketing is protected through the first and fourteenth amendments on the basis of five supreme court decisions examining the question
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under section 5904(d). See Cox v. West and Scates, both supra. Third, the Court, on its own motion or the motion of either party, may review a fee agreement that a person who represents an appellant before the Court is required to file with the Court at the time that the appeal is filed. See 38 U.S.C. § 7263(c); Fritz v. West, 13 Vet.App. 190, 192 (1999); Carpenter (Angeline) v. West, 12 Vet.App. 52, 53 (1998), appeal dismissed sub nom. Carpenter (Angeline) v. Gober, 228 F.3d 1379 (Fed.Cir.2000); Shaw v. Gober, 10 Vet.App. 498, 502 (1997); U.S. VET. APP. R. 46(d)(2)(B). The language of 38 U.S.C. § 7263(c) presupposes that any review under this section will be limited to fee agreements in appeals that are currently pending before the Court. See Wick Fee Agreement, 40 F.3d at 371 (<HOLDING>); In the Matter of the Fee Agreement of Bates, Holdings: 0: holding that an appeal is perfected when the appeal bond is filed 1: holding that intermediate appellate courts have jurisdiction to address merits of appeal when amended notice of appeal is filed before briefs are filed 2: holding that a notice of appeal is timely when filed before final judgment is entered by the district court 3: holding that this court has jurisdiction when the appellant has filed a docketing statement indicating an intent to appeal a particular order within the time for filing an appeal 4: holding that section 7263 authorizes this court to review fee agreements when appeal is properly before this court and when fee agreement has been filed with court at time appeal is filed
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also In re Kingsley, 518 F.3d 874, 878 (11th Cir.2008) (“one who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice or unfairness will appeal in vain to a court of conscience”) (citation omitted). The U.S. Supreme Court has observed that “[c]ourts of equity frequently decline to interfere on behalf of a complainant whose attitude is unconscientious in respect of the matter concerning which it seeks relief.” National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 338, 50 S.Ct. 288, 74 L.Ed. 881 (1930). The Grayson panel gleaned from these fundamental principles a “strong presumption against the grant of dilatory equitable relief.” 491 F.3d at 1326; see also Hill v. McDonough, 547 U.S. 573, 584-85, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (<HOLDING>). Simply put, equity aids the vigilant, not Holdings: 0: recognizing that the section does not authorize suits for cancellation in the district courts 1: holding that eleventh amendment bars federal suits against state courts 2: holding that in statute authorizing suits against united states limits time period in which such suits may be brought united states retains its sovereign immunity as to any suits brought outside of that time period therefore court does not have subject matter jurisdiction over suit against united states that is barred by statute of limitations 3: holding that equitable tolling principles apply to suits against the united states in the same manner as they apply to private parties 4: recognizing that a number of federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day and opining that federal courts can and should protect states from dilatory or speculative suits
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of the information school authorities had regarding defendant’s possession of the book. Id. at 792. In People v. Joseph G, 32 Cal.App.4th 1735, 38 Cal.Rptr.2d 902 (1995), review denied June 14, 1995, a high school vice-principal received information from a parent that a student was in possession of a gun. Id. 38 Cal.Rptr. at 903. The vice-principal conducted a warrant-less search of the defendant’s locker and seized a gun. Id. at 903-904. The California Court of Appeal held that the lower court properly refused to exclude the gun because the vice-principal had a reasonable suspicion to conduct the search. Id. at 905-906. See also, In the Interest of Isiah B., 176 Wis.2d 639, 500 N.W.2d 637 (1993), cert. denied Isiah B. v. Wisconsin, — U.S.-, 114 S.Ct. ■ 231, 126 L.Ed.2d 186 (1993) (<HOLDING>); Commonwealth v. Jeffrey Snyder, 413 Mass. Holdings: 0: holding that school district policy requiring that students obtain the review and approval of school officials prior to distributing any written material violated free speech rights of students 1: holding that random search of students locker was justified because there were shooting incidents on school grounds and school had policy allowing for searches of lockers for any reason 2: holding that where a high school student and the students mother received adequate notice of the charges had sufficient opportunity to prepare for the meeting with school personnel were accorded an orderly hearing and were given a fair and impartial decision no due process violation occurred even though the school failed to provide advance notice that the potential disciplinary actions included a transfer to another school 3: holding the tlo standard governs school searches when school resource officers who although employed by the local police department are primarily responsible to the school district are acting in conjunction with school officials 4: holding that a school district was not liable for sexual molestation of plaintiffs daughter by a teacher even though the acts occurred on school property and during school hours
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when considering a motion for summary judgment, if the responding party brings forth any evidence that supports a reasonable construction of the intent of the testatrix which differs from that urged by the movant, summary judgment is inappropriate. Here, the term “my real property ... in ... Prue Road” could reasonably refer to the land alone. But, in light of the extrinsic evidence offered, it is just as reasonable to construe this phrase as that bundle of assets that comprised a long-time, ongoing family business investment. The extrinsic evidence offered here did not contradict any language in the will, nor did it refer to something outside of or independent of the words used in the will. See Najvar v. Vasek, 564 S.W.2d 202, 206 (Tex.Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.) (<HOLDING>). Rather, the affidavits and historical Holdings: 0: holding that court may not use extrinsic evidence unless contract language is ambiguous 1: holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous 2: holding that if statutory language is plain and unambiguous this court will not look beyond the same to divine legislative intent 3: holding extrinsic evidence contradicting language in will inadmissible when will is unambiguous 4: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties
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of the forged sales contract. Scott summarized the information in the sales contract to create the loan approval form for the DLC. According to NCB’s former CEO, the DLC approved the loan in reliance on Scott’s summary of the sales contract and on the understanding that NCB, through Scott, possessed the sales contract. The bond does not require the DLC itself to have actual, physical possession of the sales contract. It only requires possession by “the Insured ... or [its] authorized representative.” Cincinnati does not and could not dispute that Scott, a vice president and the loan officer in charge of the Orchard Road loan, possessed the sales contract on behalf NCB or at least as NCB’s authorized representative. See Dix v. Shadeed, 261 Ga.App. 145, 581 S.E.2d 747, 748 (2003) (<HOLDING>). As long as an NCB employee with a role in the Holdings: 0: holding that a company exercising substantial control of the terms and conditions of the work of the employees is an employer under the flsa 1: holding that the employer was not the insurers agent 2: holding an employee is an agent of his employer where the employer assumes the right to control time manner and method of work 3: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation 4: holding that the employee must at least provide his employer with enough information for the employer to be put on notice that the fmla is a consideration
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the sale agreement mentioned above or the Debtor’s reacquisition rights under the Trust—are also property of the Debtor’s bankruptcy estate. Carlson v. Brandt, 250 B.R. 366, 372-73 (N.D.Ill.2000) (finding that a bankruptcy lawyer’s right to a future contingency fee is a contractual right that is property of the estate). Further, to the extent the Debtor has a right to sue either the Trust or the Petitioners, that chose in action also is property of the Debtor’s bankruptcy estate. Cable v. Ivy Tech State College, 200 F.3d 467, 472-73 (7th Cir.1999) (“The phrase ‘legal or equitable interests ... in property’ includes choses in action and other legal claims that could be prosecuted for benefit of the estate.”); see also Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 596 (7th Cir.2012) (<HOLDING>); accord Baker v. Gold Seal Liquors, Inc., 417 Holdings: 0: recognizing property of the estate to include the estates chose in action against its auditor 1: recognizing that exempt property ceases to be property of the estate 2: holding a decedents estate is not a legal entity and only individuals administering the estate can be sued on estates behalf 3: holding that erisa benefits are not property of the estate 4: holding that for estate tax purposes property is to be valued as it exists in the hands of the estate
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the jury e’s refusal to charge in this instance. IV. Public Official Kennedy next alleges the trial judge erred by not finding Goodwin was a public official and, accordingly, charging the jury on the plaintiffs burden of proving actual malice and the falsity of the alleged defamatory statement. The designation of a plaintiff as a public official is considerable in a defamation action. “In defamation actions involving a ‘public official’ or ‘public figure,’ the plaintiff must prove the statement was made with ‘actual malice,’ i.e., with either knowledge that it was false or reckless disregard for its truth.” Elder v. Gaffney Ledger, 341 S.C. 108, 113, 533 S.E.2d 899, 901 (2000). Kennedy argued Goodwin, as an assistant principal, was a public official. On that basis, Kennedy assert (<HOLDING>). We find these cases to be distinguishable. Holdings: 0: holding that the plaintiff bears the burden of showing that he has standing for each type of relief sought 1: holding a school principal seeking recovery for defamation has the burden of showing actual malice 2: recognizing that the burden of persuasion for a showing of prejudice was on the defendant 3: holding that the debtor has the burden of showing that collateral estoppel applies 4: holding in defamation context that first amendment protects speech regarding a public official unless made with actual malice
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On June 4, 1984 FTI and Houser filed their present petition, seeking attorneys’ fees in the amount of approximately $385,000. A. The threshold issue is whether this Court has jurisdiction to consider the present petition for attorneys’ fees. Section 504(c)(2) of the EAJA provides that “[a] party dissatisfied with the fee determination ... may petition ... to the court having jurisdiction to review the merits of the underlying decision of the agency____” The SEC maintains that the staff decision not to recommend that the Commission file an injunctive action is “committed to agency discretion,” 15 U.S.C. §§ 77t(b), 78u(d), and is therefore unreviewable. See Kixmiller v. SEC, 492 F.2d 641, 645 (D.C.Cir.1974). Compare Medical Committee for Human Rights v. SEC, 432 F.2d 659 (D.C.Cir.1970) (<HOLDING>), vacated as moot, 404 U.S. 403, 92 S.Ct. 577, Holdings: 0: holding sec decision reviewable when commission has reviewed staff decision 1: recognizing that the decision of whether to give a jury instruction is reviewed for abuse of discretion 2: holding that the commission applied its technical knowledge and expertise to the facts presented and the commissioners decision should be afforded deference when the commission conducted investigations reviewed accounting practices and solicited comments from several agencies and organizations involved in the regulatory process in the course of balancing the interests of the public utility and the public to reach its decision 3: holding that even when there is a conflict of evidence before the commission and the evidence was such that the commission could have reasonably reached a contrary decision the commissions decision was not arbitrary and capricious 4: holding that evidence contrary to an administrators decision does not make the decision arbitrary and capricious so long as a reasonable basis appears for the decision
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and diligence that is exercised by pastoral care providers. Pastoral care provider can only mean one thing. Some jurisdictions have attempted to characterize the tort of clergy malpractice as an action for breach of a fiduciary relationship. The allegation of a breach of fiduciary duty, however, is “simply an elliptical way to state a clergy malpractice claim.” Dausch, supra, 52 F.3d at 1428. Plaintiffs third count for breach of fiduciary duty is explicit that it is only in Reverend MacDonell’s capacity “as pastoral care provider and pastoral counselor to her” that he breached any fiduciary duty. The authorities cited by the Court, ante at 563-64, 696 A.2d at 703-04 concern the law of wills, trusts, and property. See Gray v. Ward, 929 S.W.2d 774, 1996 WL 364794 at *8 (Mo.Ct.App.1996) (<HOLDING>). Absent such interests, analyzing and defining Holdings: 0: holding general fiduciary duties of confidence trust loyalty and good faith insufficient to establish the necessary fiduciary relationship for purposes of 523a4 1: holding that to establish an exception to the statute of frauds it must first be shown that an agreement to convey was actually reached that an oral contract must be established by clear and convincing evidence and that the chapter 7 trustee failed to establish that there was any parol contract for conveyance of property from debtors parents to the debtor 2: holding that the end of a conspiracy must be affirmatively shown 3: holding that to establish a fiduciary relationship under restatement of torts and missouri law it must be shown that the cleric possessed or managed things of value 4: holding that missouri law applied to the plaintiffs breach of fiduciary duty claim because it is corporate law that defines the contours of that duty
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appearing before the grand jury. United States v. Paige, 241 Fed.Appx. 620, 622 (11th Cir. 2007) (concluding that the district court did not err in refusing to suppress defendant’s grand jury testimony where defendant “was not read his Miranda rights before he testified”); United States v. Myers, 123 F.3d 350, 361 (6th Cir.1997) (“The few circuits that have addressed this issue have likewise been hesitant to require as a matter of constitutional law Miranda-like warnings to suspects appearing before the grand jury.”); United States v. Gillespie, 974 F.2d 796, 804 (7th Cir.1992) (“Courts confronting this issue have uniformly suggested that any Mir randa-type warnings that may be applicable in the grand jury context are minimal at best.”); Labbe v. Berman, 621 F.2d 26, 29 (1st Cir.1980) (<HOLDING>). Here, the prosecutor warned Defendant that: Holdings: 0: recognizing commonlaw privilege against selfincrimination 1: holding that miranda warnings were not required for suspect testifying at inquest when suspects lawyer had previously advised him of his privilege against selfincrimination 2: holding that a witness may invoke the privilege against selfincrimination at trial despite testifying previously before a grand jury in the same case 3: holding that waiver of privilege against selfincrimination is proceeding specific 4: recognizing a public safety exception to the requirement that miranda warnings be given in order to use a suspects statement as evidence against him at trial
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post office box rather than his home, as both the magistrate judge and district court noted, it was reasonable to suspect evidence of such activities would be found at Defendant’s home because “Defendant cannot manufacture methamphetamine in the post office.” We acknowledge that some of the information would be stale if viewed in a vacuum. However, given the relevancy of the latest Wells’ transaction, the older information was relevant to provide context; specifically that it was likely that the recently ordered materials were for use at Defendant’s residence. Defendant also challenges the veracity of the anonymous reports about odors and traffic at his house, claiming they have no weight in the probable cause assessment because they were uncorroborated. See Carpenter, 360 F.3d at 595 (<HOLDING>); United States v. Campbell, 256 F.3d 381, 388 Holdings: 0: holding that a warrant affidavit failed to establish probable cause where it was based almost exclusively on the uncorroborated testimony of an unproven informant 1: holding that the uncorroborated testimony of an informant may be sufficient to sustain a conviction 2: holding that a totality of circumstances standard was proper for determining probable cause for issuance of a search warrant based on information from an informant 3: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 4: holding that if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause the warrant was nevertheless valid
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that there is an impediment to marriage, then the clerk may not rely on the applicant’s statement that there is no impediment. “This is true regardless of the type of impediment involved, i.e., whether the impediment is based on age, consanguinity or affinity, marital status, or same-gender status of applicants who reside and intend to continue to reside in other states.” In sum, the plaintiffs have failed to establish that (1) they, compared with others similarly situated, were selectively treated; and that (2) such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of a constitutional right, or malicious or bad faith intent to injure a person. Daddario v. Cape Cod Commission, 56 Mass.App.Ct. 764, 773 (2002) (<HOLDING>), citing Rubinovitz v. Rogato, 60 F.3d 906, Holdings: 0: holding that a claim of inadvertent errors in administration of election procedure without some allegation of intentional discriminatory conduct did not properly allege a denial of equal protection of the laws 1: holding that denial of development permit to mine sand and gravel on thirtytwo acres of property did not deny owner equal protection of laws 2: holding that segregation in public education is a denial of equal protection of the laws 3: holding transfer eligibility rule did not deny the student equal protection of the laws or procedural or substantive due process under the fourteenth amendment 4: holding a similar peer review confidentiality statute did not deny the plaintiffs equal protection
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charge by one vendor or billed separately by one or more vendors. Id. (emphasis added). There is no comparable Policy Statement regarding natural gas billing. Spectrum fails to articulate why it should not be required to pay tax on electricity delivery when the Commonwealth’s Department of Revenue has specifically called for electricity delivery charges to be subject to sales tax in the clear language of the Policy Statement. Although the disparate treatment of electricity and natural gas may seem illogical to Spectrum, it apparently is the scheme intended by the legislature. It is not within this Court’s power to alter this scheme and the impact of any inconsistency is more properly addressed directly to the legislature. See Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022, 1025 (1983) (<HOLDING>); Commonwealth v. Rieck Inv. Corp., 419 Pa. 52, Holdings: 0: holding interpretation may not be inconsistent with regulation 1: holding that the colorado constitution reserves no authority in the state legislature to change add to or diminish the qualifications for constitutionally created offices 2: holding that a court may not legislate or by interpretation add to legislation matters which the legislature saw fit not to include 3: holding that the court assumes the legislature acquiesced in our interpretation of the language because the legislature had not amended the language 4: recognizing that a court may rely on matters of which a court may take judicial notice
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(<HOLDING>). PETITION FOR REVIEW DENIED. ** This Holdings: 0: holding that motion to reopen must establish prima facie case demon strating reasonable likelihood that requirements for relief have been satisfied 1: recognizing that failure to offer evidence establishing a prima facie case for the underlying substantive relief sought is a proper ground for denying a motion to reopen 2: holding that a movants failure to establish a prima facie case for the underlying substantive relief is a proper ground for the bia to deny a motion to reopen 3: holding to establish a prima facie case of racial discrimination a plaintiff must show he 1 4: holding that prima facie eligibility is demonstrated by a showing that there is a reasonable likelihood that the statutory requirements for relief have been satisfied
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of in personam jurisdiction.” Tom Togs, 318 N.C. at 366, 348 S.E.2d at 786. Our courts typically look at the following factors in determining whether minimum contacts exist: (1) the quantity of the contacts, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) the convenience to the parties. Bruggeman, 138 N.C. App. at 617, 532 S.E.2d at 219. These factors are not to be applied mechanically, but rather, the court must weigh the factors and determine what is fair and reasonable to both parties. Phoenix Am. Corp. v. Brissey, 46 N.C. App. 527, 531, 265 S.E.2d 476, 479 (1980). See also B.F. Goodrich Co. v. Tire King of Greensboro, Inc., 80 N.C. App. 129, 132, 341 S.E.2d 65, 67 (1986) (<HOLDING>). Here, the precise quantity of contacts is not Holdings: 0: holding that all of the incidents of the relationship must be assessed and weighed with no one factor being decisive 1: holding that in order to sustain death sentence as a matter of fundamental fairness the jury must find that the aggravating factors outweigh the mitigating factors and this balance must be found beyond a reasonable doubt 2: holding that no single factor controls and that all factors must be weighed in light of fundamental fairness and the circumstances of the case 3: holding that a district court should decide a motion for expedited discovery on the entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances unless the circumstances are such that the notaro factors apply 4: holding that failure to charge that jury must find aggravating factors outweigh mitigating factors beyond a reasonable doubt violates fundamental fairness and requires reversal of death sentence
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statute of limitations for actions against the United States set forth in 28 U.S.C. § 2401(a). Based on our review of Punchard’s complaint, we find no abuse of discretion in the district court’s decision to dismiss any other claims that may be set forth in the complaint for failure to comply with Rule 8’s short and plain statement requirements. Punchard’s argument that the district court judge had no power to grant the motion to dismiss because Punehard asked for a jury trial has no merit. Actions against the United States generally are tried to the court, not a jury. See 28 U.S.C. § 2402. In any event, a district court has the authority to hear and decide defenses raised under Rule 12(b) prior to trial, see Fed.R.Civ.P. 12(d); Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990) (<HOLDING>); Rosemound Sand & Gravel Co. v. Lambert Sand & Holdings: 0: holding that dismissal pursuant to federal rule of civil procedure 56 did not violate the seventh amendment 1: holding that seventh amendment right to jury trial not violated by courts dismissal for lack of jurisdiction 2: holding defendant to a preference action has a right to a jury trial pursuant to the seventh amendment of the united states constitution but that right can be waived by filing a claim in the bankruptcy proceedings 3: holding that seventh amendment right to jury trial not violated by courts dismissal for failure to state a claim pursuant to rule 12b6 because as a matter of law complaint faded to present an issue for trial 4: holding that a court should not dismiss a complaint pursuant to rule 12b6 for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
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F.3d 1423, 1427-28 (7th Cir.1996) (noting several circuits have adopted sure course requirement), cert. denied, -U.S.-, 117 S.Ct. 1434, 137 L.Ed.2d 542 (1997); United States v. Garcia, 882 F.2d 699, 702-03 (2d Cir.1989) (noting wide variety of courts have upheld anticipatory warrants when sure course requirement was met). As one court has explained: The sure course standard functions as a proxy for the actual presence of the contraband at the locus to be searched. It offers the magistrate a trustworthy assurance that the contraband, though not yet on the site, will almost certainly be located there at the time of the search, thus fulfilling the requirement of future probable cause. Ricciardelli, 998 F.2d at 13; see also United States v. Hendriclcs, 743 F.2d 653, 654-55 (9th Cir.1984) (<HOLDING>). The "sure course” requirement is typically Holdings: 0: holding anticipatory warrant for search of defendants home was invalid when defendant was required to pick up suitcase containing contraband at airport and there was no assurance at time warrant was issued that defendant would take suitcase to his home 1: holding anticipatory warrant was invalid for lack of probable cause because at time warrant was issued the contraband was not on a sure course to the place to be searched and there was no assurance defendant would take contraband to that place 2: holding anticipatory warrant for search of defendants home was invalid because facts made known to magistrate did not establish at time warrant was issued the required nexus between the contraband to be seized which was mailed to defendants post office box and defendants home 3: holding anticipatory warrant for search of defendants home was invalid because affidavit provided no assurance that defendant would take package to his home after collecting it at the airport despite fact that warrant contained condition that it was not to be executed until package arrived at defendants house 4: holding anticipatory warrant for search of defendants home was invalid because contraband was picked up by defendant rather than being delivered to his home and affidavit failed to provide facts establishing a nexus between contraband and defendants home
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at least one district court to conclude that the Eleventh Circuit no longer strictly requires proof of bad faith as an essential element of spoliation. See Brown v. Chertoff, 563 F.Supp.2d 1372, 1381 (S.D.Ga.2008). Other district courts have rejected this interpretation of Flury. See Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1328 n. 16 (S.D.Fla.2010); Woodard v. Wal-Mart Stores East LP, 801 F.Supp.2d 1363, 1372 (M.D.Ga.2011). While the degree of bad faith necessary to impose sanctions may not be entirely clear, it is clear that simple negligence is not enough but actual malice is not required. See, e.g., Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir.2009) (noting that malice is not required for finding of bad faith); Bashir, 119 F.3d at 931 (<HOLDING>); Preferred Care Partners Holding Corp. v. Holdings: 0: holding that something more than a mere error of law is required to constitute misconduct 1: holding that probable cause is something more than mere suspicion 2: holding that more than notice to a defendant is required 3: recognizing that if there is evidence upon which one may reasonably infer an element of the crime the evidence is sufficient to sustain that element and where reasonable minds could differ the evidence is sufficient to sustain a conviction 4: holding that more than mere negligence in losing or destroying evidence is required to sustain an inference of consciousness of a weak case
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jurisdiction over Daniele. Plaintiffs assert three distinct bases of jurisdiction: that SBR paid Daniele to publish infringing material on SBR’s message board, that Daniele’s publications relate to the “sports wagering” industry in Nevada, and that Daniele’s publications were accessible in Nevada through the internet. Even accepting these assertions as true, these are not the type of contacts that give rise o Daniele must therefore fail. Third, the fact that Daniele’s publications related to sports wagering does not establish jurisdictional contacts with Nevada. Plaintiffs urge that the publications were directed at Nevada since the publications discussed sports wagering and since sports wagering is only legal in Nevada (within the United States). Bu F.3d 1124, 1129 (9th Cir.2010) (<HOLDING>); Young v. New Haven Advocate, 315 F.3d 256, Holdings: 0: holding that the basis of in rem jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum state 1: holding that fraudulent joinder required a finding that either there was no possibility that the plaintiff could prove a cause of action against the resident defendant or that the plaintiff fraudulently pled jurisdictional facts in order to subject that resident defendant to the jurisdiction of the state court 2: holding that posting of infringing copyrighted material may give rise to jurisdiction where the victiimplaintiff was a resident of the forum state 3: recognizing that where plaintiff is from the forum state and defendant is from an alternate forum each forum can claim a connection to one of the parties 4: holding that alleged violations of a state statute did not give rise to federal constitutional claims
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his counsel did introduce evidence in support of Mr. Escareno’s theory that the hospital records did not corroborate all of the victim’s alleged injuries, and admission of the hospital records would not have altered the result of the proceeding because there was substantial, compelling witness testimony corroborating the extent of the victim’s injuries when she was in the hospital and the day after her release, see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (b) his counsel’s performance did not so deny Mr. Escareno representation that prejudice should be presumed; and (4) the prosecutor’s closing argument comments, taken in context, were within the bounds of reasonable argumentation, see Pickens v. Gibson, 206 F.3d 988, 999 (10th Cir.2000) (<HOLDING>). Issuance of a COA is jurisdictional. Holdings: 0: holding that disagreements over whether to call certain witnesses did not constitute a conflict of interest 1: holding that prosecutor free to comment on defendants failure to call certain witnesses or present certain testimony 2: holding that the failure to call certain witnesses was not ineffective assistance because witnesses already presented similar evidence and counsel is not required to present cumulative evidence 3: holding the prosecutors statements were not an inappropriate comment on the defendants failure to testify but rather a comment on the defendants failure to present convincing evidence to support his defense 4: holding a prosecutor may not comment on a defendants silence
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(Vernon 1993)). The judge heard the case in the 122nd Judicial District Court, which is composed solely of Galveston County, see TexGov’t Code Ann. § 24.224(a) (Vernon 1988), and the case was pending in the 333rd Judicial District Court, which is composed of Harris County only, see TexGov't Code Ann. § 24.479(a) (Vernon 1988), so the phrase does not apply to this case. 4 . The opinion is unclear on whether the trial court actually ruled on the motions in Bowie County, or whether it ruled on them in Dallas County. See Mauzy, 899 S.W.2d at 699 (stating that the trial court "subsequently ordered the Dallas suit abated and transferred to Travis County”). 5 . The trial court in this case did more than hear oral argument at the summaiy judg .2d 229, 232 (Tex.App.—Texarkana 1992, writ denied) (<HOLDING>). In Tigner v. State, 928 S.W.2d 540, 543 Holdings: 0: holding that filing of charges by employer constituted retaliatory act 1: holding that portion of civil judg ment awarded under the idaho workmans compensation act was nondischargeable 2: holding that liquidated damages under fair labor standards act constitutes compensation for the retention of a workmans pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages 3: holding that texas cause of action for retaliation does arise under its workers compensation laws 4: holding that filing of request for lump sum settlement constituted institution of a proceeding under the texas workmans compensation act
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While we agree with the statement-in Brown that “[s]ometimes it is necessary for ... the summary statement to provide a context reference” for the initiative petition, we do not find that failure to do so, where the consequences are potentially ever changing due to the political landscape, will always render the summary insufficient. See Brown, 370 S.W.3d at 654. We find that the effect that the Initiative Petitions may eventually have on the provisions of SB19 does not require the court to step in and redraft the summaries in order for them to be fair and sufficient. It is commonly understood that constitutional amendments will supersede statutes that are in contravention with the amended constitutional provision. Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319, 327 (Mo. banc 2015) (<HOLDING>); State v. Kinder, 89 S.W.3d 454, 459 (Mo. banc Holdings: 0: holding equivalent automatic license revocation provision of colorado real estate statute unconstitutional 1: holding that a provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption but that if new products or circumstances that did not exist at the time the constitutional provision was enacted fall within the meaning of the provision the constitutional provision applies to them 2: holding that it is not 3: holding pennsylvania replevin statute unconstitutional 4: holding that a statute is unconstitutional if it clearly contravenes a constitutional provision
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Except as outlined below, “[a] municipality may be held liable for torts arising out of the performance of proprietary functions but no recovery is allowed for injuries which result from the performance of governmental functions.” Lamar v. City of St. Louis, 746 S.W.2d 160, 161 (Mo.App.1988). “A governmental duty is one which is performed for the common good of all. A duty will be deemed proprietary if it is performed for the special benefit or profit of the municipality as a corporate entity.” Oberkramer v. City of Ellisville, 650 S.W.2d 286, 295 (Mo.App.1983). In Jones v. State Highway Comm’n, 557 S.W.2d 225 (Mo. banc 1977), the Missouri Supreme Court abrogated the common law doctrine of sovereign immunity. The legislature reinstated the doctrine in a modifie 6, 774 (Mo.App.1987) (<HOLDING>). In Alexander at 542, the Missouri Supreme Holdings: 0: holding construction company had actual notice of dangerous condition that its employees created 1: holding that when a possessor knows that a dangerous condition frequently reoccurs plaintiffs had a right to go to the jury on the issue of defendants negligence even where plaintiffs could not show how long the condition remained on the stairs 2: holding that the negligent placement of a folding room partition at the foot of a ladder on which plaintiff was working created a physical deficiency which constituted a dangerous condition 3: holding that immunity is not waived for injury or death caused by negligent supervision 4: holding that the negligent failure to remove debris on grounds contributed to creating a dangerous condition which resulted in death when debris was flung by lawn mower
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1381 (R.I.1994). It is well settled that a plaintiff aggrieved by a state agency’s action first must exhaust administrative remedies before bringing a claim in court. Burns v. Sundlun, 617 A.2d 114, 116 (R.I.1992). The exhaustion of remedies requirement serves two purposes: “(1) it aids judicial review by allowing the parties and the agency to develop the facts of the case, and (2) ‘it promotes judicial economy by avoiding needless repetition of administrative and judicial factfinding, perhaps avoiding the necessity of any judicial involvement.’ ” Id. at 117 (quoting Schwartz, Administrative Law § 8.33 at 542 (1991)). This Court has made exceptions when the exhaustion of administrative remedies would be futile. See M.B.T. Construction Corp. v. Edwards, 528 A.2d 336, 338 (R.I.1987) (<HOLDING>). In this case, plaintiffs contended that they, Holdings: 0: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 1: holding that an appeal to an agency review board would be futile because the board lacked authority to invalidate ordinance as requested 2: holding that the board did not abuse its discretion by dismissing an untimely appeal where the appellant failed to respond to a board order to show cause 3: holding that where approval of the board of directors was not formally requested a demand would have been futile for it could hardly be expected that if approval of the board of directors were sought defendant who controlled 50 of the board would have authorized the action against himself 4: holding that taxpayer could not have presented substantive due process claim to the board of assessment review because of the limited jurisdiction of that board
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Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 304-305 (Pa.Super.1999) (internal citations omitted). We also note the following principles pertaining to our review of a verdict in an insurance bad faith claim. Our Supreme Court has long recognized that “the utmost fair dealing should characterize the transactions between an insurance company and the insured.” Dercoli v. Pennsylvania Nat. Mut. Ins. Co., 520 Pa. 471, 477, 554 A.2d 906, ,909 (1989) (quoting Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 559, 151 A. 285, 286 (1930)). Moreover, the insurance company has a duty to deal with its insured “on a fair and frank basis, and at all times, to act in good faith.” Id.; Hol-lock v. Erie Ins. Exchange, 842 A.2d 409, 416 (Pa.Super.2004) [ (en banc) ] (<HOLDING>).... In 1990, our legislature created a Holdings: 0: holding that a partner owes a duty to all other partners to exercise the utmost good faith fairness and loyalty 1: holding when an insurers alleged breach of its duty of good faith and fair dealing toward its insured involves facts and circumstances within the common knowledge or ordinary experience of an average juror an insured need not introduce expert testimony to establish a bad faith claim 2: holding that an insurer has a duty to act with the utmost good faith towards its insured 3: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith 4: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer
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or damage the property of another.” In order to convict Mr. Ellis of home invasion, the State was required to prove: • that Mr. Ellis entered the Residence; • that the Residence was an inhabited dwelling or a structure used in whole or in part as a home or place of abode; • that Mr. Ellis was not authorized to enter the Residence; • that the Residence did not belong to Mr. Ellis; and • that Mr. Ellis acted with specific intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another. See Cheney C. Joseph, and P. Raymond Lamonica, 17 LA. CIV. L. TREATISE, CRIMINAL JURY INSTRUCTIONS § 10.62.8 (2d ed.2011)(defining elements of home invasion offense); see also State v. Hart, 10-1614, p. 6 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 30 (<HOLDING>) The first two elements of the offense are Holdings: 0: holding that an illegal arrest occurred when the defendant was transported without probable cause from his home to the police station for fingerprinting and that the line is crossed when the police without probable cause or a warrant forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station where he is detained although briefly for investigative purposes 1: holding that the defendant failed to demonstrate legitimate expectation of privacy where he could not show that he had the owners permission to use the car or demonstrate prior use or control of the car 2: holding that to convict a defendant of home invasion pursuant to la rs 14628 the state is required to prove that he entered a dwelling owned by another without permission that the dwelling was used in whole or in part as a home that a person was present when he made the unauthorized entry and that he had the intent to use force or violence upon the person or to vandalize deface or damage the property 3: holding tila applies only to credit transactions secured by real or personal property used or expected to be used as the principal dwelling of the debtor 4: holding there was enough evidence to find the defendant abandoned his child when he claimed to have knowledge of cpss involvement he admitted that for periods of two years and six months he did not attempt any contact with his child and from the date he canceled a home study until the petition was filed he did not attempt to contact the child or cps or provide support even when he was out of jail
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Id. The government, in turn, has submitted a declaration from petitioner’s counsel providing, inter alia, that “I very likely advised Ms. Mendoza that pleading guilty to a violation of § 1028 could result in her deportation, and I am sure that I advised her to seek the expert legal advice of an immigration attorney.” Counsel’s Decl. at ¶ 6. 8 . See, e.g., Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (providing that declarations made "in open court carry a strong presumption of verity” and that "the representations of the defendant ... [at a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings”); Beck v. Angelone, 261 F.3d 377, 396 (4th Cir.2001) (<HOLDING>) (citations omitted). 9 .See, e.g., Holdings: 0: holding that representations made by the defendant during a plea hearing carry a strong presumption of verity 1: holding that a defendant is bound by representations made during a guilty plea absent a valid reason for controverting those statements 2: holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence due to the consequences of such a finding the clear and convincing standard must be applied 3: holding that absent clear and convincing evidence to the contrary a defendant is bound by his representations made during a plea colloquy 4: holding that whether adverse possession was proven by clear and convincing evidence is a factual determination made by the chancellor
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for administrative and judicial relief from a wrongful zoning decision are unconstitutional. The gravamen of this claim is Greenspring’s allegation that because it might take “in excess of two years” to pursue administrative and judicial appeals, these procedures are unconstitutionally burdensome. However, Greenspring does not explain how it arrived at this two year projection, and in any event, delays of this magnitude are not unconstitutional burdens. Even when a significant delay is incurred in reversing a wrongful zoning board decision, and even when that delay causes the plaintiffs to default on their construction loans and lose everything to foreclosure, the Fourth Circuit has held that plaintiffs have not been deprived of procedural due process. Sylvia Dev., 48 F.3d at 817, 827(<HOLDING>). • Greenspring speculates that it could take Holdings: 0: holding that a five month delay is unreasonable 1: holding that 11 month delay in reversing wrongful zoning board decision did not deprive plaintiff of due process 2: holding that a 13 month delay was unreasonable 3: holding that discretion of zoning board was not sufficiently circumscribed to support substantive due process claim 4: holding that a five month delay was unreasonable
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Id. at 115, 113 S.Ct. 566. We make these determinations in light of the statutory purpose of ADA as a remedial statute, which should be broadly construed to effectuate its purpose of eliminating discrimination against the disabled in our society. Kinney v. Yerusalim, 812 F.Supp. 547, 551 (E.D.Pa.), aff'd 9 F.3d 1067 (3d Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1545, 128 L.Ed.2d 196 (1994). The Third Circuit has not had occasion to identify the standard for determining who is a prevailing party under the ADA. It is clear, however, that the test is to be derived from jurisprudence under 42 U.S.C. § 1988. See Disabled In Action of Pa. v. Pierce, 789 F.2d 1016, 1018-19 (3d Cir.1986) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (<HOLDING>). The legislative history of the ADA reflects Holdings: 0: holding the ada and the rehabilitation act applicable 1: holding rehabilitation act applicable 2: holding that plaintiffs were prevailing parties under 42 usc section 1988 despite dismissal of the appeal as moot and vacation of the district court judgment 3: holding that standards used in section 1988 cases are applicable to determine prevailing party under section 505b of the rehabilitation act of 1973 4: holding that the same standards apply to claims under the ada and under the rehabilitation act
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light most favorable to the trial court’s ruling and must uphold that ruling absent an abuse of discretion.” Kniatt, 206 S.W.3d at 664. In reviewing the trial court’s order denying habeas corpus relief, the appellate court affords “almost total deference to the judge’s determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demean- or.” Ex parte Wilson, 171 S.W.3d 925, 928 (Tex.App.-Dallas 2005, no pet.); see also Ex parte Mello, 355 S.W.3d 827, 832 (Tex.App.-Fort Worth 2011, pet. ref'd) (“This deferential review applies even when the findings are based on affidavits rather than live testimony.”); Phuong Anh Thi Le v. State, 300 S.W.3d 324, 327 (Tex.App.Houston [14th Dist.] 2009, no pet.) (<HOLDING>). The appellate court “will sustain the lower Holdings: 0: holding that where both the appellate and trial courts are reviewing the paper record there is no reason for the appellate courts to defer to the trial courts finding 1: holding that in reviewing trial courts ruling on habeas corpus petition reviewing court must defer to all of trial courts implied factual findings supported by record 2: holding that appellate court must defer to all implied factual findings supported by record 3: holding that reviewing court may consider trial evidence in reviewing denial of motion to suppress 4: holding that appellate court reviewing trial courts habeas corpus ruling must review record evidence in light most favorable to ruling and uphold ruling absent abuse of discretion
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part: “For purposes of removal ..., the citizenship of defendants sued under fictitious names shall be disregarded.” After removal, however, Casas replaced the fictitious defendants with Caguas and Oficentro, which were clearly identified as Puerto Rico corporations, like Casas itself. The issue is whether this substitution, which unquestionably destroyed complete diversity, also defeated federal subject matter jurisdiction. We hold that it did. Casas argues that as diversity jurisdiction was established at the commencement of the proceeding, it was not later defeated by the mere naming of the fictitious parties, who were dispensable, not indispensable. E.g., Freeport-McMoRan Inc. v. K N Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 859-60, 112 L.Ed.2d 951 (1991) (per curiam) (<HOLDING>); Wichita R.R. & Light Co. v. Public Util. Holdings: 0: holding that diversity jurisdiction was not established by a statecourt order that provided only that the plaintiffs claims against a nondiverse defendant be and hereby are severed from this action 1: holding that in order for a defendant to remove a case to federal court based upon diversity jurisdiction there must be complete diversity of citizenship both at the time that the case is commenced and at the time that the notice of removal is filed 2: holding that because there was complete diversity when the action commenced diversity jurisdiction was not defeated by the addition of a nondiverse plaintiff which was not indispensable 3: holding diversity jurisdiction was collusively obtained because the transferor retained a onehalf interest in the outcome of the litigation and was an indispensable party but for the assignment 4: holding that although the question of diversity jurisdiction is distinct from that of immunity the analysis of citizenship determinations for eleventh amendment immunity and diversity jurisdiction are the same
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context, courts examine whether the relevant files were password-protected or whether the defendant otherwise manifested an intention to restrict third-party access.” United States v. Aaron, 33 Fed.Appx. 180, 184 (6th Cir.2002) (per curiam) (unpublished opinion); see also United States v. Buckner, 473 F.3d 551, 554 (4th Cir.2007) (using a password showed that defendant affirmatively intended to exclude others from his password-protected files); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir.2001) (distinguishing joint access to the computer and its hard drive, for which co-user had authority to consent to search, from password-protected files; with respect to those files, co-user had no common authority where there was no access to the passwords); see also Conklin, 63 M.J. at 337 (<HOLDING>). But in this case, neither the computer nor Holdings: 0: holding that defendants had no reasonable expectation of privacy in the common areas of an apartment building 1: holding that a roommate with shared access to anothers computer has common authority over the computer and can grant consent to search 2: holding that an agents use of filesharing program to access child pornography files on the defendants computer did not constitute an illegal warrantless search because the defendant had made those files accessible to others and thus lacked any reasonable expectation of privacy in files 3: holding appellant failed to show any expectation of privacy in files stored on the computer system in his office was one that society accepts as objectively reasonable 4: holding that where there is no evidence of shared use or common authority an individual has a reasonable expectation of privacy in the files kept on a personally owned computer
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or services. U.S. Search, LLC v. U.S. Search.com Inc., 300 F.3d 517, 523 (4th Cir.2002). For instance, “[ijmagine being forbidden to describe a Chevrolet as a ‘car’ or an ‘automobile’ because Ford or Chrysler or Volvo had trademarked these generic words.’ ” Retail Services, 364 F.3d at 538 (quoting Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609 (7th Cir.1986)). No trademark protection can be afforded to such marks because, “if a business were permitted to appropriate a generic word as its trademark, it would be ‘difficult for competitors to market their own brands of the same product.’ ” Retail Services, 364 F.3d at 538 (quoting Blau Plumbing, Inc., 781 F.2d at 609).; see also A. & H. Transp., Inc. v. Save Way Stations, Inc., 214 Md. 325, 333, 135 A.2d 289, 293 (Md.1957) (<HOLDING>). On the opposite end of the spectrum are Holdings: 0: holding that irreparable injury exists in a trademark case when the party seeking the injunction shows that it will lose control over the reputation of its trademark pending trial 1: holding that the continued use of licensed trademark after termination of franchise agreement constituted trademark infringement and breach of contract 2: holding that the defendants reference to the plaintiffs trademark in the metatags of the defendants web page was a violation of trademark law 3: holding that lprs are entitled to the protection of the equal protection clause 4: recognizing that generic marks are not subject to trademark protection
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scenario.'is, the subject of Meister v. Jamison (In re Jamison), 21 B.R. 380, 381 (Bankr.D.Conn.1982). The Court in Jamison held, as the Court holds" here, that the son was not liable for the- car payments made by, the debtor, his father, to the credit union. 5 . The same holds true for. instances in which a debtor, prepetition, depletes his assets under circumstances in which a trustee believes the' decision was unwise, such as when a debtor buys dinner for his friends or purchases an expensive prom dress for his daughter. In these scenarios, a trustee likely has no authority to judge all of the debtor’s prepetition decisions and thus likely has no remedy. However, such a scenario is not now before the Court. See, e.g. Montoya v. Campos (In re Tarin), 454 B.R. 179 (Bankr.D.N.M.2011) Holdings: 0: holding that debtors daughter was not liable under fraudulent transfer law for the amount her parents paid for her wedding prepetition 1: holding that trial court properly terminated fathers obligation to support his seventeenyearold daughter who refused to live with father but instead chose to reside in her own apartment after her mother moved out of state where daughter offered no justifiable reason for not living with her father daughter only contended that her stepmother was too neat for her and that she wanted to live closer to her friends 2: holding that the applicant was entitled to asylum based on her fear that her daughter will be forced to undergo female genital mutilation because her fear of being forced to witness the pain and suffering of her daughter is wellfounded 3: holding that a wife is not liable simply by virtue of the marital relationship for her husbands fraudulent acts 4: holding that debtors cannot claim an exemption in a homestead after trustee avoided the transfer of the property as a fraudulent conveyance because the transfer by the debtors was voluntary
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both Mr. Schneider and Mr. Zakaras agree that the possibility existed, at the October 25th meeting, that Mr. Zakaras would obtain another supervisory position. In fact, Mr. Zakaras knew of another United employee, who after calling someone a “stupid nigger,” was transferred from his supervisory position in Ramp Services to another supervisory position as a Zone Controller with no loss in pay. (Pl.’s SMF ¶ 98.) Consequently, at the October 25th meeting, there remained a possibility that Mr. Zakaras was going to be transferred to another department as a supervisor. The Seventh Circuit has held that transfers, with no loss in pay, are, in some instances, not considered adverse employment actions. See, e.g., Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (<HOLDING>); Crady v. Liberty National Bank and Trust Co. Holdings: 0: holding that reduction in workload is an adverse employment action 1: holding that suspension with pay was not adverse employment action 2: holding that transfer involving no reduction in pay and only a minor change in working conditions does not rise to the level of a material adverse employment action 3: holding that a change in work schedule and request that an employee perform two additional tasks did not rise to the level of an adverse employment action 4: holding a transfer or reassignment may rise to the level of an adverse employment condition if it is a significant change in working conditions
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the “entire Caribbean” over CCC’s station — which in fact reached only a fraction of that area — and therefore that they did not need to advertise with CBS as well. (¶¶ 30-34) The complaint also alleges that CCC and C&W made sham technical objections to CBS’s application for a broadcast license for the purpose of defeating that application and thereby ensuring that CCC would continue to enjoy a monopoly. (¶¶ 35-40) Contrary to the arguments of C&W, such allegations do support the district court’s subject matter jurisdiction. A would-be monopolist or member of a conspiracy to monopolize comes within the condemnation of the Sherman Act when it engages in “anti-competitive conduct.” See, e.g., Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (<HOLDING>). “Anticompetitive conduct” can come in too Holdings: 0: holding that proof of relevant market is essential under 2 1: recognizing the sherman acts central interest in protecting the economic freedom of participants in the relevant market 2: holding elements of attempted monopolization claim under 2 of sherman act are intent anticompetitive conduct and dangerous probability of success in a relevant market 3: holding district court erred by incorporating issue of anticompetitive market effect into its standing analysis confusing antitrust injury with an element of a claim under section 1 of the sherman act and stating district courts approach may have been result of the similar antitrust injury label applied to injury component of antitrust standing analysis and to marketplace harm element under section 1 4: holding that a plaintiff claiming monopolization is obligated to establish the relevant market because the power to control prices or exclude competition only makes sense with reference to a particular market
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counsel informed him that counsel had been relieved of his responsibility. Defendants further contend that even if the AG had known that former counsel was no longer Plaintiffs’ present counsel, it could not have served the motion for modification on anyone else since the addresses of the class representatives, Taylor and Yanich, cannot be found by the Arizona Department of Corrections. 2. DUE PROCESS A fundamental and elementary requirement of due process in any proceeding is notice and opportunity to be heard. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court established the standard for determining whether a party’s notice would meet due process scrutiny: An elementary and fundament d 1440, 1448-49 (9th Cir.1985) (<HOLDING>). A judgment entered in a manner inconsistent Holdings: 0: holding that entry of settlement decree without notice to putative class members violated the due process rights of the class members 1: recognizing that when a creditor does not receive adequate notice the creditor is not bound by the confirmation order 2: holding that due process rights were not violated when alien claimed a lack of actual notice but his attorney received notice 3: holding that the debtor in possession was liable for civil contempt when he disobeyed the courts order to turn over the cash collateral and violated 11 usc 363 4: holding that oneday notice provided to creditor before entry of cash collateral order violated due process
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is constitutional under the circumstances presented here. That policy ensures institutional safety and keeps the traffic of prisoners between cells and other locations within the prison at a minimum. Prompt examinations of inmates in their cells is often the most practical way to provide necessary treatment and to determine if in fact more extensive examinations are needed in the infirmary or outside the institution. A policy that requires all medical examinations, of every kind, to be done at the infirmary would pose an undue burden on the already strained medical resources available. DOCS’s sick call prison policies recognize that inmates have certain rights to privacy and that these rights need to be balanced against safety and security measures. See Patient Bill of Rights #7 (<HOLDING>), and DOCS Health Care Services Policy 1.34. Holdings: 0: holding whistleblower protections available under the washington health care act rcw 4370075 adequately promoted workplace safety ensured compliance with the accepted standard of care and prevented fraudulent billing in the health care industry 1: recognizing that a patients choice of a health care facility does not render the facility a beneficiary under 502a1b 2: recognizing an individuals right of privacy in the content of health records and noting that health records are the property of the health care entity maintaining them 3: recognizing right to privacy in receipt of health care services to the extent consistent with providing adequate medical care and the safety and good order of the facility 4: holding claim that negligent supervision caused assault was health care liability claim because it was inseparable from the health care and nursing services provided
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501 U.S. 808 (1991). 76 See U.S. Const. amends. VIII, XIV; Robinson v. California, 370 U.S. 660, 666 (1962). 77 Booth, 482 U.S. at 502-09. 78 Id. 79 490 U.S. 805 (1989), overruled in part by Payne, 501 U.S. 808. 80 501 U.S. at 827-30. 81 Id. at 822-27. 82 Id. at 830 n.2. 83 108 Nev. 127, 136-37, 825 P.2d 600, 606 (1992). 84 See, e.g., Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997); Atkins v. State, 112 Nev. 1122, 1136, 923 P.2d 1119, 1128 (1996); McNelton v. State, 111 Nev. 900, 906 & n.4, 900 P.2d 934, 937 & n.4 (1995). 85 Floyd v. State, 118 Nev. 156, 174, 42 P.3d 249, 261 (2002), cert. denied, 537 U.S. 1196 (2003); see also McNelton, 111 Nev. at 905-06, 900 P.2d at 937-38. 86 Gallego v. State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001); Rippo, 113 Ne 473, 484 (1997) (<HOLDING>). 94 See Sherman v. State, 114 Nev. 998, 1014, Holdings: 0: holding that the law presumes that the jury will follow the courts instructions 1: holding that in light of the affirmative constitutional mandate to provide impartial juries in criminal cases the state has an important interest in obtaining juries that do not contain members who because of their religious beliefs are unable to follow the law or the trial courts instructions 2: recognizing that jurors are presumed to follow instructions 3: holding that a jury is presumed to follow the trial courts instructions 4: recognizing that this court presumes that juries follow district courts instructions
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is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” [Ibid, (quoting 3 Norman J. Singer, Sutherland Statutory Construction § 61.01, at 77 (4th ed.1986) (footnote omitted) (quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed 892, 894 (1880))).] Coincident with that interpretive canon is our tradition of giving “narrow range” to statutes granting immunity from tort liability because they leave “unredressed injury and loss resulting from wrongful conduct.” Harrison v. Middlesex Water Co., 80 N.J. 391, 401, 403 A.2d 910 (1979) (construing strictly landowner’s immunity statute). See also Renz v. Penn Cent. Corp., 87 N.J. 437, 457-58, 435 A.2d 540 (1981) (<HOLDING>); Immer v. Risko, 56 N.J. 482, 487-88, 267 A.2d Holdings: 0: holding dormancy statutes should be strictly construed 1: holding that a governments consent to be sued must be construed strictly in favor of the sovereign 2: holding that railroad immunity act should be strictly construed 3: holding 2513 to be jurisdictional and therefore must be strictly construed 4: holding that in presence of any doubt a penal statute is to be strictly construed
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that speech about the use of public funds touches upon a matter of public concern.” Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir.1995). Allegations of the misuse of public funds relate directly to citizens’ interests as taxpayers, and are generally considered to address matters of public concern despite their personal pecuniary ramifications. See Kincade, 64 F.3d at 396; Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir.1993). Speech that criticizes a public employer in his capacity as a public official also addresses matters of public concern. “Criticism, no matter how obnoxious or offensive, of government officials and their policies clearly addresses matters of public concern.” Casey, 12 F.3d at 802.; see Barnard v. Jackson County, 43 F.3d 1218, 1225 (8th Cir.1995) (<HOLDING>). Heightened public interest in a particular Holdings: 0: holding allegations of wrongdoing by public officials are on the highest order of first amendment concern 1: holding that alleged misconduct by public officials particularly by law enforcement officials is matter of public concern 2: holding that the plaintiffs speech was not a matter of public concern because it did not bring to light actual or potential wrongdoing or breach of public trust on the part of the defendant and others 3: holding that a complaint that included only allegations of intentional wrongdoing also set forth grounds for liability based on unintentional wrongdoing 4: recognizing a public employees first amendment right to address matters of legitimate public concern
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doctor make multiple submissions to confirm compliance with the medical practice requirement before the doctor can obtain LPR status. See 8 C.F.R. § 245.18(g), (h). III. FACTUAL AND PROCEDURAL HISTORY The Immigrant Doctors are all medical doctors licensed to practice medicine in their respective jurisdictions in the United States. The doctors seek to adjust to LPR status based on second preference employment-based immigrant visa petitions filed by their employers in conjunction with national interest waiver requests. Though the Immigrant Doctors’ original complaint named eight doctor plaintiffs when it was filed in 2002, four doctors have since obtained LPR status, rendering their claims moot. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1307-08 (9th Cir.1984) (<HOLDING>). A. Plaintiffs 1. Dr. Stefan Schneider Dr. Holdings: 0: holding moot appeal from revocation of visa petition where immigrant subsequently obtained lpr status 1: holding that the beneficiary of a form 1130 visa petition did not have standing to challenge a denied petition 2: holding appeal moot on this basis 3: holding the bia did not err in affirming the ijs denial of a continuance request where there was no prima facie approvable visa petition pending and alien had not applied for status adjustment 4: holding that where an alien was ineligible for a visa as a matter of law his citizenship was illegally procured and subject to revocation
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U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An individual must satisfy a three-prong test in order to establish standing. See id. First, the individual must have suffered some injury in fact — an invasion of a legally protected interest that is concrete and particularized and actual or imminent. See id. at 560, 112 S.Ct. 2130; MD Pharmaceutical Inc. v. Drug Enforcement Admin., 133 F.3d 8, 11 (D.C.Cir.1998) (concluding that current manufacturer had standing to seek review of actions taken by the DEA). In some cases, a plaintiff may be injured when the “discriminatory classification preventfs] the plaintiff from competing on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 667, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (<HOLDING>). Second, the injury must be fairly traceable Holdings: 0: holding that the claims to a statutory benefit had not yet vested when the legislature eliminated the benefit 1: holding that a debtor need not have received a benefit from the fraudulent activity in order for 523a2a to prevent a discharge 2: holding that when the government erects a barrier in order to establish standing a group seeking to challenge the barrier need not allege they would have attained the benefit but for the barrier 3: holding the government waived its argument on appeal that the defendant did not have standing to challenge a search when it failed to raise the argument to the district court 4: holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction
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of contract claim. See Fed.R.Civ.P. 56(c). Defendant’s position is that there are no material issues of fact to try. Both sides have represented that there are no further relevant facts to present. Plaintiffs, however, did not move for summary judgment, and argued that there are triable issues, including whether the Indicative Term Sheet, rather than the two Total Return Swap Agreements, should be considered the agreement. A district judge, presented with a motion for summary judgment, is entitled to search the record and, if no genuine issues of material fact exist, to determine the motion in favor of the party entitled to summary judgment, regardless whether the party is the moving, or the responding, party. Coach Leatherware Co. v. Ann-Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (<HOLDING>); Project Release v. Prevost, 722 F.2d 960, 969 Holdings: 0: holding that district courts sua sponte grant of summary judgment to nonmoving party is an accepted method of expediting litigation 1: holding that grant of summary judgment is appropriate where the nonmoving party adduces nothing more than speculation to support its claims 2: recognizing that nonmoving party must present affirmative evidence to defeat summary judgment 3: holding that sua sponte grant of summary judgment without notice to the parties constitutes reversible error 4: holding that a court can raise the issue of res judicata sua sponte in order to affirm a grant of summary judgment
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an essential element of r such claims. Accordingly, Sun Trading’s state law claims are hereby dismissed without prejudice to re-filing in state court. B. Plaintiff’s Cross Motion for Leave to Amend the Complaint Sun Trading moves for leave to amend its complaint to include Kenwood Japan and Art Union Records as defendants, in place of Kenwood Electronics Corp. The Court finds that amendment of the complaint at this stage would be futile. Even if Sun Trading were able to determine the proper Kenwood entities and add them as defendants, its claims against these entities would fail as a matter of law for the reasons stated above. Accordingly, plaintiffs motion for leave to amend the complaint is hereby denied. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (<HOLDING>). CONCLUSION For the foregoing reasons, Holdings: 0: holding that futility is among the reasons for denying leave to amend a complaint 1: holding that denial of leave to amend is error in the absence of justifying reasons 2: holding that leave to amend should be freely given unless there is a good reason such as futility to the contrary 3: holding that futility prejudice or bad faith may justify refusing to grant leave to amend 4: recognizing several reasons to deny leave to amend a complaint
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willfulness is the allegedly invalid NPL (invalid because it was allegedly issued in violation of the automatic stay). However, as already noted above, the NPL did not violate the automatic stay, and therefore is not void. The District Court has already found the NPL constitutes prima facie proof of the Debtor's willfulness. Furthermore, IDOR has submitted other evidence of the Debt- or’s willfulness. 34 . FAA creates, inter alia, a national recording scheme for air commerce. Most courts have held that although the FAA operates to determine whether a valid recording has occurred, in most other aspects of secured transactions it does not preempt state law. See, e.g., Bergquist v. Anderson-Greenwood Aviation Corp. (In re Bellanca Aircraft Corp.), 850 F.2d 1275, 1278 (8th Cir.1988) (<HOLDING>); Gary Aircraft Corp. v. General Dynamics Corp. Holdings: 0: holding that faa does not preempt state law when determining date of perfection 1: holding flsa did not preempt state law fraud claim 2: holding that fehba does not completely preempt state law 3: holding section 10 of faa is procedural and does not preempt state common law 4: holding security interest enforceable at time of creation when state statutory law silent on perfection
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rules), practices, routes, services, and facilities of such carriers; and “(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities even if the tracks are located or intended to be located, entirely in one State, “is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under federal or State law.” 49 U.S.C. § 10102(9)(A) and (B) define “transportation” as used in § 10501(b)(1) to include: “(A) a locomotive, car,' vehicle, vessel, warehouse, wharf, , pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to' th 4 (5th Cir.2001)(<HOLDING>); Pejepscot Indus. Park, Inc. v. Maine Cent. Holdings: 0: holding that the iccta preempted claims of negligence and negligence per se with respect to railroads alleged road blockages 1: holding that violation of city ordinance does not constitute negligence per se 2: holding negligence per se not applicable to violation of railroad commission regulation 3: holding that the iccta preempted statelaw negligence and nuisance claims intended to interfere with railroads operation of switchyard 4: holding that the iccta preempted statelaw nuisance claim with respect to operation of side track
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or not”, when used in a superior heading, is considered to modify the article descriptions in the provisions under that heading even though the phrase was not repeated in the provisions thereunder. See General Electric Co. v. United States, 83 Cust.Ct. 56, 61, C.D. 4822, 476 F.Supp. 1082 (1979). In General Electric Co, decided by this Court under the Tariff Schedules of the United States (TSUS), the Court reasoned that “the invasive character of the ‘whether or not’ language in the superior heading would make recitation of such language in each of the indented subheadings redundant.” General Electric Co. v. United States, 83 Cust.Ct. 56, 61, C.D. 4822, 476 F.Supp. 1082 (1979). See also Montgomery Ward & Co., Inc. v. United States, 74 Cust.Ct. 125, 130, C.D. 4596, 1975 WL 26986 (1975) (<HOLDING>). Further, Plaintiffs proposed subheading Holdings: 0: holding that whether or not phrase in the superior heading qualifies all of the provisions subordinate to the superior heading 1: holding that the hearing provisions of the ina supersede the provisions of the apa 2: holding that the phrase or ganic diseases of the nervous system contained in 38 usc 11013 was ambiguous because the statute did not define the phrase 3: recognizing that where the marks share a word or phrase but are otherwise different the plaintiff is not pmmitted to claim a right to all variant of the phrase in a specific market 4: 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
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to find a mother in contempt for failing to produce the child for summer visitation). II. Attorney’s Fees and Costs Because we affirm the family court’s overall contempt findings, we also affirm the award of attorney’s fees and costs. Regardless of whether the family court applied the E.D.M. factors or compensatory contempt doctrine, the family court correctly determined Father was entitled to attorney’s fees. Mother has a gross monthly income of $23,451, including her salary, alimony, and child support. She has over $5 million in savings. Mother’s payment of the attorney’s fees and costs would not affect her standard of living in any meaningful way. Accordingly, we affirm the award of attorney’s fees. See Whetstone v. Whetstone, 309 S.C. 227, 235, 420 S.E.2d 877, 881 (Ct. App. 1992) (<HOLDING>). CONCLUSION Based on the foregoing, we affirm Holdings: 0: holding that by choosing the words any actual expenses including attorneys fees incurred congress did not intend to remove the discretion of the district court to award fees in cases such as contingent fee or pro bono cases where the client has not actually incurred the obligation to pay her attorneys fees 1: holding that it was not an abuse of discretion for the court to deny an award of attorneys fees to the wife 2: holding that attorneys fees incurred in a nonenforcement modification suit can be awarded as additional child support under the family code 3: holding that because the wife failed to present any evidence as to the legal services performed in the trial court the wife was not entitled to a second hearing to establish attorneys fees 4: holding the family court properly awarded a wife attorneys fees incurred as the result of her husbands contempt
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precise method of sale is prescribed by contract or decree, some discretion is necessarily granted to the trustee ... making the sale, as to the manner in which the property will be offered. That discretion will naturally be affected by the character and location of the property and other circumstances peculiar to the case, so that it is impossible to lay down a hard and fast rule[.] Jackson, 249 Md. at 16-17, 238 A.2d at 87 (quoting Webster, 176 Md. at 254-55, 4 A.2d at 438); see Waters, 165 Md. at 75, 166 A. at 432-33. For example, a trustee has the discretion to determine whether the property should be sold as a whole, or divided into separate parcels. Webster, 176 Md. at 254, 4 A.2d at 438; Gittings, 156 Md. at 577-78, 144 A. at 841; see also Fagnani, 418 Md. at 388, 15 A.3d at 292 (<HOLDING>). Similarly, a trustee has discretion to Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding that treating trust rather than trustee as attorneys client is inconsistent with the law of trusts 2: holding that the trustee of a nominee trust functions more as an agent than as a true trustee 3: holding that standard of review is a matter of procedural rather than substantive law 4: holding that as a matter of law a trustee may foreclose on an undivided one half interest rather than the entire property citation omitted
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coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability....” SSR 85-15, 1985 WL 56857 (S.S.A.), at *4. Before making a final determination according to the five step process outlined above, the ALJ is under an affirmative duty to adequately develop the medical record. See Tejada, 167 F.3d at 774; 20 C.F.R. § 416.912(d). The ALJ is thus “obligated to explore the facts by obtaining relevant medical records and asking questions ... to assist the claimant in developing her case.” Jones v. Apfel, 66 F.Supp.2d 518, 538 (S.D.N.Y.1999); see also Perez, 77 F.3d at 47 (<HOLDING>). The ALJ’s duty to assist a claimant in Holdings: 0: holding that a failure to advise even when the defendant has an affirmative obligation to do so is not the same as engaging in affirmative misconduct 1: holding it is error for an alj to fail to consider factors relevant to the pain analysis which are supported by the record 2: holding that the alj is not obliged to accept an iq if there is a substantial basis in the record for believing that the claimant was feigning the results 3: holding that there may be an obligation to defend under an insurance policy even though there is no obligation to indemnify 4: holding that where there are deficiencies in the record the alj is under an affirmative obligation to develop the relevant medical history even when the claimant is represented by counsel
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we need not reach the issue whether the challenged statement constitutes an allegation or á factual statement. As the Eskildsens point out, and as our review of the record demonstrates, Inline did not move to strike the affidavit at issue. In Ex parte Secretary of Veterans Affairs, 92 So.3d 771 (Ala.2012), our supreme court reiterated the requirements for successfully challenging the admissibility of an affidavit submitted in support of or in opposition to a motion for a summary judgment, writing: “Cases decided after Perry [v. Mobile County, 533 So.2d 602 (Ala.1988),] have not always been clear in holding that a party challenging the admissibility of an affidavit must object to the affidavit and move to strike it. See Ex parte Diversey Corp., 742 So.2d 1250, 1253-54 (Ala.1999) (<HOLDING>); Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, Holdings: 0: holding that the court can consider inadmissible evidence if the party against whom it is offered does not object to the evidence by moving to strike it 1: holding it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection defense counsel must object every time allegedly inadmissible evidence is offered 2: holding that the trial courts damages award was against the manifest weight of the evidence because it was based upon inadmissible evidence 3: holding that court can consider inadmissible evidence in the context of a motion for preliminary injunction 4: holding that an arbitration agreement enforceable against party who signed the agreement even where the other party did not sign it because generally it is enough that the party against whom the contract is sought to be enforced signs it
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459 (Fla. 1st DCA 1986). Because the order on appeal simply remands the petition back to the administrative law judge for further proceedings (i.e., a formal hearing), it is not a final order. Furthermore, O’Donnell’s has not established the alternative ground for review under section 120.68. Review of the final agency action would provide an adequate remedy. Consequently, we do not have jurisdiction to review it under section 120.68 and Florida Rule of Appellate Procedure 9.110. APPEAL DISMISSED. SAWAYA, C.J., concurs, and concurs specially with opinion. ORFINGER, J., dissents with opinion. 1 . We considered the possibility of treating this appeal as a petition for writ of prohibition. See, e.g., Dept. of Health and Rehab. Servs. v. Career Serv. Com’n, 448 So.2d 18 (Fla. 1st DCA 1984) (<HOLDING>). However, prior opinions uniformly hold that Holdings: 0: holding that the superior court may not issue writs of prohibition to review an order denying recusal before final judgment 1: holding that district courts have power to issue writs of prohibition to administrative agencies to prevent them from exceeding their jurisdiction 2: holding that district court had jurisdiction to consider claims under the all writs act 3: recognizing the supreme courts longstanding jurisdiction over writs of prohibition and mandamus to courts of inferior jurisdiction 4: holding prohibition lies to prevent a lower tribunal from acting in excess of its jurisdiction but not to prevent an erroneous exercise of jurisdiction
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for Plaintiffs will redress their alleged injuries, thereby satisfying the third requirement for individual standing. Plaintiffs here seek injunctive relief to mandate that Defendants implement TCM 2. As discussed above, Plaintiffs’ alleged injuries are fairly traceable to Defendants’ alleged failure to implement TCM 2. Thus, it goes without question that the injunctive relief sought by Plaintiffs would alleviate the alleged injuries. Even though Plaintiffs’ injuries might not be completely eliminated by the implementation of TCM 2, any increase in air quality that would result from a favorable decision, is sufficient to satisfy the “minimal requirements of Article III.” Pub. Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 73 (3d Cir.1990) (<HOLDING>). In short, individual members of Plaintiffs’ Holdings: 0: holding that a contractor lacked standing because it failed to show a substantial chance it would have received the contract award but for agency error 1: holding that an osha inspection violating the fourth amendment would constitute irreparable injury for which injunctive relief would be appropriate 2: holding that plaintiffs lacked standing to seek injunctive relief because they failed to demonstrate any likelihood that they would end up back in jail where alleged constitutional violations occurred 3: holding that a protester must show only that there was a substantial chance it would have received the contract award but for that error 4: holding that to have standing plaintiffs must only show that the injunctive relief requested would decrease pollution not that it would return a polluted waterway to pristine condition
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of any diminution of value to the Wages Tract. Additionally, in Case No. A16A0258, we affirm the trial court’s grant of summary judgment in favor of Old Republic as to RM Kids’s bad-faith claim and its grant of a directed verdict in favor of Old Republic as to RM Kids’s prejudgment interest claim. Judgment affirmed in part and reversed in part, and case remanded in Case No. A16A0257. Judgment affirmed in Case No. A16A02S8. Phipps, P. J., and Peterson, J., concur. Schiff Hardin, LLP, Leah Ward Sears, John C. Amabile, Nicholas F. McDaniel; Knight Johnson, LLC, Bryan M. Knight, Sherri G. Buda, for appellee. Gilroy Bailey Trumble, LLC, MonicaK Gilroy, Tania T. Trumble, amici curiae. 1 See Horton v. Hendrix, 291 Ga. App. 416, 416 ( ., 881 FSupp.2d 1058, 1066 (III) (C) (D. Minn. 2012) (<HOLDING>); Marble Bank v. Commonwealth Land Title Ins. Holdings: 0: holding that because a mortgage provides the security for the repayment of the note the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder 1: holding that an insured mortgagees loss under a title insurance policy cannot be measured until the note has not been repaid and the security for the mortgage is shown to be inadequate 2: holding that a mortgagees loss cannot he measured unless the underlying debt is not repaid and the security for the mortgage proves inadequate 3: holding that a mortgageeinsureds loss cannot be determined unless the note is not repaid and the security for the mortgage proves inadequate 4: holding that the loss of trade secrets cannot be measured in money damages
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applies to illegal contraband, the court found it “almost impossible to conceive of an object which may be lawfully possessed, but has no legitimate use.” Id. at 424. Therefore, the court determined that under the amended statute, “criminal instrument” is not limited to objects that can be used only for criminal purposes. Id. Having concluded that it was not bound by Universal or Fronatt, the court proceeded to reject Eodice’s interpretation of section 16.01 as well. The court believed that Eodice presented the exact type of scenario envisioned by the Legislature when it adopted section 16.01. Id. at 424-25. And, in stark contrast to Andrews, the court held that “the gravamen of the crime remains the actor’s intended use of the instrument.” Id. at 425. Contra Andrews, 814 S.W.2d at 841 (<HOLDING>). The court concluded that “the ontological Holdings: 0: holding that the gravamen of the offense is the physical adaptation of the instrument 1: holding that the florida offense of attempted lewd assault on a child under the age of sixteen is a crime of violence even though the offense might be accomplished without use of physical force 2: holding that an offense is factually lesser included if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense 3: holding that the deferential standard of review of a plan interpretation is appropriate only when the trust instrument allows the trustee to interpret the instrument and when the trust ee has in fact interpreted the instrument 4: holding an indictment legally insufficient when it failed to inform the defendant of the gravamen of the alleged offense
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attacks. See Williams, 480 Fed.Appx. at 256 (“A prison guard is deliberately indifferent if he intentionally denies or delays access to medical care.” (internal quotation marks omitted) (quoting Walker v. Butler, 967 F.2d 176, 178 (5th Cir.1992))). Moreover, the parties agree that Stewart’s medical condition was known by the prison guards. Our review of the summary judgment evidence indicates that Appellees also intentionally disregarded the established treatment plan for Stewart. See Chapman v. Johnson, 339 Fed.Appx. 446, 448 (5th Cir.2009) (per curiam) (unpublished) (stating that a defendant is not entitled to summary judgment based on qualified immunity when the defendant knew of prisoner’s injury and treatment protocol but failed to follow it); see also Easter, 467 F.3d at 465 (<HOLDING>). Accordingly, the district court erred when it Holdings: 0: holding that summary judgment was improper on qualified immunity grounds when defendant was aware of prisoners need for medical treatment but failed to provide it 1: holding that summary judgment in favor of the defendant was appropriate because the plaintiff failed to designate evidence that demonstrates that the defendant abused the qualified privilege 2: holding that it was error for the district court to overrule appellants motion for summary judgment without reference to the qualified immunity defense 3: holding that summary judgment for defendant officials on the basis of qualified immunity was improper given officials indefinite refusal to treat plaintiffs cavity 4: holding that an interlocutory appeal lies from a denial of summary judgment on a qualified immunity claim
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a DD Form 214 is a "source document” that “retires ... or transitions a person from the military.” Aplt.App. at 141. He also clarified that a DD Form 214 separates a person from the Army "[rjegardless of whether the Army did all the follow-up paperwork and computer entries and so forth properly[J” Id. 3 . There is no uniformly accepted definition of the phrase "acting as such,” and courts disagree with respect to the amount of independence required to separate an overt act from the original act of impersonation. Compare United States v. Rosser, 528 F.2d 652, 657 (D.C.Cir.1976) ("the act that completes a violation of Section 912(1) must be something more than merely an act in keeping with the falsely assumed character”) with United States v. Gayle, 967 F.2d 483, 488 (11th Cir. 1992) (<HOLDING>). This case does not require us to weigh in on Holdings: 0: holding that an indictment under 912 need not allege additional acts beyond the general act of impersonation 1: holding when a statute defines manner or means of committing an offense indictment need not allege matters beyond the language of the statute 2: holding that an indictment under 922g1 was not required to allege a substantial effect on interstate commerce an indictment which tracked the statutory language was sufficient 3: holding that an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense 4: holding that a found in indictment need not allege all of the elements of entry
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91 (D.N.J.1990). The statute of limitations will be tolled, however, where the defendant affirmatively conceals the facts that would allow plaintiff to realize that a cause of action exists. See Plain v. Flicker, 645 F.Supp. 898, 902-03 (D.N.J.1986). Active concealment tolls the statute of limitations until the plaintiff exercising reasonable diligence knows or should know of the fraud. See id. To determine whether an employer’s affirmative misrepresentations on monthly ERISA reports tolls the statute of limitations for a fund or trustee’s suit against the employer for deficient ERISA contributions, the Court must assess whether the deficiencies were apparent from the face of the reports. See, e.g., Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1282-83 (3d Cir.1991) (<HOLDING>); Connors v. Beth Energy Mines, Inc., 920 F.2d Holdings: 0: holding that there is no first amendment right of access to presentence reports 1: holding tolling appropriate where no aspect of reports should have alerted plaintiffs to irregularities 2: holding annexation ordinance only voidable due to procedural irregularities 3: holding that whether the judgment creditor had reason to know or might have been alerted to circumstances that should reasonably have impelled him to check beyond the filed record is irrelevant 4: holding that 2244d is subject to equitable tolling in appropriate cases
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(applying literal test); Oregon Bureau of Labor & Indus, ex rel. Richardson v. U.S. West Commc’ns, Inc., 288 F.3d 414, 417-18 (9th Cir.2002) (same); see also Sun Buick, supra, 26 F.3d at 1261-64 (criticizing functional test, but stopping short of rejecting it because administrative agency at issue “would not qualify [as a state court] under any circumstances”); Tool & Die Makers Lodge No. 78 Int’l Ass’n of Machinists v. Gen’l Elec. Co. X-Ray Dept., 170 F.Supp. 945, 949-50 (E.D.Wis.1959) (district court decision that has been characterized as the “genesis” of the functional test). The Fourth Circuit appeared to endorse the functional test in the context of the federal officer removal statute in Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571, 576 (4th Cir.1989) (<HOLDING>). Consequently, subsequent decisions in this Holdings: 0: holding that the west virginia state bar committee on legal ethics was a state court for purposes of removal and citing favorably to volkswagen de puerto rico supra 454 f2d 38 1: holding that a minimum fee schedule enforced by the virginia state bar did not fall within the parker exception because the fee schedule was not mandated by the virginia supreme court and thus it could not fairly be said that the state of virginia through its supreme court rules required the anticompetitive activities 2: holding that the proceedings of the west virginia state bar committee on the unlawful practice were judicial in nature based on hallmarks similar to those discussed herein 3: holding that a state procedural default will not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment clearly and expressly stated that its judgment rested on a state procedural bar 4: holding that the united states was a statutory employer under puerto rico law
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implicated system-wide discrimination they would have unquestionably involvedia matter of “public concern.” See Marshall v. Allen, 984 F.2d 787 (7th Cir.1993) (allowing Section 1983 claim where plaintiff was discharged following his support of other employees who had filed suit for gender discrimination); Wilson v. UT Health Ctr., 973 F.2d 1263, 1266 ( .2d 749 (1991). In the instant case there is no indication that the plaintiff “wanted to debate issues of sex discrimination,” that her suit sought “relief against pervasive or systemic misconduct by a public agency or public officials,” or that her suit was “part of an overall effort ... to correct allegedly unlawful practices or bring them to public attention.” Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 420 (7th Cir.1988) (<HOLDING>). Although evidence was subsequently uncovered Holdings: 0: holding that plaintiff had failed to state a claim for relief under section 1983 1: holding that plaintiffs complaint failed to state a claim under section 1 of the sherman act 2: recognizing such a claim under 1983 3: holding that claim brought under section 1983 of the civil rights act constituted a personal injury tort claim because section 1983 confers a general remedy for injuries to personal rights 4: holding state is not a proper defendant under 1983
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of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.... 3 . The record discloses that Martinez served Mills with a proposal to settle several months before Mills’s proposal was served. Ironically, Martinez also filed his offer with the court in violation of the rule and statute. 4 . Other federal courts have reached similar results when considering time periods established in other statutes. See, e.g., Shenango Inc. v. Apfel, 307 F.3d 174, 193 (3d Cir.2002) (statutory deadline does not, by itself, establish that Congress intended to strip an agency's authority to act after the deadline has passed); Friends of Aquifer, Inc. v. Mineta, 150 F.Supp.2d 1297 (N.D.Fla.2001) (<HOLDING>); Bhd. of Ry. Carmen Div. v. Pena, 64 F.3d 702, Holdings: 0: holding that the secretary is not entitled to deference when construing the acts implementing regulations 1: holding that even though the reasonable doubt instruction given in the case was not the preferred instruction it was not a misstatement of the law and therefore was legally appropriate 2: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 3: holding that group was not entitled to writ of mandamus given that it was not clear that congress intended deadlines for meeting the standards to be mandatory even though the statute provided that the secretary shall prescribe certain regulations not later than given deadlines 4: holding that the statute is mandatory
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in bankruptcy. As of November 23, 2005, the Debtor owed the Creditor approximately $114,040. A debtor cannot claim an exemption against amounts owed on a secured debt that represents a voluntary encumbrance of property; consequently, the Debtor is not entitled to any exemption in the $114,040 owed to the Creditor. Because the Debtor’s principal residence was sold for $130,000, the Debtor’s entitlement to an exemption based on the transfer sought to be avoided was only $15,960. Assuming that all four of the requirements are met, a debtor has the right to avoid the transfer of his property to the extent that he could have exempted such property. See Compton v. Compton (In re Compton), No. 97-31367DWS, 1998 WL 372659, **4-5, 1998 Bankr.LEXIS 744, *13-14 (Bankr.E.D.Pa. June 22, 1998) (<HOLDING>); Davis v. Victor Warren Properties, Inc. (In Holdings: 0: holding that a state tax lien was not judicial lien arising from judgment such that it could be avoided in bankruptcy by a chapter 13 debtor 1: holding that chapter 20 debtor could not avoid lien because of ineligibility for discharge 2: holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien 3: holding that a chapter 13 debtor had standing to avoid a judgment lien to the extent of her exemption amount but not the entire judgment lien 4: holding that the debtor had standing to avoid a foreclosure sale under 522 but only to the extent of her 5000 exemption
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on December 7, 1990. Since Hodari D. was not decided by the Supreme Court until April 23, 1991, the district court did not have the benefit of its guidance in ruling on these motions. Hodari D.’s predecessors include Alabama v. White, 496 U.S. 325, 328-32, 110 S.Ct. 2412, 2415-17, 110 L.Ed.2d 301 (1990) (defining and distinguishing the government’s burdens regarding reasonable suspicion and probable cause); Brower v. Inyo County, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381-83, 103 L.Ed.2d 628 (1989) (where a suspect was caught when stolen car he was driving at high speeds to elude pursuing police, crashed into police roadblock, holding there was not a "stop” until the suspect crashed into a blockade); United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989) (<HOLDING>). 9 . See Brower, 489 U.S. at 596, 109 S.Ct. at Holdings: 0: holding that factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion 1: holding innocent facts when considered together can give rise to reasonable suspicion 2: holding that such factors may constitute a substantial burden 3: holding that while each separate item standing alone did not provide reasonable suspicion a combination of factors clearly satisfied the reasonable suspicion requirement 4: holding that factors which by themselves were quite consistent with innocent travel collectively amounted to reasonable suspicion
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of an action is the most critical aspect of the court’s authority to act. Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question[, and] ... is conferred upon the courts by either the North Carolina Constitution or by statute.” In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003) (citations omitted). N.C. Gen. Stat. § 7B-200(a) confers on the trial court exclusive, original jurisdiction “over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. § 7B-200(a) (2003). “ ‘[0]nce jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined.’ ” In the Matter of Arends, 88 N.C. App. 550, 554, 364 S.E.2d 169, 171 (1988) (citation omitted) (<HOLDING>); N.C. Gen. Stat. § 7B-201 (2003). “[A] court’s Holdings: 0: holding that the superior court had no jurisdiction over the division of marital property when the district court had properly invoked jurisdiction over the property 1: holding that the district court may decline to exercise supplemental jurisdiction over related statelaw claims once it has dismissed all claims over which it had original jurisdiction 2: holding that personal jurisdiction is not required to make an outofstate parent a party to custody action where the state court has subject matter jurisdiction under the uniform child custody jurisdiction act 3: holding that the trial court had continuing jurisdiction over all subsequent custody orders once the trial court acquired jurisdiction 4: holding that a subsequent action was not barred because the initial court did not have jurisdiction over the claim
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video surveillance, respectively), not the location of a search, which is addressed by the wording of Rule 41. This court in any case declines to legislate by reading into the statute language that Congress did not place there. a. Nature of the Rule 41 Violation A Rule 41 violation is either “technical” or “procedural,” as courts have phrased it, or constitutional. See, e.g., Adams, 2016 WL 4212079, at *6 (“The Court views a Rule 41(b) violation to be a technical or procedural violation.... ”). “[Ujnless a clear constitutional violation occurs, noncompliance with Rule 41 requires suppression of evidence only where (1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) ther 515 (D.D.C. 2013) (<HOLDING>); U.S. v. Master, 614 F.3d 236, 241 (6th Cir. Holdings: 0: holding that the district court which erred in its conclusion that there was jurisdictional defect abused its discretion in denying a plaintiffsmotion for leave to amend his complaint because the proposed amendment would not cure the jurisdictional defect 1: holding that a violation of the forum defendant rule is a jurisdictional defect 2: holding jurisdictional defect voids judgment when defect exposes such personal jurisdictional deficiencies as to violate due process 3: holding error to be fundamental when record shows jurisdictional defect 4: holding that a rule 41b violation constituted a jurisdictional flaw inexcusable as a technical defect
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has not run as to the minor’s claim, a fortiori, it has not run against his present guardian.” Id. The import of both of these cases is that the cause of action remains personal to the plaintiff insofar as the running of the statute of limitations is concerned. That is, the statute of limitations either runs or is tolled depending upon the status of the plaintiff, irrespective of whether a legal guardian exists. If the plaintiff is under some form of legally recognized disability which tolls the statute of limitations, the statute of limitations remains tolled despite the possibility that some representative could bring the action on the plaintiff’s behalf. The majority of other state courts construing similar statutes have also concluded that the a 136, 927 P.2d 796, 801 (Ct.App.1996) (<HOLDING>); Mason v. Sorrell, 260 Ark. 27, 551 S.W.2d Holdings: 0: holding that appointment of a conservator does not remove a mentally disabled persons legal disability so as to start the statute of limitations running 1: holding that tolling of the statute of limitations was not tolled during the pendency of a claim dismissed without prejudice for want of prosecution 2: holding that tolling accorded to persons of unsound mind continued during disability regardless that next friend might have sued 3: holding that the express provisions of article 4590i exclude the unsound mind tolling provision of texcivprac remcode ann 16001a2 and b 4: holding that the appointment of a conservator will not cease the tolling of the statute of limitations for those of unsound mind
|
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purpose served by obliterating a serial number on a firearm. Because a firearm with a serial number is equally effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. These weapons would then have value primarily for persons seeking to use them for illicit purposes. See United States v. Carter, 421 F.3d 909, 910 (9th Cir.2005) (noting that unmarked firearms have a “greater flexibility to be utilized in illicit activities” (alteration and internal quotation marks omitted)); cf. United States v. Tagg, 572 F.3d 1320, 1326 (11th Cir.2009) (finding no Second Amendment protection for pipe bombs because they could not be used for legitimate lawful purposes); State v. Chandler, 5 La. Ann. 489, 489-90 (1850) (<HOLDING>). Nevertheless, a handgun with an obliterated Holdings: 0: holding that evidence of violent crimes and other illegal activities of defendants gang was not unduly prejudicial because defendant was not directly implicated and the evidence was probative of elements of the crimes that the defendant was charged with 1: holding south carolina conviction for failure to stop for a blue light to be violent felony under acca because prohibited conduct creates potential for confrontation and violence 2: holding that eighth amendment prohibited consideration at sentencing of personal characteristics of the victim and the emotional im pact of the crimes on the victims family 3: holding concealed weapons could be prohibited because of their tendency to be used in violent crimes on unsuspecting victims 4: holding intoxication is only a defense to specific intent crimes and not general intent crimes
|
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prison officials based on Ware’s failure to exhaust administrative remedies as required by the Prisoner Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a). We affirm, adding only the following comments. First, Ware has not shown that the district court erred in failing to find that defendants waived the exhaustion requirement. Defendants raised a failure-to-exhaust defense in their answer and in a renewed motion for summary judgment. Ware did not assert any prejudice, nor do we perceive any, as he was on notice of the exhaustion requirement and had ample time to oppose the renewed summary judgment motion. Thus, the district court did not abuse its discretion in considering the defendants’ failure-to-exhaust defense. See Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir.1996) (<HOLDING>). Also, Ware has not shown that the district Holdings: 0: holding that such a decision was within the trial courts discretion 1: holding that laches is an affirmative defense 2: holding that decision on waiver of affirmative defense normally is within district courts discretion 3: holding burden of proof is on one asserting an affirmative defense 4: holding that fair use is an affirmative defense
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Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1 (requiring particularized showing of exigent circumstances for warrantless search of vehicle under N.M. Const, art. II, § 10); Campos v. State, 117 N.M. 155, 158-59, 870 P.2d 117, 120-21 (1994) (declining to adopt federal rule allowing warrantless arrest without exigent circumstances); State v. Gutierrez, 116 N.M. 431, 445-47, 863 P.2d 1052, 1066-68 (1993) (rejecting good faith rationale under Fourth Amendment and the federal rationale for the exclusionary rule based on deterring police misconduct); State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989) (rejecting Fourth Amendment rationale for the "totality of circumstances” test to establish probable cause); State v. Snyder, 1998-NMCA-166, VH 18-24, 126 N.M. 168, 967 P.2d 843 (<HOLDING>). 3 . We do not address the breadth of the Holdings: 0: holding that exclusionary rule does not extend to forbid the use in federal civil tax proceeding of evidence illegally seized by state criminal law enforcement agent 1: holding that exclusionary rule to be applied as a matter of state law is no broader than the federal rule 2: holding that due process requires exclusionary rule to be applied in state trials 3: holding that me const art 1 5 does not require the state to prove probable cause for a search beyond a reasonable doubt 4: holding that nm const art ii 10 exclusionary rule applied to use of evidence in state court criminal proceeding when that evidence resulted from warrantless search by federal border patrol agents at checkpoint in new mexico
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is made, the court, after notice and a hearing, shall determine the amount of such claim ... and shall allow such claim in suc scretion in this case. While Porges obtained a dismissal of his bankruptcy ease and chose not to convert his petition to a proceeding under another chapter of the Bankruptcy Code, he previously had sought bankruptcy protection and initiated the adversary proceeding. Porges thus subjected himself “ ‘to all the consequences that attach to an appearance,’ ” including the determination of liability on Gruntal’s claims. In re McLaren, 3 F.3d at 966 (quoting Hillman, 296 U.S. at 242, 56 S.Ct. at 211). A party seeking relief in bankruptcy court cannot avoid an adverse judgment by subsequently abjuring bankruptcy protection. See Pepper, 308 U.S. at 305, 60 S.Ct. at 244 (<HOLDING>). Finally, the exercise of a court’s equitable Holdings: 0: holding that where a court possesses jurisdiction over a disputed matter it may exercise its equitable powers to ensure that substance will not give way to form and that technical considerations will not prevent substantial justice from being done 1: holding that it may not 2: holding that congress may impose its will on the states as long as it is acting within the powers granted by the constitution 3: holding that any attempt by way of contract to deprive a city of control over exercise of it police powers is void 4: holding a court of criminal appeals may not exercise its sentence approval powers to criticize a state court conviction
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See Thornton, 511 F.3d at 1228; Holt, 510 F.3d at 1012. Some of our sister circuits have encountered a different type of “double counting” problem in cases that involve calculations of loss under § 2Bl.l(b)(l). This version of “double counting” occurs where the same fraudulent check or stolen credit card is erroneously counted twice in estimating the total loss attributable to a defendant. Reviewing courts have found such errors to be material only where they bring the amount of loss into a different category for Guidelines purposes, such as from $900,000, which would carry a fourteen-level enhancement under § 2Bl.l(b)(l)(H), to $1.1 million, which would carry a sixteen-level enhancement under § 2Bl.l(b)(l)(I). See, e.g., United States v. Mickens, 453 F.3d 668, 671-72 (6th Cir.2006) (<HOLDING>); United States v. Lee, 427 F.3d 881, 896 (11th Holdings: 0: holding that where defendant objected in the district court only to the loss calculation and not specifically to the calculation of restitution the issue of restitution was not properly presented to the district court 1: holding that a calculation of the amount of loss is a factual finding 2: holding that the district court failed to comply with rule 32c1 because its oral finding regarding the value of loss resulting from monuss offense was stated in general terms and did not explain how it calculated the amount of loss or respond to the defendants specific factual objections to the methods of calculation included in the psr 3: holding that even if one of the governments calculation methods impermissibly counted funds obtained from the same stolen credit card towards both actual and intended loss any error was harmless because an alternate calculation method which was free of any double counting also resulted in a loss amount of between 120000 and 400000 and thus application of the same enhancement 4: holding the same
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CD because it incorporated the holder’s possession and endorsement of the CD as a precondition to payment. Aside from bearing the “nontransferable” legend, the CD also stated on its face that “It Will Pay To the Order of Michael Brier * * * On Return Of This Certificate Properly Endorsed.” (Emphasis added.) By incorporating possession and endorsement of the CD as a precondition to payment, the bank implicitly acknowledged that the CD was indeed transferable. See First National Bank in Grand Prairie v. Lone Star Life Insurance Co., 524 S.W.2d 525, 530 (Tex.Civ.App.1975). Otherwise, why would the bank have required Brier to return and endorse the CD upon seeking payment? “Such presentation is necessary for the bank’s protection because lack of possession wou 374 So.2d 6, 10 (Fla.1979) (<HOLDING>). Therefore, because the CD was an instrument Holdings: 0: holding that it may be decided as a matter of law 1: holding as matter of law that nontransferable cds were article 9 instruments 2: holding that the defendant did not establish good faith as a matter of law 3: holding as matter of law that cds containing restrictions on transfers were nonetheless article 9 instruments 4: holding blank transfers of real property are impermissible under massachusetts law
|
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for theft by receiving.” Korelis, 273 Or at 429; Thomas, 13 Or App at 170-73. We explained, in the context of a jury trial, that giving a jury instruction that includes the phrase “having good reason to know” is erroneous because it suggests that a jury may consider whether a reasonable person would have believed that the property was stolen. Id. at 171-72. The same is true where the trier of fact is the court. See, e.g., Babler Bros. v. Pac. Intermountain, 244 Or 459, 467, 415 P2d 735 (1966) (“When the record discloses that the jury applied the wrong law to the problem, the verdict cannot stand. * * * Where an error of law is shown to have influenced the court trying a case without a jury, reversal is equally necessary.”); State v. Clum, 216 Or App 1, 7-9, 8 n 5, 171 P3d 980 (2007) (<HOLDING>). In this case, we are bound by Korelis. To be Holdings: 0: holding that the trial court is required to provide reasons for its decision prior to appeal 1: holding the trial court is required to make a determination on impairment of access prior to trial 2: holding that complaint on appeal must be the same as that presented in the trial court 3: holding that a party may not raise a claim on appeal that was not presented to the trial court 4: holding that whether the trial court in a bench trial applied a correct understanding of the elements legally required to convict was reviewable on appeal
|
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by, a protected ground.”); see also § 1252(b)(4)(B). The crux of Thuri’s position is that she was persecuted because her father opposed institutional government corruption — which (in her view) constitutes the expression of a political opinion. By contrast, the IJ concluded, and the government contends, that the officers’ retaliatory conduct was driven by a criminal, nonpolitical motive to punish Thuri’s father for reporting the hijacking. Thuri has not identified any decisions in this circuit that support her argument for refugee status. In addition, even if the two Ninth Circuit cases on which Thuri relies were binding precedent, it is not clear that the legal standards those decisions announce would apply to Thuri’s case. See Grava v. INS, 205 F.3d 1177, 1181 & n. 3 (9th Cir.2000) (<HOLDING>); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Holdings: 0: recognizing that purely personal retribution is of course not persecution on account of political opinion but holding that when the alleged government corruption is inextricably intertwined with governmental operation the exposure and prosecution of such an abuse of public trust is necessarily political 1: holding that opposition to government corruption may constitute political opinion 2: holding that retaliation for opposition to government corruption can constitute persecution on account of a political opinion 3: holding that persecution was on account of political opinion because petitioners prosecutorial investigation into acts of political corruption was by its very nature political 4: holding that a fear of retribution from a husband a high political official was a strictly personal matter
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who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under [Indiana Post-Convietion Rule] 2," rather than filing a post-conviction relief petition. The trial court subsequently granted Sullivan permission to pursue this belated appeal challenging his sentence. The State does not argue that Sullivan cannot invoke Blakely with respect to a sentencing hearing that was conducted in 1999. It was correct not to make such an argument. The Indiana Supreme Court's rule that precludes retroactive application of new criminal rules to collateral proceedings does not apply to direct appeals brought pursuant to Post-Conviction Rule 2. Fosha v. State, 747 N.E.2d 549, 552 (Ind.2001) (<HOLDING>). "New rules for the conduct of criminal Holdings: 0: holding that the granting of an application to file an appeal out of time is considered part of the direct appeal process under oklahoma law 1: holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape 2: holding that defendants claim based on richardson v state 717 ne2d 32 ind1999 would be considered on the merits where defendant was convicted in 1993 and did not originally timely file a direct appeal but in 1999 was granted permission to file a belated appeal 3: holding that counsels failure to file appeal was not deficient performance under strickland where the petitioner in 2255 action did not direct counsel to file an appeal and acquiesced in counsels decision to pursue as an alternative a reduction in sentence 4: holding that where the fourth amendment question was raised at trial but not preserved on direct appeal in the state court the defendants failure to raise the issue on appeal in the state courts did not suffice to avoid stone
|
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would not have recovered anything even in the absence of a grant of derivative standing to Hyundai. Or, if the estate has additional assets and the JT & T parties have a small, secured claim that is superior to all other claims, then they will likely recover on their claim regardless of whether the adversary action brought by Hyundai is successful. In either of these scenarios, permitting Hyundai to pursue the avoidance and recovery action could hardly be said to have a negative impact on the JT & T parties’ interests as creditors. See In re The Watch Ltd., 257 Fed.Appx. at 750 (stating, in dictum, that the creditor’s injury was too speculative where he could not show a likelihood of recovering on his unsecured claim); In re Richardson Indus. Contractors, Inc., 189 Fed.Appx. at 93 (<HOLDING>); see also Fishell v. Soltow (In re Fishell), Holdings: 0: holding an unsecured creditors postconfirmation suit against a secured creditor for fraudulent misrepresentation at a creditors meeting constituted a collateral attack on the confirmation order 1: holding that unsecured creditor could not appeal decision determining priority among secured creditors because it would not affect the payment of his claims 2: holding that plan proposing and payment of nondischargeable student loan in full outside plan according to its terms for 54 months and 79 payment to unsecured creditors over 36 months did not discriminate unfairly among unsecured class 3: holding that because creditors claim was unsecured after application of section 506a and because section 1325a5 does not apply to unsecured claims creditors lien could properly be avoided 4: holding that postconfirmation attempt to equitably subordinate claim of one general unsecured creditor in a class of general unsecured creditors was a violation of 1123a4
|
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it concluded that “neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of § 924(e)(2)(B)(ii)’s residual provision.” Id. We need go no further. IV. Criminal Possession of a Weapon Is a Violent Felony Lynch also argues that his 1989 conviction for criminal possession of a weapon in the second degree is not a violent felony under the ACCA. Lynch asserts that since he never admitted to having “intent to use the weapon unlawfully against another,” his conviction was based on “mere possession” and cannot constitute a violent felony. Lynch, however, pled guilty to the charge at issue in state court. Under New York law, “[a] person is guilty of criminal possession of a weapon in the se Cir.2005) (<HOLDING>). This Court, in United States v. Danielson, Holdings: 0: holding that possession of a sawedoff shotgun under 26 usc 5861d is a crime of violence and noting that congress found certain firearms sawedoff shot guns and grenades to be inherently dangerous and lacking in usefulness other than for violent and criminal purposes 1: holding that shortbarreled shotguns are unprotected 2: holding that burglary is violent felony 3: holding that possession of a shortbarreled shotgun is a violent felony under the accas residual clause because sawedoff shotguns are inherently dangerous and lack usefulness except for violent and criminal purposes internal quotation marks omitted 4: holding that possession of sawedoff shotgun is violent felony as defined by armed career criminal act
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Procedure Act unquestionably provides authority to agencies to adopt mandatory internal administrative appeals. See 5 U.S.C. § 704. Courts have routinely applied the exhaustion doctrine to bar judicial review of underlying merits determinations where a party fails to timely appeal under an agency’s internal regulations. See, e.g., Spitzer Great Lakes Ltd. v. United States EPA, 173 F.3d 412, 414 (6th Cir.1999) (“Because the Board’s order dismissing Spitzer’s administrative appeal was based solely on Spitzer’s failure to comply with the agency’s procedural deadlines, we limit our review to the question of whether the Board abused its discretion in requiring strict compliance with its regulatory deadlines.”); Glisson v. United States Forest Serv., 55 F.3d 1325, 1328 (7th Cir.1995) (<HOLDING>); Blevins v. United States DOL, 683 F.2d 139, Holdings: 0: holding that bivens plaintiff was not required to exhaust administrative remedies where administrative remedy program provided only for injunctive relief 1: holding that claims not presented to the ij and bia should be dismissed for failure to exhaust administrative remedies 2: holding that partys failure to file a timely internal administrative appeal as required by regulations of the department of agriculture constituted failure to exhaust administrative remedies and precluded judicial action 3: holding that constitutional claims against defendants in their individual capacities were precluded by plaintiffs failure to exhaust administrative remedies under pertinent statutory scheme 4: holding that failure to take available appeal to board of immigration appeals constitutes failure to exhaust administrative remedies and deprives the court of appeals of jurisdiction to review
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CURIAM: Fahed T. Tawalbeh appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2000). In criminal cases, the defendant must file his notice of appeal within ten days of the entry of judgment. Fed. R.App. P. 4(b)(1)(A); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (<HOLDING>). With or without a motion, the district court Holdings: 0: holding that 3582 proceeding is criminal in nature and tenday appeal period applies citing united states v petty 82 f3d 809 810 8th cir1996 and united states v ono 72 f3d 101 10203 9th cir1995 1: holding 3582 proceeding is criminal in nature and tenday appeal period applies and collecting cases 2: holding that 3582 proceeding is criminal in nature and tenday appeal period applies 3: holding that the commandant of the united states disciplinary barracks and the united states are identical parties 4: holding that sovereign immunity does not bar extinguishment of united states junior lien in proceeding in which united states was not a party
|
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Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225, 228 (1982). Defendants argue that Plaintiffs’ Cal. Civ.Code § 52.1 claims are involved in the appeal because they, like the § 1983 claims, require finding a violation of constitutional rights. Defendants conclude that the Court lacked jurisdiction over Plaintiffs’ Cal. Civ.Code § 52.1 claims against Appellant Defendants. California Civil Code § 52.1 claims are not subject to qualified immunity. See e.g., Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir.2009) (“California law is ... clear that qualified immunity of the kind applied to actions brought under 42 U.S.C. § 1983 does not apply to actions brought under [Cal. Civil Code § 52.1].”); Venegas, 153 Cal.App.4th at 1248, 63 Cal.Rptr.3d 741 (<HOLDING>). Defendants appeal the Court’s denial of Holdings: 0: holding that preclusion rules apply in 1983 actions 1: holding that defendants are not entitled to qualified immunity 2: holding that qualified immunity under 1983 does not apply to actions brought under 521 3: holding that preclusion rules apply in section 1983 actions 4: holding that in actions brought under 42 usc 1983 federal courts apply the states statute of limitation for personal injury
|
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Petitions for Judgments of Separate Courts. A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. The amendment to the rule is purely semantic, as the change was “intended to be stylistic and no substantive change [was] intended, except [changes not affecting this provision].” Rules Governing Section 2254 Cases in the United States District Courts, Rule 2, Rule 2 advisory committee’s notes on 2004 Amendments. 6 . Our holding is consistent with the principle, well-recognized as a matter of both federal and state jurisprudence, that resentencing does not affect the finality of the original judgment of conviction. See, e.g., United States v. Sanders, 247 F.3d 139, 144 (4th Cir.2001) (<HOLDING>). The same rule obtains as a matter of Florida Holdings: 0: holding resentencing does not affect the date on which the judgment of conviction became final 1: holding that a conviction is deemed final on the date of sentencing when there is no evidence that notice of appeal was filed 2: holding that the date on which the plaintiff learned of the defendants denial of tenure not the date on which the plaintiff became unemployed was when the statute of limitations began to run 3: holding that interest does not begin to accrue until the date of judgment not the date of verdict 4: holding that resentencing is required
|
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to modification may have pre-clusive effect for res judicata purposes. See, e.g., Spiker v. Spiker, 708 N.W.2d 347, 355 (Iowa 2006) (noting order granting continuing relief is “final” for res judicata purposes as long as there has been no substantial change in circumstance). And judgments are given res judicata effect during appeals. Peterson v. Eitzen, 173 N.W.2d 848, 850 (Iowa 1970) (“The judgment of the trial court is res judicata until set aside, modified or reversed.”); see also N. Star Steel Co. v. MidAmerican Energy Holdings Co., 184 F.3d 732, 737 (8th Cir. 1999) (“Under Iowa law, issue preclusion may be applied to a trial court’s ruling on the merits of an issue despite the pen-dency of an appeal from that ruling.”); Restatement (Second) of Judgments § 13 cmts. c, f at 133, 135 (<HOLDING>). The Restatement defines “final judgment” to Holdings: 0: recognizing bankruptcy courts jurisdiction over such a collateral attack 1: recognizing collateral attack on void order 2: holding that federal rules of res judicata and collateral estoppel determine preclusive effect of prior federal ftca judgments even though liability is based on state law 3: recognizing preclusive effect of judgments notwithstanding pending appeal or collateral attack 4: holding that settlement agreements like consent judgments are not given preclusive effect unless the parties manifest their intent to give them such effect
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