Input: a claim for or the receipt of workers’ compensation benefits or other payments arising from events unrelated to the ior injury is inadmissible because it is “clearly irrelevant to the issues being tried.” Leslie v. Higgason, 779 So.2d 470, 470 (Fla. 2d DCA 2000). Evidence concerning a “[plaintiffs] previous injury” may, however, be relevant to the issue of the defendant’s liability or the amount of damages due. Id. There are also circumstances where evidence specifically concerning litigation or claims by a plaintiff for a prior injury will be considered relevant to matters at issue and therefore admissible. Thus, “a plaintiff may properly be questioned about prior lawsuits or claims for injuries similar to those complained of in the present laws 2d 805, 806-07 (Fla. 5th DCA 2002) (<HOLDING>). Similarly, evidence relating to a subsequent Holdings: 0: holding that trial court erred in excluding from evidence the application for social security benefits that the plaintiff made eight months prior to the accident at issue in which he described in detail his inability to work which was probative in establishing the plaintiffs condition prior to the accident and stating that since the plaintiff was denied social security benefits  there was no collateral source 1: holding that the claims court has no jurisdiction under the tucker act over claims to social security benefits 2: holding that an evidentiary hearing is not required prior to the termination of social security disability benefits 3: holding that offset for social security retirement benefits does not include federal disability benefits and stating that there was no legislative intent to embody the entire subchapter of the social security act dealing with both disability benefits and old age benefits 4: holding that use of social security benefits satisfied child support obligation


Input: exemption statutes like Mo.Rev.Stat. § 513.-430(10)(e). A credible argument against ERISA’s preemption of such state exemption statutes exists and has been adopted by what one court has called an “emerging minority.” In re Kazi, 125 B.R. 981 (Bankr.S.D.Ill.1991). The Eighth Circuit has recently resolved this issue against the position taken by the trustee, by holding, “... ERISA does not preempt state law exemptions of pension plan benefits reasonably necessary for the support of a debtor.” In re Vickers, 954 F.2d 1426 (8th Cir.1992). However, when the Debtors asserted their exemptions the courts within the Eighth Circuit that had considered this pre-emption question had reached conflicting results and the Circuit Court had not yet ruled. See In re Gaines, 121 B.R. 1015 (W.D.Mo.1990) (<HOLDING>), compare, In re Vickers, 116 B.R. 149 Holdings: 0: 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 1: holding a state workers compensation regime preempted by erisa to the extent state law applied to pension plans governed by federal law 2: holding that erisa does not preempt revstatmo  51343010e because it is entirely consistent with both erisa and the bankruptcy code 3: holding that to the extent revstatmo  51343010e affects erisa it is preempted 4: holding that a state election law is preempted only to the extent that it conflicts with federal law


Input: the services rendered by the Firm may have been of some incidental benefit to Heller, given the broad description of the services rendered and the services already rendered by Heller’s counsel, this Court concludes that there was no direct correlation between the services rendered by the Firm and the actual disposition or preservation of Heller’s collateral. In essence, the Firm was representing the Debtors — nothing more. Thus, the incidental benefits derived by Heller from the Firm’s representation do not trigger Section 506(c). Id. Moreover, such standard potential administrative expense claims should not be transformed into Section 506(e) claims when the Court does not approve them as administrative expenses. See FDIC v. Jenson (In re Jenson), 980 F.2d 1254, 1260 (9th Cir.1992) (<HOLDING>) (citing In re Proto-Specialties, Inc., 43 B.R. Holdings: 0: holding that debtors obligation to pay portion of debt representing administrative expenses of collection was dischargeable 1: holding that  506c was not intended as a substitute for recovery of normal administrative expenses from the debtors estate 2: holding that although the lessor was not entitled to an administrative expense claim under  365d10 for the debtors use of leased property during the first sixty days of the ease the lessor would be entitled to those expenses under  503b1 to the extent the lessor could prove the expenses represented the actual necessary costs and expenses of preserving the estate 3: holding that the avoidance powers provide for recovery only if the recovery is for the benefit of the estate 4: holding that  506e is not intended as a substitute for the recovery of administrative expenses normally the responsibility of the debtors estate


Input: pretrial proceedings, Defendant was repeatedly advised of the risks he faced by choosing to proceed without counsel. Nevertheless, Defendant unequivocally maintained throughout the proceedings, orally and in writing, that he wished to represent himself. Defendant argues that certain technical errors, specifically a typographical error in the indictment and the prosecutor’s initial misstatement of the maximum sentence at the arraignment, render his conviction invalid. Without a showing of prejudice, these errors do not constitute grounds for reversal. See United States v. Romero, 640 F.2d 1014, 1015 (9th Cir.1981). Defendant has not demonstrated prejudice; the technical errors were promptly corrected. See Garland v. Washington, 232 U.S. 642, 645-46, 34 S.Ct. 456, 58 L.Ed. 772 (1914) (<HOLDING>). AFFIRMED. ** This disposition is not Holdings: 0: holding that instructional errors that are trial errors are subject to harmless error analysis 1: holding that incorrect charges on substantive elements of a crime constitute reversible error 2: holding that error in denying such challenge is reversible error without demonstration of prejudice 3: holding that technical errors in arraignment do not constitute reversible error absent actual prejudice to the defendant 4: holding the denial of a bill of particulars was not reversible error because it failed to cause the defendant any prejudice


Input: evidence was admissible under Rule 404(b) as proof of the identification, intent, and modus operandi of defendant. The trial court expressly limited the admission of the evidence of the subsequent rape in instructions to the jury both before the tender of the evidence and in its final mandate to the jury immediately prior to their deliberations. As the evidence of the subsequent rape was admitted in part to show intent and modus operandi of defendant, remoteness in time of the second act is less important to its admissibility. Id. As defendant concedes, this Court has upheld the admission of evidence under Rule 404(b) where the crimes] wrongs, or acts occurred after the offenses for which a defendant was on trial. State v. Hutchinson, 139 N.C. App. 132, 136, 532 S.E.2d 569, 572 (2000) (<HOLDING>). Indeed, under the plain language of the rule, Holdings: 0: holding that evidence of gang involvement was properly admitted to prove motive for participating in the alleged crimes 1: holding that the trial court did not abuse its discretion by refusing to accept the defendants guilty pleas to two counts of the indictment and stating that even if the trial court erred the error had not prejudiced the defendant because he was found guilty by the jury of the charges to which he intended to plead and the evidence of the other crimes would have been admissible in the trial for the first degree murder charge 2: holding trial court improperly instructed jury in trial for possession of cocaine base with intent to distribute that evidence of defendants similar acts of possession was admissible to show motive where motive was not element of crime charged and defendant did not contest motive 3: holding the trial court properly admitted evidence of defendants subsequent conduct in determining whether he possessed the intent and motive for the first degree burglary charge 4: holding that motive is circumstantial evidence of intent


Input: the owner of the collective work also owns the constituent parts of the collective work. See Woods v. Universal City Studios, Inc., 920 F.Supp. 62, 64 (S.D.N.Y.1996)(“[W]here the owner of the copyright for a collective work also owns the copyrights for its constituent parts, registration of the collective work satisfies the requirements of Section 411(a) for purposes of bringing an action for infringement of any of the constituent parts.”); Greenwich Film Prod., S.A. v. DRG Records, Inc., 833 F.Supp. 248, 252 (S.D.N.Y.1993) (copyright registration for motion picture was sufficient to cover musical compositions contained in sound track of picture, even though musical compositions were prepared in advance of completion of film); Howard v. Sterchi, 725 F.Supp. 1572, 1575-76 (N.D.Ga.1989) (<HOLDING>). These cases are supported by the leading Holdings: 0: holding that the juvenile defendants who voluntarily left their homes in the middle of night to ride to the police department in patrol cars and who were told they were not under arrest were not in custody 1: holding that plan participants in a defined benefit pension plan have no claim to the plans surplus assets 2: holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary 3: holding designer of log homes properly registered her purported copyrights in floor plans as independent derivative works by registering the plan books in which they were published 4: holding that a termination of an erisa plans benefits must be based upon the plans terms and language


Input: to as a “modified categorical approach” in which we look to the record of conviction, including the indictment, plea, verdict, and sentence (or any other documents admissible under the federal regulations to prove a criminal conviction, see 8 C.F.R. § 3.41 (1995)) to determine whether the actual offense of which the alien was convicted qualifies as a crime of violence. See Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000); Solorzano-Patlan v. INS, 207 F.3d 869, 875 (7th Cir.2000); Wadman v. INS, 329 F.2d 812, 814 (9th Cir.1964); see also Pichardo-Sufren, 21 I. & N. Dec. 330, 334 (BIA 1996)(en banc). The courts have emphasized that it is not what the alien did, but the crime of which he was convicted, determined by the record of conviction, that is dispositive. Ye v. INS, 214 F.3d at 1133 (<HOLDING>); In re Madrigal-Calvo, 21 I. & N. Dec. 323, Holdings: 0: holding that once the statute is found to be divisible the court must look to the charging papers and judgment of conviction to determine if the actual crime of which defendant was convicted was a crime of violence but emphasizing that the court is not to examine the particular facts underlying the conviction 1: holding that a court must only look to the statutory definition not the underlying circumstances of the crime to determine whether a given offense is by its nature a crime of violence for purposes of 18 usc  16 2: holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted 3: recognizing that a court may look to the charging document in making a crime of violence determination but only where the statute provides disjunctive methods of committing the offense and the court needs to determine which of the statutory alternatives is involved in the particular case 4: holding that courts should look to the statutory definition of the crime charged rather than the actual facts of the individuals prior conviction to determine whether the crime qualifies as a violent felony under the acca


Input: was unable to perform all of the material duties of any occupation for which plaintiff was or might have reasonably become qualified based upon her education, training or experience or that solely due to her arthritis, arthralgia and/or myalgia she was unable to earn more than 80% of her Indexed Covered Earnings. Aplt. App. Vol. 7 at 701560. Ms. Null argues that medical records alone could not establish her ability to perform different occupations and that the testimony of a vocational expert was required to establish that fact. She asserts that it was LINA’s obligation to secure such evidence. Normally, with an initial disability claim, the plaintiff has the burden of establishing that she is unable to perform in any occupation. Torix v. Ball Corp., 862 F.2d 1428, 1431 (10th Cir.1988) (<HOLDING>). There is authority, however, that the burden Holdings: 0: holding a state cannot impose an income tax on indians whose income is solely from reservation sources 1: holding that a claimant is required to establish a physical inability to follow any occupation from which he can earn a reasonably substantial income rising to the dignity of an income or livelihood although the income may not be as much as was earned prior to the disability 2: holding that net farm income when applied to a producer in the fishing industry means net income from all fishing activity not just that income from a particular commodity and further providing that the regulations make it reasonably clear that the determination of   net fishing income is not to be made solely on the basis of tax return information if other information is relevant to determining the producers net income from all   fishing sources 3: holding that trial judge has discretion to not include bonuses as part of gross income if he or she determines that the bonus income is not dependable or would place a hardship on a parent 4: holding that in determining the amount of income to impute to a party the court does not necessarily have to impute the amount of income the party would earn by his or her best efforts to gain employment equal to the parties capabilities


Input: was incurred within the 910-day preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49 [49 U.S.C. § 30102]) acquired for the personal use of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing. 7 . A claim which meets the requirements of the "hanging paragraph" is known as a “910-claim.” See Dean, 537 F.3d at 1318 n. 2. 8 . 11 U.S.C. § 1129(a) provides that "[t]he court shall confirm a plan only if all of the following requirements are met: .... ” 9 . See, e.g., Sparks v. HSBC Auto Fin., No. 1:06cv670, 2007 WL 2080289, **5-6, 2007 U.S. Dist. LEXIS 51943, at *14-*15 (S.D.Ohio July 18, 2007) (<HOLDING>); Horr v. Jake Sweeney Smartmart, Inc., No. Holdings: 0: holding debtors are entitled to establish and recover their compensatory damages under 11 usc  105a for violations of the discharge injunction 1: holding debtors negative equity in a tradein vehicle included in amount financed created a purchase money obligation within the meaning of 11 usc  1325a 2006 we summarily affirm the portion of the district courts order at issue in no 081850 2: holding that  1325a is mandatory and that the general powers of the court codified in 11 usc  105a do not permit a court to confirm a plan that does not satisfy  1325a 3: holding a bankruptcy court is empowered to reopen a bankruptcy case on its own motion under 11 usc  105a 4: holding that bankruptcy court has discretionary power pursuant to 11 usc  105a to order preconfirmation plan payments in a chapter 12 proceeding


Input: so that Plaintiff could attend medical appointments (Id. at 37, 39); (3) former supervisor Jose So-mohano denied Plaintiffs request to leave early during a bleeding emergency because he did not have a cashier to replace Plaintiff (Id. at 43, 74); and (4) Betty Montano denied Plaintiffs request for a part-time accommodation as ordered by Plaintiffs doctor (Id. at 43-44). Defendants argue that there is no genuine issue of material fact regarding these allegations because Plaintiffs assertions are inadmissible hearsay and because Plaintiff failed to create a nexus between the discriminatory acts she described and her alleged termination. Defendants fail on both accounts. Plaintiffs assertions are not hearsay. See Woodman v. Haemonetics Corp., 51 F.3d 1087, 1094-1095 (1st Cir.1995) (<HOLDING>). Similarly, Plaintiff does not need to show Holdings: 0: holding that in employees age discrimination suit against former employer supervisors statement to employee was not hearsay even though the statement was offered for its truth because the statement was an admission by a party opponent 1: holding that a text message constituted hearsay insofar as it was offered to prove the truth of the statement asserted 2: holding that the district courts improper admission of an unauthenticated registration statement was harmless because the proponent of the registration statement later properly authenticated the statement in a motion to reconsider 3: holding that defendant who introduced hearsay statement waived objection to admission of another part of same statement 4: holding that a hearsay statement can itself be considered in first determining if a conspiracy existed when the statement was made


Input: create such a doubt, it is material even if it would not convince the jury beyond a reasonable doubt that Gates was the killer. Under the circumstances presented by the record before us, we cannot be confident that the result of Harrington’s murder trial would have been the same had the exculpatory information been made available to him. We hold, therefore, that Harrington’s due process right to a fair trial was violated by the State’s failure to produce the police reports documenting their investigation of an alternative suspect in Schweer’s murder. See Mazzan, 993 P.2d at 74-75 (finding Brady violation where withheld “police reports provided support for [the defendant’s] defense that someone else murdered” the victim); Davis v. Commonwealth, 25 Va.App. 588, 491 S.E.2d 288, 293 (1997) (<HOLDING>). Accordingly, we reverse the trial court’s Holdings: 0: holding that the prosecutions failure to disclose information regarding a witnesss past cooperation with law enforcement did not constitute a brady violation in light of other impeachment evidence in the record including testimony regarding the witnesss extensive drug use and past cooperation with the dea 1: holding claim based on failure to disclose information to the epa preempted 2: holding prosecutions failure to disclose information of other africanamerican females in vicinity of drug sale constituted a brady violation 3: holding as brady violation prosecutions failure to disclose to defense that prosecution had agreed not to prosecute key witness in exchange for his testimony at trial 4: holding that the failure to disclose evidence known to the defense cannot form the basis of a brady violation


Input: was alive when the complaint was filed. Steffel v. Thompson, 415 U.S. 452, 459 n.10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). A party’s subsequent acts will render a case moot if those acts make it impossible for the court to grant “ ‘effectual relief.’ ” Church of Scientology of Cal v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653,16 S.Ct. 132, 40 L.Ed. 293 (1895)). However, because the “[m]ootness of an action relates to the basic dispute between the parties” and “not merely the relief requested,” a case will not be rendered moot by subsequent acts if some of the requested relief remains available. Intrepid v. Pollock, 907 F.2d 1125, 1131 (Fed.Cir.1990); accord Church of Scientology of Cal, 506 U.S. at 12, 113 S.Ct. 447 (<HOLDING>). In his application to the BCNR for the Holdings: 0: holding that a case is not moot so long as the court can fashion some form of meaningful relief for the injured party 1: holding plaintiff must prove that he or she was deprived of  an opportunity  granted at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case 2: holding that an appeal is not moot so long as the appellate court can fashion relief that is both effective and equitable internal quotation marks omitted alteration in original 3: holding that appeals are moot when appellate courts can provide no effective relief 4: holding that constitution requires  an opportunity  granted at a meaningful time and a meaningful manner  for a hearing appropriate to the nature of the case


Input: was voided, meaning that it was not good at that time. Not destroyed in any sense of the word of shredding or tearing up, no, that’s not the way I meant it.” In short, the only facts Cotton reported involved voiding — not destroying — citations; and there is no evidence a reasonably prudent employee in Cotton’s circumstances would have believed the voiding of tickets was a violation of law. After reviewing the record under the applicable standard of review, we conclude there is legally insufficient evidence to support the trial court’s implied finding that a reasonably prudent employee in similar circumstances would have believed the facts Cotton reported were a violation of law. See Harris County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex.1996) (per curiam) (<HOLDING>); Lane v. Tex. Dept, of Health, No. Holdings: 0: holding evidence legally sufficient 1: holding that although there was evidence of discrimination based on race there was insufficient evidence to support a finding of constructive discharge 2: holding that although there was evidence of discrimination by the employer based on race there was insufficient evidence to support a finding that the employer had constructively discharged the plaintiff 3: holding evidence legally insufficient 4: holding although there was some evidence plaintiff subjectively believed conduct he reported violated the law there was legally insufficient evidence this belief was reasonable


Input: trial court erred in denying appellant’s motion and opting for venue in Harris County. While both statutes contain language of mandatory effect, the receivership venue section contained in the insurance code was amended subsequent to the workers’ compensation venue provision and its language is specific that exclusive venue for insurance companies in receivership lies in Travis County. The language contained in section 4(h) — “shall have exclusive venue” — could not be clearer in expressing the Legislature’s intent. Other cases examining this issue outside of the workers’ compensation area are analogously supportive of this conclusion. Whitson v. Harris, 792 S.W.2d 206, 209 (Tex.App.—Austin 1990, no writ). See also Langdeau v. Burke Investment Co., 163 Tex. 526, 358 S.W.2d 553 (1962) (<HOLDING>). Such a statutory scheme as to venue is Holdings: 0: holding that adverse inferences are permissive not mandatory 1: holding that the predecessor to local rule 561b3 provides the only acceptable means of  presenting additional facts to the district court 2: holding that predecessor statute to section 4h provides for permissive venue 3: holding that the statute was ambiguous because it provides no definition of the term violation and provides no specific direction as to the proper unit of prosecution 4: holding that pursuant to rule 2a2 a party may appeal an order denying a motion for permissive intervention


Input: to Herrada, the property right at issue in this case is her right to retain possession of her money, subject only to lawful actions by the City that comport with due process. Herrada clearly has a property interest in her money. See Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir.1997) (concluding that prisoners have a property interest in their money). ' Determining whether the City improperly interfered with or deprived her of this interest, however, presents a more difficult question. The City argues that because Herrada voluntarily paid her parking ticket, no government action interfered with her property interest. This position finds support, at least by way of analogy, in two decisions from the Tenth Circuit. See Garcia v. City of Albuquerque, 232 F.3d 760, 770 (10th Cir.2000) (<HOLDING>); Yearous v. Niobrara County Mem’l Hosp., 128 Holdings: 0: holding that the defendant did not deprive the plaintiff of a property interest in his continued employment because the plaintiff voluntarily resigned when he refused to report to work after being transferred to a new position 1: holding that property interest in continued expectation of public employment does not include right to actually occupy position 2: holding that former municipal judge did not have property interest in continued employment 3: holding in an employment discrimination case that the continued employment of the plaintiffs rival in a position previously held by the plaintiff did not constitute a systemic violation 4: holding that plaintiff did not have dueprocessprotected property interest because he failed to sufficiently plead a rule or other mutually explicit understanding from the manual or otherwise bridling the reason for which he could be terminated and thereby creating a sufficient expectation of continued employment  the critical component herewithout alleging such a bridle plaintiff was an atwill employee consequently he lacked a property interest in his continued employment


Input: status of a business invitee. It is not easy to reconcile this concession with Sherwood’s argument that, at the moment of the terminal ion of the claimant’s employment, he ceased being an employee. 7 The decision of the Appellate Court in Fulco was codified by the 1993 enactment of § 31-275 (16) (B) (iii). 8 The facts of this case do not require us to consider the more difficult question of whether an injury is compensable if it is incurred when a discharged employee returns to the job site. There is authority for the proposition that such an injury is compensable if industry custom allows a discharged employee to return to pick up his or her paycheck on a designated day, or to retrieve his or her personal belongings. See Nails v. Market Tire Co., 29 Md. App. 154, 347 A.2d 564 (1975) (<HOLDING>); Parrott v. Industrial Commission of Ohio, 145 Holdings: 0: holding that even when employee was driving employers vehicle employee was not acting within the scope of his employment absent evidence that he had undertaken a special mission at his employers direction 1: holding that a civilian employee injured when her automobile was hit by a military vehicle while she was driving on a road on the employers premises the military base to report to work sustained a compensable injury under the federal employees compensation act 2: holding that injury incurred when employee returned to retrieve paycheck six days after employment had been terminated occurred in course of employment 3: holding that notwithstanding fact that employer brought suit in its own name pursuant to ocga  349111 c only for the liquidated amount that had been paid to the employee in workers compensation benefits after employee failed to file his own tort action within one year of injury employee was not precluded from bringing his own separate action to recover for personal injuries and loss of consortium but noting that employee received notice of employers suit only after filing his own action suggesting that court in which employers action was pending had wrongly denied the employees motion to intervene to which motion employer had objected noting that if employee had not moved to intervene in other action employees separate action would have been barred by laches and holding that thirdparty tortfeasor could move for mandatory joinder of the employer in the employees action 4: holding compensable injuries sustained when employee returned to employers premises two days after employment had been terminated in order to retrieve personal tools and tool box


Input: he is either a donee or The summary judgment evidence conclusively establishes that Appellants are not parties to any contract that may exist between Vantage and SFWA. Appellants instead contend in their second issue that they are third-party beneficiaries of the alleged contract between Vantage and SFWA. To determine whether any Vantage and SFWA contract expressed a clear intent to directly benefit Appellants, we must interpret the alleged contract between Vantage and SFWA. See Tawes, 340 S.W.3d at 425. Viewing the summary judgment evidence in the light most favorable to Appellants, the assorted emails and attachments that Appellants claim constitute the contract between Vantage and SFWA nowhere identify Appellants by name as intended beneficiaries. Compare Stine, 80 S.W.3d at 588 (<HOLDING>), with Brown v. Fullenweider, 52 S.W.3d 169, Holdings: 0: recognizing common law cause of action as thirdparty beneficiary 1: holding decrees failure to identify attorney by name was insufficient to confer thirdparty beneficiary status on him concerning decrees allocation of the payment of his fees 2: holding that courts considering government contracts must take a more narrow view of thirdparty beneficiary status  and apply a more stringent test to determine whether a third party qualifies for beneficiary status 3: holding decrees identification of person by name was sufficiently specific for purposes of thirdparty beneficiary status 4: holding that the thirdparty beneficiary theory did not apply


Input: Nurse Sancho premised on their alleged deliberate indifference to Harrison’s serious medical needs. Unlike the “purpose to harm” standard that governs Fourteenth Amendment claims where an official “makes a snap judgment because of an escalating situation,” Wilkinson, 610 F.3d at 554, where “actual deliberation is practical,” deliberate indifference is sufficient to support a Fourteenth Amendment claim. Id. The Supreme Court has contrasted, for exam- pie, an officer’s decision to give chase to a fleeing suspect with “the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (<HOLDING>); see also Porter, 546 F.3d at 1139 (citing Lee Holdings: 0: holding that but for standard applied to retaliation case brought under texas law 1: holding that if a state case explicitly states that the state standard is more favorable to the defendant than the federal standard the federal claim is considered adjudicated below when the state standard is applied 2: holding purpose to harm standard applied to highspeed police chase 3: holding that the judge did not abuse his discretion but applied an incorrect standard 4: holding the manifest error standard of review is the proper standard to be applied to the mixed question of law and fact presented by a determination of whether a defect presents an unreasonable risk of harm


Input: is most commonly used in other contexts to refer to proceedings initiated before a court. See Iowa Code § 611.2 ("A civil action is a proceeding in a court of justice in which one party, known as the plaintiff, demands against another party, known as the defendant, the enforcement or protection of a private right, or the prevention or redress of a private wrong.”) (emphasis added); see also Kelso v. Noble, 1998 WL 552831, at *3 (6th Cir. Aug. 19, 1998) (“[W]e think it clear that a ‘civil action' requires the involvement of the courts in a matter presented for trial.”); E.E.O.C. v. Ill. State Tollway Auth., 800 F.2d 656, 660 (7th Cir.1986) ("Congress uses the term 'civil action’ in specific reference to a lawsuit.”); Key Buick Co. v. Comm'r., 613 F.2d 1306, 1307-09 (5th Cir. 1980) (<HOLDING>). Black's Law Dictionary defines a “civil Holdings: 0: recognizing absolute immunity to suits under 42 usc  1988 1: holding that the term civil action or proceeding used at 42 usc  1988 1976 amended by pub l 96481  205 94 stat 2321 1980 referred to litigation in court and not agency proceedings 2: holding that the district court abused its discretion by telling the jury about the right of a prevailing plaintiff to attorney fees under 42 usc  1988 3: holding that under 42 usc  1988 which allows the award of attorneys fees in a civil rights action under  1983 a prevailing plaintiff should ordinarily recover an attorneys fee unless special circumstances would render such an award unjust  quoting srep no 941011 p 4 1976 4: holding that 42 usc  1988 may permit recovery of those charges according to the custom of the community


Input: Gang Evidence: Issues for Criminal Defense, 30 Santa Clara L. Rev. 739 (1990). 30 See Texas Penal Code Ann. § 71.01, providing in part: "(d) Three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” Section 71.02(a) defines criminal activities as collaboration in drug, gun, sex, or gambling crimes, and including other felonies. See also Cal. Penal Code § 186.22 "Street Terrorism Enforcement and Prevention Act” (STEP); part (b)(1) provides for mandatory enhanced sentences for "gang” crimes; parts (e) and (f) provide a definition of gang and classify certain crimes as "gang activity”. But see People v. Green, 227 Cal. App. 3d 692, 700, 278 Cal. Rptr. 140, 146 (1991) (<HOLDING>). 31 See Molina, supra; Burrell, supra. 32 See Holdings: 0: holding that active participation in a criminal street gang means that there is a relationship between the defendant and the gang that is more than nominal passive inactive or purely technical and that defendant must devote all or a substantial part of his time and efforts to the gang 1: holding appellate counsel did not provide ineffective assistance of counsel by failing to appeal district courts decision to admit evidence that defendant was a member of a gang because gang membership was relevant to show motive and intent 2: holding that murder committed by minor gang members was not foreseeable result of sale of alcohol to gang members 3: holding that experts testimony as to aspects of gang culture relevant to the case including requirements of members obedience silence and staunch defense of other gang members and the punishment meted out to a gang member who violates these requirements went to factual matters outside the experience of the average juror 4: holding the district court properly admitted expert testimony on defendants active gang membership


Input: bars relitigation of an issue if: (1) the issue sought to be p ration of orders to provide installments of a fixed amount, rendering the party's overall exposure a direct consequence of the order's duration. See, eg., Ferris v. Hawkins, 135 Ariz. 329, 660 P.2d 1256, 1259 (App.1983) (noting marked difference in available remedies where one was limited in compensation and duration and the other posed much greater degree of liability with long term consequences). Although the incentive to vigorously defend might be artificially created by the operation of collateral estoppel principles, augmenting a party's incentive to litigate in the first instance would undermine the very purpose behind permitting t ication of workers' compensation benefits. See" Messina, 874 P.2d at 1066 n. 13 (<HOLDING>). Temporary total disability benefits are Holdings: 0: holding that legislature clearly intended that workers compensation act and unemployment security act be construed together thus prohibiting worker from receiving both unemployment compensation and workers compensation payments for same period 1: holding collateral estoppel elements met considering changed circumstances in the context of an exception to the general rule of collateral estoppel 2: recognizing the doctrine of collateral estoppel in agency proceedings 3: recognizing that rationale underlying inapplicability of collateral estoppel to unemployment hearings is useful when analyzing same doctrine in workers compensation cases 4: holding that pursuant to statute unemployment benefits must be offset against workers compensation payments


Input: the puddle, what the liquid was, or that any U of M or State Fair staff had notice of it. She testified that the puddle was not on the step when she ascended the stairs at 10:00 p.m., but was there when she descended the same stairs at about 10:30 p.m. The puddle was on the step at most a half hour, but could have been made only moments before appellant’s fall, since there is no evidence suggesting that others had walked through the puddle. Even when viewed in the light most favorable to appellant, and assuming the puddle was made just after 10:00 p.m., 30 minutes was not sufficient time to give respondents constructive notice of the late-night puddle made in the coliseum stands during the horse show. Cf. Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432 (1972) (<HOLDING>); Saari v. S.S. Kresge Co., 257 Minn. 290, 293, Holdings: 0: holding that plaintiff failed to show that the defendant had actual or constructive notice of a puddle of water that had accumulated on a bank floor on a rainy day 20 minutes after the bank opened 1: holding that bank had right to set off funds in a customers account against debt that the bank customer had incurred as a surety or guarantor 2: holding that the plaintiff had failed to produce sufficient evidence to establish constructive notice because the plaintiff did not present any evidence to establish that the oil was on the floor for any length of time 3: holding that the trial court committed no error in sustaining objection to plaintiffs testimony that the water had been there for some time because the plaintiff had no personal knowledge of how long the puddle had been there 4: holding that drying footprints and tracks leading away from puddle of liquid was no evidence that the puddle had been there long enough to put the store on constructive notice


Input: at 1474. Whether ERISA preempts a plaintiffs state law claims is a question of law we review de novo. Ward v. Management Analysis Co. Employee Disability Benefit Plan, 135 F.3d 1276, 1279 (9th Cir.1998); Spain v. Aetna Life Ins. Co., 11 F.3d 129 (9th Cir.1993). A. Government Exemption The Basts first argue that the district court improperly granted summary judgment because there is an issue of fact as to whether the Plan was managed by an agency of the government. ERISA exempts from preemption any plan that is established or maintained by the U.S. government, a state government or by any agency or instrumentality of the government. 29 U.S.C. § 1002(32); 29 U.S.C. § 1003(b)(1). The Basts argue that during the relevant time period, the Plan was “maintained” by the R 1253 (10th Cir.1998) (<HOLDING>). Cole’s employee benefit plan is not a Holdings: 0: holding that a public trust that exercised control over the beneficiarys employment did not change the benefit plan into a government plan because the trust did not establish the plan or control it 1: holding that plan did not comply 2: holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary 3: holding that a payment is under the plan when the debt is provided for in the plan 4: holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant


Input: the circuit court determines that amending his petition would do substantial justice. See Maryland Rule 4-332(h); See Hunt, 443 Md. at 249-50, 116 A.3d at 483-84 (requiring petitions filed pursuant to Crim. Proc. § 8-301 to, inter alia, comply with the pleading requirement contained in Maryland Rule 4-332(d)(9)). In determining whether allowing Respondent to amend his petition would do substantial justice, the circuit court must articulate its reasoning on the record. If the circuit court concludes that Respondent may amend his petition to comply with the pleading requirement in Maryland Rule 4—332(d)(9), Respondent’s averment must allege which convictions he is “actually innocent” of, meaning which offenses he alleges he “did not commit.” See Smallwood, 451 Md. at 320, 152 A.3d at 793 (<HOLDING>); see also Maryland Rule 4—332(d)(9). Holdings: 0: holding that only defendants who can allege they are actually innocent meaning they did not commit the crimes for which they are convicted may bring a petition for relief under crim proc  8301 1: holding that neglect was not excusable where the defendants did not do all that they were required to do after they received the summons and complaint in that they did not contact a lawyer or make any other arrangements with respect to their defense 2: holding that officers were entitled to qualified immunity because they did not know the residence for which they obtained a warrant actually contained multiple units 3: holding in the context of a motion for preliminary injunction that once federal funds are distributed to the states and obligated they cannot be recouped and that it would be impossible  to award the plaintiffs the relief they request if they should eventually prevail on the merits 4: holding that claims are related if they involve a common core of facts or they are based on related legal theories


Input: fiduciaries by this subchap-ter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary.... 29 U.S.C. § 1109(a). Under § 1109(a), the fiduciary is liable for at least two types of damages: losses to the plan and profits made by the fiduciary. In order to recover damages for losses to the benefit plans, the Plaintiffs must show causation between the breach of fiduciary duty and the loss. See In re Unisys Savings Plan Litigation, 74 F.3d 420, 445 (3d Cir.1996) (interpreting-similar language in 29 U.S.C. § 1104(c) to require causal connection and quoting Brandt v. Grounds, 687 F.2d 895, 898 (7th Cir.1982) (<HOLDING>)); Reich v. Compton, 57 F.3d 270, 286 n. 23 (3d Holdings: 0: holding that  1109a requires causal connection between breach and loss 1: holding that eight months between charges and dismissal created inference of causal connection 2: holding that the language of the statute clearly requires  proof of a causal connection between the drivers intoxication and the death of another person 3: holding that to show a causal connection the plaintiff must demonstrate a relationship between the misconduct and the plaintiffs injury 4: holding that there must be a causal connection between the advertising activity and the injury alleged in the underlying complaint


Input: conduct constitutes sex discrim ination.” La Day v. Catalyst Technology, Inc., 302 F.3d 474, 478 (5th Cir.2002). If this determination is answered in the affirmative, the court must decide whether the challenged conduct meets the applicable standards for either a quid pro quo or hostile environment claim. For example, same-sex harassment that is ‘severe or. pervasive’ enough to create a hostile environment ... might be excluded from the coverage of [T]itle VII because it was not discriminatory on the basis of sex. On the other hand, same-sex harassment that is indisputably discriminatory might not be serious enough to make out either a quid pro quo or hostile environment claim. Id. (citation omitted). See, e.g., Davis v. Coastal Int’l Security, Inc., 275 F.3d 1119, 1126 (D.C.Cir.2002) (<HOLDING>). The Court’s first task is to determine Holdings: 0: holding that transsexuals are not a protected class under title vii in response to the plaintiffs argument that because a persons identity as a transsexual is directly connected to the sex organs she possesses discrimination on this basis must constitute discrimination because of sex 1: recognizing that a plaintiff can demonstrate that samesex harassment is because of sex by showing that the conduct was motivated by the coworkers sexual desire for persons of the same sex 2: holding that retaliation claim was reasonably related to prior sex discrimination claim 3: holding discrimination based on pregnancy was not sex discrimination 4: holding that actions of plaintiffs coworkers which included slashing plaintiffs tires grabbing their crotches and making kissing gestures and uttering a phrase used to describe oral sex however vulgar  did not constitute  discrimination because of sex


Input: of personnel management ... with proper regard for their... constitutional rights.” See 5 U.S.C. §§ 2301(b)(2), 2302(b)(12); See Saul v. United States, 928 F.2d 829, 834 (9th Cir.1991) (citing H.R. Rep. No. 95-1717 (1978), as reprinted- in 1978 U.S.C.C.A.N, 2860, 2865) (“Congress did expect ‘prohibited personnel practices’ to cover supervisors’ violations of employees’ constitutional and privacy rights.”); Spagnola v. Mathis, 859 F.2d 223, 225 n. 3 (D.C.Cir.1988); Jarvis v. Cardillo, No. 98 CIV. 5793, 1999 WL 187205, at *9 (S.D.N.Y, Apr. 6, 1999) (observing that the CSRA has been interpreted “flexibly to cast a wide net over constitutional challenges arising from federal employment”); Porter v. U.S. Dep’t of Army, No. 93 C 6900, 1995 WL 461898, at *6 & n. 4 (N.D.Ill. July 17, 1995) (<HOLDING>). The question presented by Defendants’ motion Holdings: 0: holding that admiralty and general maritime claims fall within the category of any other civil action governed by the second sentence of  1441b 1: recognizing that claims alleging due process violations arising out of employment actions fall under the catchall category of prohibited personnel practices  2: holding that disparate impact analysis may be applied to subjective employment practices in employment discrimination actions 3: holding that claims arising under the age discrimination in employment act may be subject to arbitration 4: holding that claims arising under the sixth amendment fall outside the jurisdiction of the court of federal claims


Input: court found, as the majority suggests, that their respective state statutes were unconstitutional because they lacked an “escape clause” providing for a written agreement between the parties. The court in McIntyre found the applicable statute problematic because it barred the petitioner from the rights and responsibilities of fatherhood “even if respondent had agreed with [the donor that he would have parental rights] before he gave her his semen in reliance on that agreement.” 98 Or. App. at 468. The court noted the statute contained no qualifying language and, in a footnote, compared a Washington state statute which contained a written opt-out provision similar to that found in K.S.A. 38-1114(1). 98 Or. App. at 468 n.2; see also In Interest of R.C., 775 P.2d 27, 33 n.7 (Colo. 1989) (<HOLDING>). The court in Mclntryre, however, did not Holdings: 0: holding that the clear and convincing standard provides appropriate due process in cases involving parental rights 1: recognizing that the department is required to present clear and convincing evidence to support termination of a parents parental rights 2: recognizing this substantial interest in context of termination of parental rights 3: recognizing in footnote that a growing number of legislatures have sought to clear up this confusion by enacting laws that extinguish parental rights of semen donors unless the donor acknowledges his paternity in writing 4: holding that a father who impregnated his childs mother in the usual and customary manner after signing a preconception agreement to forego parental responsibilities was not merely a sperm donor and thus was not statutorily bound to give away his parental rights


Input: in a habeas proceeding. Hill v. Norris, 2010 Ark. 287, 2010 WL 2210926 (per curiam). The State is entitled to amend a felony information before the case has been submitted to the jury, provided the amendment does not change the nature or degree of the crime charged or create an unfair surprise for the defendant. See Green v. State, 2012 Ark. 19, 386 S.W.3d 413; Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. Although appellant asserts that the amendments |Bhere changed the nature of the crime charged in that he was charged with felony capital murder but convicted of premeditated capital murder, the changes made in this case did not change the nature of the crime charged. See Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007) (citing Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996)) (<HOLDING>). Here, the nature of the offense remained the Holdings: 0: holding premeditated murder and felony murder are the same crime with various means of commission 1: holding that whether amendment to capital felonymurder information to add the charge of premeditated and deliberate murder was improper turned on whether there was prejudice or surprise 2: holding intoxication to a degree that made specific intent impossible was a valid defense to a charge of willful premeditated firstdegree murder 3: recognizing that the necessary inquiry  is not whether there was a warrant or whether there was time to get one but whether there was probable cause for the arrest 4: holding that states pretrial amendment of the original indictment charging defendant with willful and deliberate first degree murder to add an alternative murder theory of depraved mind murder did not add a different offense and therefore did not prejudice the defendant


Input: under 28 U.S.C. § 1291.” Wheeler Mach. Co. v. Mountain States Mineral Ent., Inc., 696 F.2d 787, 789 (10th Cir.1983)(per curiam). See 28 U.S.C. § 1291 (2004)(providing that “[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review maybe had in the Supreme Court”). The Court may alter or amend an interlocutory order at any time before the filing of the final judgment. See Raytheon Constructors Inc. v. Asarco Inc., 368 F.3d at 1217. This approach is in accord with other Judges’ opinions from this District. See Hunt v. Green, 2005 WL 1661732, 376 F.Supp.2d 1043, 1049 (D.N.M.2005)(Browning, J.); Shannon v. United States, No. CIV 02-717, at 3-4 (D.N.M. August 11, 2004)(Black, J.)(<HOLDING>); Organ Water & Sewer Assoc, v. Moongate Water Holdings: 0: holding prior order was interlocutory and subject to change at any time because all claims not yet litigated 1: holding that a rehearing order is interlocutory and not appealable 2: holding that all matters litigated or which could have been litigated in al foreclosure action are forever at rest  3: holding that a case should not proceed as a b2 action where virtually all of the issues would have to be litigated individually in order to determine whether a particular alleged class member was entitled to any damages at all 4: holding that burden was on nonmoving party to show issue was not litigated where moving party presented arbitrators order showing issue had been litigated


Input: instead, the plaintiff has received the benefit of her bargain where the defendant has substantially performed on the contract. See Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1013 (D.C.Cir.1985); see also Sununu v. Philippine Airlines, Inc., 638 F.Supp.2d 35, 39 (D.D.C.2009) (noting that “ ‘[substantial performance’ is generally considered to exist when a contracting party has failed to render full performance but any defects in performance are considered minor”). Thus, to sustain her claim that she has standing based on her overpayment for the AARP membership, Austin-Spearman must plausibly allege that Defendants failed to render substantial performance of the AARP membership contract. Compare, e.g., Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 733 (9th Cir.2007) (<HOLDING>) with Rivera v. Wyeth-Ayerst Labs., 283 F.3d Holdings: 0: holding that state burdenofproof rule was not a mere incident of form of procedure and denied admiralty plaintiff the benefit of the full scope of federally created rights 1: holding that the plaintiff could not show surprise when the plaintiff had received the additional terms from the defendant prior to the agreement 2: holding that the plaintiff was not denied the benefit of the bargain and therefore lacked standing where plaintiff had bought a prescription painkiller that was later withdrawn from the market but plaintiff found the painkiller to be effective and did notsuffer harmful side effects 3: holding so where the plaintiff alleged that the defendant had colluded to claim falsely that the plaintiffs physician had informed the claims adjuster that the plaintiff had been released to work and where the plaintiff was later discharged from employment and denied workers compensation benefits 4: holding that the plaintiff was denied the benefit of the bargain and therefore had standing where plaintiff did not receive the full number of agreedupon minutes he purchased in a wireless cellular phone service agreement


Input: Trial clock if they are to count as excluda-ble days from her own Speedy Trial clock. Maryea is correct that the case law in this Circuit has not addressed head on whether the Co-Defendant Clause as a general matter is subject to a reasonableness limitation, and we decline to do so here. However, the court agrees with the government that, under the facts of this particular case, the district court did not err when it denied Maryea’s motion to dismiss. In line with the principles outlined in the Supreme Court’s decision in Bloate as well as the reasoning of our sister circuits, the Court will assume without deciding, for the purposes of this case, that a reasonableness requirement applies, and that the requirement may be met through a factors-based assessment. See Bloate, 130 S.Ct. 1345 (<HOLDING>); United States v. Lewis, 611 F.3d 1172, 1176 & Holdings: 0: holding that the press and public can be constitutionally excluded from a pretrial suppression hearing 1: holding that where a defendant acquiesces in a continuance that time is excluded from the speedy trial calculation 2: holding that time excluded from a speedy trial clock for pretrial motion preparation is not automatically excluded under  3161h1 but may only be excluded when a court makes appropriate reasonableness findings under  3161h7 3: holding that time granted for preparing pretrial motions is not automatically excludable under  3161h1 but is excludable only after the district court enters appropriate findings under  3161h7a 4: holding that the time granted to prepare pretrial motions is not automatically excludable under  3161h1 but may be excluded only when a court grants a continuance based on appropriate findings under  3161h7


Input: based on Feeder Fund property. B. The Objecting Claimants Did Not Entrust Cash or Securities With BLMIS for the Purpose of Trading or Investing in Securities Further, the Objecting Claimants failed to fulfill the “critical aspect of the customer definition” — they did not entrust cash or securities with the debtor for the purpose of trading or investing in securities. In re New Times Sec. Servs., Inc., 463 F.3d 125, 128 (2d Cir.2006) (“The critical aspect of the customer definition is the entrustment of cash or securities to the broker-dealer for the purposes of trading securities.”) (quoting Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995)); see also Rosenman Family, LLC v. Picard, 420 B.R. 108, 111 (S.D.N.Y.2009), aff'd, 395 Fed.Appx. 766 (2d Cir.2010), (<HOLDING>); In re ESM Gov’t Sec., Inc., 812 F.2d 1374, Holdings: 0: holding that claims alleging that the debtor fraudulently induced the claimants to retain securities they had purchased from the debtor arise from the purchase or sale of those securities for purposes of  510b 1: holding rosenman was a customer under sipa because he entrusted funds with the debtor blmis for the purpose of investing in securities 2: holding that companys president was trustee of trust funds because he had control and direction over the funds 3: holding that claims that debtor fraudulently induced claimants to retain debtors securities arise from the purchase or sale of those securities 4: holding that an investor who entrusts cash with the debtor for the purpose of trading or investing in securities has a fiduciary relationship with the brokerdealer


Input: prior adversary proceeding to allow Defendant to change his position on this issue for purposes of this adversary proceeding. CONCLUSION Based on its conclusion that Defendant is bound by collateral estoppel to the Court’s prior determination of insolvency and equitable estoppel to his admissions that the Debtors were insolvent from 2004 through 2012, the Court concludes that Defendant’s attempt to satisfy the Loan through a stock redemption in Holding was ineffective to satisfy Defendant’s obligations under the Loan since the stock had no value at the time of the redemption. See In re Roco Corp., 701 F.2d 978 (1st Cir.1983) (finding that a corporation received nothing of value in a stock redemption because the corporation was insolvent); Schafer v. Hammond, 456 F.2d 15 (10th Cir.1972) (<HOLDING>). Based upon the foregoing and since the sole Holdings: 0: holding that the transfer of stock in an insolvent corporation did not constitute fair consideration to support conveyance of property to its stockholder 1: holding that directors of an insolvent corporation are trustees for the creditors 2: holding that transfer of property to llc involved no consideration for state conveyance tax purposes because it was a unilateral act and not the result of a bargainedfor exchange 3: holding in forfeiture case that circumstances surrounding mothers conveyance of stock to her soninlaw were sufficient under wisconsin law to create constructive trust in stock in daughters favor where testimony showed such was intent of conveyance despite facts that stock registered in husbands name and that no documentation supported testimony 4: holding that an insolvent corporations salary payments to a corporate officer did not lack fair consideration because there was no evidence that the salary was either excessive or unreasonable or that the corporation did not receive full value in return


Input: assets. Plaintiff, on the other hand, contends that the sponsor’s use of a trust, rather than payment directly from general assets, does not automatically obviate any potential conflict of interest. The parties cite to no Ninth Circuit authority expressly addressing whether the plan sponsor’s use of a trust precludes a finding of structural conflict. The Court, however, need not resolve herein either of the above-referenced disputes. Rather, as discussed below, the Court, assuming, arguendo, the existence of a structural conflict, finds no reason to accord such conflict any significant weight, as plaintiff has failed to submit evidence demonstrating malice, self-dealing or a parsimonious claims-granting history on the part of defendant. See Metropolitan Life, 128 S.Ct. at 2351-52 (<HOLDING>); Abatie, 458 F.3d at 969 (noting level of Holdings: 0: recognizing conflict 1: recognizing structural conflict ordinarily will be less important where administrator has taken active steps to reduce potential bias 2: holding that a structural conflict of interest exists when an insurer acts as both the plan administrator and the funding source 3: holding that district court was required to give conflict some weight but the existence of the conflict alone was not determinative when record contained no evidence of claims administration history or of claims administrators efforts to reduce potential bias and to promote accuracy 4: recognizing the conflict


Input: factor for consideration. Whether the number 50 in this hypothetical District is a minimum, a maximum or just a guideline for the permissible number of osteopathic beds was a subject of confusion among the witnesses who testified at the hearing. Also subject to confusion was whether the proposed rule has the effect of limiting non-osteopathic facilities to 95% of the toal bed need as computed under Rule 10-5.11(23), Florida Administrative Code. (11) In determining the need for osteopathic and allopathic beds in a given area, it is the generally accepted practice of health planning experts to consider such factors as historical, current and projected utilization or occupancy rates of existing acute care beds, the average of length of patient stays, and the admission rates of physicians (<HOLDING>). Another useful predictor of need for Holdings: 0: recognizing significant differences in text of state and federal equal protection clauses 1: recognizing distinction between two types of waiver 2: recognizing split among district courts 3: recognizing the differences in admission practices among specialties and types of physicians 4: holding defense applicable to both types of claims


Input: burden is on Cig-na to demonstrate “constitutionally significant inconvenience[.]” Id.; see also id. (“Because we conclude that the First American defendants have not demonstrated any constitutionally significant inconvenience, we find no infringement of their individual liberty interests protected by the Due Process Clause of the Fifth Amendment.”). None of the evidence presented by Cigna conforms to this Fifth Amendment framework. Rather, Cigna offers only proof related to its lack of contacts with Alabama, but this type of evidence is essentially meaningless when the federal statute bestowing this court with federal question jurisdiction contains a nationwide service of process provision, such as ERISA does. See Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1522-23 (11th Cir.1987) (<HOLDING>); see also discussion supra, at 1292 n. 2. At a Holdings: 0: holding that  1132e2 allows for nationwide service of process and thus jurisdiction and that the nationwide service of process provision comports with the constitution 1: recognizing that although provision of municipal service is not fundamental right inequitable provision of that service is subject to equal protection analysis 2: recognizing that erisas venue provision can provide broad access to the federal courts and clarifying that nationwide service of process is available only if the suit is an action under this subchapter   emphasis in original quoting 29 usc  1132e2 3: recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act 4: holding that ricos nationwide service of process provision did not authorize service outside the united states


Input: made by individuals with substantial influence over plaintiff's employment); Crader v. Concordia College, 724 F.Supp. 558, 564 (N.D.Ill.1989) (if deci-sonmaker's sources of information about plaintiff are "polluted by racial bias, that might be enough to poison the well”). See also Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir.1987) (“circumstantial evidence of a discriminatory atmosphere at a plaintiff's place of employment is relevant to the question of motive in considering a discrimination claim”); Freeman v. Package Machinery Co., 865 F.2d 1331, 1342 (1st Cir.1988) ("The inquiry into a corporation's motives need not be artificially limited to the partic ular officer who carried out the action.”). But see Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir.1984) (<HOLDING>). 5 . The Bank relies heavily on Mazzella v. Holdings: 0: holding that comments relating to age made some three to fifteen or more years prior to plaintiffs discharge were not relevant to show that he was fired because of his age 1: holding that a statement of fact relating to the plaintiffs age was not direct evidence of age discrimination because the relevance of the comment is provided by inference 2: holding that adea plaintiff had failed to make a prima facie case of age discrimination when he was replaced by someone only two years younger and within the protected age group and there was no other evidence of age discriminatory motive 3: holding that supervisors reactions to comments did not constitute direct evidence of age discrimination where comments were made six months prior to plaintiffs discharge and were unconnected to the discharge decision 4: holding that if the plaintiff makes out a prima facie case of age discrimination the employer must show that the discharge was based on reasonable factors other than age  and if the employer meets that burden the plaintiff must show that age was a determining factor in the discharge


Input: an English transaction entered into by English parties with the reasonable expectation that their rights and obligations would be construed and enforced under English law. In international contracts, the choice of law and forum clauses generally will be given effect in our courts unless any of the four conditions is present: (1) the clauses are the “result of fraud or overreaching;” (2) the chosen forum is gravely inconvenient or unfair; (3) “the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy;” or (4) the clauses “contravene a strong public policy of the forum state.” Roby v. Corp. of Lloyd’s, 996 F.2d 1353, 1363 (2d Cir.1993) (internal quotations omitted). See also Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-16, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (<HOLDING>); Mitsubishi Motors Corp. v. Soler Holdings: 0: holding that forum and law selection clauses are prima facie valid if 1 the parties choice is not a product of fraud undue influence or overweening bargaining power 2 the choice is not unreasonable and unenforceable if the chosen forum is seriously inconvenient for the trial of the action and 3 enforcement would not contravene a strong public policy of the forum in which suit is brought 1: 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 2: holding order dismissing action without prejudice based on contractual forum selection clause is final and appealable because it terminates the litigation in the plaintiffs chosen forum 3: holding that phone and facsimile communications to the forum purchase orders and payments sent to the forum a choice of law clause within the contract regarding the forum state and delivery of the product within the forum state were not enough to satisfy minimum contacts 4: holding that a forum selection clause should not be enforced where a consumer is told by a corporate agent to ignore boilerplate contract language containing a forum selection clause where there is a material difference in bargaining power and where the forum designated by the contract has little to do with the transaction and is gravely inconvenient for the parties and witnesses


Input: with respect to prejudice.’ ” Id. (quoting Olano, 507 U.S. at 734-35, 113 S.Ct. 1770) (second alteration in original). The error at issue in this case is the lack of congruence or consistency between, on the one hand, the crime as charged in the indictment and found by the jury and, on the other, the crime for which the defendant was sentenced. It is thus possible to view the consequences of this error in one of two ways: either the defendant was improperly sentenced to a greater penalty than the one authorized by Congress for the crime of which he was justly convicted, or the defendant was improperly convicted, because the crime.of conviction was not fully alleged in the indictment and found by the jury. Compare United States v. Promise, 255 F.3d 150, 160 (4th Cir.2001) (en banc) (<HOLDING>), petition for cert. filed, No. 01-6398 (Sept. Holdings: 0: holding that error in method by which interest from damages award was calculated was an error in substantive law not a clerical or mathematical error 1: holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed 2: holding at the governments urging that a similar error was an error in sentencing 3: holding that any error was harmless and thus not plain error 4: holding that district court error was not clear error in denying petition for mandamus


Input: that the court instruct the prosecutor not to make a general-deterrence argument. Moreover, the argument is misleading because general deterrence has nothing to do with the proper weighing of aggravating and mitigating circumstances. The Tennessee Supreme Court agreed that the prosecutor’s argument in the present case was improper for this reason, stating that “[unquestionably, any argument based on general deterrence to others has no application to either aggravating or mitigating circumstances. Argument of this nature is inappropriate at a sentencing hearing.” State v. Irick, 762 S.W.2d 121, 131 (Tenn.1988). In my view, the majority oversteps its role by second-guessing the Tennessee Supreme Court’s explicit conclusion on this question of state law. See Cristini v. McKee, 52 .2000) (<HOLDING>). Finally, the prosecutor expressed his Holdings: 0: holding that it is improper to ask a witness to comment on the credibility of another witness 1: holding that mentally retarded capital murderers are constitutionally ineligible for death penalty 2: holding that the prosecutors request that the jury send a message to the community was improper in the guilt phase of the trial but was not so flagrantly improper as to constitute plain error 3: holding that the prosecutors comment regarding the defendants failure to call a potential witness did not shift the burden of proof because it did not implicate the defendants fifth amendment right not to testify 4: holding that a prosecutors comment that jurors should impose the death penalty  in order to fulfill their societal duty was not improper because the prosecutor did not ask the jury to send a message to other potential murderers or robbers


Input: for the first violation for selling fireworks with an excessive powder content. However, § 320.136 states that M-80s are expressly prohibited from possession within the state for any purpose. The Commission found that Shelton possessed M-80s. Section 320.116 grants the state fire marshal the discretion to revoke the permits of any license holder who has violated the provisions of §§ Sections 320.106 to 320.161 for a period of three years. Further, possession of illegal fireworks under § 320.136, which includes M-80s, may “result in the ... revocation of the license(s) of the licensee.” 11 C.S.R. 40-3.010(21). It is clearly within the discretion of the fire marshal to determine the appropriate penalty for a licensed fireworks’ dealer who possesses M-80s. Walker, 781 S.W.2d at 116 (<HOLDING>). Shelton possessed over 1,000 M-80s in his Holdings: 0: holding the boards affirmance of the penalty of removal was within the discretionary authority of the board because the record reflects a reasoned concern for the factors appropriate to evaluating a penalty  1: holding that the authority to determine the appropriate penalty is with the supervisor of liquor control and not the administrative hearing commission or the reviewing court 2: holding that in reviewing a gaming commission decision the court will examine the record to determine if there is any evidence to support the commissions order 3: holding that summary judgment is appropriate when no issue of material fact exists and the court is reviewing administrative record for sufficiency of evidence 4: holding that the district court is limited to considering the administrative record in reviewing the denial of benefits under an erisa plan


Input: the case, the trial court did hot consider the factors enumerated in either Rule 60(b)(1) or in Starling. There was no inquiry by the trial court into whether appellants’ counsel’s actions constituted mistake, inadvertence, surprise or excusable neglect which would justify setting aside the order of dismissal. Moreover, there was no inquiry into whether appellants had actual notice of the proceedings, acted in good faith, and took prompt action; nor was there any inquiry as to possible prejudice to the non-moving party or a recognition by the trial court of “evidence in the record reflecting unjustified delays, or noncompliance with the court rules, attributable to the appellant .... ” Id. (citations omitted). See also Johnson v. Lustine Realty Co., 640 A.2d 708, 709 (D.C.1994) (<HOLDING>). The failure to inquire into the factors Holdings: 0: holding trial court abused its discretion by refusing to conduct hearing and render decision on motion 1: holding that trial court was required to give full effect to supreme courts judgment and that by failing to do so the trial court abused its discretion 2: holding that the trial court abused its discretion by allowing expert testimony that directly linked the characteristics of sexually abused children to the complainants in this case 3: holding that the trial court abused its discretion by not making the necessary inquiry and in failing to address two factors that bore directly on the rule 60b motion 4: holding that the district court did not abuse its discretion in denying a rule 60b motion when the relevant change in law occurred eight months prior and petitioner filed the motion two days before his execution


Input: of the alleged wrongdoer are deemed to be more substantial. Thus, the clear and convincing proof standard reduces the risk to the alleged wrongdoer of having his or her reputation tarnished erroneously by increasing the plaintiffs burden of proof. Masaki, 71 Haw. at 14, 780 P.2d at 574; see also Iddings, 82 Hawai'i at 14, 919 P.2d at 276. In this manner, the “standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Masaki, 71 Haw. at 14, 780 P.2d at 574; see also Iddings, 82 Hawai'i at 13, 919 P.2d at 275. As we have pointed out, under a clear and convincing standard of proof, an alleged abused family or household member would carry a heavy burden in proving that a protective order sho 81) (<HOLDING>); State v. Miller, 84 Hawai'i 269, 933 P.2d 606 Holdings: 0: holding hrs  7044114 which places the burden on the insanity acquittee to prove by a preponderance of the evidence that he or she is fit to be released does not violate due process principles 1: holding that a district court may find acquitted conduct by a preponderance of the evidence 2: holding that the trial court violated the defendants due process rights by relying on conduct of which he had actually been acquitted when imposing a sentence 3: holding at trial a criminal defendant has the burden to prove his insanity by a preponderance of the evidence 4: holding the due process rights of one acquitted by insanity are not violated when he or she is committed on a determination of risk of danger to self or the person or property of others by a preponderance of the evidence


Input: lessee under section 41.418 lacks standing to protest an adverse appraisal decision. See Toumeau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (owner or agent); see also Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 886 (Tex. 2001) (indicating in dictum that whether one is authorized lessee under section 41.413 or is owner’s designated agent under Tax Code section 1.111(a) is matter of standing, not capacity). Lack of standing to protest an ad valorem tax appraisal deprives a court of subject-matter jurisdiction to entertain a suit for judicial review based on that protest because standing is a component of subject-matter jurisdiction. See Toumeau Houston, Inc., 24 S.W.3d at 909 (<HOLDING>); see also Texas Ass’n of Bus., 852 S.W.2d at Holdings: 0: holding that the court lacked jurisdiction to consider the appeal because it was filed before the final order awarding attorneys fees 1: holding that trial court lacked jurisdiction to consider suit for judicial review filed by entity that was neither owner of property nor owners properly designated agent 2: holding that trial court lacked jurisdiction to consider defendants motion to withdraw guilty plea filed beyond term of court in which defendant was sentenced 3: holding that this court does not have jurisdiction over plaintiffs claims because the court may review neither criminal matters nor the decisions of district courts 4: holding that because the state failed to properly file the complaint the district court lacked jurisdiction to proceed to trial


Input: question as to the power of a Circuit Justice[, or the Court itself,] to dissolve a stay entered by a court of appeals.” Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U.S. 1316, 1319, 98 S.Ct. 10, 54 L.Ed.2d 28 (1977); Petition of Johnson, 72 S.Ct. 1028, 1031-32, 96 L.Ed. 1377 (1952) (discussing power of Circuit Justice to stay execution of judgment). The exercise of that power does not, however, constitute a decision on the merits. See Messer v. Kemp, 831 F.2d 946, 957 (11th Cir.1987). Nor does it necessarily deprive a lower court of jurisdiction. Cf. Johnson, 72 S.Ct. at 1031-32 (suggesting that stay of execution of district court judgment could be entered by Circuit Justice pending resolution of case by court of appeals); Messer, 831 F.2d at 957 (<HOLDING>). Because no final judgment had been entered by Holdings: 0: holding that filing of appeal to federal circuit divests this court of jurisdiction to consider motion to stay court order pending appeal 1: holding that notice of appeal did not divest the district court of jurisdiction at the time it was filed because a motion for reconsideration was pending 2: holding that supreme courts stay of execution did not divest court of appeals of jurisdiction to consider petitioners appeal en banc 3: holding that the pendency of a petitioners federal habeas corpus petition does not divest a trial court of jurisdiction to address a pcra petition 4: holding that a federal district court has jurisdiction to stay an execution prior to the filing of a formal habeas corpus petition


Input: that Harline was a party to the bankruptcy proceeding. Thus, because all four requirements of issue preclusion are met here, Harline is bound by the bankruptcy court’s factual finding that he acted with the requisite state of mind to support a denial of discharge despite Vlahos’ negligent preparation of the statement of affairs and schedules. Thus, Harline has failed to raise a genuine issue of material fact that Vlahos proximately caused the denial of Harline’s bankruptcy dis L.Ed.2d 101 (1990); Falconer v. Meehan, 804 F.2d 72, 75-76 (7th Cir.1986) (bankruptcy court finding that attorney advised client of contents of dissolution agreement precluded relitigation of issue in malpractice action); see also Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 866 P.2d 889, 895-96 (Ct.App.1993) (<HOLDING>). Because Har-line is precluded from Holdings: 0: holding that bankruptcy court ruling that debtors first attorney did not commit malpractice by failing to inform debtor of deadline precluded same claim in state court against different attorneys 1: holding that the district court had bankruptcy jurisdiction over a professional malpractice action filed by a title 11 debtor against the law firm that represented him in his bankruptcy case under section 1334b because the malpractice claim arose in the bankruptcy case 2: holding that suit for professional malpractice was compulsory counterclaim to earlier award of fees in bankruptcy to debtors attorney 3: holding that a corporate chapter 7 debt ors malpractice claim against its bankruptcy attorney was related to its bankruptcy case 4: holding that debtors have no right to jury trial on malpractice claims against their attorneys


Input: the rule allows such a safe harbor.” Id. Although Guardsmark explained the safe harbor to some employees, the Board found the company’s explanation “plainly insufficient to avoid a violation of the Act [because] narrowing interpretations of overly broad rules must be communicated to the entire work force covered by the rule.” Id. at *5. Guardsmark argues that nothing in the rule explicitly prohibits off-duty solicitation and that employees would not reasonably so construe it, especially after the company clarified the rule’s safe harbor. We disagree. To begin with, because Guardsmark failed to communicate the safe harbor clarification to all employees who had received the handbook, the Board properly focused on the rule’s language. See Ichikoh Mfg., Inc., 312 N.L.R.B. 1022, 1022 (1993) (<HOLDING>). And because that language prohibits Holdings: 0: holding that it is not 1: holding that employees failure to comply with employers rule requiring employees to notify employer when a temporary job placement ended did not constitute gross misconduct because the violation was an isolated incident and employer did not try to show that its staffing ability had suffered serious  or indeed any consequences as a result of employees unavailability 2: holding that an employer must establish all three elements of the defense with regard to its employees in order to prevail 3: holding that an employer must show that it clearly communicated to all the  employees to whom the presumptively invalid rule was disseminated that the rule did not mean what it said 4: holding that the hospital failed to show how it was harmed by failure to verify the rule to show cause


Input: A majority of the Supreme Court has not yet spoken to this issue. Cf. Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354, 380, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988) (Scalia, J., concurring) (“Contrary to the dissent, we have held that this rule of deference applies to an agency’s interpretation of a statute designed to confine its authority.” (citation omitted)) with id. at 386, 108 S.Ct. 2428 (Brennan, J., dissenting) (“I cannot, however, agree with Justice SCALIA’s conclusion that courts must defer to an agency’s statutory construction even where, as here, the statute is designed to confine the scope of the agency’s jurisdiction to the areas Congress intended it to occupy.”); see also N. Ill. Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 846-47 (7th Cir.2002) (<HOLDING>). We are not persuaded by the USPTO’s arguments Holdings: 0: recognizing justice scalias concurrence in mississippi power stating that the supreme court has not definitively ruled on the issue and declining to grant deference to the agencys determination of its own jurisdiction 1: holding that the trial court had jurisdiction to grant rule 37 relief where petitioner herred was in custody at the time the court ruled on his motion 2: recognizing that the court has the power to grant leave upon certain conditions 3: holding that the district court did not abuse its discretion in declining to apply laches where the only prejudice shown by the government was attributable to its own delay rather than to that of the movant 4: holding that the supreme court will not issue advisory opinion on issue not before the court


Input: 411 of this title, and in addition thereto for the amount of damage done by said boat, vessel[.]” 33 U.S.C. § 412 (2007) (emphasis added). The only pecuniary penalties specified under § 411 are “a fíne of up to $25, 000 per day[.]” 33 U.S.C. § 411 (2007). Thus, I find the plain language of the statutes to suggest that the in rem defendants can be liable for the pecuniary penalties of up to $25,000 per day, and “in addition thereto for the damage done” to Plaintiffs public works. See also Barge Line, 424 F.Supp. at 456 (“Section 412 imposes the statutory penalties of s 411 upon any boat or vessel violating s 40[8].... Accordingly, the Court assesses a penalty of $500.00 against each of the offending vessels.”); see also United States v. Tug Otto, 296 F.Supp. 1130, 1134 (D.C.Tex.1967) (<HOLDING>), aff'd., 404 F.2d 54 (5th Cir.1968). In Holdings: 0: holding that the fourteenth amendment which makes persons bom in the united states and subject to its jurisdiction citizens of the united states and requires that representatives be apportioned among the states based on population excluding indians not taxed did not make an indian a citizen of the united states 1: holding that a state agency proceeding did not constitute an action in a court of the united states or a state within the meaning of 33 usc  1365b1 2: holding that the united states is liable for interest only in the event of a clear statutory waiver of sovereign immunity 3: holding that a barge being a vessel used and employed in violation of 33 usc  408 is liable to the united states for a pecuniary penalty of 500 under the provisions of 411 and 412 and in addition thereto for the damage done 4: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under  1983


Input: that her expulsion will preclude her from taking part in any special education programs offered at Danbury High School. If plaintiff is expelled, she will be restricted ito placement in a private school or to homeIbound tutoring. Regardless of whether these two alternatives are responsive to plaintiff’s needs, the PPT will be limited to their use in fashioning a new special education program for plaintiff. Of "particular concern to the Court is the possibility that an appropriate private placement will be unavailable and plaintiff’s education will be reduced to some type of homebound tutoring. Such a result can only serve to hinder plaintiff’s social development and to perpetuate the vicious cycle in which she is caught. See Hairston v. Drosick, 423 F.Supp. 180, 183 (S.D.W.Va.1973) (<HOLDING>). The Court is persuaded that plaintiff’s Holdings: 0: holding that it is imperative that every child receive an education with his or her peers insofar as it is at all possible 1: holding that every citizen has a constitutional right of privacy in his or her medical records 2: holding that it is not 3: holding that it may not 4: holding that an item is material  if the time for including it in income or deducting it is at issue


Input: police powers of the States [are] not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cippollone v. Liggett Group, Inc., — U.S. -, -, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)); see also CSX Transp., Inc. v. Easterwood, — U.S. -, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The touchstone of a preemption analysis, therefore, turns on congressional intent. Cippollone, — U.S. at -, 112 S.Ct. at 2617, 120 L.Ed.2d at 422 (citing Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978)); see also Fidelity Fed. Sav. & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (<HOLDING>). Generally, Congress’ intention to preempt may Holdings: 0: holding that in light of the presumption against preemption there is no field preemption of state unfair competition claims that rely on a substantial question of federal patent law because congress has not expressed its clear and manifest intention to preempt that area of law 1: holding that ejxcept in matters governed by the federal constitution or by acts of congress the law to be applied in any case is the law of the state 2: holding that the rights and duties of the united states on commercial paper which it issues are governed by federal law and that in the absence of an applicable act of congress it is for the federal courts to fashion the governing rule of law according to their own standards 3: holding that where a conflict between state and federal law is alleged it must be reasonable to conclude that congress would have intended to preclude the state law in question since it would make little sense to preempt state law in order to serve the purposes underlying federal legislation if congress itself would not require or admit of preemption of state authority 4: holding that preemption is not foreclosed by the fact that the federal statute intrudes into the range of subjects over which the states have traditionally exercised their police powers if congress intent to displace state law is clear


Input: with the great weight of authority, with the rule of the Restatement of the Law of Contracts, and with the views of eminent text-writers.” Id. (citations omitted). Juxtaposed to this authority, we have a competing concern — the ability of parties to fully and finally resolve disputes between them. Parties should be able to bargain for and execute a release barring all further dispute. This principle necessarily contemplates that parties may disclaim rebanee on representations. And such a disclaimer, where the parties’ intent is clear and specific, should be effective to negate a fraudulent inducement claim. As an example, a disclaimer of reliance may conclusively negate the element of reliance, which is essential to a fraudulent inducement claim. See Prudential, 896 S.W.2d at 161-62 (<HOLDING>); Estes v. Hartford Accident & Indem. Co., 46 Holdings: 0: holding that agreement to buy property as is in which buyer included voluntary freely negotiated affirmation that he was depending on his own assessment of the building precluded claim for damages when building was found to contain asbestos 1: holding that while the complaint need not contain detailed factual allegations it must contain more than a formulaic recitation of the elements of a claim and must state a claim that is plausible on its face 2: holding that to be adequate a complaint must contain a statement of facts on which a claim is based showing that the pleader is entitled to relief 3: holding that lay testimony as to the presence of asbestos in the workplace which was based upon personal knowledge of employees was properly admitted 4: holding that pennsylvanias full judicial review of a denied building permit is adequate process


Input: remains the same,” such as by correcting a “misnomer” or mistake of form. United States v. Young Bros., Inc., 728 F.2d 682, 693 (5th Cir.1984). Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment. Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. See, e.g., United States v. Munoz, 150 F.3d 401, 417 (5th Cir.1998) (finding no grounds to reverse conviction when indictment charged a dif ferent gauge of shotgun than that presented during trial); United States v. Robinson, 974 F.2d 575, 578 (5th Cir.1992) (<HOLDING>); United States v. Robison, 904 F.2d 365, 369 Holdings: 0: holding that government may prove facts outside the overt acts alleged in the indictment 1: holding that when an indictment alleges nonessential facts the government need not prove them in order to sustain a conviction 2: holding that the government need not prove actual notice to the prisoner 3: recognizing that the government need only prove that crime occurred reasonably near the date stated in the indictment 4: holding that the fact of prior convictions under  924e need not be charged in an indictment and proven to a jury and also that the government need not charge in an indictment and prove to a jury that a defendants prior conviction constitutes a violent felony under  924e


Input: the case must be adjudicated before the NLRB. See Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004) (“Applied to claims in federal court, and arising under federal law, Garmon has nothing to do with either preemption or subject-matter jurisdiction. It is a rule of primary jurisdiction, allocating to an administrative agency the first crack at certain matters.”). Accordingly, Garmon preemption provides no basis for removal jurisdiction in federal court. A case falling within the scope of the doctrine must be adjudicated before the NLRB. The lower courts are uniform in finding that Garmon preemption under the NLRA does not completely preempt state laws so as to provide removal jurisdiction. See, e.g., Ethridge v. Harbor House Rest., 861 F.2d 1389, 1399-1400 (9th Cir.1988) (<HOLDING>); Suarez v. Gallo Wine Distribs. LLC, No. 02 Holdings: 0: holding that a federal district court may decide whether an activity is an unfair labor practice under the nlra when the matter is raised as a defense to a claim under an independent federal remedy over which the federal district courts do have jurisdiction 1: holding that district courts do not have appellate jurisdiction over state courts 2: holding that federal district courts have jurisdiction over violations of collective bargaining contracts even if such violations are also unfair labor practices subject to nlrb jurisdiction 3: holding that garmon preemption provides no basis for removal jurisdiction in federal court and observing that the lower courts are uniform in finding that garmon preemption under the nlra does not completely preempt state laws so as to provide removal jurisdiction 4: holding that gannon preemption does not constitute complete preemption for removal purposes because  7 and 8 of the nlra do not create jurisdiction in the federal district courts instead those provisions vest jurisdiction in the nlrb to determine unfair labor practices and state courts are as able to determine if jurisdiction belongs in the nlrb as are the federal district courts


Input: its offer. Notwithstanding this assumption, we do not think the equities of this case warrant an award of attorney fees. A party’s potential liability for attorney fees is intended to motivate the parties to work out their disagreement on fair value and avoid litigation. Id. We do not believe, nor do the Kellys contend, that an offer from Sieg of $40.74 (Maroney’s opinion of fair value) would have led to settlement of this case. By then, the Kellys had an expert advising them the value of their stock was $220.39 per share. Given this fact, the trial court could have reasonably concluded Sieg’s failure to change its position did not warrant an attorney-fee award. Therefore, the trial court did not abuse its discretion in denying attorney fees. See Davis-Eisenhart, 539 N.W.2d at 143 (<HOLDING>). In summary, we cannot say as a matter of law Holdings: 0: holding trial court did not abuse its discretion in finding violation was willful and substantial 1: holding that the trial court did not abuse its discretion in refusing a motion to sever separate charges of rape committed against the appellants two nieces 2: holding that the trial court did not abuse its discretion in refusing to allow the withdrawal of the juiy trial waiver 3: holding that trial court did not abuse its discretion in refusing amendments to pleadings because they came too late 4: holding trial court did not abuse its discretion in refusing attorneyfee award against corporation where dissenter demanded more than his own appraiser said the stock was worth


Input: “rights” and a state court’s discretion than any prior Texas cases. Prior case law has indicated the types of acts or omissions that demonstrate significant impairment of the child, such as physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior on the part of the parent. See Brook v. Brook, 881 S.W.2d 297, 298 (Tex.1994); In re Hidalgo, 938 S.W.2d at 494, 497 (affirming appointment of mother and step-grandmother as joint managing conservators when mother effectively abandoned child after birth; child was raised first by father and stepmother, then, after father’s death by stepmother, and then by step-grandmother; and mother first sought custody when child was eleven years old); Thomas v. Thomas, 852 S.W.2d 31, 32-36 (Tex.App.-Waco 1993, no writ) (<HOLDING>). The “[ejvidence must support the logical Holdings: 0: holding that grandmother who had intermittent custody of her grandchild had no protected liberty interest in the continued custody of the child 1: holding trial court did not err in appointing maternal grandmother as managing conservator when evidence showed grandmother had been childs primary caretaker for years father had history of criminal conduct drug and alcohol use dishonesty unemployment and instability and had abandoned and failed to support child and mother who had immoral and unstable lifestyle and had exposed child to violence asked court to award managing conservatorship to grandmother 2: holding trial court did not abuse its discretion in trial of mother for felony injury to child when after grandmother testified that she had been concerned about leaving a child with mother or suspicious of her when another of mothers young children had diedevidence which had been the subject of a motion in limine the trial court strongly instructed the jurors three times that day and polled them individually the next day about whether they could follow the instruction to disregard 3: holding that court could permit grandparent or other person having substantial past contact with child to intervene in pending sapcr even though original suit requesting possessory conservatorship could not be filed by grandparent or other person and further holding that stepgrandmother had standing to intervene to seek managing conservatorship of child under section 102004b and section 1020039 where natural mother abandoned child after birth parents were divorced natural father remarried father had custody of child after father died child lived first with stepmother then with stepgrandmother and mother first sought custody when child was eleven years old 4: holding that maternal grandmother had standing to intervene in pending sapcr to seek managing conservatorship of child pursuant to former section 102004b and section 102004a where she had substantial past contact with child there was evidence of abuse and neglect of child by mother and mother had been arrested and had subsequently engaged in bizarre and dangerous behavior towards child had attacked grandmother with frying pan and hedge clippers and had been involuntarily committed to psychiatric center all of which established serious and immediate concern for welfare of child