Input: ineffective assistance under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], then the prejudice standard under the ‘cause and prejudice’ showing to excuse a procedural default is also met.” Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir.2006). In this case, it is clear that the error complained of — Goldman’s sentencing as a Career Offender despite the invalidity of one of his essential prior convictions — had “substantial and injurious effect.” The government does not dispute that Goldman’s Career Offender status increased his sentence by at least seventeen years. This constitutes a “substantial and injurious effect or influence” and meets the Strickland standard. See Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (<HOLDING>). With regard to cause, Goldman argues that the Holdings: 0: holding that it is error to engraft onto the prejudice branch of the strickland test a requirement that any increase in a sentence must meet a standard of significance 1: holding regarding sixth amendment prejudice if there is no reasonable possibility that the appellate court would have ruled in his favor there can be no strickland prejudice 2: holding that there is no baseline or quantifiable increase in a defendants sentence that must be shown to establish prejudice under strickland 3: holding that any reduction in sentence constitutes substantial prejudice for purposes of strickland analysis 4: holding that prejudice is shown where a sentencing error may affect the determination of sentence


Input: omitted). Accord, e.g., United States v. Bailey, 691 F.2d 1009, 1014 & n. 3 (11th Cir.1982) (‘Voluntary” means not caused by police misconduct); United States v. Barber, 557 F.2d 628, 632 (8th Cir.1977) (evidence left in police car after illegal arrest held inadmissible because discovery of the evidence was a direct result of the unconstitutional seizure of defendant’s person); United States v. Newman, 490 F.2d 993, 995 (10th Cir.1974) (drugs left behind as a result of illegal search of rear compartment of camper held inadmissible). Of course, if the abandonment is truly voluntary — i.e., not caused by police misconduct — evidence found is admissible even if there was a prior or subsequent illegal search or seizure. E.g., United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir.1982) (<HOLDING>); United States v. Kelly, 551 F.2d 760, 763 Holdings: 0: recognizing that trial court properly left the door open for defendant to prove its defenses to the fed complaint 1: holding that when a police officer observes something from an area where the officer is lawfully entitled to be anything that is in open view may be observed without having to obtain a search warrant because making such open view observations does not constitute a search in the constitutional sense 2: holding tacit consent to search of person was insufficient to prove consent to search bags where bags were not in defendants actual possession defendant merely pointed out bags at officers request and officer never specifically asked for consent to search bags 3: holding that abandonment was not caused by police misconduct where defendant left bags in open view before officers had knocked on door to gain admission because officers had not yet done anything illegal 4: holding that no search occurred when police officers entered an open business


Input: applied Hardy and suggested the limits of the term: whether the information “tell[s] the [agency] how to catch lawbreakers; [or tells] lawbreakers how to avoid the [agency’s] enforcement efforts.” Id. Our existing cases lead our district courts to strain the logical limits of “law enforcement” to cover otherwise valid invocations of Exemption 2. They regularly deny requests for disclosure of all kinds of internal documents, including those related to the military and national security, even if unrelated to investigations or prosecutions. See, e.g., Kelly v. FAA, No. 07-00634, 2008 WL 958037 (E.D.Cal. Apr.8, 2008) (magistrate judge recommending exemption of “grading sheet” for hiring of Designated Pilot Examiners); L.A. Times v. Dep’t of Army, 442 F.Supp.2d 880, 898 (C.D.Cal.2006) (<HOLDING>); Gordon, 388 F.Supp.2d at 1036 (holding “no Holdings: 0: holding attempted aggravated assault on a law enforcement officer is not a crime in florida 1: holding data on insurgent and other attacks in iraq are law enforcement materials 2: holding that law enforcement commission was a benefit of employment 3: holding that while law enforcement officers properly separated and assumed possession of a cell phone from arrestees person during the search incident to arrest a warrant was required before the information data and content of the cell phone could be accessed and searched by law enforcement 4: holding that a question about present employment in field of law enforcement did not trigger disclosure of past employment in field of law enforcement


Input: on the true character of matters occurring within the limitations period.” Local Lodge No. 1424, 362 U.S. at 416, 4 L. Ed. 2d at 838, 80 S. Ct. at 826. The Court also stated that “where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice,” “it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.” Local Lodge No. 1424, 362 U.S. at 416-17, 4 L. Ed. 2d at 838, 80 S. Ct. at 827. See also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 153 L. Ed. 2d 106, 122, 122 S. Ct. 2061, 2072 (2002) (<HOLDING>). This court subsequently addressed the issue Holdings: 0: holding that in title vii cases the mixedmotive theory of discrimination is available in cases with circumstantial evidence of discrimination 1: holding that in title vii cases the mixedmotives theory of discrimination is available in cases with circumstantial evidence of discrimination 2: holding that the mixedmotive framework does not apply to retaliation cases under title vii 3: holding that in title vii cases the statute of limitations does not bar an employee from using prior acts as background evidence in support of a timely claim 4: holding that the doctrine of qualified immunity does not protect a government official who is sued in an official capacity under title vii because title vii does not impose personal liability


Input: to make bond, and to keep an office or place of business; but none or all of these requirements do not absolutely determine whether or not a given employment is a public office, within the meaning of a given statute or constitutional provision.... “On account of this variety of meanings attaching to the words ‘office’ and ‘officer,” as used in various written laws, the adjudicated cases do not always, nor even often, furnish safe guides by which to determine with absolute certainty whether or not a given employment is an office [within] the meaning of a given statute or other written law. Every case must of necessity be determined by consideration of the particular facts and circumstances involved.... ” Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481-82, 76 So. 422, 424 (1917) (<HOLDING>). In Ward v. State ex rel. Goldsmith, 203 Ala. Holdings: 0: holding that county defendant was a person within meaning of fca for purposes of suit by private plaintiff 1: holding that a police department is not a person within the meaning of section 1983 2: holding that health insurer contracted with fehba was not acting under a federal agency within the meaning of the federal officer removal statute 3: holding that an alcoholic beverage control officer was a public officer within the meaning of the statute 4: holding that the position of  alltime health officer for a county was not an office within the meaning of section 1467 of the code of 1907


Input: after conviction,” and (3) “multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)); see also Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir.2001) (“[T]he double jeopardy bar prohibits not only multiple punishments for the same offense, but also a second prosecution following conviction[.]”). The prohibition of multiple successive prosecutions, the double jeopardy claim at issue in this case as urged by defendant, serves two interests. First, it preserves the criminal defendant’s interest in the finality of judgment. See Brown, 432 U.S. at 165, 97 S.Ct. 2221 (“Where successive prosecutions are at stake, the guarantee ser 680, 97 L.Ed.2d 1 (1987) (<HOLDING>). “As a general rule, jeopardy attaches in a Holdings: 0: holding that a codefendants prior statements made at his guilty plea hearing were not admissible to corroborate his trial testimony because the witnesss guilty plea hearing did not predate any improper motive he may have had to testify against the defendant 1: holding double jeopardy did not bar retrial where a jury could not render a verdict and a mistrial was granted 2: holding double jeopardy bar on subsequent prosecution did not apply even after defendant had been sentenced when he breached conditions of his guilty plea and refused to testify for a second time at codefendants retrial for murder 3: holding double jeopardy did not prohibit capital prosecution of defendant who pled guilty to seconddegree murder and agreed to testify against codefendants but violated plea agreement by refusing to testify at retrial and state properly sought new indictment for capital murder resulting in death sentence imposed at trial for firstdegree murder 4: holding that fact that conviction has been overturned at defendants behest removes double jeopardy bar to increased sentence after retrial


Input: the risk or to see that sufficient precautions are taken to protect others from the harm that the risk poses.” Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989). Thus, “[a]s to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain, 593 So.2d at 504 (bold emphasis added). By placing the large cement pipes on the corner of an intersection, Freedom created a “foreseeable zone of risk” where motorists had an obstructed view of eastbound traffic on Griffin Road. Therefore, Freedom had a duty to take necessary precautions and minimize the risk inherent in that obstructed view. Cf. Whitt v. Silverman, 788 So.2d 210 (Fla.2001) (<HOLDING>). The primary issue upon which the trial court Holdings: 0: holding a private landowner can be held hable for negligently keeping property in a manner that obstructs a drivers view of traffic 1: holding that a state official can be held individually hable under  1983 for acts taken within the scope of his or her official duties 2: holding that public entities may be held vicariously hable for the negligent acts of their individual employees 3: holding tavern employees could be held liable for negligently furnishing alcohol to a patron in violation of a criminal statute or ordinance 4: holding that in condemnation proceedings the landowner has the burden of establishing the value of the property


Input: provided, however, that: (t ⅝ ⅜ ⅝ “(2) In respect to those injuries or damages due to acts of medical * * * malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered.” (Emphases added.) Under the plain language of § 9-1-14.1, in order to toll the malpractice statute of limitations, there must be a finding that the plaintiff exercised reasonable diligence at the time the injury occurred, yet failed to discover a wrongful act on the part of the defendant. See Grossi v. Miriam Hospital, 689 A.2d 403, 404 (R.I.1997) (<HOLDING>). In contrast, the tolling provision contained Holdings: 0: holding prescription defense available to wife who asserted that she was holding her husbands pills on his behalf 1: holding erisa did not apply when doctor was not employee of the medical association of the state of alabama 2: holding that a wifes minimal involvement in her husbands business coupled with the lack of evidence that she knew of or intended to further her husbands fraudulent schemes was insufficient evidence of conspiracy 3: holding that the tolling provision of  91141 did not apply when the plaintiff knew that medical negligence may have contributed to her husbands death but asserted that she did not know the identity of the doctor who treated him 4: holding that where petitioner testified she did not know who fired shots at her ear or why the evidence did not compel the conclusion that the shooting was based on her political opinion


Input: the assets at stake were artwork or cash, the Defendants, through a series of complex transactions, have succeeded in moving such assets from trusts and accounts in which the Plaintiff had the right of access, to trusts and accounts in which she did not. Thus, all of the alleged predicates of mail fraud, wire fraud and money laundering are related insofar as they served either to execute the fraud, or mask it. See, e.g., Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir.1989) (although plaintiff alleged separate acts involving separate properties, relatedness present where all acts had purported effect of depriving plaintiff of his interest in real estate entity). At this stage, nothing more is required. See, e.g., Koal Indus. v. Asland, S.A., 808 F.Supp. 1143, 1161-62 (S.D.N.Y.1992) (<HOLDING>). The Plaintiff has also met the continuity Holdings: 0: holding that to prevail under civil rico plaintiff must prove that defendants participated in the conduct of an enterprise through a pattern of racketeering activity 1: holding that plaintiff stated pattern of racketeering activity where defendants allegedly committed various predicates with common design of defrauding plaintiffs of money and obtaining control of coal mine 2: holding that a pattern of racketeering activity required multiple illegal schemes 3: holding that plaintiffs allegation that defendant engaged in multiple instances of mail and wire fraud did not allege pattern of racketeering activity with sufficient particularity 4: holding that racketeering predicates must be related and amount to or pose a threat of continued criminal activity


Input: that separateness. In Grace’s view, for the Maxima to become Nathaniel’s separate property, he owed her half of the value of the automobile because the couple had purchased it with “joint” funds. Likewise, Nathaniel had to pay “his” separate part of the marital debt for health and automobile insurance. {¶ 58} However, spouses cannot by agreement convert marital assets and debt into separate assets and debt, unless the agreement is pursuant to an immediate separation. R.C. 3103.06 (“A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation”); Blair v. Blair (Mar. 5, 2002), 3d Dist. No. 9-01-36, 2002 WL 359470 (<HOLDING>). “ ‘R.C. 3103.06 prohibits post-nuptial Holdings: 0: holding that circuit court erred in failing to consider that marital property in the form of marital earnings was used to pay debt against nonmarital property 1: holding that separate property valued at 45000 was transmuted to marital property when improved by 3800 of marital property 2: holding that the trial court erred in finding that marital property was the former wifes separate property based on a nonseparation agreement in which the former husband purported to relinquish any interest in the marital property 3: holding trial court had no authority to award portion of the marital property to wifes children from another marriage even though money they received by way of social security benefits were commingled with the marital estate and used in part for the aequisition of marital property 4: holding that separate property may become marital property if spouse donates it to marital unit with intent at time of donation that property become marital


Input: have changed the jury’s decision to impose a death sentence. See Gissendaner, 272 Ga. at 713-714 (10) (b) (reviewing alleged impropriety that was not objected to at trial solely for the purpose of determining if a death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor in violation of OCGA § 17-10-35 (c) (D). 9. In addition to his claim above regarding unsworn and allegedly false testimony, Martin argues that the trial court erred by permitting victim impact testimony that was improper in other ways. Because Martin failed to both raise objections and obtain rulings on them regarding any of the allegedly objectionable statements, he has forfeited his right to appeal under ordinary appellate review standards. See Smith, 287 Ga. at 30 (3) (<HOLDING>). Furthermore, we conclude under the “plain Holdings: 0: holding that appellants failure to obtain a ruling at the trial level even on a constitutional issue precluded review on appeal 1: holding that the supreme court will not address an argument on appeal if a party has failed to obtain a ruling below 2: holding that a party may not raise a claim on appeal that was not presented to the trial court 3: holding that a party must obtain a distinct ruling on an issue in order to raise it on appeal 4: holding that a party may not raise an issue for the first time on appeal


Input: twice for the same offense arising from the same act. See State v. Craft, 685 So.2d 1292 (Fla.1996). Accordingly, because Appellant was twice convicted for the same offense arising from a single episode, we reverse and remand with directions that the trial court vacate Appellant’s conviction on Count I. We also remand for recalculation of the score sheet and re-sentencing since the vacated conviction will result in a reduced sentencing range. See Johnson v. State, 744 So.2d 1221 (Fla. 4th DCA 1999)(re-manding for re-sentencing where one of defendant’s convictions was vacated and the appellate court was unable to conclude that the defendant’s sentence would have been the same had the trial court used a properly prepared score sheet); Roy v. State, 711 So.2d 1848 (Fla. 1st DCA 1998)(<HOLDING>). AFFIRMED in part; REVERSED in part; and Holdings: 0: holding habitual offender sentence rendered any errors in guidelines score sheet harmless 1: holding that resentencing is required 2: holding that seventh application for postconviction relief which was rejected because evidence on which it was based was not properly authenticated was properly filed 3: holding that on a motion for postconviction relief defendant was entitled to reduction of points based upon a vacated conviction which resulted in a reduced sentencing range which required resentencing with a corrected score sheet 4: holding defendant sentenced to term equal to maximum guidelines sentence under improperly calculated sentencing guidelines scoresheet was not entitled to be resentenced because defendant was habitualized such that sentencing guidelines score sheet was irrelevant and the sentence imposed was not illegal


Input: interpreted asa holding that a gold tooth equates with a stereotypical belief as a matter of law. See George v. State, 263 Ga. App. 541, 545 (2) (b) n. 13 (588 SE2d 312) (2003) (summarizing our holding in Rector as “improper stereotyping where state failed to explain how prospective juror’s gold tooth related to case”), disapproved on other grounds, Littlejohn v. State, 320 Ga. App. 197, 202 (1) (c) n. 3 (739 SE2d 682) (2013) (noting that George is overruled to the extent it was based upon standard disapproved in Toomer, supra). Clearly, our decision in Rector rested upon the State’s failure to provide a case-related explanation for its peremptory strike. But the Supreme Court of Georgia has now expressly disapproved of that portion of the decision. Toomer, supra, 292 Ga. at 54 (2) (b) (<HOLDING>) (footnote omitted; emphasis supplied). After Holdings: 0: holding that a written statement could not be regarded as an affidavit sufficient in law for any purpose because it was not sworn to by any one or before any officer 1: holding explanation need not even be caserelated  and stating any statements to the contrary in four identified cases and any other georgia case are hereby disapproved 2: holding an auditors review and approval of quarterly financial statements nonactionable under  10b and stating that because defendant did not actually engage in the reporting of the financial statements  but merely reviewed and approved them the statements are not attributable to defendant and thus defendant cannot be found liable for making a material misstatement 3: holding that courts are not bound to decide any particular jurisdictional question before any other 4: recognizing that subject matter jurisdiction can be questioned at any time and with respect to any claim


Input: (1) legal fees incurred to repossess the equipment; (2) investigator’s fees expended to track down the equipment hidden by Paul; (3) devaluation of the market price of the recovered equipment; and (4) loss of some of the equipment hidden by Paul. Mullins has challenged the inclusion of consequential damages in the restitution award and the failure of the court to make findings as to his ability to pay. The amount of restitution that may be awarded under the VWPA is specifically described: The order may require that such defendant— “(1) in the case of an offense resulting in damage to or loss or destruction o n effect, even if costs that are not included would appear to be justified as a way of making the victim whole. United States v. Mitchell, 876 F.2d 1178, 1184 (5th Cir.1989) (<HOLDING>). In cases involving the damage, loss, or Holdings: 0: holding that restitution under the vwpa was more akin to compensation for actual loss than a criminal penalty that may not bear interest 1: holding that equitable restitution is available but that legal restitution is not 2: holding that restitution for lost income in property cases was improper under the plain language of the statute because restitution for lost income is authorized only for victims of bodily injury 3: holding that where the government has not presented evidence at the hearing concerning the appropriate amount of restitution    the imposition of the restitution order constitutes plain error 4: holding that restitution for lost income is not authorized for offenses resulting in damage to loss of or destruction of property the fact that the goals of the vwpa may be thwarted by denying lost income restitution does not authorize us to ignore the plain language of the statute


Input: a judicially created doctrine in this state. The action existed at common law, and was adopted into the jurisprudence of this state. See, e.g., Beach v. Brown, 20 Wash. 266, 55 P. 46 (1898). The legislature of this state has not specifically provided for an action for alienation of affections. No doubt has ever been expressed regarding the courts' power to abolish this judicially created action for alienation of a spouse's affections. Our original decision in this case recognized that "a rule of law which has its origins in the common law and which has not been specifically enacted by the legislature may be modified or abolished by the courts when such revision is mandated by changed conditions." Wyman v. Wallace, 91 Wn.2d at 318-19. See also Freehe v. Freehe, 81 W 9, 134 (Iowa 1978) (<HOLDING>). In the instant case, the question of Holdings: 0: recognizing the cause of action 1: holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment 2: holding that the question whether a cause of action exists is not a question of jurisdiction and therefore may be assumed without being decided 3: recognizing that the question of abolition of the action for alienation of affections is a matter that can be decided by the state courts and then holding that the action will continue to exist 4: holding that it may be decided as a matter of law


Input: have not demonstrated a likelihood of success on the merits of these claims. IGRA requires the Secretary to review a tribe’s distribution plan and approve it, if it meets the requirements of 25 U.S.C. § 2710(b)(3). The Secretary complied with this requirement, determining that the Community’s plan — including its provision that “[t]he decision as to those persons entitled to share in Community gaming profits is strictly an internal Tribal matter and an inherent right and power of the Tribe,” (Amend.Compl. Ex. I, § 14.5, pt. A) — was “adequate.” The “adequacy” of a tribal gaming ordinance falls within the expertise of the BIA and the NIGC, and as such, is entitled to significant deference. See 5 U.S.C. § 706(2)(A); Lile v. University of Iowa Hosp., 886 F.2d 157, 160 (8th Cir.1989) (<HOLDING>). Plaintiffs have not demonstrated the Federal Holdings: 0: holding that deference to an agency interpretation is not appropriate where a statute is administered by more than one agency 1: recognizing that courts accord significant deference to an agency decision where agency expertise is involved 2: holding deference to agency methodology appropriate unless agency failed to address an essential factor 3: holding an agency decision is not final during the time the agency considers a petition for review 4: holding that agency interpretation which is reasonable is entitled to deference


Input: to any portion of the twenty percent contingent fee arrangement? In its panel opinion, the Veterans Court ruled that under New York law the termination extinguished Mason’s right to a contingent fee. The en banc court, however, vacated the panel decision when it granted rehearing en banc. Ordinarily state law controls the attorney-client relationship. See Baird v. Koerner, 279 F.2d 623 (9th Cir.1960). Here, however, a federal statute provides for and governs the twenty percent contingent fee arrangement and the Secretary’s payment of the fee to the attorney out of the proceeds of the past benefits awarded. In that situation, should not federal rather than state law govern those aspects of the relationship? Cf. Howard v. Lyons, 360 U.S. 593, 597, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959) (<HOLDING>). Of course, such federal standards may reflect Holdings: 0: 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 1: holding that the burden is on the defendants to establish the existence of absolute legislative immunity 2: holding that the validity of government officials claim of absolute immunity for statement allegedly defamatory under state law must be judged by federal standards to be formulated by the courts in the absence of legislative action by congress 3: holding that private rights of action to enforce federal law must be created by congress courts may not create a cause of action absent statutory intent 4: 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


Input: ... to trigger the [IAD], and that he did request, as he was required to do, a trial within the time period.” Subsequently, the judge denied the State’s motion for reconsideration. The State appeals, contending that the motion judge erred in dismissing the indictment and that the IAD was not applicable. Under the IAD, a person who is imprisoned in one state, who has, pending in another state which is a party to the agreement, an “untried indictment, information or complaint on the basis of which a detainer has been lodged against” him, must “be brought to trial within 180 days after he [has] caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a fin ) (<HOLDING>). Here, the State never filed a detainer. “A Holdings: 0: holding that a defendant is not entitled to dismissal of an indictment under the iad as no detainer had been lodged against him 1: holding that indictment sufficiently informed defendant of the charge against him so as to enable him to prepare a defense and thus there is no claim that he was surprised at trial 2: holding that if the time limits of the iad have been violated the charges underlying the detainer must be dismissed 3: holding that the 180day time period in article 111a of the iad does not commence until the prisoners request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him 4: recognizing that under fex prisoners request for final disposition requires actual delivery to court and prosecuting officer of jurisdiction that lodged detainer against him


Input: of the Leases is fatal to their appeal. See Loven v. Greene County, 94 S.W.3d 475, 478 (Mo.App. S.D.2003) (“An appellant’s failure to challenge a finding and ruling that would support the conclusion complained about is fatal to an appeal.”). It is the Appellants’ “burden on appeal to demonstrate that the trial court’s judgment was incorrect on any basis supported by the record and the applicable law.... As such, the [Appellants’] failure to properly challenge a finding and ruling of the trial court that would support its judgment ... would be fatal to [their] appeal.” Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App. W.D.1999) (abrogated on other grounds) (internal citation omitted); see also City of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590-91 (Mo.App. W.D.2009) (<HOLDING>); Houston v. Roadway Express, Inc., 133 S.W.3d Holdings: 0: holding that erroneous findings of fact not necessary to support the judgment of the court are not grounds for reversal 1: holding that the statement of specific grounds in a motion for a new trial waives all other grounds not specified 2: holding that where specific grounds for an objection are stated at trial all other grounds are waived and will not be considered for the first time on appeal 3: holding that summary judgment must be affirmed where multiple grounds are asserted and the appellant does not attack all grounds on appeal 4: holding that to establish grounds for reversal an appellant must challenge all grounds on which the trial court ruled against it


Input: any court.” This court con- eludes that section 440(a) expressly repeals all federal court jurisdiction over the deportation orders of the defined class of criminal aliens, including jurisdiction under § 2241. Nevertheless, because the Fifth Circuit said in Williams that the Constitution prevents Congress from suspending the writ of habeas corpus for the class of criminal deportees to which Olvera belongs, 114 F.3d at 84, the court must assume that habeas jurisdiction is constitutionally required in this case despite the language of section 440(a). III. Scope of Review Among the district courts that have found jurisdiction to review deportation orders under § 2241, there has been considerable debate over the proper scope of review. See, e.g., Mbiya v. INS, 930 F.Supp. 609 (N.D.Ga.1996) (<HOLDING>); Mojica v. Reno, 970 F.Supp. 130 Holdings: 0: holding that federal court cannot review claim procedurally defaulted in state court absent showing of either cause and prejudice or a fundamental miscarriage of justice 1: holding that in the case of state procedural default a federal habeas review of the claims is barred unless the prisoner can demonstrate among other things that failure to consider the claims will result in a fundamental miscarriage of justice 2: holding that courts may only review claims for fundamental miscarriage of justice 3: holding that issues raised for the first time on appeal will not be considered absent exceptional circumstances of plain error or fundamental miscarriage of justice 4: holding that fundamental miscarriage of justice standard requires petitioner to make threshold showing of actual innocence


Input: a preponderance of the evidence either that he or she had no knowledge of the illegal activity, or, in the alternative, that he or she did not consent to such activity occurring. United States v. 141st Street Corporation, by Hersh, 911 F.2d 870, 878 (2d Cir.1990). This “innocent owner” defense is an affirmative defense that must be proven by the claimant. United States v. One Parcel of Property, Located at 755 Forest Road, Northford, Conn., 985 F.2d 70, 72 (2d Cir.1993). Whether the claimant must prove absence of actual knowledge of the illegal activity or the more demanding burden of absence of constructive knowledge of the illegal activity is a split issue amongst the circuits. Compare United States v. Four Million, Two Hundred. Fifty-Five Thousand, 762 F.2d 895, 906 (11th Cir.1985) (<HOLDING>) with One Parcel of Property, Located at 755 Holdings: 0: holding plaintiff can prove foreseeability by showing the defendant had actual or constructive knowledge of the assailants violent nature 1: recognizing that duty to warn of dangerous conditions could be based on constructive knowledge of that condition as well as actual knowledge 2: holding that constructive knowledge satisfies the reason to know standard 3: holding that the innocent owner defense hinges upon the claimants actual not constructive knowledge 4: holding stock dividend payable to actual owner not owner of record


Input: Alan Pardofigueroa appeals from the district court’s judgment and 27-month sentence imposed following his guilty-plea conviction to Conspiracy, in violation of 18 U.S.C. § 371, Fraud and Misuse of Documents, in violation of 18 U.S.C. § 1546(a), and False Statements, in violation of 18 U.S.C. § 1001. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Pardofigueroa contends that the district court erred by applying a preponderance of the evidence standard, rather than the beyond a reasonable doubt standard, when determining whether the factual predicate for a sentencing enhancement had been met. This contention is foreclosed by United States v. Kilby, 443 F.3d 1135, 1143 (9th Cir.2006) (<HOLDING>). Pardofigueroa also contends that the district Holdings: 0: holding guidelines to be only advisory 1: holding that the preponderance standard is generally appropriate in guidelines sentencing 2: recognizing that sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard 3: holding that the district court determines the amount of loss under the preponderance of the evidence standard 4: holding that under the advisory guidelines a district court should resolve factual disputes at sentencing by applying the preponderance of the evidence standard


Input: 289, 292 (5th Cir.1981)] or (3) when the government no longer has a mortgage or a lien upon the property in dispute when the suit was filed, [citing Koehler, 153 F.3d at 266-67].” Hussain, 311 F.3d at 629-30. Furthermore, if the complaint or pleading does not set forth with particularity the nature of the government’s interest showing that it has or claims to have a lien or mortgage against the property that is the subject of the suit, the complaint fails to satisfy the conditions necessary to waive the sovereign immunity of the United States and invoke federal jurisdiction. 28 U.S.C. § 2410(b) (“The complaint or pleading shall set forth with particularity the nature of the interest or lien of the United States.”); see also Dahn v. United States, 127 F.3d 1249, 1251 (10th Cir.1997) (<HOLDING>); Macklin v. United States, 300 F.3d 814, 821 Holdings: 0: holding that the united states is liable for interest only in the event of a clear statutory waiver of sovereign immunity 1: holding that a complaint that fails to meet the pleading requirements does not invoke the statutory waiver of sovereign immunity 2: holding that the waiver of sovereign immunity must be clear and unequivocal 3: holding that the ada does not contain a waiver of sovereign immunity and thus does not apply to the federal government 4: holding where party fails to challenge specificity of pleading it waives right to claim that pleading fails to meet legal requirements


Input: to DOJ before the IC’s appointment that she will not recover under the Act. Based on the foregoing, we conclude that Mullins would not have incurred the attorneys’ fees and expenses for which she seeks reimbursement “but for” the requirements of the Act. D. Fees are “Reasonable" under the Act 1. Attorneys’fees As we have often observed, the fee petitioner bear rneys’ fees and expenses and we will review each bill separately to ensure that all items sought are reimbursable under the Act and are reasonable. The January 1993 bill totals $22,322.50 and Mullins subtracts $6,800 for representation prior to IC diGenova’s appointment on December 14, 1992, and $632.50 for research in connection with recovering attorneys’ fees, which is not reimbursable under the Act. See Gadd, 12 F.3d at 257 (<HOLDING>). We find reasonable the remaining fees of Holdings: 0: holding that fees for fees are not reimbursable under 28 usc  593f1 1: holding that bank was entitled to attorney fees on appeal when agreement did not prohibit such fees 2: holding a bankruptcy court is not a court of the united states entitled to waive filing fees pursuant to 28 usc section 1915a 3: holding that a case awarding fees under 42 usc  1988 has no application in a private claim for attorneys fees sounding in mississippi contract law 4: holding that lexis fees are not taxable as costs but reserving ruling on whether such fees are recoverable as attorneys fees


Input: the debtor, who could with impunity demand the return of property repossessed pre-petition informally, realizes that it cannot prevail and thus declines to file an adversary proceeding to recover the property. ORDER Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that Defendant, which repossessed Debtor’s vehicle pre-petition, did not violate the automatic stay by refusing to voluntarily return the vehicle to Debtor after the Chapter 13 case was filed. Therefore, the Clerk is directed to enter judgment in favor of the Defendant. 1 . Of course sometimes creditors are told by debtors or individuals acting on a debtor’s behalf that a case is pending when in fact it has not been filed. See In re Karis, 208 B.R. 913 (Bankr. W.D.Wis.1997) (<HOLDING>). Sometimes this representation is innocent as Holdings: 0: holding a tape of a telephone call was admissible because one party to the call consented to the recording 1: holding that utility customers mailing of a petition did not constitute the filing of the petition as filing was not effectuated until the petition was received by the clerk 2: holding that telephone call from debtors attorney did not constitute notice of bankruptcy filing because petition had not in fact been filed 3: holding that a debtors entitlement to an exemption under  522d1 is determined as of the filing date of  a bankruptcy petition 4: holding pursuant to bankruptcy rule 7004b9 that because the creditor mailed the complaint and summons to the debtors attorney and to the address listed in the debtors bankruptcy petition service of process was sufficient even if the debtors were out of the country and did not actually receive notice of the complaint and summons


Input: parents, they obtained the PTSD diagnosis and the prescription for homebound placement, and they largely refused to cooperate with the ARD committee. Marc’s parents should have cooperated with the ARD committee in addressing the homebound placement issue, the PTSD diagnosis, and the related mistreatment allegations. E. Plaintiffs ADA, Section 1983, and Section 504 claims based on alleged violations of the IDEA occurring between August 13, 2003 and August 13, 2004 fail as a matter of law because Plaintiffs’ IDEA claim has failed. Since Defendants complied with the IDEA during the relevant time period, Plaintiffs cannot prevail on their derivative Section 1983, Section 504, and ADA claims as a matter of law. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 297 (5th Cir.2005) (en banc) (<HOLDING>). Additionally, the individual Defendants are Holdings: 0: recognizing that a school district must be a prevailing party in order to be entitled to attorneys fees under the idea 1: holding in the alternative that plaintiffs establishment clause claims were barred by laches 2: holding that a school district was not required to move a nurse to a students neighborhood school to comply with the idea 3: recognizing that idea is simply not an antidiscrimination statute so that pure discrimination claim was not barred by parents failure to exhaust remedies under idea 4: holding that plaintiffs redundant nonidea claims were barred by issue and claim preclusion where there were administrative findings that the school district complied with the idea


Input: that district court’s claim-by-claim description of the frivolous nature of the plaintiffs’ complaint demonstrated clearly that their “widespread charges of racial discrimination [were leveled] without any regard for the truth ... in order to harass and embarrass the personnel at Fort Bragg”). The third and fourth instances of bad faith were predicated on the district court’s belief that both David and Samuel Sprafldn had offered testimony that “simply was not credible.” We have no doubt that when a party has materially perjured himself, this, standing alone, is sufficient grounds for finding bad faith. See Chambers, 501 U.S. at 46, 111 S.Ct. at 2133 (noting that the “inherent power extends to a full range of litigation abuses); see also Perichak, 715 F.2d at 84-85 & n. 9 (3d Cir.1983) (<HOLDING>); Carrión v. Yeshiva University, 535 F.2d 722 Holdings: 0: holding that even if defendants knew that the company had inventory problems  that fact standing alone does not show that defendants knew that the statements in their prospectus or other representations were materially false or misleading at the time the material statements were made 1: holding that the defendants materially false statements made under oath are having been critical to the success of his case alone enough to support a finding of bad faith 2: holding that in the absence of clear and convincing evidence to the contrary a defendant is bound by statements made under oath during his plea colloquy 3: recognizing that the sixth circuit has folded the absence of bad faith in under the inadvertence prong made the determination of whether there was evidence of a motive or intention to conceal the potential claim critical to a finding of bad faith and has held that in a particular case numerous attempts by the plaintiffs to cure an initial omission provided evidence that the omission was inadvertent not intentional 4: holding that a bad faith claim is a tort


Input: she could not perform the quintessential function of regularly attending work. Cf. Wimbley v. Bolger, 642 F.Supp. 481, 485 (W.D.Tenn.1986) (stating an employee “who does not come to work cannot perform any of his job functions, essential or otherwise”), aff'd, 831 F.2d 298 (6th Cir.1987). Other jurisdictions agree that irregular attendance renders a person unqualified for most types of employment and thus susceptible to legitimate termination. Cf. Carr v. Reno, 23 F.3d 525, 529-30 (D.C.Cir.1994) (affirming district court’s holding that plaintiffs prolonged, frequent, and unpredictable absences rendered her unqualified for any government job because “coming to work regularly” is an “essential function”); Tyndall v. National Educ. Ctrs. Inc. of California, 31 F.3d 209, 213 (4th Cir.1994) (<HOLDING>); Tuttle v. Henry J. Kaiser Co., 921 F.2d 183, Holdings: 0: holding that even though instructor possessed the necessary teaching skills and performed well when she was at work her frequent absences rendered her unable to function effectively as a teacher 1: holding the employee was clearly within the zone of her employment even though not at her work station because she was on the universitys premises the campus 2: holding that allegations that employees supervisors yelled at her told her she was a poor manager and gave her poor evaluations chastised her in front of customers and once required her to work with an injured back were insufficient to state title vii claim 3: holding that because the plaintiffs skills had deteriorated during the period she claims she was paid less than a male employee who performed equal work the plaintiff was not entitled to proceed further under the epa 4: holding that relative to the threat that she posed physically separating tina cortez from her telephone taking her by the arm  escorting her from her home taking the keys to her home and locking the door and  placing her in the locked back seat of a patrol car was excessive force as well as an unlawful seizure under the fourth amendment


Input: Veterans Court, including a challenge to the constitutionality of the NPWE under the Equal Protection and Due Process Clauses of the Fifth Amendment. Id. In January 2014, the Atlanta VA regional office issued a Statement of the Case regarding Payne’s termination and attached instructions for completing an appeal. Payne immediately filed an “emergency motion for the [Veterans] Court to issue an order declaring the ‘signed’ Statement of the Case ... a legal nullity and does not moot the petition for a writ of mandamus full relief stated and requested.” Id. at *2. On January 28, 2014, the Veterans Court denied the petition. Id. Relying on the standard outlined in Cheney v. United States District Court for District of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (<HOLDING>), the Veterans Court noted that the Holdings: 0: holding that a court may grant a writ of mandamus if 1 the petitioner demonstrates that he lacks an adequate alternative 2 the petitioner demonstrates a clear and indisputable right to the writ and 3 the court is convinced that issuing the writ is warranted 1: holding that a trial court had no discretion to enter a writ of replevin after finding that the statutory requirements for issuing the writ had been met even though the statute provided that a circuit court may issue a writ of replevin reasoning that based on the context may implied an imperative obligation 2: holding that common pleas erred in setting aside the writ of execution on the basis that the union erroneously filed a writ of execution instead of filing a writ of mandamus 3: holding that notice of condemnation and availability of a state court injunction writ of mandamus and writ of certiorari in an eminent domain case satisfied due process 4: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances


Input: Hewitt v. State, 242 Md. 111, 113-14, 218 A.2d 19, 20-21 (1966) (specifically holding that a double jeopardy issue may not be raised for the first time on appeal pursuant to then Rule 885); Iozzi v. State, 224 Md. 42, 46, 166 A.2d 257, 260 (1960) (not reaching a claim that the defendant was not allowed his right to counsel when his attorney was not present at a portion of the trial, citing Rule 885 and stating, “[i]n the absence of anything to show a request to the trial court or a ruling thereon, there is nothing before us to consider”) (alteration added); Kirby v. State, 222 Md. 421, 425, 160 A.2d 786, 788 (1960) (stating that “cases almost uniformly hold that the right to a speedy trial ... like other statutory or constitutional rights, may be waived and that it 363, 365-66 (1982) (<HOLDING>); see also Johnson v. State, 138 Md.App. 539, Holdings: 0: recognizing that even constitutional issues may be waived if not properly raised at the trial court level pursuant to rules 885 and 1085 both predecessors to current md rule 8131a 1: holding issues not raised at trial level cannot be argued for the first time on appeal 2: holding that we consider issues not raised at administrative level waived 3: holding that issues not raised in the trial court may not be raised later on appeal 4: holding that exhaustion of issues is waived if not raised by the government


Input: decision that Detective Clark was not entitled to rely in good faith on the warrant issued by the commissioner. Whether a law enforcement officer reasonably relied upon a subsequently invalidated search warrant is a legal question which we review de novo. See United States v. Koerth, 312 F.3d 862, 865 (7th Cir.2002). A. The Foundations and Purpose of the Exclusionary Rule Simply stated, “[t]he exclusionary rule operates to prevent the Government from using evidence seized as the result of an illegal search in a subsequent criminal prosecution.” United States v. McGough, 412 F.3d 1232, 1239 (11th Cir.2005). It has existed, in some form, as part of our constitutional jurisprudence for over one hundred years. See Boyd v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (<HOLDING>). Although commentators have articulated Holdings: 0: holding statute requiring parties in tax suit to take notice of subsequent pleadings was not unconstitutional when city failed to take such notice 1: holding that where it was erroneous for the district court to take judicial notice it certainly cannot be said that such notice was mandatory and therefore ire 201d is inapplicable 2: holding that a notice to produce personal papers was unconstitutional and void and that the inspection by the district attorney of said invoice when produced in obedience to said notice and its admission in evidence by the court were erroneous and unconstitutional proceedings 3: holding that notice to the attorney of record constitutes notice to the petitioner 4: holding that a defendant is not entitled to relief from default judgment because notice to an attorney of filing of motions and orders is constructive notice to the client even when the client did not have actual notice


Input: profanity or vulgarity may constitute sufficient grounds for a denial of unemployment compensation to an individual discharged for using such language, most of the cases in which a claimant’s vulgar or profane language has been held to be a basis for the denial of benefits have involved a combination of factors, of which the claimant’s use of offensive language was only one. Id. at 110 (footnote omitted). A finding of willful misconduct necessarily depends upon the particular circumstances of the case. Here, we must consider the circumstances attending the alleged misconduct to determine whether the words spoken were of such a nature to evince a willful disregard of the employer’s interests and the employee’s duties and obligations. See Israel, 7 Va. App. at 175, 372 S.E.2d at 210-11 (<HOLDING>). Accordingly, our inquiry will focus on “the Holdings: 0: holding that the evidence was sufficient to demonstrate retaliation for activities that occurred two years prior to the termination 1: holding two instances of violating  148 were two offenses because thirty minutes elapsed between the two incidents and in the intervening space of time the defendant had completely calmed down and ceased his criminal activity 2: holding that the evidence supported two separate convictions and punishments for two attempted robberies of two different victims who suffered separate and distinct harms 3: holding that where truck driver had two accidents within two weeks the circumstances failed to demonstrate a willful disregard of employers interests or employees duties and obligations 4: holding that two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences when the defendants were convicted of taking a grandfathers wallet pistol and car and taking a grandsons fishing equipment


Input: interest at the Maturity/Default Rate for all times after the maturity of the notes. II. Balancing the Equities Debtor suggests that this Court balance the equities involved in allowing CBE to calculate its claim using the Maturity/ Default Rate. I rejected the “balancing of the equities” method in Gillikin. See also In re Sublett, 895 F.2d 1381 (11th Cir.1990) (rejecting the “balancing the equities” approach to the extent it contravenes clear language in the Bankruptcy Code). Even if this Court had not rejected that approach, the equities in this case would not justify a different outcome in this case. Debtor is solvent, and any decrease in its interest rate would only benefit the Debtor once it emerges from bankruptcy. Summary of Schedules, Dckt. No. 21. Sublett, 895 F.2d at 1385-86 (<HOLDING>); cf. In re Holmes, 330 B.R. 317, 321 Holdings: 0: holding that nonconsensual oversecured tax claim is entitled to the statutory rate of interest unless the statutory rate constitutes a penalty 1: holding that an oversecured creditor is entitled to postpetition interest if the creditor is oversecured or if the estate proves to be solvent 2: holding that when an oversecured creditor seeks interest on its claim courts apply the interest rate provided for in the contract 3: holding that when a creditor is oversecured solvency is not required for the creditor to be entitled to postpetition interest and fees and granting contractual default interest to the oversecured creditor of approximately 24 4: holding that nonconsensual oversecured creditor shall receive the statutory rate of interest unless it can be characterized as a penalty


Input: essentially assumes a trustee’s role of deciding what information is relevant or material, and thus undercuts the central principles of chapter 7”); Klutchko, 338 B.R. at 568 ("Generally ... it is not for the debtor to determine which assets should be disclosed to creditors.... The debtor’s duty is merely to answer truthfully. It is left to the creditors or parties-in-interest to judge whether that information will aid them or prejudice them.”); Fokkena v. Peterson (In re Peterson), 356 B.R. 468, 478 (Bankr.N.D.Iowa 2006) (stating that debtors have an absolute duty to report whatever interests they hold in property, even if they believe their assets are worthless) (citing Kas-den v. Kasden (In re Kasden), 209 B.R. 239, 243-44 (8th Cir. BAP 1997)). 39 .See Bressler, 387 B.R. at 461-62 (<HOLDING>) (citing Bank of India v. Sapru (In re Sapru), Holdings: 0: holding that a debtors right to strip off a wholly unsecured lien is conditioned on the debtors obtaining confirmation of and performing under a chapter 13 plan that meets all of the statutory requirements rather than on a debtors discharge 1: holding that a retainer agreements general payorwewill quit language was not specific enough to comply with a local rule that required bankruptcy attorneys to represent debtors in adversary proceedings unless the debtors expressly agreed otherwise 2: holding that otherwise immaterial falsehoods or omissions can aggregate into a critical mass substantial enough to bar a debtors discharge 3: holding that a cause of action exists under  523a15 by which a debtors own former divorce attorneys might except from discharge the debtors contractual obligation to them 4: holding that a debt that was the result of debtors fraud could be exempted from discharge under  523a4 when the parties had later entered into a settlement agreement


Input: Beverages & Tobacco, 496 U.S. 18, 51, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). But despite the constitutional requirement that there be a remedy, the Supreme Court expressly noted in Reich v. Collins, 513 U.S. 106, 115 S.Ct. 547, 130 L.Ed.2d 454 (1994), that “the sovereign immunity [that] States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that forum.” Id. at 110, 115 S.Ct. 547 (second emphasis added). To ensure that taxpayers possess an avenue for relief, the Court held that state courts must hear suits to recover taxes unlawfully exacted, the “sovereign immunity [that] States traditionally enjoy in their own courts notwithstanding.” Id.; cf. Alden v. Maine, 527 U.S. 706, 740, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (<HOLDING>). Reasoning analogously, we conclude that the Holdings: 0: holding that in statute authorizing suits against united states limits time period in which such suits may be brought united states retains its sovereign immunity as to any suits brought outside of that time period therefore court does not have subject matter jurisdiction over suit against united states that is barred by statute of limitations 1: holding that congress has power to subject the states to wage and hour regulation 2: holding that congress did not properly abrogate states eleventh amendment immunity from suits under the patent act 3: holding that eleventh amendment bars federal suits against state courts 4: holding that congress cannot subject states to suits in state courts but taking care not to overrule reich


Input: for sum mary judgment that the plaintiff does not have a vested right or property interest in the position of municipal judge. Although in his Original Petition the plaintiff alleges in a conclusory fashion that he was a public employee working pursuant to a contract of employment, the plaintiff fails to allege any facts to indicate that a contract of employment existed and further fails to provide any competent summary judgment evidence to support this allegation. The City of Was-kom’s ordinance provides that the term of office of the municipal judge shall be by appointment of the City Council by a majority vote of the governing body. The City’s ordinance does not appear to create a contract of employment. See Youngblood v. City of Galveston, 920 F.Supp. 10B (S.D.Tex. 1996) (<HOLDING>). The plaintiff does not even allege that the Holdings: 0: 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 1: holding that former municipal judge did not have property interest in continued employment 2: holding that plaintiffs may have a property interest in real property 3: holding that property interest in continued expectation of public employment does not include right to actually occupy position 4: holding an implied covenant of good faith and fair dealing was insufficient to create a property interest in continued employment under montanas statutory scheme for at will employment


Input: (finding objections on hearsay and foundational ground sufficient to preserve a Sixth Amendment claim for appeal because of the close relationship between hearsay and confrontation), aff'd 933 N.E.2d 1271 (Ind.2010). The best practice is for attorneys to make both objections when applicable. The failure to do so in this case is not particularly egregious; because the trial court concluded that the testimony was not hearsay, it seems unlikely that the trial court would have sustained an objection based on the Confrontation Clause. Regardless, we agree with the State that Officer Thompson’s testimony was not “testimonial hearsay,” the type of hearsay barred pursuant to the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (<HOLDING>). Davis described the distinction between Holdings: 0: holding that the admission of testimonial statements against a defendant is unconstitutional when the declarant does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity for crossexamination 1: holding that the confrontation clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for crossexamination 2: holding that the admission of prior testimony that had been subjected to crossexamination violated the confrontation clause because the state did not prove that the witness was unavailable 3: holding that outofcourt statements by witnesses that are testimonial in nature are barred under the confrontation clause unless witnesses are unavailable and the defendant had a prior opportunity to crossexamine them 4: holding the confrontation clause applies only to testimonial statements


Input: Care Servs. v. Dobos, 380 So.2d 516, 518 (Fla.Dist.Ct.App.1980) (referring to rule as the “officious intermeddler doctrine”). In certain circumstances, however, restitution for services performed will be required even though the recipient did not request or voluntarily consent to receive such services. For example, section 116 of the Restatement of Restitution provides: A person who has supplied things or services to another, although acting without the other’s knowledge or consent, is entitled to restitution therefor from the other if (a) he acted unofficiously and with intent to charge therefor, and (b) the things or services were necessary to prevent the other from suffering serious bodily harm or pain, and (c) the person supplying them had no reason to know that 668, 675 (1996) (<HOLDING>). 2. Application of law to facts. The district Holdings: 0: recognizing that a caregiver and patient relationship may be confidential 1: holding that plaintiffs claim that medical providers did not comply with baker act was not subject to medical malpractice statutes ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient the process of complying with the statute does not require medical skill or judgment 2: holding that hospital had claim against patient based on implied contract for reasonable value of services rendered even though patient was not fully compensated by settlement with atfault party medical providers claim rests upon debtorcreditor relationship and cannot be extinguished by doctrine of subrogation 3: holding evidence of apparent authority insufficient where patient sought services of particular doctor rather than services of hospital generally 4: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave


Input: under the ADA. The District Court denied his motion for leave to file a second amended complaint. In September 2011, the District Court granted summary judgment for Cryovac on Spring’s FMLA claims. Spring filed a timely notice of appeal. II. A. State-Law Claims Spring argues that the District Court erred in dismissing his state-law claim for retaliatory discharge. We review the District Court’s grant of a Rule 12(b)(6) motion to dismiss de novo. Marcavage v. Nat'l Park Serv., 666 F.3d 856, 858 (3d Cir.2012). Spring contends that under Pennsylvania law, which recognizes an exception to the at-will employment doctrine for a termination based on filing a workers’ compensation claim, he also has a claim for retaliatory discharge. See Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231, 1232 (1998) (<HOLDING>). The Pennsylvania courts have yet to enumerate Holdings: 0: holding that employee must prove that the sole reason for their discharge was their filing of a workers compensation claim to prevail on a claim of wrongful discharge under marylands workers compensation act 1: holding that because maryland law expressly creates right to file workers compensation claim action exists for wrongful discharge for termination based solely on the filing of a workers compensation claim 2: recognizing a tort action when employee was dismissed for filing a workers compensation claim 3: holding that an atwill employee who alleges retaliatory discharge for the filing of a workers compensation claim has stated a cause of action under pennsylvania law 4: recognizing retaliatory discharge tort implied by the workers compensation act


Input: motion to dismiss. A. Tribal Sovereign Immunity As a threshold matter, we must determine if CNI enjoys tribal-sovereign immu nity. If so, a dismissal for lack of jurisdiction was proper. See Lovely, 570 F.3d at 782 n. 2 (6th Cir.2009) (“[Sovereign immunity is a jurisdictional doctrine----”) (internal quotation marks omitted); cf. Nair v. Oakland County Cmty. Health Auth., 443 F.3d 469, 474 (6th Cir.2006) (“[T]he Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power.”) (internal quotation marks omitted). Moreover, if CNI enjoys tribal-sovereign immunity, we need not address the issues of diversity jurisdiction and federal-question jurisdiction. See Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011 (10th Cir.2007) (<HOLDING>). MBF argues that CNI waived its Holdings: 0: holding that the race of the prosecutor is irrelevant 1: holding that qualified immunity is not merely immunity from damages but also immunity from suit 2: holding that an official capacity suit should be treated as a suit against the entity 3: holding that if property is not property1 of the public entity then the public entity cannot be subject to suit under the dangerous condition waiver 4: holding that if an entity enjoys tribalsovereign immunity federal jurisdiction is otherwise irrelevant and dismissal of the suit is proper


Input: Mexico. On February 6, 2012, Saldana filed a timely petition for review and petition for habeas corpus with this court. II. Discussion A. Jurisdiction Though the parties agree that we have jurisdiction, we must first satisfy ourselves of our own jurisdiction. See, e.g., Ojedar-Terrazas v. Ashcroft, 290 F.3d 292, 294 (5th Cir.2002). This case arises from DHS’s January 17, 2012 reinstatement of the 1999 removal order against Saldana. We treat this appeal as a petition for review of that order of reinstatement. See 8 U.S.C. § 1252(a)(5) (providing that a petition for review with the court of appeal is the “sole and exclusive means for judicial review of an order of removal”). We clearly have jurisdiction over a petition for review of a reinstatement order. Ojeda-Terrazas, 290 F.3d at 295 (<HOLDING>). Under the applicable regulations, Holdings: 0: holding that orders remanding an action to a federal agency are generally not considered final appealable orders 1: holding that court of appeals statutory jurisdiction over final orders of removal extends to reinstatement orders 2: holding that remand orders are also appealable orders under 28 usc  1291 3: recognizing that orders denying motions to reopen are treated as final orders of removal 4: holding that appellate jurisdiction over final orders of removal are limited to claims that have been exhausted before the bia


Input: that because Mr. Firth did not directly appeal the revocation of his probation, the relevant judgment became final on May 20, 2004. See 28 U.S.C. § 2244(d)(1)(A) (mandating that a judgment becomes final for purposes of the limitations period upon “the conclusion of direct review or the expiration of the time for seeking such review”); see also Col. R.App. P. 4(b) (requiring criminal defendants to file a notice of appeal within forty-five days of the entry of the judgment from which they are appealing). We also agree that the limitations period was tolled 75 days later, on August 3, 2004, when Mr. Firth filed his motion for reconsideration, and did not begin to run again until September 28, 2004, when that motion was denied. See Robinson v. Golder, 443 F.3d 718, 721 (10th Cir.2006) (<HOLDING>). Thus, Mr. Firth had 290 days from September Holdings: 0: holding that properly filed application for statecourt discretionary review tolls aedpa limitations period 1: holding that suit filed within six years of assessment tolls the limitation period indefinitely 2: holding that a motion to reconsider filed after the entry of final judgment must be considered a motion to correct error 3: holding that a properly filed motion to reconsider under colo rcrim p 35b tolls the oneyear limitations period 4: holding that a timely motion for reconsideration tolls the statute of limitations even if the motion is procedurally invalid


Input: third factor is satisfied because Argentina will be unable to obtain effective review in a United States court of the Discovery Order through a later appeal of a final judgment. Because the Discovery Order grants NML discovery respecting foreign assets, any future attachment or collection proceeding would be conducted in a foreign court. Argentina would have no further opportunity to challenge the Discovery Order in this or any other United States court. Moreover, depending on the laws of the jurisdictions where any attachable property is located, NML may be able to levy Argentina’s foreign assets directly, without instituting a separate proceeding, rendering the Discovery Order unreviewable by any court. See Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1225 (7th Cir.1993) (<HOLDING>). Finally, because the Discovery Order does not Holdings: 0: holding that an order was interlocutory in nature despite the trial courts certification of the order as a final appealable judgment 1: holding that an order compelling arbitration in an independent proceeding is appealable as a final order because in that context the order compelling arbitration resolves the sole issue before the court 2: holding that where an adversary proceeding continues the order  is no more a final decision than an order denying summary judgment or denying a request for additional discovery the litigation proceeds and the issue will be reviewed if it turns out to make a difference to an order that is independently appealable 3: recognizing that an order denying a motion to modify a family court order where the motion is based on changed factual or legal circumstances is appealable as a special order after final judgment 4: recognizing that an order granting discovery may be a final appealable order where the sole object of a postjudgment proceeding is discovery of the judgment debtors assets and the assets discovered may then be levied without a court order


Input: Given this, the trial court on remand had no discretion to deny United’s Cross-Motion for Summary Judgment which was based on the unreasonableness of Telus-nor’s failure to attend the IMEs. The appellate division was similarly bound by this Court’s opinion in Comprehensive I, as well as by its own prior determination on the issue of “reasonableness.” Accordingly, we find that the appellate division’s decision before us failed to apply the correct law when it failed to follow the law of the case as established in Comprehen sive I. See Juliano, 801 So.2d at 105 (“The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court ... through all subsequent stages of the proceedings.”); see also Dougherty, 23 So.3d at 158 (<HOLDING>). Comprehensive, however, asserts that this Holdings: 0: holding that district courts of appeal have jurisdiction to review by common law certiorari decision of circuit court upholding county court conviction obtained in violation of constitution 1: holding that this court will consider a petition for a writ of certiorari only after the court of appeals has overruled the application for rehearing on the point challenged in the petition implying that the decision by the court of criminal appeals must be final before certiorari review would be available 2: holding that circuit court failed to apply the correct law when it failed to enforce its prior decision after this court issued a denial of certiorari review in morningside civic assn v dougherty 944 so2d 370 fla 3d dca 2006 table 3: holding that review by common law certiorari in district courts of appeal is limited to circuit court decisions constituting denial of procedural due process application of incorrect law or miscarriage of justice 4: holding that this court laeks the authority to review a sentencing courts denial of a downward departure unless the court failed to understand its authority to do so


Input: that did not satisfy the machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age, as explained by Judge Dyk’s thoughtful historical review. See 545 F.3d, at 966-976 (concurring opinion). But times change. Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, “well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U.S., at 195, 101 S. Ct. 1048, 67 L. Ed. 2d 155 (Stevens, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable. See id., at 192-193, 101 S. Ct. 1048, 67 L. Ed. 2d 155 (majority opinion) (<HOLDING>). Section 101 is a “dynamic provision designed Holdings: 0: holding that while the computer program at issue was within the subject matter of copyright the right sought under state law pursuant to a license was not equivalent to the exclusive rights under copyright as such copyright preemption did not apply 1: holding that patents that would  disproportionately tie up the use of the underlying natural laws are invalid for lacking patentable subject matter 2: holding that trial court properly granted motion to dismiss for lack of subject matter jurisdiction because plaintiff had failed to exhaust remedies available through exclusive grievance procedure 3: holding that copying occurs when a computer program is transferred from a permanent storage device to a computers random access memory 4: holding a procedure for molding rubber that included a computer program is within patentable subject matter


Input: in benefits, ineligibility for promotional opportunities, or more formal discipline”). Defendant’s placement of Plaintiff on the County’s Performance Improvement Plan more closely constitutes an adverse employment action. Plaintiff alleges that the “P.I.P. is a tool, which is a step toward dismissal, demotion, suspension, etc.” (Dkt.36-2, p. 22) Defendant placed Plaintiff on the PIP based on its conclusion that Plaintiff was not receptive to counseling regarding her performance. (Dkt. 25, Papin Aff. ¶ 4; Dkt. 27, Balzer Aff. ¶ 3). As a result of her placement on PIP, Plaintiff alleges she was given additional assignments and reporting requirements and increased supervision, although she does not develop the record in this regard. (Dkt.36-2, pp. 22, 43) See Smith, 509 F.Supp.2d at 1203 (<HOLDING>). Plaintiffs “reassignment to Building 41,” Holdings: 0: holding that deprivation of increased compensation as the result of a failure to train constitutes an adverse employment action 1: holding that an employers requirement that an employee comply with a performance improvement plan or face disciplinary action did not constitute adverse employment action 2: holding that reduction in workload is an adverse employment action 3: holding that change in employment assignment that inter alia increased onthejob commuting time was not an adverse employment action 4: holding that plaintiffs placement on a performance improvement plan was an adverse employment action because it resulted in increased workload increased reporting requirements increased supervision and tempo rarity prevented plaintiff from receiving pay raises or bonuses


Input: agree with the State and Water Defense Association that aboriginal water rights must be established by evidence of historical use, and that, under the facts herein, the trial court correctly rejected the argument that the Tribe was entitled to an aboriginal priority date for water for agricultural purposes quantified by a PIA standard, I believe the trial court erred in refusing to recognize that the Tribe had established an aboriginal water right with a priority date of time immemorial to waters appurtenant to the lands included in the area of the reservation for reasonable domestic use. See Adair, 723 F.2d at 1413 (confirming aboriginal title of tribe to water rights for domestic purposes and “to support its hunting, fishing, and gathering lifestyle”); Aamodt, 618 F.Supp. at 1009-10 (<HOLDING>). There is evidence in the record of an actual Holdings: 0: recognizing the right to use water to generate power 1: holding in custody dispute that fathers alleged domestic violence in an earlier marriage must be considered for purposes of as 2524150gi 2: recognizing aboriginal right to use of waters by pueblos for domestic purposes 3: holding that for a domestic corporation the foreign principal place of business does not count 4: recognizing private right of action


Input: seized literature of Khalistan and pamphlets relating to a protest rally, but he testified at the hearing that police found only a small sheet of paper and no pamphlets. We also think the IJ was within the bounds of reasonable adjudication in discounting Kaur’s testimony that she was raped at the police station. The police conduct was heinous if the testimony is believed, and it is understandable that the female petitioner may have been reluctant to discuss such a degrading experience if it occurred. In light of the overall credibility problems with the testimony of Singh and Kaur, however, we cannot say that the IJ was compelled to accept Kaur’s statements about the incident at the police station without some corroboration. See Esaka v. Ashcroft, 397 F.3d 1105, 1110 (8th Cir.2005) (<HOLDING>). In sum, because the record does not compel a Holdings: 0: holding that where testimony is inherently improbable the court may choose to disregard it 1: holding that an adverse credibility determination may be dispositive where the applicant does not produce any corroborating evidence 2: holding that the jury is the judge of the weight and credibility given to witness testimony 3: holding jury as judge of credibility may believe all some or none of the testimony 4: holding that an immigration judge may base a credibility determination on the lack of corroborating evidence if the judge also encounters inconsistencies in testimony contradictory evidence or inherently improbable testimony


Input: obtain other forms of discovery from Bonilla including: a response to a request for admissions, answers to interrogatories, and a response to a request for production. Finally, in September of 1992, Bonilla’s attorney filed a notice of availability with the court stating that Bonilla had just arrived in Miami and was available for deposition, but Apollo never responded to this notice. Taking the totality of these unique circumstances into consideration, it appears that Bonilla did not wilfully disregard the trial court’s orders; instead he made a conscious effort, and displayed a willingness, to comply with the court’s orders, to the extent that he was capable of doing so. The facts clearly indicate that, at the time the trial court ordered Bonilla to appear for 78 (Fla. 3d DCA 1982) (<HOLDING>); Turner v. Anderson, 376 So.2d 899, 901 (Fla. Holdings: 0: holding if a deposition is taken for discovery only  not for use at trial the deposition is not a stage of trial for which the defendant must be present 1: holding that plaintiff need not have submitted requests for admissions by the august 15 discovery motion cutoff date or by the discovery cutoff date of september 15 because requests for admissions are distinct from other general discovery devices and are not subject to discovery cutoff dates 2: holding that because the plaintiff had not perfected service within 120 days of filing the complaint the complaint was subject to mandatory dismissal 3: holding that dismissal for discovery violations was an extreme remedy but warranted under the facts of the case 4: holding that dismissal of the plaintiffs complaint was too drastic a remedy where plaintiff had difficulty getting to the united states from jamaica the deposition was set after the cutoff date for completing discovery and it was only eleven days prior to trial


Input: but only as evidence of the property’s willing-seller/willing-buyer value on the date of the foreclosure sale; By permitting the court to consider evidence that is not typically relevant to a fair-market-value analysis, the statute simply reflects the nature of foreclosure sales, not a new meaning of “fair market value,” The statute expressly requires that the court determine “the fair market value of the real property as of the date of the foreclosure sale,” and the evidence regarding the discounted future sales price is permissible only to “arrive at a current fair market value” on that date. Tex. Prop. Code § 51.003(b)(5). C. “Discounting” the Future Sales Price Although the statute refers to a “future sales price,” it does so using terms that necessarily tie that p mm’n App.1931) (<HOLDING>). As we explained in Jaeger, discounting future Holdings: 0: holding that in computing the present worth of such future payments same should have been discounted to their present worth at the date of judgment at 6 per cent interest per annum 1: holding that courts may not find a per se sixth amendment violation where the defendant was unable to present relevant evidence 2: holding that an award of future salary payments should have been discounted to its present value at the legal rate of interest 3: holding that plaintiff must present such evidence 4: holding that bonds that bore interest at one percent per annum plus on supplemental coupons up to 212 additional interest per annum to the extent net revenues are available were not negotiable instruments because the supplemental coupons indefinite interest rate failed to state a sum certain under section 3106


Input: On August 31, 2000 she reported to the Human Resources Manager, Donald Vincent, that she had been told that John Warren had rhymed her last name with “slut.” In response Vincent immediately had Henry Morrissey (the Area Manufacturing Manager) interview Warren about the remark. He also interviewed two other employees who were present at that meeting; they denied that he made the remark. Also, Cynthia Holm (the Equal Employment Opportunity Commission) interviewed Warren and three other supervisors. All those interviewed denied that Warren had called Cooper-Schut a slut; because of this, no discipline was implemented. Visteon’s response of immediately conducting multiple interviews with the employees involved was a reasonable response, and was not negligent. See Perry, 126 F.3d at 1014-15 (<HOLDING>). Regarding her confrontations with subordinate Holdings: 0: holding that eeoc charge filed by plaintiff more than 180 days after alleged incident of sexual harassment was timely where alleged sexual harassment violation continued as hostile work environment through time of plaintiffs termination 1: holding that managements failure to investigate and report incidents of sexual harassment made the employers response unreasonable 2: holding that an employer must remedy situation of sexual harassment 3: holding an employers response to a complaint of sexual harassment was reasonable when the employer investigated the incident but the alleged harasser and supervising employee denied that the incident occurred 4: holding trial court was proper in admitting a doctors testimony that a delay between the occurrence of an incident of child sexual abuse and the childs revelation of the incident was the usual pattern of conduct for victims of child sexual abuse


Input: the asphalt foreman positions. Clark alleges that he was qualified because he worked on an asphalt crew at APAC for well over a decade and because he acted as temporary foreman for two or three weeks out of the year for the years 1999-2004. APAC disputes that Clark’s experience establishes that he was qualified to be an asphalt foreman. Instead, APAC declares that Clark was not qualified because he was unable to run the electronics on the APAC [paver] — a factor that Sam Head, the individual making the decision to fill the jobs, considered the single most important skill for the jobs. ([Head, Doc 20-2 at] 7-8, 17). Therefore, [Clark] cannot demonstrate that he was qualified for the job. See e.g., Greer [v. Birmingham Beverage Co., Inc.], 291 Fed.Appx. [948] at 945 [ (11th Cir.2008) ] (<HOLDING>). (Doc. 19 at 15-16). Head testified that Clark Holdings: 0: holding the plaintiff failed to make a prima facie case that the defendants failure to promote him was discriminatory where the plaintiff failed to that show he was qualified for the relevant position 1: holding to establish a prima facie case of racial discrimination a plaintiff must show he 1 2: holding that plaintiff could not establish prima facie case of discrimination where plaintiff failed to meet minimum qualifications for job 3: holding that the employers discharge of the plaintiff four months after the plaintiff filed a discrimination claim is insufficient to establish a prima facie case of retaliatory discharge 4: holding that plaintiff could not establish a prima facie case of discrimination because she was unable to present evidence that she was qualified for the position


Input: and prohibit that spouse from realizing any investment income generated by his separate property interest. Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and Post-Judgment Partition Actions: Cu 534, 535 (1996) (noting that QDRO unambiguously gave the non-employee wife a right to receive her portion of the marital share of any early retirement subsidy available to the husband when the husband actually retires); Layne v. Layne, 83 Ohio App.3d 559, 615 N.E.2d 332, 336 (1992) (stating that a non-employed former spouse is entitled to the benefit of any increase in the value of his or her unma-tured proportionate share after divorce attributable to the continued participation of the other spouse in the retirement plan, including earl .App.1994) (<HOLDING>); Greenwood v. Greenwood, 746 A.2d 358, 361-62 Holdings: 0: holding husbands early retirement subsidy was not marital property as a vested right but an option contingent upon his continued employment and eventual qualification for the subsidy in nine years based upon value of the pension frozen at the time of dissolution 1: holding that a nonemployee spouse holds a community marital property interest in pension plan early retirement enhancements because practically by definition the right to retirement benefits that accrues at least in part during marriage before separation underlies any right to an enhancement 2: holding that qdros providing the former wife with future enhancements that were not part of the marital portion of husbands pension plan including future improvements cost of living adjustments and early retirement subsidies conflicted with the final judgment that valued the pension at the time of dissolution 3: holding that nonemployee spouse waived distribution of her husbands early retirement benefits because although both parties were aware of the enhancements the additional benefits were not included in calculation of the pension funds at the time of dissolution 4: recognizing the continued interest of a criminal defendant in frozen property prior to forfeiture


Input: contract balances on any of the above contracts.” D’s App. at 92-93. The Postal Service’s response, dated March 22, 1989, indicated that the Lake Worth contract should not be covered by the agreement and then stated that there should be further discussions on March 24, 1989 if this were unacceptable. D’s App. at 95. By letter dated April 4, 1989, Rodeo’s attorney notified USPS that ”[t]he [draft] mods are acceptable except that one element of the agreement that is important to Rodeo has been left out." D’s App. at 96. That element was that Rodeo would continue to be eligible for contracts with USPS. The modifications were executed on April 5, 1989 after they were amended to reflect this change. See supra note 5. 8 . See ARB, Inc. v. E-Sys., Inc., 663 F.2d 189, 198-99 (D.C.Cir.1980) (<HOLDING>); Schultz v. Dain Corp., 568 F.2d 612, 614 n. 4 Holdings: 0: holding that integration clauses are to be given effect under ucc law and maryland common law 1: holding that article 2 of the ucc preempts common law claims 2: holding that article 4a of the ucc preempts common law claims where they are inconsistent or duplicative 3: holding that acceleration clauses are quite common and are generally enforceable according to their terms 4: holding that intent of parties to choice of law must be given effect


Input: arrest is amenable to “grave abuse” by police officers and prosecutors: “Minor acts of evasion and resistance are sufficiently ambiguous to give rise to honest error, sufficiently elusive to encourage false allegations, and sufficiently commonplace to afford general opportunity for discriminatory enforcement.” Id. Most—though not all—jurisdictions that have adopted statutes based upon the Model Penal Code provision, consistent with the Code’s commentary, construe these statutes to exclude punishment for mere flight. See, e.g., Womack, 847 P.2d at 611-13 (stating that leading police on a chase in Arizona was not resisting arrest under “a common sense application of the ordinary meaning of the statutory language”); see also Howard v. State, 101 P.3d 1054, 1058 (Alaska Ct.App.2004) (<HOLDING>); State v. Crane, 46 Or.App. 547, 612 P.2d 735, Holdings: 0: holding that resisting arrest is lesser offense of assault on an officer 1: holding avoiding arrest is not the same as resisting arrest 2: holding that fleeing from officers and hiding in the woods did not constitute resisting arrest 3: holding that it is equally wellestablished that a suspects mere flight to escape arrest does not violate the resisting arrest statute 4: holding fleeing police officers in a vehicle was a violent felony under the acca


Input: a substantial preliminary showing that Officer McGrew recklessly made false statements and has further shown that the false statements were necessary or material to the magistrate judge’s finding of probable cause, we remand the case for a Franks hearing on Flake’s allegations. B. Downward Departure in Sentencing Flake contends that the federal district court erroneously concluded during the sentencing proceedings that it did not have the legal authority to depart downward on the basis of the six months that Flake had already been held in custody on related state charges. We find no support for Flake’s contention in the record and hold that the district court was aware of and properly exercised its discretion. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1064-65 (9th Cir.2000) (<HOLDING>). C. Right of Allocution Flake contends that he Holdings: 0: holding that we may not review a district courts refusal to grant a downward departure unless the court mistakenly believed that it lacked the authority to grant such a departure 1: holding that the district courts refusal to grant a downward departure was discretionary and not because it believed it lacked the authority to depart where the court assessed the facts of the case and concluded that the departure requested does not seem  to have a basis 2: holding that a district courts statement that there was no basis for a downward departure did not indicate that it believed it lacked authority 3: holding that the district court was not required to state affirmatively on the record that it knew it possessed the authority to depart downward 4: holding that the district courts denial of a downward departure was an exercise of discretion and therefore not reviewable


Input: other equipment. 45 U.S.C. § 51. “FELA is liberally construed, and its language regarding causation is as broad as could be framed.” Pitter v. Metro-N. Commuter R.R., 826 F.Supp.2d 612, 615 (S.D.N.Y.2011) (citing CSX Transp., Inc. v. McBride, — U.S. -, 131 S.Ct. 2630, 2636,180 L.Ed.2d 637 (2011); Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)) (internal quotation marks omitted). Accordingly, “the United States Supreme Court has interpreted FELA as prescribing a relaxed standard of causation that departs from the ordinary proximate cause requirement of common law negligence.” Id. (citations and internal quotation marks omitted); see also Corsale v. Delaware & Hudson Ry. Co., 1:08-CV-572 GLS/RFT, 2010 WL 3907827, at *3 (N.D.N.Y. Sept. 30, 2010) (<HOLDING>) (quoting Marchica v. Long Island R.R. Co., 31 Holdings: 0: recognizing that the federal pleading standard is a less stringent standard than the delaware pleading standard 1: recognizing that in an fela case the traditional concept of proximate cause is supplanted by the less stringent standard that there be some causal relation no matter how slight between the injury and the railroads breach of duty 2: holding that a physicians negligence need only be a proximate cause not the proximate cause of plaintiffs injury 3: holding proximate cause required for claim of breach of special duty 4: holding that negligence must be the proximate cause of injury


Input: so accommodating. See, e.g., 11 U.S.C. § 327(a) (“... the trustee, with the court’s approval, may employ ...”); 11 U.S.C. § 363(b) (“The trustee, after notice and a hearing, may use, sell, or lease ... ”); and 11 U.S.C. § 365(a) (“... the trustee, subject to the court’s approval, may assume or reject ... ”). As a consequence, courts have been left in these many instances to figure out for themselves what they are to consider. Their response, though, has frequently been limited to only the adoption of some vague standard that in turn is exemplified by some equally vague phrase. Take, for example, the different measures that courts have offered in connection with Section 363(b) sales. Section 363(b)(1) of the Bankruptcy Code governs the present dispute and provides (Bankr.D.Del.1987) (<HOLDING>); In re Charlesbank Laundry Co., 37 B.R. 20, 22 Holdings: 0: holding that the duty of good faith and fair dealing is a contractual duty 1: holding that duty of good faith and fair dealing did not extend to thirdparty claimant 2: holding that benefiting fiduciary must show he acted in good faith and that transactions were fair and equitable 3: holding that a sale must be both fair and reasonable in price and made in good faith 4: holding that the transaction must be fair and equitable and in good faith


Input: bank account. Asked about that during his deposition, Fisher testified that he did so in part because he was concerned about possible garnishment for child support that he later learned had already been collected out of a tax refund. Despite Fisher’s abandonment of his bank account during this period, the bankruptcy court specifically found that the transfers to Brennan both before and after November 2002 were in fact used to pay the debtor’s share of the ongoing expenses of maintaining them combined household. It was not clear error for the bankruptcy court to conclude that these monetary transfers were not made with actual intent to hinder, delay, or defraud any of Fisher’s creditors. See Bennett & Kahnveiler Assocs. v. Rainer (In re Rainer), 132 B.R. 728, 733 (N.D.Ill.1991) (<HOLDING>); Glaser v. Glaser (In re Glaser), 49 B.R. Holdings: 0: holding that actual intent to defraud is not necessary to finding of constructive fraud 1: holding that  506a does not require or permit a reduction in the creditors secured claim to account for purely hypothetical costs of sale of chapter 13 debtors residence 2: holding that the statute requires actual intent to hinder delay or defraud creditors or the trustee constructive intent to defraud does not suffice 3: holding that although there was evidence the defendant transferred or caused to be transferred more money to the debtor than the debtor transferred to the defendant there was legally sufficient evidence to support the jurys finding of actual fraud under section 24005a1 and b because the badges of fraud showed the debtors intent to hinder delay or defraud creditors 4: holding that debtors depositing of funds into spouses separate account did not establish actual intent to hinder delay or defraud creditors for purposes of denial of discharge under chapter 7


Input: while exclusion of present claimants appears to have limited the opposition, it did not completely eliminate it. 14 . See Koniak, Feasting, supra note 4, at 1058; Crampton, supra note 4, at 829-30. 15 .In addition, the settlement’s silence regarding the actual compensation that claimants can expect — other than various caps and limitations on recovery — makes it difficult for class members and courts to evaluate the settlement. That lack of information might be one of the reasons that the intervenors chose not to attack the settlement’s substantive fairness on appeal. 16 . The Ninth Circuit has held that a class action certified under rule 23(b)(1) and (b)(2) cannot bind absent plaintiffs unless they are allowed to opt out. Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir.1992) (<HOLDING>), cert. dismissed as improvidently granted, 511 Holdings: 0: holding that a district of columbia consumer protection statute that authorized representative actions and did not reference class action requirements or mandate class certification was a separate and distinct procedural vehicle from a class action and thus did not constitute a class action under cafa 1: holding that the right of all putative members of a proposed class in an action filed pursuant to kansass class action rule of civil procedure to file a separate action is preserved pending the determination of whether the initial case shall be maintained as a class action 2: holding that a class action judgment awarding money damages will not bind an absent plaintiff without adequate notice 3: holding that a subsequent action was not barred because the initial court did not have jurisdiction over the claim 4: holding that absent plaintiffs were not bound by a rule 23blb2 class action for money damages because the original class action court did not have personal jurisdiction over the plaintiffs and did not provide them with an optout right