Input: Cir.1966)). The Court does not specifically limit the rule to admi ralty cases, see id. at 10, 92 S.Ct. 1907, and the Restatement of the Conflict of Laws supports the application to mandatory forum-selection clauses in contracts, except in limited circumstances such as where the application would be unfair or unreasonable. See Restatement (Second) of the Conflict of Laws, 2d § 80 cmt. c (1988 Supp.). Furthermore, the same legal concerns once relevant only to admiralty matters are now commonplace in other international ventures, especially those involving the type of electronic communication and computer integration involved in this dispute. The M/S Bremen rule applies soundly to the contract between Evolution and Koninklijke. See also Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990) (<HOLDING>). 11 . A court's discretion to apply the Holdings: 0: holding that forum selection clause applied to tort claims that arose out of a contractual relationship and noting that if forum selection clauses are to be enforced as a matter of public policy that same public policy required that they not be defeated by artful pleadings of tort claims  internal citation omitted 1: holding that in a diversity action a federal court must apply the law of the forum state 2: holding enforceable forum selection clauses in arbitration agreements 3: holding in contractual action that ms bremen controls the enforceability of forum selection clauses in diversity cases 4: holding order dismissing action without prejudice based on contractual forum selection clause is final and appealable because it terminates the litigation in the plaintiffs chosen forum


Input: the psychological evaluation and home study, obtain documentation of their completion, and translate the results. CYFD also argues that it sought the Consulate’s assistance in using the Consulate’s mail system to facilitate Father’s communication with Child and that CYFD for nine months at the time CYFD moved for termination, and CYFD ended its contact with Father less than twelve months after CYFD took custody of Child. This time period expired well before the fifteen-month period of time-limited reunification services established by ASF A. We acknowledge “CYFD’s duty to expeditiously handle [termination] cases,” id., but its actions suggest that it did not properly assist Father in ameliorating the causes and conditions of Child’s neglect. See Natural Mother, 1981-NMCA-103, ¶ 14 (<HOLDING>). We therefore conclude that substantial Holdings: 0: holding preparation and administration of service plan showed that department made reasonable efforts at reunification 1: holding the bad faith rationale inapplicable given that the defendants acted in good faith in appealing the case and in raising defenses to the plaintiffs claims 2: holding that the district court should consider the totality of the circumstances in determining whether the patentee acted in subjective bad faith and should consider whether circumstantial evidence would support an inference of bad faith 3: holding that the human services department failed to make reasonable efforts and acted in bad faith when it disregarded the mothers efforts and rejected a favorable home study 4: holding that in case where child was removed from mothers care and placed in the custody of the cabarrus county department of social services under north carolina law the reasonable efforts and best interest determinations are conclusions of law because they require the exercise of judgment


Input: have investigated his own case prior to filing suit. Ver-kin, 784 S.W.2d at 95-96. Farmers denied Perrotta’s claim a year and a half before Perrotta filed this suit. A March 1999 scheduling order afforded notice to both parties that trial of the contractual claims was set for November 8, 1999. Additionally, the trial court’s denial of an agreed motion for continuance, on September 13, 1999, alerted Perrotta to the unlikelihood •that the November trial date would be continued. This case had been on file for over seven months when Farmers filed its summary judgment motion, and the hearing on the motion took place nineteen days before the scheduled trial date. Hence, the length of time this case had been on file does not suggest an abuse of discretion. Cf. Levinthal, 902 S.W.2d 508, 512 (<HOLDING>). Perrotta asserted in his motion for Holdings: 0: holding trial court abused its discretion when case had been on file for only three months the discovery sought was material to the plaintiffs claims and the plaintiff exercised due diligence in obtaining discovery 1: holding that the trial court abused its discretion in determining that adequate time for discovery had passed because movant successfully resisted nonmovants attempts to obtain discovery 2: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 3: holding that district court did not abuse its discretion by denying motion to extend discovery where no effort was made to explain why the requested discovery could not have taken place within the original discovery period 4: holding that the trial court abused its discretion by entering a dismissal where the plaintiffs were at sea when the trial court granted its discovery order and were therefore unavailable to be renoticed for their depositions


Input: Based on the presumption that an owner is familiar with his property and its value, the Property Owner Rule is an exception to the requirement that a witness must otherwise establish his qualifications to express an opinion on land values. Under the Rule, an owner’s valuation testimony fulfills the same role that expert testimony does. See, e.g., Harris Cnty. Appraisal Dist. v. Riverway Holdings, L.P., No. 14-09-00786-CV, 2011 WL 529466, at *5, 2011 Tex.App. LEXIS 1047, at *13 (Tex.App.-Houston.[14th Dist.] Feb. 15, 2011, pet. denied) (observing that the Property Owner Rule “treats valuation testimony from a property owner as the functional equivalent of expert valuation testimony insofar as the owner’s own property is concerned”); cf. Fed.R.Evid. 702 advisory committee’s note (<HOLDING>). Like expert testimony, landowner valuation Holdings: 0: holding that the prosecution could not retain as a testifying expert for trial a nontestifying expert the defendant had previously retained 1: holding that public policy militates against a judge testifying as an expert witness for one of the parties 2: holding that material for witnesses need not be produced to defendant where the witnesses were not called as government witnesses at trial 3: holding any error in admitting testimony of expert witness was harmless because it was cumulative of same testimony given by six other expert witnesses who testified at trial 4: holding that expert testimony rule includes  skilled witnesses such as  landowners testifying to land values


Input: Rather, the jury was restricted to answering three questions relating to intent, provocation and future dangerousness. Id. The Court found that Penry’s “mitigating evidence of mental retardation and childhood abuse ha[d] relevance to his moral culpability beyond the scope” of the three questions posed to the jury. Id. at 322, 109 S.Ct. 2934. Thus, the jury instructions were unconstitutional because they precluded the jury from acting upon the mitigating evidence Penry introduced. Id. at 319-22, 109 S.Ct. 2934. The Supreme Court noted that, under Lockett and Eddings, the “sentencer must ... be able to consider and give effect to that evidence in imposing sentence.” Id. at 319, 109 S.Ct. 2934; see also Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry IP) (<HOLDING>). When considering challenges for cause, a Holdings: 0: holding that the sentencing procedure was inadequate in failing to allow jury to give mitigating effect to defendants mental retardation and abusive background 1: holding that the sentencing structure allowed the jury to give mitigating effect to petitioners prison record 2: holding that the key under pewy i  is that the jury be able to consider and give effect to a defendants mitigating evidence in imposing sentence 3: holding that the trier of fact must be allowed to consider and give effect to all relevant mitigating evidence 4: holding that a defendants sentence is controlled by the law in effect at the time he committed the offense


Input: insurance carriers mentioned in section 14 are the confidential communications with Horizon’s legal counsel and Horizon’s insurance carriers referred to in section 3.10. Under the plain meaning of the contract between Aon and Horizon, Aon is not Horizon’s agent except when Aon communicates with Horizon’s legal counsel or passes on these communications with counsel to Horizon’s insurance carriers. However, relative to the alleged acts or omissions at issue in this case, Horizon’s claims ai*e not based on any such communications. Therefore, we conclude that Aon was not acting as Horizon’s agent under the unambiguous language of the Agreement. See Environmental Procedures, Inc. v. Guidry, 282 S.W.3d 602, 626-29, 2009 WL 237063, at *16-18 (Tex.App.-Houston [14th Dist.] 2009, no pet. h.) (<HOLDING>); Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) Holdings: 0: holding there was no evidence to support the existence of any alleged fiduciary duty 1: holding that an attorney who breaches a fiduciary duty to a client forfeits his right to compensation without any requirement that the client prove actual harm 2: holding that broker owed no fiduciary duty to client as a matter of law 3: holding law enforcement owed duty similar to that owed by dshs under rcw 2644050 4: holding that relationship between executor and estates beneficiaries is one that gives rise to fiduciary duty as matter of law


Input: this reasoning is flawed. “Young does not apply if, although the action is nominally against individual officers, the state is the real, substantial party in interest and the suit in fact is against the state.” Id. at 506. Lucas names no individual officers. The Ex Parte Young exception applies only in actions against individual state officers, and not to state agencies. See id. Therefore, the Ex Parte Young exception to Eleventh Amendment immunity is inapplicable here, thus barring action against the Board. For the foregoing reasons, we will AFFIRM the dismissal of the declaratory judgment by the District Court. 1 . On appeal, Lucas cites two exceptions to the doctrine of Ex Parte Young. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (<HOLDING>); Seminole Tribe of Florida v. Florida, 517 Holdings: 0: holding a suit against an agency of the state is a suit against the state 1: holding that while the fourteenth amendment is directed against state action and not private action the state action requirement is met in a civil action where state law is applied whether by statute or common law 2: holding that a damages suit against a state officer in his official capacity was barred because it was functionally a suit against the state 3: holding that an action cannot be maintained under young in unique circumstances where the suit against the state officer affects an essential attribute of state sovereignty in a manner that the action must be understood as one against the state 4: holding that an action against an officer was not an action against the state because the relief sought would not take away any property of the state or fasten a lien on it or interfere with the disposition of funds in the treasury


Input: it fails to pay its employees promptly, see Biggs v. Wilson, 828 F.Supp. 774, 780 (E.D.Cal.1991), aff'd, 1 F.3d 1537 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 902, 127 L.Ed.2d 94 (1994), any subsequent failure in this regard could not constitute an action taken under an objectively reasonable belief that the State was in compliance with the FLSA. An employer’s failure to heed administrative rulemaking or precedent with respect to the FLSA deprives the employer of the good faith defense. See, e.g., Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir.1987) (in view of Department of Labor regulation, the City of Macon could not reasonably believe that its mass transit system employees were excluded from FLSA requirements); Richard v. Marriott Corp., 549 F.2d 303, 306 (4th Cir.) (<HOLDING>), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 Holdings: 0: holding that defendants answer sufficiently encapsulated the elements of an affirmative defense to have put plaintiff on notice that defendant intended to rely on it 1: holding that the plaintiff did not establish a waiver where the defendants answer had put the plaintiff on notice of an arbitration defense 2: holding that widely circulated 1974 opinion letter of the wage and hour administrator which apparently was not addressed specifically to defendant put defendant on notice of proper procedure for crediting tips against the minimum wage depriving defendant of ability to assert good faith defense to liquidated damages 3: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 4: holding that filing of litigation against the same defendant put a plaintiff on inquiry notice of the probability of fraud with another transaction involving the defendant where the complaints in both lawsuits involved similar allegations that defendant failed to disclose its inadequate loss reserves and did not sufficiently monitor its operations


Input: a murder is heinous or depraved. 135 Ariz. 42, 52-53, 659 P.2d 1, 11-12 (1983). Three years later, we noted that “[i]n addition to th[ose] five factors ... we have also found that depravity is indicated where defendant admitted he committed the murder to prevent the victim from testifying against him concerning a felony that occurred contemporaneously with the murder.” State v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (citing State v. Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67 (1984)); see also State v. Stanley, 167 Ariz. 519, 529, 809 P.2d 944, 954 (1991) (killing five-year-old daughter “for no reason other than to eliminate her as a witness” to her mother’s murder supports finding of depravity); State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655, 661 (1984) (<HOLDING>). ¶ 28 In State v. King, although finding that Holdings: 0: recognizing witness elimination as supporting finding of heinousness or depravity 1: holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand 2: holding that the trial courts admonition of a witness even though detailed and strongly stated did not coerce the witness because the court did not threaten or badger the witness and the court provided the witness with her own counsel to ensure that the decision was voluntary 3: holding that promises made by the prosecution to a witness in exchange for that witness testimony relate directly to the credibility of the witness 4: recognizing that informing the jury that testifying witness has agreed to cooperate with the government is a doubleedged sword as the existence of such agreement may suggest either that the witness will testify in accordance with the governments wishes regardless of the truth or that the witness will not he under threat of revocation of the agreement should the witness commit perjury


Input: rule that where the record is sufficient to allow appellate review of a claim, the failure to raise that claim on appeal precludes subsequent collateral review of the claim, applies to bar collateral review where the facts underlying an ineffective assistance claim appear on the record. See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 491 N.E.2d 676 (N.Y.1986); People v. Jossiah, 2 A.D.3d 877, 877, 769 N.Y.S.2d 743 (App.Div.2d Dept.2003); People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932 (App.Div. 1st Dept.1990). Federal courts in turn have denied habe-as review on the basis of similar state court rulings that ineffective assistance claims were procedurally barred by C.P.L. § 440.10(2)(c). See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997) (<HOLDING>); Witt v. Walker, No. 92 CIV.2085(MBM), 1993 WL Holdings: 0: holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims 1: holding that the failure of defense counsel to object to erroneous punishment charge authorizing an illegal sentence is ineffective assistance of counsel 2: holding where defendant challenged jury instruction and also claimed ineffective assistance of counsel based upon his counsels failure to object to instruction because we find no error in the instructions defendants claim for ineffective assistance of counsel must also be rejected 3: holding that cpl  440102c was adequate and independent state ground to deny ineffective assistance of trial counsel based on failure to object to jury charge 4: holding that failure to object to admissible evidence was not ineffective assistance of counsel


Input: argues that because the suicide exclusion in the supplemental policy lacks the specific phrase “whether sane or insane” it is not a valid defense to coverage. PL’s Mem in Supp. at 19. ERISA has no bearing on this question of validity as suicide exclusions fall under the so-called “insurance exception” to ERISA preemption and accordingly are governed by state law. See Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 742 n.18, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (“Nearly every court that has addressed the question has concluded that laws regulating the substantive content of insurance contracts are laws that regulate insurance and thus are within the scope of the insurance savings clause.”); Hoeflicker v. Cent. States. Se. & Sw. Areas Health Welfare Fund, 644 F.Supp. 195, 199 (W.D.Mo.1986) (<HOLDING>). Because no Virginia case has directly Holdings: 0: holding that a law which regulates what terms insurance companies can place in their policies regulates insurance companies 1: holding that a suicide exclusion regulates insurance and therefore falls within the insurance savings clause 2: holding that plaintiff could recover medical fees not actually paid by the insurance company pursuant to an insurance contract 3: holding that notice and a hearing were required before the commissioner of insurance could require an insurance company to change its definition of at fault in order to secure approval of an increase in insurance rates 4: holding that a policy with an excess other insurance clause provides no coverage until a policy with a pro rata other insurance clause is exhausted


Input: argue that their claim for fraud did not accrue until at least September 25, 1992, the date of the consent judgment for civil forfeiture. Plaintiffs filed their complaint in state court on September 23, 1998. Under Michigan law, a cause of action accrues when the plaintiff can allege each element of the asserted claim. Moll v. Abbott Labs., 444 Mich. 1, 506 N.W.2d 816, 824 (Mich.1993). Further, Michigan courts apply the discovery rule, whereby a claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered, an injury and causal connection between his injury and the defendant’s conduct. Id. (discussing discovery rule in the context of a products liability action); Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236-38 (6th Cir.1992) (<HOLDING>). In the instant case, the record suggests that Holdings: 0: recognizing applicability of discovery rule 1: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 2: holding that the time of discovery of fraud is not a proper matter for summary judgment 3: recognizing that the heck deferred accrual rule applies to fourteenth amendment equal protection claims 4: holding that discovery accrual rule applies to causes of action under michigan law for fraud


Input: re UAL Corp.), 346 B.R. 456, 467 (Bankr.N.D.Ill.2006) (emphasis in original, citations omitted) (denying enforcement of cross-default provision in lease of airport terminal space and separate agreement to make payments on certain bonds). Just as the cum onere rule prevents the estate from avoiding obligations that are an integral part of an assumed agreement, so the cross-default rule prevents the nondebtor party from imposing on the estate the costs of substantially unrelated agreements. Id. at 468 n. 11. Shaw argues that the Offset Provision is virtually indistinguishable from cross-default clauses which have been held unenforceable in other contexts. See, e.g., EBG Midtown S. Corp. v. McLaren/Hart Envt’l Eng’g Corp. (In re Sanshoe Worldwide Corp.), 139 B.R. 585, 597 (S.D.N.Y.1992) (<HOLDING>), aff'd, 993 F.2d 300 (2d Cir.1993); In re Holdings: 0: holding that a covenant not to compete for two years was enforceable 1: holding that crossdefault provision of two leases of separate floors was not enforceable and rejection of one lease did not prohibit assignment of the other 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 the damage for tenancy at sufferance during the holdover period was the monthly rent under the lease versus the apartments fair market value because the lease contained a provision requiring lease payments beyond the lease term 4: holding that a leases waiver of trial by jury for any matters whatsoever arising out of or in any way connected with this lease did not extend to a tort claim


Input: it construed the claim. The court will address these arguments in turn, and then will turn to whether there was substantial evidence presented at trial to support the jury’s verdict. The court finds Honeywell’s argument that Sundstrand’s evidence was legally insufficient to support a conclusion of non-infringement to be unpersuasive. Even considering that Shinskey said at one point that, “I believe that claim C and claim D must both apply at the same time,” Tr. 1407-08, this does not render Sundstrand’s entire case legally insufficient. Although Shinskey may have made this statement, it is clear that his opinion as to why the APS 3200 did not literally infringe each element of Claim 4 of the ’194 patent did not depend on this statement. But see LNP Eng’g Plastics, 77 F.Supp.2d at 549 (<HOLDING>). Specifically, before making this statement, Holdings: 0: holding that a patentee was entitled to jmol where the thrust of the defendants noninfringement argument was that it did not infringe the patents at issue because it was practicing the prior art 1: holding that because the appellant did not present to the administrative agency the argument it raised before this court the issue was not preserved and holding that even if preserved the argument failed 2: holding that despite the merits of the argument the appellant raised on appeal the issue was not preserved for judicial review because it was not raised before the administrative agency 3: holding a prior case was not precedent on an issue when the issue was not contested 4: holding the prosecutors argument if it was there they can bring it to you was not an improper jury argument


Input: the full retirement benefits, once he retired, and thus denying his former wife her twenty percent interest in those benefits. Id. Similarly, the record shows Mary Blomdahl’s ninety percent interest in Russell Blomdahl’s retirement benefits was awarded by the parties’ 1993 divorce judgment and was not made contingent upon obtaining a QDRO. “A QDRO is a judgment, decree, or order, relating to child support, spousal support, or marital property rights, which creates or recognizes the existence of an alternate payee’s right to receive all or a portion of the benefits payable with respect to a participant under a plan.” Id. The ultimate responsibility of the entry of a necessary QDRO lies with the trial court, not the parties. Fry v. Fry, 18 Neb.App. 75, 775 N.W.2d 438, 444 (2009) (<HOLDING>); see also 2 Equit. Distrib. of Property 3d § Holdings: 0: holding that the jurisdiction of the divorce court with regard to support and maintenance is statutorily determined unless otherwise provided by agreement incorporated into the divorce decree 1: holding the ultimate responsibility that a proper divorce decree is entered and for entry of a qdro if the court determines the situation so requires rests upon the trial court 2: holding a motion to revise an enrolled divorce decree because of a discrepancy between the separation agreement and the decree filed more than 5 years after entry of the enrolled decree was properly denied 3: holding that the trial court in a declaratory judgment action abuses its discretion when it determines any of the ultimate facts upon which recovery is predicated in the underlying case 4: holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce


Input: Pressure is secondary when its target is some employer other than the one engaged in a labor dispute with the union applying the pressure. To make this distinction, courts inquire into the “object” of a union’s activity. If “the object of the union’s conduct, taken as a whole, is to bring indirect pressure on the primary employer by involving neutral or secondary employers in the dispute, the conduct is secondary and prohibited.” Abreen Corp. v. Laborers’ Int’l Union, 709 F.2d 748, 754-55 (1st Cir.1983). A plaintiff need not prove that the union’s sole or primary object is to employ secondary pressure, only that one of its objects is the use of secondary pressure. See Pye v. Teamsters Local Union No. 122, 61 F.3d 1013, 1023 (1st Cir.1995); see also Abreen Corp., 709 F.2d at 755 (<HOLDING>). Intent, therefore, is the first necessary Holdings: 0: holding that plain tiff must show that the secondary pressure is not merely incidental  to the pressure imposed on the primary employer 1: holding that new evidence must be evidence that is not merely cumulative 2: holding that government must merely show that defendant knew that it was a bank that he intended to influence 3: holding that if the plaintiff makes out a prima facie case of age discrimination the employer must show that the discharge was based on reasonable factors other than age  and if the employer meets that burden the plaintiff must show that age was a determining factor in the discharge 4: holding a parsonage taxable where the use of the property to accomplish religious purposes was only incidental or secondary to the primary purpose of providing a residence for the pastor and his family


Input: in first degree assault cases. In its discussion, the court held that first, second, and third degree assault are all general intent crimes, meaning that the actor need only intend the assault, not the injury which results. In State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989), an appeal of the defendant’s first degree assault conviction, the court rejected the defend ant’s claim that the evidence was insufficient to sustain the conviction because the defendant said he did not intend to cause serious bodily injury. Similarly, Parks claims that he did not intend to hurt the baby or break his leg. The Williams court said that the assault statutes prohibit conduct consisting of acts which cause injury of various seriousness. See, also, State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981) (<HOLDING>). The assault statutes, Neb. Rev. Stat. §§ Holdings: 0: holding that assault with dangerous weapon is general intent crime and that it is only necessary to prove that defendant did act of injuring another with dangerous instrument in intentional manner 1: holding that separate sentences for aggravated assault with a deadly weapon and with intent to rob were barred 2: holding that for purposes of the aggravated assault statute if the instrument used is a firearm as defined by section 7900016 then that instrument is a deadly weapon as a matter of law  regardless of whether it is loaded or capable of being fired and holding that for purposes of the aggravated assault statute if the instrument is not a firearm then courts are to apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator in determining whether the instrument is a deadly weapon 3: holding that possession of a weapon is not in an of itself a crime 4: holding that mere possession of a dangerous weapon is insufficient to support a charge of robbery with a dangerous weapon


Input: time in their reply papers that all claims against them under the Fifth Amendment must be dismissed and that Plaintiffs § 1983 claim in Count 11 of the Complaint should be dismissed as against Doe 1 because he is not a final policy maker for the City. The purpose of reply papers is to “address new material issues raised in the opposition papers so as to avoid giving unfair advantage to the answering party.” Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-227 (2d Cir.2000). Accordingly, the court is within its discretion to disregard such arguments submitted with Defendant’s reply papers. See Illinois Nat. Ins. Co. v. Banc One Acceptance Corp., No. 05-CV-1260, 2008 WL 5423262, at *6 (N.D.N.Y. Dec. 29, 2008) (citing Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.1993) (<HOLDING>)). Nonetheless, because Plaintiff is not Holdings: 0: holding that arguments raised for the first time in the reply briefs on appeal were deemed waived 1: holding a party waives an argument made for the first time on reply 2: holding that arguments raised for the first time in a reply brief are forfeited 3: holding that we do not consider arguments raised for the first time in a reply brief 4: holding that arguments cannot be made for the first time in reply papers


Input: are no cases in this circuit holding that a defendant is eligible for the safety valve reduction under these circumstances, and we decline to extend other circuits’ precedents here. Compare United States v. Sherpa, 110 F.3d 656, 660-62 (9th Cir.1996) with United States v. Reynoso, 239 F.3d 143, 149-50 (2d Cir.2000). Our case law makes clear that the burden is on the defendant to prove his eligibility for the safety valve reduction. United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir.1996). With the record before this court, we find that Moreno-Gonzalez has failed to meet that burden, and that the district court finding that he did not provide truthful information was not clearly erroneous in light of the jury verdict. See United States v. Ridgeway, 321 F.3d 512, 516 (5th Cir.2003) (<HOLDING>). CONCLUSION While a jury could have found the Holdings: 0: holding that findings of fact are reviewed for clear error 1: holding that a district courts determination as to the applicability of a privilege is reviewed for clear error 2: holding that factual findings in sentencing context are reviewed for clear error 3: holding that a determination as to a defendants credibility for a safety valve reduction is a factual finding that is reviewed for clear error 4: holding that the district courts good faith finding is reviewed for clear error


Input: not challenging the manner in which the Commission promulgated the Rules, the legality of the Rules in terms of US West’s supposed contractual rights, or the facial validity of the Rules. Instead, US West argues that the Commis sion applied the rules unlawfully because, in failing to require fair value rate base determinations from the Competitors, it violated express provisions of the Arizona Constitution. In addition, US West argues that the Commission acted unconstitutionally by treating the Competitors differently than it treated US West. Thus, the validity of the Commission’s decisions was “directly placed in issue” by the results of its actions in implementing the Rules, not by its promulgation of them. Cf. JV-132324 v. Superior Court, 181 Ariz. 337, 344, 890 P.2d 632, 639 (1995) (<HOLDING>). Therefore, US West’s appeal is not an Holdings: 0: holding that the validity of an administrative order is properly before the court when it has been directly placed in issue 1: holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it 2: holding that an issue first argued in a reply brief is not properly before a court of appeals 3: holding that the burden is on the defendant when the validity of the warrant is challenged 4: holding issue not properly before the appellate court where appellant fails to demonstrate where in the record an issue was raised in the district court


Input: reasonable regulations, to process for witnesses .... ” State v. Wilcox, 21 S.D. 532, 114 N.W. 687 (1908) (emphasis added). [¶ 17.] Crawford cites Washington v. Texas in support of his argument that his right to compulsory process was violated. 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). In Washington, the United States Supreme Court decided the defendant’s right to compulsory process was denied because the State arbitrarily denied him the right to have a witness testify who had relevant and material testimony. Id. See United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S.Ct. 3440, 3449-50, 73 L.Ed.2d 1193 (1982) (the government may not deport witnesses who have material and relevant testimony); Fountaine v. State, 460 So.2d 553, 555 (Fla.App.2d Dist.1984) (<HOLDING>), petition for review denied, 464 So.2d 554 Holdings: 0: holding that the defendants due process rights were violated when the trial judge singled out the only defense witness and indicated to that witness that he expected the witness to he and would personally ensure that the witness was prosecuted for perjury and thereby effectively drove that witness off the stand 1: holding that despite district courts restriction on crossexamination of government witness concerning the sentencing benefits he would earn through testifying for the government it did not violate defendants confrontation rights because of defense counsels effective impeachment of the government witnesses credibility and sentence reduction 2: recognizing that informing the jury that testifying witness has agreed to cooperate with the government is a doubleedged sword as the existence of such agreement may suggest either that the witness will testify in accordance with the governments wishes regardless of the truth or that the witness will not he under threat of revocation of the agreement should the witness commit perjury 3: recognizing the right to compulsory process only requires that the government may not prevent an otherwise willing defense witness from testifying 4: holding that evidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from testifying and avoid punishment for the crime


Input: Petitioner’s claim that his sentence violated his due process rights. III. EiToneous Factual Basis for Sentencing Petitioner next contends that his sentence was based, in part, on an erroneous understanding of the facts. Specifically, Petitioner asserts that the Government erroneously informed the court that Petitioner told the probation officer that he had previously transported drugs into the State of Hawaii. Petitioner further claims that the court relied on this false information in determining Petitioner’s sentence. Petitioner did not raise this argument when he appealed his conviction. Where a defendant fails to raise a non-constitutional challenge to his sentencing on direct appeal, the claim is deemed waived. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994) (<HOLDING>). In such a circumstance, the court may only Holdings: 0: holding that errors not raised before the trial court will not generally be considered on appeal 1: holding that this court follows the rule that nonconstitutional sentencing errors that have not been raised on direct appeal have been waived and generally may not be reviewed by way of 28 usc  2255 2: holding claims must be raised on direct appeal or waived 3: holding ineffectivetrialassistance claim may be brought in 28 usc  2255 proceeding regardless of whether claim could have been raised on direct appeal 4: holding that nonconstitutional claims that could have been raised on direct appeal may not be asserted in a collateral proceeding


Input: by a plausible basis in the record. Secretary’s Br. at 7-8. Furthermore, the Secretary argues that a remand for readjudication in light of the enactment of the VCAA is not required because “the record fails to reveal the necessity for additional development ... [and the a]ppellant has been given adequate notice which detailed the law and evidence necessary to establish his claim.” Secretary’s Br. at 10. In his reply, the appellant argues that the BVA decision should be vacated and the matters remanded because of “the Board’s failure to make a finding on the question of whether the VCAA applies.” Appellant’s Reply at 1. Initially, the Court notes that it will address only those arguments adequately raised by the appellant in his briefs. See Ford v. Gober, 10 Vet.App. 531, 535-36 (1997) (<HOLDING>); Grivois v. Brown, 6 Vet.App. 136, 138 (1994); Holdings: 0: holding that the court has discretion not to consider an issue abandoned on appeal 1: holding that an issue not presented to the trial court will not be considered on appeal 2: holding that claims presented to bva and not pursued on appeal are considered abandoned 3: holding that issues not argued on appeal are deemed abandoned 4: holding that a deposition that was not presented to the trial court could not be considered on appeal


Input: racial discrimination which justifies this classification”). Even when a classification is appropriately related to the regulation’s purpose, we must weigh and evaluate the state’s interest in accomplishing the regulation’s purpose. Under the current equal, protection jurisprudence, the adequacy of the state’s purpose varies with the nature of the classification. Thus, a classification based on race or national origin or which affects fundamental rights secured by the Constitution is examined most closely because the classification is deemed inherently suspect. Only a compelling state interest, advanced by the least restrictive means, will justify the classification on these bases. See, e.g., Palamore v. Sidoti, 466 U.S. 429, 432-33, 104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984) (<HOLDING>). On the other hand, classifications based on Holdings: 0: holding that custody decision based on race is not justified 1: holding that a criminal defendant can bring a third party challenge to the peremptory striking of jurors based on race whether or not he is of the same race as the jurors who are struck 2: holding that an employers decision to terminate and individuals employment based on race is a violation of title vii regardless of whether that person is white or black 3: holding that it is impermissible to use a peremptory challenge to exclude a potential juror based on race 4: holding that the race of the prosecutor is irrelevant


Input: of showing entitlement to a preliminary injunction. See Reebok Intern., Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1555 (Fed. Cir.1994) (citing H.H. Robertson Co. v. United Steel Deck, Inc., 820 F.2d 384, 388 (Fed.Cir.1987)). While the Court must weigh all the aforementioned factors, Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1219 (Fed.Cir.1996), the first two factors in this inquiry (i.e., the likelihood of success and irreparable harm factors) are “[cjentral to the movant’s burden,” and the Court “may decline to issue a preliminary injunction if the movant does not prove either of these factors.” Jeneric/Pentron, Inc. v. Dillon Co., Inc., 205 F.3d 1377, 1380 (Fed.Cir.2000); see also Vehicular Techs. Corp. v. Titan Wheel Int'l Inc., 141 F.3d 1084, 1088 (Fed.Cir. 1998) (<HOLDING>). The Court will address each of the Holdings: 0: holding that the standard for permanent injunction is the same as that for preliminary injunction with the one exception being that the plaintiff must show actual success on the merits rather than likelihood of success 1: holding that a movant that clearly establishes likelihood of success on the merits receives the benefit of a presumption of irreparable harm 2: holding that the movant had to establish both of the first two factors ie likelihood of success and irreparable harm to receive a preliminary injunction 3: holding that a court may issue injunctive relief only when the movant demonstrates four factors substantial likelihood of success on the merits irreparable harm no substantial injury to the other party and furtherance of the public interest 4: holding that a movant for a preliminary injunction must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief


Input: Their related KCPA claims are individual as well. That is, the claims are brought in plaintiffs’ individual rather than corporate capacities. Amoco argues that because the corporations, not plaintiffs themselves, made payments to Amoco under the DSAs and Lease Agreements, any alleged injury was borne solely by the plaintiffs’ corporations, not by plaintiffs individually. The court disagrees. Plaintiffs’ corporate logo may have been on the check that paid for the gasoline, Amoco-branded products, and rent, but plaintiffs were individually liable for the cost of those items. In the court’s view, the nature of the liability undertaken, not who “picked up the tab,” should determine the nature of plaintiffs’ KCPA claims. See Whittenburg v. L.J. Holding Co., 830 F.Supp. 557, 566 (D.Kan.1993) (<HOLDING>). B. Are the purposes for which plaintiffs Holdings: 0: holding that the plaintiffs claim was moot because the construction project which was the subject of the dispute had been completed 1: holding that agent of corporation who used corporate funds to secure personal loan was initial transferee 2: holding that the funds in the privatelyheld corporations account belonged to the corporation not to the individuals who owned the corporation and expressly stating that directors officers and shareholders of a corporation do not have standing to claim an ownership interest in corporate property in their individual capacities they must state a claim in the corporate name 3: holding similarly that because lear business jet was titled in corporate name the kcpa claim belonged to the corporation not the individual plaintiffs even though the lear jet had been purchased with plaintiffs personal funds 4: holding that a corporate plaintiffs claims must be dismissed on the ground of failure of any attorney to appear for the corporation


Input: appearing both in the record and in the briefs, we restrict our statement of the underlying facts of the case to facts alleged in TCI’s complaint that do not appear to be disputed by the parties. 2 . Greer v. Spock, it should be noted, did not hold that any military base falls automatically into the "nonforum” category. Rather, Greer held simply that, based on the facts in that case, which established that the base there had not been opened generally by the military to the public for expressive or other purposes, the base commander could constitutionally place certain content-neutral restrictions on speech on the base. See Greer, 424 U.S. at 837-838, 96 S.Ct. at .1217-1218 (distinguishing Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (per curiam) (<HOLDING>). 3 . The precise basis for the Ninth Circuit’s Holdings: 0: holding that civilian distributing leaflets on military base could not constitutionally be convicted of unlawfully entering the base where the military had abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue greer 424 us at 835 96 sct at 1216 1: holding that a civilian employee injured when her automobile was hit by a military vehicle while she was driving on a road on the employers premises the military base to report to work sustained a compensable injury under the federal employees compensation act 2: recognizing that suit against the government for alleged negligence of military club bartender would require questioning of a wide range of military and disciplinary decisions 3: holding that a challenge of the press ban during the military action in grenada was moot after the military action ended because plaintiffs failed to allege ongoing conduct 4: holding that a former spouse is a proportionate owner of the other spouses future military retirement pay and is thus entitled to onehalf of the percentage of such pay representing the number of military marriage years relative to the total length of military service


Input: to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” Cal. Civ.Code § 1760. Relief under the CLRA is available to “any consumer who suffers any damage as a result of the use or employment” of any unlawful “method, act, or practice.” Cal. Civ.Code § 1780(a). Such damage may result “through the materiality” of an alleged omission. See Parkinson v. Hyundai Mot. Am., 258 F.R.D. 580, 595-96 (C.D.Cal.2008). Upon a sufficient showing at the certification stage, whether an omission is “material ]” presents a “common question of fact suitable for treatment in a class action.” Mass. Mut., 97 Cal.App.4th at 1294, 119 Cal.Rptr.2d 190; Stearns, 655 F.3d at 1022 (<HOLDING>) (quoting Steroid Hormone Prod. Cases, 181 Holdings: 0: holding that materiality is established if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question 1: holding that the only relevant inquiry to determine whether a suspect was in custody is how a reasonable man in the suspects position would have understood his situation 2: holding that the existence of probable cause in a  1983 case is a jury question 3: holding that the only relevant inquiry in an in custody determination is how a reasonable man in the suspects position would have understood his situation 4: holding that contractor complaints that late or no payments are affecting performance is a significant factor in determining materiality


Input: considering all factors, the Court finds this factor pivotal under the circumstances of this case. See Deans v. O’Donnell, 692 F.2d 968, 972 (4th Cir.1982). The parties have stipulated that there is no equity in the home and that it would require significant expense, representing the vast majority of Debtors’ disposable income, to retain it. In fact, the payment dedicated for the home exceeds Debtor’s personal net income. Utilization of the vast majority of Debtor’s net disposable income to retain an expensive asset while depriving his other creditors of payment indicates a lack of good faith. This Court has previously denied confirmation for lack of good faith when a debtor proposes to retain an expensive piece of secured property and make a minimum distribution to unsecured cr 03) (<HOLDING>). Debtor presented no testimony or other Holdings: 0: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 1: holding that the state has no obligation to provide adequate housing 2: holding that debtors have the burden of proving that other necessary expenses on form b22c are actual reasonable and necessary expenses and that these expenses should be considered in light of schedule j and other relevant evidence 3: recognizing provisions of the fair housing act that forbid false statements that housing is unavailable to a person because of his race 4: holding debtors must bear the burden of paying for improvident expenses by giving up a home that had no equity and finding replacement housing


Input: record provides independent support for the enhancement, we need not determine whether Judge Russell erred by failing to bring forward evidence to substantiate his exchange with Judge Friot. Under plain error review, the defendant bears the burden of demonstrating prejudice to his substantial rights. See United States v. Zubia-Torres, 550 F.3d 1202, 1208 (10th Cir.2008). Even assuming Judge Russell erred by relying on his conversation with Judge Friot, Bishop cannot succeed because the result of the proceeding would not change on remand. The conversation with Judge Friot notwithstanding, Judge Russell could have supported the enhancement by simply noting Judge Fri-ot’s remarks during Bishop’s first sentencing hearing. See United States v. Kaufman, 546 F.3d 1242, 1252 (10th Cir.2008) (<HOLDING>) (citation and internal quotation marks Holdings: 0: holding that in order to show prejudice defendant must demonstrate that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 1: holding that party asserting plain error must show a reasonable probability that but for the error claimed the result of the proceeding would have been different 2: holding that to show prejudice in a claim of ineffective assistance of appellate counsel the petitioner must show a reasonable probability that but for counsels errors the result of the proceeding would have been different 3: holding that a defendant must show reasonable probability that but for the error he would not have entered the plea 4: holding that to establish prejudice there must be a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different


Input: less clear but likely that she would have a separate claim for misrepresentation either in equity for restitution or at law for negligent or fraudulent misrepresentation. See ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988); Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 580-81 (Alaska 1989); Turnbull v. LaRose, 702 P.2d 1331, 1334 (Alaska 1985) (non-disclosure). The United States has not consented to be sued for such claims. The issue is whether St. Denis has a tort claim separate from misrepresentation. The applicable law is the law of Alaska because, under Alaska law, the government’s obligations are measured by the obligations of a private party. Bell, 755 F.Supp. at 271-72. The line between tort and contract has received signifi P.2d 1173 (Aaska 1993) (<HOLDING>). In order to place St. Denis’ claims in the Holdings: 0: holding that no products liability claim lies in admiralty when commercial party alleges injury only to product itself resulting in purely economic loss insofar as the tort concern with safety is reduced when an injury is only to the product itself 1: holding that failure to record an assignment does not give rise to a cause of action 2: recognizing that substantial change is a defense to a products liability claim 3: holding that negligent breach of a duty assumed in a contract does not give rise to a separate tort claim 4: holding that products liability cases only give rise to a tort claim where product failure harms public safety


Input: to which Buyer has received the professional advilele and expertise of a certified public accountant retained by Buyer. Defendants argue that this provision (the Satisfaction Clause) is sufficient to preclude Plaintiffs from asserting mistake as a basis for rescinding the contract. 1 38 The Satisfaction Clause may well have been an attempt to allocate to Plaintiffs the risk that the value of the Kendall Agency might be lower than either party believed. See Restatement (Second) of Contracts § 154(a). Alternatively, this clause may evidence an acknowledgment by Plaintiffs that they deemed their limited knowledge on this issue sufficient, thereby negating any later claim of mistake. See id. § 154(b); see also Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT 8, 118, 178 P.3d 886 (<HOLDING>)'s subsequent approval); Klos, 829 P.2d at Holdings: 0: holding that the office of recovery services of the utah dept of social services was free to collect its postpetition debt for child support from a tax refund that was not dedicated to the plan and therefore vested in the debtors upon confirmation 1: holding that under contract armory assumed the risk as to utah general services agency 2: holding that nonsignatories to a contract have no rights under the contract and thus no standing to assert claims under the contract 3: recognizing this as the general rule 4: recognizing utah counties as legal subdivisions


Input: under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, the ADEA incorporates enforcement provisions of the FLSA, including the collective action provisions of 29 U.S.C. § 216(b). 9 . Some courts refer to the process of opting in to a collective action as "joinder.” See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (Garth, J.) (referring to a certification of an ADEA collective action as "permitting opt-in joinder of ‘similarly situated’ plaintiffs”). But opt-in plaintiffs are held to a lesser standard than FLSA named plaintiffs or other plaintiffs who jo.in in .civil actions. For instance, ADEA opt-in plaintiffs do not need to exhaust administrative remedies, while ADEA named plaintiffs do. See Lusardi v. Lechner, 855 F.2d 1062, 1078 (3d Cir. 1988) (<HOLDING>). Moreover, opt-in plaintiffs are held to a Holdings: 0: recognizing that in other contexts the optin class action has been analogized to permissive joinder and intervention but concluding that optins in adea suit need not satisfy exhaustion requirements where named plaintiffs have done so 1: holding that where one plaintiff has standing we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit 2: holding that tolling does not apply to additional defendants who were not named in the class action 3: holding that after a class is certified the controversy may exist  between a named defendant and a member of the class represented by the named plaintiff even though the claim of the named plaintiff has become moot 4: holding that a class action is not mooted by the intervening resolution of the controversy as to the named plaintiffs


Input: however, is limited to conspiracies based upon racial or some other class-based invidious discrimination. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir.1996). There is no evidence of any such conspiracy here. The class for which the plaintiff claims protection is “divorced or otherwise single women parents.” Pl.’s Mem. in Opp’n to Def. Scott Losciuto’s Reply Mem. at 6. That is not a recognized class. To the extent that the plaintiff is stating a separate claim against Scott or Janet Losciuto under 42 U.S.C.A. § 1983 (the Complaint is unclear), it fails for lack of state action on the part of Scott or Janet Losciuto, who are private parties. See Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir.2000). Town Of Windham And Pol 123, 128 (2d Cir.1997) (<HOLDING>); Brodnicki v. City of Omaha, 75 F.3d 1261, Holdings: 0: holding that police officer was not required to eliminate every theoretically plausible claim of innocence before effectuating arrest for animal cruelty 1: holding that police officer is not required to explore and eliminate all theoretically plausible claims of innocence 2: holding police officer is a public official 3: holding that petitioners challenge to jury instructions in light of some new cases did not demonstrate his actual innocence because petitioner only asserts legal innocence not actual innocence 4: holding police are not required to explore and eliminate every potentially plausible claim of innocence as part of their prearrest investigation


Input: this court held that Rule 11(e)(2) “directs counsel to provide this court with all evidence relevant to the issues raised on appeal.” Id. at 1002. When the appellant does not do so, we “presume the trial court’s findings are supported by competent and sufficient evidence.” Id.; see also Call v. City of West Jordan, 788 P.2d 1049, 1053 (Utah 1990); State v. Linden, 761 P.2d 1386, 1388 (Utah 1988). In this case, defendant failed to provide this court with a transcript of the March 8 entrapment hearing, which it was his responsibility to do. See Utah R.App.P. 11(e)(2). “Therefore, our review is strictly limited to whether the trial court’s findings of fact support its conclusions of law and judgment.” Sampson, 770 P.2d at 1002; accord State v. Garza, 820 P.2d 937, 938-39 (Utah App.1991) (<HOLDING>). Section 76-2-303 of the Utah Code sets forth Holdings: 0: holding that as a general rule this court will not consider an issue that was not raised below 1: recognizing general rule that an appellate court cannot address claims that were not raised below 2: holding that this court lacks jurisdiction to review a legal claim not presented in administrative proceedings below 3: holding that argument offered in defense of decision below had been waived when not raised below 4: holding court cannot consider proceedings below without adequate record


Input: first factor under Wright, the location of the train, we note the UP 9484 was located on the Diesel Service Track when Johnson’s Engine made contact with it. All the evidence established this was a service area under blue flag protection. This fact was supported by the affidavit and subsequent deposition testimony of Mr. Valley. In addition, Johnson admitted he was told “to put [the engines] in the engine service track.” Moreover, the UP 9484 was not simply located in a service area, it was sitting dead on the track, where it had been since its inspection the day before and had not yet been released for service. These facts alone strongly weigh in favor of finding the UP 9484 was not “in use” at the time of the accident under the first factor in Wright. See Wright, 574 F.3d at 619-22 (<HOLDING>). Considering the second factor under Wright, Holdings: 0: holding evidence which established that use of property was permissive showed use of property was not adverse 1: holding use of gps device to track suspect for 65 days was search 2: holding that the public use exception was not applicable because the injury to the tenants employee occurred in an area of the leased premises that was not open to the public but was used only by employees 3: holding that the amendment was a use regulation which was in effect a condition on the use of property in the affected zone 4: holding locomotive was not in use when it was parked on a repair track for inspection was in a blue flag area and had not yet been released for use following the inspection


Input: Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal and relief under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence. Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.2007). We grant the petition for review and we remand. Because there is no evidence that the BIA reviewed the petitioners’ asylum and withholding claim, as requested by petitioners in their brief to the BIA, pursuant to the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), we remand to the agency to determine Sael’s application in this case. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (<HOLDING>). We also remand for consideration of pattern Holdings: 0: holding that this court must remand to the bia to allow it to address in the first instance an issue that it has not yet considered 1: holding deference to agency methodology appropriate unless agency failed to address an essential factor 2: holding that this court has discretion to either address or remand arguments presented to it in the first instance provided it otherwise has jurisdiction over the claim 3: holding that when an agency has not reached an issue the proper course is to remand to the agency in the first instance to address 4: holding that a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands


Input: given multiple opportunities to do so. 2 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 3 . Sanders does not assert the Government was in contact with the victim at some point prior to the day before the start of the trial, nor does Sanders allege the Government in any way delayed informing him regarding its meeting with the victim, during which the victim was shown the photographic lineup. Moreover, we need not consider Sanders' claim the photographic lineup was "unduly suggestive,” as he raises this argument for the first time in his reply brief. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.1999) (<HOLDING>). 4 . Contrary to Sanders' contention, the Holdings: 0: holding argument not raised in opening brief but raised for the first time in reply brief was waived 1: holding that a partys failure to raise an issue in the opening brief waived the issue even though the party raised the issue in his reply brief 2: holding argument is waived when raised for first time in reply brief 3: holding an appellant who raised an issue for the first time in his reply brief waived the claim 4: holding that a contention raised for the first time in a reply brief was waived


Input: to consider the addi tional facts, and to rule on the additional claims, presented in his amended petition. Boyd has failed to preserve this issue for review. It would appear from a review of the record that Boyd is correct in maintaining that the circuit did not consider, or rule on, the additional facts and claims presented in his amended petition. However, the record also reflects that Boyd never objected to the circuit court’s failure to rule on the amended petition. As noted above, Boyd never moved for leave to file the amended petition, and the circuit court never entered an order granting Boyd leave to do so. Moreover, the circuit court never took any action indicating that it was granting Boyd leave to file an amended petition or that it would consider claims rim.App.1989) (<HOLDING>). Because Boyd never objected to the circuit Holdings: 0: holding that claim that the circuit courts order was deficient because it did not include specific findings of fact regarding each is sue was not preserved for review where it was not raised in the circuit court 1: holding that the appellants claim that the circuit court failed to make specific findings of fact relating to issues raised at an evidentiary hearing on the appellants postconviction petition was not preserved for review because the appellant did not raise the issue in the circuit court 2: holding that the appellants claim that the circuit court improperly adopted the states proposed findings of fact and conclusions of law in an order denying the appellants postconviction petition was not preserved for review because the appellant never objected to the circuit courts order 3: holding in an appeal from the denial of a rule 32 petition that the appellants claim that the circuit court erred in not ruling on his motion to subpoena a transcript of his guilty plea proceedings was not preserved for review because the circuit court never ruled on the motion and the appellant never objected to the circuit courts failure to rule on the motion 4: holding that the appellants claim that the circuit court erred in failing to make specific findings of fact as to all claims in the appellants rule 32 petition was not preserved for review because the appellant did not first present the claim to the circuit court


Input: to pursue a declaratory judgment action against an insurer. Id. at 137-38, 142 N.W.2d at 647. The intermediate appellate court has no authority to overrule a decision by the supreme court. Mueller v. Theis, 512 N.W.2d 907, 912 (Minn.App.1994) (citing Principal Fin. Group v. Allstate Ins. Co., 472 N.W.2d 338, 343 (Minn.App.1991) (Davies, J. concurring specially)), review denied (Minn. Apr. 28, 1994). b. Continental argues that it should not be liable for Domtar’s attorney fees incurred in this action to address the indemnity issues, because the jury did not find a breach of a duty to indemnify. Rather, Continental argues that it is solely liable for Domtar’s attorney fees incurred to establish a duty to defend. See Lanoue v. Fireman’s Fund Amer. Ins. Cos., 278 N.W.2d 49, 55 (Minn.1979) (<HOLDING>); Morrison, 274 Minn. at 137-38, 142 N.W.2d at Holdings: 0: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer 1: holding that chapter 38 permits an insured to recover attorney fees from the insurer 2: holding that insured may recover from its insurer any attorney fees incurred in successfully attempting to force the insurer to defend an action against the insured 3: holding that when the insured brings an action for a declaration of coverage and prevails absent a bad faith denial of coverage by the insurer attorneys fees incurred by the insured in the prosecution of that action are not incurred at the request of the insurer 4: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith


Input: an enforceable contract, a party must provide evidence that demonstrates that the parties reached a mutual understanding, they exchanged consideration, and they understood the essential terms of their bargain. Hart v. Arnold, 884 A.2d 316, 333 (Pa.Super.2005) (stating that proof of an enforceable contract is necessary to prove a breach of claim); Weavertown Transport Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa.Super.2003) (discussing the elements necessary to prove the existence of an unenforceable contract); CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999) (stating what elements a party must pled to state a viable breach of contract claim); Estate of Rodgers v. Morris Chapel Missionary Baptist Church, No. 04-1577, 2005 WL 3602536 (Pa.Ct. Com.Pl. Dec. 14, 2005) (<HOLDING>). Here, the Petitioning Creditor’s Claim is Holdings: 0: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 1: holding failure to establish terms of an oral loan agreement precluded the existence of a breach of contract claim 2: holding that defendant did not breach oral agreement because among other things the plaintiff had not established that the term in question was part of the oral contract 3: holding summary dismissal of breach of implied employment contract claim inappropriate where factual issue over existence of oral policy 4: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only  with the existence of the alleged oral contract


Input: Meadow, 2005 UT App 294, ¶ 36, 118 P.3d 871; Peters, 2005 UT App 295U, para.6, 2005 WL 1530644. 4 . Forest Meadow, 2005 UT App 294, ¶¶ 3 & n. 2, 30, 118 P.3d 871. 5 . 2000 UT 9, 994 P.2d 201. 6 . Utah R.App. P. 24(k). When the briefs in these cases were filed in January 2006, this language was found in rule 24(j) of the Utah Rules of Civil Procedure. The rules have since been amended; however, this language remained the same and thus we cite to the current numbering of the rule. 7 . Merriam-Webster's Collegiate Dictionary 1042 (10th ed.1998) (defining "scandalous” as "libelous, defamatory” and "offensive to propriety or morality”). 8 . Utah R. Prof'l Conduct 8.2(a). 9 . Utah Standards of Professionalism & Civility 3. 10 . Id. 1. 11 . See In re Westfall, 808 S.W.2d 829, 832 (Mo.1991) (<HOLDING>). 12 . Utah Standards of Professionalism & Holdings: 0: holding that counsels statements directed specifically at deciding judges motivation and integrity were personal attacks 1: holding that statements at issue were protected expressions of opinion because they lacked specificity and precision and the factual implications concerning such statements were unclear 2: holding vague and conclusory allegations of nefarious intent and motivation are insufficient to state a claim 3: recognizing that motions for directed verdicts are not normally directed to bits and pieces of an action 4: holding that objection made at directed verdict stage and in motion for new trial were timely


Input: is clear for both exchanges. We have an independent obligation to address standing regardless of any position the government has taken in the case. See, e.g., Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994); see also Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012). 12 . See, e.g., Transamerica Leasing, Inc. v. La República de Venezuela, 200 F.3d 843, 848-50 (D.C. Cir. 2000) (a subsidiary, corporation was not the agent of its parent because, the parent did not exercise “control over the subsidiary in a manner more direct than by voting a majority of the stock in the subsidiary or making appointments to the subsidiary’s Board of Directors”); Johnston v. Warren Cty. Fair Ass’n, 110 F.3d 36, 38 (8th Cir. 1997) (<HOLDING>); Matter of Carolin Paxson, 938 F.2d at 598-99 Holdings: 0: recognizing that statements made by agent on behalf of principal to principals attorney may be protected by principals attorneyclient privilege 1: holding that defendant was not an agent because alleged principal did not control means by which the defendants accomplished their duties 2: holding that the lack of evidence of the alleged principals control over the alleged agent precludes the finding of an agency relationship 3: holding that agency is provable only by principals conduct and not by subjective beliefs of those dealing with alleged agent 4: holding plaintiffs payment of a renewal premium to the alleged agent did not establish an apparent agency


Input: non-disclosure. In addition, the trial court does not explain how suppression of Dr. Privette’s or Detective Robinson’s testimony remedies the non-disclosure. Therefore the order does not bear any indication that the trial court “consider[ed] both the materiality of the subject matter and the totality of the circumstances surrounding [the] alleged failure to comply” prior to finding suppression of their testimony “appropriate.” N.C. Gen. Stat. § 15A-910(b) (2011). Therefore, because the lesser discovery sanctions rest upon (1) actions that are not discovery violations; or (2) a flawed prejudice analysis, we must vacate the portions of the trial court’s order suppressing related evidence as a discovery sanction. See Blitz v. Agean, Inc., 197 N.C. App. 296, 312, 677 S.E.2d 1, 11 (2009) (<HOLDING>). However, our decision with respect to the Holdings: 0: holding the immigration judges denial of a continuance request did not constitute an abuse of discretion 1: holding failure to exercise discretion is abuse of discretion 2: holding that the ban on judicial review of actions committed to agency discretion by law is jurisdictional 3: holding that judicial actions based upon a misapprehension of law constitute an abuse of discretion 4: holding abuse of discretion is established if district court decision was based on an error of law


Input: diversity jurisdiction exists in fact. 4 . Coury, 85 F.3d at 249. 5 . E.g., Griffin v. Lee, 621 F.3d 380, 383 (5th Cir.2010). 6 . See Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985). 7 . See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408-09 (5th Cir.1995) ("Unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith.”) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). 8 . Cf. Greenville Imaging, LLC v. Washington Hosp. Corp., 326 F. App’x 797, 798 (5th Cir.2009) (resolving jurisdictional question on the basis of citizenship information requested sua sponte from the parties). 9 . Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.2008) (<HOLDING>). 10 . Cf. Lee v. Vill. of River Forest, 936 Holdings: 0: holding that a limited partnership is not itself a citizen and that courts must instead look to the citizenship of its members to determine if diversity jurisdiction exists 1: holding that defective allegations of citizenship may be amended to establish diversity jurisdiction 2: holding that a limited liability companys citizenship is that of its members 3: holding that the citizenship of lloyds is determined by that of all names 4: holding that for diversity purposes the citizenship of a llc is determined by the citizenship of all of its members


Input: plan, indicating no intention to repay any of his debtors. (Bankr.Ct. D.I. 82, at 7.) Failure to propose repayment to any of his creditors was a failure to submit a confirmable plan. Furthermore, Mr. Dye will not be given another chance in this court to submit a confirmable Chapter 13 plan. See Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210, 215 (3d Cir.1997) (refusing to give “litigants who abuse the processes and dignity of the court a second bite at the apple.”) Even if the Dyes had provided a plan to repay some of their creditors, the plan could not have been confirmed because of a refusal to file tax returns. Accurate tax returns are important for a Bankruptcy Court to confirm a Chapter 13 plan. See Whitehead v. United States, 1997 U.S. Dist. LEXIS 11458 (D.Fla.1997) (<HOLDING>). Unmistakable manifestations of bad faith need Holdings: 0: holding that failure to file correct tax returns constitutes bad faith and makes it difficult for the court to confirm a plan 1: holding that a bad faith claim is a tort 2: holding on an objection to confirmation of plan that the debtors failure to file tax returns before filing the chapter 13 plan and debtors failure for six months to comply with federal law constituted a lack of good faith sufficient to warrant dismissal of the case 3: holding that the lawyers failure to file tax returns and pay taxes over three years constituted conduct prejudicial to the administration of justice 4: holding the conduct element satisfied where debtor failed to timely file tax returns and failed to pay taxes for those years


Input: the court should not have imposed an offense level of 34. He also contends that the breaking and entering charge cannot be used as the predicate violent crime because there is an insufficient “nexus” between the firearm and the alleged state offense. Making a determination under U.S.S.G. § 4B1.4(b)(3)(A) involves a two-step inquiry. First, the court must decide whether the predicate offense is a violent felony. Second, the court must consider whether the defendant used or possessed a firearm in connection with that violent predicate offense. In making the first inquiry, the court is to employ “a formal categorical approach” irrespective of the actual factual circumstances of the underlying offense. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990) (<HOLDING>). To determine what constitutes a violent crime Holdings: 0: holding that the statutory definition of motor vehicle is not controlling 1: holding that the guidelines definition of consolidated offenses was not applicable to a statutory minimum sentence imposed under 841 2: holding that court must look to statutory definition of acc a predicate offenses 3: holding that a court must only look to the statutory definition not the underlying circumstances of the crime to determine whether a given offense is by its nature a crime of violence for purposes of 18 usc  16 4: holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense


Input: that was printed on the reverse side of the Consent Form. Further, although the Consent Form generally allowed defendant to make unilateral changes to any of its policies, the arbitration policy was explicitly excluded from this provision: “I agree and understand that AIMCO has the right to and may modify, rescind or cancel all or any part of these policies, or add new rules of conduct, at any time, in its sole discretion ... except the Arbitration policy, which can only be amended by AIMCO’s and my mutual agreement.” Because an employer’s unilateral act of making changes to an employment handbook does not constitute mutual consent, the court finds that the arbitration agreement is still in full force. Robinson v. Ada S. McKinley Comm. Services, Inc., 19 F.3d 359, 364 (7th Cir.1994) (<HOLDING>). Because the arbitration agreement is still in Holdings: 0: holding that an arbitration agreement in an employee handbook was illusory where the employer expressly reserved a right to unilaterally rescind any provisions of the handbook 1: holding that contractual relationship between student and university did not include terms of the handbook because university retained right to unilaterally modify terms of handbook without notice plaintiff neither negotiated for nor assented to terms of contract and relevant correspondence did not call special attention to handbook 2: holding that no modification of the original employment contract occurred when the employer unilaterally issued a new handbook 3: holding that an agreement to arbitrate is illusory if as here the employer can unilaterally modify the contract 4: holding that employee handbook did not give rise to implied contract where it stated that it was not a contract and that employment was terminable at will


Input: (1) plans which are subject to ERISA; (2) plans which are subject to I.R.C. § 401(a) ; (3) plans which contain enforceable anti-alienation clau ted pursuant to 29 U.S.C. § 1001 et seq. of the Labor Code and 26 U.S.C. § 401(a) of the Internal Revenue Code, and must include a restriction on alienation”) 148 B.R. 930, 934 (Bankr.C.D.Cal.1992), aff'd, 163 B.R. 614 (9th Cir. BAP 1994). But see In re Hanes, in which the court did not consider “tax qualification” as in Hall, Sirois, and Witwer, stating: “[W]e conclude for purposes of § 541(c)(2), a plan is ‘qualified’ under ERISA if it is (1) governed by ERISA and (2) includes a non-alienation provision that is (3) enforceable under ERISA.” 162 B.R. 733, 740 (Bankr.E.D.Va.1994). See also In re Kaplan, 162 B.R. 684, 691 (Bankr.E.D.Pa.1993) (<HOLDING>). I find the best view to be that a plan is Holdings: 0: holding that state law relates to an employee benefit plan and is therefore preempted by erisa if it has a connection with or reference to such a plan 1: holding that a plan is qualified if it complies with erisa and the irc 2: holding that it is not necessary to ascertain whether a plan is tax qualified but only that it is covered by erisa 3: holding that the relevant question is not whether risk is involved or assumed but rather whether that or something else to which it is related in the particular plan is its principal object and purpose 4: holding that it is not


Input: “charges,” “amount”, and “balance due.” The Owners argue this evidence is insufficient to establish either the property class used to allocate assessments or whether they are special or annual assessments. However, Wilson specifically states in his affidavit that he calculated the amounts due and owing in the course of his duties to “track[ ] assessments owed by various commercial entities within the Sonterra and Stone Oak subdivisions”; and the schedules list the nature of the charges, whether “assessment,” “late fees,” “legal fees,” “mowing,” etc. We therefore hold Wilson’s affidavit is sufficient to support the trial court’s summary judgment on the amount of past due assessments. See FFP Mktg. Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 411 (Tex.App.-Fort Worth 2005, no pet.) (<HOLDING>); Hudspeth v. Investor Collection Serv. Ltd. Holdings: 0: holding that an affidavit  consisting entirely of inadmissible hearsay is not sufficient to survive summary judgment 1: holding affidavit by bank president was sufficient to support summary judgment where it established plaintiff bank owned the note and the amount due on the note and defendant failed to offer controverting evidence 2: holding that affidavit setting forth total balance due on note is generally sufficient to sustain summary judgment and detailed proof of balance not required 3: holding that bank employees affidavit setting forth total balance due sufficient to support summary judgment 4: holding that trial court may not grant summary judgment by default  when the movants summary judgment proof is legally insufficient


Input: this issue in the trial court where his appointed attorney argued against the termination of his parental rights. “When the record is silent, as here, [a] trial court may be presumed to have taken judicial notice of the records in the court’s file without any request being made and without an announcement in the record that it has done so.” In re J.E.H., 384 S.W.3d 864, 869-70 (Tex. App.—San Antonio 2012, no pet.). “Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (internal quotation omitted). “A judicial admission that is clear and unequivocal has conclusive effect and bars the admitting party from later ort Worth 2004, pet. denied) (<HOLDING>). Because we assume the trial court took Holdings: 0: holding defendants pro se motion to reduce sentence was not properly before the trial court when defendant was represented by counsel since defendant may not proceed both by counsel and pro se 1: holding that trial court erred in considering pro se motion for new trial filed when defendant was represented by counsel 2: holding statements in pro se letter filed with the trial court constituted admissions of paternity 3: holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond 4: holding that a defendant has a right to proceed pro se at trial


Input: Inc., 752 F.Supp.2d 246 (E.D.N.Y. 2010) (determining that, “although the relative means of [individual] plaintiffs in contrast to a national company clearly favors plaintiffs,” plaintiff failed to demonstrate that travel to the transferee forum would pose a significant burden relative to traveling to the transferor forum). Here, plaintiff is opposing transfer to his home forum and arguing that his means prohibit him from prosecuting his lawsuit there because his attorney would need to travel from New York to New Jersey (or he would need to find another attorney, which he has not been able to do thus far). The Court finds that the additional burden that would be imposed on counsel to travel to the District of New Jersey carries SI), 2002 WL 523568, at *3 (N.D. Cal. Apr. 1, 2002) (<HOLDING>). The Court concludes that the transfer of this Holdings: 0: holding that the debtorinsured was entitled to exempt the cash surrender value of her life insurance policy naming her dependent son as a beneficiary under illinois statute providing exemption for all proceeds payable because of the death of the insured and the aggregate cash value of any or all life insurance  policies  payable to a wife or husband of the insured or to a child parent or other person dependent upon the insured 1: holding the appellant needed to prove by a preponderance of the evidence that her husbands death fell within the terms of the insurance policy 2: holding in case where plaintiff sought to recover benefits from an accidental death and dismemberment insurance policy issued to her mother transfer to southern district of california warranted because among other things the transactions giving rise to plaintiffs action have no connection to the northern district and the life insurance policy was purchased by the insured in the southern district she received all medical care there and her death occurred there 3: holding that an arbitration award involving the appellants challenge to the failure of the insurance company to ensure that he had read and understood a signed waiver and to attach the waiver to the insurance policy as contrary to public policy is not reviewable by the courts because there is no challenge to a provision or term of the policy the appellant never claimed that the waiver or policy language itself was contrary to the public policy of this commonwealth 4: holding in an action to recover premiums paid on a life insurance policy where plaintiff alleged she had been informed she was paying premiums toward a retirement annuity contract that where the record was devoid of any facts suggesting that defendant exercised any wrongful control over the monthly payments voluntarily made by plaintiff or took any action with respect to such payments other than providing her with the life insurance coverage which the documents establish that she purchased there was no basis for a claim of conversion


Input: we give your treating source’s opinion.”). Dr. DePhillips concluded that Ulloa should be restricted from prolonged sitting or standing and from lifting more than ten pounds. (R. 105-106). Dr. Segura instructed him to keep his trunk straight and not bend forward, twist, or lift more than twenty pounds. (R. 127). These restrictions conflict with the wide range of light work the ALJ found Ulloa capable of performing. However, the ALJ never explained why Dr. DePhillips’ or Dr. Segura’s opinions were not entitled to controlling weight. Because the ALJ failed to explain the weight given to the opinions of Dr. DePhil-lips and Dr. Segura, the ALJ did not build an accurate and logical bridge from the evidence to his conclusion. Therefore, remand is appropriate. See Clifford, 227 F.3d at 870 (<HOLDING>). On remand, the ALJ must reevaluate whether Holdings: 0: holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician 1: holding that failure to provide good reasons to discredit a treating physicians opinion requires remand 2: holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations 3: holding that errors such as failing to provide clear and convincing reasons for discrediting a claimants subjective complaints rejecting a treating physicians opinion in favor of a nontreating physicians opinion without providing clear and convincing reasons and erring in assessing the claimants residual functioning capacity are fundamental 4: recognizing that failure to provide good reasons for discrediting a treating physicians opinion is grounds for remand


Input: Nor is there any indication that Diatek intended to be bound by any particular offer prior to finalizing the contracts on September 14, 2001. Jon Wilson, who engaged in talks with potential distributors during the summer of 2001, characterized those talks as “preliminary discussion[s].” He summarized his message to the distributors as: “We have a new dialysis catheter. We are looking for distribution. It is going to be pretty much a standard deal.” The Federal Circuit has distinguished between language that suggests a legal offer — such as “I offer” or “I promise” — and language that merely suggests preliminary negotiations' — such as “I quote” or “are you interested.” Group One, 254 F.3d at 1048; see also Linear Tech. Corp. v. Mircrel, Inc., 275 F.3d 1040, 1050 (Fed.Cir. 2001) (<HOLDING>). Wilson’s characterization places his talks Holdings: 0: holding that speaking to potential customers to determine an appropriate price does not constitute an offer for sale 1: holding an unaccepted settlement offer or offer of judgment does not moot a plaintiffs case emphasis added 2: recognizing that settlement discussions do not constitute an offer of judgment 3: holding that a price quotation can amount to an offer creating the power of acceptance  if it appears from the price quote that assent to the quote is all that is needed to ripen the offer into a contract 4: holding that an offer to donate cannot be an offer to sell


Input: 914 P.2d 1246, 1249 n. 4 (Alaska 1996). 14 . Park v. Park, 986 P.2d 205, 206 (Alaska 1999). 15 . Julsen v. Julsen, 741 P.2d 642, 649 n. 10 (Alaska 1987). 16 . The dissent similarly argues that the trial court abused its discretion by not explicitly addressing these factors. See Dissent at 1051. 17 . See Park, 986 P.2d at 207 (stating that "[w]hile a court determining custody must always consider each of these statutory factors, it need not refer to all of them in explaining its custody decision”); Borchgrevink v. Borchgrevink, 941 P.2d 132, 137-39 (Alaska 1997) (noting no error in trial court’s failure to expressly address those factors not disputed by the parties and those not favoring the parent to whom the court denied custody); Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997) (<HOLDING>). 18 . Park, 986 P.2d at 207 (citing Holdings: 0: holding that while the parties may choose to renegotiate their agreement they are under no good faith obligation to do so 1: holding that while trial courts are encouraged to state all findings in their written orders they are not required to do so as long as the basis for their decisions is clear from the record and thus susceptible to review 2: holding it improper to independently review the record to find support for a trial courts decision so long as it is unclear whether the trial court considered statutory factors 3: holding that even though defendants response does not affirmatively state in the document itself that they are competent to testify as to the facts to which they swore does not necessarily doom their testimony  so long as the record taken as a whole demonstrates that their testimony meets the requirements of rule 56 4: holding that as long as the findings are supported by substantial evidence the board must defer to the hearing committees credibility determinations because they are subsidiary findings of basic facts


Input: apart from any procedural shortcoming, Mr. McPherson is not entitled to relief on the merits. Two claims from Mr. McPherson’s collective Issue D remain: 1) his allegation that the trial judge made remarks reflecting bias constituting misconduct under New Mexico’s Code of Judicial Conduct; and 2) his allegation that he was denied access to the courts by jail personnel, due to a one-time refusal to allow him use of the jail’s law library, as well as his related allegation challenging the general adequacy of the jail’s law library. With regard to Mr. McPherson’s judicial misconduct claim, the district court correctly ruled that alleged violations of state codes of conduct are not cognizable in federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (<HOLDING>). And as for his claims regarding access to the Holdings: 0: holding that gardenvariety errors of state law do not warrant federal habeas relief 1: holding that federal habeas relief is not available to correct errors of state law 2: holding that federal habeas corpus relief does not lie for errors of state law 3: holding that errors in state law cannot support federal habeas relief 4: holding that infirmities in state habeas proceedings do not constitute grounds for federal habeas relief


Input: testified, but states that without the benefit of discovery cannot admit or deny the factual allegations contained therein. Pl.’s Resp. 11 ¶ 49. 11 . Plaintiff filed an amended complaint two days later. See PL’s Ex. 4, at 8. 12 . This regulation states: Prior to a request for a hearing in a case, the agency shall dismiss an entire complaint: (3) That is the basis of a pending civil action in a United States District court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint; or that was the basis of a civil action decided by a United States District Court in which the complainant was a party[.] 29 C.F.R. § 1614.107(a)(3). 13 . But see Clayton v. Rumsfeld, 106 Fed.Appx. 268, 271 (5th Cir.2004) (unpub. op.) (<HOLDING>); Hornsby v. Conoco, Inc., 777 F.2d 243, 247 Holdings: 0: holding that additional consideration is a factor in determining whether there is an implied contract of employment 1: holding that it was within the trial courts discretion to refuse any additional discovery and that the courts refusal to allow additional discovery was not an abuse of discretion 2: holding that an employer in an employment discrimination case may not justify its conduct based on evidence that did not motivate it at the time of the employment decision 3: holding that an additional remedy does not constitute an additional requirement 4: holding that additional charges were barred in an employment discrimination case when the additional charges did not reflect the essence of the other charges


Input: and consideration by the trial court. Also, counsels’ discussion with the trial judge regarding the disqualification covers approximately ten pages of the reporter’s record. From the information provided by the prospective juror of his theft conviction, the trial court concluded that the juror was disqualified, but notwithstanding the constitutional implications, proceeded to mistakenly impanel him concluding that the disqualification could be waived. Moreover, this contention is analogous to a sufficiency of the evidence challenge, see generally Givens v. State, 26 S.W.3d 739, 740 (Tex.App.-Austin 2000, pet. ref'd); Flanary v. State, 166 Tex.Crim. 495, 316 S.W.2d 897, 898 (1958), or error based on an ex post facto claim. See generally Ieppert v. State, 908 S.W.2d 217 (Tex.Cr.App.1995) (<HOLDING>). See also Blue v. State, 41 S.W.3d 129, 131 Holdings: 0: holding that a party may not raise a claim on appeal that was not presented to the trial court 1: holding that a party may not raise an issue for the first time on appeal 2: holding that the sovereign immunity defense may be raised for the first time on appeal 3: holding that claims which were not presented to the motion court cannot be raised for the first time on appeal 4: holding that an ex post facto claim may be presented for the first time on appeal because a categorical prohibition may not be waived


Input: was transferred back to DCXOM because Defendants wanted to get rid of him. 1. Individual Liability Wilson alleges claims of race discrimination pursuant to Title VII, the ELCRA, and 42 U.S.C. § 1981 against Budco and Raymond. As Wilson conceded during a hearing on the motion, an individual who does not qualify as an “employer” is not subject to individual liability under Title VII. Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) (“We now hold that an individual employee/supervisor, who does not otherwise qualify as an ‘employer’ may not be held personally liable under Title VIL”). Individual liability may, however, be imposed pursuant to § 1981 and the ELCRA. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (6th Cir.2000) (internal citations omitted) (<HOLDING>); Elezovic v. Ford Motor Co., 472 Mich. 408, Holdings: 0: holding that employer may be held liable under  1981 for discrimination by supervisory employee 1: recognizing that individuals may be held liable under  1981 for intentional ly discriminatory acts including those giving rise to a hostile work environment 2: holding that individuals can be held liable under  1981 only when they have been personally involved or directly participated in the discrimination 3: holding that the individual defendant does not have to be in privity of contract with the plaintiff to be held liable under  1981 4: holding that individuals may be held liable under  1981 provided there is affirmative link connecting actor with discriminatory action


Input: requirements for public agency employers. Id. “Section 207k give's employers of fire protection and law enforcement personnel greater leeway in structuring wage and time calculations.” Lamon v. City of Shawnee, 972 F.2d 1145, 1153 (10th Cir.1992). Reviewing courts have uniformly noted that the effect of the section 207(k) partial exemption is to temper the impact of the FLSA’s overtime provisions on public employers by raising the average number of hours law enforcement and fire protection personnel may be required to work without triggering the overtime requirement and accommodating the inherently unpredictable nature of those professions by permitting public employers to adopt work periods longer than one week. See Wellington v. City of Montgomery, 935 F.2d 222, 224 (11th Cir.1991) (<HOLDING>). Application of the section 207(k) provision Holdings: 0: holding that in enacting flsa amendments of 1974 congress recognized that certain jobs are not easily susceptible to the workweek method of wage and time calculations and therefore provided special calculation methods for some trades including fire protection and law enforcement 1: holding customer list and pricing information of fire extinguisher business not a trade secret where service was commonly used so potential clients could be easily recognized and market was well established 2: holding that the public duty doctrine applied to claims against the town and fire chief for negligence in responding to a fire call although plaintiff presented sufficient evidence to show the special duty exception applied 3: holding that damage to building and personal property as a result of fire negligently caused by defendant was to be measured by reasonable cash market value of the property at the time it was destroyed by the fire or if it was not totally destroyed by the diminution in its fair market value before and after the fire 4: holding that the relationship between fire insurance regulation and rating fire loss fire prevention and fire investigation is rational and reasonable