Input: about a rival anthropologist, are not reasonably interpreted as factual. 9. Made “Some Threat Against the Faculty” {37} The evidence Plaintiff cites for this alleged defamatory statement is Bernstein’s statement that “I believe there was something in there where [Plaintiff] had finished his dissertation or was writing his dissertation and there was some disagreement between he [sic] and his faculty members and there was some threat against the faculty[.]” This may be susceptible to a defamatory meaning, but we hold that it is too vague to be actionable. The nature of the “threat” is unclear and could refer to a threat of violence, a lawsuit, or any other action. As is noted above, such a vague statement is not actionable as defamation. See Andrews, 119 N.M. at 485, 892 P.2d at 618 (<HOLDING>). {38} Even if actionable, there is Holdings: 0: holding plaintiffs must plead alleged defamatory statements with precision 1: holding that defendant could not be liable for distributing defamatory statements unless it knew or had reason to know of statements 2: holding that plaintiffs did not plead fraud where the complaint only alleged a breach of fiduciary duty 3: holding statements regarding plaintiffs unsatisfactory job performance not defamatory per se 4: 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


Input: factor seven, the relative bargaining power of the parties, weighs against a finding that Martin and Powell knowingly and voluntarily made the waiver. An absence of evidence of equal bargaining power does not meet Bank of America’s burden to produce prima facie evidence of a knowing and voluntary waiver. In short, in the record before us, Bank of America produced no evidence showing that Martin and Powell knowingly and voluntarily waived their constitutional right to trial by a jury. No evidence exists that Martin and Powell’s waiver of their constitutional right to trial by a jury was an “intelligent act done with sufficient awareness of the relevant circumstances and likely consequences” as required by In re Prudential. 148 S.W.3d at 132; RDO Fin. Servs. Co., 191 F.Supp.2d at 814 (<HOLDING>). Consequently, Bank of America failed to meet Holdings: 0: holding that under the sixth amendment a criminal defendant may waive his right to counsel if that waiver is knowing intelligent and voluntary 1: recognizing that courts will enforce waiver of appeal rights when waiver is knowing and voluntary 2: holding a waiver of a substantial constitutional right must be a voluntary knowing and intelligent act 3: holding under similar facts as a matter of law that a knowing and voluntary waiver of powells right to a jury trial has not been demonstrated 4: holding waiver of right to counsel not voluntary and knowing when defendant terminated counsel and requested another attorney but the trial court would allow delay and appointment only upon waiver of speedy trial right


Input: not against the public policy of North Dakota. [¶ 8] “Comity is a principle under which the courts of one state give effect to the laws of another state ... not as a rule of law, but rather out of deference or respect.” Trillium USA, Inc. v. Bd. of County Com’rs of Broward County, 37 P.3d 1093,1098 (Utah 2001). Courts apply comity “.to foster cooperation, promote harmony, and build good will.” Id. This Court has stated comity is “a willingness to grant a privilege, not as a matter of right, but out of deference and good will.” Dow v. Lillie, 26 N.D. 512, 529, 144 N.W. 1082, 1088 (1914). A primary concern is whether the forum state’s public policies will be compromised if comity is applied. Idr, Schoeberlein v. Purdue Univ., 129 Ill.2d 372, 135 Ill.Dec. 787, 544 N.E.2d 283, 288 (1989) (<HOLDING>). The United States Supreme Court has held a Holdings: 0: holding that illinois public policy did not require the application of illinois law to an illinois accident involving only indiana residents insured in indiana 1: holding comity was appropriate when the forum state could not be sued under its laws in similar circumstances and application of a sister states law was consistent with illinois policies 2: holding that the united states was a statutory loaning employer under illinois law 3: holding that in the event that parties are from different states and the subject matter is national in scope and where the contract states it shall be deemed to be made under the laws of the state of new york and for all purposes construed in accordance with laws of said state new york law applies as the parties choice of law 4: holding that in interpreting a contract we look to the conflict of laws rules of  the forum state  to determine which states laws will be controlling


Input: from the defendant’s wife regarding a previous felony conviction for attempted sexual battery which made it clear that the defendant not only attempted, but actually completed the crime of sexual battery on the wife’s daughter. See id. at 406-07. On appeal, Anderson asserted that “since he pled to attempted sexual battery, it was error to permit [the wife] ... to describe the details of a completed crime.” Id. at 407. We denied Anderson’s claim holding that “[wjhether a crime constitutes a prior violent felony is determined by the surrounding circumstances of the prior crime,” and, therefore, “the trial court did not err in permitting the State to present evidence regarding the details of the attempted sexual batteries.” Id.; see also Morgan v. State, 415 So.2d 6,12 (Fla.1982) (<HOLDING>). “[I]t is appropriate in the penalty phase of Holdings: 0: holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill 1: holding that although premeditation is outside the heartland of seconddegree murder guideline upward departure from seconddegree murder guideline based on premeditation was improper because commission considered the defendants state of mind in assigning a higher base offense level to firstdegree murder than to seconddegree murder 2: holding that it was not error to allow the penalty phase jury to hear evidence that the defendants previous conviction of seconddegree murder was obtained pursuant to an indictment for firstdegree murder 3: holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder 4: holding that conviction for seconddegree murder operates as implied acquittal on firstdegree murder count


Input: relation to interstate commerce.” In Lopez, the Supreme Court held that the Gun-Free School Zones Act, which made it a federal offense knowingly to possess a firearm in a school zone, was an unconstitutional exercise of Congressional authority because “[t]he act neither regulates a com mercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.” Id. at 551, 115 S.Ct. at 1626. The Court highlighted that the Act contained “no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or affect on interstate commerce.” Id. at 562, 115 S.Ct. at 1631; see also United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (<HOLDING>). In United States v. McAllister, 77 F.3d 387, Holdings: 0: holding  13981 constitutional under the commerce clause 1: holding that enactment of  13981 exceeded congressional authority under either the commerce clause or section 5 of the fourteenth amendment 2: holding that 42 usc  13981 exceeds congresss authority under the commerce clause 3: holding that enactment of the civil remedy provision of the violence against women act of 1994 42 usc  13981 exceeded congresss power under the commerce clause noting that  13981 contained no jurisdictional element 4: holding that commerce clause did not provide congress with authority to enact civil remedy provision of violence against women act inasmuch as provision was not regulation of activity that substantially affected interstate commerce


Input: type of illegal action that can reasonably be read to preclude coverage. Cf. Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 621 (6th Cir.2007) (using tort law to inform question of whether a crash caused by drunk driving was an “accident”). Under the majority rule of modern tort law, neither driving without insurance nor driving without a license is by itself even negligent. Fed.R.Evid. 411 (“Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.”); Miss. R. Evid. 411 (same); Waugh v. Suburban Club Ginger Ale Co., 167 F.2d 758, 759 (D.C.Cir.1948) (lack of a D.G. driver’s license is not relevant to question of negligence); Myrick v. Holifield, 240 Miss. 106, 126 So.2d 508, 511 (1961) (<HOLDING>); R.P. Davis, Lack of Proper Automobile Holdings: 0: holding that the race of the prosecutor is irrelevant 1: holding that this lack of any reasonable expectation of continued employment suffices to establish the lack of property in the constitutional sense and hence the lack of a viable due process claim 2: holding that lack of justiciable interest resulted in lack of standing to pursue claim and that lack of standing deprived the trial court of jurisdiction to act 3: holding that the lack of a drivers license is totally irrelevant to the issue of negligence 4: holding that the burden of proving lack of negligence is on the owner


Input: than life” where no other sentence-enhancing facts exist). As discussed above, the district court judge operated under the assumption that this statutory provision applied when he informed Lucas of the potential term of imprisonment. Lucas, however, admitted responsibility for only one ounce, or 28 grams, of crack cocaine. To be consistent with Apprendi, his term of imprisonment based on that quantity of the drug would range between 5 and 40 years. 21 U.S.C. § 841(b)(1)(B) (providing that a violation of § 841(a)(1) involving five grams or more of a mixture than contains cocaine base requires “a term of imprisonment which may not be less than 5 years and not more than 40 years” where no other sentence-enhancing facts exist); United States v. Harper, 246 F.3d 520, 530-31 (6th Cir.2001) (<HOLDING>). Applying these principles to the present Holdings: 0: holding that where the indictment charged drug quantity but drug quantity was not submitted to the jury the district court erred in using drug quantity to increase the penalty beyond the twentyyear maximum of  841b1c 1: holding that apprendi is not implicated where the defendant has stipulated to the amount of drugs for which he was held responsible and the district court did not rely on any fact outside of the plea agreement to determine drug quantity at sentencing 2: holding apprendi does not require proof of knowledge as to type or quantity of drugs 3: holding that apprendi has not affected the district courts authority to determine facts for sentencing at or below the statutory maximum 4: holding harmless any error in district courts drug quantity determination where undisputed quantity of drugs was enough to place defendant at the base offense level calculated by the district court


Input: police department. See Cottrell, 42 Fed.Cl. at 148 (citing United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941)); Moore v. Public Defenders Office, 76 Fed.Cl. 617, 620 (2007) (explaining the court has no jurisdiction over “local, county, or state agencies, rather than federal agencies”). This court may only consider claims properly brought against the United States. 28 U.S.C. § 1491(a)(1). Fourth, the alleged incident appears to have occurred at least fifteen years ago. See Hicks I, 2011 WL 3319563, at *1. As such, the tort claims are untimely because they fall well outside this court’s general six-year statute of limitations. See 28 U.S.C. § 2501; John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (<HOLDING>). Accordingly, this court has no authority to Holdings: 0: holding that the aedpa statute of limitations is not jurisdictional 1: holding sixyear statute of limitations applies to adea actions involving federal employees 2: holding that this courts sixyear statute of limitations is jurisdictional 3: holding that the courts statute of limitations is jurisdictional in nature and is thus not subject to waiver or estoppel 4: recognizing a sixyear statute of limitations on claims filed under the coal act


Input: court has jurisdiction to review an IJ’s decision to deny an alien’s application for voluntary departure. See IIRIRA § 309(c)(4)(E) (providing that for those cases in which a final order of deportation has entered more than 30 days from the date of IIRIRA’S enactment (i.e. after October 30, 1996), notwithstanding other provisions of the INA in effect as of the date of enactment of IIRIRA to the contrary, "there shall be no appeal of any discretionary decision under section ... 244-’’). Because a final order of deportation, subject to Kamara’s motion to reopen, was entered on October 27, 1997 — well after the October 30, 1996 triggering date imposed by the transitional rules — Kamara’s case is covered by section 309(c)(4)(E). Compare Skutnik v. INS, 128 F.3d 512, 513-14 (7th Cir.1997) (<HOLDING>); and Meguenine v. INS, 139 F.3d 25, 26 (1st Holdings: 0: recognizing detention during deportation proceedings as a constitutionally valid aspect of the deportation process 1: holding that the time limit for filing a petition for review of a final order of deportation is jurisdictional 2: holding that a deportation proceeding commenced after an order to show cause issued 3: holding that so long as the petitioner is subject to a final order of deportation an alien is deemed to be in custody1 for purposes of the ina 4: holding that under section 309c4e the court lacked jurisdiction to review denial of suspension of deportation under section 244 of the ina 8 usc  1254 1996 where final order of deportation was issued on february 27 1997


Input: resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). The government’s interpretation of Bloate’s waiver — “a motion for leave to waive his right to file pretrial motions”— has several faults. First, Bloate’s “Waiver of Pretrial Motions” does not appear to be a motion. It states that “there are no issues he wishes to raise by way of pretrial motions,” and that he agrees, after discussion with his attorney, “not to raise any issues by way of pretrial motion.” Cf. United States v. Bonilla-Filomeno, 579 F.3d 852, 856-57 (8th Cir.2009) (“motion to set a specific trial date” is a pretrial motion); United States v. Rojo-Alvarez, 944 F.2d 959, 966 (1st Cir.1991) (<HOLDING>). Second, the district court treated the waiver Holdings: 0: holding that the district court may determine whether there is a genuine issue of fact on summary judgment based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers 1: holding that the timely filing of a motion to reopen or reconsider with the bia does not toll the time period for seeking appellate court review and that the mere act of filing the motion does not render nonfinal the underlying bia decision 2: holding that when the court is presented with papers styled as a motion whether it ultimately determines that the filing is a pretrial motion or an other proceeding under current  3161h1h  the court is entitled to exclude at least the period of time during which it considers how to treat the filing 3: holding that because the finality of judgment is effectively postponed by the timely filing of a motion under rule 59 the deadline for filing a motion for attorneys fees is tolled until the postjudgment motion is resolved 4: holding that the filing of notice without motion is insufficient


Input: be unmoved by anything the defendant might say during the allocution). In keeping with the importance of this rule, if a sentencing court fails to provide a defendant with the chance to address the court, the reviewing court must remand the case for resentencing, generally without needing to inquire into prejudice. See De Alba Pagan, 33 F.3d at 130. To satisfy the requirements of Rule 32(c)(3)(C), we encourage the sentencing court to address the defendant personally, see Green, 365 U.S. at 304, 81 S.Ct. 653, and allow the defendant to speak on all topics which the defendant considers relevant. See De Alba Pagan, 33 F.3d at 129. The sentencing judge must be explicit when informing the defendant of her right to allocute. See United States v. Edgecomb, 910 F.2d 1309, 1315 (6th Cir. 1990) (<HOLDING>); see also United States v. Navarro-Flores, 628 Holdings: 0: holding that if the government fails to object to the presentence report the district courts reliance on the report is reviewed for plain error 1: holding it insufficient when the sentencing judge only questioned defendant on certain aspects of the presentence report 2: holding that the information contained in a presentence report is reliable because it is based upon the presentence officers research of the records contact with relevant agencies and the gathering of information which is required to be included in a presentence report 3: holding defendants failure to object to the drug quantity assessment in the presentence report at sentencing was a waiver of the issue on appeal 4: holding that sentencing court may not adopt facts from codefendants presentence report that was not disclosed to defendant


Input: U.S. Const. amend. II. In Heller, the Court determined that “the Second Amendment conferred an individu al right to keep and bear arms.” 128 S.Ct. at 2799. The holding in Heller is very limited, however, and the Court did not address whether (1) the Second Amendment applies to the states; (2) the individual right to keep and bear arms is a fundamental right; or (3) strict scrutiny or intermediate scrutiny is the proper standard of review. In assessing the validity of appellant’s claim, we must first address the reach of the Second Amendment. “It is settled law ... that the Second Amendment applies only to limitations the federal government seeks to impose on this right.” Maloney v. Cuomo, 554 F.3d 56, 58 (2nd Cir.2009). See also, Bach v. Pataki, 408 F.3d 75, 84 (2d Cir.2005) (<HOLDING>); State v. Mendoza, 82 Hawai’i 143, 920 P.2d Holdings: 0: holding that the second amendment fully applies to state and local regulation through the fourteenth amendment 1: holding that the limitation of  1367b applies only to plaintiffs efforts to join nondiverse parties 2: holding that duration of limitation is a factor in determining whether limitation is significant 3: holding that the fourteenth amendment only applies to state action 4: holding that the second amendment imposes a limitation on only federal not state legislative efforts


Input: lawyers bring a lawsuit expecting settlement merely because the cost of settling is cheaper than actually disputing the allegations and proceeding with discovery. See Lentell v. Merrill Lynch & Co., 396 F.3d 161, 171 (2d Cir. 2005) (describing one purpose of PSLRA as deterring strike suits). (Indeed, by “bottom-line” order issued last week, the Court partially denied defendants’ motions to dismiss the complaint. See Order dated February 14, 2012.) Additionally, the Retirement System’s claim as a common shareholder of Lockheed Martin is not subject to any unique defenses that would make it an atypical or inadequate lead plaintiff or not otherwise satisfy the requirements of Rule 23. See § 78u-4(a)(3)(B)(iii)(I)(cc), (II)(bb); Sgalambo v. McKenzie, 268 F.R.D. 170, 173 (S.D.N.Y.2010) (<HOLDING>); PI. Br. at 3-4 (asserting Retirement System Holdings: 0: holding that proposed settlement class in asbestos personal injury action did not satisfy federal rule of civil procedure 23 adequacy of representation typicality or predominance requirements where exposureonly futures claimants were not adequately represented and where multiple defendants and widely divergent claims would pose an obstacle to trial 1: holding that plaintiff need only plead damages in rico cases sufficient to meet rule 8s requirements 2: holding that even if a defendant in a proposed class action does not seriously contest whether the rule 23 requirements have been met a court nevertheless has the responsibility of conducting its own inquiry as to whether the requirements of rule 23 have been satisfied in a particular case 3: holding plaintiff seeking lead plaintiff status need only make preliminary showing that it will satisfy the typicality and adequacy requirements of rule 23 4: holding that where it is clear from the allegations on the face of the complaint that the party seeking class certification could prove no set of facts sufficient to satisfy the requirements of both civ r 23 a and civ r 23 b the trial court may deny a motion to certify made pursuant to civ r 23 c without first granting the movant an evidentiary hearing pursuant to civ r 23 c 1


Input: and that the moving party is entitled to judgment as a matter of law. Bass, 418 F.3d at 872 (citing Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 834 (8th Cir.2002)). Despite her assertion to the contrary, Owens did not present any direct evidence of discrimination. “Direct evidence for these purposes includes evidence of ‘remarks of the employer that reflect a discriminatory attitude,’ as well as ‘comments which demonstrate a discriminatory animus in the decisional process or those uttered by individuals closely involved in employment decisions.’ ” Roberts v. Park Nicollet Health Servs., 528 F.3d 1123, 1128 (8th Cir.2008) (quoting EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 923 (8th Cir.2002)); accord Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1034 (8th Cir.2007) (<HOLDING>) (quoting Griffith v. City of Des Moines, 387 Holdings: 0: holding that  direct evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action  1: holding that the relevant issue is whether the evidence could support a reasonable factfinders conclusion that a discriminatory animus served as the basis for the employers decision 2: holding that if a reasonable fact finder could make a particular finding on the administrative record then the finding is supported by substantial evidence 3: holding that an isolated comment is not direct evidence of discrimination even if a plaintiff interpreted it as motivated by a discriminatory animus 4: holding causal link between alleged discriminatory remarks and adverse employment action insufficient


Input: ICP. Finally, the course of dealings of the parties to the Contribution and Assumption Agreement could also allow a reasonable jury to find Pillsbury did not intend to assign the present cause of action to ICP. Shortly after Pillsbury entered into the Contribution and Assumption Agreement it gave notice to Wells that it assigned all its interest in the production contract between them to ICP. Pillsbury also gave this notice to Nestlé, the other party to the agreement, and to ICP, the entity created by the agreement. In that notice Pillsbury stated it was not assigning “any claims, rights or remedies of Pillsbury relating in any way to the explosion that occurred at the Wells facility in Le Mars, Iowa in March 1999.” See Miller v. Geerlings, 256 Iowa 569, 579, 128 N.W.2d 207, 213 (1964) (<HOLDING>); see also Restatement (Second) of Contracts § Holdings: 0: holding that when a contract is unambiguous the court will enforce the plain meaning of the contract as the intention of the parties 1: holding the court will adopt the practical construction placed upon a contract by the parties 2: recognizing that the constitutional right to appeal must be given a practical construction 3: recognizing that when an interpretation upholding the constitutionality of a statute is available to this court it must adopt that construction 4: holding a case becomes moot when a ruling will have no practical effect upon the existing controversy


Input: under Texas law, ought to be allowed to do so. See, e.g., id. at 277 (“[I]n cases in which injury occurs often enough before trial that jurors can make a reasonable estimate of the long-term impact of the nuisance on the market value of a property, they ought to be allowed to do so.”). The consequences of the trespass should have been reflected in the market value of the property when plaintiff acquired it. After reviewing the record, the court finds that the trespass was permanent. Thus, the injury occurred in July 1998, before plaintiff owned the property. As the subsequent landowner, plaintiff lacks standing to sue for injuries that occurred before his ownership — the previous owner was the party who was actually harmed by the prior injury. See, e.g., Denman, 2005 WL 2316177, at *4 (<HOLDING>). Defendant argues that plaintiffs injunctive Holdings: 0: holding that driver was not bound in subsequent personal injury case by prior arbitration decision that plaintiffs injuries were related to auto accident because driver was not in privity with his insurance carrier and did not participate in arbitration 1: holding arbitration decision disallowing insurers coverage defense binding in subsequent personal injury action where the issue was actually litigated and decided in prior action 2: holding that the owner of the land could not bring a 93a action against a prior owner of the land who was not the seller because there was no business connection between the two parties 3: holding that a subsequent landowner lacks standing for injuries before his or her ownership because the prior owner was the party who was actually harmed by the prior injury 4: holding that a civil claim is barred by collateral estoppel even though the prior adjudication was in criminal proceedings and the parties are not the same because the matters were actually litigated and decided in the prior trial


Input: and successive petitions under § 2254, as well as of the evolution of habeas law prior to' passage of the AEDPA, we answer this question in the affirmative. Our sister circuits have held that the denial of a first § 2254 petition for procedural default, which default is not overcome by a showing of cause and prejudice, “must be regarded as a determination on the merits in examining whether a subsequent petition is successive.” Bates v. Whitley, 19 F.3d 1066, 1067 (5th Cir.1994); accord Hawkins v. Evans, 64 F.3d 543, 546-47 (10th Cir.1995) (quoting Bates); Howard v. Lems, 905 F.2d 1318, 1322-23 (9th Cir.1990) (dismissal for procedural default, unlike dismissal for failure to exhaust state remedies, is a disposition on the merits); cf. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992) (<HOLDING>). Although these decisions predate the AEDPA Holdings: 0: holding that federal review of claims is barred where those claims have been defaulted in state court pursuant to an independent and adequate state procedural rule unless the petitioner can demonstrate cause and prejudice 1: recognizing that proof of extreme delay establishes prejudice 2: holding that a district court may review successive or abusive claims but only if petitioner establishes cause and prejudice 3: holding that a district court lacks jurisdiction to review a second or successive  2255 motion where the movant failed to obtain authorization to file the motion from this court 4: holding that district court has no jurisdiction to decide unauthorized second or successive  2255 claims


Input: Wainwright v. Norris, No. 94-3525 (8th Cir. Jan. 2, 1997) (order denying motion to recall mandate). We see nothing in the Board’s ruling foreclosing consideration of the merits of Wainwright’s request for mercy now, when the request is truly Wainwright’s last chance. In the second action, Wainwright asserts his equal protection, due process, and Eighth Amendment rights have been violated because the Governor of Arkansas and his executive clemency assistant have actual conflicts of interest. Wainwright also asserts he was denied his due proces k.) (rejecting civil rights claim that clemency decision by biased Governor violates due process or equal protection), aff'd, 23 F.3d 1477 (8th Cir.1994) (en banc); see also Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 969 (8th Cir.) (<HOLDING>), cert. denied, — U.S.-, 117 S.Ct. 1, 135 Holdings: 0: holding no procedural or fundamental constitutional right creates a protected interest in standardless clemency statute absent a constitutionally protected interest clemency statute only provides a statecreated right to ask for mercy 1: holding that the district court was authorized to remand the proceedings to the board where the board failed to make required findings 2: holding there is no constitutionally protected interest in how the nebraska board of pardons receives a clemency request or in having unbiased decisionmakers on the board right to consideration of clemency not violated when decisionmaker is predisposed 3: holding that the board as constituted on the date that the original complaint was filed is the board for purposes of evaluating whether demand is required or excused 4: holding the issue of use can be necessary to the adjudication by the board of adjustment of the underlying request for a variance when the issue is raised in the context of an issue the board of adjustment is required to decide


Input: a line for the employee’s signature, a clear disclaimer that the handbook was not intended to form a separate contract as well as a statement that “all of the provisions of the handbook ... are only guidelines.” Id. at 53. Massachusetts courts have so recognized the legal effect of employee manuals. See O’Brien v. New England Telephone & Telegraph Company, 422 Mass. 686, 693, 664 N.E.2d 843 (“Of course, the provisions of a personnel manual on analysis may grant no rights. [Jackson v. Action for Boston Cmty. Dev., Inc., 403 Mass. 8, 525 N.E.2d 411 (1988) ] noted that, if the manual states that it provides only guidance as to the employer’s policies ..., it may not create any enforceable rights.”); cf. Ferguson v. Host Int’l, Inc., 53 Mass.App.Ct. 96, 103, 757 N.E.2d 267 (2001) (<HOLDING>). The Court thus rules that the personnel Holdings: 0: holding that a defendants stipulation to the facts establishing guilt was the functional equivalent of guilty plea 1: holding inconspicuous written disclaimer to be unenforceable absent actual knowledge of the disclaimer 2: holding that where the disclaimer provisions in the employee manual properly could be viewed by the fact finder as the functional equivalent of fine print they did not pre vent the formation of a contract 3: holding that a change in the method of compensation met the consideration requirement of contract formation 4: holding an employee manual did not create contract restricting the employmentatwill relationship


Input: of service, or disability not compensated under the workers’ compensation law. The remaining subsections of § 48-628 outline other behaviors or scenarios 2d 804 (Del. Super. 1982); Stafford v. Welltech, 867 P.2d 484 (Okla. App. 1993). The rationale in the cases for permitting recovery under both acts is that the statutory language does not prohibit a dual recovery and is further based upon the beneficent objectives of both workers’ compensation and employment security legislation. See Levi Strauss & Co., supra; Neuberger, supra; Mendez, supra; Stafford, supra. As noted by the defendants, other states deny or reduce unemployment benefits by the amount of workers’ compensation the claimant receives or vice versa. See, e.g., Cuellar v. Northland Steel, 226 Mont. 428, 736 P.2d 130 (1987) (<HOLDING>); St. Pierre v. Fulflex, Inc., 493 A.2d 817 Holdings: 0: holding that in absence of statute prohibiting recovery claimant may receive workers compensation and unemployment benefits simultaneously 1: holding that district court had discretion to decline to offset severance and unemployment payments from damages award 2: holding that legislature clearly intended that workers compensation act and unemployment security act be construed together thus prohibiting worker from receiving both unemployment compensation and workers compensation payments for same period 3: holding that pursuant to statute unemployment benefits must be offset against workers compensation payments 4: holding that claimant may simultaneously receive unemployment benefits and workers compensation for temporary partial disability where statute only precludes receipt of workers compensation for temporary total or permanent total disability if claimant is receiving unemployment benefits


Input: “at its peril.” Gregory, 705 F.2d at 1123. The Board argues that even though it received this official notice, it could not determine the Joyes’ actual tax liability until after October 15, 2001 because California’s income tax system relies on taxpayers to assess how much they owe and inform the Board of that amount through a tax return. But this does not change the fact that the Board received actual notice of the Joyes’ bankruptcy petition, which had scheduled the Board as a priority creditor for an estimated $10,000. Although this estimate was below the actual amount owed, the estimate certainly put the Board on notice that it may be entitled to some amount of payment from the Joyes’ Chapter 13 estate. Cf. In re Coastal Alaska Lines, Inc., 920 F.2d 1428, 1431 (9th Cir.1990) (<HOLDING>); In re Kragness, 82 B.R. 553, 555 Holdings: 0: holding that the operative fact is whether or not the creditor has notice of the debtors bankruptcy proceeding in time to file a timely proof of claim 1: recognizing that when a creditor does not receive adequate notice the creditor is not bound by the confirmation order 2: holding that despite a lack of any formal notice tulsa requirement was satisfied by a showing that because the creditor was also the executor of the estate the creditor had actual notice of the pendency of the estate proceedings 3: holding that an unscheduled creditor had constitutionally adequate notice of the bankruptcy proceedings because it had sufficient information to evaluate whether to participate in the case and protect its interests 4: holding that creditor did not have actual knowledge of the bankruptcy filing where the debtor informed creditor of the possibility that a bankruptcy case would be filed


Input: to state a claim under Federal Rule of Civil Procedure 12(b)(6), the D.C. Circuit has explained that because the FTCA waives sovereign immunity only as to claims where the government would be liable under local law, and because that waiver is "coextensive with the district court’s subject matter jurisdiction to hear the case,” the government’s "arguments against [a plaintiff’s] proposed local analogs” actually go to the Court's subject-matter jurisdiction. See Hornbeck, 569 F.3d at 512; see also Fed.R.Civ.P. 12(b)(1) (governing motions to dismiss for "lack of subject-matter jurisdiction”). 12 . Defendant also argues that the Court lacks jurisdiction over Mr. Lewis’s claims pursuant to the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (<HOLDING>). Although the Court has serious doubts about Holdings: 0: holding that where the employment of the injured employees was the occasion of the injury the injuries arose out of employment 1: holding that where the claimants were servicemen injured or killed while on active duty due to the negligence of others in the armed forces they could not seek recovery under the ftca for injuries sustained that arose out of or were incident to their military service 2: holding that tort claims were arbitrable because they arose out of and were related to contract 3: holding that the govemment is not liable under the federal tort claims act for injuries to service members where the injuries arise out of or are in the course of activity incident to military service 4: holding that the united states is immune from monetary damages for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service


Input: she had just awakened and was “wrapped in a blanket,” that the encounter lasted approximately seven minutes, and that she believed she had no choice but to consent. Id. at 19-20. Although we emphasize that our ruling is based on a consideration of the totality of the circumstances, we will briefly discuss each o elate to Ms. Sugura’s refusal to consent to the search, but only to her statements that Mr. Miles was not in the apartment. The officers never threatened to punish Ms. Sugura for refusing to consent, they merely advised her that harboring a fugitive was itself a crime, for which she could be arrested. Accordingly, the cases in which courts have found an officer’s threats to negate consent are inapposite. See, e.g., United States v. Bolin, 514 F.2d 554, 559-60 (7th Cir.1975) (<HOLDING>); Waldron v. United States, 219 F.2d 37, 39 Holdings: 0: holding consent not voluntary where police threatened to arrest defendants girlfriend if he refused to sign consent form 1: holding that warrantless search of defendants vehicle was legal because defendants consent was voluntary even through he was in police custody at the time of giving consent 2: holding consent invalid where defendant threatened by officer that everyone in the house would go to jail if he did not sign consent form 3: holding consent invalid where defendant signed consent form while undergoing custodial interrogation and only after he had been impliedly threatened that his girlfriend would be arrested if he did not sign 4: holding defendants girlfriend had authority to consent to search as a joint occupant


Input: the liquidation proceeding, even if that claim "may be contingent!.]" NJ.S.A. I7:30C-28(b). Furthermore, those third-party claims may be allowed if, among other requirements, it may be "reasonably inferred" from the proofs that the person "would be able to obtain a judgment upon such cause of action!.]” Ibid. Unlike the requirement in subsection (a) that claims be "absolute,” the Legislature adopted a different standard, designed to cover non-final, contingent third-party claims, where it so intended. 3 This conclusion is shared by those states that similarly restrict participation in the assets of liquidated insolvent insurers to liquidated claims, as well as by commentators in this field. See, e.g., Quackenbush v. Mission Ins. Co., 46 Cal.App.4th 458, 54 Cal.Rptr.2d 112, 113 (1996) (<HOLDING>); In the Matter of the Liquidation of Am. Mut. Holdings: 0: recognizing that claims against a state under  1981 are barred by the eleventh amendment 1: holding that ibnr claims are barred by statute forbidding payment from insolvent insurers estate of claims founded upon unliquidated or undetermined demands 2: holding that the industrial commission only had subject matter jurisdiction over claims under the payment of wages statute and not contract claims 3: holding that the court of federal claims lacked jurisdiction over claims arising from the violation of a criminal statute 4: holding only that the statute does not require insurers to disclose payment logs


Input: serves an important state interest. King, 119 N.H. at 221. To that end, “[s]everal statutes demonstrate a legislative intention that counsel fees and expenses of a State official who defends a State interest must be paid by the State.” Id. at 221-22. The principle in King is inapplicable here. In King, the court found statutory support for a legislative intention to award attorney’s fees to a state executive who withstood removal attempts by the executive branch, whereas in the present case, there is no statutory support for a legislative intention to award such fees to a state judge who withstands impeachment by the legislature. Cf. id. Additionally, in contrast to King, there is no evidence in this case of other legislative action indicating such an intention. Cf. id. at 220-21 (<HOLDING>). In this context, we cannot find a legislative Holdings: 0: holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees 1: holding that no reason existed to create a uniform national rule in admiralty where the case concerned attorneys fees and whether the contractual provision which provided for attorneys fees should allow a party to recover attorneys fees where it succeeded on all but one minor issue 2: holding that tcprc section 380018 authorizing recovery of attorneys fees against individual or corporation does not provide for award of attorneys fees against limited partnership 3: recognizing legislative bill authorizing appropriation for substantial portion of petitioners attorneys fees 4: holding motion for attorneys fees was necessary predicate


Input: standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998). The standards that apply to dismissal under Fed.R.Civ.P. 12(b)(6) apply to dismissal under § 1915A(b)(l). See, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997) (addressing 28 U.S.C. § 1915(e)(2)(B)). That is, although the complaint need not provide detailed factual allegations, there “must be enough to raise a right to relief above the speculative level,” and the complaint must contain enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Watts v. Florida Int’l Univ., 495 F.3d 1289, 1295-96 (11th Cir.2007) (<HOLDING>). “In order to prevail on a civil rights action Holdings: 0: holding that dismissal pursuant to rule 12b6 is appropriate if the plaintiff is unable to articulate enough facts to state a claim to relief that is plausible on its face 1: holding that a complaint must contain enough facts to state a claim to relief that is plausible on its face 2: holding that a complaint must contain only enough facts to state a claim to relief that is plausible on its face 3: holding that a complaint must plead enough facts to raise a right to relief above the speculative level and state a plausible claim 4: holding that a complaint is sufficient if it identifies facts that are suggestive enough to render the necessary elements plausible


Input: the government's brief pointed to only three indicia of suspicion, namely Foreman: (1) was stopped “on Route 13, a known drug corridor''; (2) made a “very brief trip to New York, a source city for drugs"; and (3) “avoided eye contact” and "exhibited signs of extreme nervousness.” J.A. 24 (Resp. Mot. Suppress at 5). 8 . "Several” is defined, as "[bjeing of a number more than two or three but not many” or "[a]n indefinite but small number; some or a few.” American Heri th Cir.2003) ("There is no reason why [the officer] should have reasonably suspected that [the suspect's] nervousness was tied to anything other than the fact that he was being momentarily detained by an authority figure with police power over him.”); United States v. Santiago, 310 F.3d 336, 338-39, 342 (5th Cir.2002) (<HOLDING>). 10 . The majority characterizes my reliance Holdings: 0: holding defendants nervousness in part presented officer with reasonable articulable suspicion of criminal activity 1: holding nervousness is of limited significance in determining whether reasonable suspicion exists 2: holding that inconsistent answers about ownership of the vehicle and travel itinerary were not enough to give rise to a reasonable suspicion that defendant was trafficking in drugs 3: holding that extreme nervousness potentially inconsistent stories and other suspicious answers did not amount to a reasonable or articulable suspicion 4: holding that reasonable suspicion existed based on defendants nervousness expired drivers license and suspicious story regarding travel plans


Input: Mason, 2004 WL 3242339 at **5-7 (concluding that a plaintiffs failure to submit evidence from a medical professional demonstrating that she was unable to work made it impossible for the plaintiff to factually establish that she suffered from a serious health condition and, therefore, a prima facie case of FMLA interference); Niese v. Gen. Elec. Appliances, 2001 WL 290382 at *7 (S.D.Ind.2001) (“A release to work without restrictions is not consistent with a request for FMLA leave due to the employee’s serious health condition that makes her unable to perform her job.”). As a result, because Matthys can not factually establish that she suffered from a serious health condition, Matthys can also not legally establish a prima facie claim of FMLA interference. See Darst, 512 F.3d at 910-12 (<HOLDING>); Murphy v. N. Am. Lighting, 540 F.Supp.2d Holdings: 0: holding that there was no sustainable fmla interference claim wherein a plaintiff could not establish that her daughter suffered from a serious health condition as defined by the regulations 1: holding the district court did not err in denying the defendants rule 60b3 motion where the defendant had an opportunity to cure any prejudice because the plaintiffs failure to disclose evidence did not interfere with the defendants ability to proceed 2: holding that a plaintiffs failure to submit evidence of continuing treatment by a health care provider as defined by the regulations was fatal to a plaintiffs fmla interference claim regardless of the defendants alleged failure to allow the plaintiff an opportunity to cure medical certification deficiencies 3: recognizing that a lack of funds may justify a failure to receive medical care however a plaintiffs case is buttressed by evidence he related an inability to afford prescriptions to his provider and was denied the prescription 4: holding that a plaintiffs failure to obtain evidence of continuing treatment an element of a serious health condition was fatal to a plaintiffs fmla interference claim regardless of the plaintiffs allegations that the defendant failed to allow the plaintiff an opportunity to cure medical certification deficiencies in so ruling the 7th circuit denied the plaintiffs estoppel arguments and instead placed an affirmative duty on the plaintiff to present sufficient evidence to establish a serious health condition as defined by the regulations in order to overcome a summary judgment motion on an fmla interference claim


Input: (plurality op.). Notably, both forms of analysis derived from social science literature, as did the definition of “racially polarized” voting adopted by the Court. Id. at 53, 106 S.Ct. 2752 nn.20-21. Outside of the voting context, the Supreme Court has embraced new social science theories and empirical analyses to resolve a variety of constitutional and statutory disputes. See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 881-82, 889-92, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (appealing to “the theoretical literature” and a variety of economic analyses to support its decision to reverse century-old precedent treating vertical price restraints as a per se violation of the Sherman Act); Utah v. Evans, 536 U.S. 452, 465, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002) (<HOLDING>); Maryland v. Craig, 497 U.S. 836, 855, 857, Holdings: 0: holding that census bureaus use of hotdeck imputation to conduct decennial census did not violate census statute or the constitution relying on the technical literature to determine whether hotdeck imputation constitutes sampling 1: holding that the fact that parallel proceedings force a defendant to make a difficult choice as to whether to testify does not of itself violate the constitution 2: holding the exclusion did not violate the equal protection clause of the wyoming constitution or the fourteenth amendment to the united states constitution 3: holding that central assessment by the unit method of valuation did not violate the equal protection clause of the united states constitution or the uniform operation of laws provision in the utah constitution 4: holding that summary judgment was not improper merely because there was a possibility that literature not yet produced would support the claim


Input: hearsay rule. In resolving this issue, we initially observe that a trial court has broad discretion in ruling on the admissibility of evidence, and we will reverse only when the trial court has abused its discretion. Jones v. State, 800 N.E.2d 624, 626-27 (Ind.Ct.App.2003). An abuse of discretion will only be found if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. at 627. Although Davis contends on appeal that the police report should have been excluded because it was not properly authenticated, we note that Davis objected to the admission of the report at trial only on the grounds that the report constituted hearsay. As a result, Davis has waived this argument. See Small v. State, 736 N.E.2d 742, 747 (Ind.2000) (<HOLDING>). In addressing Davis’s claim that the police Holdings: 0: holding that the defendant may not state one ground at trial and another on appeal 1: holding party may not argue one ground at trial and another on appeal where appellant did not object to testimony at trial on the grounds raised on appeal that it was improper character evidence but objected only on the basis of relevancy issue was not preserved for review 2: recognizing that a defendant may not raise one ground for objection at trial and argue a different ground on appeal 3: holding to preserve an issue for appellate review the issue must have been raised to and ruled upon by trial court and a party may not argue one ground for objection at trial and another ground on appeal 4: holding an issue not preserved when one ground is raised to the trial court and another ground is raised on appeal


Input: opposed was in fact a violation of [the DCHRA]”). Rather, Plaintiff must merely allege, as she does here, that she complained about the sexually degrading nature of the uniforms, i.e. a protected activity, and was terminated in retaliation. See Am. Compl. ¶¶ 15-16. And, in order to complain that the uniforms were sexually degrading, she need not demonstrate that they were unsafe, of poor quality, and inconsistent with generally accepted hotel industry standards. As a result, CBA Article 8.1 would have no impact on Plaintiffs retaliation claim, and is thus irrelevant to the Court’s preemption analysis. Moreover, it is clear that Plaintiffs right against retaliation is not created by the CBA, but is a state-created right under the DCHRA. See e.g., Lingle, 486 U.S. at 412, 108 S.Ct. 1877 (<HOLDING>). Plaintiff alleges that she engaged in a Holdings: 0: recognizing the statelaw privilege because there was no federal claim to which the records sought would be relevant 1: holding that the statelaw protecting employees from retaliatory discharge was independent from the cba because the statelaw claim could be resolved without interpreting the agreement itself 2: holding that a wrongful discharge claim based on violation of a state public policy is not preempted because it is a nonnegotiable independent statelaw right 3: holding that if the state law claim can be resolved without interpreting the agreement the claim is independent for  301 preemption purposes 4: holding that plaintiffs retaliatory discharge claim under michigan law was not preempted because the statelaw tort of retaliatory discharge creates rights independent of those established by the collective bargaining agreement further holding that discrimination claim was not preempted even though the employer was likely to rely on provisions of the cba in its defense


Input: YVMH argues that the regulation’s anti-competitive effects render it hybrid. Third, YVMH asserts that the State delegated market authority to hospitals with CON licenses because they have the ability to perpetuate their local monopolies. These arguments are unpersuasive. First, a regulation that enables private actors to enjoy a monopoly is not necessarily a hybrid restraint. Although allowing only certain hospitals to perform elective PCI’s might drive up cost by limiting supply and inhibiting competition, a regulation’s anti-competitive effects are insufficient to render it hybrid. Those anti-competitive effects are not the result of private action or collaboration given the State seal of approval, but are contemplated by the State’s licensing scheme. Cf. Costco, 522 F.3d at 890 (<HOLDING>). The cases YVMH cites for contrary authority Holdings: 0: holding that a maximum vertical price maintenance scheme is not per se illegal 1: holding contract for sale of water which did not specify price was unenforceable because price of water was essence of contract 2: holding that the market price is understood to mean the current market price being paid for gas at the well where it is produced 3: recognizing that enhancement requires control over a participant in the scheme not only control over the scheme itself 4: holding that a scheme that enabled price collusion among private actors was hybrid


Input: v. BBC, Inc., 575 F.Supp. 1354, 1357 (S.D.Ohio 1983)). Here, Defendant contracted for employment with an Ohio corporation and performed duties on the corporation’s behalf inside and outside of the state. The status of Defendant as an employee relates directly to the matters at issue in this case. A nexus exists between the business dealings of Defendant and Plaintiff that produced the Agreement and the continuing contractual obligations created by the Agreement. Moreover, Defendant’s breach of the Agreement gives rise to the cause of action. The Sixth Circuit has held that “if the cause of action is for breach of that contract [with an Ohio resident] ... then the cause of action naturally arises from the defendant’s activities in Ohio.” Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.1998) (<HOLDING>). Defendant established a significant ongoing Holdings: 0: recognizing that the ohio longarm statute does not extend to the limits of due process and focusing the inquiry on whether defendant established sufficient business contacts with ohio 1: holding that north carolinas longarm statute extends to the limits of due process 2: holding that the defendants contacts with ohio were sufficient to support the exercise of jurisdiction where defendant consciously reached out from texas to ohio to subscribe to compuserve and sold his software over compuserves ohiobased system 3: holding personal jurisdiction did not exist over the londonbased international amateur athletic federation iaaf despite the fact that its member organization in the usa had minimum contacts with ohio where the plaintiffs contract claim did not arise out of iaafs contacts with ohio 4: holding that a maryland court could not exercise jurisdiction over an ohio lawyer when a maryland client initiated five of seven contacts with the lawyer the parties created the attorneyclient relationship in ohio and the attorneyclient relationship involved only events in and the law of ohio


Input: proceeding, Plaintiff received more than adequate process in this case. Plaintiff admitted then and admits now that he engaged in the relevant conduct regarding the Big Splash account. He merely contended that his actions were implicitly authorized by Miller’s “off the radar” comments, and the Trustees were aware of this alleged authorization. During the executive session, Trustees heard from Plaintiff and Miller, the only two people privy to the alleged conversation during which Miller instructed Plaintiff to keep it “off the radar.” Under these circumstances, Plaintiff was not denied adequate procedural due process based on his inability to present and cross-examine witnesses. Cf. McClure v. Ind. Sch. Dist. No. 16, Mayes Cnty., Okla., 228 F.3d 1205, 1211 (10th Cir.2000) (<HOLDING>) (explaining that presentation and Holdings: 0: holding that the state courts factfinding procedure was adequate even though it did not hold an evidentiary hearing because  hearing as used in  2254d does not require a trialtype hearing at which live testimony is presented and the accused has the opportunity to crossexamine witnesses 1: holding a due process claim failed because the plaintiff did not seek to require a witnessess attendance at a posttermination grievance hearing and was not inhibited or restricted from doing so 2: holding that plaintiff did not receive adequate process during posttermination hearing because she was not given opportunity to crossexamine witnesses accusing her of drinking on the job and coming to school inebriated 3: holding that doctor who was suspected of drinking on the job posed a direct threat although she had not injured any patients 4: holding that a nameclearing hearing for a terminated city attorney satisfied due process even though he was not allowed to crossexamine witnesses because he had ample opportunity to refute the charges against him


Input: 332, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 86 L.Ed. 680 (1940); Gibson v. Mississippi, 162 U.S. 565, 589, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). 72 . 28 U.S.C. § 1865(b)(2). 73 . Glasser v. United States, 315 U.S. 60, 86, 6 D.Me.1968) (rejecting attack on insufficient proof of discrimination and not lack of cognizability). 80 . See also United States v. DiTommaso, 405 F.2d 385, 388 (4th Cir. 1968), cert. denied, 394 U.S. 934, 89 S.Ct. 1209, 22 L.Ed.2d 465 (1969) prima facie case not established by evidence that while over 50% of eligible population had less than a high school diploma, only 33% were drawn for the petit jury venire and only 21.9% served on grand jury. But see United States v. Butera, 420 F.2d 564, 571 (1st Cir. 1970) (<HOLDING>). 81 . See Strauder v. West Virginia, 100 U.S. Holdings: 0: holding that when defendant was guilty of burglary but the only evidence that he was armed was from his own statement existence of the firearm went only to the degree of the offense and was not as an element of proof 1: holding that the burden of proof is on the claimant 2: holding that the father had to pay college costs because the agreement provided him no explicit veto over college selection 3: holding that proof that 836 of jury pools had high school diplomas while only 432 of population over 25 did and proof that 181 of pool had college degree as compared with 5 of the population gave rise to inference of discrimination 4: holding that removal from house arrest and return to general prison population was a matter of inmate classification


Input: to determine the defendant's competence to waive the right to counsel). Specifically, a defendant is competent to waive the right to counsel if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding{[ ] and ... has a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402, 80 S.Ct. 788. 117 If a trial court finds that a defendant fails to meet this standard, then the defendant may not waive the right to counsel. See Godinez, 509 U.S. at 399, 118 S.Ct. 2680. If the defendant satisfies the Dusky competency standard, however, he may waive the right to counsel if his waiver is voluntary, knowing, and intelligent. Arguello, 772 P.2d at 94; see also Faretta, 422 U.S. at 807, 95 S.Ct. 2525 (<HOLDING>). 118 A "voluntary" waiver, like any voluntary Holdings: 0: holding that a criminal defendant has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so 1: holding that accused must competently and intelligently waive the right to counsel 2: holding that one must voluntarily and intelligently waive the right to counsel 3: recognizing that the sixth amendment guarantees a defendant the right to counsel and the right to waive counsel 4: holding that the defendants guilty plea was entered into knowingly voluntarily and intelligently


Input: ¶ 30; Adv. No. 03-09315, ECF Doc. #27, Exh. A. As this is the exact language of the clause in JLM that the Second Circuit held to be broad, the clauses in these four adversary proceedings should also be treated as broad form clauses. Therefore, under the Collins decision there is “a presumption of arbitrability.” Collins, 58 F.3d at 23. However, even with a broad form clause, if the claims present “no questions in respect of the parties’ rights and obligations under [the agreements],” they are outside the purview of the arbitration clause and are not arbitrable. Id. B. Are the Preferential Transfer Claims Within the Scope of the Arbitration Agreement? In this Circuit, courts have exempted fraudulent transfer claims from arbitration because they are statutory claims belo (2d Cir.2006) (<HOLDING>). However, none of those decisions undermines Holdings: 0: holding judgment in violation of automatic stay void 1: recognizing district courts authority to dispose of contempt action for violation of automatic stay of bankruptcy 2: holding that a postdischarge claim for violation of the automatic stay was arbitrable because it would not necessarily jeopardize or inherently conflict with the bankruptcy code 3: holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached  would be inconsistent with the underlying purpose of the automatic stay 4: recognizing that any action taken in violation of the automatic bankruptcy stay is void and without effect


Input: under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 . The Feuerbachers joined Sand Canyon Corporation, FNF Lawyers Title of DFW, Inc., and Jill Clay as defendants in their First Amended Complaint before the district court. Any subsequent reference to "the Appellees” includes Sand Canyon Corporation, the only later-added defendant that remains a party in this suit. 2 . On appeal, the Feuerbachers only contest summary judgment with respect to their quiet title and breach of contract claims. 3 . That said, we panel recognize that it is unclear whether the Feuerbaehers can be judicially estopped from claiming that the lien on their homestead is void. Texas law on this point is not abundantly clear. Sea Hruska v. First State Bank of Deauville, 747 S.W.2d 783, 785 (Tex. 1988) (<HOLDING>). Although a lien that is void (as the Holdings: 0: holding that the attorneys charging lien may be asserted and enforced in the civil action which gave rise to the lien claim or in an independent action 1: holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien 2: holding that a lien cannot be estopped into existence where the borrowers promised to execute a lien in the manner mandated by the constitution and then failed to do so 3: holding that a property right that comes into existence by court action such as a judgment lien does not relate back to some earlier date to destroy the priority of a federal tax lien 4: holding that the lien bond releases the property from the lien but the lien is then secured by the bond


Input: v. Moffet, 233 Minn. 330, 332, 46 N.W.2d 792, 793 (1951). In some situations, the necessary part performance may be established by taking possession and making payment. Formanek v. Langton, 271 Minn. 59, 63-64, 134 N.W.2d 883, 886 (1965). The underlying principle is that, when one of the contracting parties has relied on an oral agreement to such an extent that it would be a fraud on the part of the other contracting party to void the agreement, equity will make that agreement an exception to the statute of frauds. See, e.g., Hecht v. Anthony, 204 Minn. 432, 435, 283 N.W. 753, 754 (1939). The mere act of taking possession of land, however, is insufficient to avoid application of the statute of frauds. Hatlestad v. Mut. Trust Life Ins. Co., 197 Minn. 640, 648, 268 N.W. 665, 669 (1936) (<HOLDING>). The purchaser must also make valuable Holdings: 0: holding that k no wing possession can be demonstrated by proof of either actual or constructive possession 1: recognizing innocent possession defense to a charge of criminal weapons possession 2: holding that a lessors interest can only be subject to liens arising from improvements performed on the leased property if the lease required the improvements or if under judicial interpretation the improvements were the pith of the lease 3: holding that the doctrine of part performance ordinarily can be successfully invoked if the vendee took possession of the land and made valuable improvements but noting that mere possession is usually insufficient 4: holding that possession of a pistol in public requires knowing possession


Input: curative instructions during the prosecutor’s closing argument. The law is clear that a party’s failure to object to improper prosecutorial comments will preclude appellate review, unless the comments are so prejudicial as to constitute fundamental error. See Street v. State, 636 So.2d 1297 (Fla.1994), cert, denied, -U.S. -, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); Fuller v. State, 540 So.2d 182, 184 (Fla. 5th DCA 1989). The control of prosecutorial comments to the jury is within the trial court’s discretion, and the exercise of that discretion will not be disturbed absent a clear showing of abuse. Absent a contemporaneous objection, Jones’ attorney was required to demonstrate that the prosecutor’s comments constituted fundamental error. See Crump v. State, 622 So.2d 963, 972 (Fla.1993) (<HOLDING>); Pacifico v. State, 642 So.2d 1178, 1182 (Fla. Holdings: 0: recognizing exception to preservation rules for fundamental error that is highly prejudicial 1: holding that lack of appellate jurisdiction is fundamental error 2: holding that appellate review is precluded when the error is invited 3: holding that since prosecutorial comments did not constitute fundamental error absence of preservation of issue by defense counsel precluded appellate review 4: recognizing fundamental error as an exception to the general rule of preservation


Input: judgment was entered on May 2, 1995. The court agreed with the chapter 7 trustee that "the time for filing the [§ 502(h) ] proof of claim was June 11, 1995, 30 days after May 12, 1995, the date that the judgment of May 2, 1995, became final.” 211 B.R. at 194. 8 . H & H's brief actually concludes with a suggestion that finality as used in Rule 3002(c)(3) could refer to any of four separate dates. Doc. No. 40 at 4. That the Rules would contemplate, or that they should be construed to accommodate, such confusion is not plausible. 9 . H & H’s brief asserts payment was made October 13. See Doc. No. 40 at 2. H & H’s Objection previously asserted it was made October 12. See Doc. No. 37 at 1. 10 . Accord Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) Holdings: 0: holding defendants could not be guilty as parties when the state failed to show they knew the criminality of the conduct they assisted 1: holding deadlines may lead to unwelcome results but they prompt parties to act and they produce finality 2: holding that even though the government had not strictly complied with the statutory requirements the plaintiffs were not entitled to relief because they failed to challenge that noncompliance in a prompt fashion 3: holding that a literal interpretation should not be adhered to when it would lead to absurd results 4: holding that a narrow interpretation of the word fraud in tolling statute would lead to absurd and unjust results


Input: 843; Roberts v. State, (1981) Ind.App., 419 N.E.2d 803. In this case, the prosecutor's argument was improper in several ways. Further, we are persuaded that this misconduct placed Johnson in a position of grave peril, so that the court erred in denying his motion for a mistrial. The prosecutor stated that a defense attorney's job is to "get his client off" by bringing out "insignificant facts" and "legal technicalities." Our courts, finding no grave peril, have held that such remarks do not always mandate a mistrial. Hubbard v. State, (1974) 262 Ind. 176, 313 N.E.2d 346; Drossos v. State, (1982) Ind.App., 442 N.E.2d 1. Nevertheless, such comments are irrelevant to the issues to be decided by the jury and should not be allowed. See Craig v. State, (1977) 267 Ind. 359, 370 N.E.2d 880 (<HOLDING>). Further, the prosecutor asked the jury to Holdings: 0: holding that improper statement was rendered harmless because the district court sustained the defendants objection  and admonished the jury to disregard the statement 1: holding prosecutors statement that he had duty to all society including accused while a correct statement of the law was unfair and highly improper 2: holding prosecutors statement that defendant and defense counsel were lying when they pleaded not guilty was improper 3: holding that the district courts improper admission of an unauthenticated registration statement was harmless because the proponent of the registration statement later properly authenticated the statement in a motion to reconsider 4: holding appellate argument that statement violated rule 404b was improper because it was the defendant who elicited the statement at trial


Input: construing “relatively low” to mean that further increases would “reduce the ion signal.” Thus, the court will construe “relatively low level” and “relatively low value” to mean “the level or value of kinetic energy below the level at which the ion signal is reduced by further increases of the kinetic energy.” This construction is consistent with the whereby clause in claims l(k) and 14(h) discussed next. 4. “whereby to provide improved transmission of ions through said inter-chamber orifice” Micromass argues at length that the two “whereby clauses” at the end of claims l(k) and 14, are claim limitations because they describe the “necessary result” or “critical property” of the claimed invention. See EX Indus., L.P. v. Culligan Water Techs., Inc., 90 F.Supp.2d 461, 487-88 (D.Del. 1999) (<HOLDING>). This is in contrast to the general rule that Holdings: 0: holding that the recitation of a quantitative drop rod test rendered definite a claim limitation 1: holding that limitation of liability clause was unambiguous 2: holding that the injunction did not constitute a claim 3: holding that a whereby clause that was substantially amended to overcome prior art was sufficiently definite to constitute a claim limitation and did not simply announce the inventions result 4: holding that the current party was sufficiently identified with the parties to the prior litigation


Input: Code.” Id. As the Court directed, we must determine “whether the plaintiff has alleged a violation of the relevant statute as it stood prior to December 1, 1990, or whether her claims necessarily depend on a subsequent amendment.” Id. at 384, 124 S.Ct. 1836. To answer that question, we return to the VRRA, which Congress passed in 1974. The VRRA provided veterans with certain rights and protections upon their return to the workforce, and it barred employment discrimination based on a reservist’s military service. See Pub.L. No. 93-508, sec. 404, § 2021(a)(B), (b)(3), 88 Stat. 1578, 1595-96 (1974). The only remedy available under the VRRA was injunctive relief and recovery of lost wages and benefits. Id. sec. 404, § 2022. In 1994, Congress replaced the VRRA with USERRA “to th Cir.1993) (<HOLDING>); Troy v. City of Hampton, 756 F.2d 1000, 1003 Holdings: 0: holding that because liquidated damages under the adea are punitive in nature a jurys award of state punitive damages and adea liquidated damages constitutes a double recovery and therefore reducing the total recovery by the amount of the liquidated damages award 1: holding that seventh amendment right to jury trial not violated by courts dismissal for lack of jurisdiction 2: holding that liquidated damages under the adea are intended to punish and deter while contrasting them to the legislative purpose of liquidated damages under the fsla 3: holding that actions seeking liquidated damages under a different statute are suits at common law for purposes of the seventh amendments right to a jury trial 4: holding that liquidated damages under userra are punitive and therefore subject to trial by jury


Input: 110, 113 (1993)). The Court essentially held that even though the action was termed a breach of contract, the action had elements of tort because the plaintiff had to prove that the construction was substandard or negligently performed. Therefore, it seems that there cannot be a blanket prohibition of the application of the collateral source rule to contract claims as the defendant suggests. Even if such a claim could be sustained, it is not clear that there is not an element of tort in Plaintiffs claim, despite its title as a “Breach of Contract”. (Rec. Doc. 1-2, at 1). Violations of section 1220 or 658 generally sound in tort, and therefore, there is an element of a tort claim to Plaintiffs action. See Stokes v. Allstate Indem. Co., No. 06-1053, 2007 WL 1875847 (E.D.La. June 28, 2007)(<HOLDING>)(citing Theriot v. Midland Risk Ins. Co., 694 Holdings: 0: holding that section 1220 provides an exclusive remedy for tort like actions against an insurer 1: holding that once the workers compensation act provides a remedy it is exclusive and the employee has no right to bring an action in commonlaw negligence against his employer 2: holding that title vii provides the exclusive judicial remedy for claims of discrimination in federal employment 3: holding that an employer who commits an intentional tort against his employee cannot claim that the act was accidental so that workers compensation is the employees exclusive remedy 4: holding that it is not enough that an employees job provides an opportunity to commit an intentional tort


Input: organization differs from its for-profit cousins in its treatment of net earnings does not prevent its buildings or property from being used in interstate commerce or in an activity affecting interstate commerce. As the Supreme Court has explained, “[n]othing intrinsic to the nature of nonprofit entities prevents them from engaging in interstate commerce,” particularly because “they purchase goods and services in competitive markets, offer their facilities to a variety of patrons, and derive revenues from a variety of sources, nt institutions in particular, can serve in both a sovereign/regulatory capacity and a market capacity, and their actions as either can affect interstate commerce. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (<HOLDING>); United States v. Kokinda, 497 U.S. 720, 725, Holdings: 0: holding that a public school did not create a public forum by allowing commercial advertising on a baseball field fence 1: holding that the first amendment does not protect the use of racial invective by a public official against a member of the public in a bar 2: holding that if the speech in question does not address a matter of public concern there is no first amendment violation 3: holding that the doorway of the home is a public place for purposes of the warrant requirement of the fourth amendment 4: holding that a municipal transit vehicle is not a public forum for first amendment purposes because the city is engaged in commerce and the advertising space in question although incidental to the provision of public transportation is part of a commercial venture


Input: in favor of the plaintiff[ ].” Id, (quoting Hillbroom v. PricewaterhouseCoopers LLP, 17 A.3d 566, 572 (D.C.2011)). “To pass muster,” a complaint must “allege the elements of a legally viable claim, and its factual allegations must be enough to raise a right to relief above the speculative level.” Id, (quoting OneWest Bank, FSB v. Marshall, 18 A.3d 715, 721 (D.C.2011)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). B. CPPA With respect to appellant’s CPPA claims, this court has previously addressed the question whether the CPPA applies to landlord-tenant relations. See Gomez v. Independence Mgmt. of Delaware, Inc., 967 A.2d 1276, 1286 (D.C.2009) (<HOLDING>). In Gomez, we found that although the Council Holdings: 0: holding that apprendi does not apply retroactively 1: holding that the cppa does not apply to landlordtenant relations 2: holding that the confrontation clause does not apply to the sentencing hearing 3: holding that  1447c does not apply to counsel 4: holding that title ii does not apply to the states


Input: if it is clear that no one was misled or placed at a disadvantage by the error. Mantis v. Resz, 5 S.W.3d 388, 391 (Tex.App.—Fort Worth 1999, pet. denied); see also Orange Grove Indep. Sch. Dist. v. Rivera, 679 S.W.2d 482, 483 (Tex.1984); Ealey v. Ins. Co. of N. Am., 660 S.W.2d 50, 52 (Tex.1983); Baker v. Charles, 746 S.W.2d 854, 855 (Tex.App.—Corpus Christi 1988, no writ); Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App.—San Antonio 1987, no writ). The theory of “misnomer” is therefore not “any other law” that extends or tolls limitations in contravention of section 10.01’s prohibition. Instead, misnomer treats a misnamed party as a properly sued party relating back to the time of the filing of the suit with the misnomer. Cf. Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex.1999) (<HOLDING>). The plaintiff must correct the misnomer Holdings: 0: recognizing that although provision of municipal service is not fundamental right inequitable provision of that service is subject to equal protection analysis 1: holding that materiality necessary element of section 1001 2: holding rule 28 which allows for service on a defendant under its common name is not a tolling provision in contravention of section 1001 3: holding that equitable tolling is available for petitions filed pursuant to 28 usc  2255 4: holding that section 1001 controls over the limitations provision of the wrongful death statute


Input: officers’ testimony that she exited Jose’s room screaming,' “It. was self-defense!” That statement was ambiguous though. It did not attribute Jose’s killing to any particular actor when the evidence showed that the actor could have been Samuel individually,, appellant individually, or both acting in concert. Second, the possibility that Samuel was the true killer meant that the jury did have a vehicle to acquit. Indeed, that vehicle remained possible in part because appellant did not take the stand and admit to the killing herself. Likewise, defense counsel could have invoked a claim of Self-defense in an opening statement, but by waiving an opening statement, counsel left the jury with the more difficult task of deciding for itself who was responsible for the killing., See id. at 455 (<HOLDING>). Third, the evidence weighed heavily against' Holdings: 0: recognizing an innocent possession defense though the defense in that case is more properly considered a justification defense as life and limb were arguably at stake 1: holding that the erroneous omission of a justification defense was harmless where counsel did not invoke the defense during either voir dire or opening statements and where the defense did not appear to be the primary focus of the defensive theory at trial 2: holding that defense counsel was not constitutionally ineffective for presenting a diminished capacity defense as opposed to a defense of legal insanity 3: holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second 4: holding that the government did not waive an affirmative defense not pleaded in the answer because it raised the defense at a pragmatically sufficient time by listing the defense in the joint pretrial order


Input: F.Supp.3d 700, 703, No. 3:14CV200 (JMM), 2014 WL 5088230, at *2 (M.D.Pa. Oct. 10, 2014) (“we hold that the TCPA can impose Lability directly or vicariously upon any person or entity on whose behalf a third party places a call in violation of § 227(b)(1)(A)”); Bridgeview Health Care Ctr. Ltd. v. Clark, 09 C 5601(MV), 2013 WL 1154206, at *4 (N.D.Ill. Mar. 19, 2013) (“Thus, the TCPA creates a form of vicarious liability making an entity liable when a third party sends unsolicited communications on its behalf in violation of the Act.”) (citing Glen Ellyn Pharmacy v. Promius Pharma, LLC, No. 09-C-2116 (BMM), 2009 WL 2973046, at *3 (N.D.Ill. Sept. 11,2009)); Account. Outsourcing, LLC v. Verizon Wireless, 329 F.Supp.2d 789, 805-06 (M.D.La.2004) (same); but see Mais, 944 F.Supp.2d at 1243-44 (<HOLDING>). These courts have relied on multiple and Holdings: 0: holding that fmla does not impose individual liability 1: holding that takings claim does not ripen until a permit application is denied 2: holding that tcpa does not permit vicarious liability 3: holding that preemption under  1144a does not permit removal if the plaintiffs claim does not fall within the scope of  1132a 4: holding that  1964c does not permit recovery for personal injuries


Input: § 107(a) of CERCLA. Bedford Affiliates, 156 F.3d at 424. Before a court may award contribution under § 113(f)(1), the court must first find that the defendant is liable under § 107(a). The court must then determine the proper allocation of response costs in an equitable manner. The burden of proof for both of these requirements rests with Durham, the party seeking contribution. Goodrich Corp., 311 F.3d at 168. 33. A plaintiff need not prove that a specific defendant’s waste caused a specific incurrence of clean-up costs. United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993). 34. CERCLA further permits a declaratory judgment allocating future response costs between PRPs. 42 U.S.C. § 9613(g)(2); see Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 91, 92 (2d Cir.2000) (<HOLDING>); In re Dant & Russell, Inc., 951 F.2d 246, Holdings: 0: holding that the proper remedy for future response costs is not a present lumpsum payment of anticipated expenses but instead a declaratory judgment award dividing future response costs among prps 1: holding that response costs can be necessary even though the agency that required cleanup never approved the response actions taken 2: holding that declaratory relief only appropriate once some expenditure has been made toward necessary response costs 3: holding that expenses refers to costs 4: holding that investigatory costs are considered costs of response under cercla


Input: H.W. Arant, Rationale of the Rule that an Obligee’s Premature Payment Discharges His Surety, 80 U. Pa. L.Rev. 842, 851 (1932): The function of the surety is to secure the creditor in the enjoyment of the performance promised by the principal. It seems reasonable to assume that his undertaking is intended to operate as a security so long as the creditor acts with good faith and reasonable prudence. Advancing percentages [that] might be retained, under some circumstances, is consistent with both. 27 . See Argonaut Ins. Co., 699 F.2d at 420 (concluding that, where unauthorized advances are expended for the purposes of completing a bonded contract, the amount at risk to the surety is, therefore, unaffected); Ramada Dev. Co. v. U.S. Fid. & Guar. Co., 626 F.2d 517, 522 (6th Cir.1980) (<HOLDING>); accord Nat’l Sur. Corp. v. United States, 118 Holdings: 0: holding that a surety has standing to sue for a progress payment released by the government after notification by the surety of unpaid subcontractors 1: holding that a plaintiff surety had to pay all outstanding claims owed by the contractor or it otherwise would not be permitted to share in any retained funds held by the government 2: holding that the surety was not released to the extent of improper ly paid funds because the contractor had applied the released funds to progress on the contract 3: holding that there is no privity of contract between the government and a surety since the government is not a party to the agreement between the surety and the contractor the government never undertakes an obligation to the surety 4: holding that companys president was trustee of trust funds because he had control and direction over the funds


Input: him to follow the proceeds into the hands of third parties, without regard to any settlement before or after judgment. The lien operates as security, and if the settlement entered into by the parties is in disregard of it and to the prejudice of plaintiffs attorney, by reason of the insolvency of his client, or for other sufficient cause, the court will interfere and protect its officer by vacating the satisfaction of judgment and permitting execution to issue for the enforcement of the judgment to the extent of the lien, or by following the proceeds in the hands of third parties, who received them before or after judgment impressed with the lien. Id. (Emphasis added.) An attorney’s lien follows the judgment into whatever form it may assume. See Porter v. Taylor, 36 Ark. 591 (1880) (<HOLDING>). We have also noted that an attorney’s lien Holdings: 0: holding that even though the complaint sought money damages and land was actually recovered the attorneys lien attached to the land 1: holding that a cause of action for damages to property resulting from a permanent nuisance accrues to the owner of the land at the time the injury begins to affect the land and mere transfer of the land by deed does not transfer the claim for damages 2: holding that if respondents suit is one for permanent damages to the land the measure of damages is the decreased value of the land 3: holding that land sales contracts were not securities because they involved no investment in an enterprise even if land was bought on expectation that development of the area would increase the value of the land 4: holding that animal husbandry operations were included in the definition of farm even if the animals do not touch the ground graze on the land or feed from crops grown on the land and holding that land used to support buildings used in the production of agricultural products is a productive use of the land


Input: was evidence of contrary intent. The lien, once executed, remained in force during the life of the debt. Id. (citing Ploeger v. Johnson, 26 S.W. 432 (Tex.Civ.App.—Dallas 1894, no writ) and cases ff.) A mere renewal did not affect the lien. However, a renewal could amount to a novation. If, for sufficient consideration, the parties executed a renewal intending a satisfaction of the old debt or lien, it had that effect and the rights of the parties were governed by the new contract. Id. (citing Helmke v. Uecker, 161 S.W. 17 (Tex.Civ.App.—Austin 1913, no writ). While the Fifth Circuit Court of Appeals has not spoken to this precise question, it has been squarely addressed and answered by the Ninth Circuit Court of Appeals in Mat , supra); In re Wandler, 77 B.R. 735 (Bankr.D.N.D.1987) (<HOLDING>); In re Challinor, 79 B.R. 19 Holdings: 0: holding that a creditors pmsi in goods sold to debtors did not survive consolidation of the original installment contract with a later contract for the purchase of additional goods 1: holding that under colorado law refinancing of a purchase money loan whereby an old note and security agreement were canceled and replaced by a new note and security agreement did not automatically extinguish the creditors pmsi in the debtors furniture the parties did not intend the new note to extinguish the original debt and security interest in that identical collateral remained almost no new money was advanced and the document specifically stated an intent to continue the pmsi 2: holding that a note which was a consolidation of the debtors previous notes did not give rise to a pmsi 3: holding that under north dakota law consolidation of a note secured by a pmsi in farm machinery with other goods resulted in a novation destroying the creditors pmsi 4: holding that under michigan law when debtors paid off the initial loan with the proceeds of refinancing the creditors pmsi in stereo expired


Input: things such as "day care, doctor visits [and] food.” Id. at 503, 505, 489 S.E.2d at 703, 704. ANNUNZIATA, Judge, with whom BENTON and BRAY, JJ., join, dissenting. I respectfully dissent from the majority opinion. In Acree v. Acree, 2 Va.App. 151, 342 S.E.2d 68 (1986), we found that equitable considerations may support the award of credits against child support payments otherwise due where the obligated parent has fulfilled the purpose and function of the award, albeit in a way that deviates from the express order of the court. Id. at 157, 342 S.E.2d at 71; see also Carper v. Carper, 228 Va. 185, 189, 319 S.E.2d 766, 769 (1984) (granting father credit where he had fulfilled purpose of mortgage payment requirement); Commonwealth v. Skeens, 18 Va.App. 154, 158, 442 S.E.2d 432, 435 (1994) (<HOLDING>); accord Meyer v. Meyer, 493 S.W.2d 42, 45 Holdings: 0: recognizing general enforceability of plan provisions reducing benefits by amount of any social security benefits 1: holding that an evidentiary hearing is not required prior to the termination of social security disability benefits 2: holding that offset for social security retirement benefits does not include federal disability benefits and stating that there was no legislative intent to embody the entire subchapter of the social security act dealing with both disability benefits and old age benefits 3: holding that use of social security benefits satisfied child support obligation 4: holding noncustodial parent not entitled to an automatic credit and court could order child support in addition to social security disability dependency benefits


Input: is a weighing State or a nonweighing State. I would hold that the fact that a State is a nonweighing State may make the possibility of harmful error less likely, but it does not excuse a reviewing court from ensuring that the error was in fact harmless. Our cases in this area do not require a different result. IV The Court reaches a somewhat similar conclusion. It, too, would abolish (or at least diminish the importance of) the weighing/nonweighing distinction for purposes of harmless-error analysis. But then, surprisingly, it also diminishes the need to conduct any harmless-error review at all. If all the evidence was properly admitted and if the jury can use that evidence when it considers other aggravating factors, any error, the Court announces, must be harmless. See ante, at 220 (<HOLDING>). Common sense suggests, however, and this Holdings: 0: holding that resentencing hearing in capital case is not barred by double jeopardy when appeals court rejects sole aggravating factor found by sentencer failure of sentencer to find other alleged aggravating factors is not an acquittal of these factors for double jeopardy purposes 1: holding that the trial court did not abuse its discretion when it gave aggravating factors considerable weight 2: holding that when one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances that underlie the invalidated aggravating factor areviewing court need not apply harmlesserror review 3: holding that the grand jury need not find nonstatutory aggravating factors 4: holding that the death of a victim may not be considered an aggravating factor in a homicide sentencing


Input: this clause, Lefever contends that the trial court considered Hargrave’s motion before it entered its order. Relying upon North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966), Lefever asserts that the Mother Hubbard clause disposes of all issues that were before the trial court prior to its April order, including Hargrave’s motion. Aldridge stands for the general rule that for appeal purposes, it is presumed a trial court intended to dispose of all parties and issues before it when a judgment is rendered and entered in a case. See 400 S.W.2d at SOT-OS. However, the presumption does not apply to a judgment that affirmatively reserves some ultimate issues or decisions for future adjudication. See Zellers v. Barthel, 727 S.W.2d 364, 365 (Tex.App.Fort Worth 1987, no writ) (<HOLDING>). In the instant matter, the record and the Holdings: 0: holding that an order addressing each parents motion to modify but failed to reference wifes motion to enforce an out of state judgment was not a final appealable order 1: holding that an order was interlocutory in nature despite the trial courts certification of the order as a final appealable judgment 2: holding that an order denying a motion to correct reduce or modify a sentence under rule 3800 is not appealable 3: holding an order denying a motion for summary judgment is interlocutory and not appealable 4: recognizing that an order denying a motion to modify a family court order where the motion is based on changed factual or legal circumstances is appealable as a special order after final judgment


Input: rate). Rather, SES seeks the difference between its actual costs and the prevailing rates specified in the contract capped at a rate the City never asked SES to pay. SES received the benefit of its bargain; it was required to pay a prevailing wage to its workers as a minimum in exchange for the lump sum amount under the contract. That SES paid its workers amounts that exceeded both of those minimums is a separate matter that the contract leaves to SES’s discretion, and it does not obligate the City to assume the cost of those rates. In response, SES points out that the contract relieved it of any duty to verify that the prevailing wage rates that the City provided were correct. It cites section 3.12.3 of the agreement: “It is not the Contractor’s responsibi 1106, 1121-22 (S.D.Tex.1994) (<HOLDING>); see also Mas-Tec N. Am., Inc. v. El Paso Holdings: 0: holding that contractor could recover damages from owner for misrepresenting site conditions despite contractors right to investigate site before bidding because owner represented that data it included in contract was sufficient information for contractor to prepare its bid 1: holding that if contractor is hable to sub that liability though not yet satisfied by payment might well constitute actual damages to the contractor and sustain their suit under rule that contractor may only sue to recover its own damages 2: holding that contractor could recover damages from owner for losses due to delay although contractor agreed to assume responsibility for timely completing work for agreed compensation because owner agreed to be liable for causing delays in contractors work schedule 3: holding a premises owner is a general contractor for purposes of the statutory employer provision 4: holding that where owner and contractor frequently discussed progress of construction project and advancement of money by owner to contractor and contractor misappropriated some of the money debt was not excepted from discharge under bankruptcy code  523a2 because owner did not show that contractor had intent not to perform when the agreement was made


Input: arbitration agreement or contract—“whether any agreement between the alleged obligor and obligee was ever concluded”—and expressly reserved ruling on which decision maker was to decide such a challenge. Id. at 444 n. 1, 126 S.Ct. 1204. The Court reaffirme that alleges there was never an agreement between the parties to form a contract (and therefore no agreement to form the arbitration clause contained therein) in the first place. To date, the United States Supreme Court has not expressly ruled whether that third category should be decided by the' trial court or the arbitrator, but lower court decisions—both state and federal— have largely agreed that this third category must be decided by the trial court. See, e.g., Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854 (11th Cir.1992) (<HOLDING>); Lepisto v. Senior Lifestyle Newport Ltd. Holdings: 0: holding that the trial court must determine whether there was ever an agreement when the party resisting arbitration alleged that its signature was a forgery 1: holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement 2: holding that the trial court must determine whether there was an agreement to arbitrate when the party contesting arbitration claimed she had never signed the contract or intended to be bound 3: holding that a party who has not expressly or implicitly agreed to be bound by an arbitration agreement cannot be compelled to arbitrate 4: holding that the trial court must determine whether an agreement to arbitrate was reached when several contracts the subject of a class action allegedly did not contain an arbitration provision