Input: to allege that a municipal custom or policy caused the plaintiffs injury’ ” (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993))); Lozada v. City of New York, No. 12-CV-0038 (ILG)(JMA), 2013 WL 3934998, at *7 (E.D.N.Y. July 29, 2013) (dismissing Mo-nell claim as conclusory where plaintiff failed to “provide any facts that would allow the court to infer what city policies, practices, or customs contributed to or caused the deficiency” (internal quotation marks and citation omitted)). 2. Failure to Supervise Plaintiff also raises a failure-to-supervise claim against the City. As with h ants’ CCRB and LAB disciplinary records in opposition to Defendants’ motion (see generally Discip. Records), and although she does not raise such an argument in d 319, 331 (2d Cir.1986) (<HOLDING>), with Seri v. Town of Newtown, 573 F.Supp.2d Holdings: 0: holding that excessive force claims are not subject to exhaustion requirement 1: holding similar evidence sufficient to sustain a jury verdict of possession with intent to distribute cocaine 2: holding five complaints of excessive force over twentytwomonth period sufficient to sustain jury verdict 3: holding that inquiry as to whether officers are entitled to qualified immunity for use of excessive force is distinct from inquiry on the merits of the excessive force claim 4: holding that exhaustion requirement applies to excessive force claims


Input: 968, 971 (1949) (“[A] party having an option to declare a note due and payable cannot simply by his own secret intention, never disclosed by act or word, claim that he declared the note due and payable. The addition of the words ‘without demand or notice’ does not alter the requirement of an affirmative act of the holder of the note for the valid exercise of the option.”); see also United States v. Rollinson, 866 F.2d 1463, 1467 (D.C.Cir.1989) (following precedent holding that, “because acceleration was optional on the part of the holder, affirmative action ... must be taken to make it known to the debtor that he has exercised his option to accelerate”) (internal quotations and citation omitted) (alterations in original); United States v. Feterl, 849 F.2d 354, 357 (8th Cir.1988) (<HOLDING>) (citation omitted); United States v. Hosko, Holdings: 0: holding that as a general rule  affirmative action by the creditor must be taken to make it known to the debtor that the creditor has exercised his option to accelerate 1: recognizing need to balance interests of debt or and creditor in determining nature of protection to be afforded creditor 2: 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 3: recognizing that when a creditor does not receive adequate notice the creditor is not bound by the confirmation order 4: holding that the creditor must prove the elements of actual fraud


Input: 98th Cong., 2nd Sess. 183-210 (1984) [hereinafter 1983 Policy Statement with page references to Deception: FTC Oversight ]. The total impression test still forms the basis of the deception standard, id. at 184 n. 4 (discussing the “overall impression” created by a representation), but the FTC supplemented the test with additional requirements. Under the standard elucidated in 1983, deception requires not only a representation or omission that is likely to mislead, but also that: (1) the practice is likely to mislead the consumer who is acting reasonably in the circumstances; and (2) the representation or omission is material, that is, the consumer is likely to have chosen differently but for the deception. Id. at 184-86; see also FTC v. Wilcox, 926 F.Supp. 1091, 1098 (S.D.Fla.1995) (<HOLDING>). B. Unfairness The FTC standard on Holdings: 0: holding that a deceptive practice consists of a material representation or omission that is likely to mislead consumers acting reasonably under the circumstances 1: holding that a promissory statement of future intent which does not come to fruition is not an unfair or deceptive practice 2: recognizing purpose of ccpa as protection of consumers from unfair illegal or deceptive acts 3: holding in preemption case involving car manufacturer that material omission claims were preempted but that false representation claims survived 4: holding that treble damages are appropriate under ohio law when the seller engages in an unconscionable practice or deceptive act


Input: 672 (10th Cir. 1999). If it were otherwise, a party could just attach all of his evidence to a motion for dismissal and thereby vitiate the critical distinction between dismissal proceedings, which are supposed to challenge the legal sufficiency of the complaint, and summary judgment proceedings, which properly encompass opposing evidence. As for substance, defendant’s affidavit, indicating that the treatment recommended in 2007 was no longer appropriate in October 2008, does not demonstrate a difference of opinion as to the initial recommendation. And, of course, as Mr. Arocho has consistently claimed, the failure to treat his disease for such an interval itself may give rise to cognizable harm. See generally Erickson v. Pardus, 551 U.S. 89, 92, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) Holdings: 0: holding potential damage to reputation to constitute irreparable harm 1: holding that temporaryinjunction orders simple recitation of conclusory statement that plaintiff will suffer an irreparable injury for which it has no other adequate legal remedy does not satisfy rule 683s requirement that a temporary injunction order specify reasons why plaintiff will suffer irreparable harm for which there is no adequate remedy at law 2: holding that a movant for a preliminary injunction must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief 3: recognizing sufficiency of claim that prisoner will suffer irreparable damage if his hepatitis c disease goes untreated 4: holding the district courts of appeal have the ability to review a pretrial evidentiary order where the state would suffer irreparable harm if the order were not reviewed


Input: its discretion in finding the former wife in contempt with regard to that provision of the agreement. The former wife also argues that the trial court erred by finding her in contempt for taking out a second mortgage on the marital residence because, she says, she did not know she was taking out a second mortgage. We note, however, that the trial court could have disbelieved the former wife’s testimony that she did not know she was taking out a second mortgage. Clemons, 627 So.2d at 434. By taking out a second mortgage, the former wife made it impossible to comply with the agreement by giving the former husband a second mortgage. Thus, we find no error in the trial court’s finding her in contempt as to this issue. See, e.g., Hudson v. Hudson, 494 So.2d 664, 666 (Ala.Civ.App.1986) (<HOLDING>). V. Former Husband’s Equity in the Marital Holdings: 0: holding that a wife obtained a vested interest in her portion of the retirement benefits as of the date of the divorce decree and any act of the military spouse that unilaterally decreases the nonmilitary spouses vested interest is an impermissible modification of a division of marital property and a violation of the final decree of divorce 1: holding that contempt finding was proper where the former wife attempted to directly thwart the divorce judgment and cloud the title to certain marital property by transferring her interest by deed to her sister 2: holding that the former wife did not waive her attorneyclient privilege simply because the credibility of her claim that she relied on her husbands representations could be impeached by deposing her former attorney 3: holding that the trial court erred in finding that marital property was the former wifes separate property based on a nonseparation agreement in which the former husband purported to relinquish any interest in the marital property 4: holding that a wife is not liable simply by virtue of the marital relationship for her husbands fraudulent acts


Input: addressed the applicability of the Boren Amendment in that opinion: With the repeal of the Boren Amendment nothing remains that remotely resembles a federal right to reasonable and adequate rates. There is no federal statutory rate language to parse. There is only a state standard. It follows that there can be no prospective relief under § 1396(a)(13) and that the court must dismiss Heritage’s reimbursement claim for lack of federal jurisdiction. 26 F.Supp.2d at 880. If the Ninth Circuit has held to the contrary, HCMF should take that up in an appeal, not in a motion to amend. HCMF’s motion to amend does not assert any new legal theory and, therefore, is futile. Thus, HCMF’s motion to amend is denied. See Shafer v. Preston Mem’l Hosp. Corp., 107 F.3d 274, 282 (4th Cir. 1997) (<HOLDING>); New Beckley Mining Corp. v. Int’l Union, Holdings: 0: holding that amendment is futile if the proposed amended complaint does not state a claim upon which relief can be granted 1: holding district court properly denied leave to amend where application was four months late and appeared to be futile 2: holding that trial court did not abuse its discretion in denying motion to amend complaint because the proposed amendment would have been futile 3: holding that upon conclusion that plaintiffs proposed amendment was futile district court correctly denied plaintiffs motion to amend 4: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint


Input: after Atkins received the promotion. According to Akouri’s testimony, when he asked why Atkins had been chosen for the promotion, Blanchard responded that “the people working in the crew are not the same that are working in the office. There is no black or Hispanic [employees] in the back. There is always — they are all white and they are not going to take orders from you, especially if you have an accent, and something like that.” We deem this language direct evidence of discrimination. There is no mere suggestion or need for inferences because the statement relates directly to the DOT’s decision to promote Atkins over Akouri as Assistant Maintenance Engineer and blatantly states that the reason he was passed over for the promotion was his ethnicity. See Carter, 132 F.3d at 642 (<HOLDING>). The statement itself clearly established that Holdings: 0: holding that direct evidence of a fact is not necessary and that circumstantial evidence is not only sufficient but may also be more certain satisfying and persuasive 1: holding that new evidence is evidence not previously of record and not merely cumulative of other evidence 2: holding that direct evidence by definition is evidence that does not require an inferential leap between fact and conclusion 3: holding that direct evidence of retaliation is lacking where the evidence if believed  would not require the conclusion that defendant unlawfully retaliated against plaintiff emphasis in original 4: holding that evidence which suggests but does not prove a discriminatory motive is circumstantial evidence by definition


Input: 70 F.3d 1005, 1008-09 (8th Cir.1995). 9 . It is undisputed that, under the City Personnel Rules, an employee can be disciplined for violating any order or direction when the violation amounts to either insubordination or a serious breach of proper discipline, for making false statements of material facts, or for attempting to practice any deception on the City. 10 . The defendants additionally argue that Burrell is no longer legally viable in light of Foy, 94 F.3d at 1528, and Edwards v. Wallace Community College, 49 F.3d 1517 (11th Cir.1995). This argument effectively asks us to hold that two subsequent panel opinions can implicitly overrule a prior panel opinion. Such a holding would run contrary to Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209-10 (11th Cir.1981)(en Holdings: 0: holding that precedent set by our panels binds all subsequent panels 1: recognizing that a prior panels holding is binding on all subsequent panels 2: holding that a prior panel decision is binding on subsequent panels 3: holding that decisions by prior panels are binding 4: recognizing that our decision in cabello binds all subsequent panels of this court as to aiding and abetting liability


Input: for a combination of the two methods, permitting enhanced lost-earnings estimates that include expected gains from experience, skill, and industry-wide productivity improvements, while prohibiting any discounting of that larger estimate. See id. at 579, 421 A.2d at 1036. What Kaczkowski failed to realize is that, because safe investments tend to offer a real interest rate that, while low, is above zero, the prospect of having a lump-sum award grow in real terms would approximately compensate for the victim’s lost opportunity to benefit from these other factors — i.e., his increasing value to his employer due to skill and experience, as well as industry-wide productivity gains, presumably due to improved technology and business methods. Accord Pfeifer, 462 U.S. at 549, 103 S.Ct. at 2557 (<HOLDING>). Thus, from a theoretical standpoint, the Holdings: 0: recognizing that these two factors trigger similar concerns 1: holding that disparities in compensation were due to a number of permissible factors including seniority experience and performance 2: recognizing a sound economic argument for the totaloffset rule as applied to estimates that exclude these latter factors while only including individual seniority and promotion gains 3: recognizing these five factors 4: recognizing same factors


Input: is a schedule I controlled substance. Minn.Stat. § 152.02, subd. 2(6) (2006). Possession crimes require proof that the defendant “had actual knowledge of the nature of the substance” in his possession. 455 (1996) (“[T]he only knowledge [required] in a possession of a controlled substance case is the defendant’s knowledge or belief that the substance was a controlled or prohibited substance. The State is not required to prove the defendant knew the exact nature or precise chemical name of the substance.”); Commonwealth v. Rodriguez, 415 Mass. 447, 614 N.E.2d 649, 653 (1993) (“Proof that the defendant knew the exact nature of the controlled substance is not an element of the crime [of trafficking].”); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 916 (1978) (<HOLDING>). Consistent with this precedent from other Holdings: 0: holding that possession of a controlled substance is a crime only if the defendant knowingly possesses the substance and has knowledge of the nature of that substance 1: holding that mens rea required for possession of a controlled substance is knowledge that defendant possessed a controlled substance 2: holding that apprendi does not require the government to prove that defendant knew type and amount of controlled substance 3: holding that apprendi does not change the long established rule that the government need only show that the defendant knew he imported or possessed some controlled substance 4: holding that it was not necessary for the state to prove that the defendant knew the precise nature of the controlled substance he was convicted of delivering when evidence established that he knew it was a controlled substance


Input: in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State.’ ” Ex parte University of South Alabama Found., 788 So.2d 161, 164 (Ala.2000) (quoting Weaver v. Hood, 577 So.2d 440, 442 (Ala. 1991) (citations in Weaver omitted in University of South Alabama)). Additionally, a compulsory counterclaim is considered an “action” for purposes of § 6-5-440. Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala.1993). As this Court has noted: “This Court has held that the obligation ... to assert compulsory counter claims, when read in conjunction with § 6-5-440, Ala.Code 1975, which prohi tr. Corp., 658 So.2d 414 (Ala.1995) (<HOLDING>). The petitioners argue that the claims alleged Holdings: 0: holding that new claims for damages could arise from actions that occurred subsequent to the judgment in the original action 1: holding that the prosecution in a subsequent action of claims that had been compulsory counterclaims in a previously filed declaratoryjudgment action violated  65440 2: holding that a party in an action pending in a federal court was subject to the counterclaim rule and thus violated  65440 by commencing another action in a state court 3: holding a declaratoryjudgment action was proper to construe compulsory school attendance law and did not implicate governmental immunity 4: holding that a declaratoryjudgment action against the state that would affect property in which the state had an interest was barred by  14


Input: because Cok failed to claim any exception or exemption from attachment under federal or state law. Regarding Cok’s other contentions, Peterson suggests that because there were no funds in the registry of court, the court’s order granting the motion to release such funds became moot. Therefore, he contends, Cok’s motion to vacate that order was also moot. Peterson also suggests that there was no basis for Cok’s new trial motion. For the reasons set forth below, we agree with Peterson. With respect to the denial of Cok’s motion to vacate, the motion justice did not abuse his discretion because — given the absence of such funds in the registry — the order granting the release of such funds became moot. Cf. Crystal Restaurant Management Corp. v. Calcagni, 732 A.2d 706, 710 (R.I.1999) (<HOLDING>). Once it became apparent that the court Holdings: 0: holding a motion to withdraw a guilty plea and grant trial is addressed to the sound discretion of the trial court and the supreme court will not upset the courts ruling unless there is a sufficient showing of abuse of discretion 1: holding that the decision to transfer rests within the sound discretion of the court 2: holding that the decision to transfer rests within the sound discretion of the district court 3: holding that motions to vacate a judgment are addressed to the sound discretion of trial justice 4: holding that a motion to vacate a judgment under fedrcivp 60b is addressed to the sound discretion of the trial court   citations omitted


Input: determining the reasonableness of small business bids.” 49 Comp.Gen. at 743. While noting that the provisions of the Small Business Act authorize the award of contracts to small businesses at prices higher than those obtainable by unrestricted competition, the GAO found no valid basis for concluding that the Act “was intended to require the award of contracts to small business concerns at prices considered unreasonable” by the procurement officers. Id. at 742-43; see also No. B-149889 (November 2, 1962). The GAO held that the regulations “properly permit the withdrawal of a set-aside, based on a valid determination that bid prices received from small business concerns are unreasonable.” Id. at 743. See also Boog-Allen Applied Research, No. B-179085 (November 5, 1973), 53 Comp.Gen. 307 (<HOLDING>); Society Brand, Inc.; Waldman Manufacturing Holdings: 0: recognizing that officers are permitted though not required to compare small business bids and large business bids from previous competitions in establishing the competitive range of acceptability 1: recognizing that pursuant to the business judgment rule the decisions of business professionals on the board of directors should be presumed valid 2: recognizing the wide range of competitive results in oligopolistic markets 3: holding that documents that were not created by but that were received maintained and relied upon by a business are business records under  8036 4: holding plaintiff lacked standing to challenge small business status of awardee because plaintiff was not a small business


Input: the full force, meaning and effect of the following words, and shall be applied and construed accordingly: “The mort gagor ... covenants with the mortgagee ... that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will ... warrant and defend the same to the mortgagee .... ” M.G.L. ch. 183, § 19 (2000). The Mortgage now before the Court contains words of grant and the term “with mortgage covenants.” Mortgage executed between the parties October 6, 2000, p. 1. As such, it served the statutory purpose of “conveying the property” for purposes of triggering the release provision of § 7. See Milton Sav. Bank v. U.S., 345 Mass. 302, 305, 187 N.E.2d 379, 381 (1963) (<HOLDING>); Harlow Realty Co. v. Cotter, 284 Mass. 68, Holdings: 0: holding that extinguishment of the debt entitles the mortgagor to a surrender of the note and a discharge of the mortgage 1: holding that a mortgagor in possession is not a fiduciary of the mortgagee within the meaning of the bankruptcy act even though the mortgagor has obligated himself to keep the security intact 2: holding creditors who obtained judgment subsequent to corporations execution of mortgage had no right to challenge mortgages execution 3: holding that upon execution of the mortgage the mortgagor retains only an equity of redemption accompanied by a right to possession 4: holding that the right of redemption is treated the same whether in a mortgage or security deed


Input: the facts are called adjudicative facts. 2 Kenneth S. Brown, et al., McCormick on Evidence at 385. The Railroad Commission conducted a five day hearing where the parties were represented by counsel and witnesses testified to the circumstances concerning Heritage’s application to drill the 22-3 well. After the contested evidentiary proceeding, the Commission made its findings of fact and conclusions of law and executed a final order prohibiting the drilling of the 22-3 well. The final order and its accompanying PFD were duly published and are matters of public record. As such, the trial court erred in refusing to take judicial notice of the published order and PFD of the Railroad Commission. See Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Texas, 878 S.W.2d 598, 600 (Tex.1994)(<HOLDING>) . However, because of the cumulative nature of Holdings: 0: recognizing that the court may take judicial notice of its own docket 1: holding court of appeals erred in refusing to take judicial notice of published puc order 2: holding that the court of appeals erred by failing to take judicial notice of readily determinable facts contained in a published puc order 3: holding that cjourts may take judicial notice of facts not subject to reasonable dispute 4: holding that the court of appeals may not overrule modify or withdraw language from a previously published decision of the court of appeals


Input: of the crime for which the sentence is being imposed. I think that is different. I think that is different in its thrust and effect; and accordingly, it is not to be applied in this case because to do so would be increasing the punishment for a crime in violation of the ex post facto prohibition in the Constitution. Neither the government nor Mr. Nichols has directly taken issue with this ruling, but it has been raised in the brief of the amici who were present at and took part in the sentencing proceedings. Amici argue that MVRA is not punitive in nature and therefore does not implicate the ex post facto prohibition. The government also suggests we can apply the MVRA, but Mr. Nichols takes the opposite view relying on United States v. Siegel, 153 F.3d 1256, 1259-60 (11th Cir.1998) (<HOLDING>) (citing holdings or dicta of the Second, Holdings: 0: holding that retroactive application of mvra does not violate the ex post facto clause because restitution is not a criminal punishment 1: holding that the ex post facto clause prohibited retroactive application of the mvra because before the mvra became effective the victim and witness protection act authorized but did not compel district courts to order restitution 2: holding that application of guidelines did not violate the ex post facto clause because rico offense was a straddle crime that continued before and after the effective date of the guidelines 3: holding ex post facto clause barred application of mvra to defendant whose criminal conduct occurred before the effective date of the statute 4: holding that the ex post facto clause  has no application to deportation


Input: demonstrate a violation of an individual’s bodily integrity sufficient to support a constitutional violation. Moran v. Clarke, 296 F.3d 638, 647 (8th Cir.2002) (en banc) (discussing the severity of conduct necessary to establish a violation). For instance, in Reeve v. Oliver, our court refused to find a substantive due process violation when a state actor touched and rubbed a woman’s back while staring at her chest. 41 F.3d 381, 382-83 (8th Cir.1994). Similarly, in Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996), the Sixth Circuit held that a teacher’s act of rubbing a student’s stomach while he made suggestive remarks to her did not violate the student’s right to bodily integrity. See also Petrone v. Cleveland State Univ., 993 F.Supp. 1119, 1126 (N.D.Ohio 1998) (<HOLDING>), disapproved of on other grounds in Kovacevich Holdings: 0: holding that sexual harassment need not take the form of sexual advances or other explicitly sexual conduct in order to be actionable under title vii 1: holding that a seventeenyearold student lacked the capacity to consent to engage in sexual conduct with a teacher and consequently her allegations of a seeminglyconsensual sexual relationship with the teacher were sufficient to state a  1983 claim based on a violation of substantive due process 2: holding that allegations of a supervisors sexual advances including one where the supervisor slid his hand along a womans leg toward her pelvic area did not state a substantive due process claim 3: recognizing  1983 substantive due process claim 4: holding that similar allegations were insufficient to state a due process claim


Input: emotional distress at the hands of Defendants. Although Defendants questioned Geraldine and Laurie Cornish, Defendants did not deprive them of food, drink, or treat them harshly in any manner. Even though Anthony Cornish was detained, he was not subjected to extreme and outrageous conduct by Defendants. Defendants had probable cause to arrest Anthony, and they did not detain him any longer than necessary under the circumstances. The Illinois Supreme Court has stated: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plainti , 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 Holdings: 0: recognizing that a person has been seized within the meaning of the fourth amendment only if in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave 1: holding that where an individual voluntarily goes to the police station to discuss the commission of a crime that person has not been seized within the meaning of the fourth amendment 2: holding neither a phone call by the police requesting an arrestee to come to the station for questioning nor the questioning of an arrestee at the station was a seizure within the meaning of the fourth amendment 3: holding that unless the law enforcement officers show of authority succeeds in restraining a person the person has not been seized within the meaning of the fourth amendment 4: holding that a dog that was destroyed by the police department was obviously  seized within the meaning of the fourth amendment


Input: she was compensated less than each of these male employees in at least one year, (see Clark Decl. Ex. 80), and a reasonable jury could conclude that Huerta and Rizzo, as heads of regional teams, held substantially identical positions as Garcia, (Defs.’ 56.1 ¶¶ 230, 233). Even if I assumed that all seven of Garcia’s alleged comparators held a position that v^as substantially equivalent to Garcia’s position, Garcia’s claims under the EPA and NYLL still fail because Barclays has proven an applicable affirmative defense—that it relied on factors other than sex in determining Garcia’s compensation and had legitimate business reasons for implementing those factors. See Forden v. Bristol Myers Squibb, 63 Fed.Appx. 14 (N.D.N.Y. 2001), aff'd 63 Fed.Appx. 14, 15 (2d Cir. 2003) (summary order) (<HOLDING>). As set forth in detail above, (see supra Holdings: 0: holding that disparities in compensation were due to a number of permissible factors including seniority experience and performance 1: recognizing same factors 2: holding that the admissibility of lay witness identification testimony turns on a number of factors 3: holding that plaintiffs evidence of statistical disparities in hiring promotion and compensation was sufficient to support claim of intentional discrimination where the employment decisions were based on completely subjective criteria 4: recognizing a sound economic argument for the totaloffset rule as applied to estimates that exclude these latter factors while only including individual seniority and promotion gains


Input: see also Cooper, 508 P.2d at 950-51 (upholding judgment for the plaintiff who was injured in collision with horse on road, finding that trespasser’s opening of gate was not intervening cause in light of defendant’s failure to lock gate and defendant’s knowledge that horses had previously escaped and that trespassers often entered property); Breising, 477 P.2d at 987 (implying that car repair shop may have been liable to owner of vehicle that was left with keys in ignition and was subsequently stolen, but upholding summary judgment against individual who was injured in an accident with thief). The Kansas courts have approved summary judgment in other eases which we find distinguishable from the instant case. See Sly v. Board of Education, 213 Kan. 415, 516 P.2d 895, 903-04 (1973) (<HOLDING>); Hickert v. Wright, 182 Kan. 100, 319 P.2d Holdings: 0: holding that a grant of summary judgment in favor of one party creates a final judgment allowing appellate review of denial of opposing partys summary judgment motion 1: holding that summary judgment in favor of the defendant was appropriate because the plaintiff failed to designate evidence that demonstrates that the defendant abused the qualified privilege 2: holding that party may not appeal summary judgment in favor of opponent when grounds opposing summary judgment asserted on appeal were not raised before trial court 3: holding that summary judgment in favor of the defendant was proper where students injuries were the result of an unforeseeable attack by other students before school 4: holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiffs motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith


Input: the case was set to go to trial the following month. He attempts to contradict this testimony with an affidavit in response to the motion for summary judgment in which he avers he did not know he was not a party plaintiff or entitled to any of the lawsuit proceeds until after the case went to trial. He further states in that affidavit that Smithee did not inform him that he was not included in the lawsuit. However, an affidavit which conflicts with deposition testimony may not be used to raise a fact issue with respect to a motion for summary judgment without an explanation. Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108, 111 (Tex.App.-Houston [1st Dist.] 1997, no pet.); but see Thompson v. City of Corsicana Housing Authority, 57 S.W.3d 547, 557 (Tex.App.Waco 2001, no pet. h.) (<HOLDING>). The trial court sustained the objections of Holdings: 0: holding that an eeoc reasonable cause determination letter did not constitute evidence precluding summary judgment when the other evidence was insufficient to create a genuine issue of material fact 1: holding that the issue of inconsistencies in witness statements are properly reserved for the eventual trial in mexico 2: holding that inconsistencies in the summary judgment evidence of a single witness create a fact issue 3: holding that unsupported allegations or denials are insufficient to create a genuine issue of material fact for purposes of summary judgment 4: holding that a plaintiff cannot create an issue of material fact to defeat summary judgment through an affidavit that contradicts prior testimony


Input: to prohibit arbitration in one type of contract, this is a determination by the Mississippi legislature to control the risks and harms caused by uninsured and underinsured motorists, see Id. We agree with the district court that § 83-11-109 has the effect of transferring or spreading a policyholder’s risk and therefore the first Pireno factor weighs in favor of concluding § 83-11-109 regulates the business of insurance. American Bankers also argues that § 83-11-109 is not an integral part of the insurer-insured relationship and thus fails to meet the second Pireno factor. On the contrary, § 83-11-109 is an integral part of the insurer-insured relationship because it controls how disputes regarding uninsured/underinsured motorist coverage will be resolved. See West, 267 F.3d at 823 (<HOLDING>); accord McKnight, 358 F.3d at 858; Mut. Holdings: 0: holding that a missouri state law excepting insurance contracts from an arbitration law regulated the business of insurance because it applied to the processing of disputed claims and had a substantial effect on the insureiinsured relationship 1: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 2: holding that the mccarranferguson act which bars application of a federal law in the face of a state law enacted for the purpose of regulating the business of insurance did not preclude the concurrent assertion of the federal rico statute and nevada insurance law 3: holding that erisa preempted state law claim brought by employer against insurance company for wrongful claims processing 4: recognizing that the duty arises not from the terms of the insurance contract but from an obligation imposed in law as a result of the special relationship


Input: a "jurisdictional element which would ensure, through case-hy-case inquiry,” that the defendant's particular offense "affects interstate commerce.” Lopez, 514 U.S. at 561, 115 S.Ct. at 1631; see also United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir.1997). The conclusion that Lopez does not require an individualized finding of "substantial effect" to sustain a conviction under § 844(i)’s second prong is consistent with the holdings of several other circuits. See, e.g., United States v. Tocco, 135 F.3d 116, 123-24 (2d Cir.) (rejecting the contention that Lopez requires the government to show a substantial effect on interstate commerce for purposes of § 844(i)), cert. denied, - U.S. -, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998); United States v. Hicks, 106 F.3d 187, 190 (7th Cir.) (<HOLDING>), cert. denied, U.S. , 117 S.Ct. 2425, 138 Holdings: 0: holding after lopez that the interstate nexus element of the hobbs act still requires the government to show only a minimal connection to interstate commerce 1: recognizing power of states to engage in some regulation of interstate commerce 2: holding that the connection between the robbery and interstate commerce was much more direct than in wang because at the time of the robbery the victim in walker was selling illegal drugs that had traveled through interstate commerce 3: holding that the government can satisfy the hobbs act interstate commerce requirement by showing that the robbery resulted in the closure of a business engaged in interstate commerce 4: holding that  844i requires the government only to establish a minimal connection between the property at issue and some aspect of interstate commerce


Input: Ark. 644, 863 S.W.2d 291, 295 (1993); Fla. Stat. Ann. § 61.30(ll)(b) (West 1997 & 1998 Supp.); Ill.Rev.Stat. ch. 750, para. 5/505(a)(2)(a) (1993 & 1998 Supp.); Ky.Rev.Stat. Ann. § 403.211(3)(d) (Michie 1984 & 1996 Supp.); La.Rev.Stat. Ann. § 9:315.7 (West 1991 & 1997 Supp.); Me.Rev.Stat, Ann. tit. 19, § 2007.3.D (West 1998); Michigan Child Support Formula Manual 4 (1998); Minn.Stat. Ann. § 518.551(c)(2) (West 1990 & 1998 Supp.); Miss.Code Ann. § 43-19-103(b) (1993); Mont. Admin. R. 46.30.1543(l)(m); N.J. Ct. R., Appx. IX.21G); N.Y. Fam. Ct. Act § 413.1(f)(1) (McKinney 1998); Tex. Fam.Code Ann. § 154.123(b)(3) (West 1996); Vt. Stat. Ann. tit. 15, § 659(a)(1) (1989 & 1997 Supp.); Va.Code Ann. § 20-108.1.B.9 (Michie 1995 & 1998 Supp.); Wa. Rev.Code § 26.19.075(vii) (1994). Cf Idaho R 2) (<HOLDING>); Hinckley v. Hinckley, 812 P.2d 907 Holdings: 0: holding noncustodial parent not entitled to an automatic credit and court could order child support in addition to social security disability dependency benefits 1: holding parent entitled to credit for any social security disability benefits paid to child as a result of parents disability 2: holding that use of social security benefits satisfied child support obligation 3: holding that credit for social security old age and survivor benefits does not also include credit for federal disability benefits 4: holding parent has right to credit for social security retirement payments made for child


Input: of the Bakers’ forestry practices was legally impermissible, defendants abandoned their effort to obtain an EIR or any further review. Given this evidence and Natural Heritage’s role as an advocacy organization, there is no evidence that defendants’ concern for the vitality of the heronry was a pretext. As compared to plaintiff’s contentions — that defendants were motivated by Mr. Baker’s dated and somewhat elusive opposition to unrealized legislation and by Mr. Baker’s suit against Dr. Parsons, threatened after defendants had already expressed opposition to the proposed pier — defendants’ explanation “seems both the most logical inference and one that is wholly consistent with the alleged [delays and] irregularities” in defendants’ review process. Custodio, 964 F.2d at 39, 43 (<HOLDING>); see also Cloutier, 714 F.2d at 1192 (“It is Holdings: 0: recognizing first amendment retaliation right 1: holding plaintiff did not exhaust his retaliation claim where his eeoc charge made no mention of retaliation 2: holding that plaintiff had stated a claim for violation of his first amendment right to intimate association where he alleged that his employer harassed him in retaliation for his fathers political activities 3: holding that although plaintiffs claims for disability discrimination and hostile work environment were rejected by the jury and plaintiff only prevailed on his first amendment retaliation claim no reduction in requested fees was warranted on partial success grounds because the issue of plaintiffs transfer was inextricably intertwined with his retaliation claim 4: holding that the plaintiffs first amendment retaliation claim regarding a waste disposal permit failfed for lack of evidence that whatever shortcomings and irregularities occurred were in retaliation for his personal political views


Input: a participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable.” Id. at 610. (In the present case the limitation period began to run in September 2005, Standard completed its administrative review on January 19, 2007, and Wilson did not file her lawsuit until July 28, 2011.) 2 . By the time it reached the Supreme Court, equitable tolling was not at issue in the Heimeshoff case. See 134 S.Ct. at 615 n. 6. ("Whether the Court of Appeals properly declined to apply those [equitable] doctrines in this case is not before us.”). Even so, we are paying attention to the dicta about the possibility of equitable tolling. See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.2006) (<HOLDING>). 3 . The Sixth Circuit has held that 29 C.F.R. Holdings: 0: holding that there was no violation in a joint navycoast guard drug interdiction operation on the high seas and inferring in dicta that there is now no such need to deter future violations of 10 usc  375 based on the absence of any ninth circuit case applying the exclusionary rule to such violations 1: holding where there is no duty to defend there is no duty to indemnify 2: recognizing that a claim is an assertion of a right and if there is no assertion of a right there is no claim to deduct 3: recognizing in dicta that where there is a general duty it may be considered as insistent both where the actor is and the subject is  as in the case of the duty of a father to support his children and if the duty hals criminal sanetion it may be enforced in either place 4: recognizing that there is dicta and then there is dicta and then there is supreme court dicta


Input: addressed herein provide adequate support for Plaintiffs’ claims. ’ 61 . See JIC Ad.Op. 00-763 at 2. 62 . Id. 63 . See ASB Ad.Op. at 2. 64 . Id. 65 . Alabama Canons of Judicial Ethics, Canon 2A (Commentary). 66 . See Frederic William Maitland, Survey of the Century, In III The Collected Papers of Frederic William Maitland 439 (Cambridge: The University Press, 1911). 67 . This Order and ruling, granting the preliminary injunction, is a very narrowly tailored determination which applies to the candidates for judicial office in the State of Alabama’s November 7, 2000, general election. 68 . Pursuant to England v. Louisiana State Bd. Of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) and Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1304 (11th Cir.1992) (<HOLDING>) and Government and Civic Employees Organizing Holdings: 0: holding that state court judgment settling shareholders state and federal claims had preclusive effect in federal court even though shareholders could not have pressed their federal claims in state court 1: recognizing that pleadings filed in federal court while the federal court has jurisdiction become part of the state court record on remand 2: holding that when applying state law a federal court is bound to follow the highest court in the state 3: holding that a federal court litigant who is forced into state court under pullman may reserve a right to return to federal court in that the plaintiff can preserve the right to the federal forum for federal claims by informing the state court of his or her intention to return following litigation of the state claims in the state court 4: holding that in a diversity action a federal court must apply the law of the forum state


Input: with the debtor refused to pay the purchase price. The debtor sued on the contract claim in the bankruptcy court. The defendant corporation objected to the bankruptcy court’s jurisdiction on the ground that the debtor’s claim was a state contract action thereby making the proceeding non-core. The defendant asked the bankruptcy court to abstain, forcing the debtor to sue in state court and permitting the defendant to insist on a jury trial. Although the bankruptcy court agreed that the proceeding was non-core, it declined to abstain. See In re Arnold Print Works, Inc., 54 B.R. 562, 569 (Bankr.D.Mass.1985) (citing Mohawk Industries, supra). The defendant corporation then appealed the jurisdictional issue. The district court also concluded that the proceeding was n 6 (Bankr.N.D.Ga.1985) (<HOLDING>); See also In re Epi-Scan, Inc., 71 B.R. 975 Holdings: 0: holding an action to recover a postpetition account receivable to be core 1: holding plaintiff could not recover on nuisance action to recover for alleged damage to property he does not own or rent 2: holding that a postpetition claim under section 1305 is a liability that arises postpetition and relates only to postpetition activity 3: holding an action for postpetition breach of an agreement to purchase property to be a core proceeding 4: holding that debt from debtor to bank in the form of chargebacks to the debtors account for credit card transaction rescissions was prepetition debt even though customers rescinded transactions postpetition and the bank therefore chargedback postpetition because a customers right to rescind and thereby the banks right to chargeback accrued at the time the customer made a purchase even though such customer exercised his right to rescind postpetition


Input: jurisdiction over individual partners depends on a partner’s contacts with the forum and the forum’s laws dictating the agency relationship among partners. For example, in Sher v. Johnson, 911 F.2d 1357, 1366 (9th Cir.1990), the court held that there was personal jurisdiction over a partnership, but no such jurisdiction over the partnership’s individual partners. The court determined that based on Rush, an evaluation of each partner’s contacts with the state showed that they had not availed themselves of the forum’s protections. Id. at 1365. The court noted that although California law permitted a partner’s actions to be imputed to the partnership, the reverse was not true. Id. at 1366; see also SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 969 F.Supp. 1254, 1259 (D.Kan.1997) (<HOLDING>); Guy v. Layman, 932 F.Supp. 180, 183 Holdings: 0: holding over 1: holding that personal jurisdiction over partner did not follow from jurisdiction over partnership citing sher 2: holding that court did not have personal jurisdiction over nonresident defendant because plaintiff failed to show that defendant was assignee of assignor over whom court had personal jurisdiction 3: holding no personal jurisdiction over nonresident guarantor 4: holding minimum contacts were necessary for personal jurisdiction over defendant


Input: ... if committed while the person is on probation for a conviction of a felony offense or parole, work furlough or any other release or escape from confinement for conviction of a felony offense shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis ... until the person has served not less than twenty-five years. 2 . A.R.S. § 13-604(1) provides, in part, that: “A person who has been convicted in any court outside the jurisdiction of this state of an offense which if committed within this state would be punishable as a felony or misdemean- or is subject to the provisions of this section.” See also State v. Decker, 172 Ariz. 33, 833 P.2d 704 (1992) (<HOLDING>). 3 . A.R.S. § 13-702(D)(11) states that prior Holdings: 0: holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense 1: holding that a prior nonarizona conviction to be used as a prior felony conviction under the statute must both be for an offense that would constitute a felony in arizona and be classified as a felony in the other jurisdiction 2: holding that felony conviction for which imposition of sentence was stayed could be counted as prior felony conviction under sentencing guidelines 3: holding that proof of an agreement to commit a felony is not a necessary element in a conviction for the commission of the felony 4: holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense


Input: stipulations in a trial brief may be treated as “judicial admissions.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226-27 (9th Cir.1988). Such admissions, which “have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact,” are binding on both the parties and the court, including this court. Id. at 226 (internal quotation marks omitted). Moreover, the government does not argue here, and we find no reason to suppose, that Davis’ bag was not closed. The fact that Davis stored his bag under a bed, even though the bed was not exclusively under his control, strongly supports our conclusion that his expectation of privacy in the bag was reasonable. See United States v. Haydel, 649 F.2d 1152, 1154— 55 (5th Cir. Unit A July 1981) (<HOLDING>); cf. United States v. Ramos, 12 F.3d 1019, Holdings: 0: holding that defendant had expectation of privacy in a briefcase placed beneath the bed even though he had overstayed his lease 1: holding that defendant had legitimate expectation of privacy in contents of locked safe stored in his apartment but owned by third party 2: holding that defendant had reasonable expectation of privacy in gambling records stored under his parents bed although he did not reside regularly at his parents home he kept clothing there and had occasionally remained overnight 3: holding that an overnight guest has a legitimate expectation of privacy in his hosts home 4: holding that users have a reasonable expectation of privacy in the content of stored email


Input: cause to believe there is contraband somewhere in the car, but he does not know exactly where, he may search the entire car as well as any containers found therein"). When the officer found the open container and removed it from the console, he was lawfully positioned to observe the methamphetamine, pipe, and digital scale when they came into plain view with removal of the bottle that had been sitting on top of them. The drug-related items were found in plain view during a valid warrantless search. They were lawfully seized. Cf. Harris v. United States, 390 U.S. 234, 286, 88 S.Ct. 992, 998, 19 L.Ed.2d 1067 (1968)(finding that once door to vehicle had been lawfully opened, registration card in plain view was legally seized); State v. Baxter, 1974 OK CR 198, 15, 528 P.2d 347, 349 (<HOLDING>). B. Exigent Circumstances T9 We now turn to Holdings: 0: holding that a vehicle may be seized without a warrant if there is probable cause to believe that it is subject to forfeiture 1: holding that the incriminating nature of an item was immediately apparent where the police officers had probable cause to believe that it contained evidence of a crime 2: holding that officer lawfully in any place may without obtaining warrant seize from motor vehicle any item which he observes in plain or open view if he has probable cause to believe item is contraband or evidence of crime 3: holding police officer had probable cause to believe defendant was operating a motor vehicle under the influence of alcohol 4: holding that when a police officer observes something from an area where the officer is lawfully entitled to be anything that is in open view may be observed without having to obtain a search warrant because making such open view observations does not constitute a search in the constitutional sense


Input: preserved her objections with regard to termination of the Lease. Tenant argues on appeal that it was error for the metropolitan court to terminate the Lease without finding a material violation of the Lease. Tenant further argues that it was error for the metropolitan court to consider Tenant’s non-payment of June rent as part of the basis for terminating the Lease. Tenant appealed both of these issues to the district court, and the district court held that neither issue was preserved for review. As such, Tenant asks this Court to review her claim for fundamental error. Landlord responds that the doctrine of fundamental error is inapplicable to Tenant’s appeal and argues that this Court should not consider the merits of Tenant’s unpreserved appellate argumen 232, 236-37 (1905) (<HOLDING>), aff’d, 204 U.S. 647 (1907). Tenant has the Holdings: 0: holding that the plaintiffs have the burden of proof and persuasion as to the existence of standing 1: recognizing thatthe plaintiff bears the initial burden of proof to establish the existence of a contract and the terms to be enforced under it 2: holding that the trustee bears the burden of proof with respect to the issue of insolvency under ohio law 3: holding that the plaintiff bears the burden of proof for all elements of section 523a15 4: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract


Input: defendant nor CMR has presented any evidence that calls into question BBSSI’s diligence in asserting its rights. According to BBSSI, ten weeks, standing alone, is not an unreasonable amount of time to file a bid protest at the Court of Federal Claims, see Oral Argument at 3:37:15-25, and the court agrees. There exists no firm line of demarcation separating a reasonable delay from an unreasonable delay, see A.C. Aukerman Co., 960 F.2d at 1032, and courts are cognizant of the realities presented by litigation. To that end, negotiations between the parties, as well as the composition of briefs and assembly of supporting documentation, have been recognized as legitimate excuses for a delay in filing suit. See, e.g., Global Computer Enters., Inc. v. United States, 88 Fed.Cl. 350, 423 (2009) (<HOLDING>); LaForge & Budd Constr. Co. v. United States, Holdings: 0: recognizing that voluminous filings cannot be drafted and assembled overnight 1: holding that courts may take judicial notice of sec filings that are matters of public record 2: recognizing that a court may take judicial notice of a document filed in another court  to establish the fact of such litigation and related filings 3: holding that a written report drafted by a person who is not properly qualified as an expert may not be considered as summary judgment evidence 4: recognizing that a court may take judicial notice of court filings and other matters of public record


Input: abusive manner” in which the discrimination is accomplished rather than a function of the actual discrimination itself. Farmer, 430 U.S. at 305, 97 S.Ct. 1056. Thomas has not met either of these requirements. Therefore, because Thomas’s wrongful discharge and civil conspiracy claims amount to a claim for a breach of the duty of fair representation and a Farmer exception to preemption does not apply, Thomas’s claims are preempted by federal labor law. Because Thomas did not bring a federal claim within the applicable six-month statute of limitations for claims asserting a violation of the duty of fair representation, such a federal claim is now barred as untimely. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169-70, 103 S.Ct. 2281, 2293-94, 76 L.Ed.2d 476 (1983) (<HOLDING>); Arnold v. Air Midwest, Inc., 100 F.3d 857, Holdings: 0: holding that the otca limitations period applied to a claim alleging a breach of the fair labor standards act by the state 1: holding that sixmonth duty of fair representation statute of limitations applicable to claim alleging breach of union contract 2: holding that state law fraud claims are preempted by the federal labor law duty of fair representation 3: holding that sixmonth limitations period established in delcostello applies to a claim for breach of the duty of fair representation brought only against a union 4: holding that sixmonth statute of limitations period for filing unfair labor practice charges applies to employees action for breach of the duty of fair representation


Input: c. 279, § 3, that statute does not require, in the absence of prejudice, automatic dismissal, if such disposition does not occur within the six-month period set forth in the statute. The defendant also contends that his due process rights were violated when he did not receive a hearing within the time specified in G. L. c. 279, § 3. We disagree. We recognize that a person whose probation is subject to revocation is entitled to a revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Commonwealth v. Durling, 407 Mass. 108, 112 (1990). However, the defendant in this case has not demonstrated that the Commonwealth intentionally delayed the revocation hearing or that he suffered any prejudice as a result of the delay. See Commonwealth v. Odoardi, 397 Mass. 28, 36-37 (1986) (<HOLDING>). The defendant received a probation revocation Holdings: 0: holding that delay caused by or consented to by a defendant is not unreasonable 1: holding the tenday requirement was ministerial and the defendant failed to show he was prejudiced by the delay 2: holding defendant did not demonstrate that commonwealth failed to act diligently in commencing revocation hearing or that defendant prejudiced by delay 3: holding that the defendant failed to demonstrate ineffective assistance due to the alleged conflict of interest because the defendant failed to demonstrate a conflict as nothing was presented to refute the attorneys testimony that his loyalty was to his clients 4: holding that no prejudice to the defendant arose from a delay in holding his parole revocation hearing twentyfour hours beyond the ninetyday limit


Input: disagree. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const, amend. VI. This Court in Globe v. State, 877 So.2d 663 (Fla.2004), addressed a Confrontation Clause issue and held that the clause was not implicated where Globe and his codefendant, Busby, speaking together to a law enforcement officer, gave a joint taped statement in which they admitted killing a fellow inmate and where the tape was played at trial. The Court reasoned thusly: We have previously recognized that admissions by acquiescence or silence do not implicate the Confrontation Clause. See Nelson v. State, 748 So.2d 237 (Fla.1999); see also United States v. Kehoe, 310 F.3d 579, 590-91 (8th Cir.2002) (<HOLDING>), cert. denied, 538 U.S. 1048, 123 S.Ct. 2112, Holdings: 0: holding that the confrontation clause of the sixth amendment is not violated by the admission of hearsay statements under the coconspirator exception to the hearsay rule where the defendant was able to confront and crossexamine the witness who claimed that the statements at issue were made 1: holding that an absent witnesss statements are admissible under the confrontation clause only where the declarant is unavailable and only where the defendant   had a prior opportunity to crossexamine 2: holding the confrontation clause applies only to testimonial statements 3: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment 4: holding that the confrontation clause did not guarantee the defendant the right to crossexamine a speaker whose statements were imputed to the defendant as adoptive admissions of a party opponent


Input: of analysis. If the mistake involved a discretionary act, the appellate court will review for an abuse of discretion. See Widmer, 744 A.2d at 753 (decision whether verdict is against weight of evidence is discretionary). If the mistake concerned an error of law, the court will scrutinize for legal error. See Morrison, 646 A.2d at 571 n. 8 (propriety of jury instructions entails question of law). If there were no mistakes at trial, the appellate court must reverse a decision by the trial court to grant a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred. See Von der Heide v. Commonwealth, Dept. of Transp., 553 Pa. 120, 718 A.2d 286, 290 (1998); Atene, 318 A.2d at 697; Kralik, 258 A.2d at 656; see also Riccio, 705 A.2d at 427 (<HOLDING>). If the appellate court agrees with the Holdings: 0: holding that it was error for the trial judge to answer a jurys question without giving defendants counsel an opportunity to be heard before the trial judge responded 1: holding that trial judge did not err in refusing to transfer to another judge defendants motion for substitution of judge for cause where defendants motion was not made in good faith 2: holding that a defendant was not entitled to a relief under section 2255 when he asserted that the sentencing judge who was not the trial judge was influenced by the sentence imposed by the trial judge on a codefendant 3: holding that because judge who was substituted for posttrial motions erred in finding that trial court judge made mistake of law grant of new trial was error 4: holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion


Input: surely not what the Legislature intends. The dissenting opinion contends that the literal wording of the statute unambiguously provides a strategic tool to the accused. We disagree. Nowhere in the statute are the words "strategic tool” used, and this interpretation is contradicted by the fact that only one shuffle is authorized and it can be effected by either the defendant or the State. The dissent further contends that we recognized in Wilkerson v. State, 681 S.W.2d 29 (Tex.Crim.App.1984) that providing such a strategic tool was "the very intent behind the passage of the statute.” However, the case actually said that the legislative intent would be thwarted if a trial court's sua sponte shuffle foreclosed the State or a defendant from effecting one. Id. at 30. There are no spec 2002)(<HOLDING>); Ex parte McCain, 67 S.W.3d 204 Holdings: 0: holding that accused must competently and intelligently waive the right to counsel 1: holding that a parents statutory right to counsel in termination proceedings guarantees the right to effective counsel 2: recognizing the right to counsel on appeal 3: holding that a death row inmates statutory right to competent counsel does not really mean counsel that performs competently 4: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel


Input: omitted). Illustrative cases upholding convictions under this part of subsection (1) are State v. Tornee, 20 Conn.App. 75, 564 A.2d 330 (defendant’s physically abusing a child), cert. denied, 213 Conn. 809, 568 A.2d 794 (1989); State v. Tucker, 50 Conn.App. 506, 718 A.2d 979 (defendant’s grabbing an 11-year old, lying on top of her, while holding his hand over her mouth, during his repeated attempts to force his tongue into her mouth violated the risk of injury statute), cert. granted in part, 247 Conn. 928, 719 A.2d 1172 (1998), review dismissed as improvidently granted, 248 Conn. 668, 728 A.2d 1097 (1999); State v. McClary, 207 Conn. 233, 234-39, 541 A.2d 96 (1988)(defendant’s severely beating a two-year-old girl with a belt); and State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980)(<HOLDING>). c. “Contact with the Intimate Parts of a Holdings: 0: holding that the trial judge erred in instructing the jury on the physical endangerment portion of the statute when the defendant was charged only with the risk of injury to a child by doing an act likely to impair the morals of a child under the age of sixteen 1: holding that attempted sexual abuse of a child under the age of fourteen is a crime of viqlenee 2: holding that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner was conduct proscribed by the second prong of subsection 1 3: holding that the florida offense of attempted lewd assault on a child under the age of sixteen is a crime of violence even though the offense might be accomplished without use of physical force 4: holding that a petitioners conviction for indecent assault and battery under massachusetts law constituted a crime of violence because any offense under the state statute was by definition nonconsensual and thus any violation of the statute by its nature presents a substantial risk that force may be used to overcome the victims lack of consent and accomplish the indecent touching


Input: order, or other order....” Thus, I find no authority which would permit an award of damages to the plaintiff, or require that a jury trial be held, under Title III of the ADA. As stated in Dorsey v. City of Detroit, 157 F.Supp.2d 729, 733 (E.D.Mich.2001): Title III of the ADA does not provide for monetary damages or, concomitantly, a jury trial, when the action is brought by a “person who is being subjected to discrimination.” 42 U.S.C. § 12188(a)(2). [FN4] See also Gonzales v. National Bd. of Med. Examiners, 225 F.3d 620, 635 (6th Cir.2000) (Gilman, J„ dissenting) (stating that it “appears doubtful” that Title III plaintiffs are entitled to jury trial as Title III permits only injunctive relief) (citing cases); Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir.1999) (<HOLDING>); see also Fischer v. SJB P.D. Inc., 214 F.3d Holdings: 0: holding that a state is not a person under 42 usc  1983 1: holding that the timely filing of an eeoc charge pursuant to  706 of title vii 42 usc  2000e5 did not toll the statute of limitations for an action brought on the same facts under 42 usc  1981 2: holding that person in 42 usc  1983 does not include states 3: holding that principles of comity bar challenges to state tax law which seek money damages under 42 usc  1983 4: recognizing that title iii enforcement statute 42 usc  12188 which incorporates the remedies of 42 usc  2000a3a does not include money damages


Input: not determinative of the outcome of the case, we will use the earlier date of June 2012 as the date of filing the petition. 4 . The effective date provision of Minn.Stat. § 590.01, subd. 4, allowed a "person whose conviction became final ... to file a petition for postconviction relief.” Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 901, 1097-98. 5 . Moreover, federal courts have held that a voluntary dismissal of a direct appeal brings the direct appeal to an end. See United States v. Outen, 286 F.3d 622, 631 (2d Cir.2002) (explaining that "withdrawal of an appeal is an expression of the intent of the parties (principally, of course, the appellant) not to pursue the appeal any further and brings the appeal to an end”); White v. Klitzkie, 281 F.3d 920, 923 (9th Cir.2002) (<HOLDING>). 6 . Specifically, subdivision 4(b) permits a Holdings: 0: holding that the statute of limitations period begins to run when the allegedly discriminatory pension plan is applied to the plaintiffs and leaving determination of the actual date the statute begins to run on each claim to the district court 1: holding that the statute of limitations begins to run on the date the alleged malpractice is discovered 2: holding that the oneyear statute of limitations for filing a habeas petition under the antiterrorism and effective death penalty act of 1996 is not jurisdictional 3: holding that the oneyear statute of limitations under the antiterrorism and effective death penalty act aedpa begins to run on the date a prisoner dismisses his direct appeal because his conviction is then final 4: holding that the oneyear period begins to run when the mandate of the court of appeals issues


Input: “proper when the attorney’s actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” State Street Bank, 374 F.3d at 180. Sanctions under Section 1927 against FKSA are not warranted because Cintas has not pointed to conduct by plaintiffs’ counsel that “unreasonably and vexatiously” multiplied the proceedings in this action. The defendant essentially complains that the plaintiff pursued a meritless lawsuit, one that had no “legitimate factual or legal basis for the claim,” not that plaintiffs counsel litigated the action in a way that multiplied or delayed the proceedings. See United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 948 F.2d 1338, 1345 (2d Cir.1991) (<HOLDING>). Since Unite voluntarily discontinued the Holdings: 0: recognizing that the colorado river doctrine is necessary to ensure judicial economy and deter abusive reactive litigation 1: holding that the amount of sanctions is appropriate only when it is the minimum that will serve to adequately deter the undesirable behavior 2: holding that the purpose of section 1927 is to deter unnecessary delays in litigation 3: recognizing that purpose of a 1980 amendment to the statute was to deter unnecessary delays in litigation 4: holding that in the absence of demonstrated prejudice remand is unnecessary


Input: contest the adoption, nor did he have any right to an evidentiary hearing to determine whether the adoption was in the best interest of the child. IV. JURISDICTION ¶ 29 Finally, C.F. contends that Utah has no jurisdiction over him, and thus he is not subject to Utah law. Specifically he asserts that he is a Washington State resident, has neither been to Utah nor conducted business here, and that Utah courts have never had subject matter or personal jurisdiction over him. C.F. errs in this assertion. He voluntarily invoked and submitted to the jurisdiction of Utah, its laws, and its court system when he intervened in the adoption proceeding. See Trent v. Trent, 735 P.2d 382 (Utah 1987); Rawlings v. Weiner, 752 P.2d 1327 (Utah Ct.App.1988); Kelly v. Draney, 754 P.2d 92 (Utah Ct.App.1988) (<HOLDING>); see also In re Marriage of Rizzo, 237 Holdings: 0: holding that another states reservation of personal jurisdiction over a florida resident for the purpose of modifying its decree may last as long as the effectiveness of the decree and that no dueprocess violation occurs by the entry of a default modification against the florida resident if the florida resident was afforded proper notice 1: holding that venue in a legal malpractice action was proper in utah where the plaintiff resided despite the fact that the attorneys were located in california because the plaintiff had telephone conversations and corresponded with each of the defendants from utah and therefore the attorneys had purposefully and regularly directed their contacts toward a utah resident when they were retained and throughout their handling of the infringement action 2: holding that trial court had jurisdiction to consider custody dispute before a divorce or separation action had commenced 3: holding that utah jurisdiction was proper over washington state resident who commenced proceedings in utah to enforce visitation and custody provisions of divorce decree 4: holding venue proper where proper when the action was commenced


Input: October 3, 2002 judgment of the Swisher County Court seeking to quash that judgment as of no effect and seeking that Saddlehorn Investments, Inc., although not named as a party, be enjoined from trespassing on the real estate or interfering with their farming operations. They also sought a claim for damages. After considering the motions for summary judgment of Stewart and Self, the court rendered judgment denying all relief sought by the Gardners. Initially, we note that even though they are proceeding pro se, the Gardners are held to the same standards as a licensed attorney and must comply with the applicable laws and rules of procedure. See Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.-Amarillo 1997, no writ); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978) (<HOLDING>). Before we consider the Gardners’ sole issue, Holdings: 0: holding that district court did not abuse its discretion in striking fact statements that did not comply with the local rules 1: holding that although pro se litigants are entitled to liberal construction of their pleadings pro se litigants must follow procedural rules 2: holding that contingency fee contracts are voidable where attorneys fail to comply with disciplinary rules 3: holding that pro se litigants must follow the kentucky rules of civil procedure 4: holding litigants who represent themselves must comply with the procedures established by the rules notwithstanding the fact they are not licensed attorneys


Input: under 18 U.S.C. § 2314. His contention is that Palmyra Island is not a possession of the United States within the meaning of the relevant statutes. We disagree and affirm the district court’s denial of his petition. One of the elements of 18 U.S.C. § 2314 is that the stolen property was transported in “interstate commerce.” 18 U.S.C. § 10 defines “interstate commerce” as “commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia.” Palmyra Island is a possession of the United States. See 48 U.S.C. § 644a (placing Palmyra and seven other American Pacific Islands under the jurisdiction of the District of Hawaii); United States v. Fullard-Leo, 331 U.S. 256, 67 S.Ct. 1287, 91 L.Ed. 1474 (1947) (<HOLDING>); cf. Yandell v. Trans-ocean Air Lines, 253 Holdings: 0: holding that the land under navigable waters was not granted by the constitution to the united states but was reserved to the states respectively and that new states have the same rights jurisdiction and sovereignty over the soil under navigable water as the original states 1: recognizing that palmyra is under united states sovereignty 2: holding that tribal sovereignty is dependent on and subordinate to only the federal government not the states 3: holding that the united states has not recognized the sovereignty of the moorish nation thus precluding sovereign immunity claims 4: recognizing federal constitutional claim against the united states


Input: based on her testimony. The opinion about the family life of a witness had no bearing on the outcome of the case, unlike in the present case, where the jurors’ opinions about Detective Smith’s testimony could suggest that they had formed an opinion about Dillard’s guilt and Detective Smith’s credibility. Once the parties raise the issue of juror-witness contact, and facts show that the jurors intentionally made contact with a key prosecution witness and that the contact may have been about the substance of his testimony, and that the jurors may have discussed and formed an opinion on the ultimate question of the defendant’s guilt or innocence, the trial judge must conduct a meaningful inquiry that will resolve the factual questions raised by the contact. The contact 46, 250 (1993) (<HOLDING>). In the present case, the trial judge could Holdings: 0: holding that defendants have a right to be present at voir dire 1: holding that the defendant must renew a motion for a change of venue after voir dire to preserve the issue for appeal 2: holding that the jurors failure to remember particular facts inquired about on voir dire and the jurors misunderstanding of voir dire questions do not constitute probable prejudice 3: holding that trial courts denial of motion for new trial based on juror misconduct was justified where there was no evidence presented at hearing on motion that juror had knowingly concealed relevant litigation experience during voir dire and identity of juror as county court litigant was not demonstrated 4: holding that the court has a duty to resolve the issue of prejudice arising out of jury misconduct even though the defense could have requested a voir dire examination of the juror in its motion to disqualify


Input: convicted and bore no relationship to any other pertinent matter. That being said, I would caution that the fact that witness Berry saw defendant in the area may have been relevant evidence. However, I address only the propriety of the admission into evidence of witness Berry’s reiteration of the woman’s statements, as opposed to witness Berry’s testimony that she saw defendant in the area. While defendant’s presence may have been relevant, the statements of Ms. Love, who did not testify at trial and who made no comment incriminating defendant with respect to the charged crimes was not relevant evidence. 2 While no Michigan case has addressed this issue, I note the following federal cases in support of my position: Krulewitch v United States, 336 US 440; 69 S Ct 716; 93 L Ed 790 (1949) (<HOLDING>); United States v Reynolds, 715 F2d 99, 103 (CA Holdings: 0: holding that a statement implying that the defendant was guilty of the crime for which he was on trial was inadmissible hearsay 1: 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 2: holding where neither defense counsel nor the trial court explained to the defendant that intent to cause death was an element of seconddegree murder and there was no factual statement or admission implying intent the plea was involuntary 3: holding that the outofcourt statement by the victims mother which was admitted when the mother refused to testify at trial was inadmissible under residual hearsay exception in mil revid 804b5 because a much of her statement was double or triple hearsay that was most unreliable and b the circumstances surrounding the making of the statement were not supported by any particularized guarantees of trustworthiness 4: holding that hearsay within a police report was inadmissible


Input: conduct proximately caused his injuries. Mellen v. Lane, 377 S.C. 261, 280, 659 S.E.2d 236, 246 (Ct.App.2008). “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” Dixon v. Besco Eng’g, Inc., 320 S.C. 174, 180, 463 S.E.2d 636, 640 (Ct.App. 1995). Ordinarily, proximate cause is a question for the jury, but when the evidence is susceptible to only one inference, it becomes a matter of law for the court. Platt, 379 S.C. at 266, 665 S.E.2d at 640. Although we did not find and the parties did not provide any South Carolina cases directly on point, other jurisdictions have contemplated situations similar to the one at hand. See, e.g., Tolton v. Am. Biodyne, Inc., 48 F.3d 937, 944 (6th Cir.1995) (<HOLDING>); Darren v. Safier, 207 A.D.2d 473, 615 Holdings: 0: holding that a tortfeasor is required to pay the expenses of over treatment or unnecessary medical treatment unless such treatment was incurred by the victim in bad faith  1: holding that conduct by the plaintiff contributing to his illness or medical condition and furnishing the occasion for medical treatment is not a defense to medical malpractice where a doctor negligently treated a man who had attempted to commit suicide 2: holding when the decedent committed suicide more than one month after his last visit to the hospital and received treatment from two other hospitals during that onemonth period the plaintiffs could not prove damages because of the time lapse and intervening medical treatment 3: holding that under title vii the ultimate issue is the reason for the individual plaintiffs treatment not the relative treatment of different groups within the workplace 4: holding that a two month period might be enough  to prove the causation prong


Input: the Department, and went on to hold that the Department’s seizure of the vessel violated state law but that it was immune from damages. In no place in the opinion did the court discuss the award of attorneys’ fees or intimate that such fees had ever been awarded. It was simply silent on the issue. Because no separate judgment has been “entered” under Rule 58, the time for filing a notice of appeal has not yet begun to run. See Fed. R.App. P. 4(a)(7) (providing that a judgment or order is “entered ... when it is entered in compliance with Rules 58”). Given that the district court treated the order allowing attorneys’ fees as an appealable order and that the parties do not object to treating it as such, we find no reason to remand for formal compliance with Rule 58. Domegan, 972 F.2d 401 (<HOLDING>), vacated on other grounds, 507 U.S. 956, 113 Holdings: 0: holding that there was appellate jurisdiction under principle that a premature notice of appeal from a nonfinal order may ripen into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard and the appellee suffers no prejudice 1: holding that court had jurisdiction where no separate judgment had been entered even though notice of appeal was not timely filed as measured from the final decision 2: holding that a notice of appeal is timely when filed before final judgment is entered by the district court 3: holding that lack of a separate judgment does not preclude the taking of an appeal from a district courts final decision because the parties may waive the separate judgment requirement where one has accidentally not been entered 4: holding that notice of appeal was not effectively taken where appeal was filed simultaneously with timely motion for reconsideration because when timely motion for reconsideration is filed a notice of appeal filed prior to disposition of the motion to reconsider has no effect


Input: of the changes, he has accepted the changes as a matter of law.” Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986). {15} It appears that the district court assumed, without deciding, that under Texas law Flemma would be deemed to have accepted the terms of the Program. We agree with Defendants that, under Texas law, mutual assent and acceptance of the Program and hence an agreement to arbitrate existed between Halliburton and Flemma. Flemma does not argue otherwise. {16} Asa Halliburton employee living and working in T exas when notice of the Program was initially sent to his address, Flemma’s continued employment constituted acceptance of the terms of the Program, including the arbitration requirement under Texas law. See In re Halliburton Co., 80 S.W.3d at 568-69 (<HOLDING>). Halliburton subsequently reaffirmed the offer Holdings: 0: holding the employee had 180 days to file a claim from the date the employee received final definitive and unequivocal notice of an adverse employment action 1: holding that language in employee handbook stating that it was not to be considered as creating terms and conditions of an employment contract and that the employment relationship was employment atwill  was sufficiently explicit to preclude the creation of implied contractual obligations as a matter of law 2: holding that an employee accepted as a matter of law changes to an employment agreement by continuing employment with the company after he received notice of the changes 3: holding covenant in an employment agreement executed some 12 years after the initial taking of employment was not incident to the taking of employment 4: holding that reassignments without salary or work changes do not ordinarily constitute adverse employment decisions in employment discrimination claims


Input: Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993). In reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. In re Estate of Stull, supra, citing Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999). ANALYSIS On appeal, Muff and Lauridsen argue that the county court erred in awarding Thomsen fees because there is no such office as an attorney for an estate and, secondly, because at all times Thomsen was proceeding contrary to Tucker’s expressed desires and wishes. Ordinarily, the right of an attorney to compensation for his or her services depends upon a contract of employment, express or implied. In re Estate of Stull, supra. See, also, Doyle v. Union Ins. Co., 209 Neb. 385, 308 N.W.2d 322 (1981) (<HOLDING>). In Doyle v. Union Ins. Co., supra, the Holdings: 0: holding that attorneys claim for professional services against person sui juris or against property of such person must rest upon contract of employment express or implied made with person sought to be charged or with his agent 1: holding that under the applicable statutory provisions a person need not be impoverished or devoid of all assets to qualify as an indigent sick person but only that the person be unable to pay for necessary medical care 2: holding that burglary may qualify as offense against person if as committed it is in fact a crime against a person 3: holding that a person is seized for purposes of article i section 7 of the hawaii constitution when a police officer approaches that person for the express or implied purpose of investigating him or her for possible criminal violations and begins to ask for information 4: holding that the person who travels as an agent of person defrauded is a victim


Input: § 185.] For example, Senator Williams, a sponsor of ERISA, emphasized that the civil enforcement section would enable participants and beneficiaries to bring suit to recover benefits denied contrary to the terms of the plan and that when they did so “[i]t is intended that such actions will be regarded as arising under the laws of the United States, in a similar fashion to those brought under section 301 of the Labor Management Relations Act.” Id. In accord with the guidance set forth in Metropolitan Life, courts have found that the complete preemption doctrine— i.e. preemption under § 502(a) — permits removal of state law causes of action in a multitude of different ERISA-related circumstances. See Dukes, 57 F.3d at 355 (citing Metro. Life Ins. Co., 481 U.S. at 63-67, 107 S.Ct. 1542 (<HOLDING>); Anderson v. Elec. Data Sys. Corp., 11 F.3d Holdings: 0: holding that  1132a is the exclusive vehicle for actions by erisaplan participants and beneficiaries asserting improper processing of a claim for benefits 1: holding negligent misrepresentation claim was not preempted because it neither sought benefits under plan nor alleged improper processing of benefits 2: holding a state court complaint alleging a common law breach of contract action to be in fact a claim under erisa and thus removable as a federal question 3: holding that state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan are removable to federal court 4: holding that state law causes of action arising from improper processing of a claim for benefits are preempted


Input: 1978, no writ), the court rejected testimony that two or three tracks that had been made through a syrupy or jelly-like substance on which plaintiff slipped tended to show that the substance had been there long enough to charge the store with constructive notice. The court explained, “It is just as likely that the tracks were made by customers traversing the aisle only minutes or even seconds before plaintiffs fall.” Id. at 590; see also Robledo v. Kroger Co., 597 S.W.2d 560, 560-61 (Tex.Civ.App.—Eastland 1980, writ ref'd n.r.e.) (recognizing that cart tracks through dirty water was no evidence of constructive notice because they could have been made by another customer minutes before the fall); Kimbell, Inc. v. Blount, 562 S.W.2d 10, 13 (Tex.Civ.App.—Austin 1978, no writ) (<HOLDING>). The testimony that the macaroni salad “seemed Holdings: 0: holding that although there was evidence of discrimination based on race there was insufficient evidence to support a finding of constructive discharge 1: holding that drying footprints and tracks leading away from puddle of liquid was no evidence that the puddle had been there long enough to put the store on constructive notice 2: holding that the trial court committed no error in sustaining objection to plaintiffs testimony that the water had been there for some time because the plaintiff had no personal knowledge of how long the puddle had been there 3: holding that testimony that the grape on which plaintiff slipped was squashed and muddy that the floor was dirty and that pieces of paper were strewn around nearby was no evidence that the grape had been on the floor long enough to charge the store with notice 4: holding that plaintiff failed to show that the defendant had actual or constructive notice of a puddle of water that had accumulated on a bank floor on a rainy day 20 minutes after the bank opened


Input: of privacy because their contents can be inferred from their outward appearance.” See State v. Telthorster (1997), Licking App. No. 97CA87, 1997 WL 973456; Arkansas v. Sanders (1979), 442 U.S. 753, 764-765, 99 S.Ct. 2586, 61 L.Ed.2d 235. {¶ 12} Though Officer Bininger testified that in his experience, the type of container that fell from Suter’s pants is often used to transport narcotics, the court does not find the container to be a rare, single-purpose container. Notably, Officer Bininger did not say that drugs were always found in this type of container or that the contents of the container were immediately apparent to him. Cases discussing single-purpose containers bolster this court’s conclusion. Compare State v. Telthorster (Dec. 24, 1997), Licking App. No. 97CA87, 1997 WL 973456 (<HOLDING>) with State v. Patrick (Jan. 12, 2001), Licking Holdings: 0: holding that defendant had no reasonable expectation of privacy in the contents of plastic bags placed in or near his open garbage cans and that the police did not violate his fourth amendment rights in seizing and searching the bags where they were able to do so without trespassing on the defendants property 1: holding that prisoners do not have a reasonable expectation of privacy in their cells 2: holding that car passenger who left her purse in her boyfriends car had a reasonable expectation of privacy in the contents of her purse indeed a purse is a type of container in which a person possesses the highest expectations of privacy 3: holding that a person does not have any reasonable expectation of privacy in a tiedoff piece of opaque plastic because its contents can be inferred from its appearance and based in part on officers testimony that he had never seen such a container used to transport anything other than drugs 4: holding that there was no reasonable expectation of privacy in the contents of plastic garbage bags left on or at the side of a public street


Input: approved by Congress, via the IRC, to adjust the bare minimum exemption amount of $2,000 for inflation. A reasonable person of ordinary intelligence, if he did not want to avail himself of the IRS documents and notices publishing the applicable exemption amounts, would consult the CPI and make the necessary calculations to determine his gross income for tax purposes. See Pond v. Comm’r, 211 Fed.Appx. 749, 752 (10th Cir.2007) (unpublished) (explaining that the IRC’s provision of a specific number, $2000, and a statutory formula for adjusting that number, adequately defines the exemption amount and permits a taxpayer to be penalized for noncompliance); see also United States v. Priest, Nos. 06-10438, 06-10447, 06-10448, 2007 WL 1961885, at *2 (9th Cir. July 5, 2007) (unpublished mem.) (<HOLDING>). B. ' Whether the Denial of the Defense’s Jury Holdings: 0: holding that tax exemption for church property does not violate establishment clause 1: holding that the alleged imprecision caused by incorporating the cpi in determining a statutorily provided exemption does not void as a matter of law the obligation to file a tax return 2: holding act qualifies as exemption statute under exemption 3 3: holding that the offense requires that the return be false as to a material matter 4: holding one who claims tax exemption has burden of showing entitlement to exemption


Input: or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.”)); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (noting that the plain intent of Congress in enacting the Endangered Species Act was to halt and reverse the trend toward species extinction, whatever the cost); Catron County Bd. of Com’rs, New Mexico v. United States Fish and Wildlife Serv., 75 F.3d 1429, 1437 (10th Cir.1996) (identifying ESA’s core purpose as prevention of the extinction of species by preserving and protecting the habitat upon which they depend from the intrusive activities of humans); Village of Kaktovik v. Watt, 689 F.2d 222, 233 (D.C.Cir.1982) (<HOLDING>). One of the purposes of the Endangered Species Holdings: 0: recognizing an intermediate level of scrutiny in which the governmental objective must be important and the challenged law must be substantially related to that objective 1: recognizing the protection of preliminary governmental materials 2: recognizing subsection e as the sole exception to the boardcertification requirement 3: holding that lprs are entitled to the protection of the equal protection clause 4: recognizing environmental protection as the sole objective of the endangered species act


Input: to this litigation, and the instant motion to stay the trial of their claims would not have been ripe. (Chase Reply Mem. at 9-10.) A party may waive its right to arbitration by expressly indicating that it wishes to resolve its claims in court. Gilmore v. Shearson/Amer. Express Inc., 811 F.2d 108, 112 (2d Cir.1987), overruling on other grounds recognized by McDonnell Douglas Fin. Corp. v. Pa. Power & Light Co., 849 F.2d 761, 763-64 (2d Cir.1988). Alternately, a party may impliedly waive its right to enforce a contractual arbitration clause when it “engages in protracted litigation that results in prejudice to the opposing party.” S & R Co. of Kingston v. Latona Trucking, 159 F.3d 80, 83 (2d Cir.1998) (citations omitted); Manos v. Geissler, BRG, 321 F.Supp.2d 588, 593 (S.D.N.Y.2004) (<HOLDING>); see also Standard Microsystems Corp. v. Holdings: 0: holding that a party that engages in protracted litigation waives his right to arbitrate when an order compelling arbitration would result in prejudice to the party opposing arbitration 1: holding that a party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party emphasis added 2: holding that an order compelling arbitration in an independent proceeding is appealable as a final order because in that context the order compelling arbitration resolves the sole issue before the court 3: holding that the party demanding arbitration had waived its right to arbitrate by filing eight months earlier a complaint against the other party to the arbitration agreement 4: holding that purpose of stay pending arbitration is twofold it relieves the party entitled to arbitrate of the burden of continuing to litigate the issue while the arbitration process is ongoing and it entitles that party to proceed immediately to arbitration without the delay that would be occasioned by an appeal of the district courts order to arbitrate


Input: N.E. 696 (1911); Justice v. Justice, 108 N.E.2d 874, 876 (Ohio Comm. Pl. 1952). Other cases reject the theory, taking the position that an alimony decree is not revived by a second separation following the reconciliation, and that a new application to the court is necessary. Brown v. Brown, 210 Ga. 233, 78 S.E.2d 516, 518 (1953); Moody v. Moody, 227 La. 134, 78 So.2d 536, 537 (1955); Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248 (1953); O’Hara v. O’Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980); Tiffin v. Tiffin, 2 Binn. 202 (Pa. 1809); M’Karracher v. M’Karracher, supra, 3 Yeates 56; Hill v. Hill, 62 Pa. Super. 439 (1916); Lund v. Lund, 6 Utah 2d 425, 315 P.2d 856, 858 (1957); Patterson v. Patterson, 4 D.L.R. 793 (Ont. 1928). See also Hawn v. Hawn, 505 S.W.2d 459, 463 (Mo. App. 1974) (<HOLDING>). In the instant case, the petition for a writ Holdings: 0: holding that there was no abuse of discretion for denying the motion to change venue because although there had been some publicity surrounding the murder an independent review of the record demonstrates that there was no difficulty in seating the jury 1: holding on the facts that there was no reconciliation but only an attempted reconciliation and reserving the question of revival of the alimony award if there had been a bona fide reconciliation 2: holding that the trial court committed no error in sustaining objection to plaintiffs testimony that the water had been there for some time because the plaintiff had no personal knowledge of how long the puddle had been there 3: holding if there has been no termination of employment there has been no layoff or reduction in force 4: holding that there was no question that the full and fair opportunity element was met where there was no indication that such an opportunity was unavailable


Input: (3) all of the person’s estate that is not devised by the will vests immediately in the person’s heirs at law. (b) Subject to Section 101.051, the estate of a person who dies intestate vests immediately in the person’s heirs at law. See Tex. Estate Code § 101.001(a)-(b) (emphasis added); see also Tex. Estate Code § 101.003 (governing an executor’s or administrator’s right to possession) . The Texas Supreme Court has also expounded on the passage of an estate upon a decedent’s death in Bailey v. Cherokee County Appraisal Dist., stating that, “[wjhenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but.. .shall still be liable and subject in their hands to payment of the debts of the intestate.” 862 S.W.2d 581, 584 (Tex. 1993) (emphasis added) (<HOLDING>); see Woodward v. Jaster, 933 S.W.2d 777, 780 Holdings: 0: holding that because property was no longer property of the estate the court could not order turnover 1: holding that taxes were a claim against the estate that had to be filed in probate court thus reversing an order requiring heirs to pay taxes on estate property because the district court did not have jurisdiction 2: holding that a legal malpractice claim arising from errors by an attorney in rendering estateplanning services is properly brought by the personal representative of the estate when excess estate taxes are paid by the estate in contravention of the decedents intended estate plan 3: holding that a claim for breach of contract against a lawyer regarding estate taxes arose no later than the date on which the estate tax return was filed not when the alleged error was discovered 4: holding petitioner could not deduct real estate taxes imposed on property he did not own because these taxes were not imposed on him