Input: 113 S.Ct. 1770; Akpan, 407 F.3d at 377, 2005 WL 852416, at *12; United States v. Munoz, 150 F.3d 401, 413 (5th Cir.1998). Consequently, an error is deemed harmless if it did not affect the outcome of the district court proceedings. Olano, 507 U.S. at 734, 113 S.Ct. 1770; Akpan, 407 F.3d at 377, 2005 WL 852416, at *12; Munoz, 150 F.3d at 413. The government bears the burden of showing that the error was harmless beyond a reasonable doubt. Olano, 507 U.S. at 734, 113 S.Ct. 1770 (noting that the inquiry to determine prejudice is the same between plain error and harmless error, but that the defendant, rather than the government, bears the burden of persuasion with respect to prejudice under plain-error review); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (<HOLDING>); Akpan, 407 F.3d at 377, 2005 WL 852416, at Holdings: 0: holding that in order to conclude that federal constitutional error is harmless court must find that error harmless beyond a reasonable doubt 1: holding that before a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt 2: holding constitutional error may be harmless if court can  declare a belief that it was harmless beyond a reasonable doubt  quoting state v napeahi 57 haw 365 373 556 p2d 569 574 1976 3: holding that before an error can be held harmless the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendants conviction 4: holding that a constitutional error is harmless where it can be proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained


Input: Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n. 3 (8th Cir.2012) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)). Following Miller, we find the district court properly considered the amended partnership agreement and POA because they were contemplated by or expressly mentioned in the complaint. There is no allegation that the amended partnership agreement or POA were inaccurate or fabricated. Instead, Dittmer argues that the district court should not have considered these extraneous documents on the motion to dismiss, or that the court should have given notice that it was considering them and converting the motion to one for summary judgment. See BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir.2003) (<HOLDING>). Because these two documents are referred to Holdings: 0: holding that district court should not have considered documents not contemplated by the pleadings on the rule 12b6 motion and the lack of notice that it was doing so was not harmless error 1: holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion 2: holding that documents filed with rule 12b6 motion to dismiss are not judicial documents because they do not play any role in the adjudicative process 3: holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings 4: holding that the essential inquiry in conversion of a rule 12b6 motion to a rule 56 motion is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings


Input: as required by the terms of the Distribution Agreement. IV. CONCLUSION The plain language of the Distribution Agreement compels a conclusion that the right of first refusal does not apply in a dissolution action where the court-appointed receiver is procuring the sale of the corporate assets. The receiver, not the survivor or the personal representative, is the procuring party, and the receiver’s actions are taken under the supervision, and with the approval, of the trial court. Had the parties to the Distribution Agreement intended for the right of first refusal to apply in the context of a corporate dissolution, or where a third party was procuring a buyer, the Distribution Agreement could have so provided. See, e.g., Roof Depot, Inc. v. Ohman, 638 N.W.2d 782 (Minn.Ct. App.2002) (<HOLDING>); Guice v. Sentinel Tech., Inc., 294 Ill. Holdings: 0: holding transfer restriction granted right of first refusal in event of voluntary or involuntary transfer of stock 1: holding such intoxication to be voluntary 2: holding a waiver of a substantial constitutional right must be a voluntary knowing and intelligent act 3: holding that title vii is subject to the transfer provisions of section 1404a 4: holding that a plaintiff generally may not appeal a voluntary dismissal without prejudice because it is not an involuntary adverse judgment against him


Input: jurisdiction over Indians is coextensive with the state’s jurisdiction over non-Indians. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119 (1973) (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.”). In this case, there is no dispute that the crime for which Mathews was arrested occurred in Lewiston, out side of the Nez Perce Indian Reservation. Therefore, there is no question that the State of Idaho possessed criminal jurisdiction over the prosecution of Mathews in this case. See State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); cf. State v. Youpee, 103 Mont. 86, 61 P.2d 832 (1936) (<HOLDING>); Pablo v. People, 23 Colo. 134, 46 P. 636, 637 Holdings: 0: holding state law applicable to an indian accused of statutory rape of an indian minor occurring offreservation 1: holding that state has no jurisdiction over civil suit by nonindian against indian where cause of action arises on indian reservation 2: holding that the state has no jurisdiction to pursue an indian onto an indian reservation for criminal offenses committed off the reservation 3: holding state law applicable to ute indian murder of another ute occurring offreservation 4: holding that oklahoma police officer was without jurisdiction to arrest indian inside indian reservation when the state has neither received by express grant nor acted pursuant to congressional authorization to assume criminal jurisdiction over indian country


Input: id. at 71, and Brown made no such request. (iv) Findings adequate to support closure. Before deciding to close the courtroom, the trial judge held a hearing at which he took testimony and allowed each party to present argument. He credited certain testimony and he issued a ruling based upon the record. Specifically, as discussed supra, the judge found that the officer “was really concerned for his safety.” While the reasons he gave for concluding that this fear was objectively reasonable were neither entirely accurate nor particularly compelling, the strength of the judge’s findings must be evaluated by reference to the very limited scope of the closure that they support; by that standard, the trial court’s findings were adequate. Cf. Woods v. Kuhlmann, 977 F.2d 74, 77-78 (2d Cir.1992) (<HOLDING>) B. The Propriety of the Remedy Even if the Holdings: 0: holding that the fourth waller factor was satisfied despite the lack of specific findings of fact where the information gleaned from the record was  sufficient to support the partial temporary closure of petitioners trial 1: holding the trial court is not required to make specific findings of fact on the record for each wham factor if the record contains sufficient evidentiary support for the finding of lack of good cause 2: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case 3: holding that under waller insufficient space because of the size of the venire and the risk of tainting the jury pool are not compelling reasons for closure 4: holding the trial court must make findings adequate to support a closure


Input: conditions on defendants’ land.” Wilkerson, 845 S.W.2d at 750. Although the Wilkerson court also noted that the plaintiffs’ claim was “founded upon the duty of reasonable care owed to a social guest/invitee by a social guest/landowner,” id., in light of the fact that the Statute does not itself distinguish between those duties, the Wilkerson case is best understood for its primary holding that the Statute does not apply where “[t]he condition of the premises where the accident occurred is not at issue.” Id. This holding is borne out by the substantial case law applying the Recreational Use Statute only in situations involving “premises liability” and “failure to warn” causes of action. See, e.g., Spence v. Tennessee Valley Authority, No. 3:05-0519, 2006 WL 1416759 at *4 (May 17, 2006) (<HOLDING>); Sumner v. United States, 794 F.Supp. 1358, Holdings: 0: holding that a certificate of correction is not effective for causes of action arising before its issuance 1: holding that a forum selection clause encompassing any case or controversy arising under or in connection with this agreement included all causes of action arising directly or indirectly from the business relationship evidenced by the contract 2: holding that state law causes of action arising from improper processing of a claim for benefits are preempted 3: holding that the recreational use statute applied in a case involving failure to warn and premises liability causes of action arising from the daily operation of turbines in the tims ford dam 4: holding that a failure to warn was not a policy judgment


Input: of 1988 Act No. 305, § 1. The 1988 version provided an exemption for “cash surrender value of life insurance in the aggregate amount of not more than fifty thousand dollars.” In 1993, the General Assembly enacted the current version of S.C.Code Ann. § 38-63-40 as part of 1992 Act No. 89, § 1, which removed the fifty thousand dollar limitation on the cash surrender value exemption and added several key provisions to the statute. Specifically, the General Assembly provided that proceeds and cash surrender values were protected “whether or not the right to change the beneficiary is reserved” and “whether or not the policy is payable to the insured if the beneficiary dies first” and added an exception in cases where “the insured has filed a petition in bankruptcy within two years of 002) (<HOLDING>); In re Henderson, 167 B.R. 67, 73 Holdings: 0: holding that the debtorinsured was entitled to exempt the cash surrender value of her life insurance policy naming her dependent son as a beneficiary under illinois statute providing exemption for all proceeds payable because of the death of the insured and the aggregate cash value of any or all life insurance  policies  payable to a wife or husband of the insured or to a child parent or other person dependent upon the insured 1: holding as unambiguous under iowa law the insurance policys exclusion of coverage to any obligation of the insured to indemnify another because of damages arising out of  a bodily injury to any employee of the insured arising out of and in the course of his employment by the insured 2: holding that a debtor in bankruptcy may claim as exempt the cash surrender value of a life insurance policy insuring the life of the debtor that is payable to a beneficiary other than the debtor under dccode ann  314716a2001 despite the absence of the term cash surrender from the statute 3: holding that the tennessee statute providing an exemption for a life insurance policy made for the benefit of the insureds spouse andor children or dependent relatives allows for the exemption of the cash surrender values of such policies 4: holding that where the debtor is the owner of a policy insuring his own life and listing his wife as the beneficiary upon his death the proceeds of the policy including the cash value thereof are exempt from the claims of the insureds creditors


Input: as a conservator not as rule-making decisions of a regulator). Furthermore, the Court finds that section 4617(j)(3) comports with the statutory power of FHFA to “preserve and conserve the assets and'property of [Fannie Mae].” 12 U.S.C. § 4617(b)(2)(D)(ii). The third argument is that the liens held by the homeowner associations attached before the FHFA’s conservator-ship and thus, preclude the application of section 4617(j)(3). This argument is premised on the contention that, if a lien attached before FHFA’s conservatorship, then FHFA cannot avoid that lien. However, while section 4617(j)(3) does not extinguish liens that attached to property prior to FHFA’s conservatorship, such liens do not exempt lien-holders froni the FHFA consent requirement. See Lowery, 12 F.3d at 996-97 (<HOLDING>). -Thus, while the HOA liens may still attach Holdings: 0: holding that a lien cannot be extinguished through a tax sale without the consent of the fdic 1: holding that while section 1825b2 does not extinguish an earlier lien or excuse the payment of a tax by the fdic it does deny the ability to use a lien on fdic property as a vehicle for collection of delinquent tax 2: holding that a property right that comes into existence by court action such as a judgment lien does not relate back to some earlier date to destroy the priority of a federal tax lien 3: holding that the doench doctrine protects the fdic even where the fdic does not have an interest in an asset 4: holding that a lien holder who is not served and joined as a party to a tax suit cannot have his lien extinguished by the tax sale


Input: University of Alabama v. Calhoun, 514 So.2d 895, 898 (Ala.1987). This case is different from Law, supra, in that there was no proffered testimony to the effect that the Heads intended the correction fluid or the word “VOID” to effect a revocation of the entire will. Because the word “VOID” was written in the margin with two arrows pointing to the obliterated legacy, as opposed to being written over the signatures of the testators or over the entire face of the document, we hold that the revocatory intent of the Heads was directed only to the obliterated legacy, not to the entire will. See Woodruff v. Hundley, 127 Ala. 640, 29 So. 98 (1900) (stating that a will must be materially mutilated so that intent to revoke the entire will can be inferred); cf. Board of Trustees, 514 So.2d at 898 (<HOLDING>); Franklin v. Bogue, 245 Ala. 379, 17 So.2d 405 Holdings: 0: holding that the obliteration of a signature page effects revocation of the entire will 1: holding that revocation of the harriss parole like revocation of a defendants probation did not subject him to double jeopardy under the united states constitution because of similarities between the two 2: holding that standard for revocation of probation is preponderance of the evidence 3: holding that the standard of proof in revocation proceedings is a preponderance of the evidence 4: holding that there is no significant conceptual difference between the revocation of probation or parole and the revocation of supervised release


Input: for radiologists to or urologists or anybody else of the same specialty. Similarly, Dr. Venegas testified that as a family physician, he does not implant pacemakers and he would defer to the knowledge of a cardiologist on that issue. When Dr. Venegas was asked if he believed Dr. Feldman deviated from the standard of care in her treatment of Mr. Melton, he responded, “I cannot see where from the note[s] that I’ve been given from [Dr. Feldman] that she deviated from the standard of care in her medical treatment of Mr. Melton.” Dr. Gaddy and Dr. Venegas failed to establish the standard of care for implanting ICDs, and therefore, their testimony was insufficient to create a genuine issue of material fact. See Botehlo v. Bycura, 282 S.C. 578, 587, 320 S.E.2d 59, 65 (Ct.App.1984) (<HOLDING>). Furthermore, Melton presented no evidence Holdings: 0: holding that expert medical testimony was not necessary to establish negligence where surgeon left a needle in the patients body but stating that proof of proximate cause requires some expert testimony in medical malpractice cases 1: holding that the district court did not err in granting summary judgment since the physical evidence and unrebutted expert testimony left no genuine issue of material fact 2: holding no issue of material fact as to whether defendant was volunteer because he received no compensation 3: holding expert testimony by an orthopedic surgeon in a case of alleged medical malpractice by a podiatrist failed to create a genuine issue of material fact because 1 the material question in the case was the standard required of podiatrists not orthopedic surgeons 2 the witness admitted he was not familiar with the procedure the defendant performed and 3 when the orthopedic surgeon was asked if he held himself out as an expert he answered no not in podiatry no 4: holding that expert testimony is unnecessary when orthopedic surgeon failed to remove two pieces of cement totaling oneinch in diameter after affixing prosthesis for hip replacement


Input: defense of misrepresentation on the policy application is not proper; he had fully cooperated and satisfied all conditions of the i a-contractual claims was improper because: (1) he needed to conduct additional discovery regarding the reasonableness of the denial; and (2) the issue of whether Farmers breached the duty of good faith and fair dealing was a fact issue. In this case, Farmers had a reasonable basis for denying the claim based on Perrotta’s own breach of the policy. See Betco Scaffolds Co., 29 S.W.3d at 348. As such, Farmers did not breach its duty of good faith and fair dealing to Perrotta with regard to that denial, and Perrotta’s extra-contractual claims fail as a matter of law. See United States Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268 (Tex.1997) (per curiam) (<HOLDING>). Therefore, we affirm summary judgment for Holdings: 0: holding title company liable for bad faith 1: holding that bad faith includes lack of good faith in investigating the facts of a complaint 2: holding insurer not liable for bad faith when it denied insureds claim based on a good faith dispute regarding the interpretation of a rule 3: holding there can be no claim for bad faith when an insurer has promptly denied a claim that is in fact not covered 4: holding that a bad faith claim is a tort


Input: ” Scottsdale Indent. Co., 673 F.3d at 719 (discussing and construing Illinois law). To be sure, that a pollutant escapes into the environment should not automatically trigger a total pollution clause’s applicability. See Auto-Owners Ins. Co. v. Potter, 105 Fed.Appx. 484, 497 (4th Cir.2004); cf. Scottsdale Indent. Co., 673 F.3d at 717 (providing hypothetical case of vehicle that skids on wet surface as a result of tanker truck that spills contaminant). Under Molina, however, a pollutant’s containment— even when it migrates to outside and surrounding areas — appears to be enough to deem the total pollution exclusion inapplicable. See 166 P.R. Dec. 260 at 276 (certified translation, p. 11); accord Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., 47 F.3d 34, 38 (2d Cir.1995) (<HOLDING>); Meridian Mut. Ins. Co., 197 F.3d at 1184 Holdings: 0: holding lead paint poisoning covered by the pollution exclusion 1: holding that removal of insulation that released asbestos  a thermal irritant  into an apartment was covered by the pollution exclusion 2: holding that pollution exclusion did not apply to claim arising from ingestion of lead paint because exclusion reasonably may be limited to environmental claims 3: holding that a discharge into the environment is necessary for the total pollution clause to be applicable 4: holding that the release of carbon monoxide into an apartment is not the type of environmental pollution contemplated by the pollution exclusion clause


Input: 19 Estate of Neubert denied probate of the lost will, however, because the proponents there failed to meet the then existing statutory requirement of proving the lost will was in existence at the time of the testator’s death. Estate of Neubert, 59 Wn.2d at 687. That requirement was removed in 1995. Laws op 1994, ch. 221, § 20 (codified at ROW 11.20.070(2)). 20 The majority offers the possibility Myrna was the third individual in the room, and as such Taylor still could have been merely a notary and nothing more. See majority at 167. Even assuming this to be true, the 1993 will must be admitted to probate. Execution of a will is still valid even if one of the attesting witnesses is interested (i.e., a beneficiary under the will). RCW 11.12.160(2); Estate of Chambers, 187 Wash. at 420 (<HOLDING>). Rather the interested witness would lose his Holdings: 0: holding that njeither the plaintiff nor fellow crewmen are qualified to testify as design experts 1: holding that trial court did not abuse its discretion by determining expert witness was qualified to testify 2: holding beneficiaries under a will are qualified to testify to execution 3: holding that right to testify not denied where inter alia defendant made no objection to his attorneys statements that defendant would not testify and made no request to testify 4: holding that defendants are not entitled to qualified immunity


Input: proceed, the parties agreed to seek further guidance from the family court. Husband sought that guidance, and Judge Cate provided it. The pricing scheme Judge Cate established did not conflict with the minimum listing price of $225,300 set by the divorce decree and complied with the goals set out in the parties’ subsequent agreement. In light of Wife’s failed attempt to sell the home for $274,000, a lower initial listing price with small periodic reductions is a reasonable approach to severing this remaining tie between Husband and Wife. Accordingly, the family court did not err. To the extent Wife requests “reimbursement for maintaining the marital property,” this issue is unpreserved because she failed to raise it to the family court. See Chastain, 381 S.C. at 306, 672 S.E.2d at 114 (<HOLDING>). IV. Remaining Issues Wife further argues the Holdings: 0: holding an issue must be raised to and ruled upon by the trial court to be preserved for appellate review 1: holding that an issue was not preserved for appellate review because appellants trial objection does not comport with the issue he raised on appeal 2: holding an issue not raised to the family court is not preserved for appellate review 3: holding that an appellate court cannot consider an issue that was not preserved for appellate review 4: holding issues not raised to and ruled upon by the trial court are not preserved for appellate review


Input: of the record, she asked the Chancellor to intervene in Simmons’ retaliatory acts. She argues that the complaints -in her letter and the return phone call from System official Gomez suffice to fulfill the requirement to initiate an appeals process before filing suit. The record lacks information regarding the relationship between the System and Lamar, so it is unclear whether addressing an appeal to the Chancellor of the System suffices to comply with the requirement that the employee provide notice to the employer. Given that Simmons — the subject of Ward’s grievance — was president of Lamar, a letter to the System may have been the best informal avenue available to Ward to initiate a grievance. See Upton County, Tex. v. Brown, 960 S.W.2d 808, 813-14 (Tex.App.—El Paso 1997, no pet.) (<HOLDING>). In any event, appellees did not offer Holdings: 0: holding in absence of formal procedure a county employees phone call to the county commissioner sufficed  to fulfill whistleblower acts requirement to initiate a grievance procedure before filing suit 1: holding that because plaintiffs were reasonable in interpreting defendants grievance procedure to apply only to active employees plaintiffs did not act in bad faith when they alleged that no applicable grievance procedure existed 2: holding that a claim based on statements made during a formal grievance procedure was preempted 3: holding that a jail inmate does not have a constitutional entitlement to an adequate grievance procedure and the ineffectiveness or even absence of a grievance procedure does not give rise to a constitutional claim 4: holding that an ineffective grievance procedure bars employers defense based on that procedure


Input: in confinement.” 864 So.2d at 1121. See also Moore. We have held that a trial court does not have jurisdiction to split a 20-year sentence so that the defendant serves less than the mandatory minimum term of imprisonment. The State has established the prerequisites for the issuance of this writ of mandamus. For the foregoing reasons, this petition is due to be, and is hereby, granted. Judge McCormick is directed to resen-tence Gaines. As this Court ordered in Austin: “Because the 20-year sentence was valid, the circuit court may not change it. See Wood [v. State, 602 So.2d 1195 (Ala.Crim.App.1992)]. However, the court may split the sentence in compliance with § 15-18-8, i.e., with no more than 5 years in confinement, see, e.g., Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001) (<HOLDING>), or, it if determines that splitting the Holdings: 0: holding that the newly amended  15188 allows a trial judge to suspend a sentence imposed upon application of the schoolhousing enhancements despite the prohibition against probation in  13a12250 and 13a12270 1: holding that probation is not a sentence 2: holding that upon revocation of probation a court must grant credit for time served on probation and community control towards any newly imposed term of imprisonment and probation so that the total period of control probation and imprisonment does not exceed the statutory maximum 3: holding that where original sentencing judge imposed a guidelines sentence defendant could not be sentenced as a habitual offender upon violation of probation 4: holding that judge found sentence enhancements mandatorily imposed under the guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the sixth amendments guarantee of the right to trial by jury


Input: jurisdiction.” See id. at 1502. Quoting the Supreme Court, the panel instructed that: [I]n cases of bankruptcy, many incidental questions arise in the course of administering the bankrupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control. Thus a claim of debt or damages against the bankrupt is investigated by chancery methods. Id. at 1503 (quoting Katchen v. Landy, 382 U.S. 323, 337, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) (quotations omitted)). Next, the Seventh Circuit applied the Granfinanciera test and determined that a discharge 578746, at *4 (Bankr.N.D.Ill. Sept. 16, 1997) (<HOLDING>); In re Hutchins, 211 B.R. 322, 324 Holdings: 0: holding that under the hallahan progeny of cases parties are not afforded the right to jury trials in dischargeability proceedings 1: holding that juveniles are not entitled to jury trials 2: holding that claims under the vrra are equitable and a plaintiff is not entitled to a jury trial 3: holding that the bankruptcy court has constitutional and implied statutory authority to conduct jury trials in core proceedings 4: holding that dischargeability proceedings are inherently equitable in nature and as such parties are not entitled to jury trials


Input: (2000). After reviewing the entirety of the evidence appearing in the record, however, we conclude that any error by the trial court in refusing to take judicial notice of the VA’s adjudication was harmless. See Wilder, 122 Ill. App. 3d at 344-45. We reject Paul’s assertion that the adjudication required the trial court to conclude that Paul would be forever unable to work. The VA’s written adjudication was a ruling upon Paul’s request for the payment of benefits under a program administered by that executive department. Thus, the adjudication was a final and conclusive determination of Paul’s right to receive VA disability benefits. This, however, was not the question presented to the trial court for determination. See Rose, 107 U.S. at 629, 95 L. Ed. 2d at 610, 107 S. Ct. at 2036 (<HOLDING>). Instead, the trial court was required to Holdings: 0: holding that section 511a of title 38 did not preclude a state trial court from requiring the payment of child support from va disability benefits because the state court was not reviewing the administrators decision finding the veteran eligible for specific disability 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 disability pension benefits could be offset against both temporary and total permanent disability compensation benefits 3: holding that disability benefits are not retirementtype benefits 4: holding that workers compensation statutes do not prohibit claimant from receiving permanent partial disability benefits from prior accident concurrently with temporary total disability benefits from subsequent injury


Input: an error of law,” Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir.2006), or "fails to consider the applicable legal standard____” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997). For instance, in Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1105-08 (10th Cir. 2001), we held the district court abused its discretion in decertifying a class of plaintiffs because the court failed to consider the "pattern and practice” legal framework applicable to the plaintiffs' claim of discrimination. In the same manner, the district court here abused its discretion when it excluded the testimonial evidence based upon its erroneous conclusion that Arambum controlled the fate of the evidence in this case. See also Floyd v. Ortiz, 300 F.3d 1223, 1227 (10th Cir.2002) (<HOLDING>). 5 . Sprint lastly argues any error the Holdings: 0: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 1: holding the district court abused its discretion in denying the plaintiffs request for rehearing because the district court relied on an erroneous legal premise to do so 2: holding that the district court acted within its discretion when it denied plaintiffs request for counsel 3: holding that district court abused its discretion by denying plaintiffs motion to file fourth amended complaint 4: holding district court abused its discretion in admitting state court findings of fact


Input: the residual clause. Coronado, 603 F.3d at 708. We held it was not, because the state statute “only requires gross negligence, and crimes with a mens rea of gross negligence or recklessness do not satisfy Begay’s requirement of ‘purposeful’ conduct.” Id. at 710. Arguably, our decision in Coronado contains language suggesting that only crimes involving specific intent satisfy Begay’s “purposeful” requirement. See id. at 711. There, we noted that in “other contexts” we have defined “purposeful” as “done with a specific purpose in mind; DELIBERATE.” Id. (internal quotation marks omitted). But in those other contexts, we offense satisfies Begay’s purposeful conduct requirement based on the offense’s mens rea of knowingly inflicting cruel and inhuman punishment.”); Almenas, 553 F.3d at 34 (<HOLDING>); United, States v. Spells, 537 F.3d 743, 752 Holdings: 0: holding that north carolina crime of larceny from the person was a crime of violence under the residual clause of the career offender guideline 1: holding that to constitute a prior conviction for purposes of the habitual felony offender act the defendant must have been adjudicated guilty before the present crime was committed 2: holding that the offender must have the apparent ability to execute the act constituting the assault 3: holding that a prior conviction in a georgia state court was appropriately used to qualify the defendant as a career offender because he failed to prove he did not knowingly and voluntarily waive his right to counsel 4: holding begays purposefulness requirement easily met where crime required the offender to act knowingly


Input: strengthened by Congress' express assignment to DOE of the initial adjudication of alleged violations of price control regulations. See 42 U.S.C. § 7193(a). TCC points out that this statute was not made effective until October 1, 1977, after the events in issue here had already occurred. However, the statute was passed well before DOE issued its RO in this case. Moreover, Congress' decision to give DOE express authority to issue remedial orders does not automatically mean that the agency lacked the authority prior to passage of the provision. Courts have held both expressly and impliedly that the Federal Energy Administration (FEA), DOE's predecessor, had power to issue remedial orders before October 1977. See Getty Oil Co. v. Dep’t of Energy, 478 F.Supp. 523, 527, n. 4 (C.D.Cal.1978) (<HOLDING>); see also Sauder v. Dep't of Energy, 648 F.2d Holdings: 0: holding the fea had authority to issue a remedial order in september 1976 despite plaintiffs contention that fea had no such power until passage of 42 usc  7193 expressly authorized doe to issue remedial orders 1: recognizing that the forest service supervisor had authority to issue orders pursuant to 36 cfr  26150 2: holding that failure to raise issue in brief constitutes waiver of appeal of the issue 3: holding that inclusion of failure to mitigate damages as an issue in a final pretrial order saved the issue from waiver under rule 8c even though the defendant had failed to plead the issue 4: holding that the federal action at issue must be authorized


Input: of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and (2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution. 28 U.S.C. § 2513(a). Further, the statute establishes the means by which a plaintiff must prove his claim: “Proof of the requisite facts shall be by a certificate of the court or pardon wherei 1981 WL 1413 (1981) (<HOLDING>); Lucas v. United States, 228 Ct.Ct. 862, 863, Holdings: 0: holding that the court of federal claims lacked jurisdiction over claims arising from the violation of a criminal statute 1: holding that when the district court improperly purported to transfer to the circuit court an action over which the circuit court lacked subjectmatter jurisdiction the circuit court was without jurisdiction to enter its judgment which was void and dismissing the appeal from that void judgment 2: holding the court lacked jurisdiction over claim under  2513 without certificate from district court 3: holding that court of federal claims lacked jurisdiction under  2513 when trial courts order dismissing plaintiffs indictment and vacating his sentence failed to satisfy the jurisdictional requirements of  2513 4: holding that rule 11 sanctions imposed by district court remained in effect after case was remanded to state court upon a finding that district court lacked subject matter jurisdiction over the case


Input: 313-14, 94 S.Ct. 1105. Conversely, there was nothing deceptive about Moody’s testimony regarding his juvenile adjudication or encounters with law-enforcement officials. On direct examination, Moody explained that his earlier statement to Detective Meriweather was probably more reliable than his trial testimony because he Had been “locked up” for a long time since giving it. Not only did Moody volunteer that he had been placed in a juvenile facility, but he also voluntarily differentiated his juvenile facility from that of the Indiana Boy’s School. Finally, we have held that where a party seeks to impeach a witness with evidence of prior juvenile, delinquency findings, a general challenge to the witness’s character, without more, is not enough. Engle v. State, 506 N.E.2d 3, 5 (Ind.1987) (<HOLDING>) (emphasis added); Roland v. State, 501 N.E.2d Holdings: 0: holding that a trial witnesss testimony as to the credibility of another witness was prejudicial error 1: holding that the need to impeach credibility correspondingly increases as the importance of the witness credibility and testimony escalates 2: holding that conviction on appeal is not admissible to impeach witnesss credibility 3: holding that the trial court properly excluded inquiry into a witnesss juvenile record where the defendant attempted to impeach the general credibility of the witness with the finding of delinquency for particular acts in this case theft 4: holding that the trial court did not err in admitting juvenile records where counsel stated in his opening statement that the witness had no record when in actuality the witness had nine juvenile adjudications for burglary


Input: At common law, a husband was held responsible for any crimes committed by his wife in his presence, because the law presumed that the wife was coerced or controlled by her husband. See Haning v. United States, 59 F.2d 942, 943 (8th Cir.1932). Modern courts have rejected this presumption. Id. See United States v. Dege, 364 U.S. 51, 53, 80 S.Ct. 1589, 4 L.Ed.2d 1563 (1960) (opining that this common-law rule “implies a view of American womanhood offensive to the ethos of our society”). At common law, a husband was also responsible for his wife’s torts. Modern courts have rejected the idea that spouses are liable for one another’s torts without proof that both spouses' are involved in the tortious misconduct. See Petersen v. Heflin, 163 Mich.App. 402, 408, 413 N.W.2d 810, 812 (1987) (<HOLDING>); Dodson v. Anderson, 710 S.W.2d 510, 512 Holdings: 0: holding that a wifes minimal involvement in her husbands business coupled with the lack of evidence that she knew of or intended to further her husbands fraudulent schemes was insufficient evidence of conspiracy 1: recognizing a privacy interest in the intimacies of the marital relationship 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 a wife is not liable simply by virtue of the marital relationship for her husbands fraudulent acts 4: holding that a wifeis not liable simply by virtue of the marital relationship for her husbands negligent acts


Input: To be clear, petitioner “must make two showings of prejudice.” Owens, 483 F.3d at 64 n.13; see also Bucci, 662 F.3d at 29. First, he must show that “counsel’s failure to object to the trial closure prejudiced him for the purposes of determining whether there was ineffective assistance of counsel.” Owens, 483 F.3d at 64. n.13. That is the inquiry relevant here, when petitioner seeks to use his counsel’s ineffective assistance to demonstrate “cause” for his procedural default. The séeond showing of prejudice is the “prejudice to excuse his procedural default.” Id. If petitioner were convicted in federal court and bringing his motion pursuant to 28 U.S.C. § 2255, then he would not need to establish actual prejudice for purposes of ineffective assistance of counsel, See id. at 64, 66 (<HOLDING>). Indeed, the First Circuit explained that it Holdings: 0: holding that a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice 1: holding that the convention claim was procedurally defaulted 2: holding the defendant waived his courtroom closure challenge because he both failed to object to the limited closure and agreed to the closure through his attorney 3: holding that a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice and so the court need not require petitioner to prove that his counsels failure to object to the trial closure was actually prejudicial 4: holding that the government need not prove actual notice to the prisoner


Input: plaintiff agreed to a fixed weekly salary covering unlimited hours, making it unnecessary to apply the FWW method. As the district court not ed in reaching that conclusion as to Banford and McGratty, Banford testified that he expected to receive compensation in some form if he worked more than a certain number of hours in a given week, while McGratty testified that he had no understanding of Entergy’s overtime policy but thought that his pay could be docked for working less than a fixed number of hours. See Banford v. Entergy Nuclear Operations, Inc., 74 F.Supp.3d 658, 664-65 (D.Vt.2015). This was sufficient for a reasonable jury to conclude that there was not an agreement to work unlimited hours for the same fixed salary. See Olsen v. Stark Homes, Inc., 759 F.3d 140, 155 (2d Cir.2014) (<HOLDING>). Indeed, a reasonable jury could infer from Holdings: 0: holding that courts are obligated to draw all reasonable inferences in plaintiffs favor 1: holding courts are obligated to draw all reasonable inferences in plaintiffs favor 2: holding that for purposes of a class certification motion the court must accept as true all factual allegations in the complaint and may draw reasonable inferences therefrom 3: holding court obligated to draw all reasonable inferences in plaintiffs favor 4: holding in affirming denial of judgment as matter of law for defendants that jury was entitled to credit plaintiffs testimony over defendants and to draw reasonable inferences therefrom


Input: one of the central issues in this case — if not the central issue in this case — is whether that agreement extends to Google’s current use of Digital Envoy’s technology. Moreover, the forum selection clause in the license agreement is not limited, as Digital Envoy seems to suggest, to claims that are dependent upon the agreement or to those that allege breach of the agreement. Rather, it encompasses “[a]ny lawsuit regarding this Agreement.” License Agreement § 12. Digital Envoy’s claims in this case clearly “regard” the license agreement, as they regard alleged activities that may or may not be covered by the agreement and, indeed, they will almost certainly fail if Google’s use of its technology is found to be within the scope of the agreement. See also Stewart Org., 810 F.2d at 1070 (<HOLDING>); Bullard v. Capital One, F.S.B., 288 F.Supp.2d Holdings: 0: holding that a clause covering any controversy or claim  related directly or indirectly to this agreement was a broad arbitration clause 1: holding that when action arising under contract containing venue selection clause is filed in court other than that specified in clause case will be transferred to forum selected by contract unless venue selection clause is unreasonable and unjust or invalid due to fraud or overreaching 2: holding that plaintiffs fraudulent inducement claim was subject to mandatory forum selection clause requiring litigation in florida of any claims or disputes arising from employment agreement 3: holding valid forum selection clause providing that all disputes and matters whatsoever arising under in connection with or incident to this contract shall be litigated if at all in and before a court located in the state of florida quoting underlying contract 4: holding that a forum selection clause encompassing any case or controversy arising under or in connection with this agreement included all causes of action arising directly or indirectly from the business relationship evidenced by the contract


Input: accord Benson v. Webster, 593 N.W.2d 126, 130 (Iowa 1999); see also Locate.Plus.Com v. Iowa Dep’t of Transp., 650 N.W.2d 609, 619 (Iowa 2 cient facts supporting his contention that Chagra acted as Goodman’s agent when he threatened Wright. Given the presence of only telephonic contacts between Goodman and Iowa (and then through a purported agent), and the lack of evidence showing Chagra acted as Goodman’s agent by making the alleged threat against Wright, the first three factors in the jurisdictional analysis weigh against the existence of personal jurisdiction over Goodman in Iowa. Wright has not submitted any evidence regarding the convenience of the parties. Since he carries the burden of proof, this factor weighs against him. Aylward v. Fleet Bank, 122 F.3d 616, 618 (8th Cir.1997) (<HOLDING>). Finally, even though Iowa has an interest in Holdings: 0: holding the same with respect to an apartment 1: holding that plaintiffs failure to offer any evidence with respect to the convenience of the parties means that this factor militates against him 2: holding that the failure of the parties to follow the adoption provisions in any material respect deprives the court of the power to decree an adoption 3: holding that public policy militates against a judge testifying as an expert witness for one of the parties 4: holding that the clause any dispute that shall arise between the parties  with reference to the interpretation of this agreement or their rights with respect to any transaction involved was broad


Input: concluded that all the elements of the claims are found in the Shimura patent. Trial Tr. at 1864:03-08. Motorola urges that Dr. Bovik and others provided testimony regarding the skill and knowledge of one skilled in the art at the time of the invention. See Motorola Reply at 6-7. Motorola also notes that Dr. B ovik’s slides were titled “Invalidity,” not “Anticipation.” Id. But Motorola fails to identify any testimony from the record that connects Shimura to the skill and knowledge of one skilled in the art at the time, of the invention, or that otherwise directly addresses this obviousness theory (or any obviousness theory) involving Shimura. I agree with Fujifilm that Motorola cannot raise the theory now. See Fractus, S.A. v. Samsung Elecs. Co., 876 F.Supp.2d 802, 838 (E.D.Tex.2012) (<HOLDING>); Allergan, Inc. v. Barr Labs., Inc., 808 Holdings: 0: holding that the plaintiff had failed to produce sufficient evidence to establish constructive notice because the plaintiff did not present any evidence to establish that the oil was on the floor for any length of time 1: holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury 2: holding that defendant waived any indefiniteness argument where it failed to present any explicit indefiniteness evidence at trial and did not make a single reference to indefiniteness during trial stating that allowing defendant to revive its indefiniteness defense posttrial deprives plaintiff of any opportunity to substantively respond with its own testimony or evidence 3: holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it 4: holding the government waived its argument on appeal that the defendant did not have standing to challenge a search when it failed to raise the argument to the district court


Input: of computer distributed ‘kiddie porn’.” (Press Release dated September 29, 1995, a part of Pit’s Ex. 6.) B. Second, Shasky’s efforts at rehabilitation have been extraordinary. United States v. Barton, 76 F.3d 499, 503 (2d Cir.1996) (stating that “[a]n individual convicted of receiving child pornography may be entitled to a downward departure in light of his or her rehabilitative efforts, provided those efforts are extraordinary,” remanding for further fact finding, and stating that “[i]f the court does find support in the record for its conclusion that Barton’s rehabilitative efforts are extraordinary, reducing Barton’s sentence from a minimum of fifteen months’ imprisonment to probation would not be unreasonable.”) See also United States v. Simpson, 7 F.3d 813, 819-20 (8th Cir.1993) (<HOLDING>). In this regard I have especially considered: Holdings: 0: holding that defendants diminished capacity while grounds for departure from the guidelines sentencing range is not grounds for departure below the minimum sentence set by congress 1: recognizing that postoffense rehabilitative efforts while normally not grounds for departure may support departure in extraordinary circumstances and noting that the totality of the circumstances may justify a departure where a single circumstance is not alone sufficient 2: holding that notice must state the specific grounds for the departure 3: holding in review of a downward departure that an extraordinary reduction must be supported by extraordinary circumstances 4: holding district court correctly reversed a departure sentence where the trial court failed to provide written reasons for the departure


Input: Dissent to Order by Judge BEA; Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge RESTANI. ORDER The majority opinion is amended as follows: 1. At slip op. 8168, n.15, [607 F.3d at 597 n. 15], the final sentence of the footnote is amended to read: < Furthermore, as discussed above, Malesko also relied on the fact that the plaintiff was not seeking recovery against an individual officer. See id. at 73-74, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456. > 2. At s Ct. 2894, 57 L.Ed.2d 895 (1978) (<HOLDING>), and Holly, 434 F.3d at 294 (stating that Holdings: 0: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery 1: recognizing a cause of action for damages against officials who violate constitutional or statutory rights under color of federal law 2: recognizing cause of action against federal officials for violation of constitutional rights 3: holding transfer rule did not violate federal equal protection 4: holding that federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers emphases removed


Input: (“Plaintiffs ask that the Court “dismiss this action without prejudice and with leave to amend so that Plaintiffs can attempt to cure any perceived pleading deficiencies” in the event the Court finds that plaintiffs have not sufficiently demonstrated demand futility.”). 60 . Kenney, 426 F.Supp.2d at 1188 ("The Court finds no basis for allowing plaintiffs to amend their complaint.”). 61 . West Coast, 914 A.2d at 645-46. 62 . Id. at 643-44; see also id. at 646 ("Thus, the language of the [Colorado plenary court’s] opinion and the decision to deny leave to replead support the conclusion that the without prejudice order was not intended to permit West Coast to relitigate its claim.”). 63 . Id. at 638, 645-46. 64 . See Melzer v. CNET Networks, Inc., 934 A.2d 912, 917-19 (Del.Ch.2007) (<HOLDING>); see also Brehm v. Eisner, 746 A.2d 244, Holdings: 0: holding that while the excerpt from the original complaint was competent as evidence as a pleading it was superseded by the amended complaint 1: holding that plaintiff lacked a proper purpose for bringing a section 220 action because the federal judge in kenney had denied plaintiffs request to replead demand futility in an amended complaint 2: holding that plaintiffs wishing to inspect books and records for purposes of pleading demand futility in an amended derivative complaint had a proper purpose 3: holding that a demand for jury trial should be denied if the issues in the original complaint and the amended complaint turn on the same matrix of facts 4: holding that amended pleading did not commence a new action for the purposes of cafa because the claims were exactly the same in both pleadings and the replacement representative was a member of the putative class in the original pleading


Input: Riley was sentenced, as a habitual offender with two prior felony convictions, to life imprisonment. For the unlawful-possession-of-a-controlled-substance conviction and the unlawful-possession-of-marijuana conviction, he was sentenced, without application of the HFOA, to five years’ imprisonment. The two felony convictions used to enhance Riley’s sentence for the assault conviction were April 6, 1999, guilty-plea convictions. The April 6, 1999, convictions were not used to enhance Riley’s sentences for the unlawful-possession-of-a-controlled-substance conviction and the unlawful-possession-of-marijuana ■ conviction because those crimes had occurred on January 30, 1999, before Riley had been adjudicated guilty on April 6, 1999. See, e.g., Craig v. State, (Ms. CR-02-0812, March 26, 2004)(<HOLDING>). Because the assault occurred on March 28, Holdings: 0: holding that under habitual felony offender statute a sentence includes the sanction of probation 1: holding our habitual offender act does not limit enhancement to prior felony convictions within a certain time 2: holding that to constitute a prior conviction for purposes of the habitual felony offender act the defendant must have been adjudicated guilty before the present crime was committed 3: holding that under the 1991 version of the habitual offender statute defendant could not receive habitual offender sentence for life felony 4: holding that defendants habitual traffic violator conviction could also serve as a predicate felony conviction under the general habitual offender statute


Input: his parents for injuries for which there is available homeowners insurance coverage as a logical, but limited, extension of our prior holdings in Syllabus point 2 of Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721, and Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538. See Verdier v. Verdier, 364 Ark. 287, 291, 219 S.W.3d 143, 145 (2005) ("Broadening the exception to the parental-immunity doctrine to cases where a parent is covered by liability insurance through an existing homeowner’s policy leads to a dangerous slippery slope.”); Sepaugh v. LaGrone, 300 S.W.3d 328, 338 (Tex.App.2009) (rejecting exception to parental immunity doctrine based upon existence of applicable homeowners insurance as contrary to Texas law). Cf. American Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115-16 (Minn.1983) (<HOLDING>). However, it does not appear that the parties Holdings: 0: recognizing that under texas law governmental immunity embraces two principles immunity from liability and immunity from suit 1: holding that judges have immunity from suit for judicial acts 2: holding household exclusion in policy of homeowners insurance to be valid despite parents immunity from suit by child 3: holding that parents who filed a civil rights action following the removal of child by child welfare authorities failed to connect program directors actions to alleged violation of parents constitutional rights 4: holding that qualified immunity is not merely immunity from damages but also immunity from suit


Input: agree. In the previous appeal, we considered the question of whether prior insolvency negates the possibility of a four-point enhancement and found that it does not. McDermot, No. 93-3603 at 24. Application Note 15 does not define safety and soundness solely in terms of the institution's solvency. A defendant who perpetrates fraud with respect to an already insolvent institution may still "substantially reduce benefits to ... insureds" or cause the institution to be unable "on demand to refund fully any deposit, payment, or investment” over and above the consequences of the initial insolvency. Indeed, the district court so held in the original sentencing hearing, stating that “[w]ithout those [fraudulent securities] going on the books, I believe Presidential would ha (5th Cir.1993) (<HOLDING>), cert. denied, — U.S. -, 114 S.Ct. 1865, 128 Holdings: 0: holding that district courts factual findings for purposes of obstruction enhancement are reviewed for clear error 1: holding that enhancement for obstruction of justice which uses similar mandatory language must be applied where factual predicates are satisfied 2: holding that before a court imposes an enhancement for obstruction of justice the court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice  3: holding that obstruction of justice enhancement was properly applied where the defendant provided materially false information to a magistrate judge 4: holding similar language to be a valid disclaimer


Input: here, as Judge Woodlock observed: [I]t is apparent that application of a general legislative rule, rather than a specific adjudicative ruling, is involved in the attempted redesignation of [defendants from community confinement to secure facilities]. This is no mere effort at interpretive guidance but rather a rulemaking exercise designed to reshape the scope of a statutory provision through an administrative statement of lawmaking. Mallory, 2003 WL 1563764, at *2; see also Ashkenazi, 246 F.Supp.2d at 7 n. 9 (“[Irrespective of the BOP’s characterization of its policy, the new policy has the force of law and is not merely interpretive .... The new policy is [ ] not flexible and does not permit BOP to exercise any discretion.”); cf. Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998) (<HOLDING>). In attempting to. classify this rule as Holdings: 0: recognizing that in the absence of a statutory definition statutory terms are construed in accordance with their ordinary or natural meaning 1: holding that congress has expanded eommonlawr definition of extortion to include acts by private individuals 2: holding that in the absence of a statutory definition a term should be accorded its ordinary meaning 3: holding that a broad statutory definition of a term that was inconsistent with the terms plain meaning did not affect the terms definition in other contexts 4: holding that a bop definition of nonviolent offense was legislative because it did not merely explain statutory meaning but expanded the reach of a regulation to bar offenders from early release


Input: that may arise when a court addresses the issues whether an objective or subjective intent is required for murder and whether voluntary intoxication can negate the requisite intent. See People v Watson, 30 Cal 3d 290; 637 P2d 279 (1981) (a finding of implied malice depends on a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard); People v Whitfield, 7 Cal 4th 437; 868 P2d 272 (1994) (evidence of voluntary intoxication is admissible to determine whether the defendant harbored either express or implied malice for purposes of a second-degree murder conviction. If voluntary intoxication prevented a defendant from forming malice, the defendant cannot be found guilty of murder); People v Reyes, 52 Cal App 4th 975; 61 Cal Rptr 2d 39 (1997) (<HOLDING>). In none of the cases before us does evidence Holdings: 0: holding that a refusal to perform field sobriety tests was admissible as evidence of intoxication 1: holding that under florida precedent trial court erred in excluding expert testimony on intoxication as voluntary intoxication was a valid defense to a specific intent crime and expert testimony is relevant to a disputed voluntary intoxication defense 2: holding such intoxication to be voluntary 3: holding that a defendants insanity due to voluntary intoxication is not a defense 4: recognizing that the holding of people v whitfield was superseded by a 1995 statutory amendment that provided that evidence of voluntary intoxication is no longer admissible on the issue of implied malice aforethought


Input: McCarthy on Trademarks and Unfair Competition, § 2:8 (4th ed., 1996). There has also been a substantial change in the legal climate since the judgment in the previous case. The Anticy-bersquatting Consumer Protection Act (“ACPA”) was passed into law in 1999 in an effort “to provide trademark owners with stronger remedies against cybers-quatters, who register domain names of well-known trademarks and then try to profit from the marks.” The statute has been found to be constitutionally retroactive, meaning that relief may be sought even if, as in this case, the domain name was registered prior to the enactment of the statute. See Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 502 (2 Cir., 2000), cert. denied, 530 U.S. 1262, 120 S.Ct. 2719, 147 L.Ed.2d 984 (2000) (<HOLDING>); see also E. & J. Gallo Winery v. Spider Webs Holdings: 0: holding that where the address problem is the fault of the alien there is no constitutional problem with the agencys procedures and no basis for judicial relief 1: holding that because a  1326 violation constitutes a continuing offense venue may lie in any district in which the continuing conduct occurred 2: holding that failure to appear for sentencing is a continuing offense because a convicted criminal has a continuing obligation to face sentencing and presents an ongoing threat to the integrity and authority of the court so long as he has not appeared 3: holding that the acpa presents no retroactivity problem because cybersquatting is a continuing wrong 4: holding there is no continuing duty to repair or recall


Input: necessary to operate as [an] MGA under Florida law.” WAG, however, not FLA (or other similarly situated third parties), was the primary and direct beneficiary of the policy. Thus, as a matter of law, TAIC is not liable to FLA for any information upon which FLA may have relied in its business transactions with WAG. See, e.g., Fla. Bldg. Inspection Servs. v. Arnold Corp., 660 So.2d 730, 733 (Fla. 3d DCA 1995) (finding roof inspector, hired by lessee, who certified that roof was watertight and leak free, not liable to sublessee for negligent misrepresentation where roof had multiple leaks because “the tort liability of a supplier of information is limited to persons ‘for whose benefit and guidance’ the information was intended to be supplied.”). See also Ragsdale, 770 So.2d at 170 (<HOLDING>). Moreover, the expert’s opinions that a Holdings: 0: holding that res judicata properly barred claims based on an employers decision to terminate an employee because the termination was not a fresh act of discrimination rather it was the same decision not to allow the employee to return to work that the employee had challenged previously 1: holding termination wrongful when employee had a statutory duty to report violations 2: holding county employee with unenforceable contract was atwill employee 3: holding that the employer intended to create a new employee welfare benefit plan 4: holding that although incorrect drug report was detrimental to employee employee had no claim against hospital because the report was not intended to primarily or directly benefit the employee


Input: board which carries with it the power of law or authority for enforcement,’ Plaintiffs have failed to present issues which are fit for judicial decision." Id. at 13 (citing Underwood v. State, 439 So.2d 125, 128 (Ala.1983)). 31 .The ASB Defendants add that the Eleventh Circuit noted that "[e]ven when the constitutional minimum has been met, however, prudential considerations may still counsel judicial restraint.” (Doc. 15 at 6-7) (citing Action Alliance, 789 F.2d at 940 n. 12; and, Johnson, 730 F.2d at 648). As such, the ASB Defendants argue that like in Digital, here, the Plaintiffs "in their haste to preserve their perceived First Amendment rights, rushed prematurely to the courthouse and as a result failed to present ciousness of Atlanta v. Eaves, 601 F.2d 809 (5th Cir.1979) (<HOLDING>). 35 . See e.g., Zwickler, 394 U.S. 103, 109, Holdings: 0: holding continuing controversy not moot 1: holding similar agreement void on public policy grounds 2: holding that claims based on grounds not objected to at trial cannot be considered on appeal 3: holding appeal moot on this basis 4: holding plaintiffs claims moot on similar grounds


Input: Precision, Inc, 469 Mich 362, 374; 666 NW2d 251 (2003). An affirmative expression of assent constitutes a waiver. Id. at 378. In contrast, a failure to timely assert a right constitutes a forfeiture. Id. at 379. “A stipulation is an agreement, admission or concession made by the parties in a legal action with regard to a matter related to the case.” People v Metamora Water Serv, Inc, 276 Mich App 376, 385; 741 NW2d 61 (2007). To waive a right, the language of a stipulation must show an intent to plainly relinquish that right. Whitley v Chrysler Corp, 373 Mich 469, 474; 130 NW2d 26 (1964). However, the use of specific key words is not required to waive a right. See Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Mich Transp Auth, 437 Mich 441, 463 n 16; 473 NW2d 249 (1991) (<HOLDING>). In this case, in November 2013, Mando Holdings: 0: recognizing that courts will enforce waiver of appeal rights when waiver is knowing and voluntary 1: holding unionnegotiated waiver of employees right to judicial forum for statutory claims must be clear and unmistakable 2: holding that clear and unmistakable standard applied to unionnegotiated waiver of employees statutory right to a judicial forum for claims of employment discrimination 3: holding that the word waiver is not required to waive a right even when a statute requires clear and unmistakable evidence of waiver 4: holding that even if the standard for waiver is clear the standard was not met


Input: disagree, as we conclude that the parties mutually agreed that there would be no limit on contribution liability regardless of the outcome of Kotecki. Before Kotecki, the question of whether there was a limit on employer contribution liability remained unanswered. Kotecki, 146 Ill. 2d at 162. For Kotecki, the supreme court granted leave to appeal in September 1989 (127 Ill. 2d 618, 545 N.E.2d 112 (1989)), more than a year before the parties entered into the contract in this matter. Thus, both parties could have known that the supreme court was about to establish a default rule for employer contribution liability, and supreme court decisions generally apply retroactively to cases pending at the time the decision is announced. Lannom v. Kosco, 158 Ill. 2d 535, 538, 634 N.E.2d 1097 (1994) (<HOLDING>). The parties responded by mutually assenting Holdings: 0: holding that aedpa is not applied retroactively to pending habeas petitions 1: recognizing the objection requirement for new state constitutional rules applied retroactively 2: holding statutes are not applied retroactively absent clear legislative intent 3: holding that kotecki limit applied retroactively 4: holding the batson rule was not to be applied retroactively to a state conviction on federal habeas review


Input: includes “several transactions or occur rences, any of which could constitute one of the acts proscribed by the charged statutes.” United States v. Beros, 883 F.2d 455, 460-61 (3d Cir.1987). The Beros court noted that “just as the sixth amendment requires jury unanimity in federal criminal cases on each delineated offense that it finds a defendant culpable ... it must also require unanimity regarding the specific act or acts which constitutes that offense. Absent such certainty, the unanimity requirement would provide too little protection in too many instances.” Id. at 461. The Seventh Circuit came to the same conclusion in a case very similar to Holley. See United States v. Fawley, 137 F.3d 458, 471 (7th Cir.1998). But see United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981) (<HOLDING>). The risks of serious unfairness presented by Holdings: 0: holding that when two underlying offenses are charged in an indictment for capital murder the state need only prove one of the two offenses to support the conviction 1: holding that only one offense should have been charged when four separate packages of the same drug were found 2: recognizing that delay in indictment may sometimes be a basis for a sentencing departure but holding that district court erred when it decreased sentence based on a delay in an indictment where the offenses were separate crimes distinct in time place and victims 3: holding that the policy considerations behind the unanimity requirement suggest that a single count of an indictment should not be found impermissibly duplicitous whenever it contains several allegations that could have been stated as separate offenses  but only when the failure to do so risks unfairness to the defendant 4: holding unanimity requirement not violated when charge stated two separate counts with two separate and distinct offenses in each case


Input: § 1367(d). Subsection (d) preserved Rothmeier’s opportunity to file his dismissed whistleblower claim in state court because the tolling provision was triggered when he “asserted” the claim in federal court pursuant to subsection (a). See id. The federal court need not exercise supplemental jurisdiction over the state law claim for the statute of limitations to be tolled under 28 U.S.C. § 1367(d). See Obendorfer v. Gitano Group, Inc., 838 F.Supp. 950, 957 & n. 3 (D.N.J.1993); Winn v. North Am. Philips Carp., eded he learned about the suspected violation in this case on March 15, 1993, from an internal IAI memorandum that stated: (1) Rahn and corporate counsel had been alerted about the issue of whether IAV-MI should be registered with t usky Oil Co., 429 A.2d 995, 997 (Del.Ch. 1981) (<HOLDING>). As a threshold matter, IAI and IAICMC owed Holdings: 0: holding that an insurer owes no duty of good faith to thirdparty claimants under the insurance code without reaching the question of a possible commonlaw duty 1: holding that a partner owes a duty to all other partners to exercise the utmost good faith fairness and loyalty 2: holding that the relationship of partners is of a fiduciary character and imposes upon them the obligation to exercise good faith and integrity in their dealings 3: holding that an insurer has a duty to act with the utmost good faith towards its insured 4: recognizing that an attorney has a duty of loyalty to his client


Input: his federal capital trial, confronts the prospect of losing his key mitigation witness as a result. The government contends the defendant is not entitled to an expert of his choosing. That argument is unassailable. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (“This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed....”); Walton v. Angelone, 321 F.3d 442, 464 (4th Cir.2003) (“Walton had no constitutional right to insist on the appointment of any particular expert.”); Wilson v. Greene, 155 F.3d 396, 401-02 (4th Cir.1998) (<HOLDING>). The defendant does not contend otherwise. Holdings: 0: holding that the constitution does not entitle a criminal defendant to the effective assistance of an expert witness 1: holding the sixth amendment right to effective assistance extends to a criminal defendants first appeal as of right 2: holding that witness immunity does not bar a claim against a retained expert witness for negligence performance of his duty 3: recognizing that a criminal defendants right to counsel is the right to the effective assistance of counsel 4: holding a criminal defendant has the right to effective assistance of counsel during a plea process


Input: from the plaintiffs expert that the cost to replace the items taken from the facility “would have been nearly $300,000.” In addition, the jury cannot be faulted for using replacement cost as the measure of recovery. Evidence of the replacement cost was admitted, and the jurors were simply instructed that, if they determined the plaintiff was entitled to possession of the property, they were also to “determine the value of that property as of the date of trial.” They were not instructed that “value” meant market value, not replacement cost. Under these circumstances, we do not believe the jury’s award of replacement cost at a level proposed by the plaintiffs expert was so far outside the range of evidence as to suggest the jury was motivated by passion. See Schmitt, 170 N.W.2d at 660-61 (<HOLDING>). A similar view can be reasonably taken of the Holdings: 0: holding that to preserve an alleged error in the admission of evidence a timely objection must be made to the introduction of the evidence specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court 1: holding that appellate courts determine the sufficiency of the evidence to support a conviction based on a review of all of the evidence admitted at trial 2: holding that the foundational prerequisites are unnecessary where the test result is admitted in evidence without objection when evidence of one of the issues in the case is admitted without objection the party against whom it is offered waives any objection to the evidence and it may be properly considered even if the evidence would have been excluded upon a proper objection 3: holding new trial cannot be based on claim of prejudice arising from jurys reliance on evidence admitted without objection 4: holding any error in admission of evidence cured when same evidence later admitted without objection


Input: failing to obtain a final ruling on the right to consul issue. We agree. In State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43 (1994), the Court held that a defendant who does not seek a final ruling on a motion in limine after a court issues a tentative ruling waives any objection to the exclusion of the evidence. Similarly, in State v. Koloske, the Court noted that “[w]hen the trial court refuses to rule, or makes only a tentative ruling subject to evidence developed at trial, the parties are under a duty to raise the issue at the appropriate time with proper objections at trial.” 100 Wn.2d 889, 896, 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988). Cf. Breard v. Greene, 523 U.S. 371, 375-76, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998) (<HOLDING>). During his CrR 3.5 hearing, Acosta raised the Holdings: 0: holding no right to counsel for capital defendants in state habeas proceedings 1: holding that the vienna convention must be applied in conformity with the laws and regulations of the united states including the rules for federal habeas relief 2: holding that habeas petitioner scheduled to be executed in the state of virginia for capital murder could not raise claim of violation of his rights under the vienna convention on federal habeas review where he failed to preserve the claim by raising it in state court proceedings vienna convention does not trump subsequent federal statute requiring habeas petitioners who claim to be held in violation of treaties of the united states to develop factual bases for their claims in state court as a precondition of federal habeas review 3: holding that infirmities in state habeas proceedings do not constitute grounds for federal habeas relief 4: holding that a petitioner should be permitted to seek habeas review in state court even if there were doubt that the states substantive law would permit a habeas petition


Input: Annual Report, attached to the Complaint as Exhibit D, rather than the bare allegations in Plaintiff's Complaint. However, for the reasons discussed below, the Court concludes that, for the purposes of resolving this motion, the statements in Exhibit D do not prevail over the allegations in the Complaint. 3 . Arguably, the fact that the chief of police exercises authority "under the supervision of the City Manager” might indicate that the City Manager has final policy making authority over the police department. However, in light of City Defendants’ failure to dispute the authority of the chief of police and the absence of any indication within the Newport News City Code of the manner in which the City Manager exercises supervision over the chief of police, cf. Lytle, 326 F.3d at 472 (<HOLDING>), the Court concludes that local positive law Holdings: 0: holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures 1: holding that citys enforcement of the entire state penal code would not constitute a city policy because the city was required to follow state law 2: holding that city attorneys promise in an oral settlement agreement for city to annex and rezone land was within the legal authority of the city of joliet to accomplish and were not absolutely void acts per se therefore city could be estopped from avoiding enforcement of contract 3: holding that a jurys finding that a city had delegated its final policymaking authority in the area of law enforcement to a city police chief was supported by the evidence and warranted imposing liability upon the city 4: holding that city managers act of raping a woman that worked for him at the city was done under color of state law reasoning that he intervened with the citys police chief who had offered to give the plaintiff a ride home thus invokeing his authority as city manager to create the opportunity to be alone with the plaintiff to take her home and then to rape her


Input: argues that it is not administratively feasible for a court to determine whether a particular individual is a member of the class. Because the class definition is not sufficient, we conclude the trial court abused its discretion. Accordingly, AIMCO’s first and third issues are resolved in its favor. We need not address the other issues. Applicable Law The threshold inquiry in determining class certification must be into the class definition, i.e., the parameters of the proposed class. Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 403 (Tex.2000). Rule 42 implicitly requires the representative plaintiffs to demonstrate not only that an identifiable class exists, but that it is susceptible to precise definition. Id.; see DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970) (per curiam) (<HOLDING>); 5 James Wm. MOORE ET AL., MOORE’S FEDERAL Holdings: 0: holding that putative class members are not parties to an action prior to class certification 1: holding that to maintain a class action the existence of the class must be pleaded and the limits of the class must be defined with some specificity 2: holding that a class definition must be precise objective and presently ascertainable 3: holding that for a class action to be maintained all class members must have a common and undivided interest in the property or matter involved 4: holding that it is elementary that in order to maintain a class action the class sought to be represented must be adequately defined and clearly ascertainable


Input: Law 280 jurisdiction and those states without it is somewhat blurry. In Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); and Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), there is language indicating that the states have power over Indian affairs whenever Congress has provided for such authority, presumably implying Public Law 280. However, in Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976), there is language indicating that even if Congress has granted states the authority to act under Public Law 280, they nevertheless could be disabled from so acting: “And not U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965) (<HOLDING>). As to state assertions of jurisdiction in Holdings: 0: holding state may not impose tax on nonindian trader operating on the reservation 1: holding a state cannot impose an income tax on indians whose income is solely from reservation sources 2: holding that state has no jurisdiction over civil suit by nonindian against indian where cause of action arises on indian reservation 3: holding that arizona could not impose an income tax on reservation indians 4: holding that state has jurisdiction to prosecute a nonindian for operating a motor vehicle under the influence of alcohol within the boundary of an indian reservation


Input: not persuasive. Under the “actual effects” test, it is clear that Washington’s percentage-based penalty provisions are not primarily imposed to compensate the state. The State’s contention that it incurs costs in the collection of unpaid taxes is irrelevant because the provisions’ “actual effect” has no direct relation to any specific costs incurred by the State. Furthermore, as the district court observed, other courts have held that escalating percentage-based penalties imposed in addition to interest are generally punitive rather than compensatory in effect. A The Tenth Circuit and a bankruptcy court in this circuit have concluded that pereent- age-based penalties for unpaid taxes were punitive rather than compensatory. See, e.g., In re Cassidy, 983 F.2d 161, 164-65 (10th Cir.1992) (<HOLDING>); In re E.A. Nord Company, Inc., 75 B.R. 634, Holdings: 0: holding that the defendant withheld pension benefits in breach of the plan 1: holding that the family courts award to exwife of interest in 387 of debtors military pension payable directly from the plan was not subject to discharge because interest in pension plan was not a debt rather it was considered exwifes separate ownership interest 2: holding that an antiassignment clause in a pension plan is valid under  541c2 and that the pension benefits thus do not become property of the estate and may not be made subject to a pay order under section 1325c 3: holding that irs ten percent assessmentlabelled a taxon premature withdrawal from pension plan funds was nonpecuniary loss penalty and thus not entitled to priority in bankruptcy 4: holding that appropriate remedy was to compute service credit for veterans in accordance with vrra rather than pursuant to employers pension plan and requiring retroactive pension plan payments to be made


Input: Thus, this Court recognizes that, under Reigel’s specific holding that Section 360k does not prohibit States from providing a damages remedy for claims premised on FDA violations, common law state actions that provide private remedies for violations of FDCA provisions would be permissible. Riegel, 552 U.S. at 330, 128 S.Ct. 999; see Mitchell v. Collagen Corp., 126 F.3d 902, 907 (7th Cir.1997) (noting that to the extent that plaintiffs adulteration claim alleged that defendant had not followed FDA requirements, state law did not impose requirements different fro at plaintiffs cannot make an end run around the lack of a private right of action under the FDCA by recasting FDCA violations as violations of state common law); Parker v. Stryker Corp., 584 F.Supp.2d 1298, 1301 (D.Colo.2008) (<HOLDING>). Indeed, in Medtronic, the court explicitly Holdings: 0: holding that the hearing provisions of the ina supersede the provisions of the apa 1: holding that subsequent to a judicial sale the report of the sale must be made to and ratified by the court before a deed for the property is given by the trustee to the purchaser 2: holding that reference to ordinance is not improper reference to an external document because injunction sufficiently describes the act sought to be enjoined and reference to the ordinance as stated in the injunction is merely to give further notice as to the enjoined conduct but the reference was unnecessary to give the appellants sufficient notice of that conduct 3: holding that the clear language of the iccpr manifests that its provisions are to govern the relationship between an individual and his state 4: holding that plaintiff cannot escape preemption by reference to provisions of the fdca that govern the sale of adulterated and misbranded devices


Input: Court, however, need not decide the issue on this record. 9 . The two sections may simply reflect legislative changes in the bills. The original bills, S. 830 and S. 788, contained the provisions of § 633(a), but neither § 633(b) nor § 626(d). Those provisions were added subsequent to hearings. Section 633(b), added in response to testimony concerning § 633(a), is not necessarily intended to be distinct from § 626. 10 . Current case law has only dealt with § 626(d) as jurisdictional. (Hiscott, supra; Powell v. Southwestern Bell, 494 F.2d 485 (5 Cir. 1974); Edwards v. Kaiser Aluminum, 515 F.2d 1195 (5th Cir. 1975)). In addition, there has been some tendency to isolate § 626(d) as containing the jurisdictional prerequisites. (See Ott v. Midland Ross Corp., 523 F.2d 1367 (6th Cir. 1975) (<HOLDING>)). 11 . 42 U.S.C. § 2000e-5(c) (See fn. 3, Holdings: 0: holding that exhaustion is mandatory and jurisdictional 1: holding that the aedpa statute of limitations is not jurisdictional 2: holding that exhaustion of issues is jurisdictional 3: holding immunity from liability is not jurisdictional 4: holding that while  626d is jurisdictional  626e is not


Input: Code, which allows a trustee to sell property of the estate outside of the ordinary course of business “after notice and a hearing.” 11 U.S.C. § 363(b)(1). Before the Trustee conducted the sale, he provided notice to the Debtor that conformed with Rule 2002(c)(1), and the matter came on for hearing. Nevertheless, the Debtor never raised any objection to the proposed sale of the Corvettes, and so, relying on the Trustee’s assertion that the sale was in the best interest of the estate and the lack of objections, the Court entered an order approving the sale. Having failed to object before the order was entered, the Debtor cannot now, dissatisfied with the outcome of the sale, engage in a collateral attack on the price obtained. See Hendrick v. Avent, 891 F.2d 583, 586 (5th Cir.1990) (<HOLDING>); In re Morgan, 2015 WL 7252206, at *3 (noting Holdings: 0: holding that a bankruptcy courts sale order is a final order for res judicata purposes 1: holding that an order disqualifying counsel in a civil case is not a final judgment 2: holding that an order not denominated a judgment is not final for purposes of appeal 3: holding that an order authorizing a sale is a final judgment 4: holding that a district court judgment is not a final judgment appealable by the defendant unless it includes the final adjudication and the final sentence


Input: a claim for relief and that no exceptions to this obligation would seemingly be authorized. In Borger v. Eighth Judicial Dist. Court, the Nevada Supreme Court, albeit in dicta, concluded “NRS 41A.071 clearly mandates dismissal, without leave to amend, for complete failure to attach an affidavit to the complaint. This interpretation is consistent with the underlying purpose of the measure, which is to ensure that such actions be brought in good faith based upon competent expert opinion.” 120 Nev. 1021, 1029, 102 P.3d 600, 606 (2004) (emphasis added); accord Collins v. MacArthur, No. 3:05-cv-237-PMP-VPC, 2006 WL 1966728, at *2 (D.Nev.2006); cf. Washoe Med. Ctr. v. Second Judicial Dist. Court of State of Nevada ex rel. County of Washoe, 122 Nev. 1298, 1303-04, 148 P.3d 790, 793-94 (2006) (<HOLDING>); Fierle v. Perez, 125 Nev. 728, 219 P.3d 906, Holdings: 0: recognizing that even when a prisoner files suit under section 1983 alleging medical malpractice against prison medical officials medical malpractice does not become a constitutional violation merely because the victim is a prisoner 1: holding a medical malpractice complaint filed without a supporting medical expert affidavit is void ab initio  and as a consequence it does not legally exist and thus it cannot be amended under rule 15a of the nevada rules of civil procedure 2: holding that a north carolina rule requiring an expert certification in a medical malpractice case applied in a federal tort claims act case sounding in medical malpractice brought in federal court 3: recognizing that a plaintiff must produce a medical expert to testify as to causation in all but the most selfevident medical malpractice actions 4: holding that the ada does not create a remedy for medical malpractice


Input: defense, which the defendant can waive”; adopting this view, the court held that “the statute of limitations is a matter of defense that must be asserted at trial by the defendant”); United States v. Spector, 55 F.3d 22, 24 (1st Cir. 1995) (citing Acevedo-Ramos v. United States, 961 F.2d 305 (1st Cir. 1992), and holding that the statute of limitations is not a jurisdictional bar but a waivable affirmative defense, and that the failu er in this area. See Benes v. United States, 276 F.2d 99 (6th Cir. 1960) (construing the criminal statute of limitations as a jurisdictional bar to prosecution, and holding that the statute was not tolled by an agreement between the parties that the government would not seek an indictment during the pendency of a related c 765 N.E.2d 894, 899 (2001) (<HOLDING>); Tennessee v. Pearson, 858 S.W.2d 879 (Tenn. Holdings: 0: holding a statute of limitations defense does not deprive court of subject matter jurisdiction to the extent the statute of limitations may be considered in any sense a jurisdictional impediment it is one which can be waived 1: holding that the aedpa statute of limitations is not jurisdictional 2: holding statute of limitations is not jurisdictional and can be waived by a voluntary plea of guilty 3: holding statute of limitations is jurisdictional and may be raised at any time but noting other ohio appellate courts have held the statute of limitations is not jurisdictional and may be waived if not asserted at the trial level 4: holding that the statute of limitations defense does not deprive court of subject matter jurisdiction to the extent the statute of limitations may be considered in any sense a jurisdictional impediment it is one which can be waived


Input: Ins. Co., 512 So.2d 1125, 1128-29 (Fla. 4th DCA 1987). Regarding the difference between the grounds for rescission based on misrepresentations that are material as a matter of law, and misrepresentations that lead an insurer to issue a policy that it otherwise would not have issued if it had known the true facts, we have explained: 'While several of the decisions finding that a misrepresentation was material as a matter of law also address the issue of whether the insurer would have actually issued the policy under the same terms and same premium had it known the true facts, the consideration of that issue [is] not required in making a determination that a misrepresentation was material to the risk or the hazard assumed by the insurer. . ¡ Id. at 1128; see also Salgado, 22 So.3d at 604 (<HOLDING>). Thé determination of materiality under Holdings: 0: holding that when the insurer takes the position that the policy does not cover the complaint the insurer must 1 defend the suit under a reservation of rights or 2 seek a declaratory judgment that there is no coverage if the insurer fails to take either of these actions it will be estopped from later raising policy defenses to coverage 1: holding that the law is well settled that if the misrepresentation of the insured were material to the acceptance of the risk by the insurer or if the insurer in good faith would not have issued the policy under the same terms and premium then rescission of the policy by the insurer is proper emphasis added quoting ny life ins co v nespereira 366 so2d 859 861 fla 3d dca 1979 2: holding that when an insurer files suit to cancel a policy the entire liability of the insurer both on the policy and under the statute is put in issue 3: holding despite a reservation of rights that when the insurer provides a defense to its insured the insured has no right to interfere with the insurers control of the defense and a stipulated judgment between the insured and the injured claimant without the consent of the insurer is ineffective to impose liability upon the insurer 4: holding that if the insured is only partially compensated by the insurer both the insurer and the insured are real partiesininterest


Input: For these reasons, we conclude that the Civil Rights Act of 1991 did not render Title VII and § 1981 the exclusive remedies for public sector employment discrimination, thereby preempting a constitutional cause of action under § 1983. Accordingly, we affirm the district court’s order denying the defendants’ motion to dismiss Johnson’s § 1983 claims. AFFIRMED. 1 . Count Eight asserts a 42 U.S.C. § 1985 claim against the individual defendants for alleged conspiracy to violate Johnson's § 1981 and Thirteenth Amendment rights. This count is not at issue on this appeal. 2 . The defendants also moved to dismiss the ' § 1981 claim. The district court granted dismissal against the City only, citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 2722, 105 L.Ed.2d 598 (1989)(<HOLDING>). 3 .We review de novo a question of law Holdings: 0: holding that  1983 does not provide a remedy if there is no violation of federal law 1: holding that where it is alleged that state has violated rights conferred by constitution governmental immunity is not available in state court action but declining to infer a right to sue the state for damages on the basis of a violation of the michigan constitution 2: holding that  1983 is the exclusive federal remedy for violation of the rights guaranteed in  1981 by state governmental units 3: holding that title vii provides the exclusive judicial remedy for claims of discrimination in federal employment 4: holding that title vii of the civil rights act of 1964 provides the exclusive remedy for claims of employment discrimination by federal agencies


Input: the relative complexity of electrical-distribution systems, resolving the issues of fact presented by the Siewerts is not beyond “the conventional experience of judges.” City of Rochester, 483 N.W.2d at 480. The litigants’ expert witnesses will provide sufficient factual information. Minn. R. Evid. 702 (permitting testimony by expert witnesses). And, third, the resolution of fact issues underlying the Siewerts’ claims does not require “the exercise of administrative discretion” or create an administrative need for “uniformity and consistency.” City of Rochester, 483 N.W.2d at 480. Deciding whether specific facts meet the elements of a tort claim is not uniquely suited to an administrative agency, but instead is regularly decided by juries. See Steinbrecher, 392 N.W.2d at 712 (<HOLDING>). The claims do not turn on a safety standard Holdings: 0: holding that the question of whether the defendants recording device was an intercepting device was a question of law appropriate for summary judgment 1: holding that claim construction is an issue of law for the court not a question of fact for the jury 2: holding that party that failed to object to instruction that jury not answer a question based on its answer to the prior question waived that partys right to have the jury make findings as to the subsequent question 3: holding when reasonable minds cannot differ the question of comparative negligence is a question of law appropriate for summary judgment 4: holding that in wrongfuldeath action question of appropriate precautions was one for jury


Input: Kentucky Workers’ Compensation Act, KRS 342.690(1) provides: If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. KRS 342.690(1) (emphasis added). The statute and Kentucky case law interpreting the statute make it clear that the Workers’ Compensation Act provides the exclusive remedy where a covered employee is injured by her employer’s negligent actions. See, e.g., Shamrock Coal Co., Inc. v. Maricle, 5 S.W.3d 130 (Ky.1999) (<HOLDING>); Hardin v. Action Graphics, Inc., 57 S.W.3d Holdings: 0: holding that the exclusivity of workers compensation is an affirmative statutory defense which must be timely raised or it is waived 1: holding that coal workers claim that mine owner was negligent careless and reckless in its mining operations was barred under exclusivity provision of workers compensation act 2: holding that exclusivity provision of workers compensation act barred wifes loss of consortium claim 3: holding that an injured workers initial election to seek state compensation does not implicate the exclusivity provision to preclude the worker from later seeking compensation under the longshore act 4: holding that the coemployee immunity provision in workers compensation law was constitutional


Input: judgment. See Fed.R.Civ.Proc. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002); Beyene v. Coleman Sec. Sens., Inc., 854 F.2d 1179, 1181 (9th Cir.1988). Thus, in Orr, the Ninth Circuit affirmed a district court’s decision to exclude, at summary judgment, evidence offered by the non-moving party on the grounds that the evidence was improperly authenticated and constituted hearsay. See Orr, 285 F.3d at 771 (affirming the entry of summary judgment against plaintiff based on the district court’s finding “that most of the evidence submitted by Orr in support of her opposition to BOA’s motion for summary judgment was inadmissible due to inadequate authentication and hearsay”); see also Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 935-36 (9th Cir.2002) (<HOLDING>), amended and superceded on other grounds, 313 Holdings: 0: holding that the district court did not abuse its discretion in excluding hearsay evidence and evidence that violated the best evidence rule in deciding a summary judgment motion 1: holding that the district court did not abuse its discretion in excluding evidence based upon the defendants noncompliance with the deadlines in rule 412c 2: holding that hearsay evidence is not acceptable in opposing a summary judgment motion 3: holding that the district court did not err in relying on hearsay evidence where the government offered reasons why its hearsay evidence had indicia of reliability and the court considered the reliability of the evidence in deciding the weight to give the hearsay evidence 4: holding that a district court did not abuse its discretion in excluding the testimony of a witness that was not highly probative