Input: 311 (7th Cir.1992); Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir.1993). Construing the ambiguity against the drafter under the applicable state law doctrine of contra proferentem, these circuits have held that the limitation does not include organically based illnesses. Phillips, 978 F.2d at 311; Patterson, 11 F.3d at 950. This court has held that “[a]n insurance contract is ambiguous if it is susceptible to two or more reasonable interpretations that can fairly be made. When one of these interpretations results in coverage and another results in exclusion, ambiguity exists in the insurance policy.” Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir.1993) (citations omitted). The district court reasoned th 8 F.2d 302, 304, 310-11 (7th Cir.1992) (<HOLDING>), with Brewer v. Lincoln Nat’l Life Ins. Co., Holdings: 0: holding that attorneys mental illness may justify equitable tolling 1: holding that a mental illness limitation limiting the maximum payment for care of mental illness or care of nervous conditions of any type or cause is ambiguous because the plan contains no definition or explanation of the term mental illness  and thus construed against the insurance company does not include physically based illnesses 2: holding that upon applying the doctrine of contra proferentem the insureds organically based illness does not fall within the mental illness limitation as a matter of law 3: holding that a mental illness limitation containing the exact language at issue in this case is ambiguous because it does not specify whether a disability is to be classified as mental by looking to the cause of the disability or to its symptoms and thus construed in favor of the insured does not encompass organically based illnesses 4: recognizing attorneys mental illness as grounds for relief under rule 60b6


Input: as we know it. On the other hand, a decent respect for the collective wisdom of the jury and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of its own doubts on the matter. Probably all that the judge can do is balance these conflicting principles in light of the facts of the particular case. If, after having given full respect to the jury’s findings, the judge on the entire evidence is left with a definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2806 (2d ed.1995). See also Clay v. Ford Motor Co., 215 F.3d 663, 672 (6th Cir.2000) (<HOLDING>) (citation omitted). 2. The Size of the Verdict Holdings: 0: holding that the verdict must be sustained if there is any competent evidence to support the verdict 1: holding that a district court must compare and weigh the opposing evidence and it must set aside the verdict if it determines that the verdict is against the clear weight of the evidence 2: holding that the court of appeals must consider and weigh all of the evidence and may only set aside the finding if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust 3: holding that a jurys award of compensatory damages will be set aside on the grounds of excessiveness only if the verdict is against the clear weight of the evidence or will result in a miscarriage of justice 4: recognizing that a trial court can set aside verdict


Input: broad clauses have their limits. Because we are concerned only with the dispute before us and its connection with or relation to the several agreements before us, we need not explore these outer limits,”). In PaineWebber, the Fifth Circuit declined to apply the arbitration clauses from three Option Agreements to a dispute arising under a separate Referral Agreement. PaineWebber, Inc. v. Chase Manhattan Private Bank, 260 F.3d 453, 464 (5th Cir.2001). “Certainly, the extremely broad language of these clauses, if read in a vacuum, would appear to bind the parties to arbitrate any and all disputes that may arise between them. When read in context as they must be, however, the reach of the arbitration clauses in the Option Agreements is simply not capable of such an expansive grasp.” Id. (<HOLDING>). Here, the loan and checking account Holdings: 0: holding that under an option requiring renewal at the expiration of the lease but providing no more specific time requirement the lessee had a reasonable time to exercise the option within the term of the lease 1: holding that even if the doctrine applies to option contracts no conversion would take place until the option were exercised by the party having the right of election 2: holding that option agreements were limited in time and scope and in no way modified or superceded referral agreement 3: holding in part that the utah state probation agreement does not create such an option 4: holding that agreement referencing rights and remedies of another agreement was subject to the referenced agreements arbitration clause


Input: conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence within the Guidelines sentence range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). A sentence imposed well below the statutory maximum penalty, as is the case here, is another indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (<HOLDING>). The weight accorded any specific § 3553(a) Holdings: 0: holding that the sentence was reasonable in part because it was well below the statutory maximum 1: holding sentences need only be below the statutory maximum 2: recognizing a claim that the sentence exceeded the statutory maximum 3: holding a sentence 110 the length of the 20year statutory maximum sentence was reasonable 4: holding statutory maximum for prior conviction is the potential maximum sentence defined by the applicable state criminal statute not the maximum sentence which could have been imposed against the particular defendant  according to the states sentencing guidelines


Input: third party which are otherwise subject to state control.”); Ayotte, 488 F.3d at 533 (discussing New York regulations at issue in Franklin National Bank v. New York, 347 U.S. 373, 74 S.Ct. 550, 98 L.Ed. 767 (1954), that prohibited any banks other than New York’s charter savings banks from advertising that they accepted “savings,” and reasoning that “we do not believe that the regulation at issue in Franklin National Bank would have presented any less of a conflict with the National Bank Act if it indirectly restricted a national bank’s power by prohibiting New York advertising firms from using the word ‘savings’ when preparing advertising for a bank, or if it had prohibited billboard owners from posting signs for banks that included the word ‘savings’ ”); Bank One, 190 F.3d at 847-50 (<HOLDING>). Next, the State argues that even if the Holdings: 0: holding that statutory notice provisions for notice of default and opportunity to cure were waived by provisions of note as to one obligor though provisions applied to coobligor who used property as residence 1: holding that such provisions are valid 2: holding that the hearing provisions of the ina supersede the provisions of the apa 3: holding provisions of the iowa efta that restricted outofstate banks from operating atms within iowa were preempted by nba even though the state of iowa attempted to enforce provisions of the iowa efta against thirdparty retailer 4: holding the same under iowa law


Input: argument is that because these factors restate the factors charged in the indictment, they are not “additional non-statutory aggravators.” United States v. Higgs, 353 F.3d 281, 321 (4th Cir. 2003) (emphasis added). Defendant urges the Court to interpret the Fourth Circuit’s use of the word “additional” to mean “a factor unrelated to the Defendant’s crime of conviction.” This argument ignores the fact that the FDPA expressly permits juries to consider statutory aggravators as well as “any other aggravating factor for which notice has been given.” 18 U.S.C. § 3592(c). In other words, the FDPA empowers jurors to consider nonstatutory ag-gravators that are appropriately noticed. Accordingly, the Court rejects Defendant’s argument that allowing 689, at *6 (Ala. Crim. App. June 17, 2016) (<HOLDING>), with Rauf v. State, 145 A.3d 430 (Del. 2016) Holdings: 0: holding that hurst did not render unconstitutional californias capital sentencing scheme which utilizes a jury in the factfinding process 1: holding that alabamas capital sentencing scheme which utilizes a factfinding jury remains constitutional under hurst 2: holding that the right applies at capital sentencing in particular 3: recognizing two solutions in a sentencing scheme very similar to hawaiis 1 the present system of fixed terms with factfinding assigned to a jury or 2 reform of the system to create a true sentencing range 4: holding we reject the notion that alabamas statutory scheme for compensating attorneys in capital cases in and of itself denies a defendant effective representation


Input: proof in this case. Under rational basis review, the government “has no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The challenged ordinance is presumed constitutional and plaintiff bears the burden of negating “every conceivable basis which might support it.” Id. As a matter of law, plaintiff has not carried this burden. Although the City need not present evidence of a rational basis for the 15 per cent demolition threshold, the Court finds that it has in fact done so. In determining the rationality of a challenged statute, the Court may consider the legislative history underlying the statute. See United States v. Plotts, 347 F.3d 873, 880 (10th Cir.2003) (<HOLDING>); Morgan v. Sec’y of Horn. & Urban Dev., 985 Holdings: 0: holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category 1: holding that even where there are  contrary indications in the statutes legislative history we do not resort to legislative history to cloud a statutory text that is clear 2: holding that the legislative history under the act indicates that liquidated damages are intended to be punitive in nature 3: holding that legislative history cannot supply a clear statement 4: recognizing legislative history as source which illustrates rational link between dna act and governments interest in enforcing criminal law


Input: of a detailed offer of proof, which includes affidavits, in support of the allegations of falsity is one of the five requirements that a defendant must fulfill to warrant a Franks hearing. United States v. Di Cesare, 765 F.2d 890, 894 (9th Cir.1985). More recently, the Ninth Circuit has stated that a defendant’s failure to offer an affidavit or sworn statement in support of allegations that a warrant affidavit was based upon deliberately false information is enough in itself to defeat a defendant’s demand for an eviden-tiary hearing under Franks. United States v. Ruddell, 71 F.3d 331, 334 (9th Cir.1995). The Seventh Circuit has addressed the issue of the sufficiency of a defendant’s offer of proof in a number of decisions. See United States v. Walker, 25 F.3d 540, 544-45 (7th Cir.1994) (<HOLDING>); United States v. Pace, 898 F.2d 1218, 1225 Holdings: 0: holding that the burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert and admissibility must be shown by a preponderance of the evidence 1: holding that the prosecutors comment regarding the defendants failure to call a potential witness did not shift the burden of proof because it did not implicate the defendants fifth amendment right not to testify 2: holding that the burden of proof is on the claimant 3: holding where tape corroborated by independent testimony of two police officers and where defendant did not challenge accuracy of recording court did not err in admitting tape despite prosecutions failure to authenticate it 4: holding that the defendants offer of proof which consisted only of a tape recording and a private investigators affidavit did not satisfy the defendants preliminary burden under franks without the offering of other sworn testimony or reliable evidence


Input: law that we í’eview de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.2005). The transcript of the plea hearing reveals that Simmons, a twenty-nine-year-old high school graduate, understood the waiver provision in his plea agreement. In his plea agreement, Simmons specifically waived the right to challenge his sentence on appeal, reserving only the right to challenge an upward departure from the Guidelines range established at sentencing, and Simmons averred at his Rule 11 hearing that he read and understood the plea agreement. We therefore conclude that Simmons knowingly and intelligently waived the right to appeal his sentence. Turning to the scope of the waiver, the sentencing claims Simmons raises on appeal fall within the scope of the waiver provision. See id. at 169-70 (<HOLDING>). Because Simmons’ valid and enforceable waiver Holdings: 0: holding that blakely and united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 are not retroactive on collateral review 1: holding that the changes in sentencing law imposed by united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not render waiver of appeal involuntary and unknowing 2: holding that united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 does not provide a basis for a sentence reduction under 18 usc  3582c 3: holding that united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not alter the standard of review for the interpretation and application of the guidelines 4: holding that waiver of right to appeal sentence in plea agreement accepted before decision in united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 was not invalidated by change in law


Input: an expectation of privacy is entitled to enhanced protection in a given circumstance.” Joye, supra, 176 N.J. at 613, 826 A.2d at 651. In essence, we conclude that, because the police did not suspect criminal wrongdoing and were not investigating criminal activity, the officers could ask defendant to step out of the car and, incident to their good faith performance of their “community caretaking” function, conduct a “pat down” incident to placing him in the police car for the limited period necessary to inquire about the “missing person” report. We are not dealing with a minor motor vehicle or traffic violation which precluded the placement of defendant in the police vehicle and the “pat down” incident thereto. See State v. Lozada, 92 Ohio St.3d 74, 748 N.E.2d 520, 525-526 (2001) (<HOLDING>); Wilson v. State, 745 N.E.2d 789, 792-793 Holdings: 0: holding that during a routine traffic stop it is reasonable for an officer to search the driver for weapons before placing the driver in a patrol car if placing the driver in the patrol car during the investigation prevents officers or the driver from being subjected to a dangerous condition and placing the driver in the patrol car is the least intrusive means to avoid the dangerous condition 1: holding that the driver of a car who had permission to use the car had standing to challenge its search 2: holding that it was impermissible for an officer to question a driver about matters unrelated to the traffic stop after the officer had fulfilled the purpose of the stop by issuing a written warning to the driver 3: holding that injury of plaintiff  who was detained in negligently parked patrol car that along with another patrol car was struck by thirdparty vehicle  did not arise out of use or operation of patrol car within meaning of ttcas motorvehicle waiver rather patrol car merely furnished condition that made injury possible 4: holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver


Input: N.C. Gen. Stat. § 7B-1103(a)(3) (2005), which provides: A petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following: . . . Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction. Second, the trial court in D.D.J. had no jurisdiction to enter the 17 March 2004 order on termination subsequent to granting “full custody” of the juveniles to custodial guardians on 26 September 2003 and specifying that “this case is closed.” See In re P.L.P., 173 N.C. App. 1, 7, 618 S.E.2d 241, 245 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006) (<HOLDING>). Here, James R. and Crystal Helms, H.D.’s Holdings: 0: holding that the district courts order refusing to exercise jurisdiction and remanding to the magistrate court for trial was sufficiently final for purposes of appeal and then determining that the remand was in error 1: holding that jurisdiction in the district court was terminated by the trial courts order to close the case and that dss was required to file a new petition alleging neglect 2: holding that because the state failed to properly file the complaint the district court lacked jurisdiction to proceed to trial 3: holding that an untimely petition for a rehearingreconsideration of a motion in a criminal case was beyond the district courts jurisdiction 4: holding that even where postconviction petitioner reserved the option to file an amended petition in his opening petition simply filing an amended petition is insufficient to request leave to file an amended petition a motion for leave to file an amended petition was required before it was necessary for the district judge to consider the amended petition


Input: the alternative method of demonstrating scienter— motive — has not been established. Plaintiffs contend that the Andersen defendants were motivated to participate in the fraud because of personal gain. However, they have alleged no gain other than the fact that the Andersen firm was compensated for its professional services. It would defy common sense to hold that the motive element of the Beck scienter analysis would be satisfied merely by alleging the receipt of normal compensation for professional services rendered, because to do so would effectively abolish the requirement, as against professional defendants in a securities fraud action, of pleading facts which support a strong inference of scienter. Cf. Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989) (<HOLDING>). Accordingly, the Section 10(b) claim is Holdings: 0: holding that a professional owes no duty to third persons unless the professional had actual knowledge that those persons would rely on his rendering of professional services 1: holding professional malpractice claim not contractual 2: holding that ijnsurance policies are contracts and as such they are to be enforced according to their provisions and ijnsurance companies must be able to rely on their statements of coverage exclusions disclaimers definitions and other provisions in order to receive the benefit of their bargain 3: holding that professional defendants who merely perform their usual professional functions and receive their normal compensation are not liable under the draconian provisions of section 122 4: holding that 1 principal shareholder and chief executive officer of chapter 11 debtor in liquidation is not entitled to compensation beyond normal salary for performing duties required of the debtor 2 professional is a term which is not narrowly construed but applies to anyone the nature of whose services meet the criteria of a professional person 3 a professional license is not dispositive and 4 factors include form of compensation time of retention pre or postpetition and whether employment is full time or parttime


Input: bankruptcy court record, including the consolidated pre-trial order, the McFarlands’ proposed findings of fact and conclusions of law, and their post-trial, brief, shows that the McFarlands did not present the constructive trust arguments they raise on appeal to the bankruptcy court for resolution. (See Bankr. Dkt. Entries 43, 53, & 76). Nor did they make these arguments in their brief on appeal to. the district court. (See Dist. Dkt. Entry 6). Rather, they asserted throughout the underlying proceedings only that a resulting trust was established. Therefore, the McFarlands cannot now complain that the bankruptcy court failed to address whether a constructive trust was established, and we decline to consider these arguments for the first time on appeal. See In re Egidi, 571 F.3d at 1163 (<HOLDING>). In any case, the McFarlands’ arguments do not Holdings: 0: holding that an argument not raised before the bankruptcy court will not be considered for the first time on appeal 1: holding that court will not consider issue raised for first time on appeal 2: holding that an issue raised for the first time on appeal will not be considered by this court 3: holding that an argument raised for the first time in response to defendants motion to dismiss instead of in an amended complaint was not properly raised before the district court and would not be considered on appeal 4: holding that issues raised for the first time on appeal will not be considered


Input: the debtor may only do so “subject” to 11 U.S.C. § 365. See 1322(b)(7). Consequently, the Debtor has the option of assuming the Lease in his Plan but, in opting to do so, he obligates himself to satisfy the requirements of § 365 which he has not done. There is no provision in his Plan for curing his default or providing adequate assurance of his future performance under the Lease. See 11 U.S.C. § 365(b). Furthermore, while the Bankruptcy Code permits a Chapter 13 debtor to modify the rights of certain holders of secured claims, since the Movants are parties to an unexpired lease and not a security agreement, the Debtor is not entitled to modify the terms of the Lease and force Movants to finance his purchase of the Vehicle. In re Calloway, 2010 WL 5597723 (Bankr.M.D.N.C. Oct.28, 2010) (<HOLDING>); In re Pittman, 289 B.R. 448, 450 Holdings: 0: holding debtor could include property because the bank accepted payments directly from the debtor and had previously allowed the debtor to cure default 1: holding that since property of the chapter 7 estate relates back to what was property of the bankruptcy estate when the chapter 13 was commenced and since the debtor still has the vehicle in his possession the present equity in the vehicle does not belong to the chapter 7 trustee or to unsecured creditors of this estate 2: holding that the debtor could not treat a lessor as a secured creditor by paying the present value of the purchase option price of the lease through her chapter 13 plan 3: holding that since motor vehicle contract between the debtor and fifth third bank was a lease and not a security agreement the debtor was required to treat fifth third banks claim in his chapter 13 plan as a lease and not as a secured debt which meant that the debtor could not obligate fifth third bank to finance the purchase of his vehicle 4: holding debtor could cure after the debtor had previously made payments to the bank


Input: efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.” Id. at 397, 66 S.Ct. 582 (quoting Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636 (1874)). The Supreme Court went on to note that “[t]his equitable doctrine is read into every federal statute of limitation.” Id. The relatively few courts that have addressed whether equitable tolling may be applied to 11 U.S.C. § 727(e)(1) are virtually unanimous in holding that it may not. E.g., Roost v. Reynolds (In re Reynolds), 189 B.R. 199 (Bankr.D.Or.1995); International State Bank v. Fresquez (In re Fresquez), 167 B.R. 973 (Bankr.D.N.M.1994); Malloy v. Frank (In re Frank), 146 B.R. 851 (Bankr.N.D.Okla.1992). See also Gordon v. Bulbin (In re Bulbin), 122 B.R. 161 (Bankr.D.C.1990) (<HOLDING>); Santos v. Mast Construction Company (In re Holdings: 0: holding that lack of knowledge of state court decision may provide basis for equitable tolling when prisoner acts diligently 1: holding that the filing deadline under title vii is not a jurisdictional prerequisite to suit in federal court but a requirement that like a statute of limitations is subject to waiver estoppel and equitable tolling 2: holding that the 120day filing period is subject to equitable tolling and addressing circumstances warranting equitable tolling 3: holding that plaintiffs lack of knowledge of the bankruptcy case doesnt affect the deadline in  727e1 for filing a  727d1 complaint but not expressly discussing equitable tolling 4: holding  727d1 complaint was untimely and noting the one year period for filing runs from discharge rather than discovery of the fraud but not addressing expressly equitable tolling


Input: victim of age discrimination. Four employees testified that they heard Collins confess that he overcharged the complaining customer, and Collins adduced scant evidence of discriminatory intent. In short, Collins would have us believe that there is some reasonable possibility that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court’s clear instructions to the contrary. In our view, such a theory is too implausible to support a finding of plain error. A contrary holding is not required by the two cases on which Collins principally relies. See Brooks v. Cook, 938 F.2d 1048 (9th Cir.1991) (<HOLDING>); Fisher v. City of Memphis, 234 F.3d at 318 Holdings: 0: recognizing absolute immunity to suits under 42 usc  1988 1: holding that the district court abused its discretion by telling the jury about the right of a prevailing plaintiff to attorney fees under 42 usc  1988 2: holding defendant may receive only the portion of his fees under 42 usc  1988 that he would not have paid but for the frivolous claim 3: holding that a contingentfee agreement should not act as a ceiling on the award of attorney fees under 42 usc  1988 4: holding that plaintiffs were prevailing parties under 42 usc section 1988 despite dismissal of the appeal as moot and vacation of the district court judgment


Input: Federal Rule of Civil Procedure 56(f) to deny Plaintiff's motion for partial summary judgment as to his Fourth Amendment seizure and false arrest claims against defendant Siler. See Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir.1999). 17 . The Officers also argue that because Plaintiff has not met his burden of proving damages on any of his claims that he is not entitled to summary judgment. The 'Court refuses to accept this argument as it is well settled that a Court may find that a Constitutional violation has occurred even in the absence of “actual compensable injury.” See Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir.1999). When this occurs, a Court simply awards a litigant nominal damages. See id.; see also Alexander v. Schenk, 118 F.Supp.2d 298, 303 (N.D.N.Y.2000) (<HOLDING>). 18 . Moreover, as pointed out in footnote 16, Holdings: 0: holding that even though the plaintiff failed to prove that he suffered a meaningful injury he was nevertheless entitled to nominal damages for the defendants violation of his first amendment rights 1: holding that when plaintiff has proven injury but has failed to prove the amount of damages the plaintiff is only entitled to nominal damages 2: holding that the first amendment right to free speech is absolute and an award of nominal damages is required even if the defendant fails to object to the nominal damages instruction 3: holding that the right to nominal damages was waived in a breach of duty action when plaintiff failed to raise the issue of nominal damages until after the verdict 4: holding that plaintiff was not entitled to a presumption of nominal damages when she had failed to request them


Input: Eastland v. TVA, 704 F.2d 613, 618 (11th Cir.), opinion modified and reh’g denied, 714 F.2d 1066 (1983), cert. denied sub nom. James v. TVA, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984)). As the Supreme Court stated in Teamsters, [s]tatistics showing racial or ethnic imbalance are probative ... [in employment discrimination cases] only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. 431 U.S. at 340 n. 20, 97 S.Ct. at 1857 n. 20; accord Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981) (<HOLDING>) (citing Wetzel v. Liberty Mut. Ins. Co., 508 Holdings: 0: holding that the burden of establishing prima facie case of discriminatory treatment may be satisfied by minimal showing 1: holding that direct evidence of discrimination is not required to prove discrimination in mixed motive cases under title vii 2: holding proof of racially discriminatory intent or purpose required to show equal protection violation 3: holding that when plaintiffs allege classwide racially discriminatory treatment in violation of title vii proof of discriminatory motive is essential although the burden may be met in some situations by presentation of statistical evidence that permits an inference of racial discrimination 4: recognizing that the test for intentional discrimination in suits under  1981 is the same as the formulation used in title vii discriminatory treatment cases


Input: was admissible. The likelihood that a different result would have been reached (no verdict of death) if a properly worded jury instruction had been given, is remote. Therefore, the harmless error analysis offered by the Warden is correct. Claims 25 and 26 are dismissed. NRS 34.770(2). Exhibit R5, pp. 979-81. Rogers appealed. See Exhibit P563. On May 13, 2002, the Nevada Supreme Court affirmed. Exhibit P564. The Nevada Supreme Court affirmed, on procedural grounds, the dismissal of Rogers’ claims regarding the torture, depravity of mind, or e in this case, providing for a depravity-of-mind aggravating circumstance, was unconstitutionally vague. See Valerio v. Crawford, 306 F.3d 742, 747 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 994, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003) (<HOLDING>); Deutscher v. Whitley, 884 F.2d 1152, 1162 Holdings: 0: holding unconstitutionally vague under the reasoning of godfrey an aggravatingcircumstances instruction directing jurors to determine whether the murder was especially heinous atrocious and cruel 1: holding factor b is not unconstitutionally vague 2: holding the same nevada aggravating circumstance unconstitutionally vague under godfrey 3: holding that oklahomas especially heinous atrocious or cruel aggravating circumstance was unconstitutionally vague 4: holding that an aggravating circumstance in the georgia death penalty statute was unconstitutionally vague


Input: Benavidez test because dismissing his time-barred claims will not simply postpone the inevitable filing of a new suit. Bustos does not claim the bankruptcy court abused its discretion in failing to extend the statute of limitations, nor does he seek the “equitable” remedy the majority provides. Rather, Bustos only claims that he satisfies the Benavidez test. As noted above, he does not. Bustos elected to intervene on limited grounds. Bustos did not seek an extension of the statute of limitations to assert his own claims, nor did he seek to be substituted for OneCap before its dismissal. It is not the province of this Court, at this stage, to introduce a remedy that in hindsight appears better for the appellant as a matter of equity. See, e.g., In Re Bernal, 207 F.3d 595 (9th Cir.2000) (<HOLDING>); see also, F.D.I.C. v. Deglau, 207 F.3d 153, Holdings: 0: holding that the fourth amendment remedy sought is suppression 1: holding that the remedy in a prison conditions case must remedy actual injuries that have been identified by the court and suffered by the plaintiffs 2: holding that where noteholder improperly sought intervention after default where the proper remedy was substitution pursuant to fed r bankrp 7025 court had no remedy for the noteholder 3: holding that retroactive award of benefits proper remedy where district court made finding that claimant was disabled 4: holding that rendition is remedy for no evidence


Input: has one year from that date to file a motion. In this case, this means that Dorsey had one year from October 7, 1996, the date on which the Supreme Court denied certiora-ri, in which to file his 2255 motion. Dorsey deposited his 2255 motion in the prison mailbox on October 7, 1997, but the Clerk of this Court did not receive the motion until one week later. The issue therefore remains whether Dorsey timely filed by depositing his 2255 motion in the prison mailbox on October 7,1997. II. The “Mailbox Rule” under § 2255 Dorsey cites to two cases for the proposition that the date a prisoner deposits papers in the prison mailbox should constitute the date of filing, the so-called “mailbox rule.” See Houston v. Lack, 487 U.S. 266, 270-76, 108 S.Ct. 2379, 2381-85, 101 L.Ed.2d 245 (1988) (<HOLDING>); Lewis v. Richmond City Police Dep’t, 947 F.2d Holdings: 0: holding that a pro se prisoners notice of appeal is considered filed upon delivery to prison authorities for mailing to the court 1: holding that prisoners notice of appeal deemed filed on date he delivered it to prison officials for mailing to court 2: holding that pro se prisoners 28 usc  2254 application deemed filed for limitation purposes when deposited with prison officials for mailing 3: holding that prisoners notice of appeal is deemed filed on date he delivered it to prison officials for mailing to court 4: holding that a pro se prisoners notice of appeal of 2254 motion was filed for purposes of federal rules of appellate procedure 3a and 4a1 when prisoner delivered papers to prison authorities


Input: not be sufficient, but cumulatively such actions may arise to adverse action for purposes of supporting a retaliation claim. For example, in Sanford v. Main Street Baptist Church Manor, Inc,, the Sixth Circuit recognized that although some of the incidents might not rise to the level of adverse action, “the incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge.” 327 Fed.Appx. 587, 599 (6th Cir. 2009); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (finding combination of being assigned absent students, temporary paycheck reduction, and failure to notify of curriculum claim cumulatively amount to “material adverse action”); Alvarado v. Fed. Express Corp., 384 Fed.Appx. 585, 589 (9th Cir. 2010) (<HOLDING>); Shannon v. BellSouth Telecomm., Inc., 292 Holdings: 0: holding that change of schedule video surveillance and disciplinary warnings were not material adverse actions sufficient to sustain retaliation claim 1: holding that denial of transfer request from a morning to a night shift was not adverse employment action because difference in working hours alone is not sufficient under title vii 2: holding delayed paychecks denial of personal time criticism of work performance and shift change were adverse actions 3: holding that a negative criticism or performance evaluation unaccompanied by a materially adverse change in the terms or conditions of employment does not constitute adverse employment action 4: holding that counseling sessions and written criticisms of employees work performance did not fall within the types of materially adverse employment actions


Input: court abused its discretion in applying the New Jersey Court Rules instead of adopting the involuntary loan theory recognized in A-S Dev., Inc. v. W.R. Grace Land Corp., 537 F.Supp. 549 (D.N.J.1982), aff'd, 707 F.2d 1388 (3d Cir.1983) (table). Liberty argues that under this theory, the district court should have applied the interest rate Ford would have charged Liberty for late payments or loans during the same period. See br. at 41. In arguing that the involuntary loan theory is “particularly appropriate” since Liberty “partially underwrote Ford’s coverage of its manufacturing defects,” id. at 41, 43, Liberty ignores the fact that A-S Development applied the involuntary loan theory as an element of damages and not as a measure of prejudgment interest. See A-S Dev., 537 F.Supp. at 559 (<HOLDING>). Liberty points to nothing requiring the Holdings: 0: holding that when plaintiff has proven injury but has failed to prove the amount of damages the plaintiff is only entitled to nominal damages 1: holding that plaintiff is entitled to damages in an amount to be calculated on the involuntary loan theory 2: holding that where parties to an oral loan agreed that the loan would be repaid on demand the statute of limitations did not begin to run until the date plaintiff demanded repayment of the loan 3: holding that damages were not available to a plaintiff who challenged an ordinance under a due process theory because the plaintiff had not sought a permit and therefore any claim for damages was purely speculative 4: holding that any sentence that is properly calculated under the guidelines is entitled to a rebuttable presumption of reasonableness


Input: v. Burdine, 450 U.S. 248, 252-253 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 477 U.S. 792, 801-06, 93 S.Ct. 1817, 1823-26, 36 L.Ed.2d 668 (1973). In order to establish a prima facie case of gender discrimination, plaintiff must show that (1) he is a member of a protected class, (2) he was subjected to an adverse job action, (3) his employer treated similarly situated employees not within the protected class more favorably, and (4) he was qualified to do his job. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). It is undisputed that plaintiff is a member of a protected class, was subject to an adverse job action, and was qualified for his position. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1360 (11th Cir.l999)(<HOLDING>). However, defendant argues that plaintiff Holdings: 0: holding qualification presumed where plaintiff previously held the position 1: holding that a jury is presumed to heed the district courts instruction to disregard the fact that the defendants were held in contempt and admonished before the jury 2: holding that collateral estoppel is not applicable to finding against plaintiff on merits where court also held that plaintiff lacked standing 3: holding that a jury is presumed to follow the trial courts instructions 4: holding that a jury is presumed to follow a judges instructions


Input: an action in equity, tried by the judge alone, ... this Court has jurisdiction to find facts in accordance with its views of the preponderance of the evidence.” Stackhouse v. Cook, 271 S.C. 518, 521, 248 S.E.2d 482, 484 (1978). LAW/ANALYSIS I. Express Trust Settlemeyer argues the circuit court erred by denying relief on his claim of an express trust. We disagree. The statute of frauds r Settlemeyer relief on his claim of an express trust. The remaining issues are affirmed pursuant to Rule 220, SCACR and the following authorities: As to Issue II: Smith v. South Carolina Ret. Sys., 336 S.C. 505, 529, 520 S.E.2d 339, 352 (Ct.App.1999) (“In general, a constructive trust may be imposed when a party obtains a benefit ‘which does not equitably belong to him a , 249, 489 S.E.2d 472, 476 (1997) (<HOLDING>); see also id. at 250, 489 S.E.2d at 476 Holdings: 0: recognizing duty of parent to control conduct of child 1: recognizing that third party may not recover contribution against parent where child has no cause of action against parent for negligent supervision 2: recognizing that a foster parent may attain the status of psychological parent when the relationship is not temporary in duration and exists with the consent and encouragement of a childs legal parent or guardian 3: holding when real estate is conveyed to a child and consideration is paid by the parent the presumption is that the purchase was a gift to the child and thus no resulting trust arises 4: holding when real estate is conveyed to a child and consideration is paid by the parent the parent has the burden of proving a gift was not intended


Input: tacitly approved the policy. Accordingly, I will allow the action to proceed against Stanley in his individual capacity. 4. Official Capacity Suits Barrett has sued the defendants in their official capacities. It is well-settled that the Eleventh Amendment bars suits against state entities and state agents working in their official capacities unless the state has expressly waived immunity, which has not been done by New Hampshire for actions brought under § 1983. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (absent waiver, neither a State nor agencies acting under its control may be subject to suit in federal court); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 5.Ct. 2304, 105 L.Ed.2d 45 (1989) (<HOLDING>). Official capacity suits against officers of Holdings: 0: holding that state and its officers sued in their official capacity for damages are not persons suable under  1983 1: holding that states and state officials acting in their official capacity are not persons under  1983 2: holding that under authority of will v michigan dept of state police 491 us 58 71 109 sct 2304 105 led2d 45 1989 neither the state nor state public service commission officials acting in their official capacities are persons subject to suit under  1983 3: holding that neither a state nor its officials acting in their official capacities are persons under  1983 4: holding that state employees acting in their official capacities are insulated from liability for money damages


Input: was reasonable, it believes that plaintiffs have met the Tenth Circuit’s modified interpretation of the “likelihood of success” requirement. The court believes that plaintiffs have successfully shown “questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues fair ground for litigation and deserving of more deliberate investigation.” See Buca, 18 F.Supp.2d at 1201 (citing City of Chanule, 754 F.2d 310 and Otero Sav. & Loan Ass’n, 665 F.2d 275). Moreover, the court believes that if plaintiffs ultimately prevail on a theory of promissory estoppel, the covenant would be enforceable to the extent that it protects any legitimate business interest beyond mere competition. See Eastern Distrib. Co., Inc. v. Flynn, 222 Kan. 666, 567 P.2d 1371 (1977) (<HOLDING>). The court concludes from the record before it Holdings: 0: holding that the restraint of a covenant not to compete must be reasonable under the facts and circumstances of the particular case and that only a legitimate business interest may be protected by the covenant 1: holding employment agreement consisting entirely of a covenant not to compete unenforceable because the covenant must be supported by valuable consideration 2: holding that michigan courts would not enforce a covenant not to compete which violates mcla 445761 even though the covenant would have been enforceable in missouri where the contract was executed 3: holding that a covenant not to compete for two years was enforceable 4: holding that in the employment context cause of action seeking tort remedies for breach of implied covenant is not permitted recovery for breach of this covenant is limited to contract remedies


Input: Id. at 1413 (internal quotation marks omitted). We held that the district court erred in admitting the evidence because “the prosecutor made no effort to explain a probative purpose or connection of the earlier conduct in Mississippi to this case” and, further, because "[s]uch a general assertion as a basis for introducing evidence of prior wrongs or conduct is not sufficient for purposes of Rules 403 or 404(b).” Id. at 1416. This case is readily distinguishable from Sullivan; here, the government explained the purposes for which the evidence was offered (e.g., knowledge and intent) and, as discussed in detail infra, the other-acts evidence offered is clearly relevant to the crimes charged. Cf. United States v. Maass, 153 F.3d 729, 1998 WL 458577, at *2 (10th Cir.1998) (unpublished) (<HOLDING>). 16 . To be sure, the assessment of the Holdings: 0: recognizing that in sullivan it was obvious that the mississippi cook evidence at issue was not related to the crime charged 1: holding that agencys construction of statute it was charged with enforcing was entitled to deference because it was reasonable in line with the statutes meaning and related to its expertise 2: holding it is fundamental error to convict a defendant of crime not charged and which is not a lesser included offense of the charged crime 3: holding that improper use of a summary chart was harmless because the evidence was merely cumulative and there was overwhelming evidence of the charged crime 4: holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted


Input: in the criminal proceedings despite the provision in rule 198.3 that her answers could “not be used against [her] in any other proceeding.” And it cannot be determined whether the trial court properly applied the law of privilege as to each individual request for which Ferguson asserted her Fifth Amendment privilege. Accordingly, I would hold that Ferguson has not presented us with a record that is adequate to support the issuance of a writ of mandamus. In sum, it cannot be concluded that the trial court acted in an arbitrary or unreasonable manner in overruling Ferguson’s assertion of the Fifth Amendment privilege and ordering her to. respond to Ber-nal’s requests for admissions. See, e.g., In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198-99 (Tex.App.-Texarkana 2006, orig. proceeding) (<HOLDING>); see also In re Le, 335 S.W.3d 808, 813-14 Holdings: 0: holding that district court had not abused its discretion in denying plaintiffs motion to amend complaint 1: holding that trial courts limited findings were insufficient to allow determination of whether trial court abused its discretion in denying defendants motion to dismiss his indictment on constitutional speedy trial grounds 2: holding that appellate court should overturn a district courts denial of a motion to amend a complaint only if the district court has abused its discretion 3: holding that the issue was more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial 4: holding that appellate court could not determine whether trial court abused its discretion in denying relators motion to compel the other party to produce documents because it could only speculate whether there was evidence to support the trial courts denial


Input: when he signed off from the ship after the end of the voyage, they complied with the Seafarer’s Agreement, as well as the applicable law (Docket # 42. Exs. A & O). We agree. The Seafarer’s Agreement unambiguously states that “if Seafarer becomes ill or injured, his/her entitlement to un earned wages shall extend only to the end of the voyage from which Seafarer signs off articles.” (Docket # 42, Ex. O). Plaintiffs have not contested that Co-plaintiff Plesha signed off on August of 2001 when the voyage concluded (Docket #42 SUF No. 34). It follows that Defendants’ payment of unearned wages until August of 2001 complied with the terms and conditions of the Seafarer’s Agreement signed by Co-plaintiff Plesha. As such, Plaintiffs’ claim on this respect must fail. Blainey, 990 F.2d at 891-92 (<HOLDING>). Accordingly, Defendants’ motion for summary Holdings: 0: holding that absent a law or collective bargaining agreement a municipal employee is an employee atwill 1: holding that where the statutory scheme is clear the inquiry should end 2: holding that an arbitrators interpretation of the scope of the issue submitted to him is entitled to the same deference accorded his interpretation of the collective bargaining agreement 3: holding that order reducing the notice of a claim of lien was not interim in the sense of being an intermediate step toward a further end rather it is an end in itself for its very purpose is to clarify the parties rights in the interim period pending a final decision on the merits 4: holding that absent a collective bargaining agreement which extends the employment period past the end of a particular voyage a seaman is entitled to unearned wages until the end of the voyage


Input: Court. Rather, the requirement that the alleged de facto parent live with the child for not less than two years is contained within the American Law Institute’s standards. See Am. Law Inst., supra, § 2.03, at 107-08, cmt. (c) at 119. Our Supreme Court explicitly recognized that the American Law Institute’s standards for de facto parentage were slightly different from the ones adopted in L.B., and the court did not incorporate any particular time prerequisite into its test. L.B., 155 Wn.2d at 706 n.24. 10 Johnston’s claim that such a result violates the biological parent’s constitutional rights has already been debunked. Our Supreme Court explicitly held that the multipart de facto parentage test adequately protects a biological parent’s constitutional rights. L.B., 155 Wn.2d at 710-12 (<HOLDING>). Johnston also contends that Franklin cannot Holdings: 0: recognizing that a foster parent may attain the status of psychological parent when the relationship is not temporary in duration and exists with the consent and encouragement of a childs legal parent or guardian 1: holding that de facto type a status was achieved where the only violation of the statute was the failure to file the ordinance with the county clerk 2: holding that a de facto parents rights do not infringe on the fundamental liberty interests of the other legal parent in a family unit because de facto status can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family 3: holding that 16 years justifies de facto status 4: holding that although samesex partner may have been able to prove her status as a de facto parent such status was not sufficient to establish parental rights to custody and visitation over the objection of the biological mother


Input: of remand — a time that may or may not present exigencies permitting an exception to disqualification under Rule 3.7. For the reasons set forth above, we reverse and remand for further proceedings consistent with this opinion. So ordered. 1 . Francis Wagner died on April 14, 1999. 2 . Mr. Wagner sued for loss of consortium. 3 . On March 8, 2001, this court affirmed the dismissal against Dr. Kobrine but reversed the judgment in favor of Georgetown, remanding with instructions that Mrs. Wagner’s lack of informed consent claim could proceed against the hospital. Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546 (D.C.2001). 4 .See Wagner, 768 A.2d at 564-65. 5 . Actually, the court inadvertently disqualified defendants’ counsel instead of Camenisch. I 673 S.W.2d 860, 864-65 (Tenn.1983) (<HOLDING>); MALLEN & SMITH, LEGAL MALPRACTICE, § 22.12, Holdings: 0: holding that district court did not abuse its discretion in determining that motion to set aside default made at least seven months after defendant learned of entry of default was not made within a reasonable time 1: holding bondholders injured at time of default not when lawsuit concluded against grantors 2: holding that the point of accrual is better linked to a time at which the indemnitee is injured not the time at which the original plaintiff was injured 3: holding that risk must be measured at the time the lawsuit is filed 4: holding that trial court must make entry of default prior to entry of default judgment and court may not make entry of default when there is no default in law or in fact


Input: opportunity to correct the defect or upgrade the piping for the culvert that was growing increasingly susceptible to flooding; and that the City did not hire Screws or anyone else to correct the defect or upgrade and maintain the piping. I believe the testimony of Screws and Underwood on this issue constituted substantial- evidence, presented by experts, demonstrating that the City was derelict in responding to a known defective condition of the culvert. I am concerned, as well, that the courts have encouraged the City to continue ignoring known problems with the piping for the culvert and the drainage system; The reason Screws was unable to provide more evidence of causation is because the City never hired him to do the necessary Work to alleviate the flooding. If the a.Civ.App.2009) (<HOLDING>); cf. Royal Auto., Inc. v. City of Vestavia Holdings: 0: holding that the trial courts written order was not the entry of a sentence sufficient to support a determination that a judgment of conviction was entered 1: holding that because the trial court properly entered the summary judgment on the longs negligentmaintenance claim the trial courts disposal of the longs nuisance and trespass claims was also proper 2: holding that a default judgment was not void because the bankruptcy court that entered the judgment had proper jurisdiction over the party seeking relief 3: holding that when the trial court proceeded to consider affidavits submitted with motion to reconsider summary judgment the affidavits were properly before the appellate court for purposes of reviewing the propriety of the trial courts grant of summary judgment 4: holding that the trial court erred when it entered summary judgment in favor of the health care provider


Input: certificates of compliance and deeds for the lots to Vicente and Bonifacio. These government actions constituted a taking of Cabrera’s property. The trial court correctly awarded public land to Cabrera as compensation for the taking of 24,927 m2 of land comprising Lots 303 and 304. This award is consistent with Commonwealth constitutional and statutory law expressing a policy of favoring compensation in the form of public land, as opposed to monetary damages, where the government takes private property. Based on the analysis above, we AFFIRM the decision of the trial court. 3 There are actually two appellees in this case: Joaquin C. Cabrera, administrator of the estate of Antonio M. Cabrera, and Antonio’s widow, Isabel Cabrera. The trial court held that the A 444, 445 n.3 (1990) (<HOLDING>). 11 Apatang v. Mundo, 4 N.M.I. 90, 92 (1994). Holdings: 0: holding it is a question of fact 1: holding that although trial courts oral opinion may be used as a reference in the interpretation of its written findings of fact it is not a finding of fact 2: holding that conclusion as to ownership of land is a legal question where parties do not dispute trial courts findings of fact 3: holding because defendant does not argue in his brief that these findings of fact are not supported by    evidence in the record this court is bound by the trial courts findings of fact 4: holding that it is not an appellate courts function to make findings of fact


Input: the record and orally agreed to because the hearing was held “at a hotel ... where [they were] without the usual secretarial support available, that is [they had] no word processors. [They had] no typists.” Id. Immediately before asking for the plaintiff’s oral acceptance of the settlement agreement’s terms, the Administrative Judge stated, “This settlement agreement will take effect on October 26, 1994.” Id. at 5. The hearing was held on October 26, 1994. Such a clear statement that the settlement agreement takes effect on the day of the hearing belies an interpretation that a settlement was still days away. After the Administrative Judge asked her if she accepted, the plaintiff answered, “I do accept.” Id. See Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir.1981) (<HOLDING>). Given the express language of the settlement Holdings: 0: holding that absent a factual basis rendering it invalid an oral agreement to settle a title vii claim is enforceable against a plaintiff 1: holding that relief granted under title vii is against the employer not individual employees whose actions constituted a violation of title vii emphasis in original 2: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only  with the existence of the alleged oral contract 3: holding that an arbitration agreement that was invalid due to unconscionability was not enforceable 4: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii


Input: or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements. 21 C.F.R. § 808.1(d). This regulation makes clear, the Mitchells contend, that common law causes of action survive preemption unless the FDA has established “specific counterpart regulations” or “other specific requirements” for the medical device in question. They submit that, because no such “regulations” or “requirements” exist with respect to Zyderm, none of their common law causes of action are preempted. In response, Collagen does not challenge the validity of the FDA regulation. Cf. Lohr, 56 F.3d at 1343-45 (<HOLDING>). Rather, it contends that the detailed Holdings: 0: holding regulations entitled to chevron deference 1: holding that an agencys interpretation of its own regulations is entitled to deference 2: holding that this portion of 21 cfr  8081d is entitled to deference 3: holding that agency interpretation which is reasonable is entitled to deference 4: holding that sec interpretation of federal securities law is entitled to deference if it is reasonable


Input: 1328(a), the chapter 13 dischargeability provision. See Johnson, 728 F.2d at 166 n. 4; see also Pub.L. No. 101-650, 104 Stat. 5089 (1990) (adding § 523(a)(8) debts to those debts nondischargeable under § 1328(a)). 19 .This type of analysis also led some courts to draw a distinction between chapter 13 and chapter 7 debtors in determining whether a stay violation occurred since, at the time those cases were decided, student loan obligations were dischargeable under 11 U.S.C. § 1328(a). See, e.g., Parham, 56 B.R. at 533- 34 (contrasting Johnson, a chapter 7 case, to the chapter 13 case at bar to find that a debtor who develops a schedule of payments as part of a good faith effort will receive a discharge of that debt upon successful completion of the confirmed plan); Reese, 38 B.R. at 683 (<HOLDING>). 20 . In its analysis, the Billingsley court Holdings: 0: holding tort action accruing after original chapter 7 petition not part of estate when case converted to chapter 13 and then back to chapter 7 1: recognizing the requirement of  363 to obtain approval or consent in a chapter 13 case 2: holding that notwithstanding a debtors inability to obtain a chapter 13 discharge a debtor is nonetheless eligible to file a chapter 13 case 3: holding that a chapter 13 debtor should be able to obtain a copy of his transcript in light of the broader discharge provision of chapter 13 4: holding that there is no statutory authority in chapter 13 which grants a chapter 13 debtor independent standing to sue under the trustees  avoidance power


Input: as all require interpretation of the CBA and arise out of the same circumstances from which the duty of fair representation arises. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-13, 105 S.Ct. 1904, 1910-12, 85 L.Ed.2d 206 (1985) (state law claims preempted by federal labor law where evaluation of the state claim requires consideration of the terms of a collective bargaining agreement); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988) (“if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is preempted and federal labor-law principles ... must be employed to resolve the dispute”); May v. Shuttle, Inc., 129 F.3d 165, 180 (D.C.Cir.1997) (<HOLDING>); Allen v. United Transp. Union, 964 F.2d 818, Holdings: 0: holding the state law claims were not preempted 1: holding rla duty of fair representation claim preempts identical state law claims of fraud and deceit 2: holding that in the context of federal immigration law the amount of loss to the victim of fraud or deceit does not refer to an element of the fraud or deceit but rather refers to the particular circumstances in which an offender committed fraud or deceit 3: holding state law fraud and deceit claims to be preempted 4: holding that the plaintiffs state law claims are preempted by federal law


Input: any payment for a false dependent given directly to an individual preparer. It is clear that Barber had decision-making authority and exercised control over a significant criminal operation. Thus, we conclude that the. district court did not clearly err in applying the four-level role increase under § 3Bl.l(a). B. Loss Amount Calculation Barber also argues that the government should have been able to determine the actual loss amount based on all 434 tax returns that reported HSH income, rather than estimating from a sample of only 105. returns. In fraud eases like Barber’s, the guidelines provide for a 14-level increase to the defendant’s base offense level if the total loss from the offense is more than $400,000 but less than $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H); see id. cmt. n. 3(A) (<HOLDING>). A district court “need only make a reasonable Holdings: 0: holding the defendant responsible for the greater of the actual or intended loss 1: holding that proof of loss is not evidence of extent of loss and insured is not precluded from showing his damages were greater than shown in proof of loss 2: holding that an intended loss  cannot exceed the loss a defendant could have occasioned if his or her fraud had been entirely successful 3: holding that the district court must make findings on the record as to the basis for its conclusion about the amount of actual loss 4: holding plaintiff responsible for attorney error


Input: Andrade v. State, 246 S.W.3d 217, 224 n. 5 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). The public trial right extends to the jury selection phase, including voir dire. Presley v. Georgia, 558 U.S. 209, 212-13, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam); Steadman v. State, 360 S.W.3d 499, 510-11 (Tex.Crim.App.2012). In determining whether any portion of a trial was closed to the public, we look at “the totality of the evidence and determine whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate public attendance’....” Lilly v. State, 365 S.W.3d 321, 331 (Tex.Crim.App.2012) (quoting Presley, 558 U.S. at 215, 130 S.Ct. 721); see also Cameron v. State, 415 S.W.3d 404, 409-10 (Tex.App.-San Antonio 2013, pet. granted) (<HOLDING>). The Voir Dire Record The transcript of the Holdings: 0: holding the lilly analysis is not a sequential twostep process but rather one broad inquiry 1: holding that factual basis inquiry is one way of satisfying the constitutional requirement that a guilty plea be voluntary and intelligent but it is not mandated by due process 2: recognizing that the reviewing court is not rigidly confined to wildburs  twostep analysis in every case 3: holding that sauciers twostep sequence is not mandatory 4: holding that twostep sequence is no longer an inflexible requirement


Input: of Singh are inapposite. In the present case, unlike Singh, the defendant expressed his views of the veracity of the state’s witnesses during his direct examination. Thus, the defendant opened the door for cross-examination on the subject of the credibility of the state’s witnesses. See State v. Morascini, 62 Conn. App. 758, 766, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001). “As a general rule . . . if a party delves into a particular subject during examination, he is said to have ‘opened the door’ for further examination regarding that subject.” Id. Once that door was opened, the prosecutor had the right to inquire into the defendant’s statement and ask whether all the witnesses in the case were lying. Cf. State v. Burton, 258 Conn. 153, 169, 778 A.2d 955 (2001) (<HOLDING>). Therefore, in her cross-examination of the Holdings: 0: holding trial court free to evaluate credibility of witnesses 1: holding that material for witnesses need not be produced to defendant where the witnesses were not called as government witnesses at trial 2: holding that in light of defendants attack on credibility of states witnesses prosecutor did not commit misconduct during closing argument when he implied states witnesses were credible 3: holding a prosecutors comments indicating his personal belief in the states witnesses was a fair reply to defense counsels attack on the veracity of the states witnesses 4: holding that review by certiorari was available to remedy a trial court order that improperly struck two of the states witnesses as a sanction for the states failure to disclose the address of one of the witnesses in discovery


Input: Plaintiff, need not specifically reference the FMLA when requesting FMLA leave, she must put the University on notice that her request is for FMLA leave. The undersigned finds that Plaintiff did not request FMLA leave in her letter dated March 21,' 2011, but only suggested that she might need to take leave. The purpose .of the letter was to request an extension of her review which Plaintiff was previously advised could be denied. Based on the undisputed facts of the record, no FMLA violation has been demonstrated, and certainly, no willful or reckless violation of the FMLA is presented. As such, summary judgment should be granted on Count V as well using either of the dates that Plaintiff submits. III. RECOMMENDATION Based on the foregoing, the undersigned recommends t (11th Cir. 2013) (<HOLDING>). RESPECTFULLY SUBMITTED at Fort Lauderdale, Holdings: 0: holding that the failure to object to the magistrate judges report releases the court from its duty to independently review the motion 1: holding that under current eleventh circuit rule the failure to object limits the scope of our appellate review to plain error review of the magistrate judges factual findings  however failure to object to the magistrate judges legal conclusions does not preclude the party from challenging those conclusions on appeal 2: holding failure to timely object to magistrate judges recommendation waives appellate review of factual and legal questions 3: holding that under the firm waiver rule a party who fails to make a timely objection to the magistrate judges findings and recommendations waives appellate review of both factual and legal questions 4: holding that failure to object to magistrate judges recommendation waived issue on appeal


Input: it is relatively well-settled, despite some ambiguity in the statutory language, that an injury to Body Part X resulting in a functional impairment to Body Part Y will be classified according to X and not according to Y under the schedule. Our Circuit was the first to articulate this “situs of the injury” rule, in Long v. Director, OWCP, 767 F.2d 1578 (9th Cir.1985), which construed the Act to mandate recovery under § 908(c)(21) rather than under the schedule “for impairments to limbs caused by an accidental injury to a part of the body not specified in the schedule.” 767 F.2d at 1582. Since then, the First and Fifth Circuits have both followed Long, while no other circuit has taken a contravening approach. See Barker v. U.S. Dept. of Labor, 138 F.3d 431, 434-435 (1st Cir.1998) (<HOLDING>); Pool Co. v. Director, OWCP, 206 F.3d 543, 547 Holdings: 0: holding that to have standing a plaintiff must establish an injury in fact a casual connection between the injury and that the injury will be redressed by a favorable decision 1: holding that while the language of sec tion 908c  may admit of differing interpretations an injury to a body part not included in the schedule must be compensated as an unscheduled injury no matter that the petitioners symptoms extend beyond the injured area 2: holding that in order to establish standing a plaintiff must show 1 it has suffered an injury in fact  2 the injury is fairly traceable to the challenged action of the defendant and 3 it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision 3: holding that the fatal injury to a murder victim may be considered as satisfying the bodily injury component of the capital felony of kidnapping with bodily injury 4: holding that use of tangible property must be proximate cause of injury and that property does not cause injury if it does no more than furnish the condition that makes the injury possible


Input: where there has been a complete denial of counsel or where the circumstances are such that any competent attorney would be unable to provide effective assistance, a defendant need not demonstrate that he was prejudiced by counsel’s actions. Id. at 659-62, 104 S.Ct. at 2047-48. The presumed prejudice exception to Strickland has been found to apply where there was an actual or constructive denial of counsel, the state interfered with counsel’s assistance, or counsel had an actual conflict of interest. See [Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ]. Reaves, 923 A.2d at 1128. See also Commonwealth v. Puksar, 951 A.2d 267, 292-93 (Pa.2008). The U.S. Supreme Court, however, has emphasized that such instances are rare. See Nixon, 543 U.S. at 190, 125 S.Ct. 551 (<HOLDING>). Furthermore, this Court has stressed that Holdings: 0: holding that a showing of actual prejudice was required where the defendant claimed that counsel was ineffective for conceding guilt at the guilt phase of a capital trial 1: holding that counsels failure to investigate the defendants personal and psychiatric history constituted ineffective assistance during the penalty phase but not during the guilt phase 2: holding that prejudice was not shown where there was overwhelming evidence of guilt 3: holding that trial courts witness interrogation did not cause defendant prejudice when there was already overwhelming evidence showing defendants guilt 4: holding defendant waived right to challenge incourt identification when he admitted guilt at punishment phase of trial


Input: factual inferences in favor of the plaintiff.” Id. The moving party must establish that no material issue of fact remains to be resolved and that the party is entitled to judgment as a matter of law. See, e.g., National Car Rental Sys., Inc. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 428 (8th Cir.1993); In re Mobile Tool Int’l, Inc., 306 B.R. 778, 779-80 (Bankr.D.Del. 2004). B. Count I — Preferences In Count I of its Complaint, Vision seeks to avoid, as preferential transfers, the payments and other concessions it made pursuant to the First Agreement. Because the First Agreement was assumed by Vision, however, it may not recover those payments as preferences. See, e.g., Kimmelman v. The Port Auth. of N.Y. and N.J. (In re Kiwi Int’l Air Lines, Inc.), 344 F.3d 311, 323 (3d Cir.2003) (<HOLDING>). Because Count V of the Complaint (which Holdings: 0: holding that notice provided by plaintiff that alleged she  was injured  as result of fall was insufficient as matter of law and precluded invocation of savings clause 1: holding that where an action is brought by the debtors at the initial proceeding the appeal of that action is not a continuing proceeding against the debtors 2: holding a bankruptcy trustees rule 60b6 motion timely despite a delay of eighteen months from the date of the court order and fifteen months from the denial of the trustees written request for a refund government found to have been put on notice of intention to reopen settlement by earlier actions of trustee 3: holding that the trustees preference actions against each of the defendants was precluded as a matter of law by the debtors earlier assumption of its agreements with them  4: holding an internal error that caused the movant to receive the trustees notice of motion twentysix days after the court heard the trustees motion  may have constituted excusable neglect had the movant made a prompt motion for reconsideration and pointing out it is the movants actions after he became aware of the existence of the trustees motion  that reaches the level of willfulness


Input: However, it ruled Dougherty’s testimony about appellant’s alleged hearsay statements was inadmissible because the evidence failed to establish the reliability of those statements. Appellant contends sufficient corroborating evidence established the reliability of the proffered statements and, thus, that the trial court erred in excluding them. We hold the trial court erred as a matter of law in ruling that the testimony of the hearsay declarant—appellant—was unavailable. Because appellant had complete control over his own availability as a witness, we hold that he failed as a matter of law to prove his testimony was unavailable, and we conclude the trial court’s refusal to admit the statements was not error. See Perry v. Commonwealth, 280 Va. 572, 581-82, 701 S.E.2d 431, 436-37 (2010) (<HOLDING>). “ ‘[T]he sufficiency of the proof to Holdings: 0: holding that appellate court in affirming trial courts decision may rely in part on a ground not presented to trial court 1: holding that despite a trial courts failure to make specific factual findings an appellate court is free to affirm on any grounds for which there is sufficient record to permit conclusions of law 2: holding an appellate court is not limited to the grounds offered by the trial court in support of its decision and may affirm on any ground on which additional factual findings are not required 3: holding that an appellate court may affirm a grant of summary judgment on any ground appearing in the record even if the circuit court did not rely on it 4: holding that an appellate court may affirm the result reached by a district court on alternative grounds


Input: not contend that the interest would have been included in Thomas’s bankruptcy estate on another basis. 4 . It is undisputed that Sherry did not obtain an equitable interest in the Property solely by virtue of marriage. Miller v. Fulton Cnty., 258 Ga. 882, 375 S.E.2d 864, 865 (1989) (‘‘[N]o property rights are created in the assets of the marriage while the parties are still married.”). 5 . Likewise, the third-party testimony that the McFarlands presented at trial supports their position that they believed the property was jointly owned but not that there was an agreement to create a 'purchase money resulting trust. 6 . The presumption of a gift between spouses did not apply when the Property was purchased in 1968. See Woodward v. Woodward, 245 Ga. 550, 266 S.E.2d 170, 171-72 (1980) (<HOLDING>). But the code section relied on in Woodward Holdings: 0: holding that under minnesota law refinancing and consolidation of purchase money loans did not destroy their purchase money character for bankruptcy lien avoidance purposes 1: holding that the statute of frauds applies to a sellers wife holding only a dower interest in the property so the wife must sign the purchase agreement as well as the seller husband 2: holding that there was no presumption of a gift where the wifes money was used to make the purchase but title was placed in the name of the husband and finding the facts sufficient to establish a purchase money resulting trust in favor of the wife 3: holding in case where stock was purchased but held in suspense account pending repayment of loan from seller that the fact that the money to purchase the now worthless stock was borrowed does not mean that money was not lost 4: holding that a purchase money security in jewelry was not lost when the perfected purchase money security interest was consolidated with a subsequent retail installment contract


Input: or cannot insist that those practices are mandated. Neither the Supreme Court nor this court has ever adopted a rule limiting protection to practices that are compelled by a litigant’s religion. We decline to adopt such a rule today. C. The Impingement Threshold The fact that the First Amendment does not protect only compelled religious conduct does not mean that the Constitution forbids all constraints on religiously motivated conduct, however trivial. Instead, the First Amendment is implicated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious practice. Our cases make clear that this threshold showing must be made before the First Amendment is implicated. See Branch Ministries v. Rossotti, 211 F.3d 137, 142 (D.C.Cir.2000) (<HOLDING>). This requirement accords with the Supreme Holdings: 0: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under  1983 1: holding that the constitutional right to crossexamination must be satisfied first before the court can exercise its discretion in limiting the scope or extent of crossexamination 2: holding that when determining the proper amount for a burdened property that was purchased in a package only two methods suggest themselves as arguably appropriate 1 a determination of the fair market value of the  property burdened by the right of first refusal or 2 a determination of the portion of the  purchase price which based on the percentage of the fair market value of the entire package represented by the  property burdened by the right of first refusal should be allocated to the  property burdened by the right of first refusal 3: holding that to sustain its claim under either the constitution or rfra a plaintiff must first establish that its free exercise right has been substantially burdened 4: holding that possession of marijuana is not protected by the free exercise clause of the first amendment


Input: L.Ed. 1356 (1953). Plaintiff argues the Supreme Court in Haddle v. Garrison, 525 U.S. 121, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998), implicitly considered and rejected the intracorpo-rate conspiracy doctrine’s application to Section 1985 by allowing an employee to bring a Section 1985(2) action against his employer and its officers. Plaintiff misconstrues the scope and holding of Haddle. Although Haddle involved a Section 1985(2) action alleging conspiracy among an employer and its officers, the intracor-porate conspiracy issue was not considered. The Supreme Court made clear its review was “confined to one question: Can petitioner state a claim for damages by alleging that a conspiracy. proscribed by § 1985( ction 1985 claims. See Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972) (<HOLDING>). The Circuits are divided over whether Holdings: 0: holding that evidence contrary to an administrators decision does not make the decision arbitrary and capricious so long as a reasonable basis appears for the decision 1: holding that when two executives of the same firm make a decision to discriminate in furtherance of the purposes of the business this decision cannot be called a conspiracy for purposes of  1985 2: holding that the conspiracy theory of personal jurisdiction requires that the outofstate coconspirator was or should have been aware of the acts performed in the forum state in furtherance of the conspiracy 3: holding that it was immaterial for conflict of interest purposes whether one attorney or two attorneys in the same firm represented the witness and the defendant 4: holding that in a conspiracy case venue lies where the conspiracy agreement was formed or in any jurisdiction where an overt act in furtherance of the conspiracy was committed by any of the conspirators


Input: indicating that he was Chairman of the Board. (Exh. E, F to PI. Resp.) FHSBC provides a declaration by Benjamin Dessange, the managing director of Franklin Holding and Vice President of FHSBC, averring that Anthonioz has had no affiliation with FHSBC since March, 1998, long before process was served in March, 2000. (Decl. of Benjamin Des-sange, Attach to Def. Mot. to Dismiss.) Furthermore, FHSBC argues that the report from the New York Department of State was not current as of the time of service and that the Dun & Bradstreet report was inaccurate. This court concludes that FHSBC was not properly served. Salon has the burden of establishing that it properly effectuated service. See Slates v. Int’l House of Pancakes, Inc. 90 Ill.App.3d 716, 46 Ill.Dec. 17, 413 N.E.2d 457, 463 (1980) (<HOLDING>) Though self-serving, Dessange’s declaration Holdings: 0: holding that the burden is on the plaintiff 1: holding that the plaintiff had the burden of establishing that he properly served an agent of the defendant 2: holding that in condemnation proceedings the landowner has the burden of establishing the value of the property 3: holding defendant bears burden of establishing affirmative defense of official immunity 4: recognizing that the defendant bears the burden of establishing that plain error was prejudicial


Input: probable cause can exist even without those particular field tests. See Soest v. Dir. of Revenue, 62 S.W.3d 619, 621 (Mo.App. E.D.2001) (“Even if the tests requiring walking and standing are disregarded, the [failed] nystagmus test ... provided further grounds for the officer’s reasonable belief.”); Hawkins v. Dir. of Revenue, 7 S.W.3d 549, 552 (Mo.App. E.D.1999) (“[T]he weight of the evidence shows the officer had reasonable grounds to believe Driver was driving while intoxicated, even though no field sobriety tests were conducted due to Driver’s refusal.... [T]he officer’s observations and Driver’s own statements provided reasonable grounds to support the officer’s belief that Driver had been driving while intoxicated.”); Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App. W.D.1998) (<HOLDING>). Even without the walk-and-turn and Holdings: 0: holding that eyewitness accounts and an officers observations established probable cause 1: holding field sobriety tests are not mandatory as they merely are an aide to an officers other observations in determining whether he has probable cause for an arrest 2: holding that probable cause is a complete defense to an action for false arrest 3: holding that the courts determination of whether an officer had probable cause for an arrest is an independent and objective determination and an officers own subjective reason for the arrest is irrelevant 4: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same


Input: to the district court at sentencing that he did not have the Montgomerys' books and records either. 8 . The $137,990 figure factored in solely Montgomery’s Contracting’s cost of goods sold. The $68,995 figure factored in both the cost of goods sold and the Montgomerys’ purportedly deductible charitable contributions. At sentencing, Mr. Montgomery's counsel conceded that accounting for the contributions was "problematic” and therefore focused the district court's attention on the $137,990 figure. Because the Montgomerys failed to brief whether the district court should have accounted for any deductible charitable contributions that the Montgomeiys could have claimed, they have waived this issue. See Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 474 n. 21 (5th Cir.2006) (<HOLDING>). 9 . Compare United States v. Hoskins, 654 Holdings: 0: holding that party waived argument by failing to brief it on appeal 1: holding that the defendant waived an argument by failing to raise it in his appellants brief 2: holding that the defendant waived argument on appeal by failing to develop a cogent argument 3: holding party failing to adequately brief complaint waived issue on appeal 4: holding that appellant waived argument by failing to raise argument before workers compensation board and failing to list or brief issue in administrative appeal to superior court


Input: degrees of flexibility depending upon the specific linkage to company plans and objectives. If flexibility is not explicitly indicated in a policy, it is required that the policy be executed as defined." But the Disclaimer is prominently set forth in a separate text box, in bold font, at the beginning of Policy 210, which is the section of the Manual dealing with "Addressing Misconduct and Improving Performance." This placement is such that "a reasonable employee ought to notice it." See id. at 1112. 1 44 Unlike the Homilton disclaimer, the Disclaimer in this case does not specifically state that employment at NCR is "at-will," nor does it define the voluntary nature of the employment relationship. See id.; accord Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1003-04 (Utah 1991) (<HOLDING>). While both NCR and the trial court concluded Holdings: 0: holding that employee handbook did not give rise to implied contract where it stated that it was not a contract and that employment was terminable at will 1: holding that a disclaimer setting forth policies for general guidance only which stated that it did not create a binding contract and that the employee could be terminated without notice and at will at any time for any reason unambiguously provided that employment was atwill 2: recognizing that wrongful or malicious interference with atwill employment contract may give rise to a tortious interference claim the fact that the employment is at the will of the employer and the employee does not make it one at the will of third parties 3: holding that without a provision stating that an employee can be terminated only for cause the atwill doctrine permitted termination in the absence of any reason at all summary judgment and directed verdict in companion cases affirmed 4: holding that employee guidebook did not create an implied employment contract as it contained a clearlystated boldfaced disclaimer and statement that employment was atwill


Input: c. 93A). Plaintiffs’ final amended complaint, which they filed with leave of court on April 2, 2004, does not, however, contain a Chapter 93A claim, nor did it incorporate by reference any earlier complaint or claims. Defendant persuasively argues that the Chapter 93A claim has, therefore, been waived. Even if the Chapter 93A claim were properly before the Court, however, it would fail because plaintiffs have alleged no facts to support the contention that Banknorth committed unfair or deceptive trade practices other than those relating to their fraud claim and to Banknorth’s alleged breach of the RCA. As explained above, summary judgment will be entered with respect to those claims for the reasons set forth. See, e.g., Macoviak v. Chase, 40 Mass.App.Ct. 755, 667 N.E.2d 900, 904 (1996) (<HOLDING>); Wasylow v. dock, Inc., 975 F.Supp. 370, 382 Holdings: 0: holding that summary judgment on chapter 93a claim is appropriate when summary judgment is granted on fraud claim and chapter 93a claim is solely based on the underlying claim for common law fraud 1: holding that where there was no evidence of the claimed underlying violation and where there were no unique arguments related to the chapter 93a claim defendant was entitled to summary judgment on plaintiffs chapter 93a claim 2: holding that where summary judgment is granted on the underlying tort claims a conspiracy claim must also fail 3: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed 4: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed


Input: and files for entire software products lines—each involving hundreds of thousands of different files.” Id. at 1140. C. Positions of the Parties Rimini and EFF contend that the statutory language “without permission” should not be read in a way that criminalizes violation of a website’s terms of use. As EFF puts it, “[n]either statute ... applies to bare violations of a website’s terms of use—such as when a computer user has permission and authorization to access and use the computer or data at issue, but simply accesses or uses the information in a manner the website owner does not like.” Oracle, on the other hand, urges us to read the state statutes as not requiring unauthorized access for a violation, which appears to be how the district court construed them. See id. at 1143-44 (<HOLDING>). D. Analysis We review the denial of Rimini’s Holdings: 0: holding that where by virtue of state action access is limited but remains reasonable there is no such denial of access as entitles the landowner to compensation 1: holding that in analyzing whether a limited public forum has been created we consider the nature of the property or means of communication the governments purpose in permitting whatever limited access it has allowed and the conditions of access eg whether permission is required 2: holding that a schools internal mail system was not a public forum because users needed a principals permission for access 3: holding that an individuals access to a service or website that requires an indication of assent to contractual terms before access to the service or website will be granted was sufficient evidence that the user clicked i accept  4: holding that riminis claim that they had permission from their clients to access oracles  website is irrelevant under the state statutes


Input: which the award of sanctions .under § 14-10-129.5 is based. See Colo.Rev.Stat. § 14-10-129.5(2)(b) (“the court, in the best interests of the child, may issue orders which may include ... [modifying the previous order to meet the best interests of the child ... [and] [ajwarding to the aggrieved party, where appropriate, actual expenses ... ”) (emphasis added). Under these circumstances, most courts hold that fees “inextricably intertwined with proceedings affecting the welfare of the child,” such as custody and visitation, should be deemed support. In re Peters, 133 B.R. at 295; see also Dellapa v. Vazquez (In re Vazquez), 92 B.R. 533, 535 (S.D.Fla.1988) (fees awarded in litigation over visitation, custody, contempt and child support nondischargeable); In re Farrell, 133 B.R. at 147-48 (<HOLDING>); In re Poe, 118 B.R. at 812 (fees incurred in Holdings: 0: holding that a debt for attorney fees incurred by an exspouse in a postjudgment divorce contempt proceeding was nondischargeable 1: holding that in a chapter 7 case postpetition interest on a nondischargeable tax claim is also nondischargeable 2: holding that a challenge to part b determinations in an order involving both part a and part b must begin in district court 3: holding that an outofwedlock childs pending claim for retroactive child support was nondischargeable in bankruptcy because a debt for child support arises upon the birth of the child and that the fact that no court had yet ordered the debtor to support the child does not take the debt outside the scope of 11 usc  523a5 4: holding nondischargeable fees imposed in part to punish debtor for disobeying court order in proceeding to compel return of child


Input: “personal” to some creditors or “general” as to all is relevant only “after a claim has been analyzed to determine whether it is properly assertable by the debtor or creditor, and not as a substitute for the analysis itself.” In re Seven Seas Petroleum, 522 F.3d at 588 (construing In re Schimmelpenninck, 183 F.3d 347 (5th Cir.1999) (emphasis added)). For instance, a claim that would ordinarily be brought by creditors nonetheless belongs to the debtor’s estate if it pursues property in which the debtor retains an equitable interest, see, e.g., In re MortgageAmerica Corp., 714 F.2d 1266, 1275 (5th Cir.1983) (construing a fraudulent transfer claim to belong to the debtor’s estate), or if the debtor itself could have brought the claim under applicable state law, see, e.g., id. at 1276-77 (<HOLDING>); In re S.I. Acquisition, Inc., 817 F.2d 1142, Holdings: 0: holding that where the entity was incorporated in texas and the shareholders reside in texas and the bankruptcy case is pending in texas texas law  not arizona law  should be applied 1: holding an alter ego action could be brought by the debtor corporation under texas law 2: holding that a fraudulent transfer claim against a corporate debtors control person belongs to the corporate debtor not to specific creditors 3: recognizing a cause of action under texas law for misappropriation 4: holding texas law permits a corporate debtor to bring a trust fund denuding action


Input: (1964). Thus, the State agencies return to their point, discussed above, that Congressional action is necessary to enforce the Takings Clause against the states. {45} We do not find the argument persuasive. It is Section 1 of the Fourteenth Amendment in conjunction with the “just compensation” remedy found in the Takings Clause that abrogates state sovereign immunity. Section 5 gives Congress the power to create remedies, if Congress decides any are necessary, to enforce the rights found in the Fourteenth Amendment, including those found in Section 1. An example of such legislation, protecting against the denial of due process is Title II of the Americans with Disabilities Act. 42 U.S.C. § 12101; see also Tennessee v. Lane, 541 U.S. 509, 533-34, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (<HOLDING>). The ADA provides the remedy under Section 5 Holdings: 0: holding that title ii of the ada is not applicable to the federal government 1: holding that title ii of the ada was a valid use of congress power under section 5 of the fourteenth amendment 2: holding that the retaliation provision of title vii is an adequate exercise of congress authority under section 5 of the fourteenth amendment 3: holding that congress may abrogate a states immunity pursuant to its enforcement power under  5 of the fourteenth amendment 4: holding that title ii does not apply to the states


Input: U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Thus, in the absence of an injury and with no “real and substantial” dispute, the court properly declined to entertain Count I upon removal. In its Dismissal Opinion, the district court compared this proceeding to the situation in Bowen v. First Family Financial Services, Inc., 233 F.3d 1331 (11th Cir.2000). In Bowen, the class action plaintiffs lacked standing to question whether arbitration agreements are generally unenforceable under the Truth-in-Lending Act. The Eleventh Circuit so ruled because “there [was] no allegation that First Family has invoked, or threatened to invoke, the arbitration agreement to compel the plaintiffs to submit any claim to arbitration.” Id. at 1339. This action is similar to Bo 02, 704 (S.D.N.Y.1999) (<HOLDING>). Notably, some courts have premised such Holdings: 0: holding that a dispute arising out of an insurance policy was not covered by the arbitration provision in the parties separate premium payment agreement because if the party had intended to subject this dispute to the arbitration provision it could easily clearly and unequivocally have done so either by including an arbitration provision in the insurance policy itself or by adding to the above arbitration provision 1: recognizing as nonjusticiable challenge to arbitration provision absent sufficient indications that it would be invoked 2: holding that an arbitration provision that waived class actions and thus required the consumer to pay a 125 fee to vindicate a 150 claim was substantively unconscionable but also holding that the waiver provision was severable from the remainder of the arbitration provision which would be enforced 3: holding that the trial court not the arbitrator must decide a challenge to an arbitration provision based on public policy 4: holding that  4 does not empower court to rewrite venue provisions of arbitration clause or to order arbitration within district absent contractual provision so indicating


Input: CURIAM: Mirza Azamali Baig and his wife, Yas-meen Baig, natives and citizens of Pakistan, petition for review of the decision of the Board of Immigration Appeals (BIA) dismissing their appeal from an immigration judge’s (IJ’s) order denying withholding of removal and relief under the Convention Against Torture (CAT). They argue that they are entitled to relief based on a showing of past persecution and a fear of future persecution on account of their political opinions. To the extent that the Baigs argue that they were entitled to asylum, we do not have jurisdiction to consider the issue because the couple did not submit an application for asylum before either the IJ or the BIA. See Omari v. Holder, 562 F.3d 314, 317 (5th Cir. 2009) (<HOLDING>). We generally have authority to review only Holdings: 0: holding that claims not presented to the ij and bia should be dismissed for failure to exhaust administrative remedies 1: holding that we lack jurisdiction to review a claim not brought before the bia even when the bia addresses it sua sponte 2: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte 3: holding that the petitioners failure to raise his ineffective assistance of counsel claim before the bia deprived the district court of jurisdiction to hear the issue 4: recognizing that failure to exhaust an issue before the bia strips us of jurisdiction