Input: defendant, it is a stretch to describe the jail mate's inquiries of the defendant as ‘government interrogation.' ”). In the present case, the government never asked Bender to embark on an open-ended fishing expedition in the D.C. Jail to collect incriminating evidence from any inmate he could hook. And as we discuss below, the government did not sanction such a mission implicitly. 13 . Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) (“[Kjnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.”). 14 . Cf. Ayers v. Hudson, 623 F.3d 301, 310 (6th Cir.2010) (<HOLDING>) (quoting United States v. Henry, 447 U.S. 264, Holdings: 0: holding that the sixth amendment is violated when the state obtains incriminating statements by knowingly circumventing the accuseds right to have counsel present in a confrontation between the accused and a state agent 1: holding defendants fifth amendment rights had been violated when his probation was revoked based on his failure to complete a sexual treatment program that required incriminating admissions 2: holding that the state intentionally created a situation likely to induce ayers to make incriminating statements without the assistance of counsel  in violation of his sixth amendment rights when it returned hutchinson a police informant to ayers jail pod and he thereafter deliberately elicited incriminating admissions from ayers 3: holding that sixth amendment not violated when defendant makes incriminating statements after indictment to persons who are not related to the government 4: holding that states use of informant to obtain incriminating evidence from defendant about pending charges violated defendants sixth amendment right to counsel notwithstanding that state was also investigating other charges as to which the sixth amendment right to counsel had not attached


Input: citing Miranda v. Arizona, 384 U.S. 436, 474 (1966); Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980). Any statements obtained in violation of this precept are presumed involuntary, unless the suspect himself initiat (noting that, in normal parlance, “I think I’m going to get a lawyer” constitutes an affirmative request for the assistance of an attorney); Commonwealth v. Corriveau, 396 Mass. 319, 331 (1985) (concluding that a suspect did not invoke his right to counsel with the remark, “It’s beginning to sound like I need a lawyer”); Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984) (finding that, “I guess I’ll have to have a lawyer for this,” was not an unambiguous request for an attorney); Commonwealth v. Barros, 56 Mass.App.Ct. 675, 681 (2002) (<HOLDING>). Neither “a mere inquiry regarding the need Holdings: 0: holding that statement i think i should call my lawyer was an unequivocal request for counsel 1: holding do you think i need a lawyer to be ambiguous 2: holding that a suspect made an acceptable request for counsel by stating i dont think i want to talk to you anymore without a lawyer 3: holding i might want to talk to an attorney to be ambiguous 4: holding that the state courts conclusion that a suspect did not unambiguously request counsel was not unreasonable when during a postmiranda interview the suspect stated i think i would like to talk to a lawyer after which the police stopped questioning him left the room and did not resume questioning until the suspect explicitly said he did not want a lawyer and wanted to continue talking


Input: must have commenced, which, under Arkansas law, occurs when the plaintiff files the complaint and completes timely service on the defendant. Forrest City Mach. Works, Inc. v. Lyons (Lyons II), 315 Ark.173, 866 S.W.2d 372, 373 (1993). To perfect service under the Arkansas rules, “compliance must be exact” because the “service requirements are strictly construed.” Rettig, 362 S.W.3d at 262. If the plaintiff fails to perfect service within 120 days of filing the complaint, the action is subject to mandatory dismissal. Lyons v. Forrest City Mach. Works, Inc. (Lyons I), 301 Ark. 559, 785 S.W.2d 220, 222-23 (1990). Completing service for purposes of “commencing]” the action and triggering the savings statute, however, does not require perfecting service. Compare Lyons I, 785 S.W.2d at 222-23 (<HOLDING>), with Lyons II, 866 S.W.2d at 374 (holding Holdings: 0: holding that the statutory requirement that a defendant serve any apportionment complaint within 120 days of the return date of the original complaint is mandatory and implicates a courts personal jurisdiction 1: holding that noncompliance with general statutes  52102b which requires service of apportionment complaint within 120 days after return date of original complaint implicated personal jurisdiction 2: holding that the district court did not abuse its discretion when it dismissed the case without prejudice because the plaintiff failed to properly serve the defendant within 120 days after filing the complaint 3: holding that because the plaintiff had not perfected service within 120 days of filing the complaint the complaint was subject to mandatory dismissal 4: holding that the plaintiffs second complaint did not relate back to her first complaint because her second complaint was not an amendment to her first complaint but rather a separate filing


Input: reopen, see 8 C.F.R. § 1003.2(c)(3)(ii). Neither the newly submitted country reports nor Mehanna’s expert report are “quantitatively different” from the reports Mehanna submitted in 1998, when Mehanna originally appeared before an Immigration Judge. Najmabadi v. Holder, 597 F.3d 983, 987-90 (9th Cir.2010) (finding that more recent country reports describing conditions similar to those found in previous report failed to show sufficient change in country conditions). The newly submitted evidence shows the continuing influence of Hezbollah in Lebanon, but does not support Mehanna’s assertion that changed circumstances in Lebanon and his former membership in the Lebanese Special Forces “will imperil him upon his return to Lebanon.” See also Arbid v. Holder, 700 F.3d 379, 386 (9th Cir.2012) (<HOLDING>). 2. Nor did the BIA abuse its discretion in Holdings: 0: holding that substantial evidence supported the bias determination that a lebanese petitioner persecuted in the late 1990s for antisyrian views had failed to show a probability he would be tortured if returned to lebanon after the syrian militarys withdrawal from lebanon and the emergence of an antihezbollah majority in the legislature 1: holding that the state failed to meet its burden when the record failed to show that the jurors would or would not be available after a weeks continuance 2: holding that a defendant must show reasonable probability that but for the error he would not have entered the plea 3: holding that substantial evidence supported determination that petitioners failed to show that fear of sterilization was objectively reasonable 4: holding that to show prejudice in a claim of ineffective assistance of appellate counsel the petitioner must show a reasonable probability that but for counsels errors the result of the proceeding would have been different


Input: See N.C. Gen.Stat. § 160A-175(c); see also Nags Head, N.C., Code § l-6(c)(6) (authorizing the Town to impose fines of no more than $500 per day for violations of Chapter 16, Article II of the Town Code); id. § 1 — 6(f) (authorizing the Town to seek a court order to enforce the Town's ordinances). 8 . Although we resolve this issue by focusing on the Town’s authority to enforce its nuisances ordinances, we note that the nuisance declaration did not cloud the Owners' tide. Compare Connecticut v. Doehr, 501 U.S. 1, 12, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) (observing that "attachments, liens, and similar encumbrances ... are sufficient [deprivations] to merit due process protection”) with Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 15, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984) (<HOLDING>). 9 . The Owners appear to conflate fee simple Holdings: 0: holding that liability under  1983 can be established by showing that the defendants either personally participated in a deprivation of the plaintiffs rights or caused such a deprivation to occur 1: holding that a civil rights deprivation is a personal injury tort 2: holding that garnishment of wages is a deprivation 3: holding that a lis pendens does not result in a deprivation 4: holding that deprivation of increased compensation as the result of a failure to train constitutes an adverse employment action


Input: CURIAM. Appellant Kenneth Dana Brewton, by and through his counsel David L. Dunagin, moves this court for leave to file a belated brief. Brewton’s brief was due in this court on October 14, 2008. After no brief was filed, the State filed a motion to dismiss on December 8, 2008. Thereafter, Brewton tendered his brief and filed the instant motion requesting to file the belated brief. We will accept a criminal appellant’s belated brief to prevent an appeal from being aborted. See Brown v. State, 373 Ark. 453, 284 S.W.3d 481 (2008) (per cu-riam). However, good cause must be shown to grant the motion. See Strom v. State, 356 Ark. 224, 147 S.W.3d 689 (2004) (per curiam) (<HOLDING>). Here, Brewton accepts full responsibility and Holdings: 0: holding that failure to brief an argument constitutes waiver 1: holding an appellate brief may serve as a notice of appeal 2: holding issues not raised in appellate brief are waived 3: holding failure to brief argument constitutes waiver 4: holding that appellate counsels admitted failure to timely file the brief constituted good cause to grant motion for belated brief


Input: Court is skeptical that section 6 is properly read as broadly as the government urges. But because the matters alleged by the plaintiffs are, as we will discuss, subject to the state secrets privilege, we need not definitively determine the thorny issue of the proper scope of section 6. b. Section 102A(i)(l) of the Intelligence Reform and Terrorism Prevention Act of 2004 Section 102A(i)(l) states that “[t]he Director of National Intelligence shall pro tect intelligence sources and methods from disclosure.” 50 U.S.C. § 403-1(0(1). Plaintiffs concede this statute allows the Director of National Intelligence to withhold information covered by the statute when it is requested of him or agencies under his control. See, e.g., CIA v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (<HOLDING>); Fitzgibbon v. CIA, 911 F.2d 755 Holdings: 0: holding that foia exemptions are not mandatory bars to disclosure because the purpose of foia is to provide broad disclosure of government documents 1: holding that precursor to  102ail could shield against foia request 2: holding that a foia request should be read to seek all documents covered by a catchall 3: holding that when a plaintiff has no pending foia request with an agency and has not averred that he intends to make foia requests to the agency in the future any claim of future injury is simply too speculative and remote to give him standing 4: holding that a response to a foia request falls within the scope of  3730e4as administrative  report provision


Input: and dozing in public place); Franklin v. State, 682 S.W.2d 426, 427 (Tex.App. — Houston [1st Dist.] 1984, no pet.) (illegal use of shrimping equipment); Clayton v. State, 652 S.W.2d 810, 811-812 (Tex.App.— Amarillo 1983, no pet.) (driving with suspended license); Diggles v. State, 641 S.W.2d 667, 668 (Tex.App. — Dallas 1982, pet.ref’d)(illegal voter assistance); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254-1255 (5th Cir.1995) (city ordinance prohibiting touching between customers and nude employees at adult cabarets); Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 563 (5th Cir.1988) (statute prohibiting picketing accompanied by slander, libel or public misrepresentation). But see Zulauf v. State, 591 S.W.2d 869, 872-873 (Tex.Crim.App. [Panel Op.] 1979) (<HOLDING>). In other circumstances, courts have found Holdings: 0: holding that phrase no person shall drive a vehicle on the highway at a speed greater than is reasonable and prudent under the circumstances then existing  is clear command that legislature intended to make speeding a strict liability offense 1: holding that officers observations of the speed of the truck coupled with the sound of the engine racing and the bouncing of the truck as it passed through the intersection gave officer probable cause to believe that truck was exceeding a speed greater than was reasonable and prudent under the conditions 2: holding that the double jeopardy clause prohibits courts from imposing greater penalties than the legislature intended 3: holding that where jury was instructed on both a greater offense and lesserincluded offense and the jury convicted on the lesserincluded offense the double jeopardy provision prohibited retrial on the greater offense 4: holding no liability existed under the circumstances


Input: and holds that federal common law governs the question of whether Ms. Prescott may recover damages for Kyler’s emotional distress. As such, she can recover for emotional distress damages under the ACA. 2. California’s Unruh Civil Rights Act Claim RCHSD argues that Ms. Prescott lacks standing to assert an Unruh Civil Rights Act claim on behalf of Kyler and herself. Because she does not seek to bring an action as an individual, the Court need only address her ability to assert an Unruh Act claim on behalf of Kyler. RCHSD relies on cases that address an organization’s standing under Unruh to argue that Ms. Prescott lacks standing to assert a claim on behalf of Kyler. See Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal. App. 3d 1377, 1386, 271 Cal.Rptr. 99 (1990) (<HOLDING>); see also Bowden v. Redwood Inst. For Designed Holdings: 0: holding that the association of home builders lacked standing to seek relief in damages for alleged injuries to its members because whatever injury may have been suffered is peculiar to the individual member concerned and both the fact and extent of injury would require individualized proof 1: holding that a contractor lacked standing because it failed to show a substantial chance it would have received the contract award but for agency error 2: holding that an organization whose members are injured may represent those members even where the organization itself cannot show injury 3: holding that a nonprofit organization lacked standing under unruh because its civil rights had not been personally violated and it failed to show that any of its members would suffer injury 4: holding an organization had standing because some of its individual members did


Input: cause of action for breach of fiduciary duty. 7 . Additionally, the Plaintiffs have failed to allege how the individual Community Defendants actions, by themselves, caused their injuries. Plaintiffs' quarrel lies with Community and Business Council's membership determinations. It is the official action following the individual Community Defendants' votes with which the Plaintiffs dispute, and it is upon these votes that the Plaintiffs have predicated their federal claims. However, the votes themselves have no legal effect. It is the official action of the Community and the Business Council, as legal entities authorized to act pursuant to these votes, that allegedly has caused the Plaintiffs' injuries. See Imperial Granite Co. v. Pala Band of Indians, 940 F.2d 1269, 1271 (9th Cir.1991) (<HOLDING>). Although the Plaintiffs have submitted an 87 Holdings: 0: holding that sovereign immunity barred a suit against state officials when the relief sought required state officials to retroactively pay federal benefits 1: holding suits against state officials for prospective injunctive relief are permissible because they are in effect suits against the officials in their individual capacities 2: holding that plaintiffs claim was not barred by sovereign immunity because he sought specific relief against a government official 3: holding that summary judgment for defendant officials on the basis of qualified immunity was improper given officials indefinite refusal to treat plaintiffs cavity 4: holding that plaintiffs complaint against tribal officials was barred under doctrine of sovereign immunity because the officials votes individually had no legal effect and it was the official action of the band following the officials votes that caused plaintiffs injuries


Input: vacancy); W. Va. Const, art. VII, § 8 (same).” Devlin, at 1238 n. 116. 40 . "... A more common method of granting effective power to the legislature is for the state constitution to provide that the governor may appoint subordinate officials only insofar as he is authorized to do so ‘by law’ or, alternatively, that the governor enjoys the power to appoint unless the legislature provides by law for some other methods of election or appointment of that official. See, e.g., Del. Const, art. Ill, § 9 (providing exception for vacancies that occur within two months of election); Ind. Const, art. 15, § 1 (appointments not provided for in constitution must be appointed as prescribed by law); Kan. Const, art. 15, § 1 (same); Me. Const, art. V, pt. 1, § 8 (same); Md. Const, art. II 4, 668 (1910) (<HOLDING>); see also Caldwell v. Bateman, 252 Ga. 144, Holdings: 0: holding that employees grievance regarding the nonrenewal of his appointment was not precluded from grievance procedure as appointment referred only to initial appointment 1: recognizing power of appointment does not rest exclusively in any one branch 2: recognizing inherent power of courts of appeals 3: recognizing that immigration policy is the clear purview of the legislative branch 4: holding that a commission is a body with special and limited power and it can only exercise the power expressly or impliedly granted to it and any reasonable doubt of existence of any power must be resolved against the exercise thereof


Input: 12(b)(6) of the Federal Rules of Civil Procedure, the factual allegations in the complaint are accepted to be true for purposes of these motions, and all reasonable inferences are drawn therefrom in favor of plaintiff. Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir.2003). The issue is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). III. Statute of Limitations A. Police Defendants This Court first examines the timeliness of the Plaintiffs claims. Section 1983 claims arising in the State of New York are governed by a three-year statute of limitations. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (<HOLDING>). Therefore, the question is when a plaintiff Holdings: 0: holding that the appropriate state statute of limitations to borrow for section 1983 actions is that for recovery of damages for personal injuries 1: recognizing that wilson v garcia requires all  1983 actions to be characterized as personal injury tort actions for statute of limitations purposes 2: holding that if state law provides multiple statutes of limitations for personal injury actions the general or residual statute for personal injury actions should be used for 1983 actions 3: holding that warranty actions for personal injury damages or tortious injury to personal property are governed by general nonucc limitations periods 4: holding that in actions brought under 42 usc  1983 federal courts apply the states statute of limitation for personal injury


Input: the terms Chase offered and either adjusted his travel plans or used other forms of payment such as bank-issued check cards. Third, Stinger’s unfair surprise argument is without merit. Under Delaware law, a credit card issuing bank may unilaterally add or alter an arbitration provision to a credit card agreement by sending notice and giving the cardholder an opportunity to send notice to the bank of a rejection of the amendment. Edelist v. MBNA Am. Bank, 790 A.2d 1249, 1257-1260 (Del.Super.Ct.2001); see also Del.Code. Ann. tit. 5 § 952(a). We also note that courts applying Delaware law have consistently rejected claims that arbitration clauses in credit card agreements are unconscionable. See, e.g., Heiges v. JP Morgan Chase Bank, N.A., 521 F.Supp.2d 641, 649-50 (N.D.Ohio 2007) (<HOLDING>); Carmack v. Chase Manhattan Bank (USA), 521 Holdings: 0: holding that an arbitration provision in a credit card cardholder agreement was not unconscionable 1: holding arbitration provision of automobile installment sales agreement unconscionable 2: holding that cardholder is bound by arbitration agreement upon factual determination that she received it and that subsequent use of card demonstrates assent 3: holding that a credit card arbitration provision presented in a takeitorleaveitmanner was not unconscionable 4: holding arbitration clause in credit card agreement unconscionable


Input: in support of my June 1, 2009 Medico-Legal Report concerning Robert T. Pritchard, Sr. ----, by way of rebuttal to the reports and testimony of Marshall Lichtman, M.D., Seymour Grufferman, M.D. and Michael I. Greenberg, M.D.”). More importantly, counsel were also advised at the outset of this case and upon the finalization of the Fourth Amended Case Management Order that the Court would permit live testimony of experts at any Daubert hearing. (Docket No. 142, Tram. Hr’g 9/22/09 at 25). Instead of proceeding in this fashion, Plaintiffs have submitted the declaration of Dr. Omalu for the purpose of rebutting the assertions of the defense experts regarding Dr. Omalu’s opinions. See Fisher v. Clark Aiken Matik, Inc., Civ. A. No. 99-1976, 2005 WL 6182824, at *1 (M.D.Pa. Sept. 26, 2005) (<HOLDING>). The Court fails to see how the facts set Holdings: 0: holding that the federal expert witness compensation rules are in direct conflict with the state rules even when the state rules allow for a greater recovery 1: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures 2: holding that there is neither a violation of the applicable discovery rules nor sanetionable conduct in the submission of a supplemental expert report to rebut the daubert motion 3: holding that the burden is upon the state under the applicable federal rules of evidence 4: holding that designation is neither a sentence nor a punishment


Input: 1983 assault trial in Baltimore City defined assault, under Maryland law, as “a threat by words or acts or both to do bodily harm to another, coupled with the apparent present ability to carry out the threat.” In light of that instruction, the jury, in finding Wardrick guilty of common-law assault, convicted him of a violent felony; i.e., the guilty verdict had “as an element the ... threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B). The district court also properly characterized Wardrick’s 1984 Maryland conviction for escape as a violent felony. As we have indicated, felony escape and attempted escape constitute violent felonies under ACCA- — even if accomplished by stealth. See generally United States v. Hairston, 71 F.3d 115 (4th Cir.1995) (<HOLDING>); United States v. Aragon, 983 F.2d 1306, 1313 Holdings: 0: holding walkaway escape under north dakota statute a crime of violence 1: holding felony escape in north carolina to be crime of violence under acca because escape presents risk of injury to others 2: holding that in light of our recognition that escape presents a continuing threat of violence until the escapee is safely returned to custody we hold that for purposes of  2k21b5 every escape is sufficiently continuing such that possession of a gun subsequent to the initial departure from custody can qualify as being in connection with the escape 3: holding that an escape from custody under minnesota law is a crime of violence 4: holding that escape is categorically a violent felony under the acca


Input: with the use of reasons and standards, the court will uphold its findings, though of less than ideal clarity, if the agency’s path may reasonably be discerned, though of course the court must not be left to guess as to the agency’s findings or reasons. Greater Boston, 444 F.2d at 851. For instance, in Hall v. McLaughlin, 864 F.2d 868, 872-73 (D.C.Cir.1989), we held that an involved explanation was not required where a Labor Department rule did not appear to be inconsistent with prior labor certification decisions. We relied on two additional cases holding that the circumstances of a prior agency decision were sufficiently different that the agency was entitled not to follow them even without a detailed explanation. See United Mun. Distributors Group v. FERC, 732 F.2d 202 (D.C.Cir.1984) (<HOLDING>); West Coast Media, Inc. v. FCC, 695 F.2d 617 Holdings: 0: holding that the court of appeals erred in declining to apply supreme court precedent even though the reasoning of that precedent had been eroded by subsequent decisions 1: holding that ferc precedent was readily distinguishable and did not require elaborate discussion 2: holding a prior case was not precedent on an issue when the issue was not contested 3: recognizing that although federal precedent was not binding it was persuasive authority 4: holding that a condition was precedent to performance because the contract language did not explicitly state that it was precedent to formation


Input: for an employer’s liability. An employer is directly liable for hostile environment sexual harassment if it knew, or upon reasonably diligent inquiry should have known, of the harassment and failed to take immediate and appropriate corrective action. See Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982). Under this theory of direct liability, the City can be held liable for its own negligence or recklessness, but not for the conduct of its supervisors or employees. In contrast, an employer is indirectly, or vicariously, liable for the wrongful conduct of its agent, whether or not the employer knew or should have known about the agent’s 6-07 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990)(<HOLDING>); Hicks v. Gates Rubber Co., 833 F.2d 1406, Holdings: 0: holding that the proper inquiry is whether the individual defendant served in a supervisory position in which he exercised significant control over the plaintiffs hiring firing or conditions of employment and if not whether employer had actual or constructive knowledge of the existence of a hostile work environment and took no prompt and adequate remedial steps 1: holding that agent part of title viis definition of employer includes someone who serves in a supervisory position and exercises significant control over  hiring firing or conditions of employment 2: holding that the plaintiff must prove that management level employees had actual or constructive knowledge about the existence of a sexually  hostile environment and failed to take prompt and adequate remedial action 3: holding board had jurisdiction when employer had final authority over the essential terms and conditions of employment including wages benefits hiring firing promotion discipline and grievances although employer was subject to various governmentimposed restrictions 4: holding that while town counsel had final supervisory authority over the hiring and firing of employees in plaintiffs position it did not have supervisory authority over the mayors constructive discharge of plaintiff


Input: Cir.1985) (interpreting a provision insuring against embezzlement and employee fraud in the subrogation context); First Nat’l Bank of Fort Walton Beach v. U.S. Fid. & Guar. Co., 416 F.2d 52, 57 (5th Cir.1969) (interpreting a provision requiring the bank act “in good faith and in the usual course of business”); Eglin Nat’l Bank v. Home Indem. Co., 583 F.2d 1281, 1285 (5th Cir.1978) (interpreting a provision insuring against “dishonest or fraudulent acts” by employees). These cases are inapposite. Courts outside the Eleventh Circuit have interpreted Exclusion H’s “caused by an Employee” language in widely differing fashions. Compare Empire Bank, 27 F.3d at 335 (“[T]he bond language excludes losses caused by a bank employee, whether negligent or not.”), with Manitowoc, 485 F.3d at 980 (<HOLDING>). The bond itself does not define the term. The Holdings: 0: holding automobile exclusion in general liability policy did not apply because plaintiffs claim of negligent supervision and training was a separate and distinct theory of recovery from the use of an automobile 1: holding an employees actions in disregarding his doctors warnings were negligent 2: holding exclusion h does not apply where employees were merely negligent 3: holding that section 4149 did not apply to the plaintiffs state law claims of breach of duty to protect foster care children from harm and of negligent supervision negligent entrustment and negligent failure to warn 4: holding negligent misrepresentation sufficient


Input: lima M. Rodriguez, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) order denying suspension of deportation and voluntary departure. We have jurisdiction pursuant to 8 U.S.C. § 1105a. Where, as here, the BIA conducts a de novo review of the record, we review the BIA’s decision. See De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997). We deny the petition. The BIA properly denied suspension of deportation because Rodriguez, who was deported in 1992, did not accrue the requisite seven years’ continuous presence in the United States. Cf. Barragan-Sanehez v. Rosenberg, 471 F.2d 758, 760 (9th Cir. 1972) (<HOLDING>). The BIA properly denied voluntary departure Holdings: 0: holding that an aliens continuous physical presence is broken if the alien was offered and accepted the opportunity to withdraw an application for admission 1: holding that the failure to notify aliens counsel of an order to appear for deportation violated the aliens statutory right to counsel 2: holding bia did not err in determining request for stay of voluntary departure is not an implicit request for a withdrawal of voluntary departure 3: holding that aliens continuous presence in the country was interrupted by voluntary departure under threat of deportation proceedings 4: holding that because aliens two previous voluntary departures were the result of implied agreements and were not therefore strictly voluntary they constituted significant departures that precluded a finding of seven years continuous presence in the united states under a rule that excused absences that were brief casual and innocent


Input: U.S.C. § 7425(b). 4 ."We look initially to state law to determine what rights the taxpayer has in the property the Government seeks to reach, then to federal law to determine whether the taxpayer's state-delineated rights qualify as 'property' or 'rights to property’ within the compass of the federal tax lien legislation.” Drye v. United States, 528 U.S. 49, 58, 120 S.Ct. 474, 145 L.Ed.2d 466 (1999). Montana law makes clear that the purchaser under a land sales contract holds an equitable interest in real property, although legal title remains in the seller. Kern v. Robertson, 92 Mont. 283, 12 P.2d 565, 567 (1932). Under 26 U.S.C. § 6321, a federal tax lien may attach to "all property and rights to property” belonging to a taxpayer in default. See Drye, 528 U.S. at 58-60, 120 S.Ct. 474 (<HOLDING>). 5 . Under 26 U.S.C.’ § 7425(c)(4), the Holdings: 0: holding that the right to disclaim property under state law does not defeat a federal tax lien because the taxpayer exercised control over the disposition of the property 1: holding that a federal tax lien properly attached to a slatelawcreated right to property that had pecuniary value 2: holding that the debtor must have had an interest in the property before the lien attached to take advantage of  522f 3: holding that  522f1 requires a debtor to have possessed an interest to which a lien attached before it attached to avoid the fixing of the lien on that interest 4: holding that a property right that comes into existence by court action such as a judgment lien does not relate back to some earlier date to destroy the priority of a federal tax lien


Input: the class are tainted with the mischief, but there are others also tainted whom the classification does not include.” Joseph Tussmann and Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal.L.Rev. 341, 348 (1949). See also Melville B. Nimmer, Nimmer on Freedom of Speech § 2.06[B] (1984 & Supp.1992 (Rodney A. Smolla, Ed.)). In First Amendment cases that involve the differential treatment of speakers, “[a]s in all equal protection cases ... the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” 2603, 105 L.Ed.2d 443 (1989) (striking down prohibition on disclosure of sexual offense victims’ names where prohibition applied only to instruments of mass communication); Carey, 447 U.S. at 465, 100 S.Ct. at 2292 (<HOLDING>). Second, the Court has consistently held that Holdings: 0: holding that defendants lacked a reasonable expectation of privacy in common area of residential building 1: holding that governments asserted interest in protecting the privacy of arrestees is substantial under central hudson 2: recognizing the public interest exception 3: holding unconstitutional prohibition on residential picketing in part because exception for peaceful labor picketing was unrelated to asserted interest in promoting the privacy of the home 4: recognizing an overwhelming public interest in promoting improvement in health care through the mechanism of physician peer review


Input: be limited to newly discovered evidence. Scroggins based his motion on the interest of justice and not expressly upon newly discovered evidence. Therefore, the district court erred in limiting its analysis of the motion, and the exercise of its discretion, to newly discovered evidence while not considering the primary basis of Scroggins’s motion— the interest of justice. Further, the district court’s failure to analyze the motion based on the interest of justice was not harmless to Scroggins. In contrast to motions made within the seven-day period, new trial motions based on newly discovered evidence are subjected “to an unusually stringent substantive test.” United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988). See also United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir.1973) (<HOLDING>); 3 Chaeles ÁLAN WRIGHT, ET AL., FEDERAL Holdings: 0: holding that the district court did not abuse its discretion in denying motion for new trial based on newly discovered evidence where the evidence would serve only to impeach  testimony 1: holding seventh state petition for postconviction relief which was based on newly discovered evidence but rejected by the state courts because the evidence was not newly discovered was properly filed 2: recognizing the heavier burden which the movant must carry in a new trial motion based on newly discovered evidence in contrast to motions based on other grounds which must be made within seven days after verdict 3: holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted 4: holding that to obtain a new trial based on newly discovered evidence the defendant must allege facts from which the court may infer diligence on the part of the defendant


Input: is “common knowledge” that Superintendent Rounds is racist. Zamora points to: (1) comments al legedly made by Superintendent Rounds that New Mexico’s Governor (an Hispanic woman) is inept; (2) Rounds’ hiring a man who had authorized a social experiment at a New Mexico high school that gave the appearance of race discrimination; (3) the reassignment of Zamora’s duties in 2007 and 2008 to Caucasians; and (4) comments made by two co-workers in conversations surreptitiously recorded by Zamora following his termination in which they opined that Superintendent Rounds had engaged in racially discriminatory practices. To establish pretext from such comments or actions, Zamora must tie them to his termination, which he has not done. See Johnson v. Weld Cnty., 594 F.3d 1202, 1218 (10th Cir.2010) (<HOLDING>). Ill The judgment of the district court is Holdings: 0: holding  2254d authorizes federal court to review state courts decision only and not explanation of decision 1: holding that without any meaningful connection in either time or topic to the employment decision the alleged comments and actions cannot give rise to an inference that the defendants explanation for that decision is pretextual 2: holding that an employer in an employment discrimination case may not justify its conduct based on evidence that did not motivate it at the time of the employment decision 3: holding that evidence contrary to an administrators decision does not make the decision arbitrary and capricious so long as a reasonable basis appears for the decision 4: holding that the relevant time is the time of the employment decision


Input: receive sufficient advance written notice of the charges against him. See Wolff, 418 U.S. at 563-64, 94 S.Ct. 2963. The notice provided to Mr. Firth was quite extensive and detailed. It stated generally that Mr. Firth was recommended for termination from treatment because he had “demonstrated a lack of progress in treatment, a lack of motivation for treatment, and a failure to meet program expectations.” R. at 567. The notice then included five single-spaced pages of detailed facts supporting these conclusions. Mr. Firth argues that the notice nonetheless provided insufficient factual detail because it failed to cite program rules or standards upon which the charges were based. But he cites no authority for this proposition. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.1992) (<HOLDING>). Nor does he explain why he was unable to Holdings: 0: holding that a party waives an argument if the party fails to elaborate or provide any citation of authority in support of the argument 1: holding party must support argument with legal authority 2: holding appellate court need not consider argument where party has failed to support it with any authority legal or otherwise 3: holding that an appellant waived a claim where he failed to cite any legal authority in support of an argument in his appellate brief 4: holding an argument waived for failure to cite authority


Input: undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “The question is not whether the defendant would more likely than not have received a different verdict with the [concealed] evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). The defendant does not have to demonstrate by a preponderance that disclosure of the suppressed evidence would have resulted in an acquittal. Id. at 434, 115 S.Ct. at 1566. The “Brady rule is not an evidentiary rule that grants broad discovery powers to a defendant.” United States v. Quinn, 123 F.3d 1415, 1421-22 (11th Cir.1997) (<HOLDING>); see also Weatherford v. Bursey, 429 U.S. 545, Holdings: 0: holding in camera review by trial court to determine whether crime stoppers information contained brady information would meet the balance of defendants constitutional rights against the states interest in fostering law enforcement 1: holding that the information contained in the police files with regard to other possible suspects was not brady material 2: holding that where government does not intend to disclose grand jury materials in camera proceedings are appropriate to protect govern ments interest in secrecy 3: holding that the government was not required to disclose the contents of personnel files of testifying officers or submit them for in camera review simply based on the defendants unsupported contention that they might contain information of significance to his ease 4: holding party seeking disqualification waives attorneyclient privilege as to the court so the court may assess the contents of allegedly confidential information and the party may present the information either in a hearing out of the presence of the party against whom confidentiality is to be protected or in camera inspection


Input: that issue shortly, but we turn first to the issue of whether the contract provision at issue was sufficiently clear to absolve the Yacht Club of liability for its own negligence, for it is universally agreed that exculpatory clauses, whether fully exonerating a party from its own negligence or not, must “be clearly and unequivocally expressed.” Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 905 (5th Cir.1994) (internal quotations omitted). See also Edward Leasing Corp. v. Uhlig & Assocs., Inc., 785 F.2d 877, 889 (11th Cir.1986) (recognizing that courts will enforce red letter clauses if “the contractual language at issue is clear and unequivocal and clearly indicates the intentions of the parties”); M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1488 (9th Cir.1983) (<HOLDING>). A. Is the Exculpatory Clause Sufficiently Holdings: 0: holding parties to an exculpatory clause where the parties intent is clear 1: holding that parol evidence is admissible to determine intent of parties 2: holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract 3: holding that where congressional intent is clear a court must give effect to such intent 4: holding that extrinsic evidence admissible to determine intent of parties


Input: states was universally accepted.” Hale, 308 Or at 513 (footnote omitted). The doctrine was adopted in the Oregon Territory and was not modified; thus, “sovereign immunity was a part of this state’s law at the time of statehood.” Id. at 514. When they adopted Article IV, section 24, of the Oregon Constitution — at the same time that they adopted Article I, section 10 — its drafters ensured that “[provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution [.]” Thus, “[o]ur Constitution is framed on the premise that the state is immune from suit and that if immunity is lifted it shall be done so by the action of the legislature.” Vendrell v. School District 95 (1892) (<HOLDING>)). Hale illustrates this principle. In Hale, Holdings: 0: recognizing that the state enjoys sovereign immunity in regard to tort actions unless the legislature waived immunity pursuant to a specific statute 1: holding the contract was not authorized by law 2: recognizing the unique status of counties and cities that enables the legislature to regulate their tort liability 3: holding that an act of legislature may be required to waive sovereign immunity 4: recognizing the immunity of counties unless an action is authorized by the legislature


Input: However, Pe-trohawk filed suit against J.P. Morgan, a corporate trustee, and we have already concluded that based on the plain language of section 115.001, any proceeding brought against a trustee falls within section 115.001. Therefore, sections 115.001 and 115.002 are applicable. We conclude mandamus relief is appropriate in this case. Chapter 15 authorizes parties to seek mandamus relief to enforce its mandatory venue provisions. Tex. Civ. Prac. Rem.Code Ann. § 15.0642. Although section 115.002 of the Texas Property Code is found outside Chapter 15 of the Civil Practice and Remedies Code, it is still a mandatory venue provision for which mandamus relief is available to enforce the provision. In re Transcon. Realty Investors, Inc., 271 S.W.3d 270, 271 (Tex.2008) (orig. proceeding) (<HOLDING>). “In seeking mandamus under section 15.0642, a Holdings: 0: holding that venue in the district identified in  9 was mandatory 1: holding that the statute is mandatory 2: recognizing that due on sale clauses are enforceable in texas 3: 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 4: holding that section 21013 of the texas property code is a mandatory venue statute and is enforceable by mandamus


Input: makes alternative arguments regarding the images taken from his computer and introduced by the government at trial. Proceeding on the premise that the activities in question were purely intrastate, Kinder contends that the statute, as applied, is an unconstitu tional exercise of the Commerce Clause power because: (a) there was no evidence that interstate commerce was substantially affected, and (b) the mere fact that he had internet access, without more, cannot satisfy the interstate commerce count of the statute, citing for both propositions, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 181 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States v. Corp, 236 F.3d 325 (6th Cir.2001); Un 1137, 1138-39 (10th Cir.1999) (<HOLDING>). Similarly, Kimler does not contest the fact Holdings: 0: holding that congress could regulate an instant message that was both sent and received in utah where there was evidence that en route from the sender to the recipient the message traveled to virginia over ordinary telephone lines 1: holding that there could be no risk of spillover evidence where there was significant proof that both defendants participated in all the transactions 2: holding that where notice was sent via constitutionally adequate method petitioner must present substantial and probative evidence that there was improper delivery or that nondelivery was not due to the petitioners failure to provide an address 3: holding that the information must establish that the court has jurisdiction over both the subject matter and the parties 4: holding that there was sufficient evidence of innocent intent where both the states and defendants evidence showed that the defendant was coerced at knifepoint to enter


Input: be subject to legal issues" is unverifiable. 70 . See Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.1986) ("A statement regarding a potentially provable proposition can be phrased so that it is hard to establish, or it may intrinsically be unsuited to any sort of quantification."); Ollman v. Evans, 750 F.2d 970, 979 (D.C.Cir.1984) (Insofar as a statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content."). 71 . See State v. Carpenter, 171 P.3d 41, 48, 51-52 (Alaska 2007) (reasoning that sexual insults made during a radio show known for its lewdness "were not factually verifiable" and therefore, although "offensive to any rational person," the statements "were not defamatory"); Sands, 34 P.3d at 960 (<HOLDING>); see also Ollman, 750 F.2d at 981 ("In Holdings: 0: holding statements that a church was a cult and its pastor a cult recruiter were not factual statements capable of being proven true or false and therefore could not support a defamation action 1: holding that prosecutors statements were not evidence and could not support restitution order 2: holding analysts statements insufficient to satisfy particularity requirements because plaintiffs failed to identify with specificity the statements made by a particular defendant or describe how those statements were false or misleading 3: holding that false statements are constitutionally protected 4: holding that statements in proof of loss are not conclusive claimant could explain statements


Input: Inc., 966 F.Supp. 416 (S.D.N.Y.1997) is therefore misplaced, because that case imposed a contempt sanction for the violation of the court’s injunctive order to make payments into an escrow account. Ecopetrol also contends that the Judgment is not a money judgment because it contains personal commands for performance of an act within a specified time period. Although it is true that a personal command may usually be enforced by contempt, a personal command to render payments may nevertheless fall within the meaning of a “money judgment” under Rule 69. See, e.g., Indus. Prof'l & Tech. Workers Int’l Union, SIUNA, AFL-CIO v. Worldtec Grp. Int’l, 25 Fed.Appx. 527, 529 (9th Cir.2001) (unpublished); Jou v. Adalian, No. CIV. 09-00226(JMS), 2015 WL 477268, at *5 (D.Haw. Feb. 5, 2015) (<HOLDING>). ' In cases where contempt is appropriately Holdings: 0: holding that an administrative agency is not subject to a contempt proceeding for failure to comply with an order 1: holding that rule 63 applies to pleadings filed within seven days of summary judgment proceedings 2: recognizing a courts inherent authority to initiate a criminal contempt proceeding for disobedience of its order 3: holding that a difference between 384 days prepreference average number of days to payment and 547 days preference average number of days to payment did not make the payments out of the ordinary course of business 4: holding contempt proceeding inappropriate to enforce the trial courts order requiring payment of a sum certain within seven days


Input: the appellant’s motion to suppress. Consequently, we affirm the convictions. Affirmed. 1 . In ruling on the propriety of a trial court’s decision on a motion to suppress, the appellate court considers the evidence introduced at the suppression hearing and at trial. See, e.g., Beasley v. Commonwealth, 60 Va.App. 381, 385 n.1, 728 S.E.2d 499, 501 n.1 (2012). The Court views that evidence in the light most favorable to the party who prevailed below, in this case the Commonwealth. E.g., id. 2 . As Land approached, the appellant "jump[ed] out ... of the car.” The officer "instructed him to get back into the vehicle,” and the appellant complied. 3 . The appellant’s assignment of error also notes that Detective Fraser observed the traffic inf 258, 127 S.Ct. 2400, 2407, 168 L.Ed.2d 132 (2007) (<HOLDING>). 5 . The appellant cites no controlling or Holdings: 0: holding that like burglary car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize police officer safety and thus justifies a protective frisk under terry to ensure officer safety 1: holding that it is reasonable  that a police officer at the scene of  an investigation will not let people move around in ways that could jeopardize his safety and discussing the various ways an officer may limit such movement 2: holding that police officer did not exhibit reckless disregard for safety and wellbeing of others by negligently causing auto accident where officer looked both ways at intersection even though view was partially blocked 3: holding that when the officer has a reasonable suspicion that illegal drugs are in the vehicle the officer may in the absence of factors allaying his safety concerns order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officers safety and the safety of others 4: holding officer may search vehicle for weapons if officer has reasonable belief based on articulable facts that officer or another may be in danger


Input: category of crimes involving moral turpitude rather than acts that are "base, vile, or depraved." Id. 2 . The majority relies on Chen v. Mukasey, 524 F.3d 1028 (9th Cir.2008) and United States v. Macias-Valencia, 510 F.3d 1012 (9th Cir.2007) for the principle that a subsequent panel is not bound by statements in prior decisions relating to an issue that had not been “presented for review,” but neither case supports that principle. In both cases, the prior decision in question had acknowledged that its passing remarks were not precedential. See Chen, 524 F.3d at 1033 (“We acknowledged, however, that [our observation in He v. Gonzales, 501 F.3d 1128 (9th Cir.2007) about the potential relief available to the petitioners] was not before us.”); see also Macias-Valencia, 510 F.3d at 1015 (<HOLDING>). Here, the Navarro-Lopez en banc panel Holdings: 0: holding that our use of the subjunctive in mentioning an argument in passing suggests that we knew that we were not addressing and that we could not address that argument 1: holding that where a party does not adequately brief an argument we need not address it on appeal 2: holding where one argument is dispositive of the appeal we need not address the defendants remaining arguments 3: recognizing that we may not substitute our judgment for that of the alj  4: holding that where one argument is dispositive of the appeal we need not address the defendants other arguments


Input: the eases were tried.” Id. at 317, 277 P.3d at 1042. Cabina-tan’s ease was tried months before Cabagbag was decided. Therefore, we examine Cabi-natan’s claim under the ^re-Cabagbag standard. Under the pve-Cabagbag standard, ‘“we must examine all aspects of the trial, including the opening statements, the cross-examination of prosecution witnesses, the arguments to the jury, and the general instructions given by the court, to determine whether the jury’s attention was adequately drawn to the identification evidence.’ ” Cabagbag, 127 Hawai'i at 317, 277 P.3d at 1042 (quoting Okumura, 78 Hawai'i at 405, 894 P.2d at 102). The jury’s attention must be adequately drawn to the identification evidence such that specific instructions are unnecessary. See Pahio, 58 Haw. at 331, 568 P.2d at 1206 (<HOLDING>). Here, we cannot say that the arguments of Holdings: 0: holding that an identification instruction was unnecessary because of the crossexamination of the prosecution witnesses and the arguments to the juiy 1: holding in a tax fraud case that a goodfaith instruction was unnecessary because the trial judge adequately instructed the jury on willfulness 2: holding that the defendants failure to call the insufficiency of the evidence to the trial courts attention rendered the issue not preserved 3: holding that the requested instruction was not required under rule 4325c because even assuming that the requested instruction was a correct statement of law the trial judge exercised his discretion properly 4: holding that various aspects of the trial adequately directed the jurys attention to the identification evidence and made defendants requested instruction unnecessary


Input: discriminated against him based on a psychiatric disability, in violation of Title II of the ADA, 42 U.S.C. §§ 12131 et seq., when it dismissed him from its medical program. Title II prohibits discrimination against a disabled individual regarding access to public services. 42 U.S.C. § 12132 (“No qualified individual with a disability shall ... be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”). The public entities defined in the ADA are state or local governments and their instrumentalities. 42 U.S.C. § 12131(1). The United States, its agencies, and employees are not public entities under the ADA. Cellular Phone Taskforce v. FCC, 217 F.3d 72, 73 (2d Cir.2000) (<HOLDING>); Aquino v. Prudential Life & Cas. Ins. Co., Holdings: 0: holding that title ii of the ada is not applicable to the federal government 1: holding that title ii does not apply to the states 2: holding that prudential limitations on standing do not apply to title ii ada claims 3: holding the ada and the rehabilitation act applicable 4: holding that title ii of the ada was a valid use of congress power under section 5 of the fourteenth amendment


Input: phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A prosecutor is granted only qualified immunity, however, if he or she is performing investigatory or administrative functions, or is essentially functioning as a police officer or detective. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). A court may grant a Cir.1978) (per curiam) (extending absolute immunity to a prosecutor’s actions in “initiating and pursuing a criminal prosecution and in presenting the state’s case ... even where the prosecutor knowingly used perjured testimony, deliberately withheld exculpatory information, or failed to make full disclosure of all facts”); Hilliard v. Williams, 540 F.2d 220, 221 (6th Cir.1976) (per curiam) (<HOLDING>) (quoting Hilliard v. Williams, 516 F.2d 1344, Holdings: 0: holding that a prosecutors decision whether or not to give defense counsel evidence alleged to be materially exculpatory which was either discovered after the  1983 plaintiffs arrest but before his conviction or while the prosecutor was still functioning as an advocate for the state in posttrial motions and preparations for appeal is clearly part of the presentation of the states case and therefore a prosecutor is absolutely immune from liability for failure to turn over evidence 1: holding prosecutor absolutely immune from suit for deciding to investigate and conspir ing to present false charges to the grand jury 2: holding that a prosecutor is absolutely immune from a suit claiming that he destroyed and falsified evidence 3: holding that notwithstanding acts and omissions of state prosecutor in withholding certain information and in failing to prevent or correct deceptive and misleading testimony  deprived the state defendant of her constitutional right to a fair trial  prosecutor was absolutely immune 4: holding prosecutor absolutely immune for deciding to pursue criminal charges despite challenge to his motivation


Input: Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir.1984). It is not there. Clark, to be sure, rejected a challenge to a legislative veto provision as unripe because the provision had not been exercised. But Clark involved a naked attack upon the provision itself and not, like the present case, a challenge to present use of the statutory powers to which the provision was attached. And Muller, which did address a challenge comparable to the present case, implicitly rejects rather than supports intervenors’ ripeness argument, deciding on the merits a claim that the existence of an unexercised legislative veto provision in a statute rendered actions taken under that statute unconstitutional. Muller, 743 F.2d at 388. See also Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550 (D.C.Cir. 1985) (<HOLDING>), petition for cert. filed, 54 U.S.L.W. 3394 Holdings: 0: holding that the title of the statute did not limit the reach of the statute 1: holding on the merits that the existence of an unexercised legislative veto provision in a statute would render invalid actions taken under the statute unless the legislative veto provisions were severable from the portion of the statute pursuant to which the challenged actions were taken 2: holding onehouse legislative veto unconstitutional 3: holding that the burden is on the defendants to establish the existence of absolute legislative immunity 4: holding that insofar as the university actions were taken in an attempt to comply with the requirements of title ix plaintiffs attack on those actions is merely a collateral attack on the statute and regulations and is therefore impermissible


Input: grounds. Thus, in United States v. Marolda, 648 F.2d 623 (9th Cir.1981), the Ninth Circuit considered a case exactly like this one. The defendant had been convicted. On his first appeal, he asserted both trial error and insufficiency of the evidence supporting his conviction. The court of appeals reversed on the trial error but did not address the sufficiency issue. On remand, the defendant moved to dismiss the indictment on double jeopardy grounds. The motion was denied, and he brought an Abney appeal. The court, noting that it was “not a case in which the trial error leading to [the first] reversal may have prejudiced the prosecution,” held that double jeopardy barred the defendant’s retrial. Id. at 624. Accord United States v. United States Gypsum Co., 600 F.2d 414, 416 (3d Cir.) (<HOLDING>), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 Holdings: 0: recognizing this principle in the failure to hire context 1: recognizing principle 2: recognizing this principle as a settled rule 3: recognizing principle but finding evidence at first trial sufficient 4: recognizing same principle


Input: post office box and planned to maintain surveillance over the post office box to determine that Rowland picked up the package. The affidavit also indicated that Rowland had been observed on several occasions collecting his mail from the post office box and then walking back to work. Because the controlled delivery was made to Rowland’s private post office box and not to his residence, however, establishing probable cause that the delivery would take place does not mean there was probable cause that the video tapes would be at Rowland’s residence when the search took place. Therefore, this court must determine whether the affidavit supporting the anticipatory warrant contained evidence establishing a nexus between the contraband and Rowland’s residence. See Hendricks, 743 F.2d at 654-55 (<HOLDING>). Only an oblique reference was made in the Holdings: 0: holding anticipatory warrant for search of defendants home was invalid when defendant was required to pick up suitcase containing contraband at airport and there was no assurance at time warrant was issued that defendant would take suitcase to his home 1: holding anticipatory warrant for search of defendants home was invalid because contraband was picked up by defendant rather than being delivered to his home and affidavit failed to provide facts establishing a nexus between contraband and defendants home 2: holding anticipatory warrant for search of defendants home was invalid when defendant was required to pick up suitcase containing contraband at airport and there was no information indicating defendant would take suitcase home or otherwise linking defendants residence to illegal activity 3: holding anticipatory warrant for search of defendants home was invalid because affidavit provided no assurance that defendant would take package to his home after collecting it at the airport despite fact that warrant contained condition that it was not to be executed until package arrived at defendants house 4: holding anticipatory warrant for search of defendants home was invalid because facts made known to magistrate did not establish at time warrant was issued the required nexus between the contraband to be seized which was mailed to defendants post office box and defendants home


Input: factual allegations as to the events or the participants.” Advanced Magnetics, 106 F.3d at 20. Courts should grant leave to substitute if “(1) the defect in the named plaintiffs plausibly resulted from mistake (‘mistake’ prong), and (2) correcting this defect would not unfairly prejudice defendants by changing the particulars of the claims against them (‘prejudice’ prong).” Wiwa v. Royal Dutch Petroleum Co., 2009 WL 464946, at *10 (S.D.N.Y. Feb. 25, 2009) (citing Advanced Magnetics, 106 F.3d at 20-21). A mistake is plausible “absent evidence of bad faith or intent to deceive.” Wiwa, 2009 WL 464946, at *10 (citing Advanced Magnetics, 106 F.3d at 20-21). Further, an attorney’s ignorance, incompetence, or lack of diligence is not evidence of bad faith. Wiwa, 2009 WL 464946, at *11 (<HOLDING>). The prejudice analysis focuses on whether the Holdings: 0: holding that a bad faith claim must be met through the clear and convincing evidence standard 1: holding that although plaintiffs had shown carelessness and a lack of diligence there was no evidence that they acted in bad faith and thus plaintiffs met the mistake prong 2: holding that bad faith andor prejudice must be shown by clear and convincing evidence 3: holding that if the town acted in bad faith in negotiations and litigation which prevented construction then the plaintiffs on remand cannot be deemed to have lost any rights to vest that they would have been able to exercise in the absence of bad faith 4: holding the bad faith rationale inapplicable given that the defendants acted in good faith in appealing the case and in raising defenses to the plaintiffs claims


Input: that Congress shall have the power “to exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia and “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.” U.S. Const, art. I, § 8, cl. 17. The then-governor of Texas signed two deeds ceding exclusive jurisdiction of more than 18,000 acres of land to the United States, with the reservation that the State of Texas retains concurrent jurisdiction only for service of civil and criminal process on the premises. The ceded land remains physically located within the geographic boundaries of Texas. See Adams v. Calvert, 396 S.W.2d 948, 949 (Tex.1965) (<HOLDING>). The Depot currently remains under the Holdings: 0: recognizing howard holding that fiction of a state within a state has no validity to prevent exercise of power by state over federal area within its boundaries so long as there is no interference with federal jurisdiction 1: recognizing federal enclave remains within geographic boundaries of state 2: holding that the determination of the boundaries of a political subdivision of the state is a political question solely within the power prerogative and discretion of the legislature and not subject to judicial review 3: holding that deputies who approached within 90 feet of a rural residence were not within the boundaries of the curtilage 4: holding a 1 signature requirement as within the outer boundaries of support the state may require before affording political parties ballot position


Input: suspension period is extended, and the Commission has failed to make its final determination within 150 days from the proposed effective date of the change, the utility may put a changed interim rate into effect to cover the remainder of the suspension period by filing a bond with the Commission. PURA § 43(e). Finally, if the Commission determines that the proposed rates are impermissible, the Commission shall determine the “level of rates to be charged or applied” by the utility and “shall fix the same by order to be served on the utility; these rates are thereafter to be observed until changed.” PURA § 43(f). 2 . Apparently, in Texas no one can have a vested right in a utility rate until the rate is administratively and judicially final. Southwestern Bell v. PUC, 615 S.W.2d at 957 (<HOLDING>); but see New England Tel. & Tel. Co. v. Public Holdings: 0: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 1: holding that habeas petitions challenging judgments of conviction that became final before the effective date of the aedpa are not time barred if filed within one year from aedpas effective date april 241996 2: holding that the commission on remand can set the effective date of a rate to be the effective date of the original commission activity 3: holding that the date of discrimination is the date on which a decision not to hire a plaintiff becomes effective 4: holding that the statute does not apply retroactively to claims accruing prior to the effective date


Input: We review questions of subject-matter jurisdiction de novo. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.2007). An application for asylum must be filed within one year of entering the United States. See INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). Section § 208(a)(2)(D) of the INA, in turn, provides for the filing of untimely applications, upon a showing of extraordinary circumstances relating to the delay in filing the asylum application. See 8 U.S.C. § 1158(a)(2)(D). The INA makes clear that this Court lacks jurisdiction to review the Attorney General’s extraordinary-circumstances determination. See INA § 208(a)(3), 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).”); see also Ruiz, 479 F.3d at 765 (<HOLDING>). To the extent Cala seeks review of whether he Holdings: 0: holding that  1158a3 divests the court of jurisdiction to review decisions of whether an alien complied with the oneyear time limit or whether extraordinary circumstances were present to justify untimely filing of the asylum application citing mendoza v us atty gen 327 f3d 1283 1287 11th cir2003 1: holding that federal courts lack jurisdiction to review the attorney generals decision as to timeliness of an asylum request pursuant to 8 usc  1158a3 the attorney generals decision regarding whether an alien complied with the oneyear time limit or established extraordinary circumstances such that the time limit should be waived is not reviewable by any court 2: holding that filing of appeal to federal circuit divests this court of jurisdiction to consider motion to stay court order pending appeal 3: holding that section 1158a3 divests our court of jurisdiction to review a decision regarding whether an alien complied with the oneyear time limit or established extraordinary circumstances that would excuse his untimely filing 4: holding that because the ij denied an asylum application as untimely we lacked subjectmatter jurisdiction to review the final order of removal as it pertained to the asylum claim


Input: cannot be sustained, as the plaintiffs’ complaint is limited by the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of discrimination. Here, the EEOC letter of determination states that the charging party "alleges discrimination based on race and/or national origin.” Consequently, the plaintiffs are barred from alleging gender discrimination. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992) ("an aggrieved employee may not complain to the EEOC of only certain instances of discrimination, then seek judicial relief for different instances of discrimination”). Likewise, the plaintiffs’ gender discrimination claim under the FCRA is barred. See Trumbull v. Health Care and Retirement Corp. of Am., 756 F.Supp. 532, 535 (M.D.Fla.1991) (<HOLDING>), aff’d, 949 F.2d 1162 (11th Cir.1991). The Holdings: 0: holding that substantive aspects of claims under federal discrimination statutes and fcra are identical 1: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 2: holding that statutes of limitations are considered substantive matters for purposes of the erie doctrine 3: holding that federal courts should apply state substantive law 4: recognizing that the two statutes are nearly identical


Input: medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition.” Correa, 69 F.3d at 1190 (citing Miller v. Medical Ctr. of S.W. La., 22 F.3d 626, 628 (5th Cir.1994); Stevison v. Enid Health Sys., Inc., 920 F.2d 710, 712 (10th Cir.1990)). (B) Application of State Law Privilege in Federal Court Pursuant to Federal Rule 26, the scope of discovery is limited to “any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1) (emphasis added). Generally, privilege claims in federal question cases in federal court are governed by Fed.R.Evid. 501 . See e.g. Gilbreath v. Guadalupe Hosp. Found., Inc., 5 F.3d 785, 791 (5th Cir.1993)(<HOLDING>); Everitt v. Brezzel, 750 F.Supp. 1063, 1066 Holdings: 0: recognizing privilege under federal rules 1: holding that in diversity cases federal courts are to apply state substantive law and federal procedural law 2: holding that federal law governs res judicata effect of an earlier federal judgment based on federal law 3: holding that 5 usc  301 does not grant authority to assert an evidentiary privilege not recognized by the federal rules of civil procedure or the law of evidence 4: holding that in federal cases partys right to assert a privilege is dictated by federal law


Input: J. Christopher Merkt appeals the order revoking his community control and the sentence imposed under the 1995 guidelines. We affirm the order revoking community control. However, we remand for reconsideration of sentencing in accordance with Heggs v. State, 759 So.2d 620 (Fla.2000) (<HOLDING>). See also Battle v. State, 761 So.2d 1177 Holdings: 0: holding that where a district court clearly indicates that an alternative sentence would be identical to the sentence imposed under the guidelines any error that may attach to a defendants sentence under booker is harmless 1: holding defendant sentenced to term equal to maximum guidelines sentence under improperly calculated sentencing guidelines scoresheet was not entitled to be resentenced because defendant was habitualized such that sentencing guidelines score sheet was irrelevant and the sentence imposed was not illegal 2: holding that motion raising heggs claim was insufficient because it failed to allege sentence imposed could not have been imposed under 1994 guidelines 3: holding that defendant entitled to resentencing if the sentence imposed under the unconstitutional 1995 sentencing guidelines would constitute an impermissible departure sentence under the 1994 guidelines 4: holding that persons challenging a sentence imposed under the 1995 sentencing guidelines have standing to do so if the relevant criminal offense occurred on or after october 1 1995 and before may 25 1997


Input: within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position ...; and (4) that the employer refused to make such accommodations.” Rhoads v. FDIC, 257 F.3d 373, 387 n. 11 (4th Cir.2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1309, 152 L.Ed.2d 219 (2002). The burden to provide notice of a disability is “not a great one .... Adequate notice simply informs the employer of both the disability and the employee’s need for the accommodations for that disability.” EEOC v. Fed. Express Corp., 513 F.3d 360, 369 n. 5 (4th Cir.), cert. denied, 555 U.S. 814, 129 S.Ct. 343, 172 L.Ed.2d 22 (2008); see Schneider v. Giant of Md., LLC, 389 Fed.Appx. 263, 270 (4th Cir.2010) (<HOLDING>); Huppenbauer v. May Dep’t Stores Co., 99 F.3d Holdings: 0: holding that a notice recommending termination of an employee to the board without notice to the employee of employees right to attend and dispute the claims violated due process 1: holding as a matter of law that the existence of an expense reimbursement policy alone did not create an implied contract limiting the employers right to terminate an employee atwill 2: holding that an employers knowledge that an employee was diabetic did not equate to notice that the employees diabetes was so limiting as to be disabling and to require special accommodations 3: holding that employers knowledge of employees criminal conviction for intoxication did not put employer on notice that employee might be a thief 4: holding that if all of an employees coworkers knew that he had a heart condition such knowledge would not amount to notice to the employer that the employee was so limited by a disability as to require special accommodations


Input: compensatory damages arises not from the absence of any appreciable injury to Robbins, but from the fact that her instantaneous death precluded any damages award for pain and suffering. We recognize that an award of at least nominal damages ordinarily is required to sustain a punitive damages award. See O’Connor, supra, 111 N.J.Super. at 29, 266 A.2d 605. Even where a plaintiff has suffered a harm inestimable in terms of dollars and cents, an award of nominal damages serves to confirm the jury’s finding that plaintiff has suffered a harm cognizable at law. That deficiency is not significant in these circumstances, however, where the elements of causation and defendant’s negligence were established in the related wrongful death action. See Alfone, supra, 87 N.J. at 110-11, 432 A.2d 857 (<HOLDING>). Thus, the only additional finding by the jury Holdings: 0: holding the plaintiffs action was one for wrongful death and not survival where damages listed in complaint were identical to damages listed in the wrongful death act 1: holding that uniformity is as important in maritime survival actions as it is in maritime wrongful death actions 2: recognizing cause of action for wrongful death 3: recognizing that substantive issue of liability may be litigated in the same action for wrongful death and survival actions 4: holding a wrongful death action may not be maintained for the death of an unborn child


Input: into evidence true and accurate copies of the Note and Allonge. Petitioner asserts this evidence “plainly evidences the transfers” of the Note to Petitioner. We cannot agree. Under the UCC, as adopted by North Carolina, “[a]n instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” N.C. Gen. Stat. § 25-3-203(a) (2009). Production of an original note at trial does not, in itself, establish that the note was transferred to the party presenting the note with the purpose of giving that party the right to enforce the instrument, as demonstrated in Connolly, 63 N.C. App. at 551, 306 S.E.2d at 125, and Smathers v. Smathers, 34 N.C. App. 724, 726, 239 S.E.2d 637, 638 (1977) (<HOLDING>) In Connolly, determining who had possession of Holdings: 0: holding that because a mortgage provides the security for the repayment of the note the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder 1: holding that creditors could not seek relief from a bankruptcy stay because they were not the real parties in interest and lacked standing as they were not holders of the notes and failed to establish that mers was the holder or had authority to transfer the notes 2: holding that where a promissory note had never been made payable to plaintiff or to bearer nor had it ever been indorsed to plaintiff    defendants established that plaintiff was not the owner or holder of the note 3: holding that a promissory note is not enforceable against a party who signed the deed of trust but did not sign the promissory note inasmuch as promissory notes and deeds of trust are separate legal documents with unique purposes 4: holding that despite evidence of voluntary transfer of promissory notes and the plaintiffs possession thereof the plaintiff was not the holder of the note under the ucc as the notes were not drawn issued or indorsed to her to bearer or in blank the plaintiff testified to some of the circumstances under which she obtained possession of the notes but the trial court made no findings of fact with respect thereto


Input: weave through the labyrinth of criminal statutes, administrative code provisions, and not-yet-codified agency rules is inconsistent with the “process” our Founding Fathers believed we were due before being charged with criminal offenses. No person of ordinary intelligence could determine what he is prohibited to possess or deal by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. Therefore the portions of Ind.Code §§ 35-48-4-10(a) and 11 in effect at the time of Ashfaque’s alleged offenses are void for vagueness to the extent they rely on definitions, including unnamed substances “structurally derived” from other substances, found in Ind.Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. See Health-script, 770 N.E.2d at 816 (<HOLDING>). [19]We distinguish our holding here from Holdings: 0: holding such statutes are not analogous statutes of limitation for erisa purposes 1: holding the requirement that a person search through multiple statutes then through the administrative code lacks the sufficient definiteness that due process requires for penal statutes 2: holding the voidforvagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited 3: holding the double jeopardy clause applicable to the states through the due process clause of the fourteenth amendment 4: holding that the statutes abrogated the common law


Input: most favorable to the Plaintiff, does not state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Rather, it continues to represent the quintessential shotgun pleading as this Court has ruled before, by wholly incorporating all paragraphs of the complaint into the second and final count. See Weiland v. Palm Beach Cnty. Sheriffs Office, 792 F.3d 1313, 1321 (11th Cir.2015); Davis v. Coca-Cola Bottling Co. v. Consolidated, 516 F.3d 955, 979 n. 54 (11th Cir. 2008) (collecting cases). Failure to correct such pleadings, given ample opportunity, supports dismissal. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir.2005) (<HOLDING>). In addition to the failure to correct the Holdings: 0: holding that the district court did not abuse its discretion by dismissing the plaintiffs third amended complaint with prejudice for failure to abide by rule 8 which requires that each averment of a pleading be simple concise and direct 1: holding district court did not abuse its discretion in not granting plaintiffs leave to amend complaint for a third time 2: holding district court did not abuse its discretion in failing to permit filing of third amended complaint for repeated failure to cure deficiencies by previous amendments and quoting bryant v dupree 252 f3d 1161 1163 11th cir2001 3: holding that the district court did not abuse its discretion in dismissing a complaint with prejudice based on the plaintiffs failure to amend the complaint by the deadline imposed by the court 4: holding that the district court did not abuse its discretion in denying leave to file a third amended complaint where the plaintiff had already been given opportunities to amend and did not indicate what additional facts he could plead to correct the deficiencies in his complaint


Input: a defective pleading within the deadline, and where a plaintiff was prevented from bringing suit by war”). Here, Strong did not file her complaint only one minute late. She was not misled by the Secretary to miss the filing deadline, nor did war prevent her from bringing suit timely. Nor is Strong proceeding pro se; she is represented by Plitt. While Plitt regrettably suffered through a period of personal hardship, “a lawyer’s duty of diligence transcends both upheaval at work and personal tragedy.” Davila-Alvarez v. Escuela de Medicina Universidad Cent. del Caribe, 257 F.3d 58, 65 (1st Cir.2001) (citing Pioneer Inv. Serv. Co. v. Brunswick Assocs. P’ship, 507 U.S. 380, 398, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). Cf. also, Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir.2006) (<HOLDING>); Jovanovic v. In-Sink-Erator, 201 F.3d 894, Holdings: 0: holding that trial counsels failure to call defendants family members as witnesses during penalty phase was reasonable trial strategy and not ineffective assistance of counsel 1: holding that a discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law 2: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense 3: holding that counsels abandonment of the case during discovery  cannot be excused by the deaths in his family 4: holding that the effects of the victims deaths upon the families is part of the circumstances of the crime and is properly presented to the jury at the penalty phase


Input: to its federal question jurisdiction. Collateral attacks on court-martial proceedings are not confined to habeas petitions. Kauffman v. Secretary of the Air Force, 415 F.2d 991 (D.C.Cir.1969). A district court has subject matter jurisdiction to hear a noncustodial plaintiffs collateral attack based on federal question jurisdiction. Sanford v. United States, 586 F.3d 28, 31 (D.C.Cir.2009). Thus, while habeas review is appropriate for convicted military personnel who are still in custody, for non-custodial individuals such as plaintiff, federal question jurisdiction under 28 U.S.C. § 1331 is the appropriate avenue for a service member to seek collateral review of the outcome of a military court-martial proceeding. United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C.Cir.2006) (<HOLDING>) {“New II ”); Williamson v. Sec’y. of Navy, 395 Holdings: 0: recognizing bankruptcy courts jurisdiction over such a collateral attack 1: holding that the district court had subject matter jurisdiction to hear the petitioners collateral attack under  1331 2: 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 3: recognizing that only void judgments are subject to collateral attack and that a judgment is void only when court had no jurisdiction of the parties or property no jurisdiction of the subject matter no jurisdiction to enter the particular judgment or no capacity to act 4: holding that a judgment as to the title in a prior litigation was not subject to collateral attack


Input: does business as University Medical Center. The Court will refer to this single entity as "Defendant Hospital." 2 . Although Plaintiff had not served Defendant Texas Tech at the time of removal, she eventually did so. The Court recently remanded all claims against Defendant Texas Tech to Texas state court. See Order Granting in Part and Den. in Part Pl.’s First Am. Mot. to Remand, Apr. 12, 2016, ECF No. 88 ["Remand Order”]. 3 . Plaintiff does not specify which intentional torts she is asserting in this lawsuit. 4 . Plaintiff does not make any specific factual allegations against Dr. Laks. See infra part III.C.l. 5 . For municipal immunity, the Fifth Circuit has analyzed counties in the same manner as municipalities, See James v. Harris Cnty., 577 F.3d 612, 619-620 (5th Cir. 2009) (<HOLDING>). Accordingly, the Court will refer to Holdings: 0: holding that a county was entitled to summary judgment where the claims against the individual defendants had failed 1: holding that a policy for purposes of municipal liability may be established by an officials single decision 2: holding that a county was not liable when plaintiff failed to satisfy an element of municipal liability 3: holding that county of delaware was not a person for purposes of fca liability 4: holding that discrimination against a municipal employee could trigger municipal liability under  1983 through official policy or custom


Input: age, race and sex discrimination are completely unrelated to Reno’s allegations that she was harassed by Moorer, that Moorer “frequently makes rude, disparaging remarks about women and twists every innocent comment into one with sexual over tones” and that Moorer “approached Ms. Reno from behind and intentionally pressed himself against her with his lower body while she is sitting at her desk.” (P.’s Sec. Am. Compl., Instr. No. 18 at 6). Moorer was not involved in any of Metro’s decisions not to promote Reno nor is it reasonable to assume that his allegedly unlawful conduct would have been uncovered during the course of an EEOC investigation aimed at discovering whether Reno had been improperly denied certain promotions. See Torriero v. Olin Corp., 684 F.Supp. 1165, 1170 (S.D.N.Y.1988) (<HOLDING>). Nevertheless, Reno argues that the claim of Holdings: 0: holding that plaintiffs eeoc charge alleging sex discrimination did not encompass claim of sexual harassment subsequently asserted in title vii action in federal court because the facts underlying sexual harassment claim could not be inferred from the factual assertions made in the eeoc charge nor would they have been uncovered absent specific allegations to indicate such a cause of action existed 1: holding that a charge that alleged discrimination on the basis of sex did not support a complaint for hostile environment sexual harassment 2: holding that an original eeoc charge is sufficient to support  a civil suit under the act for any discrimination  developed in the course of a reasonable investigation of that charge provided such discrimination was included in the reasonable cause determination of the eeoc 3: holding that eeoc charge filed by plaintiff more than 180 days after alleged incident of sexual harassment was timely where alleged sexual harassment violation continued as hostile work environment through time of plaintiffs termination 4: holding that a title vii cause of action is limited to those discrimination allegations in the complaint that have been under the scrutiny of a formal eeoc complaint


Input: never waived or accepted process, and never made an appearance in the suit before the expunction order was entered. Nothing in the record establishes that Google stands in privity to the Commission or to Jackson. Accordingly, we hold that Google was not a party to the suit and that the trial court lacked jurisdiction to enter orders against Google. Id. When a party is served but there are technical defects in the judgment, the judgment is voidable. PNS Stores, 379 S.W.3d at 275. However, when “the defects in service are so substantial that the defendant was not afforded due process,” the judgment is void. Id. Here, there was no identification of Google as a party or attempt to serve it with process. Accordingly, the judgment against it is void and must be vacated. See id. at 272 (<HOLDING>). We sustain Google’s second issue. Because Holdings: 0: recognizing that a default judgment based on improper service is void 1: holding the judgment premature citing one case holding the judgment void and another holding the judgment irregular 2: holding judgment in violation of automatic stay void 3: holding that void order must exceed courts authority to act and not be merely erroneous 4: holding void judgment must be vacated


Input: a public factor that weighs in favor of granting defendant’s motion, this factor does not overcome the deference due to the plaintiffs choice of forum and the other factors favoring retention of jurisdiction in Massachusetts. Samsung argues that “[t]o burden the courts of the United States and engage the services of jurors who are from Massachusetts with South Korean law for an accident which occurred in South Korea would confound common sense [and] therefore [there is] no ‘local interest’ in having a ‘local controversy’ decided here.” (Def. Mem. at 8-9). This court disagrees. There is a local interest in providing a convenient forum for a resident citizen claiming that a foreign corporation negligently caused him harm. See Gross v. British Broad. Corp., 386 F.3d 224, 234 (2d Cir.2004) (<HOLDING>); GT Solar Inc. v. Goi, No. 08-cv-249-JL, 2009 Holdings: 0: holding that a permissive forum selection clause containing a waiver of any claims of forum non conveniens amounts to a mandatory forum selection clause at least where the plaintiff chose the designated forum 1: recognizing that where plaintiff is from the forum state and defendant is from an alternate forum each forum can claim a connection to one of the parties 2: holding that the defendant must have created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state 3: holding that phone and facsimile communications to the forum purchase orders and payments sent to the forum a choice of law clause within the contract regarding the forum state and delivery of the product within the forum state were not enough to satisfy minimum contacts 4: holding that extreme delay in the alternative forum can render that forum inadequate


Input: 333 F.3d 51, 60 (2d Cir.2003); cf. United States v. Diaz, 176 F.3d 52, 82 (2d Cir.1999). At the time of Wells’s trial, New York courts “regularly employed the 'clear link' standard to review trial court determinations that excluded evidence of third-party culpability.” People v. Primo, 96 N.Y.2d 351, 355-57, 728 N.Y.S.2d 735, 753 N.E.2d 164 (2001) (abandoning the "clear link” phraseology). Under that standard, "evidence of third-party culpability must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question.” Id. at 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 (quotation marks and internal citations omitted). See, e.g., People v. Sparman, 202 A.D.2d 452, 453, 608 N.Y.S.2d 672 (2d Dep't 1994) (<HOLDING>); People v. Brown, 187 A.D.2d 662, 663, 590 Holdings: 0: holding in rape case that no clear link existed between father of victims and their rapes even where defense proffered evidence of fathers previous conviction for sexual abuse 1: holding evidence of past uncharged sexual encounters admissible in child sexual abuse case to show relationship between defendant and alleged victim 2: holding evidence of outofstate instances of abuse admissible in child sexual abuse case to show intent opportunity and relationship between defendant and victim 3: holding defendants prior conviction for assault related to sexual abuse of a minor even though it did not require an act of sexual abuse because it required intent to commit sexual abuse  and such a mens rea demonstrate the offense was one relating to sexual abuse 4: holding trial court was proper in admitting a doctors testimony that a delay between the occurrence of an incident of child sexual abuse and the childs revelation of the incident was the usual pattern of conduct for victims of child sexual abuse


Input: rights of action that have not been clearly legislated because of its regard for the state legislature as a “repository of sovereign powers, whose dispensation must in any context be strictly construed.” A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 798 F.2d 669, 674 (4th Cir. 1986) (citing Commonwealth v. County Bd. of Arlington County, 217 Va. 558, 577, 232 S.E.2d 30, 37 (1977) (“the rule is clear that, where a power is conferred and the mode of its execution is specified, no other method may be selected; any other means would be contrary to legislative intent and, therefore, unreasonable”)). These principles have been used to foreclose litigants from pursuing private rights of action in a number of contexts including (i) teacher contract renewals, Giannoutsos, 238 Va. at 147 (<HOLDING>); (ii) materialmen and workmen seeking damages Holdings: 0: holding the only remedy available to the teacher fired without notice was entitlement to a contract for the ensuing year as provided in the code 1: holding that one year warranty was not an exclusive remedy for defective construction where the contract did not so state 2: holding that for a suit to be brought in the venue in which the contract was to be performed the contract must expressly state where the performance of the contract was to occur 3: holding that a notice of deficiency was invalid where it was the second notice mailed for that year and the taxpayer timely petitioned the court as to the first notice 4: holding that a thwarted remedy is not available


Input: case, Defendant established legitimate reasons for its actions, and the record does not permit an inference of pretext. See id. (<HOLDING>). AFFIRMED. * This disposition is not Holdings: 0: holding that once the employee makes its prima facie showing the burden then shifts to the employer to prove that legitimate reasons supported the termination 1: holding that if the plaintiff makes a prima facie case the defendant employer must then articulate some legitimate nonretaliatory reason for the adverse action and the employee must then have a fair opportunity to show pretext that is that a discriminatory intent motivated the employers action 2: holding that if the plaintiff makes out a prima facie case of age discrimination the employer must show that the discharge was based on reasonable factors other than age  and if the employer meets that burden the plaintiff must show that age was a determining factor in the discharge 3: recognizing that whether the employee uses the mcdonnell douglas framework or other evidence to create a prima facie case when the employer offers a legitimate nondiseriminatory reason for its adverse action the question is whether a rational trier of fact could conclude that the employers action was taken for impermissibly discriminatory reasons 4: holding that in title vii disparate treatment case in order for a plaintiff to establish a prima facie case the plaintiff must proffer evidence among other things that she performed her job according to her employers legitimate expectations if the plaintiff establishes the prima facie case the presumption shifts the burden to the employer to produce a legitimate nondiseriminatory reason for its actions