Input: interest in the proper application of the election laws being upheld. Plaintiffs argue that appellants’ status as voters is irrelevant because they have suffered no harm that the general public did not suffer. However, this Court has recognized that “[ejection cases are special... because without the process of elections, citizens lack their ordinary recourse.” Deleeuw v Bd of State Canvassers, 263 Mich App 497, 505-506; 688 NW2d 847 (2004). Because the improper implementation of election laws affects the process by which citizens normally exercise their collective voice to uphold the status quo or effectuate change, “ordinary citizens have standing to enforce the law in election cases.” Id. at 506. See also Helmkamp v Livonia City Council, 160 Mich App 442, 445; 408 NW2d 470 (1987) (<HOLDING>). “[T]he right to vote is an implicit £ Holdings: 0: holding that the plaintiffs in an election case were not required to show a substantial injury distinct from that suffered by the public in general 1: recognizing that the government not the relator must have suffered the injury in fact required for article iii standing 2: holding that in order to be compensable consequential damages must affect some right or interest that is different in kind not merely in degree from that suffered by the public in general 3: holding that rico claims were personal and plaintiffs were therefore entitled to sue on their own because their injuries were distinct from the injuries to creditors in general resulting from the diversion of corporate assets 4: holding that in order to establish standing a plaintiff must show 1 it has suffered an injury in fact  2 the injury is fairly traceable to the challenged action of the defendant and 3 it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision


Input: in Florida, his ongoing medical treatment in Florida, and the location of multiple witnesses in Florida. Plaintiff also emphasizes that consent to voluntary dismissal has been obtained from all but two Defendants. In response, the objecting Defendants argue that re-filing this case in the United States District Court for the Middle District of Florida, which is Plaintiffs admitted intention should the case be dismissed, would unfairly impose upon them the costs associated with submitting motions and other documents which have already been filed with this Court. These Defendants, however, apparently overlook the Court’s power to levy costs and, furthermore, fail to demonstrate that they would suffer legal prejudice in the event of a dismissal. See, e.g., Manshack, 915 F.2d at 174 (<HOLDING>). Considering the totality of the circumstances Holdings: 0: holding that merely subjecting the defendant to another lawsuit does not amount to plain legal prejudice where the nonmoving party does not complain of excessive litigation costs resulting from discovery 1: holding under plain error standard of review that apprendi does not apply to restitution because the statute does not prescribe a maximum amount 2: holding that the nonmoving parly must show how additional discovery will defeat the summary judgment motion ie create a genuine dispute as to a material fact and that the nonmoving party must show that he has diligently pursued discovery of the evidence in question 3: holding that filing an answer  does not invoke the status as a defendant in plaintiffs lawsuit 4: holding that the nonmoving party must show how additional discovery will defeat the summary judgment motion ie create a genuine dispute as to a material fact and that the nonmoving party must show that he has diligently pursued discovery of the evidence in question


Input: of the Guidelines. In Galarza-Payan, the sentencing court stated that the defendant’s circumstances would have to “fall outside the heartland” to support a depar ture, or downward adjustment. Id. The defendant argued on appeal that the court’s statement suggested that it applied the Guidelines in a mandatory fashion. We affirmed the sentence, noting that “the district court, while using pre-Booker Guidelines terminology, did not sentence [the defendant] in a mandatory fashion.” Id. After looking at the sentencing hearing as a whole, we were able to conclude that the district court “understood its discretion and considered [the] § 3553(a) factors.” Id.; see also United States v. Valgara, 223 Fed.Appx. 799, 803 (10th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 385, 169 L.Ed.2d 270 (2007) (<HOLDING>); United States v. Smith, 219 Fed.Appx. 765, Holdings: 0: holding that arithmetical error that resulted in an increase to a defendants base offense level pursuant to the sentencing guidelines affected his substantial rights even though the resulting sentence was within the range for the correct offense level 1: holding that an arithmetical error that increased a defendants base offense level pursuant to the sentencing guidelines affected his substantial rights 2: holding that the sentencing courts conclusion that there was simply no way to avoid the base offense level did not indicate mandatory application of the guidelines 3: holding that the mere mandatory application of the guidelines  the district courts belief that it was required to impose a guidelines sentence  constitutes error 4: holding unconstitutional the mandatory application of the federal sentencing guidelines


Input: is so excessive that it violates due process can involve consideration of whether the punitive damages award exceeded the amount necessary to accomplish the goals of punishment and deterrence. Murray v. Laborers Union Local No. 324, 55 F.3d 1445, 1453 (9th Cir.1995) (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 17, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991)). The Supreme Court did not reject deterrence as a legitimate factor in the consideration of whether or not an award is unconstitutionally excessive in either BMW or State Farm. See BMW, 517 U.S. at 584, 116 S.Ct. 1589 (noting only that deterrence could not justify a punitive damages award without considering whether less drastic measures could be expected to achieve that goal); State Farm, 538 U.S. at 419, 123 S.Ct. 1513 (<HOLDING>). Moreover, in a post-BMW case, the Ninth Holdings: 0: holding that conduct must be beyond the fraud which supported compensatory damages to award punitive damages 1: holding prebmw that deterrence is relevant to the determination of constitutionally permissible punitive damages 2: recognizing that deterrence relates to reprehensibility in that the conduct must be so reprehensible as to warrant imposition of punitive damages as a further sanction to achieve punishment and deterrence 3: recognizing the conduct giving rise to punitive damages must be a proximate cause of the harm inflicted 4: holding that perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendants conduct


Input: 387, 391-92 (3d Cir.1986) (noting that attorney disciplinary rules “are mandatory” because attorneys are subject to discipline for violating them). Thus, despite the Board’s position — insofar as the Executive Director’s letters represent it — that the inquiry provision constitutes a recommendation rather than a mandate, the fact that the Act provides for disciplinary action against Plaintiffs in case of a violation provides evidence that Plaintiffs’ fear that they may face discipline is objectively reasonable for standing purposes. Notably, this is not a generalized fear of disciplinary action, but rather a specific apprehension by a specific group — physicians-whose conduct the Act targets. But cf. Clapper v. Amnesty Int’l USA — U.S. -, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013) (<HOLDING>). Moreover, we note that Board has not been Holdings: 0: holding that where the defendants  107 claim was based on remediation costs they incurred and may incur in the future as the result of a lawsuit instituted under  107a they did not demonstrate that they incurred necessary costs of response within the meaning of  107a 1: holding that plaintiffs failed to meet their burden to show that the arbitration agreement prevented them from vindicating their statutory rights because they did not file affidavits or assert in their briefs that the costs were prohibitively expensive instead plaintiffs provided only the barest assertions that the fees and costs clause  makes the arbitration provision unconscionable 2: holding that although plaintiffs claims were masked in various legal theories they were premised on a single claim of product liability and therefore fell under north carolinas product liability statute 3: holding that because plaintiffs failed to prove that their incurred fuel characterization and loading costs would not have been incurred in the nonbreach world plaintiffs were not entitled to recovery for these costs 4: holding that attorneys and various human rights labor legal and media organizations cannot manufacture standing to challenge a provision of the foreign intelligence surveillance act of 1978 by choosing to make expenditures based on hypothetical future harm where plaintiffs merely speculate that the government will target their communications and so the costs they incurred were a product of their generalized fear of surveillance


Input: without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded or whose mortgage shall have been first duly recorded or registered; but my such deed or instrument shall be valid and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees. [N.J.S.A. 46:22-1 (emphasis added). See also Tobar, supra, 293 N.J.Super. at 413, 680 A2.d 1121 (noting that “actual or constructive notice is n the position that it is among the protected classes generally entitled to recording notice under N.J.S.A. 46:22-1. See C.D. v. Div. of Med. Assistance and Health Servs., 93 N.J.A.R.2d 91,1993 WL 471193 (Div. of Med. Assistance) (<HOLDING>). As noted previously, with the promulgation of Holdings: 0: holding that limitations period on employment discrimination claim triggered on date of discharge not on date of discovery of discriminatory intent 1: holding that the date of the federal indictment not the date of the state arrest was the triggering date for the speedytrial act 2: holding that dmahs is not among classes protected by njsa 46221 and concluding that property was transferred on date that deed was signed not on recording date 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 date of transfer should be measured by the date that the transfer was good as against a subsequent bona fide purchaser or judgement holder which in accordance with applicable state law was the date of recordation as opposed to the date the deed was signed


Input: had not been discharged from the hospital at the time of the suicide. See Bramlette, 302 S.C. at 74, 393 S.E.2d at 917 (affirming the trial court’s denial of defendant’s directed verdict motion on basis of proximate cause when patient committed suicide while on a recreational outing with other patients and occupational therapist employed by hospital); see also Hoeffner v. Citadel, 311 S.C. 361, 368, 429 S.E.2d 190, 194 (1993) (“Bramlette does not impose strict liability on those with a duty to prevent suicide” “because health care professionals are subject to liability for failure to prevent suicide only when departure from the standards of their profession proximately causes their patient’s suicide”); Sloan v. Edgewood Sanatorium, Inc., 225 S.C. 1, 13, 80 S.E.2d 348, 353 (1954) (<HOLDING>). Other states have recognized that same duty Holdings: 0: holding that a psychiatrist had no duty to detain a patient who killed himself and injured his wife because the patient was outside of the scope of the facilitys range of observation and control even when the psychiatrist agreed to treat the patient the patient had suicidal tendencies and the psychologist took the patient into custody but then later permitted him to leave 1: holding that the disputed issue with respect to the state law bar was properly submitted to the jury 2: holding the issue of negligence was properly submitted to the jury and its finding of negligence was a reasonable inference because decedent had known suicidal tendencies and committed suicide while a patient at a psychiatric hospital 3: holding that ordinary negligence and gross negligence are not separate causes of action 4: holding that there was no evidence in the record to support appellants contention that the doctor committed a separate act of negligence by continuing to prescribe coumadin and that the doctors alleged failure to correct any previous negligence does not constitute additional acts of negligence


Input: Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993) (“Within the totality of circumstances, there is neither a threshold ‘magic number’ of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.”) (emphasis added); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n. 4 (7th Cir.1991) (recognizing that single, isolated incident of harassment can give rise to employer liability for racial harassment under Title VII). 119 F.3d at 873. While there is no minimum number of incidents, where a plaintiff alleges few incidents, they must be severe to establish a hostile work environment. See, e.g., Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1175 (10th Cir.1996)(<HOLDING>); Creamer v. Laid-law Transit, Inc., 86 F.3d Holdings: 0: holding that a single offensive racist comment was not sufficient to establish a hostile work environment 1: holding that the plaintiff failed to state an agebased hostile work environment claim where the plaintiffs proffered evidence was nothing more than a collection of unrelated and infrequent incidents of conduct by the defendants that the plaintiff subjectively construe as acts motived by agerelated animus and which was devoid of the agerelated comments or ridicule that are hallmarks of hostile work environment claims 2: holding that an isolated comment is not direct evidence of discrimination even if a plaintiff interpreted it as motivated by a discriminatory animus 3: holding that isolated remarks are insufficient to prove discriminatory intent 4: holding that one isolated comment and the use of the term girlie although regrettable do not demonstrate that the work environment  was permeated with discriminatory intimidation ridicule and insult


Input: United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Cronic was a companion case-to Strickland; however, in Cronic the question before the Supreme Court was whether counsel’s representation was such that, even without a showing of prejudice, it might be presumed to have occurred. See id at 668, 104 S.Ct. 2052. Under the analysis developed in Cronic, such would be the case when counsel was absent during a critical stage of the trial. See id. at 659, 104 S.Ct. 2039. Case law has developed to instruct us that a determination of whether the absence of counsel has occurred at a critical stage is dependent upon whether the evidence presented during counsel’s absence was directly inculpa-tory of the defendant. See U.S. v. Russell, 205 F.3d 768, 772 (5th Cir.2000) (<HOLDING>). Our review of the record leads us to conclude Holdings: 0: holding the absence of defense counsel during jury reinstruction to be a deprivation of counsel during a critical stage under clearly established federal law 1: holding cronic not applicable where counsel conceded his clients guilt to protect his own credibility and avoid conviction on other charges 2: holding that the cronic presumption should apply where counsel was absent for two days during which the probability of his guilt increased during the governments presentation of evidence against his coconspirators 3: holding that defendant was not in custody during search of his residence 4: holding that where defense counsel is absent for even a portion of voir dire reversal under cronic is required in the absence of a waiver


Input: ago the Wrongful Death Act was recognized as remedial legislation, Turon v. J. & L. Construction Company, 8 N.J. 543, 555, 86 A.2d 192 (1952), but was limited to “pecuniary injuries” sustained by qualified beneficiaries. N.J.S.A. 2A:31-4 and -5. The legislative remedy “permits recovery only of a survivor’s calculable economic loss.” Smith v. Whitaker, 160 N.J. 221, 232, 734 A.2d 243 (1999). A common form of pecuniary loss is future earnings that the “decedent would have contributed to his ... survivors had he lived.” Johnson v. Dobrosky, 187 N.J. 594, 607, 902 A.2d 238 (2006) (citing Curtis v. Finneran, 83 N.J. 563, 567-68, 417 A.2d 15 (1980)). However, pecuniary loss enc reported opinion of a state court comes from Florida. See Lindsay v. Allstate, 561 So.2d 427 (Fla.Dist.Ct.App.1990) (<HOLDING>). Although these decisions support the Law Holdings: 0: holding a wrongful death action may not be maintained for the death of an unborn child 1: holding that a cause of action for wrongful death is an asset of an estate 2: holding that the loss of prospective federal estate tax credits as a consequence of an insureds premature death is not an element of damages under the florida wrongful death act 3: holding that federal estate tax credits that the decedent would have received had he lived longer could not be recovered in a wrongful death action absent express legislative authority 4: holding that plaintiffs failure to prove decedents death was caused by the wrongful acts of the defendant precludes any recovery of wrongful death damages under mississippis wrongful death statute


Input: Law § 3105 and breaches of warranties under N.Y. Insurance Law § 3106,” see Second Am. Compl. ¶ 78, now seeking as relief, not only the right to disclaim coverage for the Heschel incident but also to void the CGL and UMB policies ab initio “based on Adas Yereim’s material non-disclosures.” Id. at pg. 17 (emphasis added). Incredibly, it was not until approximately ten months after the latest date GuideOne learned of the material facts concerning Adas Yereim’s alleged misrepresentations did it finally seek to exercise its claimed right to void its policies. With respect to GuideOne’s right to rescind, only Rip Van Winkle slept longer. Such delay is unreasonable as a matter of law. See Saitta v. New York City Transit Auth. et al., 55 A.D.3d 422, 423, 866 N.Y.S.2d 62, 63 (1st Dep’t 2008) (<HOLDING>). Nonetheless, concluding that the delay is Holdings: 0: holding that a five month delay was unreasonable 1: holding that a five month delay is unreasonable 2: holding that after learning the information justifying rescission an insurers four month delay in seeking it was unreasonable as a matter of law 3: holding that a six month delay was unreasonable 4: holding that a 13 month delay was unreasonable


Input: a theory not authorized by law. This difference sufficiently distinguishes the opinion in Arteaga from the facts of this case and renders application of Bowen and its progeny inappropriate. In this case, the verdict rendered by the jury was a general one—meaning, we are unable to determine whether some or all of the jurors believed Appellant was guilty of murder based upon a theory authorized by law (intentional or knowing conduct) or upon a theory not authorized by law (reckless or criminally negligent conduct). Because the record supports both possibilities, the appropriate remedy is not to acquit or to reform the judgment of conviction. The appropriate remedy is to reverse and remand for a new trial. Stromberg v. California, 283 U.S. 359, 367-70, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (<HOLDING>). Therefore,- we believe the appropriate remedy Holdings: 0: holding that a jury verdict will be sustained on any reasonable theory based on the evidence 1: holding that remand for resentencing is appropriate when sentence for reversed conviction appears to have influenced trial courts sentence for the affirmed conviction 2: holding remand for a new trial to be the appropriate remedy when conviction was based on a general jury verdict encompassing both a constitutional and an unconstitutional theory of conviction 3: holding that the appropriate remedy for a public trial violation was a new suppression hearing not a new trial because the remedy should be appropriate to the violation 4: holding that the appropriate remedy for a trial courts refusal to consider an indigent defendants request for new counsel is to remand for a hearing


Input: “guilty” as Chambers is here, for there is no doubt that Congress could “properly reach” the conduct there at issue — bribery in Guam. There, as here, we faced only the question whether Congress had done so through a valid statute. Even though the defendants in Sood had engaged in prohibitable and morally blameworthy conduct, we granted collateral relief because Congress had not prohibited their conduct through a valid enactment. Similarly, even if we assume that Chambers’ conduct fell within the core of the child pornography exception to the First Amendment, there is no valid statute on the books in this circuit that prohibits it. While perhaps morally “guilty,” he is legally innocent. There is d Cir.1982) (same) with Williams v. United States, 805 F.2d 1301, 1303-07 (7th Cir.1986) (<HOLDING>), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, Holdings: 0: holding frady applicable 1: holding frady inapplicable 2: holding rule applicable to witness 3: holding that the penalty is applicable 4: holding rehabilitation act applicable


Input: August 2008 complaint regarding being written up for excessive idle time and absences from his desk. Although Gardner generally testified that Elliott regularly subjected him to more excessive scrutiny than other employees and regularly harassed him and that other employees agreed that Gardner was being harassed or “persecuted,” such conclusory statements and allegations are insufficient to raise a fact issue: “If a witness provides a conclusion but does not provide underlying facts to support the conclusion, then the witness’s testimony is conclusory and legally insufficient to support a judgment.” Ortega v. Cach, LLC, 396 S.W.3d 622, 637 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (Frost, J., dissenting); see also Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per curiam) (<HOLDING>); Texas Div.-Tranter, Inc. v. Carrozza, 876 Holdings: 0: holding affiants statement that certain conduct constituted intentional or willful misconduct by defendant was conelusory because it stated conclusion and did not provide supporting facts 1: holding that a refusal to make false statements that no misconduct occurred is a very different circumstance  than an affirmative statement of misconduct 2: holding that the affiants statement  based upon his belief  did not demonstrate the personal knowledge required by fedrcivp 56e 3: holding that an employees purposeful violation of established safety rules despite instruction and warning constituted willful misconduct 4: holding appellate argument that statement violated rule 404b was improper because it was the defendant who elicited the statement at trial


Input: liability,” as well as steep civil fines, “on a broad range of ordinary industrial and commercial activities.” Rapanos v. United States, 547 U.S. 715, 721, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (internal citations omitted). Therefore, because the amount of jurisdictional wetlands existing on a tract of land has a significant impact on the value of that tract, evidence regarding jurisdictional wetland amounts is relevant and material to fixing just compensation. Accordingly, we conclude that the master was authorized to make a ruling as to the amount of jurisdictional wetlands existing on the parcel as of the condemnation date so that the just compensation owed to Normandy could ultimately be determined. Cf. State v. St. Charles Airline Lands, Inc., 871 So.2d 674 (La.Ct.App.2004) (<HOLDING>). B. Corps’ Authority to Make Jurisdictional Holdings: 0: recognizing that publicly targeting a property for condemnation resulting in economic damage to the owner generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property 1: holding that in condemnation proceedings the landowner has the burden of establishing the value of the property 2: holding that landowners testimony based on lot method was properly excluded in condemnation case involving property  that owner proposed to develop as mobile home park where subdivision development was speculative 3: holding that property owner still has relief in the form of the return of his property though condemnation was complete and a highway was constructed across the property 4: holding that the trial court was allowed to consider for the purpose of determining just compensation in a condemnation action expert testimony regarding whether the owner of the condemned property would have received permits to develop wetlands existing on the property


Input: the child because of incarceration, hospitalization, or other physical or mental incapacity; [or] (x) who is regularly exposed to illegal drug-related activity in the home. 2 . The house was owned by the great-grandmother of De.S. and occupied also by various aunts and uncles. 3 . In a related argument, appellant complains that the magistrate judge improperly permitted several witnesses to testify as rebuttal witnesses. Since the primary object of this proceeding is to determine the best interests of the child, we reject such a crabbed application of the rules of evidence. We have recognized previously the duty of the judicial officer to obtain a wide array of information in order to assure that the best interests of the child are served. See In re M.D., 758 A.2d 27, 33-34 (D.C.2000) (<HOLDING>) (internal quotations and citations omitted). Holdings: 0: holding that where the case is technically not closed and the ends of justice may best be served by the admission of crucial evidence it is an abuse of the trial courts discretion to deny the introduction of such evidence 1: holding that paramount consideration in terminationofparentalrights proceeding is best interests of the child 2: holding that the court has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority 3: holding that the trial court must specifically consider whether it would be in the best interest of the child for the case to proceed before a putative father may be permitted to seek blood tests in an attempt to rebut the presumption of paternity 4: holding that the trial court in a neglect proceeding has the paramount obligation  to protect the best interests of the child  and ought not to be passive in the face of what it recognizes is a deficient presentation of evidence in such a case the court may and should take affirmative steps to ensure that it has enough evidence before it to make an informed decision


Input: ability to use and enjoy the cottages, that limitation was not a deprivation of any property right. The Town’s actions here were all legitimate government actions intended simply to enforce its nuisance ordinances. ■ Such regulatory actions do not constitute a deprivation of property because they represent limitations on the use of property that “inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” Lucas, 505 U.S. at 1029, 112 S.Ct. 2886. Abating public nuisances and protecting the public trust have long been part of governmental authority in North Carolina. See, e.g., Ward v. Willis, 51 N.C. 183, 185 (1858) (discussing the public trust doctrine); Dunn v. Stone, 4 N.C. 241, 242 (1815) (<HOLDING>). By acting to abate what it believed was a Holdings: 0: recognizing that the government generally has the right to insist on performance in strict compliance with the contract specifications 1: recognizing a states interest in representing the interests of their citizens in enjoining public nuisances 2: holding that when the government acts to enforce public rights the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts 3: recognizing that a private citizen cannot sue to abate a public nuisance unless he has received an extraordinary and particular damage indicating that generally the government has the authority to act to abate such nuisances 4: holding a party has no standing to appeal unless he or she is an aggrieved party an individual who is not a parent in the eyes of the law has no legal interest in the child and therefore has no standing to appeal


Input: that Mr. Tompkins was aware of smoking risks since the 1950s when his wife began urging him to quit. A manufacturer has a duty to warn “the appropriate audience of all potential dangers of which it, through the exercise of reasonable care, knows or should know.” Ellis v. Cardiac Pacemakers, Inc., No. 96-CV-0535E(F), 1998 WL 401682, at *5 (W.D.N.Y. Jul.17, 1998). Yet there is no duty to warn consumers of “obvious risks and dangers,” which is defined to mean “those risks and dangers which could have been or should have been appreciated by the user or that can be recognized as a matter of common sense.” Pigliavento v. Tyler Equip. Corp., 248 A.D.2d 840, 842, 669 N.Y.S.2d 747 (3d Dep’t 1998); see also Liriano v. Hobart Corp., 92 N.Y.2d 232, 241, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998) (<HOLDING>); Butler v. Interlake Corp., 244 A.D.2d 913, Holdings: 0: holding that the airline had no duty to warn passengers of the potential hazards of flying with a head cold 1: holding that no duty to warn exists when hazards are known through general knowledge 2: holding that such a duty exists 3: holding that no legal duty exists to warn of the health risks of alcohol consumption because such risks are common knowledge 4: holding a duty to warn arises only when the potential victim is known and foreseeable


Input: the prosecutor referred not once but twice to the Supreme Court— both mentioning “automatic review” and that the interrogatory to be completed by the jurors also “goes to the Supreme Court.” We are unwilling to treat lightly the prosecutor’s pointed references to appellate review of this crucial decision. Statements, like those made by the prosecutor here, “can be literally true but quite misleading by failing, for example, to disclose information essential to make what was said not misleading.” Sawyer, 881 F.2d at 1285. As a result, a Caldwell violation may be established where a technically accurate statement describing the state appellate review process nonetheless “misled the jury to minimize its role in the sentencing process.” Driscoll v. Delo, 71 F.3d 701, 713 (8th Cir.1995) (<HOLDING>). Given the limited nature of the Delaware Holdings: 0: holding that under the alabama death penalty statute because the judge did not consider the jurys recommendation the statute which forced the jury to sentence the defendant to death whenever aggravating circumstances existed was not unconstitutional 1: holding that the fact that a judge had ruled against the defendant is not a basis for finding the judge prejudiced 2: holding that a defendant was not entitled to a relief under section 2255 when he asserted that the sentencing judge who was not the trial judge was influenced by the sentence imposed by the trial judge on a codefendant 3: holding that private individuals who conspired with judge could be sued even though judge could not 4: holding that prosecutor had violated caldwell by emphasizing that the trial judge could disregard the jurys recommendation of death even though no state judge had in fact ever done so


Input: Woodruff, 735 F.3d at 449 (emphasis add ed, quotation marks omitted). There is no meaningful distinction between possessing narcotics with intent to “manufacture, deliver or sell,” and possessing them with intent to “manufacture, import, export, distribute, or dispense.” Section 39-17-417 is a categorical controlled substance offense. With the predicate questions resolved, we can finally turn to the actions of the district court. At sentencing, the district court had before it a PSR stating that Defendant had violated one of two crimes — one a categorical controlled substance offense and one not. If Defendant had objected, the district court could not have decided which statute Defendant had violated based on the PSR’s vague description of the offense. Cf. Wynn, 579 F.3d at 576-77 (<HOLDING>). Defendant, however, did not object. In fact, Holdings: 0: holding that the categorical approach applies to  924c 1: holding that application of the modified categorical approach did not establish a covered conviction where the judgment of conviction did not contain the factual basis for the crime 2: holding that courts may consider a plea agreement and other documents contained in the record of conviction when applying the modified categorical approach 3: holding that a district court cannot use the psrs factual statements when applying the modified categorical approach 4: holding modified categorical approach unavailable where the statute of conviction was missing an element of the generic definition


Input: mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See, e.g., Quinn v. Webb Wheel Products, supra; Robinson v. Arkansas State Game & Fish Comm’n, 263 Ark. 462, 565 S.W.2d 433 (1978) (authority of courts to enter temporary orders despite expiration of the particular orders being litigated); Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987) (addressing question of candidate’s eligibility to run for office despite completion of election cycle). The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. This exception arose early in our caselaw and continues today. See, e.g., Forrest Constr., Inc. v. Milam, supra (<HOLDING>); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d Holdings: 0: recognizing that public utilities affect the public interest in that they render essential public services to a large number of the general public 1: holding that an issue is a matter of substantial public importance where it involves the use of property in a large subdivision and involves the rights of a large number of people 2: holding that no public policy stated where employee and not public at large would benefit from employees whistleblowing actions 3: holding that because of the boards special competence in the field of labor relations its interpretation of the act is accorded special deference and noting that whether a bargaining unit is appropriate involves a large measure of informed discretion vested in the board and is rarely to be disturbed 4: holding that the court will not consider an issue not raised in the district court unless 1 it involves a pure question of law and refusal to consider it would result in a miscarriage of justice 2 the party raising the issue had no opportunity to do so before the district court 3 the interest of substantial justice is at stake 4 the proper resolution is beyond any doubt or 5 the issue presents significant questions of general impact or great public concern


Input: testimony just generally describes the limitation caused by her condition. When asked whether her congenital heart disease causes any restrictions on her day-today activities, Plaintiff responded that she was instructed to “stay off her feet as much as possible.” (First Reis Depo. at 16-17). In contrast, the deposition testimony of Plaintiff shows that she was able to perform activities involving standing. Plaintiff testified that she was able to feed herself, bathe herself, and prepare her own meals. (Id. at 16). She also testified that she was able to walk and go up and down escalators and elevators. (Id.). Furthermore, Plaintiff acted as a substitute teacher of young children without special consideration or assistance. (Id. at 14-15, 17). She testified th 1311, 1319 (8th Cir.1996) (<HOLDING>); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Holdings: 0: holding that a lifting restriction of ten pounds did not constitute a physical impairment that substantially limited a major life activity 1: holding that a permanent lifting restriction of no more than twentyfive pounds on a continuous basis is not substantially limiting 2: holding that a lifting restriction did not substantially limit a computer technicians ability to engage in the major life activity of working 3: holding that a twentyfive pounds lifting restriction did not substantially limit any major life activities 4: holding that restriction limiting continuous lifting of containers weighing fortyfour to fiftysix pounds does not substantially limit any major life activity


Input: adjudication. The Puerto Rico high court has at least discussed, and has seemingly signaled, the existence of an inverse condemnation remedy.... We think [that the appellants] must pursue that remedy before they can maintain a federal damages claim.... Id. at 514-15. So it is here. If the plaintiff were to pursue the inverse condemnation remedy, the local courts would be presented with an issue of first impression under Puerto Rico law. Until he travels that road, the availability vel non of the inverse condemnation remedy remains open to question. It is the claimant’s burden to prove that the potential state remedy is unavailable, and uncertainty prevents him from carrying that burden. Consequently, his section 1983 takings claims are unripe. See Gilbert, 932 F.2d at 64-65 (<HOLDING>). The plaintiffs second argument focuses on the Holdings: 0: holding that plaintiff had failed to state a claim for relief under section 1983 1: holding that due process is not violated when a state employee intentionally deprives an individual of property or liberty so long as the state provides a meaningful postdeprivation remedy such as an article 78 proceeding 2: holding that as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority a court should not vacate his decision 3: holding as long as the defendant has an adequate opportunity to impeach the reliability of a scientific test and the qualifications of the person administering the test due process is not implicated by a states good faith failure to preserve a sample for independent testing 4: holding that as long as the state provides an arguably adequate process for securing compensation for a taking federal intervention un der section 1983 before the claimant has resorted to that procedure is premature


Input: held that the “standard Severance” referenced in the RIAs was the West Gulf Bank Schedule and that these two documents could be analyzed independently of the ERISA Plan. But as discussed above, the West Gulf Bank Schedule was an improper attempt to amend the ERISA Plan’s schedule of benefits, which was subsequently incorporated by formal amendment to the Plan. Accordingly, even if the “standard Severance” to which the RIAs refer is the severance benefit described in the West Gulf Bank Schedule, that Schedule itself relates to and is an improper attempt to amend the ERISA Plan. See 365 S.W.3d at 777 (Mas-sengale, J., concurring). In turn, any benefits must be calculated pursuant to the ERISA Plan, which, as amended, sets out the 6-and-26 schedule described above. See Epps, 7 F.3d at 45 (<HOLDING>). We thus agree with the concurring justice in Holdings: 0: holding that an employees claim against plan administrator for denied benefits is preempted 1: holding that an employees claim for breach of a letter agreement was preempted by erisa where the agreement did not specify the amount or other terms of the employees retirement benefits and the court would have to refer to the employers erisagoverned retirement plan to determine the employees retirement benefits and calculate the damages claimed 2: holding that an employees claim for wrongful discharge based on the employers desire to avoid contributing to or paying benefits under the employees pension fund is preempted by erisa even though the claims are asserted under tort theories not erisa and seek damages only in the form of lost wages mental anguish and punitive damages not benefits under the plan 3: holding that retirement benefits are accrued benefits under erisa 4: holding that military retirement benefits are current pay and thus significantly different than other retirement benefits


Input: some two and a half years later, no violent acts had occurred on her property or in the general vicinity of her property. The record also shows that the police had no knowledge of any threats being made against the employees of the massage parlor, nor did the victim’s own husband. In addition, the victim never expressed any concern over her safety or security at the massage parlor. Since there is no evidence in the record of any previous incidents of violence or threats against the victim which would have placed the Defendant on notice of the likelihood of the victim’s murder, Plaintiffs have failed to establish the victim’s murder was foreseeable. See Napper v. Kenwood Drive-In Theatre, 310 S.W.2d 270, 272 (1958) and Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054 (E.D.Ky.1995) (<HOLDING>). As such, Defendant Seawright is entitled to Holdings: 0: holding that duty to protect from criminal acts does not arise in the absence of a foreseeable risk of harm 1: holding that 8 incidents of assault theft robbery or burglary on the premises and 80 similar incidents within a 2bloek area within the prior 3 years did not constitute special circumstances giving rise to a duty to protect 2: holding that walmart was not under a duty to protect a patron from a criminal assault absent prior similar incidents at their facility or in the general area 3: holding that jury could conclude from prior incidents involving breaches of the peace  that the assault in the parking lot was a significant foreseeable possibility which defendant had a duty to guard against 4: recognizing drug traffickers will commonly possess firearms to protect their product to protect their drugs to protect their cash to protect their life and even to protect their turf alteration in original internal quotation marks omit ted


Input: and the proposed order together constituted the motion for injunctive relief, the district court properly treated the two documents as a signed motion. Carman next argues that the district court abused its discretion by granting the defendants’ motion for sanctions. Carman’s signature indicated that “to the best of ... [his] knowledge, information, and belief formed after reasonable inquiry [his motion] is well grounded in fact and is warranted by existing law ... and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ. Pro. 11. Carman’s pro se status did not entitle him to disregard the Federal Rules of Civil Procedure. See Kurkowski v. Volcker, 819 F.2d 201, 204 (8th Cir.1987) (<HOLDING>). Moreover, the district court gave Carman Holdings: 0: holding that when the administrative procedure is not empowered to achieve the end sought in the legal action the procedure is unavailable because it cannot accomplish the purpose of the legal action 1: holding that ignorance of the law or legal procedure is no excuse for filing a frivolous action 2: holding that ignorance or misunderstanding of the law would not toll the running of the statute of limitations 3: holding that proof of willfulness in criminal tax cases requires negating a defendants claim of ignorance of the law or a claim that because of a misunderstanding of the law he had a goodfaith belief that he was not violating the law 4: holding petitioners alleged ignorance of aedpas statute of limitations is insufficient to warrant equitable tolling


Input: to that before us. See, Mo. Ann. Stat. § 288.040 (Vernon Cum. Supp. 1996); N.H. Rev. Stat. Ann. § 282-A:14 (1987 & Cum. Supp. 1995); Ohio Rev. Code Ann. § 4141.31 (Anderson 1995); S.D. Codified Laws Ann. § 61-6-20 (1993); Tenn. Code Ann. § 50-7-303 (Supp. 1995). However, it does not appear that these states have addressed the issue presented by this case. A review of the opinions from states with dissimilar statutes shows that they are split on the issue of whether the receipt of either workers’ compensation or unemployment benefits bars or causes an offset from the receipt of the other. As urged by Porter, some states allow awards of both workers’ compensation and unemployment benefits simultaneously. See, e.g., Levi Strauss & Co. v. Laymance, 38 Ark. App. 55, 828 S.W.2d 356 (1992) (<HOLDING>); Mendez v. Southwest Com. Health Services, 104 Holdings: 0: holding that in absence of statute prohibiting recovery claimant may receive workers compensation and unemployment benefits simultaneously 1: holding that a totally disabled claimant whose preexisting osteoarthritis was temporarily aggravated by her employment was entitled to temporary total disability benefits but not permanent total disability benefits because there was no causal connection between the temporary aggravation and the permanent disability 2: holding that workers compensation statutes do not prohibit claimant from receiving permanent partial disability benefits from prior accident concurrently with temporary total disability benefits from subsequent injury 3: holding that disability pension benefits could be offset against both temporary and total permanent disability compensation benefits 4: holding that claimant may simultaneously receive unemployment benefits and workers compensation for temporary partial disability where statute only precludes receipt of workers compensation for temporary total or permanent total disability if claimant is receiving unemployment benefits


Input: to alter or amend judgment did not fill the gap. With the case already on appeal, the district court denied Experian’s motion on jurisdictional grounds but suggested that it would grant Experian’s motion if it still had jurisdiction, staying its prior order to file the documents in the public record pending our resolution of the appeal. According to the district court, Phillips would govern the motion and good cause existed for placing Experian’s documents under seal. Because the documents at issue here were attached to a dispositive motion, however, Phillips does not provide the proper standard. A determination by the district court that good cause exists for sealing Experian’s documents does not establish that there are “compelling reasons” to do so. See Kamakana, 447 F.3d at 1180 (<HOLDING>). Instead, the court must decide whether Holdings: 0: holding that a good cause showing  will not suffice to fulfill the compelling reasons standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments 1: holding that to gain a protective order the party must make particularized showing of good cause with respect to any individual document 2: holding that intervening conduct may be used to rebut the presumption of vindictiveness 3: holding that once a court has found good cause to protect material from public disclosure there is no longer any commonlaw right of access to this material and the party seeking disclosure must present sufficiently compelling reasons why the sealed discovery document should be released 4: holding that the burden of showing that a harm will result from disclosure is on the party that seeks nondisclosure rather than on the party that seeks access


Input: See Padilla, 122 N.M. at 97, 920 P.2d at 1051 (noting that showmp identification lacked reli ability where witness had no opportunity to see the perpetrator’s face). {24} A second factor is the accuracy of the pre-identification descriptions the witnesses gave. See Manson, 432 U.S. at 114, 97 S.Ct. 2243; Neil, 409 U.S. at 199, 93 S.Ct. 375. Petitioner is African-American, and only one of the two witnesses identified the perpetrator as African-American prior to the showup identification. The other witness described the perpetrator as Hispanic. A description of the race of the perpetrator that does not match the race of the defendant casts doubt on the reliability of the subsequent showup identification. See United States v. de Jesus-Rios, 990 F.2d 672, 678 (1st Cir.1993) (<HOLDING>). The witness whose description of the Holdings: 0: holding that more favorable treatment of similarly situated employees outside the race classification is required to make a prima facie race discrimination case 1: recognizing that certain forms of race consciousness do not lead inevitably to impermissible race discrimination 2: holding that showup identification should have been suppressed where witnesss description of the perpetrators race did not accurately describe the defendants race 3: holding that the race of the prosecutor is irrelevant 4: holding that custody decision based on race is not justified


Input: should be strictly construed. Bergmann v. Boyce, 109 Nev. 670, 679, 856 P.2d 560, 565-66 (1993). Accordingly, we conclude that the district court erred in awarding IOV2 percent interest on the judgment rather than the statutory rate, and reverse and remand this portion of the judgment with instructions to amend the award by applying the statutory rate. Prejudgment interest on costs Appellants maintain that the district court order can be read to require prejudgment interest on the award of costs since it provides that interest on the entire judgment should be awarded from the date of service of the complaint. First, appellants argue that interest should not be awarded on costs at all. See National Educators Life Insurance Company v. Apache Lanes, Inc., 555 P.2d 600, 602 (Okla. 1976) (<HOLDING>); Cajun Electric Power Cooperative v. Holdings: 0: recognizing general rule that prejudgment interest may be awarded in claims for liquidated amounts 1: holding that a proper determination of the questions of law  cannot be made in the absence of suitable findings 2: holding that no interest is paid on benefits awarded based on a finding of cue 3: holding that in the absence of statutory authorization interest cannot be awarded on costs 4: holding that credit cannot be awarded for time served on community control


Input: a specific intent statute that requires proof that a defendant had knowledge of an alleged violation? Minn.Stat. § 340A.503, subd. 1(a)(1), provides that it is unlawful for any “[r]etail intoxicating liquor or 3.2 percent malt liquor licensee, municipal liquor store, or bottle club permit holder under section 340A.414, to permit any person under the age of 21 years to drink alcoholic beverages on the licensed premises or within the municipal liquor store[.]” Appellant argues that the term “permit,” as used in the statute, must incorporate a requirement of proof of knowledge or specific intent on the part of a defendant, otherwise a licensee will be unconstitutionally held vicariously criminally hable for the acts of its employees. See State v. Guminga, 395 N.W.2d 344, 349 (Minn.1986) (<HOLDING>). The current statute, MinmStat. § 340A.503, Holdings: 0: holding that dna act violates neither substantive nor procedural due process under the fifth amendment 1: recognizing  1983 substantive due process claim 2: holding a judgment in the absence of notice violates due process rights 3: holding vicarious liability imposed on employers whose employees served alcohol to minors violates substantive due process provision of minnesota constitution 4: holding that a conflict of interest on the part of the prosecution violates the due process clause of the virginia constitution


Input: potential liabilities and whether the purchasing corporation has “substantial ties” to the selling corporation. See Mexico Feed & Seed Corp., 980 F.2d at 489; Louisiana-Pacific Corp., 909 F.2d at 1265-1266; Elf Atochem North America v. United States, 908 F.Supp. 275, 282-283 (E.D.Pa.1995); United States v. Peirce, 1995 WL 356017 (N.D.N.Y. Feb.21, 1995); United States v. Atlas Minerals and Chemicals, Inc., 824 F.Supp. 46, 51 (E.D.Pa.1993). The Court agrees with the district court in Peirce that these factors, while not dispositive, should be considered along with the other factors set forth in Carolina Transformer Co. in determining whether successor liability should attach under the substantial continuity test. Cf. Atlantic Richfield Co. v. Blosenski, 847 F.Supp. 1261 (E.D.Pa.1994) (<HOLDING>). Although the appropriateness of these two Holdings: 0: holding that strict compliance is not required 1: holding that notice not required because cercla is a strict liability statute 2: recognizing cercla successor liability 3: holding that apportionment of cercla liability is  a matter of federal common law 4: recognizing strict product liability actions


Input: GAJARSA, Circuit Judge. Alejandrino Manangan responds to the issue whether his petition for review should be dismissed. Manangan petitioned this court for review of a Merit Systems Protection Board decision denying his request for a deferred retirement annuity under the Civil Service Retirement System (CSRS). In the initial decision, the administrative judge determined that Manangan was not entitled to a Civil Service Retirement Act (CSRA) annuity because his service was pursuant to excepted temporary or indefinite appointments. See Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed.Cir.1995) (upholding OPM’s interpretation that an indefinite appointment is excluded from CSRS coverage); see also Casilang v. Office of Personnel Management, 248 F.3d 1381, 1383 (Fed.Cir.2001) (<HOLDING>). Manangan argues in his response that his case Holdings: 0: holding that the appeal was properly before the court where the appellant appealed from an order amending a prior order without appealing from the prior order 1: holding that the revocation of executive order no 10180 in 1955 did not automatically convert indefinite excluded appointments into appointments covered by the csra because executive order no 10530 kept in place the exclusion of nonpermanent employees from coverage by the csra effected by executive order no 10180 until the civil service commission promulgated new regulations which it did in 1956 2: holding that an order by the trial court remanding the cause to the agency to impose a sanction other than the one imposed by the agency was not a final and appealable order because it did not terminate the litigation between the parties on the merits 3: holding that when the executive branch defaults a district court has the authority to appoint a prosecutor for contempt proceedings in order to preserve respect for the judicial system itself 4: holding order granting a new trial is not a final appealable order because it does not terminate the action or any of the claims or parties in the action


Input: opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified ....” Rule 37(a)(4), M.R.Civ.P. ¶55 We agree with the District Court that Ribi should have been allowed to discover the drafting history of the CGL policy’s pollution exclusion and that Travelers, as the party seeking protection, failed to show good cause for its omission. Although the issues were ultimately adjudged in its favor, Travelers was not substantially justified seeking a protective order at the time due to the substantial case law relying on the drafting history in interpreting the “sudden and accidental” clause and its potential relevancy in aiding the court’s determination. See, e.g., Textron v. Aetna Cas. & Sur. Co. (R.I. 2000), 754 A.2d 742, 751 (<HOLDING>); Nestle Food Corp. v. Aetna Cas. & Sur. Co. Holdings: 0: holding that a claim of faulty workmanship that results in damage to property other than the work product is an accident and that a cgl policy is not intended to insure business risks that are the normal frequent or predictable consequences of doing business and which businesses can control and manage    a cgl policy does not insure the insureds work itself rather it insures consequential damages that stem from that work    as a result a cgl policy may provide coverage for claims arising out of tort breaches of contract and statutory liabilities as long as the requisite accidental occurrence and property damage are present 1: holding that a discharge continuously or even sporadically over a period of time cannot be considered sudden within the meaning of the pollution exclusion 2: holding that the drafting history of the sudden and accidental exception to the pollution exclusion clause of a cgl policy facilitated an interpretation of sudden to include unexpected 3: holding that the release of carbon monoxide into an apartment is not the type of environmental pollution contemplated by the pollution exclusion clause 4: holding accidental rupture of insureds oil tanks during a flood subject to pollution exclusion clause


Input: officer to enter the bedroom to conduct a search during the interview. Id. No officers restrained Perrin or positioned themselves so as to inhibit his exit. Id. at 721. Like Officer Goodman, the officer there did not raise his voice or threaten Perrin; and like Perrin, Huether had no trouble “understanding or answering questions about internet use and child pornography.” Id. at 720. The circumstances were such that Perrin would have considered himself free not to answer the officer’s questions and leave the premises, and therefore not in. custody when he confessed to possessing child pornography. Id. at 721. Perrin reiterates that this court has held “circumstances more dominated by police were not custodial.” Id. (citing United States v. Czichray, 378 F.3d 822, 825, 830 (8th Cir.2004) (<HOLDING>)); United States v. LeBrun, 363 F.3d 715, 721 Holdings: 0: holding that defendant was not in miranda custody during knock and talk interview at his residence 1: holding a defendant was not in custody for purposes of miranda after he consented to go to police headquarters 2: holding that two beatings which were four years apart lasted only a few hours each and did not result in serious injury did not constitute persecution 3: holding that a chiropractor was not in custody for miranda purposes despite an ensuing interview which lasted nearly seven hours 4: holding miranda inapplicable because defendant not in custody


Input: doctrine "is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims he is suffering.” Deravin, 335 F.3d at 201 (citation, internal quotation marks, and brackets omitted); cf. Fed. Express Corp. v. Holowecki, - U.S. -, 128 S.Ct. 1147, 1160, 170 L.Ed.2d 10 (2008) (“Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies.”). 7 . This is not a case in which the plaintiff alleges retaliation for filing the very EEO charge that served to exhaust the plaintiffs other claims. See Terry, 336 F.3d at 151 (<HOLDING>). The plaintiff did not file an EEO complaint Holdings: 0: recognizing that issue exhaustion is a mandatory although not jurisdictional requirement 1: holding that the ftcas exhaustion requirement is jurisdictional 2: recognizing that the exhaustion requirement is relaxed in such cases 3: holding exhaustion requirement inapplicable when requiring exhaustion would be futile 4: recognizing that issue exhaustion requirement and requirement exhaustion of remedies are different


Input: to assist the judge in fixing an appropriate punishment. Id. It is well-settled that “[i]f the sentence was within the range set by the Legislature [for the crime with which the defendant was convicted], an appellate court will not interfere with the judgment.” Hudson v. Commonwealth, 10 Va.App. 158, 160-61, 390 S.E.2d 509, 510 (1990).’ “Thus, under Virginia’s corresponding provision to § 12-25-35(f), Ala.Code 1975, an appellate court’s review of a sentence, imposed under the initial standards is ‘limited to whether the sentence fell within the permissible statutory range.’ Smith v. Commonwealth, 26 Va.App. 620, 626, 496 S.E.2d 117, 120 (1998).” State v. Jones, 13 So.3d at 919-20 (footnotes omitted; emphasis added). See also Sistrunk v. State, 109 So.3d 205, 207 (Ala.Crim.App.2012) (<HOLDING>), and State v. Crittenden, 17 So.3d 253, 259 Holdings: 0: recognizing that we review the sentence imposed by a district court under the abuse of discretion standard 1: recognizing that congress instructed the sentencing commission that the sentencing ranges could not include sentences in excess of the statutory maxima 2: holding presumptive sentencing standards applied retroactively where defendant objected at sentencing hearing on the basis that the presumptive sentencing standards applied to his case 3: recognizing the limited appellate review of sentences imposed under the initial voluntary sentencing standards 4: holding that appellate review is limited to the issues specified in the coa


Input: the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”). Given that none of the Board precedents discussing the impact of a public-to-private change on the issue of successorship addresses the right-to-strike point, there was no reason for the Board to suspect that this was the objection Dean was raising. Dean’s general reference to the different statutory schemes was therefore insufficient to put the Board on “ ‘adequate notice’ of the argument [the company now] seeks to advance on review,” and we are barred from considering it. Highlands Hosp. Corp., Inc. v. NLRB, 508 F.3d 28, 33 (D.C.Cir.2007) (quoting American Postal Workers Union v. NLRB, 370 F.3d 25, 28 (D.C.Cir.2004)); cf. id. (<HOLDING>). Ill Dean also maintains that the unit of Holdings: 0: holding that notice of judgment was insufficient 1: holding that the denial of petitioners appeal to the bia would have put a reasonable person in the petitioners position on notice that something was wrong with his attorneys preparation for the removal hearing 2: holding that a petitioners generalized reference to the excessive breadth of a remedy with multiple parts was insufficient to put the board on notice that the petitioner was challenging the adequacy of the justification for an affirmative bargaining order 3: holding that petitioners reliance on a case which concluded that a defendants right to a fair trial was violated was insufficient to place court on notice that petitioner was advancing a constitutional due process claim because the decision was based on state law 4: holding that generalized notice of copyright infringements was insufficient to establish knowledge for the purpose of contributory liability


Input: 285 P.3d 860 (2012). Because the City did not charge the public a fee for using the 1-90 trail, the only question is whether genuine issues of material fact exist as to whether the trail was open for recreational purposes. I. A landowner cannot “open” land that is already open to the public and that the landowner lacks authority to close ¶29 The recreational immunity statute applies only to those landowners with “lawful possession and control” over land who “allow members of the public” to use it “for the purposes of outdoor recreation.” RCW 4.24.210(1). A landowner has “lawful possession and control” over land if it holds “continuing authority to determine whether the land should be open to the public.” Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 557-58, 872 P.2d 524 (1994) (<HOLDING>). Absent that authority, a landowner cannot Holdings: 0: holding that whether the public invitee may have some commercial purpose in mind was irrelevant to recreational immunity instead by opening up the lands for recreational use without a fee the landowner brought itself under the protection of the immunity statute 1: holding that the court evaluating a claim of qualified immunity must first determine whether the plaintiff states a claim of a constitutional violation at all and then must determine whether the claimed right was clearly established before proceeding to the qualified immunity question 2: recognizing that a landowner cancontrol who uses his land for recreational purposes and that sjuch discretion should not result in the forfeiture of the immunity that thehrus provides 3: holding contractors could not claim recreational immunity because they had no continuing authority to determine whether the land should be open to the public 4: holding that so long as seattle city light opened up the diablo dam to the public for recreation immunity applied despite a contractual provision compelling it to open land for public recreational purposes


Input: 807 F.2d 359, 368 (4th Cir.1986) (“From beginning to end, it is obvious that Appellants proffered [the person] as an expert witness to testify in substantial part to the meaning and applicability of [law]. This flies squarely in the face of the precedent — and the logic of that precedent ....”). Courts make one exception to this strict rule — when interpreting foreign law, expert legal opinion may be allowed. See Nieves-Villanueva, 133 F.3d at 99; Marx & Co., 550 F.2d at 510. Experts may also give limited testimony on mixed questions of law and fact, but the testimony must remain focused on helping the jury or judge understand particular facts in issue and not opine on the ultimate legal conclusion. See, e.g., In re Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 826-27 (2d Cir.1994) (<HOLDING>); Specht, 853 F.2d at 809-10 (discussing the Holdings: 0: holding that experts testimony that defendants engaged in fraud and deceit was admissible because the words were used in colloquial fashion but statement that defendants violated federal regulations was inadmissible as a legal conclusion 1: holding an affidavit statement referring to the notice required for a binding contract was inadmissible as a legal conclusion 2: holding that engineers testimony that defendant was negligent was an improper legal conclusion 3: holding that although defendants voluntarily given initial statement was inadmissible because of miranda violation subsequent statement made after careful miranda warnings were given and waiver was obtained was admissible 4: holding that the victims statement was inadmissible when made two to three hours after victim was allegedly raped because the victims testimony supported the conclusion that her statement was made with conscious reflection


Input: suffered as a result of an intrusive security search during the embarkation process. Id. Although plaintiff had no cause of action under the Convention' — because she had not suffered any bodily injury — she was nevertheless prohibited from circumventing its restrictions by bringing an action to recover under local law. Id. In the case at bar, Plaintiff admits that she is suing to recover damages only for emotional injuries suffered as a result Richer’s alleged discrimination. (Doc. # 41, 43:9-144:3). Consequently, although she cannot maintain a cause of action under Article 17, her claim is nonetheless preempted because it arose from events that took place during embarkation of an international flight. See, e.g., King v. American Airlines, Inc., 284 F.3d 352, 355 (2d Cir.2002) (<HOLDING>); Waters v. Port Auth, 158 F.Supp.2d 415, 429 Holdings: 0: holding that federal common law is the law that would govern in the absence of the warsaw convention 1: holding the state law claims were not preempted 2: holding that passengers discrimination claims brought under 42 usc  1981 fell within the substantive scope of and were preempted by the warsaw convention because the claims arose from events that occurred during the course of embarkation of an international flight 3: holding plaintiffs breach of contract claims fell outside the scope of the montreal convention because the plain language of article 19 of the montreal convention indicates that it governs claims for delay not nonperformance 4: holding that additional claims brought under state law are preempted by the montreal convention


Input: petition when the case was remanded to the circuit court from the federal court. As such, the appellant was blindsided by the trial court’s judgment in that, prior to the judgment entry, it was never put on notice as to a Rule 55.09 justification for granting summary judgment. This would have been true even if the appellant had been given the requisite 30 days to respond. Without such notice, the appellant’s due process right to respond to the respondent’s motion was effectively denied by the trial court’s failure to confine itself to the alleged undisputed facts of the summary judgment record made, providing an additional basis for us to reverse the court’s grant of summary judgment. Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo.App.1999) (citation omitted) (<HOLDING>). II. In Point II, the appellant claims that Holdings: 0: holding that motions to dismiss should have been converted into motions for summary judgment where the district court relied upon contract documents submitted by the defendant 1: holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed 2: holding that the trial court grants or denies motions for summary judgment on the basis of what is contained in the motions for summary judgment and the responses thereto 3: holding summary judgment motions in abeyance for possible evidentiary hearing 4: holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed


Input: Millman v. Brinkley, 2004 WL 2284505, at *3 (N.D.Ga. Oct. 1, 2004) (appointing lead plaintiffs on the basis of: (1) continuous ownership of stock by the selected plaintiffs; (2) failure to file a verified complaint by another applicant for lead plaintiff; and (3) the strength of their lawyers' pleadings); Dollens v. Zionts, 2001 WL 1543524, at *5-6 (N.D.Ill. Dec. 4, 2001) (evaluating the plaintiff's financial stake in the defendant-corporation, status as institutional investors, quality of pleadings, and vig-orousness of prosecution). 67 . See Kenney v. Koenig, 426 F.Supp.2d 1175, 1187-88 (D.Colo.2006) (denying plaintiff's request to dismiss without prejudice and with leave to amend); see also West Coast Mgmt. & Capital LLC v. Carrier Access Corp., 914 A.2d 636 (Del.Ch.2006) (<HOLDING>). If (counterfactually) King had brought his Holdings: 0: holding that a demand for jury trial should be denied if the issues in the original complaint and the amended complaint turn on the same matrix of facts 1: holding that plaintiffs wishing to inspect books and records for purposes of pleading demand futility in an amended derivative complaint had a proper purpose 2: holding that if a plaintiff cannot demonstrate he is able to amend his complaint in a manner which would survive dismissal opportunity to replead is rightfully denied 3: holding that the trial court properly struck the amended complaint when the plaintiff offered no reason to refute the trial courts finding that the new allegations in the amended complaint were based on facts the plaintiff had known since the beginning of the action 4: holding that plaintiff lacked a proper purpose for bringing a section 220 action because the federal judge in kenney had denied plaintiffs request to replead demand futility in an amended complaint


Input: of showing insufficient service. Internet Solutions, 509 F.3d at 1165. Here, whether Defendant had notice of the proceeding before default was entered is a disputed issue of fact. (See Hearing Transcript at 6:21-7:1.) Because the Court finds that Plaintiff has proven that notice was properly served, it need not determine whether Defendant had actual notice and should bear the burden of proof for this Motion. 7 . See, e.g., Saxon Mortg. Servs., Inc. v. Hillery, No. C-08-4357 EMC, 2008 WL 5170180, at *2-3 (N.D.Cal. Dec. 9, 2008) (finding declarations of defendant and her co-habitant that process was not served properly insufficient to defeat presumption created by signed return of service); Holmes v. Plath, No. 1:01-cv-06359-AWI-GSAPC, 2011 WL 864301, at *1 (E.D.Cal. Mar. 10, 2011) (<HOLDING>); Am. Honda Motor Co., Inc. v. AZGrafix, No. Holdings: 0: holding that the presumption that rule 45 does not apply to the federal government can only be overcome by affirmative evidence 1: holding that the defendant cannot overcome this presumption of service merely by denying that he did not receive the complaint 2: recognizing this presumption 3: recognizing presumption and finding that it was overcome 4: holding evidence insufficient to overcome presumption of correctness


Input: also claims that he was prejudiced by the prosecutor’s closing argument concerning his prior convictions. According to defendant, the State’s comment was improper in that it called attention to the fact that his prior convictions were of the same crime with which he was charged here. Defendant waived this argument. In order to preserve an error for review, a defendant must both object to the alleged error at trial and renew the objection in his written posttrial motion. People v. Hunter, 331 Ill. App. 3d 1017, 1029 (2002); People v. Bennett, 304 Ill. App. 3d 69, 71 (1999). In this case, defendant failed to preserve this error for review because he did not object to the State’s comment at the time it was made and he abandoned his posttrial motions. See Land, 178 Ill. App. 3d at 256 (<HOLDING>). Defendant claims that any failure to object Holdings: 0: holding that failure to file a postjudgment motion on alleged error of law relating to ruling on exception to the statute of frauds that was committed for first time in the judgment waives any objection to that ruling and that in the absence of any other formal objection the issue is not preserved for appellate review 1: holding issues not raised to and ruled upon by the trial court are not preserved for appellate review 2: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 3: holding that appellants failure to obtain a ruling at the trial level even on a constitutional issue precluded review on appeal 4: holding that the failure to obtain a ruling on a motion for new trial waives the issues raised for appellate review


Input: conducting new NEPA analyses. See 668 F.Supp.2d at 1333. Although the Court determined that the USFS was not required to conduct new NEPA analyses, nothing in the Court’s decision prevents the USFS from exercising its discretion to conduct new NEPA analyses for five of the twenty-six chai lenged allotments to reach a favorable settlement pending appeal. The Court gave the NMCGA an opportunity to present evidence and have its objections heard at a hearing that the Court held on February 1, 2011. After careful consideration of the applicable authorities, the Court is not inclined to recognize a special right on intervenors’ behalf to participate in and/or approve all settlements negotiated during the pendency of the litigation. See San Juan County, Utah v. United States, 503 F.3d at 1189 (<HOLDING>). While the Court recognizes that a certain Holdings: 0: holding that an intervenor lacked standing to challenge a settlement agreement between the plaintiff and the united states on the grounds that one of the plaintiffs claims was fraudulent because the intervenors were not parties to the settlement and suffered no personal harm from it notwithstanding the potential that its tax dollars went to pay the allegedly fraudulent claim 1: holding that an intervenor has no power to veto a settlement by other parties 2: holding that a district court has the inherent power to summarily enforce settlement agreements  in a pending case 3: holding that an appellate court has discretion to consider an issue not argued by the parties 4: holding that minor differences in opinion between the parties and proposed intervenor fail  to demonstrate inadequacy of representation


Input: from wages that Gray and her husband earned during their marriage and are thus community property. See id. §§ 3.001, 3.002. More specifically, a portion of each overpayment is Gray’s sole management community property, and a portion is her husband’s sole management community property. See id. § 3.102. As Gray acknowledges, the IRS is entitled to offset against her husband’s separate tax liability (1) all joint management community property; (2) all of his sole management community property; and (3) half of Gray’s sole management community property. See id. § 3.202(c) (providing that a creditor may satisfy a debt from all community property subject to the liable spouse’s sole or joint management, control, and disposition); Medaris v. United States, 884 F.2d 832, 833-34 (5th Cir.1989) (<HOLDING>). The only issue the parties dispute is how to Holdings: 0: holding that employee spouses accrued but unvested retirement benefits are a contingent property interest and a community asset 1: holding that the irs may reach half of a nonliable spouses sole management community property to satisfy a liable spouses tax debt 2: holding that the tax was not direct even though it encompassed a spouses joint interest in the decedents property 3: holding that spouse could not claim exemption in property that was only property of other spouses estate 4: holding that a judgment debt against both spouses can be satisfied by selling the entireties property


Input: away from Oklahoma, we believe this is outweighed by the inconvenience to a Georgia resident who would be forced to sue in a foreign forum on a cause of action allegedly arising from that nonresident’s introduction of defective or negligently maintained goods into our stream of commerce. J. C. Penney Co. v. Malouf Co., 230 Ga. 140 (196 SE2d 145); and (4) Our legislature has given the courts of this state through enactment of our long arm statute the authority to entertain litigation against nonresidents who commit a tortious injury in this state. We find, on the balance, it to be "reasonable” to subject Rebel Aviation to Georgia’s personam jurisdiction, even though its sole "contact” with Georgia is this single activ . 178 (201 A2d 387) cert. den. 380 U.S. 907 (13 LE2d 795, 85 SC 888) (<HOLDING>). But see Terasse v. Wisconsin Feeder Pig Holdings: 0: holding that in analyzing whether a limited public forum has been created we consider the nature of the property or means of communication the governments purpose in permitting whatever limited access it has allowed and the conditions of access eg whether permission is required 1: holding that at will contracts of employment are subject to tortious interference with contracts claims 2: recognizing a university campus as limited public forum 3: holding in mcgee limited to suits involving contracts in which the forum has a unique interest 4: 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


Input: this hearing on behalf of Claimants and Claimants have not contacted the Court to explain this absence. The Court has since learned that Claimants’ attorney of record is no longer licensed to practice law in the State of Illinois. Claimants were ordered to have another attorney enter an appearance within sixty days, but have failed to do so. It is hereby ordered that this cause is dismissed for want of prosecution. 1 The contract record before us, consisting of nine compiled volumes of documentation, was filed by the Respondent only as a result of the Courts insistence (order of November 26, 1996) in the face of the Respondents foot dragging and the Claimants’ cavalierly passive discovery efforts. We have been tolerant of the Claimants, who recog 967), 38 Ill. 2d 31, 230 N.E.2d 173 (<HOLDING>). Claimants do not cite other prominent Holdings: 0: recognizing implied private action under the collection agency act 1: recognizing implied private action under the plat act rejecting implied private action under the national flood insurance act of 1968 2: recognizing implied private action under federal safety appliance act 3: recognizing private right of action 4: recognizing implied private action under the xray retention act


Input: argue that grounds exist to toll the statute of limitations from the time their cause of action accrued until they knew that LFUCG failed to report Berry’s abuse and continued funding Micro-City despite knowledge of his abuse. On remand from the Sixth Circuit decision in Doe, the district court made two rulings regarding tolling. First, the district court tolled the statutes of limitation for claims by putative class members against LFUCG from the time of Guy’s filing — October 15, 1998 — as ordered by the Sixth Circuit in Doe. The district court tolled the statutes of limitations only for claims against LFUCG (and not the individual defendants), because LFUCG was the only defendant in Guy. See, e.g., Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 567-68 (6th Cir.2005) (<HOLDING>). Second, the court tolled the statutes of Holdings: 0: holding that tolling applies to a subsequent class action when class certification was granted in a prior case 1: holding that tolling does not apply to additional defendants who were not named in the class action 2: holding that an additional remedy does not constitute an additional requirement 3: holding that it is error to certify class when named class representatives are not members of the class they purport to represent 4: holding that after a class is certified the controversy may exist  between a named defendant and a member of the class represented by the named plaintiff even though the claim of the named plaintiff has become moot


Input: that Davis only began writing the local editorials after Jeffery Prosser, the former owner of the Daily News, lost control of the newspaper. Further, it is uncontroverted that Times-Shamrock did not purchase the Daily News from Prosser until June 2008. And Ariel Melchoir, Jr., the publisher of the Daily News from 1977 to 2008, testified that on April 17, 2007, when the editorial was published, Prosser controlled what editorials were being published in the Daily News. Thus, all the evidence presented at trial tended to show that Crouch was the author of the editorial, and Judge Kendall failed to present any evidence that Crouch either knew the statements in the editorial were false or recklessly disregarded the truth. See Beeton v. District of Columbia, 779 A.2d 918, 924-25 (D.C. 2001) (<HOLDING>). We therefore affirm the Superior Court’s Holdings: 0: holding failure to investigate before publishing is not sufficient to prove actual malice 1: holding plaintiff failed to prove actual malice when author was never called as a witness to confirm that he wrote the article 2: holding when defamatory statement involved issue of public concern that private individual was required to prove actual malice to recover presumed or punitive damages against media defendant 3: holding plaintiff failed to present evidence of actual malice because defendants explanation of the mistaken statement shows negligence but no more than that 4: holding that plaintiff failed to prove reasonable reliance on a false statement


Input: suggested in Ruth has remained unanswered for nearly a quarter of a century, and the presumption that such orders are not immediately appealable in this jurisdiction has continued to govern state practice. See, e.g., People v. Berreth, 13 P.3d 1214 (Colo.2000) (issuing rule pursuant to C.A.R. 21 and barring retrial following erroneous declaration of mistrial); Sweaney v. Dist. Court, 713 P.2d 914 (Colo.1986) (issuing rule following denial of defendant’s motion to dismiss alleging violation of speedy trial provisions of Interstate Agreement on Detain-ers); Marquez v. Dist. Court, 200 Colo. 55, 613 P.2d 1302 (1980) (issuing rule following denial of defendant’s motion to dismiss for violation of statutory right to speedy trial); Hampton v. Dist. Court, 199 Colo. 104, 605 P.2d 54 (1980) (<HOLDING>); Brutcher v. Dist. Court, 195 Colo. 579, 580 Holdings: 0: holding original proceeding appropriate vehicle for resolution of defendants pretrial claim that he has been denied a speedy trial 1: holding that even where the case has been called for trial the trial is not deemed to have commenced for speedy trial purposes until the jury is empaneled voir dire has occurred or some other substantial step of trial begins 2: holding that the speedy trial provision is tolled when a defendants pretrial motion is pending 3: holding that whether a pretrial motion actually caused or is expected to cause delay of trial is irrelevant to the speedy trial act 4: holding that aggressiveness with which defendant asserted his speedy trial right was lacking because he merely filed one demand for speedy trial and opposed his original counsels withdrawal


Input: 721 S.W.2d 305, 308 (Tex.Crim.App.1986). The accused’s mere presence in the company of the informant before, during, and after the commission of the offense is insufficient by itself as corroboration, but evidence of such presence coupled with other “suspicious circumstances” may tend to connect the accused to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996) (interpreting accomplice witness corroboration requirement); Brown, 159 S.W.3d at 711; Torres, 137 S.W.3d at 196. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Brown, 159 S.W.3d at 711; Jefferson v. State, 99 S.W.3d 790, 793 (Tex.App.-Eastland 2003, pet. ref'd). Cumulative evidence of suspicious circumstanc mont 1999, pet. ref'd) (<HOLDING>). In this case, article 38.141 applies. The Holdings: 0: holding remedy for lack of sufficient corroborating evidence is acquittal 1: holding that evidence was sufficient to withstand a motion for acquittal where the threateninglanguage was not ambiguous 2: holding that the corroborating evidence need not be medical evidence if the appellant explains why medical evidence is not available 3: holding trial court properly overruled defendants motion for judgment of acquittal where corroborating evidence existed 4: holding that there is no need for a formal motion for a judgment of acquittal in a bench trial because the plea of not guilty asks the court for a judgment of acquittal


Input: removal, and relief under the Convention Against Torture (“CAT”). In re Zhiyun Thang, No. A094 798 077 (B.I.A. Apr. 14, 2010), af'g No. A094 798 077 (Immig.CtN.Y.City May 2, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Under the circumstances of this case, we have reviewed the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). The BIA reasonably concluded that Thang failed to demonstrate past persecut hang and his wife will have additional children in China is speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (<HOLDING>). Additionally, the State Department’s Profile Holdings: 0: holding that absent solid support in the record for the petitioners assertion that he would be subjected to persecution his fear was speculative at best 1: holding that in the absence of solid support in the record for an applicants assertion that she would be persecuted the bia did not err in denying asylum because her fear was speculative at best 2: holding that a fear of future persecution is not objectively reasonable if it lacks solid support in the record and is merely speculative at best 3: holding that in the absence of solid support in the record for an applicants assertion that he will be persecuted his fear is speculative at best 4: holding that absent solid support in the record that a fear is objectively reasonable a claim of future persecution is speculative at best


Input: Sappington, 512 F.3d at 448 (noting Rule 702’s liberalization of expert testimony admission standard). Then in Kumho Tire Co. v. Carmichael, the Court expressly extended its Daubert reasoning to all expert testimony, not simply that which was considered “scientific.” 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Interestingly, the liberalization of the standard for admission of expert testimony creates an intriguing juxtaposition with our oft-repeated abuse-of-discretion standard of review. While we adhere to this discretionary standard for review of the district court’s Rule 702 gatekeeping deeision, cases are legion that, correctly, under Daubert, call for the liberal admission of expert testimony. See, e.g., United States v. Finch, 630 F.3d 1057, 1062 (8th Cir.2011) (<HOLDING>); Robinson v. GEI-CO Gen. Ins. Co., 447 F.3d Holdings: 0: holding that federal evidentiary rules control on questions of admissibility of expert medical witness testimony even in diversity cases 1: recognizing that it is the proponents burden to demonstrate the admissibility of expert scientific testimony 2: holding that the burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert and admissibility must be shown by a preponderance of the evidence 3: holding that the admissibility of expert testimony was governed by state law 4: holding that we resolve doubts about the usefulness of expert testimony in favor of admissibility


Input: CANTERO, J., specially concurring. I agree with the majority that any violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), would be harmless error in this case. I write to express my belief that whether Apprendi and Blakely can even be applied at the resentencing of a defendant whose conviction and original sentence became final before those cases were decided depends on whether a new jury can be empaneled to decide facts relevant to sentencing. We already have held that Apprendi does not apply retroactively. See Hughes v. State, 901 So.2d 837 (Fla.2005). Presumably, neither does its offspring, Blakely. See, e.g., Hicks v. State, 905 So.2d 990, 991 (Fla. 3d DCA) (<HOLDING>), review denied, 917 So.2d 193 (Fla.2005); Holdings: 0: holding that apprendi does not apply retroactively to claims raised in a  2255 motion 1: holding that apprendi does not retroactively apply to  2241 petitions 2: holding that because apprendi does not apply retroactively neither does blakely 3: holding that blakely does not apply retroactively to  2255 motions 4: holding that apprendi does not retroactively apply to  2255 motions


Input: delivering the machine on the one hand, and accepting and paying for it on the other. ¶ 12. The indemnity provision, according to Image, was thus introduced after the formation of the parties' contract, and because it was never discussed or negotiated, it cannot be a part of the contract and is invalid. For support of its contention, Image relies on Wis. Stat. § 402.207 and several cases applying its provisions. See, e.g., Air Prods. & Chems., Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 214, 206 N.W.2d 414 (1973) (concluding that a proposed additional term which "materially alter[s]" a contract requires an "express conversation between the parties over its inclusion or exclusion in the contract"); Resch v. Greenlee Bros. & Co., 128 Wis. 2d 237, 244-45, 381 N.W.2d 590 (Ct. App. 1985) (<HOLDING>). ¶ 13. Deminsky, on the other hand, maintains Holdings: 0: holding as a matter of law that an indemnification provision contained in an invoice shipped with a machine constituted a material alteration under sec 4022072b and thus could not be deemed a part of the parties contract absent express agreement between the parties concerning its inclusion or exclusion 1: holding that even if the parties had formed a contract under  2207l the arbitration clause materially altered the contract and therefore did not become part of the parties agreement 2: holding that in the event that parties are from different states and the subject matter is national in scope and where the contract states it shall be deemed to be made under the laws of the state of new york and for all purposes construed in accordance with laws of said state new york law applies as the parties choice of law 3: holding that nolostprofits clause in parties agreement was not unconscionable as a matter of law in part because similar clause had been in the agreement between the parties for years 4: 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


Input: the trial, which is scheduled to begin in several weeks. Wells Fargo’s request to redepose Mr. and Mrs. Brush is denied. IV. Conclusion For the reasons stated above, this court orders that: • Wells Fargo’s motion for reconsideration is denied; • Wells Fargo’s motion for leave to file additional counterclaims and affirmative defenses is denied; • Wells Fargo’s supplemental motion for leave to file additional counterclaims and affirmative defenses is denied; • Wells Fargo’s motion for leave to take the plaintiffs’ depositions is denied. 1 . Wells Fargo makes this challenge in its Rule 12(c) motions but not in its summary judgment motion. In considering this argument, the court looks only to the sufficiency of the allegations in the Brushes' amended complaint. See Wolcott, 635 F.3d at 763 (<HOLDING>). Unless otherwise noted, the parties' Holdings: 0: recognizing that a court may rely on matters of which a court may take judicial notice 1: recognizing that a court is permitted to rely on documents incorporated into the complaint by reference and matters of which a court may take judicial notice 2: holding that a court in deciding a rule 12b6 motion may consider a document that is incorporated by reference into the complaint 3: holding that a court may rely on documents incorporated into the complaint by reference and matters of which a court may take judicial notice in deciding whether a complaint fails to state a claim upon which relief may be granted 4: holding that in considering a rule 12b6 motion a court may only rely on the complaint its proper attachments documents incorporated into the complaint by reference and matters of which a court may take judicial notice


Input: (Doc. 21 at p. 8 n.6 (citing Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1158-59 (10th Cir.2013) (en banc) (Gorsuch, J., concurring)). In Hobby Lobby, three of the eight judges sitting on the en banc court determined the AIA is non-jurisdietional. Hobby Lobby, 723 F.3d at 1152, 1157-59. Defendants are correct in arguing such a determination is not binding on this Court and does not alter prior Tenth Circuit (and Supreme Court) case law that held the AIA is a jurisdictional bar where it applies. (See Doc. 27 at p. 7.) See, e.g., Jefferson Cnty. v. Acker, 527 U.S. 423, 434, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (describing the AIA as “depriving courts of jurisdiction over [certain] suits”); Bob Jones Univ. v. Simon, 416 U.S. 725, 749, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (<HOLDING>); Hobby Lobby, 723 F.3d at 1126 (the majority Holdings: 0: holding the fourth circuit did not err in holding that  7421a the aia deprived the district court of jurisdiction 1: holding that because the circuit court did not have subjectmatter jurisdiction over the unlawfuldetainer action the district courts unauthorized transfer of the action could not transfer jurisdiction over that action to the circuit court 2: holding that trial court did not err 3: holding that when the district court improperly purported to transfer to the circuit court an action over which the circuit court lacked subjectmatter jurisdiction the circuit court was without jurisdiction to enter its judgment which was void and dismissing the appeal from that void judgment 4: holding that a transfer order issued by a district court in another circuit is reviewable only in the circuit of the transferor district court


Input: 514 U.S. at 561 and n. 3, 115 S.Ct. at 1630-31 and n. 3. In these circumstances, the Supreme Court “would have [had] to pile inference upon inference” to find a rational basis for concluding the statute “substantially affected] any sort of interstate commerce.” Id. at 567, 115 S.Ct. at 1634. This the Court declined to do, and so declared § 922(q) unconstitutional. Id. In contrast to the congressional silence in Lopez, Congress made voluminous findings when it enacted VAWA. Accordingly, we can begin where the Lopez Court could not, by “evaluating] the legislative judgment that the activity in question substantially affected interstate commerce.” Lopez, 514 U.S. at 563, 115 S.Ct. at 1632; see also City of Boerne v. Flores, — U.S. -, -, 117 S.Ct. 2157, 2169-2170, 138 L.Ed.2d 624 (1997) (<HOLDING>). ' In doing so, we recognize that discerning a Holdings: 0: recognizing the importance of historical analysis in determining whether legislation is punitive 1: recognizing the diminished importance of the state policy factor 2: recognizing the importance of the employers knowledge of the disability 3: recognizing prosecutors task to attempt to convince the court of the appropriateness of the recommendation 4: recognizing the importance of congressional findings in determining the appropriateness of congresss remedial measures