Input: review de novo a frivolousness determination that turns on an issue of law. Id. “Dismissal for frivolousness is only appropriate for a claim based on ah indisputably meritless legal theory.” Id. (internal quotation marks omitted). Claims should not be dismissed with prejudice unless “amendment would necessarily be futile.” Id. “In determining whether dismissal is proper, we accept the allegations in the complaint as true and construe those allegations and any reasonable inferences therefrom in the light most favorable to [Mr. Tennyson].” French v. Adams Cnty. Detention Ctr., 379 F.3d 1158, 1159 (10th Cir.2004). Because Mr. Tennyson is proceeding pro se, we liberally construe both his amended complaint and his arguments on appeal. See Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir.1991) (<HOLDING>); Cummings v. Evans, 161 F.3d 610, 613 (10th Holdings: 0: holding that allegations of pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers 1: holding that the allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers 2: holding that pro se pleadings are held to less stringent standards than those drafted by lawyers 3: recognizing pro se litigants pleadings are held to a less stringent standard 4: holding pro se litigants to less stringent standards than parties with the aid of counsel


Input: v. Long Island R.R., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987) (“The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.”). Moreover, the claim, which is based on the contention that plaintiffs were not aware of the risks involved in the transaction so that when the baht was pulled from the currency basket, Morgan realized an unbargained-for windfall, cannot be sustained. As already discussed, the risk involved in the transaction was patent, and a claim for unjust enrichment cannot be premised on a known risk. See Resolution Trust Corp. v. 58 W. 72nd St. Realty Assocs., No. 91 Civ. 3299, 1992 WL 183741, at *3 (S.D.N.Y. July 22, 1992) (<HOLDING>). Plaintiffs’ claims based on theories of Holdings: 0: holding that a claim for unjust enrichment should not be dismissed because the court may find that the express contract was no longer in force 1: holding that where a prior agreement fixed the salary of the plaintiff plaintiff could not seek to recover for his services on a theory of unjust enrichment 2: holding a claim for unjust enrichment could not be sustained where known risk would merely prevent the partys business expenditures from generating the return on investment which had been hoped for 3: holding that there is no cause of action in california for unjust enrichment 4: holding that unjust enrichment claim could prevail contrary to the ucc priority system


Input: arbitration made under Section 2(b); (3) An order confirming or denying confirmation of an award; (4) An order modifying or correcting an award; (5) An order vacating an award without directing a rehearing; or (6) A judgment or decree entered pursuant to the provisions of this act. (b) An appeal under this section shall be taken as from an order or a judgment in a civil action. 26 . HRS § 658A-28 is adopted verbatim from the RUAA. The RUAA section governing appeals provides as follows: § 28 Appeals. (а) An appeal may be taken from: (1) An order denying a [motion] to compel arbitration; (2) An order granting a [motion] to stay arbitration; (3) An order confirming or denying confirmation of an award; (4) An order modifying or correcting an award; (5) An o o.2d 147, 148-49 (Fla.App.1973) (<HOLDING>); Fayette Cnty. Farm Bureau Fed'n. v. Martin, Holdings: 0: holding that an order compelling arbitration is not immediately appealable because it is not final and because it is not listed in the uaa appeals provision 1: holding that an order remanding an arbitration award is not a final appealable order when the order does not also vacate the arbitration award 2: holding that an order granting a motion or application to compel arbitration is nonappealable because it is not listed in the uaa arbitration provision and because it is not a final order 3: holding that an order compelling arbitration is not appealable because it is not listed in the uaa statute and because it is not final 4: holding that orders compelling arbitration are not appealable not because of the uaa appeals provision but because it has been definitely settled by the supreme court of this state that an order compelling arbitration is not final and therefore is not appealable


Input: orders in Feathers v. Gansheimer and Feathers v. Wilson reflect that those cases were dismissed sua sponte and in their entirety for failure to satisfy this court’s now-abrogated requirement that prisoners specifically plead exhaustion of their administrative remedies. The dismissals of those complaints therefore were not dismissals on the grounds that the cases were frivolous, malicious, or failed to state a claim upon which relief may be granted. See Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999) (concluding that failure to state a claim as used in § 1997e(c) and § 1915(g) does not include failure to exhaust administrative remedies — at least absent a finding that the failure to exhaust permanently bars the suit); see also Green v. Young, 454 F.3d 405, 409 (4th Cir.2006) (<HOLDING>). Finding that at least two of the four prior Holdings: 0: holding that claims not presented to the ij and bia should be dismissed for failure to exhaust administrative remedies 1: holding that plaintiff could not look to the courts for relief because he did not exhaust his administrative remedies under the adea 2: holding that a routine dismissal for failure to exhaust administrative remedies does not count as a strike under  1915g 3: holding that a plaintiff need not exhaust his administrative remedies to bring a retaliation claim 4: holding district court dismissal of plaintiffs present action did not constitute prior action  and thus did not count as third strike


Input: See, e.g., In re Tri-State Crematory Lit., 215 F.R.D. 660, 692 (N.D.Ga.2003) (finding predominance requirement satisfied with respect to breach of contract claim); Winkler v. DTE, Inc., 205 F.R.D. 235, 243 (D.Ariz.2001) (rejecting argument that individual issues would predominate breach of contract claim where standard form contracts were at issue); Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 117-18 (D.Kan.1995) (finding individual issues would predominate breach of contract claim). This is especially true in light of the fact that the proof will overlap somewhat on plaintiffs’ antitrust conspiracy claim and their breach of contract claim. See, e.g., George Lussier Enters. v. Subaru of New England, Inc., No. 99-109-B, 2001 WL 920060, at *19-*20 (D.N.H. Aug.3, 2001) (<HOLDING>). 3. Superiority The requirement that a class Holdings: 0: holding the predominance requirement for breach of contract claim was met in part because a certifiable antitrust claim involved the same facts 1: holding that the plaintiffs breach of contract claim was properly a statutory claim under the personnel management act 2: holding that a breach of contract claim against one defendant related back to interference with contract claim against that defendant and breach of contract claim against second defendant because it was based on same set of operative facts 3: holding that breach of contract claim related back to misrepresentation claim because operative facts upon which the breach of contract claim was based were contained in the misrepresentation counts of the original complaint 4: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract


Input: same counsel during his trial proceedings and on his direct appeals. Moreover, he had the benefit of two attorneys’ thoughts concerning the post-conviction petitions. We note parenthetically that the attorney who initially drafted one of the petitions, and reviewed the record in Stewart II, did not choose to raise any claim regarding Mr. Pumilia’s alleged incompetency. More significantly, defendant did not even raise this issue in his briefs filed with this court appealing the denial of his post-conviction petitions. Our Supreme Court Rule 341(e)(7) provides that points not asserted in an appellant’s brief are waived and shall not be raised for the first time, as defendant did here, during oral argument. 107 Ill. 2d R. 341(e)(7); see also People v. Lewis (1984), 105 Ill. 2d 226, 249-50 (<HOLDING>). Nevertheless, defendant claims that Mr. Holdings: 0: holding argument is waived when raised for first time in reply brief 1: holding that defendant waived review of an issue which he raised for the first time during oral argument 2: holding that an argument raised for the first time in a reply brief is waived 3: holding that an argument raised for the first time in a rule 59e motion is waived on appeal 4: holding that argument raised at oral argument that was not included in brief is waived


Input: provides: Rather, upon a particularized showing supporting a reasonable belief that underrepre-sentation in the jury pool or the venire exists as the result of practices of systematic exclusion, the court must make a reasonable effort to accommodate the defendant’s relevant requests for information designed to verify the existence of such underrepre-sentation and document its nature and extent. Gause I, supra, 959 A.2d at 685 (quoting People v. Jackson, 13 Cal.4th 1164, 56 Cal.Rptr.2d 49, 920 P.2d 1254, 1268 (1996)). In our view, this "reasonable belief” standard raises a whole host of questions but supplies very few answers. And, to add yet another layer of complexity, the division majority appeared to somehow qualify its endorsement of California’s already confu 23 (6th Cir.1984) (<HOLDING>); United States v. Shapiro, 994 F.Supp. 146, Holdings: 0: holding that defendants right to discovery was satisfied by inspection of master lists and the relevant demographic data about the general pool from which the grand jurors were selected and thus defendants were not entitled to the names addresses and demographics of the individual grand jurors who returned indictments against them 1: holding that a defendants false grand jury testimony was insufficient to establish perjury where the defendant was called before the grand jury for the mere purpose of laying the foundation for a perjury prosecution such testimony was immaterial to the grand jurys purpose 2: holding that right was available in grand jury proceedings 3: holding that the prosecuting attorneys failure to instruct grand jurors on the record of the elements of the relevant criminal offenses warranted dismissal of the indictment without a showing of prejudice 4: holding that racial discrimination in selection of grand jurors compelled dismissal of indictment


Input: the court of appeals extended this rationale to professional negligence claims against insurance agents. It held that such claims may not be assigned because the relationship of insurance agent and client is similar to that of attorney and client. Premium Cigars, 208 Ariz. at 566 ¶¶ 25-26, 96 P.3d at 564. An insurance transaction, the court said, “is not simply a commercial transaction but a transaction personal in nature for the benefit of the client.” Id. at ¶ 24, 96 P.3d 555. Furthermore, like attorneys, agents owe a “duty to the insured to exercise reasonable care, skill and diligence” in carrying out the duty to procure insurance. Id. at 566 ¶ 22, 96 P.3d at 564 (quoting Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 397, 682 P.2d 388, 402 (1984) (<HOLDING>)). Like the courts in the legal malpractice Holdings: 0: recognizing that whether a duty exists is a question of law for the courts 1: holding that a private right of action exists 2: holding that no private right of action exists 3: holding no duty and noting that foreseeability bears on the scope of a duty and not whether it exists in the first place 4: holding that such a duty exists


Input: improper. We agree with the Court of Appeals that the trial court failed to instruct the jury that punitive damages are not available under the Act, and we emphasize that the trial court should have made clear to the jury that it could not award punitive damages based upon a violation of the Consumer Protection Act. The trial court’s omission certainly leaves open the possibility that the jury wrongly awarded punitive damages in conjunction with the Consumer Protection Act rather than in connection with a common law claim for recovery. Although we cannot assume that the jury understood the relevant law, since it was not properly instructed, we decline to assume the inverse, as did the Court of Appeals, that the jury found only a violation of the .C.App. 237, 446 S.E.2d 100, 105 (1994) (<HOLDING>). Some courts merely state that the higher Holdings: 0: holding that where a plaintiff is entitled to treble damages under its state unfair trade practices act and to punitive damages under common law claims of fraud trial court should have submitted each theory of recovery to the jury and then allowed plaintiff to elect between the awards with duplicative elements 1: holding that even if the trial court had erred in denying the defendants motion for a directed verdict on punitive damages the error was harmless because the jury found in favor of the defendant and never reached the punitive damages claims 2: holding that the trial court erred by denying plaintiffs request to instruct the jury on all its claims and to submit a special verdict form and by instead requiring the plaintiff to elect between its statutory antitrust claim and its common law tort claims to be submitted to the jury 3: holding that trial court erred by requiring plaintiff to select which remedy to submit to the jury because plaintiff was allowed to elect its remedy between punitive damages and statutory treble after the jurys verdict on all claims was rendered 4: holding that a plaintiff is entitled to either statutory treble damages or punitive damages whichever is the greater


Input: it is moot and we cannot address the merits of the claim at this time. 1 .The first case in which the Special Court investigated the relationship between CERCLA and the Rail Act is Penn Central Corporation v. United States, 862 F.Supp. 437 (Sp.Ct.R.R.R.A.1994). 2 . 45 U.S.C. § 719 et seq. 3 . 42 U.S.C. § 9601 et seq. 4 . Regional Rail Reorganization Act Cases, 419 U.S. 102, 111, 95 S.Ct. 335, 343, 42 L.Ed.2d 320 (1974). 5 . 45 U.S.C. § 801 et seq. 6 . For a discussion of the ownership and operational history of the Paoli Yard, see In the Matter o Blanchette, 448 F.Supp. 279, 282-285 (Sp.Ct.R.R.R.A. 1978) (determining the effect of a conveyance order and documents); Consolidated Rail Corporation v. Pittsburgh & Lake Erie Railroad Company, 459 F.Supp. 1013, 1017 (Sp.Ct.R.R.R.A.1978) (<HOLDING>). 16 . 459 F.Supp. 1013 (Sp.Ct.R.R.R.A.1978). Holdings: 0: holding that court of appeals statutory jurisdiction over final orders of removal extends to reinstatement orders 1: holding that the interpretation of both conveyance orders and documents is within the jurisdictional grant of  209e2 2: holding that the court had jurisdiction to decide issues relating to the fsp conveyance orders and an agreement entered pursuant to the conveyance orders 3: recognizing that a court granted jurisdiction by statute to review the legality of administrative orders is also empowered to examine the constitutionality of the statute by virtue of which such orders were entered 4: holding that the value of stolen blank money orders may be established by circumstantial evidence showing the market value for filled in money orders and the fact that the defendants had the necessary equipment to fill in the money orders and to make the completed orders appear valid


Input: Thompson v. Tormike, Inc. (1st Dist. 1984), 127 Ill. App. 3d 674, 469 N.E.2d 453, 82 Ill. Dec. 919 (rejecting implied private action under City nuisance ordinance); Rhoades v. Mill Race Inn, Inc. (2d Dist. 1984), 126 Ill. App. 3d 1024, 467 N.E.2d 915, 81 Ill. Dec. 793 (rejecting implied private action under the Safety Glazing Materials Act); Kinney v. St. Paul Mercury Ins. Co. (1st Dist. 1983), 120 Ill. App. 3d 294, 458 N.E.2d 79, 75 Ill. Dec. 911 (rejecting implied additional private action under the Insurance Code). We do not suggest by omission that post-Sawyer appellate decisions have consistently rejected implied statutory torts. To the contrary, see, e.g., Noyola o. Board of Education of City of Chicago (1st Dist. 1996), 284 Ill. App. 3d 128, 671 N.E.2d 802, 219 Ill. Dec. 635 (<HOLDING>); Witt v. Forest Hospital, Inc. (1st Dist. Holdings: 0: recognizing implied private action under the plat act rejecting implied private action under the national flood insurance act of 1968 1: recognizing implied private action against employer under election code timeofftovote provision 2: recognizing implied private action under the collection agency act 3: recognizing implied private action under the school code as to chapter 1 funds 4: recognizing private right of action


Input: error due to Apprendi would have been considered harmless because Concepcion was subject to a sentence of life imprisonment for more than one of his convictions. Concepcion, 181 F.Supp.2d at 234-236. Accordingly, Concepcion was properly sentenced to life in prison. Furthermore, the Supreme Court’s recent holdings in Blakely and Crawford are not applicable to Concepcion’s case. This case is distinguishable from Crawford in that the statements to which Concepcion refers were sufficiently redacted and thus, properly admitted at trial. See Concepcion, 181 F.Supp.2d at 222-223 and “Appendix A.” With regard to Concepcion’s argument that Blakely applies retroactively to his motion, the Court disagrees. See Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588 at *5 (N.D.N.Y. Aug.4, 2004) (<HOLDING>). The Supreme Court has not, as yet, ruled that Holdings: 0: holding that booker does not apply retroactively to collateral proceedings under  2255 1: holding that apprendi does not apply retroactively to claims raised in a  2255 motion 2: holding that apprendi does not apply retroactively to initial section 2255 motions for habeas relief 3: holding that because apprendi does not apply retroactively neither does blakely 4: holding that blakely does not apply retroactively to  2255 motions


Input: [the compensation claim], state the reason in detail.” (Emphasis added). This question should have indicated to Rhodes that there is a separate government entity responsible for adjudicating disputes over compensation claims that arise between workers and their employing agencies. Thus, Rhodes reasonably should have understood that this entity, rather than her employing agency, would receive her completed form. Thus, the workers’ compensation form itself put Rhodes on notice that it would be sent to the Department of Labor. Because Rhodes could not reasonably have expected that her form would be hand-carried to that agency, a reasonably jury could conclude that Rhodes should have known that her form would be sent by mail. See United States v. Fore, 169 F.3d 104, 109 (2d Cir.1999) (<HOLDING>). III. We turn finally to Rhodes’ contention Holdings: 0: holding that notice and a hearing were required before the commissioner of insurance could require an insurance company to change its definition of at fault in order to secure approval of an increase in insurance rates 1: holding that defendant reasonably could have foreseen use of the mails because he had completed insurance forms that required verification from his doctor and the insurance company and his doctor did not share the same location 2: holding that under georgia law a holder of a master insurance policy is an agent of the insurance company and not the insurer 3: holding that plaintiff could recover medical fees not actually paid by the insurance company pursuant to an insurance contract 4: holding that even if an insurance broker is the agent of the insurance company for purposes of soliciting and procuring the policy that would not necessarily make the broker the agent of the insurance company for the purpose of receiving notice of suits and claims


Input: the evidence of childhood abuse could have easily raised inferences that evoked sympathy for the eighteen-year-old Cox. Such evidence could have explained why Cox ended up in a gang and how Cox ended up in a position where he was aiding Williams in the perpetration of the murders. Indeed, one of Cox’s attorneys acknowledged that the omitted childhood abuse' evidence “would have been helpful to [the] defense” and “consistent with the themes that [they] presented in mitigation.” Where, as here, “counsel offers no strategic reason for failing to perform what would otherwise constitute the duty of a reasonably competent counsel, we may not invent such a strategy by engaging in a ‘post hoc rationalization of counsel’s conduct’.” See Richter v. Hickman, 578 F.3d 944, 959 (9th Cir.2009) (<HOLDING>). Moreover, the Supreme Court has acknowledged Holdings: 0: holding that the defendant could not establish prejudice for trial counsels failure to hire an expert when the experts testimony would not have changed the nature of the states evidence 1: holding that counsels strategic decisions were hard to attack 2: holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy 3: holding that the failure to inform the defendant of his right to a sixperson jury and the failure to consult the defendant as to his wishes was an error for which a new trial was the only remedy 4: holding that counsels failure to consult blood experts was not a strategic choice because counsel offered no reasoned explanation for the failure


Input: supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33). III. Discussion A. Employment Discrimination 1. Legal Standard Claims for employment discrimination based on race, age, and disability brought pursuant to § 1983 or pursuant to Title VII, the ADA, or the ADEA are analyzed under the three-step, burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009) (applying McDonnell Douglas to claim brought under the ADA); Kearney v. Cnty. of Rockland ex rel. Vanderhoef, 185 Fed.Appx. 68, 70 (2d Cir.2006) (<HOLDING>); D’Cunha v. Genovese/Eckerd Corp., 479 F.3d Holdings: 0: holding that adea and phra claims proceed under the mcdonnell douglas framework 1: holding that the threestep mcdonnell douglas burdenshifting analysis applies to  1983 claims 2: holding that plaintiffs equal protection claim pursuant to 42 usc  1983 for agebased employment discrimination fails for the same reasons that her adea and nyshrl claims fail under mcdonnell douglas analysis 3: holding that mcdonnell douglas burdenshifting approach applies to claims brought under the adea 4: holding that claims under the adea and the nyshrl are subject to the same analysis


Input: Lujan, 504 U.S. at 572 & n. 7, 112 S.Ct. 2130. Plaintiffs in a procedural standing case need not establish that, were the government to follow the proper procedures, its ultimate action would be different. Instead, plaintiffs in a procedural standing case need demonstrate only that the factors the government failed to consider could have an influence on the ultimate outcome. Laub, 342 F.3d at 1087; Hall, 266 F.3d nd Viceroy Gold on this point, but it is not material to the "genuine obstacle” analysis in this case. 8 . Defendant argues that there is no evidence (outside of plaintiffs' affidavits) of the existence of this organization, in that there is no record of its registration with the California Secretary of State or the Attorney General. However, a d 793, 801 n. 14 (6th Cir.1998) (<HOLDING>); Helene Curtis, Inc. v. Assessment Appeals Holdings: 0: holding that as a matter of state law nonmutual offensive issue preclusion does not apply against the state 1: holding that nonmutual issue preclusion should not apply against the state government 2: holding that the doctrine of issue preclusion applies in removal proceedings 3: holding that preclusion rules apply in 1983 actions 4: holding that preclusion rules apply in section 1983 actions


Input: after the 30-day limit in § 1446(b) to remedy a substantive defect in the petition”); Wright v. Combined Ins. Co. of America, 959 F.Supp. 356, 359 (N.D.Miss.1997) (“If a defendant seeks to amend the notice of removal at any time thereafter, he may only do so to clarify the jurisdictional grounds for removal, which were unartfully stated in the original notice. He may not allege new jurisdictional grounds for removal.”); Spillers v. Tillman, 959 F.Supp. 364, 372 (S.D.Miss.1997) (“Although a defendant is free to amend a notice of removal within the 30-day period set forth in 28 U.S.C. § 1446(b), once the 30-day period has expired, amendment is not available to cure a substantive defect in removal proceedings.”); Lowes v. Cal Dive Int’l, Inc., No. 97-407, 1997 WL 178825 (E.D.La.1997) (<HOLDING>); Iwag v. Geisel Compania Maritima, 882 F.Supp. Holdings: 0: holding that the thirty day removal period runs from the date of fdics plea in intervention and notice of substitution 1: holding that the laterserved defendants  had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their codefendants even though the firstserved codefendants did not file a notice of removal within thirty days of service 2: recognizing that while defendants may freely amend their notice of removal within thirty days of service they may not add new grounds for removal after the thirty day period has expired 3: holding that the defendants motion to amend their notice of removal was proper due to plaintiffs waived objections to the sufficiency of the notice of removal by failing to seek remand within thirty days of removal 4: holding that the absence in the notice of removal of copies of the summonses served on the defendants uncorrected until after the thirty 30 day removal period had expired violates 28 usc  1446a and bars removal


Input: person, the individual can be charged with and convicted of more than one count of resisting arrest — one for each person that the individual has committed criminal conduct against — without running afoul of the Double Jeopardy Clause. See Albernaz, 450 U.S. at 344, 101 S.Ct. 1137 (“Where Congress intended ... to impose multiple punishments, imposition of such sentences does not violate the Constitution.”); see also State v. Burdick, 211 Ariz. 583, 585-86 ¶¶ 5-10, 125 P.3d 1039, 1041-42 (App.2005) (“[W]here crimes against persons are involved we believe a separate interest of society has been invaded with each victim and that, therefore, where two persons are assaulted, there are two separate offenses.”); State v. Riley, 196 Ariz. 40, 45-6 ¶¶ 17-19, 992 P.2d 1135, 1140-41 (App.1999) (<HOLDING>). Consequently, Jurden’s two convictions for Holdings: 0: recognizing that a bank customer may have a tort claim against a bank for the wrongful dishonor of a check 1: holding the defendant properly convicted of multiple counts of armed robbery against bank employees even though the defendant robbed only the bank 2: holding judge in bank robbery prosecution did not abuse discretion in refusing to excuse juror whose wife was bank employee or juror whose daughter had been victim of bank robbery 3: holding that escape driver with no prior knowledge that robbery would be armed is aider and abettor of aimed bank robbery if he knowingly and willfully joins in the escape phase of an armed bank robbery knowing that an accomplice has a gun 4: holding that an africanamerican investment advisor who accompanied two clients into a bank could assert a  51 claim alleging discrimination against the bank even though his clients were the actual customers of the bank


Input: formal enrolled status. We therefore conclude there was no deficiency of proof on the Indian status element. 2. Counsel’s failure to dispute Smith’s Indian status. Smith contends trial counsel and appellate counsel provided ineffective assistance by failing to challenge the sufficiency of the evidence that he is an Indian. We disagree. Smith was tried before Bruce, Cruz and Maggi were decided, and pre-Bruce authority gave counsel little indication that a challenge to the evidence of Indian status might prove successful. See Keys, 103 F.3d at 761 (affirming an Indian status finding without extensive discussion). Counsel’s failure to raise a legal argument that lacked obvious merit did not constitute ineffective assistance. See United States v. Ratigan, 351 F.3d 957, 965 (9th Cir.2003) (<HOLDING>). 3. Counsel’s failure to request a clarifying Holdings: 0: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense 1: holding that the failure to recognize every possible legal argument did not render counsels performance constitutionally deficient 2: holding that counsel could have reasonably determined that the trial court would not sustain a rule 403 objection therefore counsels failure to object to this evidence was not deficient performance 3: holding that failure to object to properly admitted evidence was not deficient performance by trial counsel 4: holding counsels failure to investigate alibi witness and eyewitnesses to the crime amounted to constitutionally deficient performance


Input: received in the future); Garrett, 683 P.2d at 1170 (rejecting the husband’s contention that the value of the community labor expended to fulfill a contingency agreement should be based upon a reasonable hourly rate because “[t]his overlooks the very nature of the contract—an all or nothing proposition. It is as unfair to require the attorney/spouse to pay the other spouse for reasonable services rendered when ultimately no fee is earned because the litigation was lost as it would be to require the non-attorney/spouse to accept a sum based upon an hourly fee when the attorney/spouse receives compensation far exceeding that amount.... In this regard, we approve of the trial court’s continuing jurisdiction over this matter to monitor the value of the services.”); Weiss, 365 N.W.2d at 613 (<HOLDING>). The Minnesota court of appeals took a Holdings: 0: holding where the defendant knows as well as anyone the value of the assets he concealed the intended loss calculation may properly be based upon the value of the assets concealed 1: holding that sale was appropriate where dividing the property among six parties was difficult because the nature of the land made it impossible to divide it into six equal parcels and the land likely had more value sold as a whole 2: holding that even though it is impossible to establish a present value for contingentfee receivables on the day of divorce such assets should not be ignored one method of determining the appropriate division is to divide the asset upon receipt of payment of the contingent fee receivables 3: holding that contingent fees are an asset of the partnership in which the estate of a deceased partner is entitled to participate 4: holding that aln attorney who is employed under a contingent fee contract and discharged pri or to the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of the services rendered to the client and may not recover the full amount of the agreed contingent fee


Input: to the issues presented in the original federal litigation. Upon careful review of the complaints submitted in the Saunders cases with the original Canady I complaint, we find no perceivable difference in the issues presented. Each petition alleges that appellants, as a class, identified by the same definition, were harmed by the same redlining practices employed by the homeowners’ insurance industry. Appellants may not file what is essentially the same action, albeit under different legal theories, in state court merely to obtain a more favorable result than the one already obtained in their first choice of forum. See Kansas Pub. Employees Ret. Sys. v. Reimer & Roger Assocs., Inc., 77 F.3d 1063, 1070 (8th Cir.) (reasoning that a federal injunction 1326, 1334 (11th Cir.1999) (<HOLDING>). As stated above, this case was brought Holdings: 0: holding that an appellate court may not consider an issue not presented to the trial judge on appeal from final judgment on the merits 1: holding that although a district courts standing determination conclusively resolves a disputed question and settles an important issue separate from the merits of the case courts have recognized that the issue of standing is not effectively unreviewable on appeal from final judgment 2: holding that lack of a separate judgment does not preclude the taking of an appeal from a district courts final decision because the parties may waive the separate judgment requirement where one has accidentally not been entered 3: holding the issue of standing is waived if not asserted at the district court level 4: holding individual standing issue waived


Input: for the prosecution to point out inconsistencies in Edwards’ defense strategy. (c) Edwards argues the State improperly commented on his objection to the admission of the cocaine into evidence. At the outset, we reject the State’s contention that Edwards failed to preserve this objection because the transcript shows defense counsel objected. See Hall v. State, 180 Ga. App. 881 (350 SE2d 801) (1986). However, even assuming the State’s comment was improper, we cannot say it is highly probable that the improper remark contributed to the verdict. Id. at 885. Thus, even if we were to determine the State’s argument was improper and inflammatory, such argument did not likely affect the verdict and Edwards’ conviction must be affirmed. Miles v. State, 183 Ga. App. 346 (358 SE2d 904) (1987) (<HOLDING>). (d) Next we address Edwards’ contention that Holdings: 0: recognizing that if a guidelines error did not affect the district courts selection of the sentence imposed the sentence should be affirmed 1: holding the prosecutors argument if it was there they can bring it to you was not an improper jury argument 2: holding on habeas review that counsels failure to object to improper argument at trial did not prejudice petitioner where other evidence supported a guilty verdict and the jury was told closing argument was not evidence 3: holding that although states argument was improper and inflammatory conviction was affirmed because it probably did not affect the verdict 4: holding prosecutors statement that defendants testimony was outandout lies not improper because not excessive or inflammatory


Input: and perhaps the nature of the risk”), rev’d on other grounds, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979). As a result, the Court holds that Santana deserves no relief under section 1132 for denial of benefits because Deluxe did not violate 29 U.S.C. § 1022. Accordingly, the Court grants summary judgment to Deluxe on Counts Two, Three, and Eight. Consequently, the Court denies Santana’s motion on those counts. C. Contract Claim On Count Four, Deluxe moves for summary judgment by arguing that Santana’s common law contract action is preempted by ERISA. See 29 U.S.C. § 1144(a).' Recognizing the expansive sweep of ERISA’s preemption provision, the Court will grant summary judgment on this Count. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (<HOLDING>); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. Holdings: 0: holding that state law relates to an employee benefit plan and is therefore preempted by erisa if it has a connection with or reference to such a plan 1: holding breach of contract claim not preempted as a straightforward breach of contract action as it alleged violation of specific covenant 2: holding breach of contract claim not preempted under hola 3: holding that trial court erred by dismissing breach of contract claim because appellee made promises to perform specific acts in contract the breach of which would give rise to a breach of contract action 4: holding that state breach of contract action preempted because it relates to employee benefit plan


Input: unless such intention is made clearly to appear by express declaration or by necessary implication.... We think the rule applies as much to inherent powers as it does to ‘long established legal principles.’ Therefore, we hold that chapter 853 did not take away the trial court’s inherent power to grant or deny DANC pleas.” (Citations and some internal quotation signals omitted.)). “By necessary implication,” HRS ch. 853 coopted the field previously occupied by inherent judicial power with respect to granting and denying DAG pleas. Effective June 14, 1983, die legislature amended HRS ch. 853 to extend to the grant and denial of DANC pleas, see 1983 Haw. Sess. L. Act 290, §§ 1 through 6 at 617-18, thereby legislatively overruling State v. Keahi, 66 Haw. 364, 365, 662 P.2d 212, 213 (1983) (<HOLDING>), on which Justice Acoba relies, see concurring Holdings: 0: holding that rule 11 does not require court to ensure that defendant understands consequences of nolo contendere plea on parole eligibility in sexual assault case 1: recognizing inherent power of courts of appeals 2: holding that the trial court had inherent power to grant or deny acceptance of a deferred acceptance of nolo contendere plea 3: holding that conviction based on plea of nolo contendere bars subsequent  1983 claim because even though such a plea does not involve admission of guilt it does communicate acceptance of conviction and sentence 4: holding that plea of guilty or nolo contendere is not rendered involuntary because it is a product of plea bargaining an accepted plea bargain must be recorded and court may accept a bargained plea to a lesser offense reasonably related to a charged offense


Input: isolated incidents within the requisite level. They were neither frequent, severe nor physically threatening. Similarly, none of the other allegedly harassing conduct relied on by plaintiff was sufficiently severe and pervasive to be actionable. According to plaintiff, she spends between 70% to 75% of her time away from the office. Her deposition testimony establishes that during the limited time that she was in her office, she was not required to work with or around Brown and that she could have easily avoided contact with Brown in most instances by using a different entrance. Under these circumstances, a reasonable person would not have found her work environment hostile or abusive. Cf. Caleshu v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 737 F.Supp. 1070, 1082-83 (E.D.Mo.1990) (<HOLDING>). As a result, plaintiff has failed to Holdings: 0: holding single incident of sexual harassment was neither sufficiently pervasive nor severe to constitute a hostile work environment 1: holding that harassing conduct not sufficiently severe and pervasive where conduct would not have affected the work environment of a reasonable person 2: holding that plaintiffs work environment was not affected by comments and conduct of which she was not aware 3: holding that a claim of constructive discharge requires a showing of harassment that is more severe and pervasive than that required to show a hostile work environment 4: holding that plaintiff did not establish a severe or pervasive hostile work environment where the complained of conduct was episodic but not so frequent as to become pervasive was never severe was never physically threatening though occasionally discomforting or mildly humiliating and significantly was never according to the record an impediment to the plaintiffs work performance


Input: equally unavailing. Accordingly, we hold that the trial justice did not abuse his discretion when he denied defendant’s motion for a continuance so that he might have time to obtain a valid license. The defendant also argues that the trial justice erred when he denied his pretrial motion to dismiss for lack of jurisdiction. He says that the trial justice denied the motion based “on an opinion not fact.” Kowal has offered only a vague religiously oriented argument about why the Superior Court did not have jurisdiction over him. He has directed us to no legal authority that supports his position. In the furtherance of public safety, § 31-11-18 equally applies to defendant as it does to all other motor-vehicle operators in Rhode Island. See State v. Garvin, 945 A.2d 821, 824 (R.I.2008) (<HOLDING>). We are satisfied that the trial justice’s Holdings: 0: holding that  311118 applied to the defendant regardless of his unwillingness to recognize the federal government 1: recognizing that stateimposed restrictions upon property may be attributed to the federal government for purposes of a takings analysis where the state officials acted as agents of the federal government or pursuant to federal authority 2: holding the fourteenth amendment does not apply to the actions of the federal government 3: holding that a defendant must demonstrate that the governments intrusion upon his relationship with his attorney created a possibility of either injury to his defense or benefit to the government in order to establish a violation of the right to counsel 4: holding that without such a showing the government may only charge the defendant with one violation of  922g1  regardless of the actual quantity of firearms involved


Input: weighed against a finding of good cause. Furthermore, Ms. Wright did not provide any evidence that she acted diligently in the thirteen year interim. She also did not identify any circumstances beyond her control that prevented her from appealing at any point during the thirteen years. Thus, we affirm the Board’s holding that Ms. Wright did not show good cause for her delay in filing her appeal. Costs Each party shall bear its own costs. AFFIRMED. 1 . Even if Ms. Wright was found credible, and the November 2009 date claimed in her initial appeal or the June 2009 date claimed in her petition for review was the first time she received notice of her termination, her October 2010 appeal would still be untimely. See Gordy v. Merit. Sys. Prot. Bd., 736 F.2d 1505, 1508 (Fed.Cir.1984) Holdings: 0: holding that where employee was aware of dissolution abatement of claims provision applied even in absence of written notice because employee had actual notice 1: holding that when an employee is not provided with notice of termination and appeal rights by an employing agency a dismissal based on untimeliness may be proper if the employee fails to act promptly and within the allowable time limits after he or she becomes aware of those rights 2: holding that res judicata properly barred claims based on an employers decision to terminate an employee because the termination was not a fresh act of discrimination rather it was the same decision not to allow the employee to return to work that the employee had challenged previously 3: holding that a notice recommending termination of an employee to the board without notice to the employee of employees right to attend and dispute the claims violated due process 4: holding that rights accrue only when an employee vests


Input: no more speech than.necessary to serve a significant government interest.” Madsen v. Women’s Health Ctr., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Although this standard is very close to strict scrutiny, it does not require that the prior restraint serve a “compelling state' interest,” but merely a significant one. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (reciting the strict scrutiny standard). This standard is the minimum scrutiny applied to all prior restraints; if the content of the restriction — not mérely its manner of enforcement as a prior restraint — itself triggers strict scrutiny, then strict scrutiny applies. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. at 45, 103 S.Ct. 948 (<HOLDING>). Holding otherwise would result in the Holdings: 0: recognizing that strict scrutiny applies to facial discrimination against a suspect class 1: holding that strict scrutiny applies 2: holding that an ordinance exempting certain signs from a general sign ban was an unconstitutional contentbased restriction on speech 3: holding that prior restraint analysis applies to commercial speech but that the general health claim regulation 21 cfr  10114 was sufficiently welldefined to survive prior restraint analysis 4: holding that strict scrutiny applies to a prior restraint enforcing a contentbased restriction on speech in a traditional public forum


Input: the Court deems the § 523(a)(9) claim to have been tried by the consent of parties, and the Court will therefore consider whether this debt should be excepted from discharge under either §§ 523(a)(6) or (a)(9). Wood also cited § 523(a)(2) in her complaint, however, Wood has never argued this theory applied under these facts. The Court considers any claim by Wood under this Code section to have been abandoned by Wood. 8 . Assuming a picture can indeed be worth a thousand words, and to give additional context and flavor to this discussion, a photo of the subject truck, admitted in evidence in this action, is appended to this decision. 9 . In contrast, the Fifth Circuit has endorsed the use of an objective test. Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir.1998) (<HOLDING>) 10 . Recall, Jury Instruction No. 16 provides: Holdings: 0: holding that there must be proof of both a willful act and malicious injury to establish nondischargeability under section 523a6 1: holding that the debtors knowing act of failing to obtain workers compensation insurance so that the employer owed an employee a debt after the employee suffered a workplace injury was not the sort of willful and malicious injury required for nondischargeability under  523a6 because it cannot not be said that the employer intended for the employee to suffer a fall or that there was an unbroken chain of events leading from the employers intentional act to the employees physical injury 2: holding that either objective substantial certainty or subjective motive meets the supreme courts definition of willful  injury in  523a6 3: holding that  523a6 requires the actor to intend the injury not just the act that leads to the injury 4: holding that a mere deliberate or intentional act that causes injury is not sufficient to establish willfulness in the context of 11 usc  523a6


Input: On the one hand are Securities and Exchange Commission v. Washington Co. Utility District, 676 F.2d at 224 (manager of public utility district had duty to disclose kickback from underwriter of bond); Edward J. Mawod & Co. v. Securities and Exchange Commission, 591 F.2d 588, 596 (10th Cir.1979) (“where brokers are obligated to investigate, the failure to do so subjects them to a holding that they acted wilfully”); Klein v. Computer Devices, 591 F.Supp. at 280 (duty was breached where aider “participated in the preparation and review of the allegedly defective prospectus and ... actively promoted the sale of shares ... by, for example, orchestrating the entire transaction, placing advertisements and processing purchase orders”); Monsen v. Consolidated Dressed Beef Co., Inc., 579 F.2d 793 (<HOLDING>); Morgan v. Prudential Group, Inc., 527 F.Supp. Holdings: 0: holding that consideration for guaranty of loan previously made was that guarantors friend the bank manager who issued the loan would not lose his job for making a bad loan 1: holding title company liable for bad faith 2: holding bank liable for making loan to company and then demanding continuation of program where employees without any financial information traded earnings for unregistered subordinated promissory notes 3: holding owner of company qualified as an employer due to inter alia his authority to hire and fire employees and overall financial control of company 4: holding the bank liable where the bank had almost complete control over the operation of the company during its last three quarters of operation and where withheld taxes were not paid to the irs on instructions from the bank


Input: the court may consider “whether revocation of the order of confirmation can or would lead to an outcome that is more equitable than leaving the order intact.” 8 Collier on Bankruptcy ¶ 1144.03[4] at 1144-5 (15th ed. rev.2006). In contrast with this discretionary language stands the statutory command that any order revoking a confirmation order “shall — (1) contain such provisions as are necessary to protect any entity acquiring rights in good faith reliance on the order of confirmation.... ” The use of the imperative “shall” leaves no room for discretion. All orders revoking orders of confirmation must protect innocent parties. Under this statutory scheme, if a court cannot fashion a revocation order that protects innocent parties who acquired rights in relian 923 (S.D.N.Y.1975) (<HOLDING>). The policy consideration of finality for a Holdings: 0: holding limitations period for filing petition for postconviction relief runs from date of final judgment not from date of subsequent order revoking appeal bond 1: holding that the limitations period in section 1640e runs from the date of consummation of the transaction 2: holding that oneyear period runs from the discovery of the transfer 3: holding  under section 1144s predecessor statute  that the 180day period runs from the date of the confirmation order even if the fraud is not discovered in the 180day period 4: holding that the limitations period in section 1640e runs from the date of consummation of the transaction and rejecting a continuing violation theory


Input: generally been hesitant to award injunctive relief based on assertions about lost opportunities and market share”). Barton v. District of Columbia, 131 F.Supp.2d 236, 247 (D.D.C.2001). Indeed, “financial harm alone cannot constitute irreparable injury unless it threatens the very existence of the movant’s business.” Sociedad Anonima Vina Santa Rita v. Dep’t of Treasury, 193 F.Supp.2d 6, 14 (D.D.C.2001); Gulf Oil Corp. v. Dep’t of Energy, 514 F.Supp. 1019, 1026 (D.D.C.1981) (noting that to constitute irreparable harm, allegations of lost sales “must be sufficiently large holding that a drug manufacturer failed to establish irreparable harm because it “all but conceded” that its estimated lost revenues would not cause serious damage to the company); Bristol-Myers, 923 F.Supp. at 221 (<HOLDING>). Nor has the plaintiff indicated why it will Holdings: 0: holding that changes in the baseball card market between 1965 and 1980 foreclosed any argument that a definition of the relevant market by the federal trade commission could preclude relitigation of the market definition issue 1: holding that an allegation of a 65 market share could be the basis for inferring market power and thus defeated a 12b6 motion to dismiss 2: holding 12year statute of limitations violated state guarantee of open courts when it would have barred right of actions against manufacturer of drug before they ever existed as it was not discovered until 20 years after drug was administered that the drug caused cancer 3: holding a branded drug and its generic version to be a plausible relevant market 4: holding that a drug manufacturer failed to establish irreparable harm because its claim that it would lose between fifty and seventy percent of its market share upon the introduction of the competing drug on the market was based on mere speculation


Input: or Collateral Estoppel in Federal Court Action, 19 A.L.R. Fed. 709 § 4 (1974 & Supp.1995). Cf. United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (federal common law governing contractual liens arising from federal loan program incorporated state common law). The only exception to this doctrine occurs where the statute on which the federal cause of action is based constitutes an express or implied repeal of § 1738. We find no evidence of such a repeal in ERISA. Though we are not required to do so by the text of § 1738, federal common law requires us to give preclusive effect to the determinations of a state administrative agency acting in a judicial capacity. University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (<HOLDING>); Nelson v. Jefferson County, Ky., 863 F.2d 18, Holdings: 0: holding that federal courts are bound by state interpretations of state law 1: holding federal courts are bound by state court determinations of state law 2: holding that federal courts must utilize the same preclusion doctrine as would be applied by a state court to administrative determinations by that state 3: holding the federal and state tests to be the same 4: holding that in a diversityjurisdiction case involving only state claims the primaryjurisdiction doctrine does not apply in favor of a state agency as compared to a federal agency and holding that even if the doctrine were to apply a federal district court sitting in diversity would defer to a state agencys primary jurisdiction only if state courts would so defer


Input: lot of progress, and she- deserved the nomination.” (Id. ¶ 108.) Moreover, ■ Garcia acknowledges that she was the only candidate Gold nominated for promotion in 2010. (See id. ¶ 13.) Construing the inconsistencies and facts in Garcia’s favor, I find that Garcia’s assertion that Gold essentially did not work hard enough on her nomination is unpersuasive. In addition, there is also no basis to conclude that the committee’s stated reason not to promote Garcia in 2010 was a pretext for discrimination. In support, Garcia merely states that the committee was composed of almost entirely white men; however, this fact alone does not establish pretext. See Holdmeyer v. Veneman, 321 F.Supp.2d 374, 382 (D. Conn. 2004), aff'd sub nom., Holdmeyer v. Dep’t of Agric., 146 Fed.Appx. 535 (2d Cir. 2005) (<HOLDING>). Moreover, the committee promoted at least one Holdings: 0: holding that the plaintiff failed to exhaust her administrative remedies with respect to gender discrimination and retaliation claims where she had only asserted discrimination based on race and disability in her eeoc complaint 1: holding that the plaintiff failed to establish a prima facie case of retaliation because there was no evidence that the decisionmaker knew of the plaintiffs protected conduct 2: holding that a plaintiff had not established a prima facie case of race discrimination because she failed to show valid comparators and presented no other circumstantial evidence of discrimination 3: recognizing that stray remarks are insufficient to raise an inference of discrimination and concluding that a comment by the decisionmaker that he selected a candidate for a promotion because the candidate was a bright intelligent knowledgeable young man was a stray remark that did not raise an inference of age discrimination 4: holding plaintiff failed to raise inference of discrimination where only evidence plaintiff adduced was fact that decisionmaker was different race


Input: Quinn, 204 F.Supp.2d at 163. We agree that stare decisis governs. The last time around, we addressed this aspect of the standard for measuring compliance head-on and held that the proper data are the “contemporaneous population figures [for] ... ‘the percentage of minorities within the community.’ ” Mackin, 969 F.2d at 1276 (quoting the Beecher decree). At that time, we considered the very authorities upon which the Candidates now rely and specifically repudiated the notion that the pertinent language of the decree was overbroad. Id. at 1277-78. Thus, principles of stare decisis required the district court to -reject the Candidates’ version of how the second variable should be constructed. See Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (<HOLDING>). If more were needed — and we do not think Holdings: 0: holding that the doctrine of stare decisis is most frequently applied in cases affecting real property 1: recognizing that the doctrine of stare decisis embodies the obligation to follow precedent 2: holding that decision by panel of this court is established precedent under rules of stare decisis 3: holding that stare decisis is not applicable unless the issue was squarely addressed in a prior decision 4: holding that the doctrine of stare decisis applies to the issue of reliability of new scientific techniques the intoxilyzer in that case


Input: his request for a jury shuffle. Appellant contends his substantial rights have been affected and that he is entitled to a new trial. A defendant has an absolute right to a shuffle of the jury panel. Tex. Code CRIm. PRoc. Ann. art. 35.11 (Vernon Supp.2002); Jones v. State, 833 S.W.2d 146, 147 (Tex.Crim.App.1992). The motion for a jury shuffle must be made before voir dire begins. Williams v. State, 719 S.W.2d 573, 577 (Tex.Crim.App.1986) (en banc). Voir dire generally begins when the trial court recognizes the State as having started the examination. Id., In Davis, the Texas Court of Criminal Appeals modified Williams in holding that in capital felony cases, voir dire begins when the trial court begins its examination of the panel. Davis v. State, 782 S.W.2d 211, 216 (Tex.Crim.App.1989) (<HOLDING>). The Davis court, while recognizing the role Holdings: 0: holding that the extent to which parties may examine prospective jurors on voir dire lies within the trial judges discretion 1: holding that defendants have a right to be present at voir dire 2: holding that the legislature intended the trial court to be more involved in the voir dire procedure in capital felony cases 3: holding that appellant failed to meet his burden of showing that the trial court violated his right to a public trial by sealing jury questionnaires used in open court during voir dire 4: holding that the jurors failure to remember particular facts inquired about on voir dire and the jurors misunderstanding of voir dire questions do not constitute probable prejudice


Input: 759 N.E.2d at 518; Saje Ventures II, 748 P.2d at 814. 9 See, e.g., Trustees of Cent. States v. LaSalle Nat., 542 N.E.2d 30, 31-32 (Ill. App. Ct. 1989); see generally Smith v. District Court, 63 Nev. 249, 256-57, 167 P.2d 648, 651 (1946) (explaining that void judgments are always subject to collateral attack), overruled on other grounds by Poirier v. Bd. of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965), overruled on other grounds by Pengilly v. Rancho Santa Fe Homeowners, 116 Nev. 646 to involuntary dismissal under NRCP 41(e), the jurisdictional implications of an NRCP 41(e) violation recognized above closely accord with the collateral effects of a voluntary dismissal under Fed. R. Civ. P. 41(a)(1). See Marques v. Federal Reserve Bank of Chicago, 286 F.3d 1014, 1018 (7th Cir. 2002) (<HOLDING>); see also Gambale v. Deutsche Bank AG, 377 Holdings: 0: holding that plaintiffs were entitled to vacate final order of dismissal as void when they did not receive the motion for dismissal or notice of the hearing on the order until after the dismissal was entered 1: holding that a dismissal on limitations grounds is a judgment on the merits 2: holding that a default judgment was not void because the bankruptcy court that entered the judgment had proper jurisdiction over the party seeking relief 3: recognizing that a judgment on the merits entered after a plaintiff has filed a proper fed r civ r 41a1 notice of dismissal is void 4: holding that a notice of appeal is timely when filed before final judgment is entered by the district court


Input: United States v. Leachman, 309 F.3d 377, 381-83 (6th Cir.2002); United States v. Burns, 298 F.3d 523, 544 (6th Cir.2002). Thus, in the present case, where petitioner’s 70-month concurrent sentences fall well below the twenty-year maximum sentence authorized for each bank robbery count by 18 U.S.C. § 2113(a), and, in pleading guilty, petitioner admitted to the factual allegations used to calculate his sentence, his claim of ineffective assistance of counsel falls short under the first prong of the Strickland standard. Moreover, as the government notes, petitioner does not otherwise claim that in pleading guilty, he did not understand his appeal rights, and nowhere in his petition does he argue or demonstrate that he directed counsel to pursue an appeal. See Regalado, 334 F.3d at 525 (<HOLDING>). The self-serving affidavit filed by Hicks’ Holdings: 0: recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense 1: holding that counsels failure to object to use of an inapplicable controlled substance conviction tb enhance a sentence under  4b11 is deficient performance under  strickland 2: holding that criminal defense counsels failure to file notice of appeal when requested to do so is per se ineffective assistance 3: holding that counsels failure to file appeal was not deficient performance under strickland where the petitioner in  2255 action did not direct counsel to file an appeal and acquiesced in counsels decision to pursue as an alternative a reduction in sentence 4: holding that the strickland test applies to claims  that counsel was constitutionally ineffective for failing to file a notice of appeal


Input: seek unnecessary. See ch.2002-240, § 2, at 1782, Laws of Fla. (deleting authorization for arbitration). WOLF, C.J., Concurring. I cannot agree with the reasoning of the majority. Section 627.062(6)(a), Florida Statutes (1999), requires that “[t]he department and insurer must treat the decision of the arbitrators as the final approval of a rate filing.” The majority determines that the statute may not be enforced as written because it conflicts with the Florida Windstorm Underwriters Association Plan of Operation. That plan was adopted by rule by the Department of Insurance. Fundamental administrative law dictates that an administrative rule may not conflict with the unambiguous dictates of a statute. See Cleveland v. Fla. Dep’t of Children & Families, 868 So.2d 1227 (Fla. 1st DCA 2004) (<HOLDING>). The majority’s determination that the plan Holdings: 0: holding that 9 usc  1 conflicts with the inclusive language of the convention and thus may not restrict its scope 1: holding that confirmation of a chapter 11 plan creates a binding contract which may be enforced in state courts 2: holding that a rule that conflicts with a subsequent adopted statutory amendment may not be enforced 3: holding that property settlement agreements may be specifically enforced 4: holding that this boilerplate language conflicts with the regulations and rulings


Input: preserved error on the issue of the admissibility of Bolt’s testimony, we first must determine the intent of the district court ruling on Kircher’s motion in limine. Kircher’s motion in limine sought to prohibit Bolt from giving testimony concerning the standards of care applicable to certified public accountants, whether Kireher breached those standards, and causation, as well as any perceived errors in the audit’s work papers. In ruling on the motion, the district court concluded Bolt was not qualified to testify as to whether Kireher performed the audit pursuant to generally accepted auditing standards. The court then ruled, “Your motion is granted as to Bolt.” Subsequently, QCBT inquired whether the c eption to the general rule applies. See, e.g., Alberts, 722 N.W.2d at 407 (<HOLDING>). Accordingly, the court’s ruling had the Holdings: 0: recognizing the rule and the exception but holding facts did not support claim to exception 1: recognizing general rule 2: holding that the exception to the general rule applied even though the court did not specifically rule the evidence was inadmissible because the ruling was definitive and reached the ultimate issue of admissibility 3: holding that an exception to the general rule applied when counsel asked the court whether its ruling was the final order of the court and the court responded yes 4: holding that rule 413b only requires disclosure of the evidence itself fifteen days prior to trial and the rule does not impose  on the government a separate obligation to specifically disclose or declare the intention to rely upon rule 413 for admissibility


Input: CURIAM. DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003) (<HOLDING>). DAVIS, POLSTON, and THOMAS, JJ., Holdings: 0: holding that pro se pleadings are to be liberally construed 1: holding that a defendant does not have the right to be represented by counsel in postconviction proceedings which are civil proceedings 2: holding that pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity 3: holding that pro se pleadings from defendants who are represented by counsel in the pending criminal proceedings are unauthorized 4: holding defendants pro se motion to reduce sentence was not properly before the trial court when defendant was represented by counsel since defendant may not proceed both by counsel and pro se


Input: civil courts’ should refrain from asserting jurisdiction and substituting [their] judgment for that of the military courts.”). Dr. Klingenschmitt’s second contention is that the court-martial proceedings were fundamentally unfair because they were tainted by impermissible “command influence.” PL’s Mot. 33. Of the several examples of alleged improper command influence set forth in his brief, however, only one — the allegation that the convening authority of the court-martial, Admiral Ruehe, Commander Navy Religion Mid-Atlantic, was an accuser — was raised before the court-martial. PL’s Mot. 35 (citing AR 1152-71). The other objections based on allegedly improper command influence were not raised and are therefore waived. See Martinez v. United States, 914 F.2d 1486, 1488 (Fed.Cir.1990) (<HOLDING>). Dr. Klingenschmitt argues that improper Holdings: 0: holding that plaintiffs failure to raise his constitutional claims in the military court system bars him from raising them in federal court 1: holding that where defendant failed to raise defense of plaintiffs fraud in federal court defendant is barred from raising that issue in state court 2: holding that a defendants failure to object or join in a codefendants objection to an issue bars the defendant from raising the issue on appeal 3: holding that failure to raise issue at district court forecloses party from raising same issue on appeal 4: holding that the court bars a party from raising an issue on remand that  was not raised on appeal


Input: but instead to his “irresponsibility.” Id at 18. Findings of the District Court Under Federal Rule of Civil Procedure 52(a), trial courts should and must “state legal and factual conclusions sufficient to give an appellate court a clear understanding of the grounds of its decision.” White Indus., Inc. v. Cessna Aircraft Co., 845 F.2d 1497, 1499 (8th Cir.1988). If an appellate court does not know what facts the trial court took into consideration in drawing its conclusions, its findings become suspect. See Atlantic Thermoplastics Co. v. Faytex Corp., 5 F.3d 1477, 1479 (Fed.Cir.1993) (remanding because the district court’s findings were “too conclusory and sparse” to provide a factual basis for appellate review); EEOC v. United Va. Bank/Seaboard Nat’l, 555 F.2d 403, 406 (4th Cir.1977) (<HOLDING>). The only critical fact the district court Holdings: 0: holding that it is the commissioners findings of fact to the extent they modify or replace the administrative law judges findings that are relevant on appeal 1: holding that a reviewing court has the power to reject the findings and conclusions of the trial court where the findings are not supported by the evidence 2: holding that appellate review is precluded when the trial court provides only conclusory findings illuminated by no subsidiary findings or reasoning on all the relevant facts 3: holding that as long as the findings are supported by substantial evidence the board must defer to the hearing committees credibility determinations because they are subsidiary findings of basic facts 4: holding the findings of fact required to support an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the findings of fact show the trial court properly applied the law in the case


Input: quotation marks omitted) (quoting Poelstra v. Basin Elec. Power Coop., 545 N.W.2d 823, 825 (S.D.1996)). “As a general rule, the possessor of land owes an invitee or business visitor the duty of exercising reasonable or ordinary care for the benefit of the invitee’s safety, and the possessor is liable for the breach of such duty,” W. at 501 (internal quotation marks omitted) (quoting Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986)). “A business invitee is a business visitor who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.” Id. (internal quotation marks and citations omitted). Ms. Larmon qualifies as a business invitee in this case. See Small v. McKennan Hosp., 437 N.W.2d 194, 199 (S.D.1989) (<HOLDING>). A possessor of land in South Dakota “owes a Holdings: 0: holding that an employee qualified as a business visitor which the janis court subsequently defined as a business invitee 1: holding that monitoring telephone calls is in the ordinary course of business where the employer has reason to suspect an employee of disclosing confidential information to business competitor 2: recognizing duty of care owed by business invitor to invitee 3: holding that the innkeeperguest special relationship simply is not applicable to the potential duty of care owed to a business invitee 4: recognizing that pursuant to the business judgment rule the decisions of business professionals on the board of directors should be presumed valid


Input: administration and satisfy the inmate, thereby obviating the need for litigation”). That goal would not be achieved by requiring a plaintiff who no longer is part of the prison population to return to the institution to partake of an internal administrative dispute mechanism. Other courts have reached the opposite view. See, e.g., Morgan v. Maricopa County, 259 F.Supp.2d 985, 991-92 (D.Ariz.2003); Zehner v. Trigg, 952 F.Supp. 1318, 1327 (S.D.Ind.1997), aff'd, 133 F.3d 459 (7th Cir.1997); Kerr v. Puckett, 967 F.Supp. 354, 361-62 (E.D.Wis.1997). However, those decisions appear to constitute a minority position, as several other courts have held that the PLRA applies only to inmates confined at the time the lawsuit is commenced. See Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir.2000) (<HOLDING>); Greig v. Goord, 169 F.3d 165, 167 (2d Holdings: 0: holding that the ideas exhaustion requirement applies to claims asserted under  1983 1: holding that court cannot order restitution under the mvra to persons who are not victims of the offenses for which the defendant was convicted 2: recognizing that issue exhaustion requirement and requirement exhaustion of remedies are different 3: holding that exhaustion requirement applies to excessive force claims 4: holding that the exhaustion requirement applies only to individuals who at the time they seek to file their civil actions are detained as a result of being accused of convicted of or sentenced for criminal offenses


Input: application signed by defendant, relating to matters of a general nature unrelated to the applicant’s medical history, was approved by the Acting Superintendent of Insurance of the State of New York on March 27,1990. (Exh. Y annexed to Pl.’s Summary Judgment Motion). With regard to the second part of NML’s form of disability insurance application, relating specifically to an applicant’s medical history, NML’s form of medical questionnaire which it submitted to the Superintendent of Insurance of the State of New York was approved on January 13, 1986. (Exh. Z annexed to Pl.’s Summary Judgment Motion). NML’s form was entitled, “Nonmedical Applications Only.” Id. The form entitled, “Nonmedical Applications Only” is exactly the same .Y.S.2d 500, 502, 107 A.D.2d 1033, 1034 (4th Dep’t) (<HOLDING>), aff'd 65 N.Y.2d 993, 494 N.Y.S.2d 299, 484 Holdings: 0: holding that where employer paid benefits under group disability policy to employee under mistaken belief that his condition resulted from illness rather than injury arising out of and in course of employment employees acceptance of such benefits did not bar him from benefits to which he was entitled under workers compensation law and employer was properly allowed credit for payments made under disability policy 1: holding evidence including that insurer only charged life insurance premium that would ordinarily apply to onehalf the amount of coverage actually permitted by policy as written did not warrant retroactive reformation of policy to reduce coverage amount because it did not demonstrate mistake on insureds part and insurance company did not present evidence on what parties agreed to before the policy was issued 2: recognizing that production of a written insurance policy was unnecessary to prove the existence of the policy because the proof required was proof of the fact of insurance and not of the contents of a writing 3: holding fact that prototype group disability policy submitted to insurance department for approval contained blanks and that therefore policy actually issued with blanks filled in may have been unapproved in violation of insurance statutes did not warrant voiding of nonduplication of benefits clause in group disability policy 4: holding that a policy with an excess other insurance clause provides no coverage until a policy with a pro rata other insurance clause is exhausted


Input: Mr. Belcher testified that he was able to remove the radio from the van. R.59, Ex. 2 at 50. 6 . Indiana courts have defined false imprisonment as "the unlawful restraint upon one's freedom of movement or the deprivation of one’s liberty without consent.” Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind.Ct.App.2002). Indiana courts have stated also that "[a] defendant may be liable for false arrest when he or she arrests the plaintiff[s] in the absence of probable cause to do so.” Id. The circumstances of this procedural due process claim do not involve false arrest or false imprisonment under Indiana tort law. Therefore, these exceptions to the law enforcement immunity provision do not apply. 7 . See, e.g., East Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26 (Ind.Ct.App.2005) (<HOLDING>); City of Hammond v. Reffitt, 789 N.E.2d 998, Holdings: 0: holding police officers were entitled to immunity where the officers decided not to arrest an intoxicated driver who subsequently died of hypothermia in his vehicle 1: holding that police officers were not entitled to immunity under the itca law enforcement immunity provision where the officers violated their statutory duty to drive with due regard for the safety of all individuals while acting within the scope of their employment 2: holding officers engaged in search entitled to immunity 3: holding that even if the plaintiff had asserted a cause of action under the virginia wrongful death act against the city police officers the police officers would be entitled to sovereign immunity 4: holding that officers were entitled to qualified immunity where defendant officers could have reasonably believed that they were given sufficient third party consent to search


Input: merits. Id. at 1163. Given that the Court denied Mr. Henry’s emergency motion on the merits three days after it was filed, that Mr. Henry had requested expedited consideration, and that the 30-day timeframe was not at issue in the case, it is safe to say that anything Henry said about the 30-day timeframe was dicta, not holding. See Kaley, 579 F.3d at 1253 n. 10. IV. For all of these reasons, we hold Mr. Johnson’s application in abeyance, pending the Supreme Court’s decision in Welch. APPLICATION HELD IN ABEYANCE. 1 . See Rodriguez v. Bay State Corr. Ctr., 139 F.3d 270, 272 (1st Cir.1998); Word v. Lord, 648 F.3d 129, 129 n. 1 (2d Cir.2011) (per curiam) C'[W]here an issue requires a published opinion that cannot reasonably be prepared in [ ] time [ ] we may e 04, 159 L.Ed.2d 494 (2004) (<HOLDING>); Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, Holdings: 0: holding that the rule announced in padilla v kentucky 559 us 356 130 sct 1473 176 led2d 284 2010 doesnt apply retroactively on collateral review 1: holding that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 doesnt apply retroactively on collateral review 2: holding that the rule announced in simmons v south carolina 512 us 154 114 sct 2187 129 led2d 133 1994 doesnt apply retroactively on collateral review 3: holding that the rule announced in ring v arizona 536 us 584 122 sct 2428 153 led2d 556 2002 doesnt apply retroactively on collateral review 4: recognizing that the rule announced in mills v maryland 486 us 367 108 sct 1860 100 led2d 384 1988 that the eighth amendment prohibits any barrier to the sentencers consideration of mitigating evidence was not a watershed procedural rule falling within the second teague exception


Input: the case being reviewed: 1. "the agency was charged by the legislature with the duty of administering the statute"; 2. the agency's interpretation is one of longstanding; 3. "the agency employed its expertise or specialized knowledge in forming the interpretation"; and 4. the agency's interpretation will provide uniformity and consistency in applying the statute. Harnischfeger, 196 Wis. 2d at 660. Only due weight deference may be required, however, if all four of the above standards are not met. Id. at 660 n.4. A reviewing court under due weight deference "need not defer to an agency's interpretation which while reasonable, is not the interpretation which the court considers best and most reasonable." Id.; see also Margoles v. LIRC, 221 Wis. 2d 260, 265 n.3, 585 N.W.2d (Ct. App. 1998) (<HOLDING>). ¶ 10. Cudahy argues that LIRC's decision in Holdings: 0: holding that under a due weight deference standard a more reasonable interpretation overcomes an agency interpretation 1: holding erisa plan interpretation is simply one of contract interpretation 2: holding that agency interpretation which is reasonable is entitled to deference 3: holding that chevron deference is due only to a reasonable interpretation made by the administrator of an agency 4: holding that deference to an agency interpretation is not appropriate where a statute is administered by more than one agency


Input: Citizens Comm. for Broad. v. FCC, 515 F.2d 397, 402 (D.C.Cir.1974) (finding jurisdiction to review an FCC order denying reconsideration of a notice of apparent liability, even though licensee had paid the proposed forfeiture upon receipt of the notice, so that no further administrative proceedings were necessary and no district court action filed). In the absence of direct support, the FCC calls our attention to rulings in cases involving other statutes, with varying purposes and enforcement provisions. Because these cases generally recount the clear and convincing evidence of Congressional intent to exclude review, we are not persuaded that they are germane to the instant ease. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-12, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (<HOLDING>); Solar Turbines Inc. v. Seif, 879 F.2d 1073, Holdings: 0: holding judicial review of a preenforcement ruling precluded by the federal mine safety and health amendments act of 1977 where the aggrieved mine owner could initiate an administrative challenge and the legislative history demonstrates a recognition that prompt abatement of violations was essential to avoid fjrequent and tragic mining disas ters 1: holding that case law from other circuits squarely precluded jurisdiction over preenforcement ruling under the clean air act 2: holding that section 9613h precluded preenforcement judicial review of plaintiffs constitutional challenge cercla 3: holding where challenge was waived that appellate review is precluded 4: holding also that the ordinance failed to provide for prompt judicial review


Input: to avail themselves of existing procedures that has foreclosed their claims presented here. Alternatively, plaintiffs claim that availing themselves of the existing procedures would have been futile because, once the government initiates the eminent domain process, Connecticut law does not allow for a valuation of the property that includes a decline in property value occasioned by pre-eminent domain activities of the government. (See Dkt. #22 at 3-4.) This argument is not persuasive for two reasons. First, plaintiffs do not present facts indicating that they even attempted to raise the issue during the eminent domain process. Second, plaintiffs interpretation of Connecticut law has recently been disavowed. See Albahary v. City of Bristol, 276 Conn. 426, 436, 886 A.2d 802 (2005) (<HOLDING>). Therefore, there is no basis to conclude Holdings: 0: holding that the constitutional level of punitive damages is not a finding of fact that must be determined by the jury it may be determined de novo by the court 1: holding before huffman was decided that younger abstention was inapplicable to an eminent domain proceeding 2: holding that the appellate court properly determined that generally under principles of inverse condemnation a property owner may seek compensation in an eminent domain proceeding for pretaking damages caused by the condemnor 3: holding that an eminent domain action that ended with a stipulated final judgment was not a supplemental proceeding 4: holding that a workers compensation proceeding is a legal proceeding


Input: be sufficient, provided it is “a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” Id. at § 1601.12(b). Mr. Jones’s intake questionnaire clearly satisfies these minimum requirements for the content of a charge, in addition to meeting the EEOC’s formal requirements that a charge be written, signed, and verified, id. § 1601.9. Moreover, the record supports the District Court’s finding that Mr. Jones intended the questionnaire to serve as a charge. In addition to asking whether a document meets the EEOC’s requirements for a charge, other circuits ask whether the charging party manifested an intent to activate the administrative process. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1319-20 (11th Cir.2001) (<HOLDING>); see also Holowecki v. Fed. Express Corp., 440 Holdings: 0: holding in accordance with other circuits that an intake questionnaire may serve as a charge of discrimination if the circumstances of the case demonstrate that the charging party manifested the intent to activate the administrative process 1: holding that the timely filing of an administrative charge of discrimination is a prerequisite to bringing suit 2: holding that plaintiffs filing with the eeoc constituted a formal charge because the plaintiff attached a statement to the filed intake questionnaire that included a request for the agency to act 3: holding that based on plain language in box 2 plaintiffs intake questionnaire could not be construed as timely eeoc charge 4: holding an intake questionnaire to constitute a charge under the adea upon application of the manifestation of intent test although the eeoc did not consider the questionnaire to be a charge and the aggrieved person subsequently filed a formal charge


Input: Hernandez, but a rational trier of fact could reasonably have found appellant could not go after Hernandez because he was busy subduing Vasquez. Appellant’s own statement that he did not conspire to rob Vasquez does not render the evidence to the contrary insufficient. Accordingly, we hold there was sufficient evidence of appellant’s involvement in a conspiracy to rob Vasquez. B. Evidence that the murder should have been anticipated Appellant also asserts there is no evidence that he should reasonably have anticipated the possibility of a murder occurring in the course of the robbery because there is no evidence he knew or had reason to believe that Levy had a gun with him that night. Fur 13); Turner v. State, 414 S.W.3d 791, 798-99 (Tex.App.-Houston [1st Dist.] Aug. 27, 2013, no pet.) (<HOLDING>). We conclude the cumulative effect of the Holdings: 0: holding that i have a gun is sufficient to justify the sentencing enhancement because it merely requires a teller to make the reasonable inference that a robber would use the gun he claimed to have if he did not receive the money he demanded 1: holding evidence showed appellant knew gun was brought when coconspirator removed something wrapped in white towel from truck during criminal transaction 2: holding evidence sufficient that appellant should have anticipated murder when he knew coconspirator had a gun and appellant stated he first saw the gun on the night of the offense when coconspirator showed it to victim 3: holding a consent voluntary when a defendant who had been warned of his rights and knew police were investigating murders turned his gun over to a policeman who suggested that he could sell the gun for the defendant 4: holding direct testimony tying a defendant to a gun was not required when the gun was found in the defendants truck and when the defendant had both ammunition for the gun and a rack in which it could have been kept


Input: not be sued without consent in its own courts . . . .”). 8 Dempsey v. Bd. of Regents of the Univ. Sys. of Ga., 256 Ga. App. 291, 292 (568 SE2d 154) (2002) (punctuation omitted). 9 It appears from the correspondence that Shuford mailed a check to Walker in November 2009 to cover the repair and diminished value of Walker’s motorcycle. We reject Walker’s argument that this in any way waived sovereign immunity or estopped the State from invoking same because “a government official may not waive or be estopped from invoking statutory notice requirements.” Dempsey, 256 Ga. App. at 294; see also State of Ga. v. Haynes, 285 Ga. App. 637, 640 (647 SE2d 331) (2007) (“[T]he government may not waive or be estopped from invoking statutory notice requirements.”). 10 See Welch, 276 Ga. App. at 665 (<HOLDING>); Shelnutt v. Ga. Dep’t of Transp., 272 Ga. Holdings: 0: holding that because the plaintiffs did not strictly comply with the statutory provisions for sending ante litem notice the trial court had no subj ect matter jurisdiction over the suit punctuation omitted 1: holding that the superior court had no jurisdiction over the division of marital property when the district court had properly invoked jurisdiction over the property 2: holding that failure of the property appraiser to strictly comply with statutory notice provisions tolls the running of the sixtyday period within which to bring an action contesting a tax assessment 3: holding that a superior court could not exercise its original jurisdiction under article iv section 6 over a challenge to a tax decision where the party failed to strictly or substantially comply with statutory procedural requirements 4: holding a trial court lacks jurisdiction when a party fails to strictly comply with the statutes regarding service


Input: see id. at 74-75, 21 L.Ed. 394. The former include only rights the Federal Constitution grants or the national government enables, but not those preexisting rights the Bill of Rights merely protects from federal invasion. Id. at 76-80, 21 L.Ed. 394. The Second Amendment protects a right that predates the Constitution; therefore, the Constitution did not grant it. See, e.g., Heller, 128 S.Ct. at 2797 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”). It necessarily follows that the Privileges or Immunities Clause did not protect the right to keep and bear arms because it was not a right of citizens of the United States. See Cruikshank, 92 U.S. at 553; cf. Presser, 116 U.S. at 266-67, 6 S.Ct. 580 (<HOLDING>). 3 The final avenue for incorporation is that Holdings: 0: recognizing a right to associate with others in pursuit of a wide variety of political social economic educational religious and cultural ends 1: holding that the right to associate with others as a military company is not a privilege of citizens of the united states 2: recognizing even federal constitutional right of association does not apply to the right of one individual to associate with another 3: holding that the plaintiff must demonstrate that defendants contacts with the united states as a whole support the exercise of jurisdiction consistent with the constitution and laws of the united states 4: holding that the fourteenth amendment which makes persons bom in the united states and subject to its jurisdiction citizens of the united states and requires that representatives be apportioned among the states based on population excluding indians not taxed did not make an indian a citizen of the united states


Input: statements made to investment analysts. Defendants confuse the test under which they can be held indirectly liable for misleading opinions or statements by analysts or other third parties with the test under which they can be held directly liable for their own misleading statements to analysts. Defendants “cannot escape liability simply because [they] carried out [their] alleged fraud through the public statements of third parties.” Warshaw v. Xoma Corp., 74 F.3d 955, 959 (9th Cir.1996). See also McGann v. Ernst & Young, 95 F.3d 821 (9th Cir.1996) (finding accountant liable for providing fraudulent audit report to corporation where accounting firm knew report would be incorporated in 10-K and distributed to investors); Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 164 (2d Cir.1980) (<HOLDING>); Alfus v. Pyramid Technology Corp., 764 Holdings: 0: holding government could be liable for breach of a contractual obligation to purchase insurance for plaintiff 1: holding that attempted firstdegree murder may be committed knowingly or intentionally 2: holding summary judgment was not warranted because material facts were in dispute 3: holding management could be liable for intentionally misstating material facts to analysts 4: holding that evidence submitted for a motion to reopen must be material and state new facts that rebut the underlying finding


Input: anatomy does not naturally contain external pockets, pouches, or other places in which personal objects can be conveniently carried. To remedy this anatomical deficiency clothing contains pockets. In addition, many individuals carry purses or shoulder bags to hold objects they wish to have with them. Containers such as these, while appended to the body, are so closely associated with the person that they are identified with and included within the concept of one’s person. To hold differently would be to narrow the scope of a search of one’s person to a point at which it would have little meaning. Id. Several other jurisdictions have similarly concluded that the search of a person includes containers held by the person. See United, States v. Robertson, 833 F.2d 777, 784 (9th Cir. 1987) (<HOLDING>); Minnesota v. Wynne, 552 N.W.2d 218, 220 Holdings: 0: holding that search of defendants purse which he carried was authorized by a warrant to search his person 1: holding that search of shoulder bag was not authorized by search warrant for apartment 2: holding that search of appellants suitcase found on the floor next to the couch on which he was sleeping was an unconstitutional search of his person and was not authorized by a search of the residence 3: holding that search of backpack constituted a search of defendants person and was not authorized by search warrant for premises 4: holding that acquiescence to a strip and body cavity search did not extend the scope of defendants consent to search his person because of the highly intrusive nature of the search


Input: by the district court as the appropriate term of imprisonment”), cert. denied, 537 U.S. 1023, 123 S.Ct. 534, 154 L.Ed.2d 434 (2002); United States v. Kings, 981 F.2d 790, 797-98 (5th Cir.1993) (per curiam) (affirming sentence of 150 months under § 5G1.2(d) where guideline range was 120 to 150 months, and where one count carried a 120-month statutory maximum and another count carried a 36-month statutory maximum); United States v. Jemison, 237 F.3d 911, 918-19 (7th Cir.2001) (vacating and remanding sentence due to district court’s failure to order consecutive sentences, but citing Joetzki in holding that, pursuant to § 5G1.2(d), the district court could have sentenced defendant "to 66 months (and a great deal more)”); United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th Cir.2000) (<HOLDING>); United States v. Nelson, 54 F.3d 1540, 1547 Holdings: 0: holding that consideration by a sentencing court of acquitted conduct was appropriate in establishing the applicable guideline range or in determining the sentence to impose within the guideline range 1: holding that the maximum revocation sentence is the top of the guidelines range 2: holding that total punishment is the precise sentence determined by the sentencing judge from within the appropriate guidelines range and affirming a 63month sentence where a jury convicted defendant of five counts each with a 60month statutory maximum where the guideline range was 51 to 63 months 3: holding that where the guideline range is higher than the statutory maximum sentence the court should depart from the lowest range that could support the statutory maximum 4: holding that a sentence of 71 months is proper under  5g12d where guideline range was 57 to 71 months and where each of eight counts of conviction carried 60month statutory maximum


Input: to FCCS once the court has placed the juvenile in the custody of FCCS. {¶ 14} In response to FCCS’s argument, the state relies on the statutory authority for the court to “[m]ake any further disposition that the court finds proper.” The state contends that R.C. 2152.19(A)(8) is so broadly worded that it grants the juvenile court considerable discretionary authority to fashion delinquency dispositions that are not specifically enumerated in the juvenile code, as long as the dispositions further the purposes of the juvenile statutes. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921, ¶ 6 (recognizing the juvenile court’s “broad discretion to craft an appropriate disposition for a child adjudicated delinquent”); In re Caldwell (1996), 76 Ohio St.3d 156, 666 N.E.2d 1367 (<HOLDING>); In re Walker, Franklin App. No. 02AP-421, Holdings: 0: holding the courts consecutive sentences at the statutory maximum on each count were reasonable because of the gravity of the offense 1: holding that the federal constitutional right to a jury trial does not apply to decisions to impose consecutive sentences 2: holding that because the general assembly included a catchall provision which it did not have to do the juvenile court had authority to impose consecutive commitments to dys based on each delinquent act even though consecutive commitments were not specifically enumerated in the statutes at that time 3: holding apprendi does not apply to consecutive sentencing 4: holding to read words and concepts into our statutes that the general assembly did not write shows disrespect both for the general assembly and the common law which the legislature has the power expressly to displace


Input: Carolina, a landlord must prove: (1) That it distinctly reserved in the lease a right to declare a forfeiture for the alleged act or event; (2) that there is clear proof of the happening of an act or event for which the landlord reserved the right to declare a forfeiture; (3) that the landlord promptly exercised its right to declare a forfeiture, and (4) that the result of enforcing the forfeiture is not unconscionable. Charlotte Housing Authority v. Fleming, 123 N.C. App. 511, 513, 473 S.E.2d 373, 375 (1996). “Our courts do not look with favor on lease forfeitures.” Stanley v. Harvey, 90 N.C. App. 535, 539, 369 S.E.2d 382, 385 (1988). “When termination of a lease depends upon notice, the notice must be given in strict compliance with the contract as to both time and contents.” Id. (<HOLDING>). Here, the relevant portion of the governing Holdings: 0: recognizing that a lease providing for renewal at the termination of the lease did not require the lessee to exercise the option before the lease expired nor did it require renewal at the precise hour of termination but gave the lessee a reasonable time after the termination of the lease in which to make his election 1: holding that when notice to vacate was insufficient to comply with the terms of the lease lease was not properly terminated before commencement of summary ejectment action 2: holding that the plaintiff could not complain that it was unable to comply with the trial courts order to respect the defendants easement because of its lease with a third party where plaintiff had entered into lease knowing that property was subject to an easement 3: holding that the damage for tenancy at sufferance during the holdover period was the monthly rent under the lease versus the apartments fair market value because the lease contained a provision requiring lease payments beyond the lease term 4: holding that former employees of a brokerage firm who had a contractual right to a share of any commission received by the firm upon extension of a lease were not entitled to a share of the commission received when the landlord and tenant entered an amendment to the lease which extended the duration but also added new terms this was a new lease not an extension of the prior lease