Input: lawful police power because City’s billboard ordinance is unconstitutionally unreasonable because it does not further public welfare, health, or safety. Lamar’s pleadings (including its summary judgment pleadings) did not challenge the constitutionality of City’s billboard ordinance on this or any other basis. Lamar’s further contention that City never formally declared the Agreement to be adverse to its interests and never officially repudiated the Agreement preserves nothing for our review. Lamar does not explain the legal relevance of this fact, and provides no authority explaining why the fact prevented the trial court from determining that the Agreement was void ab initio pursuant to section 432.070 because it exceeded the scope of City’s powers. Ad Trend, 272 S.W.3d at 206-07 (<HOLDING>). Lamar’s fourth point on appeal next argues Holdings: 0: holding that an appellate court is not required to review an appellants point relied on which appears without citation of applicable or relevant authority 1: holding that a claim is waived on appeal when not supported by citation to relevant authority 2: holding that issues raised but not supported by argument are deemed abandoned 3: holding an issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority 4: holding that pejorative allegations about questioned actions where the legal significance is not explained nor supported by relevant authority or by an explanation for the lack of relevant authority are deemed abandoned and unpreserved for appellate review


Input: further supported the government’s position. After reviewing the evidence in the record-especially the Franks hearing testimony regarding the states of mind of the government agents-and applying the correct understanding of reckless disregard, we conclude that the record does not support the finding that the omission of the SEC investigation in the Title III wiretap application was made with “reckless disregard for the truth.” In any event, even if we were to assume, arguendo, the opposite conclusion-that government officials omitted information about the SEC investigation with “reckless disregard for the truth”we are persuaded that this omission was not material, substantially for the reasons stated in the District Court’s analysis on that issue. Rajaratnam, 2010 WL 4867402, at *21-24 (<HOLDING>). C. “Probable Cause”: Did the District Court Holdings: 0: holding evidence insufficient to support finding of implied contract 1: holding that the evidence presented at a factfinding hearing was sufficient to support the chins finding 2: holding evidence sufficient to support trial courts finding in aggravation that the offense was planned 3: holding that the wiretap application as corrected was sufficient to support a finding of necessity 4: holding that the testimony of an obligor as to amount of payments was sufficient evidence to support findings of actual support paid


Input: cannot order that requested relief. Numerous Maryland decisions illustrate the rule. They include Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 561, 510 A.2d 562, 564-65 (1986) (dismissing appeal as moot because patient no longer required medical treatment that included a blood transfusion, to which she refused to consent; the Court concluded “[njothing that we say will bind the parties to any future course of action or will affect or remedy what has already taken place”); National Collegiate Athletic Ass’n v. Tucker, 300 Md. 156, 158-59, 476 A.2d 1160, 1161 (1984) (after lacrosse season, dismissing, as moot, appeal from injunction allowing allegedly ineligible lacrosse players to participate in intercollegiate games); Hagerstown Reprod. Health Servs. v. Fritz, 295 Md. 268, 454 A.2d 846 (<HOLDING>), cert. denied, 463 U.S. 1208, 103 S.Ct. 3538, Holdings: 0: holding that filing of appeal to federal circuit divests this court of jurisdiction to consider motion to stay court order pending appeal 1: holding that the fact that injunction at issue did not restrict the expression of those demonstrating in favor of abortion rights was justly attributable to the lack of any similar demonstrations by those in favor of abortion rights and noting that the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the courts original order 2: holding an appeal of injunction moot where the injunction expired three months before the appellate court heard arguments in the case 3: holding appeal moot on this basis 4: holding as moot appeal from circuit court injunction prohibiting abortion where abortion performed during appellate stay


Input: or special situation theories or that Sonitrol was not entitled to judgment as a matter of law. A. Standard of Review 1. Motion to Dismiss A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove facts in support of a claim that would entitle it to relief. Coors Brewing Co. v. Floyd, 978 P.2d 668, 665 (Colo.1999). But see Bell Atl. Corp. v. Twombly, -- U.S. --, --, 127 S.Ct. 1955, 1965, 1968-69, 167 L.Ed.2d 929 (2007) (abrogating this standard for motions under Fed.R.Civ.P. 12(b)(6), and holding that to survive such a motion the complaint must set forth factual allegations sufficient to "raise a right to relief above the speculative level"); Alvarado v. KOB-TV, LLC., 493 F.3d 1210, 1215 n. 2 (10th Cir.2007) (<HOLDING>). In ruling on a motion to dismiss for failure Holdings: 0: holding that plaintiff had failed to state a claim for relief under section 1983 1: recognizing that district courts should resolve issues related to jurisdiction or venue prior to ruling on a motion to dismiss for failure to state a claim 2: holding that the bell afl corp standard applies to all motions to dismiss for failure to state a claim for relief 3: holding that motions to dismiss should have been converted into motions for summary judgment where the district court relied upon contract documents submitted by the defendant 4: holding that the criminal jurisdiction bar applies to the denials of motions to reopen


Input: Const. art.I, art. II. Extraterritorial tax enforcement directly implicates relations between the United States and other sovereign nations. See Attorney General of Canada, 268 F.3d at 114. As the Second Circuit stated: When a foreign nation appears as a plaintiff in our courts seeking enforcement of its revenue laws, the judiciary risks being drawn into issues and disputes of foreign relations policy that are assigned to — and better handled by— the political branches of government. Id.; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (stating that courts are not responsible for political functions affecting foreign relations); Sun Oil Co. v. Wortman, 486 U.S. 717, 740 n. 3, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (Brennan, J., concurring) (<HOLDING>); United States v. Boots, 80 F.3d 580, 587 (1st Holdings: 0: recognizing rule 1: recognizing continued validity of the modified prospectivity rule of kitto 2: recognizing that udja waives sovereign immunity in suit challenging validity of statute 3: recognizing validity of rule stated in marhal 4: recognizing continued validity of rule barring adjudication of a foreign tax suit


Input: ” Id. at 1079 (quoting Pilot Life, 481 U.S. at 52, 54, 107 S.Ct. 1549). Therefore, a state law is preempted if it adds to the judicial remedies available under ERISA. Id. (citing Rush Prudential, 536 U.S. at 379, 122 S.Ct. 2151). The Kentucky Act essentially creates a statutory bad faith claim. Cummings v. Thomas Industries, Inc., 812 F.Supp. 99, 101 (W.D.Ky.1993) (citing State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 118 (Ky.1988)). A plaintiff may recover “such damages as he sustained by reason of the violation” of the Act. Ky.Rev.Stat. § 446.070. The plain language of this statute permits, at a bare minimum, compensatory damages. In addition, a plaintiff can recover damages for anxiety and mental anguish. FB Ins. Co. v. Jones, 864 S.W.2d 926, 929 (Ky.Ct.App.1993) (<HOLDING>). By comparison, ERISA limits plaintiffs Holdings: 0: holding that wifes recovery for loss of consortium should not be reduced by the proportion of negligence attributable to husband because claim for loss of consortium is independent of the damages claim of the injured spouse 1: holding the trial court did not err by instructing the jury that the plaintiff could be awarded damages for anxiety mental anguish and loss of consortium for a violation of the kentucky act 2: recognizing cause of action for loss of consortium 3: holding that trial court did not err 4: recognizing loss of consortium claims


Input: two months, CU withdrew from the Plough action. It subsequently disclaimed coverage. On November 26,1980, a year and a half after it withdrew its defense, CU brought this declaratory judgment suit seeking a determination that it was not liable to defend or indemnify IFF in the Plough action. Since the Plough action had been pending for almost two years and IFF was in the midst of defending itself in that litigation, IFF moved to stay the declaratory judgment suit as untimely. On March 25, 1981, after extensive briefing and oral argument, the Court stayed the suit 46 A.D.2d 97, 361 N.Y.S.2d 232, 234 (3d Dept.1974); Padavan v. Clemente, 43 A.D.2d 729, 350 N.Y.S.2d 694 (2d Dept.1973) Allstate Insurance Co. v. Aetna Casualty & Surety Co., 123 Misc.2d 932, 475 N.Y.S.2d 219, 221-22 (1984) (<HOLDING>). By bringing this declaratory judgment action Holdings: 0: holding that indemnitee may recover attorneys fees incurred in defending indemnity agreement 1: holding that insured may recover legal fees incurred in defending itself in a declaratory judgment action brought by insurer but not for those incurred in prosecuting cross claims and counterclaims against insurers 2: holding that insured could recover the costs of defending a declaratory judgment action brought by the injured party to compel the insurer to defend but could not recover the costs associated with prosecuting crossclaims against the insurer 3: holding that insured may recover from its insurer any attorney fees incurred in successfully attempting to force the insurer to defend an action against the insured 4: holding that insured who brought third party action against insurer could recover costs incurred in defending insurers counterclaim for declaratory relief since the insureds posture in the counterclaim was that of a defendant


Input: passage of interstate commerce of either people of goods.” United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir.1996) (Alito, J., dissenting). The Lessor Defendants argue that Congress appropriately invoked this authority because strict vicarious liability lawsuits against lessors of motor vehicles typically arise following an automobile accident that occurs on roads, streets, intrastate or interstate highways, all of which are channels of commerce. See, e.g. Pierce County, Washington v. Guillen, 537 U.S. 129, 147, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003) (upholding legislation aimed at improving safety in the “channel of commerce,” including streets, roads and federal highways); State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487 (1941) (<HOLDING>); United States v. Ballinger, 395 F.3d 1218, Holdings: 0: holding that state ownership of submerged lands remains subject to congress paramount power over navigable waters under the commerce clause 1: holding that commerce clause authorizes congress to punish any particular criminal action even without proof of a relation to interstate commerce when the activity is part of a class of activities determined by congress to affect interstate commerce 2: holding action equivalent to quiet title over navigable waters regulated and controlled by state is form of prohibited relief 3: recognizing that navigable waters railroads and highways are channels of commerce which can be regulated under congress commerce powers 4: holding that wetlands adjacent to navigable waters are included in the term territorial waters


Input: F.Supp.2d 706, 712 (S.D.N.Y.2007); Kreinik v. Showbran Photo, Inc., No. 02CV1172, 2003 WL 22339268, **8-9, 2003 U.S. Dist. LEXIS 18276, at *29 (S.D.N.Y. Oct. 10, 2003) (“To state a claim under Section 215, [employee] must adequately plead that [employer’s] counterclaims constituted an adverse employment action taken because of [employee’s] complaints under the Labor Law.”). In addition, New York’s anti-retaliation provision requires a nexus between the employee’s complaint and the employer’s retaliatory action. Kreinik, 2003 WL 22339268, **8-9, 2003 U.S. Dist. Lexis 18276, at *29 (finding that employee’s allegations sufficiently plead that his labor law complaints were a motivating factor for employer’s adverse action); Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151, 162 (E.D.N.Y.2002) (<HOLDING>). The defendant contends that the plaintiff Holdings: 0: holding that the close connection in time between the complaint and termination indicated that complaints could have been a motivating factor for employees termination 1: holding that plaintiff must come forth with sufficient facts to permit a determination that his statements were a substantial motivating factor in his employment termination 2: holding that a 17 month time period between the employees protected speech and his termination could not support an inference of causation 3: holding that the conflicting explanations given by defendants agents for the plaintiffs termination were also sufficient to raise a reasonable inference that defendants proffered reasons for the termination were pretextual the inconsistent testimony  regarding the motivating reasons for plaintiffs termination cast doubts on the asserted nondiscriminatory legitimate reasons and may alone  be sufficient to preclude summary judgment on plaintiffs claim 4: holding that although a reason was provided in the termination letter the without cause termination provision was applicable


Input: with property ‘is satisfied only if a court issues a provisional remedy such as attachment, an order of arrest or an injunction.’ ” Equity Assocs., Inc. v. Village of Northbrook, 171 Ill.App.3d 115, 121 Ill.Dec. 71, 76, 524 N.E.2d 1119, 1124 (1988) (quoting Tedeschi v. Smith, Barney, Harris, Upham & Co., 548 F.Supp. 1172, 1174 (S.D.N.Y.1982), aff'd, 757 F.2d 465 (2d Cir.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985)). In Illinois, the court’s focus rests upon the peculiar effect of the suit upon plaintiffs right to use the property; special injury in civil cases will not be found unless the injuries emanate directly from the impact of the issues allegedly wrongfully litigated. Compare Bank of Lyons v. Schultz, 78 Ill.2d 235, 35 Ill.Dec. 758, 399 N.E .2d 1286 (1980) (<HOLDING>) and Norin v. Scheldt Mfg. Co., 297 Ill. 521, Holdings: 0: holding that injunction restraining distribution of life insurance proceeds for more than nine years to widowed beneficiary sufficient interference with property to satisfy special injury requirement 1: holding that husbands obligation to pay premiums on a life insurance policy for five years with wife as the beneficiary was periodic alimony 2: holding that the proceeds of a liability insurance policy were not property of the estate 3: holding change of beneficiary effective where city employee listed a new beneficiary for his group life insurance policy in an employee personal data form next to the words designated beneficiary even though this did not comply with the policy terms 4: holding that insureds widow as beneficiary of life insurance policy had standing as an injured person under the insurance code


Input: offense of attemptéd second-degree murder based on knowing merely that one’s conduct will cause serious physical injury, the giving of the instruction was reversible error. Ontiveros’s conviction must therefore be reversed. CONCLUSION ¶ 20 We reverse Ontiveros’s conviction and remand for a new trial. Because of this disposition, we do not reach the sentencing issue raised by Ontiveros. CONCURRING: G. MURRAY SNOW, Presiding Judge and DONN KESSLER, Judge. 1 . The offense of attempted second-degree murder under §§ 13-1001(A)(2) and -1104(A)(2) does not, contrary to Ontiveros’s argument, require an intent to cause death. The culpable mental state of knowingly causing the death of another is sufficient under § 13-1104(A)(2). Cf. State v. Nunez, 159 Ariz. 594, 769 P.2d 1040 (App.1989) (<HOLDING>). The requirement of acting knowingly, however, Holdings: 0: holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder 1: holding that fetus was not a human being for purposes of attempted firstdegree intentional homicide and firstdegree reckless injury statutes 2: holding that a jury could not be instructed that attempted murder can be committed knowingly 3: holding that attempted firstdegree murder may be committed knowingly or intentionally 4: holding that appellate counsel was ineffective in failing to argue based on the first districts decision in montgomery that the standard attempted manslaughterbyact instruction was fundamentally erroneous where betts was charged with attempted firstdegree premeditated murder and convicted of the necessary lesserincluded offense of attempted seconddegree murder


Input: operation, maintenance or use of a motor vehicle as a motor vehicle.’ ” Cruz v State Farm, Mut Auto Ins Co, 241 Mich App 159, 164; 614 NW2d 689 (2000), aff'd 466 Mich 588 (2002), quoting MCL 500.3105(1). 5 MCL 500.3104(17) provides: Not more than 60 days after the initial organizational meeting of the board [of directors of the MCCA], the board shall submit to the commissioner for approval a proposed plan of operation consistent with the objectives and provisions of this section, which shall provide for the economical, fair, and nondiscriminatory administration of the association and for the prompt and efficient provision of indemnity. 6 This Court has previously implicitly found that an insurer constitutes a “third party” under § 10.06. See Farmers Ins Exch, 251 Mich App at 458-459 (<HOLDING>). 7 We believe that our holding is not only Holdings: 0: holding that  1006 applies to an insurers recoupment of money from another insurer 1: holding that the employer was not the insurers agent 2: holding insurers right to subrogation arises only upon the insurers showing that the sum of the insureds recovery from the insurer and from persons legally responsible for the injury exceeds the insureds loss 3: holding that admonishment for breach of insurers obligation to insured is not applicable to equitable share dispute between insurers 4: holding that the language of  9133 applies only to insurers and not to the insurers employees


Input: by private litigants, who lack the institutional constraints of prosecutors and grand juries. These distinctions in the two neighboring state’s laws created differing expectations about what conduct each would allow or prohibit. This case is, thus, distinguishable from those in which courts declined to dismiss claims recognized under New Jersey local law, even though out-of-state plaintiffs might have been unable to pursue such causes of action under their own state’s local law. In those matters, the plaintiffs were allowed to pursue their claims on the ground that their home states had no reason to deny them the fortuity of a remedy for what both states recognized as “the same evil,” even if they did not recognize it to the same degree. See Boyes, supra, 27 F.Supp.2d at 547-48 (<HOLDING>); Smith v. Alza Corp., 400 N.J.Super. 529, Holdings: 0: recognizing new jerseys interest in deterrence of tortious misconduct as a relevant factor in choice of law decisions applicable where two of defendants were new jersey residents from whom damages were sought for their negligent acts in new jersey 1: recognizing israel had no interest in denying its citizens the substantive advantages of new jersey defamation law in new jersey residents claims for defamation published in new jersey 2: holding that a writ of execution under new jersey law is not an action against the consumer 3: recognizing that pennsylvania had no interest in denying its residents the greater damages available under new jersey consumer fraud statutes for claims against a new jersey seller 4: recognizing that alabama had no interest in denying its residents the procedural and substantive advantages afforded under new jerseys product liability and consumer fraud statutes but not alabamas for claims against a new jersey manufacturer


Input: be believed.” Id. at 365, 111 S.Ct. 1859. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El, 537 U.S. 322, 123 S.Ct. at 1040, 154 L.Ed.2d 931. Although we afford great deference to the trial court’s observations of the prosecutor’s demeanor and intent, “[deference does not by definition preclude relief.” Id. at 1041; see also Lewis, 321 F.3d 824 (“The proffer of various faulty reasons and only one or two otherwise adequate reasons, may undermine the prosecutor’s credibility to such an extent that a court should sustain a Batson challenge.”); United States v. Chinchilla, 874 F.2d 695, 698-99 (9th Cir.1989) (<HOLDING>); Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Holdings: 0: holding that the conflicting explanations given by defendants agents for the plaintiffs termination were also sufficient to raise a reasonable inference that defendants proffered reasons for the termination were pretextual the inconsistent testimony  regarding the motivating reasons for plaintiffs termination cast doubts on the asserted nondiscriminatory legitimate reasons and may alone  be sufficient to preclude summary judgment on plaintiffs claim 1: holding that the district court erred in failing to consider all of the employers proffered evidence of legitimate business reasons for the plaintiffs termination 2: holding that although reasons given by a prosecutor would normally be adequately neutral explanations taken at face value the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency 3: holding outofcourt statements relating to reasons for investigation are not admissible where the reasons for the investigation are not at issue 4: recognizing that a trial judge can implicitly find a prosecutors proffered reasons credible


Input: Plaintiffs have satisfied this requirement of Rule 23, notwithstanding Defendants’ arguments to the contrary. In particular, I find that BPI Global has constitutional and statutory standing and would be an adequate class representative in this case. a. Article III Standing (“Injury-in-Fact”) Defendants’ argument that BPI Global does not have constitutional standing ignores the fact that BPI Global is a direct investor in several of the funds for which it served as investment advisor. Defendants argue that because BPI Global was a mere advisor (through BPI Capital) to the mutual funds for which it purchased Sonus stock, it never suffered any injury itself. They rely upon a recent ease denying standing to an investment advisor. See In re Tyco Int’l, Ltd., 236 F.R.D. 62, 73 (D.N.H.2006) (<HOLDING>). However, Tyco is inapplicable in this case Holdings: 0: holding that article iii standing is not a prerequisite to intervention 1: recognizing that while in a diversity case a federal court may not address the plaintiffs claim unless the plaintiff has standing to sue under state law the plaintiff must also meet article iii standing requirements 2: holding that bjecause plaintiff does not allege that it was directly injured by the defendants alleged misconduct it lacks article iii standing to sue on its clients behalf 3: holding that the tcpa does not limit its protection to instances in which the plaintiff is charged within the context of article iii standing 4: holding that article iii standing is necessary for intervention


Input: after Wisconsin adopted § 904.085 in 1993, for example, contains an express exception allowing a party to admit evidence of mediation communications for the purpose of “prov[ing] a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.” See Uniform Mediation Act, The National Conference of Commis sioners on Uniform State Laws, § 6(b)(2), available at http://www.uniformlaws.org/ Act.aspx?title=Mediation Act (last visited Oct. 30, 2014)'. Although one might contend it is unjust that a person like Doe cannot recover if he was in fact fraudulently induced into signing a settlement agreement, our task is to apply the Wisconsin statute as it is written. Cf. Rojas v. Superior Court, 33 Cal.4th 407, 15 Cal.Rptr.3d 643, 93 P.3d 260, 265 (2004) (<HOLDING>); Princeton Ins. Co. v. Vergano, 883 A.2d 44, Holdings: 0: recognizing the validity of a rule 26c confidentiality order entered on good cause 1: recognizing a corporations legal rights to confidentiality and privilege 2: recognizing a federal mediation privilege 3: holding california mediation privilege was not subject to good cause exception because only exceptions to mediation confidentiality were those expressly provided in statute 4: recognizing an exception to a california announcement and entry statute


Input: Inc. v. Dow Chem. Co., 840 F.2d 691, 695 (9th Cir.1988) (necessity is a factual question). To hold otherwise would result in a disincentive for cleanup. Indeed, the cleanup may be motivated by many factors, such as fear of a government enforcement action, landowner liability, and even self-serving economic reasons. Nor must a plaintiff show agency action as a prerequisite to cost recovery. Agency inaction is not dispositive of the question whether contamination presents an environmental risk worthy of response. See id. (“[T]he district court erred in ruling that some governmental entity must authorize and initiate a response action for that action to be necessary and consistent with the national contingency plan.”); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986) (<HOLDING>). Whether the Water Quality Board would have Holdings: 0: holding that a federal court may order a state to pay cleanup costs pursuant to the comprehensive environmental response compensation and liability act of 1980 1: holding that declaratory relief only appropriate once some expenditure has been made toward necessary response costs 2: holding that investigatory costs are considered costs of response under cercla 3: holding that response costs can be necessary even though the agency that required cleanup never approved the response actions taken 4: holding that the proper remedy for future response costs is not a present lumpsum payment of anticipated expenses but instead a declaratory judgment award dividing future response costs among prps


Input: (same). Hames may nevertheless be liable for the damage caused by the search if, as Sosa asserts, Hames made material misstatements and omissions in the Affidavit supporting the Warrant. “A search warrant may be voided if the affidavit supporting the warrant contains deliberate falsity or reckless disregard for the truth ... and this rule includes material omissions.” Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir.2002) (citations omitted). “Nonetheless, the warrant is valid if, absent the misstatements or omissions, there remains sufficient content to support a finding of probable cause.” Id. (allegedly misstated or omitted facts did not alter determination that considering the “totality of the circumstances” there was a sufficient basis 11, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (<HOLDING>). The Affidavit does not state that Sosa Holdings: 0: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 1: holding that eyewitness accounts and an officers observations established probable cause 2: holding affiant entitled to rely upon observations of investigators as basis for probable cause for search warrant 3: holding that observations made a during prior illegal search should not have been included in the affidavit for the search warrant 4: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same


Input: 4 . In the argument section of his brief pertaining to the issue of the violation of the Act, Baltrip states the following: The Board met in private with the attorney who was prosecuting the evidence on which she sought dismissal before the Board of Education. No one,could seriously argue that a District Attorney General, prosecuting a criminal in a court of Tennessee, could meet with a jury to discuss the sentencing options prior to the jury rendering a verdict. Baltrip does not raise this matter as an issue in the issues section of his brief; nor does he cite any authority suggesting that the dual role of the Board’s attorney amounts to reversible error. In fact, there is authority suggesting to the contrary. See, e.g ., Cochran v. Board of Educ., 815 S.W.2d 55, 60 (Mo.Ct.App.1991)(<HOLDING>). In any event, since this matter has not been Holdings: 0: holding that the state courts factfinding procedure was adequate even though it did not hold an evidentiary hearing because  hearing as used in  2254d does not require a trialtype hearing at which live testimony is presented and the accused has the opportunity to crossexamine witnesses 1: holding that appearance at the scheduled hearing demonstrates actual notice of the hearing 2: holding mere fact that school boards attorney actively participated in dismissal hearing did not render hearing unfair 3: holding no restitution hearing is mandated when defendant did not object to order of restitution or request a hearing 4: holding trial court abused its discretion by refusing to conduct hearing and render decision on motion


Input: the other person in fear.” People v. Davenport, 230 Mich.App. 577, 583 N.W.2d 919, 921 (1998). At the time Davis entered the stolen vehicle the elements of the crime had been satisfied. Second, although flight in this instance may provide an inference of knowledge of the crime, it does not similarly provide an inference that Davis took a conscious action to aid the commission of the crime. Finally, the fact that Davis was found stripping the car several hours after the crime provides no indication or inference that Davis encouraged Washington in the commission of the crime in any way. This fact may provide evidence that Davis was an accessory after the fact; however, assisting after the fact is not sufficient to find Davis guilty of aiding and abetting. See Hopson, 1987 WL 37432, at *2 (<HOLDING>). Furthermore, taking the facts together does Holdings: 0: holding that postcrime conduct does not support finding beyond a reasonable doubt that defendant aided crime 1: holding factual finding authorizing death penalty must be found by a jury beyond a reasonable doubt 2: holding that conviction of a crime requires proof beyond a reasonable doubt of every fact necessary to constitute the crime 3: holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt 4: holding that beyond reasonable doubt standard not required in termination cases


Input: .... warrants [the equipment], for a period of six months, from the date of delivery .... ” See Carruthers Out-of-Pocket Expense Aff., Ex. D (“Electric Mobility Limited Warranty”)(emphasis added). The plain language of the Limited Warranty thus implies that the date of the delivery of each Electric Mobility scooter and wheelchair, and not the date of the potentiometer installation, triggers the beginning of the warranty period. Quite plainly, the Defendants’ moving papers themselves demonstrate the existence of a genuine issue of material fact. The interpretation of the Limited Warranty is a material fact since it is relevant as one factor in determining which damages were reasonably foreseeable to the Defendants. See e.g., Donovan v. Bachstadt, 91 N.J. 434, 444, 453 A.2d 160 (1982)(<HOLDING>). The Defendants’ analysis conflicts with the Holdings: 0: holding that economic loss rule barred claim for breach of fiduciary duty where plaintiffs claim arose solely as a result of the existence of a contract between the parties 1: 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 2: holding immaterial breach did not constitute breach of contract 3: holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense 4: holding that a defendant is not chargeable for loss that he did not have reason to foresee as a probable result of the breach when the contract was made


Input: owed to a governmental unit. 341 B.R. at 50. However, that bare restatement of the rule in § 1322(a)(4) does not help determine the meaning of “owed directly to or recoverable by a governmental unit.” In fact that was not even the question presented in Sanders. Rather the question in that case was whether § 1322(a)(2) required priority claims to be paid in the order specified in § 507, so that a domestic support obligation under § 507(a)(1) would be paid in full before administrative expenses under § 507(a)(2). Id. at 49-50. The bankruptcy court held that it did not. Id. at 50 aff'd, Alabama Dep’t of Human Res. v. Sanders (In re Sanders), 347 B.R. 776 (N.D.Ala.2006). See also In re Lanigan, 101 B.R. 530, 532 (Bankr.N.D.Ill.1986) (citing In re Parker, 21 B.R. 692, 694 (E.D.Tenn.1982)) (<HOLDING>). Thus, Sanders does not illuminate the Holdings: 0: holding that a chapter 13 debtor should be able to obtain a copy of his transcript in light of the broader discharge provision of chapter 13 1: holding that a plan under chapter 13 although confirmed was invalid because it failed to comply with the mandatory provisions of 11 usc  1322a2 requiring full payment of all claims entitled to priority 2: holding that priority claims can be paid concurrently with other creditors over the life of a chapter 13 plan 3: holding that child support arrearages may not be included in a chapter 13 plan 4: holding that a creditors failure to vote or to object to a chapter 11 plan constitutes acceptance of the plan


Input: Court is persuaded that the Sixth Circuit would follow this line of thinking when dealing with broad fraud allegations against contracts that contain jury trial waivers. First, the court has held unequivocally that a contract action asserting fraud in the inducement is not sufficient to implicate an arbitration clause where there is no claim of fraud specifically relating to that clause. Highlands Wellmont Health Network, Inc. v. John Deere Health Plan, Inc., 350 F.3d 568, 575-76 (6th Cir.2003). Second, in the case of parties with equal bargaining power, the court has not hesitated to find that an agreement to waive a jury trial can satisfy the requirement that constitutional rights can be waived if the waiver is knowingly, intelligently, and voluntarily made. K.M.C., 757 F.2d at 756 (<HOLDING>). Third, the court has relied on the rationale Holdings: 0: holding that the court must determine whether the employees consent to the settlement agreement was knowing and voluntary 1: holding that a defendant must have knowledge of the likely consequences of entering the guilty plea in order for a plea to be voluntary and knowing 2: holding that the magistrate was correct in applying the knowing and voluntary standard in this instance 3: holding that a guilty plea must be both knowing and voluntary and must be a voluntary and intelligent choice among the alternative courses of action available to a defendant 4: holding a waiver of a substantial constitutional right must be a voluntary knowing and intelligent act


Input: CURIAM. Based upon the scant record before us, which does not include a transcript of the proceeding below or an appropriate substitute, we cannot conclude that the lower court abused its discretion when it entered a final judgment of dismissal. For this same reason, we also cannot find that the order denying appellant’s motion to set aside final judgment, due to the appellant’s failure to appear for the duly scheduled trial of this cause and/or failure to contact the court or opposing counsel requesting a continuance was an abuse of discretion. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (<HOLDING>); Prymus v. Prymus, 753 So.2d 742 (Fla. 3d DCA Holdings: 0: holding that it is the appellants burden to present a record to overcome the presumption of correctness of the trial courts findings 1: holding that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error 2: holding that it is the duty of the appellant to overcome the presumption of the correctness of the trial courts judgment by demonstrating some reversible error 3: holding that where the appellant has failed to demonstrate error the court is not required to search the record for an error 4: holding that although the presumption of correctness applies to the ultimate classification decision  the presumption carries no force as to questions of law


Input: the judicial branch of government. The Legislature has established the Court of Claims by law and delegated to it the Legislature’s power to investigate certain claims against the State that may not be prosecuted in the courts because of the State’s sovereign immunity. See W.Va.Code § 14-2-1 (1967) (Repl.Vol.2000). The Court of Claims is also charged by law with the duty of recommending payment of such of those claims as it finds worthy, in specified amounts, to be paid by specific appropriations designated by the Legislature for payment of claims against the State, which it recognizes as a moral obligation of the State notwithstanding the immunity of the State from suit in its various courts. See Syl. Pt. 3, State ex rel. C & D Equip. Co. v. Gainer, 154 W.Va. 83, 174 S.E.2d 729 (1970) (<HOLDING>). Because the Court of Claims is a public body Holdings: 0: recognizing that the state enjoys sovereign immunity in regard to tort actions unless the legislature waived immunity pursuant to a specific statute 1: holding that only the legislature can authorize such payments when sovereign immunity exits if and when they are found and declared by it to be moral obligations of the state and specific appropriations made for payment thereof 2: holding that a state may waive its sovereign immunity 3: holding agencies of state government are part of the state for purposes of sovereign immunity 4: holding that an act of legislature may be required to waive sovereign immunity


Input: his testimony to what she had told him about her condition and what she had told him about how she was feeling. He did not offer a medical opinion on what Guarilia's hostility, if true, could have done lo a person with diabetes and hypertension. He also offered no link between her depression and Guarilia’s treatment. For all those reasons I do not believe Dr. Portnow's testimony carries any great weight. Michaud herself testified as to her condition, that is, that both her blood pressure and blood sugar level increased and that Guarilia’s treatment depressed her. Because the evidence is in the record through Michaud, there is no need for me to rely on Dr. Portnow's report of the same information. 11 . See Priest v. Interco, Inc. (In re Interco), 135 B.R. 359, 361-62 (Bankr.E.D.Mo.1991) (<HOLDING>); accord Perino v. Cohen (In re Cohen), 107 Holdings: 0: holding that to apply the personal injury endorsement montana law requires the complaint to allege facts establishing the elements of one of the enumerated torts listed under the insurance policys definition of personal injury 1: holding that personal injury exception should be construed narrowly so as not to include torts without physical injury 2: holding that racial discrimination is not a personal injury tort 3: holding that age discrimination is not a personal injury tort 4: holding that the definition of customer under sipa should be construed narrowly


Input: rather to officials of institutions, we conclude that the motion justice erred in holding that the defendant was required by § 11 — 37—16(b) to register. Conclusion For the reasons stated, we reverse and vacate the judgment of the Superior Court. We remand the record to the Superior Court for proceedings consistent with this opinion. 1 . General Laws 1956 § 11-37-16, although nominally repealed, is still effective with respect to a limited class of individuals. That is because G.L.1956 § 11-37.1-18 of the subsequently enacted registration statute contains a savings clause stating that "[njothing in this section shall be construed to abrogate any duty to register which exists or existed under the provisions of former § 11-37-16." See also State v. Flores, 714 A.2d 581, 583 (R.I.1998) (<HOLDING>). 2 . The facts, pertaining to the underlying Holdings: 0: holding that an individual who is required to register as a sex offender is not in custody 1: holding that the defendant could not be sentenced under the patterned sex offender statute if his offense occurred before the statute became effective 2: holding that although the defendant in that case was convicted after the effective date of the new statute  1137118 he nevertheless was required to register as a sex offender because  113716 was in effect at the time he was charged 3: holding that even though the offense was not of a sexual nature requiring the defendant to register as a sex offender following his conviction for false imprisonment of a minor was rationally related to the government interest in protecting the public and did not violate the defendants right to due process or equal protection under the law 4: holding that the imposition of a life sentence for failure to register as a sex offender constituted cruel and unusual punishment because the sentence was so harsh in comparison to the crime


Input: no confidential/fiduciary relationship existed because the parties were adversaries, each represented by their own attorney. On appeal, Virginia contends the law permits the inference of a confidential relationship to the extent Edwin holds property in excess of $690,000 that rightfully belongs to her. We disagree with Virginia’s argument. Texas law recognizes that a relationship on which a constructive trust can be based may be an informal fiduciary relationship that arises from a moral, social, domestic, or purely personal relationship of trust and confidence. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962). However, any such fiduciary relationship between Edwin and Virginia terminated when they divorced. See Solares v. Solares, 232 S.W.3d 873, 881 (Tex. App.-Dallas 2007, no pet.) (<HOLDING>); In re Marriage of Notash, 118 S.W.3d 868, 872 Holdings: 0: holding that a corporate entity must be represented by licensed counsel 1: holding in a contested divorce where each spouse is independently represented by counsel the fiduciary relationship terminates 2: holding that the automatic stay terminates completely as to a serially filing spouse but remains in force as to a newly filing spouse 3: recognizing a defendants constitutional right to be represented by counsel of his own choice 4: recognizing that the rights accorded by the homestead laws vest independently in each spouse regardless of whether one spouse or both actually owns the fee interest in the homestead


Input: arbitrary and capricious manner. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The state “has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty,” which includes a responsibility to “define the crimes for which death may be the sentence in a way that obviates ‘standard-less [sentencing] discretion.’ ” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 196 n. 47, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (alteration in original)). The “capital sentencing scheme must, in short, provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which 1759 (<HOLDING>). Thus, the Supreme Court has “insisted that Holdings: 0: holding that georgias reckless driving statute now ga code ann  406390 which is similar in substance to the virginia statute is not unconstitutionally vague 1: holding that georgias outrageously or wantonly vile horrible or inhuman circumstance was also invalid 2: holding that failure to consider potential mail delay was not a nonnegligent circumstance 3: holding that the elements of a claim under  3729a2 are 1 that the defendant made used or caused to be made or used a record or statement to get a claim against the united states paid or approved 2 the record or statement and the claim were false or fraudulent and 3 the defendant knew that the record or statement and the claim were false or fraudulent emphasis added 4: holding that appellants seven day hospitalization was a nonnegligent circumstance


Input: made for the benefit prior to the execution of the settlement agreement. Hence, Comiskey’s waiver of future medical and rehabilitation workmen’s compensation benefits precludes his recovery of the claim he asserts here.” Id. In this case, Plaintiff twice requested approval for alternative physician care from Drs. Fulk-erson and Swan and was twice denied, all prior to entering into a settlement agreement. Unlike the home spa in Comiskey, therefore, Plaintiffs evidence — viewed in the light most favorable to her as the non-moving party and drawing all reasonable inferences in her favor — shows the alternative care requested was not “permissible under the Workmen’s Compensation Act.” See Am. Fam. Mut. Ins. Co. v. Centura Health-St. Anthony Cent. Hosp., 46 P.3d 490, 493 (Colo.Ct.App.2002) (<HOLDING>). Accordingly, summary judgment on Plaintiffs Holdings: 0: holding that shipper negligence does not absolve a carrier of liability if damage would not have occurred but for the concurrent fault of the carrier 1: recognizing a breachofduty action by an employee against a workers compensation carrier even though the carrier issued its policy to the employer 2: holding that carrier was entitled to intervene as of right where the states workers compensation law permitted subrogation of a compensation carrier 3: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 4: holding if a workers compensation carrier denies liability for medical expenses of its insured the nofault carrier is bound promptly to pay benefits concerning such expenses under its policy


Input: requirement under the applicable rules of civil procedure. Fed.R.Bankr.P. 7004(b)(4) provides, in relevant part, that proper service on the United States is accomplished by “mailing a copy of the summons and complaint addressed to the civil process clerk at the office of the United States attorney for the district in which the action is brought and by mailing a copy of the summons and complaint to the Attorney General of the United States at Washington, District of Columbia[.]” As with Fed.R.Civ.P. 4(1), when proper service of process has not been made upon the United States under Rule 7004(b)(4), the United States has not been made a party to an action and a court is without jurisdiction to enter judgment against the United States. See Bland v. Britt, 271 F.2d 193, 194 (4th Cir.1959) (<HOLDING>); In re Morrell, 69 B.R. 147, 149-50 Holdings: 0: holding that notice requirements of 4206a are jurisdictional 1: holding that notice requirements under rule 252b3 are jurisdictional 2: holding that notice requirements under former rule 40b1 are jurisdictional 3: holding that regulatory requirements are not jurisdictional in nature 4: holding service requirements under fedrcivp 4 to be jurisdictional


Input: Summary Judgment (Doc. 41) is GRANTED IN PART AND DENIED IN PART. Mr. Aubin is entitled to summary judgment on his state law false arrest claim. IT IS FURTHER ORDERED that the Motion to Strike (Doc. 81) is DENIED. IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State a Claim (Doc. 119) is GRANTED IN PART AND DENIED IN PART. Plaintiffs’ state law failure to train claim is DISMISSED. 1 . Plaintiffs state law failure to train claim is dismissed because it is expressly barred by La. R.S. § 9:2798. 1(B), which provides public officials with immunity for discretionary functions like training. See Smith v. Lafayette Parish Sheriffs Dpt., 874 So.2d 863, 867 (La. Ct. App. 2004); Hoffpauir v. Columbia Cas. Co., No. 12-CV-403, 2013 WL 5934699, at *12 (M. D. La. Nov. 5, 2013) (<HOLDING>). 2 . Sheriff Ard does not dispute that he is a Holdings: 0: holding that public officials are immune from suit for discretionary functions like training under louisiana law 1: holding that quasijudicial immunity extends only to officials who perform discretionary functions 2: holding state immune from suit brought in state court 3: holding that qualified immunity extends to government officials performing discretionary functions 4: holding state immune from suit involving a federal question


Input: 185, 196 (1st Cir.1999) (requiring plaintiff in suit under PSLRA to plead facts which give rise to a “strong inference” of scien-ter). Lehman’s argument is well taken. The outcome of the SEC action, in combination with the Greebel decision, makes the plaintiffs’ prospects for success rather bleak. See also In re Centennial Technologies Litig., No. 97-10304-REK (D.Mass. Oct.23, 1999) Practice and Procedure Order No. 8 at 2-3 (allowing Lehman’s motion to dismiss in a related class action because plaintiffs failed to meet pleading requirements on scienter required by the PSLRA). Indeed, the court in Jones Motor discouraged courts from allowing “a party sensing an adverse court decision a second chance in another forum.” Jones Motor, 671 F.2d at 43; see also Morales Rivera, 418 F.2d at 726 (<HOLDING>). Moreover, “[ajrbitration clauses were not Holdings: 0: holding that plaintiffs suddenly discovered affection for arbitration came too late when the claim was made after the action was dismissed with prejudice for failure to prosecute 1: holding that when an action is dismissed without prejudice because of a failure to prosecute the interruption in the running of the statute is considered as never having occurred 2: holding that a defendant homeowners association was the prevailing party for purposes of attorneys fees when a plaintiff homeowners action was dismissed for failure to prosecute 3: holding defendant still considered successful party under ars  1234101a where there was no adjudication on the merits as action was dismissed without prejudice for failure to prosecute 4: holding that the defendant became the prevailing party and thus properly claimed attorneys fees when the plaintiffs claim was involuntarily dismissed for failure to prosecute


Input: Merkwan v. Leckey, 376 N.W.2d 52, 53 (S.D.1985); Burke v. Foss, 334 N.W.2d 861, 864 (S.D.1983); Chipperfield v. Woessner, 84 S.D. 13, 14, 166 N.W.2d 727, 728 (1969)). The statute of limitations in workers compensation cases is jurisdictional in nature, as making a timely claim is an essential element of the right to compensation. Klein v. Menke, 83 S.D. 511, 517, 162 N.W.2d 219, 222 (1968) (citation omitted). [¶ 42.] It is a “well established principle that statutes of limitation applicable to suits [or claims] against the government are conditions attached to the sovereign’s consent to be sued and must be strictly construed.” Kreiger v. United States, 539 F.2d 317, 320 (3rd Cir.1976) (citing Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306, 311 (1957)) (<HOLDING>). The United States Supreme Court has stated Holdings: 0: holding that the taxpayer met the claim requirement where the taxpayer first filed a timely letter with the irs that requested a refund and subsequently filed a formal refund claim 1: holding that the statute of limitations is tolled during a malicious prosecution suit when a timely complaint is filed 2: recognizing that  2244dlds statute of limitations can be tolled 3: holding under section 7422a that the district court lacked jurisdiction over a taxpayers refund claim because the taxpayer failed to file a refund claim before the statute of limitations had run 4: holding statute of limitations should not be equitably tolled for taxpayer who filed a refund claim after the applicable statute of limitations


Input: the “economic relationship and community of interest” between contractor and architect on a construction project — that moved the court to find an independent duty of care. Forte Bros., 525 A.2d at 1303. In the present case, for example, Fleet relied on Federal to administer its claims and determine the scope of coverage. Federal’s negligent administration could result (or, as Plaintiffs allege, did result) in the denial of an estimable claim, thereby depriving Fleet of coverage otherwise owed under the Policy. This would seem to offer some support for the conclusion that Federal should handle Plaintiffs’ claims with reasonable care. But Rhode Island courts have been reluctant to extend Forte Bros, beyond the ehainlink fences of a construction site. See, e.g., Kennett, 798 A.2d at 419 (<HOLDING>); Boston Inv. Prop. No. 1 State v. E.W. Burman, Holdings: 0: holding that real estate agents owe their  clients a duty of loyalty 1: holding that a real estate agent does not owe a buyer a duty independent of the agency relationship with the seller 2: holding that officers owe a duty to the public to detect and investigate crime but owe no duty to individuals for negligent investigation 3: holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision 4: holding that seller carried insurance for benefit of buyer and held proceeds in trust for buyer when seller agreed to maintain insurance until possession date but bam burned before buyer took possession


Input: to Class Cert, at 12 & 12 n. 6.) 10 . Specifically, Defendants claim that these large-volume purchasers are able to use their superior bargaining positions to obtain volume discounts, off-season price discounts, and special inventory fill promotional discounts; they are able to obtain more favorable pricing through long-term contracts and/or special bid quotes; and are able to utilize warehousing arrangements and other storage, distribution, inventory, transportation or handling arrangements to further reduce price. (Defs.’ Mot. in Opp. to Class Cert, at 13.) 11 . There is a wealth of authority supporting this position. See In re Brand Name Prescription Drugs Antitrust Litig., MDL No. 997, 1994 WL 663590 (N.D.Ill.1994); In re Catfish Antitrust Litig., 826 F.Supp. 1019 (N.D.Miss.1993) (<HOLDING>); In re Domestic Air Transp. Antitrust Litig., Holdings: 0: holding typicality requirement satisfied because named plaintiffs claims stemmed from same legal theory as class claims notwithstanding fact that class purchased tickets at different prices according to different terms 1: holding that the claims of the class representative and class members must be based on the same legal or remedial theory 2: recognizing that in determining numerosity courts must consider the geographical dispersion of the class the ease with which class members may be identified the nature of the action and the size of each plaintiffs claim 3: holding that class of catfish purchasers satisfied typicality requirement despite purchasers varying sizes geographical locations and buying methods because the substance of antitrust pricefixing claim was the same for all class members 4: recognizing a narrow class of cases in which the termination of the class representatives claim for relief does not moot the claims of the class members


Input: that the Court should summarily dismiss the Applications. ' In its Amended Application WTC states that, because it was not a retained professional in the bankruptcy case, its “claim [based on the Indenture] would not normally involve the specificity required of fee applications under 11 U.S.C. section 330.” WTC acknowledges, though, that it must provide “meticulous contemporaneous time records ... [which] should reveal sufficient data to enable the Court to make an informed judgment about the specific tasks and hours allotted.” In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 582 (Bankr. D.Utah 1985). Accordingly, WTC and its attorneys reviewed the time records submitted with the original Application and, in its Amended Application, categorized the time bas 1409, 1416 (5th Cir.1992) (<HOLDING>). 1. Section 503(b)(1) The bulk of WTC’s Holdings: 0: holding that the plaintiffs have the burden of proof and persuasion as to the existence of standing 1: recognizing that the burden of persuasion for a showing of prejudice was on the defendant 2: holding that appellant bears burden of establishing jurisdiction by a preponderance of the evidence 3: holding that the burden of persuasion by a preponderance of the evidence remains with the movant 4: holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence


Input: 1866. 18 . See, e.g., id., 500 U.S. at 365, 111 S.Ct. at 1869 ("In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.”) (internal quotation marks omitted). 19 . Washington, 34 S.W.3d at 380 ("A trial court’s ruling on a Batson challenge will not be disturbed unless clearly erroneous.”). 20 . See, e.g., United States v. Jackson, 347 F.3d 598, 605-06 (6th Cir.2003) Holdings: 0: holding that when a district court fails to provide reasons for imposing special conditions and the defendant fails to object we review for plain error 1: holding that defendant bears burden to rebut prosecutions stated reasons for exercising peremptory challenges and that if a defendant fails to rebut the facially raceneutral reasons offered by the prosecution an appellate court may re view the trial courts decision to deny the batson objection only for plain error 2: holding that the trial court is required to provide reasons for its decision prior to appeal 3: holding that the defendant was precluded from asserting error where the defendant had used all of his peremptory challenges and did not ask for more 4: recognizing that the defendant bears the burden of establishing that plain error was prejudicial


Input: not only because of the form, but also, because it is an appearance by a corporation, and not the work of an attorney. This court has held that because Rule 7, of the Texas Rules of Civil Procedure, applies only to individuals, a corporate entity may only appear in court though an attorney. Dell Development Corp. v. Best Industrial Uniform Supply Co., Inc., 743 S.W.2d 302, 303 (Tex.App.—Houston [14th Dist.] 1987, writ denied). As we stated in Dell, “where a corporation chooses to represent itself through a non-attorney officer, it does so at its own risk; to do so may be viewed as negligence.” Id. However, the failure of appellant to file an answer through an attorney does not prevent the response from precluding a default judgment. See also R.T.A International, 915 S.W.2d at 151 (<HOLDING>). Appellant’s first point of error is Holdings: 0: holding that the plaintiff did not establish a waiver where the defendants answer had put the plaintiff on notice of an arbitration defense 1: holding appellant could not obtain a new trial so that jury could answer liability question because the charge instructed the jury not to answer the question based on its answer to a prior question and because appellant did not object to this instruction 2: holding that where answer omits certain formalities required by the rules of procedure it does not render the answer ineffective so as to entitle the plaintiff to a default judgment 3: holding failure to object to conditioning instructions waived error arising from the jurys failure to answer question when answer could not be implied and that lack of objection waived right to new trial to have jury answer questions 4: holding that the defense of insufficient process was waived because it was not raised by the defendant in its answer but later in its response to the plaintiffs request for default judgment


Input: Blankenship admits that these prior convictions fall within the class of felonies to which the statute refers, but he contends that they were too remote in time to serve as a proper predicate for enhancement of the sentence. If a statute that imposes a criminal penalty is ambiguous, it must be construed in favor of the defendant. See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). However, in this case, section 924(e)(1) is not ambiguous. There is no indication, either in the statute or in the legislative history, that Congress intended to include a temporal restriction in that statute. See United States v. Green, 904 F.2d 654, 655-56 (11th Cir.1990); see also Young v. Bureau of Alcohol, Tobacco & Firearms, 690 F.Supp. 990, 995 (S.D.Ala.1988) (<HOLDING>). We refuse to construct such a restriction out Holdings: 0: holding the use of a 1951 felony conviction as a predicate for a violation of 18 usc  922g1 did not violate the ex post facto clause because the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted 1: holding that to enhance a sentence because of the defendants use of a firearm the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used 2: holding that because a jury need only agree that a defendant possessed a firearm in order to find a defendant guilty of violating  922g1 a unanimity instruction was not required where defendant was charged with one count of violating  922g1 and multiple firearms were listed in that count 3: holding that period of proscription for firearm ownership under section 922g1 was indefinite 4: holding that a prior conviction ie one for which the civil right to possess a firearm has not been restored is an element of a 922g1 violation


Input: is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”); People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784, 788 (1974) (“[Plea negotiations] are essential to relieve court calendar congestion and they relieve the prosecution and defense from the risks and uncertainties of trial.”) 4. Modern Acceptance (1970s-Today) Today, approximately ninety-four percent of all state convictions and ninety-seven percent of all federal convictions are resolved by plea bargaining. See Missouri v. Frye, — U.S, -, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012) (<HOLDING>). Plea bargaining has become a reflexive Holdings: 0: holding failure of prosecution to disclose evidence that may be favorable to the accused is a violation of the due process clause of the fourteenth amendment 1: holding that defense counsel had duty to communicate formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the accused 2: holding that defense counsel has the duty to communicate formal offers from the prosecution 3: holding that to demonstrate prejudice resulting from counsels deficient performance that caused a defendant to forgo a favorable plea offer a defendant must show that he would have accepted the offer to plead and that there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented 4: holding that the prosecution must disclose evidence favorable to the accused that is material either to guilt or to punishment


Input: copy of Morris D. Murphy's driving record as maintained by the Secretary of State, as of this date. Although the last paragraph in the certificate referred to an attached copy of Murphy’s driving record, no other document was attached to the certificate. However, a third exhibit, a copy of the letter entitled “Notice of Suspension and Opportunity for Hearing” was also admitted in evidence over Murphy’s objection. 3 . The notice of suspension in the certification stated: "[N]otice of suspension was sent by regular mail to Richard E. Tayman, Jr. ... by the Violations Bureau of the District Court, pursuant to 29-A MRSA Section 2608.” State v. Tayman, 2008 ME 177, ¶ 3, 960 A.2d 1151, 1153 (quotation marks omitted). 4 . See also State v. Knight, 2009 ME 32, ¶¶ 4, 10, 967 A.2d 723, 724, 725 (<HOLDING>). 5 .Cf. State v. Francis, 610 A.2d 743, 745 Holdings: 0: holding that admission of evidence in violation of confrontation clause was harmless because it did not relate to the contested issue before jury 1: holding that admission of business records does not violate the confrontation clause under roberts 2: holding that hearsay argument for admission of evidence did not preserve confrontation clause challenge on appeal argument could have referred either to rules of evidence or confrontation clause but failed to identify confrontation clause as basis and thus did not put trial court on notice of issue 3: holding that the admission of prior testimony that had been subjected to crossexamination violated the confrontation clause because the state did not prove that the witness was unavailable 4: holding that the admission in evidence of a certifying document from the secretary of state that its history records indicated that notice of suspension was sent by regular mail to the defendant did not violate the confrontation clause


Input: which is to be determined from the totality of all of the circumstances. Id. at 248-49, 93 S.Ct. 2041. The voluntariness of a consent to search should be evaluated in much the same fashion as the voluntariness of a confession. Washington, 653 So.2d at 364 (“Although a warrantless search is per se unreasonable under the Fourth Amendment, the search will be considered lawful if conducted pursuant to consent which was given voluntarily and freely.” (citing Norman v. State, 379 So.2d 643 (Fla.1980))); see also Schneckloth, 412 U.S. at 223-24, 93 S.Ct. 2041 (turning to the bod urt has held that consent will be considered involuntary if given in response to a police assertion of an intent to search the premises. See Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921) (<HOLDING>). Similarly, consent has been deemed to be Holdings: 0: holding that consent to search premises includes consent to search washing machine on those premises 1: holding that consent was coerced when officers told defendants wife they came to search the premises and she allowed them to enter 2: holding that a landlord cannot validly consent to a search of a tenants apartment despite ownership and legal authority to enter the premises 3: holding consent involuntary when police told defendants grandmother they had a search warrant and she allowed them to enter and search 4: holding that a defendants consent to accompany dea agents from the detroit airport to the dea office was voluntary when she was asked to accompany the officers there were no threats or show of force and the officers told her twice that she could decline to consent


Input: as "a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable [investor].” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); see Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 647 (3d Cir.1980). The alleged concealment of both the conflict of interest, Press, 218 F.3d at 130, and the excessive commissions, Ettinger, 835 F.2d at 1033, satisfy the materiality requirement. 55 . While the QPA-2 and the fixed portions of the other annuities were not "securities” under federal securities laws, because they were part of the putative pay-to-play scheme, they cannot be used to support a civil RICO claim. See Bald Eagle, 189 F.3d at 329-30 (<HOLDING>). As such, the Court rejects Plaintiff's Holdings: 0: holding breach of best execution duty is a material misrepresentation in connection with the purchase or sale of the securities 1: holding that a plaintiff alleging securities fraud must show that a defendant 1 made a material misrepresentation or a material omission as to which he or she had a duty to speak 2 with scienter 3 in connection with the purchase or sale of securities 2: holding that evidence was sufficient to support convictions for willfully engaging in fraudulent conduct in connection with sale of securities because kjnowledge that the act violates the securities laws  is not relevant 3: holding that a claim arises from the purchase or sale of a security only if there is an allegation of fraud in the purchase sale or issuance of the  instrument 4: holding that 1 even if some conduct is not actionable as securities fraud that conduct cannot support a civil rico claim if it was also undertaken in connection with the purchase of a security and 2 conduct in maintaining ponzi scheme was conduct undertaken in connection with the purchase or sale of securities


Input: of the issuer ....” 15 U.S.C. § 7244(a)(2)(B) (emphasis added). By contrast, section 304 does not mention the availability of any action to enforce its mandates, nor does it explicitly describe a forum in which suit may be brought or a plaintiff for whom such a forum is available. Accordingly, any private right of action within section 304 must be implied from the statute’s language, structure, context and legislative history. Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 836 (9th Cir.2004). B We next turn to whether section 304 creates an implied private right of action. So far as we can determine, no circuit has yet answered this question, except in dicta. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Raines, 534 F.3d 779, 792-93 (D.C.Cir.2008) (<HOLDING>). However, a number of district courts have Holdings: 0: holding that a private right of action exists 1: holding itca does not create new causes of action but creates acceptance of liability under circumstances that would bring private liability into existence 2: holding that section 4625bc does not create a private right of action for money damages 3: holding that defendants directors decision not to bring suit under section 304 for disgorgement by ceo and cfo was within the business judgment rule since  304 does not create a private right of action 4: recognizing private right of action


Input: undisputed facts to a statutory standard. See Kelly v. Nicholson, 463 F.3d 1349, 1352-53 (Fed.Cir.2006) (“ “We have recognized, however, that where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law.’ ” (quoting Halpern v. Principi, 384 F.3d 1297, 1306 (Fed.Cir.2004))). Moreover, all three issues of law are “controlling,” because, if the court’s rulings on any of the grounds relied upon were to be reversed on appeal, a trial on the merits would be obviated, as the FPAA would have been untimely. Second, a “substantial ground for difference of opinion” must be established regarding the controlling questions of law. 28 U.S.C. § 129 o. 8:06-CV-1340-T-24MAP, 2007 WL 2209129 (M.D.Fla. July 30, 2007) (<HOLDING>). Therefore, a substantial ground for Holdings: 0: holding sixyear extended limitations period of irc  6501e1a applicable to partnerships overstatement of basis in son of boss transaction 1: holding that the sixyear statute of limitations on a written contract is applicable to a cause of action based on a um policy 2: holding that this courts sixyear statute of limitations is jurisdictional 3: holding that sixyear statute of limitations in  65314 is applicable to violations of  7202 4: holding the sixyear limitations period begins to run upon date that payment is made


Input: the Supreme Court broadly held that in admiralty cases, the general rule is that “a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong.” Id. at 309, 48 S.Ct. 134. Robins Dry Dock has generally been interpreted as establishing a bright line rule barring recovery for economic losses caused by an unintentional maritime tort absent physical damage to property in which the victim has a proprietary interest. See, e.g., Amoco Transport Co. v. S/S MASON LYKES, 768 F.2d 659, 666 (5th Cir.1985). Robins Dry Dock has been applied in the Second Circuit. See Fed. Commerce & Navigation Co., Ltd. v. The M/V MARATHONIAN, 528 F.2d 907 (2d Cir.1975) (per curiam) (<HOLDING>); Adders Int’l (Ships) Ltd. v. United States, Holdings: 0: holding that robins dry dock barred a time charterers claim for loss of use that resulted from the chartered ship being laid up after a collision with the defendants vessel 1: holding that a claim that unlawful termination resulted in loss of benefits is not preempted by erisa 2: holding that the rule of robins dry dock barred recovery of a cruise ship concessionaires lost profits that resulted from the cancellation of cruises during repairs after an accidental grounding 3: holding that the claim of not being able to interview jurors was procedurally barred because the claim should and could have been raised on direct appeal 4: holding disability discrimination claim barred


Input: simply because a state judge believes a “better” decision could be made.’ ” — So.2d at-(quoting Troxel, 530 U.S. at 72-73, 120 S.Ct. 2054). We affirm that conclusion today and extend it to the statute before us. If the grandparents in this case had been required to show that the child would be harmed by being deprived of unsupervised or overnight visitation with the grandparents, we might have a different case. The state has a compelling interest in preventing harm to children. See In re Smith, 137 Wash.2d at 13-21, 969 P.2d at 27-31 (reviewing various Supreme Court decisions upholding state initiatives designed to prevent harm to children in the context of a Fourteenth Amendment strict-scrutiny analytical framework); Williams v. Williams, 256 Va. 19, 22, 501 S.E.2d 417, 418 (1998) (<HOLDING>). See also R.J.D. v. Vaughan Clinic, P.C., 572 Holdings: 0: holding that uncertainty regarding amount of visitation ordered is fatal to the validity of a trial courts visitation  award 1: holding that for a compelling state interest to exist justifying an order of visitation over the objection of a childs parents a court must find an actual harm to the childs health or welfare without such visitation construing virginias statute as requiring such a finding 2: holding grandparent visitation statute serves compelling state interest in maintaining grandparentgrandchild relationship where grandparents had raised child for period of time but agreeing with trial court that something more than childs best interest must be established to serve compelling state interest 3: holding visitation statute unconstitutional because it disregards presumption favoring parental decisionmaking forcing parents to prove visitation not in childs best interest 4: holding conclusory statements in visitation dispute were not adequate to support awarding visitation rights


Input: (5th Cir.1968)). With that said, however, revisions in the law of the case occur “very infrequently” when one court is asked to review the decision of a coordinate court. See Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900 (Fed.Cir.1984). Although the case at hand is not a “transfer” case in the typical sense of the term, it is nonetheless a case which was decided by a previous coordinate court on a rule of law — subject matter jurisdiction — which the Ohio District Court should have respected and used as a basis to dismiss the case. In other words, the district court should have dismissed Plaintiffs case under the law of the case doctrine based upon the rulings from the Kansas District Court. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 166—69 (3d Cir.1982) (<HOLDING>); see also Holloway v. State of Ohio, No. Holdings: 0: holding that under the law of the case doctrine an issue of fact or law decided on appeal may not be reexamined by the appellate court on a subsequent appeal 1: holding that law of the case prevented the new jersey district court from redetermining jurisdictional issue previously decided by the district of columbia district court and noting that the principles of comity among courts of the same level of the federal system provide further reason why  an issue already decided by a court of equal authority should not be reexamined 2: holding that where the district court decided two issues in the certified order but identified only the damages issue as the controlling question of law the court of appeals could nonetheless address the other issue 3: holding that district court lacked power to decide personal jurisdiction issue already decided by district of columbia superior court 4: holding that law of the case acts as a bar only when the issue in question was actually considered and decided by the first court


Input: 416.1467. The Commissioner’s decision does not become “final” until “after the Appeals Council has denied review or decided the case after review.” Mathews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y. 1995), aff'd, 101 F.3d 681 (2d Cir.1996) (table); see 20 C.F.R. § 404.981, § 416.1481. When Iwachiw filed his complaint on October 24, 2001, the Commissioner had made no final decision in his case. Indeed, the previous month, by order dated September 18, 2001, the Appeals Council vacated the ALJ’s decision denying Iwachiw’s benefits claim and remanded the case for further proceedings. See generally Weeks v. Social Sec. Admin. Com’r, 230 F.3d 6, 7 (1st Cir.2000) (noting that Appeals Council’s order vacating ALJ’s decision and remanding for further proceedings is not an appea -35 (3d Cir.1998) (<HOLDING>); Doughty v. Bowen, 839 F.2d 644, 647 (10th Holdings: 0: holding that the claims court has no jurisdiction under the tucker act over claims to social security benefits 1: holding that district court lacked jurisdiction over claim for interim social security benefits during pendency of administrative proceedings 2: holding that eaja applies to court proceedings for review of social security cases 3: holding that use of social security benefits satisfied child support obligation 4: holding that offset for social security retirement benefits does not include federal disability benefits and stating that there was no legislative intent to embody the entire subchapter of the social security act dealing with both disability benefits and old age benefits


Input: the Disciplinary Enforcement Rules for its contrary decision because, in its view, enforcement of the Disciplinary Enforcement Rules falls within the exclusive authority of the Pennsylvania Supreme Court and the Disciplinary Board. Id. at 321, citing Pa.R.D,E. 201(a) (exclusive disciplinary jurisdiction of Supreme Court and Disciplinary Board under these rules extends to attorney admitted to practice law in Commonwealth and formerly admitted attorney). The court acknowledged this Court previously held a suspended attorney in contempt for violation of Disciplinary Enforcement Rule 217(j) for representing claimants in unemployment proceedings. Powell, 128 A.3d at 321, citing In the Matter of David Louis Bargeron, No. 1073 DD3, 2011 Pa. LEXIS 1695, at *1 (Pa. July 27, 2011) (per curiam) (<HOLDING>). The Commonwealth Court nevertheless concluded Holdings: 0: holding that an order imposing sanctions against an attorney for one of the parties in a pending case is final and therefore immediately appealable by the attorney 1: holding suspended attorney in contempt of rule 217j and ordering attorney to immediately cease and desist from all activities in connection with representation of claimants and employers in unemployment compensation proceedings and comply with all provisions of rule 217 2: holding that a suspended attorney should not be permitted to have contact with clients 3: holding that in a case where a suspended attorney commingled funds between his attorney trust account and attorney business account and the funds could not be traced claimants state of new jersey and clients security fund reached an amicable agreement to divide the funds equally 4: holding that the trial judge must comply with rule 3172c8 and advise all defendants in all cases that the plea may subject him or her to deportation


Input: motion for summary judgment and or dered that Landowners were due compensation of $826,215. Landowners appealed, challenging the exclusion of Hiles’s affidavit. On appeal, the County raised two new complaints about defects in the affidavit, including that the affidavit lacked a jurat and was neither sworn to nor given under oath. The court of appeals affirmed the trial court’s ruling based on the County’s newly-raised-jurat argument, holding that the lack of a jurat was a defect of substance, not of form, and therefore could be raised for the first time on appeal. 365 S.W.3d at 358. Landowners petitioned this Court for review. The Government Code defines “affidavit” as “a statement in writing of a fact or facts signed by the party making it, sworn to before an .W. 29, 30 (1900) (<HOLDING>). A jurat is a certification by an authorized Holdings: 0: holding that an unsigned statement lacked an essential part of the mandatory affidavit requirements 1: holding an affidavit statement referring to the notice required for a binding contract was inadmissible as a legal conclusion 2: holding that a trial court had implicitly found that an affiant lacked credibility even where the affidavit testimony was uncontroverted 3: holding that the eaja application satisfied the eaja content requirements because it contained among other things an itemized statement of the fees sought  supported by an affidavit from the appellants counsel 4: holding that an affidavit did not provide probable cause sufficient to validate a warrant where the affidavit stated an incorrect date uncontradicted by any other specific fact in the affidavit


Input: States v. Mincoff, 574 F.3d 1186, 1194 (9th Cir.2009) (citation and internal quotation omitted). The sale of the drugs on credit distinguishes this case from United States v. Lennick, 18 F.3d 814 (9th Cir.1994) as the arrangement provides evidence of an agreement and intent to redistribute the drugs beyond the actual sale. See Mincoff, 574 F.3d at 1193 (noting that “evidence of fronting may support a conviction for conspiracy to distribute a controlled substance”). There was also testimony that Smith gave oxycodone pills to the government’s confidential source in exchange for bringing Smith customers. Evidence of this “drug commission” was also sufficient to support a conviction for conspiracy to distribute oxycodone. See United States v. Webster, 623 F.3d 901, 907 (9th Cir.2010) (<HOLDING>). We hold that there was sufficient evidence Holdings: 0: holding that evidence tending to show knowing participation in the conspiracy is sufficient to sustain conspiracy conviction 1: holding that the evidence did not plausibly support a buyerseller instruction because overwhelming evidence showed that defendants agreed to import drugs with the intent to distribute them and engaged in repeated transactions of large quantities of narcotic drugs for resale 2: holding in part that awareness of resale activities together with evidence of kickback relationship is sufficient to support conviction for conspiracy to distribute 3: holding no unfair prejudice from admission of conviction for possession of 50 to 200 pounds of marijuana with intent to distribute as evidence of intent to distribute cocaine 4: holding that circumstantial evidence alone is sufficient to support a cocaine conspiracy conviction


Input: either that there was an attorney-client relationship between Coffey and TADA members or that the communications sent to TADA members were kept confidential. To invoke the attorney-client privilege, Defendants must show that the asserted holders of the privilege, here the members of the TADA, were or sought to become clients at the time the allegedly privileged communication was made. See Mobil, 149 F.R.D. at 536. The Fifth Circuit has not addressed whether a trade association’s members are necessarily clients of the association’s lawyer and, thus, are permitted to invoke the protections of the attorney-client privilege for communications with the association’s lawyer. Defendants cite cases from other circuits that support such a rule. See Philadelphia Hous. Auth., 294 F.Supp. at 1150 (<HOLDING>) (citing United States v. American Radiator & Holdings: 0: holding thatcities are not persons within the meaning of  3a9 of pre1975 version of securities exchange act of 1934 which defined person to mean an individual corporation a partnership an association a jointstock company a business trust or an unincorporated organization 1: holding an attorney is an agent of the client and therefore cannot conspire with the client 2: holding that undisclosed representation of an association that the arbitrator disclosed he was a member of and the association will be affected by the outcome of the case is evident partiality 3: holding that even where a client was more sophisticated in business matters than the lawyer himself the lawyer should have assumed the client was relying on the lawyer for the legal aspects of the loan from the client to the lawyer to the same extent that the client would rely on the lawyer for advice were the client making the loan to a third person 4: holding that each individual member of an unincorporated association is a client of the associations lawyer


Input: at the time of death of [a] loved one.” In the case of Mrs. Gendek, the condition has caused the onset of major depression “with characteristics of recurrent crying spells, feelings of self-reproach, [and] impairment of concentration.” As for Mr. Gendek, Dr. Rubin was of the opinion that Mr. Gendek has repressed his emotions, resulting in a “blunting of affect and response to his own inner life.” The Gendeks brought an action for compensatory damages against several defendants, including the doctors, nurses, and hospital, allegedly responsible for causing their child’s death. After defendants had answered plaintiffs’ complaint, defendants Mercer Medical Center moved for partial summary judgment seeking dismissal of the claim for negligent infliction of e N.J. 523, 538 A.2d 346 (1988) (<HOLDING>). Our cases also recognize indirect claims for Holdings: 0: recognizing torts of intentional and negligent infliction of emotional distress 1: holding that the law does not recognize a cause of action for negligent infliction of emotional distress every time an employer negligently fails to comply with performance evaluation procedures resulting in an employees termination and emotional distress 2: holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute 3: recognizing claim for negligent infliction of emotional distress when hospital negligently failed to release to parents their sons braindead corpse 4: recognizing the tort of intentional infliction of emotional distress


Input: 42 of the United States Code is a federal statute which “provides a civil remedy against any ‘person’ who, under color of state law, subjects a ‘citizen of the United States’ to the ‘deprivation of any rights, privileges, or immunities’ secured by the federal Constitution or federal laws.” Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind.1991) (quoting 42 U.S.C. § 1983). “By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). A § 1983 claim need only allege that “some person has deprived [the claimant] of a federal right” and that person “acted under color of state or territorial-law.” Id. See In re Tina T., 579 N.E.2d 48, 62 (Ind.1991) (<HOLDING>). Among other things, Thornton’s complaint Holdings: 0: holding that to rebut presumption plaintiff need only allege specific facts not plead evidence 1: holding a plaintiff must allege the violation of a right secured by the constitution and laws of the united states to state a claim under  1983 2: holding private actors are not acting under the color of state law for the purposes of section 1983 liability 3: holding that to prevail on a  1983 claim a plaintiff must allege that the defendant acted under color of state law in other words that there was state action 4: recognizing that to sufficiently plead a  1983 claim a plaintiff need allege only that some person acting under color of state law has deprived the claimant of a federal right citing green v maraio 722 f2d 1013 1016 2d cir1983


Input: respect to this group of documents. Gov’t Mot. for Summ. J. at 6. It is true that Stein did not specifically contest this point in his appeal letter. He disputed the SEC’s withholding decision under Exemption 7(A) — which, according to the SEC, was also the exemption under which the SEC was withholding some documents related to the second document category. See Compl., Ex. D at 1 n.l. But his appeal letter also specifically demanded — twice—“all of the requested documents,” not just documents related to the. first category. See Compl., Ex. E at 1-2. The government is obligated to construe FOIA requests — and appeals — liberally, where a request is “reasonably susceptible to the broader reading.” See LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, 347-48 (D.C. Cir. 2003) (<HOLDING>). While Stein’s appeal letter could have been Holdings: 0: holding that a foia request should be read to seek all documents covered by a catchall 1: holding that foia exemptions are not mandatory bars to disclosure because the purpose of foia is to provide broad disclosure of government documents 2: holding that a contract should be read to give reasonable meaning to all provisions of that contract 3: holding that the agency did not have an obligation to search for and produce the documents the plaintiff claimed entitlement to because the plaintiffs foia request gave no indication that she sought those particular documents 4: holding that related provisions should be read together


Input: clear and convincing evidence of the settlor's intent. Id. § 75-1-605(8). 136 This section of the UUTC directly conflicts with the holding of Banks. Under Banks, the settlor's intent at the time of creation of the trust was paramount because the settlor has created the trust he is no longer the owner of the trust property and has only such ability to deal with it as is expressly reserved to him in the trust instrument." Banks, 2002 UT 65, ¶ 9, 52 P.3d 1190 (internal quotation marks omitted). Thus, in Banks we noted that "a settlor has the power to modify or revoke a trust only if and to the extent that such power is explicitly reserved by the terms of the trust." Id. Under this framework, a settlor may revoke or amend the trust only by strictly complying with its terms. See id. 112 (<HOLDING>). In contrast, the UUTC does not require strict Holdings: 0: holding that beneficiaries could not sue attorneys of the trust for legal malpractice because beneficiaries are not direct recipients of the attorneys services 1: holding that nonsignatory settlor and trust beneficiaries could be compelled to arbitrate under account agreement between trustee and merrill lynch which contained an arbitration clause because agreement was the underlying basis for all the claims of the beneficiaries and there would have been no claims without the agreement 2: holding that the settlor could divest the beneficiaries of their vested interests only by completely revoking the trust because she had limited her ability to eliminate the beneficiaries interests by including language in the trust stating that the interests of the beneficiaries  shall continue until this trust is revoked or terminated internal quotation marks omitted 3: holding that a union health trust had standing to sue tobacco companies to recover medical expenses paid by the trust and allegedly caused by beneficiaries smoking 4: holding that trust beneficiaries have no authority to maintain an action as third party beneficiaries of contracts between the trustee and agents of the trustee concerning the internal affairs of the trust


Input: are unenforceable, they are also severable from the agreement. Given that these provisions were not enforced in Morrison's arbitration, the arbitration proceeded as though the provisions were in fact unenforceable and severed. For this reason, we affirm the district court’s order on these grounds. 3 . This opinion uses the term "cost-splitting," rather than "cost-sharing” or "fee-splitting,” to describe the arrangement by which the parties to an arbitration bear the costs of an arbitration equally. Some arbitration agreements also provide for "cost-shifting,” an ar rangement by which the arbitrator may determine that one of the parties should bear all or most of the costs of the arbitration. 4 .See Shankle v. B-G Maint. Mgmt. of Col., Inc., 163 F.3d 1230, 1235 (10th Cir.1999) (<HOLDING>). Shankle could also be interpreted as Holdings: 0: holding that arbitration agreement requiring litigant to pay onehalf of arbitration costs failed to provide an accessible forum in which litigant could resolve his statutory rights 1: holding that plaintiff cannot be forced to submit to an arbitration process that imposes costs that render the arbitral forum less accessible than a judicial forum that the arbitrator is obligated to allocate costs and fees in accordance with the law and that therefore plaintiff bears no risk by proceeding to arbitration 2: holding that where an arbitration agreement between an employer and employee does not specifically provide for the handling of arbitration costs california courts should interpret the arbitration agreement  as providing  that the employer must bear the arbitration forum costs 3: holding that plaintiff failed to meet his burden of proof because he offered absolutely no evidence to support his claim that the costs of arbitration will deny him an effective forum to vindicate his statutory rights 4: holding that the federal arbitration act requires piecemeal resolution when necessary to give effect to an arbitration agreement and mandates enforcement of an arbitration agreement notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement emphasis added


Input: we find that a more intensive analysis is necessary when searches of this nature are conducted, especially when done in the field. That is not to say, however, that these searches are per se prohibited — no court in this Commonwealth has ever made such a declaration, and we decline to do so today. But we do note that officers should be cautious when performing these types of searches, outside of a sanitary and secure police station. And while this case provides facts sufficient to support the reasonableness of the search conducted, that will not always be the case. Indeed, the police risk the loss of evidence when they subject arrestees to strip searches outside of the police station, and even sometimes when the search is conducted in the station house. See Stewart, 767 F.2d at 156-57 (<HOLDING>). Here, as stated above, the officers faced a Holdings: 0: holding strip searches conducted in the station house without reasonable suspicion that minor offenders had possession of contraband are unreasonable and violate the fourth amendment 1: holding that policy requiring strip searches of prisoners prior to transfer did not violate fourth amendment 2: holding searches conducted without a warrant based on probable cause are presumptively unreasonable 3: holding that inmates fourth amendment protection from unreasonable strip searches survives hudson 4: holding that it was clearly established that a strip search policy applied to minor offense detainees without particularized reasonable suspicion was unlawful