Input: Claims and Disputes § 11:9 (5th ed. 2007) (emphasis added). Another standard treatise notes the “many courts holdfing] that the term ‘intent’ r rrington, 565 N.W.2d 839, 842 (Mich. 1997) (affirming lower court holding that the exclusion “requires a subjective inquiry into the intent or expectation of the insured”); Cameron Mut. Ins. Co. v. Moll, 50 S.W.3d 329, 333 (Mo. Ct. App. 2001) (“a subjective standard must be used for determining whether the injuries were expected or intended”); McCoy v. Coker, 620 S.E.2d 691, 695 (N.C. Ct. App. 2005) (in determining whether the injury was expected or intended by the insured “[t] y did not exclude harm expected or intended “from the standpoint of a reasonable person”); Auto-Owners Ins. Co. v. Harrington, 538 N.W.2d 106, 109 (Mich. Ct. App. 1995) (<HOLDING>), aff'd, 565 N.W.2d 839 (Mich. 1997); Cook, 557 Holdings: 0: holding that regardless of the subjective belief of the insured the record established a basis to believe that the insured had committed an act that could give rise to a claim under the policy 1: holding that the policy language expected or intended by an insured person is unambiguous and requires a subjective intent on behalf of the insured 2: holding that the standard policy exclusion of injuries expected or intended by the insured refers only to bodily injury that the insured in fact subjectively wanted intended to be a result of his conduct or in fact subjectively foresaw as practically certain expected to be a result of his conduct 3: holding that the use of the phrase any insured rather than the insured the same language used in the employers liability exclusion here meant that the exclusion was not limited to injuries sustained by the employees or contractors of one insured party 4: holding that under pennsylvania law the reasonable expectations of an insured may overcome unambiguous policy language only when the insured is a noncommercial entity


Input: jurisdiction, the case shall be remanded.”). It is not clear to the court that there is any basis for subject matter jurisdiction over plaintiffs declaratory judgment action. Of the nine defendants named in the complaint, four are citizens of Virginia. Plaintiff seeks a declaration of “each party’s respective rights, status and other legal relations and obligations under the applicable law and insurance policies.” (Compl. at 6.) Thus, whether any of the Virginia defendants is a party-in-interest to the declaratory judgment is, at a minimum, a difficult question. However, because even if there were diversity in this case the court would decline jurisdiction, the issue need not be reached. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (<HOLDING>). When a case is removed from state to federal Holdings: 0: holding that riggins does not present novel constitutional issues 1: holding that there is no mandatory sequencing of jurisdictional issues  and we have leeway to choose among threshold grounds for denying audience to a case on the merits  quoting ruhrgas ag v marathon oil co 526 us 574 584 585 119 sct 1563 143 led2d 760 1999 2: holding that steel co does not dictate a sequencing of jurisdictional issues and stating that it is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits 3: holding that exhaustion of issues is jurisdictional 4: holding that a dismissal on limitations grounds is a judgment on the merits


Input: trying to collect, and, therefore, interpretation which treats the two claims as arising from distinct events turns a blind eye to reality); Taborski v. U.S., 141 B.R. 959 (N.D.Ill.1992) (debtor’s claim against IRS and IRS’ claim against debtor arose out of same transaction and occurrence, which was IRS’ attempt to collect the taxes); In re Lile, 103 B.R. 830, 835 (Barrkr.S.D.Tex.1989) aff'd 161 B.R. 788 (S.D.Tex.1993) (IRS claim for unpaid taxes and debtor's claim for damages for post-petition levy arose out of same transaction or occurrence). Contra In re Rebel Coal Co., Inc., 944 F.2d 320 (6th Cir.1991) (concluding that claim for attorneys’ fees did not arise out of same transactions as a tax collection claim); In re Academy Answering Service, Inc., 100 B.R. 327, 330 (N.D.Ohio 1989) (<HOLDING>). 10 . Accord In re Boldman, 157 B.R. 412 Holdings: 0: holding that a decedents tax settlement with the irs did not establish the value of his estates claim against the irs as a matter of law 1: holding that irs claim for taxes and claim of debtor against irs for violation of automatic stay did not arise out of the same transaction or occurrence 2: holding that although the automatic stay only applies to proceedings against the debtor  counterclaims seeking affirmative relief against a debtor implicate the automatic stay 3: holding that irs was bound by plan and bankruptcy codes method of determining amount of nondischargeable claim where irs had filed proof of claim for nondischargeable tax debt 4: holding that the otherwise harmless violation of the automatic stay did not suffice to deprive the irs of the postpetition interest setoff to which  it would have been entitled had it first sought a lifting of the stay from the bankruptcy court


Input: clerk’s practice of almost always granting deferrals to jurors who requested them introduced a substantial element of voluntariness into jury service, and meant that the pool of K jurors consisted of individuals who had decided for various reasons not to serve at the time that their names were drawn from the divisional qualified wheels. As the former Fifth Circuit explained, “That the introduction of predilections of prospective jurors affects the random nature of the selection process cannot be gainsaid. Surely a district would be in substantial violation of the statute [JSSA] if it selected all its jurors by randomly drawing names from the qualified wheel and allowing those selected to opt in or out at will.” Id.; see also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982) (<HOLDING>). Arguably, then, when the clerk almost always Holdings: 0: holding the connection is an element 1: holding that use of volunteer jurors introduced an impermissible subjective element into jury selection 2: recognizing that observations made during a psychiatric examination contain a subjective element 3: holding that a jury instruction directing the verdict on one element deprived defendant of the right to a jury determination on every element of the charged offense and thus constituted structural error 4: holding that knowledge element could not be deemed in favor of plaintiff where defendant objected to the omission of that element from the jury charge


Input: witnesses was held to be violative of accepted grand jury practice, therefore requiring dismissal of the indictment. Similarly, in United States v. Bowdach, 324 F.Supp. 123 (S.D.Fla.1971), it was held that the presence of a witness who played audio tapes for the purpose of refreshing the memory of other witnesses constituted a violation of Rule 6(d). It has likewise been held that Rule 6(d) is violated where an attorney for the government testifies before the grand jury and then, having resumed his prosecutorial role, remains in the grand jury room in the presence of other witnesses. See United States v. Gold, 470 F.Supp. 1336, 1351 (N.D.Ill.1979); United States v. Treadway, 445 F.Supp. 959, 962 (N.D.Tex.1978); contra, however, is United States v. Birdman, 602 F.2d 547 (3rd Cir. 1979) (<HOLDING>). The government’s position that the Holdings: 0: holding that an agreement in which one party promised to make monthly payments to the other partys attorney as part of an asset sale contract was for the direct benefit of the attorney 1: holding that the attorneys presence is authorized under rule 6d as that of a witness on the one hand and as an attorney for the government on the other 2: holding that waiver by attorney was binding upon the accused when before the state introduced the evidence complained of on appeal counsel for the state in the presence of the accused and his counsel stated the agreement and the evidence of the witness was then read to the jury in the presence of the accused and his counsel without objection 3: holding that defendant is under an obligation to give the government notice of an alibi witness even if defendant is unable to locate the witness 4: holding depends on the policy language at hand


Input: is narrowly drawn to serve a compelling state interest.” City of Panora v. Simmons, 445 N.W.2d 363, 367 (Iowa 1989). We think the confinement of sexually violent predators who “will engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility,” Iowa Code §§ 229A.2(8), .7, serves a compelling state interest— protection of the public. In addition, the statute is narrowly drawn to encompass only those individuals who, because of a “mental abnormality,” are predisposed to sexually violent behavior. See id. § 229A.2(3), (8) (defining “mental abnormality” and “sexually violent predator”). Therefore, chapter 229A does not violate Garren’s right to the equal protection of the law under the state or federal constitutions. See In re Hay, 953 P.2d at 675 (<HOLDING>). IX. Summary. We hold that the Sexually Holdings: 0: holding transfer rule did not violate federal equal protection 1: holding that doctrine does not violate equal protection 2: holding that discrimination based on religion is subjected to strict scrutiny whether a claim arises under the establishment clause the free exercise clause of equal protection clause 3: holding that nearly identical kansas statute did not violate equal protection clause when subjected to strict scrutiny 4: holding that the cap does not violate equal protection


Input: — and it was so conceded on the argument of this case — that the remedy given by this provision, and other sections following in the same chapter, was intended as a substitute for a creditor's bill...."); Graham v. La Crosse & Milwaukee R.R. Co., 10 Wis. 403 (*459), 406 (*462) (1860) ("[T]he proceedings supplemental to execution, established by the code, are a substitute therefor, and constitute the only manner of obtaining the relief formerly had under a creditor's bill."); Seymour v. Briggs, 11 Wis. 204 (*196), 213 (*204) (1860) ("[T]he remedy by creditor's bill was abrogated by the code, and that the proceedings supplementary to an execution provided by that enactment, were intended as a substitute therefor."); Second Ward Bank v. Upmann, 12 Wis. 555 (*499), 561-562 (*504-05) (1860) (<HOLDING>). 15 In Wisconsin, supplemental proceedings are Holdings: 0: recognizing common law privileges 1: holding that the common law principle of absolute judicial immunity for judicial acts has neither been abrogated nor been modified in maryland emphasis added 2: holding that the right to bring a wellestablished common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionallyguaranteed right of redress 3: recognizing that new mexico has adopted the common law unless otherwise abrogated by specific statutory provisions and that the power of a trial court to change venue on its own motion if necessary to assure the defendant a fair trial is part of that common law 4: holding that the statutes abrogated the common law


Input: bench trial before the Honorable Frank M. Davis, which was concluded September 30, 1986. Defendant, “The Shining Mountains,” a California limited partnership, is the owner-developer of property known as the “Shining Mountains Subdivision” located in Madison County, Montana. A dispute arose between defendant and individuals purchasing parcels within the subdivision as to the extent and nature of defendant’s commitment to construct roadways within the subdivision. The plaintiff-landowners filed suit alleging defendant represented that roadways would be provided as part of the development and constructed by defendant. This Court previously reversed a partial summary judgment in favor of plaintiffs. Majers v. Shining Mountains (Mont. 1986), [219 Mont. 366,] 711 P.2d 1375, 43 St.Rep. 16 (<HOLDING>). Following a subsequent trial, the District Holdings: 0: holding that the mere existence of a scintilla of evidence is insufficient to create a dispute of fact that is genuine 1: holding that the original pto declarations create a genuine issue of material fact 2: holding that subsequent affidavit contradicting prior sworn testimony does not create genuine issue of fact 3: holding that a genuine issue of fact remained in determining what representations were made by defendant to plaintiffs as to the construction of roadways and that roadway easement designations on the plat maps did not alone create a promise to construct roads 4: holding that unsupported allegations or denials are insufficient to create a genuine issue of material fact for purposes of summary judgment


Input: specify a sentence to a term of imprisonment at or near the maximum term authorized.” See 28 U.S.C.A. § 994(h) (West Supp.1992). The career offender scheme of using a defendant’s criminal record in considering both his offense level and his criminal history under the Sentencing Guidelines bears a rational relationship to a legitimate governmental purpose — “to prevent repeat offenders from continuing to victimize society.” John, 936 F.2d at 766-67 n. 2. Consequently, Johns’ due process claim lacks merit. Id.; see also United States v. Erves, 880 F.2d 376, 379 (11th Cir.1989) (rejecting both procedural and substantive due process attacks on sentencing guidelines); United States v. Hawkins, 811 F.2d 210, 217 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987) (<HOLDING>). Defendant’s equal protection claim is equally Holdings: 0: holding that defendants sixth amendment right to trial by a jury was not violated by district courts reliance on his prior convictions for purposes of sentencing under the armed career criminal act 1: holding that the armed career criminal designation based on prior convictions does not violate the sixth amendment under booker 2: holding that a conviction for florida armed robbery is a crime of violence under the armed career criminal act 3: holding sentencing enhancement scheme in armed career criminal amendment to 18 usca  1202a constitutional 4: holding that application of armed career criminal enhancement falls within exception for prior convictions where facts were undisputed making it unnecessary to engage in further fact finding about a prior conviction


Input: bring an individual action under § 1132(a)(3). See 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Although Varity interpreted § 1132(a)(3) to authorize individual suits, its holding is not as broad as Wilson contends. The Supreme Court ruled that an individual can sue under § 1132(a)(3), but he or she must: (1) only seek equitable relief, and (2) have no more specific means of relief available. See Varity, 516 U.S. at 508-15, 116 S.Ct. 1065; Turner v. Fallon Community Health Plan, 127 F.3d 196, 200 (1st Cir.1997). Wilson’s claim seeks damages in the amount of the rehabilitation expenses, not injunctive relief. Furthermore, the remedy for a claim that a plan participant’s benefits were improperly denied is specifically provided for in § 1132(a)(1)(B). See Turner, 127 F.3d at 200 (<HOLDING>). Thus, even if Wilson amended Count V, he Holdings: 0: holding that an individual who brings a lawsuit pursuant to  1132a1b to challenge a denial of disability benefits does not also have a right to a cause of action for breach of fiduciary duty under  1132a3 1: holding that  1132a1b affords the plaintiff adequate relief for her benefits claim and a cause of action under  1132a3 is thus not appropriate 2: holding that action to recover erisa benefits under the subject plan are legal in nature and that plaintiff is constitutionally entitled to trial by jury on any claim raised under  1132a1b 3: holding plaintiff had no claim under  1132a3 because his grievance that benefits were denied is specifically addressed in  1132a1b 4: holding that no ada violation was shown because the disabled were not denied benefits that were otherwise available


Input: a five-year-old paternity order had not been properly challenged). 2 . We note that the 21-year-old child whom the court ordered to submit to a DNA test \vas not a party below, nor apparently given notice of the proceedings. With paternity not in controversy, the adult child possesses his own legal rights related to the ordered testing, including notice. See § 760.40(2)(a), Fla. Stat. ("DNA analysis may be performed only with the informed consent of the person to be tested, and the results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may not be disclosed without the consent of the person tested.”). Cf. Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266, 1268-69 (Fla. 1st DCA 2003) Holdings: 0: holding that the substitution of a party acts as a modification discharging the replaced party and substituting the new party with the same rights and liabilities 1: holding that the court should look to the actions of the relevant party and determine whether that party fails to insist on its contractual rights or acts inconsistently with such rights 2: holding that a district court has the power to raise the aedpa limitations period sua sponte because the defense implicates values beyond the interests of the parties 3: recognizing a difference between a partners economic rights and voting rights with the former typically being freely assignable to a third party 4: recognizing that a compelled medical examination implicates the rights of the party being examined


Input: 557 A.2d 1012. William Cook, another corrections officer, was also injured when an inmate, whose arm Cook was holding, suddenly jumped and dragged him down a flight of stairs. Id. at 218, 557 A.2d 1012. We distinguished those eases from Maynard and Ciecwisz; held that each officer sustained his injuries as the result of a great rush of force or uncontrollable power; and recognized the “actions of an unruly inmate” as the necessary qualifying external force distinct from an employee’s “own conduct.” Id. at 222, 557 A.2d 1012. Confusion over the Kane standard continued, however, and, despite their best efforts, courts remained unable to deploy it to reach consistent results. Compare Fawcett v. Bd. of Trs., Pub. Employees’ Ret. Sys., 307 N.J.Super. 378, 704 A.2d 1041 (App.Div. 1998) (<HOLDING>), with Pino v. Bd. of Trs., Pub. Employees’ Holdings: 0: holding the conflict preemption principle announced in pilot life and clarified in rush prudential remains in force 1: holding that police officer plaintiff who was injured approaching a vehicle he had stopped from the rear which lurched backward was an occupier of a motor vehicle under either a geographic perimeter or vehielerelatedtask test 2: holding force to be an element of pre1994 amendment  111 which may be satisfied by proof of force or threat of force 3: holding whiplash from malfunction of seat which lurched backward and forward was great rush of force 4: holding invasion of broom bristles in sensitive organ like eye can be great rush of force


Input: him to resign. As such, Olmsted argues that his resignation is revocable. Under Minnesota law, it is “undisputed that duress is coercion by means of physical force or unlawful threats which destroys the victim’s free will and compels him to comply with some demand of the party exerting the coercion.” Wise v. Midtown Motors, 231 Minn. 46, 42 N.W.2d 404, 407 (1950). “As a rule, duress will not prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time and opportunity for investigation, consideration, consultation and reflection.” Am. Nat’l. Bank of Lake Crystal v. Helling, 161 Minn. 504, 202 N.W. 20, 23 (1925) (quotation and citations omitted); see also St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., 411 N.W.2d 288, 291 (Minn. Ct. App. 1987) (<HOLDING>). Minnesota does not recognize “economic Holdings: 0: holding that a claim of duress will not be sustained when the claimant entered into the contract with full knowledge of all the facts advice from an attorney and ample time for reflection citing helling 202 nw at 23 1: holding that a claim not raised before the trial court will not be considered for the first time on appeal 2: holding that duress or coercion would invalidate a contract if the coercion comes from the opposing party not the claimants attorney 3: holding that where the state has entered into a contract fairly authorized by the powers granted by general law the defense of sovereign immunity will not protect the state from an action arising from the states breach of that contract 4: holding that retention of an attorney to investigate an insurance claim and make a coverage determination under a policy is a classic example of a client seeking legal advice from an attorney


Input: that overall lessen the State’s burden of proof violate due process. B. Medina contends that the instruction improperly diminished the State’s burden of proof. When explaining reasonable doubt to the jury, the trial court stated: “when we talk about a reasonable doubt we mean doubt from which a reason can be given, a doubt which arises from a fair and rational consideration of the evidence or perhaps the lack of evidence, it means a doubt as would cause a man of ordinary prudence to pause or hesitate when called upon to act in the most important aspects of life.” This portion of the charge was incorrect. It erroneously implies that the jury must find an articulable reason to support its doubts about the State’s case. See State v. Vaszorich, 13 N.J. 99, 115, 98 A.2d 299 (1953) (<HOLDING>). Jurors may harbor a valid reasonable doubt Holdings: 0: holding that a court must allow the defendant to ask in voir dire whether a potential juror would automatically impose the death penalty and suggesting that such a juror should be disqualified for cause 1: holding that trial courts denial of motion for new trial based on juror misconduct was justified where there was no evidence presented at hearing on motion that juror had knowingly concealed relevant litigation experience during voir dire and identity of juror as county court litigant was not demonstrated 2: holding that the statement contained in a juror pamphlet that a reasonable doubt is one for which should he be called upon a juror can give a reason was obviously erroneous under our law 3: holding that though judge did not question juror individually note from juror to judge requesting private meeting to ask legal question did not suggest juror would not base verdict on evidence 4: holding phone call to defendant from purported juror saying we were pressured into making our decision inadequate to permit juror interview


Input: of the facts and the law. See Ex parte Kunkle, 852 S.W.2d 499, 506 (Tex.Crim.App.1993). Unlike Burger and Ex parte Kunkle, in this case, based on Durant’s own testimony that he made no investigation into potential witnesses, no such investigation of the facts or evaluation of available testimony was made. While we have found no Texas case that has found an attorney to be ineffective for failing to investigate or call witnesses at the punishment phase, other courts have not been reluctant to do so. See, e.g., Austin v. Warden, 126 F.3d 843, 848 (6 th Cir.1997) (the failure to present mitigation evidence when several relatives, friends, death penalty experts, and a minister were available to testify was an abdication of advocacy); Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997) (<HOLDING>); Glenn v. Tate, 71 F.3d 1204, 1207 (6 th Holdings: 0: holding that counsel cannot be found ineffective for failing to pursue a particular mitigating factor where despite a reasonable investigation by counsel counsel was not put on notice of any such mitigating evidence 1: holding defense counsel was ineffective at sentencing when he failed to make a significant effort based on reasonable investigation and logical argument to ably present the defendants fate to the jury and to focus the attention of the jury on any mitigating factors 2: holding that a jury verdict will be sustained on any reasonable theory based on the evidence 3: holding that counsel was not ineffective for failing to present mitigating evidence at sentencing because the trial record clearly indicated that the sentencing judge was aware of many of the mitigators that counsel was presenting to this court on appeal 4: holding counsel ineffective for failing to investigate and present mitigating evidence


Input: an effort to collect on the mortgage loans notwithstanding plaintiffs’ representation by counsel. Countrywide seeks summary judgment as to plaintiff William Croye’s claims in Count IV. Inasmuch as Mr. Croye did not execute the loans at issue, Countrywide contends that he does not meet the definition of a “consumer” under § 46A-2-122(a) of the WVCCPA wherein the term is defined as “any natural person obligated or allegedly obligated to pay any debt,” and, thus, has no standing to bring a claim of illegal debt collection under § 46A-2-128. While it is unlikely that Mr. Croye was ever legally obligated to pay the mortgage loans, plaintiffs have established a question of fact as to whether Mr. Croye was allegedly obligated to pay. See Arnold, v. Palmer, 224 W.Va. 495, 686 S.E.2d 725 (2009) (<HOLDING>). Mr. Croye claims that Countrywide telephoned Holdings: 0: holding that fraudulent collection on promissory note was reasonably related to breach of contract claim 1: holding that a promissory note is not enforceable against a party who signed the deed of trust but did not sign the promissory note inasmuch as promissory notes and deeds of trust are separate legal documents with unique purposes 2: holding that when note and deed of trust were null and void and of no legal effect because of forgery assignee of note and deed of trust nevertheless had equitable lien upon property for value of construction work for which note and deed of trust were given 3: holding that mers is capable of being a valid beneficiary of a deed of trust and that while entitlement to enforce both the deed of trust and the promissory note is required to foreclose nothing requires those documents to be unified from the point of inception of the loan 4: holding that when the basis of the earlier suit was that the plaintiff had had defaulted on a promissory note and the claim in the instant action is whether that promissory note was valid the transaction test is met


Input: on his restitution payments. Rule 609 of the Federal Rules of Evidence permits a witness tó be questioned about any felony conviction or any conviction of a crime involving “dishonesty or false statement, regardless of the punishment.” The district court in this case limited cross-examination on Stout’s deferred adjudication because deferred adjudication is not a “conviction” under Texas law. Although “conviction” status for the purpose of Rule 609 is properly determined by federal law rather than state law, we hold that the district court’s ruling was not an abuse of discretion. The few Fifth Circuit cases touching on this issue have indicated that when adjudication of guilt is deferred, there is no “conviction.” See United States v. Georgalis, 631 F.2d 1199, 1203 (5th Cir.1980) (<HOLDING>); United States v. Dotson, 555 F.2d 134, 135 Holdings: 0: holding that there is no crime of attempted felony murder in florida 1: holding it was proper for the state to crossexamine testifying defendant about prior convictions for purpose of impeaching his credibility 2: holding that rule 609 was violated when prosecutor attempted to crossexamine defendant about his deferred adjudication for felony check fraud 3: holding that defendant truthfully stated on firearm purchase form that he had no felony convictions given the fact that adjudication of guilt was deferred and sentence suspended on his prior offense of felony receipt of a stolen car 4: holding that attempted felony murder was abolished


Input: The trial court denied the request to require the Department to pay travel costs that “are made to foster the attorney/client relationship.” Although not requested by the Attorney Ad Litem, the court ordered the Department to “fund any visits [by the pro bono Attorney Ad Litem] that are therapeutically recommended by the therapeutic staff of the Alexander Youth Network.” The Department appealed. ANALYSIS The issue presented is whether the trial court’s order violated the separation of powers doctrine by requiring the Department, an executive agency, to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the minor child’s therapy. We have jurisdiction. See Fla. Dep’t of Children & Families v. Y.C., 82 So.3d 1139, 1141 n. 6 (Fla. 3d DCA 2012) (<HOLDING>); Dep’t of Corrs. v. Harrison, 896 So.2d 868, Holdings: 0: recognizing the right to petition for writ of certiorari as a form of appellate review 1: holding in a similar case that certiorari was the proper vehicle for review 2: holding that discovery of financial information was not in and of itself the type of irreparable harm necessary for certiorari review 3: holding that certiorari petition is appropriate to review nonfinal pretrial evidentiary order in criminal case 4: holding that previous legal ruling granting certiorari was law of the case in subsequent proceedings


Input: v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). Defendant’s knowledge of specific documents is certainly conceivable because she had access to transcripts from Robert Kelly’s trial that may have disclosed the existence of specific documents relevant to her own defense. We agree with defendant, however, that she was denied her right to due process under the Federal Constitution when the trial court ' failed to conduct a review of the privileged materials brought forth for in camera Ritchie review pursuant to Judge Tillery’s pretrial order applicable to all defendants. We take judicial notice of materials referred to in Kelly for purposes of the present appeal. See Barker v. Agee, 93 N.C. App. 537, 378 S.E.2d 566 (1989), aff’d in part, rev’d in part, 326 N.C. 470, 389 S.E.2d 803 (1990) (<HOLDING>). Therefore, in the event of a retrial, the Holdings: 0: holding that the appellate court may take judicial notice of its own records in related proceedings 1: recognizing that the court may take judicial notice of its own docket 2: recognizing that a court may rely on matters of which a court may take judicial notice 3: holding that appellate court may judicially notice its own records 4: holding that a trial court may take judicial cognizance of records on file in its own court punctuation omitted


Input: as far as I can surmise, is to bar successive petitions when lower courts, but not the Supreme Court, have held a rule not to be “new” under Teague because dictated by their own precedent, cf. Dyer v. Calderon, 151 F. 3d 970, 993-995 (CA9) (en banc) (O’Scannlain, J., dissenting) (rejecting proposition that lower court decisions can establish rule for Teague purposes), cert. denied, 525 U. S. 1033 (1998); Clemmons v. Delo, 124 F. 3d 944, 955, n. 11 (CA8 1997) (assuming, without deciding, that only Supreme Court precedent may dictate rule so that it is not new for Teague purposes), cert, denied, 523 U. S. 1088 (1998), or when lower courts have themselves adopted new rules and then determined that the Teague retroactivity factors apply, see Smith v. Groose, 205 F. 3d 1045, 1054 (CA8) (<HOLDING>), cert, denied sub nom. Gammon v. Smith, 531 U. Holdings: 0: holding prosecutions suppression of favorable material evidence violates due process 1: holding that use of inherently factually contradictory theories violates the principles of due process 2: holding that circuit rule that prosecutions use of contradictory theories violates due process would fall within teagues watershed exception 3: holding that the knowing use of false testimony to obtain a conviction violates due process 4: holding that the prosecutions suppression of evidence material to guilt or punishment violates due process regardless of the prosecutions good or bad faith


Input: Amendment. Berge alleged that Shatto, Milburn, and Lamack “were all [adequately] involved in this case as well.” Berge was detained three months until charges were dropped. The district court held that Berge failed to state a violation of a constitutional or federal statutory right, and dismissed his complaint. The district court did not rule on Berge’s pending motion for appointment of counsel. A complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). Here, Berge’s complaint can fairly be read as alleging that VanLangen knew the information provided in the affidavit was false and thus a violation of Berge’s Fourth Amendment rights. See Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir.1999) (<HOLDING>); Moody v. St. Charles County, 23 F.3d 1410, Holdings: 0: holding that the fourth amendment protects people not places 1: holding that under fourth amendment standards for determining probable cause for arrest and probable cause for search and seizure are same 2: holding fourth amendment protects right to be free from arrest without probable cause 3: holding that warrantless arrest based on probable cause did not violate the fourth amendment 4: recognizing that an alleged deprivation of the right to be free from prosecution without probable cause might be judged under the fourth amendment


Input: and Powell negotiated any aspect of the sales contract or the waiver provision. Both the sales contract and the addendum were pre-printed forms labeled as Bank of America documents. Accordingly, factors four and five, the parties’ negotiations concerning the entire agreement and concerning the waiver provision, weigh against a finding that Martin and Powell knowingly and voluntarily made the waiver. An absence of evidence of negotiation does not meet Bank of America’s burden to produce pri-ma facie evidence of a knowing and voluntary waiver. And the waiver provision here was not conspicuous. It was set forth exactly as the other paragraphs in the addendum; it was not in larger or bolder font than the remainder of the addendum. Cf. In re Gen. Elec. Capital Corp., 203 S.W.3d at 316 (<HOLDING>) (emphasis added); see also Tex. Bus. & Holdings: 0: holding contractual jury waiver provision that was in all capital letters and was bolded was conspicuous 1: recognizing that contractual jury waiver provision that was conspicuous  because it was in bolded font and in all capital letters  met burden of party seeking to enforce provision to make prima facie showing that waiver was knowing and voluntary 2: holding that the waiver in two previous contracts was insufficient to support waiver of the contract at issue in that appeal 3: holding that jury waiver stating that it was made knowingly and voluntarily raised presumption of same and that burden was on party challenging enforceability of jury waiver to present evidence overcoming presumption 4: holding the jury waiver invalid where waiver was inconspicuous appeared to be nonnegotiable and there was unequal bargaining power


Input: the debtors to several different federal government agencies against the debtors’ rights to IRS excise tax refunds); In re Turner, 84 F.3d 1294, 1296, 1298 (10th Cir.1996) (permitting setoff of a debt owed by the debtors to the SBA against the debtors' right to payments owed to them by the Agricultural Stabilization and Conservation Service). 5 . See Alexander v. Commission, Internal Rev. Serv. (In re Alexander), 225 B.R. 145, 148 (Bankr.W.D.Ky.1998) (listing cases and siding with the majority position); but see In re Bourne, 262 B.R. 745, 752-54 (Bankr.E.D.Tenn.2001) (listing cases on both sides of the issue). 6 . See In re Bourne, 262 B.R. 745, 752 (Bankr. E.D.Tenn.2001). 7 . Id. (citations omitted). 8 . 262 B.R. at 756; see also In re Shortt, 277 B.R. 683, 692 (Bankr.N.D.Tex.2002) (<HOLDING>); In re Pigott, 330 B.R. 797 Holdings: 0: holding that an anticipated tax refund was property of the bankruptcy estate as of the date the bankruptcy case was filed 1: holding that because the amount of the debtors obligation to the government exceeded the amount of their income tax refund the refund did not become property of the estate and could not be exempted 2: holding that the trial court lacked authority to order a refund where the defendants case did not meet the specific statutory requirements authorizing a refund 3: holding that a refund may include additional taxes paid after the filing of a refund claim so long as the total does not exceed the portion of tax paid prior to the administrative claim 4: holding that a taxpayer only has a refund right after the irs has credited the refund to other underpaid taxes therefore the refund was not part of the bankruptcy estate


Input: Sunday in the visiting room or in the dining hall in the event the visiting room was not available. 8 . The record reflects that the film shown inmates at Christmas was the classic "It's a Wonderful Life,” which Blagman contends is burdened with Christian overtones. The record shows the film was followed by a group discussion, not on religion, but on such topics as personal accountability, responsibility, obligations to others and moral obligations gener e Muslim year, "during which all Moslems must fast during the daylight hours. Indulgence of any sort is forbidden during the fast. There are only a few who are exempt, e.g., soldiers and the sick.” See Th .1997) (inmate's First Amendment rights not violated by Christmas party). Cf. Bridenbaugh v. O’Bannon, 185 F.3d 796 (7th Cir.1999) (<HOLDING>); Cammack v. Waihee, 932 F.2d 765, 780 (9th Holdings: 0: holding no violation of federal establishment clause 1: holding that tax exemption for church property does not violate establishment clause 2: holding that the endorsing requirement does not violate the establishment clause 3: holding that establishment of christmas day as legal public holiday did not violate establishment clause 4: holding that recognition of good friday as a legal holiday did not violate establishment clause


Input: Burns for the tel-sell position. 3 . In support of its position, KCC relies on the Fourth Circuit’s decision in Williams that a twenty-five pound lifting restriction could not, as a matter of law, substantially limit the major life activity of working. Williams, 101 F.3d at 349. However, the Fourth Circuit’s decision on this issue conflicts with the ADA’s directives that the determination whe .3d at 349; Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 724-27 (5th Cir.1995) (stating that ”[o]ther major life activities could include lifting, reaching, sitting, or standing”). The Supreme Court has, however, questioned in dicta whether "working” should be considered a major life activity under the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (<HOLDING>). In Sutton, the Court entertained on the Holdings: 0: holding that disability determinations must be made with reference to corrective measures 1: holding that an employers awareness of an employees impairment without more is insufficient to demonstrate that the employer regarded the employee as disabled 2: holding that the determination of whether an individual is disabled should be made with reference to measures that miti gate the individuals impairment including in this instance eyeglasses and contact lenses 3: holding that the determination of whether an individual is an independent contractor lies in the common law and not under an express provision of the act 4: holding that monocular vision is not invariably a disability but should be analyzed on an individual basis taking into account the individuals ability to compensate for the impairment


Input: Silverman, No. Civ.00-2274 JRT, 2004 WL 2066778, *4 (D.Minn. Aug. 26, 2004) (finding any award of fees was “clearly inappropriate,” because the respondent was “unable to absorb the necessarily minimal expenses for her family in addition to any fee award, [so that] an award of fees would impair significantly her ability to care for her children”); but see Neves v. Neves, 637 F.Supp.2d 322, 345 (W.D.N.C.2009) (concluding that an award of fees and costs was not “clearly inappropriate,” even though the respondent was then unemployed and had no assets in the United States, where he owned a two-story building in Germany that he estimated would rent for about $2,000 per month). After careful consideration of equitable principles and pertinent factors in this case, see Ozaltin, 708 F.3d at 375 (<HOLDING>), I conclude that it is “clearly inappropriate” Holdings: 0: holding that an attorneys fees award is not appealable until the amount of the award is set 1: holding that an award of attorneys fees under supreme court rule 38 precursor to rule 222 did not preempt an award of attorneys fees to which one is otherwise entitled and thus appellant could seek an award of attorneys fees pursuant to section 1577300 which permits an award of fees for a party prevailing in an action against a state agency 2: holding proper basis for award of fees 3: holding that an award for medical expenses is proper when the expenses have been incurred but not paid 4: recognizing that an award of fees and expenses under the convention and icara involves equitable principles


Input: of devices with whom one communicates. Nor does it raise novel issues distinct from those long since resolved in the context of telephone communication, with which society has lived for the nearly forty years since Smith was decided. Like telephone companies, Internet service providers require that identifying information be disclosed in order to make communication among electronic devices possible. In light of the Smith rule, no reasonable person could maintain a privacy interest in that sort of information. We therefore join the other circuits that have considered this narrow question and hold that collecting IP address information devoid of content is “constitutionally indistinguishable from the use of a pen register.” Forrester, 512 F.3d at 510; see, e.g., Wheelock, 772 F.3d at 828 (<HOLDING>); Christie, 624 F.3d at 573 (holding that there Holdings: 0: holding that state officials cannot have been expected to predict the future course of constitutional law internal quotation marks omitted 1: holding that computer users do not have a legitimate expectation of privacy in their bulletin board subscriber information because they have conveyed it to another person 2: holding that the defendant cannot claim a reasonable expectation of privacy in the governments acquisition of his subscriber information including his ip address and name because it had been revealed to a third party internal quotation marks omitted 3: holding that information from reliable entity confirming that defendant was the internet subscriber associated with the ip addresses at issue and used screen name involved in crime supported probable cause for warrant 4: holding bank clients had no legitimate expectation of privacy in banking information revealed to a third party


Input: failure to inform the plaintiff of the tumor on February 23, 2002, resulted in any actual injury to the plaintiff before February 24, 2002, the first day of the four-year period in question. Rather, this Court concluded that, although the complained-of negligent act occurred beyond the four-year period of repose in 6-5-482(a), the plaintiff may have been able to prove a set of facts indicating that the actual legal injury occurred within the four-year period of repose. In this case, the trial court explained in its order dismissing Cutler’s medical-malpractice action that the primary difference between Crosslin and the instant case is that Crosslin alleged in his complaint only that his injury occurred at a point after February 24, 2002, and, thus, “Crosslin may [have been] able (<HOLDING>). The key fact in this case is the time at Holdings: 0: holding that the plaintiffs cause of action accrued on the date of the repealer statute not on the date the wrong occurred despite the federal courts ruling as to the statutes unconstitutionality 1: holding that the cause of action accrued on the date of sale 2: holding that a plaintiffs  1983 claim accrued on the date of the alleged illegal search and seizure 3: holding that plaintiffs cause of action accrued on the date the ophthalmologist performed the initial surgery and left the gauze at the surgical site 4: holding that under the rule against splitting a cause of action a new claim for damages is not barred if the underlying cause of action had not accrued at the time of filing the previous lawsuit


Input: 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979); United States v. Martin, 920 F.2d 345, 348 (6th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2038, 114 L.Ed.2d 122 (1991). The Court must review the evidence in the light most favorable to the prosecution to determine if each element of the crime was established beyond a reasonable doubt. Id. The fact that the evidence was circumstantial does not render it insufficient. Spalla v. Foltz, 788 F.2d 400, 402 (6th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986). Furthermore, “[i]t is the province of the factfinder ... to weigh the probative value of the evidence and resolve any conflicts in the testimony.” Neal v. Morris, 972 F.2d 675, 679 (6th Cir.1992); see also Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir.1985) (<HOLDING>). The elements of second-degree murder are (1) Holdings: 0: recognizing great deference due district courts credibility findings because it alone can observe variations in demean or and voice bearing on witness veracity 1: holding the resolution of questions regarding credibility and the weight given to testimony is a function of the family court judge who heard the testimony 2: holding that the jurys resolution of questions of credibility and demean or  is entitled to special deference  3: holding that the credibility determinations of hearing officers are afforded special deference 4: recognizing aljs credibility assessment is entitled to great weight and deference


Input: in question was equipped with two emergency stop buttons, located at the top and bottom of the escalator, respectively. When either button is pushed, if the escalator is functioning as intended, the escalator will stop. The buttons are safety devices designed to stop the escalator quickly should a hand, foot, or article of clothing become caught; thus, ready accessibility to the buttons is only sensible. We cannot say that the escalator would not stop in the absence of Appellees’ negligence because the escalator would also stop whenever any person pushed one of the emergency stop buttons. The record is silent as to whether anyone did, in fact, push one of the stop buttons, but this is of little concern. The facts need not show that a stop button definitely was pushe 81-82 (1967)(<HOLDING>). In the present case, we must necessarily Holdings: 0: holding authority to control limits duty to control 1: holding defendants control not exclusive where customers had access to soda bottles for approximately two months before one bottle inexplicably shattered 2: holding defendants control not exclusive where thousands of customers had access to revolving stools every week 3: holding defendants control not exclusive where customers had access to selfservice washing machines 4: holding that the remedies are exclusive


Input: outbreak of gout, a chronic condition from which he suffered, and that this was the cause both of the pain he was experiencing and his difficulty in putting weight on the leg. At most, prior to the day of his release, a reasonable jury could only find that defendants did not contact medical professionals to examine plaintiffs gout outbreak — a condition with which plaintiff, as a chronic gout sufferer, would probably have been more familiar than the jailers. The court has scoured the federal reporters and has found not a single case in which a gout outbreak, alone, was held to constitute a serious medical condition requiring jailers to afford a detainee immediate medical attention. Cf. Moore v. Bennette, 97 Fed.Appx. 405, 407 (4th Cir.2004), as modified by 517 F.3d 717 (4th Cir.2008) (<HOLDING>) (emphasis supplied); Kaminsky v. Rosenblum, Holdings: 0: holding plaintiff had sufficiently stated such a claim of deliberate indifference to his medical needs with regard to his hepatitis c condition his pancreatic condition and the gout in his hand 1: recognizing a state doctor may violate a detainees right to substantive due process by exhibiting deliberate indifference to his serious medical needs 2: holding plaintiff stated claim in his individual capacity 3: holding that deliberate indifference to prisoners medical needs is cruel and unusual punishment 4: holding that a sentence of incarceration would constitute deliberate indifference to defendants medical needs


Input: to be vigilant in the protection of its own interests; that party must bring its action in a timely fashion or run the risk of forfeiting the opportunity to obtain redress. In sum, we are satisfied that the Commission’s view of § 45-2516(e), and its application to rent ceilings, is consistent, well-established, and reasonable. Because petitioners did not file a timely challenge to the June 1986 rent ceiling adjustment, their present action is foreclosed. Affirmed. 1 . The Rental Housing Act confers primary jurisdiction over rent overcharge petitions upon the Rent Administrator, the designated head of the Rental Accommodations and Conversion Division (RACD). See D.C.Code §§ 45-2513(a), - 2514(c), -2526(a) (1996); Drayton v. Poretsky Management, Inc., 462 A.2d 1115, 1120 (D.C.1983) (<HOLDING>). 2 . Petitioners asserted, “the record shows Holdings: 0: holding that where a superior court judge was named a defendant in an action for a writ of mandamus the prosecuting attorney is the proper court representative of the superior court judge 1: holding the fact remains however that such standard appears to be the law of this state as enunciated in the decisions of the court of appeals discussed previously unless those decisions are either explained away or overruled by the court of appeals itself this court must follow what a majority of its members discern to be the precept to be drawn from them ie proof of fraud in a civil action either in law or in equity must be clear and convincing only the court of appeals could disabuse of that notion 2: holding that superior court judge may not undertake to adjudicate the validity of a rent increase but rather must stay any pending action to await the rulings of the rent administrator and if appeals are taken of the commission and this court 3: holding superior court lacked authority to remand to commission 4: holding that the appeals court may affirm the ruling of the district court on any basis which the record supports


Input: that claim 1 is broader than its dependent claims and does not contain the dependent limitations. See RF Delaware, Inc. v. Pacific Keystone Techs., Inc., 326 F.3d 1255, 1263 (Fed.Cir.2003). Bosch relies on the preferred embodiment described in the specification for its proposed construction. Bosch, however, does not point to any specific language in the specification requiring that the “power conversion circuit” contain the limitations of the preferred embodiment. Nor does Bosch point to any express disclaimer or disavowal of “power conversion circuits” other than those taught in the preferred embodiment. The Court declines to incorporate limitations from the preferred embodiment into the plain claim language. See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1370 (Fed.Cir.2003) (<HOLDING>). The prosecution history of the ’059 patent Holdings: 0: holding that the district court should have quashed an indictment without requiring the target to show prejudice because the district attorney improperly exercised control over the selection and excusal of grand jurors and the defendant brought this to the attention of the district court before trial 1: holding that the district court is limited to considering the administrative record in reviewing the denial of benefits under an erisa plan 2: recognizing that the power of disallowance of claims conferred on the bankruptcy courts embraces the rejection of claims in whole or in part according to the equities of the case and emphasizing that a bankruptcy court may therefore limit the amount of claims in view of equitable considerations 3: holding that when a court of appeals has jurisdiction on interlocutory appeal the scope of appellate review is not limited to the precise question certified by the district court because the district courts order not the certified question is brought before the court 4: holding that the district court improperly limited the claims according to the preferred embodiment


Input: of Water and Soil Resources (BWSR). The district’s licensing requirement was considered and approved by the BWSR, the state entity with oversight authority. Based on this record, the water shed district’s decision to adopt a licensing requirement was a policy-based decision protected by statutory discretionary immunity under Minn.Stat. § 466.03, subd. 6. II. A municipality is also immune from liability arising from “ [a]ny * * * act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid * * * rule.” Minn.Stat. § 466.03, subd. 5 (1996). Landview argues that due care is a fact question that precludes summary judgment, relying on Boop v. City of Lino Lakes, 502 N.W.2d 409 (Minn.App.1993), review denied (Minn. Sept. 10, 1993). See id. at 411 (<HOLDING>). However, there is no conflicting evidence in Holdings: 0: holding that the reasonableness of a defendants efforts in discharging a duty of care is a question for the trier of fact when the record does not permit summary judgment 1: holding that estoppel was a question of fact 2: holding question of citys exercise of due care in enforcement of ordinance was question of fact and inappropriate for summary judgment 3: holding it is a question of fact 4: holding that generally the question of waiver and estoppel is a question of fact


Input: to consider evidence of Clemons’s IQ when sentencing him to death. Counsel stated that the Supreme Court of the United States' holdings in Tennard and Smith require the circuit court to investigate and find as mitigating any evidence indicating that a capital defendant has a low IQ. Clemons did not raise this claim in the circuit court. In his Rule 32 petition, he asserted only that the "jury did not hear and was therefore unable to consider and give effect to his mitigating evidence of low intelligence and mental retardation." (C. 20.) Because Clemons’s allegation that the circuit court was required to find and consider mitigating evidence relating to his IQ was not raised in his Rule 32 petition, that claim is not properly before this Court. See Ex parte Clemons, 55 So.3d at 351 (<HOLDING>); Ex parte Linnell, 484 So.2d 455, 457 Holdings: 0: holding that appellate courts may not on appeal from the dismissal of a rule 32 petition consider claims not raised in the rule 32 petition 1: holding that because the petitioner had already filed a rule 371 petition he was barred from submitting a subsequent petition under that rule and his petition was subject to dismissal on that basis regardless of the label he placed on it 2: holding that where the petitioner alleges that he failed to receive notice of the dismissal of his rule 32 ala rcrim p petition in time to effect a timely appeal therefrom and the events about which the petitioner complains all occurred before june 1 2005 the effective date of the amendment to rule 32 providing a different remedy for obtaining an outoftime appeal from the dismissal of a rule 32 petition a petition for a writ of mandamus is the only appropriate remedy 3: holding that a similar claim in a rule 32 petition was procedurally barred because it was raised at trial and because it was raised on direct appeal 4: recognizing that rule 32 is a postconviction remedy


Input: motion to dismiss was decided — the estate tax legal landscape continued unchanged, but it was undergoing intense political scrutiny. However, when the reconsideration motion was decided in February 2011, the estate tax consequences for 2011 and 2012 were firmly (if newly) adjusted. Given the narrow window of Mr. Kellogg’s life expectancy, it was not unduly speculative to recognize that but for defendants’ alleged tortious conduct he might have survived to a point that his estate’s tax liability was eliminated, resulting in a tangible economic advantage to his heirs. The amendatory provisions control the disposition of this case. Stancil v. ACE USA, 418 N.J.Super. 79, 82, 12 A.3d 223 (App.Div.) (citing Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 235, 645 A.2d 89 (1994) (<HOLDING>)), certif. granted, 207 N.J. 66, 23 A.3d 338 Holdings: 0: holding that the language of the statute and the courts duty to apply the statute as written requires the court to interpret the statute to apply when the prisoner is sentenced without regard to the institution where the prisoner is incarcerated after the sentencing 1: holding that under the timeofdeeision rale courts ordinarily apply the statute in effect at the time of the decision in order to effectuate current policy 2: holding that a defendants sentence is controlled by the law in effect at the time he committed the offense 3: holding that the relevant time is the time of the employment decision 4: holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court


Input: of evidence’ is insufficient to defeat summary judgment.”); Fed. R.Civ.P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials....”). 8 .U.S. Bank Nat’l Assoc. v. U.S. Rent a Car, Inc., 2011 WL 3648225 at *3 (D.Minn. Aug. 17, 2011) (not reported) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 9 . Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 578, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). 10 . Nessan v. Lovald 932) (<HOLDING>); Feucht v. Pierce, 2006 WL 3354507 at *4 Holdings: 0: holding that any defect in removal procedure must be cured within the 30day removal period or it is fatal to the removal and defendants failure to attach exhibits to the notice of removal within that time required remand 1: holding that the appellant had failed to overcome the rule regarding abandonment for this reason 2: holding that the relevant intent is not the intent to return ultimately but the intent to return to the united states within a relatively short period 3: holding that removal for temporary employment with intent to return was not abandonment 4: holding that the general rule is that temporary absence from the premises will not itself cause an abandonment of the homestead but to retain the homestead exemption one leaving the homestead must in good faith intend to return albeit the intent to return need not be at any particular time in the future


Input: a year from sentencing, by January 31, 2005, will require him to save from his monthly income, draw as much as he can from available sources, perhaps gather funds which he earlier transferred to his companion, son or daughter, or perhaps liquidate assets. Jaffe argues that he will certainly have to sell his Florida condominium, even though Florida’s homestead exemption prevents creditors from distraining residential properties, however lavish. Fla. Const. Art. X, § 4(a). But that is not my order. While he may determine that he will satisfy his restitution obligations by selling his homestead, I do not require that, and instead I leave him free to choose his manner of making restitution. See United States v. Kalani, 2003 WL 21222546, 2003 U.S. Dist. Lexis 8762 (S.D.N.Y. May 23, 2003) (<HOLDING>). Jaffe argues that he will have no choice but Holdings: 0: holding that where the government has not presented evidence at the hearing concerning the appropriate amount of restitution    the imposition of the restitution order constitutes plain error 1: holding that equitable restitution is available but that legal restitution is not 2: holding that a district court may order restitution despite a settlement agreement 3: holding that a lumpsum restitution order is valid where it does not specify the source of the restitution or direct liquidation of specific assets and the defendant may have other sources of payment 4: holding no restitution hearing is mandated when defendant did not object to order of restitution or request a hearing


Input: premised on the requirement that some voters pay a poll tax. Id. The Court emphasized that the issue was not whether Virginia could require all voters to file a certificate of residency each year, but that voters were required to file such certificate only if they refused to pay a poll tax. Id. at 542, 85 S.Ct. 1177. Thus, their right to vote was “abridged ... by reason of failure to pay the poll tax.” Id. Here, voters do not have to choose between paying a poll tax and providing proof of citizenship when they register to vote. They have only to provide the proof of citizenship. Nor does Arizona’s new law “make[ ] the affluence of the voter or payment of any fee an electoral standard.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (<HOLDING>). Plaintiffs have demonstrated little Holdings: 0: holding that state may not compel political party to allow nonmembers to vote in its primary elections 1: holding that a state may not condition voting in state elections on payment of a tax 2: holding that ujnder the plain meaning of the voting rights act the state of south dakota is an entity that must secure preclearance from the attorney general or bring a declaratory judgment action for review of a law passed by the state legislature that impacts voting in covered counties 3: holding that state may not compel political parties to allow nonmembers to vote in primary elections 4: holding that the twentyfourth amendment abolished the poll tax as a requirement for voting in federal elections


Input: line of cases for an expert "to express an opinion as to whether a child was truthful when making statements to the expert about sex abuse," Ramsey, 782 P.2d at 485, defense counsel was objectively deficient in eliciting testimony from Johnson indicating that he believed Daughter's allegations against Marble were truthful. At the core of Marble's argument is the notion that the presumption of adequate assistance is rebutted by a mere showing that defense counsel's acts or omissions amounted to plain error. We disagree. An inquiry into whether counsel was constitutionally ineffective is a separate and distinet inquiry from plain error review, especially where the defendant has conceded that trial counsel invited the alleged errors. See State v. Dumn, 850 P.2d 1201, 1220 (Utah 1998) (<HOLDING>); State v. Bullock, 791 P.2d 155, 159 (Utah Holdings: 0: holding that where trial counsel was not ineffective appellate counsel was not ineffective for failing to raise claim of ineffectiveness of trial counsel 1: holding where defendant challenged jury instruction and also claimed ineffective assistance of counsel based upon his counsels failure to object to instruction because we find no error in the instructions defendants claim for ineffective assistance of counsel must also be rejected 2: holding that counsels assistance was not ineffective even though counsel used the wrong version of the federal sentencing guidelines because counsels performance was based upon a reasonable decision to offer a guilty plea in exchange for a lighter sentence 3: holding that where counsels decision in leading the court into error falls below the standard of reasonable professional practice we may find that counsel was ineffective 4: recognizing in ineffective assistance of counsel claims a presumption that counsels conduct falls within the wide range of reasonable professional assistance


Input: DOH Defendants “deprived [her] of her First Amendment right to associate with persons of her own choosing” by “illegally transferring” her to the Homestead House. Complaint ¶ 144, at 36. A.M. characterizes this transfer as a violation of her First Amendment right to expressive association. See Response at 4. The Individual DOH Defendants argue that A.M.’s expressive-association claim must fail, because A.M. did not properly allege “that she has been deprived of her right to association based on the pursuit of speech or advocacy of political, social, economic, religious, or cultural values.” Reply at 3-4. The First Amendment protects political expression manifested through conduct as well as through speech. See Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (<HOLDING>) (citation omitted)(internal quotation marks Holdings: 0: holding that a law did not violate the first amendment because it did not burden the exchange of ideas and noting most laws restricting a states initiative process would not implicate the first amendment 1: holding that the burning of an american flag is conduct sufficiently imbued with elements of communication to implicate the first amendment 2: holding that withdrawal of aclus paralegals contact visits with inmates even if retaliatory was not sufficiently adverse to the aclu to implicate first amendment right to petition 3: holding that burning the american flag was protected expressive conduct and stating we have not permitted the government to assume that every expression of a provocative idea will incite a riot but have instead required careful consideration of the actual circumstances surrounding such expression  emphasis added 4: holding that ban on unauthorized practice of law did not implicate the first amendment


Input: oil transactions do not negate good faith. Regardless of any alleged ulterior motive to the transactions, the Downstream Purchasers were legally bound to pay for the oil purchased from the Debtors on the 20th of the following month pursuant to their respective agreements. Had the oil derivatives market stabilized, the Downstream Purchasers might not have been able to offset or net liabilities against receivables owed to the Debtors because the Debtors would not have defaulted. Instead, the Downstream Purchasers would have been legally obligated to provide payment in full for the oil purchased, and there is nothing in the record to suggest they would not have done so. Similarly, there is no evidence to indicate that these transactions were a sham. See CIT Group, 2012 WL 4603049, at *8 (<HOLDING>). Accordingly, the Court finds that there is no Holdings: 0: holding that unequivocal examples of racial animus included instances when plaintiff was instructed to keep his black ass off the phone and was called a black son of a bitch and a black motherfucker 1: holding that the transaction must be fair and equitable and in good faith 2: holding that articulable facts sufficient to support a stop included a telephone call that two black males were selling drugs at a particular location discovery of the juvenile at that location with another black male and the juveniles nervous body reflexes 3: holding that commodities was a good faith purchaser and stating that commodities arrangement was not a sham black diamond delivered coal to commodities and commodities faithfully paid nearly fiftymillion dollars for its purchases until black diamonds bankruptcy 4: holding that the white defendants association with a black defendant was not sufficient to give them standing to join in the black defendants batson challenge


Input: 931 F.2d 554, 557 (9th Cir.1991); Stanley v. United States, 140 F.3d 1023, 1027 (Fed.Cir.1998) (dicta); Bilzerian v. United States, 86 F.3d 1067, 1069 (11th Cir.1996) (per curiam) (dicta); Clark v. United States, 63 F.3d 83, 87 (1st Cir.1995) (dicta); O'Bryant v. United States, 49 F.3d 340, 345-47 & n. 8 (7th Cir.1995) (dicta). Because only tax liabilities may be assessed as a deficiency, Pacific Gas and Elec. Co. v. United States, 417 F.3d 1375, 1379, 1381-83 (Fed.Cir.2005); United States v. Frontone, 383 F.3d 656, 659-61 (7th Cir.2004), Beer necessarily held that an erroneous rebate refund revives tax liability. See also Brookhurst, 931 F.2d at 557-58 (recognizing that an erroneous rebate refund makes a previously paid tax liability “unpaid”); Frontone, 383 F.3d at 657, 659-61 (<HOLDING>); cf. IRC § 6211 (counting (presumably Holdings: 0: holding that a tax refund claim must be dismissed if the principal tax deficiency has not been paid in full 1: holding refund of discriminatory tax required because predeprivation remedy not clearly available for tax years at issue 2: holding that after the then twoyear limitation period for the filing of a refund application had passed the state was entitled to assume that its tax revenues need not be refunded under any circumstance 3: holding that because the amount of the debtors obligation to the government exceeded the amount of their income tax refund the refund did not become property of the estate and could not be exempted 4: holding that an erroneous rebate refund revives tax liability because the ultimate source of the irss claim to the amount erroneously refunded is a tax owed


Input: [I]t has long been settled that when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person, the third person takes the property subject to the trust, unless he has purchased the property for value and without notice of the fiduciary’s breach of duty. Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 250, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) (applying common-law principles in the interpretation of the Employee Retirement Income Security Act of 1974) (citations omitted). See also, e.g., Cardwell v. Cheatham, 39 Tenn. (2 Head.) 14 (1858) (stating that a bona fide purchaser for value without notice of a breach of trust takes free of the trust) (citations omitted); Covington v. Anderson, 84 Tenn. (16 Lea) 310 (1886) (<HOLDING>). On the facts presented, which indicate that Holdings: 0: 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 1: holding that a constructive trust had arisen on a third partys house due to her use of trust assets which had been diverted by the paca trustee to pay the mortgage and finding that the trust beneficiary plaintiffs are entitled to a lien on the property in the amount of the diverted funds 2: holding that a trustee properly withheld trust payments owed to a prior trustee who had misappropriated trust funds 3: holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust 4: holding that the beneficiary of a trust was not the real party in interest regarding rights owned by the trust


Input: is affirmed. AFFIRMED. 1 . 31 U.S.C. § 483a (1976). 2 . 30 U.S.C. § 185 (1976). 3 . 43 C.F.R. § 2802.1-2 (1976). 4 . Alaskan Arctic Gas Pipeline Co. v. United States, 9 Cl.Ct. 723 (1986). 5 . Alyeska Pipeline Serv. Co. v. United States, 224 Ct.Cl. 240, 624 F.2d 1005 (1980) (Alyeska I). 6 . 31 U.S.C. § 483a (1976). 7 . 30 U.S.C. § 185(l) (1976). 8 . 43 C.F.R. § 2802.1-2 (1974). 9 . 43 C.F.R. § 2802.1-2 (1976). 10 . See Brant v. United States, 220 Ct.Cl. 65, 597 F.2d 716, 718 (1979); Carrier Corp. v. United States, 208 Ct.Cl. 678, 534 F.2d 244, 249 (1976). 11 . See Reid v. Department of Commerce, 793 F.2d 277, 281-82 (Fed.Cir.1986) (citing examples of literal statutory interpretation that lead to incongruous results); Barber v. United States, 230 Ct.Cl. 287, 676 F.2d 651, 655 (1982) (<HOLDING>). 12 . See South Corp. v. United States, 690 Holdings: 0: recognizing that legislative history is not used to create ambiguity where statutory language is clear 1: recognizing that a court may turn to legislative history when literal statutory language is unclear 2: recognizing that courts can look beyond an unambiguous statute and consult legislative history to divine its meaning if the literal application of the statutory language produces an outcome that is demonstrably at odds with clearly expressed congressional intent to the contrary or if the literal application of the statutory language results in an outcome that can truly be characterized as absurd ie that is so gross as to shock the general moral or common sense  3: recognizing a court must look beyond the plain language of a statute when the literal interpretation would lead to an absurd result 4: holding that even where there are  contrary indications in the statutes legislative history we do not resort to legislative history to cloud a statutory text that is clear


Input: (factor one: Individualized on the basis of assessment and performance); Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (IDEA requires schools to provide “educational instruction specially designed to meet the unique needs of the handicapped child.’’); 34 C.F.R. § 300.114(a)(2) (factor two: Least Restrictive Environment); DeVries v. Fairfax Cnty. Sch. Bd., 882 F.2d 876, 878 (4th Cir.1989) (“Mainstreaming of handicapped children into regular school programs ... is not only a laudable goal but is also a requirement of the Act.”); 34 C.F.R. § 300.321-322 (factor three: collaborative, mandating the IEP team include the parents and representatives from the school); Sch. Comm, of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (<HOLDING>); 34 C.F.R. § 300.324(b)(1)(h) (factor four: Holdings: 0: holding that the childs proximity to the initial reported disturbance the childs dress in gangattire and the childs gangwhistle and the fact that another juvenile in the area had been found carrying a concealed weapon did not provide the necessary individualized suspicion to justify the search of the child in the school parking lot 1: holding that the idea repeatedly emphasizes the participation of the parents in developing the childs educational program and assessing its effectiveness 2: holding that the emotional benefits to the parents resulting from the childs birth could be applied to offset any damage award 3: holding the foster parents responsible for support where the childs natural parents are unknown and noting that an earlier new york case held that an agreement to adopt did not terminate the natural parents duty of support but that in that earlier case the natural parent was alive and capable of providing for the child 4: holding that a childs interest supercedes that of its natural parents


Input: jurisdiction to arbitrate the dispute because neither Fall Grain nor Agriservices was a member of the NGFA at the time the contracts were entered. This argument fares no better than the argument made in Argiris. There is nothing in the language of the NGFA’s arbitration rules to suggest that one party must be a member of the organization at the time of contract formation. The language simply provides that the NGFA “may properly consider a case involving a dispute between ... [ajctive members of the National and nonmembers, by consent of both parties.” In the absence of explicit language to the contrary, NGFA’s jurisdiction could reasonably be established at the point when The Andersons commenced arbitration. See Asadourian v. Kuni German Motors, LLC, 2007 WL 4388490, at *4 (D.Or.2007) (<HOLDING>). There is no factual dispute that The Holdings: 0: recognizing separate corporate identity of parent despite evidence that parent was alterego of its subsidiary and was being sued for acts of its subsidiary 1: holding that a parent company was not liable for aiding and abetting a breach of fiduciary duty by its subsidiary because the parent company was not a stranger to the business relationship between its subsidiary and the plaintiff giving rise to and underpinning the contract 2: holding that american subsidiary of a japanese parent had no treaty defense because the subsidiary was not a company of japan 3: holding parent company bound in subsequent action by res judicata effect of judgment against subsidiary 4: holding that in employment dispute where corporate subsidiary no longer existed at the time arbitration complaint was filed the plaintiff was bound to arbitrate with the parent company that survived


Input: 24.035 motion, however, the alleged Brady violation must be such that it supports a conclusion that the movant would not have pled guilty had he been provided with the undisclosed evidence. 1. Nondisclosure of mere impeachment evidence is insufficient to invalidate an otherwise voluntary plea. Although “[t]he principles of Brady are applicable to the entry of a plea of guilty,” Scroggins, 859 S.W.2d at 707, they are applicable only to the extent that the nondisclosed evidence is both exculpatory and material; a post-guilty-plea claim involving the nondisclosure of mere impeachment evidence (even if it might have been material in the context of a trial) is insufficient to invalidate an otherwise voluntary plea. U.S. v. Ruiz, 536 U.S. 622, 628-33, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (<HOLDING>). Here, the prior conviction evidence Wallar Holdings: 0: holding that a criminal defendant can waive important constitutional rights by entering into a plea bargain 1: holding that defendant had ample opportunity to crossexamine government witness including the terms of a plea agreement and that further impeachment was speculative and minimal at best 2: holding the government has an affirmative duty to disclose exculpatory evidence to a criminal defendant 3: holding that the appropriate sanction was to require the defendant to disclose the nature of the agreement with the witness 4: holding that the constitution does not require the government to disclose impeachment evidence prior to entering a plea agreement with a criminal defendant


Input: He did not provide all of the documents responsive to the request until August 27, 1993, more than seven months after the demand was made. Moskowitz therefore violated his duty of disclosure under ERISA and his conduct gives rise to liability under § 1132(c)(1). Because the award of penalties is committed to the sound discretion of the Court, I must determine whether Moskow-itz’s conduct warrants imposition of such a penalty. In determining whether to assess a penalty under § 1132(c)(1) courts have considered such factors as bad faith or intentional conduct on the part of the administrator, the length of the delay, the number of requests made and documents withheld, and the existence of any prejudice to the participant or beneficiary. See Ziaee v. Vest, 916 F.2d 1204 (7th Cir.1990) (<HOLDING>), cert. denied 499 U.S. 959, 111 S.Ct. 1581, Holdings: 0: holding that in exercise of its discretion district court may consider factors such as number of requests made and number of documents withheld 1: holding that district court may consider documents referred to in plaintiffs complaint and central to his claim 2: recognizing that district court in exercise of its rule 16b discretion may consider other relevant factors including in particular whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants 3: holding failure to exercise discretion is abuse of discretion 4: holding that a district court may depart upward based upon a significant number of fraudulent schemes conducted by the defendant


Input: erred by failing to follow the dictates of Florida Rule of Criminal Procedure 3.172(c). Specifically, Marckman argued that the court failed to (1) determine if his plea was voluntary, (2) fully state the charges to which Marckman was pleading, (3) inform Marckman of the maximum penalty for the crimes, and (4) discern whether Marckman understood the meaning of the habitual offender designation. The postconviction court summarily denied relief on this claim based on its finding that claims alleging trial court error are not cognizable under rule 3.850 because they could have been raised on direct appeal. On appeal, Marckman correctly argues that his challenges to the voluntary nature of his plea are cognizable under rule 3.850. See Mungen v. State, 932 So.2d 1229, 1230 (Fla. 2d DCA 2006) (<HOLDING>); Youngblood v. State, 930 So.2d 852, 852 (Fla. Holdings: 0: holding that an involuntary plea claim is cognizable in a rule 3850 motion 1: holding defendant was not barred from raising sentencing issue in rule 3850 motion by virtue of prior rule 3850 motion which did not raise any sentencing issues 2: holding that claim that plea was involuntary because the court failed to comply with rule 3172c was cognizable in a rule 3850 motion 3: holding that defendants 3850 motion for postconviction relief was procedurally barred as successive where the defendants current rule 3850 motion is one that could have or should have been raised in his first rule 3850 motion 4: holding that rule 3850 motion was not time barred where the order did not place any time limitation on when the defendant would refile his rule 3850 motion


Input: the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. See 28 U.S.C. § 636(b)(1). However, pursuant to Fed.R.Civ. P. 72(b), “[ajbsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[Failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (<HOLDING>); Lewry v. Town of Standish, 984 F.2d 25, 27 Holdings: 0: holding that failure to object timely to a magistrates report operates as a waiver of any further judicial review of the magistrates decision 1: holding that objections are required to challenge magistrate judges findings as well as magistrates failure to make additional findings 2: holding an argument waived on appeal for failure to raise the issue in objection to the magistrates recommendation 3: holding that errors of law in a magistrates findings and recommendations pursuant to section 636b1b can be challenged on appeal even in the absence of the filing of objections in the district court 4: holding that objections are required when challenging findings actually set out in magistrates recommendation as well as magistrates failure to make additional findings


Input: exists and, if so, (2) whether the specific dispute falls within the scope of that agreement. Dean Witter [Reynolds, Inc. v. McDonald], 758 So.2d [539,] 542 [ (Ala.1999) ]. “Procedural arbitrability,” on the other hand, involves questions that grow out of the dispute and bear on its final disposition, e,g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (“ ‘ “procedural” questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide’ ”); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964)(<HOLDING>).’ “Brasfield & Gorrie, L.L.C. v. Soho Holdings: 0: holding that an arbitrator should decide whether the steps of a grievance procedure were completed where those steps were prerequisites to arbitration 1: holding that the trial court not the arbitrator must decide a challenge to an arbitration provision based on public policy 2: holding that upon vacating an arbitration award the court has the discretion to remand to the same arbitrator or different arbitrator 3: holding that where a contract containing an arbitration clause is challenged as unconscionable those disputes should first be resolved by an arbitrator 4: holding that questions of procedure are for the arbitrator not the courts


Input: decision. C. Whether the RFC accounts for all of Mr. Candelario’s limitations. Mr. Candelario testified that, about one year prior to the June 2002 hearing, he began to need to lie down five or six times a day for up to one hour each time. See Aplt.App. at 374. When the ALJ asked the VE to assume a person had to lie down five or six times a day for up to one-half hour, a lesser limitation, the VE testified that none of the jobs he identified would be available. As the ALJ recognized, however, the asserted limitation began after the relevant time period. Even if it was relevant, the ALJ explained that the limitation was inconsistent with the record evidence. Accordingly, he properly disregarded the VE’s testimony on this point. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir.1993) (<HOLDING>). Mr. Candelario also takes issue with the Holdings: 0: holding that an alj is entitled to rely on vocational experts testimony that is based on assumptions that are supported by evidence in the record 1: holding that testimo ny premised on limitations unsupported by the evidence is not binding on an alj 2: holding that the alj properly relied on medical evidence undermining claimants subjective assessment of limitations 3: holding that arbitration award is binding on the parties 4: recognizing that the findings of the circuit court on factual issues arising on a motion to quash service of process for lack of jurisdiction are binding on the appellate court unless wholly unsupported by the evidence or controlled by error of law


Input: losses ... without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3663A(f)(l)(A). At this first stage, the district court lacks “any discretion to contemplate the defendant’s financial situation.” United States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002). Second, after the district court establishes the total amount of restitution owed, the district court considers the defendant’s financial resources to create a schedule for restitution payments. 18 U.S.C. § 3663A(f)(2). At this second stage, the court should consider the defendant’s finances. However, even then, the defendant bears the burden of demonstrating his financial condition, and the court can rely on the probation report and need not make independent findings. See Jones, 289 F.3d at 1266 (<HOLDING>). In contrast to Edwards’s contention, the MVRA Holdings: 0: holding that it was not wrong for the administrator to rely on the findings of an independent reviewing physician 1: holding that a district court can rely on the probation report and is not required to make independent findings regarding the defendants financial resources 2: holding a sentencing court is not required to grant probation 3: holding that judge could rely on presentenee report to determine that defendant was on probation at the time of the offense but declining to base this holding the theory that probation is derivative of criminal history 4: holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any findings of fact regarding it


Input: selling airplanes. Id. at 448. Citing comment f to section 402A, the court held that Ozark Airlines was an intermediate owner engaged in the business of providing scheduled commercial air transportation. Id. As such, its sale of surplus aircraft was merely incidental to its business. Id. at 448-49. See also Counts v. MK-Ferguson Co., et al., 680 F.Supp. 1343, 1347 (E.D.Mo.1988), aff'd 862 F.2d 1338 (8th Cir.1988) (section 402A liability does not extend to occasional seller). Other jurisdictions that have codified or adopted section 402A of the Restatement (Second) of Torts have routinely found that the isolated sale of a product by an occasional seller is not subject to the rule of strict liability. See Lancaster v. W.A. Hartzell & Associates, Inc., 54 Or.App. 886, 637 P.2d 150 (1981) (<HOLDING>); Allen v. Nicole, Inc., 172 N.J.Super. 442, Holdings: 0: recognizing strict product liability actions 1: recognizing the significance of control in strict products liability 2: holding that notice not required because cercla is a strict liability statute 3: holding that strict liability did not apply to the isolated sale of a gallon of wood stain by a merchant that sells cabinets 4: holding warranty liability and strict liability were both shown by proof a product was defective


Input: responded by commenting on his state of inebriation). That Goulet mentioned the connection between the drugs and the money and indicated that there was other evidence tying the defendant to the drugs did not turn his explanations of administrative and other routine matters into the functional equivalent of interrogation. See Spencer, 149 N.H. at 625-26 (showing defendant bank surveillance photographs in response to defendant’s claims of innocence and repeated questions about the basis for her arrest was not the functional equivalent of interrogation). Similarly, Goulet’s responses to the defendant’s direct questions about what the police were going to do with him and about the bail process did not constitute interrogation or its functional equivalent. See Gribble, 165 N.H. at 12 (<HOLDING>); Briggs, 273 F.3d at 740-41 (holding police Holdings: 0: holding that leaning towards the death penalty is not the same as an automatic vote for the death penalty 1: holding that the district court did not err in admitting evidence of an allegedly coerced interrogation where the taped interrogation was played for jurors and the defendant crossexamined the witness at length about the interrogation 2: holding that an officer engaged in the functional equivalent of interrogation when he asked a suspect to identify clothing found at a crime scene after the suspect was in custody and had invoked his right to silence regardless of the officers intentions 3: holding it was not the functional equivalent of interrogation when police officer answered defendants questions about his job the death penalty or murder charges in general 4: holding that the death penalty is unconstitutional as applied to juvenile defendants


Input: Election Agreement. Plaintiff’s Amended Complaint, Exhibit D. Plaintiff also contends that “there exists a federal basis for recovery when a party breaches [a Stipulated Election Agreement] entered into for purposes of furthering [the] federal policy” of supporting free and fair representation elections. Plaintiff’s Objections at 5. As the Report explains, a union and an employer may enter into a Stipulated Election Agreement as part of the representation election process. Report at 14. Because the Stipulated Election Agreement is part of the election process, disputes regarding the Agreement implicate representational issues and therefore fall within the exclusive jurisdiction of the Board. Report at 13-14; see NLRB v. Paper Manufacturers Co., 786 F.2d 163, 167 (3d Cir.1986) (<HOLDING>). Plaintiff cites no authority for the Holdings: 0: holding that it may be decided as a matter of law 1: holding that constitutional questions will not be decided if case can be decided on other grounds 2: holding that representation issues are matters relegated to the board representation issues may not be decided by contract and thus may not be decided by an arbitrator 3: recognizing in a takings case that issues of statutory interpretation and other matters of law may be decided on motion for summary judgment 4: holding that issues decided by an intervening supreme court case need not be identical to be controlling


Input: in its discretion may allow the recovery of full costs by or against any party.... Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the cost. 17 U.S.C. § 505. The Supreme Court has provided a list of non-exclusive factors a court may consider in determining whether either party should receive attorney fees, including, “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (citing with approval Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir.1986) (<HOLDING>)); see also Quinn v. City of Detroit, 23 Holdings: 0: holding rookerfeldman inapplicable where the district court could and did find that the plaintiffs constitutional claims had merit without also finding that the state court erred 1: holding that there would be no exception to american rule on attorney fees for legal malpractice claims 2: holding that district court could impose attorney fees where plaintiffs lawsuit patently had no legal merit 3: holding that the plaintiffs claims for assault and battery were patently without merit since the officers actions under the circumstances were justified 4: holding attorney lacked standing to challenge amount of attorney fees awarded plaintiffs not parties to the appeal


Input: disclosure of its content and by failing to provide adequate notice and a meaningful opportunity to respond. We apply the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See California ex rel. Lockyer v. Fed. Energy Regulatory Comm’n, 329 F.3d 700, 709 n. 8 (9th Cir. 2003) (explaining that, for procedural due process claims, the Mathews test is “a general test that applies in all but a few contexts”); Nat’l Council of Resistance of Iran v. Dep’t of State (NCORI), 251 F.3d 192, 208-09 (D.C.Cir.2001) (applying the Mathews test in a similar context); Am-Arab Anti-Discrimination Comm. v. Reno (ADC), 70 F.3d 1045, 1061 (9th Cir.1995) (same); see also Hamdi v. Rumsfeld, 542 U.S. 507, 528-29, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality) (<HOLDING>). Under the Mathews balancing test, we “must Holdings: 0: holding that the proper test for balancing national security interests with a persons due process rights is the mathews balancing test 1: holding that in performing the pickering balancing test the district court was proper in first assessing the value from the first amendment perspective of the employees speech 2: holding admissibility of polygraph evidence should be resolved under fedrevid 403 balancing test but reliability of polygraph test may be included to determine how probative particular polygraph test is 3: holding that where a party claims a document is privileged and the trial court fails to conduct an in camera review or balancing test the trial court has departed from the essential requirements of the law 4: holding that m  m produce properly applied the lear balancing test


Input: shooting in Sabana Seca, the community in which Millán resided and in which a number of people were killed — without following the procedure for “bring[ing] [a defendant’s] uncharged conduct into play.” United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990). But the record makes clear that the District Court was not suggesting that Millán was in any way responsible for the massacre, and so Millán’s argument rests on a mistaken premise. Moreover, we have made clear that, in considering the need for deterrence, see 18 U.S.C. § 3553(a)(2)(B), district courts may take into account not only the need for individual deterrence, but also the need for community deterrence within the defendant’s particular community. See United States v. Flores-Machicote, 706 F.3d 16, 22-23 (1st Cir. 2013) (<HOLDING>); Lozada-Aponte, 689 F.3d at 793 (noting that Holdings: 0: holding that the existence of racial bias in the community is relevant to a  2 claim 1: recognizing that district court in exercise of its rule 16b discretion may consider other relevant factors including in particular whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants 2: holding that only relevant factors must be considered 3: holding that the family court is required to consider all relevant factors in determining alimony 4: holding that a sentencing judge may consider communitybased and geographic factors and explaining that the incidence of particular crimes in the relevant community appropriately informs and contextualizes the relevant need for deterrence


Input: this case raises important issues of intergovernmental tax immunity. See Bank of New England, 986 F.2d at 602 n. 4.; see also Federal Reserve, 499 F.2d at 64 (emphasizing the federal nature of question being litigated). Defendant asserts that, even if the RTC/ FDIC itself could have brought suit in federal court, SN-1 is a private assignee of the RTC’s rights and interests, and does not inherit its federal instrumentality status. The Seventh Circuit, struggling with the interplay between FIRREA and the TIA, concluded that the TIA precluded federal jurisdiction over claims brought not by the RTC or a successor of the federal agency, but by a private party assignee of the federal government. See RTC Commercial Assets Trust v. Phoenix Bond & Indem. Co., 169 F.3d 448, 452 (7th Cir.1999) (<HOLDING>); see also North Georgia Elec. Membership Corp. Holdings: 0: holding one who claims tax exemption has burden of showing entitlement to exemption 1: holding act qualifies as exemption statute under exemption 3 2: holding that assignee of rtc could not assert exemption from tia 3: holding that there is no need to consider exemption 6 separately if information was compiled for law enforcement purposes because exemption 7c constitutes broader protection so any information falling under exemption 6 is covered by exemption 7c 4: holding a debtors claim for loss of consortium to be entitled to an exemption under the oklahoma exemption statute and collecting other bankruptcy decisions recognizing a debtor spouses loss of consortium as the basis for allowing an exemption under federal and various state exemption statutes