Input: the business records of Maxtron, Santos International, and United Investors related to criminal activity. Because the magistrate's probable cause finding included two separate determinations, we deem it necessary to engage in a two-step probable cause analysis. As a threshold matter, we must determine whether the magistrate had a substantial basis for her probable cause finding that evidence of illegal conduct would be found at the places specified in the warrant. See Thurman, $46 P.2d at 1260. Assuming the magistrate had a substantial basis for her initial probable cause det ) (concluding that an affidavit describing the defendants' scheme in detail, including personal observations of the crime, warranted a finding of probable cause); State v. Romero, 624 P.2d 699, 703-04 (Utah 1981) (<HOLDING>). Indeed, contrary to Norris's assertion, Holdings: 0: holding that a magistrate had a substantial basis to support a finding of probable cause because the affidavit recounted the alleged criminal activity in detail 1: holding that magistrate must have substantial basis for concluding that probable cause exists 2: holding that the defendant who filed a timely motion to suppress evidence based on an alleged fourth amendment violation in the district court but failed particularly to argue that the detectives affidavit was inadequate to provide the magistrate judge with probable cause waived his affidavit argument on appeal pursuant to fedrcrimp 12e 3: holding that a magistrate had a substantial basis for determining that probable cause existed where the supporting affidavit elaborated on the crime in detail 4: holding that the affidavit gave absolutely no indication that the fruits of criminal activity would probably be found at that location rendering the officers belief in probable cause based solely on the affidavit objectively unreasonable


Input: failed to exhaust administrative remedies on their claim that the Forest Service failed to properly monitor the population of MIS. I address only the Forest Service’s exhaustion claim as I conclude it is dispositive. The APA requires plaintiffs to exhaust' available administrative remedies before bringing their grievances to federal court. 5 U.S.C. § 704 (setting forth the APA’s exhaustion requirement); see also 7 U.S.C. § 6912(e) (requiring that plaintiffs “exhaust all administrative appeal procedures” before bringing an action against the Department of Agriculture); 36 C.F.R. Part 215 (establishing appeal procedures in cases involving Forest Service and requiring exhaustion prior to judicial review); Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (<HOLDING>). The doctrine of exhaustion “cuts down on the Holdings: 0: holding that because here the statutes in issue provide for judicial review via citizen suit provisions yet do not set forth a standard for that review judicial review is limited to apa review on the administrative record 1: recognizing that exhaustion of state administrative remedies is not required as a prerequisite to bringing an action pursuant to  1983 2: holding that under the apa exhaustion is a prerequisite to judicial review when expressly required by statute or when an agency rule requires appeal before review so long as the administrative action is made inoperative pending that review 3: holding that a courts authority to require exhaustion of administrative remedies in actions brought under the apa is limited when neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review 4: holding that judicial review under the apa is precluded when a remedy is available under a citizen suit provision of an environmental statute citations omitted


Input: § 1983.” Rancho Palos Verdes, 544 U.S. at 121, 125 S.Ct. 1453. But Congress did not provide a means of private redress here. And private enforcement of § 1396a(a)(23) in suits under § 1983 in no way interferes with the Secretary’s prerogative to enforce compliance using her administrative authority. Indeed, addressing a different subsection of § 1396a(a), the Supreme Court has held that the Medicaid Act’s “administrative scheme cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of § 1983.” Wilder, 496 U.S. at 522, 110 S.Ct. 2510. Wilder held that the Boren Amendment, which established a standard for Medicaid reimbursement of hospitals, nursing homes, and intermediate-care facilities, is enforceable under § 1983. Id. (<HOLDING>). Our conclusion finds support in decisions Holdings: 0: holding that 42 usc  1396aa13a which requires states to make reasonable reimbursement to providers was enforceable by the providers pursuant to section 1983 1: holding that person in 42 usc  1983 does not include states 2: holding that a state is not a person under 42 usc  1983 3: holding that 42 usc  1396aa13a is enforceable in a suit under  1983 4: holding that a state prisoner may not challenge the constitutionality of his conviction in a suit for damages under 42 usc  1983


Input: superfluous subsection (C)’s careful limitation to the Secretary’s failure to perform nondiscretionary duties under 16 U.S.C. § 1533, id. at 172, 117 S.Ct. 1154. Here, Claim V does not allege that the Service committed any act prohibited under § 1538 (“Prohibited Acts”). Rather, plaintiffs allege that the Service “violated” several aspirational provisions that govern how the Service implements the ESA and, by extension, CITES. See Am. Compl. ¶¶ 181-87. These are precisely the sort of “maladministration” claims that cannot be enforced through the ESA’s citizen-suit provision. See Bennett, 520 U.S. at 174, 117 S.Ct. 1154. This Court and others have recently applied Bennett to foreclose private enforcement of similar claims. See Marcum, 810 F.Supp.2d at 69-70, 2011 WL 3805666, at *11 (<HOLDING>); Conservation Force v. Salazar, 753 F.Supp.2d Holdings: 0: holding that the caption is entitled to considerable weight when determining who the plaintiffs to a suit are since plaintiffs draft complaints 1: holding unconscionable arbitration provision that applied to all claims brought by borrower in reverse mortgage contract but not claims brought by the drafting party the lender 2: holding that informal complaints to superiors about discrimination constitute protected activity 3: holding that plaintiffs complaints about wrongful permit denials could not be brought via the esas citizensuit provision 4: holding that underlying complaints filed by several plaintiffs all contained express allegations of property damage and that because all complaints arose from the same set of circumstances the allegations in any single complaint can be inferred in the other complaints


Input: of the United States. 26 U.S.C. § 6330(d). The implementing regulations to the above Section note that a reviewing court may only address matters on appeal of a Notice of Determination that were raised by the taxpayer at the collection due process hearing. 26 C.F.R. § 301.6380-1(f)(2) Q-F5/A-F5 (stating that “the taxpayer can only ask the court to consider an issue that was raised in the taxpayer’s CDP hearing”). Courts interpreting these provisions have determined that actions brought pursuant to § 6330(d) are actions for administrative review and, thus, the reviewing district court is limited to the administrative record and the parties are not entitled to discovery or jury trial. See e.g. Community Residential Services, Inc. v. U.S., 2003 WL 21033239 at * 1 (M.D.N.C. May 7, 2003) (<HOLDING>); Carroll v. United States, 217 F.Supp.2d 852, Holdings: 0: holding that in its review of the irs exercise of discretion the court is limited to a review of the administrative record 1: holding appeal of termination is limited to information that is part of the record 2: holding that there is no right to habeas review of administrative evidentiary determinations before a district court where direct review of the administrative proceedings is available in the appellate courts 3: holding that the district courts review of a partial and truncated record was error and remanding the case for review on the entire administrative record 4: holding that a district courts review of a  6330d appeal is limited to the administrative record and the parties are not entitled to discovery


Input: also said, “the child might go back to New Jersey and flourish just as well.” What was needed, in his opinion, was “a permanent arrangement where this child can have access to both parents given the geographic distance.” The court modified its extant order to award custody to the plaintiff until the end of the school year in June; during the summer Carly was to be returned to the defendant in New Jersey. The court left open what the custody arrangements would be thereafter, though its order recited custody would remain in the plaintiff until further order of the court. Instead of appearing at Dr. Barrett’s office on August 31, the defendant had taken Carly and returned to New Jersey. She claims that she took this action on the advice of her counsel. After the court’s de d.2d 240 (1962) (<HOLDING>). See also Borys v. Borys, 76 N.J. 103, 109-115 Holdings: 0: holding south carolina not bound by virginia courts order of dismissal after being informed of an agreement regarding custody because virginia law did not require that courts would be bound by agreements between parents with respect to custody of their children 1: holding federal courts are bound by state court determinations of state law 2: holding that temporary order amounted to order modifying custody of children because language changed custody for an indefinite period 3: holding that state courts in construing and interpreting state law are not bound by the decisions of federal courts 4: holding that federal courts are bound by state interpretations of state law


Input: (U.S.A.) Inc. v. Neptune Orient Lines, Ltd., 612 F.Supp. 578 (S.D.N.Y.1985) (Government-published shipper's guide); Nehus v. Alaska Marine Towing, Inc., 519 F.Supp. 328 (W.D.Wash.1981) (United States Pilot publication); Asg Industries, Inc. v. U.S., 82 Cust.Ct. 1, 467 F.Supp. 1187 (Cust.Ct.1979) (U.S. Dept. of Commerce report). Finally, State Department Country Reports concerning the fairness of a foreign country's judicial system are not excludable as hearsay; they are admissible as “reports ... of public ... agencies setting forth ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... unless ... circumstances indicate lack of trustworthiness.” Fed. R. Ev. 803(8). See also Bridgeway Corp. v. Citibank, 201 F.3d 134, 142 (2nd Cir.2000) (<HOLDING>). 25 . Garro Depo. (Apr. 7, 2002), 137. 26 . Holdings: 0: holding state department country report on fairness of liberian judicial system admissible 1: holding that a department of defense report was inadmissible 2: recognizing that a report from the state department is usually the best available source of information on country conditions 3: holding that the state department country report constituted substantial evidence to support the agencys finding of changed country conditions in guatemala 4: holding that for purposes of claim 4 another country means a country other than the first and second country explicitly rejecting tpllcs proposed construction


Input: of the job. 26 . See Dickerson v. United States, 280 F.3d 470, 478 (5th Cir.2002); Lebron v. United States, 279 F.3d 321, 332 (5th Cir.2002); Gibbs v. Gibbs, 210 F.3d 491, 506 (5th Cir.2000). Those cases rely entirely on duPont, and they neither discuss the potential impact of Crawford Pitting on duPont nor address the issues raised in today's opinion. 27 . Any doubt concerning that result is removed by the subsequent statement, in W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 86, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), that in Crawford Fitting the Court "held that [§§ 1920 and 1821] define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further.” 28 . See also Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir.2002) Holdings: 0: recognizing the supreme courts precept that district courts may decline to tax costs enumerated in  1920 but cannot award costs not enumerated under  1920 citing crawford fitting 482 us at 44245107 sct 2494 1: holding that  1920 does not authorize taxing mediation fees as costs 2: holding attorney fees not allowable as costs 3: holding private process server fees may be taxed under  1920 4: holding that mediation costs are not compensable


Input: on some unspecified, but earlier date. See id. The Court notes that Plaintiffs do not cite to authority for their proposition that a defendant must “exercise ... ordinary diligence” in determining that a case is removable. See id. Nor has the Court been able to find support for Plaintiffs’ argument that section 1446 requires defendants to exercise ordinary diligence in ferreting out grounds for removal. Rather, a defendant must remove within thirty days from the date on which he “receives actual notice that the case has become removable, which may be communicated in a formal or informal manner.” 14A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure, §§ 3732, at 520 (emphasis added). See also Bosky v. Kroger Tex., LP, 288 F.3d 208 (5th Cir.2002) (<HOLDING>). The Court therefore finds that the only Holdings: 0: holding that the one year limit applies only to removals based on something other than the initial pleading  that is only to removals pursuant to the second paragraph of 28 usc  1446b 1: holding that a writ of summons alone can no longer be the initial pleading that triggers the 30day period for removal under the first paragraph of 28 usc  1446b 2: holding other paper must be unequivocally clear and certain to start the time limit running for a notice of removal under the second paragraph of section 1446b 3: holding that the information supporting removal in a copy of an amended pleading  must be unequivocally clear and certain to start the time limit running for a notice of removal internal quotation omitted 4: holding that removal under the second paragraph of  1446b did not apply and defendants therefore had removed outside of the thirty day time period triggered at the time of service of the complaint


Input: represented by counsel, has now filed a pro se motion for class certification pursuant to Fed.R.Civ.P. 23. Defendant has objected. Discussion Rule 23(a) of the Federal Rules of Civil Procedure requires that parties seeking class certification demonstrate: (1) the class is so numerous that joinder of all parties is impracticable; (2) there are questions of law or fact common to the class; (3) the claims and defenses of the representative parties are typical of those of the class; and (4) the representative party or parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a). Individuals appearing pro se may not adequately represent and protect the interests of a class. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.2000)(<HOLDING>); McGrew v. Texas Bd. of Pardons & Paroles, 47 Holdings: 0: holding a person who is not a member of the bar of any court  may appear pro se but is not qualified to appear in the district court or in this court as counsel for others 1: holding that a defendant proceeding pro se is bound by same rules as party represented by counsel and a court cannot allow pro se litigant lower standard of performance 2: holding that a corporation cannot appear pro se even when the person seeking to represent it is the president and major stockholder 3: holding that a nonattorney may not appear pro se on behalf of a corporation 4: holding that class representatives cannot appear pro se


Input: hearing shall apply"); People v. Allen, 978 P.2d 620, 622 (Colo.1999). Section 16-11-206, which governs the procedures at a revocation hearing, provides for certain advisements at revocation hearings: (1) At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section 16-7-206 insofar as such matters are applicable .... (2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty. § 16-11-206(1)-(2) (emphasis added). 116 Counsel may waive a defendant's statutory rights. See In re Lynch, 788 P.2d 848, 858 (Colo.1989) (<HOLDING>); see also People v. Baird, 66 P.3d 183, 189 Holdings: 0: recognizing counsels ability to waive statutory right to a mental health hearing 1: recognizing a constitutional right of privacy in mental health records 2: recognizing the roots of the right to privacy in mental health records 3: recognizing the right to waive a jury trial 4: holding that trial counsels performance was not deficient for failing to give a mental health expert additional information because the expert testified at the evidentiary hearing that the collateral data would not have changed his testimony


Input: v. Keller 737 A.2d 279, 283 (Pa.Super.1999). With regard to specific personal jurisdiction, our focus is narrow in scope; we examine the particular events that gave rise to the underlying claim. Id. at 281. ¶ 6 Appellants urge this Court to adopt the sliding scale test, as pronounced in Efford, to assess specific jurisdiction. We decline to do so; the facts of this case are not such that the underlying cause of action arose from appellants’ use of appel-lee’s website. Appellants’ arguments premised on Efford are more specifically aimed to a general jurisdiction attack. Specific jurisdiction ¶ 7 Generally our specific jurisdiction inquiry focuses on the party’s course of dealing and the known benefits incurred by contracting with a party from the forum state. See, e.g., Keller at 282, (<HOLDING>). ¶ 8 Here, appellee’s web site and brochures Holdings: 0: holding that to the extent simple assault under pennsylvania law is committed intentionally or knowingly it is by definition purposeful 1: holding that a nonresident defendants contract in this case a guaranty with a pennsylvania business entity alone cannot automatically establish sufficient minimum contacts 2: holding that rookerfeldman did not bar the plaintiffs federal action where a pennsylvania state court had previously dismissed the plaintiffs petition for review of an agencys decision for failure to comply with the pennsylvania rules of appellate procedure since the extent of the plaintiffs compliance with those rules had no bearing on the merits of the plaintiffs constitutional claims 3: holding that a criminal defendants right to an impartial jury is guaranteed by article 1 section 9 of the pennsylvania constitution 4: holding that a party contracting with a resident of pennsylvania despite not physically signing the contract in pennsylvania was sufficient to determine purposeful availment and vest pennsylvania with jurisdiction given that the party mailed the contract to pennsylvania directed payments to pennsylvania and conducted business with the same pennsylvania company repeatedly


Input: character, reasonably be found to have placed a “substantial burden” on plaintiffs exercise of his faith. See generally Reeder v. Hogan, 2012 WL 4107822, at *20, 2012 U.S. Dist. LEXIS 134710 at *58 (N.D.N.Y.2012) (conclusory claims of food deprivation, based on plaintiffs unsubstantiated belief that corrections officers tampered with his meals and rendered them inedible, are insufficient to survive summary judgment). Nonetheless, recognizing that it is the sincerity of plaintiffs beliefs and not their objective reasonableness that is relevant to an establishment clause claim, the Court will assume arguendo that plaintiffs religious exercise was substantially burdened by the SHU’s policy of inspecting meals for dangerous items. See Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir.2003) (<HOLDING>) (internal quotation marks omitted). Applying Holdings: 0: holding rluipa claim requires prisoner to show he wishes to engage in 1 a religious exercise 2 motivated by a sincerely held belief which exercise 3 is subject to a substantial burden imposed by the government 1: recognizing a religious institutions right to free exercise of religion 2: holding that an individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individuals own scheme of things religious regardless of whether the belief is unorthodox irrational or even demonstrably false 3: holding that when an inmates religious views requiring a vegetarian diet are sincerely held prison policy may violate his free exercise rights even though vegetarianism is only a recommended not a required element of plaintiffs religion seventhday adventism 4: holding that religious exercise is any exercise of religion whether or not compelled by or central to a system of religious belief and that the use building or conversion of real property for the purpose of religious exercise shall be considered  religious exercise


Input: Nicholson alleges that defendants Doherty and Damiani required him to plead and stand trial when the mandatory probable cause hearing had not been held and when there was insufficient cause to support the charges against him. In addition, he alleges that defendant Damiani improperly ordered the information amended after trial. These actions are taken in a judge’s judicial capacity and are within the judge’s jurisdiction. Thus, defendants Damiani and Doherty are protected from suit for damages by a p.2d 602, 626-27 (D.Md.1999) (citing cases for the proposition that municipal departments, including the police department, are not persons within the meaning of section 1983); Gaines v. University of Pennsylvania Police Dep’t, No. 97-3381, 1997 WL 624281, at *3 (E.D.Pa. Oct. 7, 1997) (<HOLDING>); PBA Local No. 38 v. Woodbridge Police Dep’t, Holdings: 0: holding states are not persons for the purposes of section 1983 1: holding that state and its officers sued in their official capacity for damages are not persons suable under  1983 2: holding that a municipality may be held liable as a person under  1983 3: holding that an ohio municipal court could not be sued under  1983 because it was not a person as  1983 uses that term 4: holding as a matter of law that police departments are purely instrumentalities of the municipality with no separate identity thus they are not persons for purposes of  1983 and not capable of being sued under  1983


Input: And under today’s decision, States may of course collect the sales tax from cigarette wholesalers, either by seizing unstamped cigarettes off the reservation, or by assessing wholesalers who supplied unstamped cigarettes to the tribal stores. States may also enter into agreements with the tribes to adopt a mutually satisfactory regime for the collection of this sort of tax. And if Oklahoma and other States similarly situated find that none of these alternatives produce the revenues to which they are entitled, they may of course seek appropriate legislation from Congress. Id. at 514, 111 S.Ct. at at states possess criminal jurisdiction over crimes committed on Indian reservations by non-Indians against non-Indians. See United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1881) (<HOLDING>); New York ex rel. Ray v. Martin, 326 U.S. 496, Holdings: 0: holding that the arrest of an indian on indian land was illegal because the state had no jurisdiction over the reservation to enforce its laws  including the execution of a search warrant  unless congress consented to the states jurisdiction 1: holding that colorado by its admission into the united states acquired criminal jurisdiction over its own citizens and other white persons through the whole territory within its limits including any indian reservations 2: holding that the fourteenth amendment which makes persons bom in the united states and subject to its jurisdiction citizens of the united states and requires that representatives be apportioned among the states based on population excluding indians not taxed did not make an indian a citizen of the united states 3: holding state immune from suit brought by its own citizens 4: holding that united states jurisdiction embraces offenses having an effect within its sovereign territory even though the acts constituting the offense occur outside the territory


Input: not persuaded that the [employer’s] failure to post such a notice justifies invocation of the tolling doctrine.”), McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1486 n. 5 (“Although the failure of the employer to display the poster may toll the 180-day notification period, it will not normally toll the two-year statute of limitations for bringing the action in court, which continues to run from the date of the alleged wrongful act.”) (citing Kazanzas v. Walt Disney World Co., 704 F.2d 1527, 1530-31 (11th Cir.1983)), and Ramirez v. CSJ & Co., No. 06 Civ. 13677(LAK), 2007 WL 1040363, at *3 (S.D.N.Y. April 3, 2007) (refusing to pronounce that the failure to post a notice, in and of itself, warrants equitable tolling), with Bonham v. Dresser Indus., 569 F.2d 187, 193 (3d Cir.1977) (<HOLDING>), Kamens v. Summit Stainless, Inc., 586 F.Supp. Holdings: 0: holding that duress toll to statute of limitations under state law had no application to federal rico statute of limitations 1: holding that failure to post the required notice will toll the running of the 180day statute of limitations   2: holding that the running of the statute of limitations is an affirmative defense 3: holding that ignorance or misunderstanding of the law would not toll the running of the statute of limitations 4: holding that the concealment of ones identity does not toll the running of the statute of limitations


Input: regarding the admissibility of the confessions to Agent Battle and Lieutenant Hitchins is that Polk’s meeting with Howard, in which Howard initially confessed constituted a “police-initiated custodial interrogation” in violation of Edwards, ie., a poisonous tree, and that the resulting confessions to Agent Battle and Lieutenant Hitchins were inadmissible “tainted fruit.” Assuming, without deciding, that Polk’s actions were on behalf of law enforcement and that his questioning of Howard while he was in custody constituted a “custodial interrogation” under Miranda, we nevertheless reject Howard’s claim. Howard invoked his Fifth Amendment right tó counsel prior to his. interview with Polk, thereby triggering the protections of Edwards. See Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (<HOLDING>). Howard claims that Polk initiated the Holdings: 0: holding that under the fifth amendment once an accused person in custody has expressed his or her desire to deal with the police only through counsel that person is not subject to further interrogation by the authorities until counsel has been made available  unless the accused himself initiates further communication exchanges or conversations with the police 1: holding that an accused who has invoked the right to counsel is not subject to further interrogation unless the accused himself initiates further communication exchanges or conversations with the police 2: holding that edwards precludes further interrogation unless he the accused himself initiates further communications 3: holding that subsequent to an invocation of counsel the edwards per se rule does not apply if an accused himself initiates further communication exchanges or conversations with the police 4: holding that when an accused has invoked his right to have counsel present during custodial interrogation a valid waiver of that right cannot be established by showing only that he responded to further policeinitiated custodial interrogation even if he has been advised of his rights an accused  having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication exchanges or conversations with the police


Input: about preempted labeling issues) (examining the same FDA decisions at issue in this case ,and finding that the. FDA’s 2006 and 2008 rejections of Abbott’s attempts to add a developmental delay warning constitute-clear evidence the FDA would have rejected a similar change to the 1999 Depakote label); In re Fosamax, 951 F.Supp.2d 695, 703 (D.N.J.2013) (finding clear evidence the FDA would not have approved a label change prior to the plaintiffs injury where FDA had rejected prior attempts to strengthen the relevant label); Dobbs v. Wyeth Pharm., 797 F.Supp.2d 1264, 1276-77 (W.D.Okla.2011) (finding clear, evidence that the FDA would have rejected an expanded warning for Effexor after the FDA rejected the warning added by the defendant). See also Levine, 555 U.S. at 571-72, 129 S.Ct. 1187 (<HOLDING>). Although there have been a limited number of Holdings: 0: holding that wyeth failed to demonstrate that it was impossible for itto comply with both federal and state requirements and reasoning that it offered no such evidence and never argued that it attempted to give a warning but was prohibited from doing so by the fda 1: holding that it is not 2: holding that because the repose period in question was eliminated before it expired it never operated to insulate defendants from liability and never vested defendants with any substantive rights 3: holding that it may not 4: holding insurers uim offer was ineffectual when it offered no premium price and was on a form that failed to comply with department of insurance guidelines


Input: is an essential element of a strongly-endorsed and well-articulated policy to eliminate drunk driving by affording offenders “zero tolerance” in the prosecution of their offenses. This Court has a commitment to eliminating intoxicated drivers from our highways and has supported that commitment with a ban on plea bargaining in drunk-driving cases. The aims of this broad policy can be accomplished only through consistent, uniform, and vigorous enforcement of the ban. To carve out from that ban an exception in cases of “permitting an intoxicated person to drive” undermines the important policy behind the prohibition. The person who allows an intoxicated person to drive may be as, or even more, culpable than the driver. See, e.g., Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992) (<HOLDING>); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 Holdings: 0: holding that tavern will be held liable for serving alcohol to visibly intoxicated patron who then foreseeably becomes involved in a motor vehicle accident 1: holding that the sensible and popular understanding of what a motor vehicle accident entails necessarily involves the motor vehicle being operated as a motor vehicle  2: holding proprietor of a tavern was not liable to officer who sustained injuries caused by a patron while the officer was attempting to make an arrest 3: holding tavern owner not liable for injuries sustained when intoxicated patron assaulted a police officer 4: holding a social host liable for serving a visibly intoxicated guest who foreseeably becomes involved in motor vehicle accident


Input: of abstention are therefore, applicable. 59 . Additionally, in Babbitt, 442 U.S. at 306-312, 99 S.Ct. 2301, the Supreme Court ordered a district court to abstain where certain provisions of a state statute challenged on First Amendment grounds were found to be susceptible to constitutional construction; the court also recognized the possibility of granting interim relief against enforcement of the challenged statute in order to mitigate the impact of abstention on their pursuit of constitutionally protected activities. 60 . Because this Court finds “fair grounds for litigation” in three (3) of the fifteen (15) questions, it is not necessary to reach any discussion as to the remaining twelve (12) questions, as the mm., CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, .1 L.Ed.2d 894 (1957) (<HOLDING>), as this preliminary injunction grants interim Holdings: 0: holding that a district court must dismiss habeas petitions containing any claims that have not been exhausted in state court 1: holding that a federal district court should retain jurisdiction until all efforts to obtain adjudication on constitutional questions have been exhausted in the state courts 2: holding that district courts dismissal of state law claims was proper where the district court had properly dismissed all of the federal questions that gave it original jurisdiction 3: holding that district courts do not have appellate jurisdiction over state courts 4: holding that where federal claims were patently meritless and insubstantial district court did not have jurisdiction to retain state claims


Input: does not seek to arrest state tax collection, comity is no bar to such a result. See Hibbs, 542 U.S. at 93, 124 S.Ct. 2276 (citing Griffin v. County Sch. Bd., 377 U.S. 218, 233, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) as a case where the Court acted without regard to the TIA (or related comity concerns) since, when the Court was “faced with unconstitutional closure of county public schools and tuition grants and tax credits for contributions to private segregated schools,” it concluded that the “District Court could require county to levy taxes to fund nondiscriminatory public schools” (emphasis added)). This conclusion means that our decision in U.S. Brewers is no longer good law, which we are not bound to follow. United States v. Rodríguez-Pacheco, 475 F.3d 434, 441 (1st Cir.2007) (<HOLDING>). In sum, Hibbs effected a change in the law Holdings: 0: recognizing an exception to stare decisis where  an existing panel decision is undermined by controlling authority subsequently announced such as an opinion of the supreme court  quoting williams v ashland engg co 45 f3d 588 592 1st cir1995 1: holding stare decisis applies when one court of appeals panel is faced with previous decision of different panel 2: holding that stare decisis is not applicable unless the issue was squarely addressed in a prior decision 3: recognizing such an exception 4: holding that decision by panel of this court is established precedent under rules of stare decisis


Input: 639 F.3d 1264, 1267 (10th Cir.2011). “To determine whether a state conviction is a [CIMT], we ordinarily employ the categorical approach.” Id. Under that approach, “this court looks only to the statutory definition of the offense and not to the underlying facts of the conviction to determine whether the offense involves moral turpitude.” Efagene v. Holder, 642 F.3d 918, 921 (10th Cir.2011). “Moral tur 3) (“[T]he conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.”); Matter of W— , 4 I. & N. Dec. 401, 402 (BIA 1951) (“It is well established that the crime of practicing prostitution involves moral turpitude.”); Matter of S—L—, 3 I. & N. Dec. 396, 397, 398 (BIA 1948) (<HOLDING>); Matter of P—, 3 I. & N. Dec. 20, 22 (BIA Holdings: 0: holding that procuring a female inmate for a house of prostitution involves moral turpitude because 1 it is a crime in which assistance and aid is given to the carrying on of the business of prostitution and 2 it is so far contrary to moral law as interpreted by the general moral sense of the community that the offender is brought to public disgrace is no longer generally respected and is deprived of social recognition by the community 1: holding that an intentional battery that involves the use of a deadly weapon constitutes a crime of moral turpitude 2: holding that robbery under california law categorically qualified as a crime involving moral turpitude and noting precedent in this and other circuits that theft crimes are crimes involving moral turpitude 3: recognizing the longstanding rule that crimes that have fraud as an element are categorically crimes involving moral turpitude and a court may not apply the modified categorical approach if the statute proscribes only conduct that involves moral turpitude 4: holding that involuntary manslaughter defined either as reckless or negligent was not a crime of moral turpitude because itwas based on unintentional conduct in contrast to those crimes involving some form of evil intent it is not an offense that is mala in se and thus does not fall within the definition of crimes involving moral turpitude


Input: plainly stated that, “[i]n exchange for the benefits offered by Amtrak, [CO] agrees ... not to seek employment with Amtrak in the future.” (Ford Deck, Ex. 46 at 2.) Plaintiff was not similarly situated to CO in all material respects. Accordingly, because plaintiff has not offered any evidence that Amtrak treated similarly situated employees in a more favorable manner upon termination, her evidence regarding her severance package does not demonstrate that defendants’ proffered explanation for her termination is mere pretext for racial or gender discrimination. 7. Disparate duties and opportunities Plaintiff claims she was fired because Porter set her up to fail. While this allegation is conclusory and speculative and does not create a genuine issue of mater 3, 408 (N.D.Ga.1989) (<HOLDING>). Contrary to Porter and Green’s contention Holdings: 0: holding that a state is not a person within the meaning of  1983 1: holding that a person is seized when a reasonable person would have believed that he was not free to leave 2: holding that in a  1981 case it not controlling that  a black person is suing a black person 3: holding that burglary may qualify as offense against person if as committed it is in fact a crime against a person 4: holding that the person who travels as an agent of person defrauded is a victim


Input: Court also found that the cause of the delay was the government’s failure to follow up on its proposed plea offers and Holub’s failure to communicate his rejections of the offers to the government. Ibid. The Court further found that Holub had not been prejudiced by the delay and that the government had no history of delaying trials in that area. Id. at 30. For those reasons, the Court held that dismissal without prejudice was appropriate. Its holding is not an abuse of discretion. VII. Next, the defendants challenge their sentences on various grounds. One of Wiley’s contentions—that hearsay introduced at the sentencing hearing violated his right of confrontation under the Sixth Amendment— was disposed of by our decision in United States v. Wise, 976 F.2d 393 (8th Cir.1992) (en banc) (<HOLDING>), cert. denied, — U.S. -, 113 S.Ct. 1592, 123 Holdings: 0: holding that any confrontation right is found in the fourteenth amendments due process clause not the confrontation clause of the sixth amendment 1: holding that confrontation clause protections do not extend to sentencing hearings 2: holding that the confrontation clause applies only to trials and not to sentencing hearings 3: holding that the confrontation clause does not apply to the sentencing hearing 4: holding confrontation clause inapplicable at sentencing


Input: DSA in the state general fund among the several county school districts on a quarterly basis, starting on or before August 1, November 1, February 1, and May 1 of each year. The DSA must be funded for the current biennium for this to occur. 9 See Campaign for Fiscal Equity, Inc. v. State of New York, 801 N.E.2d 326 (N.Y. 2003) (noting that simple direction of education authorities to follow the New York State Constitution is problematic in terms of effecting compliance and in terms of providing adequate judicial redress for a constitutionally infirm education funding system). 10 Nev. Const. art. 4, § 1; see generally Nev. Const, art. 19. 11 R.T.K., Annotation, Mandamus to Members or Officer of Legislature, 136 A.L.R. 677, 677 (1942); e.g., Wells v. Purcell, 592 S.W.2d 100 (Ark. 1979) (<HOLDING>); Limits v. President of the Senate, 604 N.E.2d Holdings: 0: holding that to grant a writ of mandamus a court in the exercise of its discretion must be satisfied that the writ is appropriate under the circumstances 1: holding that sovereign immunity does not bar a mandamus action against the governor and the department of transportation to compel their performanee in accordance with constitutional and legislative mandates 2: holding that a writ of mandamus could not be issued to compel legislative officers to adjourn or attempt to adjourn the legislature or to obtain an adjournment from the governor 3: holding a claim not previously raised or ruled on by the circuit court was waived in an appeal from the denial of a writ of mandamus 4: recognizing petitioner for writ of mandamus must demonstrate clear legal right to the act sought to be compelled and no other plain speedy and adequate remedy in the ordinary cause of law and stating mandamus may not be issued to compel an officials discretionary acts


Input: reaffirm the reach of the filed rate doctrine’s formidable barrier to suit in cases involving California’s wholesale electricity market. See, e.g., Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1225-27 (9th Cir. 2007); Pub. Util. Dist. No. 1 of Snohomish Cty. v. Dynegy Power Mktg., Inc., 384 F.3d 756, 760-62 (9th Cir. 2004); Pub. Util. Dist. No. 1 of Grays Harbor Cty. Wash. v. IDA-CORP Inc., 379 F.3d 641, 650-52 (9th Cir. 2004); California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 852-53 (9th Cir. 2004); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 929-33 (9th Cir. 2002). In our most recent foray in this area, we held that the doctrine barred a claim virtually identical to the one asserted by Plaintiffs. See Wah Chang, 507 F.3d at 1225-27 (<HOLDING>). Plaintiffs nonetheless argue that the filed Holdings: 0: holding that the filed rate doctrine barred private right of action for consumer fraud 1: holding that the filed rate doctrine barred a retail electricity consumers civil rico claim seeking damages for increased electricity costs allegedly caused by defendants fraudulent manipulation of wholesale electricity rates 2: holding that the filed rate doctrine barred request for damages but did not preclude request for injunction and civil penalties 3: holding that the filed rate doctrine precludes insureds fraudulent inducement claim 4: holding that under the filed rate doctrine a question regarding reasonable rates should be addressed to the department of insurance and that the rate plaintiff was charged is conclusively presumed reasonable under the filed rate doctrine


Input: Re-Insurance Co., 492 F.Supp. 1115, 1122 (S.D.N.Y.1980); Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084 (7th Cir.1986). Therefore, the only bar to applying the employee choice doctrine here would be if Martson had been involuntarily terminated from his job at IBM. There seems to be little doubt that he resigned his position after lining up a lucrative new job with another major player in the burgeoning personal computer industry. However, reading his seventh affirmative defense liberally (extremely liberally), one could conclude that Martson was really alleging, not unclean hands, but constructive discharge by IBM. Of course, constructive discharge is very difficult to prove; the Seco ); Sanderson v. City of New York, No. 96 Civ. 3368, 1998 WL 187834, *5 (April 21, 1998)(<HOLDING>). However, at this point in the proceeding, I Holdings: 0: holding that a low performance rating does not constitute constructive discharge 1: recognizing that a constructive discharge claim and a hostile work environment claim are not equivalent because a constructive discharge claim imposes a higher standard 2: holding that a change in the law of sentencing does not constitute a new factor 3: holding that retaliatory discharge demotion or other adverse employment claims state a cause of action under  1981 4: holding defendants perceived demotion from change of duties does not constitute constructive discharge as a matter of law


Input: who “multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. Like an award made pursuant to the court’s inherent power, an award under § 1927 is proper when the attorney’s actions are so plainly without merit as to require the conclusion that they must have been undertaken for some improper purpose. See, e.g., Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir.1986) (police photographs of client taken an hour after incident in which police officers allegedly employed excessive force in taking client into custody did not constitute such clear evidence of absence of excessive force to render client’s attorney liable for his adversary’s attorney’s fees as a result of bad faith); Acevedo v. Immigration and Naturalization Serv., 538 F.2d 918, 920 (2d Cir.1976) (<HOLDING>). “[T]he only meaningful difference between an Holdings: 0: holding that evidence submitted for a motion to reopen must be material and state new facts that rebut the underlying finding 1: holding that there was no new and material evidence to reopen claim where newly presented evidence was not accompanied by any medical evidence indicating a nexus to service 2: holding petition seeking review of motion to reopen deportation hearing in the absence of new evidence as without merit under  1927 since petitioner was not entitled to reopen except on showing of significant new evidence 3: holding that a motion to reopen seeking only to apply for a form of relief which was unavailable to the movant at the time of the hearing  is subject to the regulatory requirements governing motions to reopen 4: holding that a properly filed motion to reopen is a prerequisite to the filing of a new asylum application when the petitioner is under a final removal order


Input: hurt. But these types of dangerous conditions fall well short of establishing a condition that is certain to cause injury. III. Plaintiff alternatively relies on the principle that a “continuously operative dan gerous condition” may form the basis for a claim under the Act’s intentional-tort exception. The Michigan Supreme Court has observed that “[a] continuously operative dangerous condition may form the basis of a claim under the intentional tort exception only if the employer knows the condition will cause an injury and refrains from informing the employee about it.” Giles v. Ameritech, 468 Mich. 897, 660 N.W.2d 72, 73 (2003) (emphasis added) (citing Travis, 551 N.W.2d at 145); Alexander, 660 N.W.2d 67; Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 455-56 (6th Cir. 2002) (<HOLDING>). The key is that the employee is left in the Holdings: 0: recognizing that georgia did not adopt  115 but even if it did finding that plaintiff did not consider removal of asbestos to be immediately necessary where there was an undisputed delay between plaintiffs discovery of the hazard and beginning of removal 1: holding that the special relationship exception did not apply because the decedent was not in defendants custody 2: holding that the workers disability compensation acts intentionaltort exception did not apply where plaintiffs suffered injury after being instructed to remove carpet under which there was asbestos because the plaintiffs had shown only that the defendants knew of the general dangers of asbestos and did not provide proper training or safety equipment 3: holding that new statute which required proof that asbestos exposure was substantial contributing factor to claimants medical condition could be applied to pending cases and did not abrogate claimants vested right because she was still able to pursue her cause of action and recover for injury caused by her husbands exposure to asbestos statute merely affected methods and procedure by which that action was recognized protected and enforced not the cause of action itself 4: holding under facts presented that new statute could be applied to plaintiffs case because she was still able to pursue cause of action for injury caused by husbands exposure to asbestos


Input: Appellant Kevin Shea (“Shea”), a firefighter with the San Francisco Fire Department (“Department”), appeals the district court’s summary judgment in favor of the Department on his Americans with Disabilities Act (“ADA”) and California Fair Employment and Housing Act (“FEHA”) disability discrimination claims. We review de novo the grant of summary judgment, and we affirm in part, reverse in part, and remand. I. Shea alleged in his Equal Employment Opportunity Commission (“EEOC”) and California Department of Fair Employment and Housing (“DFEH”) charges that Chief Gamble discriminated against him on the basis of his disability in ear h 798, 111 Cal. Rptr.2d 87, 29 P.3d 175, 190 (Cal.2001) (<HOLDING>). Here, Shea’s charges that he was Holdings: 0: recognizing similar analysis applies to discrimination and retaliation claims 1: holding that even though  24 only refers to actions in state court it applies to state claims brought in federal court 2: holding that the continuing violations doctrine applies to disability discrimination claims brought under feha only if the employers unlawful actions are similar in kind have occurred with reasonable frequency and have not acquired a degree of permanence 3: holding in the discrimination context that a plaintiff may challenge incidents which occurred outside the statute of limitations period if the various acts of discrimination constitute a continuing pattern of discrimination 4: holding that the doctrine may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct


Input: of the issue to the arbitrator to determine his authority.” John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 561 (8th Cir.1990) (internal quotation and citation omitted). Here, Henderson strayed beyond the issues submitted by the NFLPA and in doing so exceeded his authority. As a result, vacatur is warranted on this basis as well. Because the court finds that the arbitration award must be vacated on the grounds set forth above, it need not decide whether Henderson was evidently partial or whether the award violates fundamental fairness. The court will remand the matter for further proceedings before the arbitrator as permitted by the CBA. See U.S. Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 907 F.Supp.2d 986, 995 (D.Minn.2012) (<HOLDING>). CONCLUSION Accordingly, IT IS HEREBY ORDERED Holdings: 0: holding that remand is appropriate in part where the court determines that further evidence is necessary to develop the facts of the case fully 1: holding that vacatur of predicate conviction was fact necessary for filing  2255 motion based on such vacatur 2: holding that the appropriate remedy on vacatur is to remand the case for further arbitration proceedings consistent with the cba 3: holding that remand is the appropriate remedy where inter alia the board has incorrectly applied the law 4: holding that the district courts decision whether to remand for further proceedings or payment of benefits is discretionary and is subject to review for abuse of discretion


Input: VII because the action of the Sheriff’s Office interfered with his employment opportunities with third party employers. Because defendants moved for summary judgment only on the question of the employment relationship between plaintiff and defendants, it is not necessary for us to decide the viability of this theory. We note, however, that the Fifth Circuit apparently has not resolved the question of whether an “employer” as defined by Title VII, can be liable under Title VII for interference with a plaintiff's employment opportunities with a third party. See Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 272 & n. 2 (5th Cir.1988); Daniels v. Allied Elec. Contractors Inc., 847 F.Supp. 514 (E.D.Tex.1994). See also Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C.Cir.1973) (<HOLDING>). 4 . The instant motion was based solely on Holdings: 0: holding that a title vii plaintiff could not hold coworkers liable in their individual capacities under title vii 1: holding that such a theory is viable under title vii 2: holding the title vii mixedmotive theory does not apply to adea claims 3: holding that relief granted under title vii is against the employer not individual employees whose actions constituted a violation of title vii emphasis in original 4: holding that there is no individual liability under title vii


Input: 899 P.2d 1004. “A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation.” Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686, 847 P.2d 1292 (1993). Prejudgment interest is not recoverable when damages “are not ascertainable by computation, based on some fixed standard of measurement.” Foster v. City of Augusta, 174 Kan. 324, 332, 256 P.2d 121 (1953). In most tort cases, prejudgment interest is not appropriate under K.S.A. § 16-201 because the amount of damages due a plaintiff are not “fixed and certain” until a jury resolves questions of fact and the court enters judgment. See, e.g., Whittenburg v. L.J. Holding Co., 838 F.Supp. 519, 519 (D.Kan.1993) (<HOLDING>); Torre v. Federated Mutual Ins. Co., 906 Holdings: 0: holding that because liquidated damages under the adea are punitive in nature a jurys award of state punitive damages and adea liquidated damages constitutes a double recovery and therefore reducing the total recovery by the amount of the liquidated damages award 1: holding that prejudgment interest should not be added to damages awarded for misrepresentation because the amount of damages were not liquidated or ascertainable before the verdict 2: holding that the amount of damages in a sex discrimination case was in dispute until the court entered judgment on the jury verdict the sum was not liquidated for ksa  16 201 purposes 3: holding that where the amount of damages was the primary issue in dispute the plaintiffs claim for damages was not liquidated until the date the jury returned its verdict and the plaintiffs are not entitled to prejudgment interest under ksa  16 201 4: holding that prejudgment interest is based on the amount of the judgment not the total amount of damages awarded by the jury because nonsettling defendants have no control over settlement negotiations and should not be forced to pay prejudgment interest on settling defendants parts of a damages award


Input: home, appellant possessed the rifles and exhibited them to Quinley. Quinley’s testimony was sufficient evidence for the jury to find that appellant exclusively possessed the stolen rifles recently after they were stolen. Appellant’s reliance on Smith v. Commonwealth, 247 Va. 157, 439 S.E.2d 409 (1994), is misplaced. Smith involved the application of the exclusive possession inference to the Commonwealth’s charge of grand larceny of a truck based solely upon the defendant’s possession of a checkbook and knives which the owner of the truck had left in the truck but had not seen for months prior to the theft. In Smith, the evidence failed to prove that the truck, checkbook, and knives were stolen at the same time. Cf. Williams v. Commonwealth, 188 Va. 583, 597, 50 S.E.2d 407, 414 (1948) (<HOLDING>). Consequently, the Court found that the Holdings: 0: holding that a defendant may be convicted of theft twice on the basis of intentional possession at one time of stolen property if the property forming the basis of the one conviction was stolen at different times and places from different owners than the property forming the basis of the second conviction 1: holding that the officers examination revealed that there was probable cause to believe that the property was stolen 2: holding proof of possession of stolen goods is sufficient evidence to sustain conviction for theft 3: holding that exclusive possession of recently stolen goods warrants the inference that he stole all of the property for which the defendant is accused of taking provided all the property was stolen at the same time emphasis added 4: recognizing that defendants intent to return stolen items to their rightful owner is a valid defense to charge of receiving stolen property


Input: to creditors seeking to enforce money judgments.” Id. Accordingly, the court held that the money fraudulently transferred into the CREF account was not protected by § 9. Id. at 479. Goioin stands for the proposition that § 9 is premised on the assumption that the CREF benefits in question are derived from “legitimate” contributions — i.e., contributions which are not subject to invalidation pursuant to some other statutory provision. This ruling is certainly defensible, harmonizing as it does § 9 with New York statutes relating to fraudulent transfers. And as Goioin indicates, there is reason to believe that the New York Court of Appeals would adopt the same reasoning. See Planned Consumer Mktg. v. Coats & Clark, Inc., 71 N.Y.2d 442, 454-55, 527 N.Y.S.2d 185, 522 N.E.2d 30 (N.Y.1988) (<HOLDING>); Gowin, 621 N.Y.S.2d at 479 (positing that the Holdings: 0: holding that money fraudulently transferred into a profitsharing plan was subject to a turnover order notwithstanding the plans erisamandated antialienation provision 1: holding that erisa medical benefits plans subrogation provision gave plan first priority claim to any recovery 2: holding that plan participants in a defined benefit pension plan have no claim to the plans surplus assets 3: holding that money received by plan participant pursuant to an uninsured motorist policy was within scope of plans subrogation provisions 4: holding that a plan provision stating that the summary plan description and summaries of material modifications  are hereby incorporated by reference and constitute a part of the plan acted to incorporate into the plan a limitations provision found only in the summary plan description


Input: the divorce judgment, i.e., that a jurisdictional defect appeared on the face of the record. See Walker, supra. Thus, we reject any contention that the trial court lacked any evidence on which to base its finding that the father had failed to properly register the divorce judgment. The father next argues that the trial court, for a variety of reasons, erred in setting aside the 2006 modification judgment; however, the father appealed only the March 28, 2011, judgment, which dismissed only the petition for a rule nisi and the petition to modify the divorce judgment filed on August 6, 2009. We, therefore, cannot consider any arguments addressed toward the propriety of the judgment setting aside the 2006 modification judgment. See Landry v. Landry, 42 So.Sd 755, 757-58 (Ala.Civ.App.2009) (<HOLDING>). Nevertheless, because the trial court relied Holdings: 0: holding that the appellate court should have construed the notice of appeal from the denial of a motion to vacate the judgment as an attempt to appeal from the underlying judgment 1: holding that notice indicating the appeal was from summary judgment order was insufficient to confer appellate jurisdiction to reach appellants challenge to earlier order compelling arbitration 2: recognizing that an appellants failure to properly file a notice of appeal as to a particular judgment prevents an appellate court from obtaining jurisdiction to review that judgment 3: holding that when an appeal is properly taken from an underlying judgment the court of appeals has discretion to review a subsequent order denying a motion to vacate 4: holding the trial court was without authority to dismiss an appeal on the ground that the amount of the judgment required the appellant to file an application for discretionary review


Input: to attorneys at lower rates were “general assertions of superiority rather than factual misrepresentations.” Id. at 246; see also United States v. Gay, 967 F.2d 322, 329 (9th Cir.1992) (“ ‘Puffing’ concerns expressions of opinion, as opposed to the knowingly false statements of fact which the law proscribes.”). The statements Marin complains of here are, likewise, vague, highly generalized and subjective statements regarding Deloitte’s abilities to implement the RFP. See, e.g., Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1053 (9th Cir.2008) (claims that company would deliver “flexibility” in their contracts and would lower copying costs for consumers is not a “quantifiable claim” but “classic puffery”); Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 299 (7th Cir.2003) (<HOLDING>); Byrne v. Nezhat, 261 F.3d 1075, 1111 (11th Holdings: 0: holding that state courts have concurrent jurisdiction over rico claims and that plaintiffs federal rico claim was barred by res judicata since he failed to bring his rico claim along with his state fraud claims in prior state court action 1: holding that rule 9bs heightened pleading requirement applies to allegations of mail and wire fraud used as predicate acts for a rico claim 2: holding that sales puffery cannot constitute mail fraud to support rico claim 3: holding that plaintiff lacked standing to assert rico claim for mail fraud based on misrepresentations made to third parties 4: holding that a plaintiff cannot avoid the securities fraud exception by pleading mail fraud or wire fraud if the conduct giving rise to those offenses also amounts to securities fraud


Input: sentence. Specifically, Olmos-Esparza argues that the government’s use of a certificate of nonexistence of record (“CNR”) and a warrant of deportation as evidence violated his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The introduction of a CNR to prove that a defendant did not seek admission from the Attorney General to re-enter the United States does not constitute testimonial hearsay evidence prohibited by Crawford. Rather, it is properly admitted as a nontestimonial public record. United States v. Cervantes-Flores, 421 F.3d 825, —, — (9th Cir.2005). Similarly, introduction of a warrant of deportation does not violate the Confrontation Clause. United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005) (<HOLDING>). Thus, the district court did not err in Holdings: 0: holding that letters addressing dispute that was subject of litigation and that were written in anticipation of litigation did not fall under business record exception under rule 8036 of the federal rules of evidence and noting that it is wellestablished that one who prepares a document in anticipation of litigation is not acting in the regular course of business 1: holding that it is not 2: holding that not all of claims file was prepared in anticipation of litigation and noting that the majority of cases that have dealt with the issue of whether investigative materials prepared by insurance claims adjusters is workproduct prepared in anticipation of litigation have held that since insurance companies have a routine duty to investigate accidents such materials are not prepared in anticipation of litigation 3: holding that driving record is nontestimonial as it is not accusatory and does not describe specific criminal wrongdoing of the defendant it contains no expression of opinion or conclusion requiring the exercise of discretion and it merely represents the objective result of a public records search 4: holding a warrant of deportation nontestimonial because it was not made in anticipation of litigation and because it is simply a routine objective cataloging of an unambiguous factual matter


Input: in the forum state.’ ” Id. (quoting Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1390-91 (8th Cir.1991)). It is important to note, however, that the Calder test does not displace the five-factor personal jurisdiction test set forth above, see supra p. 987; rather, it “requires the consideration of additional factors when an intentional tort is alleged.” Dakota Indus., Inc., 946 F.2d at 1391 (internal citation omitted). Therefore, even assuming that the Calder effects test is satisfied in this case, “absent additional contacts, mere ef fects in the forum state are insufficient to confer personal jurisdiction.” Johnson, 614 F.3d at 797 (internal citation omitted); accord AmerUs Group Co. v. Ameris Bancorp, No 4:06-cv-00110, 2006 WL 1452808, at *6 (S.D.Iowa May 22, 2006) (<HOLDING>). This is fatal to First American’s case Holdings: 0: holding minimum contacts were necessary for personal jurisdiction over defendant 1: holding that the effects of a tortious act cannot subject a defendant to personal jurisdiction in a forum where no other contacts exist 2: holding that specific jurisdiction requires plaintiff to show that defendants forum contacts be related directly to the subject of the lawsuit 3: holding no specific jurisdiction where alleged tortious conduct was not related to defendants contacts with texas 4: holding that personal jurisdiction over a party is proper if the party has sufficient minimum contacts with the forum


Input: of paternity against a man other than the one signing the paternity acknowledgment. Such distinction is of critical importance to the analysis of the applicability of principles of res judicata since the preclu-sive effect of res judicata attaches only to parties to the original action. In Michael George, once the action was initiated Wyatt, 475 So.2d 1332, 1334 (Fla.Dist.Ct.App.1985) (finding that child not party to first action not barred by res judicata because child and mother are not in privity due to divergent interests); In re M.D.H., 437 N.E.2d 119, 130 (Ind.Ct.App. 1982) (finding res judicata inapplicable to child support petition of child because earlier action was not filed by or in the name of the child); Baker by Williams v. Williams, 503 So.2d 249, 254-55 (Miss.1987) (<HOLDING>). Thus, the difference in result between the Holdings: 0: holding that the trial judge had the power to incorporate a settlement agreement in a decree following the entry of a decree of divorce 1: holding that adjudication of paternity in divorce decree is not binding on the child 2: recognizing a divorce decree which incorporates a property settlement agreement is a final and conclusive adjudication   3: holding that an adjudication on summary judgment is an adjudication on the merits 4: holding that a paternity determination in which the child is not made a party and is not represented by a guardian ad litem is not binding on the child


Input: or belief that Arredondo abandoned his offspring and failed to adequately support or care for them prior to incarceration, and that after his release from SAFP, he failed to take any steps to regain custody of them, visit them, or support them. Furthermore, he voluntarily committed acts which caused his probation to be revoked, thereby resulting in his re-incarceration. Although Arredondo professed a desire to be a part of his children’s lives and may be currently attending substance abuse counseling, the jury could reasonably believe that appellant’s actions when he was not subject to a restricted regimen within the confines of prison walls spoke more convincingly of his abandonment of his children. See In Interest of B.T., 954 S.W.2d 44, 49-50 (Tex.App.-San Antonio 1997, writ denied) (<HOLDING>); Edwards v. Dept, of Protective & Regulatory Holdings: 0: holding that a hospital employee could not be convicted of terroristic threats after he told one of his supervisors that he wanted a transfer because he felt like killing another supervisor and wrote a letter to human resources to that effect because he went out of his way to avoid contact with the supervisor he disliked and clearly did not intend for the letter to be delivered to her 1: holding that the district court did not err in continuing the trial without defendant when the trial had commenced in defendants presence he vigorously expressed his desire to be absent he was given ample opportunity to change his mind despite the disturbance he had created he had competent counsel and he knew of his right to be present 2: holding there was enough evidence to find the defendant abandoned his child when he claimed to have knowledge of cpss involvement he admitted that for periods of two years and six months he did not attempt any contact with his child and from the date he canceled a home study until the petition was filed he did not attempt to contact the child or cps or provide support even when he was out of jail 3: holding that defendant was not resident of his mothers household even though his drivers license listed his mothers address and he received mail there because he expressed a belief that his residence was in a different location than his mothers home he rented and occupied his own residence and he testified that he was only living with his mother after expiration of his lease until he could find another place to live 4: holding that defendants constitutional right to travel was not abridged when he was ordered not to make contact with the victim he attempted to rape


Input: ... as moot.” Doc. 28 at 7. This appeal followed. Discussion We construe the district court’s order as dismissing Mr. Matelsky’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and review solely for an abuse of discretion. McWilliams v. State of Colo., 121 F.3d 573, 574-75 (10th Cir.1997). A complaint is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Upon consideration, we agree with the district court’s conclusion that each of Mr. Matelsky’s four claims was frivolous. Because Mr. Matelsky has no constitutionally protected liberty interest in participating in the voluntary TC Program, his due process claim must fail. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (<HOLDING>). Mr. Matelsky’s exclusion from the Program has Holdings: 0: holding that liberty interests implicating the due process clause are generally limited to freedom from restraint which  imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life 1: holding that administrative punishment does not implicate a liberty interest protected by the fifth amendment unless the punishment imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life quoting sandin v conner 515 us 472 484 115 sct 2293 132 led2d 418 1995 2: holding that liberty interests that are protected by procedural due process are generally limited to freedom from restraint 3: holding that inmates protected liberty interests will be generally limited to freedom from restraint which while not exceeding the sentence in such an unexpected manner as to give rise to protection by the due process clause of its own force nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life 4: holding that a statecreated liberty interest in ones classification may exist where classification imposes atypical and significant hardship


Input: biological parent of a child obtained from Iran, and holding that “[i]n its role as parens patriae, it is the duty of a court to consider the child’s best interest. In the ease at hand, it is obviously not in [the child’s] best interest to relieve appellee from his obligation to support him. Rather, it is in [the child’s] best interest to be supported by those who were permitted to bring him to the United States from the Republic of Iran, after promising the Republic of Iran to support and care for him.”). {32} The facts in the present case are not in dispute and the issue of whether the district court erred in applying the doctrine of equitable adoption is an issue of law which we review de novo. See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 5, 127 N.M. 654, 986 P.2d 450 (<HOLDING>). In our view, the district court extended the Holdings: 0: holding that the threshold question of whether to adopt a doctrine is reviewed de novo 1: holding the ultimate question of probable cause should be reviewed de novo 2: holding that antitrust standing is question of law reviewed de novo 3: holding question of law applied to undisputed facts reviewed de novo 4: holding that whether consent was valid under the fourth amendment is a question of law to be reviewed de novo


Input: observed that, “[a]t the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional.” Id. Furthermore, the Court’s decisions as a whole had emphasized that Fourth Amendment reasonableness is “predominantly an objective inquiry,” id. at 2080 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)) (internal quotation marks omitted), asking “whether ‘the circumstances, viewed objectively, justify [the challenged] action,’ ” id. (alteration in original) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2 , 129 S.Ct. 2431, 174 L.Ed.2d 226 (2009); Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir.2003) (<HOLDING>). In Hydrick, for example, we held that court Holdings: 0: holding that pretrial detainees can bring substantive due process claim 1: holding in light of the supreme courts observation that the due process rights of pretrial detainees are at least as great as the eighth amendment protections available to a convicted prisoner  that the eighth amendment provides a minimum standard of care for determining the rights of pretrial detainees quoting revere 463 us at 244 103 sct 2979 2: holding that pretrial detainees have at least the same protections under the fourteenth amendment as posttrial detainees have under the eighth amendment 3: holding that pretrial detainees possess a constitutional right against deliberate indifference to their serious medical needs because the due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to a convicted prisoner 4: holding that because pretrial detainees fourteenth amendment rights are comparable to prisoners eighth amendment rights the same standards apply


Input: ease — at least not in the first instance. It is up to the Board, not ' the courts, to make labor policy. See Amalgamated Clothing and Textile Workers v. NLRB, 736 F.2d 1559, 1566 n. 5 (D.C.Cir.1984) (“Because requiring unions ... to have full time organizers present during each labor campaign raises serious questions of labor policy, it is an issue for the Board, not the courts, to settle.”). Moreover, it is irrelevant that the court agrees with the Board’s decision: “We emphasize that we harbor no disagreement with the Board’s policy choices. We ask only for a clear statement of what those choices and the reasons for them are.” Sullivan Industries, 957 F.2d at 905 n. 12; cf. Securities & Exchange Comm’n. v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462-63, 87 L.Ed. 626 (1943) (<HOLDING>). Accordingly, we remand this ease to the Board Holdings: 0: holding that court can affirm administrative order only on grounds on which agency relied and noting that the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained 1: recognizing that this court may affirm summary judgment on grounds other than those relied upon by the motion justice 2: holding that a motion for administrative reconsideration which congress did not order the agency to entertain which the agency dismissed in relevant part on procedural grounds and which the petitioner filed over sixty days after the agency acted cannot effectively extend  retroactively the thirtyday period congress specified for judicial review petitions 3: holding we may affirm on any grounds supported by the record even those not relied upon by the district court 4: holding where movant asserts several grounds in support of its summary judgment motion and the trial court does not specify the grounds on which judgment was granted the reviewing court can affirm the judgment if any of the grounds are meritorious


Input: upon a general remand for resentencing. We, therefore, reserve the issue. 3 . Even the Sixth and Tenth Circuits, which adopt a more lenient view of the scope of remand than does the Seventh Circuit, do not interpret Pepper as eliminating waiver. See United States v. West, 646 F.3d 745, 749 (10th Cir.2011) (favoring, in a post -Pepper regime, a rule whereby a district court "do[es] not make inquiry into whether the issue presented is antecedent to or arises out of the correction on appeal. Instead the district court is to look to the mandate for any limitations on the scope of the remand and, in the absence of such limitations, exercise discretion in determining the appropriate scope") (emphasis added); see also United States v. Garcia-Robles, 640 F.3d 159, 166 (6th Cir.2011) (<HOLDING>) (emphasis Holdings: 0: holding the district court need not provide de novo review where the objections are frivolous conclusive or too general because the burden is on the parties to pinpoint those portions of the magistrates report that the district court must specifically consider 1: holding that a district court is not to consider evidence of postconviction rehabilitation in deciding whether to resentence under crosby 2: holding that a court of appeals should review de novo a district courts determination of state law 3: holding in a postpepper regime that a general remand allows the district court to resentence the defendant de novo which means that the district court may  consider new evidence and issues quoting united states v moore 131 f3d 595 59798 6th cir1997 4: holding that sentencing upon general remand is to be de novo requiring the district court to consider new objections to the presentence report


Input: The continuing violation doctrine “extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d. Cir.1998) (internal citations and quotations omitted). In this regard, a claim for hostile work environment, “will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period.” Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106, at. Acts occurring outside the limitations period that are significantly far apart from each other are “fatal” to a continuing violation argument. See Quinn, 159 F.3d at 766 (<HOLDING>). In addition, it is well-settled in the Second Holdings: 0: holding a three and onehalf year delay was unreasonable 1: holding that three denied promotions over the course of three years where the decisions were made by three different selection officials and involved different qualifications were not sufficiently related to constitute a continuing violation 2: holding that section 10b and rule 10b5 suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation 3: holding that there was no ex post facto violation when california changed frequency of reconsideration for parole from every year to up to every three years for prisoners convicted of more than one homicide 4: holding that the plaintiff could not assert a continuing violation when there was a three year gap in time from one allegation to the next


Input: opportunity to submit its views on fuel switching to EPA during the rulemaking proceedings. And it did. See Julander Comments Aug. 4, 2011. It could also have sought permission to appear as amicus in this court, which it did not. Absent any reason to conclude that it is an “unusually suitable champion[]” of Congress’ goals in the CAA, we hold, consistent with this court’s precedent, that Julander’s interest in increasing the regulatory burden on others falls outside the zone of interests protected by the CAA and 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (“The plain intent of Congress in enacting [the Endangered Species Act] was to halt and reverse the trend towards species extinction, whatever the cost.”); Union Elec. Co. v. EPA, 427 U.S. 246, 257-58, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) (<HOLDING>); Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1150 Holdings: 0: holding that economic loss rule precludes recovery of economic damages only in the absence of personal injury or property  damage claims 1: holding that epa may not consider claims of economic infeasibility in evaluating a state requirement that primary ambient air quality standards be met by a certain deadline 2: holding that subject to certain exceptions the economic loss rule bars recovery in tort for economic damages arising out of matters governed by contract 3: holding that certain claims could not be a class issue in part because the complaint did not mention the claims 4: holding that the trial court did not err by failing to instruct the jury to consider certain additional factors in evaluating the validity of eyewitness identification testimony


Input: are accustomed to using paragraph P as a basis to search parolees, either without suspicion or suspicion based on the high-crime nature of the area. The officer then contacts the front desk attendant of the motel to ascertain whether the parolee is checked into the motel and, if so, to obtain the room number. At approximately 8:30 a.m. on May 25, 2009, Officer Dennis Tripp followed this protocol during his patrol of the Traveler Motel. The license plate check of a 1996 Oldsmobile showed it was registered to Baldón. Upon learning this, Officer Tripp called the shift commander, Sergeant Piazza, and asked him to contact parole officer Kevin Peterson. Pursuant to the protocol, Sergeant Piazza informed Peterson that Baldón was at the motel. He also asked Peterson for pe 757, 762 (1998) (<HOLDING>); Scott v. Pa. Bd. of Prob. & Parole, 548 Pa. Holdings: 0: holding parolee consented to search of his email based on the parole agreement 1: holding parolee waives constitutional searchandseizure rights by voluntarily signing parole agreement 2: holding that parole status alone is insufficient to justify search of a parolee 3: holding defendant does not waive fourth amendment protection by signing parole agreement but the search condition does confirm right of parole officer to conduct reasonable searches within scope of parole mission 4: holding that notwithstanding an agreement the state still must have reasonable grounds for investigating whether a parolee has violated the terms of parole or committed a crime


Input: found to state a cause of action under section 1981 because “Hispanics are frequently identified as ‘nonwhites,’ ”); Tayyari v. New Mexico State University, 495 F.Supp. 1365, 1369-70 (D.N.M.1980) (Plaintiff, an Iranian citizen, found to state a section 1981 cause of action on the basis that he may belong to a group commonly perceived to be different from the white majority.); Garcia v. Rush-Presbyterian-St. Luke’s Medical Ctr., 80 F.R.D. 254, 262-64 (N.D.Ill.1978), aff’d, 660 F.2d 1217 (7th Cir. 1981) (Mexican and Mexican-American plaintiffs found to state a cause of action under section 1981 because in analyzing discrimination against these groups race, national origin, and ethnicity may be indistinguishable.); Ortega v. Merit Insurance Co., 433 F.Supp. 135, 139 (N.D.Ill.1977) (<HOLDING>); Enriquez v. Honeywell, Inc., 431 F.Supp. 901, Holdings: 0: holding that for today at least persons of hispanic origin must be accorded the protections of section 1981 1: holding states are not persons for the purposes of section 1983 2: holding that plaintiffs complaint which included the ages and nationalities of at least some of the relevant persons involved with his termination was sufficient to provide notice of plaintiffs age and national origin discrimination claims 3: holding that white persons may state a claim under section 1981 and noting  the racial character of the rights being protected  4: holding that texas twoyear statute of limitations applied to section 1981 action for discrimination on the basis of national origin


Input: and in general, “a reviewing court will not consider issues raised for the first time on appeal.” See In re Cannon, 277 F.3d 838, 848 (6th Cir.2002). In any case, the record indicates that Matthews and Owens in fact received notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Here, Matthews and Owens received actual notice by mail — as they admit — which set forth the claim deadline in bold lettering and unambiguously warned them of the ramifications of inaction. See Dusenbery v. United States, 534 U.S. 161, 170-73, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) (<HOLDING>). That Matthews and Owens filed a petition in Holdings: 0: holding that the government need not prove actual notice to the prisoner 1: holding that due process requires that notice be reasonably calculated under all circumstances to provide parties with notice of the pending action 2: holding notice of impending tax sale of property was not reasonably calculated to reach property owner when notice sent via certified letter by state was returned unclaimed and state did not take additional reasonable steps to ensure notice was provided 3: holding that notice of administrative forfeiture sent to prisoner did not require actual notice to the property owner only notice reasonably calculated to apprise a party of the pendency of the action 4: holding that actual receipt of notice is not necessary to satisfy  1607 or due process the government need only make an effort that is  reasonably calculated to apprise a party of the pendency of the action


Input: Court within thirty days after publication in the Federal Register of certain decisions by Commerce. 19 U.S.C. § 1516a(a)(2)(A). Second, within thirty days of filing a summons, the party also must file a complaint. 19 U.S.C. § 1516a(a)(2)(A). Only after both a summons and complaint are filed does the Court’s jurisdiction attach. See Georgetown Steel v. United States, 801 F.2d 1308, 1313 (Fed.Cir.1986). See also Wire Rope Importers’ Ass’n v. United States, 17 CIT 1092 (1993). It is firmly established that both thirty day periods are conditions of the United States’ waiver of sovereign immunity; and thus, jurisdictional prerequisites. See NEC Corp. v. United States, 9 CIT 557, 622 F.Supp. 1086 (1985), reh’g denied, 10 CIT 15, 628 F.Supp. 976 (1986), aff'd, 806 F.2d 247 (Fed.Cir.1986) (<HOLDING>); Georgetown Steel, 801 F.2d 1308 (holding that Holdings: 0: holding that failure to serve debtors with filed complaint and issued summons rendered default judgment void 1: holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons 2: holding that to be timely the notice of a charging lien must be filed before the lawsuit has been reduced to judgment 3: holding that a summons must have sufficient postage affixed to be timely filed 4: holding that transmitting legal documents by facsimile machine does not reheve the attorney of his duty to ensure that documents which must be timely filed have been timely received


Input: Here, however, CNI did not make that choice. CNI’s charter requires board approval to waive sovereign immunity. The charter provides: To sue in its corporate name and, notwithstanding the immunity possessed by the Corporation as a wholly owned corporation of the Chickasaw Nation, to permit by written resolution of the board of directors enforcement of leases, contracts, agreements and mortgage instruments to which the Corporation is a party, against the Corporation in tribal court, or any court of competent jurisdiction by agreement of the board of directors.... MBF argues that CNI’s charter has a sue- and-be sued clause, which expressly waives immunity. Some courts have held that a broad sue-and-be-sued clause does waive trib ain Ute Tribe, 107 P.3d 402, 407-08 (Colo.Ct.App.2004) (<HOLDING>). Accordingly, we conclude that CNI’s charter Holdings: 0: holding that a state may waive its sovereign immunity 1: holding that an indian tribes exercise of criminal jurisdiction over nonindians is inconsistent with the domesticdependent status of the tribes and that tribes may not assume such jurisdiction without congressional authorization 2: holding that a tribes agent who has apparent authority may waive immunity without board approval 3: holding that an act of legislature may be required to waive sovereign immunity 4: holding that tribes did not waive their immunity by intervening in  administrative proceedings because any waiver must be unequivocal and may not be implied


Input: 2012, no pet.); Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 180 (Tex.App.-San Antonio 2008, pet. denied). A trial court abuses its discretion if it acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Texas Rule of Civil Procedure 39 governs questions regarding joinder. See Tex.R. Civ. P. 39; Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex.2004). Rule 39(a) concerns the joinder of “persons needed for just adjudication” and provides: A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, 234-35 (Tex.App.-Tyler 1982, writ ref'd n.r.e.) (<HOLDING>); Pan Am. Petroleum Corp. v. Vines, 459 S.W.2d Holdings: 0: holding trial court has discretion to require joinder of royalty interest owners whose interests will be directly and possibly adversely affected by decree in trespass to try title action 1: holding trial court did not abuse its discretion in failing to require joinder of owners of nonpossessory royalty interests and possibilities of reverter in partition suit between owners of mineral leasehold estate although it would be wise to join them 2: holding a trial court did not abuse its discretion by failing to require disclosure of an informants name 3: holding trial court did not abuse its discretion in finding that the energy company defendants lessors the owners of royalty interests in the property at issue and the owners of the mineral estate in unleased part of the 9200 acres should be joined as parties if feasible 4: holding that the trial court did not err in denying a plea in abatement to obtain joinder of other royalty owners in a pooled unit on grounds that the presence of the other royalty owners was not necessary to determine whether sabre pooled in bad faith and breached the terms of the lease


Input: 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20). RECAP’s clients fall into the first two categories. In the first category, an individual 82 (3d Cir.1987) (“Case law establishes that alcoholics are handicapped within the meaning of [the Rehabilitation Act].”). Legislative history also supports this conclusion. See H.R.Rep. No. 101-485(11), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 333 (noting that “physical or mental impairment” includes “drug addiction and alcoholism”) (internal punctuation omitted). RECAP’s clients therefore meet the first part of the definition of a disability. But mere status as an alcoholic or substance abuser does not necessarily imply a “limitation” under the second part of that definition. See Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (5th Cir.1997) (<HOLDING>), cert. denied, 522 U.S. 1084, 118 S.Ct. 871, Holdings: 0: holding that alcoholism is not a per se disability under the ada and evidence that alcoholics in general are impaired is inadequate to show the substantial limitation of one or more major life activities 1: holding that reproduction is not a major life activity 2: holding that disqualification from an especially traumatic occupation does not constitute a substantial limitation on the major life activity of working 3: holding that whether depression gives rise to a substantial limitation on a major life activity for purposes of ada depends on its severity 4: holding that breathing is a major life activity within the contemplation of the ada


Input: 626 (8th Cir.2000) (finding that employee’s “frustrating work situation” characterized by her being excluded from the decision-making process, treated with disrespect, subjected to false complaints, and curtailed in her supervisory duties did not amount to hostile work environment), abrogated on other grounds by Torgerson, 643 F.3d at 1042-43, 1058; Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir.1999) (concluding that unfair criticism and being yelled at did not amount to actionable harassment); see also Martinelli v. Penn Miller Ins. Co., 269 Fed.Appx. 226, 228 (3d Cir.2008) (finding that employer’s scrutiny of employee’s work, “while unpleasant and annoying” did not amount to hostile work environment); Harbuck v. Teets, 152 Fed.Appx. 846, 847-48 (11th Cir.2005) (<HOLDING>). Here, based on the evidence in the record, Holdings: 0: holding that employers conduct including keeping workplace too cold subjecting employee to heightened scrutiny and disclosing information from plaintiffs prior lawsuit to her coworkers did not constitute a hostile work environment 1: holding that coworkers cartoon ridiculing plaintiffs depression does not support a hostile work environment claim 2: holding that plaintiffs allegation that her professor gave her a brief bear hug was insufficient to constitute a hostile work environment 3: holding that a plaintiffs psychological distress was not vicarious in a hostile work environment case where she experienced her workplace as hostile by reason of the alleged harassment of other women out of her presence 4: recognizing a hostile work environment claim under section 1983


Input: N. & Santa Fe Ry. Co. v. White, 548 U.S. 58, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Further, Lewis failed to adduce evidence suggesting the falsity of defendants’ nondiscriminatory rationale and non-retaliatory rationale for rotating her off the Allentown detail on the same basis as her coworkers. See Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 130-31 (2d Cir.1996) (upholding summary judgment where Title VII plaintiff put forth no evidence showing that proffered non-retaliatory reasons were pretextual). Finally, as to the misconduct complaints, the district court correctly concluded that the two complaints dismissed without investigation or discipline could not demonstrate a materially adverse employment action. See Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir.2006) (<HOLDING>). As to the remaining two complaints, Lewis Holdings: 0: holding that fiveday suspension was not a de minimis deprivation 1: holding that to demonstrate retaliation complainedof action must be more than de minimis  2: holding that district court properlydiscounted four calls as de minimis 3: holding that a robbery of 40 to 50 satisfied the de minimis standard 4: holding that the prison litigation reform act requires a prior showing of physical injury that need not be significant but must be more than de minimis


Input: of appeals’ contrary decision. IV. Remedy. Because the State does not dispute that the defendant’s prior convictions do not support a finding that the defendant is a habitual offender, we must vacate the defendant’s sentence and remand for re-sentencing. The parties disagree, however, upon the scope of this remand. The State asks that upon remand it be allowed to amend the trial information to allege other prior felony convictions of the defendant, thus permitting proof of these convictions at a new hearing. Relying on the fact that the habitual-offender charge is not a substantive offense, but merely a sentencing enhancement, it argues that double-jeopardy principles do not apply. Assuming the State is correct in its assertion that the Double Jeopardy Clau N.W.2d 408, 416 (Iowa 1982) (<HOLDING>). This case is remanded for resen-tencing on Holdings: 0: holding party should not rely on courts power to remand for new trial under iowa rule of appellate procedure 26 now rule 626 as a substitute for careful trial preparation and presentation of evidence 1: holding that the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted as of right under  rule 38b 2: holding that appellate court in affirming trial courts decision may rely in part on a ground not presented to trial court 3: holding that remand for new trial is remedy for factual insufficiency of evidence 4: holding that courts must consider any adverse effect that the prosecutors failure to disclose might have had on not only the presentation of the defense at trial but the preparation of the defense as well


Input: provision to state common-law claims. See United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 607 (7th Cir.2000) (r 0 F.3d 1027, 1030-31 (9th Cir.2010) (same); Polinovsky v. British Airways, PLC, 2012 WL 1506052, at *3 (N.D.Ill. Mar. 30, 2012) (samé)). Just as Plaintiffs’ reliance on Giannopoulos and Polinovsky v. Deutsche Lufthansa was misplaced, so too is Delta’s reliance on the contract cases it cites. The common denominator requiring a finding of preemption in those cases was not the need to apply and enforce foreign law; the contract claims would just as easily have been preempted if the courts would have had to interpret domestic law, as in two other cases that Delta cites. See Def.’s Br. at 8 (citing Buck v. Am. Airlines, Inc., 476 F.3d 29, 36-37 (1st Cir.2007) (<HOLDING>); Delta Air Lines, Inc. v. Black, 116 S.W.3d Holdings: 0: holding segregation was necessary because breachofcontract claim required proof of different elements than other claims 1: holding breachofcontract claim preempted because the plaintiff tried to enlarge the federal rights that were incorporated into the contract 2: holding breachofcontract claim was preempted 3: holding that if the usps abridged the plaintiffs contract rights the proper recourse would be a breachofcontract claim not a takings claim 4: holding breachofcontract claim preempted because contract did not explicitly incorporate a federallaw provision