Input: EMTALA — they knew the essential facts and had both the basic legal and medical knowledge to do so. At this late hour, they shall not be heard to the contrary; specially given the fact that Plaintiffs were twice allowed to amend the complaint after Defendants moved to dismiss but failed to address most of the factual issues discussed here. See Ibarzabal v. Morgan Stanley DW, Inc., 333 Fed.Appx. 605, 607 (2d Cir.2009) (dismissal affirmed where plaintiff received notice of affirmative defense but failed to address it in an amended complaint). Conclusion For the reasons discussed above, Plaintiffs’ claims under EMTALA are DISMISSED with prejudice. Having so decided, Plaintiffs’ supplemental state-law claims must also be ÍHSMISSED. See Newman v. Bwrgin, 930 F.2d 955, 963 (1st Cir.1991) (<HOLDING>). Plaintiffs may pursue those claims in state Holdings: 0: holding if the legislature had the power to confer upon the county commissioners jurisdiction to hear and determine the question as to whether or not a town was of undue extent and to deprive it of a part of its territory then the proceeding being statutory before a body of limited powers the record must show affirmatively that such a case was brought before them as they were authorized to hear and determine and that all the jurisdictional facts were found to exist where the jurisdiction and power to hear and determine depends upon the existence of a fact that fact must appear or the proceedings are coram non judice and void 1: holding that no substantial question of federal law was required to be answered to determine the plaintiffs statelaw legal malpractice negligence and breach of contract claims 2: recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power 3: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit  and the district court has considerable authority whether or not to exercise this power in light of such considerations as judicial economy convenience fairness to litigants and eomity  4: holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit


Input: F.2d at 206-07. Reasonableness, as shown by the movant, is essentially judged by looking to “the delay ... from the time the party is deemed to have notice of the grounds for its Rule 60(b) motion.” Jones v. City of Richmond, 106 F.R.D. 485, 489 (E.D.Va.1985). In measuring this delay, however, there is no set time period distinguishing timely from untimely motions outside of the absolute, one-year time frame for Rule 60(b)(l)-(3) motions. What constitutes a reasonable time will generally depend on the facts of each case. See United States v. Wyle (In re Pacific Far East Lines, Inc.), 889 F.2d 242, 249 (9th Cir.1989). A major consideration may well be whether the nonmovant was prejudiced by the delay and whether the movant had a good reason for failing to take action sooner. Compare id. (<HOLDING>), with McLawhorn v. John W. Daniel & Co., 924 Holdings: 0: holding an internal error that caused the movant to receive the trustees notice of motion twentysix days after the court heard the trustees motion  may have constituted excusable neglect had the movant made a prompt motion for reconsideration and pointing out it is the movants actions after he became aware of the existence of the trustees motion  that reaches the level of willfulness 1: holding that the csu board of trustees and individual trustees sued in their official capacity are a political arm of the state and as such are immune from suit 2: holding that a debtor could not relitigate the claim that the trustee breached his fiduciary duty because the bankruptcy court had already held that the trustees actions were not improper 3: holding a bankruptcy trustees rule 60b6 motion timely despite a delay of eighteen months from the date of the court order and fifteen months from the denial of the trustees written request for a refund government found to have been put on notice of intention to reopen settlement by earlier actions of trustee 4: holding that the trustees preference actions against each of the defendants was precluded as a matter of law by the debtors earlier assumption of its agreements with them


Input: pursue dual-purpose storage[,]” SMUD IV, 293 Fed.Appx. at 772, the court has determined that even in light of the January 1, 2000 acceptance date, DOE’s January 31, 1998 partial breach of the Ju court prospectively apply the $4,196,260 savings SMUD realized in 2003 for each of the years 2004-2008. No evidence, however, has been proffered of the exact SNF pool savings, if any, that SMUD realized in 2004-2008 (Rem. TR at 10, 69, 140-51). SMUD has requested an unspecified amount of damages “from January 1, 2004 forward” in a separate proceeding, Sacramento Mun. Util. Dist. v. United States, Case No. 09-587C (Dec. 4, 2009) at ¶23. Accordingly, the court has decided it is proper to account for any 2004-2008 SNF wet pool savings offset in that proceeding. Indiana Michigan, 422 F.3d at 1377 (<HOLDING>)- The Government, however, legitimately is Holdings: 0: holding that in a partial breach case the plaintiff cannot recover prospective damages for anticipated future nonperformance 1: holding that plaintiff could recover only damages sustained as a result of the sale of the accused product by defendant prior to the issuance date 2: holding that a contract must entitle the plaintiff to money damages in the event of the governments breach of that contract 3: holding that absent an independent tort a plaintiff alleging a breach of contract may only seek to recover the damages flowing from the breach 4: holding that if the breach of an entire contract is only partial the plaintiff can recover only such damages as he or she has sustained leaving prospective damages to a later suit in the event of further breaches


Input: satisfy the “extra-element” test and so is equivalent to CoStar’s claim under the Copyright Act. Accordingly, it is preempted. The determination of whether CoStar’s remaining state claims are preempted similarly turns on whether they arise solely from copying or whether they require additional elements. CoStar characterizes its unjust enrichment claim as based not on the copyright infringement, but rather upon misattribution of source arising from its Lanham Act claims. Paper no. 94, at 36. In Wharton, however, the court held that the plaintiffs claim of unjust enrichment was preempted by the Copyright Act because it “concerns the central allegation that Defendants plagiarized his copyrighted screenplay.” Wharton, 907 F.Supp. at 146; see also American Movie Classics, 922 F.Supp. at 934 (<HOLDING>). CoStar seeks to distinguish the present case Holdings: 0: holding that declaratory judgment and unjust enrichment claims were preempted notwithstanding that plaintiff did not assert a copyright claim 1: holding that walsh does not support plaintiffs assertion that they need not allege any actual injury to bring an unjust enrichment claim 2: holding that conversion and unjust enrichment claims were preempted by the copyright act since they were not qualitatively different from a copyright claim because they contained no extra element beyond those necessary to show copyright infringement 3: holding that there is no cause of action in california for unjust enrichment 4: holding preemption is appropriate where unjust enrichment claim does not allege that the defendants were enriched by anything other than copyright infringement


Input: 3 . The Cities appear to have done just that, appealing the NPDES permits to the Environmental Appeals Board and challenging the use of the 2009 Document in that appeal. See, e.g., Pet'n for Review at 46, In re Town of Newmarket, No. NPDES 12-05 (Dec. 14, 2012) (arguing that “EPA is illegally applying an unadopted, numeric criteri[on] violating applicable Federal law, in deciding that a 0.3mg/L TN criteria must be met throughout the Great Bay Estuary to protect eelgrass”), available at http://go.usa.gov/4yYR. 4 . Indeed, the havoc would likely be incompatible with a ''clear-cut” nondiscretionary duty to review that is' actionable under section 1365(a)(2), the citizen suit provision that forms the basis of plaintiffs’ suit. See Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir.1987) (<HOLDING>). 5 . Plaintiffs’ reliance on the Eight Circuit Holdings: 0: holding under a nearly identical provision of the clean air act that a nondiscretionaiy duty supporting a citizen suit must be nondiscretionary ie clearcut 1: holding that the court had jurisdiction to hear the suit under the citizen suit provision of the caa 2: holding the epa could regulate air pollutants under the clean air act solely on the basis of the pollutants risk to human health 3: holding for a citizen suit brought under a substantially identical provision of the clean air act that whether plaintiffs have established a nondiscretionary duty to act by the epa is a merits question under rule 12b6 rather than a subjectmatter jurisdiction question under rule 12b1 4: holding that adequate notice is a mandatory precondition of a clean water act citizen suit


Input: over. The parties have agreed that any remainder will go, after distribution of treble damages to class members, to cancer or patient-related charities. Although unusually timed, the cy pres fund in this case, contrary to Howe’s argument, is not taking damages away from the class members. The settlement per mits all plaintiffs to claim and be paid their damages — indeed treble their damages— before any money is paid to charity through cy pres. This process is like other, routinely approved cy pres distributions. See, e.g., Powell, 119 F.3d at 705-06 (refusing, after money in a settlement fund remained, to distribute the rest to class members because “neither party ha[d] a legal right” to the unclaimed funds); In re Folding Carton Antitrust Litig., 744 F.2d 1252, 1253-54 (7th Cir.1984) (<HOLDING>). It would elevate form over substance to Holdings: 0: holding that when counsel denied the petitioner the right to appeal neither the strickland prejudice prong nor the harmlesserror test is appropriate 1: holding that the defendants contention was waived because it was supported neither by cogent argument nor citation to authority 2: holding that when plaintiff sought arbitration and neither the award nor the arbitration agreement mentioned interest the plaintiff was not entitled to preaward interest 3: holding a cy pres distribution was appropriate when 6 million remained in a fund created to pay costs and extra claims in a settlement because neither the plaintiff class nor the settling defendants had any right to the money 4: holding that plaintiff was not entitled to rely on a defendants jurydemand where the defendant had neither a constitutional nor a statutory right to make such a demand


Input: *9 (S.D.N.Y. Aug. 28, 2002) (quoting Amaker v. Coombe, 2002 WL 523388, at *8 (S.D.N.Y. Mar.29, 2002)). Plaintiff has made no attempt to establish that this seven-day delay somehow caused his condition to deteriorate, or that he suffered extreme pain. In fact, plaintiff admits that he suffered “no pain as a result of his rectal condition.” Plaintiffs Rule 56(e) Statement, ¶ 3. The crux of plaintiffs complaint centers around the delay in treatment between his first complaints in March of 1998, while he was incarcerated at Auburn, and his eventual diagnosis in November 1998, while housed at Collins. Most of the delay in plaintiffs treatment can be attributed to plaintiffs transfer from Auburn to Southport and eventually to Collins. See Ross v. Kelly, 784 F.Supp. 35, 47-49 (W.D.N.Y.1992) (<HOLDING>). Athough the lag in treatment is unfortunate, Holdings: 0: holding that where a defendants claim did not amount to a complete denial of counsel it could not form the basis of a collateral attack 1: holding that charging fees for medical services did not violate the eighth amendment where prisoner did not allege denial of medical care 2: holding frequent transfers did not amount to denial of medical care 3: holding that a state is required to provide medical care to incarcerated individuals 4: holding the delays of more than six years did not amount to the denial of access to the courts


Input: 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 uent to the events alleged here. Further, in deciding Croft, the Third Circuit appears to break new ground rather than rely on firmly established constitutional principles; the Croft court cites to no cases decided prior to 1996 that announced the same specific standard. Consequently, the Croft decision is not determinative of whether Scheer knowingly violated clearly defined existing law in depriving Miller of the custody of her children without, allegedly, an objectively reasonable basis for suspecting abuse. Rather, the court must look to case law as it existed in September 1995 in deciding whether Scheer’s alleged conduct violated clearly established rights. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985) (<HOLDING>). Prior to Croft, there were no clearly Holdings: 0: holding that a disability must be evaluated at the time of the challenged employment action 1: holding that clearly established federal law as determined by the supreme court under aedpa is the law at the time of the statecourt adjudication on the merits not at the time the conviction becomes final 2: holding state of the law must be determined at time of challenged action 3: holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court 4: holding that statutory good time credits must be calculated under the law in effect at the time of resentencing after an appeal of the sentence is determined


Input: be actually living with defendant, and not just be visitor). Service of process is intended to give notice to a defendant and, thus, service of process must be reasonably calculated to reach the defendant. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (stating “due process [requires] * * * notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to pre 0th Cir.1935) (requiring permanancy of residence); Burtchaell v. Hoffman, 508 So.2d 738, 738-39 (Fla.Dist.Ct.App.1987) (concluding girlfriend from another state occasionally visiting for few days to week not residing therein); Gamboa v. Jones, 455 So.2d 613, 614 (Fla.Dist.Ct.App.1984) (<HOLDING>). DECISION Peterson’s 14-year-old stepson, who Holdings: 0: holding housekeeper did not reside therein 1: holding the tenday requirement was ministerial and the defendant failed to show he was prejudiced by the delay 2: holding tenday visitor not residing therein 3: holding babysitter was not residing therein 4: holding fourmonth visitor was residing therein


Input: Personal Ins. Co., 79 A.3d 1141, 1148 (Pa.Super.Ct.2013) (citations and internal quotation marks omitted). 7 . Id. at 1149 (citations omitted). 8 . Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.2014) (citation and internal quotation marks omitted). 9 . See Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1263 (Pa.Super.Ct.2011). 10 . Post v. St. Paul Travelers Ins. Co., 691 F.3d 500, 523 (3d Cir.2012) (citation and internal quotation marks omitted). 11 . Condio v. Erie Ins. Exch., 899 A.2d 1136, 1145 (Pa.Super.Ct.2006). 12 . To the extent the Miezejewskis argue the claim representative was not permitted to make an initial offer pending further discovery on the basis of the information already submitted to the insurer, they misconstrue Pennsylvania law. See id. at 1151 (<HOLDING>). 13 .There is simply no evidence that the Holdings: 0: holding insurer not liable for bad faith when it denied insureds claim based on a good faith dispute regarding the interpretation of a rule 1: holding that a bad faith claim is a tort 2: holding that insurer did not engage in bad faith by relying on the equivocal contents of a police report in taking an initial position pending further investigation and evaluation that claimant was not entitled to uim benefits 3: holding insurer was not acting in bad faith in denying underinsured motorist benefits where denial was based on an issue of law unsettled in iowa and on which other jurisdictions disagreed 4: holding that insured may recover attorneys fees from insurer where insurer acts in bad faith


Input: evidence, Jacob moved for judgment as a matter of law, arguing that no evidence had been presented which would support a finding that his injuries were caused by anything other than Amtrak’s negligence. The District Court reserved decision. Because Jacob failed to renew his motion within ten days of the entry of final judgment, as is required by Federal Rule of Civil Procedure 50, he waived his claim for judgment as a matter of law. See Fed.R.Civ.P. 50(b); Williams v. Guzzardi, 875 F.2d 46, 50 n. 6 (3d Cir.1989). In his reply brief, Jacob argues that even if he waived his claim for judgment as a matter of law, we should nonetheless review his sufficiency of the evidence argument and, if we find that there was insufficient evidence to support the jury’s verdict, grant a new trial. Id. (<HOLDING>). But cf. Greenleaf v. Garlock, Inc., 174 F.3d Holdings: 0: holding that even when a defendant moves under rule 50 at the close of plaintiffs evidence  and autocentro did not even do that  if a defendant wishes to renew a motion for judgment as a matter of law at the posttrial stage with a view to having denial of that motion considered by the court of appeals the defendant is required to have moved for judgment as a matter of law at the close of all the evidence 1: holding that defendants failure to renew their motion for judgment as a matter of law which was denied by the district court when they made it at the close of the evidence limited the relief the appellate court could grant to a new trial 2: holding in a capital case that the defendant waived his argument that the trial court erred when it denied his motion for a change of venue where the trial court took the motion under advisement but the defendant failed to seek a ruling on the motion and failed to renew the motion after the jurors had been qualified 3: holding that the defendants insufficientevidence claim was barred by his failure to renew his rule 29 motion at the close of all the evidence because there was no manifest miscarriage of justice 4: holding that an appellate court should not undertake to review whether a plaintiff failed to state a claim upon which relief can be granted when the only motion filed and the only motion on appeal was the trial courts grant of summary judgment


Input: others] under the age of 30 ... who came to the United States under the age of sixteen” without authorization and meet certain other criteria. Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting) (first alteration in original) (quoting Memorandum from Janet Napolitano, Secy of Homeland Security, to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Protection; Alejandro Mayorkas, Dir., U.S. Citizenship & Imm. Servs.; and John Morton, Dir., U.S. Imm. & Customs Enforcement, at I (June 15, 2012), and citing Julia Preston & John H. Cushman, Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. Times, June 16, 2012, at Al). 4 . Courts considering similar enactments prior to Arizona likewise held them unconstitutional. See Lozano v. City of Hazleton, 620 F.3d 170, 221 (3d Cir.2010) (<HOLDING>), vacated on other grounds, — U.S. -, 131 S.Ct. Holdings: 0: holding that municipal ordinance was preempted by frsa and void under supremacy clause 1: holding city ordinance preempted by state law because ordinance prohibited act specifically allowed under state law 2: holding preempted municipal housing ordinance that would effectively remove persons from the city based on a snapshot of their current immigration status rather than based on a federal order of removal 3: recognizing that old chief was based entirely on the federal rules of evidence rather than the constitution 4: holding that a local ordinance prohibiting rental housing for illegal aliens was not field preempted and did not conflict with the federal removal process and where the ordinance specified it did not prohibit conduct expressly permitted by federal law did not conflict with federal antiharboring law


Input: See Mem. in Support of Mot. for Prelim. Inj. at 7 n. 4 (ECF 2-4). Accordingly, I will consider the parties’ claims in the context of well-established First Amendment case law. 15 . In a previous, unreported decision in this district considering a First Amendment challenge to earlier Ocean City ordinances restricting activity on the boardwalk, Judge Marvin J. Garbis rejected Ocean City's argument that the boardwalk is not a public street for First Amendment purposes. See One World One Family Now, Inc. v. Mayor of Ocean City, Civ. No. MJG-95-1401, op. at 9-11 (D. Md. June 22, 1995). 16 . Some decisions have held that certain publicly-owned tourist areas are not traditional public fora. See, e.g., New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 22-23 (1st Cir.2002) (<HOLDING>); Chicago Acorn v. Metropolitan Pier & Holdings: 0: holding that chicagos navy pier is not a traditional public forum 1: holding that bostons fish pier is not a traditional public forum 2: holding that san franciscos fishermans wharf is a traditional public forum 3: holding that the venice beach boardwalk is a traditional public forum 4: holding that the state could not require yakama indians to purchase licenses for using traditional nets to catch fish


Input: that actual service on the defendants at the end of July of 2005 constituted a step in the prosecution interrupting prescription. We must disagree. We find that the signing of the case management order by the trial judge in another division did not interrupt the running of the time period for abandonment as to the instant lawsuit. Moreover, none of the exceptions that would defeat abandonment for matters not appearing of record are applicable in this case. Lastly, and most importantly, plaintiffs did not demonstrate that the relied-upon action was taken by a party to the instant lawsuit. Therefore, it cannot serve to interrupt the running of the applicable period. See La.Code Civ. P. art. 561; see also Furr v. Pearce & LeBkmc, Inc., 2006-564 (La.App. 5 Cir. 12/27/06), 948 So.2d 279 (<HOLDING>). We further find that the motion to dismiss Holdings: 0: holding that utility customers mailing of a petition did not constitute the filing of the petition as filing was not effectuated until the petition was received by the clerk 1: holding that the clerk who refused to accept filing of complaint at the direction of the judge was entitled to quasijudicial immunity 2: holding that although the filing of suit and service of citation interrupt the running of the statute its dismissal for want of prosecution will have the same effect as if the suit had never been filed 3: holding that the filing of a motion to dismiss the case by the clerk of court did not interrupt the running of the threeyear prescriptive period for abandonment because the action was taken by the clerk of court a nonparty 4: holding analogous federal rule did not authorize the filing of a motion to join by a nonparty to the lawsuit


Input: of public concern is Gardetto’s public support of the three non-incumbent candidates for positions on EWC’s board of trustees. One of the primary functions of a L.Ed.2d 201 (1992). Thus, we hold that Gardetto’s endorsement of the three insurgent candidates for the college’s board positions involves speech on a matter of public concern. Similarly, we hold that Gardetto’s statements criticizing Mason for holding himself out as a “doctor” when he did not have a Ph.D. or other doctoral degree involves speech on a matter of public concern. The integrity, qualifications, and misrepresentations of a highly visible public official, such as the president of a college, obviously impact the social and political life of a commu nity. See Patrick v. Miller, 953 F.2d 1240, 1246-47 (10th Cir.1992) (<HOLDING>); Conaway, 853 F.2d at 796-97 (holding that a Holdings: 0: holding that a city finance directors allegations of discriminatory employment practices in support of black females and perceived illegal budgeting activities were matters of public concern 1: holding that statements made only to supervisor and chief by police officer were matters of public concern 2: holding that issues of prison security public safety and official corruption are matters of public concern 3: holding allegations of wrongdoing by public officials are on the highest order of first amendment concern 4: recognizing a public employees first amendment right to address matters of legitimate public concern


Input: When a complaint seeking review of governmental action is combined with one or more counts alleging causes of action that are independent of the court’s review of the governmental action, the court will be called upon to act in two distinct capacities — as an appellate court and as a trial court. Because of the distinction in the nature of the claims, the procedure for resolution of the claims will differ as well. Thus, the rules require that the party filing a combined complaint must immediately seek an order from the court specifying the future course of the proceedings in order, to avoid confusion in the processing of the complaint. See M.R. Civ. P. 80B(i). The motion must be filed within ten days after the filing of the complaint. See id. [¶ 15] 98 ME 71, ¶ 9, 708 A.2d 1027, 1030 (<HOLDING>); Saucier, 1998 ME 61, ¶ 6, 708 A.2d at 283 Holdings: 0: holding that delay is waived when the defendant makes dilatory pleadings and motions 1: holding sanctions were appropriate due to prejudice imposed on other party from failure to disclose subject matter of expert testimony 2: holding sanctions were appropriate when the party had no reasonable justification for his repeated failures to designate an expert 3: holding sanctions were appropriate when excessive responsive pleadings were filed for purposes of delay 4: holding sanctions were appropriate where party filed motions merely for purposes of delay


Input: degree upon the particular facts presented by each individual case. Ulrich, 839 P.2d at 948. Applying this test to Ulrich, the court concluded that Ulrich’s injuries did not occur as a natural consequence of the use of the motorist’s truck, but rather occurred as a natural consequence of the motorist’s use of a gun. Ulrich, 839 P.2d at 949. The court further commented that the motorist’s intentional act of shooting was an independent, intervening cause of Ulrich’s injuries, rendering the motorist’s use of his truck legally insignificant. Ulrich, 839 P.2d at 949. ¶52 State Farm cites several cases from courts in other jurisdictions also applying a restrictive interpretation to “arising out of the use.” See e.g., Kangas v. Aetna Cas. & Sur. Co. (Mich. App. Ct. 1975), 235 N.W.2d 42, 50 (<HOLDING>); Lemmons v. Prudential Property & Cas. Ins. Holdings: 0: holding that where occupants left uninsured vehicle assaulted a pedestrian pedestrian ran into highway and was struck by a truck no causal connection existed between pedestrians injuries and use of the uninsured vehicle because assaults and fisticuffs are not normal foreseeable occurrences in the use of a vehicle 1: holding automobile exeeption did not apply to warrantless search of vehicle where vehicle was not readily mobile because the vehicle was legally parked in parking lot occupants of vehicle were seated on a bench in the playground near the parking lot police officers surrounded the vehicle and the driver of the vehicle was handcuffed for safety purposes 2: holding that victims injuries did not arise out of the use of a motor vehicle when the victim received injuries from a gun fired in the vehicle 3: holding warrantless search of vehicle was improper where car was not stopped on a highway but was parked at a residence with no occupants inside or near the vehicle and capable of being driven away by the turn of an ignition key 4: holding that under the plain and obvious meaning of the uim statute a prerequisite to the term underinsured motor vehicle is the existence of  bodily injury liability insurance coverage which is less than the liability for damages imposed by law  and where no such coverage existed tortfeasor was not underinsured under the statute but rather uninsured concluding that terms underinsured and uninsured are mutually exclusive as applied to the same motor vehicle and the combination of these two coverages by the insured was contrary to legislative intent


Input: clear that the standard of consumer mark recognition required for a trademark-dilution claim is much more stringent — meaning truly na tional, widespread recognition — than that required for a likelihood-of-confusion analysis in a trademark-infringement claim. 12 Eva’s Bridal, 639 F3d at 789 (citation omitted) (second alteration in original). 13 See, for example, Detroit Creamery Co v Velvet Brand Ice Cream Co, 187 Mich 312, 316; 153 NW 664 (1915) (“It has been universally held that a trade-mark, as such cannot be assigned separately and distinct from the property to which it has been attached, and likewise the rule has been laid down that a naked license to use a trade-mark is of no more validity than an assignment thereof.”); Broeg v Duchaine, 319 Mass 711, 713; 67 NE2d 466 (1946) (<HOLDING>); 3 McCarthy, Trademarks & Unfair Competition Holdings: 0: holding that proof of unauthorized use of an original trademark by one whose license to use the trademark had been terminated is sufficient to establish the likelihood of confusion prong 1: holding limited use of a mark did not constitute prior use in commerce sufficient to establish rights in the mark 2: holding under common law of trademark that one who has developed a trade mark as a guaranty of the quality of his merchandise should not he permitted to license its use apart from his business to those who may sell an inferior product 3: holding that the lack of a confidentiality agreement does not necessarily defeat an argument that information is a trade secret because where an employee acquires during the course of his employment a special technique or process developed by his employer he is under a duty not to use it to the detriment of his employer 4: holding that the essential wrong of trademark infringement the appropriation of the good will of anothers established mark may be effectively accomplished by advertising matter associating that others distinguishing mark with the product of defendant


Input: to demonstrate genuine issues exist for trial. Griffin, 74 F.3d at 827. 1. Direct Discrimination As she did in the district court, Markel contends that several statements attributed to Offerman and LaForge are evidence of direct discrimination. Offer-man, LaForge, and the University deny that the statements were ever made. At oral argument the University contended that these statements are more appropriately considered performance related, and even if they are believed, show an aversion toward age not gender. Either way, the statements are not worth repeating because they fail to show direct discrimination. In order to arrive at the conclusion Markel would have us reach, we would need to infer discriminatory animus into the statements, which we cannot do. See Randle, 876 F.2d at 569-70 (<HOLDING>) (emphasis added). Moreover, the statements Holdings: 0: holding that issues of discriminatory intent and actual motivation are questions of fact for the trier of fact 1: holding that estoppel was a question of fact 2: holding that direct evidence if believed by the trier of fact will prove the particular fact in question without reliance upon inference or presumption 3: holding that a statutory presumption is a rule of law requiring a trier of fact to reach a particular conclusion in the absence of evidence to the contrary 4: holding it is a question of fact


Input: in this subsection, the term ‘any person’ includes any State____” Id. § 3(a) & (c). Instances in which Congress has explicitly included states but not the federal government is conclusive evidence of congressional intent to exclude the federal government. See Department of Energy v. Ohio, 503 U.S. 607, 617-18, 112 S.Ct. 1627, 1634, 118 L.Ed.2d 255 (1992) (“Its omission has to be seen as a pointed one when so many other governmental entities are specified”). This legislative intent is even more obvious when one considers the historical context: the amendment was enacted without any mention of the federal government against a legal backdrop of cases holding that the Lanham Act did not apply to state or federal governments. See Woelffer v. Happy States, 626 F.Supp. 499, 504 (N.D.Ill.1985) (<HOLDING>); Serra v. General Servs. Admin., 667 F.Supp. Holdings: 0: holding that the ats does not waive the united states sovereign immunity 1: holding that a state may waive its sovereign immunity 2: holding that the lanham act did not waive states sovereign immunity 3: holding that removal to federal court does not waive tribal sovereign immunity 4: holding that an act of legislature may be required to waive sovereign immunity


Input: relief independently of Tan in addition to being included as a derivative party on her asylum claim. See AR at 395-401. The Immigration Judge ("U”) and BIA ultimately denied his application for cancellation of removal. See id. at 391, 379. 3 . An applicant for withholding of removal need not show that she would be singled out for persecution if she can demonstrate a pattern or practice of persecution of persons similarly situated to her on account of, inter alia, race or religion. 8 C.F.R. § 208.13(b)(2)(iii). In the instant case, Tan did not raise the pattern or practice argument before the BIA, and therefore we are without jurisdiction to review such an argument, even though the BIA sua sponte addressed it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.2006) (<HOLDING>). In addition, she does not raise the argument Holdings: 0: holding that we lack jurisdiction to review a claim not brought before the bia even when the bia addresses it sua sponte 1: holding that this court lacks jurisdiction to review decisions of the bia refusing to reopen immigration proceedings sua sponte 2: holding that we lack jurisdiction to consider claims not raised below by the alien even when the bia reviews the claim sua sponte 3: holding that we lack jurisdiction to consider claims that have not been raised before the bia 4: holding that we will not review an issue or claim that was not presented to the bia in the petitioners notice of appeal or brief to the bia even if the bia considered the issue or claim sua sponte


Input: failed to show that other alleged false statements were actually false. As to the allegations that the “compare to” language impliedly communicated that the products had been tested against each other, PBM’s marketing director testified that the products have, in fact, been tested against each other. Id. at *5. In addition, Mead Johnson alleged that PBM’s label stated its gentle formula contains “partially broken down whey protein” but presented no evidence to suggest otherwise. As a result, the alleged implied message could not be proven false. In any event, even if PBM’s “compare to” messages were false, the district court correctly concluded that Mead Johnson cannot prove that the “compare to” language caused any damages. See Xoom v. Imageline, 323 F.3d 279, 286 (4th Cir.2003) (<HOLDING>). The fatal flaw in Mead Johnson’s economic Holdings: 0: holding that when plaintiff has proven injury but has failed to prove the amount of damages the plaintiff is only entitled to nominal damages 1: holding that a plaintiff may recover damages under both the lanham act and the copyright act provided the copyright damages serve a purpose other than compensation 2: holding that a plaintiff in a lanham act trademark violation action must demonstrate that the defendants violation tended to deceive consumers 3: holding that to show a causal connection the plaintiff must demonstrate a relationship between the misconduct and the plaintiffs injury 4: holding that in order to recover damages under the lanham act plaintiff must prove that there was a violation that plaintiff has been damaged and that there is a causal connection between the violation and those damages


Input: provision that expressly permits PMI to terminate employees covered under the CBA. That provision requires PMI to give employees “three (3) working days notice before layoff if circumstances reasonably allow.” In addition, the CBA contains a provision stating that “[t]he management and direction of the Plant and working forces is vested in the Company, except insofar as is expressly abridged by specific provisions of this Contract.” This court has held that “[i]t is clear ... that neither federal labor law nor ordinary collective bargaining agreements compel an employer to maintain in operation all or any part of its business.” Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1122 (6th Cir.1981); see also Wimberly v. Clark Controller Co., 364 F.2d 225, 228 (6th Cir.1966) (<HOLDING>). Here, the CBA allows PMI to terminate union Holdings: 0: holding that the plaintiffs failed to state a cause of action under  301 of the lmra because absent an express contractual provision there is no prohibition against an employer moving its operations to another state 1: holding that plaintiffs state law claim against a nonsignatory to the cba was preempted by  301 2: holding plaintiffs state law claims of inter alia tortious interference with contract are preempted by section 301 of lmra 3: holding employees negligence claim against his employer was preempted by the lmra 4: holding that an administrative agency or a state courts finding that an employer had just cause to terminate a plaintiff is not preclusive with regard to the plaintiffs discrimination claim against the employer


Input: 748 S.W.2d 541, 542 (Tex.App.— Houston [1st Dist.] 1988, writ denied). The question presented is whether Mrs. Domel’s affidavit raises an issue of material fact as to whether the tributary is a watercourse. We believe it does not. Mrs. Domel admits that the tributary can fairly be classified as an intermittent stream with perennial pools. She also states that prior to 1998, there was a flow of water after significant rains, and that the tributary was dry from late spring until early fall. Hoefs instructs that a current of water “need not be continuous and the stream may be dry for long periods of time,” and a stream may be “intermittent as to flow ’ and remain a watercourse. Hoefs, 273 S.W. at 786-87; see also Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 608, 297 S.W. 225, 227-28 (1927) (<HOLDING>); Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. Holdings: 0: holding that debt orhusband could exempt his interest in home even though he lived elsewhere and even though the home was a residence only for his children and codebtor wife from whom he was separated 1: holding that the plaintiff adequately alleged an injury in fact where it alleged that it would receive less irrigation water from a bureau as a result of restrictions imposed on the bureau from the challenged agency opinion 2: holding that the farreaching benefits from a flood control program outweighed the possibility of future floods 3: holding navasota river a watercourse even though plaintiff alleged it flowed only during rainy seasons from storm and flood waters 4: holding that even though  24 only refers to actions in state court it applies to state claims brought in federal court


Input: [them] from voting to impose the death penalty following conviction regardless of the facts,” Utah R.Crim.P. 18(e)(10), and (2) those jurors “who would always vote to impose the death penalty upon a finding of first degree murder.” State v. Young, 853 P.2d 327, 342 (Utah 1993) (plurality opinion) (citing State v. Schreuder, 726 P.2d 1215, 1225-26 (Utah 1986)). Defendant argues that this practice “creates a conviction-prone jury that is underrepresentative of the community” and therefore violates his state constitutional rights to an impartial jury and to due process. Utah Const, art. I, §§ 7, 12. Defendant concedes that the United States Supreme Court has rejected this argument under the United States Constitution. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (<HOLDING>). However, he contends that a “state Holdings: 0: holding death qualification of jury prior to guilt phase of bifurcated capital trial did not violate defendants sixth amendment right to impartial jury representative of fair crosssection of the community 1: holding that if a jury is to be provided the defendant at capital sentencing regardless of whether the sixth amendment requires it the jury must stand impartial and indifferent to the extent commanded by the sixth amendment 2: holding that the defendants sixth amendment right to a jury did not include having a jury decide whether or not he should receive a capital sentence 3: holding right of accused to trial by impartial jury justified postverdict protection of jurors from harassment and did not violate first amendment 4: holding that there is no sixth amendment right to jury sentencing


Input: Jackson. Schreiber argues that Daily’s alleged conflict of interest caused Daily’s (and presumably Neary’s) failure to pursue Jackson’s assertion that she was intimidated. Schreiber also alleges eight other grounds that allegedly show Daily was ineffective. Schreiber did present these other grounds to the court of appeals in a pro se brief, but he was represented by counsel, and the court apparently chose to evaluate only counsel’s arguments. Because Schreiber’s appellate attorney presented only the juror intimidation issue to the court of appeals, and because the court of appeals only addressed that argument in respect to its decision on prejudice, that is the only ground of its decision this Court may review pursuant to § 2254. See Myartt v. Frank, 395 F.3d 782, 785 (7th Cir.2005) (<HOLDING>). Schreiber does not establish an adverse Holdings: 0: recognizing that  2254d by its own terms applies only to claims previously adjudicated on the merits in statecourt proceedings 1: holding that aedpa limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court 2: holding that a claim brought in a pro se brief that the state court did not address was not adjudicated on the merits as required by  2254d 3: holding that aedpa only applies where the state court adjudicated the constitutional issue on the merits 4: holding that this court will not address the merits of an issue presented for the first time in a reply brief


Input: the Distribution Agreement effectively destroyed Innomed’s ability to assign its rights to AHP. Because the January 26 agreement was never memorialized in writing, Innomed must point to evidence in the record as to, inter alia, the terms of the oral contract and the terms that ALZA allegedly breached. See Careau & Co. v. Sec. Pacific Bus. Credit, Inc., 222 Cal.App.3d 1371, 272 Cal.Rptr. 387, 395 (1990); see also Khajavi v. Feather River Anesthesia Med. Group, 84 Cal.App.4th 32, 100 Cal. Rptr.2d 627, 646-47 (2000). Innomed has failed to proffer any evidence as to the terms of the January 26 agreement, so it is impossible to determine whether ALZA breached any of the terms of the agreement when it terminated the Distribution Agreement on March 26. See Khajavi, 100 Cal.Rptr.2d at 646-48 (<HOLDING>). Therefore, no reasonable juror could conclude Holdings: 0: holding that plaintiff could not have reasonably relied on an oral representation that the atwill provision of his employment contract did not apply to him when he entered into the contract that expressly contradicted the oral representations 1: holding a court must find among other things clear evidence of the existence of an oral agreement for part performance to remove the contract from the statute of frauds 2: holding that express oral agreement with government agent was not binding because among other factors applicable regulations required contract to be in writing 3: holding part performance of an oral agreement necessary to take the oral agreement out of the statute of frauds must be consistent only  with the existence of the alleged oral contract 4: holding that defendant did not breach oral agreement because among other things the plaintiff had not established that the term in question was part of the oral contract


Input: credibility for different reasons. The withheld evidence went to Storch’s sophistication and motivation in his capacity as a prosecution informant and not, like the other evidence produced at trial, to his general propensity for dishonesty. Even if the lies did not provide a novel angle of attack on Storch’s credibility, which we believe they do, as we explained in Killian, “the finders of fact were deprived of the fundamental inference that if [the government informant] lied about X, Y, and Z, it is quite likely that he lied about Q, R, and S.” 282 F.3d at 1209. The evidence withheld revealed that Storch, like the witness in Bern, was “completely unreliable, a liar for hire, [and] ready to perjure himself for whatever advantage he could squeeze out of the system.” 283 F.3d at 1059 (<HOLDING>). Because Storch’s testimony implicating Holdings: 0: holding that the failure to disclose evidence known to the defense cannot form the basis of a brady violation 1: holding as brady violation prosecutions failure to disclose to defense that prosecution had agreed not to prosecute key witness in exchange for his testimony at trial 2: holding impeachment evidence falls within the brady rule 3: holding that the alleged brady material was merely cumulative to the significant impeachment that already occurred during trial so there was no prejudice for a brady violation 4: holding that the prosecutions failure to disclose multiple pieces of critical impeachment evidence that could have been used to undermine credibility of the jailhouse informant who testified that defendant admitted committing the murders was sufficient to violate brady


Input: 916 (Bankr.N.D.Ill.1983); In re Wood, 23 B.R. 552 (Bankr.E.D.Tenn.1982). See Barr v. Hinshaw (In re Hinshaw), 23 B.R. 233 (Bankr.D.Kan.1982) (ERISA benefits held to be an exemption under § 522(d)(10)(E)). See also Goff v. Taylor (In re Goff), 706 F.2d 574 (5th Cir.1983) (ERISA qualified “Keogh plan” held to be property of the estate notwithstanding a prohibition against alienation). Cf., United States v. Devall, 704 F.2d 1513 (11th Cir.1983); Toson v. United States, 18 B.R. 371 (N.D.Ga.1982); In re Greene, 27 B.R. 462 (Bankr.E.D.Va.1983) (all holding that social security benefits are property of the estate despite a statutory prohibition against alienation). But see Clotfelter v. CIBA-GEIGY Corp. (In re Threewit), 24 B.R. 927 (D.Kan.1982); In re Rogers, 24 B.R. 181 (Bankr.D.Ariz.1982) (<HOLDING>); Hildebrand v. Social Security Administration Holdings: 0: holding that the debtor could retain exempt property because it was not property of the estate 1: holding that social security benefits are excluded from property of the estate because of the statutory antialienation provision 2: holding that a plaintiff in an erisa denial of benefits case bears the burden of proving her entitlement to contractual benefits 3: holding that erisa benefits are not property of the estate 4: holding that retirement benefits are accrued benefits under erisa


Input: of glasses. Pursell, on the other hand, claimed that he went to Dr. Perry’s on July 23, 1981, the afternoon before Christopher Brine was killed. A number of witnesses took the stand and identified Pursell as the man that they saw in Dr. Perry’s office on July 24,1981. (Tr. 1/20/82, at 245-47, 253). These witnesses explained that Pursell looked different on July 24, 1981 than he did at the time of trial. See, e.g., id. at 253. And this testimony helped the jury determine the credibility of the witnesses identifying Pursell and the accuracy of their identification. As the Pennsylvania Supreme Court correctly held, the admission of this evidence was relevant and not unduly prejudicial. Accordingly, it cannot amount to a violation of due process, Lisenba, 314 U.S. at 228-29, 62 S.Ct. 280 (<HOLDING>), and defense counsel’s failure to object to Holdings: 0: holding that admission of evidence must be fundamentally unfair to constitute a due process violation 1: holding that admission of relevant evidence generally not due process violation warranting habeas relief 2: holding that mere negligence does not implicate the right to due process 3: holding that the mere fact that relevant evidence is shocking to the sensibilities does not make the admission of that evidence a violation of due process 4: holding that suppression of evidence by the prosecution of evidence favorable to the defendant upon request violates the defendants right to due process where the evidence is material


Input: however, is inapposite to the present case. In contrast to this ease, in Short the Claims Court found jurisdiction under the Tucker Act, 28 U.S.C. § 1491, not the Indian Tucker Act, 28 U.S.C. § 1505. See Short, 12 Cl.Ct. at 40 (“[Plaintiffs are suing as individuals under 28 U.S.C. § 1491 (1982).”). Later, “[i]n 1989, the Claims Court denied the plaintiffs’ claim for group damages under 28 U.S.C. § 1505.” Short v. United States, 50 F.3d 994, 997 (Fed.Cir.1995) (emphasis added) (citing Order at 3-10, S es, 169 Ct.Cl. 1009, 1012-13 (1965) (finding that identification of two scattered families descended from an Indian nation was sufficient to support Claims Commission’s determination that plaintiffs constituted an identifiable group); Thompson v. United States, 122 Ct. Cl. 348, 360 (1952) (<HOLDING>). What is more, plaintiffs assert a collective Holdings: 0: holding that tribal courts have jurisdiction to divide trust property in a divorce action when both parties are indians 1: holding that indians of california could bring suit as identifiable group despite lack of formal tribal organization 2: holding that indian tribes lack tribal jurisdiction over crimes committed by nonmember indians within the tribes reservation 3: holding that shareholders had standing to bring derivative suit against the government but not direct suit due to lack of privity 4: holding that indian tribes could only exercise criminal jurisdiction over tribal members and not other indians


Input: violated the Ind. Rules of Professional Conduct and is against public policy. Finally, Appellants argue that, even if only the March 2002 event is covered by the Engagemen f the Farm Account in 1997 and the distribution to Beverly and termination of the Irrevocable Trust in February 1998 are related in any way to the sale of property held by Vernon’s Trust on March 14, 2002. From the amended complaint and the parties’ descriptions of the events, the three events appear to be completely separate allegations of malpractice. Consequently, the alleged arbitrable issue is separable from the nonarbitrable issues, and both arbitration and the litigation can proceed at the same time. See, e.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985) (<HOLDING>). For the foregoing reasons, we affirm in part Holdings: 0: holding that the federal arbitration act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel even where the result would be the possibly inefficient maintenance of separate proceedings in different forums 1: holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived 2: holding that rookerfeldman precludes jurisdiction over a federal lawsuit to compel arbitration under the federal arbitration act because the action was inextricably intertwined with the plaintiffs failed statelaw action to compel arbitration under the louisiana arbitration act 3: holding that district courts are required to compel arbitration of claims subject to arbitration clause even if the result is piecemeal litigation 4: holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration


Input: conduct varies inversely with the pervasiveness or frequency of the conduct”); see also Jacob v. ES-O-EN Corp., No. 2:06-CV-740 TC, 2008 WL 474120, at *3, 2008 U.S. Dist. LEXIS 12742, at *8 (D.Utah Feb. 19, 2008) (“[Plaintiffs] allegations of rape and assault by [an employee] amount to [a] hostile work environment, because these actions could be severe enough to alter [her] conditions of employment and create an abusive work environment.”); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953, 970 (D.Minn.1998) (“A single sexual assault has a far greater potential to adversely alter the work environment, and with greater permanence, than would an offensive verbal remark, or a series of such remarks.”); cf. Patterson v. Cnty. of Oneida, 375 F.3d 206, 230 (2d Cir.2004) (<HOLDING>). The facts presented in this case do not rise Holdings: 0: recognizing a hostile work environment claim under section 1983 1: recognizing hostile work environment discrimination in ada context 2: holding that plaintiffs allegation of one incident where supervisor wrapped his arms around her and made sexually explicit statements was not sufficient to establish a claim of a hostile working environment absent the most stringent circumstances courts have refused to hold that one incident in itself was so severe as to create a hostile work environment 3: holding single incident of sexual harassment was neither sufficiently pervasive nor severe to constitute a hostile work environment 4: holding in a 42 usc  1981 and 1983 context that although a single incident ordinarily will not give rise to a cognizable claim for hostile work environment  where the plaintiff was subjected to a physical assault in which he was punched in the ribs and  temporarily blinded by having mace sprayed in his eyes we cannot say that as a matter of law such an incident is not sufficiently severe in all the circumstances to create a hostile work environment


Input: intend to establish the SPCA as a state agency. 6 . While the SPCA argues it is entitled to immunity because of the law enforcement function it performs, whether an entity is engaged in a governmental function is not controlling. See Guinn v. Alburtis Fire Company, 531 Pa. 500, 614 A.2d 218, 220 n. 4 (1992) (governmental immunity not dependent on whether agency performs governmental function). 1 . For example, the Pennsylvania Turnpike Commission has the statutory authority to sue and be sued, see 36 P.S. § 652d; nevertheless, it has maintained that it is entitled to immunity. See, e.g., Farabaugh v. Pa. Tpk. Comm’n, 590 Pa. 46, 55-56, 911 A.2d 1264, 1269-70 (2006) (discussing the Commission’s position); accord Bradley v. Pa. Tpk. Comm’n, 121 Pa.Cmwlth. 51, 55, 550 A.2d 261, 263 (1988) Holdings: 0: holding that the doctrine of sovereign immunity in the commonwealth resulted from a mistaken view of the law by earlier courts 1: holding that a state may waive its sovereign immunity 2: holding that ujnlike for local agency employees willful misconduct does not vitiate a commonwealth employees immunity because sovereign immunity protects a commonwealth employee acting within the scope of his or her employment from liability even for intentional torts 3: holding that school districts do not share in the commonwealth of pennsylvanias eleventh amendment sovereign immunity because they are not alter egos of the commonwealth 4: holding that the commission is a commonwealth agency entitled to sovereign immunity


Input: NCAA discriminated against him based on his disability. 3. Defendant’s Cross Motion for Summary Judgment, Ct. Rec. 53, is GRANTED IN PART on the issues of whether Plaintiffs ADA claim has become moot and whether the NCAA cannot be subject to liability under 42 U.S.C. § 1983. 4. Because the Court lacks the authority to grant Plaintiff any relief for his claimed injury under the ADA, Plaintiffs ADA claim is DISMISSED WITH PREJUDICE. 5. Because Plaintiffs due process allegations fail as a matter of law, Plaintiffs claim under 42 U.S.C. § 1983 is DISMISSED WITH PREJUDICE. 6. Because the Court declines to exercise supplemental jurisdiction over Plaintiffs remaining state law claim, Plaintiffs claim under the WLAD is DISMISSED WITHOUT PREJUDICE. Th ge, 959 F.Supp. 496, 498-99 (N.D.Ill.1997) (<HOLDING>); Stoutenborough v. Nat’l Football League, 59 Holdings: 0: holding ada claim was discharged 1: holding that group organizing bike race was not subject to ada 2: holding that national football league was not a place and therefore not subject to ada 3: holding that a plaintiff would have to show that he was not promoted because of his race not that he was a member of a protected group and was not promoted 4: recognizing that certain forms of race consciousness do not lead inevitably to impermissible race discrimination


Input: this matter and identify the burden of proof for each cause of action. The Court will then discuss each cause of action in turn. A.Jurisdiction The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338, as well as 15 U.S.C. § 1121(a). The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). Venue in the Southern District is proper under 28 U.S.C. § 1391. B.Burden of Proof The party making the allegations of infringement — here, Tiffany — -has the burden of proof to present evidence in support of the allegations set forth in its complaint and to prove those allegations by a preponderance of the evidence. See Merit Diamond Corp. v. Suberi Bros., Inc., No. 94 Civ. 4572(SHS), 1996 WL 11192, at *2 (S.D.N.Y. Jan.11, 1996) (<HOLDING>); McGraw-Hill, Inc. v. Comstock Partners, Inc., Holdings: 0: holding that a claimant must demonstrate by a preponderance of the evidence entitlement to an administrative claim 1: holding that the shareholder has shown a credible basis by a preponderance of the evidence for his allegations of selfdealing with respect to a number of corporate transactions 2: holding that trademark infringement must be demonstrated by a preponderance of the credible evidence 3: holding that the proper standard of proof is preponderance of the evidence 4: holding that the government must prove the facts used in sentencing by a preponderance of the evidence


Input: or proper. The NJCFA provides, as pertinent, that The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise ... or with the subsequent performance of such person as aforesaid, whether or not any person has been damaged thereby, is declared to be an unlawful practice. N.J.S.A. 56:8-2. As Defendants point out, the private remedy provisions of both statutes require a plaintiff to have suffered an ascertainable loss. See Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281 (2002) (<HOLDING>); Weinberg v. Sun Co., Inc., 565 Pa. 612, 618, Holdings: 0: holding that a grant of summary judgment in favor of one party creates a final judgment allowing appellate review of denial of opposing partys summary judgment motion 1: holding that in order to have standing under the act a private party must plead a claim of ascertainable loss that is capable of surviving a motion for summary judgment 2: holding that in ruling on a motion for summary judgment the trial court is limited to the grounds raised in the motion 3: holding a ruling on a motion for summary judgment adjudicating the rights of a party is a final judgment subject to appeal 4: holding that a deposition is the time for the plaintiff to make a record capable of surviving summary judgment  not a later filed affidavit


Input: in violation of Fourth Amendment). We have not adopted the “good faith” exception for purposes of art. 14 of the Massachusetts Declaration of Rights or statutory violations, focusing instead on whether the violations are substantial and prejudicial. See Commonwealth v. Beldotti, 409 Mass. 553, 559 (1991) (denying exclusion of evidence because intrusion was minimal, but noting “we do not rely on any theory the police were proceeding in good faith reliance [on] a defective search warrant”); Commonwealth v. Pellegrini, 405 Mass. 86, 91 n.6 (1989) (reiterating that Massachusetts law has not adopted good faith exception of United States v. Leon, supra, to exclusionary rule); Commonwealth v. Treadwell, 402 Mass. 355, 356 n.3 (1988) (same); Commonwealth v. Sheppard, 394 Mass. 381, 391 (1985) (<HOLDING>). See also J.A. Grasso & C.M. McEvoy, Holdings: 0: holding that an arrest warrant  without a search warrant  does not permit law enforcement authorities to enter a third partys home to legally search for the subject of the arrest warrant 1: holding that deficiency as to particularity in warrant not prejudicial under art 14 where search was conducted as if warrant were in compliance and thus was not unreasonable 2: holding it was reasonably practicable to obtain warrant to search defendants vehicle where courts were open on day of warrantless search and judges were available to sign warrant 3: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 4: holding that strip search incident to arrest was not per se unreasonable but holding that search was performed in an unreasonable manner when conducted in view of the public


Input: 524, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) (concluding that summary judgment is proper where ADA plaintiff fails to show that he is "regarded as unable to perform a class of jobs”)). 13 . See also Olivieri v. Abbot Laboratories, Civil No. 05-1244(ADC), 2008 WL 747082 (D.P.R. March 19, 2008) (evidence that employer was aware of plaintiffs condition, viewed her as unable to meet certain essential requirements of her job and even offered accommodations is insufficient to establish claim that defendant regarded plaintiff as disabled under ADA, inasmuch as the record is void of any evidence that defendant viewed plaintiff as unfit to perform a broad range of jobs). 14 . The EEOC guidelines have defined the term “qualified individual with a disability” as “an indiv 8, 1279-80 (Fed.Cir.1988) (<HOLDING>); Beauford v. Father Flanagan's Boys’ Home, 831 Holdings: 0: holding that attendance is a minimum function of any job 1: holding that imposition of punishment is a judicial function 2: holding that it is not an appellate courts function to make findings of fact 3: holding that inability to maintain regular and reliable level of attendance defeated plaintiffs qualification for the job 4: holding that attendance can be an essential function of a position and that excessive absenteeism rendered an employee unqualified for such a position


Input: 2000, pet. ref'd). 68 . We also observe that if a defendant is permitted to represent himself but the appropriate admonishments as to the dangers and disadvantages of self-representation are not given until after jury selection, they are too late and the error is not subject to a harmless error analysis. Manley, 23 S.W.3d at 175. 69 . See Bartlett, 44 F.3d at 100-02; Funderburg, 717 S.W.2d at 642; Anderson v. State, No. 14-06-00348-CR, 2007 WL 1470275, at *4 (Tex. App.-Houston [14th Dist.] May 22, 2007, pet. ref’d) (mem. op., not designated for publication) (stating mere acquiescence to a trial court’s unmistakable denial of his request to represent himself is not a waiver of a defendant's right to self-repr L.Ed.2d 155 (2000); Raulerson v. Wainwright, 732 F.2d 803, 809 (11th Cir.) (<HOLDING>), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 Holdings: 0: holding defendant waived selfrepresentation right by proceeding with assigned counsel and walking out of faretta hearing 1: holding that right of selfrepresentation did not attach because defendant had made no indication of his desire to proceed without counsel 2: holding that written waivers referring only in general terms to potential advantages of representation by counsel and potential disadvantages of selfrepresentation did not sufficiently demonstrate awareness of the dangers of selfrepresentation 3: holding that a newly assigned counsel may be entitled to a continuance based on the criminal defendants sixth amendment right to effective assistance of counsel 4: holding that the defendant knowingly and intelligently waived his right to counsel even though the exchange between the magistrate and the defendant was inadequate standing alone to inform the defendant of the dangers and disadvantages of selfrepresentation


Input: the EPA itself takes the position that an RCRA citizen suit may be brought after a state has received authorization to operate its program in lieu of the federal program: “[ujnder RCRA, Section 7002, any person may commence a civil action on his own behalf against any government instrumentality or any person who is alleged to be in violation of permits, regulations, conditions, etc. [¶]... ] As a result, any person, whether in an authorized or unauthorized State, may sue to enforce compliance with statutory and regulatory standards.” Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (quoting 45 Fed.Reg. 85016 (Dec. 24, 1980) (emphasis added); citing also 49 Fed.Reg. 48300 (Dec. 12, 1984)); see also Sierra Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993) (<HOLDING>); Murray v. Bath Iron Works Corp., 867 F.Supp. Holdings: 0: holding that because colorados hazardous waste program was authorized by rcra it became effective pursuant to rcra and the citizen suit provision of section 6972a1a applies 1: holding that the court lacked jurisdiction to adjudicate waste management of north americas claim that the el toro marine corps air base was required to award waste management of north america with a waste collection award since it was the only permittee in orange county because the case was not properly initiated as a citizen suit under rcra in addition the united states court of appeals for the ninth circuit held that waste management of north america did not have standing under 31 usc  35512 since it did not file a proper bid protest nor submit a bid 2: holding that compliance with analogous notice provision of the resource conservation and recovery act rcra was a mandatory condition precedent to suit 3: holding that the court had jurisdiction to hear the suit under the citizen suit provision of the caa 4: holding as a matter of course that georgias epaapproved ust program is enforceable by a rcra citizen suit


Input: after the agency’s final order of deportation and it was his second motion to reopen, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i), there is no time or numerical limitation for filing a motion to reopen if it is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U rate an objectively reasonable fear of persecution, as he did not present any evidence that Chinese officials were aware or would become aware of his “Falun Gong identity,” or that the Chinese government targets similarly-situated individuals upon their return to China. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008) (<HOLDING>); Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Holdings: 0: holding that congress may regulate purely local intrastate activities if they are part of an economic class of activities that have a substantial effect on interstate commerce 1: holding that a defendant may be seen as supervising the four drivers he used in his criminal activities 2: holding that the plaintiff alleged sufficient facts in his complaint to state a claim for wrongful discharge where he alleged he was discharged due to his political affiliation and activities 3: holding that an applicant may establish eligibility for asylum based exclusively on activities undertaken after his arrival in the united states so long as he demonstrates that authorities in his country are aware of his activities or likely to become aware of his activities 4: holding that plaintiff had stated a claim for violation of his first amendment right to intimate association where he alleged that his employer harassed him in retaliation for his fathers political activities


Input: of lien interests is “first in time is first in right”). Second, even if the trial court had the authority to declare the Association’s lien superior to the mortgage lien as a sanction, the fact remains that the issue of lien priority was never actually litigated. See Goodman v. Aldrich & Ramsey Enters., Inc., 804 So.2d 544, 547 (Fla. 2d DCA 2002) (providing that for collateral estoppel to apply, the issue “must have been actually litigated”). Nor would it change the fact that PNC Bank, as the holder of the mortgage who obtained title to the subject property via foreclosure sale, qualified as a first mortgagee regardless of the fact that the Association’s assessment lien survived the foreclosure action. See Beltway Capital, LLC v. Greens GOA Inc., 153 So.3d 330, 333 (Fla. 5th DCA 2014) (<HOLDING>). Third, and aside from the fact that no Holdings: 0: holding that because the bank held the mortgage when it acquired title by foreclosure it was entitled to safe harbor as a first mortgagee without further regard to whether it was also an assignee 1: holding that in a case in which an omitted junior mortgagee foreclosed its mortgage the junior mortgagee had the absolute right to redeem from the senior mortgagee who had purchased the property at a sale following foreclosure of the senior mortgage 2: holding that foreclosure of prior mortgage extinguished second mortgage 3: holding that the mortgagee named in the mortgage at the time of the mortgages execution acquired the legal title to the property 4: holding that rookerfeldman barred a debtors action to rescind a mortgage because it was inextricably intertwined with a state courts foreclosure judgment which was premised on the existence of a valid mortgage


Input: October 1, 1998 and October 1, 2000. Under certain circumstances, failure to appeal an added assessment, in itself, may support a conclusion that the municipality is entitled to a hearing-on the issue of change in value under the Freeze Act. Here, however, defendant has provided no explanation of the added assessment, and the Steinhart Certification makes no reference to the added assessment as evidencing that a change in value occurred as of October 1, 2000. Plaintiffs failure to appeal does not compensate for defendant’s failure to present any proofs that the “alterations” which were the basis for the added assessment resulted in a substantial and meaningful change in the value of the subject property. Cf. United States Postal Serv. v. Town of Kearny, 19 N.J.Tax 282 (Tax 2001) (<HOLDING>). Defendant has not provided the court with any Holdings: 0: holding that an application is  pending from the time it is first filed  emphasis added 1: holding defendants failure to object to the drug quantity assessment in the presentence report at sentencing was a waiver of the issue on appeal 2: holding that the only question on a rule 35a motion is whether the sentence imposed was illegal on its face  emphasis added 3: holding that failure to appeal an added assessment did not preclude application of the freeze act where the added assessment was improperly imposed 4: holding that the statute incorporated all the rights and obligations of the contract emphasis added


Input: ("The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of § 18.2-266 or § 18.2-266.1, or 18.2-272 shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense.”); Code § 18.2-268.10(A) (providing that the "court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused”). 6 . See also Sullivan v. Commonwealth, 17 Va.App. 376, 379, 437 S.E.2d 242, 244 (1993) (reversing trial court's admission of certificate because appellant was not given a chance to elect between blood and breath test as required under predecessor statute); Snead v. Commonwealth, 17 Va.App. 372, 374, 437 S.E.2d 239, 241 (1993) (<HOLDING>); Wendel v. Commonwealth, 12 Va.App. 958, 964, Holdings: 0: holding the government has an affirmative duty to disclose exculpatory evidence to a criminal defendant 1: holding defendant was improperly denied potentially exculpatory evidence 2: holding that once probable cause is developed officers have no constitutional obligation to conduct further investigation in the hopes of uncovering potentially exculpatory evidence 3: holding that record must show that evidence is exculpatory for defendant to establish brady violation 4: holding that the state has no affirmative duty to seek out and gain possession of potentially exculpatory evidence


Input: negotiations in good faith, sending them to binding arbitration instead. In addition, the arbitration provision is intended to apply even if, as here, one of the parties continues to be represented by the same counsel who represented that party in the settlement negotiations, contravening the letter and intent of the public policy of Texas as stated in sections 1.101 and 6.603 of the Family Code. Thus, even if I had not concluded that the entire Agreement was void, I would hold that the inclusion of an arbitration provision in the parties cooperative law agreement violates the letter and the spirit of sections 1.101 and 6.603 of the Family Code and that the provision is void an unenforceable as against the public policy of the State of Texas. See In re Poly-America, 262 S.W.3d at 348 (<HOLDING>). Conclusion For all the foregoing reasons, I Holdings: 0: holding that immunity agreements are analogous to plea agreements and are enforced under principles of contract law within the constitutional safeguards of due process 1: holding  he who seeks equity must do equity  2: holding invalid on preemption grounds state statute making agreements to arbitrate franchise claims unenforceable 3: holding similar agreement void on public policy grounds 4: holding that agreements to arbitrate are valid unless grounds exist at law or in equity for revocation including voidness under public policy


Input: testimony as a prior inconsistent statement pursuant to Rule 801(d)(1)(A). 2. 911 Call and Recorded Body-Microphone Statements The district court initially ruled that the 911 call was admissible as a present sense impression and excited utterance but that the recorded body-microphone statements could be used only for impeachment purposes; however, the court ultimately ruled that both categories of evidence could be admitted as substantive evidence under the present-sense-impression and excited-utterance exceptions to the hearsay rule. Federal Rule of Evidence 803(1) provides that “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is “not excluded by the rule against hearsay.” “The underlying rationale of the 995) (<HOLDING>)). Additionally, we determined that the Holdings: 0: holding statement made twentythree minutes after event admissible as a present sense impression 1: holding that under certain circumstances statements on a 911 tape may be admissible as a present sense impression 2: holding trial courts allowance of testimony under the present sense impression exception if error was harmless because statement was admissible under excited utterance exception 3: holding statements on 911 tape admissible as present sense impression where call was made almost immediately after the defendant left the store after a shooting incident 4: holding railroad workers statement to police made after he had walked approximately 100 feet admissible as a present sense impression


Input: from admitting a criminal defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. See Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.1989); Combs v. Coyle, 205 F.3d 269, 283-84 (6th Cir.2000); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-18 (7th Cir. 1987); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991). See also United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981) ("[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government's case in chief.”). The D.C. Circuit has stated that “custody” “is the triggering mechanism for the right of pretrial silence under Miranda.” United States v. Moore, 104 F.3d 377, 385 (D.C.Cir.1997) (<HOLDING>). The Fourth, Eighth, and Eleventh Circuits Holdings: 0: holding that the government may comment on a defendants prearrest premiranda silence as well as his postarrest pr emiranda silence 1: holding that the defendants postarrest pr emiranda silence was admissible in the governments caseinchief because there was no official compulsion the court qualified its holding stating we do not decide today whether compulsion may exist under any other postarrest pr emiranda circumstances 2: holding that if comment is fairly susceptible of being construed by the jury as a comment on the defendants exercise of his or her right to remain silent it violates the defendants state constitutional right to silence whether comment was introduced in states caseinchief or for impeachment purposes holding that the state may not impeach a defendant with his postarrest or postmiranda silence 3: holding that the admission of a defendants postarrest premiranda silence in the prosecutions caseinchief violates the fifth amendment because the defendant was in custody 4: holding that introduction of defendants premiranda custodial silence is violation of fifth amendment


Input: help establish the existence of an unconstitutional practice or custom — cannot be readily deduced from simply reading the definition of practice or custom in Model Instruction 9.4. See Model Instruction 9.4 (“ ‘Practice or custom’ means any permanent, widespread, well-settled practice or custom that constitutes a standard operating procedure of the defendant.”); see also Norwood, 591 F.3d at 1067 (observing that “juries are not clairvoyant” and will not know to follow a particular legal principle “unless they are told to do so”). Accordingly, in the context of this case the definition of practice or custom in Model Instruction 9.4 was “an incomplete, and therefore incorrect, statement of the law.” Norwood, 591 F.3d at 1066; see also Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir.1995) (<HOLDING>). Further, by stating that a practice or custom Holdings: 0: holding that if jury instructions viewed as a whole fairly state the applicable law to the jury the failure to give particular instructions will not be error 1: holding that a jury is presumed to follow the trial courts instructions 2: holding that the ninth circuit erred because the state appellate courts conclusion that one incorrect statement in jury instructions did not render the instructions likely to mislead the jury was not unreasonable 3: holding that jury instructions must allow the jury to determine the issues presented intelligently 4: holding that district court did not abuse its discretion in giving jury instructions that taken together fairly and adequately conveyed the issues to the jury


Input: trigger CERCLA liability, nor does actual disposal of hazardous substances. A release must occur or be threatened before CERCLA is triggered. A party that “arranged for disposal” of a hazardous substance under § 9607(a)(3) does not become hable un der CERCLA until there is an actual or threatened release of that substance into the environment. Arranging for disposal of hazardous substances, in itself, is neither regulated under nor prohibited by CERCLA. Further, disposal activities that were legal when conducted can nevertheless give rise to liability under § 9607(a)(3) if there is an actual or threatened release of such hazardous substances into the environment. See Cadillac Fairview/California, Inc. v. United States (Cadillac Fairview/California I), 41 F.3d 562, 565-66 (9th Cir.1994) (<HOLDING>); Cadillac Fairview/California, Inc. v. Dow Holdings: 0: holding that a party that sold a product to another party arranged for disposal of a hazardous substance 1: holding past owners liable for the disposal of hazardous wastes that leaked from an underground storage tank 2: holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees 3: holding that arranger liability claim requires proof that defendant arranged for the disposal of hazardous substances owned or possessed by defendant 4: holding that in a situation where the police have probable cause to arrest one party and reasonably mistake a second party for that first party the arrest of the second party is still a valid arrest


Input: have merit. Carnahan’s statement to Det. Tecklen-burg was an out-of-court statement “offered in evidence to prove the truth of the matter asserted,” i.e. that David was involved in the conspiracy and served in the role of money collector or “muscle” for Martin. Fed. R Evid. 801(c). David made a timely objection to the admission of this aspect of Det. Tecklenburg’s testimony, and we find no applicable exclusion to the hearsay definition nor exception to the general rule of inadmissibility that would permit Det. Tecklenburg’s testimony. Carnahan was a cooperating informant and his statement to Det. Tecklenburg was made in that capacity, not in the capacity of co-conspirator and not in furtherance of the conspiracy. See United States v. Alonzo, 991 F.2d 1422, 1425-26 (8th Cir.1993) (<HOLDING>). Also, it is not clear that Pieters’s Holdings: 0: holding that statements by a cooperating coconspirator to known authorities made after the commencement of cooperation are not admissible under rule 801d2e because such statements are not made in furtherance of the conspiracy 1: holding that statements made to keep a coconspirator informed as to the groups drug supply were made in furtherance of the conspiracy 2: holding that post arrest statements made by coconspirator to law enforcement officer were not admissible under rule 801d2e but admission of testimony was harmless because officers testimony was cumulative 3: holding a trial court should not allow a jury to hear outofcourt coconspirator declarations before holding a hearing outside the jurys presence to determine whether such statements are admissible under federal rule of evidence 801d2e 4: holding that statements aimed at preventing detection and punishment were not admissible under the coconspirator exception because admission of such statements would expand exception to hearsay rule to include declarations made not in furtherance of conspiracy charged but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment


Input: We agree with the reasoning of the Navarro court. Evidence that appellant drew a handgun, a deadly weapon per se, from his pocket in response to a threat by Scur-lock does not alone raise an inference that appellant was unaware of the risk posed by that conduct. To the contrary, drawing a deadly weapon in response to a physical threat indicates that the actor is not only aware of the risk posed by the weapon, but is choosing to exploit that risk. We are cognizant that" appellant’s version of the facts characterizes the shooting as an “accident”; however, a showing of accidental discharge does not necessarily raise the issue of criminally negligent homicide. See Thomas v. State, 699 S.W.2d 845, 850 (Tex.Crim.App.1985); see also Simpkins v. State, 590 S.W.2d 129, 133 (Tex.Crim.App.1979) (<HOLDING>). That is, a showing that the defendant did not Holdings: 0: holding defense crossexamination did not raise issue of intent or identity 1: holding that failure to raise issue in brief constitutes waiver of appeal of the issue 2: holding that a party may not raise an issue for the first time on appeal 3: holding party may raise jurisdictional issue at any stage of proceedings 4: holding that evidence of accidental discharge does not nec essarily raise issue of criminally negligent homicide but may raise defense of accident


Input: with the EEOC within 180 days of the occurrence of an allegedly unlawful employment practice. Burgh v. Borough Council of Montrose, 251 F.3d 465, 469 (3d Cir. 2001). Within ten days, the EEOC must serve notice of the charge on the plaintiff’s employer. 42 U.S.C. § 2000e-5(e)(l). Where, as here, the plaintiff also files a complaint with a parallel state agency, “the period for filing the charge with the EEOC is extended to 300 days from the date of the alleged unlawful employment practice.” Burgh, 251 F.3d at 470 (citing 42 U.S.C. § 2000e-5(e)(l)). The plaintiff must allow the EEOC at least 180 days to investigate the charge before filing suit. Id. (citing 42 U.S.C. § 2000e-5(f)(l); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361, 97 S. Ct. 2447, 53 L. Ed. 2d 402 (1977) (<HOLDING>)). The plaintiff is entitled to sue at the Holdings: 0: recognizing private right of action 1: holding that a private right of action does not arise until 180 days after a charge has been filed 2: holding that a private right of action exists 3: holding  1330a motion untimely when filed over 180 days from confirmation 4: holding that the language of the statute is mandatory and the commission must act within 180 days


Input: damages were not warranted against Dr. Gordon. After the jury verdict, Ms. Liles settled with Dr. Gordon and Ridge Pathology and voluntarily dismissed her claims against Dr. Gordon and Ridge Pathology with prejudice. The trial court entered a final judgment against the Hospital and in favor of Ms. Liles for $500,000 in compensatory damages and for $1,000,000 in punitive damages. The Hospital now appeals. II. Analysis A. Medical malpractice The Hospital first argues that the trial court erred in failing to treat this case as a medical malpractice case subject to the provisions of chapter 766. We disagree. Section 766.106(l)(a), Florida Statutes (2004), defines a “[cjlaim for medical negligence” or “claim for medical malpractice” as “a claim, arising out of 712 (Fla. 2d DCA 1995) (<HOLDING>). Furthermore, Ms. Liles, who was not a Holdings: 0: holding at least under the facts of the case that the statute of limitations in a medical malpractice action did not begin to run until the plaintiff secured a specific medical diagnosis 1: holding that parents claims of outrage and negligent handling of a body were not subject to the medical malpractice statutes because hospital personnel did not engage in any medical skill or judgment in the disposition of the childs remains 2: holding that plaintiffs claim that medical providers did not comply with baker act was not subject to medical malpractice statutes ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient the process of complying with the statute does not require medical skill or judgment 3: holding that there was insufficient evidence that alleged victim made statements to forensic nurseexaminer for purpose of medical diagnosis or treatment in part because there was no evidence regarding alleged victims past experience with medical facilities or medical providers 4: recognizing that even when a prisoner files suit under section 1983 alleging medical malpractice against prison medical officials medical malpractice does not become a constitutional violation merely because the victim is a prisoner


Input: No. 1097, 90th Cong., 2d Sess. 66 (1968), reprinted in 1968 U.S.C.C.A (1962). 29 . Id. at 143, 82 S.Ct. 1218. See also n. 23 supra. 30 . 370 U.S. 139, 143-44, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). See also People v. Von Villas, Cal.App.2d Dist., 11 Cal.App.4th 175, 15 Cal.Rptr.2d 112, 133 (1992), cert. denied, 510 U.S. 838, 114 S.Ct. 118, 126 L.Ed.2d 83 (1993) (recognizing that Lanza’s holding that confidential relationships would "continue to receive unceasing protection despite the jailhouse setting”); In re Joseph A., supra at n. 22. Cf., e.g., U.S. v. Geller, supra n. 27 (intercepted wire communications between spouses suppressed since such communications were made in confidence and were privileged). 31 . D.R.E. 504. See also Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507 (<HOLDING>). 32 . People v. Elwood, Cal.App. 2nd Dist., Holdings: 0: holding that on march 13 2004 it was clearly established that the fourth amendment protects people from medical procedures induced by lawenforcement officers 1: holding that to decide whether or not a given area viewed in the abstract is constitutionally protected deflects attention from the problem presented because the fourth amendment protects people not places 2: holding that the fourth amendment protects property as well as privacy 3: holding that the fourth amendment protects people not places 4: holding fourth amendment protects right to be free from arrest without probable cause


Input: have autonomous control over the conduct of their officers.”). Thus, the district court’s order did not trigger the truncated process of reciprocal discipline under the Rules of Professional Conduct and this Court is without authority to impose reciprocal discipline in this proceeding. Although this Court on two previous occasions has considered the imposition of reciprocal discipline arising out of discipline imposed by a federal trial court, in neither case did we address the issue of whether a federal district court constituted “another jurisdiction” within the meaning of Rule 9.4. See In the Matter of Joyce Marie Griggs, 277 Ga. 663 (593 SE2d 328) (2004) (imposing reciprocal discipline); In Re Levi Breedlove, Case No. S07Y0270, State Disciplinary Board Docket No. 4935 (2006) (<HOLDING>). Having now considered the meaning of the term Holdings: 0: holding that misrepresentations in documents filed in state court in no way constituted a basis for imposing federal rule 11 sanctions 1: holding that an attorneys typewritten name on a pleading is not a signature for purposes of rule 11 and therefore does not subject him to sanctions 2: holding federal rule 11 contempt sanctions do not fall within ambit of state disciplinary rules and are not subject to reciprocal discipline 3: holding that rule 11 sanctions are dispositive and thus subject to de novo review 4: holding that a motion for rule 11 sanctions is dispositive


Input: is not the type of oppositional activity covered by Title VII because Bevels was not engaged in an unlawful employment practice. As explained earlier, her alleged inquiry was neither a sexual demand nor sexual harassment. To come within the opposition clause of Section 2000e-3(a), one must demonstrate an objectively reasonable belief that the practice “opposed” actually violated Title VII; otherwise, the activity (here, simply a negative response to an inquiry) was not statutorily protected activity. See Breeden, 532 U.S. at 271, 121 S.Ct. 1508 (since no reasonable person could have believed that a single incident implicated Title VII’s sex discrimination coverage, retaliation claim was properly dismissed); Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1019-20 (D.C.Cir.1981) (<HOLDING>); Trent v. Valley Elec. Ass’n Inc., 41 F.3d Holdings: 0: recognizing that title vii protects individuals from retaliation regardless of the merit of their complaints so long as they can show a good faith reasonable belief that the challenged practices violate title vii 1: holding that the conduct complained of must be an unlawful employment practice under title vii 2: holding that the test for good faith is the actual belief of the party and not the reasonableness of that belief 3: holding that the only qualification  placed upon an employees invocation of protection from retaliation under title viis opposition clause is that the manner of his opposition must be reasonable and noting that there is no qualification on who the individual doing the complaining may be 4: holding that an employee seeking the protection of the opposition clause must demonstrate a good faith reasonable belief that the challenged practice violates title vii


Input: have found the defendant guilty beyond a reasonable doubt. Id.; State v. Johnson, 425 N.W.2d 903, 906 (N.D.1988) (indicating “[i]n a criminal trial to the court without a jury, our standard of review is the same as if the case had been tried to a jury”). [¶ 6] In a DUS case, the proseeution must prove the driver had notice his license was suspended. State v. Egan, 1999 ND 59, ¶ 8, 591 N.W.2d 150; State v. Tininenko, 371 N.W.2d 762, 764 (N.D.1985). Here, the trial court did not expressly indicate it found Neumiller received notice of the suspension. However, by acknowledging the issue was whether Neumiller received notice and finding Neu-miller guilty of DUS, the trial court validly found Neumiller received notice. See State v. Smokey’s Steakhouse, Inc., 478 N.W.2d 361, 362 (N.D.1991) (<HOLDING>); see also City of Fargo v. Brennan, 543 N.W.2d Holdings: 0: recognizing the trial court in reaching its general verdict necessarily resolved disputes of fact against the defendant 1: recognizing this court will uphold a general verdict if evidence on any one count issue or theory sustains the verdict citations omitted 2: holding that the trial court erred in granting the school boards posttrial motion for directed verdict because although the school board timely moved for a directed verdict during trial it did not serve its motion for directed verdict until the eleventh day after the verdict 3: recognizing that a trial court can set aside verdict 4: recognizing general rule


Input: of the estoppel depends on “the inferences that may reasonably be drawn from the amendment.” Id. at 1840, 62 USPQ2d at 1712. A patentee is not barred from asserting “equivalents unforeseeable at the time of the amendment and beyond a fair interpretation of wh .3d 1570, 1583, 34 USPQ2d 1673, 1683 (Fed.Cir.1995). It is apparent from the record that numerous amendments of the claim limitations were made during prosecution of the ’220 patent. Also, in its October 3, 1991 response, Allen made numerous arguments respecting the patentability of the claims as amended. On remand, the district court must consider whether any of these amendments and arguments gives rise to prosecution history estoppel limiting resort to the doctrine of equivalents. Festo, 122 S.Ct. at 1839, 62 USPQ2d at 1711-12 (<HOLDING>); Southwall, 54 F.3d at 1583, 34 USPQ2d at 1682 Holdings: 0: holding inter alia that a voluntary amendment may give rise to prosecution history estoppel 1: holding that alleged violations of a state statute did not give rise to federal constitutional claims 2: holding that a narrowing amendment made to satisfy any requirement of the patent act may give rise to an estoppel 3: holding that failure to record an assignment does not give rise to a cause of action 4: holding that the first amendment does not by itself give rise to a cause of action for damages


Input: of $150,000 under the Services Contract, regardless of Allard’s representation; there is no evidence that Schwan’s was aware of Allard’s representation; and Good Stuff could not have relied upon Allard’s June 6 representation when it sought the final Schwan’s prepayment. As to the latter point, Schwan’s final prepayment to Good Stuff— which Schwan’s was required by the Services Contract to pay — was made by a check dated June 4, 2002, before Allard’s email containing the alleged misrepresentation. In short, all of the bank’s actions represented “the legitimate advancement of its own economic interest ... which, is not ‘improper’ for purposes of a tortious interference claim.” Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass.App.Ct. 34, 39, 815 N.E.2.d 241 (2004) (<HOLDING>); accord In re General Plastics, 158 B.R. at Holdings: 0: holding that a lender violated the tila by splitting the charges surrounding one loan into two loans executed on the same day where the consumer only sought one loan 1: holding that consideration for guaranty of loan previously made was that guarantors friend the bank manager who issued the loan would not lose his job for making a bad loan 2: holding that it was not improper for a lender to halt the proposed settlement and discounted payment of plaintiffs loan when the lender believed the loan would otherwise be paid in full 3: holding that where parties to an oral loan agreed that the loan would be repaid on demand the statute of limitations did not begin to run until the date plaintiff demanded repayment of the loan 4: holding that the lender was subject to the dtpa because the borrowers purpose in obtaining the loan was the purchase of a house